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COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Al-Islam v. Valley Street Property Ltd., 2019 BCCA 48 Date: 20190201 Dockets: CA44574; CA44602 Between: Azra Al-Islam Respondent (Petitioner) And Valley Street Property Ltd. and AWM Alliance Real Estate Group Ltd. Appellants (Respondents) And Director, Residential Tenancy Branch Respondent Before: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Fitch The Honourable Mr. Justice Hunter On appeal from: Orders of the Supreme Court of British Columbia, dated June 28, 2017 ( Al-Islam v. Kaila , Vancouver Docket No. S172322 and Al-Islam v. Plenert , Vancouver Docket No. S172323). Oral Reasons for Judgment Counsel for the Appellants: D.K. Georgetti Representative of the Respondent: E.A.-I. Rafique Counsel for Director, Residential Tenancy Branch: F. Zaltz Place and Date of Hearing: Vancouver, British Columbia February 1, 2019 Place and Date of Judgment: Vancouver, British Columbia February 1, 2019 Summary: Residential Tenancy arbitrators made orders giving the landlord possession of premises for non-payment of rent and a monetary award in respect of the tenant’s overholding. The tenant filed petitions for judicial review of both orders. The landlord applied to strike the petitions under Rule 9-5, or for summary judgment under Rule 9-6. The judge hearing the landlord’s applications purported to grant the judicial review petitions. The landlord appeals. Held: appeals allowed, respondent ordered to amend the petitions. The judge misapprehended the nature of the applications before him. He could not grant the petitions, as he was not hearing them. With respect to the Rule 9-5 application, the petitions were defective in several respects. They need not be struck, however, and the petitioner should have the opportunity to amend them to comply with the Judicial Review Procedure Act and the Supreme Court Rules. The summary judgment applications were ill-conceived, as Rule 9-6 has no application to judicial review proceedings. [1] GROBERMAN J.A. : The appellants appeal from an order of the Supreme Court that set aside orders of two arbitrators acting as delegates of the Director under the Residential Tenancies Act , S.B.C. 2002, c. 78. While the background of the case is convoluted, the essential basis for the appeal is that the judge misapprehended the nature of the proceedings in front of him. He believed that he was hearing the respondent’s judicial review applications when, in fact, he was hearing the appellant’s application to strike the petition. On such an application, he was not entitled to grant the relief that he did. [2] To remedy the error, the appellants seek to have their applications returned to the Supreme Court for a new hearing. In my view, there is no need to do that. The applications are straightforward and this Court is fully able to dispose of them. As I will explain, the petitions, as they now stand, are defective. There is, however, no need to strike them. The petitioner will be given an opportunity to amend the petitions. Once amended – assuming the parties do not reach an accommodation on the merits – the petitions can be heard by the Supreme Court. Background [3] While the factual background of this matter is not particularly germane to the disposition of this appeal, I will set it out, in order to make it clear what is at stake in the underlying proceeding, and to give context to the issues on appeal. [4] For a number of years, Ms. Al-Islam resided in a two-bedroom unit in an apartment building in Vancouver. The building owner was and is Valley Street Property Ltd., and she paid her rent to that company. Ms. Al-Islam’s adult son, Mr. Rafique also resides in the unit, and, indeed, is the only resident for much of the year, when Ms. Al-Islam is travelling. It is Mr. Rafique who has been primarily involved in the events leading up to this litigation, and he has, throughout, appeared on behalf of his mother in proceedings. [5] In November, 2015, Ms. Al-Islam and her family moved into a one-bedroom unit, under a new tenancy agreement, which shows the landlord to be “Valley Street Property”. She continued to pay her rent to Valley Street Property Ltd., leaving the cheques with the building manager. [6] Sometime around March 2016, the ownership of the company changed, and it engaged a management company, AWM Alliance Real Estate Group Ltd., to manage the building. In March, Tyler Johnson, a representative of the management company, met individually with tenants, to advise them of the changes and to introduce himself and the new management company. Among the people Mr. Johnson talked to was Mr. Rafique. [7] In April a package of written materials from the new management company was delivered to the apartment unit and received by Mr. Rafique on behalf of his mother. Among other things, the material advised tenants to make future rent cheques payable to the management company. [8] Ms. Al-Islam did not comply with that instruction, continuing to make cheques payable to Valley Street Properties Ltd. Initially, no difficulties resulted from that conduct, but in November, 2016, the management company returned the cheque, and asked for a replacement cheque made out to “AWM Alliance in Trust”. Mr. Rafique responded by writing to AWM, stating that he had determined that title to the property remained with Valley Street Property, and that he would only make rent payments to that company unless he received “formal authorization from a BC land authority indicating that the right to rental dues has been transferred to a new owner”. [9] On December 5, 2016, Mr. Johnson wrote to Ms. Al-Islam, explaining that while title to the land was still held by Valley Street Properties Ltd., the ownership of that company had changed, and the new owners had contracted with AWM to provide management. He indicated that rent cheques would be accepted if they were payable either to “Valley Street Properties” or “AWM Alliance in Trust”, and asked that the rent cheques be provided to him. Thereafter, Mr. Rafique took the position that he would pay no further rent until he received written confirmation from Valley Street Properties Ltd. that AWM could collect rent on its behalf. [10] On January 6, 2017, with the rent for November and December 2016 and January 2017 remaining unpaid, AWM prepared and delivered a 10 Day Notice to End Tenancy for Unpaid Rent in the name of Valley Street Property. Mr. Rafique received the notice. He attended at the office of the Residential Tenancy Branch to dispute the notice. [11] The dispute was heard by teleconference by arbitrator L. Plenert on February 3, 2017. At the hearing, Mr. Rafique, who appeared on behalf of his mother, outlined his view that he did not have to pay rent until he had written confirmation, in a form that he accepted, from the property owner that he should provide his rent to the management company. He further argued that the Notice to End Tenancy was invalid because it referred to “Valley Street Properties” rather than “Valley Street Properties Ltd.”. The arbitrator did not agree, saying: I find that the 10 day Notice in question satisfies the provision of section 52 of the Act and is in the proper form. The errors noted by the tenant’s son are inconsequential and do not prejudice the tenant in any way. This is not a case where the tenant was unaware of the landlord’s address or to whom the rent was to be paid. The tenant was given very clear direction by the landlord to the tenant in the letter of December 6 as to the payment of rent, and that letter clearly bore the address. I find that the tenant knew or should have known that the rent arrears had to be paid when the notice was given if the tenant wanted the tenancy to continue, yet the tenant and her son failed to pay it. The notice is therefore found effective to end this tenancy and the landlord has established a right to possession. [12] Thereafter, the landlord brought an application for a monetary award to cover outstanding rent in the amount of $4,600, and the $100 filing fee for the application. A second arbitrator, S. Kaila, heard the dispute by teleconference and granted the application. He made a monetary award of $4,700, and, after setting off from that sum the amount of $575, being the damage deposit held by the landlord, ordered Ms. Al-Islam to pay the landlord the amount of $4,125. [13] Mr. Rafique, by authority of a power of attorney granted to him by his mother, commenced judicial review petitions in her name to quash the decisions rendered by the residential tenancy arbitrators. [14] In the meantime, the back rent was paid; Indeed, we have heard today that rent cheques may even have been tendered before the hearings before the arbitrators. Further, at least for a time, Ms. Al-Islam paid the rent coming due each month. The management company accepted the rent as an “occupancy fee”, as it did not wish to be seen as acquiescing in the tenant’s overholding. The Petitions [15] The petitions were filed on March 10, 2017. Each of the petitions sought to set aside the order of one of the arbitrators. I would comment that, given the close connection between the two orders, and the fact that both were made by delegates of the Director under the Residential Tenancies Act , it would have been preferable for the matter to be brought as a single proceeding. That said, it was open to Ms. Al‑Islam to seek the relief in two separate petitions. [16] The petitions that were filed, however, were woefully defective and inadequate. Section 2 of Judicial Review Procedure Act , R.S.B.C. 1996, c. 241 requires judicial review applications to be by petition. Under the Supreme Court Civil Rules , a petition must be in Form 66. Section 14 of the Judicial Review Procedure Act supplements the rules by including a requirement that a judicial review application set out the ground for review. [17] Form 66 specifies that the first part of a petition must set out the orders that are being sought. In Ms. Al-Islam’s petitions, she seeks to have the arbitrator’s orders set aside. She also, however, seeks an injunction against the landlord, requiring it to provide her with a “ratification” of the asserted authority of AWM, and with insurance documents. Such injunctive relief is not available under the Judicial Review Procedure Act , and should not have been included in the petition. [18] The second part of a petition is required to set out the factual basis for the application. In the petitions originally filed on behalf of Ms. Al-Islam, she simply said “Please see petition record. It will be served prior to the hearing”. This kind of pro forma statement does not conform to the rules, and is improper. [19] The third part of a petition must set out the legal basis for the application. It is in this part, as well, that a party normally sets out the grounds for judicial review, as required by the Judicial Review Procedure Act . Again, the filed petitions simply said “Please see petition record. It will be served prior to the hearing”. Again, this is a serious deficiency in the petition. [20] The fourth part of a petition must advise of the materials to be relied on at the hearing of the petition. Again, the petitioner simply said “Please see petition record. It will be served prior to the hearing.” That, too was not compliant with the rules and was unsatisfactory. The Proceedings Before the Chambers Judge [21] On June 14, the respondents filed notices of application, seeking to have the petitions struck under Rule 9-5. As the petitions failed to set out basic grounds for judicial review and included neither the facts nor legal bases for the relief sought, this was an entirely reasonable action to take. [22] Unfortunately, the respondents also sought alternative relief, under Rule 9-6, seeking summary judgment on the petitions. Rule 9-6 is a rule that applies only to an “action”, which is defined in Rule 1-1(1) as a “proceeding started by a notice of civil claim”. It is not applicable to a proceeding commenced by petition. This restriction is sensible. The petition procedure is itself a summary one, and it would be inefficient to allow an additional summary procedure to be engrafted onto the process. [23] The application to strike the petitions came on for hearing in chambers on June 28, 2017. The judge had, before him, the petitions, the responses, the applications to strike, and a number of affidavits, some of which simply attached exhibits that were before the arbitrator. The documentation was difficult to follow. [24] It is evident that the judge had the opportunity to read some, but not all of the materials. It is equally clear that he misapprehended the nature of the application in front of him. He thought he was hearing the judicial review petitions. Accordingly, he asked Mr. Rafique to go first, and to summarize the case. [25] Mr. Rafique intended to ask for an adjournment, as he wished to file an amended petition in at least one of the proceedings. He had tried to do so that day, but the registry rejected the document because its formatting did not meet the requirements of the rules. Mr. Rafique also wished more time to respond to the application. He did not articulate his intentions clearly, however. Instead of dealing with his request for an adjournment, the judge pressed him for details about the case. Eventually, the judge called on the respondents. [26] Unfortunately, counsel for the respondent at the hearing (who is not counsel before us) did not, initially, correct the judge’s misimpression as to the nature of the proceedings. Instead, he commenced his argument by discussing the evidence on the judicial review application, and advising the judge that Mr. Rafique had gotten certain facts wrong. Eventually, however, he mentioned that the application was to dismiss the petitions under Rule 9-5 or 9-6. [27] The judge intervened, cutting the argument short, and proceeded to give his decision, which was brief: You’re both being very silly. I’m going to grant the judicial review, set aside the order, and I’m going to require you, sir, to make your cheques for your mom’s rent payable [to the management company]. And assuming that you pay your rent you will not be evicted – your mother will not be evicted until such time as they choose to evict you for a valid reason [28] After the hearing, Mr. Rafique filed an amended petition in the proceeding seeking to strike the order of Arbitrator Plenart. He did not amend the petition in the other proceeding. The amended petition is over thirty pages long. It is a rambling document. A careful and patient reading of the amended document discloses that it contains sufficient detail to meet the requirements of the Judicial Review Procedure Act and of Form 66. It also, however, contains a very large amount of material that is entirely irrelevant. It includes arguments and opinions and violates the principles of judicial review by including a wealth of material that was neither before the tribunal nor casts light on how the tribunal dealt with the matters before it. To be an adequate petition, it requires severe and diligent editing. The Appeal [29] On the appeal, the appellants ask that the judge’s order be set aside, and that their applications be remitted to the Supreme Court; to his credit, at this hearing, Mr. Georgetti, who I understand was not counsel who drafted the notice of appeal or factum, has been more flexible in terms of the relief he is seeking. [30] It is clear that the judge’s order cannot stand. The judge misapprehended the nature of the application in front of him. He was not hearing the petitions, and so could not grant the petitioner the relief sought in the petitions. He also failed to hear full argument from the parties. [31] I am unable, however, to agree that the applications to strike the petition should be remitted to the Supreme Court. Such a course of action would be a waste of time and resources. The issues on the motion to strike are straightforward and ought to be finally dealt with expeditiously. This Court can do so. [32] The petitions are, as I have indicated, woefully inadequate. The amended petition that the respondent filed, however, while needing drastic editing, is a document that is capable of being amended to serve as a proper petition. In the circumstances, I would not strike the proceedings, but rather give the petitioner an opportunity to amend the petitions to comply with the rules. [33] I would strike out the paragraph in Part 1 of each petition that seeks injunctive relief against the companies, as that relief is unavailable in a judicial review proceeding, and cannot be sought by petition. [34] Part 2 of the petitions must include the material facts on which the petition is based. These should stick carefully to the matters that were heard before the arbitrators and to any procedural defects alleged in respect of the arbitration hearings. They must not contain extraneous and irrelevant material. Part 2 should not recite all of the evidence – rather, it should set out those basic facts that are material to the issues on judicial review. I would think that the factual basis for the petition in respect of the first arbitration could be set out in less than a dozen paragraphs, as the facts are not overly complex. The facts in respect of the second arbitration are even more concise, and it is likely that not more than two or three paragraphs would be necessary. [35] Part 3 of the petitions should set out the basic grounds for judicial review, and the legal bases for them. What it must do is outline of the legal basis for the argument and describe the grounds. It should not, itself, be a lengthy legal memo. It appears to me that the legal arguments, as I understand them, could be set out in four or five paragraphs in the petition dealing with the first arbitration. Again, the petition dealing with the second arbitration award will be even more concise. [36] Part 4 of the petitions should set out the affidavits to be relied upon, which must be served with the amended petitions, unless they have been already been served. Part 4 should only list affidavits that contain admissible evidence. [37] This matter should not be allowed to linger unnecessarily. The petitioner must file amended petitions complying with the rules in the Supreme Court by February 20, 2019, failing which the respondents may renew their application to strike the petitions under Rule 9-5 in Supreme Court chambers. The respondents, of course, including the Director, will have the opportunity to file amended responses to the amended petitions. [38] Once the appropriate petitions and responses have been filed, the parties may set the petitions down for hearing in the Supreme Court. [39] I would add that, while this appeal must be allowed, I would not distance myself from the judge’s view that a basic problem in this matter is that there is an unnecessary and unfortunate failure on the part of the respondent to accept that the management company is entitled to collect rent on behalf of the landlord. Mr. Rafique must abandon his stubborn refusal to recognize AWM as the lawful representative of the landlord. His arguments to the effect that he needs further evidence of AWM’s authority border on obtuse. Assuming that Mr. Rafique agrees to pay his rent and does so on time, it may well be that the resolution proposed by the chambers judge would be a reasonable one to reach voluntarily, whether or not it is one that might ultimately be ordered by a court. Disposition [40] The formal orders of the chambers judge as settled by the Registrar and confirmed by Watchuk J. on appeal from the Registrar are as follows: 1.         The Respondents' application to strike the whole of the Petitioner’s claim and pronouncing judgment dismissing the Petitioner’s claim is dismissed. 2.         The Respondents' application for the granting of an Order, in the alternative, pronouncing summary judgment dismissing the Petitioner’s claim is dismissed. 3.         The Respondents' application for special costs or, in the alternative, ordinary costs is dismissed. 4.         A Judicial Review is granted and concluded within this proceeding. 5.         The Order of Mr. Plenert, the arbitrator is set aside. 6.         The Petitioner's mother's cheques are to be payable to whoever is directed to be payable to by AWM Alliance Real Estate Group Ltd. 7.         The Respondents' counsel is to draft the Order. [41] I would surmise that the reference to “Mr. Plenert” should have been a reference to “Mr. Kaila” in the second proceeding. This slip, however, is entirely inconsequential given the disposition this court is making. I note that paragraph 7 of the orders could probably have been omitted, since the orders were, in fact, settled by the Registrar. [42] I would strike out paragraphs 4, 5 and 7 of the orders. In each order, paragraph 6 will be renumbered as paragraph 4, and the wording will be corrected. I would also add orders, so that the paragraphs following paragraph 3 of each order will be as follows: 4.         The Petitioner’s rent cheques are to be made payable as directed by AWM Alliance Real Estate Group Ltd. 5.         Paragraph 1.2 of the petition is struck. 6.         The petitioner is granted leave to amend Parts 2, 3 and 4 of the Petition to comply with the requirements of Form 66 and the Judicial Review Procedure Act . The petitioner must file the amended petition on or before February 20, 2019. 7.         The respondents may file amended responses to the amended petition filed under paragraph 6 of this order. 8.         If the petitioner does not file an amended petition substantially complying with Form 66 and the Judicial Review Procedure Act in accordance with paragraph 6 of this order, the respondents may renew their application to strike the petition under Rule 9-5 of the Supreme Court Civil Rules . [43] I would not award either side their costs on this appeal, as neither has been substantially successful. [44] I would dispense with approval as to form of the order of this Court on behalf of Ms. Al-Islam. Mr. Rafique has not acted responsibly in the past in this regard, and I have no confidence that he will do so in respect of this appeal. [45] FITCH J.A. : I agree. [46] HUNTER J.A. : I agree. [47] GROBERMAN J.A .: The appeal is allowed and the order of the chambers judge is modified as stated in these reasons. “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Wang v. Shao, 2019 BCCA 52 Date: 20190204 Docket: CA45217 Between: Mei Zhen Wang Appellant (Plaintiff) And Feng Yun Shao also known Shao Feng Yun also known as Amy Barsha Washington Respondent (Defendant) Before: The Honourable Mr. Justice Hunter (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated March 9, 2018 ( Wang v. Shao , 2018 BCSC 377, Vancouver Docket S101156). Oral Reasons for Judgment Counsel for the Appellant: R.V. Wickett, Q.C. E. Dvorak, Articled Student Counsel for the Respondent: M. Azevedo Place and Date of Hearing: Vancouver, British Columbia February 4, 2019 Place and Date of Judgment: Vancouver, British Columbia February 4, 2019 Summary: The respondent applies for security for costs of the trial and the appeal. The notice of appeal was filed on April 6, 2018. Appeal books and factums have been filed. The appeal is set for hearing March 7, 2019. Held: Application dismissed. In light of the delay in bringing this application and the proximity of the scheduled date for hearing the appeal, the interests of justice do not support an order for security for costs. [1] HUNTER J.A. : The respondent applies for security for costs of the appeal and the trial. [2] The nature of the underlying litigation was described by the trial judge in the opening paragraph of his judgment (indexed at 2018 BCSC 377): [1]        This case concerns the collapsed sale of a Shaughnessy luxury home. The question at the core of this dispute is whether the failure of the vendor to disclose the unsolved murder of an occupant of the property, which occurred almost 2 years before the sale, entitled the buyer to refuse to complete the purchase, and to recover her deposit. [3] The trial judge concluded that it did. He held that the respondent had been induced to enter into the contract for the purchase of the property by a fraudulent misrepresentation by the appellant, and was entitled to rescind the contract and recover her deposit. [4] The trial judgment was pronounced on March 9, 2018. The appellant filed a notice of appeal on April 6, 2018. The transcript and appeal record were filed on June 29, 2018. The appellant filed her appeal book and factum on August 13, 2018, and the respondent filed her factum on September 26, 2018. A certificate of readiness was filed on November 28, 2018 and the appeal is now scheduled to be heard on March 7, 2019, 31 days from today. [5] The basis for the application is that the appellant resides in China and does not appear to have any assets in British Columbia that would be exigible to pay costs if the appeal is unsuccessful. [6] The practice of this Court when security for costs is ordered is well settled. The appellant will be given some time to post the costs, normally 30 days. The appeal is stayed until costs are posted. If costs are not posted by the specified date, a justice may dismiss the appeal as abandoned, pursuant to s. 24(2) of the Court of Appeal Act , R.S.B.C. 1996, c. 77. [7] The considerations that are relevant to the decision to order security for costs to be posted are also well settled. This Court summarized them in Ellis v. Denman Island Local Trust Committee , 2016 BCCA 135, in these terms: [7]        In Creative Salmon Company Ltd. v. Staniford , 2007 BCCA 285 (in Chambers), Lowry J.A. provided a concise statement of the relevant criteria on an application for security for costs of the appeal: [9]        The jurisdiction to order security for costs of an appeal is found in s. 24 of the Court of Appeal Act , R.S.B.C. 1996, c. 77. The appellant against which such an order is sought bears the onus of showing why security should not be required: Kedia v. Shandro Dixon Edgson , 2007 BCCA 57 at para. 4 (C.A. Chambers), Smith J.A. Generally, the considerations are the appellant's ability to post security and the likelihood of costs awarded being recovered from it, as well as the merits and the timeliness of the application :  Southeast Toyota Distributors, Inc. v. Branch (1997), 45 B.C.L.R. (3d) 163 (C.A.); Milina v. Bartsch (1985), 5 C.P.C. (2d) 124 at 125 (B.C.C.A. Chambers), Seaton J.A.; and M.(M.) v. F.(R.) (1997), 43 B.C.L.R. (3d) 98 at 101 (C.A. Chambers), Esson J.A. [8]        In Lu v. Mao , 2006 BCCA 560 (in Chambers), Ryan J.A. explained: [6]        In determining whether security for costs should be ordered, the ultimate question to be answered is whether the order would be in the interests of justice. In this regard, Madam Justice Rowles in Ferguson v. Ferstay (2000), 81 B.C.L.R. (3d) 90 at para. 7; 2000 BCCA 592, (in Chambers) identified the following as relevant considerations: (1)  appellant’s financial means; (2)  the merits of the appeal; (3)  the timeliness of the application; and (4)  whether the costs will be readily recoverable. [8] In opposing the order for security for costs, the appellant focuses on the timeliness consideration. The notice of motion seeking this relief was filed and served on January 16, 2019, well after the appeal documents and a certificate of readiness were filed. The appeal is set to proceed on March 7, 2019, 31 days from today. The evidence is that the appellant is aged 84, does not speak English and resides in China. The process of communicating with the appellant requires translations by the appellant’s daughter or granddaughter. The trial costs have not been assessed, and I am told that no demand for payment of trial costs was made before service of this application on January 16. [9] I have no evidence as to the ability of the appellant to pay security for costs, but the parties agree that it is likely that she has sufficient resources. The issue is whether she can be compelled to do so if she is unsuccessful in this appeal. [10] In some cases, the fact that nearly all the costs required to prepare the case for appeal, including costs of preparing the appeal books, transcripts and factum, have been expended before the security for costs application is brought, is of itself sufficient reason to dismiss the application: see e.g., Grewal v. Khakh , 2018 BCCA 3 (Chambers) at para. 13; Hayes v. Schimpf , 2005 BCCA 413 (Chambers) at para. 11. In other cases, security may be ordered on a late application when no unfairness would result to the appellant as a result of the lack of timeliness: e.g., Ducharme v. Rempel , 2015 BCCA 437 (Chambers). But bringing the application so close to the scheduled appeal date creates specific timeliness problems that mitigate against granting an order that might otherwise have been given. [11] Justice Esson addressed this problem in M.(M.) v. F.(R.) , [1998] 9 W.W.R. 309 (B.C.C.A.) (in Chambers). In addressing the significance of the upcoming appeal date, Esson J.A. (as then was) made these comments: [6]        As I see it, the overriding difficulty with respect to making any order is that the application comes so late. Had an application for security been made at an earlier stage of the appeal proceedings before the heavy costs of transcripts, appeal books and factum preparation were incurred, it might well have been right to make an order for security of costs, at least in respect of the costs in this Court and perhaps also in the court below. [7]        An order for security for costs is ordinarily made effective by providing that the appeal be stayed until security is posted. When such an order is made in the earliest stages of the appeal, that can generally be done without injustice to the appellant. But that is not possible on the eve of the hearing, and so that ordinary form of sanction is out of the question. [8]        I conclude that at this late stage of the proceeding, there is no feasible method to give Mrs. F. the protection she seeks without injustice to the appellant. The application is dismissed. [12] The application described by Esson J.A. as being heard “on the eve of the hearing” was heard six weeks before the scheduled appeal date. In our case, the application has been brought a month before the appeal date. If the order was made, the appeal stayed, and the usual 30 days were given to the appellant to arrange for the posting of security, it might not be until the day before the hearing that the parties and the Court knew whether the appeal was going ahead. This is not a tenable proposition, particularly when no satisfactory reason has been given for the delay by the respondent in bringing this application. The respondent has suggested that I might reduce the time available to post security, but it does not appear to me appropriate to truncate the usual time period when the problem arises from an untimely application. [13] In these particular circumstances, I am not prepared to make an order for security for costs. Had the application been brought earlier, the result might well have been different, at least as relates to the appeal costs, but at this stage of the proceedings I am not satisfied that an order can be made without injustice to the appellant. [14] Accordingly, the application for security for costs of the appeal and the trial is dismissed. “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Allard v. The Owners, Strata Plan VIS 962, 2019 BCCA 45 Date: 20190205 Docket: CA45323 Between: James Allard Respondent (Petitioner) And The Owners, Strata Plan VIS 962 Appellant (Respondent) And Civil Resolution Tribunal Respondent (Respondent) Before: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Fitch The Honourable Mr. Justice Hunter On appeal from: An order of the Supreme Court of British Columbia, dated May 4, 2018 ( Allard v. The Owners, Strata Plan VIS 962 , 2018 BCSC 1066, Vancouver Docket No. S-1711290). Counsel for the Appellant: C.D. Wilson Counsel for the Respondent, James Allard: C.L. Vickers Counsel for the Respondent, Civil Resolution Tribunal: T. Mason Place and Date of Hearing: Vancouver, British Columbia December 14, 2018 Place and Date of Judgment: Vancouver, British Columbia February 5, 2019 Written Reasons by: The Honourable Madam Justice Kirkpatrick Concurred in by: The Honourable Mr. Justice Fitch The Honourable Mr. Justice Hunter Summary: Appeal from an order of the Supreme Court granting leave to appeal from a decision of the Civil Resolution Tribunal. The chambers judge had granted leave to appeal under s. 56.5 of the Civil Resolution Tribunal Act on the basis that (1) the proposed appeal engaged a question of law and (2) granting leave would be in the interests of justice and fairness. Held: Appeal allowed. The order under appeal does not identify questions of law, but rather questions of mixed fact and law. Even if the issues sought to be raised by the respondent could be reframed as questions of law, leave to appeal would not be in the interests of justice and fairness. The proposed appeal was inextricably tied to the unique facts of the dispute and was of limited importance to the parties as a whole. It would also run afoul the principle of proportionality as it pertains to alternative forms of dispute resolution. Reasons for Judgment of the Honourable Madam Justice Kirkpatrick: [1] By an order made May 4, 2018, the Supreme Court of British Columbia granted leave to the respondent, James Allard, to appeal from a decision of the recently established Civil Resolution Tribunal. The appellant strata corporation appeals from that order. [2] The central issue on appeal is the application of the test for leave under s. 56.5 of the Civil Resolution Tribunal Act , S.B.C. 2012, c. 25. Section 56.5 provides for appeals to the Supreme Court on questions of law relating to final decisions in strata property claims, either by consent of the parties or where the Supreme Court determines it to be in the interests of justice and fairness to grant leave. [3] For the reasons that follow, I conclude that: (i)        the order under appeal does not identify questions of law, the statutory precondition for the grant of leave to appeal, and (ii)       even if the issues sought to be raised by the respondent could be framed as questions of law, the chambers judge erred in concluding that it is in the interests of justice and fairness to grant leave in this case. Accordingly, I would set aside the order granting leave to appeal. [4] I should note at the outset that the current appeal process is slated to be altered in favour of judicial review: Bill 22, Civil Resolution Tribunal Amendment Act , 3rd Sess., 41st Leg., British Columbia, 2018. The precedential value of this case is thus significantly attenuated. Background [5] In 2000, Mr. Allard purchased a unit in a 54-unit condominium building. The unit contained a solarium built by the previous owner, which the strata had approved on the condition that future repair, maintenance and insurance costs would be borne by the owner of the unit to which it was attached. There is nothing to suggest that Mr. Allard, at the purchase time or anytime thereafter, assumed this condition through an agreement with the strata. [6] Between 2015 and 2016, the strata commenced a renewal project for the building’s doors and windows, but refused to include two solaria additions—one being Mr. Allard’s—in the project. The strata justified the exclusion on the grounds that it had no responsibility to repair and maintain owner-constructed improvements on exterior balconies or decks. The project cost over $4.5 million and was funded by special assessments from the strata owners, including Mr. Allard. It was completed in December 2016. A. The Tribunal Decision [7] Mr. Allard disputed the exclusion of the solarium from the renewal project. On September 29, 2016, he brought a claim against the strata under s. 3.6 of the Civil Resolution Tribunal Act , which gives the Tribunal jurisdiction over certain strata property claims. He contended that the exclusion of the solarium from the renewal project amounted to significant unfairness under s. 48.1(2) of the CRTA : Orders available in strata property claims 48.1 (2)     In resolving a strata property claim brought to the tribunal under section 3.6 (1) (e) to (g) [strata property claims within jurisdiction of tribunal] , the tribunal may make an order directed at the strata corporation, the council or a person who holds 50% or more of the votes, if the order is necessary to prevent or remedy a significantly unfair action, decision or exercise of voting rights. [8] The Tribunal rendered its decision on November 8, 2017. It held that, while the strata had an obligation to repair and maintain the solarium under the operative 2015 bylaws, the exclusion of the solarium from the renewal project was not significantly unfair. [9] In reaching its conclusions, the Tribunal adverted to a 2017 expert report by an architect named Grant Laing, who had opined that “the solarium currently fulfills its original function without the need for any repair or renewal work.” The Tribunal also noted that the appearance of the solarium continued to blend in with the new windows and frames. [10] On the issue of significant unfairness, the Tribunal applied the test set forth in Dollan v. The Owners, Strata Plan BCS 1589 , 2012 BCCA 44 at para. 30. The Dollan test addresses s. 164 of the Strata Property Act , S.B.C. 1998, c. 43, and asks the following two questions: 1. Examined objectively, does the evidence support the asserted reasonable expectations of the petitioner? 2. Does the evidence establish that the reasonable expectation of the petitioner was violated by action that was significantly unfair? [11] The Tribunal concluded that, despite the strata’s obligation to repair and maintain the solarium, Mr. Allard lacked any reasonable expectation that the solarium would be included in the renewal plan. The exclusion, for this reason, was found to be not significantly unfair. [12] The Tribunal went on to order that each party bear their own costs and that Mr. Allard pay for a portion of the Laing expert report. B. The Order and Reasons of the Chambers Judge [13] Mr. Allard sought leave to appeal the Tribunal’s decision pursuant to s. 56.5 of the CRTA , which provides for an appeal to the Supreme Court with consent of the parties or else with leave of the court: Appeal to Supreme Court 56.5 (1) Subject to this section, a party that is given notice of a final decision in a strata property claim may appeal to the Supreme Court on a question of law arising out of the decision. (2)     A party may appeal to the Supreme Court only if (a) all parties consent, or (b) the court grants leave to appeal. (4)     The court may grant leave to appeal under subsection (2) (b) if it determines that it is in the interests of justice and fairness to do so. (5)     When deciding whether it is in the interests of justice and fairness to grant leave, the court may consider the following: (a) whether an issue raised by the claim or dispute that is the subject of the appeal is of such importance that it would benefit from being resolved by the Supreme Court to establish a precedent; (b) whether an issue raised by the claim or dispute relates to the constitution or the Human Rights Code ; (c) the importance of the issue to the parties, or to a class of persons of which one of the parties is a member; (d) the principle of proportionality. [14] For leave to be granted under s. 56.5, two requirements must be satisfied. First, the proposed appeal must engage a question of law. Second, it must be in the interests of justice and fairness to grant leave. Section 56.5(5), reproduced above, provides a list of factors that “may” be considered on the second branch of the test. [15] On May 4, 2018, the chambers judge granted Mr. Allard leave to appeal from the Tribunal’s decision on the basis of four questions of law—two relating to substantive issues and the other two relating to costs. The entered order under appeal formulates the two substantive questions of law as follows: i) The Tribunal acted without evidence or took an unreasonable view of the evidence and thereby erred in law when, despite finding that the Strata was responsible for repair and maintenance of the Solarium under the Strata Bylaws and despite finding that the Owner was not bound by the conditions of the Solarium installation, the Tribunal found: a) that the Owner did not have a reasonable expectation that the Strata would include the Solarium in the renewal project; b) the Strata’s decision to exclude replacement of the Solarium in the renewal project does not amount to significant unfairness; c) on the basis of the Laing report obtained after the renewal project was complete, that the Strata acted reasonably with the assistance of professionals in determining the Solarium should not be included in the renewal project. ii) The tribunal erred in law by misapplying the test set out in Dollan v. The Owners, Strata Plan BCS 1589 , 2012 BCCA 44 for a significantly unfair action or decision of the Strata Corporation in finding that although the Strata was responsible for the repair and maintenance of the Solarium under the Strata Bylaws and that the Owner was not bound by the conditions agreed with the previous owner for installation of the Solarium, the Owner did not have a reasonable expectation that the Strata would include the Solarium in the renewal project and the Strata’s decision to exclude the Solarium from the renewal project was not a significantly unfair action. [16] The reasons for judgment address the issue of whether it would be in the interests of fairness and justice to grant leave to appeal. As to the first substantive question, the judge said the following: [66] This is an issue that would be beneficial to address by means of a Supreme Court precedent. It is a significant one for Mr. Allard and there would be no disproportionality in having it heard on appeal, in light of the significant value of the renewal project and his contribution. Leave will be granted on this question. [17] The judge then went on to address the second substantive question: [67] The second substantive ground is closely related. While the member stated the test for significant unfairness accurately, it is again at least arguable that he misapplied it, by considering Mr. Allard’s reasonable expectations only in light of his awareness of the conditions of approval of the solarium for the original owner (even although it was also found by the member that those conditions did not apply to him), rather than as those expectations might have been modified by the bylaw that was in effect at the time the renewal was initiated, which the member found made the Strata responsible. On Appeal [18] The strata alleges that the chambers judge erred in two respects: (1) by concluding that the appeal proposed by Mr. Allard engages a question of law; and (2) by holding that granting leave would be in the interests of justice and fairness. [19] Mr. Allard says that the judge did not so err. He submits, however, that he will not pursue the questions relating to costs unless he is entitled to appeal on the first two substantive issues identified by the judge. A. Questions of Law [20] Section 56.5(1) of the CRTA only permits appeals from “a question of law.” The character of a question of law, as opposed to a question of fact or mixed fact and law, was explained by the Supreme Court of Canada in Canada (Director of Investigation & Research) v. Southam Inc. , [1997] 1 S.C.R. 748 at para. 35: Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. The Court in that case went on to caution that “the distinction between law on the one hand and mixed law and fact on the other is difficult.” [21] I first observe that the alleged questions of law identified in the order under appeal are quintessentially questions of mixed-fact-and-law. At the very least, the order frames the pertinent legal questions from the standpoint of a particular factual matrix. The definition of a question of mixed fact and law invokes the application of the relevant legal standard to a particular set of facts: see Housen v. Nikolaisen , 2002 SCC 33 at para. 26. [22] In addressing this first issue, the jurisprudence on appeals under the Arbitration Act , R.S.B.C. 1996, c. 55—the appeal mechanism which likewise requires the identification of a question of law—provides general guidance. Notably, in Elk Valley Coal Partnership v. Westshore Terminals Ltd. , 2008 BCCA 154 at para. 17, this Court reasoned that “a court considering an application for leave to appeal must be careful to grant leave only where questions of law can be clearly perceived and delineated.” This caution is clearly apposite in the present case. [23] Even assuming, and without deciding, that the questions  sought to be raised by the respondent could be reframed as questions of law, I would nonetheless find that it would not be in the interests of justice and fairness to grant leave to appeal under s. 56.5. This is the issue to which I now turn. B. The Interests of Justice and Fairness [24] Section 56.5(4) of the CRTA provides that the Supreme Court “may grant leave to appeal … if it determines that it is in the interests of justice and fairness to do so.” The judge’s determination of this question amounts to an exercise of judicial discretion. While the standard of review for discretionary decisions is a stringent one, an appellate court may legitimately interfere with such a decision “where the lower court gives no or insufficient weight to relevant considerations”: Penner v. Niagara Regional Police Services Board , 2013 SCC 19 at para. 27. [25] In my respectful opinion, the judge erred by failing to advert to three considerations that militate against the granting of leave in this case. First, the questions raised by the respondent remain inextricably bound up with the unique facts of the dispute. Second, although the matter is undoubtedly of importance to Mr. Allard, it is of less importance to the strata corporation and the other strata owners. Finally, the granting of leave in this case undermines the Tribunal’s mandate to provide, among other things, accessible and speedy dispute resolution. 1. Precedential Value [26] Given the concerns expressed above, it seems to me that the issues raised by the respondent would not benefit from the establishment of Supreme Court precedent. The two substantive questions articulated in the order are thoroughly infected by the particular facts of the dispute at issue. Accordingly, I am unable to see how an answer to either question, even if they could be reframed as questions of law, could serve as a guide to strata disputes beyond those party to the immediate proceedings. 2. Importance to the Parties [27] The proposed appeal is of significance to Mr. Allard personally. In my view, however, the judge erred in principle in failing to consider its overall significance to the strata corporation and the other strata owners. [28] When viewed from the vantage point of the total class of strata owners and the renewal project at large, the importance of the questions to the parties is significantly diminished. The class of owners includes the owners of the building’s other 53 units. Only one solarium besides Mr. Allard’s was excluded from the project (and that owner did not seek to challenge the strata’s decision). The renewal project cost over $4.5 million and was meant to address the building’s original windows and doors. Given the scope of the project and the inconsequentiality of the solaria issue to the majority of the other owners, I cannot find that the proposed appeal would be of importance to the parties taken as a whole or to the class of persons of which Mr. Allard is a member. [29] That is not to say, however, that it will never be in the interests of justice and fairness to hear an appeal that is of significance to only one of the parties. But the overall significance of the dispute ought to be a relevant, even if non-determinative, factor. 3. Proportionality [30] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada addressed the importance of the “proportionality principle” as it pertains to alternative forms of dispute resolution: 27        There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial. 28        This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure . [Emphasis added.] [31] The Court in Hryniak was directly concerned with the summary judgment process. However, the proportionality principle for adjudicating disputes is consistent with the mandate of the Civil Resolution Tribunal, as set forth under s. 2(2) of the CRTA : Civil Resolution Tribunal mandate and role 2 (2)     The mandate of the tribunal is to provide dispute resolution services in relation to matters that are within its authority, in a manner that (a) is accessible, speedy, economical, informal and flexible, (b) applies principles of law and fairness, and recognizes any relationships between parties to a dispute that will likely continue after the tribunal proceeding is concluded, (c) uses electronic communication tools to facilitate resolution of disputes brought to the tribunal, and (d) accommodates, so far as the tribunal considers reasonably practicable, the diversity of circumstances of the persons using the services of the tribunal. [32] The Civil Resolution Tribunal Rules expand upon this mandate. In particular, Rule 2 provides that the Tribunal must apply its rules in a way that a) takes reasonable steps to recognize and address the needs of tribunal participants, b) is appropriate in the circumstances of each dispute, including consideration of fairness and proportionality, c) recognizes any relationships between parties to a dispute that will likely continue after the tribunal proceeding is concluded, d) facilitates speedy, accessible, inexpensive, informal and flexible processes, e) encourages early and collaborative dispute resolution, f) makes reasonable accommodations for the diverse circumstances of persons using the tribunal, g) recognizes the value of certainty and finality in the resolution of disputes and compliance with outcomes, and h) promotes understanding of the dispute resolution processes for the tribunal’s participants and for the public in general. [33] That the Tribunal enjoys a significant degree of procedural flexibility further accords with the proportionality principle. Pursuant to s. 42 of the CRTA , for example, the Tribunal “is not bound by the rules of evidence,” but may “receive, and accept as evidence, information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law.” [34] The general purpose of the Tribunal was recently summarized by the Supreme Court of British Columbia in The Owners, Strata Plan BCS 1721 v. Watson , 2018 BCSC 164: [49]      The purpose of the CRT is to provide an accessible, flexible and speedy dispute resolution process to parties involved in strata claims falling within s. 3.6(1) of the CRTA . The CRT’s online processes and emphasis on facilitated dispute resolution are intended to provide the parties with a quick and less expensive form of decision making than adjudication in the Supreme Court. [35] In my view, the chambers judge failed to appreciate the proportionality principle in light of this purpose. The issues raised by Mr. Allard, as discussed above, are primarily driven by the particular facts of the dispute. They are of limited significance to the parties when taken as a whole. An appeal in the Supreme Court, while affording a more painstaking procedure, would unduly lengthen resolution of the dispute and thereby negate the many benefits of the Tribunal proceedings. Given the Tribunal’s express mandate to provide “accessible, speedy, economical, informal and flexible” dispute resolution, the aforementioned considerations militate strongly against the granting of leave in this case. Conclusion [36] The chambers judge, in granting Mr. Allard’s leave application, failed to consider the limited precedential value of the proposed appeal, the relative lack of significance to the parties and the Civil Resolution Tribunal’s special mandate as it pertains to the proportionality principle. On that basis, I would find the judge erred in principle in holding that it would be in the interests of justice and fairness to grant leave to appeal under s. 56.5 of the CRTA . [37] As indicated at paragraph 19 of these reasons, Mr. Allard does not seek to proceed with the costs issues decided in the Supreme Court if he cannot proceed with his appeal. In light of that position, I would allow the appeal and set aside the Supreme Court order in its entirety. “The Honourable Madam Justice Kirkpatrick” I AGREE: “The Honourable Mr. Justice Fitch” I AGREE: “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. M.R.H., 2019 BCCA 39 Date: 20190205 Docket: CA44346 Between: Regina Respondent And M.R.H. Appellant Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness, referred to in this judgment by the initials J.S. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Garson The Honourable Mr. Justice Harris The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated April 12, 2016 ( R. v. M.R.H. , New Westminster Registry X078504). Counsel for the Appellant: B.V. Bagnall Counsel for the Respondent: M.G. Scott Place and Date of Hearing: Vancouver, British Columbia October 25, 2018 Place and Date of Judgment: Vancouver, British Columbia February 5, 2019 Dissenting Reasons by: The Honourable Mr. Justice Savage Written Reasons by: The Honourable Madam Justice Garson ( page 19, para. 54 ) Concurred in by: The Honourable Mr. Justice Harris Summary: The appellant was charged with two counts: (1) sexual interference with the complainant between 2006 and 2011 at Surrey and Harrison Hot Springs, and (2) sexual assault of the complainant during the same time frame and at the same places. The sole issue at trial was credibility. During its deliberations, the jury asked whether it could convict on the basis of the first incident alone. The judge sought submissions from counsel before answering the question, but when the jury returned it became clear that the judge and counsel had misunderstood the question. The judge answered without seeking further submissions and engaged in a colloquy with the foreperson and the appellant’s counsel. The next day, the jury convicted the appellant on both counts. On appeal, the appellant says the judge erred by not providing sufficient instructions on credibility in his main charge or his response and not clarifying the question or seeking further submissions from counsel before answering. Held: appeal allowed per Garson J.A., concurred in by Harris J.A. (Savage J.A. dissenting). Per Garson J.A.: The judge erred in (1) not explaining to the jury that the Crown needed to prove only one of the incidents for the jury to convict on both counts; (2) answering the question in a confusing manner, without first clarifying it or seeking further submissions from counsel; and (3) failing to re‑instruct on credibility, when that was the sole issue and the jury question suggested it may have believed the complainant regarding one incident and not the other when there was no obvious rational basis for making differential credibility findings. The remedy is a new trial. Per Savage J.A. dissenting: the judge did not err in his initial charge on credibility or in his answer to the jury’s question. A C.W.H. instruction was not necessary in the circumstances as there was no realistic risk that the jury would have understood its task as choosing between two contradictory versions of events. A recharge on credibility was not required in response to the jury’s question, as the question did not raise an issue concerning assessment of credibility. The judge gave the legally correct answer to the jury’s question and thus there was no risk that the jury was left with an erroneous view of the law. The judge heard submissions from counsel after the question was asked and did not err in failing to seek further submissions after the question was clarified. Dissenting Reasons for Judgment of the Honourable Mr. Justice Savage: I. Introduction [1] M.R.H. was charged with one count of sexual assault and one count of sexual interference in relation to two discrete incidents involving his niece J.S. Following a six‑day trial before a judge and jury, he was convicted of both charges. He was sentenced to 30 months in prison. [2] M.R.H. alleges the trial judge erred in his instruction to the jury. He submits the trial judge erred in providing insufficient instructions on the issue of credibility and in failing to adequately answer the jury’s question. [3] For the reasons that follow I would dismiss the appeal. II. Background [4] J.S. alleged that M.R.H. touched her sexually on two occasions, once at her grandmother’s apartment when she was in grade five, and once on a family camping trip when she was in grade six. She told her mother about the incidents when she was in grade nine. [5] On March 31, 2016, M.R.H. was charged with one count of sexual assault contrary to s. 272 of the Criminal Code , R.S.C. 1985, c. C‑46, and one count of sexual interference contrary to s. 151 of the Criminal Code , in relation to the two incidents. Each count encompassed the entire time period in which the two discrete events were alleged to have occurred. The charges read as follows: Count 1 [M.R.H.], from the 28th day of October, 2006 to the 28th day of October, 2011, inclusive, at or near Surrey and Harrison Hot Springs, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of J.S. , a person under the age of fourteen years, contrary to Section 151 of the Criminal Code. Count 2 [M.R.H.], from the 28th day of October, 2006 to the 28th day of October, 2011, inclusive, at or near Surrey and Harrison Hot Springs, in the Province of British Columbia, did sexually assault J.S. , contrary to Section 271 of the Criminal Code. [Emphasis added.] [6] Three witnesses testified at trial: the complainant J.S., the complainant’s mother and M.R.H. [7] The complainant gave evidence about the two incidents underlying the charges. She testified that the first incident occurred at her grandmother’s apartment when she was in grade five. She said M.R.H. came into her room while she was sleeping and rubbed her arms, touched her vagina, digitally penetrated her and attempted sexual intercourse. She said the second incident occurred on a family camping trip at the end of her grade six year. She testified that M.R.H. attempted to force her to perform oral sex on him while they were sharing a tent. [8] The complainant’s mother testified generally as to the relationship between the complainant and M.R.H., and about the complainant’s visits to her grandmother’s apartment and the camping trip. She had no direct knowledge of the alleged incidents. [9] M.R.H. denied that either of the incidents had occurred. [10] Given the complainant and M.R.H.’s conflicting version of events, credibility was the main issue at trial. In his charge to the jury, the trial judge gave instructions on the presumption of innocence, reasonable doubt, and credibility. With respect to credibility, he gave the jury the following instruction pursuant to R. v. W.(D.) , [1991] 1 S.C.R. 742: If you believe the evidence of [M.R.H.] that he did not touch the complainant in a sexual manner at all, let alone as described by J.S., you must acquit him. Even if you do not believe his evidence, if it raises a reasonable doubt in your mind as to whether he did what J.S. says at the condo owned by her grandmother and at Harrison -- sorry, and at the Harrison camping trip, you must acquit him. Finally, even if you disbelieve him and find his testimony raises no reasonable doubt, you must still acquit him if you find that the evidence tendered by the Crown does not meet its burden of proving the elements of each offence on each occasion set out in the indictment beyond a reasonable doubt. [11] The jury charge was a consensus charge reached by a collaborative effort. The judge provided a copy of his proposed charge to counsel, additions and changes sought by counsel were incorporated into the charge, and all parties were content with the final charge as drafted. Neither party objected to or raised any issue with the charge as delivered. [12] After approximately three hours of deliberation, the jury returned with a question. The question, which was written, appeared to be as follows: If we believe the 1st incident, can we convict on this alone? Find him not guilty on the 2nd [incident]. [13] The judge recognized that, as a matter of law, the answer to the question was “yes”. Counsel for M.R.H. agreed. However, the judge thought the way the question was phrased suggested the jury may need to be reminded of the principles of assessing credibility. The judge invited submissions from counsel with respect to the answer. [14] Counsel for M.R.H. expressed concern that if the jury rejected the complainant’s evidence on the second incident, it would be problematic for the jury to accept her evidence on the first incident since that meant she would have lied under oath. Counsel for the Crown suggested the jury should be reinstructed on how to assess the complainant’s credibility, but submitted as long as the jury understood the law, it could assess credibility as it saw fit, including believing the complainant on one incident but not the other. [15] The judge agreed it was of some concern to him that the jury could reject the evidence of the complainant with respect to the second incident, while at the same time fully accepting her evidence on the first. He concluded he should reinstruct the jury on credibility, but made clear that it was “the jury’s purview to accept or reject the evidence”. The judge remarked that he needed to be “as balanced as I can be” and not reargue the defence case. Neither defence nor Crown counsel objected to the answer proposed by the judge. [16] When the jury was brought in to hear the answer to its question, the jury foreperson informed the judge that the question the jury had actually asked was only: If we believe the 1st incident, can we convict on this alone? The second part of the question was written in faint pencil and the judge had assumed it was part of the question, rather than a deliberate erasure. The jury foreperson informed the judge otherwise. [17] The exchange between the judge and jury went as follows: THE COURT: Members of the jury, I apologize for the delay in responding to the question you posed, but it raised an issue I wanted to discuss with counsel and reflect on the proper instruction to give. I did not want to do that in either haste or without the benefit of counsel’s assistance. We have been able to speak about that in your absence. And first of all, because the question, it appears somebody’s pencil broke when the question was written, I want to make sure I have it correctly. I am reading from what you passed to me [as read in]: If we believe the 1st incident, can we convict on this alone? Find him not guilty on the 2nd . . . -- and then it goes i-n-c-i, and I am assuming that should say “incident”. JURY FOREPERSON: Your Honour, we withdrew the second part, we would just like to know if we are – can convict on the first incident alone for both counts . [Emphasis added.] [18] Without inviting further submissions from counsel, the judge gave the following answer to the jury’s question: THE COURT: Well, the answer to that is a little bit different then. Yes, you may, but your – your question has posed a little bit of a difficulty in terms of you may convict on the evidence, if you find the constituent elements have all been proven, but as I say, I may have misinterpreted, because now I see it is an erasure. I just gathered that the pencil had run out of steam. So as a matter of law, if the Crown has proven beyond a reasonable doubt the constituent elements of each of the offences, they need not prove both incidents, one is sufficient. But I should carry on to say that if you are having difficulty or rejecting the evidence of the complainant on the second offence, that raises a bit of a problem in terms of reconciling the acceptance of her evidence on one if you have rejected or raise a reasonable doubt -- or there is a reasonable doubt raised in your mind on the second. So I took your question to be that you had reached different conclusions. If that is not the case, and I do not want to go into the discussions you are having in the jury room, but I need to tell you, I think, counsel, this is -- I am taken a bit by surprise by the retraction of the second question. But as a matter of law, the Crown needs prove only one of the incidents, not both, for you to convict, and the two separate charges relate to separate offences. One is of sexual interference, the other is of sexual assault, and it is not incumbent upon the Crown, and I had hoped my charge had made clear earlier, to demonstrate beyond a reasonable doubt or prove beyond a reasonable doubt that each happened. One of them is sufficient . [Emphasis added.] [19] Neither counsel raised any issue with the judge’s answer. The following day, the jury convicted M.R.H. of both counts. III. On Appeal [20] The issues on appeal are: (1)    Did the trial judge provide sufficient instructions to the jury on the issue of credibility? (2)    Did the trial judge adequately answer the jury’s question? IV. Discussion and Analysis [21] Appellate review of jury instructions is governed by a functional and contextual approach. In R. v. Alexander , 2015 BCCA 484, Madam Justice Stromberg‑Stein succinctly set out the approach to be taken in reviewing a jury charge. She said: [110]    An appellate court, when reviewing a jury charge, must consider the alleged error in the context of the charge and the trial as a whole. A trial judge is allowed flexibility in instructing the jury. The precise words used in the jury charge are a matter of discretion for the trial judge and will depend on the circumstances of the case. It is the overall effect of the instructions that matters: R. v. Araya , 2015 SCC 11 at para. 39. [111]    An accused is entitled to a properly instructed jury, not a perfectly instructed one. If perfection were the standard, no jury charge would pass appellate review: R. v. Jacquard , [1997] 1 S.C.R. 314 at paras. 1‑2. [112]    It is the trial judge’s obligation to properly instruct the jury; however, it is expected that counsel will assist the trial judge and identify aspects that may be problematic in the charge. A failure to object to a jury charge is not determinative; however, trial counsel’s position at trial is an important factor to consider when evaluating complaints raised on appeal: Jacquard at paras. 35‑38; R. v. Purchase , 2015 BCCA 211 at paras. 3‑4. [22] Mr. Justice Frankel, for the Court, endorsed this approach in R. v. Hume , 2016 BCCA 105 at para. 20. He emphasized that an appellate court must take a functional approach and found assistance in the words of Mr. Justice Doherty in R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.): [27]      In Jacquard , Lamer C.J.C. stressed that a functional approach must be taken when assessing the adequacy of jury instructions. I take this to mean that instructions must be tested against their ability to fulfil the purposes for which they are given and not by reference to whether any particular approach or formula has been used. By the end of the instructions, whatever approach is used, the jury must understand: •     the factual issues which had to be resolved; • the law to be applied to those issues and the evidence; • the positions of the parties; and •     the evidence relevant to the positions taken by the parties on the various issues. A.       Instruction on Credibility [23] M.R.H. submits that the judge provided insufficient instruction on credibility. He does not argue that anything anyone said to the jury at any point was wrong. He only says that it was necessary for the judge to give an additional instruction to highlight the importance of the concept of reasonable doubt as to credibility. Specifically, he says that because the jury had to acquit if it did not believe the complainant, the judge should have added to his W.(D.) instruction the supplementary instruction suggested by Mr. Justice Wood in R. v. C.W.H. (1991), 68 C.C.C. (3d) 146 (B.C.C.A.), that “[i]f, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit” (at 155). He says the judge erred in not providing a “ C.W.H. ” instruction in his jury charge. [24] The Crown submits that the judge’s charge clearly explained the applicable principles regarding assessing credibility and the burden of proof. It says there was nothing to suggest the jury would have lost sight of the burden or standard of proof or misunderstood its task as choosing between two contradictory versions of events. It takes the position that a C.W.H. instruction was not necessary in the circumstances. [25] This case parallels W.(D.) in that the jury received two contradictory versions of events. When reviewing the adequacy of jury instructions in such cases, the question for this Court to consider is “whether, in substance, the trial judge’s instructions left the jury with the impression that it had to choose between the two versions of events”: R. v. Avetysan , 2000 SCC 56 at para. 19. No particular formulation of this principle is required so long as the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply: W.(D.) at 758. The jury’s instruction must not be framed as an either/or choice between the evidence of the Crown or the evidence of the defence. [26] I note that in C.W.H . the trial judge “did not instruct the jury either that the rule with respect to reasonable doubt applied to the issue of credibility or that even if they rejected the evidence of the appellant in its entirety, they must still be satisfied beyond a reasonable doubt of the guilt of the appellant, on the basis of the evidence which they did accept, before they could convict” (at 154). In this case, the trial judge did instruct the jury that the rule of reasonable doubt applied to the issue of credibility and that they could acquit even if they rejected the evidence of M.R.H. in its entirety. [27] M.R.H. also referred us to the decision of this Court in R. v. Thiara , 2010 BCCA 415. In that case, the trial judge did not give the C.W.H. instruction and was not faulted. The Court concluded that a C.W.H. instruction would have been inappropriate in the circumstances of the case because even if the jury had been unable to decide whom to believe, it still could have convicted on some of the counts (at para. 26). Considered as a whole, the instruction in Thiara was sufficient to impress upon the jurors that they were not simply to choose a version of events, and that the onus and burden of proof always remains with the Crown (at para. 29). [28] I agree with the Crown that nothing in Thiara suggests that the C.W.H. instruction should be given in any and every case in which credibility is decisive. This Court’s decision in R. v. Howard , 2017 BCCA 263, provides a recent example where this Court held that the supplementary C.W.H. instruction was unnecessary because there was no realistic risk in the circumstances that the jury would have been led to believe it had to make an “either/or” decision between the evidence of the complainant and the accused (at paras. 13‑15). [29] In this case, the jury was not called upon simply to decide between the evidence of the complainant and M.R.H. In my view, there is nothing to suggest that the jury would have lost sight of the burden or standard of proof or would have understood its task as choosing between two contradictory versions of events. [30] The jury was given ample instruction on assessing credibility and the burden and standard of proof. It was instructed that: · “[M.R.H.] does not have to prove anything. It is up to the Crown to prove its case on each element of the offence beyond a reasonable doubt”; · the “burden or onus o[f] proving the guilt of [M.R.H.] beyond a reasonable doubt rests upon the Crown and never shifts. You must not find him guilty if you have a reasonable doubt about his guilt after you consider all of the evidence as it relates to the charge against him”; · the “rule of reasonable doubt also applies to the issue of credibility or reliability. You need not definitely decide on the reliability or credibility of a witness or a group of witnesses. You need not fully believe or disbelieve one witness or a group of witnesses. If you have a reasonable doubt as to the guilt of [M.R.H.] arising from the reliability or credibility of the witnesses, then you must find him not guilty”; · they could “accept all, part, or none of a witness’s evidence”; · the “case against [M.R.H.] rests entirely on the evidence of the complainant”; · “If you believe the evidence of [M.R.H.] … you must acquit him. Even if you don’t believe his evidence, if it raises a reasonable doubt in your mind as to whether he did what [the complainant] says … you must acquit him. Finally, even if you disbelieve him and find his testimony raises no reasonable doubt, you must still acquit if you find that the evidence tendered by the Crown does not meet its burden of proving the elements of each offence … beyond reasonable doubt”; · “I remind you that the Crown must prove each of these ingredients beyond a reasonable doubt. You must return a verdict of not guilty on the offence of sexual assault if the Crown has not proven each of these ingredients beyond a reasonable doubt. The same applies to count 1”; and · “[w]hen deciding whether the accused is guilty or not guilty, you should not weigh the theory or position of the Crown against the theory or position of the accused, since it is always the duty of the Crown to prove the guilt of the accused beyond a reasonable doubt before he can be convicted”. [31] In this case, there was no realistic risk that the jurors would think they had to choose between two contradictory versions of events. The charge made clear that the burden of proof was always on the Crown and that any reasonable doubt had to be resolved in favour of the appellant, including a reasonable doubt based on credibility. A C.W.H. instruction was not required in the circumstances. [32] I would not accede to this ground of appeal. B.       Answer to Jury’s Question [33] M.R.H. submits that the trial judge’s answer to the jury’s question was inadequate. He argues the judge erred by failing to seek submissions from counsel after the clarification of the question, and by not recharging the jury on credibility in response to the question. [34] In response, the Crown argues that the judge’s answer was clear, correct and comprehensive, and did not leave the jury with an erroneous view of the law. The Crown says the judge did not err in answering the question. [35] In W.(D.) , the Supreme Court of Canada discussed the importance of clearly answering a jury’s question. It held that a jury question required a full, careful and correct response, and that the answer should remind the jury of the instructions given in the course of the main charge. The Court stated (at 759‑760): When a jury submits a question, it gives a clear indication of the problem the jury is having with a case. Those questions merit a full, careful and correct response. As well, the answer should remind the jury of its instructions given in the course of the main charge. See R. v. Desveaux (1986), 26 C.C.C. (3d) 88 (Ont. C.A.), at p. 93, where it was said: Questions from a jury manifest their concern and indicate their desire for direction on a particular issue. The trial judge should read the question to counsel and obtain their submissions as to the response that should be made. It is then incumbent on the trial judge to answer the question in a complete and reasonably detailed manner. It is unfair to the parties and the jury to attempt a short form answer to a problem that is obviously presenting difficulties. The definitions requested had been adequately set out early in the charge. However, memories are short and much had intervened in the way of directions and recharges before the question was submitted. The original instructions should have been repeated in the response. [36] The Supreme Court of Canada also discussed the importance of responses to jury questions in R. v. Naglik , [1993] 3 S.C.R. 122, and R. v. S.(W.D.) , [1994] 3 S.C.R. 521. In Naglik , the Court noted that when a jury asks a question about an issue addressed in the main charge, it shows the jury did not understand or remember part of the main charge. Therefore, answers to jury questions are extremely important and carry greater influence than instructions in the main charge. Chief Justice Lamer explained (at 139): Answers to questions from the jury are extremely important, and carry influence far exceeding instructions given in the main charge. If the jury asks a question about an issue addressed in the main charge, it is clear that they did not understand or remember that part of the main charge, and it is also clear that they must exclusively rely on the answer given by the trial judge to resolve any confusion or debate on the point which may have taken place in the jury room during their deliberations up to that point. [37] In S.(W.D.) , the Court again emphasized the importance of giving correct and comprehensive responses to jury questions. It held that since a jury question identifies the issue upon which the jury needs direction, the recharge must be correct and comprehensive. It said (at 530): There can be no doubt about the significance which must be attached to questions from the jury and the fundamental importance of giving correct and comprehensive responses to those questions. With the question the jury has identified the issues upon which it requires direction. It is this issue upon which the jury has focused. No matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive. No less will suffice. The jury has said in effect, on this issue there is confusion, please help us. That help must be provided. [38] In R. v. Daley , 2007 SCC 53, the Supreme Court of Canada explained the role of an appellate court in reviewing a jury charge. It held that a reviewing court should consider “the general sense which the words used have likely conveyed to the jury” and affirmed the proposition from R. v. Jacquard , [1997] 1 S.C.R. 314 at para. 2, that a trial judge’s jury charge will not be held to a standard of perfection (at para. 31). It held: [31]      In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider the charge as a whole. The standard that a trial judge’s instructions are to be held to is not perfection. The accused is entitled to a properly instructed jury, not a perfectly instructed jury: see Jacquard , at para. 2. It is the overall effect of the charge that matters. [39] In R. v. Brydon , [1995] 4 S.C.R. 253, Chief Justice Lamer, writing for the Court, provided two questions for an appellate court to consider in assessing whether a trial judge’s charge or recharge on burden of proof amounted to reversible error. First, the court must consider “whether the impugned instruction is inconsistent with what was said in the initial charge or is simply erroneous standing by itself” (at para. 19). Second, the court should ask “whether, after placing the inconsistency or error in the context of the charge as a whole, there is a reasonable possibility that the jury might have been misled by those instructions” (at para. 19). In that case, the Court concluded that there was “a reasonable possibility that the trial judge’s erroneous instruction may have misled the jury” (at para. 25). [40] The Court’s holding in Brydon makes clear that for a judge’s answer to a jury question to be a reversible error, it must be erroneous and capable of misleading the jury. As explained by Justice Cromwell in R. v. Layton , 2009 SCC 36, albeit in dissent, the focus on an appeal concerning the answer to questions from the jury is whether the jury was left with an erroneous view of the law. Justice Cromwell noted that even in S.(W.D.) , where the Court emphasized the importance of a comprehensive response to jury questions, the conviction was overturned due to the judge’s legally erroneous instructions, not the failure to be as helpful as possible. Justice Cromwell explained: [41] Of course, questions from the jury must be answered fully and properly to the extent possible: see, for example, R. v. S. (W.D.) , [1994] 3 S.C.R. 521, at pp. 528‑31. But the focus on appeal remains on whether the jury was left with an erroneous view of the law . In S. (W.D.) , the majority of this Court found that the recharge in that case contained a legal error and that its effects were not cured by the correct instructions previously given during the main charge. It is important to remember, however, that the case turned on legally erroneous instructions, not on the trial judge’s failure to be as helpful as possible . [Emphasis added.] [41] In R. v. Kahnapace , 2010 BCCA 227 at para. 50, this Court discussed the importance of clarifying unclear or ambiguous questions from the jury. It held that failure to clarify such questions may amount to reversible error. This Court also considered the effect of ambiguous or uncertain jury questions in R. v. Shannon , 2011 BCCA 270, where it held that it is “obvious that if an ambiguous or uncertain question is asked, a clear and correct answer cannot be given” (at para. 53). [42] Based on the foregoing authorities, the following legal principles apply to an appellate review of a jury charge and response to a jury question: (1) if a question indicates the jury did not understand part of the main charge, the response to the question should be clear, careful and correct; (2) unclear or ambiguous questions should be clarified by the judge, as such questions cannot be given clear and correct answers; and (3) while jury questions should be answered fully and carefully, on appeal the reviewing court should focus on whether the jury was left with an erroneous view of the law. The reviewing court should intervene if there is a reasonable possibility that the trial judge’s erroneous instruction may have misled the jury. [43] This is not a case where the jury’s actual question was unclear or ambiguous and was insufficiently clarified by the trial judge. The jury foreperson clearly told the trial judge that the jury had meant to ask only whether “[i]f we believe the 1st incident, can we convict on this alone?” This is illustrated by the following statement by the jury foreperson to the judge: JURY FOREPERSON: Your Honour, we withdrew the second part, we would just like to know if we are – can convict on the first incident alone for both counts. The question was sufficiently clarified to enable the judge to provide a clear and correct answer. Further inquiry into the jury’s question would risk becoming an impermissible inquiry into the jury’s deliberations. The judge made clear he did “not want to go into the discussions you are having in the jury room”. [44] The question, as clarified, was whether the jury could convict on one incident alone for both counts. The judge’s response to the question was legally correct. The judge answered in the affirmative, which counsel for M.R.H. agreed was the legally correct answer. In light of the judge’s correct answer, I do not think there was a reasonable possibility the jury was left with an erroneous view of the law. [45] In addition to being correct, responses to jury questions should be complete. In this case, in my view, the judge’s failure to reinstruct on credibility was not, as argued, a reversible error. Given his initial interpretation of the question, the judge invited submissions from counsel regarding the answer. [46] The judge opined that the jury may need to be reinstructed on credibility, since the question suggested that some jurors may have believed the complainant on the first incident but not on the second. However, once the judge realized what the actual question was, the same issues with respect to credibility did not arise. He told the jury the following: So I took your question to be that you had reached different conclusions. If that is not the case, and I do not want to go into the discussions you are having in the jury room, but I need to tell you, I think, counsel, this is -- I am taken a bit by surprise by the retraction of the second question. But as a matter of law, the Crown needs prove only one of the incidents, not both, for you to convict, and the two separate charges relate to separate offences. [47] The jury’s question did not suggest it may have misunderstood how to assess credibility. Instead, the jury’s question likely arose from the way the charges were laid, with each count encompassing two discrete incidents. This became evident from the jury’s follow‑up question: JURY FOREPERSON: May I ask another question? THE COURT: Well, as long as it is a question on behalf of the jury, yes. JURY FOREPERSON: Yes, it pertains to the same. So we would like to know if both -- so they’re – they’re separate charges for each incident? THE COURT: No. JURY FOREPERSON: Are both charges relevant to each -- or for both incidents. THE COURT: The charges, and again if you look at the indictment, it will become clear to you, the indictment embraces a period of a number of years, and I do not -- I do have it in front of me, it embraces the years between 2006 to 2011. The evidence would tend to demonstrate, at least the allegations arise from 2007 or 8 and 2009, and they are separate offences. But each is evidence -- sorry, each -- JURY FOREPERSON: We did suspect this, Your Honour, but we just needed clarification. Some of our jurors were not clear on this and we wanted clarification. [48] The jury’s question also could have arisen due to the wording of the judge’s initial W.(D.) charge. The judge said the following with respect to the third branch of W.(D.) : Finally, even if you disbelieve him and find his testimony raises no reasonable doubt, you must still acquit him if you find that the evidence tendered by the Crown does not meet its burden of proving the elements of each offence on each occasion set out in the indictment beyond a reasonable doubt. [Emphasis added.] The jury’s question could have been directed at clarifying what the judge meant by proving “each offence on each occasion”. [49] Although the precise reason for the jury’s question cannot be determined, this is not a case where the jury’s question suggested it had a misunderstanding of the law that needed to be rectified, or that would have been assisted by recharging on credibility. The judge gave clear, complete instructions on credibility in his initial charge, and given this initial charge, I do not think the jury could have been left with an erroneous view of the law. The judge did not err in failing to reinstruct on credibility after the jury asked its question. [50] In any event, if the jury’s question stemmed from something else, say, from a concern that the two incidents giving rise to the charges might be considered differently, how would recharging the jury on credibility have helped? The jury would have been instructed that it could accept some, all or none of a witness’s testimony and that the burden always remained with the Crown. The jury had already received those instructions, and on appeal, M.R.H. took no issue with the judge’s main charge, other than to say it needed a C.W.H. instruction, which, as I have explained, was not required. [51] Lastly, the judge did not err in failing to seek submissions from counsel after the question was clarified. The judge sought submissions from counsel after the question was first posed by the jury, including giving counsel a dinner break to consider their positions. The judge had already heard each counsel’s submissions regarding recharging on credibility when he decided that he did not need to reinstruct on credibility in answering the actual question posed by the jury. In addition, neither counsel objected to the judge’s answer or requested the opportunity to make further submissions following the judge’s response to the question. [52] I do not think the jury was left with an erroneous view of the law: one incident was sufficient to convict on both counts. As stated in Jacquard , an accused is entitled to a properly instructed jury, not a perfectly instructed jury. In my view, the question actually asked by the jury was correctly answered. It did not require a recharge on what the jury had already been correctly charged upon: credibility and the proposition that determining guilt or innocence was not based simply on who was believed, or that the jury was entitled to accept some, none or all of a witness’s testimony. V. Conclusion [53] I would dismiss the appeal. “The Honourable Mr. Justice Savage” Reasons for Judgment of the Honourable Madam Justice Garson: [54] I have had the privilege of reading in draft the reasons for judgment of Mr. Justice Savage. With respect, I do not agree with his conclusion for three main reasons. First, the judge’s charge to the jury was confusing in the context of the manner in which the indictment was drawn. The judge failed to adequately explain to the jury that the indictment charged two offences which covered a period of time during which two separate incidents were alleged to have occurred. [55] Second, when the jury returned with a question that appears to have arisen from confusion about the two offences and two incidents, the judge engaged in a confusing colloquy with the foreperson and did not clearly answer the question. [56] Third, the jury question raised the issue of whether the jury could reject the complainant’s evidence about one of the incidents, but accept her evidence about the other. The possibility that the jury was rejecting a significant part of the complainant’s evidence should have led the judge to provide further instructions on credibility. [57] For the reasons I explain more fully below, I would allow the appeal and direct a new trial. [58] The first issue I have identified is with respect to the trial judge’s instructions to the jury on the interpretation of the indictment. For convenience I repeat the language of the indictment: Count 1 [M.R.H.], from the 28th day of October, 2006 to the 28th day of October, 2011, inclusive, at or near Surrey and Harrison Hot Springs, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of J.S., a person under the age of fourteen years, contrary to Section 151 of the Criminal Code. Count 2 [M.R.H.], from the 28th day of October, 2006 to the 28th day of October, 2011, inclusive, at or near Surrey and Harrison Hot Springs, in the Province of British Columbia, did sexually assault J.S., contrary to Section 271 of the Criminal Code. [59] The two counts each covered a five‑year period between October 8, 2006, and October 28, 2011. Underlying the counts were two separate and discrete incidents that the complainant alleged had occurred within that five‑year period. She said that the first incident occurred when she was in grade five, in 2007 or 2008, and spending the night at her grandmother’s house. She said the second occurred when she was in grade six, in 2009, on a camping trip at Harrison Hot Springs. The accused was charged with two offences – sexual assault and sexual interference – with respect to each incident. The two counts corresponded to the two offences, not the two incidents. [60] The judge did not explain to the jury how to interpret the structure of the indictment. In his original charge to the jury, the judge included the following instruction: Mr. [H.] testified. He denied he touched J.S. in the manner she described or for any sexual purpose at any time during their relationship. In considering the evidence of the accused, you should consider it as follows: If you believe the evidence of Mr. [H.] that he did not touch the complainant in a sexual manner at all, let alone as described by J.S., you must acquit him. Even if you do not believe his evidence, if it raises a reasonable doubt in your mind as to whether he did what J.S. says at the condo owned by her grandmother and at Harrison -- sorry, and at the Harrison camping trip, you must acquit him. Finally, even if you disbelieve him and find his testimony raises no reasonable doubt, you must still acquit him if you find that the evidence tendered by the Crown does not meet its burden of proving the elements of each offence on each occasion set out in the indictment beyond a reasonable doubt. In order to convict Mr. [H.] of the offence of sexual interference, which is charged in Count 1 in the indictment, the Crown must prove beyond a reasonable doubt the following elements: one, that Mr. [H.] is the person who actually committed the offence of sexual interference; two, the offence of sexual interference occurred at a time and place referenced in the indictment or either of those times and places ; three, that [J.] was under the age of 14 at the time; four, that Mr. [H.] touched her directly or indirectly; and five, that Mr. [H.] intentionally touched her for a sexual purpose. [Emphasis added.] [61] The only instruction the judge gave the jury on the issue of the two offences and two incidents was his brief statement that the jury had to be satisfied that the offence occurred “at a time and place referenced in the indictment or either of those times and places ” (emphasis added). He did not go on to explain this statement. From other parts of the charge, the jury may have understood that it had to be satisfied that both incidents occurred in order to convict of either offence. In particular, I have emphasized the use of the conjunctive in the third paragraph (above) and the words “of each offence on each occasion” in the fourth paragraph. From the question the jury later asked, it is evident that the jurors were indeed confused by this aspect of the charge. [62] The second issue pertains to the judge’s confusing response to the jury question. For convenience I repeat the language of the question: If we believe the 1st incident, can we convict on this alone? Find him not guilty on the 2nd [incident]. [63] As explained in my colleague’s reasons, the foreperson then advised the judge that it had been the jury’s intention to erase the second part of this question. (For clarity I have italicized the “erased” portion.) [64] It is evident from this sequence of events that the jurors were at some point confused about the difference between the two offences (sexual assault and sexual interference) and the two incidents (at Surrey and Harrison), and what instructions they were to follow if they believed that one incident had occurred but not the other. [65] The judge responded in the following manner. I shall set out the entire exchange, with certain passages identified with letters for convenience: A. THE COURT: Members of the jury, I apologize for the delay in responding to the question you posed, but it raised an issue I wanted to discuss with counsel and reflect on the proper instruction to give. I did not want to do that in either haste or without the benefit of counsel’s assistance. We have been able to speak about that in your absence. And first of all, because the question, it appears somebody’s pencil broke when the question was written, I want to make sure I have it correctly. I am reading from what you passed to me [as read in]: If we believe the 1st incident, can we convict on this alone? Find him not guilty on the 2nd -- and then it goes i-n-c-i, and I am assuming that should say “incident”. JURY FOREPERSON: Your Honour, we withdrew the second part, we would just like to know if we are – can convict on the first incident alone for both counts. B. THE COURT: Well, the answer to that is a little bit different then. Yes, you may, but your – your question has posed a little bit of a difficulty in terms of you may convict on the evidence, if you find the constituent elements have all been proven, but as I say, I may have misinterpreted, because now I see it is an erasure. I just gathered that the pencil had run out of steam. So as a matter of law, if the Crown has proven beyond a reasonable doubt the constituent elements of each of the offences, they need not prove both incidents, one is sufficient. But I should carry on to say that if you are having difficulty or rejecting the evidence of the complainant on the second offence, that raises a bit of a problem in terms of reconciling the acceptance of her evidence on one if you have rejected or raise a reasonable doubt -- or there is a reasonable doubt raised in your mind on the second. So I took your question to be that you had reached different conclusions. If that is not the case, and I do not want to go into the discussions you are having in the jury room, but I need to tell you, I think, counsel, this is -- I am taken a bit by surprise by the retraction of the second question. But as a matter of law, the Crown needs prove only one of the incidents, not both, for you to convict, and the two separate charges relate to separate offences. One is of sexual interference, the other is of sexual assault, and it is not incumbent upon the Crown, and I had hoped my charge had made clear earlier, to demonstrate beyond a reasonable doubt or prove beyond a reasonable doubt that each happened. One of them is sufficient. C. JURY FOREPERSON: May I ask another question? THE COURT: Well, as long as it is a question on behalf of the jury, yes. JURY FOREPERSON: Yes, it pertains to the same. So we would like to know if both -- so they’re – they’re separate charges for each incident? THE COURT: No. JURY FOREPERSON: Are both charges relevant to each -- or for both incidents. THE COURT: The charges, and again if you look at the indictment, it will become clear to you, the indictment embraces a period of a number of years, and I do not -- I do have it in front of me, it embraces the years between 2006 to 2011. The evidence would tend to demonstrate, at least the allegations arise from 2007 or 8 and 2009, and they are separate offences. But each is evidence -- sorry, each -- JURY FOREPERSON: We did suspect this, Your Honour, but we just needed clarification. Some of our jurors were not clear on this and we wanted clarification. THE COURT: All right. These charges do not relate to the incidents separate, one from the other. The incidents are simply evidence underlying each of two separate charges, one of sexual interference, one of sexual assault. And counsel, if either of you take any umbrage with those remarks, then now is the time to stand up. I was not expecting a free flow discussion here. D. MR. REDEKOPP: I appreciate that. If I may, My Lord, from what I understand the juror to say is, is they were wondering if each of the counts relate to each of the incidents. Is that -- was that the question? E. JURY FOREPERSON: That was in part our query. MR. REDEKOPP: All right, yes, then Your Honour’s answer to -- or Your Lordship’s answer was fine. THE COURT: All right. Does that answer the question then? As I say, I am -- I was unfortunately -- fortunately reading more into it than perhaps I should have, because of, as I say, what was at the bottom and it was not clearly erased, so -- JURY FOREPERSON: That clear -- that clears it up for us. THE COURT: All right. Well, then we will adjourn and I will let you get back to your deliberations. [Emphasis added.] [66] A number of problems arise with this answer. First, the judge failed to ensure that the question from the jury was clear (at the passage marked A). Once the foreperson clarified that the actual question was not the one the judge and counsel had prepared to answer, the judge failed to give counsel an opportunity to consider the question in the absence of the jury and make submissions before he answered it (at the passage marked B). [67] Furthermore, the substance of the judge’s answer was confusing. He did at first answer the question correctly by telling the jury that if it believed the complainant’s testimony regarding one incident only, that could be sufficient to convict on both charges. However, he then moved on, without clearly and completely explaining his answer, to briefly address the issue of credibility (which I will discuss below). Finally, he concluded by restating that the Crown needed only to prove “that each happened” without clarifying if he was referring to each incident or each offence. [68] The colloquy that followed the judge’s initial answer to the question reveals that the foreperson at least remained confused. After hearing the answer, the foreperson again queried (at the passage marked C), “we would like to know if both – so they’re – they’re separate charges for each incident?” The judge answered, “No.” The foreperson then repeated the question again, then interrupted the judge as he was giving his answer. Later in the colloquy (at the passage marked D), counsel for the appellant restated his understanding of the question, to which the foreperson responded, “That was in part our query” (at the passage marked E). The foreperson did not say what the other part was. Neither the judge nor counsel sought clarification. [69] As I have mentioned, in the course of his initial answer, the judge referred to, but did not fully address, the credibility issue that would arise if the jury accepted the complainant’s evidence about one incident but not the other. This is the third issue that I have identified. [70] In R. v. W.(D.) , [1991] 1 S.C.R. 742 at 757‑58, Cory J. said in language that has become the standard for jury charges: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin , supra , at p. 357. Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [Emphasis in original.] [71] It was apparent from the exchange with the foreperson that the jury or some members of it had accepted the complainant’s evidence about one incident but not the other. The jury was, of course, entitled to accept all, part, or none of her testimony. However, there was no obvious rational basis for making differential findings regarding her credibility with respect to each incident, and no other evidence that either incident occurred. In these circumstances, the judge was rightly concerned that the jury might not have been considering the implications of an adverse credibility finding on the second incident in its assessment of the first. It was therefore incumbent on the judge to repeat or amplify his instructions on credibility. [72] As Wood J.A. explained in C.W.H. , supra , at 154, the judge must instruct the jury that the rule with respect to reasonable doubt applies to the issue of credibility. Here, the judge ought to have reminded the jury that any reasonable doubt must be resolved in favour of the accused; that even if it did not accept all of the accused’s testimony, it could still accept some of it; that it should not see its task as deciding between two competing versions of events; that it could not decide the case simply by choosing between the evidence of the complainant and that of the accused; and that it had to consider all the evidence and decide whether the Crown had proven beyond a reasonable doubt that the events that formed the basis of the crimes charged had in fact taken place: R. v. J.H.S. , 2008 SCC 30 at para. 15. [73] Without having given the jury clear instructions on credibility, the judge left the issue and returned to the question about the charges. At the conclusion of the exchange, counsel and the judge appeared satisfied and the jury returned to its deliberations. The judge never returned to clarify the credibility issue. [74] I agree with my colleague’s discussion of the case law concerning the importance of clearly answering questions from a jury at his paras. 35‑41 and in particular his summary at para. 41. [75] We part company on the question of whether the judge did “clearly, carefully, and correctly” answer the question or questions. In my view, the judge did not do so. The jury did not receive the assistance to which it was entitled. This Court should intervene where the instructions may have misled the jury or failed to resolve the confusion that led it to ask the question in the first place. [76] In summary the judge erred in his instructions in the following ways: · The judge ought to have clarified the question and then given counsel an opportunity to make submissions as to the appropriate response. · The judge erred in entering into a free-flowing exchange with the jury foreperson and counsel for the appellant in which he failed to give a clear, concise, and unambiguous answer to the question. · The judge should have clarified that the two counts in the indictment did not correspond to the two incidents but instead to the two offences based on the two incidents, because it was obvious that the foreperson remained confused about it. · The judge should have re-instructed the jury on the issue of credibility in accordance with W.(D.) . [77] For these reasons I would allow the appeal and order a new trial. “The Honourable Madam Justice Garson” I agree: “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Cornerview Farms Ltd. v. Friesen, 2020 BCCA 2 Date: 20200102 Docket: CA45798 Between: Cornerview Farms Ltd. Appellant (Plaintiff) And Everett Friesen and Emilie Friesen Respondents (Defendants) Before: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Fitch The Honourable Mr. Justice Hunter On appeal from:  An order of the Supreme Court of British Columbia, dated November 22, 2018 ( Cornerview Farms Ltd. v. Friesen , 2018 BCSC 2060, Chilliwack Docket S27907). Counsel for the Appellant: R.W. Howarth Counsel for the Respondent: M.L. Palleson Place and Date of Hearing: Vancouver, British Columbia November 15, 2019 Place and Date of Judgment: Vancouver, British Columbia January 2, 2020 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Mr. Justice Fitch The Honourable Mr. Justice Hunter Summary: A contract for the sale of a farm granted the buyer early access to the “residence” before the completion date. The parties discussed a change in the early access date, before and after the first agreed date, but did not come to an agreement. The sellers eventually gave the buyer early access to the home but not the garage. The appellant buyer terminated the contract and brought an action for the return of its deposit and damages, arguing the respondents had fundamentally breached the contract by not affording access to the home by the first agreed date, or to the garage at any point. The respondents counterclaimed for damages arising from the lost sale. The trial judge dismissed the appellant’s claim and awarded the respondents damages, holding: the respondents had not breached the contract by failing to give access to the home by the first agreed date, because the appellant waived the right to rely on that date; and the term “residence” in the contract did not include the garage. Held: Appeal dismissed. The trial judge correctly applied the principles of contractual interpretation. There was ample evidence to support the judge’s conclusion that the buyer had waived the November 1 access date. There is no basis to interfere with the judge’s assessment of damages. Reasons for Judgment of the Honourable Mr. Justice Willcock: Introduction [1] On August 12, 2013, Cornerview Farms Ltd., the appellant, entered into a contract to purchase Everett and Emilie Friesen’s poultry farm at 6957 Bradner Road in Abbotsford, British Columbia for $1,560,000. The buyer paid a deposit of $100,000. The contract called for the sellers, the respondents, to deliver up vacant possession of the property at noon on January 31, 2014. It allowed, however, for the appellant to have early access to the residence on the property, pursuant to a clause that read as follows: Seller will vacate residence not later than November 1, 2013 and will allow Buyer access for purposes of improvements as follows: - replace flooring - painting - replacement of plumbing fixtures. [2] Negotiations with respect to the early access to the residence continued in the period between the execution of the contract and the completion date. The sellers say those negotiations resulted in an agreement to modify the date upon which the buyer would get early access to the residence to November 30, 2013. The sellers vacated the home on the property by November 24 but did not vacate the garage outbuilding. [3] The buyer took the position the term “residence” included the garage and, on December 2, 2013, asked the sellers to vacate the garage immediately. The sellers refused to do so. On December 16, 2013 the buyer advised the sellers they had breached the contract, purported to terminate the contract and asked for the immediate return of the $100,000 deposit and interest. [4] The sale did not complete. The property was subsequently sold by the sellers for an amount substantially below $1,560,000. The deposit was not returned. [5] The buyer brought this action for return of the deposit and damages for breach of contract. The sellers commenced a counterclaim seeking damages arising from the breach, principally the difference between the sale price and the price for which they later sold the farm, but also including carrying costs: interest expenses, utilities and property taxes. [6] The judge found the contract permitted the buyer to have early access to the house only and not the garage. He also found the buyer had waived the provision allowing it to have early access to the house on November 1, and agreed that the contract could be performed by affording access to the house by November 30. In any event, he found the failure to give the buyer early access to the garage (if that had been required by the contract) would not have amounted to a fundamental breach of the contract so as to permit the buyer to terminate the agreement. He found the buyer to be in breach of the contract of purchase and sale and awarded the sellers damages in the sum of $120,000 [7] The appellant says the trial judge erred: a) in finding that the term “residence” did not include the garage; b) in finding that there was waiver of the November 1 vacancy date and no fundamental breach of the contract; c) in assessing damages by: i. failing to take into account the inadequate measures taken by the sellers to mitigate their losses; ii. excluding revenue from a specific flock of chickens; and iii. failing to adequately assess the credibility of Mr. Friesen. [8] The critical finding of the trial judge with respect to the interpretation of the contract is at paras. 241–243 of the reasons for judgment: [241] Having considered counsel’s submissions and construed the plain language and primary meaning of the words used in the debated term; and having regard to the context of the contract as a whole; and, to a lesser degree, evidence related to the factual matrix – or surrounding circumstances -- when the contact was made – that is to say, circumstances the parties knew or reasonably ought to have known about that assist in determining the meaning a reasonable person would give to the word’s use by the parties, I have come to the view that the term “residence” insofar as it relates to the defendants’ obligation to vacate the garage by November 30 is not ambiguous; that the term “residence” in this factual matrix meant the house. The defendants had vacated the house on November 24, 2013. They were not obligated to vacate the garage by no later than November 30, and were not in breach of the contract for their not having vacated the garage by November 30, 2013. [242] To the extent any ambiguity may remain. I find this interpretation consists [sic] with commercial efficacy and good sense, and is reasonable and fair. [243] It is noteworthy that the plaintiff had asked for early access to carry out some renovations in the house. The defendants granted what was a request as a pay forward response to a kindness they had received with respect to their own quite recent purchase of another property. The plaintiff did not stipulate anything specific with respect to the garage, which was fully occupied at the time. The plaintiff was minded to use the garage as a staging area, but never stipulated that or an intention to “gut the house”, as Mr. Shead [the buyer’s principal] testified. [9] The trial judge then turned to the question of waiver. As the sellers had not afforded the buyer access to the residence by the date specified in the contract, November 1, 2013, the sellers’ claim for damages hinged upon the continued validity of the contract after that date. The judge addressed that issue obliquely, by describing the positions of the parties, without expressing a clear conclusion. [10] At paras. 246–254 of the reasons, the judge set out the submission of the sellers’ counsel to the effect that, whether or not an agreement to amend the vacancy date was actually reached, there was no doubt that, after a meeting between the parties to discuss the issue on October 24, neither side expected the buyer to have access on November 1. The sellers relied on statements in Endacom 2000 Inc. v. Hydro One Networks Inc., [2002] O.J. No. 129 (S.C.J.); Rados v. Paconla Investments Ltd ., [1981] B.C.J. No. 72 (S.C.), and 2329131 Ontario Inc. v. Carlyle Development Corp ., 2014 ONCA 132 to illustrate the consequences that arise when parties to a contract conduct themselves in a manner that indicates they are no longer relying on a deadline stipulated in the agreement. The reasons for judgement cite the following passage from Endacom in this regard: [37]      In law, when both parties to a contract let the time for completion go by, and one of the parties wishes to reinstate time as of the essence, it is necessary to serve a notice upon the other party, fixing a new date for completion, which must be reasonable, and stating that time is to be of the essence with respect to the new date. [11] Based on this principle, the sellers reasoned that after having agreed to extend the November 1, 2013 date, and letting that date pass, the buyer could only impose a new schedule on reasonable terms and could not reinstate the November 1 early access date. [12] The judge’s recitation of the position taken by the sellers ends with the following passages: [253] The defendants submitted there is in place an entirely enforceable Contract between the parties consisting of the document set out in Ex. 2 at p. 6, [the original agreement] together with the “waived” or later date to vacate the residence. Accordingly, the defendants submit the plaintiff did not have the ability or right to try walk away from that enforceable deal. [254]    The defendants further submitted that the agreement to move the date to November 30 is a waiver of the November 1 date; the plaintiff, in essence, acquiescing in approving the delay to November 30, 2013. [13] These paragraphs are immediately followed by a discussion of fundamental breach, clearly founded upon the presumption that the sellers were to provide “vacant possession” of the residence by November 30: [255] I will briefly consider an alternative finding if my disposition of the issue of whether the term “residence” encompassed both the house and the garage; and on the operative date, if the defendants were to provide vacant possession of the garage as well as the residence by November 30. Is in error. [sic] Then, I will consider whether the failure to vacate the garage (the house was vacated by November 24) by that date does not amount to a fundamental breach of the Contract. [14] Only by reading the judgment as a whole is it apparent that the judge implicitly accepted the argument that the buyer had, through the course of its conduct, agreed to treat November 30 as the “operative date” by which it was to have early access to the residence. When he turned to the question of fundamental breach, the trial judge addressed only whether failure to vacate the garage by November 30 went to the root of the contract; he did not consider whether the failure to vacate the house on November 1 amounted to a fundamental breach. [15] He concluded that even if the contract had called for the sellers to afford early access to the garage as well as the house, the failure to do so did not amount to a fundamental breach of the contract: [267] There is no breach justifying repudiation where the parties have received substantially what they had bargained for: Sail Labrador Ltd. v. Challenge One (The) , [1999] 1 S.C.R. 265 at para. 86. [270] I agree with the defendants that the failure to vacate the garage cannot reasonably be characterized as a breach of Contract that deprived the plaintiff of substantially the whole benefit of the Contract; further, counsel for the defendant aptly submitted that while the failure of the defendants to vacate the entire residence by the early possession date arguably could be considered an inconvenience for the plaintiff, it cannot tenably be said that they lost substantially the whole benefit of the Contract (see Stearman v. Powers , 2014 BCCA 206). [Emphasis added] [16] Having found the contract to be binding, he concluded the buyer, by failing to complete, had breached the contract and was liable for consequential damages. Those damages included the difference between the original purchase price and the final purchase price, $130,000, together with carrying costs, less the deposit, interest on the deposit and earnings flowing from the continued operation of the chicken farm in the interval between the collapse of the first sale and the completion of the subsequent sale of the property. Appellant’s argument Interpretation of the contract [17] The buyer takes issue with the trial judge’s finding that the sellers undertook to provide early access to the residential building only and not the garage. [18] The buyer does not take issue with the trial judge’s description of the principles of contractual interpretation. These were drawn from the decision of this Court in Miller v. Convergys CMG Canada Limited Partnership , 2014 BCCA 311 . However, the buyer contends the analysis was inadequate because the judge did not consider the principle of contra proferentem which, it submits, has application in this case because the sellers’ lawyer drew up the contract. [19] As this Court noted in Miller , resort to the rule of contra proferentem is necessary only where there is ambiguity that cannot otherwise be resolved. The principle may not be used to create or magnify an ambiguity. In my view, it was not an error to interpret the contract in the case at bar without resort to the rule. The contract was interpreted by considering, first the ordinary meaning of the word “residence”, and turning, secondly, to the words of the contract describing the purpose for which access was to be afforded to the buyer. Early access was given to the buyer specifically “for purposes of improvements” that were to be effected to the residential building, not the garage. That analysis left no ambiguity. [20] The appellant does not identify either an error in principle or a palpable or overriding error that can be said to undermine the trial judge’s findings of fact. This is clearly a case where the contractual interpretation involved issues of mixed fact and law. That being the case, we should defer to the trial judge for the reasons expressed in Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53 at para. 52: such deference promotes “the goals of limiting the number, length and cost of appeals and of promoting the autonomy and integrity of trial proceedings.” That is particularly so where, as here, only the parties have an interest in defining the legal obligations arising from the contract. Waiver and fundamental breach [21] The buyer submits “the facts do not support the submission of Respondents counsel as set out by the trial judge” with respect to waiver of the November 1, 2013 early access date. Properly, in my view, the buyer considers the judge to have accepted the sellers’ submissions with respect to waiver. [22] The buyer identifies instances in the history of dealings between the parties where its principal, Mr. Shead, took the position that unless an amendment to the contract could be agreed to, he would insist upon the right to have access to the residence on November 1, 2013. It contends these weigh heavily against the conclusion that it waived the provision for access on November 1. [23] However, these instances were not overlooked by the judge, who clearly appreciated the buyer’s position that it had occasionally sought to reinstate the original agreement. I n my view, the evidence strongly supported the judge’s implicit conclusion that the provision calling for early access to the residence on November 1, 2013 was waived by the buyer. [24] The trial judge referred in his reasons to the following evidence with respect to waiver: a) the buyer acknowledged there was a meeting on October 24, 2013 to discuss extension of the November 1, 2013 vacancy date (para. 35); b) it was “undisputable that the parties had a discussion on October 24, 2013, that touched on the question of early vacant access” (para. 86); c) on October 24, 2013, Mr. Shead wrote to the sellers’ solicitor confirming he had agreed with Mr. Friesen that he would have “full access and possession of the house on Nov 30- 2013 at noon” (para. 42); d) on cross examination, Mr. Shead acknowledged the parties agreed on October 24th, “as gentlemen”, that the early access date would be November 30 (para. 90); e) Mr. Shead confirmed an e-mail was sent on October 31 at 4:04 p.m., to the sellers’ solicitor which read, in part: “The date for access to the house was discussed to be November 30 th at noon” (para. 95); f) on cross examination Mr. Shead acknowledged that as of October 31 he was still “living with an agreement with the November 30 th date” (para. 97); g) on November 6, 2013 the buyer’s acting solicitor wrote a letter to the sellers’ solicitor that included the following passage: “my clients indicate that they and the Friesens agreed to November 30, 2013 at noon for possession of the residence” (paras. 36, 83 and 84); h) Mr. Shead agreed in cross-examination that he had provided those instructions to his solicitor (para. 92); and i) finally, the following cross-examination was noted (para. 94): Q   … Now, you’ve eventually agreed with me that the November 1st date for vacancy … of the garage or whatever we want to call it … it was agreed it would be extended to November 30; correct? A    Correct. Q   All right. And that was an agreement you reached with the Friesens at this October 24th meeting at their house; right? A    That was discussed and agreed upon verbally. [25] In my view, the evidence supported the conclusion that the buyer had waived the term of the contract providing the buyer access to the residence on November 1, 2013. [26] There is some merit to the buyer’s submissions that the reasons are deficient in failing to address numerous issues and conflicts in the evidence identified by the judge. The buyer says, for example, that the judge describes in detail the submissions impugning the credibility of Mr. Friesen but does not make any finding with respect to his credibility. Similarly, I note, the judge set out in detail the submissions impugning the credibility of the buyer’s principal, Mr. Shead, without making any finding with respect to his credibility. However, I am unable to identify any point of importance turning on the credibility of either party. There is little dispute with respect to the terms of the contract and the essential aspects of the negotiation relied upon by the judge were set out in correspondence between the parties and their solicitors. [27] In light of his finding that the sellers complied with their contractual obligations when they vacated the residence and made access available to the buyer before November 30, 2013, the judge’s consideration of the fundamental breach issue became unnecessary and can be regarded as obiter . Because I would uphold the trial judge’s interpretation of the contract and would find the buyer to have waived the provision affording it access to the residence on November 1, 2013, it is not necessary to revisit the question of fundamental breach. [28] I would note, however, that the appellant does not take issue with the trial judge’s description of what amounts to a fundamental breach: a breach that is such as to “deprive the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as consideration for performing those undertakings.” ( Coal Harbour Properties Partnership v. Liu , 2005 BCSC 873 at para. 36 (citing Hongkong Fir Shipping Co. Ltd. v. Kawasaki Kisen Kaisha Ltd ., [1962] 2 Q.B. 26 (C.A.)). The course of negotiations between the parties made it clear that the buyer was flexible about obtaining that access and there was nothing in the buyer’s conduct that suggested that later access to the residence to effect repairs would frustrate its intentions. The course of dealings that led the trial judge to find the agreement to afford early access to the residence had been waived is, in my view, inconsistent with the argument that breach of that term would amount to a fundamental breach of the contract, if it had not been waived. Assessment of damages [29] When he assessed damages the judge had before him a detailed calculation of the loss on the resale of the property and carrying charges. He accepted that the deposit was forfeited “on account of damages”. He made an allowance for interest on the deposit and for profits the Friesens earned through their continued operation of the poultry farm. He accepted the evidence of Mr. Friesen that one cycle of poultry production, identified as A122, would have been completed and the profits from that cycle would have been earned before the completion date. He deducted profits from cycles that finished after the completion date. He made a moderate adjustment to the claim to reflect the delay in listing the property for resale while giving some weight to the Friesens’ “uncontradicted testimony that the market did not favour selling at the time” of the breach (para. 263). [30] The appellant contends the trial judge inadequately assessed Mr. Friesen’s credibility. The appellant says the trial judge should not have given credence to Mr. Friesen’s explanation of his slow attempts to sell the property and erred in accepting the evidence that flock A122 would have been sold before the scheduled completion date. [31] In my view, the appellant has not identified an error in principle or a palpable and overriding error affecting the findings of fact. The trial judge expressly addressed the appellant’s argument that the respondents failed to mitigate and made some allowance for deficiencies in the respondents’ conduct. In the course of argument we were taken to documentary evidence in support of the trial judge’s findings of fact. In my view, there is no basis to interfere with the trial judge’s assessment of damages and in particular no reason to say that the trial judge should have drawn an adverse inference from any deficiencies in the documentary record. [32] I would dismiss the appeal. “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Fitch” I agree: “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Marchi v. Nelson (City of), 2020 BCCA 1 Date: 20200102 Docket: CA45997 Between: Taryn Joy Marchi Appellant (Plaintiff) And City of Nelson Respondent (Defendant) Before: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Fitch The Honourable Mr. Justice Hunter On appeal from:  An order of the Supreme Court of British Columbia, dated March 8, 2019 ( Marchi v. Nelson (City of) , 2019 BCSC 308, Rossland Docket S12245). Counsel for the Appellant: D. Grunder D.K. Daroux Counsel for the Respondent: D.L. Romanick G. Allen Place and Date of Hearing: Vancouver, British Columbia November 12, 2019 Place and Date of Judgment: Vancouver, British Columbia January 2, 2020 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Mr. Justice Fitch The Honourable Mr. Justice Hunter Summary: The appellant suffered an injury she attributed to inadequate clearing of snow by the respondent municipality. Her action for damages was dismissed. The trial judge accepted the respondent’s submission that it owed no duty of care to the appellant because its decisions with respect to snow removal were bona fide policy decisions. He alternatively found that, if the decisions were operational in nature, negligence was not made out under the standard tort analysis, in part because the appellant was the “author of her own misfortune”. Held: Appeal allowed. It was an error to accept the respondent’s characterization of its impugned conduct without engaging in the analysis called for by Just v. British Columbia, [1989] 2 S.C.R. 1228 and to characterize the appellant’s conduct as the proximate cause of her injury, contrary to the approach embodied in s. 8 of the Negligence Act, R.S.B.C. 1996, c. 333. Reasons for Judgment of the Honourable Mr. Justice Willcock: [1] The appellant’s action against the respondent, the City of Nelson, for damages arising out of a serious injury she sustained when she fell in a snowbank on Baker Street was dismissed for reasons indexed as 2019 BCSC 308. [2] She appeals that decision, arguing: a) the trial judge made factual errors: holding that all witnesses who testified about the practices and standard of care were called by the appellant, when that was not the case; finding that the practice employed in a comparable community was irrelevant based on a misapprehension of the circumstances in that community; and finding the City had exceeded its snow clearing budget in the three years before the incident when that was not the case; b) the trial judge erred in law by providing functionally insufficient reasons for judgment, substantially reproducing large portions of the respondent’s submissions (40 of 46 paragraphs of the judgment reproduce the respondent’s written submissions); and misstating and failing to consider the appellant’s argument at trial or the jurisprudence referred to by the appellant; c) the trial judge erred in law by failing to distinguish between policy and operational decisions and failing to consider and establish an appropriate standard of care; and d) the trial judge erred in law in finding the plaintiff was the author of her own misfortune and failing to properly address the plaintiff’s negligence as contributory rather than a complete defence. [3] For reasons set out below, I am of the view the trial judge erred in the manner in which he addressed the City’s duty of care, the standard of care and the appellant’s own negligence. In my view, it is not necessary to address misapprehensions of the evidence or the purported inadequacy of the reasons for judgment. I would order a new trial. [4] The appellant’s claim was founded upon an allegation that the City created a hazard when it cleared snow on the downtown streets following a heavy snowfall overnight on January 4–5, 2015. The city work crews plowed the snow on the 300 block of Baker Street early in the morning on January 5. They did so in such a manner as to create snowbanks or windrows at the edge of the street along the sidewalk. At about 5 PM on January 6, the appellant parked in an angled spot on the street and, seeing no other means of getting onto the sidewalk, tried to cross the snowbank. As she did so, her right foot dropped through the snowbank and onto something that bent her forefoot up. The snow locked her leg in place. She fell forward, suffering serious injury to her leg. [5] The appellant contended the City should have left openings in the snowbanks to permit safe access from the street onto the sidewalk. She relied upon evidence of the practices in neighbouring municipalities, Castlegar, Rossland and Penticton, to establish there were reasonable and preferable ways to clear the streets so as to ensure safe access onto the sidewalks. Her complaint related not to the City’s priorities or budget decisions but, rather, to the manner in which its work crews dealt with the accumulation of snow, given the available resources. [6] The judge described the contest at trial as follows: [2] The only issue to be determined is liability. The parties have agreed on damages. The position of the City of Nelson (the “City”) is that it did not owe the plaintiff a duty of care in the circumstances. This is because the decision [ sic ] respecting plowing and removal of snow and snowbanks on Baker Street were bona fide policy decisions and as such the City owed no duty of care. [3] Governments do not owe a duty of care in tort if it can be established that their actions are bona fide . … [Emphasis added]. [7] The highlighted portion of this quotation is not an accurate description of the law. The trial judge appears to have adopted the submission of the City but abridged it in a manner that omits the crucial reference to the insulation of policy decisions , in particular, from judicial scrutiny. The City had submitted: “Governments (including local governments) do not owe a duty of care in tort if it can be established that the government’s actions (or omissions) are a result of bona fide policy decisions ” (emphasis added). [8] The reasons for judgment are, in my view, marked by a failure to identify the types of governmental decisions that should be insulated from judicial scrutiny. [9] The trial judge began by referring to the City’s “Streets and Sidewalks Snow Clearing and Removal Policy” which sets out the priorities and the procedure for plowing, sanding and clearing city streets. That policy says nothing about whether windrows should be left along the edge of sidewalks or whether the street clearing crews should create any means of access from the street to the sidewalk in the downtown shopping area. [10] The judge noted, in a passage taken verbatim from the respondent’s submissions, (submissions at para. 20, reasons for judgment at para. 5): [5]        … In addition to the written policy there are unwritten policies and policy decisions respecting snow removal. The relevant ones are: a) When the City experiences a snow event, it follows the street plowing, sanding, and clearing priorities first, as set out in the written policy. b) In addition to the street plowing, sanding, and clearing priorities, the City also has employees out plowing, sanding and removing snow from the designated sidewalk route, as outlined in the route map appended to the written policy. These are collector sidewalks that bring people through town so that you can walk from one end of town to the other. The City also clears sidewalks in front of City Hall, and other City owned properties. c) City crews address the various stairs located in the City, with the focus first being on the downtown core. They will also address crosswalks, sidewalk letdowns, key bus stops and handicapped parking stalls. d) When removing snow from the downtown core, crews first push snow into piles in the parking spots and then haul it out of downtown. e) Snow removal (i.e. the removal of snowbanks) in the downtown core starts at the 400 block of Baker Street, where the main bus stop is located, and proceeds towards Hendryx Street (eastwards), following the bus route. f) The focus on snow removal/hauling in the downtown core is on Baker Street; however, when the downtown core starts to get busy with vehicle traffic and pedestrians (typically around 11:00 a.m.), to ensure safety, the City workers will move to removing/hauling snow from other areas, such as the civic centre, the clinic, the fire hall, the police station, and around schools, and return to Baker Street as soon as possible. g) The City does not remove/haul snow from the downtown core overnight due to noise complaints received in the past, as well as the cost of overtime. h) Inspections are undertaken by Ms. MacDonald [the City’s Works Superintendent], who completes road patrol throughout the day to ensure the streets are safe, and crews are working in a timely and efficient manner. Once Ms. MacDonald leaves for the day, the lead hand will take over the task of road patrol. [11] The judge then paraphrased paras. 36–37 of the respondent’s submissions: [7] The policy decisions made by the City were bona fide , according to the City. The decisions could not be characterized as made in bad faith or so irrational as not to be a proper exercise of discretion. These decisions were governed by factors including budgetary social and economic factors, which included the availability of manpower and equipment. [12] Finally, he held, adopting wording in paras. 52, 54 and 55 of the respondent’s submissions: [14] The City’s actions were the result of policy decisions. The City made policy decisions about the sequence in which it clears snow from its roadways. They are dictated by the availability of manpower, and resources. [15] The City followed its policy decisions. The City could not remove the windrows from downtown without creating a dangerous situation on the tops of the steep and snowy streets in Nelson in the winter as it would mean diverting equipment from plowing and clearing in favour of removing snow from downtown. [16] According to the City, it owed no duty of care in the circumstances. [13] The distinction between governmental policy and operational decisions is subtle. In my view it was an error to simply accept the City’s submissions that all decisions made with respect to snow removal, whether made by the City Council, the Works Superintendent or the street crews, were policy decisions. [14] As the Supreme Court of Canada noted in Just v. British Columbia , [1989] 2 S.C.R. 1228 (per Cory J., for the majority at 1239): The functions of government and government agencies have multiplied enormously in this century. Often government agencies were and continue to be the best suited entities and indeed the only organizations which could protect the public in the diverse and difficult situations arising in so many fields. They may encompass such matters as the manufacture and distribution of food and drug products, energy production, environmental protection, transportation and tourism, fire prevention and building developments. The increasing complexities of life involve agencies of government in almost every aspect of daily living. Over the passage of time the increased government activities gave rise to incidents that would have led to tortious liability if they had occurred between private citizens. The early governmental immunity from tortious liability became intolerable. This led to the enactment of legislation which in general imposed liability on the Crown for its acts as though it were a person. However, the Crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions. On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of "policy". Thus the dilemma giving rise to the continuing judicial struggle to differentiate between "policy" and "operation". Particularly difficult decisions will arise in situations where governmental inspections may be expected. The dividing line between "policy" and "operation" is difficult to fix, yet it is essential that it be done . [Emphasis added.] [15] Cory J., at 1241, drew some assistance from the following passage from the judgment of Mason J. in the High Court of Australia decision, Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1 at 34–35 , in identifying the criteria to which reference may be made in drawing the critical distinction: The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints . Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness . [Emphasis added by Cory J.] [16] Cory J. concluded: The duty of care should apply to a public authority unless there is a valid basis for its exclusion. A true policy decision undertaken by a government agency constitutes such a valid basis for exclusion. What constitutes a policy decision may vary infinitely and may be made at different levels although usually at a high level. [17] The appellant relies upon a passage from The Honourable Allen M. Linden, “Tort Liability of Governments for Negligence” (1995) 53:4 The Advocate 539, to the effect that immunity should cover only narrowly defined government activity: Such activity is normally concerned with large issues (macro decisions, if you will), not routine items (micro decisions). [18] The appellant submits: It would be unreasonable to call in particular the decision taken by the lead hand on the evening of January 5, 2015 a policy decision. The evidence of [Ms. McDonald] is that the city can have the evening crew stay until [4 AM] after a snow event. She explained that the decision not to keep the crew that evening to do further snow clearing was made by the lead hand. Clearly, that was a discretionary operational decision and not a policy one. [19] Further, the appellant argued, relying on the evidence of practices in other municipalities, that there were methods of clearing snow that were simple and inexpensive that might have been adopted in Nelson by administrative direction and that would have satisfied the standard of reasonableness without requiring any change in the City’s policies as dictated by financial, economic, social or political factors or constraints. [20] Certain of the impugned decisions of the street clearing crew may properly have been characterized as operational in nature. Arguably, the decision not to further extend the hours of snow clearing and the decision not to move snow into particular parking spots, leaving access to the sidewalk open in other areas along the street, were operational. In my view, it was an error on the part of the trial judge to accept the City’s submission that all its snow removal decisions were policy decisions without engaging in the analysis called for by Just . [21] After concluding that the City owed no duty of care to the appellant, the trial judge went on to consider whether, if he was wrong, and the City did not have a policy defence, it would be liable if its conduct were subjected to the “standard tort analysis”. [22] That analysis by the judge, in my opinion, is equally flawed. The trial judge erroneously believed the appellant called three witnesses, from the works departments of Castlegar, Rossland and Penticton, who occupied positions similar to the City’s Works Superintendent. In fact, two of those witnesses were called by the respondent. The appellant sought, in part through cross-examination, to establish a standard of care in the manner described by David G. Boghosian in The Law of Municipal Liability in Canada, at para. 2.96, p. 2.54: Evidence of the practice of similarly situated municipalities concerning the activity in issue is relevant in determining the standard of care expected in the circumstances. Proof that a defendant failed to conform with the custom or practice will raise a strong presumption of negligence on his or her part whereas conformance with a custom or practice will usually, although not necessarily, exonerate the defendant.” [23] The judge considered the evidence that different practices in those similarly situated municipalities avoided the creation of windrows at the edge of downtown sidewalks but gave it little weight. He held: [35]      … The most significant difference is that in Rossland they permit snow to pile up in parking spaces where it can be removed later. This did not occur to Ms. MacDonald who said that the way the snow was removed in Nelson was the way it has always been done. I have reviewed the principles of Policy and those set out in Occupiers Liability Act . [36] The City followed its policy. The policy was to clear snow in accordance with long established practices . The attempt to compare the practices in Nelson with those of other places was not very useful. Each of the municipalities faced difficult conditions. Nothing in the evidence showed that the policy of the City was unreasonable or the result of a manifest lack of appreciation for the risks involved. The policy is rational . It is very difficult to fault the City on a policy basis. [Emphasis added.] [24] Thus, even the “standard tort analysis” was coloured by the trial judge’s view that a policy defence was available to the City and that rationality, rather than reasonableness, was the applicable standard. [25] Further, in my view, the trial judge was led into error by accepting the City’s submission that fault had not been established because the appellant was aware of the risk presented by the snow bank and was the “author of her own misfortune”. Substantially adopting portions of paras. 143–4 and 146 of the respondent’s submissions, the judge held: [40]      … To establish factual causation the plaintiff would have to prove that the requisite standard of care was to have removed the snowbanks on Baker Street to a point between January 5, 2016 (sic) and January 6, 2015 which was not possible under any standard of care, short of perfection. [41] Beyond this, the City would also have to be liable for legal causation. The City’s fault must be the proximate (or reasonably foreseeable) cause of the accident . [Emphasis added.] [26] The trial judge accepted (at para. 44) what he described as the City’s summary of the situation: Despite clearly seeing the snowbank, and wearing inappropriate shoes, and having the time to consider other options, and in fact considering (but ultimately rejecting) other options, and appreciating the various risks of stepping on the snowbank, and not doing anything to test whether the snow was indeed compacted and could bear her weight, the plaintiff took her right foot off the snow patch on which she was standing (in order to avoid the puddle) and stepped into the snowbank, ultimately injuring herself . [27] In support of the proposition that the appellant’s negligence was the proximate cause of her injury and that afforded the City a defence, the City and the trial judge relied on two trial decisions: Robson v. Spencer, 2006 BCSC 1240 and Wickham v. Cineplex Inc. , 2014 BCSC 850. The former had not been cited in any other trial decision before it was relied upon by the respondent in this case and adopted as authority for the trial judge’s analysis. The proximate cause causation analysis in Robson is unnecessary and in my view, for reasons set out below, wrong in principle. The latter judgment, Wickham , is not authority for the proposition for which it is cited. The trial judge in that case, Sigurdson J., dismissed the plaintiff’s claim because negligence had not been made out. His observation that the plaintiff was entirely responsible for her injury should be seen in light of his conclusion that there was no fault on the defendant’s part: [ 62] In all of these circumstances, and keeping in mind that the standard is not one of perfection, I find that even though arguably the defendant might have acted differently, it took the care that was reasonable to see that a person using its premises is reasonably safe. [28] In my view, it was an error on the part of the trial judge to adopt the proximate cause analysis urged upon him by the City, for reasons this Court expressed in Skinner v. Fu , 2010 BCCA 321. In that case, in similar circumstances, Garson J.A. held: [ 18 ] In my view the judge erred in the way he framed the analysis. “Proximate cause” or “effective cause” are sometimes confusing terms. [ 19 ] The use and misuse of the term “proximate cause” was discussed by Smith J.A. in Chambers v. Goertz , 2009 BCCA 358 at para. 29 : “Proximate cause” is a phrase ill-suited to the task of identifying culpable causes in negligence . It implies that the law recognizes only one cause and that this sole cause must be close in time and space to the event. As I have explained, these implications are not correct - every event has multiple historical factual causes. The phrase “proximate cause” is most often used in tort law synonymously with “remoteness”, that is, “to inject some degree of restraint on the potential reach of causation”: R. v. Goldhart , at para. 36. It suggests a limit on the scope of liability. There is also a doctrine of proximate cause in insurance law, where the term has been used to signify the main or dominant or effective cause of a loss, since the insurer has contracted to pay for the loss only if, or unless, it was caused by an event specified in the insurance policy. It must be noted that the term's usefulness in insurance law has also been questioned: see C.C.R. Fishing Ltd. v. British Reserve Insurance Co. , [1990] 1 S.C.R. 814 at 823, 69 D.L.R. (4th) 112 , [1990] 3 W.W.R. 501 ; Derksen v. 539938 Ontario Ltd. , 2001 SCC 72 , [2001] 3 S.C.R. 398 at para. 36 , 205 D.L.R. (4th) 1 . [ 20 ] The judge’s use of the term “proximate cause” in this case, diverted the analysis from the correct approach, the “but for” test. The judge must have employed a last clear chance analysis when he used the term “proximate”. That term implies a finding of no liability based on a determination that the appellant could have entirely avoided the accident if only he had been more attentive to the road ahead of him. The judge found that the defendant was negligent . Indeed he could hardly have found otherwise. The respondent did create an unreasonable risk of harm by remaining stationary in the way he did. [29] It follows that it was not open to the judge to treat his finding that the appellant assumed the risk of crossing the snowbank as dispositive of the question of the respondent’s negligence. Such reasoning is clearly precluded by s. 8 of the Negligence Act , R.S.B.C. 1996, c. 333, which reads: This Act applies to all cases where damage is caused or contributed to by the act of a person even if another person had the opportunity of avoiding the consequences of that act and negligently or carelessly failed to do so. [Emphasis added.] [30] For these reasons, in my view, the trial judge did not appropriately consider and identify the acts or omissions on the part of the City that should have been subject to judicial scrutiny and he did not correctly apply the “standard tort analysis” in relation to any such acts or omissions. I would allow the appeal, set aside the order dismissing the appellant’s action and order a new trial. “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Fitch” I agree: “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Independent Investigations Office of British Columbia v. Vancouver (City) Police Department, 2020 BCCA 4 Date: 20200106 Docket: CA45719 Between: Independent Investigations Office of British Columbia (Chief Civilian Director Albert Phipps) Respondent (Petitioner) And Cst. Mike Bains, Cst. Spencer Green, Cst. Scott Plummer, Sgt. Pat Gormley, Cst. Beau Spencer, Cst. Dave Gooderham, Cst. Thomas Dobranowski Appellants (Respondents) Before: The Honourable Mr. Justice Harris The Honourable Madam Justice Dickson The Honourable Mr. Justice Butler On appeal from:  An order of the Supreme Court of British Columbia, dated October 18, 2018 ( Independent Investigations Office of British Columbia v. Vancouver (City) Police Department , 2018 BCSC 1804, Vancouver Docket S172705). Counsel for the Appellant: M.K. Woodall Counsel for the Respondent: M.E. Sandford, Q.C. A. Tolliday Counsel for the Intervenor, British Columbia Police Complaint Commissioner: D.K. Lovett, Q.C. Place and Date of Hearing: Vancouver, British Columbia December 2, 2019 Place and Date of Judgment: Vancouver, British Columbia January 6, 2020 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Madam Justice Dickson The Honourable Mr. Justice Butler Summary: This is an appeal of certain declarations made by the Supreme Court as a result of considering the meaning of a police officer’s duty to cooperate fully with the Independent Investigations Office when it is investigating a police incident involving death or serious personal injury. Police officers who were witnesses to a fatal shooting by the police demanded certain disclosure before submitting to an interview. Held: Appeal dismissed. The judge did not err in concluding that the terms of the interview process are to be determined by the Independent Investigations Office and an attempt by an officer to impose conditions on how and when the interview will be conducted is inconsistent with the duty to cooperate fully. Reasons for Judgment of the Honourable Mr. Justice Harris: [1] The issue on this appeal involves the interpretation of the duty of police officers to “cooperate fully” with the Independent Investigations Office of British Columbia (“IIO”), a civilian‑lead oversight agency responsible for conducting investigations into police actions resulting in death or serious bodily harm. That duty is found in in the Police Act , R.S.B.C. 1996, c. 367 [ PA ]. The IIO is created and governed by Part 7.1 of the PA , which includes the following provision: 38.101    An officer must cooperate fully with (a) the chief civilian director in the chief civilian director’s exercise of powers or performance of duties under this Act, and (b) an IIO investigator in the IIO investigator’s exercise of powers or performance of duties under this Act. [Emphasis added.] BACKGROUND [2] The issue on appeal arises out of an incident on November 10, 2016, when a man was fatally shot by one of several officers who attended the scene of a robbery. The IlO began an investigation and the IIO directed the appellants, each of whom is a member of the Vancouver Police Department (“VPD”), to attend for compulsory interviews, as “witness officers” not “subject officers”. This distinction is of some practical significance because the officers were witnesses to the incident and were not being investigated for their potential role in causing the death. [3] Prior to the interviews, counsel for the appellants asked the IIO for access to the following contemporaneous records of the incident specific to each appellant: (a) computer assisted dispatch records that record entries that the officer made or was able to see during the incident; (b) audio recordings or transcripts that record oral communications that the officer made or was able to hear during the incident; (c) incident video that shows events that the member participated in or observed during the incident. The IIO was not prepared to provide the witness officers with the requested pre-interview disclosure, but was prepared to provide some limited materials on the day of the interview, before the interview. When the IIO refused to provide the requested disclosure, the appellants declined to be interviewed. Although much of the record relates to the correspondence passing between the parties, I accept that the officers’ request for disclosure was made on the basis of a good faith belief that they were entitled to the requested disclosure and the request was intended to be consistent with, and not frustrate, their duty to cooperate fully with the investigation. [4] The IIO brought a petition in the Supreme Court of British Columbia to compel the appellants to attend the interviews without the pre‑interview disclosure they requested. That application succeeded: 2018 BCSC 1804. The judge granted an order in the nature of mandamus requiring the appellants to attend the interviews and respond in good faith to questions put to them by the IIO. In addition, the judge made the following declarations: (a)      the duty on witness officers to fully co-operate with the IIO under s. 38.101 of the PA includes the duty to attend interviews related to IIO investigations as and when the petitioner directs; (b)      attendance of witness officers’ counsel and union representatives at IIO interviews is at the discretion of the IIO; (c)      the providing of pre-interview disclosure to witness officers is at the discretion of the IIO; and (d)      the appellants failed or refused to comply with their statutory duty under s. 38.101 of the PA to co‑operate fully with the IIO. [5] The appellants complied with the mandamus order and attended the interviews. Any issue arising in connection with mandamus is moot, and is not at issue in this appeal. The IIO investigation into the shooting incident was completed with no charges being brought. [6] The appellants appeal only against the declarations. They seek to quash the declarations, but do not seek any declarations in substitution from this Court. The issues on appeal are whether the judge erred: (a)      by declaring that the duty on witness officers to fully co-operate with the petitioner includes the duty to attend interviews related to investigations as and when the petitioner directs; (b)      by declaring that providing pre-interview disclosure to witness officers is at the discretion of the petitioner; and (c)      by declaring that the attendance of witness officers’ counsel and union representatives at IIO interviews is at the discretion of the petitioner. [7] The interpretative exercise is informed by the history and purpose of the establishment of the IlO and the powers conferred on it. Contextually relevant also is that the PA provisions are supplemented by a memorandum of understanding respecting investigations, which was entered into in January 2012 by the IIO and all of the police agencies in British Columbia and executed by the Chief Constable of the VPD in accordance with his powers under the PA . In addition, the Police Complaint Commissioner (“PCC”) also plays a role in investigating complaints into police conduct. The role of the PCC is also governed by the PA . The following provisions, which existed before the IlO, are relevant to interpreting the section at issue: 101  (1)  A member must cooperate fully with an investigating officer conducting an investigation under this Part. (2)  Without limiting subsection (1), at any time during an investigation under this Part and as often as the investigating officer considers necessary, the investigating officer may request a member to do one or more of the following, and the member must fully comply with the request: (a)  answer questions in respect of matters relevant to the investigation and attend at a place specified by the investigating officer to answer those questions; (b) provide the investigating officer with a written statement in respect of matters relevant to the investigation; (c) maintain confidentiality with respect to any aspect of an investigation, including the fact of being questioned under paragraph (a) or being asked to provide a written statement under paragraph (b). (3)  A member requested to attend before an investigating officer must, if so requested by the investigating officer, confirm in writing that all answers and written statements provided by the member under subsection (2) are true and complete. (4)  Unless the discipline authority grants an extension under subsection (5), the member must comply with any request under subsection (2) within 5 business days after it is made. (5)  If satisfied that special circumstances exist, the discipline authority may extend the period within which the member must comply with a request under subsection (2). 178      A member has a duty to cooperate with the police complaint commissioner in the police complaint commissioner's exercise of powers or performance of duties under this Act and with any deputy police complaint commissioner or other employee of the police complaint commissioner who is acting on behalf of the police complaint commissioner. [Emphasis added]. [8] The issue, as framed by the judge, was: “as between the IIO and the respondents, who defines what ‘cooperate fully’ under s. 38.101 of the Police Act means?” The IIO’s position was that the duty to cooperate described in s. 38.101 did not confer discretion on the witness officers to determine the terms of their cooperation. The witness officers’ position was that s. 38.101 did not empower the IIO to unilaterally impose interview terms related to disclosure that are not acceptable to witness officers. Instead, the IIO and police officers must together determine what the process ought to be for IIO investigations. The witness officers also argued that a dispute resolution clause in the memorandum of understanding revealed an intent to remove disputes from the jurisdiction of the court. [9] First, the judge held that the memorandum of understanding is not intended to have legislative authority. The memorandum of understanding does not and cannot have the effect of ousting the court’s jurisdiction to address the duties of witness officers under the PA . The memorandum of understanding does not assist in interpreting the obligations on witness officers to “cooperate fully” with the IIO. [10] Second, the judge held that the witness officers have an obligation to cooperate fully with the investigation. Witness officers do not have discretion to determine the bounds of the interview process. The judge reached this conclusion by considering the common law duty of police officers to assist in law enforcement and police officers’ duties as members of a self-governing profession to cooperate with their governing bodies. The judge also relied on the purpose of the legislative scheme to “provide an independent and transparent investigative body for the purpose of maintaining public confidence in the police and the justice system along with the minimum procedural requirements expected at the investigation stage.” [11] In short, the judge concluded: “it is the IIO, not the witness officers, who determine what ‘cooperate fully’ under s. 38.101 of the Police Act means.” ARGUMENT ON APPEAL [12] The appellants contend that, properly interpreted, the legislature did not intend to confer on the IlO the unilateral power to determine the content of the duty to cooperate fully in an investigation. The content of that duty, they contend, does not include a right to withhold the kind of pre‑interview disclosure they sought in this case, since to do so in the circumstances of this case is illogical, not supported by evidence and arbitrary. The duty to cooperate is not a duty to submit to arbitrary terms imposed by the IlO. [13] In asserting these positions, the appellants contend that the kind of pre‑interview disclosure they sought is consistent with and supportive of their duty to cooperate fully with the investigation. In short, the purpose of the disclosure is to ensure that the information they would provide in the interview is the most accurate reflection of what happened, as they witnessed it, untarnished by misperception or faulty recollection. The specific disclosure of the contemporaneous recording of each particular officer’s participation in the event is the best means of fulfilling the investigation’s truth‑seeking function, avoiding potential factual error, and promoting a scheme of investigation best able to ensure a transparent investigation capable of maintaining public confidence. In proceeding in this way, the potential prejudice inherent in committing to a mistaken version of events that can “follow” the witness in subsequent proceedings can be avoided. Neither the purpose nor the effect of such disclosure is to protect a police officer or to provide an opportunity to manufacture or manipulate evidence. [14] In support of the argument that the legislature did not intend to confer on the IlO the unilateral power to determine the content of the duty to cooperate fully, the appellants point to the specific and detailed duty set out in s. 101 of the PA , dealing with complaints set out above, and the duty to cooperate regime found in the Ontario legislation that governs that province’s Special Investigations Unit (“SIU”). The SIU is Ontario’s equivalent of the IIO, and was evidently the model that the British Columbia legislature considered before amending the PA to create the IIO. The provisions found in the Ontario regulation that set out details of the duty to cooperate could have been, but were not, adopted in a similar form in s. 38.101. The implication to be drawn from this is that the legislature deliberately left the content of the duty to cooperate fully with the IlO to be worked out by the respective agencies, each of whom is expert in investigation techniques and capable of ensuring that proper arrangements are worked out to ensure effective and accountable oversight of police conduct causing death or serious personal injury. This conclusion is supported also, the appellants argue, by the existence of the memorandum of understanding which was entered into at the time the IlO was created to govern interactions, investigations, and which provided for a dispute resolution mechanism. ANALYSIS [15] I turn then to consider the arguments on appeal. The starting point is the commonplace recognition that the words of a legislative enactment are to be read in their entire context, and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, its objects, and the intention of the legislators. [16] The plain terms of the statute impose the duty to cooperate on police officers. The duty is owed to IlO investigators. It is a duty to cooperate fully with those investigators. It is expressed as a mandatory, not a qualified, duty. Nothing in the wording of the statute supports the inference that police officers can withhold their cooperation with the investigation, if they disagree with the terms on which it is being conducted. I agree with the judge that at its most straightforward the issue is who, as a matter of statutory interpretation, decides what is required in order to cooperate fully with the investigation. I agree with her conclusion, that it is the IlO. [17] It is clear that the exercise of a statutory power must be exercised in a manner consistent with and to further the purposes of the statute. While the power to define the cooperation required of police officers in an investigation cannot be exercised for a purpose collateral to the statutory objective, I can see nothing in the record before us that could support the inference that the demands made by the IlO were arbitrary or capricious. Rather, the conflict between the parties reflects a disagreement about the best, most reasonable, or most efficient means of investigating this particular incident. Should demands be made, in other circumstances that are properly viewed as arbitrary because they are inconsistent with the objectives of the legislation, a remedy would lie. [18] In my opinion, the broad and general definition of the duty to cooperate fully in s. 38.101, by contrast with the more prescriptive and specific articulation of the duty to cooperate elsewhere in the PA and other legislation, does not support an inference that the legislature intended that the scope and content of the duty to cooperate would be resolved by discussion among interested parties and perhaps included in a memorandum of understanding. To the contrary, the broad definition discloses a legislative intention to confer on the IlO a broad power to determine the terms on which an investigation will be conducted and to define what is required of police officers in discharging their duty to cooperate fully with an investigation as part of civilian oversight of investigations into police conduct. [19] Moreover, although the duty to cooperate fully is more specifically outlined in s. 101 of the PA in relation to police complaints, I am not persuaded that the specificity in this latter section assists in defining a limited scope or content of the duty to cooperate fully in s. 38.101. In my opinion, it does not provide a basis for inferring that the duty in s. 38.101 is more limited or circumscribed than that found in s. 101. [20] This interpretation is consistent with the objects of the legislative scheme. The purpose of the scheme is to ensure civilian oversight of investigations into police conduct causing death or serious personal injury. The mechanism to achieve this is the IlO. The IlO is a product of, and a response to, public inquiries into alleged police misconduct involved in the deaths of Mr. Frank Paul and Mr. Robert Dziekanski; the Davies Commission Inquiry and the Braidwood Inquiry. Both reports recommended the establishment of an independent investigation office to avoid the appearance of the police investigating the police. It is instructive that Mr. Braidwood recommended that witness police officers “must promptly” make themselves available for IlO interviews. It is common ground that an important objective of an independent and transparent investigative body is the maintenance of public confidence in the police and the justice system as a whole. [21] Josiah Wood, Q.C., in his February 2007 Report on the Review of the Police Complaint Process in British Columbia, also expressed a concern that police witnesses promptly submit to interviews and that they cooperate with investigations to ensure public confidence in a transparent and accountable process: see paras. 165 to 167 inclusive. Similar concerns were also expressed the 2005 Police Act Reform White Paper, at page 12. [22] I agree with the judge’s conclusion that the officers’ public legal duty to cooperate fully with the IIO is part of a legislative scheme that is intended to provide an independent and transparent investigative body for the purpose of maintaining public confidence in the police and the justice system, and that only minimal procedural requirements can be expected at the investigation stage: para. 144. I also agree that witness officers fail to comply with their duty to cooperate by demanding certain conditions — such as pre-interview disclosure, the presence of counsel, the presence of union representatives, assurances that there will be no derivative use of their accounts, and that the interview be scheduled to accommodate annual leave, weekly leave, particular shifts or on some other basis — as a pre-condition to their cooperation: para. 144. [23] I believe the judge summarized the point well when she said: [145]    Whether or not the witness officers were acting in good faith or making up excuses about their non‑attendance for interviews is not a consideration. The IIO has the obligation to investigate the Canadian Tire incident and the witness officers have an obligation to cooperate fully with that investigation. The witness officers do not have the discretion to determine the bounds of the interview process. [146]    To address the issue as described by counsel for the respondents: it is the IIO, not the witness officers, who determine what “cooperate fully” under s. 38.101 of the Police Act means. [24] In the result I would dismiss the appeal and decline to quash the declarations. In the circumstances, it is unnecessary to comment further on the declarations set out in the order. “The Honourable Mr. Justice Harris” I agree: “The Honourable Madam Justice Dickson” I agree: “The Honourable Mr. Justice Butler”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: K.F.M. v. K.G.T., 2020 BCCA 10 Date: 20200106 Docket: CA46217 Between: K.F.M. Appellant (Claimant) And K.G.T. Respondent (Respondent) Before: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Hunter The Honourable Madam Justice Griffin On an application to vary:  An order of the Court of Appeal for British Columbia, dated September 18, 2019 ( K.F.M. v. K.G.T. , 2019 BCCA 339, Vancouver Docket CA46217). Oral Reasons for Judgment The Appellant, appearing in person: K.F.M. Counsel for the Respondent: M.G. Perry Place and Date of Hearing: Vancouver, British Columbia January 6, 2020 Place and Date of Judgment: Vancouver, British Columbia January 6, 2020 Summary: The appellant seeks a review of a decision denying him leave to appeal an interim order under the Family Law Act conferring sole authority on the respondent to make health-related decisions concerning their son pending trial. Held: Application dismissed. The leave judge did not commit an error of law or principle and did not misapprehend the evidence. [1] HUNTER J.A. : On July 5, 2019, an order was made in the Supreme Court of British Columbia that granted the respondent, K.G.T., the sole authority on an interim basis to make decisions related to the health of the parties’ eight-year-old child. The order was made in the context of high conflict family litigation between the parties, who separated in October 2011 and have been engaged in disputes over the parental responsibilities for their child for much of the intervening eight years. The trial of this longstanding litigation is now scheduled for July of 2020. [2] Although the transcript of the chambers judge’s reasons refers to s. 45(f) of the Family Law Act , S.B.C. 2011, c. 25, it is apparent that the order was made by reference to s. 41(f) of that Act . [3] The child resides with his mother, K.G.T. His father, K.F.M., has parenting time of eight hours per week in accordance with interim orders made and varied throughout the eight years of litigation. For clarity in these reasons, I will refer to the applicant K.F.M. as the Father, and the respondent K.G.T. as the Mother. [4] The basis of the July 5 order was a concern that the parties’ child required psychological counselling but the Father was refusing to consent to the referral to a child psychiatrist recommended by the child’s general practitioner. A physician had been retained to prepare a s. 211 Child Custody, Parenting Capacity and Parenting Time report, but it was not anticipated that the report would be completed until a few months before trial. The Supreme Court chambers judge who heard the Mother’s application considered the Father’s reasons for not consenting to counselling and other mental health recommendations to have no merit. The effect of the order was that pending trial, the Mother would make all decisions concerning the child’s physical and health treatments. [5] The Father wishes to appeal this July 5 order. Because the July 5 order grants interim relief under the Family Law Act , leave to appeal is required. The Father sought leave to appeal before a judge of this Court in chambers, but his application was dismissed for reasons indexed at 2019 BCCA 339. He seeks a review of that decision by a division of this Court pursuant to s. 9(6) of the Court of Appeal Act , R.S.B.C. 1996, c. 77. [6] At the outset, it is important to note that a review of a decision of a chambers judge is not a re-hearing of the application. The standard to be applied by a division of this Court on a review application was summarized by Madam Justice Dickson in Lungu v. British Columbia (Human Rights Tribunal) , 2016 BCCA 136 , in these terms: [8]        A review application brought before a division of the court under s. 9(6) of the Act does not provide an opportunity for a rehearing of the original chambers application. The standard of review is whether the justice sitting in chambers was wrong in law, wrong in principle, or misconceived the facts. In the absence of such an error, the court will not interfere with the chambers judge’s exercise of discretion: DeFehr v. DeFehr, 2002 BCCA 139 at para. 6 . [7] Thus, the question for this Court is whether in exercising his discretion not to grant leave to appeal, the chambers judge was wrong in law, wrong in principle, or misconceived the facts. [8] With this standard in mind, I turn to the decision of the chambers judge, who for clarity I will refer to as the leave judge. The leave judge began by reviewing the circumstances in which the order had been made. A series of applications was before the Supreme Court chambers judge on July 5. The Father had sought an order varying the interim parenting time order to increase his parenting time and to entitle him to travel with the child in the summer. The chambers judge was not prepared to change the parenting time order. That part of the July 5 order is not in issue in this Court. [9] In addition, the Mother sought a series of orders relating to the allocation of parental responsibilities. The Father objected to those applications being heard on July 5 due to insufficient notice, and the chambers judge gave effect to this objection in respect of all of the Mother’s applications except the application concerning the child’s health-related treatments. The chambers judge explained his reasoning for proceeding with that application in these terms: [6]        Having read and considered the materials before me, in the circumstances I am satisfied that there is some urgency to the respondent’s application, but only as it relates to the child’s health-related treatment and,  accordingly, I am allowing the respondent to bring her application in that regard by way of short notice. The balance of the respondent’s application will have to be heard on a later date convenient to the parties and Madam Justice Fleming, who is the case management judge assigned to this matter and who is familiar with these proceedings. [10] The leave judge then reviewed the chambers judge’s assessment of the evidence. He summarized the chambers judge’s assessment in this way: [11]      The chambers judge expressed serious concern about the child’s mental health. He understood that [the Father] was convinced that the situation is one involving parental alienation by [the Mother]. Given that Dr. England had been retained to assess the entire situation and prepare a full s. 211 parenting assessment, the judge considered that no change in parenting time should be ordered until that assessment had been completed. Accordingly, he dismissed [the Father’s] application. [12]      The chambers judge found no merit in [the Father’s] reasons for not consenting to counselling and other recommended mental health modalities. Given this, and the judge’s concerns about the child’s mental health, he granted the order sought by [the Mother]. [11] The leave judge then turned to the law relating to leave to appeal, and cited the test in this way: [ 13 ]      The party seeking leave to appeal bears the burden of showing that leave should be granted: British Columbia Teachers’ Federation v. British Columbia (Attorney General) (1986), 4 B.C.L.R. (2d) 8 at 11 (C.A.) (in Chambers) . The criteria to be applied are well-established: (1)   whether the point on appeal is of significance to the practice; (2)   whether the point raised is of significance to the action itself; (3)   whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and (4)   whether the appeal will unduly hinder the progress of the action. See also Goldman, Sachs & Co. v. Sessions, 2000 BCCA 326 at para. 10 (Saunders J.A. in Chambers) . The overarching concern is the interests of justice and the four criteria are “all considered under the rubric of the interests of justice”: Movassaghi v. Aghtai, 2010 BCCA 175 at para. 22 (D. Smith J.A. in Chambers) and the cases cited therein. [12] This test is well accepted in this Court, and I can see no error in the leave judge’s statement of the applicable law. [13] The leave judge went on to point out the high hurdle faced by appellants who seek appeals of interim orders in family matters: [ 16 ]      The court’s jurisdiction to vary interim orders made in family matters is “extremely limited”, and it will only interfere with such orders “in exceptional circumstances”: N. (T.) v. N. (J.C.), 2013 BCCA 432 at para. 10 (Levine J.A. in Chambers); F. (J.G.) v. B. (C.L.), 2003 BCCA 382 at para. 10 (Huddart J.A. in Chambers). [14] This principle is also well accepted in this Court. [15] The leave judge then considered the grounds for appeal, which comprise 35 numbered paragraphs in the amended notice of application for leave to appeal, but which the leave judge summarized in this way (para. 20): a)         whether the chambers judge erred in allowing [the Mother’s] application to proceed on short leave, despite her non-compliance with the service requirements in the Supreme Court Family Rules and despite the informal protocol established by the case management judge; and b)         whether the chambers judge misapprehended the evidence and erred in his assessment of urgency. [16] The leave judge reviewed the submissions of the Father and concluded that he had not identified a good arguable case of sufficient merit to warrant scrutiny by a division of this Court. The Father submits that the judgment refusing leave contains factual inaccuracies and does not give effect to what he characterizes as the breach of his procedural rights in hearing the Mother’s application on short notice. The alleged breach of procedural rights concerns the decision of the chambers judge to hear and decide the application concerning the child’s health needs, without the Mother having given proper notice under the Rules. The leave judge considered that the procedural issue was not one that satisfied the requirement of a point of significance to the practice or the parties. I would go further. In my view, there is no reasonable prospect that a division of this Court would interfere with the exercise of a chambers judge’s discretion to hear this application on short notice given the material that was before the judge. [17] The applicant has put a number of authorities before us in support of his review application, but I consider it necessary to address only one, Williamson v. Williamson , 2016 BCCA 87. Williamson was one of those rare cases where this Court did interfere with an interim order relating to family litigation, but the circumstances were very different. The mother in that case had sought an order for inpatient counselling for the children of the marriage, but the application had been dismissed by a judge of the Supreme Court. The mother then brought an identical application before a different judge, who granted the order, apparently on the mistaken belief that the first judge had not made a decision on the first application. This Court held that the second judge had erred in hearing the mother’s application without first finding there was a material change in circumstances from those prevailing at the time the first application was dismissed. Williamson did not involve an emergent situation of mental health needs of the child requiring an interim order to break an impasse between the parents. [18] In the case at bar, the chambers judge was of the view that there was urgency in addressing the child’s mental health needs. Although the Father disputes that assessment, there was ample evidence before the chambers judge to justify this conclusion. There is no reasonable possibility that a division of this Court would interfere with that determination. [19] In my view, the refusal of leave to appeal was an appropriate exercise of the leave judge’s discretion, and I can see no error that would justify interfering with the order. Accordingly, I would dismiss the application to discharge or vary the order refusing leave to appeal. [20] The leave judge also dismissed a second application brought by the Father for an order that he be permitted to file materials without paying court fees, generally referred to as a no fees order, as he did not consider that the position being argued by the Father had merit, which is a prerequisite to a no fees order. For the reasons I have outlined in relation to the leave application, I can see no error in that decision. [21] As a result, I would dismiss the application to discharge or vary the order refusing leave to appeal and refusing a no fees order. Costs of this application are payable to the respondent. [22] GROBERMAN J.A. : I agree. [23] GRIFFIN J.A. : I agree. [24] GROBERMAN J.A. : The application to discharge or vary the order is dismissed. “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Leonard v. The Manufacturers Life Insurance Company, 2020 BCCA 5 Date: 20200106 Dockets: CA43565; CA46063; CA46065 Dockets: CA43565; CA46065 Between: Francoise Leonard and Leanne Ranniger Appellants (Plaintiffs) And The Manufacturers Life Insurance Company, Manulife Financial Corporation, Benesure Canada Inc., Broker Support Centre Inc., Credit Security Insurance Agency, Tacamor Holdings Inc., Davis + Henderson Limited Partnership and John F. Lorriman Respondents (Defendants) - and - Docket: CA46063 Between: Francoise Leonard and Leanne Ranniger Respondents (Plaintiffs) And The Manufacturers Life Insurance Company, Manulife Financial Corporation, Benesure Canada Inc., Broker Support Centre Inc., Credit Security Insurance Agency, Appellants (Defendants) Tacamor Holdings Inc., Davis + Henderson Limited Partnership and John F. Lorriman Respondents (Defendants) SEALED IN PART Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Harris The Honourable Madam Justice Dickson Re:  An application to vary an order of the Court of Appeal for British Columbia, dated October 19, 2019 ( Leonard v. The Manufacturers Life Insurance Company , 2019 BCCA 375). Counsel for the Appellants: R.W. Cooper, Q.C. B.W. Lemer Counsel for the Respondents, The Manufacturers Life Insurance Company, Manulife Financial Corporation, Benesure Canada Inc., Broker Support Centre Inc., and Credit Security Insurance Agency: D.G. Cowper, Q.C. T.A. Posyniak S. Irving Counsel for the Respondent, Davis + Henderson Limited Partnership: A.L. Crimeni Counsel for the Respondent, John F. Lorriman: G.D. Henry Counsel for the Intervenors, in the Ehouzou Action and the Benmouffok Action: C. Lévesque Counsel for the Proposed Intervenor, Tim Stringer: E.F.A. Merchant I.S. Brar Place and date of Hearing in Chambers: Vancouver, British Columbia October 16, 2019 Place and date of Judgment in Chambers: Vancouver, British Columbia October 18, 2019 Notice of Motion Received from Counsel for the Proposed Intervenor, Tim Stringer: November 6, 2019 Written Submissions Received from Counsel for the Proposed Intervenor, Tim Stringer: November 21, 2019 November 28, 2019 November 29, 2019 December 5, 2019 December 16, 2019 Written Submissions Received from Counsel for the Intervenors, in the Ehouzou Action and the Benmouffok Action: November 26, 2019 Written Submissions Received from Counsel for the Respondents, The Manufacturers Life Insurance Company, Manulife Financial Corporation, Benesure Canada Inc., Broker Support Centre Inc., and Credit Security Insurance Agency: November 27, 2019 December 2, 2019 December 11, 2019 Place and Date of Decision: Vancouver, British Columbia January 6, 2020 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Madam Justice Saunders The Honourable Madam Justice Dickson Summary: This was an application to extend the time to apply to vary the order of a single justice of the Court of Appeal. Held: Application dismissed. Reasons for Judgment of the Honourable Mr. Justice Harris: [1] Mr. Stringer applies to review and vary an order of Justice Abrioux insofar as it relates to costs. As this matter arose at about the time this Court was dealing with the substantive appeals in these proceedings, we instructed the parties that we would deal with it on the basis of written submissions. [2] In order to apply to vary the order, Mr. Stringer first needs an order extending the time to make his application. The application to extend time was filed November 6, 2019. Justice Abrioux’s order was pronounced on October 18, 2019. Justice Abrioux delivered Oral Reasons for Judgment, including an order for costs, after hearing submissions of counsel. The deadline for applying to vary Justice Abrioux’s order was October 25, 2019. The oral reasons were posted on the Court of Appeal website on October 28, 2019. The application to vary Justice Abrioux’s order was filed some 12 days late. [3] The application before Justice Abrioux was filed on October 7, 2019. Mr. Stringer sought the following orders: a)       that the time limit for applying for intervenor status is extended; b)       that he is granted leave to intervene, file a factum of up to 20 pages, and make oral submissions at the hearing of the appeals; c)        that he is permitted to adduce additional evidence on appeal; and d)       that no costs be made in favour of, or against him, in respect of this application or the appeal itself. [4] It will be apparent that the application before us is the second application within a short period of time seeking to extend the time to make an application. [5] Mr. Stringer’s application to intervene in the appeals should have been filed by August 14, 2019. As noted, it was filed October 7, 2019. Justice Abrioux dismissed the application to extend time. I set out the operative part of his judgment: [37]      I do not accept Mr. Stringer’s submission that the parties failed to give him notice of the proceedings before Grauer J., as required by ss. 2(2)(b) and 3.1 of the Class Proceedings Act . This was the same argument rejected by Grauer J. in relation to the Ehouzou and Benmouffok plaintiffs on February 15, 2019, based on his prior order approving the method of disseminating notice through nation-wide advertisement in the National Post: Leonard v. The Manufacturers Life Insurance Co. (February 15, 2019) Vancouver Docket S131263 at paras. 6‑7. In my view, Mr. Stringer received the same notice as the Ehouzou and Benmouffok plaintiffs. [38]      Based on the following, I also find that Mr. Stringer was notified of the proceedings before this court. I am mindful of the evidence adduced by the Manulife Defendants and Mr. Lévesque, on behalf of the Ehouzou and Benmouffok plaintiffs, regarding the alleged lack of notice now being advanced on Mr. Stringer’s behalf by his counsel. This includes: (a) in an email dated March 14, 2019, Mr. Merchant, on behalf of Mr. Stringer, requested a fee‑sharing arrangement with Mr. Lévesque to work together as intervenors in these appeals; (b) in an email dated May 15, 2019, an email was sent to Mr. Merchant by counsel for the Manulife Defendants, which informed him that the decision of Grauer J. had been appealed to this court and provided copies of the filed notices of appeal; (c) in another email, dated June 18, 2019, Mr. Merchant informs Mr. Lévesque that he “cannot be in Vancouver on July 8”. That date is in reference to Mr. Lévesque’s application for intervenor status in these appeals before Savage J.A. on July 8, 2019; (d) Mr. Merchant sent a further email on July 16, 2019 to counsel for the Manulife Defendants stating: “I have not heard what the outcome was on July 8. If he (i.e. Mr. Lévesque) got intervener status he thinks it is important to him and he will feel strengthened.” [Emphasis added by Justice Abrioux.] [39]      These communications establish that Mr. Stringer, through his counsel, Mr. Merchant, was aware of the appeals well before the deadline to apply for intervenor status on August 14, 2019. [40]      During the hearing of this application, counsel for Mr. Stringer conceded that counsel was aware as of the end of July 2019 that the deadline to apply for intervenor status was August 14, 2019. Similarly, counsel conceded that while Mr. Stringer did not receive formal notice of the proceedings before Grauer J. or the proceedings at issue in this court, informally he was aware and chose not to apply to intervene for reasons he could not disclose. [41]      There is an abundance of evidence on the record on this application to confirm this concession. In fact, in that regard, I accept the description offered by counsel for the Manulife Defendants that, since at least the application before Truscott J. in 2015, Mr. Stringer, through his counsel Mr. Merchant, has been “shadowing” the proceedings in British Columbia, including those pertaining to these appeals. [42]      Based on these circumstances, the application for an extension of time to apply for intervenor status is denied. A late application for leave to intervene should be denied if it makes it impossible for the parties to address the matters sought to be raised by the intervenor: Saulteau First Nations v. British Columbia (Oil & Gas Commission) , 2004 BCCA 240 at para. 8. The timing of the application is a factor to be considered. In Saulteau , as is the case here, the application was brought shortly before the date fixed for the hearing of the appeal. In contrast, late applications for intervenor status have been allowed where the delay was inadvertent and the proposed intervenor always expressed its intention to intervene: FortisBC Inc. v. Shaw Cablesystems Ltd. , 2010 BCCA 606. Quite the opposite occurred in this case. [43]      Simply put, there has been no persuasive rationale advanced by Mr. Stringer to explain the delay for bringing this application; in particular, the materials filed in support of the application are, in my view, inadequate to support the relief sought. [6] Justice Abrioux went on to explain that he would have dismissed the other applications in any event of his refusal to extend time. He observed that the proposed intervention would raise a new issue that could result in the adjournment of the appeals. In dismissing the application to adduce fresh evidence, Justice Abrioux commented: [51]      In my view, contrary to what is set out in his memorandum of argument, it is clear that Mr. Stringer was aware of the application before Truscott J., had notice of the application before Grauer J., was aware of the proceedings in this court, and has waited until the eve of the hearing of these appeals before seeking leave to intervene and an order permitting him to adduce fresh evidence on appeal. There is also no mention of what fresh evidence Mr. Stringer would seek leave to adduce at the hearing of the appeals. For these reasons, I would also deny making an order permitting Mr. Stringer to adduce evidence. [7] Justice Abrioux engaged in a discussion with counsel about costs before ruling: [54] ABRIOUX J.A. : Costs may be awarded for or against intervenors, although courts take a restrained approach with costs in this regard: Faculty Association of the University of British Columbia v. University of British Columbia , 2009 BCCA 56 at paras. 4–5. [55]      In my view, the respondents who filed materials and/or addressed the Court at the hearing of the applications, including Mr. Lévesque’s clients, are entitled to their costs from Mr. Stringer. I make that order. [8] Mr. Stringer intends to argue on his variation application, if time were extended, that Justice Abrioux erred in principle in awarding costs in the face of the prohibition in the Class Proceedings Act , R.S.B.C. 1996, c. 50, set out in s. 37: 37 (1) Subject to this section, neither the Supreme Court nor the Court of Appeal may award costs to any party to an application for certification under section 2 (2) or 3, to any party to a class proceeding or to any party to an appeal arising from a class proceeding at any stage of the application , proceeding or appeal . (2) A court referred to in subsection (1) may only award costs to a party in respect of an application for certification or in respect of all or any part of a class proceeding or an appeal from a class proceeding (a) at any time that the court considers that there has been vexatious, frivolous or abusive conduct on the part of any party, (b) at any time that the court considers that an improper or unnecessary application or other step has been made or taken for the purpose of delay or increasing costs or for any other improper purpose, or (c) at any time that the court considers that there are exceptional circumstances that make it unjust to deprive the successful party of costs. (3) A court that orders costs under subsection (2) may order that those costs be assessed in any manner that the court considers appropriate. (4) Class members, other than the person appointed as representative plaintiff for the class, are not liable for costs except with respect to the determination of their own individual claims. [Emphasis added.] [9] The test to extend time is well known. The following factors guide the analysis: 1)       Was there a bona fide intention to appeal? 2)       When were the respondents informed of the intention? 3)       Would the respondents be unduly prejudiced by an extension of time? 4)       Is there merit in the appeal? 5)       Is it in the interest of justice that an extension be granted? [10] The decisive factor is whether it is in the interests of justice to grant the extension: see First Majestic Silver Corp. v. Santos , 2014 BCCA 214 at para. 57. [11] Mr. Stringer contends that when the oral reasons were pronounced, Justice Abrioux did not specify the particulars or indicate to whom costs were to be awarded. He says there was a lack of clarity on the costs issue. He contends that “in one sense the order in question was made on October 18. On the other hand, in the absence of the written reasons, and given the uncertainty as to the nature of the costs order, Mr. Stringer was not in a position to know until after October 28 whether there was any need to apply to vary the same”. He then goes on to suggest that the intention to appeal was crystallized very shortly after receiving the written reasons. Other parties were advised of the intention to apply to extend time on November 5, 2019 which was, he says, “at minimum eight days after the release of the decision, and at most 18 [sic] days after the oral pronouncement of the decision.” He contends that the delay is de minimus and that the hearing of this application has had no impact on nor caused any delay of the appeal proper. Finally, he argues that the issue on the proposed variation application is meritorious because s. 37 clearly establishes a no‑costs regime applicable to the application. [12] I am unable to accede to the submissions and for the following reasons would dismiss the application to extend time. [13] In the first instance, it is clear that the order is pronounced when it is made. Time began to run from October 18, 2019. At the conclusion of the reasons dismissing the applications, counsel made submissions about costs. It is clear that those submissions referred to the costs regime established by the Class Proceedings Act . [14] It seems clear to me that Mr. Stringer was aware from October 18, 2019 that he was subject to a costs award. Moreover, he had submitted that no costs could be awarded to any party by virtue of s. 37 of the Class Proceedings Act . In the circumstances, I do not think that any adequate explanation of the delay has been offered. The suggestion that he was in no position to evaluate his appeal rights is without merit, and ignores the fact that he did not file his application within the time stipulated even assuming time began to run when the oral reasons as transcribed were posted on the website. [15] Secondly, I am not persuaded that the proposed application has merit. The Court does not lightly interfere with a discretionary decision. It is uncontroversial that the standard of review on an application to discharge or vary a discretionary decision requires a demonstration that there has been an error in principle or the justice was wrong in the legal sense or the justice misconceived the facts or relevant information was not brought to the justice’s attention. I am not persuaded that the applicant has any reasonable prospect of persuading a division that Justice Abrioux erred in the manner described. [16] The implications of s. 37 were argued before the justice. That section contains exceptions to the general prohibition against awarding costs. Assuming, without deciding, that the section applies to the application before Justice Abrioux, a number of exceptions to it are set out in ss. 37(2). On my review of the record and the reasons for judgment, it is apparent that the order of costs is supportable under those exceptions. The reasons for judgment comment extensively on counsel’s conduct in asserting a lack of notice and expressly reject that assertion. [17] Justices are presumed to know the law. Given that the implications of s .37 were argued and a ruling made immediately thereafter, it must be accepted that the justice did not overlook s. 37. Since an application to vary is an application, in this case, to discharge or set aside the order it would need to be demonstrated that it was necessarily an error in principle to make it. This is the only plausible basis to attack the order. As I have said, I think the order is supportable as a result of the combined effect of the principle the justice expressly referred to and the exceptions to s. 37(1). [18] In my view, it is not in the interests of justice to extend time to apply to vary the order. This results from an absence of a satisfactory explanation for the delay in filing the application and the lack of merit in the proposed application to vary. [19] I would dismiss the application to extend the time to file the application. “The Honourable Mr. Justice Harris” I agree: “The Honourable Madam Justice Saunders” I agree: “The Honourable Madam Justice Dickson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Malak v. Hanna, 2020 BCCA 6 Date: 20200107 Dockets: CA44856; CA44858 Docket: CA44856 Between: Raoul Malak, Ansan Traffic Group Ltd., Ansan Industries Ltd. d.b.a. Ansan Traffic Control, Lanetec Traffic Control Inc., Western Traffic Ltd. d.b.a. Flaggirls Traffic Control, and Island Traffic Services Ltd. Respondents (Plaintiffs) And Philip Keith Jackman, Valley Traffic Systems Inc., and Trevor Paine Appellants (Defendants) And Remon Hanna Respondent (Defendant) Docket: CA44858 Between: Raoul Malak, Ansan Traffic Group Ltd., Ansan Industries Ltd. d.b.a. Ansan Traffic Control, Lanetec Traffic Control Inc., Western Traffic Ltd. d.b.a. Flaggirls Traffic Control, and Island Traffic Services Ltd. Respondents (Plaintiffs) And Remon Hanna Appellant (Defendant) Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Goepel The Honourable Madam Justice Griffin Supplementary Reasons to Malak v. Hanna , 2019 BCCA 106. Counsel for the Appellants, P.K. Jackman, Valley Traffic Systems Inc., and T. Paine T.J. Delaney Counsel for the Appellant, R. Hanna: D.W. Burnett, Q.C. Counsel for the Respondents: R.A. McConchie Written Submissions Received: November 6, 20, 26, and 29, 2019 Place and Date of Judgment: Vancouver, British Columbia January 7, 2020 Supplementary Reasons of the Court Summary: Application with respect to costs.  Four appellants were found jointly and severally liable for defamation.  Three of them appealed together and the fourth appealed separately.  The appeals, which raised different issues, were heard together and allowed in part.  The three appellants succeeded on most of their issues while the remaining appellant had very limited success.  A new trial was ordered on limited issues.  Held: As the three appellants were substantially successful they were entitled to costs on their appeal.  It was not appropriate to make the fourth appellant responsible for those costs by means of a Sanderson order or a Bullock order. Supplementary Reasons for Judgment of the Court: [1] In reasons for judgment indexed as Malak v. Hanna , 2019 BCCA 106, we dealt with two appeals brought by four appellants from a trial in which they were found jointly and severally liable with respect to numerous publications of defamatory statements.  The trial judge found those appellants had engaged in a campaign of vilification against the respondents, Raoul Malak and his companies. The first appeal was brought by Philip Keith Jackman, Trevor Paine, and Valley Traffic Systems Inc. (“VTS”) (CA44856).  Mr. Jackman owns VTS and Mr. Paine is its vice-president.  The second appeal was brought by Remon Hanna (CA44858).  The appeals were heard together.  Both were allowed in part. [2] These reasons concern the issue of costs in CA44856.  For convenience we will refer to the respondents in that appeal collectively as “Mr. Malak”. [3] Messrs. Jackman and Paine and VTS take the position they are entitled to costs on their appeal.  Mr. Malak takes the following alternative positions: (a)   as success was divided, the parties should bear their own costs; (b)   as a new trial was ordered on the basis of the adequacy of the trial judge’s reasons, the parties should bear their own costs; (c)    if Messrs. Jackman and Paine and VTS are entitled to costs, then costs should be apportioned on a percentage-of-success basis and set off; (d)   if Messrs. Jackman and Paine and VTS are entitled to costs, then a Sanderson order should be made against Mr. Hanna requiring him to pay those costs (see Sanderson v. Blyth Theatre Co. , [1903] 2 K.B. 533 (C.A.)); and (e)   if Messrs. Jackman and Paine and VTS are entitled to costs from Mr. Malak, then a Bullock order should be made against Mr. Hanna allowing Mr. Malak to recover those costs as a disbursement in CA44858 (see Bullock v. London General Omnibus Co. , [1907] 1 K.B. 264 (C.A.)). [4] In our reasons allowing the appeals in part, we: (a) set aside all the liability findings against Mr. Paine and VTS, and all but one of the liability findings against Mr. Jackman; and (b) ordered a new trial limited to whether VTS is vicariously liable for Mr. Hanna’s actions and whether Mr. Jackman and Mr. Paine are liable for those actions on the basis they participated with Mr. Hanna in a common design. [5] We consider this outcome to constitute substantial success by Mr. Jackman, Mr. Paine, and VTS.  It is well-established that a party that achieves substantial success on appeal is entitled to costs and that substantial success does not require success of all issues: Doucette v. McInnes , 2012 BCCA 235 at para. 19, 322 B.C.A.C. 170; Stein v. Stein , 2007 BCCA 187 at para. 8, 68 B.C.L.R. (4th) 104; Canadian Centre for Bio-Ethical Reform v. South Coast British Columbia Transportation Authority , 2018 BCCA 440 at paras. 4–6, 18 B.C.L.R. (6th) 375. [6] In support of his submission that the parties should bear their own costs, Mr. Malak cites Ciolli v. Galley , 2011 BCCA 106 at para. 34, 302 B.C.A.C. 15.  Ms. Ciolli was injured in several motor vehicle accidents and the damages actions she commenced were tried together.  This Court allowed the defendants’ appeals and ordered a new trial on the ground that the trial judge erred in not giving the jury an even-handed summary of the evidence or adequate instructions.  The Court further held that the “fairest course” was to order the parties to bear their own costs of the appeal.  However, as pointed out in Harder v. Poettcker , 2017 BCCA 107 at para. 8, 96 B.C.L.R. (5th) 242, the result in Ciolli was that the parties were returned to “square one”.  That is not the result of the appeal in the present matter. [7] As to a Sanderson or Bullock order, we would not exercise our discretion to make Mr. Hanna responsible for the costs awarded against Mr. Malak in CA44856.  This is because Mr. Hanna did nothing to warrant his having to pay those costs: see Grassi v. WIC Radio Ltd. , 2001 BCCA 376 at paras. 33, 89 B.C.L.R. (3d) 198; Moore v. Wienecke , 2008 BCCA 162 at paras. 44–50, (2008), 290 D.L.R. (4th) 509.  Of note is that the two appeals raised different issues.  The only common issues were the challenges to the findings of common design and vicarious liability.  However, in that regard, Mr. Hanna did no more than adopt the arguments advanced by Messrs. Jackman and Paine and VTS. [8] In the result, we order costs in favour of Messrs. Jackman and Paine and VTS in CA44856.  In addition, we order that Mr. Hanna is entitled to set off his costs relating to this application against the costs ordered against him in CA44858. “The Honourable Mr. Justice Frankel” “The Honourable Mr. Justice Goepel” “The Honourable Madam Justice Griffin”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: McKibbon v. BDO Canada Limited , 2020 BCCA 7 Date: 20200107 Docket: CA46145 IN THE MATTER OF THE BANKRUPTCY OF William Edward McKibbon Between: William Edward McKibbon Appellant (Bankrupt) And BDO Canada Limited, Dustin Joslin, and Stewart Rennie Respondents (Trustee) Before: The Honourable Madam Justice Garson (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated May 30, 2019 ( McKibbon (Re) , 2019 BCSC 848, Vernon Docket 52581). Counsel for the Appellant: A. Calvert Counsel for the Respondents: S.D. Dvorak Place and Date of Hearing: Vancouver, British Columbia November 22, 2019 Place and Date of Judgment: Vancouver, British Columbia January 7, 2020 Summary: The applicant applies for leave to appeal pursuant to s. 193(e) of the Bankruptcy and Insolvency Act on the question of whether fraudulent intent is required to revoke the discharge of a trustee under s. 41(8) of the Act . Held: Application granted. The applicant raises an arguable case on the question of statutory interpretation. Reasons for Judgment of the Honourable Madam Justice Garson: [1] Mr. McKibbon applies for leave to appeal pursuant s. 193(e) of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B‑3 [ BIA ]. He also seeks an order that the time to file and serve the notice of motion for leave to appeal and the motion book be extended to September 18, 2019. The respondents consent to the application for an extension of time but oppose the application for leave to appeal. [2] The underlying appeal is a challenge to an order discharging a trustee in bankruptcy. Mr. McKibbon submits that to revoke the discharge of a trustee in bankruptcy under s. 41(8) of the BIA, proof of fraudulent intent is not required to establish suppression or concealment of a material fact. His application was denied by a Supreme Court judge. I. Background [3] Mr. McKibbon made an assignment into bankruptcy on July 2, 2013. He was discharged from bankruptcy on February 24, 2016, after successfully fulfilling the terms of a conditional discharge order pronounced on January 4, 2016. The trustee in bankruptcy was discharged on November 5, 2016. [4] Mr. McKibbon proposes to file a civil claim against his former trustee in bankruptcy, the respondent BDO Canada Limited. Mr. McKibbon says that as a result of the conduct of his trustee he has been required to pay additional income taxes that should have been paid from the surplus funds in the bankruptcy, and, further, that owing to the misconduct of the trustee there was a delay in his discharge that resulted in his suffering a significant loss of income. He alleges that the trustee’s conduct amounts to suppression or concealment of a material fact. [5] The steps he must follow to commence a civil suit against his former trustee in bankruptcy are somewhat procedurally complex. On discharge of the trustee, s. 41(8) of the BIA provides for a release of all liability unless the discharge is revoked. Therefore, Mr. McKibbon must first satisfy the requirements of s. 41(8) in order to revoke the discharge. Absent a court‑ordered revocation, s. 41(8) is an absolute bar to civil liability of the trustee. If Mr. McKibbon is successful in obtaining an order revoking the discharge, he may then apply pursuant to s. 215 of the BIA for leave to commence an action against the trustee. In this case, Mr. McKibbon has commenced a proceeding under s. 41(8) and also one pursuant to s. 215. Counsel have agreed to proceed first under s. 41(8) as it may be dispositive of Mr. McKibbon’s proposed claim against his former trustee. It is the s. 41(8) application that is before me by way of an application for leave to appeal the dismissal of his s. 41(8) application before a Supreme Court chambers judge. A. Proceedings in the Court Below [6] Mr. McKibbon sought to revoke the discharge of his trustee pursuant to s. 41(8) in a hearing before Justice Hori in chambers. On May 30, 2019, in reasons indexed as McKibbon (Re) , 2019 BCSC 848, Justice Hori dismissed Mr. McKibbon’s application to revoke the trustee’s discharge. [7] As to the factual allegation underlying the claim, the chambers judge said: [13]      The applicant submits that when the trustee applied for a discharge it should have disclosed to the court the following facts but instead concealed and suppressed them for the purposes of obtaining a discharge: a)    that the surplus income had been incorrectly calculated by the trustee; b)    the method by which the trustee calculated the surplus income; and c)     that the trustee had erroneously prepared the applicant’s pre- and post- bankruptcy income tax returns. (the “Alleged Material Facts”) [8] At paras. 18 and 19 the chambers judge found there was no evidence of intentional conduct: [18]      Finally, there is no evidence from which I can conclude that the trustee’s failure to disclose the Alleged Material Facts was intentional. The applicant suggests that the failure to disclose was motivated by the trustee’s desire to avoid civil liability under the protection of section 41(8) of the Act . However, the evidence falls short of establishing this theory. There is no evidence that the trustee was concerned about civil liability before it applied for a discharge. There is no evidence that the trustee was put on notice that it should be concerned about civil liability before it applied for a discharge. The evidence is that the trustee had proceeded through this bankruptcy with the view that the surplus income calculations were done in the proper manner and that the income tax issues, which had been created by the Canada Revenue Agency, were corrected. [19]      Accordingly, I have concluded that there is no basis upon which any fraudulent intention that can be inferred on the part of the trustee in failing to disclose the Alleged Material Facts in its discharge application. Therefore, the application to revoke the trustee’s discharge is dismissed. [9] As for the legal test to revoke a discharge under s. 41(8), the chambers judge concluded that an applicant is required to establish that any suppression or concealment of facts by the trustee was done fraudulently: at paras. 8–10. [10] The chambers judge dismissed the application. Mr. McKibbon appeals this order. II. The Legislation [11] Section 41 of the BIA provides: 41 (1) When a trustee has completed the duties required of him with respect to the administration of the property of a bankrupt, he shall apply to the court for a discharge. (7) Nothing in or done under authority of this section relieves or discharges or shall be deemed to relieve or discharge a trustee from the results of any fraud. (8) The discharge of a trustee discharges him from all liability (a) in respect of any act done or default made by him in the administration of the property of the bankrupt, and (b) in relation to his conduct as trustee, but any discharge may be revoked by the court on proof that it was obtained by fraud or by suppression or concealment of any material fact. Section 193 of the BIA provides: 193 Unless otherwise expressly provided, an appeal lies to the Court of Appeal from any order or decision of a judge of the court in the following cases: (e) in any other case by leave of a judge of the Court of Appeal. III. Positions of the Parties [12] Mr. McKibbon submits that in order to revoke the discharge of a trustee in bankruptcy under s. 41(8), proof of fraudulent intent is not required to establish suppression or concealment of a material fact. Rather he submits that actual knowledge of an undisclosed material fact is sufficient to meet the test under s. 41(8). He suggests that s. 41(8) should be read in a somewhat bifurcated manner. The first part of the section provides that a discharge may be revoked if it was obtained by fraud. He says the second part of the section, “or by suppression or concealment of any material fact,” may be met by a lesser standard. [13] Mr. McKibbon acknowledges that a mere allegation of negligence would not meet the statutory test. But he says the fraud requirement does not modify the words “suppression or concealment of any material fact.” [14] He contends that at issue in the proposed appeal is a question of statutory interpretation: is proof of fraudulent intent required to establish “suppression or concealment of a material fact” for the purpose of s. 41(8) of the BIA ? If it is not, should this Court revoke BDO’s discharge on the basis of the correct legal test or order a new hearing? [15] The respondents submit that leave should not be granted. The respondents argue that motivating the application to revoke the discharge is a civil claim against the trustee that is now time barred (though Mr. McKibbon says it is not time barred because he has already filed the s. 215 application.) As a result, the trustee contends, there is no live controversy between the parties and the appeal has become moot. On this application, I am not able to reach any conclusion about whether the claim is barred by the effluxion of time and I would not decide the application on this basis. [16] The respondents further submit that the proposed appeal raises no issues of general importance to bankruptcy practice. They say the chambers judge followed law that has been settled for many years. [17] The respondents submit that the appeal has no merit because the decision of the chambers judge involved the exercise of discretion. The respondents also contend that there is nothing in the record to show that the discharge was obtained by fraud, suppression, or concealment of a material fact. [18] In a new argument not raised in the court below the respondents rely on s. 62 of the Bankruptcy and Insolvency General Rules , C.R.C., c. 368, for the proposition that because this was a summary administration (meaning that no court appearance was required to effect the discharge), any knowledge that Mr. McKibbon imputes to the trustee is not material. The respondents say that only two criteria are required to obtain the discharge, namely: 62 The trustee of the estate of a bankrupt under summary administration shall apply for taxation of the trustee’s accounts and for the discharge of the trustee by sending to the Division Office (a) the trustee’s final statement of receipts and disbursements, in prescribed form; and (b) the dividend sheet, showing the dividends paid or to be paid to the creditors of the bankrupt. [19] I would not decide the application on the basis of s. 62. IV. The Test for Leave [20] In Farm Credit Canada v. Gidda , 2015 BCCA 236 at para. 11 (Chambers), Justice Goepel citing Business Development Bank of Canada v. Pine Tree Resorts Inc. , 2013 ONCA 282 articulated the test for granting leave under s. 193(e) of the BIA . The test inquires whether the proposed appeal: a) raises an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole, and is one that this Court should therefore consider and address; b) is prima facie meritorious, and c) would unduly hinder the progress of the bankruptcy/insolvency proceedings. [21] Justice Goepel noted that these criteria are functionally identical to the general test for leave to appeal set out in Power Consolidated (China) Pulp Inc. v. British Columbia Resources Investment Corp. (1988), 19 C.P.C. (3d) 396 (B.C.C.A.), which direct an inquiry into: [1]        whether the point on appeal is of significance to the practice; [2]        whether the point raised is of significance to the action itself; [3]        whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and [4]        whether the appeal will unduly hinder the progress of the action. [22] In the general test for leave to appeal, the overarching concern is the interests of justice: Hanlon v. Nanaimo (Regional District) , 2007 BCCA 538 (Chambers) at para. 2. As per Justice Goepel in Farm Credit Canada , the two tests above are functionally identical, and this includes the requirement that I consider the interests of justice in an application for leave to appeal under s. 193(e) of the BIA . V. Analysis [23] I accept that the appeal is of significance to the parties and will not hinder the progress of the action as the bankruptcy is completed. The significance to Mr. McKibbon is that he says that not only was he required to pay additional income tax as a consequence of the conduct of the trustee, but additionally he lost significant income also attributable to the trustee’s conduct. [24] Mr. McKibbon submits that, due to uncertainty in the law, the proposed appeal is significant to the practice generally and provides this Court with an opportunity to offer an authoritative interpretation of s. 41(8) of the BIA . He submits that only two appellate decisions have considered s. 41(8) or its predecessors, and neither discusses the issue of interpretation raised in this proceeding: Lachapelle c. Verdier (1990), A.C.W.S. (3d) 286 (C.A.Q.) and Mann v. KPMG Inc. , 2001 SKCA 45. Mr. McKibbon argues that the interpretation of the chambers judge is based on a line of only three cases from the Superior Court of Quebec that adopt the reasoning in Re Harris : Ex parte Hasluck , [1899] 2 Q.B. 97, an English case that required an element of fraud: Delorme, (Sindic de) , 2011 QCCS 236; Denis, (Faillite de) , J.E. 99‑1919, 1999 CanLII 11481 (Q.C.C.S.); and Leclair c. Ginsberg, Gingras et associés Inc. , J.E. 88‑925, 1988 CarswellQue 1057 (C.S.Q.). Two other Canadian lower court decisions simply refused to find suppression or concealment without any discussion of the provision: Rodd v. Welton , 104 A.C.W.S. (3d) 626 (Ont. Sup. Ct.) and Alec Smith Decorating Ltd. v. Parkland School Division No. 63 (1982), 16 A.C.W.S. (2d) 154 (Sask. Q.B.). [25] The respondents submit that because the law has been settled for over a century, this proposed appeal raises no issue of general importance. [26] I turn to the evidentiary record in order to clarify the nature of the allegations that Mr. McKibbon proposes to advance. [27] In support of the application, Mr. McKibbon relies on his own affidavit and those of his wife. Mrs. McKibbon looked after Mr. McKibbon’s business and financial affairs. She recounts a difficult bankruptcy with many miscalculations and mistakes by the trustee concerning Mr. McKibbon’s tax liability. She alleges the trustee did not inform the court that there was a $10,000 discrepancy and further that the trustee was aware of this issue but failed to advise the court the taxes were in dispute. At paras. 74, 81, 82, and 83 of her second affidavit she says: 74.       Mr. Joslin also knew at the time of the hearing on January 4, 2016 that the estate was not realized or complete because there was still a $10,000 discrepancy in the 2013 taxes that has not been corrected. It is clear that if Mr. Joslin had been correct in his opinion that the amount owed to the 2013 post‑bankruptcy taxes was approximately $2,000 then this may not have made much difference in the final reconciliations, but he was not correct. The amount owed was closer to $10,000 and Mr. Joslin and BDO were responsible for the errors, the delays and the allocation of funds from the pre‑bankruptcy to the post‑bankruptcy. 81.       I understood that based on my correspondence and conversations with Mr. Joslin that he was at all times aware of the 2013 tax issues and discrepancies involved in the estate. 82.       To the best of my knowledge, and upon a review of the trustees’ Form 82 Report, and the Statement of Receipts and Disbursements, the trustee did not inform the court that there was a $10,000 discrepancy in the 2013 taxes that had not yet been corrected. 83.       Mr. Joslin was aware of this issue and he knew that a final calculation remained. Mr. Joslin reported to the court [t]hat this estate was realized and complete on the Form 82 even though the amount of the post‑bankruptcy taxes was still in dispute. [28] The chambers judge considered this evidence and held that there was no evidence from which he could conclude that the trustee intentionally failed to disclose material facts. [29] Mr. McKibbon raises an issue of statutory interpretation. He submits that if Parliament had not intended suppression or concealment to offer an alternative to fraud, it could have omitted the phrase as it did in s. 180(2) of the BIA , which provides for the annulment of a bankrupt’s discharge if “obtained by fraud.” Mr. McKibbon submits that, in his proposed test, suppression or concealment requires only that the applicant show that the trustee had actual knowledge of the material facts at issue. Mr. McKibbon says that here the trustee had actual knowledge of undisclosed material facts, namely that that the surplus income was incorrectly calculated and that income tax returns were erroneously prepared. Further, he says this is evidence of intentional conduct sufficient to meet the statutory test. [30] In saying that the trustee’s knowledge of the inaccuracy of the tax calculation is sufficient evidence to ground his legal argument that intentional conduct, even in the absence of fraud, he raises an arguable point. [31] I conclude that there is a prima facie argument on this basis and accordingly grant leave to appeal. VI. Disposition [32] The application to extend the time to apply for leave to appeal and to file the motion book to September 18, 2019 is granted. Pursuant to s. 193(e), leave to appeal is granted. “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Trans Mountain Pipeline ULC v. Mivasair, 2020 BCCA 8 Date: 20200107 Dockets: CA45950; CA45953 Between: Trans Mountain Pipeline ULC Plaintiff And David Mivasair, Bina Salimath, Mia Nissen, Corey Skinner (aka Cory Skinner), Uni Urchin (aka Jean Escueta), Arthur Brociner (aka Artur Brociner), Karl Perrin, Yvon Raoul, Earle Peach, Sandra Ang, Reuben Garbanzo (aka Robert Arbess), Gordon Cornwall, Thomas Chan, Laurel Dykstra, Rudi Leibik (aka Ruth Leibik), John Doe, Jane Doe, and Persons Unknown Defendants and Between: Regina Respondent And David Anthony Gooderham and Jennifer Nathan Appellants Before: The Honourable Madam Justice Fenlon (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated March 11, 2019 ( Trans Mountain Pipeline ULC v. Mivasair, Vancouver Docket S183541) . Counsel for the Appellants: L.B. McGrady, Q.C. Counsel for the Respondent: L.A. Ruzicka Counsel for the Proposed Intervenor Ecojustice Canada: H.J. Wruck K.J. Pepper-Smith Counsel for the Proposed Intervenor Greenpeace Canada: D.W. Klaudt Place and Date of Hearing: Vancouver, British Columbia December 18, 2019 Place and Date of Judgment: Vancouver, British Columbia January 7, 2020 Summary: The applicants, Ecojustice Canada and Greenpeace Canada, apply for leave to intervene in the underlying appeal arising out of criminal contempt convictions in connection with protests against the expansion of the Trans Mountain Pipeline. Held: applications dismissed. The proposed intervenors do not have a unique and different perspective that will assist the Court in the resolution of the issues and would instead expand the scope of the appeal. The applicants share the perspective of the appellants that the defense of necessity should be available to protesters in the context of civil disobedience because of the imminent perils of climate change. The applicants propose to focus on the expansion of the defence of necessity as it has been applied in some foreign jurisdictions. That is not the issue on appeal. The applicants would not assist the Court with the narrow ground of appeal raised by the appellants relating to the procedure to be followed on a Vukelich application. Reasons for Judgment of the Honourable Madam Justice Fenlon: [1] Ecojustice Canada Society and Greenpeace Canada apply for intervenor status in these appeals under Rule 36(1) of the Court of Appeal Rules , B.C. Reg. 297/2001. [2] An applicant seeking intervenor status must show either that it has a direct interest in the outcome of the proceeding or that it represents a public interest in a public law issue. Ecojustice and Greenpeace apply under the latter category. In allowing intervenors on the basis of public interest, the Court is attempting to ensure that important points of view are not overlooked: Ahousaht Indian Band and Nation v. Canada (Attorney General) , 2012 BCCA 330 at para. 5. [3] The following criteria must be considered on this application: i.        Does the proposed intervenor have a broad representative base? ii.        Does the case legitimately engage the proposed intervenor’s interests in the public law issue raised on appeal? iii.       Does the proposed intervenor have a unique and different perspective that will assist the Court in the resolution of the issues? iv.       Does the proposed intervenor seek to expand the scope of the appeal by raising issues not raised by the parties? British Columbia Civil Liberties Association v. Canada (Attorney General) , 2018 BCCA 282 at para. 14. These applications turn on the third and fourth criteria. Analysis [4] The underlying appeal arises out of criminal contempt convictions. David Anthony Gooderham and Jennifer Nathan were found to have intentionally breached a court order prohibiting interference with work on the expansion of the Trans Mountain Pipeline. They did so as part of a larger protest against the pipeline. [5] At trial both appellants sought to rely on the defence of necessity. That defence is available to an accused who can establish: i.     An imminent peril or danger; ii.    No reasonable legal alternative to the course of action undertaken, i.e., compliance with the law was demonstrably impossible; and iii.   Proportionality between the harm inflicted and the harm avoided. Perka v. The Queen , [1984] 2 S.C.R. 232 at 259; R. v. Latimer , 2001 SCC 1 at para. 28. [6] The defence of necessity is not a novel one. It has been considered in the context of civil disobedience on a number of occasions including logging protests ( MacMillan Bloedel v. Simpson (1994), 90 B.C.L.R. (2d) 24 (C.A.)) and abortion protests ( R. v. Watson (1996), 106 C.C.C. (3d) 445 (B.C.C.A.)). It is a defence that must be “strictly controlled and scrupulously limited”: Perka at 250, “restricted to those rare cases in which true ‘involuntariness’ is present”: Latimer at para. 27. The Supreme Court has recognized that if the criteria for the defence are loosened or approached purely subjectively, “necessity would ‘very easily become simply a mask for anarchy’”: Latimer at para. 27. [7] The judge in the present case heard a number of related contempt of court trials prior to hearing those of the appellants. In the earlier trials he had rejected the defence of necessity: Trans Mountain Pipeline ULC v. Mivasair , 2018 BCSC 874. The appellants therefore applied for leave to raise the defence and to lead evidence relating to that defence. They also sought leave to raise a s. 7 Charter breach which characterized the Trans Mountain Pipeline as imperiling the appellants’ and all citizens’ right to life, liberty and security of the person . [8] The judge conducted a hearing to determine whether the necessity defence and the s. 7 challenge should be allowed to proceed. He did so in accordance with R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.), as described in R. v. Cody , 2017 SCC 31: [38]      … [T]rial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily ( R. v. Kutynec (1992), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” ( Jordan , at para. 63). [Emphasis added.] The judge dismissed the applications, finding there was no prospect of success. His reasons for judgment are indexed at 2019 BCSC 50. [9] The within appeal is brought from the judge’s refusal to allow the appellants to lead evidence on and assert the defence of necessity. The appellants raise one narrow ground of appeal which is described in their factum at para. 58: In summarily ruling that the defence of necessity had no reasonable prospect of success, Affleck J. erred in law in failing to apply the Vukelich procedures to the Appellants’ application for leave to lead defence evidence [footnotes omitted]. That error in procedure is said to be the judge’s failure to assume the truth of the facts the appellants would seek to establish in support of the defence, which include: · That the rapidly advancing warming of the earth and the resulting impacts on natural systems and human livelihoods constitute an imminent peril; · That to have a chance to avoid these dire outcomes the annual level of global emissions would have to be reduced on a massive scale starting no later than 2020; · That the expansion of Canada’s oil sands production will materially contribute to global oil production and emissions; and · That the pipeline will facilitate that increase in oil sands production. [10] The appellants say that instead of assuming the truth of these facts in conducting the Vukelich assessment of whether the defence of necessity had an air of reality, the judge drew an inference unsupported by the evidence to conclude that the appellants would not be able to demonstrate that a clear and imminent peril exists. They point to the following passage in the judge’s reasons: [55]      On the evidence the applicants seek to offer, rising global temperatures, to a level that is catastrophic to life, is a process that has been happening over many decades. Despite a historical lack of initiative to curb emissions over these same decades, adaptive societal measures may be taken to prevent such a dire outcome. Whether government, private industry, and citizens take these measures is a contingency that takes these consequences outside of “virtual certainty” and into the realm of “foreseeable or likely” ( Latimer , at para. 29). Thus, it cannot be said that the objective element of the modified objective test is satisfied. [Emphasis added.] [11] Ecojustice and Greenpeace wish to intervene to support the extension of the defence of necessity to cases of civil disobedience, and in particular environmental protests. At the hearing, they acknowledged that their applications contained duplication, so they tendered a letter setting out more precisely the particular areas each would focus on if granted intervenor status: Ecojustice will advance the following unique and useful submissions that: 1.         Judicial and public institution recognition of the perils caused by climate change, with a focus on international law and foreign jurisprudence; and 2.         The imminent peril element of the necessity defence in environmental harm cases as considered in foreign jurisdictions. Greenpeace will advanced the following unique and useful submissions that: 1.         Foreign jurisprudence has recognized environmental necessity defences generally, including how denying defendants the ability to raise evidence and argument on these defences impacts the right to raise a defence; 2.         Climate change harms recognized by Canadian and foreign jurisprudence should be considered when assessing the no reasonable legal alternatives and proportionality elements of a necessity defence; and 3.         Foreign jurisprudence has recognized the efficacy of civil disobedience as a consideration in assessing necessity defences, particularly, when assessing reasonable legal alternatives. [12] Despite the applicants’ efforts to distinguish their proposed contributions, it is evident that they would both focus to a considerable extent on foreign jurisprudence on the defence of necessity in the context of civil disobedience. Both would also focus on the particular harms inherent in climate change. At one point counsel for Ecojustice said they would “supplement the record,” although he subsequently clarified that they would rely on the existing record, but would put before the Court further foreign jurisprudence and secondary sources such as academic articles and U.N. reports on climate change. [13] The appellants’ factum does not rely on foreign jurisprudence. Present counsel informed the Court that he has not relied on it because in his assessment that jurisprudence is not persuasive. He also said it was not an area in which he had particular expertise. Ecojustice and Greenpeace submit that they would thus be presenting a unique and useful perspective. They emphasize that they have particular expertise with foreign law and the development of the defence of necessity and are uniquely qualified to explain that jurisprudence to the Court. They say this Court has permitted intervenors to argue foreign jurisprudence in cases such as Araya v. Nevsun Resources Ltd., 2017 BCCA 402 (Chambers) and Equustek Solutions Inc. v. Google Inc. , 2014 BCCA 448 (Chambers) . [14] With respect, I am not persuaded by these submissions. The focus of the proposed intervenors is on the expansion of the defence of necessity as it has been applied in some foreign jurisdictions—but whether the defence should be extended to civil disobedience is not the issue on appeal. The issue is, rather, whether the judge erred in the Vukelich hearing by failing to assume that the facts asserted by the appellants could be established. If granted leave to intervene the applicants would therefore expand the scope of the appeal. [15] Further, even if the applicants’ broader submissions were relevant to an issue on appeal, they do not have a unique and different perspective. Their perspective is that the defence of necessity should be available to the appellants and other protesters because of the perils of climate change and the imminence of those perils. That perspective is exactly that of the appellants who, in the Vukelich application, described the type of evidence they would lead in support of the defence of necessity as follows: [10] i.          To call evidence concerning the growth of oil sands production in Canada to 2030 and the projected increase of CO2 and other greenhouse gas (GHG) emissions accompanying that growth; the significance of the Trans Mountain Expansion project in facilitating that growth; and related evidence about whether the resulting increase in oil sands emissions is consistent with Canada meeting its 2030 reduction target; ii.         Evidence concerning whether Canada’s projected expansion of oil sands production to 2030 and 2040 is consistent with keeping global average surface warming below the 2°C threshold; iii.         Evidence concerning the Trans Mountain Expansion approval process, including the (i) National Energy Board (NEB) inquiry report May 19, 2016 recommending approval of the project, (ii) the Trans Mountain upstream emissions assessment report dated November 25, 2016, and (iii) the Ministerial Panel report November 1, 2016, showing that prior to the Order in Council authorizing the project of November 29, 2016, no public inquiry process addressed or answered questions about whether the growth of oil sands emissions to 2030 can be consistent with meeting Canada’s commitments under the Paris Agreement or whether the projected expansion of oil sands production to 2040 is consistent with keeping warming well below the 2°C threshold; iv.        Evidence concerning the current level and projected increase of global GHG emissions to 2030, the rising atmospheric carbon concentration level and the relationship between that increase and warming, the current rate of warming, and the impacts of warming and related changes in the earth’s climate system, the severity of the impacts that have already occurred and are occurring, and the projected impacts to 2030 and after; [16] The appellants further particularized that proposed evidence in 80 paragraphs quoted by the judge at para. 11 of his reasons. It suffices for the purpose of these intervenor applications to include only the headings under which the various categories of evidence were organized: · Global emissions, atmospheric carbon, and warming · Mitigation and the global emissions gap · Impacts · The National Energy Board (NEB) · Upstream emissions review · The Ministerial Panel · Political activity to avoid the peril · Political activity subsequent to November 29, 2016 · Belief on reasonable grounds [17] In my opinion, the applicants have not “found the narrow niche to be occupied by an intervenor”: Squamish Nation v. British Columbia (Environment ), 2019 BCCA 65 at para. 28 (Chambers). Ecojustice and Greenpeace share the perspective of the appellants on climate change, the need for civil disobedience given the magnitude and imminence of the perils of climate change, and the applicability of the defence of necessity to this and other comparable cases. More importantly, they would not assist the Court with the narrow ground of appeal raised by the appellants relating to the procedure to be followed on a Vukelich application. [18] I would accordingly dismiss the applications for leave to intervene. “The Honourable Madam Justice Fenlon”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Genworth Financial Mortgage Insurance Company Canada v. Doan, 2020 BCCA 27 Date: 20200108 Docket: CA46332 Between: Genworth Financial Mortgage Insurance Company Canada Respondent (Petitioner) And Scott Lawson Doan Appellant (Respondent) Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Abrioux On an application to vary:  An order of the Court of Appeal for British Columbia, dated October 18, 2019 ( Genworth Financial Mortgage Insurance Company of Canada v. Doan , 2019 BCCA 350, Vancouver Docket CA46332). Oral Reasons for Judgment Counsel for the Appellant: J.E. Shragge Counsel for the Respondent: R. Wilson M. Wilson Place and Date of Hearing: Vancouver, British Columbia January 8, 2020 Place and Date of Judgment: Vancouver, British Columbia January 8, 2020 Summary: Application to vary an order made by a single justice in chambers that an order confirming a sale is a limited appeal order under R. 2.1 of the Court of Appeal Rules.  Held: Application dismissed.  The order was made under R. 21‑7 of the Supreme Court Civil Rules [foreclosure and cancellation] even though an order absolute had been obtained in the foreclosure proceeding. [1] TYSOE J.A. :  The applicant, Scott Lawson Doan, applies under s. 9(6) of the Court of Appeal Act , R.S.B.C. 1996, c. 77, to vary an order made by a single justice of this Court in chambers on October 18, 2019.  The justice held that the order the applicant wishes to appeal is a limited appeal order under R. 2.1 of the Court of Appeal Rules , B.C. Reg. 297/2001, on the basis that it was granted under R. 21‑7 [foreclosure and cancellation] of the Supreme Court Civil Rules , B.C. Reg. 168/2009.  Mr. Doan therefore required leave of the Court to appeal the order, and the justice concluded that it was not in the interests of justice to grant leave. [2] The order which Mr. Doan wishes to appeal is an order made by Master Dick on July 24, 2019, approving a sale of property owned and occupied by Mr. Doan.  The sale has completed and the property is now registered in the name of the third‑party purchaser. [3] The property was subject to a mortgage granted by Mr. Doan in favour of the Scotia Mortgage Corporation and insured by the respondent, Genworth Financial Mortgage Insurance Company Canada (“Genworth Financial”).  Default was made under the mortgage in January 2016, and Scotia Mortgage Corporation commenced a foreclosure proceeding.  On October 28, 2016, Scotia Mortgage Corporation obtained an order nisi , as well as an order for conduct of sale effective December 5, 2016.  The amount required to redeem the mortgage at the time was approximately $174,000 plus interest at the approximate rate of 3%. [4] The property was listed for sale at a listing price of approximately $210,000.  An offer of $170,000 was received, but it was not accepted. [5] In November 2016, Genworth Financial paid the amount owed to Scotia Mortgage Corporation and took an assignment of the mortgage and the foreclosure proceeding.  On November 29, 2017, Genworth Financial was substituted as the petitioner in the foreclosure proceeding, and it also obtained an order absolute at the same time.  Mr. Doan appealed the order absolute in the Supreme Court but, before the appeal was heard, the parties entered into an agreement dealing with the appeal and listing of the property for sale. [6] The agreement was contained in a letter dated July 3, 2018, from Genworth Financial’s lawyer to Mr. Doan.  It was agreed that Mr. Doan’s appeal would be dismissed, that Mr. Doan would be entitled to list the property for sale for approximately three months and that, if an offer in an amount sufficient to pay off the  mortgage was not received by September 30, 2018, Genworth Financial would “proceed with listing the Property for sale under its conduct of sale order.”  The agreement also provided that if Mr. Doan did not cooperate with Genworth Financial’s realtor or was in breach of other terms of the agreement, it would file the order absolute in the land title office. [7] No suitable offer was received by Mr. Doan, and Genworth Financial re‑listed the property for sale.  It accepted an offer in the amount of $185,000 and applied within the foreclosure proceeding for court approval of the sale. [8] On July 24, 2019, Master Dick approved the sale at the $185,000 offered price.  She noted that the property had been appraised to have a value of $205,000 as at April 30, 2019, but given the marketing history, she concluded that the offer was provident.  Master Dick also noted that Mr. Doan would have to come up with close to $210,000 to retain the property.  In light of the fact that Genworth Financial could not have sought to recover any shortfall from Mr. Doan if it had “acted on the order absolute,” Master Dick made it a term of the order approving the sale that Genworth Financial was barred from pursuing Mr. Doan on his personal covenant for any shortfall on the mortgage loan. [9] Mr. Doan filed a notice of application for leave to appeal, and the matter came on before the chambers judge on September 20, 2019.  At the hearing, Mr. Doan took the position that leave to appeal was not required for three reasons, and if leave to appeal was required, it was an appropriate case for leave to be granted. [10] In reasons for judgment dated October 18, 2019, and indexed as 2019 BCCA 350, the chambers judge held that leave to appeal was required and that it was not in the interests of justice to grant leave.  She rejected Mr. Doan’s arguments that Master Dick’s order was made under R. 13‑5 [sales by the court] of the Supreme Court Civil Rules , rather than R. 21‑7, because: (a) the foreclosure proceeding had come to an end when the order absolute was granted; (b) the sale was made pursuant to the letter agreement dated July 3, 2018; and (c) the notice of application for the order approving the sale stated that Genworth Financial was relying on R. 13‑5 as well as R. 21‑7. [11] The chambers judge went on to consider the usual factors for determining whether it was in the interests of justice to grant leave to appeal.  She concluded that it was not in the interests of justice to grant leave because Mr. Doan had not provided evidence challenging the providence of the sale and any deficiency in the form of the evidence relied upon could be remedied upon a further application.  She also considered it to be of great significance that title to the property had vested in a bona fide purchaser for value before Mr. Doan filed his notice of application for leave to appeal. [12] The standard of review on an application to vary or discharge an order of a justice under s. 9(6) of the Court of Appeal Act is well established.  The division hearing the application will interfere with the decision of the chambers judge only if the judge was wrong in law, or wrong in principle, or misconceived the facts: Haldorson v. Coquitlam (City) , 2000 BCCA 672 at para. 7. [13] On this review application, Mr. Doan reiterates the first of his arguments that the order approving the sale could not have been made under R. 21‑7 because the order absolute brought the foreclosure proceeding to an end and the court was functus officio. In that regard, he relies on decisions such as Federal Business Development Bank v. F.J.H. Construction Ltd. (1988), 50 D.L.R. (4th) 105 (B.C.C.A.), and Harrison v. Harrison , 2007 BCCA 120. [14] Mr. Doan says the chambers judge erred by rejecting this argument on the basis the proceeding is not at an end upon the granting of an order absolute because the mortgagor is still entitled to apply to reopen the foreclosure proceeding for the purpose of redeeming the mortgage.  He submits that this is an exceptional equitable remedy which is available only to mortgagors and that Genworth Financial is not entitled to rely on it for the purpose of requiring leave to appeal to be obtained. [15] In my opinion, the flaw in Mr. Doan’s argument is that he conflates the issue of whether the order was made in the foreclosure proceeding and the issue of whether the court should not have made the order for lack of jurisdiction.  There can be no doubt that the order was made in the foreclosure proceeding.  The application was made by Genworth Financial within the foreclosure proceeding pursuant to the order for conduct of sale granted in the foreclosure proceeding, and the order was made by Master Dick pursuant to that application.  It is clear from Master Dick’s reasons (dated July 24, 2019, and indexed as 2019 BCSC 1521) that she was exercising her power under R. 21‑7(9) to confirm a sale on an application of a person having conduct of sale in a foreclosure proceeding.  Whether she erred in exercising that power for lack of jurisdiction is a different issue. [16] There was no proceeding other than the foreclosure proceeding in which the order could have been made.  Master Dick was not exercising the power of the court to vest title to the property in the purchaser under R. 13‑5(7) in another proceeding because conduct of sale had not been granted in any other proceeding. [17] In determining whether the order was a limited appeal order, the issue is whether the order was granted under R. 21‑7.  It is not an issue, as Mr. Doan would have it, of whether the order should have been granted under R. 21‑7.  That latter issue goes to the merits of the appeal, not to the threshold issue of whether leave is required. [18] A somewhat analogous situation occurred in Mission Creek Mortgage Ltd. v. Angleland Holdings Inc. , 2013 BCCA 347.  In that case, the appellant wished to appeal an order nisi on the basis that the foreclosure proceeding was null and void because notice had not been given under s. 21 of the Farm Debt Mediation Act , S.C. 1997, c. 21.  This Court held that leave to appeal was required because the issue of whether the Supreme Court had the ability to make the order nisi was a matter that was determined under R. 21‑7.  As in the present case, the Court decided that the issue was whether the order was granted under R. 21‑7, not whether the appellant had an argument that the Supreme Court did not have the jurisdiction to grant the order. [19] In my view, it is not necessary to address the arguments made by Genworth Financial that an order absolute is not a final order and that the letter agreement dated July 3, 2018, altered the effect of the order absolute.  Nor is it necessary to consider whether leave to appeal should have been granted because Mr. Doan is not challenging the exercise of discretion by the chambers judge in refusing to grant leave, presumably because he is not able to point to any error made by her in the exercise of the discretion. [20] In conclusion, Mr. Doan has not demonstrated that the chambers judge erred in her conclusion that the order approving the sale was a limited appeal order within the meaning of R. 2.1.  I would dismiss his application. [21] BAUMAN C.J.B.C. :  I agree. [22] ABRIOUX J.A. :  I agree. [23] BAUMAN C.J.B.C. :  The application to vary is dismissed. [Submissions by counsel re: stay] [24] BAUMAN C.J.B.C. :  We would extend the stay to 5:00 p.m. on January 22, 2020. “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Holland, 2020 BCCA 16 Date: 20200109 Docket: CA46262 Between: Regina Respondent And Zsuzsanna Holland Appellant Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Abrioux On appeal from:  Orders of the Supreme Court of British Columbia, dated May 13, 2019; June 3, 2019; September 4, 2019; and September 6, 2019 ( R. v. Holland , Kamloops Docket 105848). Oral Reasons for Judgment The Appellant, appearing in person (via Teleconference): Z. Holland No one appearing on behalf of the Respondent Place and Date of Hearing: Vancouver, British Columbia January 9, 2020 Place and Date of Judgment: Vancouver, British Columbia January 9, 2020 Summary: The appellant filed four notices of appeal, which were referred to this Court by the Registrar for summary determination under s. 685(1) of the Criminal Code . Held: Appeals dismissed. Three of the notices are interlocutory decisions in criminal proceedings, which this Court lacks jurisdiction to review. The remaining notice is moot. [1] BAUMAN C.J.B.C. : Ms. Holland has filed four notices of appeal in the Registry of this Court. The Registrar has referred them to this division for summary determination under s. 685(1) of the Criminal Code , R.S.C. 1985, c. C‑46. [2] Three of the notices of appeal are these: · December 4, 2019 — in respect of a ruling made by Justice Donegan in Kamloops, Supreme Court file no. 105848; · December 9, 2019 — in respect of a ruling made by Justice Donegan in the same matter; and · December 23, 2019 — in respect of a ruling made by Justice Donegan, again, in the same matter. [3] These orders are interlocutory within a proceeding charging Ms. Holland with offences under the Criminal Code , for which she is currently awaiting trial. [4] For the reasons of Justice DeWitt-Van Oosten in R. v. Holland , 2019 BCCA 417, these putative appeals cannot proceed for want of jurisdiction. They are quashed. [5] Ms. Holland, along with Fanny Stump, also filed a so-called amended notice of appeal in respect of rulings made on November 21 and 25, 2019 in Kamloops Supreme Court file no. 105679, which apparently involves an accused named R. Charles Bryfogle and his appeal from conviction and sentence in provincial court. [6] Ms. Holland and Fanny Stump have no standing in that appeal and cannot purport to appeal rulings made in that case. In any event, one of the decisions in the application they seek to appeal involves habeas corpus in respect of Mr. Bryfogle. That is moot as Mr. Bryfogle has served his sentence and is not, to our knowledge, currently in custody. That appeal is also quashed. [7] TYSOE J.A. : I agree. [8] ABRIOUX J.A. : I agree. “The Honourable Chief Justice Bauman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Tallio, 2020 BCCA 14 Date: 20200109 Docket: CA44096 Between: Regina Respondent And Phillip James Tallio Appellant Restriction on publication :  Portions of this file are sealed or subject to publication bans in orders dated October 24, 2017, November 7, 2017, November 8, 2017, July 23, 2019, and August 8, 2019. A publication ban has been imposed restricting the publication, broadcasting or transmission in any way of the name and address of the residence the appellant will reside at during his judicial interim release. Further orders or directions may be issued pursuant to the November 8, 2017 order. FILE SEALED IN PART Before: The Honourable Madam Justice Bennett (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated November 1, 1983 ( R. v. Tallio , Prince Rupert Docket 74/83). Oral Reasons for Judgment Counsel for the Appellant: T.M. Arbogast R.M. Barsky K. Kirkpatrick, Articled Student Counsel for the Respondent: M.T. Ainslie, Q.C. J.A.M. Dickie Counsel for the Intervenor, Marion Bolton: S.J. Rauch Place and Date of Hearing: Vancouver, British Columbia January 8, 2020 Place and Date of Judgment: Vancouver, British Columbia January 9, 2020 Summary: Mr. Tallio re-applies for bail pending his appeal. Held: Application granted. The proposed release plan is sufficient to protect public safety. [1] BENNETT J.A. : Phillip Tallio brings his second application for judicial interim release pending appeal. For the reasons that follow, I would grant the application. [2] On August 9, 2019, I refused Mr. Tallio’s first application in reasons indexed at 2019 BCCA 300. These reasons should be read in conjunction with those reasons. My main concern when I refused release was that the facility where he planned to reside could not provide sufficient supervision for him. [3] The Crown opposes his release. [4] This application is based on the John Howard Society accepting Mr. Tallio into one of its facilities. I have a complete affidavit, and heard evidence regarding the sufficiency of the supervision and programming available. I am satisfied that the John Howard Society will provide sufficient supervision of Mr. Tallio to protect the public safety. As a result, I am satisfied that the requirements for judicial interim release found in s. 679(3) of the Criminal Code , R.S.C. 1985, c. C‑46 have been met. In order to satisfy the public safety aspect of the public interest component, a number of conditions will be imposed as terms of his release. The conditions have generally been agreed to by the parties. [5] Thus, I order Mr. Tallio’s release on a recognizance in the amount of $10,000 without deposit or surety with the following conditions: a) You must keep the peace and be of good behaviour. b) You must report to a bail supervisor no later than January 10, 2020 at Abbotsford Community Corrections at 2865 Cruickshank Street, Abbotsford, British Columbia, and thereafter once per week in person, or otherwise as directed by your bail supervisor. c) You must reside at [residence name and address redacted], Abbotsford, British Columbia. You must abide by all of the rules and regulations required by [the residence]. If you are expelled from [the residence], or no longer reside there for any reason, you will surrender forthwith into police custody. d) You are to go directly to [the residence] upon your release, in the company of your lawyer, a John Howard Society staff member or a Correctional Service of Canada employee. e) You shall not leave the Province of British Columbia. f) You will notify your bail supervisor and seek their permission before participating in any volunteer activity or obtaining employment. If you are granted permission by the bail supervisor to volunteer or work, you will provide a copy of this release document to a supervisor of the volunteer organization and/or your employer. You will immediately notify your bail supervisor if you are no longer volunteering or employed. g) You shall have no contact directly or indirectly, including by social media, with Marion Bolton or her family known to you, nor with Blair Mack or his family known to you, except through legal counsel. h) You are not to be in the presence of any person under the age of 16 years, unless accompanied by or in the presence of an adult at all times. You will not attend any public swimming area, community centre, daycare centre, school ground or playground where persons under the age of 16 years are present or can reasonably be expected to be present, except with the written permission of your bail supervisor, which you will carry with you. i) You must not go to Bella Coola, Bella Bella or Hagensborg, British Columbia. j) You must not consume alcohol or any illegal substances. k) You must not be in possession of any weapons, including knives, except for the preparation of or eating food, or for the purposes directly related to your employment. l) You shall obey the following curfew by being in the residence, which includes the exterior property of the residence, except for medical emergencies, or with the bail supervisor’s written permission which must be carried with you: i. between the hours of 12:00 p.m. and 7:00 a.m. for the first thirty days of your release; ii. between the hours of 2:00 p.m. and 7:00 a.m. for the next thirty days of your release; iii. between the hours of 4:00 p.m. and 7:00 a.m. for the next thirty days of your release; and iv. after the first 90 days of your release, between the hours of 9:00 p.m. and 7:00 a.m. m) You must present yourself at the door of the above-noted residence when asked by a bail supervisor or peace officer. n) You must comply with the reporting requirements of [the residence], and report as and when directed to them, and by them. o) You must carry a copy of this release document with you at all times when outside your residence. p) You must have meetings as directed by [the residence] staff to ensure the progress and development of a Resident Action Plan and counselling program. q) Having consented, you shall continue to receive trauma counselling from Sandra Dykstra, which is funded through Indian and Northern Affairs Canada, or you shall work with [the residence] to locate and utilize a different counsellor if Ms. Dykstra is unable to provide continued counselling services. r) You shall not travel into the City of Vancouver, British Columbia unless accompanied by a John Howard Society staff member, or other person approved by your bail supervisor in writing, which you will carry with you, or with your counsel. s) You shall surrender into custody at 9:00 a.m. on March 30, 2020 to the Sheriff’s office at the Law Courts at 800 Smithe Street, Vancouver, British Columbia. “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Hall, 2020 BCCA 9 Date: 20200110 Docket: CA45793 Between: Regina Respondent And Joshawa James Michael Hall Appellant Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Fenlon The Honourable Mr. Justice Fitch On appeal from:  An order of the Supreme Court of British Columbia, dated February 10, 2017 (conviction) ( R. v. Hall , 2017 BCSC 246, New Westminster Docket X079493). Counsel for the Appellant: M. Reinhart Counsel for the Respondent: J.A. Dyck Place and Date of Hearing: Vancouver, British Columbia December 9, 2019 Place and Date of Judgment: Vancouver, British Columbia January 10, 2020 Written Reasons by: The Honourable Mr. Justice Fitch Concurred in by: The Honourable Chief Justice Bauman The Honourable Madam Justice Fenlon Summary: On appeal from conviction, the appellant argues that the trial judge: (1) misapprehended evidence; (2) committed a Beaudry error by unreasonably addressing a conflict in the evidence; (3) failed to consider whether details provided by a Vetrovec witness were fed to the witness by police; and (4) erred in principle in her Vetrovec analysis. Held: Appeal dismissed. First, the judge did not misapprehend the evidence, but concluded that inconsistencies in the evidence of the Vetrovec witness did not fatally undermine her assessment of the witness’s credibility or reliability. In any event, the alleged errors did not play an essential role in the reasoning process leading to the convictions. Second, the judge’s finding that the appellant was the shooter does not betray a fundamental flaw in her reasoning process as is required to make out a Beaudry error. The judge recognized the conflict in the evidence but did not ascribe to it the significance the appellant would have liked. Third, in the absence of an evidentiary foundation it cannot be successfully argued for the first time on appeal that the judge erred in failing to address a speculative theory that the witness’s evidence was tainted by police procedures. Finally, there was a considerable body of evidence the judge was entitled to regard as confirmatory of the testimony of the Vetrovec witness that the appellant was the perpetrator of the offences. Reasons for Judgment of the Honourable Mr. Justice Fitch: I.   Introduction [1] In the early morning hours of May 19, 2014, a residence on Alderson Avenue in Coquitlam, British Columbia was targeted in a drive‑by shooting. At least six shots were fired at the house. No one was injured. Between 6:30 and 7:30 a.m. on the same day, the window of a ground floor apartment on Brunette Avenue in Coquitlam was smashed. The resident of that apartment was roused by the sound of breaking glass and discovered that a rifle had been thrown through the window and onto her living room floor. The Crown alleged that the appellant was responsible for offences arising out of these two incidents. [2] Identity was the central issue at trial. Proof of identity turned largely on the judge’s assessment of the credibility and reliability of the evidence of Samantha Fenton, an unsavoury witness to whom the principles in Vetrovec v. The Queen , [1982] 1 S.C.R. 811 applied. [3] Ms. Fenton was abusing drugs at the time of the offences. She worked for the appellant in the drug trade. She testified that she drove the appellant (and others) to the scene of both offences in her silver PT Cruiser. Her evidence on this point was inconsistent with an exculpatory statement she gave to the police that she was not present when any of the offences were committed and that her vehicle had been used by the appellant and others that evening without her permission. She admitted lying to the police about not being present when the offences were committed. She had an obvious motive to do so. [4] With respect to the Alderson Avenue shooting, Ms. Fenton testified that she drove west on Alderson and parked her PT Cruiser in front of a residence. It was common ground at trial that the residence was located on the north side of Alderson Avenue. On Ms. Fenton’s account, the passenger side of the vehicle faced the residence. Ms. Fenton testified that, after she stopped her vehicle, the appellant discharged a rifle at the residence through the open window of the front passenger seat. Her account of the drive‑by shooting was inconsistent with other evidence adduced at trial in two potentially significant ways. [5] First, Ms. Fenton testified that she drove west on Alderson away from the scene after the shooting stopped. Alain Boire, who also lived on the north side of Alderson Avenue near the home targeted in the shooting, testified that he heard gunshots in the early morning hours, looked out his window and saw a vehicle resembling a PT Cruiser travelling east away from the scene. If Ms. Fenton drove to and from the scene by travelling east along Alderson Avenue, the appellant could not have discharged the rifle out of the front passenger seat as he would have been facing the south side of Alderson Avenue. [6] Second, Ms. Fenton’s evidence that the appellant discharged the rifle after she stopped her vehicle was inconsistent with the evidence of Sgt. Mackenzie, the forensic identification officer who took photographs of the scene. Sgt. Mackenzie testified that the bullet trajectories were such that, at some point, the shooter was moving. [7] On February 10, 2017, the appellant was convicted by a judge of the Supreme Court of British Columbia of four offences arising out of these two incidents: · two counts of committing mischief by wilfully damaging the residences located on Alderson Avenue and Brunette Avenue, contrary to s. 430 of the Criminal Code , R.S.C. 1985, c. C‑46 [ Code ]; · one count of intentionally discharging a firearm into or at a place [the Alderson Avenue residence] knowing or being reckless as to whether another person was present in that place, contrary to s. 244.2(3)(b) of the Code ; and · one count of careless use of a firearm, contrary to s. 86(1) of the Code — a count that was conditionally stayed by the trial judge. [8] The appellant appeals his convictions on four grounds: 1.        That the judge misapprehended the evidence of Sgt. Mackenzie that at some point the Alderson Avenue shooter was moving . In summarizing Sgt. Mackenzie’s evidence, the judge said he testified that the shooter “ might have been moving ” (emphasis added); 2.        That the judge committed the type of error identified in R. v. Beaudry , 2007 SCC 5, by addressing the conflict in the evidence between Ms. Fenton and Mr. Boire in an unreasonable fashion; 3.        That the judge erred by failing to consider whether certain details provided by Ms. Fenton in her testimony which were relied on to confirm her account may have been fed to her by the police; and 4.        That the judge erred in law in her Vetrovec analysis by failing to confine her consideration of confirmatory evidence to evidence that restored faith in the salient part of Ms. Fenton’s account — specifically, that the appellant was the person who committed the offences. The fourth ground of appeal was not pressed in oral argument, but neither was it abandoned. [9] The common thread linking all four grounds of appeal is that the judge made errors in finding that the evidence of Ms. Fenton was an independently confirmed and reliable account of the appellant’s responsibility for the offences underlying the two incidents. [10] The appellant seeks an order allowing the appeal, setting aside the conviction and directing a new trial. [11] For the reasons that follow, I am unable to give effect to the appellant’s grounds of appeal. I would, therefore, dismiss the appeal from conviction. II.  Chronology of Events [12] I will review only so much of the evidence as is necessary to address the grounds of appeal. 1.  Alderson Avenue [13] Isabella Franco lived with her mother and other family members in the upper level of the Alderson Avenue residence. She had purchased drugs from the appellant in the past. In a Facebook exchange with the appellant that occurred in August 2013, the appellant demanded payment from Ms. Franco for drugs supplied to her. When she said she would not or could not pay, the appellant said, “[I] always get paid”. He also said that if she did not pay, “[t]hen ur [ sic ] mom will pay end of story”. [14] In the late evening hours of May 18, 2014, the appellant attended at the apartment of Caleb Sorenson, who occupied the lower level of the Alderson Avenue residence. Mr. Sorenson knew and recognized the appellant from school. He testified that the appellant opened his basement suite door and discharged a can of bear spray in his face. He said the appellant’s visit was unexpected and that he could offer no motive for the appellant’s assaultive conduct. [15] Ms. Fenton testified that just before midnight on the evening of May 18, 2014, the appellant asked her to give him a ride so he could confront someone who owed him money. He directed her to a residence in a neighbourhood she was unfamiliar with. She parked “right in front of the house.” Ms. Fenton testified that the appellant and another person walked up the driveway to a door on the right side of the house. She testified that she “believed” that the side door was under a carport. In fact, the door to Mr. Sorenson’s suite is located on the front of the right‑hand side of the house, immediately adjacent to the carport. The door to Mr. Sorenson’s suite is not under the carport. I would note, however, that anyone parking directly in front of the house would likely have their view of the door to the basement suite obstructed by a clump of bushes located at the front of the house on the right‑hand side. In any event, Ms. Fenton testified she heard a knock at the door, saw a light come on and heard the sound of the door being kicked. The appellant and the other person then returned to the vehicle talking about what they had just done. Ms. Fenton testified the appellant and the other person were excited and talking about mace or bear spray. [16] The police and ambulance personnel were dispatched to the scene. The discharge of bear spray affected not just Mr. Sorenson but occupants of the upper level of the Alderson Avenue residence. [17] Before the commencement of the trial, the appellant pleaded guilty to assault with a weapon arising out of this incident. The trial judge recognized that the probative value of the guilty plea was limited to the context it provided in understanding events that followed. Specifically, this evidence linked the appellant to the Alderson Avenue residence just hours before the drive‑by shooting occurred. It was capable of establishing not only the appellant’s animus towards the occupants of the residence, but that he had acted on that animus just a few hours before the drive‑by shooting. The appellant’s counsel does not dispute that the circumstances giving rise to the plea were also capable of being used as evidence confirming Ms. Fenton’s implication of the appellant in the drive‑by shooting committed in relation to the same residence a few hours later. [18] Ms. Fenton testified that shortly after the bear spray incident, the appellant asked her to drive him and others back to the same residence on Alderson Avenue. She did so and parked with the passenger side of the PT Cruiser closest to the house. On Ms. Fenton’s evidence she would have parked on the north side of Alderson Avenue facing west. She said a long gun was passed by someone in the back of the vehicle to the appellant who was sitting in the front passenger seat. She saw the appellant fire the gun at the residence. She testified that she heard the gun being discharged once but believed it was fired multiple times based on the length of time they sat in her vehicle in front of the house. Ms. Fenton testified that she was in shock, her adrenaline was flowing and that with “what was going on I couldn’t really -- I was just focused on the area more than what was going on inside my vehicle.” She said she sped away from the scene after the shooting by travelling west on Alderson Avenue. She said she was sure about this. She said she turned left at the appellant’s direction after leaving the scene and travelled south down a hill and away from Alderson Avenue. That is the extent of her evidence on the route she took from the scene. [19] As noted earlier, her testimony on this issue was inconsistent with the observations of Mr. Boire. Mr. Boire lived on the north side of Alderson Avenue about 66 feet east of the residence targeted in the drive‑by shooting. He testified that on May 19, 2014, at about 3:00 a.m., he was awakened by a rapid succession of five or six bangs. Midway through the succession of bangs he went to a window that looks out on Alderson Avenue. He did not see anything immediately. He testified that a dormer on his house blocks his view to the west. Shortly thereafter, he saw a vehicle that was shaped like a PT Cruiser pass by his house heading east. The vehicle only came into view when it was directly in front of his house. It stopped briefly and then sped off. [20] Sgt. Mackenzie identified six bullet holes on the exterior of the Alderson Avenue residence and on a vehicle parked in the driveway. Although he had not been qualified to give expert opinion evidence, Sgt. Mackenzie gave evidence in examination in chief and on cross‑examination on the trajectory of the bullets. He surmised that, at some point, either the shooter was moving or there was more than one shooter. [21] Ms. Fenton testified that the appellant asked her to drive him back to the same residence on Alderson Avenue about 30 minutes later “to see if … there was any … action going on”. She testified that when they drove past the Alderson Avenue residence for the third time, she saw ambulance and police vehicles outside. It was common ground at trial that Ms. Fenton’s evidence on this point could not be accurate. The ambulance and police vehicles that attended the residence after the appellant discharged the bear spray had cleared the scene by this time. 2.  Brunette Avenue [22] Ms. Fenton testified that at about 6:00 a.m. the same morning, she drove the appellant and another person to an area off Brunette Avenue to buy cigarettes and have breakfast. She testified the appellant got out of her vehicle, ran up to the lower left side of an apartment building on Brunette Avenue and smashed a window. She described the building as derelict and light grey in colour. She did not see the appellant in possession of a rifle as he ran towards this building. [23] Lyla Mervyn lived in an apartment on Brunette Avenue in May 2014. She testified that the appellant left her a drunken voicemail message on May 18, 2014, in which he threatened to burn down her building. Subsequently, the appellant and Ms. Mervyn engaged in an exchange of profane and mutually insulting text messages. [24] Ms. Mervyn testified that a window of her ground floor apartment was broken between 6:30 and 7:00 a.m. on the morning of May 19, 2014. As noted earlier, when she got up to investigate she found a rifle on her living room floor. [25] The appellant’s fingerprints were found on the rifle thrown through the window of Ms. Mervyn’s apartment. The appellant was further connected to the rifle by an exchange of text messages he had with a friend on May 14, 2014. In that exchange, the appellant complained that he was in possession of a gun with some kind of brass circle that jammed the barrel. The rifle seized from Ms. Mervyn’s apartment had a brass fitting in the barrel which prevented it from being fired. [26] The rifle seized from Ms. Mervyn’s residence was not the rifle used in the drive‑by shooting on Alderson Avenue. 3.  The Appellant’s Position at Trial [27] The appellant did not testify at trial. [28] It was put to Ms. Fenton in cross‑examination that she was never at the scene of these offences and that the exculpatory version of events she initially related to the police was true. It was suggested to her that in implicating the appellant she was parroting back information about the offences she learned from others. [29] In closing submissions made on his behalf, the appellant suggested that Ms. Fenton was not present when the offences were committed or, if she was, her evidence implicating the appellant in the commission of the offences was unconfirmed and could not be relied on as proof beyond a reasonable doubt that he was the perpetrator. [30] With respect to the Alderson Avenue shooting, defending counsel emphasized Sgt. Mackenzie’s evidence that, “the shooter may have been moving.” He invited the judge to contrast Sgt. Mackenzie’s evidence with the evidence of Ms. Fenton that the vehicle was stationary when the appellant shot at the residence. He also highlighted the discrepancy in the evidence given by Ms. Fenton and Mr. Boire as to the direction the PT Cruiser was travelling when it left the scene. III. Reasons for Judgment [31] In oral reasons for judgment indexed as 2017 BCSC 246, the judge concluded that Ms. Fenton’s evidence was “the only evidence capable of proving the identity of the accused as the perpetrator” and that her evidence must meet the standard of proof beyond a reasonable doubt. [32] In addressing the credibility of Ms. Fenton and the reliability of her trial testimony, the judge cited Vetrovec and R. v. Khela , 2009 SCC 4, before coming to the following conclusions: [ 78] Ms. Fenton’s description of the house on Alderson Avenue, while vague, was not generic. She was correct about the location of the driveway at the right hand side of the house and the door to the basement suite situated more or less under a carport. [79] Ms. Fenton’s description of Ms. Mervyn’s apartment building was quite specific. She said it was grey and derelict looking, which is accurate. She also correctly identified the location of the window that she said she saw the accused break. [80] I am satisfied that those details and the details about Alderson Avenue were not lucky guesses, nor were they the product of someone telling her what they had done rather than her seeing it for herself. There was sufficient detail from her about the appearance of the two residences to provide some confirmation of her account. [81] I acknowledge Ms. Fenton mixed up the second and third visits to the house, as her evidence conflicts with the evidence of Cst. Chiu that when he attended the house in response to the gunshot complaint he did not recall ambulance or other emergency personnel. [82] Ms. Fenton’s evidence of how she drove away from the house after the shooting also conflicts with the evidence of Mr. Boire, who saw the PT Cruiser‑like vehicle eastbound, not westbound. The witness said that after the first shot she was not focussed on what was going on in the car; she was in shock. [83] I am not satisfied these inconsistencies are fatal to reliance on her evidence or leave me with reasonable doubt, in light of the other confirmatory evidence I have accepted. [84] I find further confirmation of Ms. Fenton’s evidence in the rifle seized from Ms. Mervyn’s residence. Ms. Fenton did not see the accused take a rifle out of her car, but she was aware he went up to a building and smashed a window. I find the rifle that landed in Ms. Mervyn’s living room was the same one the accused was lamenting about in his text exchange with [his friend], the one with the brass circle showing and no hole. His fingerprints were on it. [85] While I agree with Mr. McMurray that it does not make much sense for the accused to throw a rifle into Ms. Mervyn’s house when he knows it likely has his fingerprints on it, I accept the rifle made its way into the house either as a projectile to break the window or a blunt instrument to break the window, following which it was launched into the house. [86] Finally, Ms. Fenton testified that the accused told her he wanted to confront someone who either owed him money or it had something to do with drugs, he was referring to the dated drug debt owed him by Ms. Franco, or his unsatisfactory communications with Ms. Mervyn, or both. I appreciate the debt owed by Ms. Franco was dated but not, I find, forgotten. [87] The question I must ask myself is whether, to paraphrase the words of Mr. Justice Fish at para. 15 of R. v. Khela , I find the evidence elsewhere in the dance to provide sufficient comfort that Ms. Fenton was telling the truth about the accused’s involvement ... I am satisfied there is evidence to confirm materials [ sic ] parts of her account and her evidence satisfies me beyond a reasonable doubt that the accused was the perpetrator of the acts ... [Emphasis added.] IV. Analysis 1.  The alleged misapprehension of the evidence of Sgt. Mackenzie [33] The appellant submits that the judge misapprehended Sgt. Mackenzie’s evidence by saying he testified that the shooter might have been moving. Sgt. Mackenzie testified the Alderson Avenue shooter would have been moving. The appellant argues that this alleged misapprehension is material because Sgt. Mackenzie’s opinion contradicted Ms. Fenton’s testimony that the car was stationary when the shooting occurred. [34] I am not persuaded by the appellant’s position on this point. [35] The standard an appellant must meet to obtain relief on misapprehension of evidence grounds is high: R. v. Lohrer , 2004 SCC 80 at para. 2; R. v. Webber , 2019 BCCA 208 at para. 27. The error must be plainly identified. It must also be material in the sense that it formed a central element of the trial judge’s reasoning process that led to a conviction. One way of determining whether the misapprehension played an essential role in the reasoning process resulting in a conviction is to consider whether striking it from the judgment would leave the reasoning on which the conviction is based on unsteady ground: Lohrer at paras. 6–9; R. v. Sinclair , 2011 SCC 40 at paras. 53, 56. [36] With these principles in mind, I begin by noting that the judge’s summary of Sgt. Mackenzie’s evidence mirrored the summary of that evidence given by defending counsel in his closing submissions. [37] More importantly, I am not persuaded that the reasons for judgment have been shown to reflect a misapprehension of Sgt. Mackenzie’s evidence. After the impugned passage, the judge turned to consider the reliability of Ms. Fenton’s account and whether there existed independent evidence tending to confirm her identification of the appellant as the Alderson Avenue shooter. In doing so, she recognized the defence position that “[t]he shot pattern is consistent with the shooter moving, whereas Ms. Fenton said the car was stationary” (emphasis added). This passage demonstrates that the judge did not misapprehend the evidence on this issue. Rather, she concluded that this and other inconsistencies were not fatal to her reliance on Ms. Fenton’s evidence in light of the other evidence that confirmed her account and implicated the appellant in the commission of the offences. In my view, that is a factual finding to which deference is owed. [38] Further, even assuming that the judge misapprehended Sgt. Mackenzie’s evidence, I am not persuaded that the alleged error has been shown to have played an essential role in the reasoning process leading to the convictions. [39] There was a substantial body of independent evidence relied on by the judge to confirm Ms. Fenton’s testimony that the appellant was the perpetrator of the Alderson Avenue offences. That evidence included the appellant’s attendance at the residence earlier in the evening when he assaulted Mr. Sorenson. The appellant’s conduct on this occasion was not only powerful evidence demonstrating his animus towards the residents of the building, but evidence of his preparedness to act on that animus a few hours before the drive‑by shooting. In addition, the judge found that the drug debt owed by Ms. Franco, who lived in the Alderson Avenue residence, had not been forgotten. This evidence supplied the appellant with a motive for the commission of the offences. [40] As I would not give effect to this ground of appeal for the reasons stated, I need not address the Crown’s position that Sgt. Mackenzie’s evidence respecting the trajectory of the bullets fired at the residence was inadmissible because he had not been qualified to give opinion evidence on this point. [41] The appellant also suggested in oral argument that the judge misapprehended Ms. Fenton’s evidence as to the location of the door leading to Mr. Sorenson’s basement suite. As noted earlier, Ms. Fenton testified that the appellant went to a side door at the front of the house on the right side. As to the precise location of the door, she said, “I believe [it] was under a little carport.” In fact, the door was adjacent to the carport on the right side of the front of the house. [42] In dealing with this evidence, the judge said Ms. Fenton was correct about the door to the basement suite being situated “more or less under a carport.” I do not regard this as a misapprehension of Ms. Fenton’s evidence, let alone a significant one. Put simply, I do not consider it reasonable to suppose that this alleged inconsistency had a material bearing on the trial judge’s reasoning process, either standing alone or in combination with her alleged misapprehension of the evidence of Sgt. Mackenzie. 2.  The alleged Beaudry error [43] With respect to the Alderson Avenue shooting, the appellant submits that the judge committed a Beaudry error by failing to address in a reasonable way the contradictory evidence given by Ms. Fenton and Mr. Boire about the direction the PT Cruiser was travelling as it left the scene. [44] The appellant’s argument rests on the judgment of Justice Fish in Beaudry at paras. 83 and 97. Justice Fish concluded that an appellate court may find a verdict to be unreasonable if the trial judge has made a finding of fact essential to the verdict that is not logically supported by the evidence upon which it purports to rest, or because the reasons given in support of a verdict are fundamentally incompatible with evidence that has not been contradicted or rejected. Justice Fish dissented in the result in Beaudry , but any doubt that his judgment reflected the holding of the Court on this point was dispelled in R. v. Sinclair , 2011 SCC 40. Although Fish J. also dissented in the result in Sinclair , his articulation in that case of the circumstances in which a Beaudry error is committed is authoritative: [19]      Illogical or irrational reasoning can render verdicts unreasonable under s. 686(1)( a )(i) of the Code , in various ways. Beaudry identifies two. First, a verdict is unreasonable where the judge draws an inference or makes a finding of fact essential to the verdict that is “plainly contradicted by the very evidence from which it was drawn” or upon which it has been made to rest (para. 105). In that case, the essential finding is illogical or unreasonable in light of the evidence relied upon in making the finding. Here, the rule of law speaks the language of logic: From accepted evidence “X”, a court cannot lawfully infer “not X”. [21]      A verdict is likewise unreasonable where the judge draws an inference or makes a finding of fact essential to the verdict if that inference or finding of fact is “‘demonstrably incompatible’ with evidence that is neither contradicted by other evidence nor rejected by the trial judge” ( Beaudry , at para. 79, per Binnie J.). (See also R. v. R.P ., 2012 SCC 22 at para. 9.) [45] I understand the appellant to rely on the second way in which a verdict may be unreasonable pursuant to Beaudry . This route to an unreasonable verdict requires an appellant to demonstrate that a finding of fact essential to the verdict was demonstrably incompatible with evidence that was neither contradicted nor rejected by the trial judge. To succeed on Beaudry grounds, an appellant must do more than show that a particular factual finding or inference is the product of a flaw in the trial judge’s reasoning process. It must be shown that the flaw played a central role in the reasoning process that led to a conviction: R. v. Scuby , 2015 BCCA 430 at para. 31; R. v. Zadeh , 2016 BCCA 474 at para. 27. [46] Appellate intervention on “ Beaudry grounds” will be rare: Sinclair at para. 22; Zadeh at paras. 25–27, R. v. Ali , 2013 BCCA 346 at para. 17. As Justice Bennett noted in Ali , the decisions in Sinclair and Beaudry are not an invitation to appellate dissection of reasons for judgment. A similar point was made in R. v. Thla Ceu , 2018 BCCA 480 at para. 43: The Beaudry / Sinclair error is narrow; it captures only findings of fact or inferences essential to the verdict that are plainly contradicted by the evidence relied on by the trial judge or incompatible with evidence not otherwise contradicted or rejected by the judge. ... Evidence is often contradictory, and it is the trial judge’s job to make sense of the evidence and to make findings despite contradictory evidence. [47] I am not persuaded that the verdict is unreasonable in the Beaudry sense. While the judge did not reject the evidence of either Mr. Boire or Sgt. Mackenzie, her factual finding that the appellant was the shooter was not the product of a fundamentally flawed reasoning process that is demonstrably incompatible with the evidence of these two witnesses. [48] The critical question the judge had to decide was whether the evidence established beyond a reasonable doubt that the appellant was the shooter. She was obliged to consider evidence that confirmed and undermined Ms. Fenton’s testimony that he was, including the evidence of Mr. Boire. The judge did so and concluded, in light of the other confirmatory evidence she accepted, that the discrepancies in Ms. Fenton’s account did not fatally undermine the reliability of her evidence or give rise to a reasonable doubt about whether the appellant committed the shooting. [49] In coming to this conclusion, the judge did not make a finding of fact that Ms. Fenton drove west away from the scene (contrary to Mr. Boire’s evidence) nor did she make a finding of fact that all of the shots were fired from the front passenger seat (contrary to Sgt. Mackenzie’s opinion). The judge accepted that after the first shot was fired, Ms. Fenton was in a state of shock and not focused on what was going on in the car. I take from this that the judge accepted Ms. Fenton was in a panicked state and may have been wrong about the particulars of the shooting, including how she drove away from the scene. [50] In my view, the judge’s factual finding that the appellant was the Alderson Avenue shooter does not betray a fundamental flaw in her reasoning process of the narrow kind contemplated by Beaudry. She was entitled to conclude that Ms. Fenton, in her panicked state, may have been wrong about some of the events surrounding the shooting, but accept her evidence that the appellant was the person who discharged the weapon at the Alderson Avenue residence. [51] In sum, the judge did not ignore the conflicts in the evidence between Ms. Fenton on the one hand and Mr. Boire and Sgt. Mackenzie on the other. Neither did she make a specific factual finding inconsistent with evidence she did not reject. She recognized the discrepancies, but did not ascribe to them the significance the appellant would have liked. That, in my view, is not a Beaudry error. Accordingly, I would not give effect to this ground of appeal. 3.  The alleged failure to consider whether Ms. Fenton had been supplied with confirmatory evidence by the police [52] The appellant submits that the judge erred by failing to consider whether Ms. Fenton’s generally accurate description of the Alderson Avenue residence and Brunette Avenue apartment building was the product of information that had been supplied to her by the police. The appellant notes that Ms. Fenton acknowledged being shown a photograph of Ms. Mervyn’s apartment on Brunette Avenue for the purposes of identifying the window she said was broken by the appellant. He submits that it is a reasonable inference Ms. Fenton may also have been shown photographs of the Alderson Avenue residence that enabled her to give a generally accurate description of that residence. [53] The appellant acknowledges that this evidence was not developed nor was the point pursued at trial. Ms. Fenton was never asked whether she had been shown a photograph of the Alderson Avenue residence. [54] Despite the gaps in the record and the fact that the appellant’s trial counsel did not pursue this line of inquiry, the appellant now submits that the judge had an independent obligation to consider whether Ms. Fenton’s ability to describe the Alderson Avenue residence targeted in the drive‑by shooting was tainted by police procedures. The appellant goes further to suggest that the judge’s failure to consider the point constitutes a misapprehension of evidence on a material issue. I do not agree. [55] In my view, and in the absence of an evidentiary foundation permitting assessment of this issue, it cannot successfully be argued that the judge erred in failing to deal with what amounts to a speculative theory advanced for the first time on appeal. I would not give effect to this ground of appeal. 4.  The alleged error in applying Vetrovec to the evidence of Ms. Fenton [56] The appellant argues that the evidence relied upon by the judge to confirm Ms. Fenton’s account that the appellant was the perpetrator of the offences was, at most, evidence capable of confirming only that she was present at the time the offences were committed. The appellant submits that this evidence was not confirmatory evidence implicating him in the commission of the offences. In essence, the appellant submits that the judge erred in her application of Vetrovec principles to this case by failing to consider whether the confirmatory evidence restored faith in Ms. Fenton’s testimony that the appellant was the perpetrator . [57] The appellant’s submission on this point focuses once again on the Alderson Avenue shooting. In my view, it has little, if any application to the mischief committed in relation to the apartment on Brunette Avenue. Ms. Fenton’s evidence that the appellant committed the offence on Brunette Avenue was powerfully confirmed by evidence linking him to the rifle thrown through Ms. Mervyn’s window. [58] I would not accede to this ground of appeal. [59] First, the appellant argued at trial that Ms. Fenton lied under oath about being at the scene of these offences. In this context, it was open to the judge to consider evidence that confirmed Ms. Fenton’s testimony that she was present at the relevant time. [60] Second, the judge did not simply focus on evidence that confirmed aspects of Ms. Fenton’s testimony in ways unrelated to the appellant’s responsibility for the offences. The judge considered a significant body of evidence that she was entitled to regard as confirmatory of Ms. Fenton’s testimony that the appellant was the perpetrator of the offences committed in relation to the Alderson Avenue residence. This is confirmed by the trial judge’s concluding remarks which I will repeat for convenience: [87]      The question I must ask myself is whether, to paraphrase the words of Mr. Justice Fish at para. 15 of R. v. Khela , I find the evidence elsewhere in the dance to provide sufficient comfort that Ms. Fenton was telling the truth about the accused’s involvement I am satisfied there is evidence to confirm materials [ sic ] parts of her account and her evidence satisfies me beyond a reasonable doubt that the accused was the perpetrator of the acts [Emphasis added.] V.  Conclusion [61] For the foregoing reasons, and despite the able advocacy of Ms. Reinhart, I would dismiss the appeal. “The Honourable Mr. Justice Fitch” I AGREE: “The Honourable Chief Justice Bauman” I AGREE: “The Honourable Madam Justice Fenlon”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Henderson v. Mawji, 2020 BCCA 43 Date: 20200113 Dockets: CA46535; CA46536 Docket: CA46535 Between: Nicole Christine Henderson Appellant (Plaintiff) And Gulzar Mawji Respondent (Defendant) - and - Docket: CA46536 Between: Nicole Christine Csurdi Appellant (Plaintiff) And Katelyn Bannon Respondent (Defendant) Before: The Honourable Madam Justice Garson (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated October 31, 2019 ( Csurdi v. Bannon , 2019 BCSC 2280, New Westminster Dockets M193837 and M172624). Oral Reasons for Judgment Counsel for the Appellant: T.P. Harding Counsel for the Respondents: D.J. Sinnott Place and Date of Hearing: Vancouver, British Columbia January 8, 2020 Place and Date of Judgment: Vancouver, British Columbia January 13, 2020 Summary: The appellant applies to extend time to serve notices of appeal in two related actions. Held: Applications dismissed. The appellant concedes that the only point of the appeal is to argue that an evidentiary ruling from the trial below should not bind a new trial. However, previous evidentiary rulings do not bind new trials. As a result, the proposed appeal lacks merit. [1] GARSON J.A. : These are applications before a single justice in chambers to extend time to serve notices of appeal in two related actions. The notices of appeal were served four days late. [2] The appellant in both actions is the same person. She now uses the name Nicole Christine Henderson. [3] The criteria that govern this application to extend time pursuant to s. 10(2)(d) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, are set out in Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R. (2d) 256 at 259–260 (C.A.) : 1. Was there a bona fide intention to appeal? 2. When were the respondents informed of the intention? 3. Would the respondents be unduly prejudiced by an extension of time? 4. Is there merit in the appeal? 5. Is it in the interest of justice that an extension be granted? [4] The merits threshold asks whether the appeal is “doomed to fail,” or, alternatively, whether “it can be said with confidence that the appeal has no merit”: Stewart v. Postnikoff , 2014 BCCA 292 at paras. 5– 6 (Chambers) . [5] The final factor “encompasses the other four questions and states the decisive question”: Davies at 260. As a result, the merit of an appeal is also considered at that stage. In A Solicitor v. The Law Society of British Columbia , 2018 BCCA 163 at para. 37, Bennett J.A. held that it “is not in the interests of justice to permit a meritless appeal to go forward.” [6] It is only the fourth and fifth criteria that are of concern in this application. [7] The underlying appeal is from an order in two personal injury actions. The trial judge pronounced a mistrial. As a result of the mistrial, the jury was discharged, and the judge ordered a new trial. The question that arises on these facts is whether there is any utility to the appeals. [8] The appellant contends that in the trial the judge ruled that certain evidence concerning the plaintiff’s history of childhood abuse was irrelevant, prejudicial, and therefore inadmissible. The appellant says the point of the appeal is to argue that the judge erred in his ruling and, importantly, that the ruling should not bind or carry forward to the new trial. [9] Apart from the appellant’s concern about the implications of the evidentiary ruling on the new trial, the appellant concedes there is no point to the appeal. [10] The other criteria in Davies , as to the appellant’s intention to appeal, notice to the respondents, and lack of prejudice to the respondents, are all satisfied. As I said, the extension is only for four days. Counsel for the applicant concedes that on appeal his only claim for relief is a new trial, and that Justice Mayer has already ordered a new trial. But he says underlying that order for a new trial is an erroneous evidentiary ruling. He is concerned that the judge hearing the new trial will be bound by the evidentiary rulings made at the trial that ended in a mistrial. The respondents say there is no utility to this appeal and the extension ought not to be granted. Because an appeal is from an order and not reasons, I conclude, and agree with the respondents, there is no utility and, hence no merit, to the appeal. [11] The appeal is also ill‑conceived because the underlying evidentiary rulings do not bind the new trial judge. [12] In Coulter v. Ball , 2007 BCSC 720, Goepel J. (as he then was) explained the law as it pertains to a new trial following a successful appeal : [ 19 ]      Where a new trial is ordered, the judge presiding at the new trial is not bound by findings made at the first trial. A new trial is wholly independent of the first: Bobolas & another v. Economist Newspaper Ltd. , [1987] 3 All E.R. 121 (C.A.). [ 20 ]      At a new trial, all questions of fact in regards to the issues retried are at large and are to be considered afresh: Lewis v. Cook and Akenhead , [1950] 4 D.L.R. 136 (B.C.C.A.). The issues are considered tabula rasa . The parties may raise any issue pled regardless of the position taken at the first trial: Confederation Life Insurance Co. v. Woo (1994), 123 Sask. R. 150 (C.A.). [13] Lewis v. Cook and Akenhead , [1950] 4 D.L.R. 136 (B.C.C.A.), mentioned by Goepel J. in Coulter and followed in Confederation Life Insurance Co. v. Woo (1994), 48 A.C.W.S. (3d) 1019 (Sask. C.A.), provides the following guidance on the effect of a new trial: [11]      We are all of the opinion that the only order we can make is that there should be a new trial. We are of the opinion that the learned Judge who may take the second trial is, and should be, absolutely untrammelled by any decision of the learned Judge who took the first trial, and on that I wish to refer to two cases. The first case is Roe v. Naylor (1918), 87 L.J.K.B. 958, 119 LT 259. The Master of the Rolls said at p. 963: Counsel for the appellants sought to rely upon some finding of the Judge in the first trial of the action. In my opinion, he is not entitled to do that. This action was sent for a new trial, and the second trial superseded the first, and any finding in the first action was got rid of when the action was sent for a new trial. [12]      Now that refers apparently to a finding of fact. The next case I am about to state refers to a question of law — Venn v. Tedesco , [1926] 2 K.B. 227, 95 L.J.K.B. 866. McCardie J. said at p. 237: Such is the view I must take of the main point of law argued before me, but I ought, ere concluding this judgment, to refer briefly to another point raised on the plaintiff's behalf—namely, that, inasmuch as the defendants' counsel, at the first trial of this action before the Lord Chief Justice and a special jury, stated that he did not seek to rely on the Public Authorities Protection Act, 1893 , he was therefore precluded from raising the point before me on the second trial of the action. I am unable to agree with that contention. The point was one of law only. It involved no evidence, and the facts on the point were not only admitted, but were actually pleaded in the statement of claim itself. There is, I think, no estoppel in the matter. The trial before me was a de novo hearing, and the defendants were entitled to raise before me the point pleaded in their statement of defence. My recollection is that this question has been decided by the Court of Appeal as I now decide it, though I am unable to find a reported decision on the matter. The cases quoted in the Annual Practice , 1926 ed., p. 1154, tend, I think, to support the view I now express. [14] I agree with Goepel J. in Coulter and can see no reason why these same principles would not apply equally in respect of an evidentiary ruling at a new trial following a mistrial (as opposed to an appeal). [15] Similarly, although not binding, in a criminal context guidance may be found in R. v. Hilson , [1958] O.R. 665 (C.A.). The court allowed an appeal from a murder conviction on the basis of errors in the jury charge and remitted the matter for a new trial. In so doing, it noted that it found no error in the trial judge’s decision to admit a confession. Nevertheless, it cautioned that this ruling was not binding on the retrial: at paras. 3–4. [16] That principle was endorsed in R. v. Duhamel , 1981 ABCA 295 at para. 23, aff’d, [1984] 2 S.C.R. 555. In R. c. Cliche , 2010 QCCA 408, Beauregard J.A. considered whether Hilson and Duhamel applied in respect of a retrial following a mistrial, as opposed to an appeal. He found no principled reason for distinguishing between the two situations, at paras. 13–17. [17] Edwards J. also appears to have reached the same conclusion in H.M.T.Q. v. Dempsey , 2001 BCSC 371 at para. 7, where he applied Hilson in relation to a retrial following a mistrial. [18] Parenthetically, I recognize that in relation to criminal matters, Cliche and Dempsey have been overtaken by legislative developments. In 2011, the Criminal Code , R.S.C. 1985, c. C‑46 was amended to include s. 653.1: Mistrial — rulings binding at new trial 653.1 In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented. [19] Parties to a retrial are entitled to reframe their case. They may choose to adduce different evidence and advance different legal arguments, subject only to the limitations imposed by their pleadings and the doctrine of abuse of process. In those circumstances, the analysis of relevance, materiality, and probative value of a given piece of evidence may be fundamentally different than in the previous trial. The reasoning in the criminal authorities to which I have referred, while not directly applicable, is persuasive. [20] It follows that I would, in these circumstances, dismiss the applications for the extension of time on the grounds that there is no merit or utility in the appeals and, consequently, it is not in the interests of justice that either of these applications for extensions of time be granted. Disposition [21] The applications in both appeals to extend time to serve notices of appeal are dismissed. Both appeals stand dismissed. “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Hernandez-Lopez, 2020 BCCA 12 Date: 20200114 Docket: CA45577 Between: Regina Respondent And Milton Gilberto Hernandez-Lopez Appellant Restriction on publication: A publication ban has been imposed under section 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainant and witness referred to in this judgment by the initials AD. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Groberman The Honourable Madam Justice Fisher On appeal from:  An order of the Supreme Court of British Columbia, dated August 3, 2017 ( R. v. Hernandez-Lopez , 2017 BCSC 2555, New Westminster Docket No. X079453). Counsel for the Appellant: M.E. Sandford, Q.C. A. Tolliday Counsel for the Respondent: J.R.W. Caldwell Place and Date of Hearing: Vancouver, British Columbia September 3, 2019 Place and Date of Judgment: Vancouver, British Columbia January 14, 2020 Written Reasons by: The Honourable Mr. Justice Groberman Concurred in by: The Honourable Chief Justice Bauman The Honourable Madam Justice Fisher Summary: The appellant, who was supervising a daycare, was alleged to have engaged in sexual touching of AD, a four-year-old child. The only evidence dealing with the touching came from AD; the appellant did not testify. The judge did not hear expert evidence on the assessment of child evidence, nor was any academic literature on that issue referred to by counsel. In his reasons, however, the judge referred to a law review article that made observations with respect to the evidence of children. He found AD’s evidence convincing. In doing so, he noted that AD’s answers to open-ended questions were more detailed and more probative than her answers to leading questions. He also commented on the witness’s demeanour. He convicted the appellant. Held: Appeal dismissed. The law review article made observations with respect to the evidence of children, but was not used as expert evidence. The judge used it as a convenient summary of common-sense observations with respect to child evidence, and such use was not improper. The judge’s assessment of the weight to be given to particular answers and his observations of the witness’s demeanour were within his purview, and did not give rise to reversible error. Finally, the judge’s comment that the accused might have masturbated after the event was unnecessary, but was not used to draw an inference of guilt. Reasons for Judgment of the Honourable Mr. Justice Groberman: [1] Mr. Hernandez-Lopez appeals from his conviction on one count of sexual touching of a person under the age of 16, contrary to s. 151 of the Criminal Code , R.S.C. 1985, c. C-46. The offence was alleged to have occurred at a time when he was supervising a residential daycare operated by his wife. The victim, AD, was under five years old at the time of the offence and seven years old at the time of trial. [2] The allegations against Mr. Hernandez-Lopez are that, after getting AD alone within the residence, he licked his finger and inserted it into the child’s vagina. After he withdrew his finger, it is alleged that he left the child and went into a washroom. [3] The only direct evidence of the touching was given by AD. Other evidence presented at the trial showed that Mr. Hernandez-Lopez was present at the daycare and alone with the children for approximately 30 to 45 minutes on the day in question, and that the victim suffered from inflammation of the labia majora that was consistent with the events that she described, though also consistent with other causes. [4] Mr. Hernandez-Lopez did not testify. The judge’s finding of guilt turned on his assessment of the reliability and credibility of AD’s evidence. [5] On this appeal, Mr. Hernandez-Lopez contends that the judge made four errors in his assessment. First, he says that the judge erred by improperly consulting and relying on a law review article that set out bases for assessing the evidence of children. Second, he contends that the judge erred in applying a principle that a child witness’s answers to open-ended questions deserved greater weight than answers to leading questions. Third, he argues that the judge placed too much reliance on the demeanour of the child in making his assessments of credibility and reliability. Finally, he says that the judge erred in drawing an inference for which there was no evidence: the inference that the accused went into the washroom to masturbate after the touching incident. [6] For reasons that follow, I would dismiss the appeal. In terms of the four issues raised, it is my view that: a) the judge’s reference to the law review article was not inappropriate; b) it was open to the judge to find that certain answers given by the child in cross-examination were of limited assistance and his findings were not the result of the adoption of any erroneous principle; c) the judge was entitled to consider the witness’s demeanour, and did not, in this case, place undue reliance on demeanour in assessing credibility and reliability; and d) while the judge did, in finding that the accused masturbated after touching the child, draw an inference without an evidentiary foundation, the improper inference did not play any role in the verdict. The Law Review Article [7] Counsel at trial did not provide the judge with any case law or legal articles dealing with the evidence of children, though they did make some common-sense observations and made suggestions as to how the judge should go about assessing AD’s credibility and reliability. The primary issue on this appeal concerns the judge’s use of a law review article that he came across on his own. [8] The judge recognized that the evidence of young children must be evaluated differently from the evidence of adults. He quoted from four authorities that discuss the special approach that should be taken to the evidence of children: R. v. E.(A.W.) , [1993] 3 S.C.R. 155; R. v. L.(D.O.) , [1993] 4 S.C.R. 419; R. v. F.(C.C.) , [1997] 3 S.C.R. 1183; and R. v. B.E.M. , 2010 BCCA 602. The portions of those cases that he cited also included references to R. v. B. (G.) , [1990] 2 S.C.R. 30; R. v. (W.R.) , [1992] 2 S.C.R. 122. Finally, the judge referred to R. v. Ceal , 2012 BCCA 19. [9] After referring to these cases, the judge discussed an article published in the Alberta Law Review. I quote his discussion in full: [30]      I also refer to Bala et al. “Judicial Assessment of the Credibility of Child Witnesses” (2005) 42 Alta. L. Rev. 995-1017 in which the learned authors refer to psychological research on child witnesses in addition to a review of Canadian legal authorities. Included in their publication are the following statements, which are apt in the case at bar: 13  A major concern with child witnesses is their potential suggestibility. As a result of repeated or misleading questions, the memory of a witness may become distorted. It is possible for a person who has been subjected to repeated, suggestive questioning to develop “memories” of events that did not in fact occur. While children, especially young children, are more suggestible than adults, there is great variation between individuals of the same age in suggestibility and in resistance to suggestion. There is a large body of experimental research about the suggestibility of children, as well as some research about the suggestibility of adults. 14  The way in which children are questioned can also greatly affect what they are able to communicate. Research studies reveal that children and adults generally provide more information in response to specific questions rather than to the open-ended questions that are typically posed during direct examinations of witnesses. Children, especially young children, may lack the cognitive capacity to provide meaningful and consistent answers to questions that involve frequency of events, time or size, or that require explanation of motive (why questions), though if asked they will usually try to answer. In addition, “yes or no” questions are problematic as children, especially young children, may have a bias to produce “yes” answers, and when asked such questions by unfamiliar adults, young children will rarely respond with “I don’t know”. 15  Children, especially young children, are socialized to provide responses to questions, even if they do not fully understand what is being asked. Children who are asked questions that they do not fully understand will usually attempt to provide an answer based on the parts of the question that they did understand, so that a child’s answer to a question may seem unresponsive or may even be misleading. [1] The authors’ comments about children’s inability to estimate the frequency of events, time or size, as well as their tendency to try to answer questions that they may not fully understand might have affected AD and her responses to questions at trial. For instance, AD was unable to answer questions posed to her by defence counsel during cross-examination about what month she started attending or left the daycare, approximately how far the daycare was from her house or how old young SH was when the offence occurred. Defence counsel sometimes posed confusing questions, such as “that’s probably not what happened, isn’t it?” to which AD’s answers may have seemed unresponsive, such as “I don’t remember”. [10] Mr. Hernandez-Lopez argues that the judge’s reliance on this article was improper. He characterizes the article as “extraneous expert opinions” that were not properly admitted or tested at trial. He suggests that this case is like R. v. Bornyk , 2015 BCCA 28, in which a trial judge independently researched publications on fingerprint evidence, and then relied on the expert evidence contained in those publications in preference to the evidence before him at trial. [11] In my view, this case is not analogous to Bornyk . The judge in Bornyk was dealing with a highly specialized and technical area, in which opinions could only reasonably be drawn with the assistance of witnesses possessing specialized training and experience. The judge improperly used published articles as substitutes for expert opinion evidence. In contrast, the judge in this case was dealing with a subject very much within his own purview: the assessment of the credibility and reliability of a witness. [12] I do not suggest that a judge is entitled, when assessing the veracity of a witness’s testimony, to rely on expert evidence that is not properly before the court. Not every reference to a publication, however, amounts to reliance on outside expertise. Sometimes, a judge may refer to a publication because it provides a concise and easily understood discussion of a concept, or because it provides an accessible illustration of the judge’s thinking. [13] A judge, for example, may explain why an overstated denial lacks credibility by quoting Queen Gertrude in Shakespeare’s Hamlet : “The lady doth protest too much, methinks” (see, for example, Hardinge J. in Shandro v. Central Guaranty Trust , [1992] B.C.J. No. 1220, 1992 CarswellBC 1889; G.C. Weatherill J. in Siddall v. Bencherif , 2016 BCSC 1662 at para. 189). It cannot be said that Shakespeare is being used as an expert witness in those cases. Rather, the reference simply furnishes an illustration of a concept that is widely understood. [14] The use of the Bala article in this case falls somewhere between the clearly inappropriate use of published material in Bornyk , and the clearly innocuous references to Hamlet that I have referred to. The judge in this case was not referring to the Bala article merely as a literary analogy; neither, however, was he relying on it to furnish critical evidence. [15] The Bala article appears in a law review, but it does not restrict itself to legal analysis. It is interdisciplinary in nature, jointly authored by a law professor, two psychology professors and an articling student. The main part of the article (which was not relied on by the judge) presents the results of two studies: a) an empirical study that attempted to determine how well judges and other professionals are able to assess the honesty and reliability of child witnesses; and b) a study of how Canadian judges perceive child witnesses. The article includes references to and reports of experimental data and empirical studies. Parts of it lie within the realm of specialized expertise. Those parts could not properly have been relied on by the trial judge in this case, and he did not rely on them. [16] The judge’s reference to the article is to an introductory portion headed “Psychological Research on Child Witnesses”. That portion of the article deals with commonplace knowledge. The authors preface it with the following paragraph: There has been a significant amount of psychological research about the memory, suggestibility and communication capacity of children, and the discussion offered here is only intended to summarize a large and complex body of literature. [17] While the authors mention a number of studies in footnotes to the three paragraphs referred to by the trial judge, the paragraphs, themselves, do not refer to any particular empirical study. They simply describe generally accepted propositions that apply to the evidence of children. [18] The excerpts of the Bala article cited by the judge do not contain any information that is not already generally known by any person who has contact with young children. The ideas contained in those excerpts must, of necessity, be part of the basic toolbox that any judge hearing a case involving child witnesses must employ. [19] Indeed, if one parses the paragraphs quoted by the judge, it becomes apparent that the statements they contain are, for the most part, already reflected in judicial commentary and practice. The phenomenon of child witnesses being suggestible is well known. For example, this Court noted concerns with respect to the suggestibility of a child witness in R. v. Horswill , 2018 BCCA 148 at para. 49. The idea that repeated suggestions to a child can implant memories was referred to in R. v. E.A.L. (1998), 130 C.C.C. (3d) 438 (Ont. C.A.) (appeal dismissed R. v. Lance , [1999] 3 S.C.R. 658). Forensic interviews of children where sexual abuse is suspected must be conducted in such a way as to avoid this difficulty. [20] The frequent inability of children to describe, with precision, the time and place of an event or even its details has been commented upon in numerous cases, among them R. v. F. (C.C.) at para. 47 and R. v. B.E.M. at para. 35, both of which were cited by the trial judge. [21] I do not read the judge’s reasons as suggesting that he relied on the Bala article as an instruction manual for assessing the evidence of children. Rather, he used the three quoted paragraphs of the article as a convenient summary outlining generally-understood and common features of the evidence of children. The concepts that the judge relied on did not lie outside of the general knowledge that judges are required to apply in assessing the evidence of witnesses. [22] In short, the judge reached his conclusions as to how he should assess the child’s evidence based on his own experience and knowledge, as well as on his reading of case authorities. His citation of the Bala article simply collected a number of observations in a clear and concise summary, and showed that the observations are generally known and accepted. [23] The use of published academic literature to show that certain concepts are generally accepted is not uncommon. The Supreme Court of Canada often refers to social science literature for that purpose (see, for example, R. v. Oickle , 2000 SCC 38 at paras. 34–36). A judge must exercise caution in making such use of articles, however, to ensure that trial fairness is not compromised. [24] Given the very general nature of the observations in the part of the article cited by the trial judge, and the notoriety of the information conveyed, I can see no possibility that trial fairness was compromised. It is safe to conclude that the judge’s reference to the Bala article was only for the purpose of providing a convenient summary of generally-known concepts that he was bringing to bear on the case. [25] In the result, I am not persuaded that the judge made any error in his use of the Bala article. The Judge’s View that Answers to Leading Questions Deserved Less Weight [26] The second ground of appeal concerns the judge’s preference for certain answers given by the complainant in her interview and in direct examination over answers given in cross-examination. This preference is first suggested in his summary of the Crown position: [32]      The Crown submits that the following elements of AD’s testimony, both in the statement given to Cst. Ellis and in her evidence at trial, reveal its credibility and reliability: a)   The most weight should be given AD’s answers to open-ended questions posed by Cst. Ellis and on direct examination at trial as opposed to her answers to leading questions posed during cross-examination. The Crown submits that AD gave direct and clear answers to open-ended questions when she was not being prompted and submits that such answers are more trustworthy than her answers given to leading questions, which suggested particular answers. During submissions, the Crown gave several examples of the differences in AD’s answers to such questions. My review of the transcripts supports the Crown’s submission in this respect. [27] In his conclusions, the judge remarked that he was impressed by AD’s responses to open-ended questions. Mr. Hernandez-Lopez, in his factum, takes issue with the judge’s assessment of the evidence: It is submitted that the trial judge’s approach was erroneous. Answers to leading questions posed in cross-examination are not inherently of less weight or less trustworthy than answers to non-leading questions in direct or questions asked in an open-ended manner in a police interview of a child complainant. The approach taken unfairly skewed the assessment of credibility and reliability in favour of the Crown. The adversarial system has incorporated cross-examination as an essential tool in the fact-finding process. In the oft-cited description of Wigmore it is “the greatest legal engine ever invented for the discovery of truth.” If the trier of fact approaches the assessment of the evidence from the starting point that answers to leading questions posed in cross-examination are of lesser weight and are less trustworthy than those given in response to open-ended questions asked in direct, or open-ended questions asked in a police interview, that the latter two are in effect the “best evidence,” then that engine is deprived of its most effective fuel. [28] I do not quarrel with the proposition that a judge is required to fully consider the quality of the evidence given in both examination-in-chief and in cross-examination. I also agree with the proposition that a judge must not approach the assessment of the evidence with a pre-disposition to accept answers given in direct examination over answers given in cross-examination. This does not mean, however, that a judge is precluded from reaching an honest assessment to the effect that a particular witness’s responses to open-ended questions are more reliable than that witness’s answers to leading ones. [29] Not all witnesses react the same way to questioning. Some are forthcoming and careful in their answers. Others are reticent to give information, or are imprecise. Suggestibility is a problem for some witnesses, while others are excessively suspicious of agreeing with any proposition put to them. [30] While it is not true of all witnesses, some are more cogent when they are responding to open-ended questions, giving clearer and more detailed answers to such questions. [31] Leading questions, on the other hand, can sometimes be ineffective in eliciting useful evidence from witnesses who are nervous, suggestible, or easily confused. In the case of child witnesses, these frailties are not unusual. While leading questions are permitted in cross-examination, cross-examination need not consist of only leading questions. An effective cross-examination will usually combine leading questions with questions that do not suggest an answer. [32] I do not read the judgment in this case as suggesting that the judge adopted a principle of favouring answers given in direct examination over those given in cross-examination. Rather, the judge simply found that AD’s answers in direct examination and in response to direct questions in cross-examination were more helpful than her answers to leading questions. [33] A perusal of the transcript reveals that many of the questions put in cross-examination were complex, and some were convoluted. The child was asked questions that included the “probability” of events occurring, and questions that juxtaposed events in a confusing manner. It is evident that the child’s intellectual capacity was not up to answering at least some of the questions. It is not surprising, then, that the judge did not find those answers useful. [34] The judge did not apply a “principle” that answers by a child to open-ended questions should be given more weight than answers to leading questions. Rather, he found that the answers that AD gave to certain leading questions in this case were of limited value, a finding that was open to him. I am not persuaded that the judge made any error in the relative weight that he gave to AD’s answers to questions posed in direct examination and those posed in cross-examination. The Judge’s Treatment of Demeanour [35] The third ground of appeal relates to the judge’s comments on AD’s demeanour in giving evidence. At para. 37 of his reasons, the judge said: Both in her statement to Cst. Ellis and in her testimony at trial, AD was clear and direct in her answers, consistent in describing the offending conduct of the accused and unambiguous when faced with open-ended questions. Especially during the statement, she was very consistent in describing the conduct of the accused, referencing him wetting his finger and placing it in her “parts”. She never varied from that description. It was also apparent that she was very anxious towards the end of her cross-examination and upon being told she was free to leave, raised her arms and looked up in apparent relief. Her demeanour suggested to me that she may have agreed with some of defence counsel’s suggestions out of sheer exhaustion. [36] While the paragraph appears under the subheading “demeanour”, most of it is devoted to a discussion of the consistency and clarity of the witness’s evidence and not with demeanour, per se . Only the portion dealing with the “exhaustion” of the witness is directed towards demeanour. [37] It is the judge’s role to analyse the testimony of witnesses, and observing their demeanour is a part of that role. The judge did not emphasize demeanour to the exclusion of other considerations, nor did he give undue weight to demeanour as a factor in assessing the evidence. [38] The trial judge’s description of AD agreeing with some of the defence counsel’s suggestions out of “sheer exhaustion” may have been overstated given that AD’s testimony was not long (having been completed within one afternoon). However, the judge was dealing with a seven-year-old witness, not an adult, and the transcript records him observing that AD looked “happy” at the conclusion of the questioning. It is apparent that the judge’s view that AD was becoming exhausted with the questioning arose not only from her rather equivocal reaction when advised that she was free to leave, but also from the manner in which she answered questions. The judge had an opportunity to observe the witness and did not err in using his observations in assessing the weight to be applied to her answers. I do not see that this Court is in a position to second-guess his assessment. [39] In short, I am not persuaded that the judge erred in his use of the witness’s demeanour as a factor in assessing her credibility and reliability. The Inference that the Accused Masturbated after Touching the Victim [40] AD gave evidence that after the accused engaged in sexual touching, he went into a washroom to urinate. The judge referred to that evidence as follows: AD also volunteered that the accused went to the bathroom after he touched her parts which again I find would be a description that only someone who had seen it would come up with. He likely at that point was masturbating in the bathroom as submitted by the Crown. [41] The accused contends that the judge improperly drew the inference that the accused masturbated and then used that inference to support a guilty verdict to the offence of sexual touching. I agree that if the judge had engaged in such reasoning, it would have been an error. Only if the judge was already convinced that the accused had engaged in sexual touching would there be any basis for an inference that he masturbated when he entered the washroom. [42] As I read the judge’s reasons, however, he did not draw an inference that the crime was committed from the fact that the accused entered the washroom. Rather, the quoted excerpt of the judgment does no more than comment on the detailed nature of AD’s account of events and on its plausibility. [43] The judge’s comment on the probability that the accused masturbated was unnecessary and improper speculation, but nothing in the judgment suggests that he used that speculation to infer that the accused was guilty of the crime charged. [44] The judge convicted the accused based on his analysis of the evidence, and, in particular, on his finding that the evidence of AD proved the offence beyond a reasonable doubt. He did not base his finding on speculative inferences. [45] Accordingly, this last ground of appeal must also fail. Conclusion [46] As the trial judge made no error in finding the accused guilty of sexual touching, the appeal should be dismissed. “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Chief Justice Bauman” I AGREE: “The Honourable Madam Justice Fisher” [1] The paragraph numbers used by the trial judge do not appear in the article as published. The judge omits reference to the article’s footnotes. The quoted paragraphs appear at pp. 999-1000 of the published article.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Argo Ventures Inc. v. Choi, 2020 BCCA 17 Date: 20200117 Docket: CA45925; CA45926 Docket: CA45925 Between: Argo Ventures Inc. Respondent (Plaintiff) And Key Joo Choi Appellant (Defendant) And Tim Seo Respondent (Third Party) – and – Docket: CA45926 Between: Argo Ventures Inc. Respondent (Plaintiff) And Yeong Ja Choi Appellant (Defendant) And Tim Seo Respondent (Third Party) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Butler The Honourable Mr. Justice Abrioux On appeal from:  An order of the Supreme Court of British Columbia, dated January 25, 2019 ( Argo Ventures Inc. v. Choi , 2019 BCSC 85, Vancouver Docket S166992). Counsel for the Appellant: J. Zeljkovich Counsel for the Respondent: A.P. Morrison Place and Date of Hearing: Vancouver, British Columbia November 22, 2019 Place and Date of Judgment: Vancouver, British Columbia January 17, 2020 Written Reasons by: The Honourable Mr. Justice Abrioux Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Butler Summary: The appellants entered into a contract for the purchase and sale of a property for approximately $6.5 million, with a non-refundable deposit of $300,000 due within ten business days. The contract was immediately binding upon signature. After signing the contract, the appellants decided not to complete the purchase and did not pay the deposit, which was due and owing. Ultimately, the seller accepted the appellants’ repudiation of the contract for non-payment of the deposit and sued. The trial judge awarded judgment in the amount of the unpaid deposit, plus pre-judgment interest and costs. The appellants argue, among other things, that the judge erred in making this award because an unpaid deposit, unlike a paid deposit, cannot be forfeited upon repudiation of a contract. Held: Appeal dismissed. A seller can sue for the amount of an unpaid deposit that is due and owing at the time the seller accepts the buyer’s repudiation of the contract. A buyer is not entitled to put itself in a better position than it would be in had it met its contractual obligation to pay the deposit by simply refusing to pay the deposit. Reasons for Judgment of the Honourable Mr. Justice Abrioux: Overview [1] On June 25, 2016, the appellants Key Joo Choi and Yeong Ja Choi, a married couple, entered into an agreement (the “Contract”) with 534834 B.C. Ltd. (“534”) for the purchase and sale of a property located at 1485 Coast Meridian Road, Port Coquitlam, British Columbia (the “Property”) for approximately $6.5 million, with an initial deposit of $300,000 due within ten business days. On July 6 or 7, 2016, the appellants purportedly repudiated the Contract and did not pay the deposit as required by July 11, 2016. On July 25, 2016, 534 accepted the appellants’ repudiation of the Contract for non-payment of the deposit, and on July 29, 2016, commenced an action seeking judgment in the amount of the unpaid deposit. [2] On January 25, 2019, in comprehensive reasons for judgment indexed as 2019 BCSC 85 (the “Reasons”), Justice Shergill ruled in favour of the respondent. She awarded judgment against the appellants in the amount of $300,000, plus pre‑judgment interest and costs. [3] The appellants’ third party proceeding against the realtor, Tim Seo, was dismissed. No appeal is taken from that order. [4] The appellants challenge the order, arguing that the judge erred in finding that an unpaid deposit that was not owing at the relevant time was nevertheless forfeited upon their repudiation of the Contract. Of significance is that they do not take issue with the judge’s conclusion that the Contract became legally binding on the parties on June 25, 2016. The respondent submits that there was no dispute at trial that the deposit was due by July 11, 2016. In fact, the appellants relied upon this binding obligation to support a defence of non est factum. The respondent’s position is that the appellants should not be permitted to advance a contrary argument on appeal. [5] For the reasons that follow, I would dismiss the appeal. Background Facts [6] Since 1998, 534 has owned the Property—a business park with warehouses, restaurants, convenience stores, and industrial and office space. The Property has been encumbered by a statutory right of way in favour of the British Columbia Hydro and Power Authority (“BC Hydro”) since 1962, which is registered in the Land Title Office as the first charge against title to the Property. BC Hydro installed overhead wires on the Property, which were visible to visitors at all times relevant to the underlying action. [7] The Property was encumbered by one mortgage at all relevant times, which was registered in favour of Industrial Alliance Insurance and Financial Services Inc. (the “Industrial Alliance Mortgage”). The principal outstanding on the Industrial Alliance Mortgage in March 2016 was approximately $1.36 million. [8] In 2016, Tim Seo, a realtor, approached Mr. Eric Lee, the Director of Operations for the respondent, which managed the Property, to see if 534 was prepared to sell the Property if he could find a buyer. In June 2016, Mr. Seo was informed by Mr. Lee that 534 would not accept an offer of less than $6.5 million or any condition except an assumption by the buyer of the Industrial Alliance Mortgage. [9] What then transpired is not in dispute and is set out at paras. 22–53 of the Reasons: [22]      On June 21, 2016, three days after introducing Mr. Choi to the Property, Mr. Seo emailed Mr. Lee, seeking income and environmental information about the Property. Also on June 21, 2016, Mr. Lee emailed to Mr. Seo an environmental report and information about the income and expenses earned and incurred in respect of the Property. [23]      Further on June 21, 2016, Mr. Seo forwarded by email an environmental report and information about income and expenses to Mr. Choi. On or before June 21, 2016, Mr. Choi agreed to have Mr. Seo draft an offer to purchase the Property. Mr. Seo left blank spaces to be completed with information to be decided by Mr. and Mrs. Choi. [24]      On June 22, 2016, Mr. Seo met with the Chois to sign an offer drafted by Mr. Seo (the “Offer”). [25]      Later on June 22, 2016, Mr. Seo delivered the Offer to Mr. Lee, together with an email explaining some of the terms of the Offer. With respect to “subjects”, the email stated: “No Subjects (Mortgage transfer only if any)”. [26] Respecting a deposit, the Offer included the following clause (the “initial deposit clause”): The initial deposit, $300,000 is made to Sutton Group – 1st West via bank draft within 7 10 business days of acceptance. Once the deposit is made, it is non-refundable and this contract is binding and irreversible unless the Buyer is disapproved by the lender. [Italicized portion reflects handwriting.] [27]      The numbers “$300,000” and “10” were written in by hand by Mr. Seo on the Chois’ instructions. Mr. and Mrs. Choi placed their initials beside the initial deposit clause as amended. [28]      On June 22, 2016, when the Offer was delivered to 534 Ltd., the only mortgage registered against title to the Property was the Industrial Alliance Mortgage. [29]      On June 23, 2016, 534 Ltd. entered into a fee agreement with Mr. Seo and his brokerage (the “Fee Agreement”). The Chois were not a party to the Fee Agreement. The Fee Agreement provided that Mr. Seo was not the agent for either the seller (534 Ltd.) or the buyers (Mr. and Mrs. Choi). [30]      On June 23, 2016, Mr. Seo delivered an email to Mr. Choi providing information about current market lease rates in the area near the Property. [31]      534 Ltd. did not accept the Offer. [32]      On June 24, 2016, Mr. Lee delivered a counteroffer to Mr. Seo (the “Counteroffer”), together with an email explaining the two changes included in the Counteroffer. The first change was in relation to costs to be borne by the seller for prepayment penalties; the second change was to the initial deposit clause. In the email delivering the Counteroffer, Mr. Lee stated as follows: Page 1: .. if any, exceeding $70,000 (this is the prepayment penalty with the existing lender if the Buyer is not approved and the Seller has to provide the financing) Page 7 of 7: … The deposit is non-refundable… terms and conditions at completion date. ( this will give the Buyer some comfort in knowing that if Industrial Alliance does not approve the Buyer, the Seller will step up and provide the necessary financing at the same terms and conditions) [33]      On June 24, 2016, Mr. Lee also delivered a text message to Mr. Seo explaining the revisions in the Counteroffer. [34]      Respecting the deposit, the Counteroffer included the following clause (the “revised deposit clause”): The initial deposit, $300,000 is made to Sutton Group – 1st West via bank draft within 7 10 business days of acceptance. Once t The deposit is made, it is non-refundable and this contract is binding and irreversible unless the Buyer is disapproved by the lender, or the seller is unable to provide the replacement financing to the buyer at the same terms and conditions at completion date . [Italicized portion reflects handwriting.] [35] The representative of 534 Ltd. initialled the Counteroffer twice beside the revised deposit clause. [36] On Saturday, June 25, 2016, Mr. Choi met with Mr. Seo to consider the Counteroffer. Mr. Choi initialled the Counteroffer on behalf of himself and Mrs. Choi (for which he had authority from Mrs. Choi). [37] On June 25, 2016, Mr. Seo delivered the fully executed Counteroffer to Mr. Lee. [38] On June 25, 2016, Mr. Seo sent a text message to Mr. Lee, asking him to obtain the information required by Industrial Alliance to determine whether it would agree to permit the Chois to assume the Industrial Alliance Mortgage. Mr. Lee responded by advising Mr. Seo that he would obtain a credit application from Industrial Alliance on Monday, June 27, 2016. [39] On June 27, 2016, Mr. Lee emailed to Mr. Seo the credit authorization form required by Industrial Alliance. Also on June 27, 2016, Mr. Seo re-forwarded to the Chois the environmental report and information about income and expenses for the leased units (sent previously on June 21, 2016). [40] On June 30, 2016, Mr. Seo emailed Mr. Lee advising him that the Chois were preparing a credit authorization form. He also requested additional information about the leases of the Property. [41] On July 4, 2016, Mr. and Mrs. Choi met with Mr. Seo, and completed the credit authorization form for the assumption of the Industrial Alliance Mortgage and provided documents to support their application. Mr. Seo emailed this information to Mr. Lee on the same day, stating: “We hope that he gets the transfer approval asap so that he could deposit $300,000”. Mr. Lee delivered the credit authorization form and financial information to Industrial Alliance shortly after he received them from Mr. Seo. [42] Also on July 4, 2016, Mr. Choi met with Gaeten Royer to discuss the development potential of the Property. Mr. Royer was a long-time friend and associate of Mr. Choi, to whom Mr. Choi turned for business advice from time to time. Mr. Royer had many years of experience in land acquisition, land development, dealing with rights-of-way and other urban planning issues. [43] On July 5, 2016, Mr. Seo sent a text message to Mr. Lee asking for environmental information about the Property. [44] On July 5, 2016, Mr. Royer advised Mr. Choi that the SRW might impact the development potential of the Property. [45] On July 7, 2016, Mr. Lee emailed Mr. Seo advising him that the lender was requesting further information from Mr. and Mrs. Choi that it was required to consider their request to assume the Industrial Alliance Mortgage. The Chois did not respond to these requests for information. [46] Around July 6 or 7, 2016, Mr. Royer told Mr. Choi that the Property had no development potential. Mr. Choi decided not to complete the purchase of the Property. Shortly thereafter, Mr. Choi called Mr. Seo to tell him that he did not want to purchase the Property due to the SRW. Mr. Choi’s decision not to proceed with the purchase of the Property due to the SRW was confirmed by Mr. Royer to Mr. Seo in a telephone conversation on July 7, 2016. [47]      Around July 7 or 8, 2016, Mr. Choi met with Mr. Seo and confirmed that he no longer wished to proceed with the purchase of the Property. [48] Shortly thereafter, Mr. Seo advised Mr. Lee that the Chois had decided not to complete the purchase of the Property. Industrial Alliance had not yet agreed to allow the Chois to assume the Industrial Alliance Mortgage. [49] Pursuant to the Counteroffer, the deposit was due on July 11, 2016. It was never paid. [50] On July 15, 2016, counsel for 534 Ltd. (Mr. Morrison) delivered a letter to the Chois asserting that they had breached the Contract and provided them with an opportunity to keep the Contract alive. They were also advised that if the lender did not approve the assignment of the Industrial Alliance Mortgage to them, that 534 Ltd. would provide financing on the same terms. [51] On July 21, 2016, counsel for the Chois (Ms. Ducey) wrote to Mr. Morrison, taking the position that the Chois were unaware of the changes to the Offer that were made in the Counteroffer, and were ultimately included in the Contract. She denied that the Chois had any obligation to complete the Contract. [52] On July 25, 2016, Mr. Morrison delivered a letter to Ms. Ducey accepting the Chois’ repudiation of the Contract. This action was commenced on July 29, 2016. [53] The Property was subsequently sold to a third party. Trial Judgment Non Est Factum [10] The appellants’ primary defence at trial was non est factum. The judge noted that a successful plea of non est factum renders a contract void. To achieve this result, the judge held the appellants needed to establish that they signed the Contract by mistake in the sense that what they believed they were signing was fundamentally different from what the Contract actually provided. [11] The judge began her analysis by considering the appellants’ personal characteristics, noting that they emigrated from South Korea in the 1970s and had been successful business people, accumulating assets worth about $30 million as of June 2016. They started with a grocery store business, which they conducted in English. By June 2016, they had been involved in at least ten real estate transactions in British Columbia pertaining to both residential and commercial properties. All of the contracts for these transactions were written in English. Although Korean is their first language, they speak English as a second language, and they can read and understand simple written English. Mr. Choi admitted on cross-examination that he can understand real estate contracts written in English. [12] The judge set out the three-part test for non est factum at para. 58 of the Reasons: A party seeking to rely on the doctrine of non est factum must establish that (1) the document they signed was fundamentally different from what they believed the document to be, (2) they signed the document as a result of misrepresentation, and (3) that they were not careless in doing so: Farrell Estates Ltd. v. Win-Up Restaurant Ltd. , 2010 BCSC 1752 at paras. 82, 100 [Farrell]; Bulut v. Carter , 2014 ONCA 424 at paras. 18, 24; Marvco Color Research Ltd. v. Harris , [1982] 2 S.C.R. 774 [Marvco]. A successful plea of non est factum renders the agreement void at common law: Fraser at para. 38. The analysis is “highly fact-specific and contextual”: Zhang v. Soong , 2012 BCSC 758 at para. 78. By its very nature, non est factum is a “difficult defence to establish”: Tang v. Chan , 2014 BCSC 2251 at para. 51. [13] First of all, the judge accepted the appellants’ argument that the Contract was fundamentally different from what Mr. Choi believed he was signing on June 25, 2016. [14] She found that the initial offer was a non-binding agreement, which provided the appellants with ten days to perform due diligence inquiries. She then concluded that the executed counteroffer was binding on the parties on signature, rather than on payment of the deposit ten days later. The appellants had advanced this argument in support of their position that Mr. Choi did not understand the effect of the changes to the deposit clause in the counteroffer, as he mistakenly understood that he still had ten days to conduct due diligence inquiries and he and his wife would not be bound until the deposit was in fact paid. Since, by the time of trial, Mr. Choi now understood the Contract was binding on acceptance, it was fundamentally different from what he believed to be the case on June 25, 2016. [15] The factual basis for reaching this conclusion was, in part, Mr. Choi’s evidence that: MR. CHOI: It’s my mistake ... THE WITNESS: I know it’s my fault that I didn’t read the details of it, but because of the other contract I also had 10 days, and there’s 10 here, so I trusted they were the same. [16] Secondly, despite Mr. Choi’s mistaken belief, the judge found that it was not caused by Mr. Seo’s misrepresentation. The judge preferred Mr. Seo’s evidence that he explained the revised deposit clause to Mr. Choi, rather than misleading Mr. Choi into believing that he still had ten days to conduct due diligence. Furthermore, the judge found that it was implausible that Mr. Choi would initial the revised deposit clause without reading it himself or asking Mr. Seo what the changes meant. [17] Finally, the judge found that Mr. Choi’s mistaken belief arose from his own carelessness in failing to read the details of the revised deposit clause, assuming unreasonably that it was the same as the initial offer, and not seeking independent legal advice from his lawyers before signing the Contract. Mrs. Choi was also careless in deciding to completely rely on her husband to determine whether to enter into the Contract. As a result, the defence of non est factum was unsuccessful. Alternative Defences [18] The judge also rejected the appellants’ alternative arguments. First, she found that the Contract was not a standing offer but binding on acceptance, and it was not void for uncertainty. Secondly, while 534 was required to provide the appellants with a document prescribing that the property was free from contamination within three days of acceptance (the “environmental term”), this term was a warranty and not a condition. Thus, 534’s failure to fulfill the environmental term did not amount to repudiation of the Contract. [19] Finally, the judge rejected the appellants’ argument that they were entitled to rescind the Contract when they learned about the undisclosed statutory right of way. The judge not only held that 534 was not responsible for Mr. Seo’s alleged misrepresentation about the size of the property contained in the Brochure, but also dismissed the appellants’ third party claim against him. On Appeal [20] The appellants’ appeal is predicated on a new argument, which was not advanced at trial. It is to the effect that the judge erred in finding that an unpaid deposit that was not owing and due was nevertheless forfeited upon repudiation of the Contract. [21] There are two aspects to this argument. [22] The first is that the deposit was not owing on the date they repudiated the Contract. Of significance to this submission is that the repudiation relied on by the appellants is the one of July 6 or 7, 2016, when they communicated their decision not to complete the Contract on the basis that the BC Hydro statutory right of way prevented further development of the Property. [23] The second is that an unpaid deposit is of a different character than one that has been paid. On this point, the appellants argue that the deposit could not be “forfeited” because it was never paid, and thus, enforcing payment at trial amounted to an unlawful penalty. [24] The respondent’s position is that there was no dispute at the trial that the deposit was due by July 11, 2016. In fact, the appellants relied upon this binding obligation to support their defence of non est factum. The respondent argues that the appellants should not be permitted to argue the opposite on appeal. [25] The respondent further submits that the appellants repudiated the Contract when they did not pay the deposit by July 11, 2016. According to the respondent, the appellants owed the deposit within ten business days immediately upon signing the Contract. Since the right to payment of the deposit had accrued by the date of the appellants’ repudiation, they should not be in a better position for having defaulted than they would have been in had they complied with the terms of the Contract. [26] Finally, in response to the appellants’ claim that an unpaid deposit cannot be forfeited, the respondent argues the judge did not order the deposit to be forfeited, but instead awarded damages for breach of contract in the amount of the deposit. [27] In fact, the judge did not identify whether the action was for an award in damages or debt, which is an issue I will return to below. Discussion [28] Before considering what the issues on this appeal are about, it is necessary to state what is not disputed by the appellants, specifically: · the judge’s findings of fact and conclusions regarding the enforceability of the counteroffer when it was initialled, that is accepted, by the appellants on June 25, 2016; and · the judge’s conclusion that the environmental term was a warranty, not a condition. [29] Essentially, what the appellants now argue in this court is that the judge made an error of mixed fact and law by failing to find that the deposit: · was not unconditionally owing until July 11, 2016; · could not be “forfeited” since it was never paid; and that in any event, they had repudiated the Contract themselves on July 6 or 7, 2016, and thus, the deposit was no longer payable on July 11, 2016. [30] In my view, it is relevant that the appellants did not advance these arguments at trial. On the contrary, the appellants relied on their unconditional obligation to pay the deposit by July 11, 2016 to support their defence of non est factum. [31] A distinction is to be made between raising a new issue on appeal and resiling from a position deliberately taken in the tribunal of first instance : VIH Aviation Group Ltd. v. CHC Helicopter LLC, 2012 BCCA 125 at para. 44. Generally, this court has not permitted a party that has chosen a particular position in the trial court to abandon that position on appeal : Sahlin v. The Nature Trust of British Columbia, Inc. , 2011 BCCA 157 at para. 38. Furthermore, taking inconsistent positions in legal proceedings can constitute an abuse of process: Fortinet Technologies (Canada) ULC v. Bell Canada , 2018 BCCA 277 at para. 23. [32] The appellants’ position at trial, in support of their non est factum defence, was that they had been misled into signing a contract that they failed to understand was binding on acceptance and unconditionally required them to pay a deposit of $300,000 within ten business days. As they stated in their written closing argument: It is submitted that a non-binding agreement subject to due diligence is fundamentally different than a binding agreement. In making the Offer, the Chois intended and understood that they would not be bound by the Offer until the deposit was paid and that they had 10 days to do so during which they could conduct their due diligence. The Chois did not understand the impact of the changes to the Offer when Mr. Choi initialled the Counteroffer. Specifically, Mr. Choi did not understand the effect of the change to the deposit clause which the plaintiff now asserts, ie that the deposit was owing regardless of whether it had been paid, which is not surprising given how nuanced that clause was in the first instance and the fact that English is not his first language...” [Emphasis added.] They now resile from that position on appeal by arguing instead that the deposit was not unconditionally owing and due by July 11, 2016. [33] At para. 75 of the Reasons the judge found that there was “no dispute” that the Contract was immediately binding on signature. The issue raised by the appellants in this court was not before the trial judge because it would have been inconsistent with their non est factum defence. In my view, having made that decision at trial, they must now live with it in this court: Protection Mutual Insurance Co. v. Beaumont (1991), 58 B.C.L.R. (2d) 290 (B.C.C.A.). [34] While this is sufficient to dispose of the appeal, I will nonetheless address the merits of the new arguments advanced by the appellants. [35] First of all, I note there was ample evidence to support the judge’s findings that the Contract was binding upon signature and 534’s right to payment of the deposit accrued on July 11, 2016, before it accepted the appellants’ repudiation and terminated the Contract on July 25, 2016. The judge’s interpretation of the deposit clause—as negotiated between the parties in unique factual circumstances—is a question of mixed fact and law, which is entitled to deference, absent a palpable and overriding error: Creston Moly Corp. v. Sattva Capital Corp. , 2014 SCC 53 at para. 50; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. , 2016 SCC 37 at para. 46. [36] This court has held that where the seller’s right to a non-refundable deposit has accrued before it accepts the buyer’s repudiation, the seller can sue for an amount equal to the unpaid deposit owed under the contract: Vanvic Enterprises Ltd. v. Mack (1985), 66 B.C.L.R. 211 (B.C.C.A). In Tang v. Zhang , 2013 BCCA 52, this court further clarified that a deposit is intended to encourage parties to complete their contracts. While a deposit cannot be excessive or unconscionable, it is an exception to the usual rule against penalties: Tang at para. 30. [37] Nor would I accede to the appellants’ new argument that the judge erred by awarding judgment against them in the amount of the unpaid deposit. The appellants do not argue that the deposit was excessive, but only that an unpaid deposit, unlike a paid deposit, cannot be “forfeited”. [38] Contrary to what the appellants now argue, the judge did not order that the deposit be forfeited. The deposit could not be forfeited because it was never paid. Rather, the judge awarded the respondent judgment in an amount equal to the unpaid deposit. [39] She was entitled to make that order. In Vanvic , at paras. 17–18, this court distinguished between the concepts of rescission (which is a remedy arising in cases of mistake, fraud, or lack of consent) and repudiation (which occurs when a party elects to treat the contract as no longer binding). The Court held that when a party accepts a repudiatory breach, the contract is not void ab initio . A party who accepts a repudiatory breach is discharged from further performance and may bring an action for damages, but the contract itself is not rescinded. Rights that have already been acquired by a party who accepts a repudiatory breach are not divested or discharged: see also Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423 at paras. 39–41. [40] Vanvic involved a contract of purchase and sale of property, which was supplemented by a trust agreement by which the buyer agreed to provide a non‑refundable deposit to the seller’s solicitor “forthwith upon acceptance”. The buyer’s agent delivered a cheque in the deposit amount to the seller’s lawyer. Shortly thereafter, the buyer decided not to pursue his purchase of the property and stopped payment of the deposit cheque. The seller notified the buyer that it considered the buyer’s conduct to amount to a repudiation of the contract and that it accepted the buyer’s repudiation. The seller demanded immediate payment of an amount equal to the unpaid deposit. The buyer refused to pay the amount demanded. [41] This court upheld the trial judge’s award to the seller of judgment in an amount equal to the unpaid deposit with Hinkson J.A., for the Court, stating at para. 17: In my opinion that covers the situation in the present case. When repudiation occurred the right to the $45,000 non-refundable deposit had already accrued to the plaintiff. The acceptance of the repudiation by the plaintiff did not affect that right. The plaintiff was still entitled to claim under the contract for that accrued right and, as a result, I conclude that the learned trial judge came to the correct conclusion. In the result, I would dismiss the appeal. [42] Furthermore, the England and Wales High Court (Commercial Court) and Court of Appeal (Civil Division) have rejected the argument that only a paid deposit is valuable: see Griffon Shipping LLC v. Firodia Shipping Limited , [2013] EWHC 593 (Comm.), aff’d Firodi Shipping Limited v. Griffon Shipping LLC , [2013] EWCA Civ. 1567, where Mr. Justice Teare stated at para. 27: The requirement to pay a deposit encourages the buyer to perform. “It is a guarantee that the purchaser means business”; see Soper v Arnold (1889) 14 AC 429 at p.435 per Lord Macnaughten. The encouragement flows from the fact that the deposit may indeed exceed the seller’s damages. … Moreover, it has long been recognised that a deposit which has been paid will be forfeited if the buyer fails to perform even though the deposit exceeds the loss of bargain damages. In those circumstances there is, in my judgment, no commercial or business sense in permitting a buyer to improve his position by the simple expedient of not paying the deposit. This has been recognised since at least 1868; see Hinton v Sparkes [ (1868) 3 LR 3 CP 161 at p.166 ]. [43] The Court in Griffon emphasized, at paras. 18 and 26, the value of a commitment to pay a deposit, as distinct from receipt of a deposit: The right to a deposit is valuable. It is the seller’s “security for the correct fulfilment of this Agreement”. It has long been recognised that a deposit remains payable notwithstanding the termination of the contract.... The court would therefore expect that if the parties intended to exclude such right they would do so by the use of clear words A deposit serves the commercial purpose of providing the seller with security for the performance of the MOA. It would not be consistent with business common sense to enable a buyer to put himself in a better position than he would be in having paid the deposit by adopting the simple expedient of refusing to pay the deposit... [44] On this point, I agree with the respondent that to accept the appellants’ argument on this point would create an inequitable situation in which a party to a contract could take advantage of its breach to obtain a better outcome than it would have had if they had performed their contractual obligations: see, for e.g., Angus v. Sian, 1982 CarswellBC 618 (B.C.S.C.) at paras. 35 and 41. [45] Accepting that the respondent can sue the appellant for judgment in the amount of the unpaid deposit, a question remains as to whether this is properly characterized as a claim for damages or debt. In this case, the judge did not identify the award as either. The respondent says that the judge awarded damages. As the judge made no reviewable error in making the award, it is not necessary to decide the issue in this case. Nevertheless, it is worth noting that both remedies are referred to in the case law. [46] There is authority in this province for the proposition that a claim relating to an unpaid deposit is a claim for debt: see e.g., Busnex Business Exchange Ltd. v. Canadian Medical Legacy Corp., 1999 BCCA 78 at para. 15, where an unpaid portion of a deposit was a claim in debt, and Vanvic, aff’g [1982] 5 WR 530, where this court upheld an award by the trial judge, who found that an unpaid deposit was a debt owing upon acceptance of the offer. The English cases referred to above also addressed this issue. In Firodi, at para. 4, the Court of Appeal clarified that an unpaid deposit that fell due before termination of the contract may be recovered as a debt. However, if the deposit had not fallen due —as occurred in Damon Compania Naviera v. Hapag-Lloyd International, the Blankenstein [1985] 1 WLR 435, where the deposit was due “on signing” but the contract was never signed—a claim may still be brought for damages for loss of bargain in the amount of the unpaid deposit. [47] Finally, in my view, none of the principles to which I have referred, in particular those in Vanvic, was overturned by this court in Tang . In Tang, this court held that a deposit is forfeitable regardless of whether the other party suffered any damages, and in doing so, reversed Agosti v. Winter, 2009 BCCA 490. Accordingly, in my view, the principle set out in Vanvic that a party may sue another for the amount of an unpaid deposit owing under a contract when it accepted the other party’s repudiation remains the law in this province. [48] As the authorities to which I have referred make clear, what is important is the state of affairs that existed when 534 accepted the appellants’ repudiation for non‑payment of the deposit on July 25, 2016. As noted by the judge at para. 50 of the Reasons, on July 15, 2016, 534 had offered the appellants the opportunity to “keep the contract alive”, but this was refused. The appellants’ repudiation was then accepted on July 25, 2016, and at that time, the unpaid deposit was due and owing. Conclusion [49] The Contract required the appellants to pay the deposit within ten business days of June 25, 2016, being July 11, 2016. This obligation was neither optional nor conditional. It was mandatory, a finding which the appellants urged the judge to make in support of their defence of non est factum . [50] In my view, no reviewable error was committed by the judge. In fact, the opposite is the case. [51] I would dismiss the appeal with thanks to counsel for their very helpful submissions. “The Honourable Mr. Justice Abrioux” I AGREE: “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Mr. Justice Butler”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Manning v. Dhalla, 2020 BCCA 35 Date: 20200117 Docket: CA46272 Between: Andreas Eric Manning, A.E. Manning M.D. Inc., and 0712199 B.C. Ltd. Respondents (Plaintiffs) And Naguib Dhalla Appellant (Defendant) Before: The Honourable Madam Justice DeWitt-Van Oosten (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated July 2, 2019 ( Manning v. Dhalla , 2019 BCSC 1067, Vancouver Docket S133517). Oral Reasons for Judgment Counsel for the Appellant: T.A. Hakemi Counsel for the Respondents: S. Kamboj Place and Date of Hearing: Vancouver, British Columbia January 17, 2020 Place and Date of Judgment: Vancouver, British Columbia January 17, 2020 Summary: The respondents sought $350,000 in security for costs of the appeal and costs of the trial.  Held: Application allowed in part.  Security for costs of the appeal is granted in the amount of $35,000.  It must be posted within 30 days.  The application for security for costs of the trial is adjourned, generally.  The respondents did not provide sufficient information to substantiate the amount sought. [1] DEWITT-VAN OOSTEN J.A. : The respondents seek the following orders: (1) $350,000 as security for costs of the appeal and costs of the trial; (2) a stay of the appeal pending the posting of security; (3) leave to apply to dismiss the appeal if security is not posted within 30 days; and (4) costs on the application. [2] The appellant is opposed to all four orders. Background [3] From 2008 to 2011, the appellant, Naguib Dhalla, was retained to assist the respondent, Andreas Eric Manning (a physician), and his two companies with bookkeeping and other financial tasks. Dr. Manning is the sole officer, director, and shareholder of the companies.  In this role, Mr. Dhalla engaged in discussions with Dr. Manning about investment opportunities.  Among other things, he is said to have encouraged Dr. Manning to invest over $12 million in a Ponzi scheme orchestrated by Rashida Samji, a notary public. Dr. Manning alleges that, unbeknownst to him, Mr. Dhalla received a commission from Ms. Samji for securing that investment. [4] In 2012, the Ponzi scheme collapsed and the respondents lost over $8 million.  In a related class action, Ms. Samji was found to have committed fraud, misrepresentation, breach of trust, and conversion: Jer v. Samji , 2014 BCSC 1629; aff’d 2015 BCCA 257, leave to appeal ref’d [2015] S.C.C.A. No. 345 (S.C.C.).  She was also found guilty of fraud and theft under the Criminal Code , R.S.C. 1985, c. C‑46, and sentenced to six years’ imprisonment: R. v. Samji , 2016 BCPC 301.  Finally, the BC Securities Commission imposed penalties against Ms. Samji that include a disgorgement order of more than $10 million and an administrative penalty of $33 million: Samji (Re) , 2015 BCSECCOM 29.  The Commission found that Ms. Samji perpetrated a fraud by trading securities to at least 200 investors for proceeds of at least $100 million: Samji (Re) , 2014 BCSECCOM 286. [5] I understand that since the collapse of the Ponzi scheme, the respondents have recovered about $3 million of their losses.  They continue to seek remedies in respect of the remaining $5 million. [6] This appeal arises from an action in fraudulent misrepresentation that was brought against Mr. Dhalla by the respondents in May 2013.  Mr. Dhalla is alleged to have concealed the commission he received from Ms. Samji in exchange for the respondents’ investment. [7] On December 5, 2018, Justice Branch dismissed the respondents’ action: Manning v. Dhalla , 2018 BCSC 2148.  The primary basis for the dismissal was that the respondents failed to prove that Mr. Dhalla received a commission.  There is an outstanding appeal from that dismissal, although presently in abeyance. [8] Approximately two weeks after the dismissal, the respondents received documents from legal counsel in the class action that appear to substantiate their claim of a commission.  Mr. Dhalla did not produce the documents in the court below; however, he has acknowledged that they likely originated with him. [9] The respondents applied for a mistrial based on Mr. Dhalla’s failure to disclose the documents.  The order dismissing the respondents’ claim had not been entered when the application was filed; accordingly, they took the position that Justice Branch was not functus. The trial judge granted the application for a mistrial on grounds that not doing so would result in a miscarriage of justice.  He found that “the entire trial was tainted by the absence of this information ….  The documents are so important that they are likely to change the complexion of everything heard at the trial”: Manning v. Dhalla , 2019 BCSC 1067 at para. 52.  Justice Branch subsequently awarded special costs to the respondents: Manning v. Dhalla , 2019 BCSC 1514.  Those costs have not been assessed.  Dr. Manning says that to complete the assessment would require that he waive privilege over his legal files on the misrepresentation action.  He is not prepared to do so until the action has completed. [10] Mr. Dhalla appeals from the order for a mistrial, as well as the award of special costs.  He contends that the trial judge erred in granting a mistrial, at least in part, on grounds that the “faster and less expensive option of an appeal would result in an injustice”.  Mr. Dhalla says the judge wrongly thought that a fresh evidence application on the appeal would not adequately address the situation, and a mistrial was therefore a more effective remedy to address any injustices that would otherwise result if the respondents were not able to have their civil claim reconsidered.  Mr. Dhalla also says it was reasonably open to the judge to re‑open the trial, allow the documents in as evidence, and give the parties an opportunity to address them, recalling witnesses if necessary.  From Mr. Dhalla’s perspective, it was not required that the trial begin afresh. Discussion A. Security for Costs of the Appeal [11] The jurisdiction to order security for costs of an appeal is found in s. 24(1) of the Court of Appeal Act , R.S.B.C. 1996, c. 77.  The appellant bears the onus of showing that an order is not warranted: Creative Salmon Company Ltd. v. Staniford , 2007 BCCA 285 at para. 9 (Chambers).  The primary question for me to answer is whether an order for security would be in the interests of justice: Lu v. Mao , 2006 BCCA 560 at para. 6 (Chambers).  The relevant factors were summarized in Gardezi v. Positive Living Society of British Columbia , 2018 BCCA 84 (Chambers): [29]      This Court generally considers five factors in determining whether to make an order for security for costs of the appeal.  The first factor is the appellant’s financial means.  If ordering security for costs would prevent the appellant from pursuing a meritorious appeal, it may not be in the interests of justice to make the order: Zen v. M.R.S. Trust Company (1997), 88 B.C.A.C. 198 (Chambers).  However, the Court may require the appellant to post security for costs of the appeal even if obtaining the funds would be difficult: D. Bacon Holdings Ltd. v. Naramata Vines Inc. , 2010 BCCA 427 at para. 21 (Chambers). [30]      The second factor is whether the costs of the appeal will be readily recoverable if the respondent succeeds.  If the applicant shows there is a serious question that recovery may be difficult, a presumption in favour of granting security for costs arises, unless the appellant can demonstrate the appeal has obvious merit: Edwards v. Moran , 2003 BCCA 443 at para. 14 (Chambers); Sangha v. Azevedo , 2005 BCCA 125 at para. 6 (Chambers). [31]      The third factor is the timing of the application for security.  Because the appeal is usually stayed until security is posted, injustice would result if the respondent applied for security for costs on the eve of the appeal: M.(M.) v. F.(R.) (1997), 43 B.C.L.R. (3d) 98 at 101 (C.A. in Chambers). [32]      The fourth factor is the merits of the appeal.  If the appeal is “virtually hopeless” or “bound to fail”, security for costs may be ordered even if the order prevents the appellant from pursuing the appeal: Jenkins v. Swallow Frames & Cycles Ltd. (1997), 97 B.C.A.C. 81 at paras. 5, 7 (Chambers); Freshway Specialty Foods Inc. v. Map Produce LLC , 2006 BCCA 592 at para. 14 (Chambers).  On the other hand, the Court will not order security for costs if it would prevent the appellant from pursuing a meritorious appeal: Creative Salmon Company Ltd. at para. 12. [33]      The fifth and ultimate factor is whether the order for security for costs would be in the interests of justice: Lu v. Mao , 2006 BCCA 560 at para. 6 (Chambers). Appellant’s Financial Means [12] Applying this framework to the case before me, Mr. Dhalla has not filed an affidavit setting out his current financial circumstances.  He has not shown that he has sufficient assets to cover the costs of an appeal. [13] Nor has he shown that “he could not prosecute his appeal if ordered to secure the respondent’s costs”: Zen v. M.R.S. Trust Company (1997), 69 A.C.W.S. (3d) 608 (B.C. C.A.) at para. 18 (Chambers).  His counsel takes the position that affidavit evidence to this effect was not necessary.  Instead, the Court should simply infer, from the trial record and the evidence put forward by the respondents, that Mr. Dhalla is not someone with the means to post a large amount of security.  He says he could afford $5,000 in security, but anything above that is likely problematic. Difficulty of Recovery [14] The respondents contend that Mr. Dhalla does not have sufficient exigible assets to satisfy the order for special costs made below; any award for damages that might emerge from completion of the trial; costs on the trial if the respondents are successful in their claim for misrepresentation; or, costs on the appeal should Mr. Dhalla fail in his challenge to the order for a mistrial.  As noted, there is no evidence to the contrary. [15] According to the respondents, Mr. Dhalla holds a 1/7 interest as a registered owner of lands valued at $684,600.  However, there is a $500,000 mortgage against that property. [16] The respondents also contend that Mr. Dhalla has taken steps to place assets beyond the reach of creditors, which does not bode well for their ability to recover against him.  On May 30, 2019 (after the respondents filed their mistrial application), he is said to have transferred title of a residential property owned by him to his spouse for the sum of $1.00.  The assessed value of the transferred property is $1.31 million.  As I understand it, there are two mortgages registered against title, with a cumulative value of $1.56 million.  The second of these mortgages, which secures a loan of $1 million, was registered after Mr. Dhalla transferred the property to his spouse.  The respondents have filed an action in fraudulent conveyance in respect of that transfer. Timing of the Application [17] Mr. Dhalla commenced his appeal on August 1, 2019.  He filed the appeal record on September 30, 2019, and his appeal book on October 30, 2019.  He has not filed a factum. In accordance with Rule 21(1) of the Court of Appeal Rules , the factum was due October 30, 2019.  He requires an order to extend time for filing his factum.  Filing the factum is a necessary pre‑requisite to setting a date for hearing on the merits of the appeal. [18] The respondents’ motion for security of costs was filed on December 5, 2019.  However, on November 14, 2019, they advised Mr. Dhalla that they required security for costs (either by consent or pursuant to an order from this Court).  As such, he has had notice of a pending application since then. [19] While there has been delay in bringing this application (three and one half months), I see no real prejudice in granting security at this point.  The factums have not been prepared and a hearing date has not been secured.  Mr. Dhalla accepts, for today’s purposes, that the application for security is timely. Merits of the Appeal [20] Mr. Dhalla contends that his appeal has merit.  As noted, he says the trial judge wrongly thought that a mistrial was the only effective remedy.  The appellant does not contend that a mistrial was not jurisdictionally open to the trial judge; rather, it is the basis on which the order was granted that is contested by Mr. Dhalla.  He also points out that although the respondents’ claim was dismissed on the ground that there was no proof of a commission, the judge went on to make other findings that would have defeated the claim in any event (such as no reliance placed by Dr. Manning on Mr. Dhalla’s financial ‘advice’).  In deciding whether the judge committed reviewable error in granting a mistrial, these additional findings will need to be considered.  It is likely to be argued on the appeal that even if the late‑in‑the‑day documents established proof of a commission, it mattered not, because there was no reliance on anything said about the Ponzi scheme by Mr. Dhalla. [21] I have reviewed the reasons for judgment in the court below.  It is ultimately for a division to assess the merits of the appeal and determine whether the appellant is able to establish reversible error.  However, I note that in granting a mistrial, Justice Branch was alive to the fact that a mistrial is a “last resort” and “will occur only where the court concludes that no other curative measure will suffice” (at para. 33). [22] He also found that the “entire trial was tainted by the absence of [the discovered information]” (at para. 52).  As I read his reasons, based on his familiarity with the evidence, he concluded that even if the respondents could meet the test for fresh evidence on an appeal, that application and possibly the outcome of the appeal would be assessed within the context of a record that lacked “integrity” because of the appellant’s non‑disclosure of the relevant documents.  From the trial judge’s perspective, the availability of the documents would have changed everything at the trial, and the respondents were entitled to “an opportunity to reframe their case, from their pleadings and opening submissions, through to the evidence of their own witnesses” (at para. 52).  If they remained unsuccessful in proving their case against Mr. Dhalla, any subsequent appeal of the dismissal would at least be informed by a more complete (and accurate) evidentiary foundation. [23] I cannot say that the appeal is without merit.  However, on the face of it, I do not see obvious error in the reasoning brought to bear by the trial judge.  The granting of a mistrial is discretionary and not something interfered with lightly by this Court: Cleeve v. Gregerson, 2009 BCCA 2 at para. 33. [24] After weighing the relevant factors, as a whole, I am satisfied it is in the interests of justice to order that Mr. Dhalla post security for costs of the appeal.  The respondents contend that the appeal will cost approximately $50,000.  However, they have not provided a draft bill of costs supporting that estimate, or any other breakdown of the anticipated costs.  The appellant says the estimate is excessive.  The mistrial application took one day before Justice Branch and the appellant estimates a half day for the appeal.  In my view, posting $35,000 in security as costs of the appeal is reasonable in the circumstances of this case.  Although the mistrial application consumed only one day of court time, it may be that large portions of the trial record need to be available for the appeal to properly assess the judge’s determination that the entirety of the evidence was tainted by the non‑disclosure. B. Security for Costs of the Trial [25] The jurisdiction to order security for costs of the trial is found in s. 10(2)(b) of the Court of Appeal Act , which authorizes a justice to “make an interim order to prevent prejudice”.  This form of security is ordered less readily than costs of an appeal: Siekham v. Hiebert , 2008 BCCA 299 at para. 13 (Chambers).  The governing principles are set out in Aikenhead v. Jenkins , 2002 BCCA 234 at para. 30 (Chambers): 1. The onus is on the applicant to show that it is in the interest of justice to order posting for security of a trial judgment and/or of trial costs. 2. The applicant must show prejudice if the order is not made. 3. In determining the interests of justice the chambers judge should consider the merits of the appeal and the effect of such an order on the ability of the appellant to continue the appeal. [26] Applying these principles, I note that prejudice in an application for security of trial costs generally arises where “pursuit of the appeal negatively alters the respondent’s ability to recover sums found by the trial court to be owing to it”: Agent E v. Canada (Attorney General) , 2018 BCCA 492 at para. 17 (Chambers).  For example, prejudice can arise where an appellant obtains a stay of execution in respect of a trial judgment or trial costs, incidental to the appeal.  If a respondent’s ability to collect its trial costs is made no worse by the fact of an appeal, the threshold has likely not been met: Chan v . Vancouver Trade Mart Inc. (1997), 29 B.C.L.R. (3d) 264 (C.A.); D. Bacon Holdings Ltd. v. Naramata Vines Inc. , 2010 BCCA 427 at para. 25 (Chambers). [27] Here, as noted, the respondents submit that Mr. Dhalla does not have sufficient exigible assets to satisfy the special costs award.  Moreover, by transferring real property to his spouse, Mr. Dhalla has made it more difficult (and less likely) that the respondents will be able to recover on that judgment, or any other monetary amounts that may be awarded in their favour.  The respondents say that Mr. Dhalla’s conduct in the court below shows he is willing to mislead the court and disobey the rules; as such, they have little faith he will voluntarily pay amounts ordered against him.  They now find themselves having to expend further costs to defend what they believe is a meritless appeal. [28] I appreciate the respondents’ concerns; however, in my view, the prejudice alleged in support of their application for costs of the trial does not arise from the fact of an appeal.  Rather, it is predominantly grounded in circumstances that existed prior to the appeal having been filed, and would have existed in any event. [29] The respondents have not submitted a certificate of costs relating to the trial (the costs have not been assessed), or even a draft bill of costs.  The affidavits depose that the actual costs incurred at trial were in excess of $380,000. However, there is no particularization. [30] There are cases in which this Court has declined to rule on an application for security for trial costs where costs have yet to be assessed.  See, for example, Buchy v. Villars , 2008 BCCA 237 at para. 3 (Chambers); Friends of Davie Bay v. British Columbia , 2011 BCCA 491 at para. 14 (Chambers).  At the same time, I appreciate there are decisions in which security has been granted, even without that evidence.  See, for example, Lombardo v. Lombardo, 2008 BCCA 21. It is a case‑by‑case determination. [31] The respondents are seeking $300,000 in security for costs of the trial.  That is a considerable amount.  The information before me is insufficient to decide whether the whole of that amount, or only a portion of it, will be included in the assessment of special costs.  To come up with a figure at this time would be speculative.  I note that the order granting special costs is itself under appeal. [32] As stated, although I cannot say the appeal lacks merit, I do not find it to be a strong challenge, as currently framed.  Mr. Dhalla has not tendered financial information indicating that an order for security of costs of the trial will present an undue hardship to him, or preclude him from pursuing his appeal.  However, given the primary genesis of the prejudice alleged by the respondents; the lack of particularization provided in support of the estimate of $300,000; and the fact that an assessment of costs will not occur for some time, in part because of the position taken by the respondents on production of their legal files, I consider it in the interests of justice to adjourn this aspect of the respondents’ motion generally.  They have leave to re‑apply should greater particularization become available, there is a material change in circumstance, or additional information comes to light that necessitates reconsideration. C. Stay of Appeal Pending Posting of Security [33] Where the Court orders security for costs, it will usually stay the appeal until security is posted: Pitt Polder Preservation Society v. Pitt Meadows (District) , 1999 BCCA 593 at para. 5 (Chambers); Austin v. Goerz , 2007 BCCA 151 at para. 6. D. Leave to Appeal to Dismiss as Abandoned [34] The respondents seek an order for leave to apply to dismiss the appeal as abandoned if security is not posted within 30 days.  That order is unnecessary as s. 24(2) of the Court of Appeal Act gives a justice the power to dismiss the appeal of an appellant who fails to comply with an order to post security for costs of the appeal: Sutherland v. Reeves , 2013 BCCA 495 at paras. 22–23 (Chambers); The Owners, Strata Plan LMS3259 v. Sze Hang Holding Inc. , 2010 BCCA 80 at para. 9 (Chambers). E. Costs of the Application [35] Usually, costs on this type of application will be costs in the appeal: Lee v. Lee , 2014 BCCA 155 at para. 62 (Chambers); Pearlman v. Insurance Corporation of British Columbia , 2009 BCCA 237 at para. 35 (Chambers).  However, the application in this case was necessitated, in large part, because of Mr. Dhalla’s conduct in the court below.  In those circumstances, I consider it appropriate to order that the respondents receive their costs on the application, in any event of the appeal. Disposition [36] For the reasons provided, I order that Mr. Dhalla post security for costs of the appeal in the amount of $35,000.  The appeal is stayed until the security is posted.  The appellant has 30 days in which to do so.  I grant the respondents costs on this application, in any event of the appeal. [37] The application for security for costs of the trial is adjourned generally. [38] Finally, the application for leave to apply to dismiss the appeal if security for costs of the appeal is not posted within 30 days is dismissed on the basis that it is not necessary. “The Honourable Madam Justice DeWitt‑Van Oosten”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Pavlovich v. Danilovic, 2020 BCCA 36 Date: 20200117 Docket: CA45939 Between: Ljuba Pavlovich Respondent (Plaintiff) And Alexander Gordon Danilovic Appellant (Defendant) Before: The Honourable Madam Justice DeWitt‑Van Oosten (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated February 11, 2019 ( Pavlovich v. Danilovic , 2019 BCSC 153, Vancouver Docket S158302). Oral Reasons for Judgment Counsel for the Appellant: J.M. Richter A.M. James Counsel for the Respondent: R.D. Bellamy Place and Date of Hearing: Vancouver, British Columbia January 17, 2020 Place and Date of Judgment: Vancouver, British Columbia January 17, 2020 Summary: The appellant applied to file an amended factum and supplementary appeal book, as well as to adjourn the hearing of the appeal.  Held: Application allowed.  The additional issue raised by the appellant stems from recent developments in the case law, was raised in the court below, and likely can be addressed on the already‑established factual record.  An adjournment of the appeal carries little prejudice. [1] DEWITT‑VAN OOSTEN J.A. : The appellant, Alexander Danilovic, seeks three orders: (1) leave to file an amended factum; (2) leave to file a supplementary appeal book that includes the closing submissions at trial; and (3) an adjournment of the hearing of the appeal (scheduled for January 22, 2020). [2] The appellant has also filed an application to adduce fresh evidence at the appeal; however, that application is not before me.  Instead, it will be determined by the division that hears the appeal on its merits. Background [3] The appeal arises out of a dispute between the parties about their respective entitlement to beneficial interest in two residential properties purchased by the parties’ parents, both of whom are now deceased. [4] After the mother’s death, and at separate times, each of the properties was made the subject of a joint tenancy between the father and the appellant, Mr. Danilovic.  I understand that the second of these transfers was executed solely by the appellant, relying on a power of attorney provided to him by his father that allowed the appellant to transfer the father’s assets to himself.  The father passed away and died intestate (a will has not been located).  If the joint tenancies effected a transfer of the entire legal and beneficial interest in the properties to the appellant, including rights of survivorship, the properties would not form part of the father’s estate for division amongst any deemed beneficiaries. [5] It is Mr. Danilovic’s position that he is entitled to full legal and beneficial ownership of the properties and that his father intended such to be the case at the time the transfers were made.  Ljuba Pavlovich, the appellant’s sister and respondent in this matter, contends that the appellant holds the properties in trust and she is entitled to a share of their value equal to that of any other deemed beneficiaries, including (but not limited to) the appellant. [6] The dispute between the siblings went to trial: Pavlovich v. Danilovic, 2019 BCSC 153 [“Trial Reasons”].  The trial judge rejected the respondent’s submission in favour of an express trust.  However, she found that the transfers into a joint tenancy with the appellant were “gratuitous” and, as such, subject to a rebuttable presumption of resulting trust.  The judge further found that the appellant did not displace that presumption on the evidence.  The judge could not determine the father’s intention on a balance of probabilities.  Instead, the “evidence [stood] in equipoise” (at para. 55).  In light of this conclusion, and by operation of the presumption, the judge declared that the appellant holds both properties on a resulting trust for the father’s estate (at para. 56). [7] The appellant seeks to overturn the judge’s ruling.  In his factum, filed May 31, 2019, he raises one ground of appeal, namely, that the judge committed palpable and overriding error in concluding the appellant failed to rebut the presumption of a resulting trust. [8] The ground of appeal has three components.  Specifically, the appellant contends that the judge: (1) failed to consider testimony provided by the appellant’s spouse on the father’s intention in transferring the properties; (2) failed to consider documentary evidence consistent with the appellant’s position; and (3) speculated about the transfer of the properties reflecting an intentional financial strategy that was “aimed at saving the family money in probate”. Appellant’s Application [9] The appellant’s notice of motion, brought on December 20, 2019, seeks to file an amended factum that adds an additional argument in support of his appeal. [10] In particular, he asks for leave to advance the proposition that the trial judge erred in law by limiting her analysis on the father’s intention at the time of the impugned transfers to whether the father intended that the appellant receive beneficial ownership of the properties.  The appellant says the judge should have also considered, as a separate possibility, that the father intended to transfer an immediate legal interest, retain beneficial ownership during his lifetime, but give the appellant a right of survivorship that would entitle him to full and exclusive beneficial ownership of both properties upon the father’s death.  The appellant says the trial judge failed to appreciate that a right of survivorship is a distinct right accompanying a joint tenancy. [11] The additional ground of appeal has been brought forward seven months after the appellant filed his factum.  The hearing of the appeal is less than a week away (as noted, it is scheduled for January 22).  The appellant appreciates that the request to amend is late in the day; however, he says it is based on two decisions that were released after he filed his factum, one of which is this Court’s decision in Herbach v. Herbach Estate, 2019 BCCA 370 (released October 11, 2019).  The appellant says the case clarifies, at para. 24, that a transfer of property into joint tenancy may consist of an immediate grant of a legal interest and a beneficial right of survivorship, even though the transferor retains beneficial ownership of the property during their lifetime.  With this kind of an arrangement, full beneficial ownership of the property vests in the joint tenant upon death. [12] The appellant says that Herbach and a decision out of the British Columbia Supreme Court ( Petrick v. Petrick, 2019 BCSC 1319) raise a critical point that should have been considered by the trial judge on the evidentiary foundation before her.  She did not do so and the appellant contends that as a result, the judge applied an incomplete legal test in deciding whether the evidence relied upon by the appellant was sufficient to rebut the presumption of a resulting trust.  She could have found that the presumption had been rebutted, even though not satisfied of proof of an intention to transfer beneficial ownership of the properties to the appellant at the time the relevant documents were executed. [13] In fact, the appellant intends to argue that this is the only logical conclusion the trial judge could have reached.  She accepted that the father “organized his affairs including his property holdings so as to minimize his tax obligations” on death: Trial Reasons at para. 47.  She also found that his actions in doing so were informed by an understanding of the legal consequences of a joint tenancy, based on his assumption of full legal and beneficial ownership of the impugned properties when his wife died many years prior (at para. 47).  This would have included a right of survivorship.  In light of the judge’s findings, the appellant says that her conclusion about the evidence not rebutting a presumption of resulting trust cannot stand.  Had she turned her mind to the right of survivorship as a distinct right, capable of transfer at the time the joint tenancy was created, she would have had to have found that the father’s intention must have been to transfer a right of survivorship in both properties to the appellant, consistent with the results of his own joint tenancy with his spouse.  He would have understood that that was the route by which to keep the properties out of his estate and free from the related tax implications. [14] The respondent is opposed to the request to file an amended factum.  Among other things, she cites MacMillan Bloedel v. Youell (1993) , 23 B.C.A.C. 214, 43 A.C.W.S. (3d) 7 (B.C.C.A.) and Block Bros. Realty Ltd. v. Boese and Gonzo (1988) , 24 B.C.L.R. (2d) 178 (C.A.), which stand for the proposition that a party should not be allowed to amend their factum shortly before the hearing unless it is beyond doubt that all factual issues relevant to the new issue were before the trial court (see para. 12 of MacMillan and para. 3 of Block Bros. ).  The respondent argues that in this case, it cannot be said that all factual issues relevant to the proposed amendments were before the court.  To the contrary, the respondent says the issue now sought to be raised is closely entwined with the fresh evidence that the appellant seeks to introduce at the hearing of the appeal, making the point that the appellant cannot substantiate the additional alleged error in the absence of a buttressed evidentiary record. [15] After hearing submissions from both sides, and reviewing the application materials, I am satisfied it is in the interests of justice to grant the appellant leave to amend his factum as requested; grant leave to file a supplementary appeal book with the closing submissions from trial; and adjourn the appeal to ensure that the respondent has sufficient opportunity to respond to the amended factum.  In light of this ruling, if the respondent considers it necessary to amend her factum to respond to the new ground of appeal, she has leave to do so. [16] In my view, the additional argument likely can be resolved on the factual record established in the court below, although, ultimately, that will be for the division to determine.  The issue is not dependent on the admission of the fresh evidence.  This is not a situation akin to Shannon v. Gidden, 1999 BCCA 461 (Chambers), for example, in which leave to file an amended factum was denied because an entirely different body of evidence was required to properly assess the newly found challenge to the judge’s ruling (at para. 6). A central issue at trial in this case was the father’s intention at the time of the impugned transfers.  Considerable evidence was called on that point, including the history involving the two properties, the father’s involvement with the properties, and the effect of his spouse’s death on his beneficial ownership of those properties. [17] The judge made specific findings in that regard.  The additional legal argument in support of overturning the trial judgment can likely be assessed with reference to those findings, within the context of the reasons as a whole.  I agree with the appellant that on the face of it, the supplemental issue is more legal in nature than it is factual and, consistent with the approach taken in MacMillan at para. 13, I am reluctant to deny the appellant an opportunity to advance an issue of that nature.  In response to his sister’s notice of civil claim, the appellant pleaded that the father intended to “gift an undivided one half interest” in both properties to the appellant.  This pleading is broad enough in scope to include the argument now raised by the appellant.  I am also satisfied, based on the closing submissions, that the right of survivorship was addressed by both parties before the trial judge.  It was a live issue at trial. [18] The orders sought by the appellant are discretionary.  The appeal was filed in March 2019, less than a year ago.  The January 22 date is the first hearing date for the appeal and I understand that if adjourned, there is time available for hearing in February and March.  In fact, I have been advised that the parties have spoken of a new date and counsel agree the appeal could be heard on March 24.  As such, an adjournment will not result in considerable delay.  The appellant has provided a legitimate reason for the proposed amendments to his factum and request for an adjournment.  I accept that clarity on the proper analytical approach for the assessment of a right of survivorship did not present itself to the appellant until October 2019, when Herbach was released.  The proposed amendments to the factum have been articulated and the respondent has been aware of them since December.  I do not consider the additional issue to be overly complex.  In my view, the prejudice brought about by an amendment, the addition of the closing submissions (already known to the respondent), and a relatively brief adjournment of the appeal, is minimal. [19] The appeal is hereby removed from the hearing list for January 22, 2020, and adjourned generally.  Counsel are to confirm March 24, 2020, as the new date as expeditiously as possible. [20] Costs on the application will be costs in the appeal. “The Honourable Madam Justice DeWitt‑Van Oosten”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Veeken, 2020 BCCA 54 Date: 20200117 Docket: CA45929 Between: Regina Respondent And Paul Peter Veeken Appellant Restriction on publication:  A publication ban has been imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainant in this matter. This publication ban applies indefinitely unless otherwise ordered. Pursuant to s. 16(4) of the Sex Offender Information and Registration Act [ SOIRA ], no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA . Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Fitch The Honourable Mr. Justice Grauer On appeal from:  An order of the Supreme Court of British Columbia, dated December 12, 2018 (conviction) ( R. v. Veeken , 2018 BCSC 2429, Prince George Docket 37730‑2). Oral Reasons for Judgment Counsel for the Appellant: S.R. Wright Counsel for the Respondent: J.R.W. Caldwell Place and Date of Hearing: Vancouver, British Columbia January 17, 2020 Place and Date of Judgment: Vancouver, British Columbia January 17, 2020 Summary: The appellant challenges his conviction for sexual interference on various grounds including that the judge erred by: (1) editing the oral reasons for judgment after they were delivered; and (2) shifting the burden of proof. Held: Appeal allowed and a new trial is ordered. It is unnecessary for this Court to address the extent to which trial judges can edit their oral reasons for judgment after delivery. The edited reasons for judgment, standing alone, establish that the judge erred in law by shifting the burden of proof. The judge erroneously concluded that he could neither accept the appellant’s evidence nor find that it raised a reasonable doubt in the absence of independent evidence that confirmed the appellant’s denial of wrongdoing. [1] FITCH J.A. : The appellant was convicted by a Supreme Court judge of sexual interference contrary to s. 151 of the Criminal Code , R.S.C. 1985, c. C‑46. The offence arose out of incidents said to have occurred when the complainant was between 10–12 years of age. At the relevant time, the appellant was 38–40 years of age. The alleged incidents involved the appellant repeatedly touching the complainant’s breasts and vaginal area, typically in the course of tickling her when the complainant visited the appellant at his family’s cabin. [2] The appellant testified. He denied ever touching the complainant for a sexual purpose. [3] This was the second trial in this matter — a new trial having been ordered by this Court in reasons for judgment indexed as 2017 BCCA 417. [4] There was no direct evidence confirming the complainant’s testimony that the appellant repeatedly touched her breasts and vaginal area. The trial judge recognized that the resolution of the case turned on his credibility findings and the application of the framework set out in R. v. W.(D.) , [1991] 1 S.C.R. 742, to the circumstances of this case. [5] The three‑step W.(D.) analysis is designed to assist the trier of fact in properly applying the reasonable doubt standard to the issue of credibility. Where, as here, an accused denies the commission of the offence, a trier of fact must find the accused not guilty if they believe the accused’s evidence or, even if they do not believe the accused’s evidence, they are left in reasonable doubt by it. If the trier of fact does not believe the accused’s denial and is not left with a reasonable doubt by the accused’s testimony, a conviction can only result where the Crown discharges its burden of establishing guilt beyond a reasonable doubt. [6] In oral reasons for judgment indexed as 2018 BCSC 2429, the judge rejected the appellant’s evidence, found that the appellant’s evidence did not raise a reasonable doubt, and accepted the complainant’s evidence that the appellant repeatedly touched her for a sexual purpose. [7] On appeal, the appellant submits that the judge erred by: (1) editing the oral reasons for judgment after they were delivered; (2) shifting the burden of proof; (3) misapprehending evidence; and (4) providing insufficient reasons for judgment. [8] The first ground of appeal raises an important question of practice concerning the extent to which trial judges are entitled to edit reasons given orally. This Court has addressed the point on several occasions: R. v. Walton , 2011 BCCA 535 at para. 21; R. v. Pham (6 September 2011), Vancouver CA038676 (B.C.C.A. Chambers). We have consistently held that while trial judges cannot edit or change their oral reasons “in an attempt to defeat an appeal”, judges are entitled to edit their reasons “to a degree” as, for example, where words have been misspoken or some clarification is necessary. I should add that no suggestion has been made in this case that the judge undertook an editing process to defeat an appeal. In fact, the edited judgment was released before the notice of appeal was filed in this Court. [9] A similar approach to this issue was taken by the Alberta Court of Appeal in R. v. Schell , 2004 ABCA 143 at paras. 43 and 45. In that case, it was held that the judge did nothing impermissible by deleting a sentence from her oral reasons for judgment in circumstances where “the … written reasons [did] not deviate from the general thrust of their oral predecessor”: citing Roman N. Komar, Reasons for Judgment: A Handbook for Judges and Other Judicial Officers (Toronto: Butterworths, 1980) at 16. [10] It appears that a more restrictive view has been taken by the Ontario Court of Appeal: R. v. Wang , 2010 ONCA 435 at paras. 9–11. In that case, trial judges were cautioned against modifying, changing or adding to a transcript of oral reasons rendered in court except to correct “punctuation, grammatical errors and the like.” The court endorsed the proposition that reasons for judgment are not meant to be tentative and counsel who receive a transcript of oral reasons should not “be left to wonder whether it in fact reflects what was said in the court, or rather constitutes a version of the reasons as later modified by the judge.” [11] In this case, the judge amended his oral reasons for judgment by deleting from the transcribed version words said in court, including language the appellant says would have supported his second ground of appeal. The appellant submits that the amendments made were substantive in nature and exceeded the authority trial judges have to edit oral reasons. [12] In the alternative, the appellant argues that the edited reasons for judgment, standing alone, establish that the judge erred in law by shifting the burden of proof. [13] I agree with the appellant’s alternative submission on this issue. In my view, reversible error in law is reflected in the edited version of the reasons for judgment. As a consequence, it is unnecessary for this Court to address the extent to which trial judges can edit their oral reasons for judgment to properly dispose of this appeal. In these circumstances, the issue is best left to be explored another day. [14] Further, as I am of the view that a new trial is required as a consequence of the error identified in the appellant’s second ground of appeal, I consider it unnecessary to address the appellant’s other grounds of appeal. [15] The reasons, as edited and transcribed, reflect the following application of the first two steps of the W.(D.) framework to the evidence in this case: [72]      Accordingly, the first step in the analysis in the case at bar is whether I accept, as true, Mr. Veeken’s testimony that he did not touch [the complainant’s] breast and vaginal areas at any time. In this regard, the Crown characterizes Mr. Veeken’s evidence as a “bare denial” and while the defence acknowledges that this is so, it points out that there is “not much else” that Mr. Veeken can do to meet the allegations against him. It is not controversial that there is no reliable evidence supporting Mr. Veeken’s denial. [73] In these circumstances, I am satisfied that a finding that Mr. Veeken’s denial is true cannot reasonably be made. I am mindful that the defence has urged me to rely upon Mr. Veeken’s testimonial demeanour and manner, by submitting that Mr. Veeken was forthright, gave full answers, explained suggested inconsistencies, and was not shaken in cross‑examination. I am not persuaded, however, that Mr. Veeken’s demeanour and manner are a sound basis for accepting his testimony as true. Notably, the Crown did not agree with the defence’s assessment; rather, it characterized Mr. Veeken as glib and evasive. These widely divergent views of the same testimony only serve to demonstrate the frailty of manner and demeanour as the basis for determining the truthfulness of a witness. [74] The next step, then, is whether Mr. Veeken’s testimony raises a reasonable doubt as to his guilt. This is similarly problematic in the absence of reliable evidence that supports, directly or indirectly, Mr. Veeken’s denial. Moreover, Mr. Veeken admits having [the complainant] on his lap and tickling her; he admits pulling her onto his lap while in the hot tub; and, he admits spending evenings and nights with only [the complainant] and her nine‑year‑old brother. [Emphasis added.] [16] In my view, these paragraphs support the appellant’s submission that his evidence was rejected and found not to raise a reasonable doubt because it was not confirmed by any other reliable evidence. Beyond the obvious challenge of requiring the appellant to adduce evidence supporting his denial — in effect, to corroborate a negative — the trial judge’s approach had the effect of erroneously shifting the burden of proof. [17] The judge was certainly entitled to reject the appellant’s evidence and find that it did not raise a reasonable doubt about his guilt. The difficulty in this case arises because of the judge’s conclusion that he could neither accept the appellant’s evidence nor find that it raised a reasonable doubt in the absence of independent and reliable evidence supporting his account. To approach the issue this way was to erroneously shift the burden to the accused to adduce evidence that confirmed his denial of wrongdoing. [18] While I appreciate that the reasons for judgment must be read in their entirety and assessed as a whole, the error in law was the starting place for the judge’s W.(D.) analysis and, in my view, one so fundamental that it taints his reasons as a whole. [19] For the foregoing reasons, I would allow the appeal, set aside the conviction, and order a new trial. [20] In light of the disposition, I propose it is unnecessary to resolve the application to admit fresh evidence. [21] SAUNDERS J.A. : I agree. [22] GRAUER J.A. : I agree. [23] SAUNDERS J.A. : The appeal is allowed, the conviction is set aside, and there is an order for a new trial. “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. A.L., 2020 BCCA 18 Date: 20200120 Docket: CA45690 Between: Regina Respondent And A.L. Appellant Restriction on publication:  Section 16(4) of the Sex Offender Information and Registration Act [ SOIRA ]. This section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA . A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting, or transmission in any way of evidence that could identify a complainant or witness under the age of 18. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Newbury The Honourable Mr. Justice Fitch On appeal from:  An order of the Supreme Court of British Columbia, dated March 16, 2018 (conviction) ( R. v. A.L. , New Westminster Docket No. X080226). Counsel for the Appellant: T.C. Paisana M. Shah Counsel for the Respondent: M.E. Sandford, Q.C. Place and Date of Hearing: Vancouver, British Columbia April 18, 2019 Place and Date of Judgment: Vancouver, British Columbia January 20, 2020 Written Reasons by: The Honourable Mr. Justice Fitch Concurred in by: The Honourable Chief Justice Bauman The Honourable Madam Justice Newbury Summary: Appeal from conviction for sexual assault‑related offences and one count of uttering a threat. The offences involved one complainant and were alleged to have been committed over a period of approximately 30 years. The complainant was left with the appellant when she was eight years old and entirely dependent on him. The complainant testified that she was subjected to physical, emotional and sexual abuse by the appellant which began shortly after she was left in his care. The appellant testified. He denied abusing the complainant when she was a child but admitted to having sexual intercourse with her after she turned 15 years of age (the age of consent was 14 at the material time). The appellant acknowledged that he began having sexual intercourse with the complainant when she was in a relationship of dependency with him. He nonetheless characterized as consensual all sexual contact he had with the complainant. The complainant had four children by the appellant, the first when she was 15 years of age. The Crown was permitted to lead evidence of acts of extrinsic misconduct by the appellant, including in relation to matters predating the start date of the indictment. The defence unsuccessfully sought to adduce, both in the cross‑examination of the complainant and as part of its case, a sexually explicit video depicting the appellant and complainant engaging in a variety of sexual acts. The appellant advances three grounds of appeal. He alleges that the trial judge erred in: (1) admitting evidence of extrinsic misconduct and failing to provide a sufficient instruction on the limited use the jury could make of bad character evidence; (2) failing to instruct the jury that a finding of guilt on one count had no probative value in relation to the other counts; and (3) excluding the video evidence. Held: Appeal dismissed. First, the evidence of extrinsic misconduct was admissible to put the relationship between the appellant and complainant in context and explain why the complainant stayed with the appellant for as long as she did without disclosing the abuse to anyone. Having regard to the charge as a whole, the jury would have understood the limited use that could properly be made of the bad character evidence. Second, while it may have been preferable for the trial judge to have given an express instruction that a finding of guilt on one count had no probative value in relation to any other count, nothing the judge said in her charge would convey to the jury that proof of guilt on one count could substitute as evidence constituting proof of guilt on another count. Indeed, the manner in which the jury was instructed guarded against such impermissible reasoning. Finally, the Crown conceded that the trial judge erred in her articulation of the Seaboyer test in her first ruling that excluded clips from the video for cross‑examination purposes. Properly applying the Seaboyer test to the circumstances of this case would, however, lead to the same conclusion. The video was not shown to have any probative value in cross‑examining the complainant. Even if the video had some limited probative value for cross‑examination purposes, it was substantially outweighed by the prejudice that would flow from its admission. The judge’s second ruling excluding the video as part of the defence case was not affected by error in principle. The judge’s determination that the limited probative value of the video was substantially outweighed by its prejudicial effect is therefore entitled to deference on appeal. The appellant established no grounds for interfering with that discretionary determination. Table of Contents I. Introduction [1] - [12] II. The Indictment [13] - [13] III. Detailed Overview of the Evidence and Rulings Challenged on Appeal [14] - [127] 1. The complainant is left in the appellant’s care at the age of eight [14] - [16] 2. Sexual assaults preceding the start date of the indictment [17] - [18] 3. Sexual offences alleged to have occurred during the time frame specified in the indictment [19] - [60] 4. The appellant’s unsuccessful attempts to have the video admitted at trial [61] - [71] 5. The first ruling prohibiting the appellant from using the video in cross‑examining the complainant ( Voir Dire #1) [72] - [79] 6. The evidence of the complainant’s mother [80] - [80] 7. The appellant’s evidence‑in‑chief [81] - [92] 8. The admissibility voir dire and second ruling excluding the video ( Voir Dire #2) [93] - [102] 9. The appellant’s evidence on cross‑examination [103] - [115] 10. Closing addresses [116] - [127] (a) The appellant’s trial counsel [116] - [121] (b) Crown counsel [122] - [127] IV. The Grounds of Appeal [128] - [128] V. Analysis [129] - [275] 1. Did the trial judge err in admitting evidence of extrinsic misconduct and by failing to provide a sufficient limiting instruction with respect to that evidence? [129] - [185] (a) The appellant’s position [129] - [132] (b) General principles [133] - [142] (c) Improper admission of the pre‑indictment sexual misconduct [143] - [161] (d) Improper admission of bad character evidence in relation to the charged counts [162] - [171] (e) The charge on the use the jury could make of the bad character evidence [172] - [185] 2. Did the trial judge err in failing to instruct the jury that a finding of guilt on one count had no probative value to the other counts? [186] - [197] (a) The appellant’s position [186] - [189] (b) General principles [190] - [191] (c) Analysis [192] - [197] 3. Did the trial judge err in excluding the video? [198] - [275] (a) The appellant’s position [198] - [207] (b) The Crown’s position [208] - [214] (c) Analysis [215] - [275] (i) Factual context informing the admissibility rulings [215] - [218] (ii) Legal context informing the admissibility rulings [219] - [236] (iii) Voir Dire #1: The admissibility ruling for cross‑examination purposes [237] - [260] (iv) Voir Dire #2: The ruling on the admissibility of the video as part of the defence case [261] - [275] VI. Conclusion [276] - [276] Reasons for Judgment of the Honourable Mr. Justice Fitch: I.   Introduction [1] The appellant was convicted by a jury of a number of sexual assault‑related offences and one count of uttering a threat to cause bodily harm. The offences were alleged to have occurred between January 4, 1983 and July 1, 2012. All of the offences were committed in relation to the same complainant, who was left in the appellant’s care by her mother when she was eight years old. The appellant is 19 years older than the complainant. It was common ground at trial that, as a child, the complainant was entirely dependent on the appellant for the necessities of life. [2] The complainant testified that the appellant began sexually assaulting her very shortly after she was left in his care. She described being subjected by the appellant to terrorizing acts of abuse designed to compel her compliance with his sexual demands. She testified that she gave in to those demands largely out of fear. [3] The appellant testified at trial. He denied sexually abusing the complainant when she was between the ages of eight and 14. He admitted, however, having what he described as consensual sexual intercourse with her when she was 15 and he was 34 years of age. At all material times, the age of consent was 14. The appellant admitted that when the first act of sexual intercourse occurred, he was a person with whom the complainant was in a relationship of dependency. [4] The appellant impregnated the complainant when she was 15 years old. She gave birth to their first child in 1990, about a month before she turned 16. It was an admitted fact at trial that in 1993, 1998 and 2000, the complainant gave birth to three other children fathered by the appellant. [5] For a significant period of time, the appellant falsely represented to others that he was the complainant’s father, not the father of her four children. Similarly, the complainant did not tell anyone that the appellant was the father of her children for a long time. She presented the appellant as her own father throughout her childhood and adolescent years. It was only later in life that she began presenting the appellant as her husband. [6] The complainant lived with the appellant for 30 years. She left him in 2012 when she was almost 38 years of age. Shortly thereafter, she reported to the police what she said had happened to her. [7] The Crown led evidence of a number of disreputable acts committed by the appellant — most of them in the early years of the relationship — to secure and maintain the complainant’s subservience and submission to his sexual desires. This bad character evidence included acts of domination and physical assault designed to instill fear, acts of humiliation designed to undermine the complainant’s self‑worth and independence, and acts involving the emotional manipulation and abuse of the complainant. [8] In addition, the bad character evidence adduced by the Crown included three instances of sexually assaultive behaviour by the appellant in the fall of 1982, a few months before the time period covered by the indictment. [9] Against this background, the appellant submits as his first ground of appeal that the trial judge erred: (1) by admitting bad character evidence; and (2) by failing to provide to the jury a sufficient limiting instruction regarding the use that they could properly make of this evidence. [10] The appellant’s second ground of appeal is that the judge erred: (1) by failing to instruct the jury not to use the evidence on one count to assist in proving guilt on another count; and (2) by failing to warn the jury that a finding of guilt on one count could not be used as evidence of guilt on another count. [11] The appellant’s third ground of appeal challenges rulings made by the judge in which she refused to admit a DVD created by the appellant and complainant depicting explicit sexual conduct between them. In the court below, the DVD was referred to as the “sex tape”. I will refer to it throughout these reasons as “the video”. The video was created when the complainant was approximately 20 years of age. It was said by the defence to depict an act of consensual sexual intercourse during the time span covered by Count 5 of the indictment. The judge made two rulings on this issue. The first prohibited the appellant’s trial counsel from cross‑examining the complainant on the contents of the video. The second prohibited introduction of the video as part of the defence case during the examination‑in‑chief of the appellant. [12] Some additional background is required to put the appellant’s grounds of appeal in context. II.  The Indictment [13] The appellant was charged in a six‑count indictment as follows: Count 1 (Sexual Assault) — That between the 4th day of January, 1983 and a day in July 1988, at Surrey, British Columbia and Red Deer, Alberta, he sexually assaulted the complainant contrary to s. 246.1 of the Criminal Code , R.S.C. 1970, c. C‑34 and R.S.C. 1985, c. C‑46. [ Section 246.1 came into force on January 4, 1983, the start date of this count. The time frame encompassed by the count ends the day before the complainant’s 14th birthday. The age of consent throughout this time frame was 14. As the complainant was between the ages of eight and 13 when this offence was alleged to have been committed, consent was not a defence. ]; Count 2 (Sexual Interference) — That between the 1st day of January, 1988 and a day in July 1988, at Surrey, British Columbia, he touched the complainant, a person under the age of 14, for a sexual purpose contrary to s. 140 of the Criminal Code , R.S.C. 1987, c. 24, s. 1. [ Section 140 came into force on January 1, 1988, the start date of this count. The complainant was then 13 years of age. As with Count 1, the time frame encompassed by this count ends the day before the complainant’s 14th birthday . Consent was not a defence. ]; Count 3 (Sexual Exploitation) — That between a day in July 1988 and a day in July 1992, at Maple Ridge and Surrey, British Columbia, while being a person in a position of trust or authority towards the complainant (“a young person”) or person with whom the complainant is in a relationship of dependency, he touched the complainant for a sexual purpose contrary to s. 146(1)(a) of the Criminal Code , R.S.C. 1987, c. 24, s. 1 and s. 153(1)(a) of the Criminal Code , R.S.C. 1985, c. 19 (3rd Supp.), s. 1. [ Section 146 came into force on January 1, 1988. Section 153 came into force on December 12, 1988, in identical terms. At all material times “young person” was defined to mean a person between 14 and 18 years of age. The time frame encompassed by this count begins the day the complainant turned 14 and ends the day before she turned 18. Consent was not a defence. ]; Count 4 (Sexual Assault) — That between a day in July 1988 and the 14th day of August, 1992, at Maple Ridge and Surrey, British Columbia, he sexually assaulted the complainant contrary to s. 246.1 of the Criminal Code , R.S.C. 1970, c. C‑34 and R.S.C. 1985, c. C‑46 and s. 271 of the Criminal Code , R.S.C. 1985, c. C‑46 and R.S.C. 1985, c. 19 (3rd Supp.), s. 10. [ Section 246.1 was in force until December 12, 1988, the date upon which s. 271 came into force in identical terms. The time frame encompassed by this count begins the day the complainant turned 14 and ends the day before s. 273.1 (defining “consent”) came into force . Consent and honest but mistaken belief in consent were defences to this count. With the agreement of the parties, honest but mistaken belief in consent was not left with the jury as a defence to this count. ]; Count 5 (Sexual Assault) — That between the 15th day of August, 1992 and the 1st day of July, 2012, at Maple Ridge, British Columbia and at Ancaster, Ontario, he sexually assaulted the complainant contrary to s. 271 of the Criminal Code , R.S.C. 1985, c. C‑46. [ The time frame encompassed by this count begins the day s. 273.1 (defining “consent”) and s. 273.2 (defining the defence of mistaken belief in consent) came into force and ends the day after the complainant left the appellant. Consent and honest but mistaken belief in consent were defences to this count and both were left with the jury. ]; Count 6 (Uttering Threats to Cause Death or Bodily Harm) — That between the 1st day of July, 1987 and the 1st day of November, 1989 at Surrey, British Columbia he knowingly uttered a threat to the complainant to cause her death or bodily harm contrary to s. 264.1(1) of the Criminal Code , R.S.C. 1985, c. C‑46. III. Detailed Overview of the Evidence and Rulings Challenged on Appeal 1.  The complainant is left in the appellant’s care at the age of eight [14] The complainant was born in 1974 and lived with her mother and two older brothers in Toronto, Ontario. The appellant had a sexual relationship with the complainant’s mother in Toronto in the late 1970s and early 1980s before he moved to Alberta to secure work. He knew the complainant when she was a “toddler.” The complainant’s mother gave birth to her third son in 1981. She claims that the appellant is the father of this child. [15] The complainant’s mother and four children visited the appellant in Red Deer, Alberta in the summer of 1982 when the complainant was eight years old and between Grades 2 and 3. It was common ground at trial that, after this visit, the complainant’s mother left the complainant and her one‑year‑old half‑brother in the appellant’s care. The complainant remembered begging her mother not to leave her behind, but recalled coming home from school one day and realizing that her mother was gone. She testified that “[t]hat’s when it changed.” She never lived with her mother or her two older brothers again. [16] A representative of the Child Welfare Branch of Alberta Social Services and Community Health had contact with the appellant in Red Deer in October 1982. The appellant claimed at that time to be the father of the complainant and her half‑brother. 2.  Sexual assaults preceding the start date of the indictment [17] The Crown led evidence from the complainant of the three incidents pre‑dating the January 4, 1983 start date of Count 1 of the indictment in which the appellant sexually assaulted her. The Crown characterized these incidents as grooming behaviour by the appellant. [18] The complainant testified that the first time the appellant sexually touched her was about a week after her mother had left Red Deer. This would have been in the late summer or early fall of 1982. On this occasion, the complainant testified that the appellant dried her after she had a bath by rubbing a towel in between her legs. She felt that the touching was wrong and testified that the appellant told her not to say anything to anyone about it. Not long after this incident, the complainant testified the appellant became angry with her for drawing a picture that said she loved her mother and brothers, but did not say the same about him. She testified the appellant pulled her pants down and spanked her before proceeding to caress her “bum” for a few minutes. The third incident occurred when the complainant was in Grade 3 in the fall of 1982. The complainant testified that she was scared of the dark, but that the appellant did not allow her to have a night light. When the complainant became frightened of the dark one evening, the appellant said she could come into his bedroom where there was some light. The complainant testified that she knew what this meant but was so scared of the dark that she got into his bed. He “spooned” her and she could feel the bulge of his penis against her lower backside as he pushed against her. 3.  Sexual offences alleged to have occurred during the time frame specified in the indictment [19] Sometime after Christmas of 1982 (and after the start date of the indictment), the complainant remembered waking the appellant up because it was dark, she heard a noise in the house and became frightened. The appellant was angry and made her pull her bottom clothing off and put on her infant half‑brother’s diaper. She cried and asked him not to make her do that because she felt humiliated to be forced to wear a diaper when she was nine years old. She testified that the appellant told her she could take the diaper off if she got into bed with him. When she did this, he put his hand on top of her vagina. She said it felt gross, dirty, degrading and wrong. She testified that touching incidents like this occurred a few times a month while she lived with the appellant in Red Deer. The appellant told her not to tell anyone about these incidents, that she was asking for it, and that no one would believe her if she said anything. The complainant testified that she felt scared and dirty. [20] In addition to the sexual touching, the complainant testified that while she lived in Red Deer, the appellant “treated [her] like a nothing.” He pinched her below her waist, and threw his construction boots at her causing bruises that were covered by her clothing. She also testified that he instructed her to keep her head down when walking with him and slapped her in the head when she did not comply. [21] The complainant testified that she was instructed by the appellant to call him “Dad” and to adopt his last name. She was not permitted by him to participate in extracurricular school activities, nor was she allowed to have her friends over. She testified that the appellant made her cut her “beautiful long hair” into a “mushroom cut like a boy” and wear “homely looking” clothing instead of the dresses she wore when she was with her mother. [22] The appellant relocated from Red Deer to Vancouver, British Columbia in the summer of 1983 when the complainant was nine years old. The complainant testified that the appellant’s sexually abusive behaviour escalated after this move. He masturbated in her presence and would guide her hand on his penis until he ejaculated. He told the complainant to perform oral sex on him. He ejaculated once in the complainant’s mouth but she gagged. On future occasions, he usually ejaculated on her chest or back. [23] After the move to Vancouver, the complainant would occasionally see her mother and brothers. She testified that the appellant always accompanied her on these visits. Both of the complainant’s older brothers testified that during these visits the appellant never left the complainant’s side or let her have time alone with them. [24] On one occasion after the move to Vancouver, the appellant, who was under a blue blanket but otherwise naked, made a gesture the complainant interpreted as a request for oral sex. When the complainant ignored him, the appellant said to her, “[D]o you want to see your mom?” The complainant said “Yes” and testified that she knew what she would have to do. She said she performed oral sex on the appellant who then put his penis between her legs. She said she then got to see her mother. [25] The complainant testified that there was only one occasion on which she refused to perform a sexual act requested by the appellant. This incident occurred in Vancouver. The complainant was between the ages of nine and 12. She testified that the appellant became enraged by her refusal, drove her to a secluded area, told her to get out and take her pants off, and then drove away. She remembers screaming hysterically. The appellant returned sometime later. She said she never refused the appellant after this incident because she was terrified and “look what happened [after] the first time I said no.” [26] The complainant testified that the sexual abuse escalated again around the time of her 12th birthday. She asked to see photographs of her mother and brothers. The appellant told her he would permit it if he could “put it in.” The complainant knew this meant penile penetration but agreed to the act because she wanted to see the photographs. She testified that the appellant pulled her legs apart, got on top of her and “thrust” his penis into her vagina. The complainant remembers screaming in pain and bleeding everywhere. She said he permitted her to see the photographs afterwards. [27] The complainant testified that the appellant continued to have sexual intercourse with her after this incident but used Vaseline as a lubricant. The appellant told the complainant that she wanted these acts to occur, that everyone would think so, and that she should not tell anyone because she would not be believed. The complainant said she was repeatedly told this and that it was a notion “burned in [her] head.” [28] She testified that the sexual assaults committed thereafter generally consisted of oral sex and penetration. If the appellant had vaginal intercourse with her, he would ejaculate on her chest or back. If the appellant had oral sex with her, he would sometimes ejaculate in her mouth and give her a towel to spit it out and clean up. [29] When the complainant was 11½ or 12, the appellant told her that she would start having her menstrual period. The complainant already knew this. The appellant said he would buy her tampons. He did so and left them in the bathroom for her. [30] The complainant testified that the visits with her mother and two older brothers stopped after an incident in which the appellant made her call her mother and say that she hated her and did not want to see her again. The complainant, who was 12 or 13 years old at the time, remembers the appellant coaching her through the conversation. After this conversation, the complainant did not see or speak with her mother for 25 years. [31] The complainant said that the appellant also isolated her from others. She was not allowed to play with school friends unless the appellant permitted it and was still not allowed to engage in extracurricular activities. On one occasion, where a school friend surprised her with birthday gifts, the appellant made her get rid of them. [32] While the complainant did have a Big Sister for a while, the appellant wanted her to take her half‑brother to these get‑togethers. The Big Sister explained that she was not a babysitting service and the relationship came to an end. The complainant testified that she never told her Big Sister what was happening to her because she was ashamed, made to feel dirty and did not want her Big Sister to think badly of her. She thought that no one would believe her. [33] The complainant said she continued to dress in boyish clothes and keep her hair short because the appellant wanted her to look that way. She said he controlled her appearance and dress. [34] The appellant, complainant and her half‑brother moved to Surrey, British Columbia in the summer of 1987 when she turned 13. The appellant was then 32 years of age. She testified that vaginal penetration or oral sex would occur about once a week in the living room or the appellant’s bedroom. She never said no to the appellant during this time noting, “I learned from [the] last time.” [35] The complainant testified that she was not allowed to use the phone or leave the house, other than to go to school. Around this time, the appellant told her to start calling him “Sweetheart”, but only when the two of them were alone together. [36] The complainant testified that, after the move to Surrey, she discovered a note on the door when she came home from school one day. She did not read the note, but the appellant did when he got home from work. The appellant reacted very angrily to the note and muttered something about Child Services under his breath. Without explanation, he loaded up the car and drove the children to a hotel. The complainant’s half‑brother was sent off to play. The appellant told the complainant they were going to stay in the hotel room and play strip Go Fish. Every time the complainant won, she had to take some of her clothing off. When all of her clothes were off, the appellant threatened to put her out in the hall where someone could attack her. She cried and begged the appellant not to do so. He then had sexual intercourse with her and calmed down. [37] When the complainant was 15, the appellant took a urine sample from her to test and told her she was pregnant. The appellant instructed her to tell teachers and counsellors that she had been impregnated by a boy from another school. [38] Just before Christmas in 1989, when the complainant was 15 years old, pregnant and in Grade 9, they moved to Maple Ridge, British Columbia. The appellant continued to regularly engage in vaginal and oral sex with the complainant. [39] The complainant testified the appellant became increasingly jealous and possessive of her. On one occasion, the appellant saw her with a boy. When she got home, the appellant screamed at her that if she talked to the boy again he would kill him, cut her breasts and put a knife towards her vagina (this incident forms the basis of Count 6 — uttering a threat to cause death or bodily harm). On another occasion, when the complainant complimented a male neighbour on his new hairstyle, the appellant became irate, confronted her in a narrow hallway and punched a hole in the wall next to her face. [40] The evidence of a school counsellor in Maple Ridge was adduced by way of an admission. She remembered the complainant being pregnant while in Grade 9 or 10. She recalled the complainant wearing baggy clothing and no makeup. The complainant had plain hair and the counsellor described her appearance as “almost like a Hutterite, Amish‑type, cultish look”. The complainant did not have any friends. Unusually, despite the fact that she was pregnant, the counsellor had no contact with any member of the complainant’s family. [41] The complainant testified that when she went into labour in June 1990, the appellant dropped her off at the hospital and left. An emergency Caesarean section was required. Consent to the procedure was given by the appellant on the telephone who identified himself as the complainant’s father, not the father of her child. The appellant made it clear to her that he was not to be named as the father on the birth certificate. Until 2012, the complainant never told anyone in authority that the appellant was the father of her children. [42] After giving birth, the complainant decided to create a “pretend world” to protect her child from the “crazy and chaotic” situation the child had been born into. When asked what this pretend world meant in terms of her relationship with the appellant, the complainant answered this way: Pretend World means you give in to doing what he says to make things okay. I at that point … I submitted, I -- I became the wife so my kids would be happy, and my kids could have what they wanted, and I could protect [her first child] that way and made Pretend World to make it right for them, not for me. [43] In cross‑examination, the complainant elaborated that the pretend world was about keeping up appearances and ensuring that her children were safe and not burdened with what she described as the “disgusting truth” of how they came to be. [44] The appellant resumed having sexual intercourse with the complainant six weeks after she gave birth. [45] After giving birth to her first child, the appellant prohibited the complainant from attending school. She stayed home and looked after her child and half‑brother. She said the appellant continued to restrict her freedom, including her ability to leave the house without him. Around this time, the complainant testified that she made the first of several suicide attempts. She recalled that on one such occasion, the appellant wanted her to call Poison Control or the hospital when she had taken an overdose of prescription medication. Despite giving this evidence, the complainant testified that “[h]e didn’t care.” [46] Around this time, the appellant instructed the complainant to apply for welfare and to report that the father of her child had been deported and was unreachable. [47] The complainant gave birth to their second child in 1993. She was 18 years old. Shortly thereafter, they moved to another community. After this move, the complainant began telling most other people that the appellant was her husband. She also began sleeping in the appellant’s bedroom. [48] In 1993 or 1994, while living at this location, the appellant and complainant participated in the creation of the video. The complainant disclosed the existence of this video in her preliminary inquiry evidence. When asked in examination‑in‑chief about the contents of the video and how it came into being, the complainant said this: A          What happened? What happened? I’m on top, [the appellant] is on top; oral sex, that is what’s going on, and he’s filming it. You do what you’re told. Q         What do you mean by that? A          You do what he told -- I did what he told me to do. He tells me to do something and I did it. You don’t question it. You just do it, so I did it. That’s what it means. You just do it. [49] The complainant gave birth to their third child in 1998 when she was 23 years old. She gave birth to their fourth child in 2000 when she was 25 years old. The complainant testified that the appellant’s name is not on any of his children’s birth certificates. She said he made sure he was not identified as their father. The birth certificates of the third and fourth children were entered as exhibits at trial. The appellant’s name does not appear on either of these birth certificates. [50] The appellant and complainant moved frequently in the years they spent together, including to Ontario. The complainant testified that this would occur when questions were asked by neighbours as to the nature of the relationship between them. [51] The complainant testified that the appellant continued to have sexual intercourse with her after the children were born. She said that in her mind she never consented to having sexual relations with him. She never told him “No.” She said that after she told him “no” once as a child and was forced to undress before being abandoned on a rural road, she just gave in. This exchange then occurred between the complainant and Crown counsel: Q         What do you mean you gave in? A          Continued on with the pretend world, and that’s part of the pretend world. You just submit. You give in. You don’t make waves. Do what you’re told. Do what you’re groomed. Everybody’s safe. You say no, I learned from the past you don’t say no. [52] The complainant testified that even in their later years together, the appellant objected to her working outside the home. He undermined her in front of the children by telling them that their mother loved working more than she loved them. [53] When the appellant found out she had taken a job over the Christmas season selling perfume to male customers, he grabbed her by her shoulders and shook her. He told her (falsely) on Christmas Eve that he had not purchased any gifts for the children. This caused the complainant to “lose it”. She took the Christmas tree and all the decorations down. When she sought to blame the appellant in front of the children for ruining Christmas, he produced gifts for the children making the complainant look “like the crazy one.” [54] The complainant testified that when she went back and obtained her high school diploma, the appellant would not let her attend the graduation ceremony. [55] The complainant left the appellant on one occasion for a number of weeks between 2008 and 2011. She said she returned at the appellant’s urging. She testified that she felt weak and hated herself for doing so. In cross‑examination, she described the control the appellant had over her as an “invisible cord”. [56] She left the appellant for good on June 30, 2012. She provided a statement to the police on August 8, 2012. She testified that she sought the assistance of a divorce lawyer, but was unable to explain to him the background of her relationship with the appellant. [57] The complainant was cross‑examined on why she did not disclose the sexual abuse at an earlier time to others, including her mother and a school counsellor. She said that she was afraid to do so and feared that she would not be believed. [58] The complainant was also cross‑examined on the three incidents that were alleged to have occurred before the start date of the indictment — the inappropriate touching of the complainant while drying her off after she had a bath, the spanking and “bum” fondling incident, and the spooning incident that occurred when the complainant got into bed with the appellant because she was afraid of the dark. It was pointed out to the complainant that while she mentioned these incidents to the police, she did not convey to them the sexualized version of these events she related at trial. The complainant was also cross‑examined on her failure to tell the police about the humiliating diaper incident, the repeated pinching and sexual touching she says occurred in Red Deer, or the sexual assault she said occurred in the hotel. [59] The inconsistencies between the complainant’s trial testimony and statement to the police became an important component of the defence theory that she was reimaging past events through the lens of a failed relationship and that her testimony was unreliable. [60] In cross‑examination, the complainant objected to the use of the word “relationship” to characterize the years she spent with the appellant. 4.  The appellant’s unsuccessful attempts to have the video admitted at trial [61] When it became apparent towards the end of the cross‑examination of the complainant that the appellant’s trial counsel (not counsel before us on appeal) was setting up equipment to play the video, Crown counsel advised the judge that he had not seen the video and suggested that it be played in the absence of the jury in the event the Crown determined to contest its admissibility. Defence counsel advised that the video was 54 minutes long and that he only wanted to show part of it in his cross‑examination of the complainant. [62] When the judge asked the purpose for which the video would be used, trial counsel submitted that cross‑examination should be permitted on the narrow grounds that it would contradict the complainant’s trial evidence that there was “no kissing whatsoever [and] no affection whatsoever in this entire relationship”. He submitted that the complainant testified at trial that she was never able to kiss the appellant throughout the course of their relationship and that the video would show her evidence on this point to be fundamentally untrue. Counsel advised that, “that’s … the only reason why I want to use it”. [63] In fact, the complainant had not testified at trial that she had never kissed the appellant or that there were no moments of affection between them. The essence of the complainant’s evidence is that she learned to submit to what the appellant wanted for her physical and mental well‑being and for the emotional well‑being of the children. [64] The judge declared a voir dire to assess the prejudicial effect of the proposed evidence as against its probative value. She was right to do so: R. v. Osolin , [1993] 4 S.C.R. 595 at 671–672. Trial counsel did not ask the judge to defer consideration of her residual discretion to exclude this evidence until a later point in the complainant’s cross‑examination. [65] Trial counsel advised that he had a full transcript of the contents of the video and acknowledged that he could put the transcript to the complainant. He said, “that may solve the problem.” [66] Trial counsel said he wanted to play two brief clips from the video in cross‑examining the complainant. When the judge asked what she was being asked to look for in assessing the probative value of the video clips, defence counsel responded, “[t]he kissing, the affectionate kissing.” [67] In the absence of the jury, and following an order excluding the public, the video clips were played for the judge. As the complainant testified in‑chief, the video clips depict the appellant and complainant actively engaged in oral sex and vaginal intercourse. The video clips also depict the appellant and complainant kissing. The appellant’s trial counsel also noted that it was the complainant who eventually turned off the camcorder. [68] The judge pointed out that the complainant had not testified at trial that she never kissed the appellant. The appellant’s trial counsel then agreed that this was so, but noted that the complainant had testified at the preliminary inquiry that she was unable to bring herself to kiss the appellant. This alleged inconsistency had not been put to the complainant at the time of the voir dire . Trial counsel said he would be laying the foundation for cross‑examination of the complainant on this point. He did not do so. The complainant was never confronted in cross‑examination with evidence she gave at the preliminary inquiry that she was unable to bring herself to kiss the appellant. [69] The appellant’s trial counsel said he was going to ask the complainant “a bunch of questions” about the video. He said, “I don’t need any video for that.” He said that if her evidence contradicted what was depicted on the video, he might want to use it to undermine the complainant’s credibility. He also submitted that the video depicted a very different relationship from the one the complainant described in her testimony. He submitted that the video reflected the existence of a romantic relationship characterized by both affection and passion. He suggested that the video contradicted the complainant’s refusal to even acknowledge there was a “relationship” between them. Finally, the appellant’s trial counsel submitted that the video clips demonstrated that the complainant enjoyed having sexual relations with the appellant, at least on that occasion. He suggested that the complainant had testified at trial that she never experienced or acknowledged any physical pleasure associated with having sexual intercourse with the appellant. In fact, the complainant had not been asked about this and had not given this evidence at the time of the first voir dire . [70] Crown counsel submitted that the complainant had not been contradicted on her preliminary inquiry evidence that she was unable to bring herself to kiss the appellant. The Crown also submitted that the probative value of the video was minimal given: (1) the uncontested fact that the appellant and complainant had engaged in frequent sexual relations over many years; and (2) the complainant’s evidence that she submitted to the appellant and had never said “no” to him since she attempted to defy him as a child and was subjected to terrorizing acts in order to overcome her resistance. By contrast, the Crown submitted that the prejudicial effect was extremely high as showing the video in front of the jury would have a significant deleterious impact on the complainant’s dignity and privacy interests. In the alternative, and to balance the appellant’s interests against those of the complainant, the Crown suggested that an agreed statement of facts might be prepared describing what the video depicts and that this might obviate the need to show it to the jury. [71] The appellant’s trial counsel countered that the video was critical to the defence and that he would not willingly participate in the presentation of an agreed statement of facts. He reiterated that prejudice to the complainant’s interests would be attenuated because all he wanted to show was the kissing that accompanied the sexual acts depicted on the video. 5.  The first ruling prohibiting the appellant from using the video in cross‑examining the complainant ( Voir Dire #1) [72] The judge, who had a jury waiting and was required to rule on this issue with no notice and little time for reflection, framed her ruling by identifying what was at issue — the admission of two clips from the video in the cross‑examination of the complainant. The judge was aware that the appellant might seek to introduce the entirety of the video later in the trial but noted that “that is not before me now in this application.” She acknowledged that due consideration had to be given to the fair trial rights of the appellant and to the prejudice that would flow from admission of the video clips in the cross‑examination of the complainant. After referring to Osolin at 671 for the proposition that, as a general rule, a complainant may be cross‑examined for the purpose of eliciting evidence pertaining to credibility when the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice which may flow from it, the judge ruled as follows: [5]        In my view … the evidence here is highly prejudicial and has a shock value that cannot be ignored. It is that shock value that causes me great concern and as such I am exercising my discretion not to permit the proposed clips to be played during her cross‑examination in the manner proposed. Having considered the authorities and the submissions here, I am not satisfied that playing of the video is necessary in the manner suggested by counsel. The object he wishes to pursue can be obtained as effectively without the shock value through cross‑examination about the tape as it could be by playing a degrading and highly prejudicial video recording capturing a moment in time between the complainant and the accused. [6]        Simply put, I am not satisfied that the defence has met its burden here, that the probative value outweighs the prejudice and I am dismissing the application to put the proposed clips to the complainant at this stage. [Emphasis added.] [73] The Crown concedes that the judge erred in her concluding articulation of the test by putting the burden on the defence to establish that the probative value of the evidence outweighs its prejudicial effect. It is well‑established that defence‑led evidence should only be excluded where its prejudicial effect substantially outweighs its probative value: R. v. Seaboyer , [1991] 2 S.C.R. 577 at 611. The test applies to the admission of defence evidence and — as here — to questions put to a complainant in cross‑examination for impeachment purposes: Osolin at 671–672; R. v. Shearing , 2002 SCC 58 at paras. 107–109. [74] When cross‑examination of the complainant recommenced, she was asked whether there was any change in the “relationship” over time and whether it became an affectionate or romantic one. The appellant’s trial counsel put it to her that it certainly seemed like there was such a change. The complainant answered this and related questions in the following way: Yes, sir. One, I just want to make it clear again, and I’m not arguing with you whatsoever, I don’t like the term “relationship”. I feel that’s a different word. But to answer your question, once I submitted into pretend world, you do to portray to the outside world and to my children a … relationship of what they thought it would be. If I -- as long as I behaved, as long as the children needed things, and to have their life the way it is, you portray a pretend world. I stated that pretend world was when my child was born that to maintain sanity for myself and for my children … I sacrificed my life to live in a crazy world to make sure my children didn’t have to be a part of it. It is you’re good, he rewards you like a dog rewards -- you behave you don’t get beat. You get a treat. [75] The complainant testified that she had been instructed by the appellant to display affection towards him in front of the children. She did so. The appellant’s trial counsel asked the complainant whether she had given evidence at trial that she could not bring herself to kiss the appellant (she had not ). The following exchange occurred: Q         Okay. And so did you -- didn’t you say to my friend when inquiring that you couldn’t actually kiss [the appellant] based on everything that he did? Just couldn’t actually kiss him at all? That’s what you said. A Willingly, no, sir. No. Was I forced to? Yes. Q You were forced to kiss him? A Behind closed doors you were told you do it. There are consequences, sir . [Emphasis added.] [76] The appellant’s trial counsel pursued in cross‑examination of the issue of whether kissing occurred behind closed doors: Q         … I was asking before we broke about the relationship between -- or interaction, to let me use your phrase, between [the appellant] and you, and I had suggested to you that you found it difficult even to kiss him, and you agreed with me that you certainly did; is that true? A Sir, I answered that question Q But there was never any kissing behind closed doors between you and [the appellant]? A          Sir, I -- Q         Is that true? A I told you I did what I was told when I was told to do it. I don’t know how else to answer that. [Emphasis added.] [77] The complainant did not deny in cross‑examination participating in the video and said that her participation and conduct reflected directions she was given by the appellant before filming began. The complainant had no recollection of what she said on the video, which was created about 24 years before the trial. She did not, however, deny telling the appellant near the end of the video that she “liked it”. She said she did so to get it over with and to please him. [78] The following exchange about the video then occurred: Q         I see. Okay. Well, let me just get right to it, then. A          Then let’s do it. Q         That tape does not reflect what you told this jury in terms of -- A          Okay. Q         -- the way it reflects -- A          Depending on which tape you have, sir. Q         Well, you can -- I’m happy to show it. A          No, thank you. I lived it. Q         Okay. But it shows you being very affectionate with [the appellant]. A          Okay. Q It shows you kissing him very affectionately -- A Okay. Q         -- over the entirety of the tape, which is -- A Okay. Q         -- 54 minutes long. A          Really? That’s great. Q         You are controlling everything. A          Awesome. Q         He’s doing what you want to do. A          Yes, controllers tell you what to do. Q You told this jury a very different version of the tape than what actually exists on the tape and -- A I did what he told me to do, sir. Q -- what actually exists on the tape is that you are being very affectionate to -- A Yes, sir. Q         -- him and controlling. A          Yes. Q He’s serving you. He’s helping you. A Yes. Q         He’s being nothing but respectful -- THE COURT:              Is there -- is there a question in there? There’s -- you’ve said a number of things. You’ve asked her -- [Defence Counsel]: I’m just asking -- A And I’m saying yes. [Defence Counsel]:     -- and she’s rejecting me. Q         Are you rejecting what I say? A          I did the tape based on what he told me, sir. ... A I did what he told me. It showed -- it shows that I did what exactly -- if that was too believable, then I did what he told me to do, sir. Q         Okay. Well -- A          If this is showing before the door, before all this, what I was told to do beforehand, no, sir. Am I saying did it happen? Yes, sir. I am agreeing with you. Q         Well, we have the -- we have a copy of the tape. A          Sir, I did what I was told. I was groomed. I played the role of what I was told and groomed to do. I don’t know what else to say to you. I don’t know what else to say to this court. I did what I was told and what I was groomed to do as a child. Q         Well, I’m -- A          Yes. I said yes, there’s a tape. Yes, I did it. Yes, you’ve embarrassed me -- made me feel like dirt. I’m saying yes. Q         What I say, what I suggest to you, is that the tape actually portrays a different dynamic and that, in fact, this relationship was quite different from what you’ve described, it was a consensual relationship from 15 onwards, and you -- you wanted to have these children -- A          Ha. Q         You wanted these children -- A          Is he allowed to talk to me like that? Q         Isn’t that true? A          That is enough. Enough. THE COURT:              [Defence Counsel], what I’d like you to do -- A          Disgusting. A          … I’m in pretend world. Okay? I’m explaining it again. I portrayed what was told and groomed, and I’ve been saying that since day one. I didn’t want it. Q         And later you may -- you came to hate [the appellant] for it. I totally understand that. You may have hated yourself for it. But that is the reality here. That’s the dynamic. Is that true? A          No. No. [Emphasis added.] [79] I pause to make four observations about the cross‑examination of the complainant on the video. First, the appellant’s trial counsel was not prohibited from asking the complainant questions about the contents of the video or what it depicted to lay the foundation for contradicting her evidence and thereby impeaching her credibility and reliability. Second, trial counsel was not prohibited from seeking to use a transcript of the video to cross‑examine the complainant. Despite suggesting that use of the transcript might solve the problem, trial counsel never sought to use the transcript in cross‑examination. Third, the complainant did not deny any of the conduct the video was said to depict, nor did she deny making any remark she was said to have made while the video was being created. She acknowledged being an active participant — but at his direction. As she put it, “I did what he told me. … if that was too believable, then I did what he told me to do, sir.” Fourth, trial counsel advised that the only reason he wanted to show the video to the complainant was to demonstrate that her preliminary inquiry evidence about never kissing the appellant was not true. Despite this stated purpose, the complainant was never cross‑examined on evidence she gave at the preliminary inquiry that she could not bring herself to kiss the appellant. At trial, she did not dispute the proposition that she kissed the appellant or that this was depicted on the video. Her evidence was that she was groomed to have sexual intercourse with the appellant, that she learned to submit to his wishes and that she did so unwillingly, including by kissing him. 6.  The evidence of the complainant’s mother [80] The complainant’s mother agreed that she left the complainant and her half‑brother (whom she says is the appellant’s son) in the appellant’s care because she did not have the means to take care of them. On subsequent visits, she never saw either of the children when they were not in the appellant’s company. She testified that after the visits stopped, she called the appellant on one occasion and asked to speak to the complainant. The appellant said the complainant was “fat” — which the mother understood to mean pregnant — and had married someone from Saskatchewan. She agreed in cross‑examination that the complainant never told her she was being sexually abused by the appellant. 7.  The appellant’s evidence‑in‑chief [81] The appellant confirmed that the complainant and her half‑brother were left with him in Red Deer by their mother in the summer of 1982 when the complaint was eight years old. He did not ask for or want the responsibility of caring for the two young children, but said he was “stuck” with them. [82] The appellant testified that he never thought of himself as being the complainant’s father. [83] He testified that the complainant became an independent young adolescent who determined what she would wear and how she would style her hair. He denied prohibiting her from seeing her friends. He testified that she had friends but acknowledged that he never met any of them. [84] The appellant denied having any sexual contact with the complainant when she was a child. [85] The appellant testified that their relationship changed after the complainant turned 15 years old. He said that they started “playing around” one day and they ended up having sexual intercourse on the couch. He said that he had never before sexually touched the complainant and felt “worried” and “sick about it.” He said the complainant became pregnant as a result of this single act. The appellant wanted her to have an abortion. She did not believe in abortion and wanted to keep the child. In his examination‑in‑chief, the appellant relied on the complainant’s assertion of her wishes in this regard to show that “now she’s in charge.” [86] The appellant agreed that he dropped the complainant off at the hospital before she gave birth to their first child. He went to work. He testified that she had experienced a number of previous “false alarms.” He agreed that he was subsequently contacted by the hospital and gave his consent on the telephone to an emergency C‑section. [87] He denied telling the complainant not to go back to school after the birth of their first child. He said she wanted to stay home to look after the child. [88] The appellant testified that after the birth of their first child, they became more like “husband and wife” and had regular sexual relations which he characterized as being consensual. He said he came to love the complainant. He said she wanted to have more children and did not believe in birth control. [89] The appellant said he found the video in a tool box in the garage after he was reminded of it by the complainant during her preliminary inquiry testimony. He said the video depicts the two of them having sexual intercourse, and that while both of them participated in positioning the camcorder, she was directing him. Beyond this, the appellant was not asked very much about the contents of the video. He did not testify that the contents of the video would contradict the evidence of the complainant on any specific issue. [90] The appellant’s trial counsel then sought to have the appellant identify the video with the intention of having it admitted as an exhibit at trial. The jury was excused. The Crown took the position that the video had already been ruled inadmissible. The judge clarified that the ruling was limited to whether excerpts of the video could be played during cross‑examination of the complainant, but that no ruling had been made as to its admissibility as part of the defence case. The judge said she would declare a further voir dire to determine the admissibility of the video. The parties agreed to continue with the evidence with submissions on the admissibility of the video to be heard the following morning. [91] The appellant testified that at least some of the family’s frequent moves were at the complainant’s behest, explaining that, “[she] gets what she wants.” He denied restricting her freedom. Indeed, he testified that she took care of the houses, mail and their finances. [92] The appellant testified that he never threatened or physically assaulted the complainant. He denied ever spanking her as a child. 8.  The admissibility voir dire and second ruling excluding the video ( Voir Dire #2) [93] In her exchanges with the appellant’s trial counsel, the judge appeared to accept that the evidence was relevant and material. She was clearly focused on assessing the probative value of the evidence against its prejudicial effect. In the absence of any real conflict between the appellant and complainant about what was depicted on the video, she asked why it was necessary to show it to the jury. [94] The appellant’s trial counsel submitted that there was a fundamental conflict between what the video portrays and how the complainant testified. He submitted that the complainant testified at trial that there was no kissing in the relationship except in front of the children (she did not give this evidence). He argued that the complainant never testified that the “pretend world” did not apply behind closed doors in her relations with the appellant (she did not say this). As noted earlier, the claimant testified that he told her what to do behind closed doors and she complied with his wishes. Finally, the appellant’s trial counsel submitted that the jury should be permitted to see the video to evaluate her evidence that she never consented to sexual relations with the appellant. Relying on R. v. Nikolovski , [1996] 3 S.C.R. 1197 at para. 28, he argued that it was critical evidence depicting the commission of at least one instance of the alleged crime. [95] The judge made a second order excluding the public and viewed the entirety of the video. [96] The appellant’s trial counsel submitted that the video ostensibly showed consensual sexual relations between the appellant and the complainant. He submitted that the complainant’s evidence on this point completely misrepresented what was depicted on the video. [97] Crown counsel submitted that the complainant’s trial testimony was not at all inconsistent with the contents of the video. In fact, the video depicts what the complainant said it would. In the result, the Crown submitted that the probative value of the video is “minimal to none”. The Crown noted that, even on the appellant’s version of events, the video had been created about five years after the appellant first had sexual intercourse with the complainant. The complainant testified that she had long ago stopped saying “no” and simply submitted to the appellant. The video depicts one sexual act in the context of a 30‑year relationship. The Crown argued that the video could not assist in showing what was in the complainant or the appellant’s mind during the sexual encounter. The Crown submitted that Nikolovski had no value in assessing the admissibility of evidence of this kind in a sexual assault trial where the issue was whether the judge should exercise her residual discretion to exclude the evidence on grounds that its prejudicial effect substantially outweighed its probative value. The Crown also submitted that the video was extremely prejudicial. It was said to have the potential to distort the truth‑seeking function of the trial by confusing the issues of ostensible factual consent and legal consent. Most significantly, the Crown submitted that admission of the video before the jury would be an affront to the complainant’s dignity and violate her privacy and equality rights. From the complainant’s perspective, the video depicts one instance of the sexual abuse she had endured since she was a child. [98] In reply, the appellant’s trial counsel submitted that the video demonstrates the existence of a loving relationship with actual emotional engagement and mutual pleasure in sexual relations which is contrary to the evidence given by the complainant. [99] In ruling the video inadmissible as part of the defence, the judge said that her reasons should be read in conjunction with the reasons given on Voir Dire #1. [100] The judge noted that the complainant appears to be an active participant on the video and did not express, through words or conduct, resistance to the activity. After reviewing the positions of the parties, the judge referred to Seaboyer and correctly stated the test she was obliged to apply — that the prejudicial effect of the evidence must be shown to substantially outweigh its probative value before a judge can exclude evidence tendered by the defence. She also recognized that the concept of a fair trial embraces other interests and perspectives beyond those of an accused person. She said that the test she was obliged to apply engaged a “balancing exercise” to ensure that the accused’s fair trial rights were protected while, at the same time, recognizing the importance of the dignity and privacy interests of the complainant. [101] Having framed the issue thus, the judge said this: [36] The difficulty with the DVD is that it does not portray the inconsistency advanced by [the appellant]. Rather, the DVD portrays what [the complainant] has already described in her testimony, both in direct and cross‑examination. She says she had stopped saying no many years before the DVD was created. [40]      The issue of consent will be a live one for the jury [on Counts 4 and 5]. However, it has been nearly 20 years since the Supreme Court of Canada adopted the legal definition of consent that rejects the stereotype that women who actually do not agree to the sexual contact at issue will physically resist, and that those who fail to do so, in fact, consented. The law is abundantly clear that the absence of protest on the part of the complainant may be probative of nothing. Acquiescence is not consent. [41]      Having viewed the DVD and having considered the evidence of [the complainant] and [the appellant], and having considered the authorities relating to consent, I agree with the Crown that the evidence proffered has minimal, if any, probative value. That is simply because I do not assess the images depicted in the DVD as being different from [the complainant’s] testimony about its contents. [42]      In this trial, she has remained consistent about what is depicted on the DVD and, for the most part, she agreed in cross‑examination with almost every proposition that was put to her by counsel about the content of the tape. She testified she could not recall the statements she may have made, but she did not deny them. [43]      [The appellant] says that [the complainant’s] evidence about the pretend world did not exist when it was just she and [the appellant] behind closed doors. That is not how I take her evidence about the scope of the pretend world, and she repeated that evidence in the context of a thorough cross‑examination about the DVD. [44] I agree that the probative value of the DVD is minimal. On the other hand, the prejudicial effect of the DVD is high for many of the same reasons expressed in the first ruling regarding the DVD in the cross‑examination of [the complainant]. The mischief with the DVD is that it will distort the truth seeking function of the trier of fact. It adds only the visual images to what has been described by [the complainant]. It is explicit. It could be disturbing for some members of the jury, and it adds nothing but a visual to what they have already learned about in this trial. [45] Finding the probative value of the DVD to be minimal, if at all, and the prejudicial effect high, I find that the DVD to be inadmissible in this trial. [Emphasis added.] [102] The judge subsequently made clear that her inadmissibility ruling regarding the video also precluded the defence from adducing as evidence the audio portion of the video. 9.  The appellant’s evidence on cross‑examination [103] The appellant agreed that he cared for both the complainant and her half‑brother when they were left with him in Red Deer. When asked whether he took on the role of single‑parent to both children, the appellant replied, “I guess.” He agreed that the children were reliant on him for food, clothing and shelter and that he was their sole caregiver. He acknowledged that in Red Deer and Vancouver, both of the children were dependent on him for support. [104] He claimed to have no recollection of identifying himself to the Alberta child services worker in 1982 as the father of both children. [105] He denied ever coaching the complainant to say hurtful things to her mother that would likely have the effect of fracturing their relationship. He testified that when the complainant was about 13 years old, she decided to end her relationship with her mother and two older brothers because she hated them. [106] He denied sexually touching the complainant before she was 15. [107] The appellant was unwilling or unable to provide any significant details about how he came to have sexual intercourse with the 15‑year‑old girl he knew since she was a toddler and had raised since she was eight years old. As he testified, they started playing around one day, had sexual intercourse and “that’s all there is to it”. When pressed as to who made the first move, he testified that she started playing with him. [108] The appellant testified that he knew it was wrong to have sexual intercourse with the complainant when she was 15 years of age. He said he felt guilty and sorry about what had occurred. He said he made a mistake and felt sick about it. He said he did not have sexual intercourse with her again until they discovered that she was pregnant. [109] When asked why he felt it was a mistake to have sexual intercourse with the complainant when she was 15, he initially replied, “I don’t have an answer for you … on that.” When pressed, the appellant testified that he felt it was a mistake because “it was a stupid thing to do” because “she was a young girl”. He agreed that he felt bad about it because there was a 19‑year age difference between them. He also testified that he “probably” felt bad about it because he had been taking care of her since she was eight years old. [110] Despite his regrets, the appellant said he resumed having sexual intercourse with the complainant between one and three months later, after learning she was pregnant. He was unwilling or unable to provide specifics about the second occasion upon which he had sexual intercourse with the complainant. He testified that after learning she was pregnant, he “wasn’t worried about having sex with her” because “the damage was done”. [111] The appellant conceded that the complainant was entirely dependent on him when he first had sexual intercourse with her: Q         -- at the time you first have that sex with her? A          Yeah. Q         She’s 100 percent dependent on you? A          Yeah. Q         For her life, do you agree with that? A          Yes. Q         You bought her food, right? You bought her clothes? A          That’s right. Q         She wasn’t working? A          No. Q         She lived with you? A          That’s right. Q         There were no adults in the -- other adults in the house? A          No. Q         She didn’t even have a driver’s licence at the time? A          No, she didn’t. Q         If she needed to go somewhere, you drove her? A          Yeah, on the weekends, yeah. Q         At that time you’d agree with me she -- there’s no way she could live without your support? A          That’s right. Q         She didn’t have -- A          She had no choice. Q         Her mother was not in the picture? A          Not -- not in the picture, no. Q         In your words, she had no choice -- A          That’s right. [112] The appellant agreed that he provided consent to the complainant undergoing a C‑section when their first child was born. He agreed that he must have identified himself as her father. When asked whether he viewed himself at the time as the complainant’s father, he said “[m]aybe I did” and “I don’t recall.” [113] The appellant testified in cross‑examination that he considered the complainant to be his wife when she was 16 years old. He said he had nothing to hide. He testified that the complainant’s half‑brother must have known they were conducting themselves as husband and wife because they were sleeping together at the time. He denied ever telling the complainant’s half‑brother that the four children in the house were not his. [114] The complainant’s half‑brother was called by the defence at trial. He was brought up believing that the appellant was his father and the father of the complainant. He described the appellant as the father figure in the house. He never asked the complainant who fathered her first child. He testified that when the complainant was in her late teens or early 20s, she seemed to take on “more of … a wife role” and would display affection and use terms of endearment when referring to the appellant in his presence. This evidence was generally confirmed by the complainant’s first child who also testified that she was “the boss” in the household. [115] The complainant’s half‑brother testified that later in life, and in the course of an argument, he asked the appellant if the four children borne by the complainant were his. The appellant said they were not. The complainant’s half‑brother moved out shortly after this conversation. 10. Closing addresses (a) The appellant’s trial counsel [116] Defence counsel submitted to the jury that the fact the complainant never said anything to anyone about what the appellant was doing to her was a factor telling against her credibility. [117] He submitted that if the jury rejected some portion of her evidence or found that she was prone to exaggeration, it should raise a reasonable doubt about her credibility and reliability generally. [118] To illustrate the point, defence counsel relied on the fact that the complainant did not tell the police that the three pre‑indictment incidents she testified to at trial had an ov ertly sexual component to them. Her failure to do so was said to negatively impact on her entire narrative. Indeed, defence counsel submitted that her failure to make complaint to the police about the sexually‑assaultive nature of these three pre‑indictment incidents was “key” to understanding the appellant’s position that the complainant was an untrustworthy witn ess. [119] Defence counsel did not expressly concede in his closing submissions to the jury that the appellant was guilty on Count 3. He acknowledged, however, that the appellant was in a de facto step‑parent relationship with the complainant when she was left in his care and at material times thereafter. He conceded that the relationship started “in a very inappropriate” and “wrong way” and said the appellant admitted as much. Indeed, he conceded that the appellant was in a position of authority over the complainant when they first had sexual intercourse. He submitted to the jury that the relationship became normal over time and that by the time the sexual activity underlying Counts 4 and 5 occurred, the complainant consented to that activity and her consent was not vitiated by threats or fear of the application of force or the exercise of authority (s. 265(3)(b) and (d)) or induced by the abuse of a position of trust, power or authority (s. 273.1(2)(c)). [120] With respect to the video, defence counsel reminded the jury that it was 54 minutes in length and depicted what the appellant said it depicted and what the complainant refused to accept — the existence of a consensual sexual relationship between them after she turned 15 years of age. [121] Defence counsel submitted that all of the counts were “interlinked” and that the case turned on the jury’s assessment of the complainant and appellant’s credibility based on the entirety of the evidence. (b) Crown counsel [122] Crown counsel emphasized in his closing address that the appellant refused to concede in his evidence what was admitted by his counsel in closing submissions — that he assumed the role of the complainant’s step‑father and had sexual intercourse with her when he was a person with whom she was in a relationship of dependency. The Crown acknowledged that the jury’s verdict would turn on their assessment of the credibility of the complainant and appellant. He characterized the appellant’s evidence as nonsensical, evasive and untruthful. He submitted that the appellant took steps to conceal that he was the father of the complainant’s children, choosing instead to describe himself as her father. He suggested that the complainant’s first pregnancy was not the result of a single act of sexual intercourse, but the inevitable outcome of the appellant’s decision to engage the complainant in sexual intercourse throughout her childhood and into her teenage years. [123] Crown counsel submitted that the complainant’s failure to mention the sexualized details of the three pre‑indictment incidents was attributable to the fact that these events occurred 30 years ago when she was a child and that, as she testified, she was not ready to share certain incidents with the police. [124] The Crown submitted that the complainant’s decision to submit to the appellant’s sexual desires and not tell anyone what was happening to her was explained by his abusive behaviour towards her. As the Crown put it: Put yourself in the shoes of a little girl, eight years old, abandoned by her mother, to live with a man she barely knows. This man starts sexually abusing her right away. At the same time, he humiliates her, he degrades her. When she refused to engage in sex, he drives her to the middle of nowhere and leaves her out in the cold, no pants on [indiscernible]. He tells her over and over again “No one is going to believe you. Don’t tell anyone because if you do, people are going to think you wanted it.” He does all this to destroy her self‑esteem and make her feel guilty and ashamed. It works. She learns her lessons and adapts her behaviour. She submits. She doesn’t say no anymore. At the age of 12, the last lifeline to her old life is gone, she has no family, no friends, no support, her entire world is the accused and he made it that way. She is at his mercy. Also at the age of 12, as I’ve described, he forced intercourse on her for the first time and the sex becomes routine. She told you she feels dirty, ashamed, disgusted, but she submits because she does not have any other choice. On one occasion the accused tells her that he saw her with a boy. He becomes enraged and threatens her. She testified she told you she became terrified as a result of that incident, thought he could be everywhere. Remember, this is just a young girl, 13 years old, around -- around that age. She learns her lesson, don’t make him angry, especially when it comes to other boys. [125] With respect to Count 4, the Crown submitted the complainant did not voluntarily agree (consent) to have sexual relations with the appellant. In the alternative, the Crown argued that no consent in law was given because the complainant submitted to the appellant’s demand by reason of threats or fear of the application of force to her or the exercise of authority: s. 265(3)(b) and (d). [126] With respect to Count 5, the Crown submitted the complainant did not voluntarily agree (consent) to have sexual relations with the appellant. In the alternative, the Crown argued that no consent in law was given because the complainant submitted to the appellant’s demand by reason of threats or fear of the application or of force to her or the exercise of authority (s. 265(3)(b) and (d)) or because the appellant induced her to engage in sexual activity with him by abusing a position of trust, power or authority: s. 273.1(2)(c). As was recently noted in R. v. Snelgrove , 2019 SCC 16 at para. 3, inducing consent by abusing the relationships set out in s. 273.1(2)(c) does not imply the same kind of coercion contemplated by s. 265(3)(d) of the Code which speaks to consent obtained where the complainant submits or does not resist by reason of the exercise of authority. The Court in Snelgrove adopted the observations of Justice Doherty in R. v. Lutoslawski , 2010 ONCA 207 at para. 12 that, “[a]n individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity.” [127] With the agreement of counsel, the jury was instructed on honest but mistaken belief and consent in relation to Count 5 only. IV. The Grounds of Appeal [128] Against this background, the appellant advances three grounds of appeal which he frames as follows: 1.   The trial judge erred in admitting evidence of extrinsic misconduct and in failing to provide a sufficient limiting instruction on bad character evidence; 2.   The trial judge erred in failing to instruct the jury that a finding of guilt on one count had no probative value to the other counts; and 3.   The trial judge erred in excluding the video. V.  Analysis 1.  Did the trial judge err in admitting evidence of extrinsic misconduct and by failing to provide a sufficient limiting instruction with respect to that evidence? (a) The appellant’s position [129] The appellant takes issue on appeal with the admission of bad character evidence. His submission on this issue has three prongs. [130] First, he submits that the judge erred by admitting evidence of the three uncharged sexual assaults said by the complainant to have occurred in the pre‑indictment period — the “toweling”, “caressing” and “spooning” incidents. [131] Second, he submits that the judge erred by admitting general bad character evidence bound up with sexual assault allegations covered by the indictment. The appellant refers, in particular, to evidence elicited by the Crown from the complainant that he: · physically abused and dominated her; · undermined her self‑worth by forcing her to walk with her head down; · isolated her from family and friends; · interfered with the complainant’s relationship with her Big Sister by telling her to take her half‑brother with her to these get‑togethers; · forced her to wear plain clothes and made her cut her hair in an unfashionable style when she was a young woman; · did not mentally prepare the complainant for her menstrual cycle but, instead, simply bought her tampons and left them in the bathroom; · was jealous and possessive of the complainant and became angry with her when she attracted even the most innocuous form of male attention; · dropped her off at the hospital before she delivered their first child and left her there alone; · undermined her in front of their children, particularly when she attempted to assert her independence, including by working outside the home; and · was uncaring when she attempted to commit suicide. [132] Third, the appellant submits that even if all or part of this evidence was properly admitted, the judge failed to: (1) identify for the jury the bad character evidence in issue; (2) adequately instruct the jury on the limited use that could be made of this evidence; and (3) adequately instruct the jury on the prohibited uses of this evidence. (b) General principles [133] With one exception, the Crown and defence agree on the general principles governing the admissibility of bad character evidence at the behest of the Crown. Indeed, those principles are well‑established in the law. [134] The exception is this — the Crown and defence disagree on whether the bad character evidence adduced by the Crown (or at least some of it) was admissible as evidence probative of the appellant’s disposition to do the very things alleged in the indictment. Relying on R. v. Batte (2000), 145 C.C.C. (3d) 449  at para. 102 (Ont. C.A.), the Crown says the evidence was admissible for this purpose. The appellant argues that for the extrinsic misconduct evidence to be admissible on this basis, it must meet the test for the admission of similar fact evidence set out in R. v. Handy , 2002 SCC 56. [135] This issue was not argued at trial. Further, I consider the Crown’s position on appeal to be inconsistent with the position it took in the trial court. I note, in this regard, that the Crown emphasized the importance of the limited use instruction in relation to the bad character evidence to guard against prohibited propensity reasoning. [136] In any event, I do not consider that we need to resolve the controversy in this case. For reasons I will develop, the bad character evidence was admissible to assist the jury in comprehending the nature of the relationship between the complainant and the appellant, how it developed, and why it persisted for as long as it did. It was also admissible to assist the jury in understanding why the complainant did not disclose at an earlier time what she says happened to her. Further, the jury was not invited by the judge to engage in propensity reasoning in relation to this evidence. Indeed, they were specifically cautioned against concluding that because the appellant may have engaged in wrongdoing in the past, he is the kind of person who would have committed the crimes charged. In these circumstances, the issue that divides the parties is best left to another day. [137] I turn now to summarize the legal framework about which there is no dispute. Evidence of an accused’s bad character that shows only that he is the type of person likely to have committed the offence(s) charged is inadmissible. Bad character evidence may, however, be admissible at the behest of the Crown where it is relevant to a material issue at trial other than the accused’s character, and its probative value outweighs its prejudicial effect: R. v. B. (F.F.) , [1993] 1 S.C.R. 697 at 730–731; R. v. G. (S.G.) , [1997] 2 S.C.R. 716 at paras. 63–65. [138] The rule of presumptive inadmissibility recognizes the risks inherent in the admission of evidence demonstrating an accused’s bad character: namely, moral prejudice and reasoning prejudice. The trier of fact may assume, from its acceptance of the evidence of extrinsic misconduct, that the accused is a bad person more likely to have committed the offence(s) charged or worthy of punishment for those uncharged acts (moral prejudice). Alternatively, evidence of this kind may confuse the trier of fact or, worse yet, distract the trier of fact from its main duty and tempt them to substitute their conclusion on the extrinsic misconduct for their verdict in respect of the charges set out in the indictment (reasoning prejudice): R. v. J.A.T ., 2012 ONCA 177 at paras. 51–52. [139] As the appellant concedes, evidence of extrinsic misconduct may be admitted by exception in cases of this kind to demonstrate a system of control over others that could explain why the abuse occurred and continued unreported, or as part of the narrative to provide necessary context for subsequent events: B. (F.F.) at 732; R. v. F. (D.S.) (1999), 132 C.C.C. (3d) 97 at paras. 22, 26 (Ont. C.A.); R. v. R.O. , 2015 ONCA 814 at paras. 16, 18, 25. In F. (D.S.) , the court noted that in cases involving allegations of sexual abuse in the course of an ongoing relationship, courts have frequently admitted evidence of discreditable conduct to assist the trier of fact in understanding: (1) the nature of the relationship between the parties and the context in which the alleged abuse occurred; and (2) why the complainant did not leave the relationship or report the abuse at an earlier time, particularly where the complainant’s failure to so act is (or will be) relied on by the defence to undermine her credibility: see also J.A.T. at para. 54. [140] Further, in spousal and sexual assault cases, it is not uncommon for extrinsic misconduct evidence to be led concerning events that predate the allegations set out in the indictment: see F. (D.S.) at paras. 25–26; R. v. R. (B.S.) (2006), 212 C.C.C. (3d) 65 at para. 38 (Ont. C.A.). [141] A judge presiding over a criminal trial exercises a gatekeeping function to ensure that only relevant, material and admissible evidence goes before the jury. Where bad character evidence is admitted for limited purposes, it is generally understood that the judge should instruct the jury about the permitted and prohibited uses of that evidence. Although an instruction to this effect has occasionally been characterized as being “mandatory” ( R. v. Ball , 2019 BCCA 32 at para. 91) or “obligatory” ( J.A.T. at para. 50), in some narrowly defined circumstances the instruction has been found to be “unnecessary”: see, for example, R. v. Beausoleil , 2011 ONCA 471 at para. 28, where there was no realistic potential for misuse of the bad character evidence; R. v. C.B. , 2008 ONCA 486 at para. 20; and R. v. M.T., 2012 ONCA 511 at para. 88. In Batte at paras. 113–114, no error was found in non‑direction on this issue in part because a limiting instruction would inevitably have highlighted a significant body of bad character evidence and operated against the appellant’s interests. [142] With these principles in mind, I turn to consider the three prongs of the appellant’s submission. (c) Improper admission of the pre‑indictment sexual misconduct [143] The appellant submits that the three pre‑indictment events testified to by the complainant created significant moral and reasoning prejudice that exceeded its probative value. He argues that there is a danger the jury would engage in prohibited propensity reasoning and conclude that it was more likely he committed the sexual assaults with which he was charged because he had sexually assaulted the complainant in the past. He submits that it is not mere speculation to conclude that the introduction of this evidence caused reasoning prejudice. He notes, in this regard, that the jury asked this question in the course of their deliberations: If [the] Red Deer events may have occurred prior to Jan[uary] 1, 1983, can we count them as evidence? [144] The appellant also submits that evidence respecting these three incidents, alleged to have occurred just months before the start date of Count 1, was not essential to explain the relationship or the context in which the abuse allegedly occurred. [145] I am not persuaded by these submissions. [146] It does not appear from the record before us that the Crown alerted the judge to its intention to elicit this evidence from the complainant. As evidence of this kind is presumptively inadmissible, the Crown ought to have done so and, if the admissibility of the evidence was at issue, obtained a pre‑trial ruling on the point. [147] I am satisfied, however, that the evidence was admissible for the purposes identified. On the complainant’s evidence, these three early acts of grooming marked the commencement of a series of continuing sexual assaults of escalating severity that culminated in the appellant engaging in sexual intercourse with her when she was 12 years old. On the complainant’s evidence, the acts were designed to accustom her to giving over her physical and sexual integrity to the appellant. If the complainant’s evidence was accepted, these acts could also be viewed as acclimatizing her to physical abuse (spanking followed by sexual touching) and emotional abuse (requiring her to sleep in the appellant’s bed and experience his sexual arousal rather than giving her a night light in her own room) in conjunction with sexual touching. Finally, on the complainant’s evidence, these acts, and what the appellant said to her in committing them, reinforced with her at an early age that she should not tell anyone what was happening to her. These three acts provided important contextual background for the jury’s evaluation of the charged conduct. Collectively, they were highly probative of trial issues put in play by the defence — specifically, why the complainant did not resist the appellant’s conduct captured by the time frame of the indictment and why she did not tell anyone about these incidents. [148] I see little potential for undue moral prejudice flowing from the admission of this evidence. This is not a case in which the Crown sought to tender discreditable conduct evidence from a witness other than the complainant. Further, if the jury did not accept the complainant’s evidence about the charges, they were unlikely to have been swayed by the additional pre‑indictment evidence of discreditable conduct: see F. (D.S.) at para. 33. [149] In addition, the extent to which the introduction of this evidence truly risked moral prejudice must be assessed in the context of the appellant’s admission at trial that he began having vaginal sexual intercourse with a 15‑year‑old dependent girl with whom he stood in loco parentis — an egregious act he admitted knowing was morally wrong. In light of the conduct admitted by the appellant at trial, it cannot reasonably be suggested that he was prejudiced by the admission of evidence concerning these three comparatively less serious pre‑indictment events. In any event, it is my view that any moral or reasoning prejudice flowing from this evidence could be contained by an appropriate instruction. [150] While this is sufficient to dispose of this aspect of the appellant’s first ground of appeal, I note that the appellant’s trial counsel did not object to the introduction of this evidence. While failure to object to the admission of evidence may be a relevant factor, it is not necessarily a determinative one. The gatekeeping function of trial judges is such that they have a duty to vigilantly assess and exclude inadmissible evidence regardless of the positions taken (or not taken) by counsel: Ball at para. 89; R. v. Fierro , 2013 BCCA 436 at para. 19. [151] At the same time, and absent an allegation of ineffective assistance by trial counsel (no such allegation has been made on appeal), failure to object may signal more than simple resignation that objection to the admission of the evidence would be pointless. The failure to object may point to the existence of tactical reasons that motivated counsel to remain silent at the time the evidence was tendered. [152] If the circumstances support an inference that trial counsel made a tactical decision not to contest the admissibility of evidence at trial, this Court should be slow to intervene where doing so facilitates a “second kick at the can” on appeal following adoption of a different and ultimately unsuccessful trial strategy: R. v. Calnen , 2019 SCC 6 at paras. 44, 67, 70. [153] I note, in this regard, that the judge asked trial counsel during a break in the complainant’s examination‑in‑chief (and in the absence of the jury) whether he had any objection to the Crown tendering certain exhibits. The inquiry, although directed to another issue, was made immediately after the complainant had given evidence about the three pre‑indictment incidents. Defence counsel raised no concern about the admissibility of this evidence. Indeed, in responding to the judge’s question about the introduction of certain exhibits, he said, “I haven’t objected, and … you don’t need to call on me because we’ve obviously discussed all this”. The only concern defence counsel raised was with the Crown leading the witness. [154] The complainant gave evidence at the preliminary inquiry. It was never suggested that her preliminary inquiry testimony was inconsistent with the evidence she gave at trial about these three incidents. The issue pursued on behalf of the appellant in cross‑examination was that the complainant’s trial testimony respecting the pre‑indictment conduct of the appellant was inconsistent with the statement she had given to the police. [155] I infer from all of this that the appellant’s trial counsel was not taken by surprise by the complainant’s testimony concerning these three incidents. I am satisfied that trial counsel was not in the position of having to deal as best he could with unanticipated allegations of pre‑indictment sexual misconduct. Nor is the failure to object in this case properly characterized as “passive inadvertence”: see R. v. Barton , 2019 SCC 33 at para. 48. Rather, I infer that defence counsel knew the complainant would testify at trial as she did and considered that cross‑examining her on inconsistencies between her trial evidence and her statement to the police was an important way in which her credibility and reliability might be undermined in relation to the allegations before the court. [156] The complainant was, in fact, extensively cross‑examined on her failure to tell the police the sexualized versions of these three incidents she related at trial. [157] In his closing address, defence counsel emphasized that her failure to do so undermined her entire version of events and was a critical component of the theory of the defence that the complainant was an untrustworthy witness. [158] When the jury returned with their question (the use, if any, they could make of the Red Deer incidents that predated the indictment), defence counsel reminded the judge that he used the pre‑indictment incidents to undermine the complainant’s credibility. He agreed that the jury should be instructed that they could consider the pre‑indictment incidents as part of the narrative, to assess the complainant’s credibility, and to put her evidence in context. [159] In the course of dealing with another question from the jury, Crown counsel made further submissions on the response that had been given to the first question. He asked the judge to consider repeating the instruction she gave the jury in the main charge on the limited use they could make of the bad character evidence with specific reference to the pre‑indictment incidents. Defence counsel said he was “somewhat persuaded” by the Crown’s suggestion that the discreditable conduct warning be repeated in the context of the pre‑indictment incidents, but pronounced that he was content with the way in which the issue had been dealt with in the main charge and suggested that the judge, “[j]ust keep [the charge] the way it was.” In the end, the judge supplemented her answer to the first question in a further instruction which directed the jury to consider the instruction given in the main charge on the limited use that could be made of the pre‑indictment bad character evidence. [160] I am prepared to draw two additional inferences from the course of the proceedings in relation to this issue. First, the appellant wanted the complainant’s evidence concerning the three comparatively less serious pre‑indictment incidents before the jury because it was inconsistent with what she told the police. This inconsistency provided useful fodder for cross‑examination. It was said by trial counsel to be the “key” to the appellant’s effort at trial to undermine her credibility. [161] Second, the appellant’s trial counsel was not concerned about the risk of moral prejudice stemming from the admission of this evidence. When the opportunity arose, he did not seek a further direction linking the limited use instruction given in the main charge to the pre‑indictment incidents. In short, the appellant made a strategic decision not to object to the admission of this evidence, but to use it to undermine the complainant’s credibility. He should not be permitted to resile from that position now and argue, for the first time on appeal, that the evidence should never have been admitted. (d) Improper admission of bad character evidence in relation to the charged counts [162] The appellant submits that “it is not clear” why the jury needed to hear evidence about acts of physical abuse alleged by the complainant or evidence respecting the degree to which he controlled her life. He submits that this evidence was not necessary to explain the relationship between the parties, the context in which the offences were committed, or why the abuse went unreported for as long as it did. I respectfully disagree. [163] I note, once again, that no objection was taken to the admission of any of this evidence at trial. [164] At paragraph 131 of these reasons, I have grouped and summarized the evidence the appellant says on appeal should not have been admitted at trial. [165] Some of the evidence to which objection is taken is not, in my view, properly characterized as bad character evidence at all. That the appellant let the complainant have a Big Sister was, if anything, suggestive of good character. The evidence tended to undermine the testimony of the complainant that he isolated her from adults to whom complaint might be made. Although it may have been ill‑advised for the appellant to tell the complainant to take her half‑brother with her when she visited her Big Sister, the jury could not reasonably have regarded this as bad character evidence. The jury knew that the appellant was working long hours and had no care plan for the complainant’s half‑brother when she was out of the house. In the context of the evidence as a whole, this incident was of no moment. [166] I say the same about the appellant’s assertion that the complainant’s evidence concerning her first menstrual period was led to portray him as being uncaring and insensitive because he did not discuss it with her in advance. That was not the complainant’s evidence. She testified that the topic was raised by him and he left tampons for her in the bathroom. The jury could not reasonably regard this as evidence of bad character. [167] The alleged acts of physical and emotional abuse and the control the complainant said the appellant exercised over her, particularly in her formative years, was important contextual evidence probative of central issues in the case — including why the complainant said she submitted but did not consent in her own mind to having sexual relations with the appellant, and why she did not report what was happening to her for so many years. I say the same about evidence respecting the appellant’s jealous rages and threats he directed at the complainant. Again, this evidence was probative of the complainant’s fear of the appellant. She testified that she submitted to the appellant’s sexual demands, remained in the relationship and did not report the abuse to anyone because she was fearful of the “consequences” of doing so and taught that no one would believe her account. [168] The Crown led evidence of two additional incidents that, in my mind, have somewhat less probative value. As noted earlier, the complainant testified that the appellant directed her to commit welfare fraud when she was 15 years old. In addition, the complainant testified that the appellant was uncaring about her first suicide attempt. This evidence was not, however, devoid of probative value. Like much of the other impugned evidence, it illustrated the degree of control the appellant exercised over the complainant as an adolescent. It was contextual evidence the jury could use in determining whether behavioural patterns established when the complainant was a child and adolescent were characteristic of the relationship and persisted as the complainant became an adult. [169] Further, as noted earlier, the risk of moral prejudice that could reasonably be said to have arisen from the introduction of this evidence paled in comparison to the appellant’s admission that he began having regular sexual intercourse with a 15‑year‑old girl who was dependent on him as a surrogate parent, and that he continued to have sexual intercourse with her (despite knowing it was wrong) after she became pregnant and after she gave birth to their first child. [170] Crown counsel made extensive reference to the body of extrinsic misconduct evidence in his closing address, but confined his submissions to the permissible reasons for which the jury could use this evidence (see, for example, paragraph 124 of these reasons). [171] In my view, this evidence was admissible. The risk of moral and reasoning prejudice was attenuated by the nature of the appellant’s admissions and, in my view, could be contained by an appropriate limiting instruction. It is to that issue I now turn. (e) The charge on the use the jury could make of the bad character evidence [172] The judge instructed the jury on the permitted and prohibited uses of the bad character evidence in the following passage: Discreditable conduct During the trial you heard some evidence from [the complainant] that [the appellant] spanked, pinched and hit her when she was a child. I will now explain to you how you may and may not use this evidence. You have heard this evidence because it would have been impossible for the Crown’s case to be presented in an understandable way if this evidence was not heard. The evidence may not have made sense. You can use this evidence only to put the events in context and to help you understand what happened in this case. You can use it for no other purpose. I will now explain why you may not use this evidence for any other purpose. Ordinarily in a criminal trial the Crown cannot lead evidence of wrongdoing as evidence that the accused committed the crimes of which the accused is charged. The Crown cannot lead this kind of evidence because judges and juries cannot conclude that because an accused may have engaged in prior wrongdoing, he’s the kind of person who could have or would have committed the crime with which he is now charged. Judges and juries cannot use evidence of wrongdoing as evidence of guilt in that way. We must rely on evidence that an accused committed the crime charged with, not evidence that an accused may have done something else wrong. Despite that rule, this evidence was permitted to be heard as I have just explained for a different purpose only; that is to put the events in context. You may not use the evidence for any other purpose. In particular, you may not use the evidence to conclude that [the appellant] is a bad person and so is more likely to have committed the offence with which he is charged, nor may you use the evidence to punish [the appellant] for any past misconduct. [173] With respect to the pre‑indictment acts of sexual misconduct alleged by the complainant, the jury was instructed in these terms: With respect to Count 1, if you are satisfied beyond a reasonable doubt that [the appellant] intentionally applied force in circumstances of a sexual nature and all of the other elements have been proven beyond a reasonable doubt, including the fact that at least one of the incidents took place in British Columbia, then you must find [the appellant] guilty of Count 1. You heard [the complainant] testify in general about multiple incidents of sexual conduct that occurred in Red Deer, Alberta, Vancouver and Surrey, British Columbia. It is not necessary that all allegations of sexual conduct be proven. One incident in British Columbia proven beyond a reasonable doubt within the timeframe alleged and at the place alleged is sufficient for Count 1. I should tell you as well that you heard [the complainant] testify about events occurring shortly after her mother left Red Deer which would have been in 1982. [The appellant] is not charged with any event that may have occurred before January the 4th, 1983. As discussed in the Crown and defence closing statements, you may find that these particular incidents are relevant as part of the narrative and relevant to [the complainant’s] credibility, but they should not be relied upon to convict. [174] When the jury asked whether the pre‑indictment events in Red Deer could be counted as evidence, the judge provided this answer: During this trial, you heard evidence relating to events that occurred in Red Deer, Alberta, that occurred before January the 4th, 1983. You can consider all of that evidence as part of the narrative and as relevant to [the complainant’s] credibility, and to put the evidence into context. However, as I have stated, to convict on Count 1, you must be satisfied that the Crown has proven beyond a reasonable doubt that an incident of sexual assault occurred after January 1, 1983 [ sic ] and before [a day in July] 1988, and at least one of those events occurred in British Columbia. [175] At the Crown’s request, the judge supplemented her initial response to the jury’s question by linking the limiting instruction on bad character evidence to the pre‑indictment allegations: I also want to say, with respect to the first question that we answered -- or I answered earlier today. I remind you about paragraphs 49 and 50 in the final written instructions [paragraphs 49 and 50 of the written copy of the charge provided to the jury are reproduced above at paragraph 172.] Again, I’m not going to reread those paragraphs to you. You have them. But you can take a look at paragraphs 49 and 50 when you recommence your deliberations. [176] No objection was taken to the instructions given on the limited use the jury could make of the bad character evidence, including the evidence of misconduct that predated the start date of the indictment. [177] For the first time on appeal, the appellant asserts that the limiting instruction was inadequate to alleviate the prejudice associated with this evidence. He argues that the judge was obliged to identify all of the evidence to which the instruction pertained (not just the spanking, pinching, and hitting incidents when the complainant was a child) and explain to the jury its permitted and prohibited uses. The appellant complains that the instruction highlighted only a small fraction of the bad character evidence. He argues that the jury may have understood it could use bad character evidence not specifically mentioned by the judge however it wished. [178] I do not agree with the appellant’s position on this point. [179] The precise form a limiting instruction of this kind should take is a matter of judicial discretion, shaped by the type and volume of the bad character evidence admitted at trial, the prejudice that may be occasioned by a more detailed instruction of the sort the appellant now says should have been given, and the positions of counsel at trial. A judge is certainly not obliged to review every instance of discreditable conduct when providing a limiting instruction of this kind: R. v. Owen , 2015 ONCA 462 at para. 24. In some circumstances, it may be inadvisable to do so. [180] While the judge would not have been wrong to identify with greater particularity the evidence to which the limiting instruction applied, such an instruction would not have inured to the appellant’s benefit. The appellant’s trial counsel recognized as much. [181] The instruction the appellant submits on appeal should have been given would have obliged the judge to highlight his highly abusive conduct, including how the jury could use the complainant’s evidence that when she was between nine and 12 years of age, he abandoned her after telling her to take her pants off on a dark, rural road after she attempted to defy him. It would also have obliged the judge to instruct the jury on the use they could make of the complainant’s evidence that, when she was 15, he threatened to leave her unclothed in the hallway of a hotel to coerce her into having sexual intercourse with him. [182] Against this background, it is not surprising that in one of the pre‑charge conferences, trial counsel asked the judge to “keep the facts to a minimum” in the charge to the jury. [183] The failure to object on this basis, particularly in a case where counsel had been provided in advance with a hard copy of the proposed charge, may speak to the overall adequacy of the charge, the gravity of the alleged non‑direction, and the assessment of trial counsel that the specific direction sought for the first time on appeal would not have been in his or her client’s interests: Calnen at paras. 38–41; Barton at para. 49. In this case, the failure to object simply confirms my conclusion that the type of instruction the appellant now says should have been given was unwanted at the material time and would have been much more prejudicial to him than the instruction that was given. I see no reviewable error on this issue. [184] Likewise, while the judge could have said more about the permitted uses of the bad character evidence, perfection is not the standard applied on appellate review: R. v. Jacquard , [1997] 1 S.C.R. 314 at para. 2. Moreover, it is unlikely that a more detailed instruction concerning the permitted uses of the evidence would have been helpful to the appellant. [185] In any event, I am satisfied from the instructions as a whole that the jury would have understood the limited use that could properly be made of this evidence. I am also satisfied that the instructions were adequate to convey to the jury the use that could not be made of this evidence. For these reasons, I would not give effect to this ground of appeal. 2.  Did the trial judge err in failing to instruct the jury that a finding of guilt on one count had no probative value to the other counts? (a) The appellant’s position [186] The manner in which the appellant framed this ground of appeal in his factum does not fully capture his position on this point. There are, in fact, two prongs to this ground of appeal. The appellant submits that the judge erred: (1) by failing to instruct the jury that they were not permitted to use evidence admissible on one count to prove any other count; and (2) that a finding of guilt on one count could not be used as evidence of guilt on any other count. [187] The appellant argues that if the jury accepted the complainant’s evidence about the alleged sexual assaults from the time she was eight to 13 years old, there was a real danger that the jury would engage in impermissible propensity reasoning and conclude that he also sexually assaulted her when she was an adult. The appellant submits that this risk was heightened by virtue of the fact that he admitted having sexual intercourse with the complainant when she was between the ages of 15 and 18 and when he was in a position of trust or authority towards her. Although the appellant’s guilt on Count 3 was not formally conceded in the trial court, the jury was instructed that the appellant “appears to admit that he was in a position of authority to [the complainant], and she was in a relationship of dependency to him in the time frame alleged in Count 3”. [188] The appellant submits on appeal that his evidence made a conviction on Count 3 “inevitable.” [189] Once again, these objections to the charge are raised for the first time on appeal. (b) General principles [190] In cases involving multiple counts and multiple complainants , the jury should be instructed to consider each count separately and not to use evidence on one count to prove any other count: R. v. Rarru , [1996] 2 S.C.R. 165; R. v. Thomas , 2019 BCCA 247 at paras. 29–32; R. v. G.W. , 2016 BCCA 510 at paras. 50–52; R. v. M. (B.) (1998), 130 C.C.C. (3d) 353 (Ont. C.A.); J.A.T. at para. 55. The instruction is designed to guard against the risk that the jury will use its acceptance of the evidence of a complainant on one count to bolster their assessment of the credibility of another complainant on another count. [191] Cases like the one at bar involving multiple counts and allegations of long‑term abuse in relation to a single complainant do not stand on the same footing and do not necessarily require the same instruction. The risk that a complainant’s evidence on one count will be bolstered by acceptance of the evidence of different complainants on other counts does not logically arise in this context. Further, in cases like the one at bar, the evidence will often be common to all of the counts. The whole of the evidence may provide important contextual evidence concerning the nature of the relationship, the context in which the abuse was said to have occurred, and why disclosure was not made at an earlier time. In these circumstances, instructing a jury to consider each count separately and not to use evidence on one count to prove any other count might well cause confusion or mislead the jury as to the nature of its task: R. v. Albert (1996), 83 B.C.A.C. 119  at para. 20, leave to appeal ref’d [1997] S.C.C.A. No. 205; R. v. Sandhu , 2009 ONCA 102 at paras. 11–16; R. v. N.T. , 2011 ONCA 114 at para. 13. (c) Analysis [192] This was a case involving a single complainant and multiple counts. The evidence of abuse on one count could not be compartmentalized as the appellant suggests. That evidence provided important context for understanding the dynamics of the relationship between the appellant and complainant over time. The evidence of abuse, control and domination given by the complainant at the time of the events underlying Counts 1–3 was relevant to and probative of whether the complainant consented in law to the assaultive conduct underlying Count 4, or whether any ostensible consent was vitiated either by reason of threats or fear of the application of force or the exercise of authority. In addition, the conduct associated with Counts 1–3 was relevant to and probative of a critical question in relation to Count 5 — whether no consent in law to the sexual acts covered by this count was obtained because the appellant induced the complainant to engage in the activity by abusing a position of trust, power or authority that had been established earlier in their relationship and continued to be operative at the relevant time. In my view, this use of the evidence does not involve propensity reasoning. [193] Against this background, I am of the view that the judge was not required to instruct the jury to consider each count as a separate silo informed only by the evidence admissible on that count. In the context of this case, such instruction would have been worse than confusing — it would have misled the jury. In addition, such instruction would have been to the appellant’s detriment. [194] Again, the appellant’s trial counsel recognized this to be the case. In his closing address, counsel invited the jury to assess the credibility of the complainant against the whole of the evidence. He suggested that if the jury found that the complainant was being untruthful, inconsistent or prone to embellishment with respect to one incident, it should affect their assessment of her credibility as a whole. He submitted that inconsistencies in the complainant’s account, including those already highlighted in relation to the pre‑indictment period, undermined her reliability in relation to subsequent charged events. Similarly, he submitted that weaknesses in the complainant’s evidence with respect to events that occurred later in time undermined her credibility and the reliability of her evidence in relation to earlier events that were the subject of a count. In this way, the defence invited the jury to see all of the counts as being “interlinked”, and to have a reasonable doubt based on the whole of the evidence. [195] In this context, it is not surprising that defence counsel did not object to the charge on this basis. In addition to potentially undermining the defence strategy, an instruction of the sort sought by the appellant for the first time on appeal would necessarily have involved the repetition of evidence that portrayed the appellant in a most unfavourable light. Such an instruction would be contrary to trial counsel’s entreaty to keep the facts to a minimum. I would not give effect to the appellant’s submissions on this issue. [196] I turn next to the appellant’s contention that the trial judge erred by failing to warn the jury that a finding of guilt on one count was not evidence of guilt on another. While this ground of appeal was asserted by the appellant in his factum, it was not developed either in writing or in oral argument. Again, no objection to the charge was taken on this ground. [197] While it may have been preferable for the trial judge to have given an express instruction to this effect, I am not prepared to conclude that non‑direction on this point constitutes reversible error in law. First, the jury was properly instructed on the different elements of each of the offences charged and the distinct factual and legal issues they would need to resolve before convicting on any individual count. Nothing the judge said in her charge would convey to the jury that proof of guilt on one count could substitute as evidence constituting proof of guilt on another count. Indeed, the structure of the charge stands against this reasoning. Second, although said in the context of the use that could be made of discreditable conduct evidence, the judge’s instructions on this issue made clear that “[j]udges and juries cannot use evidence of wrongdoing as evidence of guilt”. In the face of this warning against propensity reasoning, it is unreasonable to suppose that the jury would regard a finding of guilt on one count as circumstantial evidence of guilt on another count. Once again, no objection was taken to the charge on this basis. In my view, defence counsel’s failure to object speaks to the seriousness of the alleged non‑direction in this case: Jacquard at para. 38. I would not give effect to this ground of appeal. 3.  Did the trial judge err in excluding the video? (a) The appellant’s position [198] In light of the acknowledged error in principle in the ruling on Voir Dire #1 — casting the burden on the defence to show that the probative value of the evidence outweighed its prejudicial effect — the appellant submits that the judge’s conclusion is not entitled to appellate deference. [199] In light of this error in principle, the parties agree that this Court should apply the test set out in Seaboyer and determine whether the video ought to have been admitted at trial for cross‑examination purposes. [200] The appellant argues that the video was relevant, material to the resolution of central issues at trial, and not subject to an exclusionary rule. It was, thus, presumptively admissible. It could only be excluded through the exercise of the judge’s residual discretion not to admit the evidence on grounds that its prejudicial effect substantially exceeded its probative value. [201] The appellant submits that this case turned on the jury’s assessment of the credibility of the appellant and complainant. The complainant testified that she did not consent to any sexual act in the time frame set out in Counts 4 and 5 (alleging sexual assault when she was between the ages of 14 and 38). The appellant testified that all of those acts, which he said started when the complainant was 15 years of age, were consensual. The appellant submits that the video depicts one instance of the offence alleged in Count 5. The appellant argues that he should have been permitted to cross‑examine the complainant on the two video clips, and introduce the whole of the video as part of his case, to contradict the complainant generally and on issues going directly to the defence of consent and honest but mistaken belief in consent. [202] The appellant submits that as a consequence of the ruling on Voir Dire #1, his trial counsel was unable to ask specific and detailed questions about the video or impeach the complainant on its contents. [203] The appellant further submits that in weighing prejudice against probative value, the judge improperly emphasized the “shock value” of the video. The appellant notes that jurors are often required to view potentially disturbing images, and that such evidence is rarely excluded because of its potential to cause prejudice by inflaming the sensibilities of jurors: R. v. Sipes , 2011 BCSC 920 at paras. 22–23. [204] The appellant says that on a correct application of the Seaboyer test, it is clear that any potential prejudice flowing from admission of the video did not substantially outweigh its probative value in cross‑examining the complainant. [205] The appellant acknowledges that the complainant’s dignity, privacy and equality interests were appropriate considerations in the application of the test. He submits, however, that these concerns could have been addressed by blurring out the depiction of genitals in the video, closing the courtroom when the video was shown, allowing the complainant to testify behind a screen during cross‑examination, and instructing the jury on any impermissible inferences they might be tempted to draw from this evidence. [206] The appellant submits that the ruling on Voir Dire #2 also reflects error in principle in the articulation of the test. After reviewing Seaboyer and other leading authorities at some length, the judge said this in her second admissibility ruling: [33]      I take from these authorities that we again embark on a balancing exercise to ensure that [the appellant’s] fair trial rights are protected, and recognizing the importance of dignity and the privacy and [e]quality rights of [the complainant]. [Emphasis added.] The appellant argues that the judge erred in this passage by characterizing her task as a simple exercise in balancing interests. He submits that in considering her residual discretion to exclude defence‑led evidence, the judge was required to consider whether prejudice substantially outweighed the probative value of that evidence. [207] With respect to the ruling on Voir Dire #2, the appellant repeats his submission that the video was probative of the complainant’s credibility because it was capable of contradicting her testimony on the critical issues of consent and honest but mistaken belief in consent. Relying on Nikolovski at para. 21, the appellant also argues that the video was the best available evidence of at least one instance of sexual assault alleged within the timeframe set out in Count 5. He points out that, while the absence of consent is subjectively determined, the jury was required to consider the complainant’s words and actions, before and during the sexual activity, to determine whether there was a reasonable doubt about whether she did not consent: R. v. Ewanchuk , [1999] 1 S.C.R. 330 at paras. 29–30. The appellant submits that the complainant’s conduct in participating in the creation of the video, and the reasonable inferences that the appellant says flow from that conduct, give the video significant probative value. (b) The Crown’s position [208] The Crown submits that while the test in Seaboyer gives expression to an accused’s constitutionally protected right to make full answer and defence, care must be taken to ensure that the truth‑seeking function of the trial is not impaired by the admission of evidence that relies for its probative value on myths, stereotypes and generalizations about how complainants in sexual assault cases are expected to behave: Osolin at 671; R. v. D.D. , 2000 SCC 43 at para. 65; R. v. A.R.D. , 2017 ABCA 237 at paras. 51, 57, aff’d 2018 SCC 6; R. v. Mills , [1999] 3 S.C.R. 668 at para. 119. [209] With respect to Voir Dire #1, the Crown concedes error in principle in the judge’s articulation of the Seaboyer test but submits that the application of the correct test would result in the same decision. [210] The Crown submits that the prejudicial effect of admitting the two video clips for cross‑examination purposes substantially outweighed the probative value of the evidence in impeaching the complainant’s testimony. The Crown says that on the basis of the submissions made by trial counsel, the video was not shown to have any probative value. [211] The Crown argues that trial counsel’s submissions on the probative value of the video clips in cross‑examining the complainant rested on his own misapprehension of her evidence. The Crown says that when the ruling was made, the contents of the video had not been shown to be inconsistent in any way with the complainant’s testimony. Further, no evidentiary foundation for potential impeachment of the complainant’s credibility was established after the ruling was made. The Crown says this explains why no application was made by the appellant to have the judge revisit the ruling on grounds of a material change in circumstance — specifically, that the post‑ruling evidence given by the complainant in cross‑examination was inconsistent with the contents of the video. [212] In contrast, the Crown submits that admission of the video clips would constitute a gross invasion of the privacy, dignity and equality interests of the complainant. In addition, admission of this evidence would raise the risk that the jury would engage in impermissible and stereotypical reasoning about how complainants in sexual assault cases should engage with their alleged abuser. [213] With respect to Voir Dire #2, the Crown submits that the judge did not err in principle by concluding that the Seaboyer test contemplates “a balancing exercise.” The Crown submits, therefore, that the ruling is entitled to deference on appellate review and that it has not been shown that the judge was clearly wrong in determining that the probative value of the evidence was substantially outweighed by its prejudicial effect. [214] Finally, the Crown submits that it is not open to the appellant to advance on appeal arguments in support of the probative value of the video that were not raised below. In this regard, the Crown notes that trial counsel did not argue on the second voir dire that the video was probative of honest but mistaken belief in consent in relation to Count 5. (c) Analysis (i)   Factual context informing the admissibility rulings [215] The complainant testified that when the video was created, the appellant had been having sexual intercourse with her on a weekly basis for approximately eight years, starting when she was about 12 years old. By the time the video was created, she had given birth to two children fathered by the appellant. For reasons the complainant described, rooted largely in her fear of the appellant and the control he exercised over her, she testified that she had long ago given up resisting his sexual advances. The complainant said she participated in the creation of the video because he instructed her to do so. [216] On the appellant’s version of events, when the video was created, he had been having regular sexual intercourse with the complainant for about five years — conduct that he admitted followed his sexual exploitation of her. He did not take issue with the complainant’s testimony that he had sexual intercourse with her on a roughly weekly basis since she was 15 years of age. Thus, it was common ground at trial that the video depicts one of literally hundreds of sexual encounters between the complainant and appellant in the time period covered by the sexual assault counts. [217] In practical terms, the video was potentially relevant only to Counts 4 and 5 — counts to which the defences of consent (Count 4) or consent and honest but mistaken belief in consent (Counts 4 and 5) were left with the jury. [218] Finally, the video was not created surreptitiously. Both the appellant and complainant participated in staging the video and performing for the camera. (ii)  Legal context informing the admissibility rulings [219] Full answer and defence is a principle of fundamental justice protected by s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. A key element of the right to make full answer and defence is the right to cross‑examine a Crown witness without significant and unwarranted restraint: R. v. Lyttle , 2004 SCC 5 at paras. 1, 41. [220] Canadian courts must exercise caution in restricting the ability of an accused to call evidence in his or her defence or to cross‑examine a Crown witness. This reluctance is founded in the fundamental tenet of our justice system that an innocent person must not be convicted: Seaboyer at 611. It is reflected in the Seaboyer test itself. Generally, a complainant may be cross‑examined for the purpose of eliciting evidence relating to consent and pertaining to credibility when the probative value of that evidence is not substantially outweighed by the risk of unfair prejudice flowing from its admission: Osolin at 671. [221] The right to cross‑examine is not, however, unlimited: R. v. R.V ., 2019 SCC 41 at para. 40. In the context of sexual assault cases in particular, limits may be necessary to protect the complainant’s dignity, privacy and equality interests: Osolin at 669. These interests may be more compelling where, as here, the sexual assault offences alleged and the circumstances in which the video was created are, by the appellant’s own admission, historically bound up with the sexual exploitation of a very young girl: R.V. at para. 68. [222] These limits also aim to achieve the important social objective of encouraging the reporting of sexual assault offences. As Justice L’Heureux‑Dubé noted in her dissenting reasons in Osolin at 628, “[o]ne of the most powerful disincentives to reporting sexual assaults is women’s fear of further victimization at the hands of the criminal justice system”. [223] These countervailing considerations are not unique to the legislative regime established under s. 276 of the Code . They are rooted in the common law. Their goal is to ensure that trials be fair from both the perspective of the accused and of society more broadly: Barton at para 83. Indeed, as Justice Binnie noted in Shearing at para. 98, some of our current legislative provisions designed to more appropriately balance the privacy interests of sexual assault complainants with the right of an accused to make full answer and defence — including the regime set out for the production of private records in ss. 278.1–278.97 of the Code — sprang from the recognition of privacy and equality interests in common law and Charter cases. [224] In the result, the right to make full answer and defence does not necessarily open the door to the widest possible range of inquiries. Nor does it guarantee to an accused the most favourable procedures imaginable — procedures that take only his or her interests into account or that permit the introduction of evidence that purports to take its probative value from impermissible reasoning based on myths and stereotypes that have long plagued this area of the law and distorted the truth‑seeking function of a trial: R.V. at para. 67; R. v. Darrach , 2000 SCC 46 at para. 24; Barton at para. 1; R. v. Goldfinch , 2019 SCC 38 at paras. 2, 30. [225] In some cases, it will be appropriate for trial judges to narrow the scope of questioning to minimize infringement of the complainant’s legitimate interests, while maintaining the accused’s ability to make full answer and defence: R.V. at para. 67. Where serious concerns arise about the potential for unnecessary infringement of a complainant’s privacy, dignity and equality interests, a judge applying Seaboyer may legitimately ask how important the evidence really is to the accused’s right to make full answer and defence: Goldfinch at para. 69 (per Justice Karakatsanis) and at para. 96 (per Justice Moldaver, concurring in the result). The more important evidence is to the defence, the more weight must be given to the rights of the accused: R.V. at para. 64. In my view, such an approach is faithful to the requirement that competing Charter rights be examined in a contextual manner to resolve conflicts between them: Mills at para. 21. [226] By its terms, the Seaboyer test permits the introduction of relevant and material evidence that is not captured by an exclusionary rule where the evidence is possessed of some probative value not substantially outweighed by its prejudicial effect. [227] The probative value of evidence is a function of its tendency to establish the proposition for which it is tendered: Handy at para. 148. In assessing probative value, the trial judge does not determine whether the evidence establishes the proposition for which it is tendered, but only the threshold question of whether it should be heard by the trier of fact because it is capable of doing so. [228] In this case, the probative value of the video for cross‑examination purposes was said to lie in its capacity to undermine the complainant’s credibility in both general and specific ways. In general terms, the evidence was said to be capable of undermining the complainant’s characterization of the nature of the relationship she had with the appellant in her adult years. More specifically, the evidence was said to be capable of undermining her testimony that she did not consent to sexual activity with the appellant. [229] Prejudice from allowing the video to be used in cross‑examination of the complainant could manifest itself in two overlapping ways. [230] The first is reasoning prejudice based on the risk that the jury would be tempted to draw impermissible inferences based on stereotypes and myths about how sexual assault complainants who allege long‑term abuse should behave. This is what I understand the judge to be referring to when she emphasized the “shock value” of the video. Preventing the admission of evidence that purports to take its probative value from impermissible reasoning founded on gender‑based myths and stereotypes promotes trial fairness. In my view, this type of prejudice may be more amenable to limiting instructions that guard against impermissible reasoning. But the risk of misuse persists precisely because some of the myths and stereotypes upon which illegitimate reasoning rests have long masqueraded as “truths” based on common sense: Seaboyer at 679–680 (per L’Heureux‑Dubé J., dissenting in part); A.R.D. at paras. 9, 42–43. As Chief Justice McLachlin observed in R. v. Find , 2001 SCC 32 at para. 103: These myths and stereotypes about child and adult complainants are particularly invidious because they comprise part of the fabric of social “common sense” in which we are daily immersed. Their pervasiveness, and the subtlety of their operation, create the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors. [231] I pause here to make two additional observations. First, the phrase “gender‑based myths” reflects both the gendered nature of sexual violence and the inescapable reality that the myths and stereotypes the law has recently attempted to ferret out have traditionally disadvantaged female complainants. I recognize, however, that similar myths and stereotypes about how sexual assault complainants should behave can equally arise in trials that involve the alleged abuse of male complainants. [232] Second, some of the evidence led by the defence in this case underscores the extent to which gender‑based myths continue to permeate the resolution of sexual assault cases. For example, the complainant’s daughter gave unsolicited evidence that her mother dressed in a way that made it clear she was “very proud of her cleavage.” For his part, the appellant gave unsolicited (and unsubstantiated) evidence that the complainant had an affair with the husband of a close friend. There was nothing the trial judge or counsel could have done to prevent either witness from blurting out this evidence in front of the jury. The sole purpose of this testimony was to discredit the complainant by suggesting that she was, by virtue of her dress and sexual history, a promiscuous woman who could not be trusted. In their determination to give this evidence, the complainant’s daughter and the appellant were implicitly relying on the false (but what they considered to be common sense) premise that a woman who is alleged to have dressed provocatively or to have engaged an extra‑marital affair is inherently less worthy of belief. [233] The second type of prejudice has both an individual and societal component. On an individual level, showing any portion of the video to the jury, even in the face of an order excluding the public from the courtroom, would constitute a significant invasion of the complainant’s privacy and dignity interests. In addition, the admissibility of the video engaged the complainant’s equality rights under ss. 15 and 28 of the Charter : Osolin at 669. As noted in Law v. Canada (Minister of Employment and Immigration) , [1999] 1 S.C.R. 497 at para. 64, the role of s. 15(1) is to overcome prejudicial stereotypes in society. Individual harm occasioned by the unnecessary introduction of evidence like the evidence at issue in this case is not remediable. Prejudice in this context also engages broader societal interests. Those interests include promoting access to justice by encouraging sexual assault victims to report complaints of sexual abuse, and to participate in criminal trials which do not turn on the invocation of unfounded and discredited myths and stereotypes. [234] As with any exercise of discretion, the balancing of probative value and prejudicial effect is fact‑specific and context‑dependent. [235] Section 276 of the Code has no direct application to this case. It prohibits the admission of evidence that a complainant has engaged in sexual activity with the accused or with any other person to support an inference that, by reason of the sexual nature of that activity, the complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge or is less worthy of belief (the “twin myths”). Where an accused seeks to introduce such evidence for some other purpose, the evidence is presumptively inadmissible unless the accused establishes under s. 276(2) that the evidence is of specific instances of sexual activity, is relevant to an issue at trial, and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice: Goldfinch at para. 49. Section 276 applies where the prior sexual history evidence sought to be adduced relates to activity “other than the sexual activity that forms the subject‑matter of the charge”. In this case, the video depicts sexual activity that forms one instance of the offence charged in Count 5. [236] As a final comment, I note that this trial was completed before the enactment of ss. 278.92–278.97 of the Code. In summary, these provisions establish a framework for the admission of a “record” (defined in s. 278.1 to mean any form of record that contains personal information for which there is a reasonable expectation of privacy) in the possession or control of an accused that relates to a complainant in proceedings for enumerated sexual assault‑related offences. Specifically, such a record shall not be admitted at the behest of an accused unless the judge determines: (1) where the admissibility of the evidence is subject to s. 276, that the evidence meets the conditions set out in s. 276(2); or (2) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. The factors to be considered on an application engaging s. 278.92 largely mirror the factors to be considered on an application under s. 276. These provisions give statutory expression to a test that is different from the Seaboyer test the judge was required to apply in this case. (iii) Voir Dire #1: The admissibility ruling for cross‑examination purposes [237] The judge made clear in her first ruling that she was addressing the admissibility of the video for cross‑examination purposes based on the two clips she had been shown. Her ruling was necessarily based on the evidentiary foundation that existed when trial counsel attempted to use the video clips to cross‑examine the complainant. Our assessment of the correctness of the judge’s ruling must be sensitive to the context in which that determination was made. [238] As noted earlier, the parties agree that the task of this Court is to consider the admissibility of the video afresh on the basis of the test set out in Seaboyer and the arguments presented to the trial judge. In my view, our assessment must also accord deference to any factual findings made below that are untainted by the error. [239] As I read her reasons, the judge concluded that the appellant could make full answer and defence without the need to show the complainant the video in cross‑examination. As she put it, “[t]he object [the appellant] wishes to pursue can be obtained as effectively without the shock value through cross‑examination about the tape as it could be by playing a degrading and highly prejudicial video”. In my view, that is a heavily fact‑laden finding to which deference is owed. It is also entirely consistent with the approach taken in R.V. Although decided in the context of s. 276, R.V. stands for the proposition that the manner in which full answer and defence is made may be judicially shaped in order to minimize the impact the admission of certain types of evidence will have on a complainant’s privacy, dignity and equality interests: at paras. 67–70. [240] The probative value of the portion of the video trial counsel sought to put to the complainant in cross‑examination was said to lie in its capacity to impeach her credibility on specific issues: (1) whether she ever kissed the appellant; (2) whether the “pretend world” was limited to the maintenance of outward appearances and, therefore, did not extend to sexual conduct behind closed doors; (3) whether she was in a “relationship” with the appellant; (4) whether she ever derived physical pleasure from having sexual intercourse with the appellant; and (5) whether that relationship was romantic and affectionate as opposed to one characterized by dominance and abuse. [241] In my view, cross‑examining the complainant on the two video clips could not have served to impeach the complainant’s credibility on whether she kissed the appellant. The complainant did not deny kissing the appellant. Her evidence was that she did not do so voluntarily. I note that this was the primary basis upon which the defence sought to use the video. Indeed, trial counsel said at one point that it was the “only reason” he sought to use the video in cross‑examination. It was the only thing he asked the judge to look for in viewing the video clips on the first voir dire . [242] Further, the video would not contradict the complainant on her description of the “pretend world”. The complainant did not testify that the pretend world was limited to the maintenance of outward appearances. She clearly testified that the pretend world extended to the appellant’s expectations of her behind closed doors, and that there were consequences for her if she did not comply with his wishes. [243] On the issue of whether the complainant was in a relationship with the appellant, the complainant objected to trial counsel’s use of the term “relationship” if it was meant to connote a loving partnership entered into through an exercise of free will. It is obvious the complainant did not deny being in a relationship with the appellant and the video could not possibly have been used to undermine the complainant’s credibility on this issue. [244] I do not see any meaningful difference between what is depicted on the video and the complainant’s evidence. In these circumstances, I am unable to see how the video had any probative value in terms of impeaching the complainant’s credibility. A similar conclusion was reached in R. v. S.B. , 2016 NLCA 20 at para. 55, rev’d on other grounds 2017 SCC 16. Unlike the case at bar, S.B. directly engaged s. 276 of the Code . The complainant told the police she did not enjoy anal intercourse, but engaged in it with the accused to fulfil his desires. The appellant sought to cross‑examine the complainant on a video the two of them had made showing her (at least ostensibly) to be a willing partner with the accused in an act of anal intercourse. The video was made before the charges arose and, therefore, depicted activity other than the sexual activity that formed the subject matter of the charges before the court. The trial judge permitted cross‑examination of the complainant on a transcript of the video (but not the video itself). In the absence of any meaningful difference between the contents of the video and the complainant’s statement to the police, Rowe J.A. (as he then was), writing for the Court on this issue, was unable to discern how the video had any probative value in cross‑examining the complainant. Put simply, it did not give rise to an inconsistency capable of impeaching her credibility. The same is true in this case. [245] I do not accept the appellant’s position that without the video, trial counsel was unable to ask specific and detailed questions about the video with a view to impeaching the complainant on its contents. Trial counsel was not prohibited from asking the complainant any questions about the contents of the video in an effort to lay the foundation for impeachment — either before or after the first ruling. In fact, he attempted to do so after the first ruling. He put to the complainant that the video showed her kissing the appellant and being affectionate with him. She did not deny either suggestion. He put to the complainant that the video would show him “servicing her” in a sexually pleasurable way. She agreed that it would. Her evidence was not in any way inconsistent with the video clips trial counsel sought to confront her with in cross‑examination. Against this background, I do not see how introducing the video clips for cross‑examination purposes would impeach the complainant’s credibility and thereby assist the appellant in making full answer and defence. [246] The appellant’s trial counsel was not prohibited from using a transcript of the video to cross‑examine the complainant on alleged inconsistencies — an avenue that he acknowledged “may solve the problem.” He did not do so. It is fair to infer that the transcript was not used in cross‑examination because it would not contradict the complainant on any material issue. [247] In addition, the appellant was not prohibited from giving evidence himself that the contents of the video contradicted what the complainant said it would depict. In fact, he was never asked to describe what was on the video, let alone how its contents were inconsistent with the complainant’s account. It is a curious feature of this case that the appellant — who submits that the video was a critical component of his defence, particularly in relation to Counts 4 and 5 — was never asked in examination‑in‑chief to describe what was on the video. Further, the appellant never testified that the sexual acts performed in front of the camera on this occasion were typical of the sexual relations the two of them had between 1988 (when the complainant was 14 years of age) and 2012, or that the context in which the sexual acts depicted on the video was no different from the context in which other sexual acts covered by the indictment period took place. [248] I turn next to consider the probative value of the video in potentially undermining the complainant’s testimony that she did not consent to any sexual activity with the appellant. Although the argument was poorly articulated in the trial court, I understand the appellant to advance the position that the video could be used in cross‑examination in an effort to raise a reasonable doubt about the absence of consent because: (1) the complainant appears to be a willing participant to the acts depicted on the video; (2) the video demonstrates that the complainant derived physical pleasure from having sexual intercourse with the appellant on this occasion; and (3) the video depicts the complainant displaying affection towards the appellant. [249] I note that the complainant was never specifically asked in cross‑examination about whether she ever derived any physical pleasure from having sexual intercourse with the appellant. The issue was not explored either before or after the first voir dire ruling. Similarly, it was never put to the complainant in cross‑examination that there were no moments of affection between them in the 24‑year period covered by the sexual assault counts — a period in which they raised four children together. [250] If the video had any probative value for cross‑examination purposes, it was attenuated by three additional facts. First, it does not depict a single act said to constitute the offence of sexual assault. Rather, the video in the case at bar depicts only one of several hundred sexual acts involving the appellant and complainant in the time frame encompassed by the indictment. Second, it depicts the conduct of a woman who was sexually exploited by the appellant, beginning, at the latest, when she was 15 years of age. Third, it depicts a staged event — the creation of a pornographic video. One could not reasonably expect that such a video would reveal much about the truth of the relationship between the two people performing for the camera. For these reasons, I am of the view that the video reveals virtually nothing probative of the state of mind of either the complainant or appellant at the relevant time. [251] In any event, I am of the view that the probative value the two video clips were said to possess in fact rested largely, if not exclusively, on impermissible reasoning. This reasoning is grounded in myths and stereotypes about how a sexual assault complainant, in circumstances such as these, should behave. [252] The appellant’s submission that consent (or a reasonable doubt about the complainant’s testimony that she did not consent to having sexual intercourse with him) may be inferred from the complainant’s active participation in the creation of the video rests on stereotypic assumptions about how sexual assault complainants who allege long‑term abuse should be expected to behave. The submission is insufficiently sensitive to the context in which this particular relationship arose and comes freighted with gender‑based assumptions that are ill‑suited to this case. The appellant’s submission rests on a further stereotypic assumption about how a young person who was sexually exploited from the age of 15 (at the latest) should subsequently engage with her abuser. [253] The appellant’s submission that a reasonable doubt about the absence of consent could properly be inferred from the fact that the complainant was shown to physically respond to the sexual acts depicted on the video also rests on stereotypic assumptions and myths about how “truthful complainants” who allege long‑term abuse can be expected to behave. In my view, the appellant’s position rests on the invalid premise that sexual abuse victims should be expected to demonstrate resistance, even if doing so will likely result in injury. The appellant’s position also rests on the invalid premise that no truthful sexual assault complainant, even one who alleges long‑term abuse, should ever be responsive to the physical sensations that accompany sexual acts. By employing this reasoning, submission to the inevitable and responsiveness to sexual touch risks becoming an illegitimate proxy for consent. [254] Finally, although the appellant denies this, I am of the view that what lies at the heart of the appellant’s submission on the probative value of the video is the notion that a trier of fact could legitimately infer that consent to one sexual act on an indictment charging a single count of sexual assault over a very broad period of time is probative of whether consent was given on another occasion. [255] This goes directly to one of the “twin myths” identified in Seaboyer . As explained above, s. 276(1) of the Code protects against the admission of evidence that the complainant has engaged in sexual activity to support an inference that by reason of the sexual nature of the activity, the complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge. Although s. 276 is not applicable to this case because the act depicted forms one instance of the subject matter of the charge, I see no reason why the principles animating this provision should not be considered in cases involving multiple counts over a long period of time. Accordingly, even assuming the video clearly depicts consensual acts, the fact that the complainant may have consented to one staged sexual act performed in front of a camera during the period covered by the charge does not permit an inference that she consented on any other occasion. As the Supreme Court of Canada noted in Goldfinch at para. 60: It is difficult to conceive of a more clear instance of twin‑myth reasoning than the proposition that because the complainant had “at some point” consented to be intimate with the accused, it was “more probable” that she would have done so again. [256] I would also note that trial counsel was not prevented from using the viva voce evidence respecting the contents of the video in his closing address. He emphasized that this evidence supported the appellant’s position that his sexual relationship with the complainant was consensual. As he put it, the relationship started “in a very inappropriate way, in a very wrong way, as [the appellant] has said and admitted … but it became normal.” [257] If there is any probative value in the video clips proposed to be used in cross‑examination of the complainant, that limited probative value must be weighed against the substantial prejudice that would be occasioned by admission of the evidence. [258] Although this is not a case that falls within the legislative framework of s. 276 of the Code , I am of the view that the considerations properly taken into account in determining whether the prejudicial effect of the evidence substantially outweighs its probative value largely mirror those set out in s. 276(3). Those factors include: (a)  the interests of justice, including the right of the accused to make a full answer and defence; (b)  society’s interest in encouraging the reporting of sexual assault offences; (c)  whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (d)  the need to remove from the fact‑finding process any discriminatory belief or bias; (e)  the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (f)   the potential prejudice to the complainant’s personal dignity and right of privacy; [and] (g)  the right of the complainant and of every individual to personal security and to the full protection and benefit of the law[.] [259] Applying the Seaboyer test to the circumstances of this case, I conclude that any probative value the video clips may have possessed in impeaching the complainant in cross‑examination was substantially exceeded by the prejudicial effect, both individual and societal, that admission of the evidence would entail. [260] In the result, and looking at the matter afresh with the Seaboyer test in mind, I have come to the same conclusion that the trial judge did in her first voir dire ruling. I am satisfied that the error in law committed by the judge in her articulation of the Seaboyer test on the first voir dire is harmless in the sense that it did not have any impact on the result: R. v. Van , 2009 SCC 22 at para. 34. Given my conclusion on this point, I would apply the curative proviso in s. 686(1)(b)(iii) of the Code to the error committed in the first voir dire ruling. (iv) Voir Dire #2: The ruling on the admissibility of the video as part of the defence case [261] The appellant does not argue that the judge erred in her articulation of the Seaboyer test in the second ruling. To reiterate, he submits that the judge erred in principle in her application of the test. Specifically, he submits that the judge erred by holding that the test required her to “embark on a balancing exercise to ensure that [the appellant’s] fair trial rights are protected, and recognizing the importance of dignity and the privacy and [e]quality rights of [the complainant]” (emphasis added). [262] I do not agree with the appellant’s submission that the judge’s remarks highlighted above reflect error in principle. In my view, there was nothing remarkable or incorrect about this statement. [263] The Seaboyer test does contemplate a balancing exercise. The judge did not suggest that Seaboyer engages a simple balancing of interests test, nor did she import into the analysis irrelevant considerations. She expressly recognized that prejudice must be shown to substantially outweigh probative value before defence‑led evidence can be excluded. [264] Further, characterizing the test as requiring a balancing exercise does not mean that the factors being balanced cannot have asymmetric legal weights. For example, in R. v. Crosby , [1995] 2 S.C.R. 912 at para. 11, in addressing the test contemplated by s. 276(2)(c) of the Code , L’Heureux‑Dubé J., for the majority, noted that the provision requires judges to undertake a “balancing exercise” that is sensitive to potential conflicting interests. The same is true here. [265] The appellant reiterates many of the arguments asserted in relation to the first admissibility ruling but argues, in addition, that the video was relevant to the jury’s consideration of the defence of honest but mistaken belief in consent in relation to Count 5. He submits that the judge erred by failing to recognize the probative value of the video in relation to this defence. [266] This argument was not put to the judge on the second voir dire. Thus, the appellant challenges the second ruling of the judge not only on the basis of admissibility arguments that were made, but on the basis of admissibility arguments that might have been made, but were not. [267] While I accept that judges exercising their gatekeeping function on evidentiary matters must generally be vigilant to protect what Binnie J. described in Shearing at para. 140 as the “legitimate entitlement of the accused”, the duty to do so must have reasonable limits. [268] To give effect to this goal, it may be necessary in some cases for an appellate court to consider an admissibility argument not made below to prevent a miscarriage of justice. On the other hand, permitting justifications for the admissibility of evidence to be advanced for the first time on appeal would alter the traditional role of appellate courts to sit in review of rulings made at trial. It would require appellate courts to become the court of first instance on discretionary rulings respecting the admissibility of evidence. Routinely entertaining new arguments on appeal would also tend to impair achievement of the important public policy goal of finality in criminal proceedings. [269] In my view, it is neither desirable nor necessary in this case to attempt to posit a general rule governing the circumstances in which new arguments in support of the admissibility of evidence should be entertained on appeal. What can be said is this: trial counsel disclaimed reliance on the defence of honest but mistaken belief in consent, including in relation to Count 5, until very shortly before the jury was charged. The defence of honest but mistaken belief in consent had not been put in play by trial counsel when the second voir dire ruling was made. The appellant has not suggested he was ineffectively represented by his trial counsel. [270] More importantly, the viva voce evidence left little to the imagination in terms of what was depicted on the video. The jury would have taken this evidence into account in assessing the defence of honest but mistaken belief in consent in relation to Count 5. I am not persuaded in this case that the judge erred in principle by failing to take into account an argument not put to her at the relevant time. [271] Even accepting that it is open to us to consider this argument for the first time on appeal, I am not persuaded that it would lead to a different admissibility determination. For the reasons given, I am not persuaded that exclusion of the video impaired the appellant’s ability to make full answer and defence or undermined the fairness of the trial. [272] In the absence of error in principle, a misapprehension of the evidence or a decision that is clearly wrong or unreasonable, the judge’s second ruling on the admissibility of the video must be accorded a good deal of deference on appeal: Shearing at para. 73; R. v. Stewart , 2018 BCCA 76 at para. 14; R. v. Skeete , 2017 ONCA 926 at para. 88. The rationale underlying this deferential standard of review was explained in R. v. Shafia , 2016 ONCA 812 at para. 255, leave to appeal ref’d [2017] S.C.C.A. No. 17: [255] Any assessment of where the balance between probative value and prejudicial effect falls is case‑specific. It is an analysis that a trial judge is uniquely equipped to undertake. After all, the trial judge is an ear and eye witness to the trial process, the issues raised and the positions advanced. The inquiry must be undertaken and a determination made in the context of the trial, not on some level of abstraction at one remove from the trial process. The inquiry is very much a function of the other evidence and issues raised in the case. [273] A similar rationale for appellate deference to rulings that weigh probative value against prejudicial effect was expressed in Shearing : [73] In the weighing up of probative value versus prejudice, a good deal of deference is inevitably paid to the view of the trial judge … This does not mean that the trial judge has a discretion to admit similar fact evidence whose prejudicial effect outweighs its probative value, but it does mean that the Court recognizes the trial judge’s advantage of being able to assess on the spot the dynamics of the trial and the likely impact of the evidence on the jurors. These are evidentiary issues on which reasonable judges may differ and, absent error in principle, the decision should rest where it was allocated, to the trial judge. [Emphasis added.] [274] The trial judge concluded that the probative value of the video was minimal, at best. It would not serve to contradict the complainant and would add only visual images to the explicit sexual conduct described by the complainant in her testimony. On the other hand, the judge concluded that the prejudicial effect flowing from admission of the video would be high. Admission of the video would be a gross invasion of the complainant’s privacy and dignity interests. In addition, it was found to have the potential to cause mischief by distorting the truth‑seeking function of the trial. I see no reason to interfere with that conclusion. [275] In the result, I would not give effect to this ground of appeal. VI. Conclusion [276] For the foregoing reasons, I am of the view that the appellant had a fair trial unimpaired by consequential legal error. I would, therefore, dismiss the appeal. “The Honourable Mr. Justice Fitch” I AGREE: “The Honourable Chief Justice Bauman” I AGREE: “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Moazami, 2020 BCCA 20 Date: 20200121 Docket: CA45510 Between: Regina Respondent And Reza Moazami Appellant Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4(1), s. 486.4(2) and s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant, witness or victim (or any witness under the age of 18), referred to in this judgment by the initials S.W., H.W., and Z.C..  This publication ban applies indefinitely unless otherwise ordered. Pursuant to s. 16(4) of the Sex Offender Information and Registration Act , no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA . Before: The Honourable Mr. Justice Frankel (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated March 7, 2018 ( R. v. Moazami , 2018 BCSC 1761, New Westminster No. X080594). Acting on his own behalf: R. Moazami Counsel for the Respondent: T.A. Shaw M.G. Scott Place and Date of Hearing: Vancouver, British Columbia January 8, 2020 Place and Date of Judgment: Vancouver, British Columbia January 21, 2020 Summary: Application by M. for an order extending the time to apply for leave to appeal the decision of a summary conviction appeal judge refusing a lengthy extension of time to appeal a conviction on a charge of assault with a weapon, a conviction based on a guilty plea.  M. alleged there had been a miscarriage of justice because a police officer prevented him from obtaining information that could have been used to challenge the victim’s credibility.  Held: Application dismissed.  There was not a scintilla of evidence to support M.’s miscarriage of justice allegation. Reasons for Judgment of the Honourable Mr. Justice Frankel: Introduction [1] Reza Moazami applies to extend the time to bring a summary conviction application for leave to appeal to this Court under s. 839(1) of the Criminal Code , R.S.C. 1985, c. C-46, relating to his conviction—based on a guilty plea—on a charge of assault with a weapon (the “assault appeal”).  Mr. Moazami seeks to appeal an order dismissing his application to extend the time to appeal that conviction to the Supreme Court of British Columbia.  Mr. Moazami filed his notice of appeal in the Supreme Court approximately six years and seven months out of time.  He filed his notice of application for leave to appeal in this Court approximately five months out of time. [2] For the reasons that follow, the application is dismissed. Background [3] To understand this matter it is necessary to refer to two conviction appeals Mr. Moazami currently has before this Court.  I will refer to them as the “prostitution appeal” (CA43308) and the “obstruction appeal” (CA43857).  I have been case managing those appeals and this matter for some time.  Mr. Moazami is represented by counsel on the prostitution and obstruction appeals; he is self-represented on this matter. [4] In both the prostitution and obstruction appeals Mr. Moazami asserts abuse of process based on the alleged misconduct of James Fisher, a former member of the Counter-Exploitation Unit of the Vancouver Police Department (“VPD”).  Mr. Fisher was involved in investigating the prostitution and obstruction matters and testified for the Crown at both trials.  Following those trials, the VPD conducted an investigation into misconduct by Mr. Fisher with respect to his relationships with a number of complainants and witnesses with whom he had contact (the “Fisher Investigation”).  That investigation resulted in Mr. Fisher being charged with a number of offences.  Eventually, he pleaded guilty to two counts of breach of trust, one in relation to Z.C., and the other in relation to H.W.  He also pleaded guilty to a charge of sexual exploitation in relation to Z.C.  H.W testified for the Crown at Mr. Moazami’s prostitution trial.  Z.C. had been a potential Crown witness with respect to prostitution-related charges brought against another person that were resolved by a plea.  Mr. Fisher received an aggregate sentence of 20 months’ imprisonment plus two years’ probation, which this Court upheld: R. v. Fisher , 2019 BCCA 33. [5] In connection with the prostitution and obstruction appeals, the Crown has provided Mr. Moazami with disclosure from the Fisher Investigation (“Fisher Disclosure”).  In the context of those appeals, Mr. Moazami applied pursuant to s. 683(1)(a) of the Criminal Code , for an order compelling the Crown to produce a complete inventory of all materials relating to the Fisher Investigation.  A division of this Court recently dismissed that application: R. v. Moazami , 2020 BCCA 3. [6] The assault appeal relates to an incident that occurred in the summer of 2010.  On August 21, 2010, members of the Coquitlam Detachment of the Royal Canadian Mounted Police spoke to S.W.  An officer noticed cuts on S.W. and asked her about them.  She said Mr. Moazami had cut her with a knife two days earlier, during an argument.  The police took a statement from S.W. and submitted a report to Crown counsel.  In her statement, S.W. alleged Mr. Moazami had previously held her against will in Vancouver, hung her by her ankles from an apartment building balcony, and choked her to the point of unconsciousness (the “balcony incident”). [7] S.W. was one of several complainants/victims who testified for the Crown at the trial giving rise to the prostitution appeal.  She also testified for the Crown at the trial giving rise to the obstruction appeal.  That trial related to steps Mr. Moazami took to tamper with S.W. as a witness in the prostitution trial while he was subject to a court order precluding him from communicating directly or indirectly with her. [8] As a result of the RCMP investigation, an information charging Mr. Moazami with assaulting S.W. with a weapon contrary to Criminal Code , s. 267(a), was sworn on August 27, 2010.  On November 1, 2010, Mr. Moazami pleaded not guilty to that charge.  Later, a trial date of March 14, 2011, was set. [9] Mr. Moazami was of the view S.W. had lied to the RCMP about the balcony incident and that the VPD was in possession of information about that incident that could be used to challenge her credibility at the assault trial.  As a result, he filed an access request with the VPD under the Freedom of Information and Protection of Privacy Act , R.S.B.C. 1996, c. 165.  Mr. Moazami signed that request on January 1, 2011; it was received by the VPD’s Information and Privacy Unit on January 7, 2011.  The “Information Requested” section of the request form reads: I am requesting a police report and date about an incident involving a girl attempting to commit suicide from my balcony [address omitted] between the date of Nov/2009 to March/2010.  She was wearing a pink jacket and police / fire department / Ambulance showed up within 5 to 10 minutes with a female officer and manager letting the police into the building.  My balcony faces [address omitted] so I am pretty sure they called police as well.  Any record of this please notify me asap.  I already contacted the fire department and the chief told me to get a [ sic ] exact date about this report so they can release information for me and directed me here.  Thank you for your time. [10] On January 13, 2011, the VPD advised Mr. Moazami by letter that: Based on the information you provided, we are unable to identify and/or locate the records you requested.  Please contact the Information and Privacy Unit at [telephone number omitted] so we can assist you in making your request. [11] Although I gave Mr. Moazami several opportunities to file material in support of the present application, he did not include the two documents I have just mentioned in the material he filed.  Rather, he gave those documents to me at the hearing.  Mr. Moazami told me he did try to follow-up on the request by telephone but did not receive anything from the VPD.  He did not elaborate on the nature of that follow-up. [12] On March 14, 2011, Mr. Moazami appeared with counsel and changed his plea on the assault with a weapon charge to guilty.  The judge adjourned the matter for the preparation of a pre-sentence report. [13] On March 17, 2011, Mr. Fisher and other members of the VPD responded to a domestic assault call in Vancouver involving Mr. Moazami and H.W.  Mr. Fisher arrested Mr. Moazami.  H.W. falsely identified herself as S.W.  This event was the genesis of the VPD’s investigation into Mr. Moazami’s prostitution-related activities.  The police did not learn H.W.’s true identity until several months later. [14] Mr. Moazami’s sentencing hearing on the assault with a weapon charge took place of May 16, 2011.  The same counsel who acted for Mr. Moazami when he pleaded guilty represented him.  In advising the judge of the facts underlying the offence, Crown counsel, after stating the Crown was not alleging Mr. Moazami deliberately cut S.W., went on to say: This is an incident that occurs on the date set out in the Information.  Officers are called to a report of a man with a gun at a residence on North Avenue, in Coquitlam.  That is not Mr. Moazami, that’s another fellow who came over at [S.W.]’s request in the event of problems.  What had happened, [S.W.] indicated, was that there was a dispute, an argument between her and [Mr. Moazami].  In the course of that dispute at her home, Mr. Moazami picked up a knife, a kitchen knife, and threatened her with it.  There was an attempt by her to move away or towards him.  She wasn’t clear and it was in the course of that altercation that she sustained the comparatively minor injuries that she received. [15] S.W.’s allegations with respect to the balcony incident were contained in the pre-sentence report.  Crown counsel advised the judge that the Crown was not relying on that that information. [16] Crown counsel submitted that an appropriate disposition would be to suspend the passing of sentence and place Mr. Moazami on probation “for a couple of years” on conditions. [17] Mr. Moazami’s counsel stated that Crown counsel’s suggested disposition was a “joint submission”.  He described what occurred as follows: My friend has fairly characterized it, I think, as a situation in which what does occur here is Mr. Moazami and [S.W.], who were certainly friends, Mr. Moazami had some concerns about Ms. [S.W.]’s ongoing use of cocaine.  When he attended at the residence, they get into an argument over that because she’s been telling him that she’s quit.  When he gets there, its quite clear that that’s not the case.  They get into an argument and at some point, he comes into possession of the knife and while in the course of arguing with her, she gets accidentally cut, which is certainly something that Mr. Moazami is very regretful for.  I think he’s expressed that in the [pre-sentence] report.  He’s also, I think, in the report, indicated quite clearly he is more than willing to attend for counselling as directed by the court and to take the programs that are suggested by the probation officer. [18] The judge acceded to the joint submission.  He suspended the passing of sentence and placed Mr. Moazami on probation for two years. [19] In the fall of 2011, Mr. Moazami was charged in a three-count information with prostitution-related offences.  He was arrested and released on bail.  That bail continued when a second information containing 18 counts was laid. [20] On October 21, 2011, Mr. Fisher and another VPD officer interviewed S.W. in connection with the investigation of Mr. Moazami. [21] On August 1, 2012, the Crown filed a 36-count direct indictment against Mr. Moazami.  A warrant for his arrest was issued but held to allow him to surrender.  However, he was arrested on August 9, 2012, for breaching his bail conditions.  Mr. Moazami has been in custody since then.  The obstruction of justice and breach of a court order offences occurred while he was awaiting trial on the prostitution-related offences. [22] On September 15, 2014, Justice Bruce convicted Mr. Moazami of 30 prostitution-related and sexual offences: R. v. Moazami , 2014 BCSC 1727.  Some of those convictions were stayed on the basis of the rule against multiple convictions set out in Kienapple v. The Queen , [1975] 1 S.C.R. 729.  On November 10, 2015, Bruce J. sentenced Mr. Moazami to imprisonment for 17 years and 339 days (i.e., 23 years less credit for pre-sentence custody): R. v. Moazami , 2015 BCSC 2055. [23] On December 9, 2015, Mr. Moazami filed the prostitution appeal, appealing both conviction and sentence. [24] On February 11, 2016, Justice Bowden convicted Mr. Moazami of obstruction of justice and breaching a court order: R. v. Moazami , 2016 BCSC 99.  On August 15, 2016, Bowden J. sentenced Mr. Moazami to three years’ imprisonment on the obstruction charge and six months’ concurrent on the breach charge.  Those sentences were consecutive to the sentences Mr. Moazami was already serving: R. v. Moazami , 2016 BCSC 2137. [25] On August 15, 2016, Mr. Moazami filed the obstruction appeal, appealing both conviction and sentence. [26] On January 19, 2018, Mr. Moazami initiated the summary conviction assault appeal by filing a notice of appeal together with a notice of application for extension of time to appeal in the New Westminster registry of the Supreme Court.  In the notice of appeal, Mr. Moazami stated his grounds of appeal as follows [verbatim]: New evidence found due to police misconducts, Partial disclosures provided to me breaching my s. 7 constitutional rights, Police misconducts leading to their investigations and criminal charges. The relief sought is: Charge, conviction and sentence dismissed In the extension application, he gave the following reason for not filing the appeal within the 30-day appeal period: No police misconducts or officers criminally charged but recently new evidence exposed of police withholding evidence from me breaching my s. 7 constitutional rights.  Officers criminally charged and under investigation for misconducts. [27] Justice Verhoeven heard the extension application on March 7, 2018.  He dismissed that application at the conclusion of the hearing: R. v. Moazami , 2018 BCSC 1761.  In his reasons, Verhoeven J. referred, among other things, to the following: · Mr. Moazami was seeking to withdraw a guilty plea. · By pleading guilty, Mr. Moazami not only avoided a trial but obtained the benefit of a lenient sentence. · Mr. Moazami was not alleging there were any problems with the representation he received from defence counsel. · Defence counsel had not disagreed with the facts stated by Crown counsel. · At the prostitution trial, Mr. Moazami denied assaulting S.W. and testified he pleaded guilty because he did not want his mother to learn of his prostitution-related activities; Bruce J. disbelieved that evidence. · Mr. Moazami’s suggestion that Mr. Fisher was involved in the assault investigation was “very speculative”. · Mr. Moazami did not have an acceptable explanation for the “massive” delay. · An extension would prejudice the Crown, as it would be required to reactivate the case and then, potentially, have to retry a matter involving events that occurred eight years ago. · There was no discernible merit in the appeal. Proceedings in the Court of Appeal [28] On August 14, 2018, Mr. Moazami filed a notice of application for leave to appeal Verhoeven J.’s order refusing an extension of time.  In that notice, Mr. Moazami states his ground of appeal as follows [verbatim]: Wrong law I was charged, pled out to and sentenced to, recent new evidence discovered, fresh evidence The relief sought is: Stay of Proceedings / Acquittal [29] On September 6, 2018, Mr. Moazami filed an affidavit in which he deposes [verbatim]: I am seeking to appeal assault with a weapon guilty plea and reverse guilty plea and the delay is due to 1.   Fresh evidence revealed to me with regards to this matter from other police investigations that supports my constitutional rights s. 7 was breached and 2.   After obtaining transcripts I learned wrong law was used to I plead to. [30] On September 7, 2018, Mr. Moazami filed a notice of application for an extension of time to appeal. [31] On November 6, 2018, Mr. Moazami filed an affidavit in which he deposes, among other things, that: · He is appealing based on a breach of his constitutional rights. · He has discovered fresh evidence and there is a possibility he will soon review additional fresh evidence. · He wants to review additional Fisher Disclosure. [32] On August 16, 2019, Mr. Moazami filed a notice of motion seeking an order under s. 683(1)(a) of the Criminal Code for the production of documents.  The notice does not identify the documents sought with any specificity.  However, attached to the notice is an exchange of correspondence between Mr. Moazami and the VPD, which indicates he requested access to VPD records relating to him from 2010 to 2019. [33] During case management, I indicated to the parties that I questioned whether a single judge has jurisdiction to entertain Mr. Moazami’s application for the production of documents.  I pointed out that s. 683 confers powers on a “court of appeal”, as distinct from, for example, s. 679, which confers powers on a “judge of the court of appeal”.  For its part, the Crown, in a written memorandum of argument, took the position that a single judge does have jurisdiction to determine a s. 683(1)(a) application in the context of a summary conviction application for leave to appeal or an application to extend the time to bring such an application.  The Crown further submitted that I should dismiss Mr. Moazami’s application on the basis that the documents sought could not possibly assist him in establishing he should be granted an extension of time.  In the alternative, the Crown submitted that if a single judge does not have jurisdiction, then the matter should not be referred to a division of the Court unless and until an extension of time is granted. [34] I discussed with the parties how to deal with Mr. Moazami’s production application.  They agreed to proceed as follows.  The extension of time application would proceed, with Mr. Moazami having an opportunity to show the possible relevance of the documents he seeks.  If Mr. Moazami persuaded me that the documents he seeks were possibly relevant to his summary conviction appeal, then I would hear argument on the jurisdictional issue.  If I were not so persuaded, then I would deal with the extension application on its merits. Positions of the Parties [35] Mr. Moazami acknowledges that he voluntarily pleaded guilty to the assault with a weapon charge with an understanding of the consequences and that his counsel effectively represented him.  He accepts Mr. Fisher was not involved in the assault investigation.  His position is that he should be permitted to pursue an appeal because Mr. Fisher prevented him from obtaining disclosure of the balcony incident from the VPD.  He says his counsel could have used that disclosure to cross-examine S.W.  Mr. Moazami further says because of Mr. Fisher’s actions, a miscarriage of justice has occurred.  He seeks complete disclosure concerning Mr. Fisher. [36] Mr. Moazami further submits that the delay in filing the summary conviction appeal in the Supreme Court was due in part to the fact he did not become aware of Mr. Fisher’s misconduct until well after the prostitution and obstruction trials; the first of several informations charging Mr. Fisher was sworn on December 29, 2016.  It was not until sometime later that Mr. Moazami started to receive Fisher Disclosure.  As well, he was occupied with matters relating to the prostitution and obstruction appeals. [37] Mr. Moazami says that although he filed late in this Court, part of the delay was due to his confusion as to where to file.  It appears he first sent his appeal material to the Supreme Court registry in Vancouver. [38] The Crown’s position is that there is no substance to Mr. Moazami’s allegation that Mr. Fisher prevented him from obtaining disclosure of the balcony incident.  The Crown says it is not aware of anything that indicates any possible involvement by Mr. Fisher in the VPD’s response to Mr. Moazami’s January 2011 disclosure request.  The material filed by the Crown indicates Mr. Fisher: (a) transferred to the Counter-Exploitation Unit on January 2, 2011; (b) first encountered Mr. Moazami on March 17, 2011; (c) became involved in the Moazami prostitution investigation in late August 2011; (d) first met S.W. on October 21, 2011; and (e) took over as the lead investigator in the Moazami investigation in early 2012.  The Crown further says that if it were aware of information that could possibly support the allegation that Mr. Fisher interfered with Mr. Moazami’s request, then it would disclose that information pursuant to its ongoing first-party disclosure obligations. [39] With reference to the factors to be considered on an application for an extension of time—see R. v. Sidhu , 2016 BCCA 23 at paras. 9–10—and on an application for leave to appeal—see R. v. Winfield , 2009 YKCA 9 at paras. 12–14, 273 B.C.A.C. 152—the Crown advances a number of arguments as to why an extension should be refused.  In light of the fact that, as discussed below, I find Mr. Moazami’s assertion that Mr. Fisher prevented him from obtaining disclosure of the balcony incident to be devoid of merit, there is no need for me to rehearse or address those arguments. Analysis [40] The ultimate success of Mr. Moazami’s efforts to withdraw his guilty plea on the assault with a weapon charge rests on his establishing that Mr. Fisher (a state actor) prevented him from exercising his right to make full answer and defence.  There is, however, not a scintilla of evidence to support Mr. Moazami’s assertion that Mr. Fisher prevented him from obtaining information with respect to the balcony incident. [41] In an effort to demonstrate that his allegation against Mr. Fisher has some merit, Mr. Moazami provided me with another document at the hearing.  That document is a one-page report entitled “Vancouver Police Department/General Occurrence Hardcopy” and is from the Fisher Disclosure Mr. Moazami received.  The report states it was created by Mr. Fisher on February 27, 2012. [42] The first paragraph of the report states that during S.W.’s October 21, 2011 interview, she mentioned having been arrested outside of British Columbia in September 2009.  The next paragraph refers to a request Mr. Fisher made on “2011 02 24” for the police report of that arrest.  Mr. Moazami argues this lends support to his assertion that Mr. Fisher was aware of both him and S.W. in January 2011. [43] I do not accept Mr. Moazami’s argument.  Rather, I agree with the Crown that “2011 02 24” contains a typographical error with respect to the year.  It is evident that the report refers to what Mr. Fisher did in February 2012, not 2011, to follow-up on an interview that took place in October 2011. [44] I should mention Mr. Moazami provided me with the last page of another VPD report but did not offer a cogent explanation for how it supports his allegation against Mr. Fisher. [45] Mr. Moazami has failed to demonstrate there is any substance to the allegation of miscarriage of justice that is the lynchpin of his appeal.  Accordingly, no purpose would be served by extending the time for him to seek leave to pursue that ground of appeal in this Court. Disposition [46] The application for an extension of time is dismissed. “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Schuppener v. Pioneer Steel Manufacturers Limited, 2020 BCCA 19 Date: 20200121 Docket: CA46037 Between: Mark Schuppener Respondent (Plaintiff) And Pioneer Steel Manufacturers Limited Appellant (Defendant) Before: The Honourable Mr. Justice Groberman The Honourable Madam Justice Fenlon The Honourable Madam Justice DeWitt-Van Oosten On appeal from:  An order of the Supreme Court of British Columbia, dated March 25, 2019 ( Schuppener v. Pioneer Steel Manufacturers Limited , 2019 BCSC 425, Kelowna Docket S115403). Counsel for the Appellant: M. Nied D. DiPardo Counsel for the Respondent: D.P. Yerema C. Elkin Place and Date of Hearing: Vancouver, British Columbia November 7, 2019 Place and Date of Judgment: Vancouver, British Columbia January 21, 2020 Written Reasons by: The Honourable Madam Justice Fenlon Concurred in by: The Honourable Mr. Justice Groberman The Honourable Madam Justice DeWitt-Van Oosten Summary: The respondent was injured when a steel storage building he purchased from the appellant collapsed on him. The chambers judge refused to stay or transfer the respondent’s action for negligence and breach of contract on the basis that there was strong cause not to enforce a forum selection clause contained in the written contract between the parties. Held: Appeal allowed and action transferred to the Ontario Superior Court. The judge erred in principle by characterizing ordinary considerations as matters of public policy. The respondent did not establish strong cause for overriding the contractual provision. Reasons for Judgment of the Honourable Madam Justice Fenlon: [1] The respondent Mark Schuppener was seriously injured when a steel storage building he had purchased from the appellant Pioneer Steel Manufacturers Limited (“Pioneer Steel”) and constructed on his Kelowna property collapsed on him. Mr. Schuppener started an action in British Columbia against Pioneer Steel for negligence and breach of contract. Pioneer Steel applied for a stay of proceedings, relying on the forum selection clause in the contract of purchase and sale which required all claims to be brought in Ontario. The chambers judge found there were strong reasons not to enforce the forum selection clause and refused to stay or transfer the action. Issues on Appeal [2] Pioneer Steel appeals primarily on the ground that the judge erred in his application of the strong cause analysis addressed in Douez v. Facebook, Inc. , 2017 SCC 33, in particular by elevating ordinary contextual matters to the status of public policy factors compelling enough to override the public interest in certainty of contract. [3] Pioneer Steel also contends the judge erred by accepting, without evidence, that the financial burden on Mr. Schuppener would be greater if he was required to sue in Ontario. [4] If Pioneer Steel succeeds on either ground of appeal, Mr. Schuppener seeks to uphold the order below on the basis that the judge erred in finding the forum selection clause applied to the circumstances of this case. [5] I turn now to the first ground of appeal. Did the Judge Err in His Application of the Strong Cause Test? [6] The test for enforcement of forum selection clauses in contracts was settled by the Supreme Court of Canada in Z.I. Pompey Industrie v. ECU‑Line N.V. , 2003 SCC 27. The inquiry proceeds in two steps. First, the court must determine whether the forum selection clause is enforceable and applies to the circumstances: Pompey at para. 39; Preymann v. Ayus Technology Corporation , 2012 BCCA 30 at para. 43. The applicant seeking to enforce the forum selection clause bears the burden of proof at this stage. Second, the court must assess whether there are strong reasons not to give effect to an otherwise enforceable forum selection clause: Pompey at paras. 19, 39. The party seeking to displace the forum selection clause bears the burden of proof at this stage. [7] As set out in Pompey , the shifting burden of proof reflects the foundational premise that parties who have agreed to a forum for resolving disputes should be held to their bargain: at para. 21. Forum selection clauses serve a valuable purpose and are generally to be encouraged because they create certainty in commercial transactions: Douez at para. 24. [8] The judge in the present case correctly identified the two‑step analysis to be applied (at paras. 19–21). At the first stage, he considered the wording of the clause in issue: The parties agree that this contract and any dispute, cause of action, and any and all claims, whatsoever (hereinafter “Claims”) with respect to the supply of the steel building shall be interpreted in accordance with the laws of Ontario, Canada. Any claims with respect to the supply of the steel building shall be resolved in the city of Mississauga, Province of Ontario. Any proceedings, which may be commenced pursuant to the Claims, shall be commenced in the City of Brampton, Province of Ontario, Canada; He found the clause to be enforceable and broad enough to encompass the claims raised by Mr. Schuppener in his pleading. Turning to the second stage of the analysis, the judge said: [45] At this stage of the analysis, the plaintiff must show “strong reasons” why the forum selection clause should not be enforced. In deciding how to exercise its discretion at this stage of the analysis, the court must consider “all the circumstances” including the convenience of the parties, fairness between the parties, and the interests of justice. Moreover, because this case involves a consumer contract, I must consider the broader range of circumstances discussed in Douez , including evidence of gross inequality of bargaining power, the nature of the rights at stake, and any broader public policy considerations. [Emphasis added.] [9] The judge began by noting that although there were witnesses in both jurisdictions, the balance of convenience favoured British Columbia because all of the physical evidence pertaining to the erection and collapse of the building was located in and most easily accessed in British Columbia (at para. 47). In assessing the interests of justice, the judge noted there were legitimate access to justice concerns about Mr. Schuppener’s ability to retain counsel and fund a lawsuit in Ontario as opposed to British Columbia, but also recognized that there were legitimate concerns about the ability of Pioneer Steel, an Ontario company, to effectively carry on its business if it were required to defend lawsuits in multiple jurisdictions. The judge also noted that the law of Ontario was to apply to the contract (at para. 48). [10] Although the judge found the balance of convenience favoured British Columbia, he acknowledged he was not conducting a forum non conveniens analysis under the Court Jurisdiction and Proceedings Transfer Act , S.B.C. 2003, c. 28, which would have been the case in the absence of a forum selection clause. He cited Pompey (at para. 21) for the proposition that the presence of a forum selection clause warrants a different test—the strong cause test—which “requires compelling evidence that it would be against public policy to hold the parties to this aspect of their bargain”: at para. 47. [11] Pioneer Steel contends the judge fell into error when he considered whether the public policy concerns identified by the majority in Douez in relation to consumer contracts arose on the facts of this case. Mr. Schuppener submits the judge made no such error and argues that Pioneer Steel is asking this Court to re‑weigh the factors considered by the judge at stage two of the strong cause test. He stresses the discretionary nature of the judge’s decision to override the forum selection clause, and the deferential standard of review on appeal. [12] I agree that the standard of review is deferential and that this Court cannot interfere with the judge’s decision unless he has made a palpable and overriding error of fact or some extricable error in principle: Housen v. Nikolaisen , 2002 SCC 33 at paras. 36–37. However, with great respect to the judge, I am of the view that he erred in principle by characterizing ordinary considerations as matters of public policy compelling enough to justify overriding the forum selection clause. My reasons for that view follow. A standard form consumer contract [13] First, although the judge found there was no significant inequality of bargaining power between Mr. Schuppener and Pioneer Steel, he found it highly relevant that the forum selection clause was found in a standard form consumer contract which meant that Mr. Schuppener had no ability to negotiate the applicability or terms of the clause: at para. 50. [14] In my view, Douez does not support the proposition that inclusion of a forum selection clause in a non‑negotiable standard form consumer contract always raises a public policy concern sufficient to offset the public policy interest in holding parties to the terms of their bargain. Neither standard form contracts nor forum selection clauses raise public policy interests per se . Courts generally give effect to the terms of standard form consumer contracts absent legislative intervention: Seidel v. Telus Communications Inc. , 2011 SCC 15 at para. 2. Forum selection clauses have also been recognized as valid and beneficial: Douez at para. 24. They do away with confusion about where suits are to be brought and defended, and consumers may benefit from reduced prices if defendants can limit the jurisdictions in which they may be sued. In Douez it was not the standard form nature of the contract that was of concern, but rather the gross inequality of bargaining power between the parties. That is not to say that the form of the contract cannot be a contextual factor in assessing inequality of bargaining power, but rather that the standardized form of the contract itself does not raise a public policy concern. [15] Further, although the purchase of the steel building from Pioneer Steel can be broadly characterized as a consumer contract, it is a contract far different from the ubiquitous online consumer contract considered in Douez at para. 36 and described as follows: [54]      Despite Facebook’s claim otherwise, it is clear from the evidence that there was gross inequality of bargaining power between the parties. Ms. Douez’s claim involves an online contract of adhesion formed between an individual and a multi‑billion dollar corporation . The evidence on the record is that Facebook reported almost $4.28 billion in revenue in 2012 through advertising on its social media platform. It is in contractual relationships with 1.8 million British Columbian residents, approximately 40 percent of the province’s population. Ms. Douez is one of these individuals. [55]      Relatedly, individual consumers in this context are faced with little choice but to accept Facebook’s terms of use. Facebook asserts that Ms. Douez could have simply rejected Facebook’s terms. But as the academic commentary makes clear, in today’s digital marketplace, transactions between businesses and consumers are generally covered by non‑negotiable standard form contracts presented to consumers on a “take‑it‑or‑leave‑it” basis ( Pavlović , at p. 392). [56]      In particular, unlike a standard retail transaction, there are few comparable alternatives to Facebook, a social networking platform with extensive reach. British Columbians who wish to participate in the many online communities that interact through Facebook must accept that company’s terms or choose not to participate in its ubiquitous social network [Emphasis added.] [16] The contract in the present case was entered into in far different circumstances. The judge expressly found there was no significant inequality of bargaining power between Mr. Schuppener and Pioneer Steel. Nor was the transaction an instantaneous one. The contract went through more than one iteration and was the product of discussions that occurred over a number of months (at para. 40). Further, the judge found the forum selection clause was set out in plain text on the front of the contract just above Mr. Schuppener’s signature (at para. 41) and that the terms of the contract in general were not particularly complicated (at para. 43). [17] In addition, this was not a minor consumer transaction such as the one in issue in Douez . In that case, Ms. Douez agreed to terms by pressing a computer key in order to receive the benefits of the Facebook platform at no cost to her: Douez at paras. 99 and 173. In the present case, the contract was for the purchase of a large building of commercial/industrial quality at a cost of close to $20,000. This was a significant transaction, more akin to the purchase of a vehicle. Transactions of that kind occur infrequently in the lifetime of the average consumer and command heightened attention and scrutiny. In many respects, the contract in issue falls closer to the sophisticated commercial contract end of the spectrum. [18] Nor was this a case like Douez where the consumer had no real alternatives. Mr. Schuppener candidly acknowledged that he had alternatives but wanted to buy Canadian and so chose to do business with Pioneer Steel. The claim involved more than a commercial dispute [19] I turn now to the second public policy factor the judge relied on to find there were strong reasons not to enforce the forum selection clause—the nature of Mr. Schuppener’s claim. The judge stressed that the action included damages in negligence for personal injury and was not a mere commercial dispute over the breach of a contract (at para. 51). The pleading stated Mr. Schuppener was knocked unconscious when the building collapsed on him as he was following Pioneer Steel’s advice to shore up the roof. The action is framed primarily in the torts of negligent manufacture and failure to warn, and only in the alternative in breach of contract. [20] The judge did not elaborate on his conclusion that the hearing of a personal injury claim in negligence or product liability in Ontario, as opposed to British Columbia, engaged public policy interests. Indeed, he found there was no reason to believe that the governing law in Ontario concerning issues of contract and negligence would differ significantly from the law of British Columbia. In contrast, in Douez the matter engaged a unique British Columbia statute which had no equivalent in the other jurisdiction. Further, in Douez the nature of the claim was a strong reason to override the forum selection clause because it involved the choice between a Canadian and a foreign court and involved a quasi‑constitutional right. The court observed that: [58]      … Canadian courts have a greater interest in adjudicating cases impinging on constitutional and quasi‑constitutional rights because these rights play an essential role in a free and democratic society and embody key Canadian values. In contrast, the present case concerns two competing Canadian forums with roughly equivalent laws of contract, personal injury and product liability. Claim building was unsuitable for B.C.’s climate [21] The third public policy interest identified by the judge as a strong reason to override the forum selection clause related to the allegation that Pioneer Steel sold Mr. Schuppener the building even though it knew from previous collapses in British Columbia that the product was unsuitable for the climatic conditions in this province. The judge reasoned that the public in such cases has an interest in seeing the issues litigated in British Columbia where the problem arose and the damages were suffered. [22] The difficulty with this approach is that there will always be a public interest in seeing cases with facts and damages arising in a particular province litigated in that province. That is a factor relating to convenience and one of the circumstances to be considered in the strong cause analysis, but it will rarely rise to the level of a public policy concern . In my respectful view there is nothing unique to British Columbia about the cause of the building’s collapse from the weight of snow that had accumulated on its roof—a climatic condition common to most of Canada in the winter months. [23] It is important in conducting the strong cause analysis to bear in mind the principle that courts do not have discretion to refuse to enforce valid contracts unless there is some paramount consideration of public policy sufficient to override the public interest in freedom of contract: Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) , 2010 SCC 4 at para. 82 per Binnie J. dissenting in the result, but analytical approach agreed to by the majority. The power to refuse enforcement on the grounds of public policy should “rarely be exercised” and only in “clear cases, in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds”: Tercon at para. 117. [24] It is helpful to consider the categories of public policy interests traditionally held to be sufficient to override a contractual bargain. Contracts have been struck down when found to: (i)       be injurious to the state; (ii)      be injurious to the justice system; (iii)      be in restraint of trade; (iv)     involve immorality; and (v)      affect marriage. Although the categories of public policy are not closed, as is evident from Douez , significant judicial restraint is called for: Niedermeyer v. Charlton , 2014 BCCA 165 at para. 76. [25] In deciding whether strong cause to override a forum selection clause has been established, the court is to consider all of the factors cumulatively: Douez at para. 50. As I earlier noted, the judge found balance of convenience was a factor favouring British Columbia, but it is evident that the three public policy concerns he identified were the predominant factors tipping the balance in favour of denying a stay. In reaching his conclusion, the judge said: [53]      Taking all of these factors into consideration, my conclusion is that Mr. Schuppener has shown strong cause for declining to give effect to the forum selection clause. What is in issue here is a forum selection clause in a consumer contract. Mr. Schuppener claims damages not just for breach of contract, but also for negligence and product liability, in respect of a product that was supplied to him in British Columbia, and which he alleges was unsuitable for the climatic conditions in his region. Much of the evidence required for Mr. Schuppener to prove his case is located in British Columbia. In my view, it would be contrary to public policy to deny Mr. Schuppener the opportunity to present his case in this jurisdiction based on a forum selection clause that was part of a non‑negotiable, standard set of fine print terms in a consumer contract. [26] In my view, absent the error in principle described above, the judge could not reasonably have concluded that Mr. Schuppener had established strong cause for overriding the contractual provision. I would therefore accede to this ground of appeal. [27] Having reached that conclusion, it is not necessary to consider Pioneer Steel’s second ground of appeal. Did the Judge Err in Finding the Forum Selection Clause Applied in this Case? [28] It is necessary, however, to consider Mr. Schuppener’s submission that the judge’s order denying a stay or transfer of the proceedings to Ontario should nonetheless be upheld. Mr. Schuppener contends the judge erred at stage one of the strong cause analysis and should have found that the forum selection clause does not capture all of the claims raised against Pioneer Steel. In addition, he says the judge should have found that Pioneer Steel is not a party to the contract and cannot therefore rely on it. The latter argument is based on the contract in issue being entered into by Pioneer Sales Steel Depot Inc. (“Pioneer Sales”), a distributor for Pioneer Steel. [29] In my view, this submission can be dealt with summarily. The judge found the wording of the forum selection clause to be broad enough to include all claims advanced. He also found that Pioneer Sales signed the contract as agent for Pioneer Steel, which was therefore bound by its terms and entitled to the benefit of the forum selection clause. I agree with those conclusions and would adopt the judge’s reasons for so finding. Disposition [30] The appeal is allowed and the action transferred to the Ontario Superior Court. “The Honourable Madam Justice Fenlon” I AGREE: “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Madam Justice DeWitt-Van Oosten”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Storey v. Terry, 2020 BCCA 30 Date: 20200122 Docket: CA46123 Between: Kevin Allen James Storey Respondent (Claimant) And Michelle Carla Terry Appellant (Respondent) Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Fitch The Honourable Mr. Justice Butler On appeal from:  An order of the Supreme Court of British Columbia, dated May 1, 2019 ( Storey v. Terry , 2019 BCSC 674, Nanaimo Docket E80768). Oral Reasons for Judgment The Appellant, appearing in person: M.C. Terry Counsel for the Respondent: R. Yousefi A. Ngom Place and Date of Hearing: Vancouver, British Columbia January 20, 2020 Place and Date of Judgment: Vancouver, British Columbia January 22, 2020 Summary: The appellant appeals a summary trial order providing for the equal division of the parties’ interest in a jointly owned home following their four and a half year marriage‑like relationship. The appellant lived in the home after separation and paid the mortgage, property taxes and insurance without contribution from the respondent for approximately two years. Held: Appeal dismissed. The judge did not err in rejecting the appellant’s claim for reapportionment of the family property on the basis that her contribution to the home was greater following the separation. Nor did the judge’s order effectively require the appellant to assume a greater share of the family debt. The judge properly considered all of the circumstances including the fact that the appellant had sole occupancy of the family home while the respondent had to provide housing for himself. [1] BUTLER J.A. : Michelle Terry appeals orders dividing property and debt made following a summary trial application in this family proceeding. The appellant and the respondent, Kevin Storey, lived in a marriage-like relationship for four and a half years before separating. They had each been previously married and for the most part kept their personal financial assets separate after they began to cohabit. The parties jointly purchased a home (the “Merrill Lane property”) in which they resided and they maintained a joint bank account to deal with expenses relating to that home. The division of the net equity in the Merrill Lane property was the primary issue in the court below and is the focus of this appeal. [2] The respondent issued the notice of family claim in February 2017 but the matter did not proceed to a summary trial until March 2019. In spite of that delay, the pleadings remained somewhat unclear at the commencement of the summary trial. In his amended notice of family claim filed in November 2018, the respondent sought an order for an unequal division of the family property and family debt but did not indicate what division he sought until the start of the hearing. The amended notice of family claim sought a determination that the assets the respondent held prior to the commencement of the relationship were excluded property. In November 2018, he filed the notice of application for a summary trial in which he raised for the first time a claim for occupational rent based on the fact that the appellant continued to reside in the Merrill Lane property after he moved out in July 2016. [3] By way of a counterclaim, the appellant also sought an unequal division of family property and debt because she paid all of the expenses to maintain the Merrill Lane property after the respondent stopped contributing to those expenses at the end of March 2017. She also advanced a claim for excluded property. In addition, in the materials she filed in response to the summary trial application, she alleged for the first time that the parties had an oral agreement to keep their own property and debt separate during their relationship. [4] Following a three-day summary trial hearing, the judge ordered that the net proceeds from the sale of the Merrill Lane property be divided equally between the parties and that any funds remaining in their joint bank accounts be divided equally. She found that the parties had an oral agreement to maintain the rest of their property separate. Accordingly, she “reapportioned” the remaining family assets so that each party would retain 100% of the increase in their respective pension benefits and 100% of the increase in value of the real property held prior to the commencement of the relationship. The appellant was also entitled to retain 100% of the increase in the value of her RRSP. The judge also reapportioned the family debt so that each party was responsible for 100% of their personal debt. The judge dismissed the respondent’s claim to occupational rent and the appellant’s claim that the respondent should contribute to mortgage payments, property taxes and other expenses incurred to maintain the Merrill Lane property for the period from March 27, 2017 until the date of trial. She ordered that each party bear their own costs. [5] The appellant advances various grounds of appeal directed at overturning the judge’s orders in relation to the Merrill Lane property. In brief, she says the judge erred by either failing to order an unequal division of the net equity in that property or by failing to require the respondent to contribute to the cost of maintaining the property from March 27, 2017 to the date of trial. She says that the effect of the judge’s order is to reapportion family debt in favour of the respondent. She also appeals the costs order. For the reasons that follow, I am of the view that the appellant has failed to identify any error of law or fact made by the judge and I would dismiss the appeal. Summary Trial Decision [6] The reasons for judgment are indexed as: Storey v. Terry , 2019 BCSC 674 (the “Reasons”). The judge began the Reasons by noting the lack of clarity in the pleadings and the fact that the appellant’s claim of an oral agreement and the respondent’s claim for occupational rent were made late in the day. Nevertheless, she was of the view that the parties had a fair opportunity to respond to those claims. The judge agreed with the parties that the case was suitable for determination by summary trial. She concluded that she was able to find the facts necessary to decide the issues on a summary trial application and that it would not be unjust to do so. [7] The Reasons set out the assets and debts of the parties. The judge noted that the parties each owned a home prior to purchase of the Merrill Lane property. They both retained those properties and rented them out during the relationship. Those properties increased in value by a similar amount during the parties’ cohabitation. She described the circumstances leading to the joint purchase of the Merrill Lane property. The respondent refinanced the mortgage on his existing property in order to make the down payment on the Merrill Lane property. The total down payment was approximately $28,500. The parties agreed that the appellant’s half of the down payment was to be treated as a loan from the respondent to the appellant that she was required to repay. The respondent maintained that the appellant failed to repay her half of the down payment and the appellant asserted she had done so. The judge did not resolve that issue, although she recognized that at least some repayment was made by the appellant. [8] The parties’ interest in the Merrill Lane property was their major asset. The equity in the home at the time of trial was approximately $313,000. The judge noted that the appellant sought reapportionment on the basis that she had been entirely responsible for maintaining the Merrill Lane property, including by paying the mortgage, property tax and insurance, from late March 2017 to the date of trial. The respondent sought an unequal division of that property on the basis of his disproportionate contribution to the original purchase price and the fact that the appellant had sole occupancy after the date of separation. [9] The parties were employed as letter carriers and each had an employee pension through the Canada Post Corporation Registered Pension Plan. The respondent sought an order dividing the pension benefits accrued during cohabitation at source. The appellant maintained that the parties’ pension benefits were to remain their separate property pursuant to the oral agreement. The appellant’s pension entitlement was significantly less than the respondent’s given her much shorter period of employment. However, she made significant contributions to an RRSP before, during and after cohabitation. She maintained that she was entitled to retain the full amount of her RRSP as a result of the oral agreement. [10] The evidence established that the respondent owed approximately $27,000 on various personal lines of credit while the appellant owed approximately $3,000 on a line of credit. The appellant maintained that the parties agreed to be personally responsible for their own debt while the respondent sought an order that they were to be equally responsible for those debts. [11] The judge correctly set out the principles regarding the division of family property and debt with reference to relevant provisions of the Family Law Act , S.B.C. 2011, c. 25 [ FLA ]. She noted that pursuant to s. 81 of the FLA , spouses have a presumptive entitlement to an equal interest in all family property and are equally responsible for family debt. She further noted that family property includes the amount by which the value of excluded property increases during the period of the relationship: s. 84(2)(g). She recognized that family debt includes financial obligations incurred after separation for the purpose of maintaining family property: s. 86. She referred to s. 87 of the FLA for the principle that family property or debt is to be determined as of the date of the trial and must be based on the fair market value of the property. She noted that s. 92 permits spouses to make agreements to divide property and debt equally or unequally or to exclude as family property or debt, property or debt that would otherwise be included. Finally, she noted that s. 95 of the FLA allows the court to make an order for unequal division of family property or debt if an equal division would be “significantly unfair”. She set out the factors to be considered under s. 95(2) including that a court may take into account the terms of an oral agreement. [12] Referring to the affidavit evidence provided by the parties and taking into account their personal circumstances, the judge found that the parties had an oral agreement in relation to assets and debts other than the Merrill Lane property and joint bank accounts. She concluded that the parties agreed that the property brought into the relationship, including their homes and pensions, would remain separate. Further, she concluded that they had separate control over discretionary spending and separate responsibility for any debt accruing as a result of personal overspending: at paras. 56–63. [13] The judge considered whether the family assets that were not included in the oral agreement should be divided equally. She recognized that an unequal division of family property should only be ordered where it would be significantly unfair to order an equal division. Referring to Jaszczewska v. Kostanski , 2016 BCCA 286, she noted that to justify an unequal division of family property, a court must find that the unfairness is “compelling or meaningful having regard to the factors set out in s. 95(2)”: at paras. 65–67. [14] The judge concluded that there were no circumstances warranting an unequal division of the Merrill Lane property: [70]      Because the Merrill Lane Property is to be valued as of the date of the summary trial, the parties are presumptively entitled to share in any post-separation increases in the value of the Property. This entitlement exists independent of the parties' respective contributions to the post-separation increase in value: Jaszczewska at para. 39. This is not to say that post-separation contributions are irrelevant, but rather that courts must be constrained in relying on post-separation contributions as warranting a departure from the presumption of equal division: Jaszczewska at para. 41. [71] Jaszczewska provides an example of exceptional circumstances that may warrant an unequal division of family property based on post-separation contributions. In that case, one spouse had designed and rebuilt a new residence after separation which enhanced the value of the property beyond market trends. The present case, by contrast, concerns the more typical scenario in which one spouse has remained in the family home post-separation, prompting debate as to the relative economic advantages of staying in the home or having to find new accommodations. [72]      I conclude that an equal division of the proceeds of the sale of the Merrill Lane Property would not be significantly unfair to either party. While the respondent has made a disproportionate contribution to reducing the mortgage debt post-separation, the claimant has had to find alternate accommodations that, for at least some portion of time, has required him to pay rent. Also relevant to the analysis is the claimant's original contribution to the deposit and down payment on the Merrill Lane Property purchase. [73]      In the circumstances, I find that neither party has provided persuasive reasons to depart from the presumption of equal division of the Merrill Lane Property. For the purpose of clarity I should note that I have considered the claimant's claim for occupational rent as relevant to the issue of whether the Merrill Lane Property should be unequally divided. To the extent that the claimant seeks compensation from the respondent for occupational rent as an independent claim, I dismiss the claim. [15] On the issue of costs, the judge reasoned at para. 81: [81]      Given the manner in which this application proceeded, and the parties’ divided success, I consider it appropriate to order that each party bear their own costs. Issues on Appeal [16] The appellant alleges eight errors in judgment. She says the trial judge erred in ordering each party to bear their own costs. The other alleged errors focus on the judge’s decision to equally divide the equity in the Merrill Lane property. Most of the alleged errors are based on the appellant’s assertion that the judge made an order dividing family debt unequally. This assertion is based on the appellant’s characterization of the payments she made to maintain the property after the separation as family debt. She says that the judge erred by failing to apportion those “debts” equally between the parties. In advancing these arguments, the appellant says the judge made errors of law and fact. [17] I do not intend to separately examine each of the errors alleged but would restate the grounds of appeal as follows: i. Did the judge err in law or fact in ordering equal division of the parties’ equity in the Merrill Lane property? ii. Did the judge err in ordering each party to bear their own costs? Division of Equity in the Merrill Lane Property Standard of Review [18] This appeal concerns a question of reapportionment. The judge considered the issue to be the reapportionment of the parties’ interest in the Merrill Lane property. The appellant now says the case raises an issue of the reapportionment of family debt. Whether debt or property is being considered for reapportionment, the same standard of review applies. Reapportionment is an exercise of a trial judge’s discretion taking into account the legislation and findings of fact. An appellate court is justified in intervening in a trial judge’s exercise of discretion only if the trial judge misdirects himself or herself or is so clearly wrong as to amount to an injustice: Hickey v. Hickey , [1999] 2 S.C.R. 518 at para. 12. This Court has adopted this standard of review for questions of reapportionment under the relevant family law legislation: Karisik v. Chow , 2010 BCCA 548 at para. 51. [19] The appellant’s arguments are based on the allegation that the judge erred in her appreciation of the facts by misunderstanding or failing to consider relevant evidence. Alternatively, she says that the judge misapplied the law to the facts the judge found. The appropriate standard of review for such errors is set out in Van de Perre v. Edwards , 2001 SCC 60 at paras. 13–15. A court can only intervene if the judge erred in law or made a material error in her appreciation of the facts. An omission is not a material error unless “ it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.”: at para. 15. [20] As I am of the view that the appellant has not identified an error of law, the standard of review applicable to the errors alleged is deferential . Analysis [21] The appellant’s arguments about the Merrill Lane property assume that the judge ordered an unequal division of family debt. The judge made no such order. The Merrill Lane property was the only significant asset to be divided between the parties and they each sought unequal division. The judge ordered the net proceeds of sale of the Merrill Lane property to be divided equally between the parties. The Reasons, which responded to the arguments advanced at trial, explain why the judge ordered an equal division of the equity in the Merrill Lane property without any reapportionment for the appellant’s contribution to the expenses of that property after separation, and without any reapportionment to the respondent or compensation for occupational rent. While the judge did not directly state that she was dividing the family debt in relation to the Merrill Lane property equally, that is what she did; she deducted the outstanding principle on the mortgage to arrive at the approximate equity in that property. In dividing the family property as of the date of the summary trial application, the judge followed the provisions of s. 87 of the FLA that require property to be valued on its fair market value as of the date of the hearing. [22] The appellant argues that the effect of the order was to divide family debt unequally. She says this is because the payments she made to the mortgage, property taxes and insurance after the respondent stopped contributing to those expenses were made for the purpose of maintaining that property. She stresses that during the time she made those payments, the principal owing on the mortgage was reduced by approximately $26,000. She says that the payments she made, or some portion of them, are family debt because of the provisions of s. 86(b) of the FLA : 86        Family debt includes all financial obligations incurred by a spouse ... (b) after the date of separation, if incurred for the purpose of maintaining family property. [23] I disagree with the appellant’s characterization of the expenses incurred after separation as family debt. Rather, the judge considered the appellant’s payment of those expenses along with other circumstances relevant to the division of the equity in the Merrill Lane property. Subsection 86(b) does not require that all payments made to maintain property after separation be regarded as family debt to be divided equally. As this Court recognized in Jaszczewska , entitlement to an equal share of the family property exists independent of use or contribution: [38]      … The FLA starts with the presumption found in s. 81 that family property is to be equally divided. As I read s. 81, each spouse is presumptively entitled to an undivided half interest in all family property, regardless of their respective use or contribution. … But as I read it, the phrase in s. 81(a) refers to the basis of entitlement to family property. Entitlement exists independent of contribution or use, and the extent of that entitlement on separation is defined in s. 81(b). [39]      Also, because family property is generally valued on the date of the hearing, the parties will presumptively share in any post-separation increases in the value of family property. Once again, because of s. 81, this entitlement exists independent of the parties' respective contribution to the post-separation increase in value. [24] When faced with claims for unequal division of an asset of significant value based on alleged differences in contribution, a court must consider all of the provisions of Part 5 of the FLA . That is what the judge did here. She recognized that property and debt are presumptively to be divided equally. The values of the property and debt are to be determined as of the date of trial and the court can order unequal division only where it would be “significantly unfair” to divide property and debt unequally. She set out and applied the test for significant unfairness as explained in Jaszczewska at paras. 41–43. Any unfairness must be significant or weighty having regard to the factors set out in s. 95(2) of the FLA . In order for a trial judge to reapportion the family property or family debt, there must be “something objectively unjust, unreasonable or unfair in some important or substantial sense”: Jaszczewska at para. 42. [25] In Jaszczewska, this Court found it significant that the listed factors in s. 95(2), while not exclusive, do not include contributions to the maintenance of property. The Court explained why the circumstances in which unequal contributions to the maintenance of property may be considered and relied upon is to be much constrained: [43]      The determination of whether an equal division would be significantly unfair is also guided by a more precise identification of relevant factors than was found in the FRA . Importantly, the Legislature did not include in s. 95(2) the principle of relative contribution found in s. 65(1)(f) of the FRA . Under s. 65(1)(f), a court could consider circumstances relating to the acquisition, preservation, maintenance, improvement or use of property. Section 95(2), by comparison, refers rather narrowly to career contributions (95(2)(c)) and to post-separation increases in value beyond market trends caused by one spouse (95(2)(f)). I agree with the judge's view that if relative contribution to the acquisition, preservation, maintenance or improvement of family property during the relationship was intended to be a significant factor or one frequently relied on in justifying the conclusion that the equal division of family property is significantly unfair, the Legislature would have said so. Allowing relative contribution to become a regular consideration in the context of s. 95 would likely create uncertainty and complexity. This would be contrary to the legislative objectives discussed earlier that underlie the FLA division of property regime. [44]      Having said that, in enacting s. 95(2)(i) the Legislature recognized that there may be factors other than those listed that could ground significant unfairness. Hence, while the Legislature intended to limit and constrain the exercise of judicial discretion to depart from equal division, it did not provide a closed list of factors and it did not eliminate the discretion. Accordingly, in my view, one cannot read the FLA as abolishing unequal contribution as a factor that may be relevant to reapportionment, although the circumstances in which it may be considered and relied on are intended to be much constrained . [Emphasis added.] [26] The judge concluded that dividing the equity in the Merrill Lane property would not result in a situation that was unjust, unreasonable or unfair in an important or substantial sense even though the appellant paid the expenses for maintenance of the property and reduced the principal on the mortgage after March 27, 2017. In doing so, she considered the fact that the respondent had to provide for his own accommodation once he left the Merrill Lane property. The respondent’s affidavit set out the steps he took to do that: he provided various services to friends in lieu of paying rent; he worked at an inn that gave him room and board as part of his compensation; and he ultimately moved into his pre-owned home as a result of which he lost the rental income that he otherwise received. The judge also took into account the benefit that the appellant received by residing in the Merrill Lane property without paying rent to the respondent. [27] In my view, the judge did not err in taking these circumstances into account. The approach she took has been approved in this Court in Stasiewski v. Stasiewski , 2007 BCCA 205, and Shen v. Tong , 2013 BCCA 519. The proper approach to considering claims for occupational rent where one spouse leaves the family property was accurately summarized by Justice Fleming in J.D.G. v. J.J.V. , 2016 BCSC 2389: [226]    At common law, a co-tenant is entitled to claim occupation rent when he or she has been ousted from property. Absent an ouster from the property, there is no claim. However, if the tenant in possession seeks to recover property expenses from the departed tenant, the court retains a discretion to set off occupation rent against the expense claim. There is no absolute right to such a claim or set off. Occupation rent is an equitable remedy ( L.M.R . at paras. 27-29, 31, 32). [227]    In Stasiewski the Court of Appeal held that in family proceedings occupation rent is not a stand-alone claim but should be considered in deciding whether to order an unequal division of family property. In Shen v. Tong , 2013 BCCA 519 , Justice Smith in concurring reasons identified the objective of an award for occupation rent as doing what is "'just and equitable' between the parties, albeit within the parameters of s. 65(1) of the FRA " (at para. 94). [28] The judge properly did not treat the claim for occupation rent as a stand-alone claim but treated it as a factor to be considered because the appellant, the tenant in possession, was seeking to recover expenses paid to maintain the property from the respondent. It is evident from the whole of the Reasons that she considered all of the circumstances in order to divide the equity in the Merrill Lane property in a way that was just and equitable. She properly considered the additional contributions made by the appellant post-separation, the fact that the appellant was in possession of the family property and the respondent incurred expenses or losses in order to provide housing for himself. I see nothing wrong in principle with the approach taken by the judge and would not interfere with her exercise of discretion. Indeed, I would agree that equal division of the Merrill Lane property is just and equitable taking all of the circumstances into account. [29] While this is a full answer to this issue, I should note that I am of the view that there is no merit to the allegation that the judge committed errors of fact, let alone errors that are palpable and overriding. The finding at para. 72 that “the claimant has had to find alternate accommodations that, for at least some portion of time, has required him to pay rent” was available to the judge on the evidence of the respondent. [30] The appellant also says the judge erred or misunderstood the evidence by taking into account the respondent’s “provision of the down payment for Merrill Lane, without a finding of fact considering this was a loan.” I do not see any error in the judge’s approach. She merely stated that the respondent’s original contribution to the deposit and down payment on the Merrill Lane property was relevant to the analysis, presumably because those contributions enabled the purchase of the property which proved to be a good investment for the parties. [31] One of the appellant’s principle arguments is that the order fails to give effect to the presumption in s. 81 that each spouse has equal responsibility for family debt. I do not agree. The appellant’s arguments ask this Court to require the respondent to reimburse her for half of the expenses she incurred to maintain that property without having regard to the benefit she received from residing in the property or the costs the respondent incurred when he left. As I have indicated, the judge approached this issue correctly by taking a holistic view of all of the circumstances relating to the use, occupation and maintenance of the Merrill Lane property and equally dividing that property, the value of that property, net of the mortgage, at the date of trial. [32] At the hearing, the appellant argued that in order to make the payments for the mortgage, property tax and insurance for the Merrill Lane property she had to access her high interest savings account that held a compensation payment she received from WorkSafe B.C. She notes that this is excluded property and says the judge’s order effectively reapportioned her excluded property in favour of the respondent. I would reject this argument. The judge made no order reapportioning excluded property. Rather, she accepted the appellant’s submission that the parties should retain their personal assets including their savings and be responsible for their personal obligations. The judge noted that the parties each exercised independent discretion over allocation of their income and personal savings. The judge’s order allowed the appellant to retain the full amount of the substantial increase of $160,000 in her RRSP savings account during the course of their relationship that was facilitated by the appellant’s bi-weekly contributions to those savings. The appellant’s suggestion that she should be compensated in some way for the allocations she made to savings and expenses after the parties’ relationship ended is not only inconsistent with the provisions of the FLA , it is contrary to her position at trial that was accepted by the trial judge. [33] Finally, I am of the view that there is no merit to the appellant’s assertion that the judge failed to apply the proper test when considering significant unfairness, whether of property or debt. The judge properly considered the relevant provisions of the FLA and did not err in applying the law to the facts she found. Costs [34] The appellant says the judge “made an error of fact by attributing the failure to communicate equally between the [parties]”. She said this was an important factor that led the judge to order the parties to bear their own costs. [35] An award of costs is discretionary and subject to limited appellate review: Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9 at para. 27. An appellate court should not interfere with a discretionary award unless satisfied the judge misdirected herself as to the law, or the decision is so clearly wrong as to amount to an injustice: Elsom v. Elsom , [1989] 1 S.C.R. 1367. [36] The judge ordered the parties to bear their own costs because of the manner in which the application proceeded and the divided success. While the manner in which a summary trial application proceeds is not usually relevant to a costs order, the judge’s assessment of which party was substantially successful is highly important. The main issue to be determined was division of the Merrill Lane property, the family asset of real substance. Each party applied for an unequal division. The judge rejected the claims of each party for reapportionment and ordered an equal division. The judge’s assessment as to the relative success of the parties was not unreasonable. [37] I see no error in principle in the approach taken by the judge. Accordingly, I would also dismiss this ground of appeal. [38] SAUNDERS J.A. : I agree. [39] FITCH J.A. : I agree. [40] SAUNDERS J.A. : The appeal is dismissed. “The Honourable Mr. Justice Butler”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Brown v. Goodacre, 2020 BCCA 26 Date: 20200123 Docket: CA45516 Between: Christopher Walter Brown Respondent (Plaintiff) And Nicole Goodacre Appellant (Defendant) Before: The Honourable Mr. Justice Harris The Honourable Mr. Justice Hunter The Honourable Madam Justice Fisher On appeal from:  An order of the Supreme Court of British Columbia, dated July 19, 2018 ( Brown v. Goodacre , Victoria Docket 134458). Counsel for the Appellant: M.J. Hargreaves Counsel for the Respondent: J.A.S. Legh Place and Date of Hearing: Victoria, British Columbia October 10, 2019 Place and Date of Judgment: Vancouver, British Columbia January 23, 2020 Written Reasons by: The Honourable Mr. Justice Hunter Concurred in by: The Honourable Mr. Justice Harris The Honourable Madam Justice Fisher Summary: The appellant seeks a new trial based on improper statements to the jury by plaintiff’s counsel at trial. The statements inappropriately personalized the case and expressed personal opinions of counsel. No objection was made at the time by defence counsel and the trial judge on his own motion cautioned the jury in respect of the statements. Held: Appeal dismissed. In light of the failure to object by defence counsel and the judge’s caution to the jury, appellate intervention is not warranted. Reasons for Judgment of the Honourable Mr. Justice Hunter: [1] In 2013, the respondent was injured when the pick-up truck he was driving was struck from the rear by a vehicle owned and operated by the appellant. The matter proceeded to trial before a judge and jury and, on July 19, 2018, the jury awarded damages totalling $847,000. The appellant appeals this award based on a submission that counsel for the respondent misconducted himself in the opening statement and closing submissions to the jury to such an extent that the trial was rendered unfair. [2] The position of the appellant is that in his addresses to the jury, plaintiff’s counsel personalized the case and expressed personal opinions to the jury to such an extent that the trial process was unfair. The appellant acknowledges that the trial judge did instruct the jury to caution them about counsel personalizing the case, but says that the corrective instruction was inadequate to ensure trial fairness. The appellant also acknowledges that defence counsel made only limited objections to the impugned submissions and advised the trial judge that he was content with the contents of the charge. Nevertheless, the appellant submits that this case falls into the category of exceptional circumstances which merit a new trial. [3] I agree that the submissions of plaintiff’s counsel inappropriately personalized the case on several occasions and went beyond the proper role of counsel in addressing a jury. However in my opinion, the corrective instruction of the trial judge, when considered in light of the failure of defence counsel to object to most of the conduct that is now impugned or to request a mistrial, was sufficient to overcome the potentially prejudicial effect of counsel’s submissions. For the reasons that follow, I would dismiss the appeal. Issue on Appeal [4] The sole issue on appeal as framed by the appellant is whether counsel for the plaintiff misconducted himself in the opening statement to the jury and the closing submissions to the jury, to such an extent that the trial was rendered unfair, notwithstanding the directions of the trial judge, with the result that the verdict pronounced by the jury should be set aside and a new trial ordered. [5] The statements to the jury that the appellant says were improper fell into four categories: (i)       personalizing the case by bringing himself into the opening statement and closing submissions; (ii)      giving his personal opinion on the issues, including putting his personal stamp of approval on the merits of his client’s case; (iii)      giving engineering evidence in the guise of a common sense observation; and (iv)     in one case, quoting a statement from a medical report that was not in evidence at trial. [6] The respondent’s position is that most of the contested submissions were appropriate and those that were objectionable were appropriately addressed by the trial judge with correcting instructions. The respondent further submits that if defence counsel considered that the statements of plaintiff’s counsel, either individually or cumulatively, affected the fairness of the trial, defence counsel had a duty to object during the trial so that the jury might be properly instructed, a mistrial declared, or the jury struck. [7] In reviewing the arguments of the parties, I will refer to the trial counsel as plaintiff’s counsel and defence counsel, and to the appellant and respondent when I am referring to the positions of the parties on appeal. Legal framework [8] Before dealing with specific issues raised by the appellant, I propose to review the legal principles applicable to counsel’s statements to a jury during an opening statement and closing submissions. [9] It is well-settled that in an opening statement, counsel must not express personal opinions about the merits of the case or engage in inflammatory comments designed to appeal solely to the emotions of the jury. The opening is not argument, and should not be delivered in the same manner as closing submissions, for which counsel have greater latitude: McBryde v. Womack , 2013 BCCA 260 at para. 44. [10] The leading case in this jurisdiction on the proper scope of an opening statement is Brophy v. Hutchinson , 2003 BCCA 21. Chief Justice Finch described the general parameters of a proper opening statement in these terms: [41]      In an opening statement, counsel may not give his own personal opinion of the case. Before any evidence is given he may not mention facts which require proof, which cannot be proven by evidence from his own witnesses, or which he expects to elicit only on cross-examination. He may not mention matters that are irrelevant to the case. He must not make prejudicial remarks tending to arouse hostility, or statements that appeal to the jurors’ emotions, rather than their reason. It is improper to comment directly on the credibility of witnesses. The opening is not argument, so the use of rhetoric, sarcasm, derision and the like is impermissible [11] Similar comments were made by Justice Cronk for the Ontario Court of Appeal in Brochu v. Pond (2002), 62 O.R. (3d) 722, in a passage cited with approval by this Court in Lawson v. McGill and McRae Equipment Corp. , 2004 BCCA 68 at para. 38, and again in Cleeve v. Gregerson , 2009 BCCA 2 at para. 48: [15]      Some restrictions apply to both opening and closing addresses. For example, the expression by counsel of personal opinions, beliefs or feelings regarding the merits of a case has no place in either an opening or a closing address to a jury. That restraint is designed to prevent lawyers from putting their own credibility and reputations in issue, and to avoid any indirect invitation to a jury to decide a case based on information or opinion not established in the evidence. [12] Counsel is afforded greater scope in the closing address to the jury, so long as the submissions made to the jury are not so prejudicial as to cause an injustice: Cleeve at para. 49, citing Brochu at para. 17. For example, it is not improper in a closing submission to appeal to the emotions of a jury, provided the comments do not undermine the fundamental requirement that the decision of the jury be based on evidence, not sympathy. [13] Trial judges have a wide discretion to control opening addresses and closing submissions. Where objection is made to a jury address as exceeding permissible limits, the trial judge as a matter of discretion may give a cautionary instruction to the jury, or in a more serious case strike the jury and conduct the trial by judge alone, or declare a mistrial: Brochu at para. 24. Even where several errors have been made by counsel, a timely instruction to the jury concerning the issues of concern may be sufficient to prevent a substantial wrong: Cleeve at para. 45. [14] Failure of counsel to object in a timely way to an improper jury address is a significant consideration in deciding whether to order a new trial: Brophy at para. 50. Chief Justice Finch explained the rationale for treating the failure to object as a waiver of the right to object at an appellate level except in exceptional circumstances, in these terms: [52]      In other words, the trial judge is in the best position to observe the effect of counsel’s statements on the jurors, and to fashion an appropriate remedy for any transgressions. Where no objection is taken, the assumption is that the effect of any transgression could not have been seriously misleading or unfair and there would be no reason for suspecting injustice. [15] In Brophy , this Court held that there were two significant errors that impacted the fairness of the trial and required that a new trial be conducted. One was improper statements to the jury by defence counsel. The other was an error by the trial judge in permitting defence counsel to give an opening statement to the jury immediately after plaintiff’s counsel’s opening, although consent for that procedure had not been obtained. A new trial was ordered notwithstanding the failure of plaintiff’s counsel to object to either of these deficiencies. [16] The appellant relies on the fact that a new trial was ordered in Brophy , and also on the comments of Justice Thackray writing for the majority in de Araujo v. Read , 2004 BCCA 267. In de Araujo , defence counsel did ask the judge to caution the jury about statements made by plaintiff’s counsel to the jury, but the judge declined to do so, stating that “the language was a bit over the top, but I’m not going to say anything [to the jury]”: paras. 45–46. Justice Thackray concluded that the language was excessive and “had to be dealt with”: para. 47. [17] In the case at bar, the situation is reversed. Defence counsel did not ask the judge to caution the jury about the personalization by plaintiff’s counsel, but the judge did so of his own motion. [18] Chief Justice Finch clarified the significance of failing to object in a judgment released one year after de Araujo. In an appeal based solely on improper submissions to a jury, the Chief Justice stated that the failure of counsel to move for a mistrial was a complete answer to the appeal based on counsel misconduct: Giang v. Clayton, Liang and Zheng , 2005 BCCA 54 at para. 7. He pointed out the practical implications of allowing an appeal based on trial unfairness when defence counsel failed to object to the trial judge: [11]      … It would be quite wrong in my view to permit defence trial counsel to remain silent, and rest his clients’ fortunes on a possible favourable verdict, and then to complain in this court that the trial process was unfair. [19] In a judgment concurring on this issue, Madam Justice Southin came to a similar conclusion, commenting that “the appellants, having had a remedy below which they chose not to seek, ought not to be granted it now” (para. 30) and addressing the trial fairness assertion in this way: [32]      But the fairness of a trial is often in the eyes of the participants. A transcript does not give a complete sense of events in a courtroom. Counsel for the appellants, by not moving for a mistrial, obviously did not consider the trial “unfair” and I am not prepared to say that he was in error. [20] There are many reasons counsel might not object to statements to the jury that go beyond the proper scope of a jury address. As Southin J.A. points out, the most obvious inference is that counsel did not consider the statements so improper as to imperil trial fairness. Counsel may also fail to object because they have made a strategic assessment that the comments amount to pandering and that a jury will react negatively to them. Justice K. Smith pointed out in Cahoon v. Brideaux , 2010 BCCA 228 that: [4]        … juries will generally recognize misrepresentations of the evidence, that they will be offended by unfairness and by submissions that insult their intelligence, and that they will not be moved by sophistry or by appeals to cheap sentimentalism, prejudice, or base motives. [21] Whatever the reasons for the failure to object, an appellate court will be very reluctant to permit an appellant to base an appeal on improper statements by opposing counsel that could have been raised with the judge at the time but were not. [22] This Court has taken a consistent approach to the failure to object to what are later alleged to be improper statements to a jury. In Ramcharitar v. Gill , 2008 BCCA 430, referring to Brophy , Justice Lowry stated at paras. 23–24: This Court will rarely intervene in a civil case where complaints in the nature of those raised for the first time here were not raised at trial. ... The nature of the statements now complained of does not raise this to an exceptional case that would justify ordering a new trial. The judge, who was in the best position to observe the effect of what defence counsel said, made no comment at all. Mr. Ramcharitar’s counsel said nothing other than what he said in reply. If he had sought it, some instruction might have been given. It was apparently thought to be unnecessary. [23] In McBryde , after citing this passage from Ramcharitar, Justice Hinkson (as he then was) resolved a similar problem in this way: [56]      I am compelled to the same conclusion as that of Mr. Justice Smith in Cahoon at para. 15: It must be noted that Mrs. Cahoon’s counsel (who is not counsel on the appeal) did not object at the trial to any of the tactics or remarks of defence counsel of which Mrs. Cahoon now complains, that she collaborated with defence counsel and the trial judge in the preparation of the judge’s charge to the jury, and that she made no objection to the judge’s instructions to the jury and did not ask him to redirect the jury on any point. Counsel’s inaction when timely intervention would have permitted corrective steps to be taken by the trial judge, who was best situated to deal with any perceived injustice, would, in the absence of exceptional circumstances, support an assumption that these matters “could not have been seriously misleading or unfair and there would be no reason for suspecting injustice”: Brophy at paras. 52-54 ... [57]      There are no exceptional circumstances here, and I would not accede to the appeal concerning the conduct of counsel for the respondents at trial. Proceedings at Trial [24] The trial began on June 4, 2018 before the judge sitting with a jury. Liability had been admitted, so the only issue was quantum of damages. The trial lasted for 30 days and the jury deliberated over three days. [25] At the commencement of the trial, the trial judge explained to the jury the nature of the opening statement: Following these remarks that I am giving them to you now, the trial will proceed as follows. First, … counsel for the plaintiff, will make an opening statement. He will outline the nature of Mr. Brown’s case. I remind you, or I tell you right now, what [plaintiff’s counsel] says is not evidence. His opening remarks are a road map of where he thinks the case is going to go, but it is not intended to be nor is it evidence. The evidence is the testimony of the witnesses who will take the stand … Counsel will try to be helpful to you in understanding the evidence; but what they say, as I have indicated, is not evidence, and you must not accept it as that. [26] In his opening address to the jury, counsel for the respondent made a number of statements that the appellant says went beyond the proper scope of an opening statement. The appellant identified the impugned statements as follows: ( a) “I have the privilege of representing Chris Brown.” (b) “At the end of the day, we have to decide how much money has to be paid to Mr. Brown as a result of what happened that day.” (c) “What you’ll see is the hitch, which is welded to the frame of the truck, it’s whacked. The front of her car gets dented in, and the grille and everything is dented in. Doesn’t look like there’s a lot of damage to his vehicle, but the reality is that’s why we have bumpers. When you hit a bumper, it’s going to take the blow; and in fact, you might not be hurt at all. But it didn’t hit the bumper. It hit the hitch, hit the frame. And all of that force goes into the body You could have a major accident and not be hurt, or you could have a minor accident and have lifelong ramifications. There’s no engineering evidence. You know, sometimes we get engineers. I’ve heard of that. I’ve never done it. Actually, once. I shouldn’t say never.” (d) “Now, you’ve got whiplash. Whiplash is not a legal term. It’s not a medical term. But it basically talks about your head. When you get hit, when your head or upper body goes forward and comes back, you rip -- that you can rip and tear the muscles and the soft tissues. I’d rather break a leg and have that pain, because it gets better, than I’d ever want -- in my submission, anybody would want -- from whiplash. Because those pains often, and in this case, clearly continue.” (e) “I mean, one of the hardest trials to have is about chronic pain.” (f) “His condition is chronic; it’s ongoing. I have no idea if it’s going to end.” (g) “What I wanted to give you an example of in dealing with somebody like Mr. Brown, who clearly, you know, has some pre-existing issues -- which my friend’s going to make a lot of hay out of. It’s like my friend who has a hernia, and a hernia -- if you do too much, it can be a pain. And so I don’t know if you know anybody that has that, but -- anyways, she just has to limit herself. We go climbing sometimes. She doesn’t go as far as I do; she turns around. And you just have to know your limits, work within it. And that’s what Mr. Brown was fully capable of doing prior to this accident.” (h) “Now, it’s an interesting system because you’re victimized when you’re hit. Now you’re victimized when you’re on trial because, ultimately, although the defendant’s the one that should be on trial, this is a case where Mr. Brown’s going to be on trial. And that is just the way what it is. But you have to recognize that there is an element of unfairness to that.” (i) “Right now, the past five years was an awesome time to be in the trades, and he’s missed out on that.” (j) “On a personal note, on behalf of Mr. Brown, I want to thank you. Sometimes that doesn’t happen, but it should; … This is a huge imposition, I think, to have to sit through this. … But I want to thank you for having agreed, though not quite voluntarily, but to act as a jury.” (k) “I’m going to make some mistakes; and if I do, His Lordship is going to point them out, I anticipate, and I apologize for that. If I make mistakes, please don’t put it on Mr. Brown. I mean, I’m only human too; and if I’ve screwed up in some way by reaching too far or saying something that I shouldn’t have, that’s my fault as a lawyer, but not Mr. Brown’s fault. I mean, he is the person that we’re all here to deal with and -- so don’t lay that at his feet if I do, please. He has been, in my submission, hurt immensely, and he’s entitled to some reasonable compensation as a result.” [27] No objection was made by defence counsel to any aspect of the opening statement and the trial judge made no comment on it. [28] The appellant does not suggest that any one of these statements individually would warrant a new trial, but submits that cumulatively, taken with the impugned statements from the closing submissions, they have that effect. [29] On July 13, 2018, following the conclusion of the evidence, counsel for the plaintiff addressed the jury in closing submissions. The appellant takes issue with the following statements by plaintiff’s counsel: (a) “Chris and his wife Lynn have asked me to begin by thanking you.” (b) “They know, and I do, what a sacrifice you’ve made. This has been a very long trial and for all these weeks out of your lives, it is greatly appreciated. You have to know that.” (c) “You know, I’ve been in a few jury trials and I just wanted to tell you that, you know, the care and that the attention that you set have paid is extraordinary and for such a length of time and I thank you for that because you’ve clearly paid attention. And I sincerely hope that we’ve done our part here to present the evidence carefully, fully and courteously because that’s my goal.” (d) “Before I go on further, I want you to know I’ve been committed to Chris, to help him. So committed that maybe I’ve objected when I shouldn’t have. Maybe I was a bit too zealous and I apologize. If it ever seems like I’m overreaching, or not being accurate, if there’s a mistake it’s mine, not Chris’s. You know this trial took far too long and it’s my fault, I’m sorry. I may have called too many witnesses. I might have cross-examined too long. You know, this is not an easy job. It can be challenging to get it all right, and I find myself second guessing myself sometimes.” (e) “And it reminded me that law partner, Tyler, he coaches baseball and he says, he gives you pep talks and he says you know, nobody who ever gives his best ever regrets it. And I hope I have. It’s also true of Chris.” (f) “He’s given his best to get over this. There can be no doubt about that. If anyone tells you that he didn’t do his best to get better or didn’t do his best to work and to try to overcome his pain, you can tell them that he did his best and that he should never regret that.” (g) “And thankfully she hit her bumper because it did what it was designed to do. It took the impact such that she didn’t think there was any damage before she saw it. She was shocked at the damage to her car. It allowed her to avoid getting hurt, go on to get married, have a child, work on her career and really not care about this trial. She has no idea when this trial started. She has no idea what’s going on. This isn’t about her. She gets to live her life.” (h) “On the other hand, Chris did not benefit from getting hit in a bumper. If he had, this might be all different. We have bumpers to minimize the force, so people don’t get hurt. In this case the Honda rammed the hitch, the hitch is welded to the frame of the car. All of that force goes into the vehicle, pushing it forward one and a half car lengths and all that force is transferred into the people inside. We have bumpers for that reason to reduce injury and she missed it.” (i) “Chris Brown, I was trying to figure out the right word for Chris. I decided he’s a muddled fellow. He’s certainly not sophisticated, but he’s also a clear example of somebody that’s in chronic pain.” (j) “So it’s clear to us all that Chris was profoundly affected on March 30, 2013 and for five years has been desperately trying to find relief. For five years he’s been hemorrhaging money. Money hasn’t been coming in. It’s been going out and there is no relief in sight.” (k) “You know that he wanted to get better. He didn’t want to be in pain. And you know that if there was something else that he didn’t do or had done over the past five years, you’d know about it. And you’d know about in part because they hired [Action Pacific] investigations, who followed both Chris, Lynn and the boys at times, three years, 2015 and 2016 and 2018. … So they spent over $11,000 following him to try to deny that he was hurt.” (l) “My friend will argue that Mr. Brown will be able to work once he deals with his psychiatric issues and that you should reduce his claim accordingly. Well, there was one psychiatrist that testified, that was Dr. Spivak and that was my new word for the trial, risible; I’ve never heard about risible before. I had to look it up. And risible means laughable and his comment was when the defence witnesses, Dr. Heran and Dr. Kemble said, oh well, oh yes, he’s clearly got pain, he’s got problems. It really is all in his head and you know, if we could fix him psychiatrically, he will have no more pain or less pain, he said this was risible.” (m) “It is my opinion that Mr. Brown has done everything reasonably possible to mitigate his loss. His [sic] been shown to be faithful to attending prescribed physiotherapy appointments in the past. He’s tried his best with his own remedial programme at home, including ergonomic changes. He’s shown a great motivation in traveling to Germany to undergo his surgical treatments. He has mitigated his loss as best he can.” [Note: This is not a submission to the jury, but a reference to a passage from a medical report. I refer to this particular passage (m) later in my Reasons as the “Expert Evidence Quote”.] (n) “I did want to mention, there is a loss that we can’t claim in law but, but there is evidence before you. I think it’s Exhibit 8, Tabs 27 and 28 because he borrowed money as a result of basically not having money that, his own money. He ended up borrowing $40,000 over the past five years, and if you look and calculate it out, interest that is accumulative on those loans is $58,078 to the start of the trial. That’s not something that you’re entitled to get back as what we -- pecuniary loss. What I’m suggesting is it is something to be looked at to be cognisant of when we’re figuring out, well, what amount should we get for his pain and suffering? I’m not saying it equals that. I’m just saying it’s something to be aware of that’s an expense he’s had as a result of this collision.” (o) “So, I’ve spoken for a long time. I’ve made some mistakes, and I’m sorry again if I have gone on too long. But it’s the last chance that I have to advocate on behalf of Chris. At the end of all this, Chris will be waiting your verdict on next week and after that everything is over for us, we all go home. Chris lives with this for the rest of his life, you need to remember that this is the end for him, there’s is no -- he doesn’t get a chance to, you know, to look at it again. So I trust you’ll be fair, and I thank you for listening to me. Thank you for overlooking my faults. Thank you.” [30] At one point during closing submissions, plaintiff’s counsel broke down and the jury had to stand down. In the absence of the jury, plaintiff’s counsel explained to the judge that the emotion he had shown was unconnected with the case, and agreed that the trial judge should explain to the jury that it should be ignored. That request was made by defence counsel as well. The trial judge then went on to address plaintiff’s counsel regarding some of the matters that have been raised in this appeal, although no objection had been made by defence counsel: But the second issue that I am more concerned about, is … counsel should not be personalizing the case for the jury and adding their personal stamp to a party, to the party’s position, to the party’s claims, and that is what I am going to be telling them. Because in my view you are going there . Whether you have actually crossed the line, I am not being asked to decide that. But it is not for counsel, in my respectful view, to say if mistakes were made, they were not Chris’s, as you have said, they were mine, as you have said. That is bringing counsel into the equation and counsel’s conduct and counsel’s integrity in my view and that is not proper advocacy. [31] I have underlined one sentence in this passage to reinforce the important point that the trial judge had not been asked by defence counsel to grant one of the remedies available to a trial judge, such as declaring a mistrial or taking the case away from the jury. The concerns raised were raised by the judge. [32] When the jury returned, the trial judge made the following statement to the jury: COURT: Please have a seat, folks. A couple of things I want to say to you before I ask [plaintiff’s counsel] to continue with his closing submissions. First off it deals with the emotions, the challenges of trial work. Obviously, [plaintiff’s counsel] was upset. You cannot allow that to sway you one way or the other, I am not suggesting that it would. But you have taken an oath, or you made a formal affirmation to decide this case strictly upon the evidence they presented and not to be swayed by any sympathy for or against someone and antipathy against someone. Nor can you allow counsel’s conduct to allow you to sway it either. You have to be impartial deciders, triers of facts, impartial judges and decide this case on the evidence. I am also going to tell you that counsel should not be expressing their personal opinions about a case or about a witness. If counsel does and you decide that, you have to disabuse your mind of that. You cannot allow counsel’s personal views to sway you. Counsel cannot put a personal stamp on a case. Obviously, they work with their client, they represent their client. That is what lawyers do, but if you have perceived, if you perceived, because you decide this, if you perceived that anything [plaintiff’s counsel] has said seems as though he is putting his stamp on the case, personalising it, you have to disabuse your mind about that, because that is not counsel’s role. Counsel’s role is to bring the evidence to Court and to advocate on behalf of their client, not to express personal opinions. So you are not to be swayed one way or the other. If you think, if you have concluded that what [plaintiff’s counsel] has said, or for that matter what anybody else says, personalizing a case, you decide your case, this case, strictly on the evidence. [33] Later in the plaintiff’s closing submissions, another issue arose. Plaintiff’s counsel referred the jury to a paragraph from a medical report that had been redacted from the exhibit (the Expert Evidence Quote referred to above). At the next break, defence counsel raised this with the judge and asked the judge to instruct the jury that the passage read by plaintiff’s counsel was not evidence and should not be considered. During discussion with counsel, this exchange occurred: [DEFENCE COUNSEL]: Well, my proposal is -- THE COURT: Are you making an application? [DEFENCE COUNSEL]: Well, my proposal -- I’m not making any application , My Lord. THE COURT: Okay. [DEFENCE COUNSEL]: But -- far from that, but I think that the jury needs to be instructed that, that was not part of the evidence . And that is, it was not -- it’s not in the report before them. [Emphasis added.] [34] I have underlined the reference to an application, as this was another opportunity to seek either a mistrial or continuation with judge alone, but defence counsel presumably considered that this issue could be dealt with by a further instruction to the jury. [35] The trial judge then brought the jury back and gave them a detailed instruction, beginning with: I think it has been said more than once, that what counsel say or what I say, is not evidence. What is evidence is what the witnesses say or the documents that have been filed as exhibits in this trial. The judge then explained in detail the error that plaintiff’s counsel had made in referring to a document not in evidence. [36] Plaintiff’s counsel then completed his submissions and defence counsel made his submissions to the jury. Following completion of the submissions, the trial judge discussed his charge with counsel. Defence counsel requested a charge concerning plaintiff’s counsel’s submission in these terms: I did have some concerns with some of my friend’s comments in regards to his closing on Friday, and that was with respect to my client, Nicole Goodacre, in personalizing it on the basis that she didn’t care because she wasn’t here, she was able to get on with her life, have a family and a baby; and characterizing his client as, well, he hasn’t been here because he’s -- sometimes because he’s in pain. I think that’s unfair to put it in that vein, and I think you need to do to, in your instructions and charge to the jury, point that out. That’s improper, in my submission, to personalize both of them in that sort of a vein, whether they’re here or not and the reasons that that may or may not be. Thank you. [37] No other objections were made to plaintiff’s counsel’s submissions and defence counsel made no other request for a corrective charge. [38] In his charge to the jury, the trial judge repeated his direction concerning plaintiff’s counsel’s emotion during submission and the personalizing of the case: Before addressing the defence case, let me comment briefly on plaintiff counsel’s final submissions to you and the manner in which they were done. You are aware, ladies and gentlemen, that [plaintiff’s counsel] became emotional during those submissions and began crying. He explained to you afterwards that it had nothing to do with Mr. Brown and that you should not allow his emotions to influence you in any way. He is right in that. Counsel’s feelings have no place in your deliberations. In saying this, I also note that neither counsel should have personalized this case or be seen to have put their stamp of approval or endorsement on their client’s position. It matters not, ladies and gentlemen, that [plaintiff’s counsel] says he is committed to helping Mr. Brown or that he hopes he has given his best for his client. What matters is the evidence that both sides have presented to you, the arguments they have made based on that evidence and your assessment of that evidence. [39] The position of the appellant on this appeal is that notwithstanding the failure of trial counsel to object in a timely way, the cumulative effect of plaintiff’s counsel’s statements to the jury was so prejudicial to a fair trial that a new trial is required. The respondent accepts that some of the comments inappropriately personalized the case, but says that the failure to object is a factor that strongly militates against the serious remedy sought in this appeal. Analysis [40] I agree with the appellant that many of the comments of plaintiff’s counsel improperly personalized the case or expressed a personal opinion inappropriate for a jury address. I would not, however, give effect to the appeal on that ground for two reasons. First, the trial judge instructed the jury appropriately concerning personal opinions of counsel on two separate occasions, once in the middle of closing submissions of plaintiff’s counsel and once in his charge to the jury, to caution them not to be influenced by such comments. [41] On the first such occasion, the judge specifically cautioned the jury that: counsel should not be expressing their personal opinions about a case or about a witness. If counsel does and you decide that, you have to disabuse your mind of that. You cannot allow counsel’s personal views to sway you. if you have concluded that what [plaintiff’s counsel] has said, or for that matter what anybody else says, personalizing a case, you decide your case, this case, strictly on the evidence. [42] In his charge to the jury, the trial judge reiterated his caution that “neither counsel should have personalized this case or be seen to have put their stamp of approval or endorsement on their client’s position” and addressed another issue that the appellant has raised in this Court, the assertion that plaintiff’s counsel had attempted to inoculate his client from weaknesses in the case by deflecting any such weaknesses onto himself: It matters not, ladies and gentlemen, that [plaintiff’s counsel] says he is committed to helping Mr. Brown or that he hopes he has given his best for his client. What matters is the evidence that both sides have presented to you, the arguments they have made based on that evidence and your assessment of that evidence. [43] These instructions are appropriate to deal with the concerns arising from the submissions of plaintiff’s counsel. Judges should not be quick to assume that the manner in which counsel addresses a jury will unduly influence them. As Justice Smith said in Cahoon : [2]        That a jury might be improperly influenced by the words and tactics of counsel is no doubt possible: … But it must be rare in modern times that counsels’ words and actions alone could hoodwink eight citizens chosen at random and properly instructed in the law and so divert them from the due discharge of their duty. [Citations omitted.] [44] The second reason I would not give effect to this ground of appeal is that defence counsel (who is not counsel on the appeal) did not object to plaintiff’s counsel’s personalizing of the case, or ask the judge to take any of the stronger steps the appellant now asks this Court to take. I say this without being in any way critical of defence counsel’s decisions. He may well have considered that any unfair aspect of the plaintiff’s jury address was adequately addressed by the judge’s instructions to the jury. He may not have considered the comments of plaintiff’s counsel to be very serious at all. He may have considered that plaintiff’s counsel was doing more harm than good to his own client’s cause. In any event, the failure to object weighs heavily against appellate intervention. [45] I should add that not all of the comments to which the appellant takes exception as improper personalization are in fact improper. One clear example is the appellant’s submission that plaintiff’s counsel exceeded the parameters of a proper opening statement when he said to the jury: His condition is chronic; it’s ongoing. I have no idea if it’s going to end. [46] On its face, this would be an improper statement of counsel’s opinion. However, the respondent points out that what plaintiff’s counsel was doing in this part of his opening was paraphrasing one of the medical opinions he intended to adduce. The full context makes this clear: You’re going to hear from Dr. Gee. The family doctor’s going to come testify. He’s going to indicate that he initially believes the soft tissue injuries that he has -- Mr. Brown -- and that Mr. Brown has not responded to conservative measures, which included various therapies that I just mentioned. His condition is chronic; it’s ongoing. I have no idea if it’s going to end. And the chance of him showing significant improvement in the future is unlikely, he will tell you. And in his opinion, it’s unlikely he was going to be able to return to his occupation as a painter. [Emphasis added.] [47] There is nothing improper about this statement when read (or heard) in context. [48] Defence counsel did object to one other statement the appellant contests, the reference to a portion of a medical report that was not properly in evidence (what I referred to earlier as the Expert Evidence Quote). However, the judge gave a cautionary instruction to the jury concerning this matter. On this occasion, the trial judge asked defence counsel whether he was making an application and was advised that he was not. Defence counsel was presumably satisfied with a cautionary instruction. Absent exceptional circumstances, it would not be appropriate for this Court to intervene when counsel at trial adverted to the issue and elected not to ask for a stronger remedy. [49] The final area of dispute in this Court concerned statements made in both the opening statement and closing submissions that the appellant characterizes as giving what amounts to engineering evidence concerning the impact of the collision on the hitch of the plaintiff’s car as contrasted with the bumper of the defendant’s car, and the transfer of the force of the impact to the occupants of the plaintiff’s vehicle. The trial judge was in the best position to assess the significance of these statements on the jury. They are not of themselves sufficient to conclude that the trial was unfair, and once again, the failure of defence counsel to object to the statements weighs heavily against any conclusion that the statements imperiled the fairness of the trial. [50] Having in mind the cautionary instructions given by the trial judge to the jury, it is my opinion that there are no exceptional circumstances in this appeal sufficient to overcome the absence of objection by defence counsel to the conduct about which the appellant now complains. I would dismiss the appeal. “The Honourable Mr. Justice Hunter” I AGREE: “The Honourable Mr. Justice Harris” I AGREE: “The Honourable Madam Justice Fisher”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Quach v. Mitrux Services Ltd., 2020 BCCA 25 Date: 20200123 Docket: CA45644 Between: Tri Quach Respondent (Plaintiff) And Mitrux Services Ltd. and Ameri-Can Freight Systems Inc. Appellants (Defendants) Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Harris The Honourable Mr. Justice Hunter On appeal from:  An order of the Supreme Court of British Columbia, dated September 6, 2018 ( Quach v. Mitrux Services Ltd. , 2018 BCSC 1535, Chilliwack Docket S030413). Counsel for the Appellants: E.A.W. Heath Counsel for the Respondent: D.A. Sorensen M.A. Truong Place and Date of Hearing: Vancouver, British Columbia September 6, 2019 Place and Date of Judgment: Vancouver, British Columbia January 23, 2020 Written Reasons by: The Honourable Madam Justice Saunders Concurred in by: The Honourable Mr. Justice Harris The Honourable Mr. Justice Hunter Summary: The appeal is from an award of a year’s salary, under a fixed‑term contract providing that upon termination by the employer, the balance of the salary for the remaining portion of the term would become due and owing, and an award of aggravated damages. The parties had signed a second agreement making the contract a month to month contract. The judge found new consideration was not given to the employee in exchange for agreeing to the second contract, and hence the fixed‑term contract applied. The employer appealed. Held: Appeal allowed on the issue of aggravated damages only. The language of the second contract contemplated fresh consideration but none was given. The judge’s conclusions that the fixed‑term contract applied were correct. The award for aggravated damages is set aside. The record did not support a conclusion that the employee suffered more than normal distress, stress and anxiety as a result of the dismissal. Comments on the law of mitigation of damages in an employment setting are provided. Reasons for Judgment of the Honourable Madam Justice Saunders: [1] This appeal concerns damages assessed under a one‑year fixed‑term contract of employment in circumstances in which the employer, Mitrux Services Ltd. and Ameri-Can Freight Systems Inc., repudiated the contract before the employment began and in which the employee, Mr. Quach, obtained alternative employment soon after the repudiation. The judgment was in an amount equal to the total annual salary of $138,000, plus $15,000 in aggravated damages, plus costs. [2] In these reasons, I refer to the employee as having been dismissed even though the employment never began. In doing so I adopt the language of the parties, which seems to be a convenient entry into relevant authorities, remembering that employment law in any case is but a specialized field of the law of contract. [3] The main issue in the trial was which of two signed contractual documents applies as the operative contract between the parties. The first in time, referred to as the “Fixed‑Term Contract”, was prepared by a lawyer engaged by the employee to record the employment offer made to him by the employer, accepted by e‑mail on August 7, 2015. The operating mind of the employer was Mr. Arora and Ms. Ali was, at the material time, the employer’s sales manager. Mr. Arora and Ms. Ali met with Mr. Quach on August 25, 2015, and each signed the Fixed‑Term Contract. This document described a one‑year term of employment from October 1, 2015, to September 30, 2016, at an annual salary of $138,000. [4] The second contract, entitled “Employment Agreement and Contract Waiver” referred to as the “Second Contract”, was signed by the parties on September 28, 2015. It came into being after Mr. Arora sought legal advice regarding the Fixed‑Term Contract, and asked the employee to agree to a month‑to‑month contract in its place. The employee resisted, and in doing so reminded Mr. Arora he had not been reimbursed $1,000 for his preparation of the Fixed‑Term Contract. Mr. Arora replied that he would reimburse the employee when he started work. On September 28, 2015, Mr. Arora advised the employee that he required a new contract to be in place before the employee started work. By then, the employee had left his secure previous employment. The employee signed the Second Contract later that same day. That document provided for month‑to‑month employment commencing October 1, 2015, terminable upon four weeks’ written notice or payment of one month’s salary in lieu of notice. On the employee’s insistence, it included as a term: 5.6       Any failure to comply the terms [ sic ] of the Employment Agreement or misrepresentation by the Employer will void this Employment Agreement. [5] On September 30, 2015, Mr. Arora “terminated” the employment, offering reasons that the judge found did not constitute cause for dismissal. [6] The employee sued for damages for wrongful dismissal, basing his claim for damages on the Fixed‑Term Contract. The employer, in response, alleged cause and advanced the Second Contract as the operative agreement between the parties. [7] In his reasons for judgment concerning the operative contract, the judge rejected the employer’s two submissions that the Fixed‑Term Contract was unenforceable by reason of non est factum and because the fixed‑term provision was mistakenly included. The judge accepted the employee’s submissions that the Second Contract failed for lack of fresh consideration. Alternatively, the judge found that the Second Contract was void on the basis that Mr. Arora had misrepresented his intentions to employ Mr. Quach and failed to comply with the terms of the Second Contract by not allowing the employee to begin employment on October 1, 2015, both contrary to clause 5.6 set out above. Grounds of Appeal [8] The employer appeals from the order for damages and costs. It contends the judge erred: 1. in finding the $1,000 payable to the employee as reimbursement of legal fees incurred in preparing the Fixed‑Term Contract was not good consideration for the Second Contract; 2. in determining that the employer had made a misrepresentation to the employee that voided the contract; and 3. in awarding the employee aggravated damages. [9] To succeed in establishing the Second Contract as the operative agreement, the employer must succeed on both ground 1 and ground 2. Discussion [10] It is useful to start with the scope of this court’s appellate role. Our function is not to retry a case, but rather to determine whether the judge made a reversible error. In respect of errors of law, we must ask whether the judge was correct on the question of law posed. On questions of fact or mixed questions of fact and law, we must ask whether a judge made an obvious (palpable) and material (over‑riding) error: Housen v. Nikolaisen, 2002 SCC 33. Consideration for the Second Contract [11] It is a basic principle of contract law that consideration between parties is required to create a binding contract. There has been shifting of this principle in cases of variation of terms of the contract, discussed in Rosas v. Toca , 2018 BCCA 191. Rosas considered a series of informal arrangements to extend the time for payment of a debt, to the point that the limitation period on the original debt expired before an action was commenced seeking to recover it. Chief Justice Bauman, writing for the court, addressed the law of fresh consideration as it should apply to variations of existing contracts and concluded at para. 183: [183]    … When parties to a contract agree to vary its terms, the variation should be enforceable without fresh consideration, absent duress, unconscionability, or other public policy concerns, which would render an otherwise valid term unenforceable. A variation supported by valid consideration may continue to be enforceable for that reason, but a lack of fresh consideration will no longer be determinative. [12] Employment contracts, even where reduced to writing, rarely define the consideration for the contract. They are commonly devised so that the benefit (consideration) received by the employer is the services of the employee, and the benefit received by the employee is the pay and other emoluments flowing on performance of the duties. From time to time employment contracts, both written and oral, are modified. When that occurs, we may come to the issue as to which terms apply: those of the original agreement or those after modification. An example of an oral agreement subsequently modified to the disadvantage of the employee in a written agreement is Singh v. Empire Life Ins. Co., 2002 BCCA 452. In Singh , Chief Justice Finch explained: [12]      I am also of the opinion that the defendant cannot rely on those provisions of the subsequently signed Regional Manager's Agreement, which are less advantageous to the plaintiff than the terms of the original contract. In Watson v. Moore Corporation Ltd. , [1996] B.C.J. No. 525 (C.A.), a majority of the court held that continued employment, without more, could not amount to consideration. There was no evidence that forbearance to discharge the plaintiff could amount to consideration. [13] A similar conclusion was reached by the Ontario Court of Appeal in Francis v. Canadian Imperial Bank of Commerce (1994), 21 O.R. (3d) 75. The court affirmed the general principle that modification of a pre‑existing contract will not be enforced unless there is a further benefit to both parties. [13] The judge relied upon Singh in reaching his conclusion that fresh consideration was required to solidify the Second Contract as a binding agreement. The effect of Rosas upon Singh (not referred to in Rosas ) has not been addressed in this case. It seems to me that the import of Rosas may not change the authority of Singh in the nuanced world of employer and employee contractual relationships. Whether it does is an interesting question that can and should be left to another day because, in my view, the Second Contract presents much more than a Rosas ‑style variation in any event. [14] The nature of the Second Contract is exposed in its formal name “Employment Agreement & Contract Waiver”. The name demonstrates that something more than employment is the subject of the agreement. That ‘something more’ is the cancellation of the Fixed‑Term Contract. This Second Contract, then, is much more than variation of the Fixed‑Term Contract. By the terms of the Second Contract, that first contract would come to an end and would be replaced by an arrangement favourable to the employer and unfavourable to the employee. Recognizing that this new contract bestows benefit on the employer, the Second Contract expressly contemplates consideration (benefit) to the employee for the cancellation, in these words: 2.2       In consideration of the termination of the prior Employment Agreement, the Employer agrees to waive probationary requirements as set out by the Labour Standards of BC and will adhere strictly to the terms of Termination of Employment. [15] When analyzed carefully, however, this clause provides no consideration, although it pretends to do so. It may be that the reference to “probationary requirements” is a reference to the three month period during which, by s. 63 of the Employment Standards Act, R.S.B.C. 1996, c.113, an employee is not entitled to termination pay. Section 63, however, would not apply in the circumstances present here because the Employment Standards Act establishes a floor of standards, and does not interfere with higher standards resulting from the common law, or contracts of employment. In other words, the “consideration” spoken of in clause 2.2 of the Second Contract gives no benefit to the employee. Yet the contract contemplates a purported benefit to the employee for giving up the Fixed‑Term Contract. It is to this point that the employer advanced the payment of $1,000 as consideration capable of supporting the Second Contract. [16] The judge found that the mutual benefit required to form the Second Contract was not established. He said: [252]    I do not find the defendants’ promise to pay $1,000 towards the plaintiff’s legal bill for the drafting of the First Contract is consideration for the Second Contract. They are unrelated. [264]    I find in the case at bar that the plaintiff received no further benefit from the Second Contract; in fact, he suffered the loss of the benefit of the Term provision, and its guarantee of employment for a term of one year, as he had over the first term under the Fixed‑Term Contract, with nothing in exchange. Counsel for the plaintiff pointed out, aptly in my opinion, that the defendants, on the other hand, received a significant benefit because they were no longer liable to the plaintiff for damages over the first term. [265]    There is a conspicuous difference in Mr. Quach’s entitlement to damages on termination under the Fixed‑Term Contract (12 months) and the second contract, (one month). I agree with the plaintiff that from a policy standpoint it would lead to an unrealistic and unfair result if the principles of fresh consideration did not apply in a situation where employment had not yet commenced but there was a subsequent contract that amended the initial expected terms of employment, as did the Fixed‑Term contract. [17] The employer says the judge erred in his conclusions and that its commitment to pay $1,000 to reimburse the legal fees incurred by the employee in creating the Fixed‑Term Contract was sufficient benefit to the employee to create the Second Contract as a binding agreement. In support of that submission it refers us to the following cross‑examination of the employee: Q         Now, one of your claims is that you have claimed that you are entitled to be reimbursed for a thousand dollars for the cost of drafting the first contract, correct? A          Yes. Q         And who told you that -- that that would be something you'd be entitled to? A          Mr. Arora. Q         When? A          When I was discussing with him about changing the contract again in late September, when he asked me to get the contract redrafted again by a lawyer and I told him that the first contract had already cost me a thousand dollars, where he had previously promised me that he would pay for that and still have done so. Q         I see. So that had never been discussed prior to the execution of the first contract, it was only discussed at the time of the second contract? A          That is correct. Q         Well, how much -- how long before the signing of the second contract did you agree that you'd be reimbursed for the $1,000? A          The 1100 dollars? Q         Well, I'm just talking about the 1,000, for now. A          Okay, well, the 1,000 was probably made a few days or maybe a week before that. Q         But Jas said, "If you sign this contract, we'll make sure to reimburse you the 1,100 dollars even." A          If I sign this contract? Q         Yeah, if -- if you chan -- A          No, it was -- Q         -- if you change the contract that -- that you'd -- you'd certainly get your reimbursement. A          To change the contract. Q         Yes. [18] The employee says the promise to reimburse $1,000 was not good consideration because the evidence does not establish that the promise to pay was given in exchange for his agreement to the Second Contract. He denies that the portions of the cross‑examination relied upon by the employer, read in the context of his entire testimony, establish that the promise to pay him $1,000 was made in exchange for his signing the Second Contract. He refers us, also, to other passages of the transcript in which he describes a previous promise by the employer to reimburse him for his legal fees related to the Fixed‑Term Contract, and adopts the judge’s characterization of the evidence as “vague”. Further, he says that the offer to pay $1,000 was illusory because the amount was not paid, although at trial the employer agreed that it owed him that amount. He also asks the court to draw an adverse inference from the absence of a plea of fresh consideration in the employer’s amended response to civil claim, as it was written at the time of trial. [19] The question whether fresh consideration was provided to the employee as part of the “price” for the employer securing a more favourable contract with the employee is a question of fact, to which the deferential standard applies. [20] In my view, the judge accurately described the evidence on the issue of whether reimbursement is fresh consideration when he said it was “vague”. Apart from the problem that “consideration” is referred to in the Second Contract, but not in the form of the $1,000 payment consideration now posited as its basis, it is clear that the terms of the Second Contract were not settled when the employer offered to reimburse the employee $1,000. It is equally clear that the sum of $1,000 was not paid to the employee on signing the contract, or at any later time. Absent payment of $1,000, or a commitment given in the Second Contract to pay it, any discussion of such a payment is fairly characterized as “vague”. It was open, in my view, to the judge to find the employer had not established fresh consideration of $1,000. I see no basis on which we may interfere with the judge’s conclusion on this factual issue. [21] The Second Contract was premised upon the cancellation of the Fixed‑Term Contract for consideration, but no consideration was provided. In these circumstances, I cannot say the judge erred in his conclusion in respect to the consideration issue. [22] In the result, I would not accede to this ground of appeal, and accordingly, the submission that the Second Contract governs the dispute cannot prevail. Misrepresentation [23] The judge found, in the alternative to his conclusion that the employer had failed to establish fresh consideration for the Second Contract, that the employer’s failure to allow the employee to commence his employment was a misrepresentation by the employer that voided the Second Contract pursuant to clause 5.6 replicated above at para. 4. [24] The employer contends the judge erred in this conclusion. Given my conclusion on the first ground of appeal, I will not address this ground in these reasons. Aggravated Damages [25] The employer contends the judge erred in awarding $15,000 as aggravated damages. [26] The circumstances in which aggravated damages may be awarded are described by Mr. Justice Goepel in Cottrill v. Utopia Day Spas and Salons Ltd. , 2018 BCCA 383, leave to appeal ref’d [2018] S.C.C.A. No. 533: [14]      “It has long been accepted that a dismissed employee is not entitled to compensation for injuries flowing from the fact of the dismissal itself”: Wallace v. United Grain Growers Ltd. , [1997] 3 S.C.R. 701 at para. 103. While the loss of a job is very often the cause of injured feelings and emotional upset, the “normal distress and hurt feelings resulting from dismissal are not compensable”: [ Honda Canada Inc. v. Keays , 2008 SCC 39] at para. 56. [15]      Ms. Cottrill argued that unfairness in the manner of dismissal was sufficient in itself to ground an award for aggravated damages. The authorities do not support that proposition. An award of aggravated damages resulting from the manner of dismissal requires: (a) a finding that an employer engaged in conduct during the course of dismissal that was unfair or in bad faith, and (b) a finding that the manner of dismissal caused the employee mental distress: Honda at para. 59. [Emphasis in original] [27] On the reasoning in Honda , not all mental distress from the fact of dismissal attracts an award of aggravated damages – the plaintiff is required to establish something well beyond the normal distress and hurt feelings that invariably accompanies loss of employment. As Mr. Justice Savage explained in Lau v. Royal Bank of Canada , 2017 BCCA 253 at para. 49, referring to Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, and Saadati v. Moorhead, 2017 SCC 28, testimony showing a “serious and prolonged disruption that transcended ordinary emotional upset of distress” may constitute a sufficient evidentiary foundation but “the demeanor of the plaintiff in the witness stand” is an insufficient basis for a finding of the requisite distress. [28] The judge in the present case found both of the Cottrill conditions were present. The employer, on appeal, does not dispute the judge’s finding of bad faith. Its challenge to the award is directed to the second condition – that the manner of dismissal caused the employee mental distress. [29] Having found that the employer’s behaviour during the dismissal satisfied the criterion of bad faith, the judge summarized the effects of the dismissal on the employee: [317]    I found credible Mr. Quach’s testimony regarding the “devastation” he felt, feeling like a complete failure; the stress and anxiety he felt. As he put it, he had been fired from a job he had not even started. As I related earlier in these reasons, he had a baby coming, financial obligations, in‑laws moving to live at his home and no other source of income. I find Mr. Arora knew Mr. Quach’s situation and despite promises Mr. Quach would keep his employment, ignored his situation. [30] The judge then observed that the employee had found new employment quickly, and awarded what he said was an amount at the low end of the range of aggravated damages – $15,000, concluding with this description of the employer’s conduct: [329]    The defendants’ conduct was spiteful and deserving of compensation to the plaintiff. [31] The points that follow the judge’s description in his para. 317 of the “devastation” attested to by the employee are the employee’s life circumstances at the time of the dismissal, and in the normal course are not matters that will increase damages. Rather, the question in this aspect of the aggravated damages analysis is the impact of the termination on the employee and his mental state, as to which the judge says little. Although he quotes the word “devastation” and refers to the employee’s stress and anxiety, there is no indication that the employee’s feeling of strong dismay and anxiety for himself and family was beyond the “normal distress and hurt feelings” that are not compensable. On the contrary, there is considerable evidence that he recovered quickly from his loss of the position. For example, the record shows that the employee was at least partially prepared for the possibility he would lose his job; he had already sought out other employment opportunities, and because of that anticipatory search, he found new employment soon after he learned he would not be starting work with the employer. So too, the employee’s frank exchanges with Mr. Arora, quickly corresponding with Mr. Arora and saying that he would “see [Mr. Arora] in court”, demonstrate a sturdy response to the “dismissal”. [32] I conclude that as in Cottrill at para. 18, the record “falls well short of the legal standard that requires a serious and prolonged disruption that transcends ordinary emotional upset or distress.” While the judge was entitled to factor his view on the employer’s “spiteful” behaviour into the first condition (bad faith) for aggravated damages, evidence of more than the normal transitory dismay, stress and anxiety is required to satisfy the second condition of the test for aggravated damages. Here the quality of the employee’s response does not equate to the sort of mental distress required for this exceptional remedy. [33] I conclude the award for aggravated damages must be set aside. Mitigation of Damages [34] The Fixed‑Term Contract, which governs the parties, provides: 4.1       The parties understand and agree that the Employee’s employment pursuant to this agreement may be terminated as follows: (a) By the Employee, at any time, for any reason, on the giving of four weeks written notice to the Employer; (b) By the Employer, in its absolute discretion, at any time, on the giving of written notice to the Employee at which time payment of the full balance of the compensation due to the Employee for the entire First Term or Second Term as the case may be will become due and payable within two weeks of such notice of termination. For greater clarity, the Employer shall pay to the Employee, all compensation due to the Employee at the date of termination as well as all compensation due to the Employee from the date of termination through to the expiration of the First Term or Second Term as the case may be. [35] The judge made no deduction for mitigation of damages through post‑dismissal earnings, relying upon Howard v. Benson Group Inc. (The Benson Group Inc.) , 2016 ONCA 256, leave to appeal ref’d [2016] S.C.C.A. No. 240. Howard was a case of a fixed‑term contract that did not contain a notice period provision determining the employer’s obligations upon termination. The court in Howard applied the court’s earlier case, Bowes v. Goss Power Products Ltd. , 2012 ONCA 425, and said at para. 22 that “if the parties to a fixed term employment contract do not specify a pre‑determined notice period, an employee is entitled on early termination to the wages the employee would have received to the end of the term”. This conclusion in Howard extends Bowes, a case of a contract with a fixed notice period provision that provided for payment in lieu. In Bowes , the court held at para. 30 that the amount agreed upon should be treated as “liquidated damages or a contractual amount”. [36] The leading authority in British Columbia in a Howard sort of situation, however, is Neilson v. Vancouver Hockey Club Ltd . (1988), 51 D.L.R. (4th) 40, (B.C.C.A.), not referred to in either Howard or Bowes. Rather than approaching the damages issue from the singular question whether the contract is for a fixed term, as Howard does, Neilson distinguishes between a fixed‑term contract without a termination clause and a contract with a termination clause providing for payment of a fixed amount. Observing that employment law is governed by the law of contract, Mr. Justice Seaton in Neilson closely analyzed the status of the contract once the employee is refused continuing employment. He observed that the employee’s action then is for damages, not remuneration, and that the employee is not entitled to treat the contract as subsisting. Justice Seaton then turned to the issue of mitigation. Without resolving whether there is a duty to mitigate, an issue on which there are conflicting authorities based on competing theories, Justice Seaton concluded that unless the contract provides otherwise, the employer derives the benefit of mitigation, even in a fixed‑term contract. For this conclusion, he relied on Cockburn v. Trusts & Guar. Co. (1917), 55 S.C.R. 264, 37 D.L.R. 701, which held at 703 that even where an employee is under no duty to mitigate, “the actual diminution of his loss may be taken into account”. After referring to Br. Westinghouse Elec. & Mfg. Co. v. Underground Elec. Ry. Co. of London , [1912] A.C. 673 (H.L.), Justice Seaton stated the general principle that applies in British Columbia: [14]      On this question I conclude that whether or not the plaintiff was bound to mitigate is irrelevant. He cannot recover for avoided loss in any case. [37] At the same time as stating the general principle applicable to contracts that do not have fixed provisions for termination, Justice Seaton recognized that the parties can agree to a term that compels a different result on the effect of mitigating earnings, referring to a contract that “may provide otherwise”. [38] Neilson has been followed by this court in Mosher v. Epic Energy Inc. , 2001 BCCA 253, and Alsip v. Top Rollshutters Inc. dba Talius , 2016 BCCA 252. In addition, Neilson was relied upon by Justice Major in Wells v. Newfoundland, [1999] 3 S.C.R. 199 at para. 65, for the proposition that in a contractual claim, whether arising from a fixed‑term contract or not, the usual rules of mitigation of damages apply. [39] The result of these authorities, in my view, is that in British Columbia, on the authority of Neilson , the fixed‑term nature of a contract does not entitle the employee to damages in the full amount of unpaid wages for the balance of the term without deduction of monies earned elsewhere during the term, absent a provision otherwise. In this way Neilson is at odds with Howard but not Bowes . [40] I mention all of this lest the judge’s reference to Howard, and our silence on it, be taken as agreement with the conclusion that in all cases of fixed‑term contracts, mitigation of damages may not be considered. Instead, I suggest the jurisprudence is to the effect that consideration of mitigated damages will depend on the particular termination provisions of the contract at issue. [41] In this case, of course, the contractual language in clause 4.1(b) expressly establishes the amount of the payment owing to the employee by the employer immediately upon termination of the employment by the employer. For that reason, and applying the notion of “otherwise provided” allowed in Neilson , the judge’s conclusion that the employee is entitled to damages equal to one full year of earnings provides the correct remedy under the Fixed‑Term Contract. Disposition [42] I would allow the appeal to the extent only of setting aside the award of aggravated damages. “The Honourable Madam Justice Saunders” I agree: “The Honourable Mr. Justice Harris” I agree: “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. R.S.B., 2020 BCCA 33 Date: 20200123 Docket: CA45663 Between: Regina Respondent And R.S.B. Appellant Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Fitch The Honourable Mr. Justice Butler On appeal from:  An order of the Provincial Court of British Columbia, dated December 12, 2017 ( R. v. R.S.B. , Surrey Docket 221409-1-K). Oral Reasons for Judgment Counsel for the Appellant: R.T. Gill N.B. Wright, Articled Student Counsel for the Respondent: L.A. Chu Place and Date of Hearing: Vancouver, British Columbia January 23, 2020 Place and Date of Judgment: Vancouver, British Columbia January 23, 2020 Summary: The appeal is from conviction of one count of sexual assault, the appellant having been acquitted of five other offences charged on the same indictment. Credibility was the central issue at trial. In convicting, the judge relied upon text messages sent between the parties. The Crown agrees that the judge erred in his appreciation of the timing and content of the messages and relied upon the mis‑appreciation in his credibility assessment of the complainant and appellant. Held: Appeal allowed, new trial ordered. The errors in respect to the text messages fatally undermined the credibility assessments and thus the verdict. [1] SAUNDERS J.A. : On December 12, 2017, the appellant was convicted of one count of sexual assault of the complainant and acquitted of five other counts: Counts 2, 3, and 5 of the indictment being assault of M.B. in three different time periods; and Counts 4 and 6, being uttering a threat to M.B. to cause death or bodily harm in two different time periods. [2] He appeals from the single conviction on Count 1. [3] Credibility was the central issue at trial. The complainant, M.B., testified that the events charged had occurred; the appellant testified, denying all of the allegations central to the charges. On Count 2, the judge found he was unable to decide who to believe, and acquitted the appellant. In respect to Counts 3 and 4, the judge did not accept the testimony of M.B. and acquitted the appellant. In respect to Counts 5 and 6, the judge accepted the evidence of the appellant and rejected the evidence of M.B., and accordingly acquitted the appellant. [4] On Count 1, the judge found the complainant “is a credible witness in relation to the circumstances of the sexual assault”, rejected the appellant’s denial, and found his testimony did not raise a reasonable doubt. [5] The judge’s rejection of the appellant’s evidence rested on two prongs: 1. he rejected the appellant’s evidence that he did not go into a room in which the sexual assault was alleged to have occurred; and 2. he rejected the appellant’s evidence that he did not engage in sexual intercourse with the complainant after late 2015. [6] On the second of these prongs, the judge said the appellant’s denial that he had engaged in sexual intercourse with the complainant after late 2015 was inconsistent with text messages the appellant had sent to the complainant on February 16, 2016, two months prior to the alleged offence. He explained the “inconsistency” by quoting portions of the text messages and then said: “This exchange of text messages is inconsistent with [the appellant’s] testimony that he ceased having sexual relations with [M.B.] in late 2015. I do not accept his testimony on this issue.” The judge also referred to other text messages sent by the complainant on April 13, 2016 and by the appellant on April 15, 2016, which the judge said were consistent with the evidence of the complainant that the sexual assault occurred in mid April 2016. [7] After conviction and before sentencing, the appellant applied to re‑open the conviction phase of the trial, to allow him to cross‑examine the complainant on statements made in her victim impact statement that he said were inconsistent with evidence she proffered at trial. The judge dismissed that application on the basis that the fourth criteria in Palmer v. The Queen , [1980] 1 S.C.R. 759 was not met. [8] On appeal, the appellant contends the judge made a palpable and overriding error of mixed fact and law in determining that the text messages between the complainant and the appellant were corroborative of the complainant’s testimony and inconsistent with the appellant’s testimony. He contends as well, that the judge erred in rejecting his application to re‑open. [9] The Crown disputes error in the judge’s ruling dismissing the application to re‑open, but agrees the judge made palpable and overriding errors in his interpretation of the text message evidence that he relied upon in his credibility assessments of the appellant and the complainant. [10] Applying the Housen v. Nikolaisen, (2002 SCC 3) standard of review of palpable and overriding errors, described in R. v. Steward, 2018 BCCA 76, as errors that are “obvious or plainly seen, and which altered or may well have altered the result”, I agree that fatal errors in respect to the text message evidence are established, and as they underpinned the judge’s assessment of the critical issue of credibility, the assessments of credibility in respect to Count 1 are fatally flawed. [11] I will restrict myself to two errors in respect to the text message evidence. First, the judge said that the text messages in February 2017 were inconsistent with the evidence of the appellant that he last had sexual relations with M.B. in late 2015, and relied on that “inconsistency” in assessing the appellant’s credibility. [12] On a plain reading of the February text messages, they simply are not inconsistent with the appellant’s evidence as to when the parties last had sexual relations, contrary to the judge’s finding of inconsistency that was one of the bases given for finding the appellant lacked credibility. [13] Second, the judge erred in finding that the April 15, 2016 text messages corroborated the complainant’s testimony of the timing of the sexual assault. Examination of those text messages shows that they were not sent on April 15, 2016, as the judge said, but later in April, and were different in nature than the judge described. That erroneous interpretation of those text messages formed part of the judge’s reasoning in assessing the complainant’s credibility. [14] I consider that both errors fatally undermine the verdict because they are material to the assessments of credibility. I conclude that these are not harmless errors and the verdict cannot be saved by the curative proviso in s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C‑46 . [15] I would set aside the conviction and order a new trial. [16] FITCH J.A. : I agree. [17] BUTLER J.A. : I agree. [18] SAUNDERS J.A. : The conviction is set aside and a new trial is ordered. [Submissions by counsel re: bail conditions] “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Singh v. Singh, 2020 BCCA 21 Date: 20200123 Docket: CA45627 Between: Sawaranjit Sarah Singh Respondent (Claimant) And Ranjit Singh also known as Ranjit Bopharai Appellant (Respondent) And Regency Park Capital Corporation, Regency Park Capital 2007, Koocanusa Projects Pvt. Ltd., Regency Park Capital 2011, Inc., and Regency Park Capital 2012 Inc. Respondents (Respondents) And Harkiran Raj Singh also known as Raj Singh Respondent (Respondent by Counterclaim) Before: The Honourable Madam Justice Smith The Honourable Madam Justice Garson The Honourable Madam Justice Fisher On appeal from:  An order of the Supreme Court of British Columbia, dated September 4, 2018 ( Singh v. Singh , 2018 BCSC 1513, Vancouver Docket E142797). Counsel for the Appellant: G.K. Thomas Counsel for the Respondent Sawaranjit Sarah Singh: D.E. Labun Place and Date of Hearing: Vancouver, British Columbia October 28–29, 2019 Place and Date of Judgment: Vancouver, British Columbia January 23, 2020 Written Reasons by: The Honourable Madam Justice Garson Concurred in by: The Honourable Madam Justice D. Smith The Honourable Madam Justice Fisher Table of Contents Paragraph Range I. INTRODUCTION [1] - [4] II. HISTORY OF THE MARRIAGE [5] - [8] III. REASONS FOR JUDGMENT [9] - [157] A. Trial Judge’s Conclusion as to Credibility and Reliability [9] - [12] B. Reasons for Judgment on Division of Property, Support, and Costs [13] - [157] IV. GROUNDS OF APPEAL [21] - [25] V. OWNERSHIP AND VALUE OF THE CONTESTED PROPERTIES [26] - [105] A. Standard of Review [26] - [27] B. India Properties [28] - [74] 1. Sector 35A – $448,233 [38] - [49] a) The Evidence at Trial [38] - [41] b) The Judgment Below and the Arguments on Appeal [42] - [44] c) The Fresh Evidence [45] - [46] d) Conclusion on Sector 35A [47] - [49] 2. Sector 38C and Sector 8 [50] - [63] a) The Evidence at Trial [50] - [57] b) The Judgment Below and the Arguments on Appeal [58] - [60] c) The Fresh Evidence [61] - [61] d) Conclusion [62] - [63] 3. F44 Uppal’s Marble Complex – $434,489 [64] - [74] a) The Evidence at Trial [64] - [68] b) The Judgment Below and the Arguments on Appeal [69] - [71] c) The Fresh Evidence [72] - [72] d) Conclusion [73] - [74] C. Palm Springs Vacation Property [75] - [82] 1. The Evidence at Trial [75] - [77] 2. The Judgment Below and the Arguments on Appeal [78] - [81] 3. Conclusion [82] - [82] D. Jasjit Khurana Investment [83] - [87] 1. The Evidence at Trial [83] - [83] 2. The Judgment Below and the Arguments on Appeal [84] - [86] 3. Conclusion [87] - [87] E. Varinder Kumar and Surinder Gill Loans [88] - [92] 1. The Evidence at Trial [88] - [88] 2. The Judgment Below and the Arguments on Appeal [89] - [91] 3. Conclusion [92] - [92] F. Koocanusa Projects [93] - [103] 1. The Evidence at Trial [94] - [99] 2. The Judgment Below and the Arguments on Appeal [100] - [102] 3. Conclusion [103] - [103] G. Summary of Conclusions [104] - [104] H. Allocation of Properties, In Specie [105] - [105] VI. SECTION 95 – UNEQUAL DIVISION ORDER [106] - [147] A. Overview [106] - [111] B. The Judgment Below and the Arguments on Appeal [112] - [124] C. Standard of Review [125] - [126] D. Discussion [127] - [147] VII. MISCELLANEOUS GROUNDS OF APPEAL [148] - [148] VIII. SPECIAL COSTS [149] - [154] IX. DISPOSITION [155] - [157] Summary: The appellant appeals from several orders in this family law dispute, arguing that the trial judge made factual errors regarding ownership and valuation of assets, erred in fact and in law in reapportioning $250,000 to the respondent, and erred in his exercise of discretion in awarding special costs to the respondent. Held: Appeal allowed in part. The trial judge made a palpable and overriding error in apportioning the value of the property known as Sector 35A to the appellant where the appellant does not own it and never has. The appellant has not demonstrated any other errors with respect to the remaining assets, the reapportionment, or the award of special costs. Reasons for Judgment of the Honourable Madam Justice Garson: I. Introduction [1] Ranjit Singh (“Mr. Singh”) appeals from the order pronounced by Justice Masuhara in this high conflict family case. Justice Masuhara’s reasons for judgment can be found at 2018 BCSC 1513. On appeal, the issues concern the division of property between Mr. Singh and his former spouse, Sawaranjit Sarah Singh (“Ms. Singh”). Mr. Singh states 13 grounds of appeal. In broad compass, he says the judge overvalued certain assets, erred in awarding certain assets in specie to Mr. Singh, erred in awarding Ms. Singh $250,000 under s. 95 of the Family Law Act, S.B.C. 2011, c. 25 (“ FLA ”), to compensate for significant unfairness to her, and erred in awarding her special costs. [2] In reply, Ms. Singh contends that Mr. Singh has not identified any reviewable error and simply attempts to retry the case. [3] The trial lasted 27 days. It was complicated by Mr. Singh’s inadequate and misleading disclosure of his assets. The judge found him to be an unreliable and untruthful witness. [4] For the reasons that follow, I would dismiss the appeal except with respect to the value ascribed to the property described as Sector 35A, located in India. II. History of the Marriage [5] I shall briefly outline the main events in the parties’ marriage. [6] Mr. and Ms. Singh married in India in 1977. They immigrated to Canada in 1979. There are two adult children of the marriage, a daughter age 36 at the time of trial and a son age 32. After 37 years of marriage the parties separated in 2014. Mr. Singh was 65 years of age at the time of trial and Ms. Singh 62. [7] Ms. Singh is a registered nurse. She worked as a nurse throughout most of the marriage. Mr. Singh was a dental technician at the beginning of the marriage but he went on to become a businessman. [8] By the time of their separation, the parties, or Mr. Singh, owned property in British Columbia, Arizona, and India (the “India Properties”). The trial judge also found that Mr. Singh held an interest in a house in Palm Springs. The trial mainly concerned the conflicting claims to these assets, their values, and, in some cases, the legal ownership, as well as some loans. III. Reasons for Judgment A. Trial Judge’s Conclusion as to Credibility and Reliability [9] In the introduction to his reasons for judgment, the trial judge summarized his views about the credibility and reliability of the parties as witnesses. He found Mr. Singh to be an unreliable and untrustworthy witness. He found Ms. Singh to be a careful and reliable witness. At paras. 20–22 he said: [20]      Ms. Singh generally strove to be careful in the testimony that she gave. Though there are questions that arose regarding certain transactions such as her lack of understanding of monies she received from Columbian Recycling and evidence that Ms. Singh was somewhat disruptive when permitted to visit the Super 8 Motel; Ms. Singh was not involved in the financial side of the family and was so because Mr. Singh wanted it that way and she was and has been under significant stress. I sensed that Ms. Singh was submissive in the relationship and deferred to Mr. Singh during the marriage. On the whole and in the context of a stressful family dispute I found her evidence generally reasonable. [21]      On the other hand, Mr. Singh’s conduct and testimony was very troubling. One difficulty that I had with Mr. Singh was his inability to adequately formulate questions for witnesses he was examining. Mr. Singh has no difficulties in understanding English but seemed to have significant difficulties in finding the words to formulate questions. At trial, he was requested continuously to ask a witness questions and not to make statements as his statements did not constitute evidence. He was told numerous times not to provide answers to his witness while they were being cross examined. He gave estimates as to the length of his examination of witnesses but was unable to meet them. Even after being warned not to refer to without prejudice settlement proposals, Mr. Singh continued to attempt to do so. [22]      I detail later the serious concerns that I developed increasingly over the course of the trial with Mr. Singh’s credibility and reliability. Any concerns I have with Ms. Singh’s testimony pale in comparison to that of Mr. Singh. [10] At paras. 85–116 the trial judge enumerated his findings that Mr. Singh breached court orders, made untruthful statements in affidavits, gave inconsistent and conflicting testimony, falsely swore his Form F8 Financial Statement, testified that amounts up to $10,000 were not material in terms of his disclosure, gave false testimony in court, disregarded the judge’s instructions not to discuss his testimony while under cross-examination, admitted that he did not read affidavits he swore, admitted he “doctored a document” in order to mislead the court, forged Ms. Singh’s signature, breached a restraining order, and commenced a bankruptcy proceeding in Arizona for an improper purpose. [11] The judge concluded in the face of all this that he could place little if any reliance upon Mr. Singh’s testimony. [12] To illustrate the nature of Mr. Singh’s testimony, I excerpt some of the trial judge’s findings: [85]      The evidence is clear that Mr. Singh, in violation of an order prohibiting him from doing so transferred funds from the account of RPC 2011 [Regency Park Capital 2011 Inc.] into personal accounts. Mr. Singh was found in contempt by the Arizona Superior Court for his actions. Mr. Singh testified that the judge indicated that the judge [ sic ] had made a mistake in issuing the contempt order, however, he provided no independent evidence to support this [86]      Mr. Singh also admitted that statements he made under oath in various affidavits were not true. He blamed his daughter and his lawyer for putting things into the affidavit which were wrong and which he did not read or understand. He stated that he was mentally suffering and under financial hardship when he signed the affidavits. I do not accept any of these excuses. [91]      Another example was Mr. Singh resiling from his sworn statement in affidavit #5 wherein he stated:  “I have never sent any money to India, if anything I have only every [sic] brought monies from India to Canada. He stated at trial that the statement was untrue and stated he had not read the affidavit. This was a repeated excuse in the trial. [92]      Also concerning was Mr. Singh’s testimony regarding the monies he was owed. At one point he stated that the only person who owed him money was Mr. Saini. He then spoke of someone else owing him $50,000. Mr. Kumar owed him money. When reminded that he had earlier testified that only Mr. Saini owed him money, he said that he was mistaken and was positive that only Mr. Saini and Mr. Kumar were the only persons who owed him money. [93]      Also concerning was Mr. Singh’s testimony that all of the monies he owes people and what they owe him, as well as monies paid or taken, is all captured in his mind and not documented. More surprisingly was his testimony that he did not consider amounts from $5,000 to $10,000 to be material in terms of … the amount people owed him and I presume what he owed to others. He also made an incredible statement that though he regularly paid Mr. Samra $2,000 on monies borrowed, he did not know how much he owed Mr. Samra. He stated that if he needed to know the amount owed he would just ask Mr. Samra. At one point during cross examination he stated that no one owed him money other than Mr. Saini, and shortly afterwards said that other people did. My sense of this testimony was to provide him flexibility in whatever statements he made which were not quite accurate. [96]      On Day 19 of the trial, Mr. Singh made the astonishing statement … under cross examination that he never read any of the affidavits in this proceeding, except maybe for some 2 or 3 pages. [97]      Mr. Singh also admitted that he had doctored a document, he scratched out Mr. Saini’s name on a bank document. He did so to mislead the court and Ms. Singh into believing the account was his. [98]      I also note that documents produced by Mr. Singh regarding monies advanced by Bikram Gill have signatures of Mr. Gill on them which Mr. Singh acknowledges are quite different between the documents. [99]      On Day 16 of the trial, Mr. Singh admitted to forging Ms. Singh’s signature on banking documents. [102]    On January 16, 2018, Mr. Singh agreed that what he said in an affidavit sworn in the Arizona State court proceedings on September 18, 2015, Exhibit 52, was wrong. … I did not find his testimony persuasive. [105]    … This again demonstrated the elasticity in Mr. Singh’s thinking and recall. [106]    I also take note of Mr. Singh’s admission, that he initiated the bankruptcy proceeding in Arizona because of the Arizona State Court’s order in the derivative action requiring him to pay Ms. Singh’s for her legal bills. [107]    On January 17, 2018, Mr. Singh admitted that his sworn Form F8 financial statement made June 4, 2015 wherein he stated that RPC 2007 owed RPC 2011 $1.1 million USD under a promissory note was not true. He admitted that no monies had ever been provided to RPC 2007. [114]    Mr. Singh also admitted to lying about having pre‑signed cheques for a credit card payment when he was confronted by the cheque which had his signature stamp affixed to it. B. Reasons for Judgment on Division of Property, Support, and Costs [13] As I have said, the calculation and apportionment of family property was complicated by the unreliability of Mr. Singh’s testimony. The parties disagreed about the existence, ownership, and value of assets, particularly with respect to the India Properties. [14] The judge determined that Ms. Singh had made significant financial and non‑pecuniary contributions to the family and its investments and therefore rejected Mr. Singh’s contention that it was solely his finances that led to the acquisition of the family assets and wealth. He rejected Mr. Singh’s submission that some of the family wealth was derived from an inheritance to Mr. Singh from his father. The judge also found that Mr. Singh kept Ms. Singh “in the dark” with respect to the family’s financial dealings. [15] The judge found it troubling that Mr. Singh petitioned Regency Park Capital 2011 Inc. (“RPC 2011”), an Arizona company jointly owned by the parties, into bankruptcy specifically to avoid paying Ms. Singh’s legal bills pursuant to the order of an Arizona court that he do so. [16] Given the findings about Mr. Singh’s credibility, the judge decided that the evidence justified his making findings of fact adverse to Mr. Singh with respect to the value of some of the family property. The trial judge also rejected Mr. Singh’s position that much of the impugned property should be excluded from the calculation either because it was not a family asset or because it was an inheritance (the latter issue is not under appeal). In addition, the judge found that Mr. Singh’s conduct engaged the significant unfairness concerns under s. 95 of the FLA , which permits the court to order an unequal division of family property, and awarded the respondent an adjustment of $250,000 as a result. [17] Turning to the issue of spousal support, the judge found that Ms. Singh was entitled to support on the basis of both compensation and need. The factors relied upon included the long duration of the marriage, her role as a caregiver of the children, her role as an employee of the family businesses, and her chronic injuries which limited her future earning capability. [18] The judge additionally decided Ms. Singh was entitled to lump sum spousal support. He held “[t]here is little prospect that Mr. Singh can be relied upon to make periodic regular payments based on his conduct”: at para. 174. The award for spousal support is not under appeal. [19] Finally, the judge awarded special costs against Mr. Singh because he found that Mr. Singh’s conduct “demonstrated a clear disregard for the administration of justice”: at para. 176. [20] At paras. 155–157, the judge made the following division of assets: [155]    In my view, having considered the evidence, the asymmetry of knowledge in the business affairs of the family held by Mr. Singh, the presumption favouring equal division of family property and debt, the test of “significant unfairness” to justify departing from equal division; the adverse inference that I have made against Mr. Singh, and that to effect division, property and debt can be specifically allocated to a party i.e., through compensation, the following division with adjustments noted below the chart is determined as appropriate: Item Amount Ms. Singh Mr. Singh RPC 2011 $2,087,395 $1,043,697 $1,043,647 RPCC $942,972 $942,973 RPC 2012 $0 RPC 2007 $0 Koocanusa Projects $100,000 $100,000 Proceeds from sale of family residence in Surrey $822,251 $822,251 Timeshares Parties to pick alternatively Mr. Singh has first pick India Properties Section 8 $321,558 $321,558 Section 38 $155,907 $155,907 Section 35A $448,233 $448,233 F44 Uppal’s Marble Complex $434,489 $434,489 Palm Springs’ vacation property $78,591 $78,591 Jasjit Khurana “investment” $96,500 $96,500 Varinder Kumar Loan $38,976 $38,976 Surinder Gill Loan $48,721 $48,721 1988 Mercedes 560 SL $27,400 $27,400 2003 Mercedes Truck 500ML $1,000 $1,000 2001 BMW Z3 $1,000 Municipal Pension $489,600 $244,800 $244,800 CPP/OAS to be divided per plan Jewellery divided - - TOTAL: $3,054,722 $3,039,822 [156]    To effect the distribution, RPC 2011 should be liquidated in the manner authorized by the Bankruptcy Court. Net proceeds are to be divided as specified in these Reasons including the adjustments which follow. Ms. Singh’s municipal pension plan is to be divided pursuant to the terms of her plan. Mr. Singh is to make any elections regarding his entitlement in the pension, he is to do so pursuant to the terms of the plan. [157]    Adjustments from the proceeds from the liquidation of RPC 2011 are: (a) Mrs. Singh is to receive compensation of $68,416.50 to equalize the use of RRSPs by the parties; (b) Mrs. Singh is entitled to $43,157.98 as preservation debt under s. 86(b) of the FLA ; (c) Mr. Singh is to be solely responsible for the Hittrich legal bill of $59,552.76; (d) Mr. Singh is to pay to Mrs. Singh a lump sum equal to retroactive and prospective spousal support calculated as per my reasons under spousal support below; (e) Taking into consideration: Mr. Singh’s actions and motivation to file for Chapter 11 protection and the significant related expenses to RPC 2011, his actions engage the significantly unfair consideration under s. 95 of FLA ; unspecified properties and funds in India in which I find Mr. Singh to have an interest; and equalization of division for Mr. Singh in family property; an overall adjustment for these entitles Mrs. Singh to a further $250,000; (f) With respect to Mrs. Singh’s claim for $125,000 under s. 213(2)(d) of the FLA , the basis for this amount was not fully developed. To the extent these costs were incurred in the derivative action in Arizona, such costs may be recovered in the proceeding once the stay is removed. In this proceeding, the maximum penalty under s. 213 of the FLA appears to be $5,000 and is awarded to Mrs. Singh; and (g) Costs for Mrs. Singh as awarded below. IV. Grounds of Appeal [21] The grounds of appeal as set out in Mr. Singh’s factum are convoluted and repetitive. I would restate the appellant’s grounds of appeal in the following way, which I believe captures Mr. Singh’s arguments on appeal. [22] First, Mr. Singh says that the judge made palpable and overriding errors in his valuation of certain assets. He asserts that there was no evidence to support the values attributed by the judge to the following assets: a) India Properties b) Palm springs vacation property c) Khurana Investment d) Koocanusa projects e) Kumar loan f) Gill loan A sub‑issue to this ground of appeal is the contention that the judge allocated all of what I would call the “risky” assets to Mr. Singh in specie , further decreasing the value of the assets awarded to Mr. Singh. In saying risky, I refer to the litigation concerning some of the India Properties and the somewhat uncertain state of the loans. Also related to this ground of appeal is Mr. Singh’s position that the judge improperly treated some assets as family property, although he did not press this point in oral argument. [23] Second, Mr. Singh says the judge made palpable and overriding errors of fact and an error of law in awarding $250,000 to Ms. Singh pursuant to s. 95 of the FLA . He says the basis for making the award was not supported by the evidence (based on “unspecified properties” in India) or was wrong in law (based on improper considerations, including the unspecified properties and Mr. Singh’s alleged misconduct in the US Chapter 11 bankruptcy proceedings). [24] Third, Mr. Singh says the judge erred in awarding special costs of the proceeding, including the 27‑day trial, to Ms. Singh. Alternatively, he says that the judge should have exercised his discretion to award special costs for only part of the proceeding. Mr. Singh also says that if this Court allows the appeal, even in part, the award of costs at the trial should be reviewed and adjusted accordingly. Further, he says that the basis of the order for special costs was the same conduct for which he was penalized by the s. 95 order, “effectively imposing upon [him] two levels of special costs.” [25] There are some additional miscellaneous grounds of appeal that I shall mention below. V. Ownership and Value of the Contested Properties A. Standard of Review [26] Mr. Singh’s arguments regarding the value of the contested properties are based on alleged errors of fact. As noted in Parton v. Parton , 2018 BCCA 273 at para. 32, “[t]he standard of review for findings of fact is highly deferential. An appellate court will interfere with a trial judge’s factual conclusions only if there is an obvious (palpable) and material (overriding) error: Housen v. Nikolaisen , 2002 SCC 33 (S.C.C.) at paras. 5, 6, 8, 10.” [27] As mentioned above, Mr. Singh also raised issues regarding the judge’s finding that the contested properties are family property, but he did not press this point in oral argument. His arguments in this regard appear to go to the judge’s findings of fact or to the application of the law to those facts. He does not raise any extricable questions of law and, accordingly, a deferential standard of review is also required: Xu v. Chu , 2019 BCCA 414 at para. 27. B. India Properties [28] The India Properties include four properties identified as: Sector 8, Sector 38, Sector 35A, and F44 Uppal’s Marble Complex (“F44”). [29] At trial, Ms. Singh attributed the following values to the India Properties, as set out at para. 126 of the judge’s reasons: a) Sector 8: $321,558.60 b) Sector 38: $155,907.20 c) Sector 35A: $448,233.20 d) F44: $438,489.00 [30] The judge accepted Ms. Singh’s valuation of the India Properties at para. 141 and as set out above at para. 155 of the judge’s reasons. [31] Mr. Singh’s position at trial was that the India Properties should be excluded property under s. 85(1)(b) (property acquired by inheritance) and (g) (property derived from the disposition of property acquired by inheritance) of the FLA . He testified that his father died in 1990 leaving him $1 million and that he invested one half of this inheritance in the India Properties. [32] At para. 134 the judge found that Mr. Singh has money and property in India which he had not disclosed. The judge rejected Mr. Singh’s testimony about the inheritance and, accordingly, found that the India Properties were not excluded property: at paras. 138–141. [33] The judge allocated all of the India Properties to Mr. Singh. The formal order in that respect is as follows: 1(d) The parties’ interest in properties in India are apportioned 100% to Ranjit Singh. [34] In a subsequent order pronounced February 11, 2019, the judge ordered that: paragraph 1 (d) of the Final Order is stayed pending determination of the …appeal. However the Respondent is to provide a full written report respecting the status of his litigation regarding the properties in India within 14 days of pronouncement of this order. [35] Mr. Singh applied to this Court in September of this year for admission of new evidence in the form of affidavits updating the status of the litigation regarding the India Properties. I would admit this fresh evidence as Mr. Singh was required by Justice Masuhara to produce this information. It proved relevant and helpful in determining the appeal related to the valuation of the India Properties. [36] On appeal, Mr. Singh says the judge erred as to the value he attributed to these properties and erred by awarding these properties to Mr. Singh in specie , thereby failing to divide the assets equally. He says there was no cogent evidence as to the value of the India properties and that neither party holds title to F44. He contends that the India properties are in litigation that may take years to resolve, further reducing their value. In her factum, Ms. Singh says that the judge did the best he could with Mr. Singh’s inadequate disclosure as to the value of the India Properties and the litigation relating to them. [37] I now turn to the evidence concerning the four India Properties in order to determine if the judge erred with respect to the valuations of each and his finding that they are family property. In doing so, I shall refer in part to the new evidence related to the litigation in India. 1. Sector 35A a) The Evidence at Trial [38] A deposit receipt adduced at trial shows that Mr. Saini (a sometime friend and business associate of Mr. Singh) and Mr. Singh each paid a deposit of 55 lakhs (approximately $100,000 CAD) for the Sector 35A property. The Agreement to Sell indicates the final purchase price of the house to be 4 crore and 6 lakhs (approximately $846,400 CAD) and that the Saini family and Mr. Singh each purchased a 50% share, leaving Mr. Singh’s interest at $448,233 (the amount at which the judge valued his interest). [39] In her testimony, Ms. Singh acknowledged that the ownership of Sector 35A was in dispute. She testified that because the deal was not completed, she did not think her husband’s name was on the title. [40] Mr. Saini testified that he and Mr. Singh “bought” the property in 2008. The purchase price was 4 crore 60 lakhs (approximately $846,400). However, in confusing testimony, he suggested that the purchase did not go through although a deposit was paid. In addition, he suggested that Mr. Singh paid $10,000 CAD to the daughter‑in‑law of the vendor, Mr. Bawa, in relation to this sale. Finally, he suggested that Mr. Singh had sold his interest to a third party. [41] Mr. Singh testified that the Sector 35A property was bought with inheritance money. In addition, in his closing, he stated that Sector 35A “is only deposit”. He further stated that the agreement to purchase did not close because Mr. Saini did not have the required funds. b) The Judgment Below and the Arguments on Appeal [42] As noted, the trial judge rejected Mr. Singh’s assertion that an inheritance was used to purchase the property: at para. 138. The judge found that there was clear value in the India Properties given Mr. Singh’s active engagement in litigation. The trial judge concluded that an adverse inference was warranted, holding that Mr. Singh had an interest in the properties and at the values submitted by Ms. Singh: at para. 141. Accordingly, the trial judge determined that the Sector 35A property was family property and apportioned a value of $448,233 to Mr. Singh in specie : at para. 155. [43] Mr. Singh argues on appeal that this determination was incorrect because the purchase of the property was never completed and the property is the subject of ongoing litigation in India. [44] Ms. Singh argues that, because the financial information was exclusively in the hands of Mr. Singh, the trial judge was correct to make an inference as to the value of the property. Ms. Singh further asserts that Mr. Singh would not engage in years of litigation in India to obtain an asset with an option value worth anything less than the contract price. She argues that the contract price of $448,233 was conservative. c) The Fresh Evidence [45] The Indian court judgment filed in relation to Sector 35A is illegible in parts, but it appears that Mr. Saini and his sons sued Mr. Bawa for specific performance of the contract of sale, or for damages. Mr. Saini also named Mr. Singh as a defendant in the suit as Mr. Saini sought, in the alternative, recovery of the amount of his deposit from Mr. Singh. The Indian judge rejected all of the plaintiff’s claims, finding that both Mr. Saini and Mr. Singh were responsible for frustrating the contract, not Mr. Bawa. The judge found that both Mr. Saini and Mr. Singh paid a deposit of 55 lakhs (approximately $100,000 CAD), which was forfeited. [46] Mr. Singh has appealed this Indian judgment. d) Conclusion on Sector 35A [47] In my view, the testimony of the parties and Mr. Saini, the documents tendered at trial, and the fresh evidence are consistent in showing that Mr. Singh does not have legal title to Sector 35A. It is clear that the purchase was never completed and Mr. Singh is not a 50% owner of the property. His interest is in a claim to specific performance or return of his deposit, which claim the court in India has rejected. Although Mr. Singh intends to pursue an appeal of this decision, the outcome of such an appeal is highly uncertain. [48] In my view, the judge made a palpable and overriding error in attributing the value of this property to Mr. Singh in circumstances where he does not own it and never has. The trial judge used the fact that he was engaged in ongoing litigation to support a conclusion that there was value in the India Properties, including Sector 35A. Ms. Singh echoes this argument on appeal. I conclude, however, that Mr. Singh’s prospects of receiving an interest in Sector 35A are too uncertain to ascribe any value to it. In my view, the judge made a palpable and overriding error in ascribing a value to this property on the basis that Mr. Singh had legal title to the property. [49] I note that no other basis was argued for this ground of appeal and, as such, I have not considered potential issues related to conflict of laws or the interpretation of s. 84 of the FLA . The circumstances regarding Sector 35A are sufficiently uncertain that I would accede to this ground of appeal on that basis alone. 2. Sector 38C and Sector 8 a) The Evidence at Trial [50] The record at trial contained two Agreements to Sell, one for a 50% share of Sector 38 and one for a 50% share of Sector 8. Both list Mr. Singh as the seller and Mr. Saini as the purchaser. [51] The Agreement to Sell for 50% of Sector 38 is dated May 9, 2012, and indicates the property was valued at 1 crore (approximately $184,000). A Receipt section indicates that Mr. Singh had already received a deposit of 20 lakhs. [52] The Agreement to Sell for 50% of Sector 8 is dated May 9, 2012, and indicates the property was valued at 2 crore 50 lakhs. A Receipt section indicates that Mr. Singh had already received a deposit of 50 lakhs. [53] A document dated in 2012 indicates that Mr. Saini sued Mr. Singh for specific performance of the contract related to the sale of Sector 8, or, in the alternative, 1 crore in damages. A letter from HDB Financial Services to Mr. Saini dated April 8, 2013, indicates that Mr. Saini at that point already owned 50% of Sector 8 and was to purchase the rest. What appears to be a government document dated February or May of 2013 indicates that Mr. Singh was entitled to receive consideration for the properties, 2 crore 50 lakhs for Sector 8 and 1 crore for Sector 38, “subject to deduction of tax at source.” [54] What appears to be a court document summarizes the arguments in a suit for specific performance filed by Mr. Saini against Mr. Singh related to Sector 38, indicating that a dispute arose over who was to pay money to the estate office to clear the title. This document appears to be an interlocutory decision granting an injunction enjoining Mr. Singh from alienating his share of the property to anyone other than Mr. Saini. [55] The testimony at trial about these two properties is difficult to follow. It would appear from Mr. Saini’s testimony that Mr. Singh and Mr. Saini both initially bought 50% of the properties. Mr. Saini attempted to purchase Mr. Singh’s share, and put a deposit down on each, but the deal was frustrated by a dispute over a change to the tax rules in India. It would appear this dispute was over who would pay taxes or for a certificate of no objection to clear the title and complete the deal. [56] In his testimony, Mr. Singh indicated a willingness to close the deal on Sector 8 but a desire to continue litigating 38. This may be because he seems to believe Sector 38 is worth more than the price indicated in the Agreement to Sell. [57] There was some indication that a settlement between Mr. Saini and Mr. Singh was arrived at during the present case. There was also an indication that Mr. Saini was willing to pay 50% of the outstanding dues owed to the estate office. b) The Judgment Below and the Arguments on Appeal [58] The trial judge assigned a value of $321,558 to Sector 8 and $155,907 to Sector 38 to Mr. Singh. These values are based on the purchase price in the Agreements to Sell less the deposit already paid (2 crore for Sector 8 and 80 lakhs for Sector 38). [59] Mr. Singh argues on appeal that the evidence regarding these properties was incomplete “by reason of the manner of the answers and numerous inaudible responses”. Mr. Singh notes the litigation is ongoing and argues it was not clear how the values were arrived at owing to the status of the India litigation. Mr. Singh then states the value was not premised upon a valuation but the purchase and sale price from 2012. [60] Ms. Singh argues that the value of these properties was clear and that Mr. Saini had testified he was ready and willing to pay Mr. Singh. Ms. Singh notes that Mr. Singh testified that Sector 38 was worth twice as much as the contract price. Ms. Singh argues that the litigation could result in payment to Mr. Singh or Mr. Singh could continue to hold his interest in the properties, but either way the evidence supports a value of no less than what Mr. Saini was willing to pay. c) The Fresh Evidence [61] The fresh evidence does not contain any new information regarding these properties, aside from Affidavit #1 of Mr. Singh, as well as the attached lawyer’s statement, indicating that litigation with regard to these properties is ongoing. d) Conclusion [62] The interest of Mr. Singh in these properties is much clearer than his interest in Sector 35A. Unlike Sector 35A, it is clear that Mr. Singh has title to 50% of these properties. Mr. Singh’s current ownership of these two properties does not appear to be at issue in the India litigation. Rather, the issue is whether Mr. Singh must sell his interest to Mr. Saini. In addition, the valuation arrived at by the judge by taking the Agreements to Sell from 2012 and subtracting the deposit already paid is sufficiently clear. [63] In my view, the trial judge did not err in treating Sector 8 and Sector 38 as family property. There was evidence to support the judge’s conclusion as to the values and I see no palpable and overriding error in this regard. If there is any uncertainty as to Mr. Singh’s legal interest or the properties’ values, it is entirely of his own making. 3. F44 Uppal’s Marble Complex a) The Evidence at Trial [64] The evidence includes an appraisal of F44 listing the value of the property as 2 crore 25 lakhs (approximately $414,000 CAD). This appraisal was carried out pursuant to a consent order granted by Justice Masuhara: para. 47(q). [65] There is a rental agreement between Ms. Singh and a Gurdial Singh dated April 9, 2015, for a tenancy of three years. There are a number of emails related to changing the locks on the unit and a dispute with a former servant. [66] In her testimony, Ms. Singh stated that she and Mr. Singh purchased F44. She rented it to her uncle. [67] Mr. Saini testified that the issue with the building was that the builder did not build 10% of the units for low income tenants as required by Indian law, so the builder is unable to alienate the property. [68] Mr. Singh testified that the value of F44 should be excluded because: he bought it with inheritance money, Ms. Singh encumbered the title by renting it to her uncle, he would need to sue the builders to sell it, and Ms. Singh made no contributions to the physical work on the property or the bills. He also testified he bought the property for orphans. He conceded that the property has value. b) The Judgment Below and the Arguments on Appeal [69] The trial judge valued F44 at $434,489. I note that the judge may have intended this figure to be $438,489, which is the value Ms. Singh attributed to F44, given his finding that he accepted Ms. Singh’s valuations of the India Properties. [70] Mr. Singh argues on appeal that Mr. Saini’s evidence at trial related to F44 was problematic because he was employed as an expert on Indian property law. He notes that Mr. Saini conceded that the parties did not have title to the F44 property due to an issue over building violations, but that the parties were still the legal owners. The evidence is clear that the parties are beneficial owners. [71] In response, Ms. Singh argues that Mr. Singh provided no evidence to assist the court in valuing this interest. c) The Fresh Evidence [72] In his Affidavit #1, Mr. Singh states that due to a class action neither he nor Ms. Singh “have legal or beneficial ownership of the property despite having possession of the property.” d) Conclusion [73] In my view, while the property may currently be inalienable due to the building violations, the evidence supports a finding that the parties do have beneficial title to the property. The evidence is uncontroverted that Mr. Singh, either alone or together with Ms. Singh, purchased the property, and, as Mr. Singh acknowledges, the parties remain in possession of it. Accordingly, I see no error in the judge’s treatment of F44 as family property. [74] Further, in my view, it was open to the trial judge on the available evidence to value this property in the amount of $434,489 (or $438,489). This would appear to be based on the appraisal adduced at trial. There is undoubtedly value in the property, as Mr. Singh conceded at trial. C. Palm Springs Vacation Property 1. The Evidence at Trial [75] A copy of a cheque for $59,350 made out to Rashpal Samra from Mr. Singh with the memo notation Re: Palm Springs House was adduced in evidence. [76] Ms. Singh and her son both testified that they believed Mr. Singh bought a 25% interest in a vacation home in Palm Springs. [77] Mr. Singh testified that at one point he considered purchasing this interest but decided against it. He said the cheque that he wrote with the memo “Palm Springs House” was for some other purpose as he and Mr. Samra exchanged money back and forth. Mr. Singh testified that a previous statement he had made, to the effect that he held a one‑quarter interest in the property, was incorrect. Mr. Singh also testified that he and Ms. Singh had been to the property once or twice. 2. The Judgment Below and the Arguments on Appeal [78] The trial judge noted that Mr. Singh’s testimony about the Palm Springs vacation home was unsatisfactory: at para. 109. He noted that on January 17, 2018, Mr. Singh was asked about a statement in his Affidavit #1 in which he agreed with Ms. Singh’s statement that he held a 25% interest in a Palm Springs Rancho Mirage home, registered in the names of Daljit and Guardia Samra. Mr. Singh later resiled from that statement stating there had only been talk of buying a 25% interest with an Avtar Samra. He stated that there was no discussion of a specific interest; and that despite a cheque for $59,350 provided to Rashpal Samra with the notation “Palm Springs House” on it, no interest was ever purchased. Mr. Singh could not explain why he had written “Palm Springs House” on the cheque. [79] The trial judge found that Mr. Singh holds a 25% interest in the Palm Springs vacation property: at para. 151. [80] Mr. Singh argues on appeal that there was no basis in the testimony of Ms. Singh or her son as to how they came to have the alleged knowledge as to the purchase. Mr. Singh concedes he wrote cheques for $20,000 and $59,350 to Gurdial Samra, the latter of which referenced the Palm Springs property, but these were “not to purchase an interest in the property”. Mr. Singh further submits that no valuation of the Palm Springs property was admitted into evidence. [81] Ms. Singh argues in response that when confronted with his earlier sworn statement in which he admitted that he had a 25% interest in the property, Mr. Singh denied that it was true, saying he had considered buying it, but had not done so. Ms. Singh also argues that the valuation of the property is based only on the cheque for $59,350; plus an amount equivalent to compounded interest on the original $59,350.00 investment at 3% for 9.5 years, to arrive at $78,591.28. 3. Conclusion [82] Based on Mr. Singh’s inconsistent testimony, the fact that the family had visited the house at least once or twice, and the documentary evidence of the cheque with the notation “Palm Springs House”, it was open to the trial judge on this evidence to find that the parties had purchased a 25% stake in the home initially valued at $59,350. Accordingly, I see no error in the trial judge’s finding that the parties’ interest in the Palm Springs property is family property or in the value he ascribed to it. D. Jasjit Khurana Investment 1. The Evidence at Trial [83] Ms. Singh testified that Jasjit Khurana was her son’s ex‑wife’s uncle. Ms. Singh testified that she did not know why Mr. Khurana had paid Mr. Singh $25,000. Mr. Singh testified that he had paid $96,500 to Jasjit Khurana in May of 2007 to buy half the shares in a property in Langley. 2. The Judgment Below and the Arguments on Appeal [84] The trial judge does not specifically discuss this investment, but values it at $96,500 and apportions it entirely to Mr. Singh: at para. 155. [85] Mr. Singh argues on appeal that the evidence for this debt is lacking. He argues that there was no evidence that the loan remained valid at the date of separation, and that there was no evidence to establish what happened to the funds or the investment at anytime, including the date of separation. [86] Ms. Singh argues in response that the paucity of evidence on this point is entirely the fault of Mr. Singh given his failure to make complete and timely disclosure, his tendency to give false evidence and to disclaim prior statements under oath/affirmation, and his lack of clarity or corroborating evidence regarding the status of sums borrowed and lent by him to his associates. As such, the trial judge was warranted in making the adverse inference that the outstanding loan or investment was an asset of Mr. Singh. 3. Conclusion [87] Mr. Singh admitted at trial that he had made the payment to buy property. In the absence of any evidence adduced by Mr. Singh that this loan was repaid, in my view, it was open to the trial judge to view this as an asset of Mr. Singh and to value it as he did. E. Varinder Kumar and Surinder Gill Loans 1. The Evidence at Trial [88] Although his testimony about this loan was confusing, Mr. Singh admitted that he loaned Mr. Kumar 20 lakhs (approximately $36,800 CAD) in 2012. In addition, he admitted he loaned Mr. Gill 25 lakhs (approximately $46,000 CAD) in 2013. 2. The Judgment Below and the Arguments on Appeal [89] The trial judge does not specifically discuss these loans, but valued them at $38,976 for the Varinder Kumar loan and $48,721 for the Surinder Gill loan. He apportioned them in specie to Mr. Singh: at para. 155. [90] Mr. Singh argues that while he did loan Mr. Kumar 20 lakhs in 2012, Mr. Kumar had not paid him back and he was in court with him in India trying to collect payment. Mr. Singh also argues that there was no evidence that the loan to Mr. Gill existed as of the date of separation. [91] Ms. Singh argues in response that Mr. Singh provided no evidence at trial that Mr. Kumar refused to pay or to support his testimony that he had taken Mr. Kumar to court over the money, and thus the trial judge was right to make an adverse inference against Mr. Singh. Ms. Singh also submits that the trial judge was not wrong to consider the loan to Mr. Gill as a family asset because Mr. Singh did not clarify when the loan took place. 3. Conclusion [92] Given the oral testimony of Mr. Singh, it was open to the trial judge to find that Mr. Singh made loans to Mr. Kumar and Mr. Gill and that they remained outstanding. In addition, Mr. Singh’s argument about the lack of evidence related to these loans is curious as, having admitted to lending this money, the onus was on him to evidence in some way that the loans had been repaid. As such, on this confusing evidentiary record it cannot be said the judge made a palpable and overriding error. It was within Mr. Singh’s ability to clarify the record. He chose not to do so. F. Koocanusa Projects [93] Koocanusa Projects was a corporate entity that at one point included a dental office; however, as of the trial the only assets held were four contaminated lots in Kimberly, BC. 1. The Evidence at Trial [94] In her Notice to Admit dated March 10, 2017, Ms. Singh asserts that Koocanusa holds title to the four properties, that they are contaminated, and that because of this contamination the market value of the properties was negligible. [95] In his Response to Ms. Singh’s Notice to Admit, dated March 24, 2017, Mr. Singh submitted that on one of the lots sits a warehouse that is rented to “Columbia Salvage” for $630 per month, and that the rent cheques were made out to Ms. Singh personally. Mr. Singh submitted that Ms. Singh had not disclosed this income to the courts nor had she paid property taxes: at paras. 18–19. [96] Mr. Singh denied that the lots were contaminated, stating that he had paid $40,000 to have the lots remediated and that they were 75% remediated. Mr. Singh further denied that the value of the lots was negligible, submitting that they were worth their “assessed value” and that an appraisal was pending: at para. 21. [97] An expert appraisal dated April 20, 2017, was adduced at trial. The appraiser concluded that he was not able to complete a valuation without more information about the extent of the contamination and the cleanup required. The letter notes that the properties were listed in 2010 on an “as is” basis for $27,000 and they did not sell. The appraiser opined that on non‑contaminated market basis the lots were likely worth $40,000 to $50,000 each (for a total of $160,000 to $200,000). The report also notes that a phase two environmental study would be required to properly value the lots, and this may cost at least $15,000. [98] At trial, Ms. Singh testified that she had been receiving $630 per month since July or August of 2015 from Don Chown of Columbia Recycling, which operates a facility on one of the lots. She suggested that these payments were not pursuant to any lease agreement but rather because Mr. Chown knew Mr. Singh’s character and Mr. Chown felt badly for Ms. Singh. On cross‑examination, Ms. Singh stated the property taxes on the properties had not been paid. She also stated that the money was being deposited in a personal bank account. [99] Mr. Singh testified that he had spent $40,000 to clean up the property. In closing submissions, Mr. Singh testified that Ms. Singh should have $20,000 in income attributed to her from the monthly payments, and that she should be responsible for the property taxes because she had been receiving those payments. He also stated that the properties should be valued at $100,000. 2. The Judgment Below and the Arguments on Appeal [100] The judge acknowledged Mr. Singh’s testimony that in his opinion the lots were worth $100,000 less $20,000 for rent payments made to Ms. Singh: at paras. 127(l), 143. Apparently choosing to disregard the $20,000, the trial judge attributed the full $100,000 value of Koocanusa properties to Mr. Singh: at para. 155. [101] Mr. Singh argues on appeal that there was no cogent evidence as to the value of the Koocanusa properties. Mr. Singh submits that although he opined as to the value of the properties in the court below, the evidence does not support such a conclusion. [102] Ms. Singh agrees with the facts as stated by Mr. Singh. 3. Conclusion [103] Mr. Singh is correct to note that evidence as to the value of the properties was lacking at trial. Indeed, the appraiser could not appraise the properties until an environmental assessment was carried out. However, Mr. Singh himself suggested the $100,000 valuation. He also suggested that the lots were nearly remediated in his Response to the Notice to Admit. On the record before the trial judge, it was open to him to accept Mr. Singh’s own evidence with respect to the valuation. Mr. Singh was knowledgeable about the state of his own property and its current condition. The trial judge made no palpable or overriding error in accepting Mr. Singh’s own evidence of value. G. Summary of Conclusions [104] I would not accede to any of the arguments on appeal related to these specific properties except Sector 35A. Aside from Sector 35A, I conclude that the judge rested his valuation on evidence, in most cases adduced by Mr. Singh. It was clearly in Mr. Singh’s power to adduce more certain evidence but he elected not to do so. The judge drew adverse inferences where appropriate. Aside from Sector 35A, the judge made no palpable and overriding errors in his valuation or apportionment of the properties or in his findings that these properties constituted family property. H. Allocation of Properties, In Specie [105] Mr. Singh also contends the judge erred in awarding the above properties in specie to him. The judge concluded that Ms. Singh had no control over the India Properties or the undocumented loans. This is an exercise of the judge’s discretion. There was more than sufficient evidence supporting the judge’s conclusion. I would not accede to this ground of appeal. VI. Section 95 – Unequal Division Order A. Overview [106] The next ground of appeal concerns the s. 95 order. [107] The judge adjusted the otherwise equal division of assets by allocating an additional $250,000 to Ms. Singh, pursuant to s. 95 of the FLA . He explained the basis for his doing so as follows: [157]    Adjustments from the proceeds from the liquidation of RPC 2011 are: (e) Taking into consideration: Mr. Singh’s actions and motivation to file for Chapter 11 protection and the significant related expenses to RPC 2011, his actions engage the significantly unfair consideration under s. 95 of FLA; unspecified properties and funds in India in which I find Mr. Singh to have an interest; and equalization of division for Mr. Singh in family property; an overall adjustment for these entitles Ms. Singh to a further $250,000; [108] The FLA statutory regime presumptively provides for the equal division of property, subject to certain exceptions: 81 Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6 [Pension Division] , (a) spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and (b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt. 87 Unless an agreement or order provides otherwise and except in relation to a division of family property under Part 6, (a) the value of family property must be based on its fair market value, and (b) the value of family property and family debt must be determined as of the date (i) an agreement dividing the family property and family debt is made, or (ii) of the hearing before the court respecting the division of property and family debt. [109] Section 95 is the provision that confers jurisdiction on the court to depart from the presumption of equal division: 95 (1) The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to (a) equally divide family property or family debt, or both, or (b) divide family property as required under Part 6 [Pension Division] . (2) For the purposes of subsection (1), the Supreme Court may consider one or more of the following: (a) the duration of the relationship between the spouses; (b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division] ; (c) a spouse's contribution to the career or career potential of the other spouse; (d) whether family debt was incurred in the normal course of the relationship between the spouses; (e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt; (f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends; (g) the fact that a spouse, other than a spouse acting in good faith, (i) substantially reduced the value of family property, or (ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse's interest in the property or family property to be defeated or adversely affected; (h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order; ( i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness. (3) The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal support, the objectives of spousal support under section 161 [objectives of spousal support] have not been met. [Emphasis added.] [110] On appeal, Mr. Singh submits that the trial judge erred in his application of s. 95. He submits that the evidence did not rise to the high threshold of “significant unfairness,” and that the judge erred in law by considering impermissible factors and failing to consider certain factors listed in s. 95(2) that weighed against unequal division in favour of Ms. Singh. [111] Ms. Singh argues in response that the trial judge’s $250,000 reapportionment was “modest” in the context of a body of assets worth an estimated $6.1 million. Ms. Singh submits that the trial judge did not misapply s. 95 and had compelling reasons to order the payment. B. The Judgment Below and the Arguments on Appeal [112] There are two prongs to the trial judge’s award under s. 95. First is the unfairness arising from Mr. Singh’s conduct related to the bankruptcy of RPC 2011, and second is his lack of disclosure surrounding his assets in India. In both instances, Mr. Singh’s conduct resulted in a reduction in value of assets available to Ms. Singh. [113] By way of background to the first prong, one of the assets in dispute at trial was RPC 2011, an Arizona company that owned a Super 8 Motel in Goodyear, Arizona: at para. 9. In 2015, the year following the parties’ separation, Ms. Singh initiated a derivative action in the Superior Court of Arizona seeking removal of Mr. Singh from control of RPC 2011 and alleging misappropriation of RPC 2011 assets by Mr. Singh. [114] On June 30, 2015, the Arizona Superior Court ordered, in the Arizona proceeding, that Mr. Singh and RPC 2011 pay Ms. Singh’s attorney fees: at para. 49 of the BC reasons for judgment. Mr. Singh and RPC 2011 did not pay the fees, citing insufficient funds following the payment of RPC’s legal costs and compensation payments to Mr. Singh: at para. 50. [115] On September 28, 2015, a judge of the Arizona Superior Court found Mr. Singh and RPC 2011 in contempt and ordered them to pay Ms. Singh $30,000 USD by October 2, 2015, and $20,000 USD on the 2nd of each month until they had paid the amount owed: at para. 51 of the BC reasons for judgment. RPC 2011 paid $30,000 USD to Ms. Singh’s attorneys in October 2015 and a further $20,000 USD in November 2015: at para. 52. [116] On December 1, 2015, immediately before the next $20,000 USD was due to Ms. Singh, RPC 2011 filed for Chapter 11 protection: at para. 54. Mr. Singh admitted at trial that he did so as a tactic to avoid having to pay Ms. Singh. As a result of the bankruptcy proceeding, Mr. Singh obtained a stay of proceedings of the derivative action on account of the bankruptcy. [117] As the bankruptcy unfolded it became apparent that RPC 2011 was not insolvent, and Mr. Singh had fabricated evidence of debts owed by RPC 2011. The debts were disallowed in the bankruptcy as they could not be proven. Justice Masuhara found that Mr. Singh acted in bad faith in petitioning the company into bankruptcy. He considered the unnecessary cost of the bankruptcy proceeding a factor in awarding the $250,000 reapportionment. [118] Of specific relevance to the second factor underlying the s. 95 order (the undisclosed assets), the judge said at para. 38 that “[o]ver the years Mr. Singh purchased and sold property in India.” [119] The judge also explained the basis for his drawing adverse inferences about Mr. Singh’s testimony concerning undisclosed India Properties. He wrote: [83]      … Disclosure was an issue. ... His list of documents was incomplete. Various unspecified properties in India in which Mr. Singh has [a]n interest, not previously disclosed were mentioned by him at trial. [116]    The foregoing gives a flavour of Mr. Singh’s flawed recall and mendacities in this case. Counsel for Ms. Singh covered many in their closing submissions. Mr. Singh does not respect court orders and does not value statements that he makes under oath or affirmation or otherwise. He told untruths to the court, admitted he had lied directly to the court, he admitted he altered a document, forged signatures and generally displayed an elastic and flexible approach to his evidence. Unfortunately, he is neither reliable nor credible. I place little weight upon his evidence. Adverse inferences and findings based on evidence are justified in this case. [120] Later the judge repeated his finding about undisclosed property in India: [134]    … I also find based on the evidence that Mr. Singh has funds and property in India which have not been disclosed. [121] As to the unreliable nature of his testimony, the judge found at para. 91 that Mr. Singh resiled from his sworn affidavit, wherein he stated: “I have never sent any money to India, if anything I have only every [sic] brought monies from India to Canada.” Later he said that statement was untrue and stated he had not read the affidavit. This was a repeated excuse in the trial”. At para. 104 the judge found he had not abided by a court order, and then said this about the India transactions: [110]    On January 17, 2018, he again resiled from his statement in an affidavit, where he stated that the value of a farm property he sold in India for $600,000. He testified in court that the property was sold for $200,000. [111]    I also note the curious evidence of Mr. Singh, where he spoke of having adopted two males from India to bring them to Canada. He stated they were 27 years and 30 years old. He could only recall the name of one. He paid the legal fees for their immigration to Canada. This apparently enabled Mr. Singh to transfer $100,000 through each to Canada. Mr. Singh also did this with the son of Mr. Saini. It seems Mr. Singh was involved in transactions called “Hawala” in Punjabi, a method for transferring money out of India to avoid Indian government rules and detection as described by Raj Singh. [112]    I also note his strange evidence of having sent monies to India for legal services. When asked if he had a receipt, he stated that lawyers do not issue receipts in India and that he had no documentation to show any communication from his lawyer regarding the legal work requested. [122] On appeal, Mr. Singh says that the evidence does not meet the high standard required for an order under s. 95, and, moreover, that the judge erred in law in his consideration of the factors on which he relied to make the s. 95 order. Mr. Singh acknowledges that the judge must have based his award on s. 95(2)(i), but says that the two factors the judge relied upon to ground his award were not permissible factors under s. 95(2)(i). Further, he says the judge failed to recognize that weighing against a s. 95 adjustment are the duration of the relationship (37 years) and Mr. Singh’s efforts post‑separation to increase the value of RPC 2011. [123] Mr. Singh submits that the judge failed to explain in detail his rationale for making the award. He says that to the extent the award is based on undisclosed unspecified assets, as was the case in Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.), the judge erred in law because there was a wholly insufficient evidentiary basis to reach the conclusion that he owned other undisclosed properties in India: relying on Wu v. Sun , 2011 BCCA 239. In other words, Mr. Singh says drawing adverse inferences against him is not a substitute for evidence about specific assets: Wu at para. 41 citing M.P.P. v. C.M.P. , 2005 BCSC 1014. [124] Ms. Singh says the unequal division was justified. She contends that the inference that Mr. Singh owned undisclosed assets is supported partly on the basis of Mr. Singh’s own testimony that in the past decade he had earned about 10 million from property sales. At one point in the trial he presented evidence of an accounting but left unaccounted for about $2,147,000. Ms. Singh said it would be significantly unfair to her to equally divide the known family assets owing to non‑disclosure by Mr. Singh of properties and funds in India, and his costly, unilateral, and tactical move of putting RPC 2011 into Chapter 11 protection. C. Standard of Review [125] Absent an error of law, the standard of review to be applied to an appeal of a s. 95 order is deferential, because in large part the order is discretionary. In Venables v. Venables , 2019 BCCA 281, an appeal also involving an order under s. 95, Justice Griffin noted the highly deferential standard of review required in the exercise of discretion in family law cases in order to promote certainty and finality: at para. 72, citing Hsieh v. Lui , 2017 BCCA 51 at para. 38: The standard of appellate review in family law matters is highly deferential. An appellant must show that there was a material error, a serious misapprehension of the evidence, or an error in law for an appeal court to intervene. This high standard recognises the discretionary nature of the trial judge’s task and the benefits of having heard directly from the parties. It also promotes finality and limits expense in family law litigation: McKenzie v. Perestrelo , 2014 BCCA 161 at paras. 23-24 , citing Hickey v. Hickey , [1999] 2 S.C.R. 518 at para. 12 and Van de Perre. v. Edwards , 2001 SCC 60 at paras. 14-15 . [126] Here, Mr. Singh argues that the judge erred in law by basing his s. 95 order on improper considerations, or, alternatively, that he exercised his discretion in an unfair manner. I would apply a correctness standard of review to the former, and a deferential standard to the latter. D. Discussion [127] The issues on appeal are first whether the costs associated with a bad faith petition in bankruptcy and the judge’s finding that there are undisclosed assets outside the jurisdiction come within permissible factors to consider in reapportioning family assets pursuant to s. 95(2)(i), and second, whether the judge improperly exercised his discretion in ordering an unequal division of assets. [128] Before turning to the manner in which the judge applied s. 95 to the facts he found, I shall review the jurisprudence on the scope of s. 95, the meaning of the language “significant unfairness,” and the interpretation of ss. 95(2)(i). [129] First is the question of the meaning of the term “significant unfairness.” [130] In Jaszczewska v. Kostanski , 2016 BCCA 286, Justice Harris, for the Court, engaged in an extensive analysis of s. 95. He first noted that the Legislature sought to increase certainty, fairness, and predictability in property division matters with the FLA by reducing the discretion of the courts to depart from equal division: at para. 36. The test in the previous legislation ( Family Relations Act , R.S.B.C. 1996, c. 128) only required unfairness, whereas the FLA requires “significant unfairness.” In addition, the legislature more precisely specified the factors to be considered in applying this threshold. [131] Justice Harris agreed with the analysis in Remmem v. Remmem , 2014 BCSC 1552, in which Justice Butler (as he then was) defines “significant” as “extensive or important enough to merit attention” and something that is “weighty, meaningful or compelling,” concluding that to justify an unequal distribution “[i]t is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2)”: at para. 41, citing para. 44 of Remmem . Justice Harris then noted that it would be unwise to attempt to define the meaning of “significant unfairness” but found that reapportionment under s. 95 would require “something objectively unjust, unreasonable or unfair in some important or substantial sense”: at para. 42. He said: [44]      … in enacting s. 95(2)(i) the Legislature recognized that there may be factors other than those listed that could ground significant unfairness. Hence, while the Legislature intended to limit and constrain the exercise of judicial discretion to depart from equal division, it did not provide a closed list of factors and it did not eliminate the discretion. [132] Ultimately, Justice Harris held that unequal division was justified in the case under appeal given that the significant increase in value to one property in question was caused in part by the respondent after separation: at paras. 52–53. [133] In V.J.F. v. S.K.W ., 2016 BCCA 186, Justice Newbury described s. 95 as requiring a high threshold of “significant unfairness” to depart from equal division: at para. 81. Other cases have reached similar conclusions about the high threshold necessary to reapportion assets under s. 95. In Khan v. Gilbert , 2019 BCCA 80, for example, Justice Fenlon noted that cases in which unequal contribution was found to reach the significantly unfair threshold have involved marked, prolonged, and intentional or unexplained disparities in contribution to family burdens: at para. 32. [134] In summary, it is clear that the Legislature intended the general rule of equal division to prevail unless persuasive reasons can be shown for a different result: Jaszczewska at para. 41. Reapportionment will require something objectively unjust, unreasonable, or unfair in some important or substantial sense. This is in contrast to the previous legislation where courts had discretion under s. 65 to reapportion property or debt where it would be simply “unfair” not to do so. The threshold for “significant unfairness” is high. There must be a real sense of injustice that would permeate the result if the court did not deviate from the presumptive equal division. [135] Keeping the foregoing in mind, I turn to consider the interpretation of s. 95(2)(i) and whether the factors the judge relied on properly fall within its scope. [136] Section 95(2)(i) is a general term, allowing consideration of “any other factor … that may lead to significant unfairness.” As a general term preceded by a list of specific items, the rule of statutory interpretation known as ejusdem generis (“of the same kind”), or the limited class rule, may apply. In National Bank of Greece (Canada) v. Katsikonouris , [1990] 2 S.C.R. 1029, La Forest J. explained the rule thusly at 1040: Whatever the particular document one is construing, when one finds a clause that sets out a list of specific words followed by a general term, it will normally be appropriate to limit the general term to the genus of the narrow enumeration that precedes it. [Emphasis added.] [137] Ruth Sullivan, in Sullivan on the Construction of Statutes , 6 th ed. (Markham, Ontario: LexisNexis Canada: 2014) at pp. 235–236, sets out three requirements for this rule of statutory construction to apply: first, the specific items in the list must belong to a single identifiable class; second, this class must be narrower in scope than the general words that follow the list; and third, the rule cannot be invoked if the specific class inferred from the list has nothing, apart from those items, to apply to. [138] Applying these requirements to the provision at issue, if the rule applies, the class cannot be any factor “that may lead to significant unfairness” as this would violate the second requirement as set out by Sullivan. The other factors enumerated in s. 95(2) suggest consideration of aspects of the relationship between the spouses, including its duration, the terms of any agreement, as well as the characteristics of family assets and debt and how the spouses have influenced their value. One of the considerations in s. 95(2)(g) includes an analysis of a spouse’s good faith or motive. These factors are broad. Nevertheless, in my view, they all relate to a limited class, namely, the economic characteristics of a spousal relationship . [139] The economic characteristics of a spousal relationship is a broad class, but one that is narrower than the general term in s. 95(2)(i). With regard to Sullivan’s third requirement, there are clearly other factors relevant to the class that are not enumerated in s. 95(2)(a)–(h). For example, this limited class would allow for the consideration of the relative contribution of spouses to the acquisition, preservation, maintenance, or improvement of family property during the relationship, as suggested by Jaszczewska at para. 44. [140] Accordingly, I find that the limited class rule is applicable and I must consider whether the factors the judge relied upon are properly the subject of s. 95(2)(i). In my view, they are. The economic characteristics of a spousal relationship would clearly encompass the existence of undisclosed assets. This class would also permit consideration of the costs of bankruptcy, and a party’s motivations for entering bankruptcy, as the trial judge did in the case at bar, and the consequent impact on the value of the asset. Alternatively, I note that the cost of the bankruptcy proceeding could also in this case fall under s. 95(2)(f): “whether a spouse, after the date of separation, caused a significant decrease … in the value of family property …” [141] I see no error in law in the judge’s application of s. 95. [142] Keeping in mind the highly deferential standard of review regarding the judge’s exercise of discretion in his consideration of the above factors, I also see no reason to interfere with his conclusion that an equal division of assets would be significantly unfair. [143] The judge made findings on the evidence as noted above that provide an evidentiary basis for his conclusion that Mr. Singh had additional undisclosed assets in India. In my view the judge’s reasons, taken as a whole, paint a picture of an untrustworthy party, whose property disclosure could not be relied upon at all. There is sufficient evidence of the fluidity of his affairs between Canada and India, the nature of his real estate dealings in India, and his dishonest lack of disclosure, for the judge to have reached the conclusion, founded on Mr. Singh’s own evidence, that there existed additional undisclosed and unidentified assets in India. [144] In my view, the judge did not “make something out of nothing” as was the case in Wu . Here, there was a reasonably based finding that there were additional undisclosed and unknown assets. This is an exceptional case. Usually such an award would need to be based on evidence tied to a specific asset but where, as here, the party has been found to be completely unreliable and his own evidence leads to a reasonable inference that he is hiding assets, a judge may be justified in making a restrained and conservative order such as was done here. I note that the s. 95 award is based only in part on the unspecified assets. I also note that, unlike in Wu , the judge did not ascribe any specific value to the undisclosed assets. Rather, he simply considered the strong likelihood of their existence in fashioning a fair division of assets. I would not disturb the award on this basis. [145] There was also ample evidence to support the judge’s conclusion that Mr. Singh acted in bad faith in petitioning RPC 2011 into bankruptcy. It is clear that the judge was not intervening in the Arizona proceeding, nor was he acting outside his jurisdiction as was suggested by Mr. Singh. With the parties’ consent, the judge communicated with the judge conducting the Arizona bankruptcy proceeding. That Arizona judge had to determine whether to order the liquidation of the bankrupt asset or the restructuring. He ordered liquidation. Having done so, the division between the spouses of the net proceeds of the liquidation was a matter entirely within the jurisdiction of the BC Supreme Court. [146] Justice Masuhara’s consideration of the unnecessary burden of the bankruptcy costs was in no way encroaching on the foreign jurisdiction. It was a question entirely within his jurisdiction as to the division of the net proceeds between the parties. We were not directed to any specific evidence about the costs of those proceedings but it is within the appropriate range of matters over which a judge may take judicial notice that there are professional fees of significance associated with such a proceeding. [147] I would not disturb the award made under s. 95. VII. Miscellaneous Grounds of Appeal [148] Mr. Singh took considerable time in his factum and in oral argument to press the point that the judge erred in law by relying on evidence imported from the Arizona proceeding, including the forensic audit of the Arizona property. He asserts repeatedly that the judge erred in his reliance on evidence in the bankruptcy proceedings as to Mr. Singh’s misappropriation of property. There is no merit to these submissions. The value of the Arizona property was not in dispute. In the final analysis the property was liquidated and the proceeds divided equally subject to adjustments. None of the judge’s final orders about the division of property were based on findings of misappropriation. VIII. Special Costs [149] Mr. Singh appeals the order of special costs made against him. [150] The Court order provides: The Claimant is awarded special costs of the proceeding. [151] The judge said: [176]    Mr. Singh’s conduct at trial has been reprehensible and deserving of rebuke. His conduct has prolonged this case, and added unnecessary time and cost, and demonstrated a clear disregard for the administration of justice. Mrs. Singh is awarded special costs. [152] In his factum, Mr. Singh says that in the alternative to setting aside the entire special costs award, this Court should consider a partial award of special costs. He says Ms. Singh and her counsel were significantly responsible for the length of the trial and the voluminous irrelevant documents put before the court. He accuses Ms. Singh and her counsel of wasting time. In the alternative, he contends that if he is successful on appeal, the order for special costs should be revisited. In oral submissions, counsel for Mr. Singh sensibly did not rest his submissions on what would have been a futile effort to persuade us that the judge mischaracterized Mr. Singh’s testimony. Rather, he stressed that the court has leeway in terms of whether the award should cover the totality of the proceeding or part. He also argued that the special costs order was in effect duplicated by the $250,000 reapportionment under s. 95. [153] The standard of review as to the award of special costs is highly deferential: Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9 at para. 27; Tanious v. The Empire Life Insurance Company , 2019 BCCA 329 at para. 33. Mr. Singh does not contend the judge erred in principle, in law, or made a palpable and overriding error in his award of special costs. The judge cites many examples of Mr. Singh’s conduct in the course of the litigation. It was clearly deserving of rebuke. The judge is in the best position to determine if a partial award was appropriate. I would not interfere with the award of special costs for the whole proceeding, nor would I adjust the costs award based on the disposition of the appeal. [154] I also would not accede to the argument that that the judge effectively imposed “two levels of special costs” on Mr. Singh. The purpose of the two awards is entirely distinguishable. The s. 95 award, while in part the result of non‑disclosure, is based on the conclusion that Mr. Singh owns additional undisclosed assets in India. The special costs award is based on Mr. Singh’s conduct in the action. IX. Disposition [155] I would dismiss the appeal except with respect to the India Property titled Sector 35A. I would substitute a value of $0 for the $434,233 as found by the trial judge. The parties must make the necessary adjustment to the division of proceeds from the sale of RPC 2011 assets. If they cannot agree to the adjusted division after removing Sector 35A, they should reappear before the trial judge to settle the division of assets after removing the value of Sector 35A. [156] Mr. Singh has been successful on appeal in respect to the value of one of the assets, namely, Sector 35A. Nevertheless Ms. Singh has been substantially successful on appeal. Mr. Singh’s argument on appeal was sprawling and unfocussed. Ms. Singh characterized his argument as one seeking to simply retry the case. She is not wrong. [157] In my view, Ms. Singh is entitled to her costs on appeal as the substantially successful party: Malak v. Hanna , 2020 BCCA 6 at para. 5. “The Honourable Madam Justice Garson” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice Fisher”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Gichuru v. Vancouver Swing Society, 2020 BCCA 40 Date: 20200124 Docket: CA46012 Between: Mokua Gichuru Appellant (Petitioner) And Vancouver Swing Society, Matthew Lam, Kaitlin Russell, Angelena Weddell and The BC Human Rights Tribunal Respondents (Respondents) Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Fitch The Honourable Mr. Justice Butler On an application to vary:  An order of the Court of Appeal for British Columbia, dated October 25, 2019 ( Gichuru v. Vancouver Swing Society , Vancouver Docket CA46012). Oral Reasons for Judgment Appearing as agent for the Appellant: G. Kimani Counsel for the Respondents, Vancouver Swing Society, Matthew Lam, Kaitlin Russell and Angelena Weddell: G. Henry Place and Date of Hearing: Vancouver, British Columbia January 24, 2020 Place and Date of Judgment: Vancouver, British Columbia January 24, 2020 Summary: The appellant’s application to vary an order he post security for costs is allowed only to the extent of extending the time for doing so, and setting aside the order he pay costs of the application for security for costs in any event of the cause. Comment on denial of request to hear the application by telephone because the applicant is in a foreign jurisdiction. [1] SAUNDERS J.A. : By order of Madam Justice Dickson made October 25, 2019, the appellant, Mr. Gichuru, was ordered to post security for costs of his appeal in the amount of $7,000 by December 31, 2019, pending which the appeal is stayed, with liberty to the respondents to apply to dismiss the appeal in the event the monies are not posted in the time provided. [2] Mr. Gichuru applies to vary that order pursuant to s. 9(6) of the Court of Appeal Act , R.S.B.C. 1996, c. 77 . [3] As a preliminary matter, I will record that on Friday, January 17, 2020, we received a letter from Mr. Gichuru explaining (as he had to the single justice) that he is currently resident in Korea and unable to attend today. He asked that we hear him by telephone, and provided what he said was his telephone number in Korea. Mr. Gichuru made a similar request of the justice hearing the security for costs application in October. We declined that request, as had the justice hearing the application in October. Such a procedure is neither effective nor efficient, and erroneously puts the onus on the court in respect to matters outside our jurisdiction. Generally speaking, it is not a practice we would adopt. We did agree, however, that Mr. Gichuru could have an agent attend on his behalf today, and today Ms. Kimani helpfully attended and presented orally a statement authored by Mr. Gichuru. [4] With that explanation, I turn to the application before us. It is well established that an application to vary an order of a single justice is not a rehearing of the original application: the approach a division of the court will bring to the matter is highly deferential and it is not enough to allege that the justice erred in the exercise of discretion. The court may interfere with the order of a single justice if there has been an error in principle, the justice was wrong in the legal sense, the justice misconceived the facts, or relevant information was not brought to the justice’s attention: DeFehr v. DeFehr , 2002 BCCA 139; Haldorson v. Coquitlam (City) , 2000 BCCA 672. [5] In this case, the application before the justice was for an order Mr. Gichuru post security for costs. That application fell to be decided on consideration of the four factors discussed by Mr. Justice Lowry in the case referred to by the justice, Creative Salmon Company Ltd. v. Staniford , 2007 BCCA 285: 1. the appellant’s financial means; 2. the merits of the appeal; 3. the timeliness of the application; and 4. whether the costs will be readily recoverable. [6] In his application to vary, Mr. Gichuru does not say the justice recited the incorrect factors, but says instead that she erred in her assessment of those factors. In particular he contends the justice erred in: 1) failing to give pre-eminent weight to the respondents’ tardiness in filing their application (I note that that complaint is strengthened and repeated today in the statement read by Ms. Kimani); 2) determining the appeal “lacks obvious merit”; 3) referring to comments of Madam Justice Garson in Gichuru v. Pallai, 2018 BCCA 78, to the effect that he had paid numerous court fees in pursuing a series of actions over the past decade; 4) failing to limit the order to costs incurred after the date of the application, 5) establishing the deadline for posting the security; and 6) ordering costs in favour of the respondents in any event of the cause. [7] Mr. Gichuru also complains that he was denied an adjournment of the hearing in October 2019, and that the justice failed to accommodate the difficulties he was encountering in pursuing this matter while a resident of a foreign country. [8] In the statement read today, Mr. Gichuru referred us to the recent decision of a single justice, Jacques v. Muir , 2019 BCCA 456, in which Mr. Justice Groberman declined to order security for costs because the application was brought after filings were compete, saying: “This Court has generally refused late applications for security for costs.” [9] Justice Dickson described the circumstances of the appeal and the application in this fashion: [3]        The application concerns the British Columbia Human Rights Tribunal’s (“HRT”) refusal to accept a complaint of Mr. Gichuru’s for filing. Mr. Gichuru unsuccessfully sought reconsideration of this decision and then judicial review. He now appeals the dismissal of his judicial review application (indexed at Gichuru v. Vancouver Swing Society , 2019 BCSC 402). [4]        Mr. Gichuru complained that VSS discriminated against him on the basis of age, sex and race and, in particular, for being an older black male. The chambers judge summarized the dispute as follows: [11]      ... the crux of Mr. Gichuru’s complaint to the Tribunal involved what can be described as a dispute on Facebook over Mr. Gichuru’s conduct related to other female members of the VSS. Mr. Gichuru felt as if he had been harassed on Facebook by female members of the VSS and raised the issue with Ms. Wendell and Mr. Lam. It is clear that Mr. Gichuru expected the VSS executive to take his side on the issue, but they did not. Ultimately, the VSS executive asked other members of the VSS for input on Mr. Gichuru’s behavior and determined that it was his behavior that was problematic, although this was not known to Mr. Gichuru at the time. In response, Mr. Lam agreed to meet with Mr. Gichuru and provided him with three documents: a Facebook post written from the perspective of an older man in the swing community about older men crossing lines with younger women with romantic pursuits; a document on “Emotional Labour”, which included sections discussing “toxic masculinity”; and an article titled “How To Not Be Creepy”, which Mr. Lam recognized as having an inflammatory title in his email. [5]        On March 21, 2019, the judge held that the HRT had jurisdiction to screen the complaint and found the decisions in question were not patently unreasonable. [6]        Mr. Gichuru filed a notice of appeal on April 11, 2019. Although he has not filed any affidavit material in response to the security for costs application, in his written submission filed yesterday he asserts that VSS indicated an intention to apply for an order for security for costs. However, they did not do so until September 23, 2019, when they brought this application. By that time, the materials for the appeal had already been filed by all parties. VSS offered no explanation for the delay. In his written submission, Mr. Gichuru asserts that he spent approximately 100 hours on the appeal between April 18, 2019 and September 23, 2019. [10] In my view, none of the submissions advanced by Mr. Gichuru provide a basis upon which we can or should interfere with the order for security for costs. I would give him some relief, however, on the deadline for posting the security for costs, and on the order for costs of the application. [11] I address first Mr. Gichuru’s submissions concerning the court process. I have reviewed the file material carefully and see no basis for complaint. Mr. Gichuru has had the ability to communicate with this court electronically and has done so, and he has been accorded the opportunity to have an agent appear on his behalf, including today. Just as we have had the opportunity to review the file materials, so, too, the justice hearing the security for costs application had materials before her and referred to them in her decision. In particular, I would reject, as I have explained above, the proposition that Mr. Gichuru was entitled to the telephone attendances that he proposed. [12] I turn now to the criteria for the order that Mr. Gichuru seeks to vary, starting with the merits factor. Mr. Gichuru contends that the justice mis-assessed the merits of the appeal. He says that the reasons of the Human Rights Tribunal wrongly treated his complaint as one the Tribunal could decline to file, but it was not open to the Tribunal to decline to file a complaint after the 2002 amendments to the Human Rights Code , R.S.B.C. 1996, c. 210. He says Mr. Justice Masuhara erred when he found otherwise. [13] I see no error in the justice’s assessment of the merits of the appeal. Justice Masuhara found that s. 27 of the Human Rights Code gave the Human Rights Tribunal jurisdiction to dismiss an appeal summarily and said, after reviewing the substance of the Tribunal’s decision: “this is what happened here … the complaint did not allege an act or omission that contravened the Code ”. He referred to the language of the Tribunal’s decision of refusing to file the complaint as an artifact of the previous legislation and said “but it is clear upon close evaluation of the statutory regime that the Tribunal had the authority to dismiss his complaint for the reasons given.” That authority is found in s. 21, not s. 27. I see no real prospect that a division of this court would interfere with the substance of the conclusion that the Tribunal had the jurisdiction required to do as it did. In sum, I find no basis to interfere with the justice’s conclusion that the appeal lacks obvious merit. [14] Nor do I see error in her evaluation of Mr. Gichuru’s financial circumstances, or that the respondents, if successful on appeal, will be unlikely to readily recover costs that may be ordered in their favour. The justice observed that a search of Mr. Gichuru’s history of initiating actions resulted in 84 reported judgments on CanLII. That level of court activity demonstrates that Mr. Gichuru has been able to pay numerous court fees in pursing actions over the years. The justice observed that she had no evidence before her that Mr. Gichuru would be unable to pursue his appeal were he required to post the security for costs. While he makes that submission, the submission is unsupported by the record. [15] On the other hand, there was evidence before the justice that Mr. Gichuru does not own real property in British Columbia and he is currently living in a foreign jurisdiction. Mr. Gichuru himself did not depose to having exigible assets in this jurisdiction, and he concedes in fact in his written argument at para. 48: 48.       Nevertheless, and in the alternative, the application should have been rejected on the basis that although the respondents’ chances of recovering their costs in the event they are successful on the appeal is doubtful , appellants who are without the financial ability to post security should not be precluded from pursuing a meritorious appeal for that reason alone. [Emphasis added.] [16] It was open to the justice to conclude that the respondents would have difficulty in recovering payment on an order in their favour for payment of costs of the appeal. One cannot say the justice erred in her application of the financial considerations. [17] All of this left the issue of the timeliness of the application which was, as the justice recognized, the only factor weighing against the respondents’ application. While timeliness is, generally speaking, important, it is not an invariable rule that an application brought after all the necessary filings have been made will be denied. It is, in the end, always an exercise of discretion taking all the circumstances into account. What is required of the justice is consideration of the entire picture. I conclude the justice here based her decision that security for costs should be posted on the entire circumstances before her, as she was required to do. Although we are referred to Jacques , that case does not reflect the difficult financial circumstances of the respondent arising from this litigation noted by Justice Dickson in her para. 23 of the reasons for the order that is sought to be varied: [23]      [Vancouver Swing Society] is a small non-profit society, its resources have been exhausted by this litigation, and its directors have had to pay out‑of-pocket to continue defending themselves in this litigation. This factor weighs further in favour of a security for costs order. [18] I see no basis upon which we can, properly, interfere with that decision. [19] Nor do I see a basis upon which to say the justice was required to limit the amount posted to costs going forward as Mr. Gichuru now proposes. While that was one alternative available to her, it was not presented to her, and she cannot be faulted for declining to reduce the amount sought to be posted as security. [20] This leaves the time established by the order for the posting of security for costs, and the order for costs of the application to the respondents. The justice directed that the security for costs be posted by December 31, 2019. That date has come and gone. This application to vary the order was filed within time, but the reasons of the justice were not available to Mr. Gichuru for some time and I cannot see how Mr. Gichuru could have had this application heard by a division by the deadline of December 31, 2019 in all the circumstances. I consider it is appropriate to allow Mr. Gichuru some further time to file the security for costs. I would extend the time for filing security for costs to February 28, 2020. [21] The final question is the order for costs of the application before the justice. The usual order is that costs are in the cause. While I consider the appeal to be one of dim merit, that result is not a total foregone conclusion. There is, in my view, no reason that the respondents should be entitled to costs of the application in the event Mr. Gichuru’s appeal is successful. [22] I would allow the application to vary only to the limited extent of extending the time for Mr. Gichuru’s compliance with the order to post security for costs to February 28, 2020, and setting aside the order for costs of the application before Justice Dickson in favour of the respondents. [23] FITCH J.A. : I agree. [24] BUTLER J.A. : I agree. [25] SAUNDERS J.A. : The application to vary is allowed to the extent the time for posting the security for costs is now February 28, 2020. The order made by Justice Dickson for costs of that application in favour of the respondents is set aside. “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Awasis, 2020 BCCA 23 Date: 20200124 Docket: CA44011 Between: Regina Respondent And Johnny Wilfred Troy Awasis Appellant Restriction on publication:  A publication ban has been imposed under ss. 486.4(1) and 486.4(2) of the Criminal Code restricting publication, broadcasting or transmission in any way of any information that could identify the complainants or a witness. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Groberman The Honourable Madam Justice Fisher The Honourable Mr. Justice Abrioux On appeal from:  An order of the Provincial Court of British Columbia, dated June 30, 2016 ( R. v. Awasis , Vancouver Docket 221359). Counsel for the Appellant: H. Patey Counsel for the Respondent: S.E. Elliott Place and Date of Hearing: Vancouver, British Columbia October 2, 2019 Place and Date of Judgment: Vancouver, British Columbia January 24, 2020 Written Reasons by: The Honourable Madam Justice Fisher Concurred in by: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Abrioux Table of Contents Paragraph The index offences [4] The appellant’s background [7] Family and social history [7] Criminal history [14] Psychological assessments and treatment history [23] Current psychological assessments [29] Dr. Rakesh Lamba [29] Dr. Todd Tomita [44] Gladue report [57] The dangerous offender proceedings [61] The dangerous offender statutory regime [65] Designation [67] Sentencing [71] Standard of review [74] Grounds of Appeal [77] Application to admit fresh evidence [79] The test [82] The fresh evidence [84] Discussion [87] The decision below [92] Analysis [104] 1. Did the judge fail to take into account evidence of the appellant’s treatability? [104] Designation [107] Sentencing [113] 2. Did the judge fail to give tangible effect to Gladue factors in determining sentence? [120] 3. Is the indeterminate sentence manifestly unfit? [136] Disposition [137] Summary: The appellant was designated a dangerous offender and sentenced to an indeterminate term of imprisonment after convictions for two sexual offences. He appeals his designation and sentence on the basis that the judge (1) failed to take into account evidence of his treatability at both the designation and sentencing stages of the dangerous offender proceedings, and (2) failed to give tangible effect to his Gladue factors in determining his sentence. He contends that these failures resulted in an erroneous elevation of his moral culpability and a disproportionate sentence. He seeks to adduce fresh evidence to support his grounds of appeal. Held: Appeal dismissed. While it is not clear that the appellant’s treatability was considered at the designation stage, a finding of dangerousness was inevitable. In determining sentence, it was open to the judge to conclude that the appellant’s risk could not be managed in the community so as to adequately protect the public. Similarly, her determination that public protection was paramount despite the appellant’s Gladue factors, which reduced his moral blameworthiness, was supported by the evidence. The fresh evidence cannot reasonably be expected to have affected the result and is inadmissible. Reasons for Judgment of the Honourable Madam Justice Fisher: [1] The appellant, Johnny Awasis, was designated a dangerous offender and sentenced to an indeterminate term of imprisonment after convictions for two sexual offences. In this appeal, he seeks to set aside this designation and sentence and replace the indeterminate term with a fixed term of ten years, or alternatively, a fixed term of ten years to be followed by a period of long-term supervision. He submits that an indeterminate sentence is grossly disproportionate to his moral culpability and manifestly unfit. [2] The appellant is a 38-year-old Aboriginal offender with an unfortunate, tragic background. His involvement with the criminal justice system began at age 13 and has continued unabated, with repetitive violent and sexual reoffending while in the community. He has severe addictions to alcohol and drugs, has suffered trauma that includes sexual abuse, and has been diagnosed with severe personality disorder, all of which have contributed to the risk he poses to public safety. [3] Despite the tragedy of the appellant’s circumstances, it is my view that the sentencing judge’s determinations in this case were reasonable, and for the reasons that follow, I would dismiss the appeal. The index offences [4] The appellant was charged with two sexual offences that took place within a short period of time in August 2011. He was convicted of both offences on December 20, 2012 after a trial in Provincial Court. [5] The first charge was sexual assault arising from an incident in the early morning hours of August 9, 2011 involving a sex trade worker, T.L. The appellant hired T.L. to perform a sexual service for him and they went into an alley. When T.L. asked for money, the appellant put one hand over her mouth, the other on the back of her head, and threatened to kill her if she made any noise. He told her to lie down in the alley but T.L. convinced him to allow her to fellate him, which she did. The appellant stopped before he ejaculated and walked away. [6] The second charge was sexual assault with a weapon arising from an incident on August 31, 2011. The victim, D.B., was also a sex trade worker but she was not working on the night of the incident. At about 2:00 a.m., D.B. went into an alley to urinate. She stood up to find the appellant in front of her with his penis exposed, sheathed in a condom. He called her names and demanded that she fellate him. As she was about to comply, the appellant said, “I’m going to turn you around, pull your pants down and fuck you up the ass, then I’m going to cut your throat”. He produced a 10-inch knife and held it against her throat. D.B. saw the lights of a van in the lane and tried to wave and yell for help but the appellant attacked her with the knife. Fortunately, she managed to escape to the van and was assisted by its occupants. The appellant’s background Family and social history [7] The appellant’s background can be gleaned from the reasons for sentence and various reports, including a Gladue report, which were before the sentencing judge. [8] The appellant is an Indigenous man with a very unfortunate background. He was 35 years old when he was sentenced in June 2016, and is now 38 years old. His parents and grandparents were survivors of the residential school system. [9] His mother, Bertha Johnny, is a member of the Anaham First Nation. She was sexually assaulted by a priest at residential school and became pregnant, giving birth to a child at the age of 13. The child was eventually surrendered to social services and Ms. Johnny left her community for Vancouver. There, she had two more children, each with different fathers. Ms. Johnny was addicted to alcohol and lived on the street. In that context she met Wilfred Awasis, who she described as “a violent alcoholic”, and had four children with him. The appellant is the second born of those children. Wilfred Awasis was a member of the Thunderchild Cree First Nation in Saskatchewan. [10] The appellant’s childhood was marked by terrible instability as a result of his parents’ substance abuse, neglect and violence. The family lived for a time in British Columbia on the Anaham Reserve and then in Saskatchewan on the Thunderchild Reserve, but the appellant grew up primarily in the Downtown Eastside of Vancouver with little awareness of his Indigenous culture. Due to his parents’ alcoholism, he and his siblings were often left alone for days or weeks at a time. When the appellant was six years old, his father was incarcerated and his mother decided to return to British Columbia from Saskatchewan, leaving the appellant in the care of an aunt. When his mother did not return to retrieve him after about a month, the aunt took the appellant to a residential school where he stayed for approximately seven months. While the appellant was at the school, he was emotionally, physically and sexually abused. [11] The appellant would have been seven years old when his mother took him out of the residential school and back to Vancouver. Unfortunately, the pattern of neglect continued. The appellant and his siblings were repeatedly apprehended by the Ministry of Children and Family Development of the time. The appellant was returned to his mother on numerous occasions but finally left on his own at age 18. He had difficulties in school due to this instability as well as some learning disabilities, but he did manage to advance in alternative programs until approximately grade eight. [12] The appellant began using alcohol and other drugs at an early age, consuming marijuana at age 10 and alcohol and cocaine at age 12. He entered the youth criminal justice system at age 13. By age 18, he was living in a drug house and supporting his cocaine consumption by dealing drugs and breaking and entering vehicles. This pattern continued into adulthood and he had almost no legitimate employment history. As an adult, his drug use also included heroin, crystal methamphetamine and psilocybin mushrooms. [13] The appellant fathered a child in 2005 with a partner who also struggled with addiction, and the child was taken into care at a very early age. The appellant was convicted of assaulting his partner in 2005. Criminal history [14] The appellant has a serious, long-term criminal history. [15] His youth record began in 1994 at age 13, as indicated above, with convictions for serious offences: assault and extortion (1994); robbery and theft under $5,000 (1995); escape lawful custody (1996); break and enter, attempted theft over $5,000, unlawfully at large and theft under $5,000 (1997); and mischief and assaulting a peace officer (1998). During this time, the appellant was offered numerous opportunities to participate in community-based programs, wilderness camps and group homes, some Aboriginal-based, but in each case he either failed to show up or simply left after a short period of time. [16] His adult record began in 2001 and continued into 2011, interrupted by periods of incarceration. His offences include: possession of a scheduled substance, theft under $5,000, robbery and possession of a scheduled substance for the purpose of trafficking (2001); robbery, possession of a weapon and failure to attend court (2003); assault (x3), mischief, breach of probation (x2), possession of a scheduled substance and theft under $5,000 (2005); theft under $5,000 and sexual assault (2006); breaches of probation and theft under $5,000 (2007); breach of probation and robbery (2009); and unlawfully at large and uttering threats (2011). [17] The sexual assault conviction in 2006 was a serious offence. The appellant, then 24 years old, met the 15-year-old victim with a group of friends. Both were intoxicated. The appellant followed the victim home, eventually taking her into an alley and dragging her into a carport. He told her he had a knife (but did not produce one), covered her face with his hand and choked her. He threatened “I’m going to fuck you in the ass” and as she struggled, he punched her several times. The attack ended when police arrived, having responded to a 911 call from a neighbour. The victim was physically injured and the event was terrifying. [18] The appellant pleaded guilty to this offence and in December 2006 received a sentence of 19 months (which amounted to time served plus one day at the time of sentence) and two years probation. By this time, he had accrued 16 convictions as an adult, and his criminal conduct continued. In two years of probation, he breached the probation order seven times by either consuming intoxicants or failing to report. He was also convicted of theft under $5,000 and of breaching court orders. His pattern throughout this period involved days or weeks in custody between committing new offences. [19] The robbery offence, for which the appellant received his first federal sentence, was committed in April 2009 after he had been out of jail for only a week and subject to a probation order. He was sentenced in July 2009 to two years (in addition to pre-sentence custody of 3.5 months). The judge acknowledged the appellant’s stated wish to address his criminality and attend a First Nations facility but noted that he had expressed the same wishes after his 2006 conviction and taken no treatment or counselling. His appeal from that sentence was dismissed (indexed as 2010 BCCA 213), with this court observing (at para. 11) that the appellant had never made any genuine attempt at treatment for his substance abuse problems and his actions in committing this offence showed a high degree of awareness and deliberateness that could not be attributed solely to drunkenness. [20] In November 2010, the appellant was released on parole to the Circle of Eagles, a halfway house in Vancouver that focuses on Indigenous culture and provides spiritual counselling by Elders. However, his parole was almost immediately revoked when he left the halfway house within an hour of his arrival. His parole was revoked or suspended again after a second release to Belkin House in May 2011 and a third release back to Circle of Eagles in June 2011. In the latter two suspensions, the appellant was found intoxicated at the time of his arrest. He was finally released at the end of July 2011 at his warrant expiry. [21] On August 8, 2011, within ten days of this release, the appellant threatened a female employee at a social services office after being told that he would not be able to complete a full intake meeting. [22] The first index offence was committed the following day, August 9, 2011, and the second on August 31, 2011. The appellant was arrested for these offences on September 3, 2011 and has remained in custody since. Psychological assessments and treatment history [23] The appellant was first assessed by a psychologist in October 1994 after his initial entry into the youth system at age 13. In a November 1994 report, Dr. Louise Sturgess described the appellant as presenting with borderline intellectual functioning, poor reading skills, moderate to severe conduct disorder, a severe problem with substance abuse, and an entrenched pattern of antisocial behaviours. She stated a concern that the appellant’s “aggressivity” seemed to be escalating, he was “out of control” and gave no indication that he was “able to experience empathy for his victims”. She described the appellant as a child “who never had a chance”. [24] Attempts to supervise and assist the appellant in the community over the following five years were unsuccessful. His pattern was to express interest in taking advantage of programming offered but would fail to attend on any regular basis. As described by his youth probation officer during this period, “he just couldn’t follow through with anything”. By 2006, despite what appeared to have been earnest intentions to address his substance abuse and attend sex offender treatment, the appellant did not do well while under supervision following his sexual assault conviction, as I have described above. [25] The appellant was next assessed in 2009 while serving his first federal sentence for robbery. By this time, he was 28 years old. Caroline Buckshot, an Aboriginal Elder employed by Corrections Canada, developed a “healing plan”, and Dr. Heather Burke, a psychologist, conducted a sex offender risk assessment. [26] Ms. Buckshot’s healing plan included commitments by the appellant to abstain from the use of intoxicants, participate in counselling to address his substance abuse and dysfunctional childhood, maintain a connection with his Indigenous heritage, upgrade his education, accept responsibility for his criminal behaviour, and be honest with his case management team. Before the appellant committed to this healing plan, Ms. Buckshot warned him of the potential negative consequences for his parole if he failed to follow it. [27] Dr. Burke assessed the appellant at a high risk for sexual and violent recidivism, including spousal violence, and recommended high intensity sex offender programming as well as programming for violence and substance abuse. [28] During his time in federal custody, the appellant did not participate in any treatment, including sex offender treatment, but he did pursue education and skills training. He was out of custody for only a month before he was arrested on September 3, 2011 for the index offences. Current psychological assessments Dr. Rakesh Lamba [29] In August and September 2013, Dr. Rakesh Lamba conducted a court ordered assessment of the appellant pursuant to s. 752.1(1) of the Criminal Code . [30] In conducting his assessment, Dr. Lamba reviewed a voluminous amount of material, interviewed the appellant extensively, and administered various risk assessment instruments. [31] Dr. Lamba did not find that the appellant met the full criteria for any major mental disorder but recognized by the appellant’s self report that he had some features of post-traumatic stress disorder (PTSD) related to traumatic events in his life. The self report included disclosure, apparently for the first time, that the appellant had been sexually victimized as a child while at residential school. [32] Dr. Lamba did find that the appellant met the criteria for poly-substance abuse and dependence that included the use of cocaine, crystal methamphetamine and alcohol. [33] With respect to the appellant’s intellectual functioning, Dr. Lamba noted in his report that tests done in the appellant’s youth estimated his intelligence at a borderline functioning level, with a mid-school or lower level of achievement at different times. At the onset of his sentence, the appellant was noted to have a possible learning disability as well, but was nonetheless able to successfully complete without much difficulty a GED with one course short of a Dogwood high school diploma. As to the source of these cognitive difficulties, Dr. Lamba stated: He also has a self-reported problem with attention deficit hyperactivity both as a child and as an adult. It is not clear whether the borderline intellectual development, possible learning disorder and attention deficit hyperactivity problems are all features encompassing the complex behavioral/cognitive syndrome associated with in-utero exposure to alcohol. Such a cluster of problems however is not uncommon simply with severe anti-social personality disorder. His reports of his mother having consumed alcohol in her pregnancy for him are unconfirmed. A diagnosis of Fetal Alcohol Syndrome or Fetal Alcohol Effect can be considered by [ sic ] not made confidently (due to overlapping manifestations with other conditions and similar co-morbidities as well as secondary effects). [34] His primary diagnosis for the appellant was severe anti-social personality disorder, which began with his persistent conduct disorder from an early age of development. In his testimony, he explained why he preferred a diagnosis of anti-social personality disorder over fetal alcohol spectrum disorder or effect syndrome (FASD) as follows: In some ways it’s quite academic. What we have is – what we have is a – not all situations but this is – well, we can call it fetal alcohol effect syndrome and note that this person is impulsive, prone to boredom, needs stimulation, involved with the law and et [ sic ] cetera. Or we can say this – by the time these individuals have grown up and shown this pattern for [ sic ] lifetime or substantial portions of their life, that this is now a personality disorder Fifty, 60, 70 percent of fetal alcohol syndrome children will have been diagnosed as conduct disorder which is a precursor to the antisocial personality disorder. [35] Dr. Lamba acknowledged that the appellant had a probable FASD diagnosis, but maintained his view that there were significant overlapping manifestations between FASD and anti-social personality disorder. [36] Dr. Lamba assessed the appellant at a moderate to high risk for violent and sexual recidivism. He noted that psychopathy is strongly related to future violent behaviour, and that the appellant possessed a significantly high number of psychopathic traits. His opinion was that the appellant’s risk was strongly tied in with his anti-social personality, anti-social lifestyle and associates, and drug and alcohol use. It was not clear to him that the appellant suffered from a deviant sexual arousal pattern, and he saw the appellant’s sexual violence as part of a general pattern of anti-sociality and violence that was “so characteristic of him, in all spheres of his interpersonal interactions”. [37] Regarding future risk, Dr. Lamba opined: In terms of future risk, I would suggest that the risk scenarios are likely to be similar to the past; he is likely to very quickly return to his life style of being on the streets, downtown Vancouver, using drugs and selling/steering drugs. In this context he is likely at high risk for physical violence, both because of the direct result of the stimulant drugs he tends to abuse, and the context, activities as well as the associates he is likely to be involved with. Also under such circumstances, he is likely to target a vulnerable woman, sex trade worker or otherwise, in an opportunistic manner, for sexual gratification. [38] Dr. Lamba also opined that the appellant’s anti-social personality and drug abuse/dependence were the primary criminogenic factors for both non-sexual and sexual violent recidivism and that he may have other “as yet unknown/unexplored cognitive distortions that promote sexual offending in the way of non-consensual sex”. He did not believe that mood fluctuations, day to day stressors and anxiety symptoms, including PTSD symptoms, were criminogenic factors but were indirectly relevant to the extent that they may contribute to substance abuse. Similarly, he did not believe that a history of sexual abuse was a criminogenic factor, insofar as it related to sexual recidivism. [39] Regarding treatment, Dr. Lamba was of the view that the appellant needed treatment in the areas of substance abuse, violent offending and sexual offending. He did not think the appellant had learning or attention problems that could impede his ability to learn and participate but was uncertain if he could apply the teachings to his life and overcome his entrenched anti-social personality traits and drug abuse behaviours. He stated that treatment programs for personality disorder are “at best modestly helpful in certain individuals to diminish and contain their behaviours” and “[t]he best that can be said after decades of research on sex offender treatment programs” is that they may have “a modest trend in the positive direction”, noting that “[t]here is no good evidence to show clear effectiveness of cognitive‑behavioral/ relapse prevention based treatment”. [40] Dr. Lamba was asked about the appellant’s treatment prognosis and ability to manage his risk to reoffend if he were to complete the Integrated Correctional Program Modules offered in federal custody. He said the appellant’s personality disorder was “quite entrenched, quite longstanding”, adding: In fact, he hasn’t had a significant period of pro-social functioning in his life…He hasn’t shown a high degree of cooperation with treatment programs in the past. He hasn’t shown motivation to participate in the programs in the past. Now he says he is motivated and wants to complete. He has, in the past, said so as well but not followed up. So it really remains to be seen if he does participate, does complete, participate in a way that is conducive to his learning, and then to see whether these – what changes he does make are enduring. [41] He agreed that the appellant’s treatment prognosis was not very good considering his historical case-specific factors and the general ineffectiveness of treating severe personality disorders. [42] Given the appellant’s dismal record on community supervision, Dr. Lamba was of the view that it was unlikely his entrenched lifelong pattern would change in the foreseeable future. He found the number of times the appellant had not taken treatment that was offered or required to be significant as a repeated pattern that showed a lack of motivation. That said, he found that the appellant had some insight and may have honestly wanted to change his lifestyle but concluded that it would be very hard for him to actually do it in light of the fact that he was so entrenched in the opposite pattern. [43] Dr. Lamba was not confident that the appellant’s risk could be mitigated by a “geographical transplant”. He agreed that releasing the appellant to the Downtown Eastside in Vancouver, where he had a pre-existing antisocial peer group, made him more readily a risk. However, his view was that it would not be “an easy, direct, simple correlation” to move the appellant somewhere else and expect a reduction in his risk of reoffending given his personality and the extent of his substance abuse problems: It might be a question of time, that he is drawn to the antisocial peer group in a new community. It may just be a question of time. It may not be the matter of less or more likelihood. It may be a matter of sooner or later. Dr. Todd Tomita [44] In June 2014, Dr. Todd Tomita assessed the appellant at the request of the defence. His opinion differed little from that of Dr. Lamba, save for his opinion about the appellant’s motivation to take and complete treatment programs. [45] Dr. Tomita was of the view that the appellant’s primary risk-relevant psychiatric problems related to an anti-social personality disorder (with a high level of psychopathic features) and addiction to alcohol, cocaine and methamphetamine. While the appellant also had difficulties as a result of his past traumatic history that included sexual victimization, it was unclear how these experiences were relevant to his risk. He agreed with Dr. Lamba that the appellant’s anti-social personality, rather than sexual deviance, appeared to be the main driver of his sexual offending. [46] Dr. Tomita noted that the appellant may have problems related to “fetal alcohol effects” that include attention deficit and other cognitive difficulties but thought that they were likely mild in degree given his successful completion of his GED. Assuming this was accurate, he thought that the appellant would be able to participate in regular correctional programming even if fetal alcohol effects were present. However, Dr. Tomita described a two-fold challenge for the appellant: He needs to learn how to contain the maladaptive aspects of his personality disorder and how to control his alcohol and drug addiction. This is likely to be challenging as he has experienced problems related to both conditions across developmental periods beginning in childhood and adolescence and continuing into adulthood up to the present. Rather than a need for rehabilitation back to a stable baseline, Mr. Awasis needs to create and maintain a new prosocial baseline. Given his history to date, it is unlikely he will be able [ sic ] achieve this absent professional supports and legal supervision. The difficult question is forecasting the likelihood of achieving this with the realistically available professional supports and legal supervision that is likely to be available. [47] Dr. Tomita assessed the appellant at a high risk for future non-sexual and sexual violence. He thought both forms of violence would most likely occur in a similar scenario as the appellant’s past offending, in the midst of an unstable lifestyle marked by alcohol and drug use, involvement in the drug trade, and contact with other substance users. [48] Regarding treatability, Dr. Tomita was somewhat more optimistic than Dr. Lamba. It was his impression that the appellant had become more accepting of his need to address his addictions and make changes to his lifestyle in order to avoid future crime. The challenge was trying to gauge the appellant’s degree of internal motivation given his history of presenting in a similar fashion and failing to follow through. Dr. Tomita had some degree of confidence about the appellant’s positive motivation, for the following reasons: It appears that what is significantly different this time is the severity of possible sanctions. In the past, Mr. Awasis was sentenced to relatively short custodial sentences and now faces the prospect of an indeterminate sentence. While the [ sic ] a skeptic might conclude that Mr. Awasis is once again presenting with motivation for treatment to avoid the most severe sanctions, it also appears that the Dangerous Offender application has provided a clarity of purpose regarding what he needs to do to avoid spending his adulthood in the penitentiary. Because of this context, I would have a greater degree of confidence that his positive motivation will be durable beyond the sentencing stage. [49] However, in his testimony, Dr. Tomita agreed that the appellant was not stopped by the many life-threatening situations he faced in his past. He also acknowledged that once the severity of the indeterminate sanction was removed, there would be a reasonable likelihood that the appellant would “go back to where he’s always been”. That stated, he recognized that the true measure of benefit would be changes in the appellant’s behaviour that would reduce his risk, such as avoiding substance use and associating with peers who reinforce his antisocial attitudes, and that this would be a difficult task for him. [50] Dr. Tomita recommended high intensity sex offender treatment as offered in the federal prison system, but was not able to forecast the potential impact of this on the appellant’s future risk. He also recommended substance abuse treatment and engagement in building a durable recovery plan. He thought that successfully addressing the appellant’s addiction problem would likely have a significant impact on reducing his risk since this was the “linchpin of the lifestyle that places him at the highest risk levels”. [51] Dr. Tomita described the appellant as presenting with a moderate level of treatability for his addiction problems and a lower level of treatability for his sex offending. He testified that a number of factors were to be considered regarding treatability for sex offending: whether or not someone will entertain the idea and be motivated to enter, whether they can enter the program and actually finish it without being kicked out or evicted and then, finally, whether they’re going to get benefit and benefit in a way that’s going to generalize and be meaningful with respect to risk. [52] Dr. Tomita thought that the appellant recognized that sex offender treatment was something he needed to do and that he would likely enter a program. He also thought that there was a reasonable possibility that the appellant would complete a program. However, he did not know whether it would “ make a meaningful difference in terms of the impact generally” and for that reason he was “a bit cautious in saying high level of treatability in this case”. [53] According to Dr. Tomita, there would be no possibility of successful community supervision unless the appellant’s positive motivation endured and he had at least some degree of success managing his addiction problems: If he reverts back to his antisocial and addiction oriented attitudes and lifestyle in prison and then in the community, his risk will be unmanageable within the context of federal parole resources even with special conditions in place. If his positive motivation endures then one can assume some degree of positive treatment gain and have more optimism regarding community supervision. [54] Dr. Tomita was realistic in describing how the appellant’s ability to manage would likely fluctuate with relapses: Even if he has some degree of success in managing his addiction problems, Mr. Awasis is still likely to have some degree of instability in the context of a federal parole release. Given the severity of his addiction problems, it is readily foreseeable that he is likely to shift between recovery and lapses back to alcohol and drug use. In the context of federal parole supervision, he is likely to repeat the pattern of community release followed by suspensions for drug and alcohol use. It is unlikely that such brief usage will lead to the demoralized state where he is most at risk of offending, particularly if he is making overall progress towards positive goals. [55] This last comment was the subject of numerous questions in cross‑examination. The essence of Dr. Tomita’s opinion was that it was unlikely the appellant would be problem free if released but he could be managed in the community through supervision and inevitable suspensions. He said, “with some back and forth on a very long-term order, there may be a reality to eventual stabilization because he will be supervised in a way where the sanction’s immediate”. However, he also agreed that the appellant’s history suggested he would almost certainly breach a long-term supervision order by drinking alcohol, and that when he starts drinking, “he reoffends very quickly, violently and sexually”. [56] Dr. Tomita described an “optimistic scenario” to be where “eventually the potential losses of gains” will outweigh the immediate benefits of consuming alcohol and drugs, and the “pessimistic scenario” to be simply another repeated series of unsuccessful parole releases due to alcohol and drug use. If release was considered, he opined that the best risk management approach would be a long‑term supervision order of maximum duration. He considered this to be a necessary measure to maintain control of the appellant’s risk in the community. Gladue report [57] The sentencing judge had before her a Gladue report prepared by Stuart Cadwallader in February 2013, which was updated in a report dated February 14, 2015. The original report outlined the appellant’s very unfortunate background, much of which I have referred to above. It also outlined “ Gladue considerations” related to the people of the Tsilhqot’in National Government (of which his mother’s First Nation, Anaham, is a part), including the legacy of the residential school system and its intergenerational effects. [58] The reports noted that the appellant, not having been raised within his First Nations culture, had little awareness of the language, culture or traditional values of either the Tsilhqot’in or the Thunderchild Cree First Nation, and had few community supports. They provided a list of community and institutional resources for the court to consider in addressing the appellant’s needs and risk to the community, which included a community-based residential facility and residential treatment programs for alcohol and drug addiction, all based on Aboriginal principles. [59] Mr. Cadwallader suggested a type of release plan that would start with the appellant participating in a number of Aboriginal community-based residential treatment programs, first to connect him with Aboriginal values and spirituality, and then to address his addictions and trauma, and would continue with the appellant acquiring a trade. Mr. Cadwallader testified that it was his “profound hope” that the appellant had the opportunity to participate meaningfully with sex offender treatment offered both inside and outside the institutional setting before being reintegrated into a community. He considered the first step, in a camp situated north of Prince George, to be a “stepping stone” that would allow the appellant to either succeed or fail, and the last step to be a way to support himself in a meaningful way and to have some successes in his life. [60] Mr. Cadwallader was aware that the appellant had not participated in sex offender treatment offered to him in the past, despite appearing to be initially motivated to do so, but he was not aware of the number of times the appellant had failed to take advantage of programs—many Aboriginal-focused—throughout his youth and early adult life. He agreed that the appellant was not someone who had “fallen through the cracks” in the system but had been offered many resources in efforts to assist him to embrace traditional Aboriginal practices and values. The dangerous offender proceedings [61] Following the appellant’s conviction of the index offences, the Crown applied under s. 753(1)(a)(i) and (ii) and s. 753(1)(b) of the Criminal Code to have him designated as a dangerous offender and sentenced to indeterminate incarceration. [62] The appellant opposed the application on several grounds. While he agreed that the index offences were “serious personal injury offences” within the meaning of s. 752, he submitted that the Crown did not prove a pattern of behaviour or a substantial degree of indifference as required by s. 753(1)(a)(i) and (ii) or a failure to control his sexual impulses as required by s. 753(1)(b). [63] The appellant sought a long-term offender declaration, a sentence of eight to nine years (less time served), and a ten-year long-term supervision order. His position was that the evidence demonstrated his treatability within that period of time. [64] The dangerous offender proceedings occupied 15 days between February 2, 2015 and June 1, 2016. The evidentiary record before the court was extensive and included testimony from 14 witnesses. The sentencing judge ultimately designated the appellant as a dangerous offender under both s. 753(1)(a) and (b), and sentenced him to indeterminate incarceration. Her assessment of the evidence is reviewed later in these reasons. The dangerous offender statutory regime [65] Part XXIV of the Criminal Code deals with dangerous and long-term offenders. In order to be declared a dangerous offender, a person must be convicted of a “serious personal injury offence”, defined in s. 752 as including: (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). [66] The dangerous offender scheme provides for a two-stage process. At the first stage, the sentencing judge determines if the statutory criteria for a dangerous offender designation have been satisfied. If they have, the judge must make the designation. At the second stage, the judge determines whether to impose an indeterminate sentence, a sentence of at least two years and a long-term supervision order, or a sentence for the offence. Here, the judge has discretion and must apply the principles of sentencing in ss. 753(4), (4.1) and 718–718.2 to impose a fit sentence: R. v. Boutilier , 2017 SCC 64 at para. 53. Designation [67] Section 753(1) contemplates dangerousness from either violent or sexual behaviour: 753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offences for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [68] To obtain a designation of dangerousness resulting from violent behaviour, the Crown must establish that the offender (1) has been convicted of a serious personal injury offence, and (2) represents a threat to the life, safety or physical or mental well-being of other persons, based on evidence establishing one of the violent patterns of conduct enumerated in s. 753(1)(a)(i), (ii), or (iii): Boutilier at paras. 17–19; R. v. Malakpour , 2018 BCCA 254 at para. 39 . Under s. 753(1)(a)(i) and (ii)—relied on by the Crown in this case— the Crown must establish a pattern of repetitive behaviour by the appellant, of which the index offences form a part, showing either (i) a failure to restrain his behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour, or (ii) a substantial degree of indifference by the appellant respecting the reasonably foreseeable consequences to other persons of his behaviour. [69] Similarly, to obtain a designation of dangerousness resulting from sexual behaviour under s. 753(1)(b), the Crown must establish that the offender (1) has been convicted of a serious personal injury offence, and (2) has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through his failure in the future to control his sexual impulses: R. v. Currie , [1997] 2 S.C.R. 260 at para. 20. [70] Integral to the designation stage is an assessment of future risk. As the Supreme Court of Canada confirmed in Boutilier , an offender cannot be designated as dangerous unless he is shown to present a high likelihood of harmful recidivism and that his violent conduct is intractable. Accordingly, a judge must conduct a prospective assessment of dangerousness—which necessarily involves the consideration of future treatment prospects—before designating an offender as dangerous: Boutilier at paras. 45–46. This requirement applies with equal force to designations under both s. 753(1)(a) and (b): R. v. Skookum , 2018 YKCA 2 at para. 57. Sentencing [71] Once an offender is designated a dangerous offender, the proceedings move to the sentencing stage. The relevant provisions are ss. 753(4) and (4.1): 753 (4) If the court finds an offender to be a dangerous offender, it shall (a) impose a sentence of detention in a penitentiary for an indeterminate period; (b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment of imprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (c) impose a sentence for the offence for which the offender has been convicted. (4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that the lesser measure under paragraph 4(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [72] Section 753(4.1) does not impose an onus, a rebuttable presumption, or mandatory sentencing. Rather, indeterminate detention is one sentencing option among others available under s. 753(4), limited to “habitual criminals who pose a tremendous risk to public safety”: Boutilier at paras. 34, 58, 71 and 77. To properly exercise discretion under s. 753(4), the judge must impose the least intrusive sentence required to reduce the public threat posed by the offender to an acceptable level: Boutilier at paras. 60 and 70. In doing so, the judge must conduct an individualized assessment of all relevant circumstances, and consider the sentencing objectives and principles set out in ss. 753(4), (4.1) and 718–718.2, which include those developed for Indigenous offenders: Boutilier at paras. 53, 63 and 71; Malakpour at para. 37; R. v. Shanoss , 2019 BCCA 249 at para. 30 [ Shanoss BCCA ] . [73] At this stage, prospective evidence of treatability is highly relevant. Evidence of treatability must be more than “speculative hope” and must indicate that the offender can be treated within an ascertainable period of time: R. v. Little , 2007 ONCA 548 at para. 42, leave to appeal ref’d, [2008] S.C.C.A. No. 39. In the current scheme, the judge must be satisfied that there is a reasonable expectation that the offender’s risk can be managed to an acceptable level in the community so as to protect the public. “Reasonable expectation” refers to a belief that risk will be managed to an acceptable level, as opposed to the mere possibility: R. v. D.J.S. , 2015 BCCA 111 at para. 30. Standard of review [74] An offender who is found to be a dangerous offender has the right to appeal his designation and sentence “on any ground of law or fact or mixed law and fact” : s. 759(1) of the Criminal Code ; R. v. Bragg , 2015 BCCA 498 at para. 21. Absent any material error of law, a dangerous offender designation is a question of fact and an appellate court is to determine whether the designation was reasonable: Boutilier at para. 85. Similarly, a determination as to risk and manageability in the community is a question of fact to which deference is owed: Boutilier at paras. 86–88; R. v. R.M. , 2007 ONCA 872 at para. 53, leave to appeal ref’d, [2008] S.C.C.A. No. 91. [75] The standard of review was summarized by this court in Malakpour : [47]      Appellate review in this context is concerned with legal errors and whether the dangerous offender designation was reasonable: R. v. Currie , [1997] 2 S.C.R. 260 at para. 33; R. v. Sipos , 2014 SCC 47 at para. 23; Boutilier at para. 85. Appellate review of a dangerous offender designation is somewhat more robust than “regular” appellate review of a sentence, but the appellate court must still give deference to the sentencing judge’s findings of fact and credibility. Thus, the standard of review for errors of law is correctness and for errors of fact, reasonableness: Sipos at para. 26; Boutilier at para. 81; Bragg at para. 22; R. v. Walsh , 2017 BCCA 195 at para. 23. [76] See also R. v. Garnot , 2019 BCCA 404 at para. 47. Grounds of Appeal [77] The appellant contends that the sentencing judge erred by (1) failing to take into account evidence of a reasonable expectation of treatability at either the designation or sentencing stage of the proceedings; (2) failing to give any tangible effect to Gladue factors in determining sentence; and (3) imposing a sentence that was manifestly unfit, being disproportionate to the gravity of the offences and the moral culpability of the appellant. [78] In his factum, the appellant challenges only the imposition of an indeterminate sentence, and while he focused on this in his oral submissions, he submits that the issue of treatability is relevant to both the designation of dangerous offender and the indeterminate sentence. Application to admit fresh evidence [79] In support of his appeal, the appellant applies to adduce fresh evidence in the form of expert opinion from Dr. Roderick James Densmore. Dr. Densmore’s report relates to the effect of a possible diagnosis of FASD on the appellant’s ability to participate in treatment programs. The report attaches documents reviewed by Dr. Densmore that include a decision pertaining to the appellant under the Independent Assessment Process of the Indian Residential Schools Adjudication Secretariat (IRSAS), a psychological assessment of the appellant provided for the IRSAS Process, and a program performance report pertaining to Mr. Awasis’ participation in federal Corrections programming in recent years. [80] The appellant seeks to admit only Dr. Densmore’s report and the IRSAS decision. He submits that both Dr. Lamba and Dr. Tomita were misinformed about FASD and Dr. Densmore’s report sheds more light on the issue of treatability. He also submits that the IRSAS decision is important because it is not clear if the sentencing judge accepted his residential school experiences. [81] The Crown objects to the admission of this evidence on the basis that Dr. Densmore’s report is inadmissible as expert opinion and that none of the criteria required for the admission of fresh evidence have been satisfied. The test [82] The test to admit fresh evidence on appeal is well-established and set out in Palmer v. The Queen (1979), [1980] 1 S.C.R. 759 at 775: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [83] The overriding consideration is whether it is in the interests of justice to receive the fresh evidence. The fresh evidence [84] Dr. Densmore conducted several tests on the appellant and diagnosed him with a number of conditions, including PTSD, polysubstance/alcohol abuse and dependence, depression and ADHD. He could not definitively diagnose the appellant with FASD because he found significant impairment in only two (of three required) domains of brain functioning. Despite the lack of a formal diagnosis of FASD, Dr. Densmore opines that FASD-specific educational adaptations would increase the appellant’s ability to learn from various programs offered to him in prison. Using the acronym “NURMU” (non-compliant, uncooperative, resistant, manipulative, unmotivated) to describe how people with FASD are often viewed by others, he states that the appearance of such behaviours tends to diminish or go away when accommodations are made for issues such as impaired attention, suggestibility, sensory processing difficulties, learning disabilities and attachment problems. [85] Dr. Densmore also opines that treatment for the appellant’s PTSD and other mental health conditions would improve his ability to benefit from institutional programs. [86] In the IRSAS decision, the adjudicator found that the appellant was sexually assaulted by two adult employees and two older male students while attending residential school and awarded compensation payable at a substantial level. Discussion [87] I would not admit the fresh evidence. In my view, Dr. Densmore’s report is not sufficiently credible and neither the report nor the IRSAS decision can reasonably be expected to have affected the result. [88] First, Dr. Densmore’s report does not acknowledge, nor does it demonstrate, the author’s duty to provide independent and impartial opinion. From my reading of the report, this problem stems primarily from the facts that form the basis for the opinion. I agree with the Crown’s submission that Dr. Densmore’s methodology was flawed. His opinion is based on representations of the appellant, some that are inconsistent with the evidence at sentencing, as well as a selective review of the documentary record. He also provides no references to support a general scientific acceptance of the concept of “NURMU” and his reliance on it. [89] Second, Dr. Densmore’s report does not add anything material to the evidence regarding a possible FASD diagnosis for the appellant. This information was before the court and considered by both Dr. Lamba and Dr. Tomita. Dr. Lamba acknowledged that the appellant had a probable FASD diagnosis but considered that there were significant overlapping manifestations between FASD and anti-social personality disorder. Dr. Tomita also acknowledged that the appellant may have had problems related to “fetal alcohol effects” but thought that they were likely mild in degree given his successful completion of his GED. The general information about FASD outlined in Dr. Densmore’s report does not address in any meaningful way the question of the appellant’s treatability or intractability as a result of his other significant problems, most notably his anti-social personality disorder and substance abuse. [90] The IRSAS decision similarly does not add anything material to the evidence, as the sentencing judge accepted that the appellant attended residential school and suffered the indignities and abuses that came with it. She also found that his experiences as an Aboriginal person contributed to his personality and tendencies, such that his moral blameworthiness for the criminal offences was diminished. [91] Accordingly, I am of the view that it is not in the interests of justice to admit the fresh evidence. I would dismiss the application. The decision below [92] The reasons for sentence were issued June 30, 2016, before the Supreme Court of Canada released Boutilier . Thus, the sentencing judge applied the law as it stood at the time, as set out in this court’s decisions in R. v. Boutilier , 2016 BCCA 235 and R. v. Pike , 2010 BCCA 401, and considered treatability to be relevant only at the sentencing stage. She reviewed the required elements to establish a designation of dangerousness under s. 753(1)(a)(i), (ii) and (b) and then turned to discuss what constitutes a “reasonable expectation” that a measure less than an indeterminate sentence will adequately protect the public: [161]    A “reasonable expectation” is defined in Regina v. Taylor, 2012 ONSC 1025, at paragraph 356, as a “confident belief for good and sufficient reason based on the evidence”. The Court must examine the offender’s “treatability” in determining this issue, which requires consideration of both the offender’s willingness to undertake treatment, and the prospects otherwise of the success of that treatment in reducing the risk posed by the offender to a manageable level. [162]    Evidence of the treatability of the offender must be “more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time” (Regina v. McCallum, 2005 O.J. No. 1178). [93] The judge referred to this court’s decision in Boutilier , which discussed the 2008 amendments to the dangerous and long-term offender provisions, and referred (at para. 27) to the “2008 terminology of presumptively requiring the imposition of an indeterminate sentence unless there is a ‘reasonable expectation’ that a lesser measure would adequately protect the public”. She also quoted rather extensively from R. v. Haley , 2016 BCSC 1144, which reviewed the principles then applicable to the designation and sentencing stages of the process. [94] Additionally, the sentencing judge held that the principles in R. v. Gladue , [1999] 1 S.C.R. 688 and R. v. Ipeelee , 2012 SCC 13 apply to dangerous offender proceedings. She took guidance from the decision of Bruce J. in R. v. Shanoss , 2013 BCSC 2335 [ Shanoss BCSC ], (aff’d in Shanoss BCCA ), which stated: [164]    In my view, it would be an error to limit the application of the Gladue factors in a dangerous offender proceeding in order to prioritize protection of the public as a sentencing objective. The unique circumstances of the Aboriginal offender must be given careful consideration in every sentencing. The fundamental principles of sentencing in s. 718.1 and s. 718.2 apply with equal force to a dangerous offender proceeding. The moral blameworthiness of the offender is a fundamental consideration and the Aboriginal heritage of an offender often has a direct and substantial impact on their moral culpability for the offence. A person who grows up in a culture of alcohol and drug abuse is less blameworthy than a person who commits a crime despite a positive childhood and upbringing. [95] The judge recognized, however, that despite the influence of Gladue factors, the need to protect the public may be paramount in certain cases (as it was in Shanoss BCSC ). [96] With respect to the evidence, the sentencing judge reviewed the extensive record before her in relation to the appellant’s background, his youth and adult criminal history, his behaviour while in custody and his efforts to participate in treatment programs, his performance while on probation, a previous psychological assessment and Elder review, the Gladue reports and the evidence of Mr. Cadwallader, and the assessments of Dr. Lamba and Dr. Tomita, all of which is outlined to some extent above. The judge also reviewed written comments provided by the appellant, expressing remorse and a changed attitude. [97] The judge considered some of the community options and release plans outlined by Mr. Cadwallader to be unsuitable for the appellant, primarily due to the “complete unknown” regarding his motivation to take the steps necessary to live a crime-free life. [98] The judge referred to the appellant’s dismal record of behaviour during his years of incarceration, describing him for the most part as “ a problem inmate, disrespectful, disobedient, dishonest, aggressive, guilty of possession of contraband, including homemade alcohol, and so on”. She also noted a recent improvement in his behaviour and his participation in programs, and agreed with Dr. Tomita’s observation that the appellant was trying “a little bit harder to avoid problems and follow the rules”. The judge was skeptical, however, that the appellant’s written comments demonstrated real insight into his behaviour due to the delayed timing of his expressions of remorse and the many inconsistencies in his evidence. [99] The sentencing judge considered the 2006 sexual assault and the two index offences to be serious offences that involved attacks on vulnerable women in secluded places, using physical restraint and threats of death or other bodily harm, motivated by a desire for sexual gratification. She found that the evidence established beyond a reasonable doubt a pattern of repetitive behaviour by the appellant as enumerated in s. 753(1)(a)(i) and (ii), as well as a failure to control his sexual impulses as set out in s. 753(1)(b). [100] The judge found the evidence that the appellant was likely in the future to repeat this behaviour to be “overwhelming”. She considered that his history was the “best indicator of his likely future conduct” and she relied on the opinions of Dr. Lamba and Dr. Tomita. Finding that the appellant constitutes “a threat to the life, safety or physical or mental well-being of other persons”, the judge designated him a dangerous offender. [101] In assessing an appropriate sentence, the judge took into account the following evidence: · some positive signs in the 18 months prior to sentencing, in that the appellant had recently been more compliant with expectations respecting his conduct while in custody and had provided written comments indicative of “some increased insight into the causes, the triggers, and the consequences for other persons, of his criminal acts”; · Dr. Tomita’s evidence that it was a “reasonable likelihood” that once the sanction of an indeterminate sentence was removed, the appellant would return to his more familiar attitudes and patterns of behaviour; and · the appellant’s experiences as an Aboriginal person that had contributed to his present personality and tendencies “such that he must by law be considered to be less morally blameworthy for his criminal acts than if he did not have those antecedents”. [102] However, she concluded that the appellant remains a threat to the life, safety, or physical or mental well-being of other persons “in spite of his slightly improved behaviour during the last 18 months, and in spite of what he said in his written comments to the Court”. She also concluded that the appellant: [181]    …is who he is now not only because of his antecedents, but because he has declined to deal in any focused, positive way with the issues that he has known of and recognized as contributors to his misconduct for almost two decades. He has been offered or required to engage in appropriate treatment for all of that time. He has almost never been both out of custody and not supervised by a youth worker, a probation officer or a parole officer. In spite of long stretches of time in custody, and all of those years of community supervision, he remains an untreated sex offender because he declined to engage in treatment. In spite of having taken some treatment to address his other violent offending, he has repeatedly very quickly reoffended after being released from custody. [103] The judge found that an indeterminate sentence was necessary given the appellant’s “ severe antisocial personality disorder, psychopathic traits, and longstanding and severe addiction to alcohol and other drugs”, questions about the sincerity of his motivation or capacity to change, and “the complete lack of any evidence” that his level of risk might be sufficiently reduced within a definite period of time regardless of any treatment he undertakes. Analysis 1.        Did the judge fail to take into account evidence of the appellant’s treatability? [104] As discussed above, Boutilier confirmed that a designation as dangerous cannot be made unless the offender is shown to present a high likelihood of harmful recidivism and that his violent conduct is intractable, and an indeterminate sentence cannot be imposed unless it is shown to be the only measure to adequately manage the offender’s risk of harming the public. Therefore, consideration of an offender’s treatability is relevant at both stages of the process but for different purposes: [ 44 ] Given that a dangerous offender application is typically conducted in one hearing, it would be artificial to distinguish evidence that should be considered to designate an offender as dangerous from evidence that should be considered to determine the appropriate sentence. All of the evidence adduced during a dangerous offender hearing must be considered at both stages of the sentencing judge’s analysis, though for the purpose of making different findings related to different legal criteria. During the application hearing, the Crown or the accused must present any prospective evidence concerning risk, intractability, or treatment programs, including the required assessment report addressing prospective treatment options. Many aspects of clinical evaluations provide evidence going to both the assessment of the offender’s future risk and the sentence necessary to manage this risk: Clinical evaluations identifying the presence of enduring mental illnesses and their treatability, presence of deeply ingrained personality traits or personality disorders that are likely to persist with time, sexual deviations, and substance-use disorders all become relevant in understanding the meaning of repetitive behaviours, persistent aggressive behaviours, and their relationship to the predicate offence/offences . The presence of impulsivity, lack of empathy, and need for immediate gratification at the expense of others will assist the court in examining whether the risk assessment and management of risk factors are related to the statutory tests concerned . [Emphasis added; footnotes omitted.] (Neuberger, at p. 2-37) [ 45 ] The same prospective evidence of treatability plays a different role at the different stages of the judge’s decision-making process. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat . Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable: see Neuberger, at p. 7-1, by M. Henschel. However, even where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public. [Emphasis added.] [105] The appellant submits that the sentencing judge failed to consider treatability at the designation stage, which constitutes a reversible error. He also submits that the judge failed to take into account the evidence of Dr. Tomita regarding his treatability at the sentencing stage, as she failed to address why his evidence did not demonstrate that a lesser measure than an indeterminate sentence would adequately protect the public. [106] The Crown submits that the judge did, in fact, consider treatability at the designation stage of her analysis, and carefully analyzed and accepted Dr. Tomita’s evidence in assessing an appropriate sentence. Designation [107] There is no question that a failure to consider treatability at the designation stage constitutes an error of law: Boutilier at para. 82; Skookum at paras. 57–58; Malakpour at paras. 92–93. However, where there is no reasonable possibility that the finding of dangerousness would have been different had the judge considered this question, the error will result in no substantial wrong or miscarriage of justice: Boutilier at paras. 82–83; Malakpour at paras. 94–98. [108] Given the uncertainty regarding the law pending the release of Boutilier in the Supreme Court of Canada, the Crown took the position before the sentencing judge that she should consider the appellant’s treatability at the designation stage. The Crown says that the following remarks of the sentencing judge demonstrate that she took this issue into account: [177]    The evidence is overwhelming that Mr. Awasis is likely in the future to repeat this behaviour. In this regard his history is perhaps the best indicator of his likely future conduct, but in addition, the Court has the opinions of Dr. Lamba and Dr. Tomita to consider. [109] By reference to the expert opinions, the Crown submits that the judge “would have taken into account intractability as both opinions were geared towards treatment options and their efficacy”. [110] In my view, it is not at all clear that the sentencing judge considered treatability at the designation stage. The above paragraph in the reasons follows a brief analysis of the evidence establishing the violent patterns of conduct enumerated in s. 753(1)(a)(i) and (ii) and the failure to control sexual impulses in s. 753(1)(b). Subsections 753(1)(a)(i) and (b) require a failure in the future to restrain violent behaviour or sexual impulses. The judge’s language tracks these requirements, and is consistent with her summary of the applicable law, which did not include consideration of treatability. [111] That said, I agree with the Crown’s alternative submission that the judge’s factual findings on the appellant’s treatment prospects would have made a finding of dangerousness inevitable. Dr. Lamba and Dr. Tomita each diagnosed the appellant with severe personality disorder and poly-substance abuse, both being primary criminogenic factors and neither being very amenable to treatment. Although Dr. Tomita considered that the appellant presented with a moderate level of treatability for his addiction problems and a lower level of treatability for his sex offending, he agreed that success would require an enduring, positive motivation to change and some degree of success managing the appellant’s addiction problems. The judge was not satisfied, based on the appellant’s history, that his motivation to change was sincere, or that he had the capacity to change, which were findings open to her on the evidence. [112] I would therefore not interfere with the judge’s designation of the appellant as a dangerous offender. Sentencing [113] The appellant submits that Dr. Tomita’s evidence demonstrated that a lesser measure than indefinite incarceration would have sufficiently protected the public. He says that the judge’s reference to a “complete lack of evidence” that his risk could be reduced to a manageable level shows that she did not take Dr. Tomita’s evidence on this point into account. He contends that Dr. Tomita never resiled from his opinion that, although the appellant would likely repeat a pattern of community release followed by substance use, it was unlikely that such brief usage would lead to the demoralized state where he is most at risk of offending. [114] In my view, the appellant’s submission on this point takes aspects of Dr. Tomita’s evidence out of context. It is true that Dr. Tomita did not consider a repeated pattern of community release followed by substance use to be unmanageable per se . However, he considered the appellant’s substance abuse to be a significant factor leading to instability and acknowledged that his optimistic view was based on an assumption that the appellant would have an enduring motivation to address his addictions and make changes to his lifestyle to the point where he achieved some stability, such as having a place to live and positive social connections. He agreed that the appellant would likely commit offences “pretty quickly” if this assumption was incorrect and that his history of breaching release conditions by drinking suggested that he reoffended “very quickly, violently and sexually”. [115] Dr. Tomita considered that the appellant was motivated as a result of the severity of the sanction being proposed, but acknowledged that if the possibility of such a sanction were removed, there was a reasonable likelihood that he would “go back to where he’s always been”. He was not able to opine on the length of time it would take to successfully treat the appellant’s antisocial personality disorder, substance abuse and trauma issues. He said that the appellant would need to “at least enter a program to gauge how much treatment is going to be required”. [116] Ultimately, the judge had to be satisfied that there existed a reasonable expectation, grounded in the evidence, that some measure less than an indeterminate sentence would adequately protect the public. In this regard, she was not satisfied: [182]    In view of Mr. Awasis’ severe antisocial personality disorder, his psychopathic traits, and his longstanding and severe addiction to alcohol and other drugs, in view of the questions that remain about the sincerity of his motivation to change, and about his capacity to change even if highly motivated to do so, in view of the complete lack of any evidence that Mr. Awasis’ level of risk might be sufficiently reduced within a definite period of time so that the risk he poses would be manageable in the community, regardless of the treatment he undertakes, I conclude that the necessary sentence here is a period of incarceration for an indeterminate period. [183]    I have concluded on all of the evidence that the risk that Mr. Awasis will commit further violent and sexual offences cannot be managed so as to adequately protect the public with any sanction other than an indeterminate sentence. There is no sentencing measure less than an indeterminate sentence of incarceration that will adequately protect the public. [117] In my view, the judge’s findings are supported by the evidence, including the evidence of Dr. Tomita. She did not find a “complete lack of evidence that the appellant’s risk could be reduced to a manageable level”, as he submits, but rather a complete lack of evidence that the appellant’s risk “might be sufficiently reduced within a definite period of time” so that his risk would be manageable in the community, a distinction of some importance. As noted above, Dr. Tomita did not know how long it would take to successfully treat the appellant’s antisocial personality disorder, substance abuse and trauma issues, as he had not yet been in a high-intensity program to gauge what treatment was actually needed. In light of this evidence, it was open to the judge to conclude, as she did, that the appellant’s risk could not be managed in the community so as to adequately protect the public. [118] It is not a function of this court to re-weigh the evidence of Dr. Tomita. Deference is owed to the judge’s findings of fact and credibility with respect to the question of whether an offender’s risk would be manageable in the community: Currie at para. 38; Malakpour at para. 54. [119] I would not give effect to this ground of appeal. 2.        Did the judge fail to give tangible effect to Gladue factors in determining sentence? [120] The appellant submits that the sentencing judge failed to give “tangible effect” to the Gladue factors that affected him, resulting in an erroneous elevation of his moral culpability and a disproportionate sentence. Although the judge described in some detail his history, the appellant says that she failed to consider how that history ought to impact his sentence, which is contrary to Ipeelee . [121] The Crown submits that the appellant’s assertion finds no support in the judge’s reasons, as she detailed his antecedents, early life, the Gladue reports and the evidence of Mr. Cadwallader in some detail, and recognized that Gladue principles apply to dangerous offender proceedings. The Crown also submits that characteristics which mitigate an offender’s moral blameworthiness have lesser impact in dangerous offender proceedings, citing R. v. Jennings , 2016 BCCA 127 and R. v. Smarch , 2015 YKCA 13. [122] It is beyond dispute that judges have a duty to consider Gladue factors in determining a just and appropriate sentence in any case involving an Aboriginal offender, including dangerous and long-term offender proceedings: Ipeelee at para. 87; Boutilier at paras. 53 – 54 and 63; Shanoss BCCA at para. 24; R. v. Fontaine , 2014 BCCA 1 at para. 33 . Even so, applying Gladue factors is not an easy task when sentencing a dangerous offender. [123] Section 718.2(e) of the Criminal Code directs sentencing judges to give particular attention to the circumstances of Aboriginal offenders when considering “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community”. Given that public protection is the primary objective of the dangerous offender scheme, and the available sanctions are limited to sentences of imprisonment as set out in s. 753(4), this court has noted that the application of Gladue factors in this context may be limited: Garnot at para. 66; Jennings at para. 37; see also Smarch at para. 47, citing R. v. Ominayak , 2012 ABCA 337 at para. 41; R. v. Standingwater , 2013 SKCA 78 at para. 49; and contra Shanoss BCSC . [124] In Boutilier , the majority confirmed that public protection as an enhanced sentencing objective for dangerous offenders does not operate to exclude other objectives: [56]      …It is permissible for Parliament to guide the courts to emphasize certain sentencing principles in certain circumstance without curtailing their ability to look at the whole picture. Emphasis on the public safety component is consistent with the fact that public protection is the general purpose of Part XXIV of the Code [125] The “ability to look at the whole picture” then, which of course includes Gladue considerations, will necessarily be constrained to some extent in a dangerous offender proceeding due to the emphasis on public safety and the narrower options available to a sentencing judge. However, as Bennett J.A. noted in R. v. Ladue , 2011 BCCA 101 at para. 53 ( aff’d in Ipeelee ), the choice for the sentencing judge is not simply custody or not custody, but rather the possibility of reducing a sentence to accommodate subsequent probation, or in this case, long-term supervision. Rehabilitation remains an important sentencing principle for dangerous offenders, as the question of whether a sentence less than an indeterminate period is appropriate will depend on the offender’s prospects for addressing the issues that contribute to his or her risk. That said, the court in both Gladue and Ipeelee emphasized that s. 718.2(e) can be seen as Parliament’s direction to judges to inquire into the causes of the problem of the drastic overrepresentation of Aboriginal people in the prison population and criminal justice system, “ and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process ”: Gladue at para. 64; Ipeelee at para. 68 (emphasis added). [126] In Ipeelee and its companion case, Ladue , relied on by the appellant, the court noted that it was not enough for sentencing judges to acknowledge an offender’s Aboriginal status; they must consider how it ought to impact their sentencing decisions. Those cases involved sentences for breaches of long-term supervision orders, where the protection of the public was considered by the majority to be an important, but not paramount, sentencing objective, along with rehabilitation. In both cases, the majority concluded that the sentencing judges had not put sufficient emphasis on rehabilitation due to the unique circumstances of the Aboriginal offenders. [127] Earlier jurisprudence noted that dangerous and long-term offender designations, while both contributing to assuring public safety, have different objectives, in that dangerous offenders are kept in prison to separate them from society, while long-term offenders will eventually be under supervision in the community for the purpose of assisting in their rehabilitation: R. v. L.M. , 2008 SCC 31 at para. 42. This distinction has been attenuated in the 2008 amendments to Part XXIV of the Criminal Code , as a designated dangerous offender is no longer automatically sentenced to indeterminate detention. Gladue factors are clearly important considerations for a sentencing judge when determining “the least intrusive sentence required” to achieve the primary purpose of public protection, per Boutilier at para. 60. While it may seem counterintuitive to suggest that Gladue factors could overcome findings of dangerousness, a high risk of recidivism and intractability—they could, for example, provide a basis for assessing the viability of traditional Aboriginal-focused treatment options aimed at addressing the issues that contribute to or aggravate an offender’s risk. If such resources are available and considered appropriate, they could provide a basis for finding that a lesser sentence will adequately protect the public. In this regard, see the comments of Caldwell J.A. in Standingwater at para. 51. [128] The sentencing judge’s assessment of the appellant’s Gladue factors was briefly summarized in the concluding section of her reasons: [181]    It is clear to me that Mr. Awasis’ experiences as an Aboriginal person have contributed to his present personality and tendencies such that he must by law be considered to be less morally blameworthy for his criminal acts than if he did not have those antecedents. Nevertheless, Mr. Awasis is who he is now, not only because of his antecedents, but because he has declined to deal in any focused, positive way with the issues that he has known of and recognized as contributors to his misconduct for almost two decades. He has been offered or required to engage in appropriate treatment for all of that time. He has almost never been both out of custody and not supervised by a youth worker, a probation officer or a parole officer. In spite of long stretches of time in custody, and all of those years of community supervision, he remains an untreated sex offender because he declined to engage in treatment. In spite of having taken some treatment to address his other violent offending, he has repeatedly very quickly reoffended after being released from custody. [129] This passage demonstrates that the judge accepted that the appellant’s Gladue factors reduced his moral blameworthiness, but she considered his repeated history of reoffending and his long-standing failure to address the issues that contributed to his criminal conduct to be so entrenched that the need to protect the public had to be paramount. Although she did not articulate in any detail the unique systemic and background factors that may have played a part in bringing the appellant before the court, she did address the need to consider these factors and she reviewed much of the appellant’s background earlier in her reasons. [130] The judge expressly accepted that Gladue principles applied in dangerous offender proceedings and drew guidance from Shanoss BCSC (where Bruce J. took a broader approach to the application of Gladue in this context). She reviewed in some detail the appellant’s very difficult background and early life, which included the intergenerational effects of residential schools, the Gladue reports, and the evidence of Mr. Cadwallader. She accepted that the appellant’s life was “marked by loss and tragedy”, that he grew up in circumstances marked by the effects of poverty and alcoholism, and that he was “sexually, physically and emotionally abused” while he was at residential school (at paras. 17 and 148). [131] Along with this background, however, the judge also reviewed the considerable evidence about the appellant’s long-standing failures to participate in sex offender treatment in custody, to address his addiction problems, to participate in Aboriginal-focused programs in the community, and to abide by conditions when released into the community. She also considered evidence of improved behaviour in the previous 18 months, in which the appellant had been “more compliant with expectations respecting his conduct while in custody” and had indicated in his written comments to the court some increased insight into the causes of his criminal conduct. The judge reviewed all of that history, along with the evidence of Mr. Cadwallader, Dr. Lamba and Dr. Tomita, noting in particular Dr. Tomita’s acknowledgment that once the sanction of an indeterminate sentence was removed, there was a reasonable likelihood that the appellant would return to his more familiar attitudes and patterns of behaviour. Ultimately, the judge was not satisfied that the appellant had the motivation or capability to meaningfully participate in treatment or address his addiction problems such that he could be managed in the community to an acceptable level. [132] I do not accept the appellant’s submission that he was “blamed and made to bear sole responsibility” for aspects of his criminal conduct that resulted from his experiences as an Aboriginal offender. In the context of a dangerous offender proceeding, it does not necessarily follow that a determination that public protection must be paramount demonstrates a failure to give Gladue factors tangible consideration. While the appellant’s lack of motivation and capacity undoubtedly stem largely from his tragic background, the judge was unable to remedy this complex problem through the sentencing process. Mr. Cadwallader’s recommendation regarding community-based programs was predicated upon the appellant first having the opportunity to meaningfully participate in sex offender treatment before being reintegrated into the community, but at the time of sentencing, the appellant remained an untreated sex offender. And because the appellant had not yet been in a high-intensity program, Dr. Tomita was unable to say how long it would take to successfully treat his underlying issues. [133] In my view, this was a difficult case. As I stated earlier in these reasons, indeterminate detention is intended to be limited to “habitual criminals who pose a tremendous risk to public safety” ( Boutilier at paras. 34 and 77), yet the appellant’s antecedents as an Indigenous person that have contributed to his risk are unfortunately not unique. It is for this reason that judges must remain vigilant in exercising restraint and proportionality in respect of an Aboriginal offender in assessing whether there is a “reasonable expectation” that a lesser measure “will adequately protect the public against the commission by the offender of a serious personal injury offence” under s. 753(4.1) of the Criminal Code . [134] While the judge in this case ought to have articulated more precisely how she considered the appellant’s Gladue factors, when her reasons are read as a whole and in conjunction with the evidence, I cannot conclude that she did not adequately consider them. Her determination that public protection was paramount despite the appellant’s reduced moral blameworthiness is supported by the evidence. Her findings are entitled to deference and it is not the function of this court to re-weigh that evidence. [135] Therefore, I would not give effect to this ground of appeal. 3.        Is the indeterminate sentence manifestly unfit? [136] The appellant’s final submission, that the indeterminate sentence is grossly disproportionate to his moral culpability, relies on the first two grounds of appeal. Given my conclusions on those grounds, there is no basis to conclude that the indeterminate sentence imposed is manifestly unfit. Disposition [137] I would dismiss the appeal. “The Honourable Madam Justice Fisher” I AGREE: “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Mr. Justice Abrioux”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Chappell, 2020 BCCA 38 Date: 20200124 Docket: CA46104 Between: Regina Respondent And David Lee Chappell Appellant Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Fitch The Honourable Mr. Justice Butler On appeal from:  An order of the Supreme Court of British Columbia, dated March 15, 2019 ( R. v. Chappell , 2019 BCSC 644, Kamloops Dockets 104963‑2; 105153‑1‑T; 105153‑2‑T; 105154‑1‑T; 105154‑2‑T; 105155‑1‑T; and 105155‑2‑T ). Oral Reasons for Judgment Counsel for the Appellant: C.E. Johnson Counsel for the Respondent: M.G. Scott Place and Date of Hearing: Vancouver, British Columbia January 24, 2020 Place and Date of Judgment: Vancouver, British Columbia January 24, 2020 Summary: Held: Appeal allowed. A restitution order requiring the appellant to pay in excess of $200,000 to redress damage cased to a tractor‑trailer and cargo in the course of a drug‑fueled crime spree is set aside. The order was made without enquiry into his ability to pay the amount, and appears to be based on the remote possibility of a windfall. R. v. Dunn, 2010 BCCA 22 applied. A restitution order in the amount of $6,500 in favour of the owner of the unit is issued in place of the one set aside. [1] SAUNDERS J.A. : David Lee Chappell seeks leave to appeal sentence and if leave be granted, appeals from a restitution order in the amount of $201,613.37 made on March 15, 2019, as part of the sentence for a number of offences that took place over six months. The spree culminated in an incident on November 6, 2017, when, attempting to evade arrest, he seized a tractor‑trailer, kidnapped the driver at the point of an imitation firearm, and when the driver escaped, attempted to drive the vehicle himself, rolling it down an embankment on the side of a highway. Mr. Chappell had been using crystal methamphetamine at the time of this offence and the sentencing judge described all of the offences as “drug fuelled”. Mr. Chappell pleaded guilty. [2] At the sentencing hearing, some information was provided to the judge as to Mr. Chappell’s past earning history, which was significant, in the oil and gas industry in Alberta. He had left that industry by the time of the offences. Most of the sentencing hearing concerned the length of the custodial sentence that should be imposed. The Crown sought a global sentence of seven years and seven months for all of his offences. Mr. Chappell sought a sentence of two years less a day after taking into account time served. [3] Also at the sentencing hearing, the Crown sought restitution orders in favour of his former intimate partner whose windshield he had broken, and the insurer of the tractor‑trailer, in the amounts of $449.01 and $201,613.37 respectively. In asking for them the Crown explained that they would be stand‑alone and not form part of the sentences, but “would be out there in the event that Mr. Chappell ever wins the lottery”. I understand that by saying they would not form part of the sentence Crown counsel was saying in a colloquial way that the restitution orders would not have penal consequences. The restitution orders, of course, are part of the sentence imposed and give rise to a sentence appeal: R. v. Nanos , 2013 BCCA 339. [4] There was some discussion between counsel for Mr. Chappell and the judge concerning the restitution order in relation to the windshield ($449.01) but through some mistake, no discussion at all with counsel about the restitution order in favour of the insurer. Apart from the assumption, implicit in the Crown’s suggestion that the restitution orders were there in the event Mr. Chappell had a windfall so that it was unlikely Mr. Chappell could satisfy the restitution orders, there was no discussion of the ability of Mr. Chappell to satisfy the orders. [5] The judge imposed a global sentence of five years and six months for the offences, reflecting a reduction in consideration of the totality principle. She then made both restitution orders sought by the Crown pursuant to s. 738 of the Criminal Code , R.S.C. 1985, c. C‑46, and did so without referring to Mr. Chappell’s capacity to pay. [6] Mr. Chappell does not contest the order he pay restitution to his former partner in the amount of $449.01. He appeals only the restitution order aimed at the damage he caused to the tractor‑trailer, equipment and cargo. He contends that the court erred in failing to consider his ability to pay the restitution order, both present and future, in accordance with the decision in R. v. Yates , 2002 BCCA 583 para. 17. He acknowledges, as he must, that his counsel did not protest the order at the sentencing hearing, but says that the Crown failed to lay the groundwork for the order by establishing in some fashion that payment was more than a pipe‑dream. Mr. Chappell refers us to R. v. Heathcliff , 2015 YKCA 15 at paras. 7–13, wherein the Yukon Court of Appeal reduced the amount of a restitution order when the sentencing judge ignored the offender’s ability to pay. [7] We can approach the question before us by asking whether the judge made an error in principle, or whether the sentence is demonstrably unfit. I prefer to address the appeal on the latter question, as it is clear to me that the restitution order imposed is excessive in the context of the information before the judge, so as to render it unfit in the circumstances. I conclude that on the record before us, it is most unlikely that Mr. Chappell will be able to make any meaningful dent in the amount owed, [8] In R. v. Dunn , 2010 BCCA 22, the judge had referred to the capacity of the offender to pay the restitution order by saying as to the likelihood of recovering the money: “Well, if he wins the lottery, I guess so.” Mr. Justice Donald observed that there had been no real inquiry into the capacity to pay the order and, in setting it aside, said: [12]      I am unable to say that any useful purpose would be served by a restitution order where the likelihood of compliance is as remote as the judge said. The order was an afterthought made without the benefit of full argument and is unlikely to provide any tangible benefit to the victim. [9] There is no evidence, or even information, before us of prejudice from reliance on the restitution order. On the other hand, we do know that by s. 178(1) of the Bankruptcy and Insolvency Act , R.S.C. 1983, c. B‑3, a discharge from bankruptcy would not discharge Mr. Chappell from the restitution order. In other words, this order is likely to burden him indefinitely, and will make more difficult his rehabilitation as a fully participating member of the community, upon release from custody. [10] I consider that the restitution order in its current amount should be set aside. The question then is whether any order directed to the damage he did to the truck and cargo should be substituted. [11] Mr. Chappell proposes as an alternative to the order appealed, an order in the amount of $6,500 in favour of the owner of the vehicle, being the amount it paid as the deductible. That is not an insignificant sum, but is an amount that Mr. Chappell should be able to satisfy within some reasonable time after release from custody, given his employment history in the past. Accordingly, I would grant leave to appeal sentence, allow the appeal, set aside the restitution order in the amount of $201,613.37, and order that Mr. Chappell make restitution to 1434179 Alberta Ltd. of Grande Cache, Alberta in the amount of $6,500. [12] FITCH J.A. : I agree. [13] BUTLER J.A. : I agree. [14] SAUNDERS J.A. : Leave to appeal sentence is granted, the appeal is allowed, the restitution order in the amount of $201,613.37 is set aside, and an is order made that Mr. Chappell make restitution to 1434179 Alberta Ltd. of Grande Cache, Alberta in the amount of $6,500. “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Charlie, 2020 BCCA 39 Date: 20200124 Docket: CA44887 Between: Regina Respondent And James David Junior Charlie Appellant Restriction on publication: A publication ban has been imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a victim/witness/undercover officer. This publication ban applies indefinitely unless otherwise ordered. SEALED IN PART Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Fitch The Honourable Mr. Justice Butler On appeal from:  An order of the Supreme Court of British Columbia, dated October 12, 2017 ( R. v. Charlie , Prince George Docket 36893‑13). Oral Reasons for Judgment Counsel for the Appellant: M.P. Klein, Q.C. R. Thirkell Counsel for the Respondent: D.M. Layton, Q.C. Place and Date of Hearing: Vancouver, British Columbia January 24, 2020 Place and Date of Judgment: Vancouver, British Columbia January 24, 2020 Summary: The appellant was convicted of first degree murder. In the course of deliberations, the jury asked several questions. One question concerned the mens rea of party liability for murder. Held: Appeal allowed. The judge gave an answer that did not describe the mens rea correctly and omitted reference to knowledge the principal offender intended to commit the crime. The verdict cannot be saved and a new trial is required. [1] SAUNDERS J.A. : James David Junior Charlie was convicted by a jury on October 12, 2017 of one count of first degree murder of Fribjon Bjornson on or about January 12, 2012, at or near Fort St. James, British Columbia. On August 31, 2016, two other persons pleaded guilty to second degree murder of Mr. Bjornson and Mr. Charlie pleaded guilty to offering indignities to a dead body or human remains, between January 12, 2012, and February 1, 2012, at or near Fort St. James. [2] The circumstances of Mr. Bjornson’s death are brutal. The theory of the Crown was that Mr. Charlie was one of four people who assaulted Mr. Bjornson over a prolonged period of time in the basement of a residence, that Mr. Charlie provided a wire or cord to one of the men who had beaten Mr. Bjornson, knowing the man would use it to strangle Mr. Bjornson, and that with others, Mr. Charlie took Mr. Bjornson’s dead body to the shore of nearby Stuart Lake where it was covered with snow for about a week, before he and another person moved it to a location where the indignities occurred. [3] At trial, the question for the jury was whether Mr. Charlie was guilty of first degree murder or alternatively, second degree murder or manslaughter. Those questions engaged the law on party liability for murder, a mens rea issue. The judge instructed the jury on the elements of first degree murder, second degree murder and manslaughter, and on the law of party liability. The judge did not instruct the jury on the included offence of attempted murder, nor on the defence of intoxication. [4] The judge did not provide the jury or counsel with a copy of his instructions. [5] During their deliberations, the jury asked several questions of the trial judge. The first question had three parts: 1) Can we have a copy of the judge’s statement regarding elements of 1st & 2nd degree murder and manslaughter? – We would prefer this is writing rather than the judge explaining it to us. 2) We are unclear on the element of forcible confinement. 3) For 2nd degree à the element of unlawful act w assault with weapon [ sic ]. Is the only consideration the cord ? [6] In response, the judge provided the jury with a 31 page excerpt of his charge to the jury, provided an answer on the jury’s second part of its question on forcible confinement, and asked for clarification of the third part of the question. [7] The jury then returned with a second question, restating the third part of its earlier question that the judge had not understood. That question focussed on the character of “the cord” as a weapon used in the assault. The judge answered that question. That evening, the judge received another question from the jury. It disclosed part of the jury’s deliberations. The judge advised counsel the next morning that he had received this question the night before, would seal it, and would ask the jury to rephrase the question in a way that did not disclose their deliberations. The jury returned this question: Please re‑explain the criteria for first degree murder, second degree murder, and manslaughter. Please re‑explain forcible confinement for primary and secondary parties and what constitutes a continuous event and two or more separate events. [8] The judge’s response to this request was lengthy. The answer fell into two portions. First, he addressed the potential that murder and unlawful confinement could be one, or two, transactions and provided examples. Second, he addressed the actus reus and the mens rea for party liability for murder including: To be a party to an offence or to – or to an offence you have to first find that the principal actually committed the offence. Then you have to find that the party did something and that act actually aided – that is assisted or abetted – that is encouraged the principal to commit the offence. You also have to find that the party intended that his actions would aid – again – assist or abet, encourage, the principal to do the act. So they have – the – the party has to do something that actually assists and they have to actually intend to actually insist – to assist the party, the principal, rather. [9] Mr. Charlie appeals from conviction. He says the judge erred in several ways in answering the jury’s questions, in refusing to instruct the jury on the partial defence of intoxication, and in failing to instruct the jury on all available verdicts, specifically the included offence of attempted murder. On the questions, Mr. Charlie contends, in particular, that the judge erred in answering the jury’s last question by giving a faulty instruction on the mens rea of party liability for murder. [10] In most appeals the Crown vigorously supports the trial results, but not always is it able to do so consistent with its most important duty, in the public interest, to uphold the administration of justice and ensure trial process is fair. This is one of those cases in which the Crown, acting in its highest tradition and I am sure after much reflection, does not contest all of the grounds of appeal raised by the appellant. [11] The Crown does dispute all of the grounds of appeal raised except the one concerning the answer on the mens rea of party liability for murder. On that ground, on the mens rea , the Crown concedes that the appeal should be allowed because the instruction suggests that a person can be convicted as a party to murder provided he or she intended to assist the principal in doing “the act”, and does not instruct the jury that the party must have known that the principal intended to commit the crime : R. v. Briscoe , 2010 SCC 13 at para. 17 ; R. v. Podolski , 2018 BCCA 96 at paras. 194–195. The Crown further acknowledges that the verdict cannot be saved under the curative proviso of s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C‑46. [12] We have had the opportunity to review the troubled instruction, and I agree that the instruction I have quoted contains the error conceded by the Crown. The error is central to the instruction on the mens rea of party liability for murder. As such, it is not a harmless error. Nor can it be said that although serious, the evidence is so overwhelming that a reasonable and properly instructed jury would inevitably have convicted: R. v. Van , 2009 SCC 22. [13] While this conclusion is a burden to all those interested in pressing the case to a decisive conclusion, particularly the family and friends of Mr. Bjornson, and also those called on to take part in the trial, in my view, the verdict must be set aside and a new trial ordered. [14] Accordingly, I would set aside the conviction and order a new trial. [15] FITCH J.A. : I agree. [16] BUTLER J.A. : I agree. [17] SAUNDERS J.A. : The appeal is allowed, the conviction is set aside and a new trial is ordered. “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Charlie, 2020 BCCA 24 Date: 20200124 Dockets: CA45605; CA45614 Docket: CA45605 Between: Regina Respondent And Nicholas Des Charlie Appellant - and - Docket: CA45614 Between: Regina Respondent And Abraham Charlie Percy Louie Appellant Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. Section 16(4) of the Sex Offender Information and Registration Act : This section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA . Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Willcock The Honourable Mr. Justice Goepel On appeal from:  Orders of the Supreme Court of British Columbia, dated November 29, 2017 (conviction) and August 29, 2018 (sentence) ( R. v. Charlie , 2017 BCSC 2549 (conviction) and 2018 BCSC 1800 (sentence), Duncan Docket 38273). Counsel for the Appellant, Nicholas Des Charlie: D.J. McKay R.R. Drury Counsel for the Appellant, Abraham Charlie Percy Louie: B.R. Anderson Counsel for the Respondent: J.A.M. Dickie Place and Date of Hearing: Vancouver, British Columbia October 29, 2019 Place and Date of Judgment: Vancouver, British Columbia January 24, 2020 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Goepel Summary: The appellants were convicted as parties to an aggravated sexual assault pursuant to ss. 21(1) and 273(2)(b) of the Criminal Code. The evidence against the appellant Louie was that he grabbed the complainant’s arm to restrain her from leaving the room in which the assault took place. The evidence against the appellant Charlie was that semen and the complainant’s blood were found on his shorts. The judge found, despite some uncertainty as to their respective roles, that the evidence established the appellants were at the very least parties to the offence. Held: Louie’s appeal is allowed; Charlie’s appeal is dismissed. The verdict against Louie was unreasonable because there was no evidence to sufficiently connect his restraint of the complainant to the subsequent sexual assault. With respect to Charlie, it was open to the judge to conclude he was a party to the assault based on the presence of the blood and semen on his shorts and it is discernable from the reasons for judgment that this was the basis for his conviction. Reasons for Judgment of the Honourable Mr. Justice Willcock: Introduction [1] At the conclusion of a trial before a Supreme Court Judge, Nicholas Charlie (“Charlie”) and Abraham Louie (“Louie”) were convicted of aggravated sexual assault contrary to s. 273(2)(b) of the Criminal Code , R.S.C. 1985, c. C‑46. Reasons for judgment are indexed as 2017 BCSC 2549. Each accused was sentenced to seven years’ imprisonment, less appropriate credit for time in custody before trial. Reasons for sentence are indexed as 2018 BCSC 1800. Each accused appeals his conviction. [2] Louie contends the verdict is unreasonable, principally because the trial judge misapprehended the evidence when she found he intended to facilitate a sexual assault. He says the evidence could not support that inference. Further, he contends the trial judge erred in law by failing to consider whether intoxication precluded him from forming the specific intent required to convict him as a party to the offence under s. 21(1)(b) or (c) of the Code . [3] Charlie contends the verdict is unreasonable because the judge assumed facts that were not in evidence and drew improper inferences from those assumed facts. He further contends there was a miscarriage of justice because the judge erred in her assessment of the credibility of the complainant. Last, he says the trial judge erred in law by finding him guilty as a party to the offence without an analysis of the applicable law and without providing sufficient reasons upon which he could discern the basis for his conviction. The Evidence [4] The complainant testified that on June 25, 2016, after consuming some alcohol at home in the afternoon and sleeping for a few hours, she went to meet her sisters (T.J. and C.C.) at a house on Whut’stun Road in Duncan in the evening. She remained at that house until the following morning. [5] On arriving she entered a downstairs bedroom and joined T.J., her cousin, Abraham Louie, Nicholas Charlie and Charlie’s father. She had previously dated Louie. She did not know Charlie well but had seen him previously. Those present in the room were drinking from a 60 ounce bottle of vodka that was being passed around. The complainant, T.J., her cousin and Louie sat on a bed, Charlie on a bench, and his father was in a wheelchair. [6] The complainant learned that C.C. had passed out upstairs in a bedroom and she went to briefly check on her. When the complainant returned to the downstairs room, Charlie’s father had left. She continued to drink with the others in the room. T.J. and Louie were holding hands and kissing. Louie tried to apologize to the complainant for cheating on her when they had dated, but the complainant did not want to speak about that and felt uncomfortable. [7] The complainant became intoxicated after considerable drinking. Her account of the events that followed consisted of discrete memories interrupted by periods of blackouts during which she was unable to recall what occurred. [8] She has a discrete memory of T.J. asking if she could use her phone. She remembers T.J. then making a call but does not remember the call ending. [9] The next thing she remembers is trying to leave the room. However, Louie, still sitting on the bed, grabbed her bicep and restrained her. She initially testified that she could not recall if T.J. or her cousin were still present in the room at this time, but later testified she did not think anyone other than Louie and Charlie remained when she was restrained from leaving. She admitted some uncertainty on this point in cross‑examination. [10] She does not remember either accused saying anything when Louie grabbed her arm. She testified: “I tried to pull my arm away and I remember saying no and then I blacked out”. In her first account of events at trial, she testified her next memory was taking a step or two outside the bedroom and collapsing on the floor in the hallway. [11] When examined in chief, the complainant initially said nothing about the assault that resulted in her injuries. After being referred by Crown counsel to a statement given to the police, at a break in her testimony, she gave the following evidence: Q.        … having reviewed your statement do you recall, or are you able to tell us, when [Louie] grabbed your bicep what you remember happening next, your next memory? A.         I remember feeling penetration in my vagina. Q.        And was that during the time that you were in the room, or was it when you were outside of the room? A.         It was in the room. Q.        And in terms of the timeline, just so we’re all clear, when you say it was in the room, was that when you came to and got up and walked out of the room, or was it at some other point? A.         I hadn’t left the room because Abraham [Louie] had grabbed me. [12] In cross‑examination, she adopted as true a prior statement in which she described being restrained as follows: “Nick [Charlie] must have been sitting on the bench but all I remember I was trying to say no. I was like don’t. And like I said I blacked out after that. I can’t remember anything else”. [13] C.C. found the complainant lying on the hallway floor in the morning. The complainant was wearing no bottoms and there was blood on the floor. She was bleeding from her vagina and in great pain. Her sister helped her to walk up the stairs. The complainant phoned her partner and asked to be taken to the hospital. She then blacked out again. She has a memory of trying to use the washroom but couldn’t “because it hurt”. She next remembers being in the emergency room in the hospital. [14] Examination at the hospital revealed the complainant had suffered significant injuries to her vagina, anal and rectal areas. She had bruises on her face, head, arms and legs. There was a bruise on her bicep where she believes she was grabbed by Louie. [15] Constable Walsh and Corporal Gelderblom of the RCMP arrived at the house on Whut’stun Road at about 7:30 am on June 26. According to C.C., that was about 30 minutes after she found the complainant sitting on the hallway floor. On entering the downstairs hallway Constable Walsh observed blood on the floor and a blood‑stained roll of toilet paper and a blood‑soaked sponge. She spoke with C.C. and the complainant in an upstairs bedroom. Both appeared to be “quite intoxicated”. The complainant told her “Abraham raped me” and mentioned the name Nick repeatedly. C.C. told Constable Walsh that Abraham Louie and Nicholas Charlie were in the downstairs bedroom. The officers entered the room and located two men there, asleep on a bare mattress. Constable Walsh advised them they were under arrest “for assault and sex assault”. Charlie was wearing only shorts; they appeared to be blood‑stained. Louie was wearing sweatpants and a long‑sleeved shirt. There was a strong smell of alcohol in the room but Charlie did not appear to Constable Walsh to be intoxicated. No noticeable bloodstains, other than those on Charlie’s shorts, were seen by the officers who entered the bedroom in which the appellants were arrested. [16] A DNA analysis was performed on what appeared to be a large bloodstain on the front of Charlie’s shorts and underwear. DNA was identified in two areas tested on samples of fabric removed from Charlie’s shorts. DNA found on the fabric from the upper front left of the shorts was from a strong sample, probably blood, and it produced a profile matching the complainant’s. DNA found on the sample from the upper front right of the shorts was of mixed origin. It produced two profiles: one, probably blood, matching the complainant and the other, semen, matching an unidentified male. No male DNA was identified on vaginal and rectal swabs performed on the complainant. [17] Constable Ramsey of the RCMP attended at the house on Whut’stun Road on June 29 with a search warrant. He inspected the home and took photographs of what he considered to be significant evidence at the scene. These included photographs which showed spots on the floor of the downstairs bedroom in question that appeared to him to be blood. There also appeared to be a small red stain on the headboard of a bed in that room and a similar stain, appearing to be blood, on a light switch. [18] Louie testified in his own defence. It was his evidence that he began drinking at about four or five o’clock in the afternoon before the events in question with a group of four or five people in an upstairs bedroom at the Whut’stun Road house. He believed he had a 40 ounce bottle of vodka. There were also 24 cans of a 5% alcohol drink and another 26 ounce bottle of hard liquor shared by the group. In addition to consuming alcohol Mr. Louie smoked some marijuana. It was Louie’s evidence that after most of the alcohol had been consumed in the upstairs bedroom he went to a downstairs bedroom to pass out. Charlie had said he could sleep on his bed. [19] Louie did not remember sitting on a mattress and talking with T.J. in the downstairs bedroom. He did not recall apologizing to the complainant for his past behaviour, nor did he recall the complainant being in the downstairs bedroom while he was there. The following exchange occurred during his cross‑examination: Q.        Nick Charlie was in the room with you, Junior, downstairs? A.         I believe so. Q.        You’re not certain? A.         No, because I was going to bed. Q.        And you were drunk, right? A.         Yes. Q.        You were actually really like hammered from drinking all that alcohol, isn’t that true? A.         You can say that. Q.        Well I am saying that. I’m saying that to you, sir. You were very drunk, isn’t that true? A.         Yes. Q.        And do you recall who was in the room when you went into the bedroom, to go to sleep that is? You actually have a memory of that? A.         No, I don’t. Q.        So it’s fair to say, sir, that you blacked out at some point throughout the evening? A.         Yes. Q.        So you can’t say whether or not once you got in there, because you blacked out, whether or not you continued drinking, is that fair to say? A.         I know I didn’t. I can’t drink that much. Like every time I drink I puke up blood. Like I honestly can’t drink that much. And I drink over my limit, yes, I have. Q.        And so you can’t say if [the complainant] was in that bedroom, isn’t that true? A.         Yeah, I guess so. I cannot say. [20] There was no evidence with respect to the concentration of alcohol in Louie’s blood or urine at the relevant time. The only expert evidence with respect to alcohol intoxication was the report of an expert in toxicology filed in relation to the blood-alcohol analysis performed on a sample taken from the complainant on her admission to hospital. That indicated that there was a concentration of 224 mg% ethyl alcohol in the complainant’s blood and 270 mg% ethyl alcohol in her urine. The expert provided the following opinion: This BAC [blood alcohol concentration] range is generally associated with severe intoxication. Cognitive effects include: loss of restraint, decreased attention and concentration, decreased judgement, emotional instability (i.e. exaggerated emotions, labile emotions) and impairment of memory. At the high end of the range there may be mental confusion and disorientation. Physical effects include slurred speech, poor balance (e.g. swaying while standing, staggering while walking with reeling and lurching when called upon to make sudden turns or to carry out unexpected movements and possibly inability to stand or walk), gross muscular incoordination, possible vomiting and incontinence. At the higher end of the range there may be impaired consciousness, stupor and unconsciousness may occur. Judgment [21] When reviewing the evidence the trial judge, significantly in my view, described one aspect of the complainant’s evidence as follows: [42]      After refreshing her memory from a statement she gave police the day following the incident, [the complainant] testified that after Mr. Louie grabbed her arm, she felt her vagina being penetrated. Then she blacked out again. [22] The judge appears to have understood it to be the complainant’s evidence that she had a continuous memory from the point she was grabbed on the arm until her vagina was penetrated, blacking out thereafter. [23] The judge made the following findings of fact, at para. 84: (1) N.J. [the complainant] was sexually assaulted; (2) The assault occurred in Mr. Charlie’s bedroom; (3) The attack was violent; (4) She suffered bruises to her face, head, arms, torso and legs. Her vagina and anus were penetrated forcefully; with what is unknown; (5) She bled heavily from her vaginal area; (6) Mr. Louie and Mr. Charlie were in the bedroom before the assault; (7) Mr. Louie and Mr. Charlie were in the bedroom after the assault; (8) Mr. Charlie was wearing shorts and underwear that were covered in the front with N.J.’s blood and his semen; and (9         Both of the accused had been drinking that night. Mr. Louie testified that he was drinking heavily. [24] The evidence against Charlie was summarized as follows, at para. 86: (1) He was in his bedroom with Mr. Louie when Mr. Louie grabbed N.J.’s arm to prevent her from leaving; (2) N.J.’s vagina was then penetrated; (3) She was violently sexually assaulted in his bedroom; (4) She lost a lot of blood; (5) He was in his bedroom after the assault; and (6) He was wearing shorts and underwear that were saturated with N.J.’s blood and his semen. [25] The judge found, considering all the evidence, at para. 87: “[The] only rational conclusion is that Mr. Charlie was, at the very least, a party to the sexual assault of N.J.” [26] The judge concluded Louie was not a credible witness, in part, as she noted at para. 90, because he was very drunk and blacked out during the course of the evening. She rejected his evidence where it conflicted with the complainant’s. [27] The evidence against Louie was summarized as follows, at para. 95: (1) He was in the bedroom before the assault; (2) He was in the bedroom after the assault; (3) He was sleeping beside Mr. Charlie, who had N.J.’s blood all over the front of his shorts; (4) The assault took place in that bedroom. It was violent; (5) Mr. Louie grabbed N.J.’s arm when she tried to leave; and (6) By grabbing N.J.’s arm, Mr. Louie prevented N.J. from leaving the bedroom. After that, she was sexually assaulted. [28] The judge, at para. 96, found Louie’s purpose in grabbing the complainant was to facilitate the sexual assault: “He kept her in that room so she could be sexually assaulted”. [29] She concluded, at paras. 97–98: [97]      How she was assaulted is unknown. What each man did is unknown. What they assaulted N.J. with is unknown. What is known is that N.J. entered that room with no injuries and she left the room bruised, battered and seriously injured. [98]      While I am uncertain as to whether Mr. Charlie or Mr. Louie personally sexually assaulted N.J. or whether they aided and abetted the sexual assault, having considered all of the evidence and all the circumstances, I am satisfied beyond a reasonable doubt that both the accused were parties to this attack on N.J. pursuant to section 21(1) of the Criminal Code . [30] There was no express consideration in the reasons for judgment of the party liability provisions of s. 21(1) of the Code nor of the extent to which, if at all, either accused had the specific intent necessary to be convicted under the aiding and abetting provisions. Grounds of Appeal: Louie [31] The appellant Louie contends the trial judge misapprehended the evidence with respect to the proximity of his restraint of the complainant to the sexual assault. He says that misapprehension was central to his conviction and resulted in a miscarriage of justice. [32] He contends the verdict was unreasonable because the trial judge drew an inference unsupported by the evidence: that his purpose in grabbing the complainant’s arm was to facilitate a sexual assault. [33] He further contends the trial judge erred in law by failing to consider the defence of voluntary intoxication. Charlie [34] The appellant Charlie contends the verdict was unreasonable because the trial judge failed to consider the whole of the evidence regarding the complainant’s credibility. Further, he says, the verdict was founded upon assumed facts that were not in evidence and upon improper inferences from those assumed facts, particularly the inference that the complainant bled onto Charlie’s clothing while she was being sexually assaulted and the inference that it was Charlie’s own semen on his pants. [35] He contends the judge erred in law by finding him guilty under s. 21(1) of the Code without any analysis of the law of party liability and without any substantial argument in relation to the application of that section. [36] An argument advanced in his factum, that the trial judge erred in law by dismissing an application for the exclusion of evidence, was not advanced at the hearing of the appeal. Applicable Law Powers of the Court of Appeal [37] Section 686(1) of the Code provides, in part: 686 (1) On the hearing of an appeal against a conviction … the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (b) may dismiss the appeal where (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred Unreasonable Verdict or Miscarriage of Justice [38] The appellants contend the trial judge erred in the assessment of the evidence: in part, by misapprehending the evidence; in part, by drawing unwarranted inferences; and, in part, by erroneously assessing the reliability of the complainant’s evidence. Some errors are said to undermine the verdict such as to render it unreasonable; others are said to give rise to a miscarriage of justice. [39] A challenge to the verdict as unreasonable pursuant to s. 686(1)(a)(i) on the ground that it is founded upon a conclusion unsupported by the evidence should be addressed by applying the test described in R. v. Yebes , [1987] 2 S.C.R. 168 and R. v. Biniaris , 2000 SCC 15. Where an error, either in failing to consider evidence relevant to a material issue or failing to give proper effect to evidence, is established, the appellate court must measure the verdict against the totality of the evidence adduced at trial , and determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered . [40] Deschamps J. for the majority in R. v. R.P ., 2012 SCC 22, described the appellate court’s role, when faced with such an argument, as follows: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes , [1987] 2 S.C.R. 168 , and R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381 , at para. 36 , determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge ( R. v. Sinclair , 2011 SCC 40; [2011] 3 S.C.R. 3 , at paras. 4 , 16 and 19‑21; R. v. Beaudry , 2007 SCC 5 , [2007] 1 S.C.R. 190 ). [41] Fish J., dissenting, but not on this point, observed: [24] It is well established that reviewing courts, in concluding that a verdict is unreasonable, must articulate as precisely as possible what features of the case support that conclusion. [25]      To this end, a reviewing court must re-examine the entire evidentiary record at trial, consider the effect of its salient elements, and specifically identify aspects of the evidence ― or lack of evidence ― that are of particular concern ( R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381 , at paras. 41-42 ; R. v. Yebes , [ 1987] 2 S.C.R. 168 , at p. 186) . As McLachlin J. (as she then was) stated in R. v. W. (R.) , [1992] 2 S.C.R. 122 , at p. 131, “[i]t is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of the evidence.” [42] Both appellants point to what they say are inadequacies in the trial judge’s assessment of the credibility of the complainant. With respect to challenging the reasonableness of a verdict on this ground, Deschamps J. observed in R. v. R.P. : [10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” ( R. v. Burke , [ 1996] 1 S.C.R. 474 , at para. 7 ). [43] Smith J.A. addressed such submissions in R. v. Ceal , 2012 BCCA 19 as follows: [ 25 ] In determining whether a verdict is unreasonable or cannot be supported by the evidence, the focus of the inquiry is on whether there is any evidence to support the trial judge’s findings based on the totality of the evidence before him or her, and whether the verdict logically flows from those findings. An appellate court will not interfere with a trial judge’s assessment of credibility absent palpable and overriding error in the findings that support his or her assessment. As was noted in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621: [20]      Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this court decided, most recently, in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [ 26 ] This approach to appellate review under s. 686(1)(a)(i) was succinctly summarized by Mr. Justice Doherty in Howe at para. 47, cited with approval by this Court in R. v. Turner, 2010 BCCA 76 at para. 25: [47]      Some arguments on appeal, ostensibly directed at the trial judge’s reasoning process, are in reality thinly veiled invitations to the Court of Appeal to substitute its own credibility assessments for those made at trial. Where the essence of the argument advanced on appeal comes down to an assertion that the trial judge was wrong in accepting the evidence of the complainant and rejecting the evidence of the accused, this submission should be treated for what it is, an assertion that the verdict is unreasonable. The success of that assertion turns, ultimately, not on the reasoning process of the trial judge, although that process is relevant, but on whether the verdict can withstand the limited review contemplated by s. 686(1)(a)(i) of the Criminal Code : R. v. Biniaris (2000), 143 C.C.C. (3d) 1 (S.C.C.) at 20‑24. [ 27 ] Thus, absent palpable and overriding error in the findings that support a trial judge’s assessment of a witness’s credibility, appellate deference must be given to that assessment. [44] As noted in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), and R. v. Lohrer , 2004 SCC 80, an erroneous appreciation of the evidence may result in a miscarriage of justice, and warrant an order for a retrial, even if there is some evidence upon which a properly instructed jury or a judge could reasonably have rendered a guilty verdict. In Morrissey , Doherty J.A., for the court observed: Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict. …If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction. [45] In Lohrer , Binnie J. began his judgment by citing that passage from the judgment in Morrissey and wrote, at para. 1: [1]        … We agree with these observations. Where a miscarriage of justice within the meaning of s. 686(1)( a )(iii) of the Criminal Code , R.S.C. 1985, c. C‑46, has been demonstrated an accused appellant is not bound to show in addition that the verdict cannot “be supported by the evidence” within the meaning of s. 686(1)( a )(i). [46] In R. v. Sinclair , 2011 SCC 40 at para. 9, Fish J. held the Manitoba Court of Appeal had correctly identified a Lohrer error: the trial judge’s reasons were generally cogent and consistent with the evidence but the trial judge had mistaken for evidence the Crown’s theory and drawn an inference based in part on non‑existent testimony. Because there may nonetheless have been evidence capable of supporting a conviction, a new trial, appropriately in the opinion of Fish J., was ordered. [47] In R. v. Swales, 2014 BCCA 350, Stromberg‑Stein J.A., for this Court wrote: [ 47 ] A misapprehension of evidence may undermine the validity of the verdict and give rise to a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code . [ 48 ] The threshold to be met in demonstrating a misapprehension of evidence warranting appellate intervention is stringent. The misapprehension must be a question of substance; must be “material” to the trial judge’s reasoning process; and must play an essential role, not just in the narrative of the judgment, but in the reasoning process resulting in conviction: R. v. Lohrer .. . All three elements of the test must be satisfied to establish a material misapprehension of evidence. The trial judge must be shown to have erred by actually misapprehending the evidence. As LeBel J. explained in R. v. Sinclair , 2011 SCC 40, [2011] 3 S.C.R. 3 at para. 53 , “[t]he plain language or the thrust of the reasons must disclose an actual mistake”. [ 49 It is not enough for the appellant to merely suggest a different interpretation of the evidence, or merely point to some evidence which arguably weighs against the trial judge’s finding. Mere differences in interpretation on factual matters are not misapprehensions but simple disagreement with the judge’s differing view of the evidence. [48] In R. v. J.F.D. , 2017 BCCA 162, Dickson J.A. surveyed the jurisprudence in relation to the review of credibility findings on appeal and the circumstances in which an error affecting the assessment of a witness’s credibility may result in a miscarriage of justice: [39] Where a cases turns primarily on credibility assessments, the sufficiency of the judge’s reasons should be considered in light of the deference afforded on findings of credibility: R. v. Dinardo , 2008 SCC 24 at para. 26 . The judge must explain why the result was reached such that the foundations of the decision can be understood when considered in the context of the evidence, the argument and the trial: R. v. Vuradin , 2013 SCC 38 at para. 12 , citing R.E.M. at paras. 16‒17. Provided this standard is met, the judge need not advert to all of the evidence, answer every argument made, or set out every finding or conclusion reached in the process of arriving at a verdict: Dinardo at para. 30; R.E.M. at para. 18. Given the high degree of deference accorded to credibility assessments, deficiencies in a trial judge’s credibility analysis will rarely merit appellate intervention: Vuradin at para. 11; Dinardo at para. 26. [ 40 ] However, where a judge misapprehends material evidence that forms an essential part of the reasoning process leading to conviction, appellate deference is not warranted. A misapprehension of material evidence, which may include a failure to consider material evidence, constitutes a palpable and overriding error leading to an unfair trial and, thus, to a miscarriage of justice: R. v. Lohrer , 2004 SCC 80 at para. 1 , citing R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at 221 (Ont. C.A.) ; Jacobs at paras. 52, 53 Question of Law [49] The appellants contend the trial judge found them to be parties to a sexual assault without considering the s. 21 jurisprudence. They say: there was an inadequate description of the basis for the conclusion they were parties to the offence; there was inadequate (or no) consideration of the requisite mens rea ; and, finally, Louie says there was no consideration of a viable defence of intoxication. [50] Section 21(1) of the Code provides: 21 (1) Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. [51] This provision has the effect of treating those who actually commit the offence as indistinguishable from those who aid or abet another in the commission of the offence; all three avenues in s. 21(1) lead to the same consequences: R. v. Briscoe , 2010 SCC 13 at para. 13; R. v. Elder , 2015 ABCA 126 at para. 15. However, the actus reus and mens rea for aiding and abetting are distinct from those required in the actual commission of the offence: R. v. Mercer , 2005 BCCA 144. [52] An accused “actually commits” a sexual assault where it is established beyond a reasonable doubt that their conduct satisfies the actus reus and mens rea requirements for the offence as set out in R. v. Ewanchuck , [1999] 1 S.C.R. 330 at paras. 24–25 and para. 41: [24]      The crime of sexual assault is only indirectly defined in the Criminal Code , R.S.C. 1985, c. C-46. The offence is comprised of an assault within any one of the definitions in s. 265(1) of the Code , which is committed in circumstances of a sexual nature , such that the sexual integrity of the victim is violated: see R. v. S. (P.L.) , [1991] 1 S.C.R. 909. Section 265 provides that: 265 . (1) A person commits an assault when ( a ) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; ( b ) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or ( c ) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. [25]      The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield , [1993] 4 S.C.R. 333, and R. v. Chase , [1987] 2 S.C.R. 293. [41] Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement . See R. c. Daviault , [1994] 3 S.C.R. 63. [Emphasis added]. [53] More than one person may actually commit an offence for the purposes of s. 21(1)(a) “even though each has not performed every act which makes up the actus reus of the offence”: R. v. Ball , 2011 BCCA 11 at para. 23. The case law refers to such actors variously as “co‑principals, joint‑principals, co‑perpetrators or joint‑perpetrators”: Ball at para. 23. In the context of assault, a crime of general intent, there is no need for co‑principals to share a common purpose to satisfy the requisite mens rea . [54] In R. v. Magoon , 2016 ABCA 412, Paperny J.A. observed: [85] The real test under [s. 21(1)(a)] is whether each principal directly participates in the offence. This can be made out by showing that each principal had direct physical contact with the victim. Where this is the case, the extent of participation does not need to be precisely determined . It is not necessary to prove who struck the final or fatal blow; the blow of one is the blow of all: Elder ; Ball at paras 28 and 30; R v Pickton , 2010 SCC 32 at paras 64-66, [2010] 2 SCR 198. [Emphasis added]. [55] The actus reus and mens rea for aiding or abetting were described by the Supreme Court of Canada in Briscoe . With respect to the actus reus , Charron J., for the Court, found: [14]      The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, “[t]o aid under s. 21(1)( b ) means to assist or help the actor. . . . To abet within the meaning of s. 21(1)( c ) includes encouraging, instigating, promoting or procuring the crime to be committed”: R. v. Greyeyes , [1997] 2 S.C.R. 825 , at para. 26. [56] With respect to the requisite mens rea, the Charron J. noted: [15]      Of course, doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attract criminal liability. … “one does not render himself liable by renting or loaning a car for some legitimate business or recreational activity merely because the person to whom it is loaned or rented chooses in the course of his used to transport some stolen goods, or by renting a house for residential purposes to a tenant who surreptitiously use it to store drugs”. The aider or abettor must also have the requisite mental state or mens rea . Specifically, in the words of s. 21(1)( b ), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime. [16]      The mens rea requirement reflected in the word “purpose” under section 21(1)( b ) has two components: intent and knowledge. For the intent component it was settled in R. v Hibbert that “purpose” in section 21(1)( b ) should be understood as essentially synonymous with “intention”. The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that “purpose” should not be interpreted as incorporating the notion of “desire” into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed [17]      As for knowledge, in order to have the intention to assist in the commission of a defence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense. [57] General intent may ground the conviction of one who actually commits an assault, but the conviction of one who aids or abets the commission of an assault hinges upon evidence of specific intent to assist: R .v. Fraser (1984), 13 C.C.C. (3d) 292 (B.C.C.A.); R. v. Hunt , [1993] B.C.J. No. 491 (C.A.) at para. 15. [58] This distinction has significant implications for the defence of intoxication in the context of party liability. It is well‑established that self‑induced intoxication is not a defence to a crime of general intent, and is therefore not available to an accused charged with actually committing an assault: R. v. Leary , [1978] 1 S.C.R. 29; Fraser at para. 6. The defence is, however, available to those charged with aiding or abetting such an offence: Fraser ; R. v. Chapin (1978), 41 C.C.C. (2d) 300 (Alta. S.C.A.D.); R. v. Cosgrove (1975), 29 C.C.C. (2d) 169 (Ont. C.A.); R. v. Waterfield (1974), 18 C.C.C. (2d) 140 (Ont. C.A.). [59] In R. v. Wobbes , 2008 ONCA 567, the Ontario Court of Appeal specifically considered the circumstances in which the defence of intoxication should be considered in relation to the offence of being a party to a sexual assault. Writing for the court Epstein J.A. observed: [29]      The authorities make it clear that it is not sufficient that the accused’s actions had the effect of aiding the commission of the offence. The appellant must have acted for that specific purpose … As well, mere awareness of and presence at the scene of an offence does not establish the requisite intent [30]      The authorities also clearly establish that the defence of self-induced intoxication is available to an accused who is charged with aiding or abetting an offence. Specifically, an intoxicated individual may not have the specific intent necessary to aid or abet another’s offence, despite the fact that his or her actions have that effect. Accordingly the defence of intoxication becomes relevant to the party offence provisions once the evidence establishes an air of reality to that defence [31]      In determining whether a defence has an air of reality, the trial judge must ask whether there is evidence upon which a properly instructed jury acting reasonably could acquit the accused of the charged offence if it believed the evidence to be true. In considering whether there is any such evidence, the judge must consider the totality of the evidence; assume the evidence relied on by the accused to be true; and must not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw factual inferences [32]      For the intoxication defence to have an air of reality there must be some evidence to support the conclusion that the appellant was in a state of “advanced” intoxication. This state of intoxication occurs where an individual lacks specific intent – i.e. intoxication that results in impairment sufficient to raise a reasonable doubt that the accused did not foresee the consequences of his or her acts. [60] In R. v. Daley , 2007 SCC 53 at para. 44, the Supreme Court of Canada endorsed the description of the threshold for instructing juries on intoxication set out in R. v. Robinson , [1996] 1 S.C.R. 683: “[B]efore a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt”. Analysis: Louie’s Appeal Unreasonable Verdict [61] The judge found Louie kept the complainant in the downstairs bedroom “so she could be sexually assaulted”. That inference followed from her description of the sequence of events. As I have noted above, the trial judge described the complainant’s evidence as follows: “after Mr. Louie grabbed her arm, she felt her vagina being penetrated. Then she blacked out again”. [62] In her evidence in chief, and on a number of occasions put to her in cross‑examination, the complainant said she blacked out after Louie grabbed her arm. The only evidence with respect to when the sexual assault occurred was the complainant’s evidence that feeling penetration of her vagina was the next thing she remembered or her next memory after Louie grabbed her. The statement put to her in cross‑examination suggests she blacked out after she was restrained and later had a distinct memory of penetration, as does the complainant’s response to Crown counsel’s attempt to determine when the complainant felt penetration, cited at para. 11 above. [63] In my opinion, the judge erred in describing the sequence of events to which the complainant testified. The complainant did not say she was conscious between the time she was restrained and the time she felt penetration. [64] As I have noted at paras. 7–10 above, the complainants’ memories were episodic. Through her testimony, she was asked to describe her “next memory” after each occasion when she blacked out. There is no evidence of how much time passed between these discrete memories. It is clear, however, that some significant time and significant events occurred between certain of the complainant’s episodic memories. For example, her sister T.J. and her cousin left the downstairs bedroom at some point after using the complainant’s cellphone and, presumably, before the assault. T.J. may still have been in the downstairs bedroom when Louie grabbed the complainant to restrain her but logic tells us T.J. was not there during the assault. Hours passed between the time Louie restrained the complainant and the time she was awakened in the hallway by her sister at 7:00 AM. [65] The judge’s inference that Louie grabbed the complainant’s arm so that she could be sexually assaulted could only be drawn if the assault was facilitated by Louie restraining her. Otherwise, other plausible inferences, consistent with innocence, could have been drawn. In my view there is no basis in the evidence to support the inference the sexual assault followed immediately on the heels of Louie’s restraint of the complainant. [66] There was no evidence of a discussion between any of the parties with respect to what was happening at the time the complainant was restrained. There was some evidence that earlier in the evening Louie had wanted to speak with the complainant about his relationship with her and she had been reluctant to do so. It is suggested he may have restrained her from leaving the room with a view toward, for example, initiating that discussion. [67] The conclusion that Louie restrained the complainant with the purpose of sexually assaulting her or permitting Charlie to do so was central to the judge’s reasoning, because there was no evidence Louie actually committed the sexual assault. Guilt as an aider or abetter hinged upon evidence of Louie’s intent to assist in the commission of the offence. [68] In my respectful opinion, the trial judge failed to give proper effect to the evidence. Having measured the verdict against the totality of the evidence adduced against Louie at trial, in my opinion, the verdict is not one that a properly instructed jury or a judge could reasonably have rendered . The critical inference of intent on Louie’s part could not properly be drawn. Louie’s conviction on the count of sexual assault should be set aside. [69] By restraining and thus injuring the complainant Louie may have assaulted her, but that is not the offence charged in the indictment. Given that the proximity of the simple assault to the aggravated sexual assault charged cannot be established, I am of the view the simple assault cannot be treated as a lesser included offence: R. v. Rocchetta , 2016 ONCA 577 ; R. v. G.R. , 2005 SCC 45.; R. v. Ovcaric (1973), 11 C.C.C. (2d) 565 (Ont. C.A.) ; R. v. Olson (1997), 114 C.C.C. (3d) 374 (B.C.C.A.). [70] I would allow the appeal, set aside Louie’s conviction and enter an acquittal in its place. Question of Law [71] Given my conclusion that a misapprehension of the evidence led to an unreasonable verdict, it is unnecessary to address Louie’s submission that the trial judge committed “a serious error of law” by failing to consider whether intoxication was a viable defence to the charge. I would say only, with respect to that argument, that having rejected the appellant’s evidence in part because she accepted that he was very drunk, the trial judge should have considered whether Louie was so intoxicated at the material time as to have been incapable of forming the intention to aid or abet the commission of the offence. Analysis: Charlie’s Appeal Unreasonable Verdict or Miscarriage of Justice [72] Charlie contends the trial judge failed to consider numerous inconsistencies in the evidence of the complainant and submits the judge: [In] deciding the inconsistencies surrounding the Complainant’s drinking were minor and inconsequential, failed to recognize the inconsistencies on the central issue of the sexual assault and her memory of it. When considered in the totality of all the evidence and the totality of all the inconsistencies, the appellant submits that the evidence of the Complainant cannot be found to be reliable. The Trial Judge failed to engage with the evidence as required in [ R. v. R.W.B ., [1993] B.C.J. No. 758 (C.A.)]. In doing so the Trial Judge effectively shifted the burden of proof on the issue of the reliability of the Complainant’s evidence. [73] It is Charlie’s position that an inadequate assessment of the credibility of the complainant resulted in an unreasonable verdict or a miscarriage of justice. I would not accede to this argument. [74] The judge recognized the complainant’s evidence should be treated with caution [at para. 74]. That caution evidently arose as a result of evidence of the complainant’s intoxication, because the judge was otherwise impressed by the complainant’s demeanour. She found the complainant to be clear about what she recalled and equally clear about what she did not recall and she did not exaggerate or make assumptions. The trial judge recognized frailties in the complainant’s evidence and expressly set out the factors that caused her to consider her testimony to be reliable. For example, the complainant accurately described the room in which she was sitting before the assault occurred, confirmed by photographs taken by the police. Importantly, her evidence was corroborated in many respects by Louie. [75] On critical questions there was little conflict between the evidence of witnesses in this case. None had intact memories. The only appellant who testified, Louie, was not in a position to deny much of the complainant’s evidence. [76] In my view, it cannot be said in this case that there was a failure to properly weigh the complainant’s evidence or that there was a misapprehension with respect to its reliability. I cannot identify an error in relation to the consideration of the complainant’s evidence that would undermine the judgment or constitute a miscarriage of justice of the nature described in R. v. J.F.D . [77] Charlie also challenges the inference drawn by the trial judge that it was his semen on his shorts; and the inference, from the fact semen and the complainant’s blood were found on his shorts and underwear, that Charlie participated in the sexual assault. He says it was an error on the part of the trial judge not to consider inferences consistent with his innocence. In particular he relies upon the statement of Cromwell J. in R. v. Villaroman , 2016 SCC 33 at para. 35: [ 35 ] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver , [1965] 2 O.R. 475 (C.A.) , at p. 479, aff’d without discussion of this point , [1966] S.C.R. 254 . However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela , 2009 SCC 4 , [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri , 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui , 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28 . Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [78] I would not accede to the argument that the trial judge erred in drawing an inference that the semen on Charlie’s shorts was his. That is so likely to have been the case that the inference could properly have been drawn in the absence of any evidence to the contrary. [79] Nor would I accede to the argument that the trial judge erred in drawing an inference from the presence of that semen and the complainant’s blood on Charlie’s shorts and underwear that he was “at the very least, a party to the sexual assault”. [80] In the course of submissions at trial it was suggested to the trial judge that the complainant may have laid upon Charlie or he might have picked her up after she began to bleed profusely. The trial judge was aware of that suggestion but clearly discounted it. While there was no evidence from either the complainant or Charlie with respect to how his shorts and underwear became saturated with the complainant’s blood, it is my view that the circumstantial evidence supported the trial judge’s conclusion that Charlie was present while the sexual assault was committed and involved in the commission of the offence to some extent. [81] It is open to us to consider the accused’s silence as indicative of an absence of an exculpatory explanation (in this case an explanation of the blood and semen on his pants) when considering an unreasonable verdict argument on appeal: R v. Noble, [1977] 1 S.C.R. 874 at para. 103; R. v. George-Nurse, 2019 SCC 12, affirming 2018 ONCA 515). [82] Applying the deferential standard of review that is appropriate where an appellant challenges the inferences drawn by a trial judge (as described recently by DeWitt‑Van Oosten J.A. in R. v. Bransford , 2019 BCCA 408 at paras. 31–34), I would dismiss the appeal on this ground. Question of Law [83] Charlie argues the reasons for judgment insufficiently describe the basis for his conviction and do not permit meaningful appellate review. That submission should be read in light of the principles described in R. v. R.E.M , 2008 SCC 51: [ 20 ] [T]he trial judge need not expound on evidence which is uncontroversial, or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned. [ 21 ] This is what is meant by the phrase in Sheppard “the path taken by the trial judge through confused or conflicting evidence” (para. 46) . In Sheppard , it was not possible to determine what facts the trial judge had found. Hence, it was not possible to conclude why the trial judge had arrived at what he concluded — the verdict. [Emphasis added.] [84] The Crown contends the judge was satisfied beyond a reasonable doubt that Charlie ‘directly participated’ in the sexual assault. However, as counsel for Charlie notes, at paras. 97 and 98 of the judgment, cited above, the judge expresses uncertainty “as to whether Mr. Charlie or Mr. Louie personally sexually assaulted N.J. or whether they aided and abetted the sexual assault”. In that passage, the judge addresses the distinct aspects of party liability set out in s. 21(1) of the Code . She juxtaposes “personal involvement” in the commission of the sexual assault with aiding and abetting. She was uncertain, in effect, whether Mr. Charlie was a party to the offence by: (a) actually committing the offence; (b) by doing or omitting to do anything for the purpose of aiding any person to commit it; or (c) by abetting any person in committing it. For that reason, Charlie says the reasons for judgment in this case do not provide the “ clear articulation of the factual findings” referred to in R.E.M . [85] In my view, the evidence adduced at trial was capable of supporting the conclusion that Charlie was a party to the offence and the basis for this conclusion is discernable from the reasons for judgment based on the findings of fact articulated by the trial judge. [86] As the Crown suggests, there was some evidence that Charlie actually committed the offence under s. 21(1)(a): physical evidence that Charlie had “direct physical contact” with the complainant as she was assaulted (sufficient, pursuant to the principles described in Ball and Magoon to support a conviction founded upon actual commission of the offence). The judge’s finding of uncertainty with respect to “what each man did” would not be a barrier to a conviction on this basis, because the extent of participation does not need to be precisely determined. However, I would read the trial judge’s uncertainty with respect to whether Charlie “personally sexually assaulted” the complainant to be uncertainty with respect to whether he actually committed the offence. [87] Given the evidence of blood and semen on Charlie’s shorts and underwear, it was also open to the judge to draw the inference that Charlie was so close to the commission of the offence as to encourage, instigate or assist in its commission. The blood and semen on his shorts are strong evidence that he was not merely present at the scene of an offence but a participant. In my view, that finding is implicit in the trial judge’s conclusion that Mr. Charlie was, “at the very least, a party to the sexual assault”. [88] While some uncertainty is introduced by the wording of the reasons, para. 98 in particular, I would not accede to the argument that an error of law has been made out on the basis of insufficiency of reasons. The findings linking the evidence to the verdict can be logically discerned. Conclusion [89] Insofar as the appropriate order on this appeal is concerned, I note the following observations of the Supreme Court of Canada in R. v. Pittiman , 2006 SCC 9: [14 ] Section 686(2) of the Criminal Code provides that where a court of appeal allows an appeal from conviction, it may direct an acquittal or order a new trial. Where a conviction is set aside on the ground that the verdict is unsupported by the evidence, the court of appeal, absent legal errors in respect of the admissibility of evidence, will usually enter an acquittal. As noted by Doherty J.A. in R. v. Harvey (2001), 160 C.C.C. (3d) 52 (Ont. C.A.), at para. 30, “[a]n acquittal is the appropriate order because it would be unfair to order a new trial and give the Crown a second opportunity to present a case on which a reasonable trier of fact could convict.” [90] For reasons set out above, I would set aside the conviction of Louie and enter an acquittal on the ground the verdict is unsupported by the evidence. I would dismiss Charlie’s appeal. “The Honourable Mr. Justice Willcock” I agree: “The Honourable Madam Justice Newbury” I agree: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Sesay, 2020 BCCA 41 Date: 20200124 Docket: CA46120 Between: Regina Respondent And Latto Simian Sesay Appellant Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Fitch The Honourable Mr. Justice Butler On appeal from:  An order of the Supreme Court of British Columbia, dated May 3, 2019 (sentence) ( R. v. Sesay , 2019 BCSC 795, Victoria Docket 173593). Oral Reasons for Judgment Counsel for the Appellant: R. Mansoori‑Dara Counsel for the Respondent: J.M. Gordon, Q.C. J.A. Dyck Place and Date of Hearing: Vancouver, British Columbia January 22, 2020 Place and Date of Judgment: Vancouver, British Columbia January 24, 2020 Summary: The appellant seeks leave to appeal and, if leave is granted, an order reducing his sentence for aggravated assault. He was sentenced to six and one‑half years’ imprisonment, less credit for pre‑sentence custody awarded at a rate of 1.5, for an unprovoked “sucker punch” assault that left the victim with a life‑altering brain injury. The appellant submits that the sentencing judge erred by: (1) imposing a demonstrably unfit sentence; (2) failing to consider the appellant’s personality disorder in assessing his moral blameworthiness; (3) treating the appellant’s misleading statements to police following his arrest as an aggravating circumstance; and (4) miscalculating his credit for pre‑sentence custody. Held: Leave is granted and the appeal is allowed, but only to the limited extent of reducing the sentence by 23 days to account for the judge’s mathematical error. The sentence is not demonstrably unfit given the appellant’s violent antecedents, the risk he poses to the public, and the devastating harm caused to the victim. The sentencing judge did not err by failing to treat the appellant’s personality disorder as a mitigating circumstance. The sentencing judge did err in principle in treating the appellant’s misleading statements to police, which sought to deflect responsibility for the assault to the victim, as an aggravating circumstance. However, this error cannot reasonably be supposed to have had a material impact on the sentence. FITCH J.A. : I.      Introduction [1] On March 31, 2018, the appellant, Latto Simian Sesay, committed an unprovoked assault on Brian Rowley by “sucker punching” him in the face when the two men happened to encounter one another in an alley adjacent to a bar in Victoria, British Columbia. Mr. Rowley crumpled from the powerful force of the unexpected blow and struck his head on the ground. He sustained a significant and life‑altering brain injury. Despite the fact that the appellant acknowledged hearing the victim’s head hit the ground with what he described as “a sickening sound”, he walked away from the scene wagging his finger at Mr. Rowley in what I gather was some sort of drunken taunt. The appellant made no effort to obtain medical assistance for Mr. Rowley. [2] The appellant had been drinking heavily and ingesting cocaine before committing the offence. When he was apprehended a short distance from the scene, he resisted arrest and attempted to fight with police officers. He was tasered twice and restrained in the course of the ensuing scuffle. He told the arresting officers, “If I am going to do pen time, I’m going to take one of you with me.” [3] The appellant was charged with aggravated assault and obstructing a peace officer in the execution of his duty, contrary to ss. 268(2) and 129(a) of the Criminal Code , R.S.C. 1985, c. C‑46 [ Code ]. [4] The appellant pleaded guilty to the latter offence. He was convicted of aggravated assault by a Supreme Court judge following a four‑day trial. His defence of self‑defence was rejected. Reasons for judgment are indexed as 2019 BCSC 76. [5] The appellant was sentenced to six and one‑half years’ imprisonment for aggravated assault, less credit for pre‑sentence custody awarded at a rate of 1.5 days for every day spent in pre‑sentence custody. A concurrent sentence of six months’ imprisonment was imposed for obstructing a peace officer. In addition, a number of ancillary sentencing orders were made that are not contested on appeal. Reasons for sentence are indexed as 2019 BCSC 795. [6] Against this background, the appellant seeks an order granting him leave to appeal sentence and, if leave is granted, an order allowing his appeal and reducing the sentence to five years’ imprisonment. [7] The appellant submits that the judge erred by: (1) imposing a demonstrably unfit sentence; (2) failing to consider the appellant’s personality disorder in assessing his moral blameworthiness; (3) treating the appellant’s misleading statements to the police following his arrest as an aggravating circumstance; and (4) miscalculating the credit he should have been given for time spent in pre‑sentence custody. [8] A few additional introductory remarks are necessary to put the second ground of appeal in context. The appellant does not dispute that he has a significant personality disorder with antisocial and narcissistic traits. A psychiatric report prepared for sentencing confirms this diagnosis. Further, the appellant concedes that the sentencing judge was not asked to treat his personality disorder as a mitigating circumstance that attenuated his moral culpability. He acknowledges that this issue is raised for the first time on appeal. He submits, nevertheless, that the sentencing judge had an independent obligation to consider whether his personality disorder contributed to the commission of these offences and served to diminish his moral culpability. He argues that the judge erred in principle by failing to make that inquiry on his own motion. To rectify the situation, he submits, for the first time in oral argument, that the question of whether there exists a link between his personality disorder and the offences should be remitted to the sentencing judge for inquiry pursuant to s. 683(1)(e) of the Code . The appellant relies on R. v. Pahl , 2016 BCCA 234, in support of this unusual submission. [9] The Crown concedes that the judge made a mathematical error in calculating the time that should have been credited for pre‑sentence custody. The appellant was credited 574 days. He should have been credited 597 days for time spent in pre‑sentence custody. The Crown otherwise opposes the remedies the appellant seeks. [10] For the reasons that follow, I would grant leave to appeal and allow the appeal, but only to the limited extent of reducing the sentence by 23 days to take account of the judge’s mathematical error. II.     Circumstances of the Offence [11] The circumstances surrounding the lead offence were summarized by the judge in his reasons for sentence: [8]        At trial, Mr. Sesay testified that he walked down the alley looking for his friends, who had agreed to meet up with him when the bars closed at 2 a.m. He stepped into a puddle of liquid that he though[t] was urine. He became frustrated and upset. When he saw Mr. Rowley standing behind the dumpster, he decided to confront him, explaining in his testimony it is what he does when he is upset. He also acknowledged that he has a temper such that, he said, “stuff builds up in me; it fills up like a jar and I explode.” Indeed, that is what occurred after he stepped in the puddle and saw Mr. Rowley almost immediately thereafter. [9]        Mr. Sesay walked up and stood in front of Mr. Rowley to stop him, and said something to him. A brief verbal interaction, initiated by Mr. Sesay, of approximately six seconds ensued. There was nothing provocative or threatening about Mr. Rowley’s movement of his arms and hands. His appearance was passive throughout. Conversely, Mr. Sesay took up what he called a “bladed stance” before striking Mr. Rowley, which is something that he learned while in prison as a technique to fight. Mr. Sesay also leaned into Mr. Rowley as he spoke to him. At one point, Mr. Sesay placed his left arm and hand either on or in extreme close proximity to Mr. Rowley’s chest area and right shoulder as he leaned into Mr. Rowley, all the while levelling insults at him. [10]      Mr. Sesay knew that Mr. Rowley was not responsible for the puddle that he had just stepped in. [11]      Suddenly, and without warning, Mr. Sesay punched Mr. Rowley directly in the face. Upon being struck, Mr. Rowley immediately fell backwards to the ground and hit his head. Mr. Sesay admitted in his evidence at trial that he knew Mr. Rowley was unconscious as soon as he hit him. Even though Mr. Sesay watched Mr. Rowley fall directly to the ground, heard him hit his head with a noise that he said he will never forget, and claimed in his evidence to be alarmed at what he had done, Mr. Sesay turned and walked quickly down the alley in the direction he had previously come, and exited onto Courtney Street. [12]      Just before leaving the alley, Mr. Sesay turned back towards the direction where Mr. Rowley had fallen to the ground, and raised his arm and wagged at least two of his fingers as if to signal a final taunt or jeer. At no time did Mr. Sesay stop to check on Mr. Rowley. [13]      Prior to striking Mr. Rowley, Mr. Sesay had been drinking alcohol with his girlfriend and other friends since he finished work at approximately 4:30 p.m. on March 27. Over the course of the evening, he consumed some 10 to 12 alcoholic drinks, including three doubles, all containing vodka and the Red Bull caffeinated energy drink. He also ingested cocaine. [12] Mr. Rowley was 28 years of age at the time of sentencing. At the time of the assault, he was studying for a master’s degree in community development at the University of Victoria. He was also working to pay for school and volunteering with a community‑based association that provides support to children with autism. As noted earlier, Mr. Rowley suffered a moderate to severe brain injury as a consequence of the assault that will affect him for the rest of his life. He was hospitalized for over one week after the offence and continues to receive physical and cognitive therapy as an outpatient at Victoria’s Royal Jubilee Hospital. He has no current source of income and understandably struggles with both sadness and fear that the appellant will come after him in the future. [13] As might be expected, Mr. Rowley’s parents have also experienced the impact of this offence. They relocated from Ontario to Victoria to assist their son in his recovery. They did so at the expense of their jobs and other family relationships, including relationships with their grandchildren who live in Ontario. At the time of sentencing, the victim’s mother had been forced to move back to Ontario to secure work to meet the family’s financial needs. As a consequence of this decision, Mr. Rowley’s parents are temporarily separated — an unfortunate situation for which he feels responsible. III.    Circumstances of the Offender [14] The appellant was 34 years of age at the time of sentencing. He had an unfortunate upbringing that involved interventions by the Children’s Aid Society and his placement in various group homes. [15] The appellant was involved with setting fires to a number of townhouses at a very young age. His first encounter with the youth criminal justice system was when he was 13 years old. [16] The appellant has a horrendous criminal record. He has been convicted of assault‑related offences on six occasions, most recently in 2013. He has twice been convicted of uttering threats. He has one conviction for robbery, one conviction for sexual interference, and one conviction for committing an indecent act. He has numerous convictions for failing to comply with his probation order or recognizance. He has previously served time in a federal penitentiary. [17] The appellant’s criminal history was summarized in greater detail by the sentencing judge: [28] His criminal record spans back in time to 1998, when he was 13 years old. His record includes convictions for crimes (including assaults) involving violence (which [the author of the pre‑sentence‑report] describes as general, domestic, expressive, and instrumental violence), robbery, property‑related offences, driving offences, sexual offences (one involving a friend’s child), and failing to abide by court orders: (a) January 26, 1998, assault; (b) June 6, 2000, uttering threats, failing to comply with disposition and recognizance; (c) January 3, 2001, theft under $5000 and failing to comply with disposition; (d) May 1, 2001, escape from lawful custody; (e) August 3, 2001, mischief under $5000 and failing to comply with disposition; (f) March 14, 2002, assaulting a police officer; (g) March 26, 2003, robbery; (h) September 7, 2004, uttering threats; (i) March 20, 2007, assault and public mischief; (j) February 4, 2010, sexual interference, assault, theft under $5000, and failing to comply with probation order and recognizance; (k) June 29, 2012, failing to comply with prohibition regarding children; (l) October 11, 2012, assault, mischief over $5000, and failing to comply with probation order; (m) May 10, 2013, assaulting and obstruction of a police officer, indecent act; (n) September 18, 2013, break and enter; failing to comply with probation order; (o) July 12, 2018, driving while suspended; (p) August 9, 2018, driving while prohibited; (q) October 10, 2018, operating a motor vehicle to cause nuisance by noise; and (r) October 26, 2018, theft under $5000. [29] The 2003 robbery included threats of violence uttered by Mr. Sesay as he robbed a woman of her purse while he was armed with a 12 inch knife. He told the victim to give him her purse or he would stab her. [30] The 2004 uttering threat offence involved Mr. Sesay, as one of a group of individuals making harassing phone calls from jail to a woman. He threatened to kill her, telling her that she would be cut up and raped. [31] The 2013 assaulting and obstructing a police officer offence involved Mr. Sesay engaged in physical violence, including kicking. He bit one officer and sent one for medical treatment. It took five police officers to subdue him and get him into the police van. He continued to misbehave while in custody and told police officers that he would not come out of his cell without a fight. He took a light from its fixture and held it up to use it as a weapon. While handcuffed, he announced that he would injure as many officers as possible, and when they least expected it, he’d attack. He spat at one corrections officer. [32] While Mr. Sesay points to a five‑year period without convictions between 2013 and 2018, some of that time was spent in custody following his sentence on September 18, 2013 of 531 days for breaking and entering. [18] Prior to his incarceration for the offences before us, the appellant had not participated in any form of drug or alcohol treatment. He had also declined to participate in violence prevention programs made available to him in the past. [19] Despite his criminal record, the appellant told the author of the pre‑sentence report that he believes he has good problem‑solving skills and good coping skills. He said that he is not aggressive and began working on developing more pro‑social skills during a period of incarceration five years earlier. Notwithstanding his lengthy history of non‑compliance with court orders, the appellant reported having no concerns about his ability to follow any conditions deemed appropriate by the court. [20] The appellant was found by the probation officer to be an unreliable historian. For example, he denied having any children when he was interviewed by the probation officer charged with preparing the pre‑sentence report but told Dr. Miller, who prepared a pre‑sentence psychiatric report, that he has two young boys with whom he is not in touch. In reports prepared by the Correctional Service of Canada (“CSC”), the appellant was noted to be a “skilled manipulator” for whom dishonesty seems to come easily. [21] Dr. Miller diagnosed the appellant with an alcohol and substance abuse disorder. He also thought it probable that the appellant had a significant personality disorder with antisocial and narcissistic tendencies. There was no evidence that the appellant suffered from a severe mental illness such as schizophrenia, bipolar disorder or other psychotic illnesses. There was no evidence that his thinking process was impaired by mental illness at the time of the assault, although it likely was by the voluntary ingestion of alcohol and drugs. [22] In terms of risk assessment, Dr. Miller opined that the appellant presented a moderate to high risk of further violent offending. He also expressed the view that if the appellant were to reoffend, it was likely he would commit similar offences causing serious bodily harm. [23] Dr. Miller’s report is consistent with a psychological assessment undertaken on behalf of the CSC in 2014. In that report, the appellant was assessed as having markers associated with psychopathy and being in the “high moderate range for both general and violent recidivism”. [24] Notably, the appellant has performed well since being incarcerated. In 2018, the appellant was placed in the Right Living Unit, which holds reform‑minded offenders to strict account. Letters submitted on his behalf by individuals working with him in the institution give rise to guarded optimism that the appellant may finally be taking steps towards rehabilitation. IV.   The Positions of Counsel on Sentencing [25] The Crown sought a sentence of imprisonment of six to eight years for aggravated assault and a concurrent six‑month sentence for the obstruction offence. Neither the Crown nor the sentencing judge made specific mention of the totality principle. [26] The appellant sought a sentence of two years less one day (after taking into account the time he served in pre‑sentence custody) to be followed by a three‑year probation order. V.    Reasons for Sentence [27] The judge reviewed what he considered to be the aggravating and mitigating features of the case. He gave the appellant’s expressions of remorse limited weight, finding the appellant to be disingenuous in relating to Dr. Miller the self‑serving statement that he did not appreciate that he could hurt Mr. Rowley as much as he did. The judge also viewed with caution the extent to which the appellant claimed to have made rehabilitative strides while incarcerated. [28] The judge found the appellant’s moral culpability to be high and concluded that the sentencing principles of protection of the public, general deterrence and denunciation required emphasis. VI.   Analysis of Grounds of Appeal [29] Appeals from sentence attract a deferential standard of review. Appellate intervention will only be justified if the sentencing judge committed an error in principle that had an impact on the sentence or imposed a sentence that is demonstrably unfit: R. v. Lacasse , 2015 SCC 64 at para. 11; R. v. Agin , 2018 BCCA 133 at paras. 56–57. [30] The appellant’s first ground of appeal is that the sentence is demonstrably unfit. He submits that the general sentencing range for aggravated assault is between 16 months and six years’ imprisonment and says that nothing about this case justified a departure from that range. I do not agree. [31] I begin by noting that aggravated assault is a serious offence punishable by a maximum period of imprisonment of 14 years. [32] While sentencing ranges provide useful guidelines that serve to minimize disparity in sentencing practices, they do not displace an individualized approach to sentencing. That a sentence exceeds the generally applicable range does not mean that it is the product of an error in principle or that it is demonstrably unfit: Lacasse at paras. 57–61. [33] This Court has upheld sentences in the range of six to eight years for assaults causing life‑altering injuries to the victim. As noted in R. v. Payne , 2007 BCCA 541 at para. 44, “sentences in the range of six to eight years for serious aggravated assaults are not uncommon”: see also R. v. Heiney , 2018 BCCA 313 at para. 58; R. v. Larose , 2013 BCCA 450 at paras. 17–22; R. v. Woodward , 2011 BCCA 251 at para. 30; R. v. Tschritter , 2006 BCCA 202 at para. 14; R. v. Biln , 1999 BCCA 369 at para. 24; and R. v. Rasanen (1997), 92 B.C.A.C. 74 at paras. 5, 9. [34] I recognize that no two cases are exactly alike and that factual distinctions can be drawn between these cases and the one at bar. As Justice Saunders noted in Larose at para. 17, the circumstances in which the offence of aggravated assault may be committed are variable and difficult to organize into categories. I also recognize that the injury in this case, as in Woodward , was caused by a single punch, not by a prolonged beating or the use of a weapon. [35] Nevertheless, I am of the view that the sentence imposed in this case is not a marked departure from sentences imposed in comparable cases. Moreover, the sentence is justified by the appellant’s violent antecedents, the risk he poses to the public, and the devastating harm he caused to Mr. Rowley. The callous disregard the appellant demonstrated by leaving Mr. Rowley unattended and in an unconscious state is a particularly disturbing feature of this case. The judge properly treated this as a factor aggravating the appellant’s moral culpability. In my view, the sentence has not been shown to be demonstrably unfit. [36] I turn next to consider the appellant’s submission that the judge erred in principle by failing to consider whether his personality disorder should operate in mitigation of penalty. I would not give effect to this ground of appeal. [37] The appellant has not been diagnosed with a major mental disorder affecting his cognitive capacity. Rather, he displays traits typically associated with an antisocial or narcissistic personality disorder — traits that make him a moderate to high risk to reoffend violently. The appellant’s entrenched antisocial attitudes are reflected in his criminal record. It is not surprising that the attitudes and behaviours rooted in his personality disorder were not regarded by the judge as mitigating. Indeed, I know of no case in which the antisocial personality traits of an offender who has a lengthy record for violent behaviour has been treated as a mitigating circumstance. [38] Further, it is not surprising that the appellant’s substance abuse disorder was not treated as a mitigating factor where the appellant, despite his criminal history, has not availed himself of any form of drug or alcohol treatment in the past. [39] I see no merit in the appellant’s submission that the judge committed a material error in principle by failing to consider whether there was a link between the appellant’s personality disorder and his assaultive behaviour, or in his related contention that the matter should be remitted to the sentencing court for inquiry into that issue pursuant to s. 683(1)(e) of the Code . In my view, the only reasonable inference to be drawn from the psychiatric report is that such a link exists. But even assuming that such an inference is unavailable on the record, demonstration of the existence of a link between the appellant’s personality disorder and the offences he committed would not assist him on this appeal. It would simply confirm that he presents a continuing risk to public safety. [40] There is, however, merit in the appellant’s third ground of appeal that the judge erred in principle by treating misleading statements he made to the police following his arrest — statements that sought to deflect responsibility for the assault to Mr. Rowley — as an aggravating circumstance. [41] To put this issue in context, the remarks appear to me to have been motivated by a meritless submission made by the appellant’s trial counsel (not counsel on this appeal) that the appellant demonstrated remorse “from day one”. The judge asked how this could be so in circumstances where the appellant sought from the outset to cast blame on Mr. Rowley. While I do not question the legitimacy of the judge’s inquiry, as a general rule the fact that an offender made disingenuous statements to the police after his arrest is not properly characterized as an aggravating circumstance. The judge was entitled, in my view, to entirely discount the submission that the appellant’s post‑offence conduct displayed immediate remorse. He was also entitled to consider the appellant’s post‑offence conduct in assessing the appellant’s rehabilitative prospects. The difficulty in this case is that the judge appears to have used the appellant’s attempt to shift responsibility to Mr. Rowley as a circumstance that aggravated the offence: R. v. Kreutziger , 2005 BCCA 231 at para. 12 . [42] In addressing the aggravating features of this case, the judge said this: [72]      Another [aggravating factor] is Mr. Sesay’s untruthful account to the police, following his arrest, of the events in order to paint Mr. Rowley in a negative light and thereby decrease his own culpability. [107]    To summarize, the circumstances of Mr. Sesay’s assault on Mr. Rowley involved an unprovoked and direct forceful assault, borne out of Mr. Sesay’s uncontrolled anger, on an unsuspecting victim who had no opportunity to defend himself, in order to mete out punishment for an act Mr. Sesay knew Mr. Rowley did not commit. Mr. Sesay immediately left the scene after watching Mr. Rowley fall to the ground and strike his head, knowing that he had struck him with such force that he was immediately rendered unconscious. As he left, he turned and wagged at least two of his fingers back where Mr. Rowley lay on the ground in defiance. After learning how to fight in prison, Mr. Sesay was well aware of the force he could use when striking blows with his fist. In dealing with the police after his arrest, Mr. Sesay knowingly provided an inaccurate account of events in order to cast culpability on his victim and thereby minimize his own. The degree of Mr. Sesay’s moral culpability is high. [Emphasis added.] [43] In my view, the judge erred in principle in his approach to this issue. The issue is whether this error in principle had an impact on the sentence: Lacasse at para. 44. In my view, it did not. In light of the number and kind of aggravating circumstances present in this case, the appellant’s post‑offence attempt to shift responsibility for what occurred to Mr. Rowley cannot reasonably be supposed to have played any material role in the imposition of the sentence. I would not intervene on this basis. [44] As noted earlier, the trial judge made a mathematical error in calculating the number of days the appellant should be credited for time served in pre‑sentence custody. To rectify this error, I would reduce the sentence imposed on the appellant by 23 days. VII.  Conclusion [45] In the result, I would grant leave to appeal and allow the appeal to the limited extent of reducing the sentence by 23 days. [46] SAUNDERS J.A. : I agree. [47] BUTLER J.A. : I agree. [48] SAUNDERS J.A. : Leave to appeal is granted. The appeal is allowed to the extent of substituting for the sentence imposed a sentence of six and one‑half years less 597 days to account correctly for pre‑sentence custody, that is a reduction of 23 days. “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Routkovskaia v. Gibson, 2020 BCCA 29 Date: 20200124 Docket: CA46228 Between: Olga Routkovskaia Appellant (Respondent) And Michael Gibson Respondent (Applicant) Before: The Honourable Madam Justice Garson (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated June 19, 2019 ( Routkovskaia v. Gibson , 2019 BCSC 2186, New Westminster Docket E56257). The Appellant, appearing in person (via teleconference): O. Routkovskaia The Respondent, appearing in person: M. Gibson Place and Date of Hearing: Vancouver, British Columbia January 9, 2020 Place and Date of Judgment: Vancouver, British Columbia January 24, 2020 Summary: The respondent applies for directions as to whether the appellant requires leave to appeal. He also applies for an extension of time to file and serve his factum. The appellant applies for access to the recording and unedited transcript of the judge’s oral judgment in the court below. Held: With the exception of the application for an extension of time, the applications are dismissed. With respect to the respondent’s application for directions, this Court no longer entertains applications for directions as to whether leave to appeal is required. It would appear, however, that leave is not required. The respondent’s application for an extension of time is granted. With respect to the appellant’s application, she must follow the procedure set out in the court below for access to the records. Reasons for Judgment of the Honourable Madam Justice Garson: Applications [1] There are several applications before me in this high conflict family case. [2] The first application is Mr. Gibson’s application for directions as to whether Ms. Routkovskaia requires leave to appeal an order of a Supreme Court judge dismissing an appeal from a Provincial Court judge on the grounds that the order was an interim order from which there is no appeal: s. 233 of the Family Law Act , S.B.C. 2011, c. 25 [ FLA ]. [3] The second application before me is Ms. Routkovskaia’s application for access to the court recording of the judge’s oral judgment, as well as a prepared transcript (unedited) of his reasons. She says the judge edited his reasons in an unauthorized manner. [4] The third application before me is Mr. Gibson’s application for an extension of time to file and serve his factum. [5] For the reasons that follow, Mr. Gibson’s application for directions and Ms. Routkovskaia’s application for access to the records below are dismissed. Mr. Gibson’s application for an extension of time to file and serve his factum to February 18, 2020 is granted. Background [6] The underlying issue in this appeal is an access and custody dispute. The parties have a child, born in 2008. [7] On November 8, 2010, Judge Steinberg of the British Columbia Provincial Court ordered that Mr. Gibson have weekly access visits with the child. [8] On September 14, 2012, Judge Buller Bennet of the Provincial Court made an order by consent that contained an access schedule for Mr. Gibson and provided that the parties have joint guardianship. The application and trial leading to the order in question [9] On August 3, 2016, Mr. Gibson applied for an order in the British Columbia Provincial Court for full custody of their child. Specifically, the application asked that the November 2010 access order be replaced. In his written application, Mr. Gibson wrote: “Access – Full Custody – I believe my son is living in unacceptable conditions and is not being taken care of.” [10] On October 7, 2016, Ms. Routkovskaia counterclaimed for child support, retroactive support, and a protection order. Ms. Routkovskaia asked for a protection order due to Mr. Gibson’s “anger issues”. [11] From November 2017 to September 2018, a trial concerning the child took place over 14 days in Provincial Court. The September 2018 Order [12] On September 7, 2018, at the conclusion of the trial, Judge Steinberg made an order that Mr. Gibson and Ms. Routkovskaia have joint guardianship of their child (the “September 2018 Order”). This order provided, inter alia , that the primary residence of the child will be with Ms. Routkovskaia, an access schedule for Mr. Gibson that increased access over the previous order, that each parent should attend counselling, and that each parent should prepare a list of three things that have improved between them for report at the review. The order provided for a review to take place in April of 2019. [13] On October 16, 2018, Ms. Routkovskaia appealed this order to the Supreme Court of British Columbia pursuant to s. 233(1) of the FLA . In her Notice of Appeal, Ms. Routkovskaia alleges that the Provincial Court judge made errors of law by improperly considering the best interests of the child and by incorrectly assessing family violence. Her Notice of Appeal also alleges an error of jurisdiction in the requirement to report three things that have improved between the parents. [14] On April 16, 2019, Judge Steinberg heard the scheduled review of the September 2018 Order. At this hearing, Judge Steinberg stated the following: It's hard to call what I did in September a final order because if you read the order it's coming back today for a review of its terms and any changes that may be necessary. That doesn’t sound like a final order. You're free to appeal it. I don’t have the slightest hard feeling about that. I don’t think any, the less or more of you, for it. You have an absolute right to appeal. So you know, maybe you'll be successful, maybe you won't. [15] The order under appeal from the Provincial Court provides as follows: 1.         The Applicant, Michael E. Gibson (“Mr. Gibson”) and the Respondent, Olga Routkovskaia (“Ms. Routkovskaia”) shall have joint guardianship of the child … (“the Child”); 2.         Primary residence of the Child shall be with Ms. Routkovskaia; 3.         Mr. Gibson shall have parenting time with the Child every second weekend from Thursday to Monday morning, the Child will be picked up from school or after school program on Thursday and returned to school Monday morning; 4.         If there is a Professional Development day or statu[to]ry holiday following the weekend of Mr. Gibson’s parenting time with the Child, Mr. Gibson will have the Child from Friday to Tuesday. The Child will be picked up from school or after school program on Friday and returned to school on Tuesday morning; 5.         Mr. Gibson shall have telephone access with the Child 1 time a week. Each call is not to exceed 15 minutes and the Child is to be permitted to call his father, Mr. Gibson anytime the Child wishes; 6.         Mr. Gibson’s calls will be on the Thursday before the weekend the Child is not with Mr. Gibson and on the Tuesday of the following week; 7.         Each parent is to treat the other with courtesy and respect and will limit communication to factual information necessary for the other parent’s care of the Child; 8.         Each parent will advise the other of any medical, dental or similar appointments; 9.         Each parent is to notify the other at the earliest possible opportunity of their plans to travel outside the country and if written permission is required for that travel the other parent is to immediately supply that written permission unless there is a good reason not to; 10.       Subject to further Court Order, for the Child’s school winter break and spring break, each parent is to have alternating weeks, the week is to be scheduled so that it does not interfere with the overall cycle of the exchanges; 11.       Mr. Gibson’s parenting time during the summer will [be 2] weeks in July and 2 weeks in August; 12.       The Child will be with Ms. Routkovskaia during the day of Mother’s Day and with Mr. Gibson on Father’s Day. Pick‑up and drop‑off will be by Mr. Gibson from 10:00 am to 7:00 pm; 13.       Any changes that need to be made shall be reviewed during April of 2019; 14.       Mr. Gibson, Ms. Routkovskaia and the Child shall each attend counselling, for the parents counselling is to be focussed on improving communication and for the child counselling is to be focussed on how to cope with differing parenting styles; 15.       Each parent is to prepare a list of three things that have improved between them for the period from this date until the appearance in April 2019 and present that list to the Court at that appearance. [16] Her entitlement to appeal turns on the question of whether Judge Steinberg’s order is final or interim. If Judge Steinberg’s order is interim there is no right of appeal, pursuant to s. 233(1) of the FLA : 233 (1) A party may appeal to the Supreme Court an order of the Provincial Court made under this Act, except an interim order . [Emphasis added.] [17] Ms. Routkovskaia appeals from the Order of Justice Ball on the ground that he erred in determining the order was interim. The Supreme Court Appeal [18] On June 19, 2019, a hearing was held in British Columbia Supreme Court Chambers before Justice Ball. Mr. Gibson took the position at the hearing that the September 2018 Order of Judge Steinberg was an interim order. [19] Following the hearing, on June 19, 2019, Justice Ball ordered that the application of Ms. Routkovskaia be dismissed because it was an interim order. The reasons for judgement are brief (2019 BCSC 2186). Justice Ball said: [2] I have reviewed this transcript with some care, particularly the final portion of the transcript. Upon that review and reflecting on the comments from Ms. Routkovskaia, and the rather more brief comments from Mr. Gibson, I am satisfied, based on that review, that this was not a final order and was never intended to be a final order. [3]        The recorder had difficulty recording reasons because there were often two persons speaking. What is clear from the transcript is that there was a conversation between Ms. Routkovskaia and Judge Steinberg. Judge Steinberg is a very experienced member of the court, he would not have tolerated the kind of consistent interruptions which took place here while he was giving reasons. It is difficult enough to give reasons without being repeatedly interrupted with references to bits of evidence and statements to the effect that “I disagree with this, and I disagree with that”. This is simply a conversation intending to lead to a further hearing which occurred and not a final order. [4]        The parties subsequently appeared again in front of His Honour in the following April to continue the proceeding. The proceeding in April was not before this court on appeal. That second hearing however is inconsistent with there having been a final order on September 7, 2018. [5]        There is no basis for an appeal of an interim order here, and because this is an interim order and not a final order, I am dismissing this appeal now. [6]        Each party will bear their own costs. [20] Ms. Routkovskaia now seeks to appeal the order of Justice Ball to this Court. Analysis [21] Mr. Gibson applies for directions as to whether Ms. Routkovskaia has a right to appeal. As of May 8, 2017, this Court no longer entertains applications for directions as to whether leave to appeal is required in a particular matter (Commencing an Appeal When Uncertain if Leave to Appeal is Required (Civil Practice Directive, 8 May 2017)). [22] Even though this Court no longer gives directions, I would observe that it appears leave would not be required in any circumstance of this case. If the initial order was an interim order, there lies no right to appeal that order at all ( FLA , s. 233). If it was a final order, Ms. Routkovskaia would be able to appeal as of right ( Court of Appeal Rules , R. 2.1). There appears to be no circumstance in which leave to appeal would be required. Ms. Routkovskaia would in the normal course pursue her appeal. Mr. Gibson could respond, in part, that the court has no jurisdiction to hear an appeal from an interim order. [23] Mr. Gibson’s application for directions is dismissed. [24] The second application concerns the oral reasons for judgment of Justice Ball. [25] Ms. Routkovskaia seeks the following relief: a.         An order authorizing the British Columbia Supreme Court to release audio recording of the hearing to the parties on record, Olga Routkovskaia and Michael Gibson, upon their request. b.         An order authorizing the British Columbia Supreme Court to release the transcript of the reasons for judgment delivered orally on June 19, 2019, exactly as received from the transcription company before any changes were made by Justice Ball or anyone else to the parties on record, Olga Routkovskaia and Michael Gibson, upon their request. c.         An order authorizing J.C. WordAssist Ltd. to release audio recording they have in their possession to the parties on record, Olga Routkovskaia and Michael Gibson, upon their request. (This is being requested as contingency backup to the above in the event of unexpected issues.) d.         An order authorizing J.C. WordAssist Ltd. to release the transcript of the reasons for judgment delivered on June 19, 2019, exactly as provided to the British Columbia Supreme Court before any changes were made by Justice Ball or otherwise to the parties on record, Olga Routkovskaia and Michael Gibson, upon their request. (This is being requested as contingency backup to the above in the event of unexpected issues.) [26] The Supreme Court has published a “Court Record Access Policy” (the “Policy”) that details the processes by which a party can access the recording and transcript of a proceeding. According to section 2.3.15 of the Policy, anyone who is entitled to access the court record in a family law proceeding may have access to the transcript of that proceeding. That person will also have a right to copy the transcript. If a transcript is not yet prepared, that person will have to pay the appropriate fee to request the transcript. According to Rule 22‑8(1)(a) of the Supreme Court Family Rules , a party to the proceeding is a person entitled to access the court record. Ms. Routkovskaia is thus entitled to access the transcript. In order to obtain the transcript, Ms. Routkovskaia may do so by visiting the Supreme Court Family Registry. [27] The Policy further provides that a person who was present at a proceeding (or entitled to be present) is entitled to listen to that proceeding (s. 3.2.1). Ms. Routkovskaia has indicated she has already listened to the proceeding, which one does by visiting the Supreme Court Family Registry. [28] Ms. Routkovskaia is entitled to obtain a copy of the audio recording of the proceeding, pursuant to section 3.3.3.2 of the Policy: 3.3.3.2 Oral Reasons for Judgment A person wishing to obtain a copy of the audio recording of oral reasons for judgment in respect of a family proceeding must make an application in accordance with Supreme Court Family Rules and PART 4 - PROCEDURE FOR ACCESS APPLICATIONS of this policy. [29] According to section 3.3.3.2 of the Policy, she can apply for an audio recording of the oral reasons for judgment by making a without notice application in accordance with Rule 10‑8. [30] At least at first instance, Ms. Routkovskaia must follow the procedure set out in the court below for access to the recordings below. I would therefore dismiss Ms. Routkovskaia’s applications. [31] The third application before me is Mr. Gibson’s application for an extension of time. [32] Mr. Gibson applies for an extension of time to file and serve his respondent’s factum. Rule 21 of the Court of Appeal Rules requires a respondent to file a factum within 30 days of being served with the appellant’s factum. The appellant’s factum was filed on October 15, 2019. [33] The criteria for extending the time to begin an appeal are: 1. Was there a bona fide intention to appeal? 2. When was the respondent informed of the intention? 3. Would the respondent be unduly prejudiced by an extension? 4. Is there merit in the appeal? 5. Is the extension in the interest of justice? Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R. (2d) 256 at 259–260 (C.A.). [34] Though these factors were articulated with respect to beginning an appeal, they will apply (with appropriate modifications) in applications to extend the time for taking any step necessary in the prosecution of an appeal ( Vancouver City Savings Credit Union v. R.D. Backhoe Services Inc. , 2011 BCCA 159 at para. 8). [35] This chambers hearing was initially scheduled for November 15, 2019, and was adjourned until January 9, 2020. At the initial hearing, Mr. Gibson sought an extension of time on the grounds that the reasons for judgment from the court below were not yet available. They have since been made available and filed with this Court. Though neither Mr. Gibson nor Ms. Routkovskaia argued the five Davies factors, it is in the interests of justice that Mr. Gibson have an extension of time to file his respondent’s factum given the procedural hurdles encountered. Mr. Gibson will have until February 7 to file and serve the respondent’s factum. Disposition [36] Mr. Gibson’s application for directions is dismissed. [37] Mr. Gibson’s application for an extension of time is granted. The deadline to file and serve his factum is extended to February 18, 2020. [38] Ms. Routkovskaia’s applications as set out above at paragraph 25 are dismissed. “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: British Columbia (Attorney General) v. Canadian Constitution Foundation, 2020 BCCA 48 Date: 20200127 Docket: CA46296 Between: Attorney General of British Columbia Respondent (Petitioner) And Canadian Constitution Foundation Appellant (Respondent) And Office of the Information and Privacy Commissioner for British Columbia Respondent (Respondent) FILE SEALED IN PART A partial sealing order is imposed by order of this Court as set out in these reasons. Before: The Honourable Mr. Justice Tysoe (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated July 12, 2019 ( British Columbia (Attorney General) v. British Columbia (Information and Privacy Commissioner) , 2019 BCSC 1132, Vancouver Docket S1810373). Oral Reasons for Judgment Counsel for the Appellant: J.B. Maryniuk M. Potomak Counsel for the Respondent, Attorney General of British Columbia: J.D. Hughes M.A. Witten Counsel for the Respondent, Office of the Information and Privacy Commissioner for British Columbia: A.R. Hudson Place and Date of Hearing: Vancouver, British Columbia January 27, 2020 Place and Date of Judgment: Vancouver, British Columbia January 27, 2020 Summary: The Office of the Information and Privacy Commissioner applies for orders relating to the sealing of certain documents and permitting in camera proceedings.  Held: Application allowed in part.  The confidential information received on an in camera basis by the adjudicator under the Freedom of Information and Protection of Privacy Act may be filed in a separate appeal book, which is to be sealed.  The confidential information does not need to be referred to in the factums, and it is not appropriate to have separate sealed factums.  The aspect of the application for in camera argument referring to the confidential information at the hearing of the appeal is referred to the division hearing the appeal for determination, if necessary. [1] TYSOE J.A. : The Office of the Information and Privacy Commissioner for British Columbia (“OIPC”) applies for orders relating to the sealing of certain documents and permitting in camera proceedings in this appeal. [2] The appeal arises from a request made by the appellant, Canadian Constitution Foundation, pursuant to s. 5 of the Freedom of Information and Protection of Privacy Act , R.S.B.C. 1996, c. 165 [ Act ], for the BC Government to provide records in connection with the cost of litigating what is commonly referred to as the “Cambie Surgeries lawsuit”.  The Ministry of Attorney General withheld the information on the basis of solicitor and client privilege pursuant to s. 14 of the Act . [3] Canadian Constitution Foundation requested the Commissioner under the Act to review the Ministry’s decision, and an adjudicator ordered the disclosure of the information.  The adjudicator’s decision was quashed on judicial review by Justice Ross in reasons indexed as 2019 BCSC 1132, and Canadian Constitution Foundation is appealing her order. [4] In the hearing before the adjudicator, the Attorney General’s initial submissions and two affidavits were accepted for filing on an in camera basis pursuant to s. 56(4)(b) of the Act .  Copies of the submissions and affidavits, with the confidential information being redacted, were provided to Canadian Constitution Foundation.  The non‑redacted documents were attached as exhibits to the affidavit of Rebecca Rohrick (affirmed on March 21, 2019) that was filed in the Supreme Court of British Columbia for the judicial review proceedings, and Ross J. made a sealing order in respect of the affidavit and non‑redacted attachments. [5] The OIPC is seeking the following orders: (a)      the affidavit of Rebecca Rohrick and non‑redacted attachments be filed in a separate appeal book, which is to be sealed and accessible only by the Court, the OIPC and the Attorney General; (b)      the OIPC and the Attorney General be permitted to file confidential versions of their factums containing references to the confidential information, as well as public versions of the factums with the confidential information being redacted, and the confidential versions of the factums be sealed and accessible only by the Court, the OIPC and the Attorney General; and (c)      any oral argument at the hearing of the appeal referring to the confidential information be made on an in camera basis excluding the public and counsel for Canadian Constitution Foundation, and that the court clerk’s notes of this oral argument be sealed and accessible only by the Court, the OIPC and the Attorney General. [6] I have been provided with and reviewed the affidavit of Rebecca Rohrick and the non‑redacted attachments. [7] Counsel for the Attorney General has advised me that the Attorney General does not presently consider it necessary to file a confidential version of his factum and believes that any oral argument at the hearing of the appeal can simply refer the members of the division to the confidential information in the sealed appeal book without it being repeated in open court. [8] I am satisfied that the test for a sealing order as set out in Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41 at para. 53, has been satisfied with respect to the confidential information in the non‑redacted documents attached to the affidavit of Rebecca Rohrick.  This Court must have the same record as was before the adjudicator and Ross J., and it would imperil the process before the OIPC if non‑redacted documents submitted confidentially to it were later made public by the courts.  In addition, at least some of the confidential information is subject to solicitor and client privilege, and its disclosure would defeat the privilege.  Like Ross J., I am not persuaded that this is an appropriate case for the confidential information to be disclosed to counsel for Canadian Constitution Foundation on an undertaking to keep the information confidential and to return it upon the conclusion of the appeal. [9] On the other hand, I am not satisfied that it is appropriate to make the second and third orders requested by the OIPC.  As the Attorney General will not be making reference to the confidential information in his factum, I do not consider it necessary for the OIPC to refer to the confidential information in its factum given its limited role in the appeal.  In addition, if the OIPC does consider it to be essential to make submissions relating to the confidential information, counsel for the OIPC may make those submissions at the hearing of the appeal. [10] With respect to the request that oral argument at the hearing of the appeal referring to the confidential information be made on an in camera basis, I share the reservation expressed by Justice Fitch in N.E.T. v. British Columbia , 2018 BCCA 22 (Chambers), as to whether a single justice in chambers has jurisdiction under s. 10(2)(a) of the Court of Appeal Act , R.S.B.C. 1996, c. 77, to make such an order.  In any event, it is not critical that a determination be made on the point prior to the hearing of the appeal, and it is preferable, in my view, for the division hearing the appeal to make any determination that may be necessary in that regard. [11] In the result, I make order (a) above, I decline to make order (b) above and I refer the application for order (c) above to the division hearing the appeal.  Costs of the application will be in the cause of the appeal. “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Lapshinoff v. Wray, 2020 BCCA 31 Date: 20200127 Docket: CA45871 Between: Don Lapshinoff Appellant (Plaintiff) And Brent Wray Respondent (Defendant) Corrected Judgment: The text of the judgment was corrected at paragraph 47 on January 30, 2020. Before: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Hunter The Honourable Madam Justice Griffin On appeal from: An order of the Supreme Court of British Columbia, dated December 27, 2018 ( Lapshinoff v. Wray , 2018 BCSC 2315, Victoria Docket S121702). Counsel for the Appellant: R.L. Neary Counsel for the Respondent: M.J. Hargreaves Place and Date of Hearing: Victoria, British Columbia January 9, 2020 Place and Date of Judgment: Vancouver, British Columbia January 27, 2020 Written Reasons by: The Honourable Mr. Justice Groberman Concurred in by: The Honourable Mr. Justice Hunter The Honourable Madam Justice Griffin Summary: The plaintiff claimed against a police officer and the municipality that employed him, alleging that the officer caused him injury by using excessive force in making an arrest. The judge found all elements of the tort of assault were made out, but dismissed the claim against the municipality due to the plaintiff’s failure to provide it with timely notice of the claim as required by the Local Government Act. Police officers acting in the performance of their duties are protected from personal liability under s. 21 of the Police Act. The use of excessive force does not prevent an act from being characterized as having been done in the course of performing duties. The claim against the officer could only succeed if gross negligence or wilful misconduct were proven. The judge rejected the allegation of gross negligence, and noted that wilful misconduct had not been pleaded or argued. On appeal from the dismissal of the claim against the officer, held: Appeal allowed, new trial ordered. The pleadings were sufficient to raise the issue of wilful misconduct. It was a live issue despite the failure of the plaintiff to address it in argument. The question of whether the officer was guilty of wilful misconduct is fact-intensive, and must be determined in a new trial. The appellant, while substantially successful on the appeal, accepts that he should not be granted costs, as the appeal would have been unnecessary had he argued wilful misconduct in the court below. Reasons for Judgment of the Honourable Mr. Justice Groberman: [1] This is an appeal from the dismissal of a personal injury claim. Overview [2] The appellant, Mr. Lapshinoff, was injured in the course of his arrest on May 15, 2010. He filed a notice of civil claim against four members of the Saanich Police, and against the District of Saanich, the municipality in which the officers worked as municipal constables. [3] In October 2015, the claims against two of the officers were dismissed by consent. The claims against the other two officers and the municipality proceeded to trial in 2018. [4] At trial, the judge determined that Constable Wray used excessive force in arresting Mr. Lapshinoff, causing him injuries. The judge found all elements of the tort of assault were made out against Constable Wray. He dismissed the claim against the other officer, finding that his actions did not cause Mr. Lapshinoff’s injuries. No appeal is taken from that order. [5] The judge’s findings in respect of Constable Wray would ordinarily be sufficient to fix the District of Saanich with vicarious liability under s. 20(1)(a) of the Police Act , R.S.B.C. 1996, c. 367. The District of Saanich argued, however, that the claim against it should be dismissed because Mr. Lapshinoff had not provided it with written notice of the time, place and manner in which he sustained damage within the two-month time limit established by s. 286 of the Local Government Act , R.S.B.C. 1996, c. 323 (now s. 736(1) of the Local Government Act , R.S.B.C 2015, c. 1). The judge agreed with that position, and dismissed the claim against the municipality. Mr. Lapshinoff has not appealed from that order. [6] Constable Wray also raised a statutory defence, referring to s. 21 of the Police Act . That section insulates police constables from personal liability for torts committed while performing police duties, unless the court concludes that the officer’s conduct was the result of “dishonesty, gross negligence or malicious or wilful misconduct”. [7] The judge accepted that Constable Wray was performing police duties when he effected the arrest, and rejected the proposition that the officer acted with gross negligence. The judge did not consider wilful misconduct, as he was of the view that it was not pleaded, and it was not raised in argument. The plaintiff did not contend that this was a case involving either dishonesty or malice. [8] Mr. Lapshinoff appeals the dismissal of his claim against Constable Wray. He asserts that, properly interpreted, s. 21 of the Police Act did not afford Constable Wray a defence, both because the constable was not acting in accordance with his duties and because he was guilty of wilful misconduct. While he accepts that wilful misconduct was not argued before the trial judge, he says that it was pleaded, and was not abandoned. [9] Constable Wray argues that the judge was correct in finding that he was acting in the performance of his duties. He says that Mr. Lapshinoff, having failed to address the issue of wilful misconduct at trial, should not be allowed to do so on appeal. He also says, in any event, that the judge’s finding that he was not guilty of gross negligence implies that he was also not guilty of wilful misconduct. Finally, he argues that the judge made a palpable and overriding error of fact in finding that he caused Mr. Lapshinoff’s injuries. Events Giving Rise to the Claim [10] On May 15, 2010, Mr. Lapshinoff was driving in Saanich. Constable Wray was on motorcycle patrol, and received a radio dispatch indicating that a possibly impaired driver was in his vicinity. The dispatch described the vehicle and gave a licence plate number. Constable Wray spotted the vehicle, and proceeded to stop it. [11] Several witnesses discussed what happened thereafter. In addition to Mr. Lapshinoff and Constable Wray, three other police officers who attended the scene gave evidence, as did Mr. Lapshinoff’s wife, and a member of the public who witnessed the events. The various accounts differed in many respects. In general, the judge preferred the evidence of other witnesses to that of Constable Wray. [12] Although Mr. Lapshinoff slowed his vehicle and pulled over in response to Constable Wray’s actions, he did not come to a stop right away. Instead, he continued to move forward at about 5 km/hr. Constable Wray kicked the vehicle, to signal Mr. Lapshinoff to stop. This appears to have led to some words between the parties. The judge found that Mr. Lapshinoff commented about his truck being hit, but also found that he “was not belligerent or loud”. Mr. Lapshinoff did ask Constable Wray for identification, which the judge said “probably contributed to an antagonistic atmosphere”. [13] Very shortly after stopping Mr. Lapshinoff, Constable Wray ordered him to exit his vehicle. The judge made the following findings as to what occurred next: [128]    …Mr. Lapshinoff unlatched his seat belt but did not get out promptly. Constable Wray repeated the demand more emphatically with a profanity. Lapshinoff was in the process of complying, perhaps somewhat reluctantly, with his left foot partially out the door which he opened partly, at the same time repeating that he would still like to see ID, when Constable Wray reached over and yanked him out forcefully [129]    The fact that Constable Wray was able to pull the 200-pound Mr. Lapshinoff out of the truck in one pull, even though he said that he did so as hard as he was able, is consistent with Mr. Lapshinoff being turned and beginning to get out on his own. If both his feet were still in the vehicle and he was facing forward when he was yanked out, it is difficult to see how he could have emerged even partially on his feet. [130]    In my view, this very forceful removal was completely unnecessary and is only explainable as Constable Wray acting out of a loss of self control and anger, rather than necessity. He acknowledged that he did not consider any less violent means of dealing with the situation he perceived. [131]    It is clear that he was either blind to the fact that Mr. Lapshinoff was starting to comply with his demand to get out, or that he simply expected a faster response and was making that point with physical aggression. [133]    The plaintiff’s right shoulder or arm struck the truck door as he was yanked out, causing it to fly open. This further demonstrates a degree of aggressiveness and lack of foresight and care for the safety of the plaintiff, which was unnecessary and disproportionate to the exigencies of the arrest. Although it is unknown whether that impact actually contributed to the plaintiff’s shoulder and arm injuries, there certainly was a foreseeable risk of injury in yanking the plaintiff through a partly open truck door. [14] The judge appears to rely on the evidence of Constable Wray as to what happened next. The judge summarized the evidence as follows: [73]      …He testified that when he pulled him out of the vehicle, Mr. Lapshinoff “stumbles out”, and he took him around the open door and to the front of the vehicle, where Mr. Lapshinoff was not overtly resisting, but sort of tussling and they were “doing the dance”, with Mr. Lapshinoff holding his hands up on his chest and not being compliant with his directions. … Then he made a decision to take Mr. Lapshinoff to the ground with a leg sweep trip, and did so, falling to the ground together with him. [15] The judge found that Mr. Lapshinoff suffered injuries while being taken down. He found that, taken in its entirety, Constable Wray’s actions constituted an excessive use of force: [138]    In the circumstances of this case, I do not feel it is appropriate to parse the actions of Constable Wray and examine the subsequent takedown as if it was a separate action to be analyzed for justification. Constable Wray’s excessive use of force was a continuing action and all elements of it took place within a very short timeframe. I find that the tussle outside and the takedown would not have happened if the forceful removal from the truck had not occurred. [16] The judge turned to the question of whether s. 21 of the Police Act precluded a finding of liability. In a very brief analysis, he found that it did: [145]    The plaintiff argued that the police conduct in this case demonstrated a complete absence of any measured use of force and constituted gross negligence. The cases cited for definitions of gross negligence were Hildebrand v. Fox , 2008 BCSC 842 and Doern v. Phillips Estate (1995), 2 B.C.L.R. (3d) 349. [146]    I have found the use of force employed by Constable Wray to be unjustified and, therefore his actions constitute the tort of assault. [A]ssuming the assault by a police officer in this case was also negligence, I do not find that it would amount to gross negligence. [147]    The plaintiff did not plead or argue wilful misconduct. The Framework for Analysis Under the Police Act [17] The parties accept, for the purposes of this appeal, the judge’s findings that Constable Wray had grounds to arrest Mr. Lapshinoff, and that the force used by Constable Wray was excessive. [18] Sections 20 and 21 of the Police Act are the provisions relevant to liability in this case: 20 (1) (a)   a municipality is jointly and severally liable for a tort that is committed by any of its municipal constables…if the tort is committed in the performance of that person's duties 21 (1) In this section, “police officer” means...: (a)   a person holding an appointment as a constable under this Act; (2) No action for damages lies against a police officer…for anything…done or omitted to be…done by him or her in the performance or intended performance of his or her duty or in the exercise of his or her power or for any alleged neglect or default in the performance or intended performance of his or her duty or exercise of his or her power. (3) Subsection (2) does not provide a defence if (a)   the police officer…has, in relation to the conduct that is the subject matter of action, been guilty of dishonesty, gross negligence or malicious or wilful misconduct (4) Subsection (2) does not absolve any of the following, if they would have been liable had this section not been in force, from vicarious liability arising out of a tort committed by the police officer or other person referred to in that subsection: (a)   a municipality, in the case of a tort committed by any of its municipal constables [19] The scheme of the statute, in summary, is to make municipalities vicariously liable for the torts of municipal constables. Police officers, themselves, do not face civil liability for torts committed in the performance of their duties, unless they are guilty of “dishonesty, gross negligence or malicious or wilful misconduct”. [20] While s. 20 of the statute describes liability of a municipality as “joint and several”, the language is misleading. Absent special circumstances, a municipality will be the only party bearing liability for a tort committed by a municipal constable. The language of s. 20 parallels the language of s. 21, dealing with Provincial constables, the history of which was discussed in Aitken v. Minister of Public Safety , 2013 BCCA 291, particularly at para. 34. [21] In order to determine whether a police officer is personally liable for a tort, the preliminary step is to determine whether the elements of the tort have been established. In the case of an assault, a court will determine whether the officer has applied force to an individual without consent. If so, the onus is on the officer to demonstrate that their action was taken on reasonable grounds, and that unnecessary force was not used (as described in s. 25(1) of the Criminal Code , R.S.C. 1985, c. C-46)—see Crampton v. Walton , 2005 ABCA 81; Priestman v. Colangelo, Shynall and Smythson , [1959] S.C.R. 615. [22] In this case, the judge found that the elements of the tort of assault were made out. Although he found that Constable Wray had legal authority to arrest Mr. Lapshinoff, and acted on reasonable grounds in doing so (findings that are not challenged on appeal), he used unnecessary force in yanking him from his vehicle and in taking him down to the ground. [23] Mr. Lapshinoff contends that the analysis should end at that point, arguing that “the legislature could not have intended to shield police officers from personal liability for actions which would constitute criminal offences”. I am not persuaded that he is correct. [24] First, as a matter of constitutional authority, issues of civil liability generally fall within Provincial jurisdiction, while the criminal law is a matter for the Federal government. There is no necessary connection between criminal and civil liability. [25] Second, the findings in a civil case, such as this one, cannot be equated to findings of criminal liability. In making his findings of fact, the judge applied the civil, not the criminal standard. To suggest that he found Constable Wray to be guilty of a criminal offence is simply incorrect. [26] Third, and most importantly, statutory interpretation is primarily concerned with the meaning of words. Statutory interpretation begins with the words of the statute. It is a mistake to, instead, begin with an assumption of what the Legislature should have done. In interpreting a statute, a court must apply Elmer Driedger’s “modern approach” to statutory interpretation, as adopted by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27 at para. 21: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See also: Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 at para. 26. [27] The language of s. 21 is clear. It sets out two steps to be followed in determining whether an officer enjoys personal immunity from tort liability. The first step is described in s. 21(2). The officer bears the onus of showing that the actions constituting the tort occurred in the performance of the officer’s duties. [28] Mr. Lapshinoff contends that police officers can only be said to be acting in the performance of their duties when they are acting lawfully and properly. Such an interpretation of “in the performance of [their] duties” in s. 21(2) cannot be correct. A tort action against a police officer will always allege some impropriety or default on the officer’s part. If such deficiencies were enough to take the officer’s actions or omissions outside of “the performance of their duties”, there would be no scope at all for the immunity from suit set out in the section. [29] It is also noteworthy that ss. 11 and 20 of the Police Act , which impose vicarious liability on governments for the torts of police officers, speak of torts committed “in the performance of their duties”. The phrase must have the same meaning in s. 21 as it does in ss. 11 and 20. [30] Case law has also established that the phrase “tort committed in the performance of … duties” is to be given broad scope in the context of the Police Act : see Sulz v. Minister of Public Safety and Solicitor General , 2006 BCCA 582. [31] If the officer has demonstrated that actions giving rise to a claim in tort were committed in the performance of the officer’s duties, the next step in the inquiry is to consider s. 21(3). An officer forfeits the immunity from personal liability where the officer acts dishonestly, grossly negligently, maliciously, or by engaging in wilful misconduct. Because s. 21(3) sets out exceptions to a defence, the onus is on the plaintiff to demonstrate that the exception applies. Application of the Framework to this Case Were Constable Wray’s Actions Taken in the Performance of his Duties? [32] I am unable to accept Mr. Lapshinoff’s argument that Constable Wray was not acting in the performance of his duties in this case. He was arresting a person who he had reasonable grounds to believe was guilty of impaired driving. He was, therefore, entitled to immunity from suit unless Mr. Lapshinoff could demonstrate that the officer acted in one of the manners described in s. 21(3). What s. 21(3) Exceptions Were Pleaded? [33] Just as Constable Wray was required to plead that the tort occurred in the course of his performance of duties as a police officer, it was incumbent on Mr. Lapshinoff to plead that one of the exceptions in s. 21(3) deprived Constable Wray of his immunity. [34] Such a pleading would, normally, be part of the plaintiff’s reply pleading, as it would be pleaded in response to a defence advanced by the defendant. In the case before us, Mr. Lapshinoff chose to file an amended notice of civil claim rather than a reply. [35] In Part 1 of the amended notice of civil claim (the “Statement of Facts”), Mr. Lapshinoff stated that the defendants’ conduct was “wilful misconduct”, and, in the alternative, was “grossly negligent”. In Part 3 of the document (the “Legal Basis”), he stated that the arrest was conducted in a “grossly negligent manner”, but did not mention wilful misconduct. [36] In my view, the legal characterization of the facts as “wilful misconduct” or “grossly negligent” properly belonged in Part 3 of the document. The fact that wilful misconduct was alleged only in Part 1 is unfortunate, but was not, in this case, either confusing or prejudicial to the defendants. [37] In particular, I would reject Constable Wray’s suggestion that he was deprived of the opportunity to present evidence on wilful misconduct. The issue was clearly raised by the pleadings, and ought to have been in the mind of counsel for both parties during the hearing. Indeed, counsel for Constable Wray mentioned wilful misconduct at points during the trial, treating it as a live issue. It is also worth noting that the onus of proving wilful misconduct was on the plaintiff, not the defendant. “Gross Negligence” and “Wilful Misconduct” [38] The seminal authority in Canada on the meaning of “gross negligence” and “wilful misconduct” is the oft-cited judgment of Duff C.J. in McCulloch v. Murray , [1942] S.C.R. 141. In comments made in his concurring reasons in the case, the Chief Justice said, at 145: I am, myself, unable to agree with the view that you may not have a case in which the jury could properly find the defendant guilty of gross negligence while refusing to find him guilty of wilful or wanton misconduct. All these phrases, gross negligence, wilful misconduct, wanton misconduct, imply conduct in which, if there is not conscious wrong doing, there is a very marked departure from the standards by which responsible and competent people in charge of motor cars habitually govern themselves. Subject to that, I think it is entirely a question of fact for the jury whether conduct falls within the category of gross negligence, or wilful misconduct, or wanton misconduct. These words, after all, are very plain English words, not difficult of application by a jury whose minds are not confused by too much verbal analysis. [39] The trial judge mentioned two trial-level decisions that further elaborated on the meaning of “gross negligence”: Doern v. Phillips Estate (1995), 2 B.C.L.R. (3d) 349 and Hildebrand v. Fox , 2008 BCSC 842. Although not mentioned in the trial judge’s reasons, both of those decisions were affirmed on appeals to this Court: Doern v. Phillips Estate (1997), 43 B.C.L.R. (3d) 53; Hildebrand v. Fox , 2008 BCCA 434. At para. 18 of this Court’s reasons in Hildebrand , it agreed with the discussion of “gross negligence” in both of the trial decisions. [40] The parties do not suggest that the judge made a reversible error in coming to the conclusion that Constable Wray was not guilty of gross negligence. [41] While McCulloch v. Murray suggests that wilful misconduct is closely related to gross negligence, with both representing “very marked departure[s] from the standards by which responsible and competent people…habitually govern themselves”, it also indicates that the two concepts are different, and that there may be cases where one is satisfied, but the other is not. [42] In Ward v. Vancouver (City) , 2007 BCSC 3, Tysoe J. (as he then was), after citing McCulloch , said: [102]    In my view, a clearer description of the meaning of wilful misconduct is contained in R. v. Boulanger , 2006 SCC 32, a case dealing with the criminal offence of breach of trust by a public officer. The Supreme Court of Canada held that it is necessary to have reference to the common law authorities on misfeasance in public office in considering the offence. In this regard, the Court summarized parts of an English authority, Attorney General’s Reference (No. 3 of 2003) , [2004] W.L.R. 451 (Eng. C.A), at ¶27: Wilful misconduct was held to mean “deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it was wrong or not” (para. 28), and recklessness to mean “an awareness of the duty to act or a subjective recklessness as to the existence of the duty” (para. 30). The recklessness test was said to apply to the determination of whether a duty arises in the circumstances, as well as to the conduct of the defendant if it does. Although the Court did not specifically adopt or approve of these meanings, it did not express any disapproval of them. [103]    In the present case, there is no evidence that either Sergeant Kelly or Sergeant Gatto decided not to release Mr. Ward when they knew that he should have been released. It is not sufficient to establish that their acts constituted the commission of an intentional tort. It must also be established that they committed the tort knowing it to be wrong or with reckless indifference as to whether it was wrong or not. [43] While aspects of Ward were appealed as against the City of Vancouver and the Province of British Columbia ( Ward v. British Columbia, 2009 BCCA 23, rev’d in part Vancouver (City) v. Ward , 2010 SCC 27), no appeal was taken in respect of the finding that the individual officers were not personally liable. [44] The Supreme Court of Canada had an opportunity to further clarify the meaning of “wilful misconduct” in Peracomo Inc. v. TELUS Communications Co., 2014 SCC 29. The majority discussed the ambit of “wilful misconduct” at paras. 56–61, concluding that the phrase “includes not only intentional wrongdoing but also other misconduct committed with reckless indifference in the face of a duty to know”. [45] The parties take diametrically opposed positions on whether wilful misconduct is made out in this case. Mr. Lapshinoff points to the findings of fact, and says that deliberate misconduct or reckless indifference in the face of a duty to know should be inferred by this Court. [46] Constable Wray, on the other hand, says that because the judge rejected the allegation of gross negligence, it must also be the case that there was no wilful misconduct. He says that in finding that gross negligence had not been shown, the judge must have determined that the constable’s conduct did not represent a marked departure from the standards expected. He says that the same considerations that govern the assessment of a marked departure from expected standards apply to both gross negligence and wilful misconduct. [47] I am unable to accept Constable Wray’s argument. The degree to which conduct departs from expected standards can turn not only on the acts committed, but also on the state of mind of the person committing them. This has been recognized by the Supreme Court of Canada in prosecutions for dangerous driving: see R. v. Beatty , 2008 SCC 5 at para. 47 and R. v. Roy , 2012 SCC 26 at para. 38. Summarizing those paragraphs in R. v. Chung , 2019 BCCA 206 (appeal to SCC pending), at para. 36, this Court said: “[a] marked departure from the standard of the reasonable driver can…be proven either by showing that the dangerous conduct was so seriously deficient as to justify a criminal sanction, or by demonstrating that subjective mens rea was present”. [48] While gross negligence and wilful misconduct both represent marked departures from expected standards of conduct, they have different focusses. Gross negligence is a species of negligence: the focus is on a failure to take due care and on the magnitude of the risk resulting from that failure. Wilful misconduct, on the other hand, focusses on deliberate flouting of norms, or indifference to following those norms in the face of a duty to do so. [49] That said, we do not have the benefit of a detailed analysis by the judge as to why gross negligence was not made out, and it is at least conceivable that he did not consider the conduct of the constable to be as egregious as might be inferred from some of his findings. It is also notable that he refrained from including any award of punitive damages in his assessment of quantum. [50] Determining whether Constable Wray engaged in wilful misconduct would require, amongst other things, determining his state of mind. Such a determination requires a nuanced assessment of the evidence and an evaluation of the credibility and reliability of the witnesses. It is not an assessment that this Court can properly undertake in this case, given the limited analysis provided by the trial judge. [51] I am unable to conclude that the judge’s failure to consider wilful misconduct was a harmless error, but am not satisfied that this Court can determine liability. The matter (as between Mr. Lapshinoff and Constable Wray) must be remitted to the trial court for a new trial. [52] Because there will need to be a new trial, no purpose would be served by analyzing Constable Wray’s argument to the effect that the judge made a palpable and overriding error as to the manner in which Mr. Lapshinoff’s injuries occurred. The issue of what actions resulted in injury and whether Constable Wray bears responsibility for those actions will have to be considered afresh, in any event, by the judge at the new trial. Costs [53] The appellant has succeeded in obtaining a new trial, and would ordinarily be entitled to his costs as the substantially successful party. In this case, however, counsel for Mr. Lapshinoff (who was not counsel at trial), wisely conceded that the ordinary order would not be appropriate. The appeal has been necessitated by the failure of the parties (but particularly of Mr. Lapshinoff) to properly present a crucial argument in the court below. Disposition [54] I would allow the appeal and order a new trial as between Mr. Lapshinoff and Constable Wray. Each party should bear his own costs of the appeal. The costs of the original trial should be in the discretion of the judge hearing the new trial. “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Mr. Justice Hunter” I AGREE: “The Honourable Madam Justice Griffin”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Camille, 2020 BCCA 32 Date: 20200127 Docket: CA45529 Between: Regina Respondent And Gordon Paul Camille Appellant Before: The Honourable Madam Justice Bennett The Honourable Mr. Justice Harris The Honourable Mr. Justice Goepel On appeal from:  An order of the Supreme Court of British Columbia, dated March 13, 2018 ( R. v. Camille , 2018 BCSC 478, Kamloops Docket 101253). Counsel for the Appellant: K.M. Walker, Q.C. K. Thorsteinson Counsel for the Respondent: E. Campbell Place and Date of Hearing: Kamloops, British Columbia October 3, 2019 Place and Date of Judgment: Vancouver, British Columbia January 27, 2020 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Mr. Justice Harris The Honourable  Mr. Justice Goepel Summary: Mr. Camille was convicted of manslaughter after being found to have caused the death of Dennis Adolph. The Crown’s case was circumstantial, and the trial judge ruled out accidental or deliberate self-harm as reasonable, alternative inferences to guilt. Mr. Camille appeals his conviction on the basis that the trial judge erred in concluding that the only reasonable inference was that he caused the death of Mr. Adolph. He also alleges that the trial judge improperly drew inferences in the absence of expert evidence. Held: Appeal dismissed. The trial judge did not err in finding the alternative inferences to be speculative, nor did she improperly draw inferences where expert evidence was necessary. Her conclusions were available on the evidence and the verdict was reasonable. Reasons for Judgment of the Honourable Madam Justice Bennett: [1] Gordon Camille appeals his conviction for manslaughter for causing the death of Dennis Adolph. Mr. Adolph died as a result of blood loss from a stab wound. Mr. Camille argues that the trial judge erred in concluding that the only reasonable inference from the circumstantial evidence was that he caused the death of Mr. Adolph. [2] For the reasons that follow, I would dismiss the appeal. Factual overview [3] The grounds of appeal relate to the inferences drawn by the trial judge from her findings of fact. Thus, I will set out the evidence in detail. [4] On January 26, 2016, Dennis Adolph died at the age of 49 years from exsanguination, or loss of blood, as a result of a single stab wound to his abdomen. In the two months preceding his death Mr. Adolph had been living at the Four Seasons Motel in Kamloops, B.C. and sharing a room with Mr. Camille. [5] On January 25, 2016, Mr. Adolph and Mr. Camille returned to their room together at 8:15 p.m. During that evening, witnesses heard loud voices and music emanating from the room, but nothing in the nature of a dispute. Mr. Adolph and Mr. Camille remained alone throughout the night and into the following morning. [6] Surveillance cameras on the motel property captured video footage of the comings and goings of Mr. Adolph and Mr. Camille between January 25, 2016 and January 26, 2016. [7] The footage confirmed that from 8:15 p.m. on January 25, 2016 to 6:15 a.m. the next morning, only Mr. Adolph and Mr. Camille could have been in the room—no one else. [8] Similarly, from 6:15 a.m. to 11:30 a.m. on January 26, 2016, nobody left or entered the room other than Mr. Adolph and Mr. Camille in the following instances: a) At 6:15 a.m., Mr. Adolph attended the office of the motel manager, Mr. Vinepal, and then returned to his room. b) At 6:52 a.m., Mr. Camille left the room and proceeded towards Mr. Vinepal’s office. After knocking on the door and receiving no response, he returned to the room. c) At 11:15 a.m., Mr. Camille left the room and reported Mr. Adolph’s death to Mr. Vinepal. [9] Following Mr. Camille’s report, first responders attended the room and found Mr. Adolph’s body lying in a perpendicular position on one of the two beds, with his legs draped over the edge and into the area between the two beds. He was dressed in pajama pants only and covered by a blanket. A wound to his abdomen was clearly visible once the blanket was removed. The first responders moved Mr. Adolph to the floor and conducted various resuscitative procedures, until ultimately discontinuing at 11:40 a.m. [10] A kitchen knife was found tucked under a pair of eyeglasses in the drawer of a nightstand just a few feet from Mr. Adolph’s body. The knife’s blade, measuring approximately five inches in length, had blood on the tip. The blood was determined by DNA testing to be Mr. Adolph’s blood. The trial judge found that this was the knife used to stab Mr. Adolph. A red washcloth was also found hanging from the handle of the same nightstand. [11] Aside from what was on the knife, there was little blood at the scene other than a small stain on the blanket beside Mr. Adolph’s body. No blood was found in the drawer of the nightstand or in any part of the room, nor was blood found outside. The Crown’s forensic pathologist, Dr. Lisa Steele, explained that Mr. Adolph’s wound was plugged by a stopper of fat that directed his blood to flow internally. [12] There were no indications of a struggle having taken place. [13] Several bottles of alcohol were seized from the room. Some were open, others were closed. Many were spread across the floor. [14] An attending officer at the scene testified that Mr. Camille had an odour of alcohol on his breath, as if he had been drinking previously, but he did not appear to be intoxicated. [15] The Crown’s DNA expert, Shaun Neudorf, confirmed that the blood on the knife from the drawer was Mr. Adolph’s, although he could not determine when it was first applied to the blade. He agreed that DNA may be removed from an object by washing it off, or it may remain for years. [16] The handle of the knife was submitted for genetic testing but not examined for fingerprints. Results indicated mixed DNA from only two male sources. Mr. Neudorf gave statistical evidence to suggest that Mr. Camille and Mr. Adolph were likely the donors. [17] The source of the DNA on the knife’s handle was unknown; it could have been from skin cells, blood, or some other bodily substance. Mr. Neudorf could not determine when the DNA taken from the knife’s handle was first applied. He agreed that two people’s DNA could be on most objects in a room shared for a period of months. [18] Dr. Steele was qualified to give opinion evidence on the causes, mechanisms and physical processes of death. She described the fatal wound as a single incision immediately to the left of the umbilicus. As noted above, a stopper of fat plugged the wound and directed close to a litre of blood into Mr. Adolph’s abdominal cavity and soft tissues. Mr. Adolph also suffered from two small cuts to the back of his left hand. [19] Dr. Steele could not indicate a precise time of death, but she noted that death would have ensued in a matter of minutes. When the first responders arrived at approximately 11:30 a.m., rigor mortis had just begun and Mr. Adolph’s body was still warm. This suggested a time of death between two and six hours earlier. Given the evidence that Mr. Adolph was alive at 6:15 a.m., she indicated that his time of death was likely between 6:15 a.m. and 9:30 a.m. She readily acknowledged that her conclusions were not certain in this regard. [20] Dr. Steele testified that the nature and limited extent of blood flow to the exterior of the wound, and the lack of blood found elsewhere in the room, suggested that Mr. Adolph was lying down when he was stabbed, in the position where his body was found. For instance, there was bleeding from the abdominal wound to the side of Mr. Adolph’s body, as though he were lying flat. Furthermore, in that position, the blood stain found on the blanket beside Mr. Adolph’s body corresponded with the path of oozing blood from his abdomen. The limited vertical blood trails on Mr. Adolph’s abdomen indicated that he may have tried to sit up. [21] Dr. Steele acknowledged that Mr. Adolph could have been standing when he was stabbed, and the stopper of fat would have still kept the majority of blood in his abdomen from leaking out. It was also possible that Mr. Adolph could have walked after receiving the fatal blow. However, more blood would likely have been found in the room if Mr. Adolph had been standing. [22] Dr. Steele described the characteristics of the abdomen wound. It was about one inch in length at the surface, and between two and three inches deep (less than the length of the blade of the knife seized from the nightstand). The angle of the wound suggested that the sharp end of the knife was oriented upwards and to the left when the incision was made, while the blunt end was oriented downwards. Dr. Steele indicated that the knife was likely not inserted to the level of its hilt, or there would have been an abrasion mark left on Mr. Adolph’s abdomen. [23] Dr. Steele could not quantify the amount of force required to inflict the wound; however, she did note that the area of the body that was penetrated has no resistant structures. Furthermore, Mr. Adolph was very slender and had little subcutaneous fat or additional soft tissue to be penetrated before a knife could reach the abdominal cavity. [24] Dr. Steele acknowledged that the alignment of the two cuts on the back of Mr. Adolph’s left hand was consistent with a single slice. She stated that the cuts could have been sustained if Mr. Adolph’s hand was in the path of the stab to his abdomen, or if he raised his left hand and obstructed the path of another potential stabbing. Either way, they were not indicative of him having grabbed the knife as if it was coming towards him. [25] With the exception of the cuts on his left hand, Dr. Steele indicated that there were no physical signs on Mr. Adolph’s body—such as bruising or lacerations—that he had been in a fight or had tried to defend himself. [26] Crown counsel also examined Dr. Steele regarding the possibility that Mr. Adolph inflicted the fatal wound on himself. She testified that she did not observe any indicia consistent with suicide or past attempts of suicide. [27] A small plastic keychain that was identified as a Minecraft toy was found in the cuff of Mr. Adolph’s pajama pants during the autopsy. Those pants had a single pocket with a one-inch hole in it. [28] Samples of Mr. Adolph’s urine, blood, and vitreous fluid were analyzed by Heather Dinn, a Forensic Specialist of the RCMP. Her toxicology report was jointly admitted into evidence at trial. She did not testify. [29] Mr. Adolph’s blood alcohol concentration (“BAC”) at the time of his death was measured at 400 mg%. While this extraordinarily high level is often associated with death by acute alcohol poisoning, Dr. Steele opined that Mr. Adolph was alive when he was stabbed given the profuse bleeding into his abdomen. In any event, the toxicology report described the physiological effects of such a high BAC: A BAC of 400 mg% is generally associated with severe intoxication. Signs and symptoms which may be present include: very slurred to incomprehensible speech , extremely poor balance (e . g. swaying while standing, staggering while walking with reeling and lurching when called upon to make sudden t u rns or to carr y out unexpected m ovements and poss i bly i nability to stand or walk) , me n tal confus i on, emotiona l i n stability, disorientat i on , gross muscu l ar incoordination, vomiting, incontinence of urine or faeces, impaired consciousness or stupor. However, in a small percentage of the drinking population a significant degree of tolerance to alcohol concentrations at and above 400 mg% may be acquired through chronic consumption of alcohol. As a result of this tolerance, the symptoms characteristic of a particular BAC will be delayed until much higher BAC’s. [30] Dr. Steele agreed that a person with a BAC of 400 mg% would have impaired walking, fine motor skills, and judgment. [31] There was, however, no expert evidence before the trial judge on the issue of how impairment would affect a person’s pain response and reflexes in reaction to that pain response. [32] Mr. Adolph’s BAC was declining at the time of his death, which led the toxicologist to the conclusion that he had not consumed any significant amount of alcohol within the preceding 30 minutes. [33] Mr. Camille did not testify. [34] At trial, the question of a third-party perpetrator was argued as a major issue. The issue on appeal was narrowed to whether Mr. Camille stabbed Mr. Adolph, or whether Mr. Adolph stabbed himself. Issues on appeal and positions of the parties [35] Mr. Camille raises several related grounds of appeal dealing with the inferences the trial judge drew from the evidence. He submits that the trial judge erred by wrongly filling in gaps in the evidence, that she ignored other reasonable inferences available on the evidence, and that the verdict was unreasonable or unsupported by the evidence. He also says that the trial judge erred by relying on common sense when expert evidence was required. The Crown concedes this last issue, but seeks to apply the curative provision, s. 686(1)(b)(iii), arguing that there was no substantial wrong or miscarriage of justice. [36] In my view, the trial judge did not err in her assessment of the circumstantial evidence, and I do not agree with the Crown’s concession with respect to the trial judge’s analysis. I return to these points below. Discussion Legal framework [37] In R. v. Villaroman , 2016 SCC 33, the Court settled the test to be applied when assessing circumstantial evidence, drawing inferences from the evidence or absence of evidence, and determining if guilt is proved beyond a reasonable doubt. [38] The concern regarding circumstantial evidence is that a jury may “unconsciously fill in the blanks” or bridge gaps in the evidence to draw the inference the Crown seeks: Villaroman at para. 26. Or, in other words, “jumping to unwarranted conclusions in circumstantial cases”: Villaroman at paras. 26–27. The jury instruction regarding circumstantial evidence is given in order to alert it to the concerns regarding the path of reasoning in relation to drawing inferences from circumstantial evidence: at para. 29. [39] In Villaroman , Cromwell J., writing for the Court, examined the applicable reasoning when there is an absence of evidence raised to support an alternative theory to guilt, offering the following guidance at para. 36: [36]      I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus , a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence ”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense . [38]      Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [Emphasis added.] [40] Finally, the Court identified “useful statements” of the principle: [40]      The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375: In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed . ... [42]      The second is from R. v. Dipnarine , 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24–25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible. [Emphasis added by Cromwell J.] [41] I now turn to the application of these principles in the context of the appeal issues. Did the trial judge incorrectly apply the approach to circumstantial evidence and “fill in the gaps and blanks” in the evidence? [42] The trial judge concluded that Mr. Camille stabbed Mr. Adolph. The question is whether there was another reasonable inference available on the evidence, namely, that Mr. Adolph stabbed himself, either intentionally or accidentally. Mr. Camille submits that the evidence relied on by the trial judge could not lead her to only one reasonable inference. The evidence of how Mr. Adolph died was circumstantial, and by concluding that it was Mr. Camille who struck the fatal blow, the trial judge improperly filled in the gaps of the evidence. [43] The Crown has summarized the evidence that was available to the trial judge to rest her conclusion. It is convenient to set it out here: The following are the trial judge’s relevant findings of fact: · Mr. Adolph died as a result of a stab wound to his abdomen; · Mr. Adolph and the appellant were alone and together in their motel room at the time of the stabbing and until Mr. Adolph died of his wound; · Emergency personnel found Mr. Adolph lying across one of the beds with the lower portion of his legs hanging over the bed to the floor; · Mr. Adolph’s body and head were covered by a blanket; · A blood stain on the blanket under Mr. Adolph’s left side was the only blood found in the room or in the vicinity of the room; · Close to a litre of blood accumulated in Mr. Adolph’s abdominal cavity, in part because the wound was plugged by some fat tissue; · At the time of his death, Mr. Adolph had a blood alcohol concentration of 400 mg% and analysis indicated that he had not consumed alcohol in the preceding 30 minutes; · A concentration of 400 mg% is associated with symptoms ranging from gross muscular incoordination to unconsciousness to death; · Mr. Adolph was obviously heavily intoxicated when he went to the office at 6:15 a.m., as demonstrated by his stumbling and staggering while walking; · The knife that caused the wound was the one found in the nightstand drawer; · The knife was found in the nightstand drawer under a pair of eyeglasses. The drawer contained personal items but no other kitchenware; and · Although Dr. Steele acknowledged that Mr. Adolph could have walked with his wound, the limited external bleeding, the nature and location of that bleeding, and the lack of blood elsewhere in the room led Dr. Steele to conclude that Mr. Adolph was lying down when he was stabbed. [References omitted.] [44] In her analysis, the trial judge reviewed the evidence relied on by the Crown, which was broken down into four areas: scene evidence, DNA evidence, expert evidence and video evidence. Much of the evidence addressed whether a third-party had committed the killing—a theory abandoned on appeal. [45] The trial judge did not, as argued by Mr. Camille, find that this evidence supported an inference of guilt before considering the evidence that would permit an inference inconsistent with Mr. Camille’s guilt. [46] Rather, she examined the evidence advanced to support the alternative theory, and concluded that neither accidental nor deliberate self-harm by Mr. Adolph were reasonable inferences to draw. [47] She then turned to assess the whole of the evidence to determine whether the Crown had proved its case beyond a reasonable doubt. She considered Villaroman , and was alive to the correct approach to circumstantial evidence. Setting aside the third-party perpetrator, there were two other theories put forward. One was reasonable, one was not. As noted in Villaroman , at para. 42, the circumstantial evidence does not have to totally exclude other conceivable inferences. Alternative inferences, however, must be reasonable, not just possible. [48] There was, in my view, strong evidence supporting the conclusion that Mr. Camille stabbed Mr. Adolph: Mr. Adolph was most likely lying down when he was stabbed, he would have died within minutes, not hours, he likely did not walk after being stabbed, yet the knife was found in a nightstand drawer, neatly tucked under a pair of glasses. If Mr. Adolph had stabbed himself, the knife would most likely have fallen to the ground. He would not have had the ability to place it in the nightstand. There is no evidence supporting a contention that Mr. Adolph stabbed himself, and Mr. Camille put the knife away. It also makes no sense that Mr. Camille would find Mr. Adolph dead, but carefully place the knife in the nightstand drawer. [49] The trial judge did not “fill in the gaps or blanks” in the evidence. The facts she found, and the reasoning she applied fully supports her conclusion that the only reasonable inference was that Mr. Camille stabbed Mr. Adolph. [50] In light of the foregoing, I would not accede to this ground of appeal. Did the trial judge err in drawing inferences in the absence of expert evidence? [51] Mr. Camille argued that the trial judge improperly relied on common sense when assessing the pain response of a highly intoxicated person. The Crown, in its factum, agreed: 46.       While finding the appellant’s theory to be implausible, the trial judge commented on a person’s pain response. She reasonably applied common sense to say that a person would generally respond to a knife accidentally breaking their skin by pulling the knife back rather than plunging it in to a depth of two to three inches. However, the trial judge went on to consider how Mr. Adolph’s level of impairment may have affected this pain response. 47.       The appellant chose not to elicit evidence of his alternate theory from the toxicologist through cross-examination. Accordingly, there was no expert evidence before the trial judge on the issue of how impairment would affect a person’s pain response and reflexes in reaction to that pain response. In the absence of such expert evidence, the trial judge’s consideration of the issue should not have been a part of her reasoning to reject the alternate inference. [References omitted.] [52] A careful review of the trial judge’s reasons does not, in my opinion, reflect such an error. The defence argued that Mr. Adolph may have been trying to use the knife to manipulate the Minecraft toy that was found by the pathologist in the cuff of his pajama bottoms. He submitted that the knife could have slipped and caused the wound, given his high state of intoxication. In response to that argument, the trial judge said this, at para. 78 of her reasons: [78]      In ordinary circumstances, a suggestion that a person could accidentally stab themselves to a depth of between two and three inches with an ordinary kitchen knife would run markedly counter to common sense and experience.  The natural human reflex and response to pain would intervene with the initial penetration and would cause the person to quickly stop it. [53] This observation is well-within the confines of human experience and common sense. She then correctly framed the question, and evaluated the suggested inference against the backdrop of how intoxicated the parties were, or likely were, at the relevant time: [79]      The question is whether the suggested inference is a reasonable one in light of the evidence of Mr. Adolph’s extreme intoxication, coupled with the likelihood (based on the number and location of empty bottles in the room) that Mr. Camille too was very intoxicated and potentially unaware or Mr. Adolph’s plight or unable to assist. [54] The trial judge (at para. 80) was alive to the fact that there was no expert evidence addressing “the effect of extreme intoxication on reflexes or reactions to pain or other signals of damage to the body.” She did not rely on Mr. Adolph’s ability—or lack thereof—to assess pain as part of her reasoning to conclude that he did not accidentally stab himself. [55] Instead, she reviewed the evidence tendered that set out general symptoms of a person as highly intoxicated as Mr. Adolph, relied on the extent of the wound, and concluded (at para. 81) that “it was far from obvious that a person using the knife to fiddle with something like the Minecraft key chain could accidentally cause the type of wound Mr. Adolph sustained.” [56] In my view, the judge did not err. Did the trial judge ignore logical inferences from the evidence [57] Mr. Camille says that the trial judge ignored accidental and deliberate self‑harm as logical inferences which were available on the evidence. [58] This argument essentially repeats what was made at trial. The trial judge was fully aware of the alternate theories presented by the defence. She analyzed the evidence that supported the Crown’s theory and the alternate theories. She concluded that the alternate theory was not a reasonable inference that she could draw from the evidence, and that the Crown had proved that Mr. Camille struck the blow that caused Mr. Adolph’s death. [59] I would not give effect to this argument. Unreasonable verdict [60] In Villaroman , the Court articulated the test for assessing the reasonableness of a verdict based on circumstantial evidence at para. 55: [55]      A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381. Applying this standard requires the appellate court to re‑examine and to some extent reweigh and consider the effect of the evidence: R. v. Yebes , [1987] 2 S.C.R. 168, at p. 186. This limited weighing of the evidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: Yebes , at p. 186; R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4; R. v. Liu (1989), 95 A.R. 201 (C.A.), at para. 13; R. v. S.L.R. , 2003 ABCA 148; R. v. Cardinal (1990), 106 A.R. 91 (C.A.); R. v. Kaysaywaysemat (1992), 97 Sask. R. 66 (C.A.), at paras. 28 and 31. [61] The only live issue on appeal is whether Mr. Camille stabbed Mr. Adolph. Although there was no direct evidence on the point, it is my view that the circumstantial evidence set out above, and considered as a whole, supported the trial judge’s conclusion that Mr. Camille had struck the blow. [62] In applying the question of whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence, the answer is yes. Conclusion [63] The trial judge’s reasons are not to be parsed with a scalpel, but read as a whole, and in the context of the evidence, the issues and arguments at trial, “together with an appreciation of the purposes or functions for which they are delivered”: Villaroman at para. 15. [64] In my view, the trial judge’s reasons, when read as a whole, do not contain any errors, and the verdict was reasonable and supported by the evidence. [65] I would dismiss the appeal. “The Honourable Madam Justice Bennett” I AGREE: “The Honourable Mr. Justice Harris” I AGREE: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Liapis v. Keshow, 2020 BCCA 28 Date: 20200128 Docket: CA46341 Between: Amalia Liapis Respondent (Claimant) And Aron Damien Keshow, 0880881 B.C. Ltd., King Tiger Investments Ltd. Appellants (Respondents) And 0892868 B.C. Ltd. Respondent (Respondent by Counterclaim) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Groberman The Honourable Mr. Justice Abrioux On appeal from:  Orders of the Supreme Court of British Columbia, dated August 14 and 16, 2019 ( Liapis v. Keshow , Vancouver Registry E162841). Counsel for the Appellants: H.M. Dale Counsel for the Respondents: P.R. Albi, Q.C. S.E. Ovens Place and Date of Hearing: Vancouver, British Columbia January 15, 2020 Place and Date of Judgment: Vancouver, British Columbia January 28, 2020 Written Reasons of the Court Summary: Trial judge in family law case, being dissatisfied with expert evidence concerning the value of a major asset, ordered that the property be sold before she made a final order for the division of property. This order had not been sought by counsel for either party and they had not had the opportunity to make submissions on the possibility of such an order. Appeal allowed. Trial judge had erred in making the order without hearing counsels’ submissions thereon, and she had not considered other alternatives that might be preferable. Order for sale was set aside and the case was remitted to the Supreme Court. Reasons for Judgment of the Court: [1] We are all of the view that this appeal should be allowed and that the trial in the court below should resume – if possible, before the trial judge who has already heard several days of trial. If that is not possible, the Chief Justice of the Supreme Court will have to nominate a new trial judge under R. 22‑2(10) of the Supreme Court Family Rules . [2] The order under appeal was made in the course of a family law trial in which it became necessary to determine the value of a piece of real estate. The real estate is located in downtown Vancouver and consists of a large commercial/residential  building called the “Boulder”. It is owned by the respondent King Tiger Investments Ltd. (“King Tiger”), a subsidiary of the respondent 0880881 B.C. Ltd. (the “Numbered Company”), the shares of which are owned by Mr. Keshow (the “husband”). He is involved in a time-consuming and complex project to re‑develop the property. [3] A joint expert report on the fair value of the Boulder had been filed at trial; the claimant in this proceeding, Ms. Liapis (the “wife”), had disagreed with it; and she sought to adduce into evidence the opinions of two other experts. In general terms, the experts disputed the method of calculating the cost of the planned redevelopment of the Boulder, in respect of which the husband had successfully reached a “Heritage Revitalization Agreement” with the City of Vancouver. The Agreement included the grant to King Tiger of so-called “transferable density” rights. According to the husband’s testimony, the terms of the Agreement prohibit the sale of the building without the City’s approval. [4] The trial commenced in October 2018 but was adjourned to February 2019 and then to early April 2019. On the 17th day of trial, both parties had filed written submissions on the legal issues that had to be resolved. The husband sought the equal division of the parties’ family assets and submitted that there was no need to “force a liquidation of one of the party’s companies”, citing Blackett v. Blackett (1989) 63 D.L.R. (4th) 18 (B.C.C.A.) at 23–5. Counsel for the wife submitted that “everything about the Boulder project” was “speculative” and as we read his argument, suggested that the Court should determine the fair market value at $4.1 million, the amount for which a tenant of the Boulder property had made an offer to purchase. There may be legitimate objections to using this tenant’s offer as indicative of fair market value. [5] At the end of the day on April 5, 2019, the trial judge asked counsel for the husband if she would require more time “next time we meet”. Counsel replied that she had “a great deal more submissions” to make, but that she had finished her submissions explaining the table of assets she had provided to the Court. [6] When the trial resumed on August 14, the judge told counsel she had had time to ‘cogitate’ over the summer and had come to some decisions. The second of these was that because she saw “substantial deficiencies” in the expert reports, the only way she could be “confident in a fair value to be assessed is by ordering the building to be sold.” No further reasons were given; nor did the judge explain why the Boulder itself was to be sold rather than the husband’s shares of the Numbered Company or the Numbered Company’s share of King Tiger. [7] The husband’s original notice of appeal was filed on August 28, 2019. [8] On September 5, 2019, the trial judge stayed the order of sale and an ancillary order pending the husband’s appeal. The trial was also adjourned pending appeal. [9] On October 30, 2019, Mr. Albi on behalf of the wife wrote to counsel for the husband as follows: Considering the issue of proportionality and having regard to the timelines before trial arguments are concluded, we do not consider it expedient or in the best interests of either party for the subject appeal to proceed . While our position is that the Order for Sale is appropriate having regard to the valuation evidence before the court, in order to address concerns raised in the appeal, we will advise the trial judge that the continuation of the trial in November that Ms. Liapis is prepared to agree to vacate the Order for Sale to allow the trial arguments to be concluded before judgment is rendered on all issues . In our view, this will allow full argument on whether an Order for Sale should be granted, and will render the appeal of the Order for Sale unnecessary. [Emphasis added.] Strangely, counsel for the husband did not accept this offer, apparently because she regarded it as offering only a ‘suspension’ of the order for sale and believed that it was “too late” to get a “fair” solution from the trial judge. [10] It is unfortunate that counsel misunderstood Mr. Albi’s offer, especially since in this court, both counsel acknowledged that neither party had been afforded the right to be heard on the issue of whether the Boulder should be sold before the judge divided the parties’ property. The sale of the Boulder was at best premature; and if some division becomes necessary under the Family Law Act, a better method might well be to re‑allocate corporate shares rather than to sell the property itself. Obviously, shares can be divided in a way real estate cannot, and various taxes and fees, as well as negotiations with the City, might be avoided. [11] In the circumstances, we are of the view that the sale order and the ancillary order should be set aside. The only remaining question for this court is whether it will be necessary to order a new trial or whether the trial can simply continue before the trial judge. This is complicated by the fact that the judge has announced she is retiring effective May 30, 2020. [12] Ms. Dale argued initially before us that the trial judge had breached the rules of procedural fairness in making the sale order without hearing full argument on the issue from counsel and that her client should not be required to go back before a judge who has “made her mind up” on the question of sale. Counsel referred us to a number of cases, including Boury v. Iten 2019 BCCA 81. In that instance, a judge in chambers had made an (interlocutory) order in respect of which he had received written submissions but had not heard oral argument from counsel. This court ruled that the judge had thereby breached the rules of procedural fairness. In Tysoe J.A.’s words: The legal argument to be set out in the Notice of Application is not intended to be a substitute for oral submissions or more elaborate written arguments permitted by R. 8‑1(16) in the event the hearing of an application will take more than two hours. Two of the valuable functions of oral advocacy are to answer questions the judge may have and to phrase submissions in a persuasive fashion that may be slightly different from legal arguments set out in the Notice of Application or written submissions. [At para. 32.] Since it was not “plain and obvious” the procedural error had not affected the outcome, the Court remitted the application to the Supreme Court for a new hearing. (At paras. 44–5; see also Felker v. Felker [1946] O.W.N. 368 (Ont. C.A.); Investors Group Financial Services Inc. v. Corby 2005 BCSC 666.) [13] We are concerned here, however, with an interlocutory order made by a trial judge mid-trial. As we told Ms. Dale, this court often refers matters back to trial judges after correcting errors of law or fact. It is assumed the trial judge will proceed without any predisposition against the successful appellant. This was not an instance in which a truly discretionary order was made that might justify a litigant in perceiving a predisposition on the judge’s part. (Ms. Dale confirmed she was not alleging bias on the part of the trial judge, in which event cases such as Malton v. Attia 2016 ABCA 130 would have been relevant.) [14] In our discussions with counsel, Ms. Dale conceded that as long as the trial judge was aware of the “correct test” applicable to the question of when a sale of property such as the Boulder is required under the Family Law Act , S.B.C. 2011, c. 25, an order of this court remitting the matter to the trial judge would be an appropriate “remedy”. Mr. Albi was also content to have the question of sale determined by the trial judge at the end of trial, not as a means of determining value but as a method of dividing it between the parties after proper argument. [15] It is obvious, in our view, that the sale order and the ancillary order should not have been made until the trial judge had heard counsels’ submissions and considered all relevant factors under the Family Law Act , including whether a sale of the real estate would affect the Heritage Revitalization Agreement and rights related thereto, the advantages and disadvantages to each of the parties, and (if a division is found to be necessary) whether an apportionment of corporate shares might be a preferable alternative. Further, we note that while valuation issues are often difficult, trial judges must at the end of the day do the best they can with the evidence they have. As stated by this court in Cyprus Anvil Mining Corp. v. Dickson (1986) 33 D.L.R. (4th) 641: The one true rule is to consider all the evidence that might be helpful, and to consider the particular factors in the particular case, and to exercise the best judgment that can be brought to bear on all the evidence and all the factors. I emphasize: it is a question of judgment. No apology need be offered for that. Parliament has decreed that fair value be determined by the courts and not by a formula that can be stated in the legislation. [At 652.] [16] In the result, we would allow the appeal, set aside the sale order and the ancillary order, and remit all outstanding issues to the trial judge for determination. We acknowledge that it may not be possible for her to hear this matter before her retirement, in which case the Chief Justice of the Supreme Court will have to cconsider making an order under R. 22‑2(10) of the Supreme Court Family Rules , and a new judge will have to determine how to conduct the trial under R. 22‑2(11). “The Honourable Madam Justice Newbury” “The Honourable Mr. Justice Groberman” “The Honourable Mr. Justice Abrioux”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Szopa v. Canada (Attorney General), 2020 BCCA 47 Date: 20200128 Docket: CA45625 Between: Stanislaw Szopa Appellant (Plaintiff) And The Attorney General of Canada Respondent (Defendant) Before: The Honourable Madam Justice Bennett The Honourable Mr. Justice Willcock The Honourable Mr. Justice Goepel On an application to vary:  An order of the Court of Appeal for British Columbia, dated December 10, 2018 ( Szopa v. Canada (Attorney General) , Vancouver Docket CA45625). Oral Reasons for Judgment The Appellant, appearing in person: S. Szopa Counsel for the Respondent: A. Gardner Place and Date of Hearing: Vancouver, British Columbia January 28, 2020 Place and Date of Judgment: Vancouver, British Columbia January 28, 2020 Summary: The appellant seeks to vary an order of a justice that dismissed his application for leave to appeal an order which had dismissed his action as showing no cause of action.  In the event, this Court converts the appellant’s notice of application for leave to appeal into a notice of appeal, the respondent seeks an order quashing the appeal on the basis that it is devoid of merit. Held: The appellant was entitled to bring his appeal as of right notwithstanding its lack of merit. Accordingly, the order is varied and the notice of application for leave to appeal is converted into a notice of appeal. The appeal is however devoid of any arguable merit and respondent’s application to quash the appeal is allowed. [1] GOEPEL J.A. : The appellant seeks to vary an order of a justice, pronounced on December 10, 2018, which dismissed his application for leave to appeal the August 30, 2018 order of Mr. Justice Macintosh which had dismissed his action as showing no cause of action. He also seeks a no-fee order. [2] In the event this Court converts the appellant’s notice of application for leave to appeal into a notice of appeal, the respondent seeks an order quashing the appeal on the basis that it is devoid of merit. In the alternative, the respondent seeks an order for security for costs of the appeal in the amount of $3,000. BACKGROUND [3] The appellant emigrated from Poland with his family in 1981. In Poland, he had earned a master’s degree in mechanical engineering. In the process of immigrating to Canada, he interacted with an official of the Canadian Embassy in Vienna. That official marked down on his application for immigration that his profession was “automobile mechanic” rather than “master mechanical engineer”. [4] The appellant is of the view that because of that mistake on his papers, he could not find employment in Canada that was suitable to his training and skills. He alleges the government forced him to work in jobs that were beneath him and as a result, he and his family suffered economically and emotionally. He also says the government had a duty to properly inform him of the economic circumstances in Canada in 1981. [5] On February 28, 2018, the appellant commenced proceedings in the Supreme Court alleging that he had been mislead, that the government had made misrepresentations to him and that he should have a remedy for those wrongs. He claimed $23 million in damages, resulting from his loss of employment income from not being able to work as a mechanical engineer in Canada. He also claimed damages for mental distress resulting from his lower standard of living because of the work he was required to undertake. [6] The respondent applied to have the action struck out as disclosing no cause of action. On August 30, 2018, Justice Macintosh struck out the claim. His reasons are indexed at 2018 BCSC 2164. [7] The appellant then filed a notice of application for leave to appeal. That application, together with an application for a no-fee order came on for hearing in this Court on December 10, 2018. The chambers judge dismissed his application for leave to appeal. She did so on the basis that the action was without merit. In that regard she said: [10]      My task on an application for leave to appeal is to act as a gatekeeper – to ensure that judicial resources are not expended on matters that do not merit the attention of a full division of this Court, but also to ensure that self-represented litigants do not expend the money and effort to put forward an appeal that would ultimately results in costs orders being made against them. [11]      When I look at the decision of Mr. Justice MacIntosh, it is apparent that he read the claim very liberally. He looked past some of the deficiencies in the form, recognizing Mr. Szopa is a self-represented litigant. He considered whether it would be possible, if the claim was re-framed, to establish a claim for negligent misrepresentation. The judge concluded that it could not be. He found that Mr. Szopa’s claim did not fall into the category of a novel claim, which has a reasonable prospect of being recognized at common law. In other words, the judge looked at the claim and asked if this was the kind of claim, like the Tobacco litigation, where the court would move incrementally to recognize this as an appropriate case to expand the law and permit someone to bring forward this kind of claim. He concluded that it did not have that kind of prospect. I agree with Mr. Justice MacIntosh, as the law is quite settled and it does not appear that there would be any prospect that this claim would be recognized. There is also the problem of the limitation period. As the judge explained, this is a claim that arose in 1981. Even recognizing that Mr. Szopa has had some mental health problems, he was capable of asserting his concerns to the newspaper, for example, and of bringing them to the attention of the government. It seems Mr. Szopa, that despite your disabilities, you are a person capable of commencing a legal action by filing a notice of civil claim, as you have. There is not enough in the record to suggest that for the more than 30 years that have passed, you were unable to bring an action, to start a case and proceed with the litigation. So, for that reason too, it seems to me that your claim would be bound to fail. Ultimately, you would have to convince a division of this Court that Mr. Justice MacIntosh made errors which would warrant overturning his decision and reinstating your notice of civil claim. That, in my view, would not happen, even before a full division. [12]      For these reasons, I have to dismiss the application for leave to appeal. As that is the case, it is not necessary for me to fully address the application for no-fee status or for the extensions of time. I would dismiss those applications as well as they fall because the leave to appeal cannot be granted. [8] The appellant did not immediately seek a review of the chambers judge’s order. Rather, he filed a notice of application for leave to appeal to the Supreme Court of Canada. That application was dismissed as premature. [9] On November 4, 2019, the appellant applied in chambers for an order extending the time to seek a review of the order of the chambers judge dismissing his application for leave to appeal. On that hearing, the respondent conceded that the appellant did not require leave to appeal the order striking his claim. The appellant had an appeal as of right. This point, however, apparently had not been brought to the attention of the chambers judge when the leave to appeal application was heard in chambers. In the result, Mr. Justice Hunter granted the required extension of time to review the chambers judgment. [10] In Gonzalez v. British Columbia (Attorney General) , 2019 BCCA 88, this Court discussed the procedure to be followed when a party has a right to appeal but mistakenly brings an application for leave to appeal. In such circumstances, the chambers judge should convert, nunc pro tunc , the notice of application for leave to appeal into a notice of appeal and although a chambers judge may exercise discretion in granting the conversion, in exercising that discretion no consideration should be given to the merits of the proposed appeal. [11] That is the situation on this application. The appellant was entitled to bring his appeal as of right notwithstanding its lack of merit. The respondent does not suggest otherwise. Accordingly, I would allow the review and convert the notice of application for leave to appeal into a notice of appeal. [12] While the Court cannot consider the merits in regards to the conversion of the notice of leave to appeal into a notice of appeal, the merits are crucial to the other applications before the Court. The respondent seeks to quash the appeal because it is devoid of merit. The merits of the proposed appeal are also key to the determination of the no-fee and security for costs applications. [13] This Court has the inherent jurisdiction to quash an appeal that is so devoid of merit or substance as to constitute an abuse of the Court’s own procedure: Milani v. Milani , 2019 BCCA 361 at para. 13. In Milani , Justice Smith, speaking for the Court, said: [13]      In these circumstances, I find Mr. Milani’s appeal of the Clarification Decision to be so devoid of any arguable merit as to amount to an abuse of process. This Court has the inherent jurisdiction to quash such an appeal as was confirmed in Kaiser (Re) , 2007 BCCA 253 at paras. 15–16: [15]      Mr. Nicholson, for the trustee, cited Wiens v. Vancouver (City) (1992), 74 B.C.L.R. (2d) 154 (C.A.) as authority for the inherent jurisdiction of the Court to quash. Gibbs J.A., speaking for the Court, said at para. 3: There is ample authority for the principle that this Court has inherent jurisdiction to quash an appeal which is so devoid of merit or substance as to constitute an abuse of the Court’s own procedure. See, for example. Singh (Banns) v. Bank of Montreal (1979), [1980] 3 W.W.R. 403, 18 B.C.L.R. 149, 15 C.P.C. 89, 109 D.L.R. (3d) 117 (C.A.), and this passage from National Life Assurance Co. v. McCoubrey, [1926] S.C.R. 277, [1926] 2 D.L.R. 550 quoted therein [p. 118 D.L.R.]: “Every Court of Justice has an inherent jurisdiction to prevent such an abuse of its own procedure ( Reichel v. Magrath (1889), 14 App. Cas. 665, at p. 668). If an appeal, though within its jurisdiction, be manifestly entirely devoid of merit or substance, this Court will entertain favourably a motion to quash it, as it does in cases where costs only are involved … as a convenient way of disposing of the appeal before further costs have been incurred.” [16]      But this is a power of the Court constituted as a division. The Act does not give the power to a single justice in chambers. [14] In this case, the chambers judge held that the appeal was without merit and would be bound to fail. I can see no errors in her conclusion. The appeal is so devoid of any arguable merit as to amount to an abuse of process. In the result, therefore, I would grant the respondent’s application and order the appeal be quashed. It follows the review of the appeal of the no-fee order is dismissed and it is not necessary to deal with the security for costs application. [15] Given the manner in which this appeal has come forward today, I would make no order as to costs. [16] BENNETT J.A. : I agree. [17] WILLCOCK J.A. : I agree. [18] BENNETT J.A. : The application of Mr. Szopa to set aside the refusal of leave to appeal is allowed, by consent. Leave to appeal was not required. The application by the Attorney General of Canada to have the appeal quashed is granted. It follows that the review of the refusal of the no-fee status is dismissed. Each party will bear their own costs. “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Partridge v. Partridge, 2020 BCCA 55 Date: 20200203 Docket: CA46455 Between: Tina Louise Partridge Respondent (Claimant) And Preston William Partridge Appellant (Respondent) Before: The Honourable Mr. Justice Abrioux (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated September 24, 2019 ( Partridge v. Partridge , Victoria Docket E170327). Oral Reasons for Judgment Counsel for the Appellant, appearing as agent for N. Carfra: L.R. LeBlanc The Respondent, appearing in person: T.L. Partridge Place and Date of Hearing: Victoria, British Columbia February 3, 2020 Place and Date of Judgment: Victoria, British Columbia February 3, 2020 Summary: The applicant seeks leave to appeal a contempt order made against him in a family law proceeding, or in the alternative, seeks an order that the notice of application for leave to appeal stand as the notice of appeal along with the necessary extensions of time. Held: Application granted. The applicant does not require leave to appeal the contempt order. Costs will be in the cause. ABRIOUX J.A. : NATURE OF APPLICATION [1] The applicant, Mr. Partridge, seeks the following: a) an order granting leave to appeal the contempt order against him pronounced in chambers on September 24, 2019; or b) in the alternative, if leave is not required, that the notice of application for leave to appeal filed October 22, 2019, be converted into a notice of appeal, along with an order that the timelines in Part 5 of the Rules be extended to start from the date of the order made in this application; and c) costs be in the cause. BACKGROUND [2] This matter arises from acrimonious family law proceedings dating back to January 2017. Various orders have been made in the proceedings against the applicant in this court, Mr. Partridge, including: a) a consent order on November 9, 2017, which purported to settle all matters between the parties, including property and children; b) an order of Gomery J. on October 1, 2018, which was essentially an accounting of the amounts owed by the applicant to the respondent, including over $1,314,092 and imposes charges against six properties; c) an order of Gomery J. on October 12, 2018, which related to spousal support and child support, including arrears of $16,522, and imposed a number of disclosure obligations on the applicant; and d) an order of Grauer J. (as he then was) on January 24, 2019, ordering the sale of the six properties, where the respondent would have exclusive conduct of the sale, and imposed a number of ancillary orders. [3] On September 24, 2019, Steeves J. heard an application by the respondent in this court to have the applicant held in contempt of the above orders: see Partridge v. Partridge , (September 24, 2019) Victoria Docket E170327. The judge found non-compliance on the applicant’s part and held that he was in contempt of the four orders set out above. The judge determined that the appropriate remedy was a contempt order, with the opportunity for the applicant to purge his contempt. The conditions for purging the contempt order were as follows: a) on or before October 22, 2019, Mr. Partridge must pay $1,000,000 to the opposing party’s lawyer in trust; b) Mr. Partridge must take all steps to facilitate the sale of the six properties; and c) on or before October 22, 2019, Mr. Partridge must provide certain disclosure of his personal and corporate bank accounts from December 2017 to September 20, 2019. [4] During the contempt hearing, Mr. Partridge clarified to the chambers judge that he was unable to get third-party financing to pay the $1,000,000 within 30 days, unless the respondent removed her charges against various land titles in order to enable him to secure an inter alia mortgage. The judge nevertheless held that he “must come up with some money” and ordered the payment of $1,000,000 by October 22, 2019 (approximately a one-month period): at para. 32. POSITION OF THE PARTIES Applicant [5] The applicant seeks to appeal the contempt order made against him on September 24, 2019. He submits that the judge erred in conflating non-compliance with contempt, and failing to find that the requisite elements of contempt were proven beyond a reasonable doubt as required in the quasi-criminal context, relying on Hama v. Werbes , 2000 BCCA 367 at para. 8; Palleson-Stallan v. Stallan , 2014 BCCA 474 at para. 6; and Schmidt v. Fraser Health Authority , 2015 BCCA 72 at para. 15. The applicant submits that either leave to appeal should be granted, or in the alternative, if leave is not required, the notice of application for leave to appeal should be converted into a notice of appeal. Respondent [6] The respondent was represented by counsel until approximately one week ago. She has not filed materials as of the date of the hearing of this application. A consent order was made by Harris J.A. on December 16, 2019, extending the time for the appellant to file and serve the notice of motion for leave to appeal and motion book to December 3, 2019. The consent order was received by the registry of this court on October 2, 2019, and an affidavit of service was filed on October 31, 2019. LAW & ANALYSIS Is Leave to Appeal Required? [7] Section 7 of the Court of Appeal Act , R.S.B.C. 1996, c. 77 [ Act ] provides that an appeal does not lie to the court from a limited appeal order without leave being granted by a justice. Rule 2.1 of the Court of Appeal Rules , B.C. Reg. 297/2001 [ Rules ] sets out the list of limited appeal orders, where leave to appeal is required. Only those orders specifically provided for in each subrule of Rule 2.1 are limited appeal orders: Yao v. Li , 2012 BCCA 315 at para. 27. [8] In my view, leave is not required to appeal a contempt order. Under Rule 2.1(c), an order granting or refusing interim relief under the Family Law Act , S.B.C. 2011, c. 25 is a limited appeal order. Interim relief involves “something short of permanent relief and something short of the entire relief sought in a proceeding”: S.H.F.N. v. A.B.N. , 2015 BCCA 314 at para. 8 (Saunders J.A. in Chambers). Contempt of court is a discrete issue, independent from the relief sought in the proceeding and the underlying court orders giving rise to the issue of contempt: Breberin v. Santos , 2013 BCCA 385 at para. 20. In my view, a contempt order does not constitute an interim order in a family law proceeding because, absent purging the contempt by the required date, the order has permanent effect and potentially significant consequences, irrespective of the results of the underlying proceedings. [9] In Jackson v. Honey , 2009 BCCA 112, a division of this court set aside a contempt order. The applicant had sought directions as to whether leave to appeal was required, and Finch C.J.B.C. (in Chambers) held that leave was not required. Similarly, in Paradise Lakes Country Club v. Ahmed , 2005 BCCA 207 at para. 4, Saunders J.A. (in Chambers) took the view that an order finding a party in contempt was a final order from which leave was not required. While these two cases were decided before the 2012 amendment to s. 7 of the Act , which now requires leave to appeal a limited appeal order, these cases still stand for the proposition that a contempt order is a final order, rather than “interim relief” under the Family Law Act, requiring leave to appeal under Rule 2.1(c). Furthermore, subsequent appeals against contempt orders in family proceedings in this court have been brought by way of a notice of appeal, rather than seeking leave to appeal: see e.g., Bassett v. Magee , 2015 BCCA 422; Hokhold v. Gerbrandt , 2016 BCCA 6. Should the Notice of Motion for Leave to Appeal be Converted into a Notice of Appeal? [10] In my view, since leave of a justice is not required to initiate this appeal, the notice of motion for leave to appeal should be converted into a notice of appeal. [11] The Civil Practice Directive entitled Commencing an Appeal When Uncertain if Leave to Appeal is Required , which went into effect on May 8, 2017 (“Practice Directive”), provides as follows: The Court will no longer entertain applications for directions as to whether leave to appeal is required. If a party is unsure if leave to appeal is required, the party should file a Notice of Application for Leave to Appeal and seek leave to appeal. If leave to appeal is not required, the presiding justice may order that the Notice of Application for Leave to Appeal stand as a Notice of Appeal along with any necessary extension(s) of time. [12] Under this Practice Directive, if an applicant has filed a notice of application for leave to appeal within the prescribed time limit, yet has an appeal as of right, then the court should convert the notice of application for leave to appeal into a notice of appeal: Gonzalez v. British Columbia (Attorney General) , 2019 BCCA 88 at para. 39 (Bennett J.A. in Chambers), citing Hiebert v. Miller , 2018 BCCA 216. [13] While the court has some discretion to decline to order such a conversion, the merits of the proposed appeal is not a legitimate consideration: Gonzalez at para. 39, citing Lindholm v. Hy-Wave Inc. (1997), 31 B.C.L.R. (3d) 274 (Southin J.A. in Chambers); Forjay Management Ltd. v. Peeverconn Properties Inc. , 2018 BCCA 188 (Willcock J.A. in Chambers) ; Arbutus Excavating Ltd. v. Homewood Constructors Ltd. et al. , 2003 BCCA 236 (Low J.A. in Chambers). [14] Pursuant to s. 14(1) of the Act , the time limit for bringing an appeal or an application for leave to appeal is 30 days, commencing on the day after the order appealed from is pronounced. The contempt order was made on September 24, 2019, and the notice of application for leave to appeal was filed on time on October 22, 2019. Subsequently, the notice of motion and motion book were filed on December 3, 2019, well in advance of the filing deadline of 10 business days before the hearing of this application: Rule 7(2) of the Rules. CONCLUSION [15] Accordingly, in these circumstances, I order that the notice of application for leave to appeal stand as the notice of appeal, and order that the timelines in Part 5 of the Rules be extended to start from the date of this order, with costs in the cause. [Discussion with counsel and respondent re: further clarification and dispensing with respondent’s signature as to the form of the order] [16] ABRIOUX J.A. : Ms. Partridge’s endorsement on the form of the order is dispensed with. “The Honourable Mr. Justice Abrioux”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Murray, 2020 BCCA 42 Date: 20200204 Docket: CA45205 Between: Regina Respondent And David Alan Murray Appellant Restriction on publication:  A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainant in this matter. This publication ban applies indefinitely unless otherwise ordered. Pursuant to s. 16(4) of the Sex Offender Information and Registration Act [ SOIRA ], no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA . Before: The Honourable Madam Justice Garson The Honourable Mr. Justice Fitch The Honourable Mr. Justice Abrioux On appeal from:  An order of the Provincial Court of British Columbia, dated October 25, 2017 (conviction) ( R. v. Murray , Port Coquitlam Docket 96773‑1). Counsel for the Appellant: D. Ferguson Counsel for the Respondent: M.K. Brown Place and Date of Hearing: Vancouver, British Columbia October 25, 2019 Written Submissions Received November 15 & 21, 2019 December 2, 2019 Place and Date of Judgment: Vancouver, British Columbia February 4, 2020 Written Reasons by: The Honourable Mr. Justice Fitch Concurred in by: The Honourable Madam Justice Garson The Honourable Mr. Justice Abrioux Summary: Appeal from conviction for sexually assaulting a 14‑year‑old female employee in 1992. Held: Appeal dismissed. The judge did not err in her approach to the assessment of the appellant’s credibility, nor did she misapprehend the evidence. Her reasons were sufficient to permit meaningful appellate review. The judge did not subject the appellant’s evidence to a higher level of scrutiny than that which was applied to the evidence of the complainant. The judge did not discredit the appellant’s testimony because he relied on disclosure made by the Crown. Finally, the Crown did not elicit the details of the complainant’s prior statements to third parties about the offence. Consequently, there is no risk that the judge erred by relying on the supposed consistency with which the complainant related her account over time as a circumstance bolstering her credibility. Reasons for Judgment of the Honourable Mr. Justice Fitch: I.   Introduction [1] The appellant was convicted by a Provincial Court judge of sexually assaulting a 14‑year‑old female employee on one occasion in the office of his business premises. The offence likely occurred in the fall of 1992. It was not reported to the police until 2015. [2] The complainant testified that the appellant told her he was taking a sports injury massage course. He asked her to come one morning before the store opened so he could practice massaging her knee. She agreed to do so and complied with his request to wear loose clothing that day. She said that he began massaging her knee but proceeded to put his hands under her shorts and underwear and digitally penetrated her vagina. He asked her to turn over onto her stomach and continued to touch her vagina and massage her buttocks. She said that his body was moving into her in a “thrusting kind of way.” [3] The appellant testified and denied ever massaging or sexually touching the complainant. [4] The complainant said she blamed herself for permitting the appellant to act flirtatiously with her in the days leading up to the offence. While she told her boyfriend and some friends what had happened at the time, she did not tell her parents until years later. [5] There was no independent evidence confirming the complainant’s testimony. The case turned on the trial judge’s application of R. v. W.(D.) , [1991] 1 S.C.R. 742, to the evidence before her. She rejected the appellant’s evidence. She concluded that his evidence did not raise a reasonable doubt. She accepted the evidence of the complainant and concluded that the Crown had proven beyond a reasonable doubt that the appellant sexually assaulted her as alleged. [6] Against this background, the appellant argues that the judge erred by: 1.       Improperly devaluing his evidence on the basis of peripheral matters and shifting the burden of proof by requiring him to adduce corroborative evidence and comply with the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.), in relation to such matters; 2.       Misapprehending material evidence that played an essential role in the reasoning process leading to the conviction; 3.       Subjecting his evidence to a higher level of scrutiny than that which was applied to the evidence of the complainant; 4.       Failing to give reasons sufficient to permit meaningful appellate review; 5.       Discrediting the appellant’s testimony because he had referred to and relied on aspects of the Crown disclosure in giving his evidence; and 6.       Relying on prior consistent statements made by the complainant about the offence to bolster her credibility. [7] The fifth ground of appeal was raised by the appellant’s counsel for the first time in oral argument. The sixth ground of appeal arose out of a question asked by the Court as to the use the judge made of the complainant’s statements to her boyfriend about the circumstances of the offence. The parties were permitted to file supplementary written submissions addressing these two additional issues. II.  Overview of the Evidence and the Positions of Counsel at Trial 1.  The Case for the Crown [8] The complainant testified that she quit school shortly after she started Grade 8 in the fall of 1991. She was 13 years of age. She said that she was dealing with personal issues at the time and started abusing alcohol, marihuana and her step‑father’s “wake‑up pills”. She acknowledged that her drug abuse and partying habits were factors that contributed to her withdrawal from school in Grade 8. [9] The complainant testified that the offence occurred in the warmer months of 1992, but was unable to say whether it happened in the late spring, summer or early fall. She turned 14 years of age in the summer of 1992. She returned to school in September 1992. [10] The complainant and her friends began hanging out in the appellant’s sports memorabilia store to socialize and play video games. She soon began working in the store as a part‑time casual employee. It was her first job. The complainant’s family took a photograph of the complainant before she left for her first day of work. The complainant wore a skirt and jacket and curled her hair because she considered her first day of work to be a special day. As the trial judge put it, “for her this was a big deal.” The complainant’s mother testified that the complainant was “happy and excited” to have a part‑time job. [11] The complainant’s mother and her step‑father went to the appellant’s store and had a brief discussion with him in order to satisfy themselves that the work environment was a suitable one for a young woman. [12] The complainant testified that she liked being around the appellant because he treated her well and said nice things to her. She knew that he liked her and was flirting with her but she did not want the attention to stop. She was unwilling at the time to acknowledge that the attention he was giving her was inappropriate. She believed that he touched her long blond hair. He also bought her clothing she could not afford, including an expensive pair of jeans. In addition, she testified that the appellant took her out for a few dinners, including at a revolving restaurant located atop the Sears Tower in downtown Vancouver, British Columbia. She dressed up in clothing he had purchased for her for this dinner. She said the appellant made her feel special and important and that she was flattered by the attention he gave her. [13] The complainant testified that she worked for the appellant for a few weeks. Her mother similarly testified that the complainant worked at the store for at least a week or two. [14] The complainant recalled working at one sports memorabilia auction hosted by the appellant inside a strip mall. She said that the appellant bought her a red skirt, blazer and a pair of high heels to wear at the auction. [15] The complainant’s mother knew the appellant bought clothing for her daughter in advance of the auction. She remembered it being a red dress. She did not understand why her daughter needed a dress for the auction. [16] In cross‑examination, the complainant testified that the offence did not occur at an auction. [17] When the offence occurred, the complainant testified that she felt it was her fault because she knew the attention she was receiving from the appellant was inappropriate, but allowed it to continue. [18] She testified that she never went back to work at the store after the day the offence was committed. [19] The complainant’s mother asked the complainant why she stopped working at the store. The complainant simply told her mother she did not want to work there anymore. [20] The complainant was asked in examination‑in‑chief whether she told anyone what happened to her. She said that she told her boyfriend, J.K., and some other friends. The Crown asked, “Did you give them the details of what you’ve told the court today?” The complainant responded, “I don’t recall what details I gave them but I told them that he had touched me.” She testified that she told her mother what had happened years later before she reported the incident to the police. [21] Around 2014, the complainant became aware that the appellant had been elected to municipal council. He was running for office again and she noticed his campaign signs all over the city. She said that he started going to her gym, so she quit. [22] In 2015, the complainant attended a public forum. The mayor of the city and the appellant were in attendance. She spoke at the forum to oppose the approval of a quarry. She did not speak to the appellant. [23] After the public forum, the complainant decided to report to the police what had happened to her. In addressing her motivation for doing so, the complainant said she was upset and angry about running into the appellant and being reminded of what he did to her. She also testified that she was unnecessarily carrying around a “secret to be ashamed of.” [24] The complainant was not cross‑examined on the offence itself, nor did defence counsel seek to impeach her credibility by cross‑examining her on the statement she gave to the police. [25] In cross‑examination, the complainant denied asking the appellant for work again in 1993. [26] In re‑examination, the complainant testified that she only worked for the appellant for one brief period of time and never saw him again after the offence — except on those occasions in 2014 and 2015 that preceded the police report. [27] J.K. testified that he thought he began dating the complainant after she quit working for the appellant. He testified that she told him why she left her job and the information upset him. J.K. did not do anything with that information. He also vaguely recalled the complainant saying something about the appellant purchasing a dress for her. [28] J.K. testified that he never went to the appellant’s store and never met the appellant. 2.  The Appellant’s Evidence [29] The appellant testified that he put video games in his store in early September 1992 to boost revenues. [30] The appellant testified that the complainant was part of a group of adolescents who came into the store every day to socialize and play video games. [31] He testified that he first met the complainant on September 8, 1992. He asked the complainant and another girl if they would be interested in helping him out with a sports collectibles auction he was planning for September 26, 1992. They agreed to do so. He testified that he trained the two young women on how to run the cash register on their first day of work, which was Thursday, September 24, 1992. As the auction was “kind of a formal event”, he took both girls to the Coquitlam Centre on Friday, September 25, 1992, and bought them dresses. [32] The appellant asked the complainant and the other girl he employed to assist with the auction to meet him at the store at 10:00 a.m. on September 26, 1992, to help with the setup for the auction that was taking place later that day. The store was open from 11:00 a.m. until 5:00 p.m. The auction took place that day between 5:00 p.m. and 9:00 p.m. in a public area of the plaza in which the appellant’s business was located. [33] The appellant testified that the complainant and the other young woman only worked for him for three days commencing on September 24, 1992. [34] The appellant said he saw nothing in the complainant’s behaviour that would lead him to believe she was abusing drugs when he hired her. [35] On Monday, September 28, 1992, the appellant testified that two older boys, one of whom he understood to be the complainant’s boyfriend, attended at his store and confronted him about buying the complainant a dress. [36] On October 1, 1992, the appellant testified that his store was robbed at gunpoint. He said the offence led to a high‑speed chase and that one of the robbers was killed. He testified that the incident garnered a great deal of media attention. [37] The appellant said the traumatic events of October 1, 1992, assisted him in establishing the dates upon which he hired the complainant and held the auction. [38] The appellant testified that the complainant came to the store on October 2, 1992, to ask how he was doing. It was not put to the complainant in cross‑examination that she attended the appellant’s store to inquire about his welfare shortly after the robbery was committed. [39] On the appellant’s evidence, the opportunity he had to commit the offence was confined to the three days commencing on September 24, 1992. [40] The appellant testified that about six months later, the complainant came into the store and asked him for a job. This was put to the complainant in cross‑examination and she denied it. The appellant said the complainant told him she had experienced some difficulties and needed a job. He testified that the complainant confided in him about a lot of personal issues in her life. The appellant did not offer her a job. [41] The appellant also testified that the following day, the complainant’s step‑father came into his store and the two men had some sort of discussion. It was never put to the complainant’s step‑father in cross‑examination that he attended the appellant’s store on a second occasion about six months after the alleged offence. [42] The appellant said it was not the case that the complainant worked two or three weeks for him. He denied asking her to come into the store early one day to practice giving massages. He denied taking the complainant to dinner at the Sears Tower. He denied sexually touching the complainant. [43] The appellant was cross‑examined on a statement he gave to the police on August 22, 2015. He agreed describing the complainant as being tall and very attractive with long blond hair. [44] The appellant remembered buying the complainant an outfit before the auction, but said he did not remember the colour of the outfit nor did he remember whether he bought her a pair of high heels. He noted that the complainant’s mother, in her statement, also said she only remembered the dress and made no mention of shoes. [45] The appellant was cross‑examined on why he told the police he did not know the complainant that well when he employed her for a short time, recognized her when she introduced herself before speaking at the public forum in 2015 and, by his own admission, was a person who confided in him about her personal struggles. The appellant testified that he could barely remember what her name was. Despite this, he testified in cross‑examination that he knew she worked at a nail salon in the community in which they lived and that they would wave to one another when he had lunch outside in a community square. He also testified that he knew his daughter had cut the complainant’s hair on two occasions. [46] The appellant was asked in his interview with the police whether he shopped with the complainant for a dress. The appellant replied, “You know what? I’m not a hundred percent sure but I think I did.” In his examination‑in‑chief, the appellant testified that he took the complainant and the other young woman he hired to the Coquitlam Centre to buy dresses for both of them. The appellant explained that he knew he drove the two young women to a mall to buy dresses, but was only ninety percent sure that it was the Coquitlam Centre. He denied attempting to distance himself from the complainant when being questioned by the police. [47] The appellant also acknowledged that he never told the police the complainant dropped by his store to inquire about his welfare the day after the robbery. [48] It was never put to the complainant in cross‑examination that she would exchange waves with the appellant when they saw one another out in the community. Further, the appellant never mentioned this in his statement to the police. [49] The appellant acknowledged in cross‑examination that he knew the complainant operated a business in the community and testified that “[s]he was all over the internet with it.” He insisted, however, that he did not know the exact spelling of her last name. [50] The appellant testified that he warned his adult daughter about being around the complainant because of things the complainant disclosed to him 22 years earlier when she was 14 years old. Despite this, the appellant testified that after the public forum in which the complainant spoke, he considered reaching out to the complainant to see if he could assist her in marketing her business through an online newspaper he edited. He offered no comprehensible explanation about why he would reach out to the complainant to help her with her business in circumstances where he was terrified about the complainant having any involvement with his daughter. 3.  The Closing Submissions of Counsel [51] The theory of the defence was that the complainant was not a credible witness. She was using drugs at the time of the alleged offence. Additionally, the defence argued that the appellant’s timeline is such that the opportunity to commit the offence could only have presented itself on Saturday morning, the day of the auction. For reasons I have difficulty understanding, the appellant’s trial counsel (not counsel on appeal) argued that the offence could not reasonably have occurred the morning of the auction. [52] In her closing submissions, Crown counsel acknowledged that one of the challenges in historical sexual assault trials is that memories fade over time. Nevertheless, the Crown argued that the evidence established the appellant groomed the complainant to facilitate commission of the offence. The Crown submitted that the appellant’s credibility was negatively affected by the evasiveness he demonstrated while giving evidence and providing his statement to the police, his unconvincing efforts to distance himself from the complainant in circumstances where he clearly knew who she was, and his failure to tell the police either that the complainant initiated contact with him after the robbery or that they would exchange waves years later when they saw one another in the community. The Crown noted the appellant never put to the complainant in cross‑examination that she exchanged friendly waves with the appellant on the street. The Crown submitted that the appellant’s version of events was unbelievable. By contrast, the complainant was said to have given a consistent and candid account which was not shaken in cross‑examination. III. Reasons for Judgment [53] In oral reasons for judgment, the judge began by framing the issue that arose in this case and the analysis she was required to follow: [2]        At issue with respect to this allegation of sexual assault is simply whether or not the Crown has proven beyond a reasonable doubt that a sexual assault occurred. The defence denies the allegation and ultimately the decision that I must make is one based on findings of credibility and what has indeed been proven. As I have indicated, the Crown must prove the case beyond a reasonable doubt and because the accused has testified, I need to also go through an analysis that is referred to typically as a W.(D.) analysis to determine whether or not he has raised a doubt. This is not one of those cases where there is an issue with regard to consent. The issue is simply it did not happen from the accused’s perspective. [3]        According to W.(D.) , the analysis that I must undertake is to first consider the evidence given by the accused because he has testified. I have to determine whether I believe it. If I do accept what he has said then he is acquitted, he is found not guilty. If I do not necessarily believe it but I find that it might reasonably be true, then that is also defined as a doubt and I must then also find him not guilty. It is only if I do not believe his evidence and I do not find that it raises a doubt, that I must then consider the evidence provided by the Crown and in particular, the evidence provided by the complainant in this matter. I must still go through all of the elements of the offence to be satisfied that the Crown has indeed proven the case beyond a reasonable doubt. That is the analysis that I will be following in this decision. [54] The appellant takes no issue with this self‑direction. While the “might reasonably be true” test is best left to cases involving the doctrine of recent possession, or similar presumptions, it is not reversible error for a trial judge to make use of it in deciding whether evidence that he or she is not prepared to accept nonetheless raises a reasonable doubt: R. v. K. (V.) (1991), 68 C.C.C. (3d) 18 at 31–34 (B.C.C.A.); R. v. Dubas (1995), 60 B.C.A.C. 202 at paras. 11–12; R. v. Reddy , 2010 BCCA 11 at para. 40; R. v. Mann , 2010 BCCA 569 at para. 30. [55] The judge recognized that the passage of time between the alleged offence and when it was reported to the police gave rise to a “barrier to precise memory on the part of all the witnesses” (emphasis added). Later in her reasons, the judge noted that “ everybody’s evidence is marked by the passage of time” (emphasis added). [56] With reference to the appellant’s testimony that he would exchange waves with the complainant in the community long after the offence, the judge noted that “none of that was put to [the complainant] in cross‑examination”, and that “[i]t sounds unlikely, to put it mildly.” [57] The judge said the appellant’s evidence that he wanted to help the complainant to market her business seemed to be “somewhat inconsistent” given his abiding worry about the complainant having any sort of contact with his daughter. [58] The judge referred to the cross‑examination of the appellant on his statement to the police that he did not know the complainant very well and juxtaposed that with the appellant’s evidence that she confided in him and that he continued to have some contact with her after the alleged offence. [59] The judge also noted that the appellant “was vague and waffled somewhat about where they went shopping for the dress.” [60] After reviewing the evidence and the positions of counsel in relation to it, the judge said this: [71]      In reviewing the evidence then with the analysis as I have already described in R. v. W.(D.), I do need to review the evidence of Mr. Murray first. [72]      I am struck by the inconsistencies. One of the things in assessing and evaluating evidence is what are called internal consistencies and external consistencies. By that I mean are the things that he said consistent throughout? Are they inconsistent in contrast with other evidence? One also applies a certain degree of common sense to evidence in terms of what is stated. Certain observations that I made of his evidence include that for each time that the evidence -- or he -- was directed both in direct examination and cross‑examination he was directed to particular areas of questioning, he would take the evidence and his testimony where he wanted to go. He would not answer the questions. I did, several times, admonish him to simply answer the questions that were being asked and he made it very clear he had other things he wanted to talk about. That included the robbery. But within the context of his evidence, it appeared that he was making a fairly determined effort to deflect the questioning away from where the questioners were trying to take him. [73]      In terms of looking at some of the content of the evidence, everything that relates to his daughter, frankly, makes no sense. It was not suggested to [the complainant] that she had been exchanging waves across Leigh Square with Mr. Murray and in the context of the evidence given by [the complainant] that she was separating herself and her mind and her thoughts from these incidents back from 1992 and that she had not seen Mr. Murray, to think that she is casually waving to him across a courtyard in Port Coquitlam is, frankly, absurd. I do not accept that. [74]      But it then gets into this whole issue, at least in Mr. Murray’s mind, about his daughter and trying to keep his daughter away from [the complainant]. I heard nothing that would explain how he would know -- if it is true anyway -- that his daughter ever came across her but, for whatever reason, that seemed to set up a very substantial, negative reaction from him and a determination to ensure that there was a separation there. It is not for me to speculate why that is the case. It may be that there is something going on, I do not know what, that could have reasonably accounted for that. Another explanation might be that he did not want his daughter hearing anything from [the complainant] about him. He suggests that [the complainant] said things to him in the past that he did not want his daughter to be a part of but it could equally flow the other way. [75]      Crown counsel, in her submissions described that the way that [the complainant] described her response to Mr. Murray and Mr. Murray’s activities, that that was grooming behaviour. I agree that those are behaviours that are completely consistent with grooming behaviours and those are behaviours that, sadly, can and do lead to unwanted sexual activity. [77]      In terms of evaluating the evidence as a whole, I am left without any doubt in this matter. I do not believe the evidence of Mr. Murray. It does not raise a doubt and I am rejecting his evidence. I do find that the evidence provided by the Crown does prove beyond a reasonable doubt that there was a sexual assault one morning at this business in Port Coquitlam sometime in 1992. Stand up, sir. [78]      With those findings, sir, I am finding you guilty of Count 1. [Count 2, a charge of sexual interference, was stayed by the Crown at the outset of the trial as the Crown conceded it could not prove the complainant was under the age of 14 when the alleged offence was committed.] [Emphasis added.] [61] At this point, the trial judge took a brief adjournment. When the proceedings resumed, the judge said she wanted to add another paragraph to her reasons because she was “thinking I probably should’ve said a few more things.” She then delivered the following additional reasons explaining why she accepted the complainant’s evidence: [79]      When I commented that I accept the evidence as provided by the Crown witnesses, I should have specifically addressed the evidence of [the complainant] in terms of why I accept her evidence. [80]      In terms of her evidence as a whole, there were unquestionably some areas about which she is uncertain, for example, dates. lt is clear those are amongst the issues that we have had all the way along, addressing dates and times. The evidence, however, was consistent within itself. Her behaviour and her comments about steps she took afterwards and ultimately how this matter even came to the attention of the police are all consistent with her description of what occurred at that time. [81]      She described herself as a young woman, a teenager, who was excited about this job. She went there and worked hard. She enjoyed the attention she was getting and was prepared to keep working there and then she quit very suddenly. That is corroborated by the evidence of, in part, [J.K.], also certainly her mother, to the point that they were surprised because they all knew, as is evidenced by this photograph, how much she was looking forward to this. It was a job she was apparently pretty good at, being as bright as she is and as capable as she was, but she did not hold back in describing how she had felt about it. It is clear she did not consent to this assault occurring. That was evidenced as well by her leaving the job at the end of the day. [82]      She was a young woman who had just been coming through a difficult time, having been out of school for a period of the larger part of a school year and was trying to find her own way in the world. Those steps also are consistent with something having gone very wrong. [83]      Her carrying on her life and her reasons for ultimately reporting these events are also consistent with the way she approached incidents that had occurred to her in the past. She was not being histrionic or prone to exaggerate about anything in her evidence. She was measured in what she said and she admitted that there were things she was not clear of but what she was clear of is what happened to her on that day and as I have said, I accept her evidence in that regard. IV. Analysis of the Grounds of Appeal 1.  Relying on Peripheral Matters to Assess the Appellant’s Credibility [62] The appellant submits that in assessing his credibility, the judge inappropriately emphasized inconsistencies in relation to peripheral evidentiary matters. To compound the problem, the appellant asserts that the judge required him to: (1) corroborate non‑material facts with independent evidence; and (2) comply with the rule in Browne v. Dunn in relation to non‑material issues. [63] The appellant considered it to be important to establish, by reference to the date of the robbery, the date upon which the auction occurred. His position at trial was that Saturday, September 26, 1992, was the only morning upon which he could have had an opportunity to commit the offence. For reasons I do not fully appreciate, he argued that it was unreasonable to suppose that he could have committed the offence on the morning of the auction. It was the appellant who made this timeline a key component of his defence. [64] In addressing the appellant’s evidence that the robbery occurred on October 1, 1992, the trial judge simply observed that there was no confirmatory evidence establishing that this well‑publicized robbery occurred that day, and that she considered the appellant’s evidence respecting the precise dates and times he provided as part of his timeline to be subject to the same frailties as the evidence given by the other witnesses. She also observed that the complainant was not asked about the robbery or the temporal relationship between the date of the robbery and the date of the alleged offence. [65] In my view, what the judge said about this matter falls well short of shifting the burden of proof by requiring the appellant to corroborate his timeline of events. Nothing in the reasons for judgment suggests to me that the judge discounted the appellant’s evidence on any material matter due to his failure to lead independent evidence confirming the date of the robbery. [66] Further, I do not agree with the appellant that the judge erred in principle by relying on peripheral matters to assess his credibility. It was open to the judge to consider internal inconsistencies in the appellant’s evidence and inconsistencies between his trial evidence and the statement he gave to the police in assessing his credibility. While I would hesitate to characterize all of the inconsistencies relied on by the Crown and noted by the trial judge as being material to a fair assessment of the appellant’s credibility, most clearly were. [67] For example, the appellant’s evidence that the complainant came to the store to inquire about his well‑being the day after the robbery was obviously designed to undermine the credibility of her claim of sexual abuse. Similarly, the appellant’s evidence that they would wave to one another years after the alleged offence was calculated to undermine the complainant’s testimony that he had sexually violated her in the past. These were not peripheral matters. [68] The fact that the appellant said nothing about either of these supposed events in his statement to the police, and nothing about the friendly exchange of waves until he was under cross‑examination, could properly be considered by the trial judge as matters negatively impacting her assessment of his credibility. In addition, the appellant’s claim in his statement to the police that he did not know the complainant very well could reasonably be regarded as being internally inconsistent with his testimony. His evidence that he was prepared to reach out to the complainant and offer his assistance in marketing her business in circumstances where he warned his daughter to have no contact with her is perplexing. In my view, it was open to the trial judge to conclude that his evidence on this point “makes no sense.” I say the same about the appellant’s evidence that he warned his daughter to stay away from the complainant based on things she said to him more than two decades ago when she was 14 years of age. [69] Neither the Crown nor the judge expressly invoked the rule in Browne v. Dunn . In rejecting the appellant’s evidence that he exchanged friendly waves with the complainant years after the alleged offence, the judge, on two occasions, noted that the complainant had not been cross‑examined on this point. Against this background, I consider it to be appropriate to proceed on the footing that the judge at least implicitly relied on Browne v. Dunn as one reason to reject the appellant’s evidence on this issue. [70] The principle of confrontation is fundamentally a question of trial fairness. Enforcing it in appropriate circumstances promotes fairness to the witness and enhances the truth‑seeking function of the trial: R. v. Podolski , 2018 BCCA 96 at para. 174. The principle is only triggered when the potential contradiction relates to a matter of substance: R. v. Drydgen , 2013 BCCA 253 at paras. 14, 26; R. v. Quansah , 2015 ONCA 237 at para. 81; R. v. Willis , 2019 NSCA 64 at para. 27. Whether the rule in Browne v. Dunn applies is a question of law: Drydgen at para. 22. [71] Assuming that the judge applied the rule in Browne v. Dunn to her assessment of the credibility of the appellant’s evidence that he exchanged friendly waves with the complainant in the years following the alleged offence, I am of the view that she did not err in law in doing so. [72] Whether the complainant maintained friendly relations with the appellant after the offence was alleged to have been committed was a matter of substance. By giving evidence that the complainant maintained friendly relations with him, the appellant sought to undermine the credibility of the complainant’s account. [73] The complainant made it clear in her evidence that she had no contact with the appellant between the day of the offence and 2014 or 2015. She was not challenged on this version of events. Her evidence on this point was then contradicted by evidence given by the appellant. By conducting his defence in this way, the appellant ran the risk that his failure to cross‑examine the complainant on these matters could have a negative impact on the judge’s assessment of the credibility of his evidence on this issue: R. v. Paris (2000), 150 C.C.C. (3d) 162 at para. 23 (Ont. C.A.). That is what occurred here. In my view, the appellant has no cause for complaint. [74] I also wish to emphasize that failure to observe the confrontation principle was not the only basis upon which the appellant’s evidence on this issue was subject to attack. As noted earlier, the appellant said nothing in his police statement about the friendly waves he said he exchanged with the complainant and, remarkably, nothing about this in his examination‑in‑chief. I take the judge’s remark that she was “struck by the inconsistencies” in the appellant’s evidence, including internal inconsistencies, to be inclusive of his failure to make any mention of the exchange of waves until he was under cross‑examination. [75] In addition, the judge’s assessment of the appellant’s credibility turned on her evaluation of the way in which he gave evidence and the extent to which he was evasive in his response to questions. These are findings rooted in the advantaged position of the trial judge. They are entitled to substantial deference on appellate review. [76] Finally, the appellant submits that the judge’s rejection of the appellant’s evidence about the waves he says he exchanged with the complainant demonstrates that she “had already accepted [the complainant] was truthful about not wanting to see Mr. Murray in the community.” If the appellant is suggesting that this remark is evidence the judge abandoned the W.(D.) framework in her reasons, I do not agree. The judge made clear throughout that her analysis would follow the W.(D.) formula. Further, reasons for judgment must be read as a whole. The sequence in which a judge addresses the evidence and makes findings of fact and credibility, particularly when oral reasons for judgment are being delivered, is not necessarily determinative of the analysis employed in reaching a verdict. [77] In short, I see no reversible error in any of this and would not give effect to this ground of appeal. 2.  Misapprehension of the Evidence [78] The appellant asserts that the reasons for judgment disclose a material misapprehension of the evidence by the judge. Specifically, the appellant argues that the judge’s remarks at paras. 82–83 of her reasons for judgment (reproduced herein at paragraph 61) demonstrate that she misunderstood the evidence about when the complainant left and returned to school. [79] As will be recalled, the complainant dropped out of school in the fall of 1991 — before the offence is alleged to have been committed — and returned to her studies in 1992. The appellant submits that the judge misunderstood this timeline of events and wrongly considered the difficulties the complainant was having in 1991 as circumstantial evidence consistent with a sexual assault having occurred in 1992. [80] I am not persuaded that the judge misapprehended the evidence on this issue. In summarizing the complainant’s evidence, the judge correctly noted that the complainant left school shortly after starting Grade 8 in 1991 and did not return to school until September 1992. The judge was clearly not suggesting that the complainant’s difficulties at the beginning of Grade 8 were somehow relevant to an alleged assault that had not yet occurred. Read in context, what the judge meant in the impugned paragraphs is this: that the complainant suddenly and without explanation quit a job she was very excited to have is consistent with something having gone very wrong. The appellant does not take issue with the trial judge’s inferential reasoning. Rather, he suggests that it flows from a fundamental misapprehension of the evidence. As I have rejected the appellant’s position on this point, I would not give effect to this ground of appeal. 3.  Applying Different Levels of Scrutiny to the Evidence of the Complainant and the Appellant [81] The appellant advances two related arguments in support of this ground of appeal. First, he submits that the granular level at which the judge scrutinized his evidence is not reflected in her approach to the complainant’s evidence. Second, he argues that the different approaches the judge took to the assessment of his credibility and the credibility of the complainant manifests itself in her decision to supplement her reasons with an additional explanation about why she accepted the complainant’s evidence. The appellant characterizes these further brief reasons as “an afterthought” delivered after the finding of guilt had already been made. [82] It is an error of law for a trial judge to use a higher degree of scrutiny in assessing the credibility of defence evidence than Crown evidence. But this is a notoriously difficult ground of appeal to successfully advance. It is difficult because credibility findings are the province of the trial judge and attract a very high degree of deference on appeal. In addition, appellate courts tend to view this argument with scepticism, as it may constitute a thinly‑veiled invitation to reassess on appeal credibility determinations made at trial. Where the imbalance is significant enough, the deference normally owed to the trial judge’s credibility assessment is generally displaced: R. v. Kiss , 2018 ONCA 184 at paras. 82–83; R. v. Chanmany , 2016 ONCA 576 at para. 26. [83] I am not persuaded that the alleged error has been made out in this case. The judge emphasized that the passage of time had an understandable impact on the memories of all of the witnesses. While it is true that, on at least two occasions in her general review of the evidence, the judge appeared to question the appellant’s veracity on the basis of what I consider to be little more than an ill‑chosen word or infelicitous phrase, she did not rest her credibility findings on these points. [84] In addition, the evidence of the complainant and appellant did not stand on the same footing. The appellant’s evidence was found to be internally inconsistent on significant points. In addition, it was found to be inconsistent with portions of the statement he gave to the police. By contrast, the complainant’s evidence betrayed no internal inconsistency. She was not cross‑examined on the substance of the allegations and not cross‑examined on her statement to the police. The most that could be said about the complainant’s evidence is that she was uncertain about dates. [85] This is not a case where the judge failed to consider factual matters that could have had a significant impact on her assessment of the complainant’s credibility. Nor is it a case where the appellant’s evidence was rejected due to inconsistencies on peripheral matters. When the judge turned to apply W.(D.) to the evidence of the appellant, she said she was struck by the inconsistencies in the appellant’s evidence and highlighted those that caused her the greatest difficulty. She made no mention of inconsistencies relating to peripheral matters in this critical portion of her analysis (see paras. 72–75 and 77 of the reasons for judgment, reproduced herein at paragraph 60). [86] I do not consider this case to be factually similar to either Kiss or Willis . Accordingly, I would not give effect to the appellant’s submissions on this issue. [87] Further, I am unable to accept the appellant’s position that the judge’s decision to supplement her oral reasons immediately after the brief adjournment in the proceedings is evidence that she brought an unbalanced approach to her assessment of credibility. Before the adjournment, the judge had thoroughly reviewed the complainant’s evidence. She concluded that the complainant’s evidence established beyond a reasonable doubt that the appellant committed the offence (see para. 77 of the reasons for judgment, reproduced herein at paragraph 60). In my view, the brief supplementary reasons given by the judge explaining why she accepted the complainant’s testimony do not support a conclusion that the verdict was rendered without critically assessing the evidence led by the Crown. [88] I have also (independent of the submissions made by the appellant’s counsel) considered whether a miscarriage of justice occurred in this case because the manner in which the reasons for judgment were delivered resulted in a trial that was unfair in appearance: R. v. Khan , 2001 SCC 86 at paras. 72–73. I conclude that a well‑informed, reasonable person considering the whole of the circumstances would not perceive that the trial was unfair in appearance because the judge determined to supplement her reasons for judgment in the way she did. 4.  Inadequate Reasons [89] The essence of the appellant’s argument on this issue is that the judge did not explain why she accepted the evidence of the complainant. Relying on R. v. R.E.M. , 2008 SCC 51, he submits that the reasons for judgment are insufficient to permit meaningful appellate review. [90] I do not agree. The judge found that the complainant was not prone to exaggeration. The complainant admitted that her ability to say when the offence was committed was compromised by the passage of time. The judge found her to be measured in her testimony and clear about what happened to her. As I have already noted, the complainant’s version of events was not challenged in any significant way in cross‑examination. The judge appears to have accepted that the appellant’s pre‑offence conduct, as described by the complainant, was consistent with the type of grooming behaviour that commonly leads to unwanted sexual contact. The judge also considered that the complainant’s sudden decision to quit a job she was delighted to secure was consistent “with something having gone very wrong.” The judge ultimately accepted the complainant’s testimony that the appellant sexually touched her in the way she described. [91] Considering the reasons for judgment in the context of the evidence as a whole and the submissions of counsel, I am of the view that they are more than sufficient to explain the decision to the parties and permit meaningful appellate review. I would not give effect to this ground of appeal. 5.  Using Disclosure to Discredit the Appellant’s Testimony [92] The appellant submits that the judge erred in discrediting his evidence because he received and acknowledged relying on Crown disclosure. The appellant submits that the judge’s approach to this issue made a trap of his constitutional right to disclosure: R. v. Peavoy (1997), 34 O.R. (3d) 620 at 625 (C.A.); R. v. Schell (2000), 148 C.C.C. (3d) 219 at paras. 56–57 (Ont. C.A.); R. v. White (1999), 42 O.R. (3d) 760 at 767–768 (C.A.). [93] The background relevant to this ground of appeal may be briefly stated. In cross‑examination, the appellant testified that he did not remember buying the complainant a pair of high‑heeled shoes to wear at the auction. Without further inquiry by Crown counsel, the appellant volunteered that his evidence on this point — that he, in fact, did not buy the complainant a pair of high‑heeled shoes — was consistent with an out‑of‑court statement given by the complainant’s mother. The issue was not pursued in cross‑examination. The Crown did not put to the appellant that he was tailoring his evidence with the disclosure in mind, nor did the Crown suggest in its closing submissions that the appellant’s credibility was negatively affected by his reliance on the disclosure. [94] In her reasons for judgment, the judge noted that the appellant’s testimony on whether he bought the complainant a pair of high‑heeled shoes made clear that he was relying on documents disclosed to him by the Crown — a statement that is factually correct. Later, in assessing the reliability of the appellant’s timeline of events, the judge noted that his recollection of dates was not confirmed by independent evidence and that the appellant was relying on his own memory and “what he has read in other people’s statements, to a small degree.” [95] I need not address in this case the circumstances in which the Crown may properly cross‑examine an accused on the disclosure they reviewed before testifying. I agree with the submission of the Crown that this case is devoid of the prejudicial cross‑examination on disclosure that occurred in Schell . I also agree with the Crown that the judge did not infer that the appellant concocted his testimony after receiving disclosure as occurred in R. v. Thain , 2009 ONCA 223 at paras. 18, 25–29. In my view, the reasons cannot reasonably be read as supporting the proposition that the judge used the fact of disclosure to discredit the appellant’s testimony. I note that the judge made no reference at all to this issue in explaining why she rejected the appellant’s testimony. I would not give effect to this ground of appeal. 6.  Using the Complainant’s Prior Consistent Statements to Bolster Her Credibility [96] As noted earlier, the complainant gave evidence about when she disclosed to others what the appellant had done to her. She said she told J.K. and some other friends at the time. The Crown asked, “Did you give them the details of what you’ve told the court today?” She replied, “I don’t recall what details I gave them but I told them that he had touched me.” She told her mother what happened before going to the police in 2015. J.K. said the complainant told him why she no longer worked at the appellant’s store and that the information upset him. Neither J.K. nor the complainant’s mother gave any evidence as to the substance of the disclosure made to them. The only evidence elicited from the complainant on this issue was that she told J.K. the appellant had touched her. The judge reviewed all of this evidence. [97] Crown counsel did not invite the judge to conclude that the complainant’s evidence was consistent with what she told others about the circumstances of the offence. Further, the Crown did not invite the judge to conclude that consistency in the way in which the complainant described the offence to others over time could be relied on to bolster her credibility. [98] In addressing the credibility of the complainant in her supplementary reasons, the judge noted that the complainant’s “behaviour and her comments about steps she took afterwards and ultimately how this matter even came to the attention of the police are all consistent with her description of what occurred at that time.” The judge noted that the complainant quit suddenly, leaving her job the day of the alleged offence. The judge’s comments relevant to this ground of appeal are reproduced in full herein at paragraph 61. [99] The appellant submits that the judge’s remarks demonstrate that she improperly used the complainant’s prior consistent statements to bolster her credibility. I do not agree. [100] First, the complainant’s evidence about the steps she took after the alleged assault to bring the incident to the attention of others and, eventually, to the police, was admissible as part of the narrative of events. The fact that a prior complaint was made, when it was made, and why it was or was not made in a timely fashion, are all matters that are relevant and admissible to establish the conduct of the complainant. This evidence may assist the trier of fact in assessing the credibility of the complainant’s evidence: R. v. Dinardo , 2008 SCC 24 at paras. 37–38; R. v. Ay (1994), 93 C.C.C. (3d) 456 at paras. 44–45, 53 (B.C.C.A.); R. v. Hughes , 2001 BCCA 424 at para. 46. [101] Second, and apart from the fact that the complainant told J.K. the appellant touched her, the details of her prior complaints were not adduced in evidence. Having heard virtually nothing about the content of any of the complainant’s prior disclosures, there was no real risk that the judge could engage in the impermissible reasoning suggested by the appellant: R. v. M.R.H ., 2019 SCC 46 at para. 4; R. v. L.S ., 2017 ONCA 685 at paras. 30–31. This is not a case like R. v. Stirling , 2008 SCC 10, where there was considerable evidence about the substance of the prior statements. In such a case, there is a genuine risk that a trier of fact might infer credibility from consistency. [102] In my view, the judge was not addressing the substance of the complainant’s prior statements in the impugned paragraphs. Rather, she was addressing the complainant’s comments about the steps she took — in other words, her conduct — immediately after the assault as part of her credibility assessment. She was entitled to have regard to the evidence for this limited purpose. [103] Finally, I do not see that Willis assists the appellant on this issue. In that case, the substance of the complainant’s prior statements were tendered in evidence and improperly used by the trial judge to bolster her testimony: Willis at paras. 19–24. [104] For the foregoing reasons, I would not give effect to this ground of appeal. V.  Conclusion [105] In the result, I would dismiss the appeal from conviction. “The Honourable Mr. Justice Fitch” I AGREE: “The Honourable Madam Justice Garson” I AGREE: “The Honourable Mr. Justice Abrioux”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: British Columbia (Securities Commission) v. Pioneer Ventures Inc., 2021 BCCA 1 Date: 20210104 Docket: CA46666 Between: British Columbia Securities Commission Respondent (Respondent) And Pioneer Ventures Inc. Appellant (Applicant) Before: The Honourable Madam Justice Newbury The Honourable Madam Justice Saunders The Honourable Mr. Justice Harris On appeal from:  A decision of the British Columbia Securities Commission, dated December 30, 2019 ( Re Application to revoke certain orders , 2019 BCSECCOM 454). Counsel for the Appellant (via videoconference): R.N. Pelletier Counsel for the Respondent (via videoconference): D.J. Chapman J.L. Whately Place and Date of Hearing: Vancouver, British Columbia November 24, 2020 Place and Date of Judgment: Vancouver, British Columbia January 4, 2021 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice Saunders The Honourable Mr. Justice Harris Summary: Appeal of decision by Securities Commission that freeze orders were validly issued in the public interest and should not be revoked. Held: Appeal dismissed. Freeze orders do not require that an onerous evidentiary burden be met. The Commission was not clearly wrong to conclude that the allegations were serious and that the freeze orders were issued in the public interest, nor did the Commission exercise its discretion on a wrong principle or fail to consider all relevant factors. There was evidence before the Commission to justify the orders, including allegations of undisclosed insider trading, misrepresentations in public disclosure and self‑dealing. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] This appeal — and it is a statutory appeal, not a petition for judicial review — requires us to consider the granting and revocation of so‑called ‘freeze orders’ made by the Securities Commission under the Securities Act , R.S.B.C. 1996, c. 418. These are orders granted under s. 151 of the Act (which section has since been repealed) that required persons in control or possession of funds, securities or other property of alleged wrongdoers to hold such property or refrain from withdrawing it from bank or other accounts; or to hold it for authorities having possible claims, such as interim receivers or liquidators in bankruptcy. Under s. 171, such orders could be revoked by the Commission where it would not be “prejudicial to the public interest” to do so. (I have attached as a schedule to these reasons the relevant statutory provisions that were in force at all material times.) [2] The Commission has described freeze orders as ‘discretionary tools’ intended to preserve the status quo , “ensuring that the frozen property is not dissipated or destroyed before the Commission is in a position to determine what, if any, further steps or orders in the public interest should be made under the Act .” (See Re Amswiss Scientific Inc. [1992] 7 B.C.S.C.W.S. 12 at 32.) The Commission has interpreted its discretion to make such orders very broadly. It has said it is “not possible to state an evidentiary test that must be met in every case to support a freeze order”. (See H&R Enterprises Inc. (Re) [1997] 41 B.C.S.C.W.S. 18 at 7.) It has rejected the notion that before issuing a freeze order, the Commission must find that the person whose assets would be subject to the order has been dissipating, removing or disposing of assets or may do so in future; and the notion that a “connection” must be shown between the frozen property and the wrongdoing. (See Re Samji 2012 BCSECCOM 91 at paras. 33–7.) [3] Freeze orders have been considered only rarely by this court on appeal. We were referred to two of those occasions — first, in Exchange Bank & Trust Inc. v. British Columbia Securities Commission 2000 BCCA 389 (“ EBT ”), where Mr. Justice Braidwood in chambers denied leave to appeal the Commission’s refusal to revoke a freeze order; and second, in Zhu v. British Columbia (Securities Commission) 2013 BCCA 248, where a division of the Court dismissed an appeal from a similar refusal. [4] In EBT , Braidwood J.A. set out the Commission’s reasons at length with approval, beginning at para. 12 of his reasons. The passage quoted included the Commission’s observations that: In seeking an investigation order, Commission staff does not face an onerous evidentiary burden. Staff must show that the circumstances relate to the trading of securities and is expected to provide a basis on which to conclude the subjects of the proposed investigation have acted, are acting or may act in contravention of the securities laws of British Columbia or of another jurisdiction or in a manner contrary to the public interest. One of the grounds for making an order under section 151 appears to require nothing more than the existence of an investigation order, or the intention to issue one. However, a freeze order generally has far more serious and immediate consequences than an investigation order. Property of the alleged wrongdoers is immediately affected and the property of innocent third parties can be captured in the freeze. The Commission must therefore consider the seriousness of the allegations and the evidence supporting them so it can weigh the threat to the public interest against the potential consequences of the order. That said, freeze orders are often made at a very early stage of an investigation. They are not determinative of the facts in issue; they are made to preserve property until the facts can be established, either through investigation or through a hearing before the Commission. [Emphasis added.] Braidwood J.A.’s order was upheld on appeal for reasons that focussed on procedural fairness: see 2000 BCCA 549. [5] In Zhu , Commission staff were investigating serious allegations against the appellants, including fraud, participation in a “Ponzi” scheme, failing to file a prospectus when required and selling certain securities contrary to the Act. These allegations had not been heard by the time the Executive Director applied for an extension of various “temporary” orders designed to prevent future violations of the Act , including a freeze order made April 30, 2012. The appellants applied for an order revoking that freeze order under s. 171, but for unexplained reasons did not apply for the revocation of a second freeze order made on May 4, 2012. [6] The Commission found that the evidence fell “far short of prima facie evidence of a Ponzi scheme” or of fraudulent conduct. As a result, it concluded that it was neither necessary nor in the public interest to extend the temporary orders. However, it declined to vacate the freeze order. This decision was the subject of the appeal to this court. [7] Speaking for the Court, Madam Justice Prowse noted at the outset of her analysis that the interpretation and application of s. 171 of the Act had not been properly raised. She therefore restricted her comments to the question of whether the Commission’s refusal to vacate the April freeze order was reasonable . Zhu was decided prior to the recent changes in administrative law made by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 regarding statutory appeals from administrative tribunals; see especially paras. 36–52. [8] Prowse J.A. described the parties’ positions at paras. 51–6 of her reasons and then began her analysis of the law at para. 57. She noted Amswiss , EBT and H&R Enterprises . She agreed with the Executive Director that the “approach adopted by the Commission and reflected in these decisions is clearly within their mandate and does not lend itself to guidance by this Court by way of tests, mandatory criteria, or other guidelines which would tie the hands of the Commission.” She continued: I agree with the submission of the Executive Director in this respect, particularly in the circumstances of this case. I would decline the appellants’ invitation to set down guidelines, criteria or mandatory tests for the exercise of the Commission’s discretion under either s. 151 or s. 171 of the Act . ... In assessing the reasonableness of the Commission’s decision against this backdrop, it is important to note that, in this case, there was an admitted breach of s. 61 of the Act , and evidence of other breaches of the Act , albeit not to the level of a prima facie case. ... In all of the circumstances, having regard to the breadth of the Commission’s mandate to act in the public interest in the area of its expertise, and the broad discretion available to it under s. 171 , I find that the Commission’s decision not to revoke the freeze order was reasonable. [At paras. 65–6; emphasis added.] [9] The case at bar involves quite different facts and, since it arises post‑ Vavilov , engages different standards of review from those applied in the past to the appellate review of the Commission’s orders. (See especially Pezim v. British Columbia (Superintendent of Brokers) [1994] 2 S.C.R. 557.) In Vavilov , the Supreme Court reversed its previous jurisprudence (last reformulated in Dunsmuir v. New Brunswick 2008 SCC 9) concerning standards of review applicable to appeals like this one, i.e., statutory appeals from decisions of administrative tribunals. The Court adopted the principle that “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law.” (At para. 35.) It continued: this principled position also requires courts to give effect to the legislature’s intent, signalled by the presence of a statutory appeal mechanism from an administrative decision to a court, that the court is to perform an appellate function with respect to that decision . ... Where a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis. This expressed intention necessarily rebuts the blanket presumption of reasonableness review. ... It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen ... Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen ... . [At paras. 35–7; emphasis added.] [10] By the same token, one assumes the exercise of a discretion by a statutory tribunal is now subject on appeal to the standard of review described in cases such as Friends of the Oldman River v. Canada (Minister of Transport) [1992] 1 S.C.R. 3 at 76-7 and Penner v. Niagara Regional Services Board 2013 SCC 19 at para. 27. Chronology [11] Having laid out the legal context of this case, I turn to a chronology of the material facts. · November 23, 2016 — Based on information from a complainant not identified at the time, a Commission investigator formed the view that an individual (whom I will refer to as “Mr. Z”), the sole director and officer of the appellant Pioneer Ventures Inc. (”Pioneer”), was an insider and de facto director of a publicly-listed company, referred to as “Yco”. The investigator reviewed trading information of Yco, which indicated that Pioneer was an active trader and seller of shares of Yco. Mr. Z had not made any filings required of insiders or directors of Yco. The investigator’s source also alleged that Mr. Z was “taking and using corporate funds for his own personal purposes, including through other companies owned by [him]” and had been “stealing corporate opportunities from [Yco], by setting up other companies that benefitted from what are supposed to be the Company’s transactions.” In the course of a sworn interview, the complainant did acknowledge that Yco’s directors had approved the payment of fees to Mr. Z and related companies. · November 29, 2016 — The Chair of the Commission issued an investigation order in respect of Mr. Z, Pioneer, Pinto Ventures Ltd. and Yco. · June 5, 2018 — A Commission investigator recommended that the investigation order be amended to clarify its scope and name additional subjects. The investigator noted that according to the evidence gathered to date, Yco was a “developmental stage medical marijuana company”; that it had entered into a land lease and purchase agreements for marijuana-growing equipment with companies controlled by Mr. Z, including Pioneer; and that Mr. Z appeared to be on “both sides” of the agreements — a fact not disclosed by Yco in its public filings. · May 22, 2019 — The Chair of the Commission granted a freeze order in respect of Pioneer’s accounts at two banks. A typographical error in the original order was corrected by subsequent order dated May 24, 2019. · May 27, 2019 — Pioneer applied under s. 171 of the Act for an order revoking the freeze orders. The application was made by letter from counsel for Pioneer, who submitted that the orders represented a “substantial overreach” of the Commission’s powers. He quoted a statement from Amswiss that: the Commission must ... consider the seriousness of the allegations the evidence supporting them so it can weigh the threat to the public interest against the potential consequences of the [freezing order]. Counsel argued that the evidence considered by the Chair in granting the freeze orders “contain[ed] … no evidence whatsoever” concerning the seriousness of the allegations or how the public interest was served by the granting of the freeze orders. It was said that since the Commission had had no such substantive evidence when it granted the freeze orders, the orders were “improper and should not have been granted.” · June 10, 2019 — Counsel for the Executive Director filed his response, addressing both the validity of the freeze orders under s. 151 and the application to revoke them under s. 171. On the latter point, counsel submitted that the onus was on Pioneer as applicant to demonstrate that it would not be prejudicial to the public interest to revoke the orders. He argued that since Pioneer had not tendered any evidence to this effect, it had not discharged its onus and the application should be dismissed. With respect to the validity of the freeze orders themselves, counsel noted that certain parties in other investigations before the Commission had challenged the constitutional validity of s. 151 and that the Attorney General, under s. 43(3) of the Administrative Tribunals Act , S.B.C. 2004, c. 45, had required the Commission to refer the matter to the Supreme Court of British Columbia as a stated case. (I understand the stated case has now been heard, but not yet decided, by the Supreme Court: see In the Matter of certain Applications Before the British Columbia Securities Commission , Vancouver Registry, Docket VA S1914058.) Counsel in the case at bar recommended that the Commission “as ‘master of its own procedures’ [should] defer ruling on Pioneer’s submission that s. 151 incorporate[s] factors, a test, or guidelines beyond what is in the Act as this issue will be dealt with by the Supreme Court.” · June 14, 2019 — Counsel for Pioneer filed a reply, submitting that the Executive Director’s position was “both tautological and contrary to the principles of fundamental justice” and that: In any event, Pioneer requests that the Commission conclude that it cannot be prejudicial to the public interest to revoke any Order of the Commission that was granted without evidence and without compliance with the law in force in British Columbia. The evidentiary burden upon the Executive Director in respect of obtaining the Freeze Orders in the first place is incredibly low and the failure in this case to even attempt to meet such burden renders the granting of the Freeze Orders to be itself prejudicial to the public interest and contrary to the most basic principles of fundamental justice. In other words, refusing to revoke the Freeze Orders would itself be prejudicial to the public interest. [Emphasis added.] Reasons of September 5, 2019 [12] The Commission elected to treat the Executive Director’s application to defer the hearing of the application as an adjournment application. Pioneer opposed the Director’s request on the basis that it would be an abuse of process. Pioneer said it was content not to challenge the constitutional validity of s. 151 and not to ask that the panel craft “any particular test or approach” to s. 151. [13] The Commission set out paras. 151 and 171 of the Act and s. 8.10(a) of Commission Policy 15‑601. The latter provides: Discretion to revoke or vary —A party may apply to the Commission for an order revoking or varying a decision. Generally, the Commission does not hold a hearing, it considers written submissions and makes its decision. Before the Commission changes a decision, it must consider that it would not be prejudicial to the public interest. This usually means that the party must show the Commission new evidence or a significant change in circumstances. [Emphasis added.] [14] The Commission adopted the reasoning of the panel in Re BridgeMark Financial 2019 BCSECCOM 248 that in most circumstances, the intent of the Act is that “the tribunal of the Commission, with its presumed expertise in the subject matter, is best placed to consider all questions of law and assessments of the public interest that arise from the interpretation of the Act and acts taken by the Commission in furtherance thereof.” The Executive Director’s application for an adjournment was dismissed. [15] Turning to Pioneer’s application under s. 171, the Commission confirmed that in usual circumstances, the onus is on the applicant to show that revoking the order would not be prejudicial to the public interest. (Citing Re Bossteam 2012 BCSECCOM 377 at para. 70.) The Commission continued: This general guidance makes perfect sense in the context of section 171 applications where the public interest considerations already form part of the record . In most cases these applications are heard by the original decision maker, and occur following orders issued after substantial proceedings have taken place up to and including hearings on the merits and orders relating to sanctions for misconduct. In the present matter, however, no allegations have been made, no notice of hearing has been issued and the Applicant has from the Commission only the Investigation Orders and Freeze Orders upon which to base its Application. Furthermore, as this panel did not grant the underlying orders, we do not have the context and considerations from the original proceedings, as is often the case in a section 171 application. In these circumstances, applying the onus on the Applicant to show new evidence or a significant change of circumstances makes little sense. [At para. 43; emphasis added.] [16] The Commission found that it was “impossible” to consider whether revoking the freeze orders would or would not be prejudicial to the public interest “in the absence of consideration of at least some of the underlying evidence.” In the result, it adjourned Pioneer’s application and ordered the Executive Director to provide “the evidence, if any, to the Applicant that was provided to the Chair for her consideration before issuing the Investigation Orders and the Freeze Orders sufficient, in the Executive Director’s judgement, to sustain the Freeze Orders.” [17] Between October and December, 2019, the Executive Director provided Pioneer with copies of an affidavit of a member of the Commission’s investigative staff to which he exhibited copies of two memoranda. These had been submitted to the Chair in support of the original investigation orders. The first memorandum was redacted to protect the identification of a complainant; the second memorandum was essentially unredacted. Pioneer filed further submissions and a reply was filed on November 1, 2019. Reasons of December 30, 2019 [18] After receiving the further information and submissions, the Commission panel (being the same panel that had made the September orders) issued a second set of reasons on December 30, 2019. It began by describing the parties’ respective positions. Pioneer continued to assert that the Chair had not had before her any evidence whatsoever to support her exercise of discretion to issue the freeze orders in the first instance and that the Commission had “entirely failed to provide even a scintilla of the required evidence of the public interest, or consideration thereof, to maintain the Freeze Orders”. (At para. 7.) It was said the memoranda expressed only “concerns”, were based on hearsay and that the Commission had not been “forthright” in its dealings with the subjects. Pioneer did acknowledge that the two memoranda purported to show that the same individual was sole director and officer of Pioneer and of another company, “Xco”, and that Pioneer and Xco had together sold more shares of Yco than any other person. In addition: The Applicant also provided information regarding an individual who the Applicant stated was “obviously the Complainant”. The Applicant described civil litigation between [Mr. Z] and the Complainant and included a copy of an Interim Order of the Court of Queen’s Bench of Alberta (Interim Order), which enjoined the Complainant from making further defamatory statements against [Mr. Z]. The Applicant submitted that the statements of the nature and type alleged to have been made by the Complainant to the Commission were of the same nature and type as those subject to the Interim Order. The Applicant says that this is “hugely problematic for the Commission and for the proper administration of justice in this matter….” . . . The Applicant submitted that it remains impossible for the Applicant to tender evidence to satisfy the usual onus in a section 171 application “as the evidence submitted by the Commission which is to be addressed by [the Applicant] has either been withheld or is nonexistent”. This amounts to the Commission asserting that the granting of an investigation order is sufficient, without more, to grant a freeze order . The Applicant submitted that the Chair accepted the opinion and conclusions of an investigator in respect of the evidence of the public interest rather than having such evidence put to the Chair and having her review such evidence and draw her own opinions and conclusions. The Applicant says that this is clearly wrong in law and on the particular facts of this matter and constitutes a breach of procedural fairness and fundamental justice. [At paras. 9, 12; emphasis added.] [19] For her part, the Executive Director summarized the information gathered by investigators that had led to the “concerns” set out in the memoranda. This information included the following: o Securities of Yco were publicly traded o [Mr. Z] was actively involved in the business of Yco including finding projects, asset acquisition opportunities, private financings and preparing public filings o The Complainant’s serious allegations against [Mr. Z] and members of his family o The Applicant and Xco sold more shares of Yco than any other person in a specified period o [Mr. Z] and [Mr. Z]’s family members were trading in Xco shares without public disclosure o Yco had entered into several agreements for investor relations, leases of land and product purchases with companies controlled by [Mr. Z] (including named Subjects) and his son (also a named Subject), which agreements were not disclosed by Yco o [Mr. Z] made decisions for Yco including hiring and firing The Commission investigators set forth their apprehensions that the information outlined in the Memoranda raised significant concerns that [Mr. Z] may have been acting as an unreported de facto director of Yco and, if so, Yco had failed to comply with section 85 of the Act and [Mr. Z] had failed to file insider trading reports for the trading in securities of Yco that the Applicant and Xco had made. Furthermore, if [Mr. Z] were a de facto director of Yco, given [Mr. Z]’s involvement with Yco summarized above, Yco’s public filings may have contained misrepresentations. [At paras. 15–16; emphasis added.] [20] The Director submitted that the burden needed to support the issuance of an investigation order is “not an onerous one”, but that “there must be trading in securities and a basis to conclude that the subjects of the requested order acted or may act in a manner contrary to the public interest.” (At para. 17.) Freeze orders, she said, may be issued even before an investigation is commenced and a quick response is often necessary to “enhance the Commission’s capacity to protect the capital markets.” Echoing statements made in Re Samji , supra , she submitted that the issuance of a freeze order does not require evidence that the property sought to be frozen is “closely involved with” the alleged wrongdoing or the dissipation or threatened dissipation of the assets; nor does it require evidence of a connection between the frozen assets and the wrongdoing. (At para. 19.) [21] In the Director’s submission, there had been evidence before the Chair prior to the granting of the freeze orders, i.e., the two memoranda prepared by staff. Although the Director was not prepared to disclose the identity of the complainant, she observed that his or her reliability could be tested at a later stage if the matter proceeded. In the meantime, it was said the order had been properly issued and that the applicant had provided no evidence of any prejudice or inconvenience caused to the public by the freeze orders. (At para. 21.) [22] The panel began its own analysis at para. 22 of the December reasons. It rejected Pioneer’s assertion that there was “no evidence at all” to support the freeze orders. This assertion suggested that a high standard of evidence was required, reflecting a “misapprehension by the Applicant of what the Act require[d].” (At para. 23.) The panel noted that freeze orders may be issued as soon as an investigation is proposed, as well as during and after an investigation. They may be based on “very preliminary information” and their objective is to maintain the status quo . [23] In this case, the issuance of the freeze orders in May 2019 had been supported by the second memorandum, which identified further subjects for the investigation and further potential misconduct. The length of time between the second memorandum and the issuance of the freeze orders had been reasonable, given the need to obtain and review financial records and verify details before the requests for freeze orders could be presented to the Chair. Like investigation orders, freeze orders do not require that the Commission satisfy an onerous evidentiary burden. The Commission continued: Having reviewed the evidence that was before the Chair prior to issuing the Freeze Orders, we agree with the Executive Director that the Chair’s exercise of discretion to issue the Freeze orders required consideration of the public interest in all of the circumstances known at the time . The information in the Memoranda provided to the Chair before she issued the Investigation Orders indicated the possibility of multiple breaches of securities law including failures to make required disclosure of [Mr. Z]’s de facto directorship of Yco, undisclosed insider trading by [Mr. Z] and members of his family, failure to report trading in securities of Yco by [Mr. Z], misrepresentations in public documents of Yco and possible self- dealing by [Mr. Z]. The affidavits in support of the Freeze Orders identified assets of the Applicant, which provided the opportunity to freeze such assets and maintain the status quo . [At para. 30; emphasis added.] [24] Accordingly, the Commission found that Pioneer’s contention there had been “no evidence” before the Chair was “simply not correct”. The information in the affidavit and memoranda satisfied the burden described in the chambers decision in EBT and fully justified the issuance of the freeze orders. As far as the public interest was concerned, the Commission found that the public interest in issuing the freeze orders was “compelling”. The panel quoted from EBT, where Braidwood J.A. had approved the following reasoning of the Commission: In our view, it is not possible to state an evidentiary test that must be met in every case to support a freeze order….Where a freeze order is imposed to preserve property at an early stage of an investigation, as in this case, the Commission expects staff to review the status of the order on the basis of the emerging evidence as the investigation unfolds and, if appropriate, to apply to have an order varied or revoked . [At para. 33; emphasis added.] The panel concluded that the freeze orders had been validly issued “in the public interest”. [25] With respect to Pioneer’s application for the revocation of the freeze orders, the Commission observed that Pioneer had produced no evidence and, in the Commission’s analysis, had failed to make any compelling argument in support of the conclusion that revoking the orders would not be prejudicial to the public interest. This application was also dismissed. [26] Leave to appeal the Commission’s order was granted to Pioneer by a justice of this court on February 19, 2020. On Appeal [27] In this court, Pioneer stated only one ground of appeal in its factum, namely that: the Commission erred in law, or alternatively in fact and law, in finding that the Freeze Orders were validly issued and thereon [ sic ] dismissing the Application. This ground of appeal is stated in such general terms that no particular error of law or fact can be gleaned from it. Such compendious “grounds” are unhelpful to this court and should be avoided. From the Argument portion of the factum, however, I draw the following grounds of appeal, namely that the Commission erred in equating the evidentiary burden required to issue an investigation order with that required for a freeze order; and that it failed to consider the public interest before granting the freeze orders. [28] In addition, counsel in his oral submissions in this court contended that the Commission’s decision represented a “failure of fundamental justice” or a breach of procedural fairness. The Evidentiary Burden [29] In arguing that the Commission equated the evidentiary burdens required for investigation orders with those required for freeze orders, Pioneer relied specifically on the panel’s comment at para. 29 of its reasons that the following passage quoted at para. 12 by Braidwood J.A. in EBT is “also applicable to a freeze order”: In seeking an investigation order, Commission staff does not face an onerous evidentiary burden. Staff must show that the circumstances relate to the trading of securities and is expected to provide a basis on which to conclude the subjects of the proposed investigation have acted, are acting or may act in contravention of the securities laws of British Columbia or of another jurisdiction or in a manner contrary to the public interest. [Emphasis added.] To ensure that this it will not be taken out of context, I also note the two paragraphs that followed that passage: One of the grounds for making an order under section 151 appears to require nothing more than the existence of an investigation order, or the intention to issue one. However, a freeze order generally has far more serious and immediate consequences than an investigation order. Property of the alleged wrongdoers is immediately affected and the property of innocent third parties can be captured in the freeze. The Commission must therefore consider the seriousness of the allegations and the evidence supporting them so it can weigh the threat to the public interest against the potential consequences of the order. That said, freeze orders are often made at a very early stage of an investigation. They are not determinative of the facts in issue; they are made to preserve property until the facts can be established, either through investigation or through a hearing before the Commission. [ At para. 12; emphasis added.] [30] I do not read the foregoing as “equating” the evidentiary burden required for an investigation order with that required for freeze orders. As I read the reasons, the Commission is saying simply that like investigation orders, freeze orders do not require that a heavy evidentiary burden be met. Although the consequences of a freeze order may be onerous in particular circumstances, the jurisprudence is replete with references to the fact that the realities of modern technology and instantaneous securities transactions are such that in the absence of freeze orders, wrongdoers could avoid or circumvent penalties or compensation ultimately ordered by the Commission, thus rendering the entire process meaningless. [31] The Commission must of course always act in what it believes is the public interest, no matter what type of order is being contemplated. It seems to me likely that in most cases, the public interest considerations that are relevant to the granting of an investigation order will at least overlap with, if not be the same as, those that are relevant to the granting of a freeze order. As for the seriousness of the allegations, this may change as the investigation proceeds, as occurred in this case. There may be circumstances in which the allegations are not at all serious, or in which serious allegations are withdrawn, leaving only wrongdoing that would merit nothing more than a small fine or even only a ‘cease and desist’ order. In these situations, it might well be appropriate for the Commission to conclude a freeze order is not necessary in the public interest, or to vary the terms of an existing order. Or it may be that a large amount of money belonging to innocent parties is caught by a freeze order and it becomes apparent that the effects of the order are not justifiable in the public interest. [32] I suspect, however, that such situations are fairly rare. In most situations, I would suggest that the existence of allegations that if proven would constitute non‑trivial contraventions of the Act and that could result in adverse financial consequences (be they penalties, damages or restitutionary orders of some kind) to the alleged wrongdoers would justify the issuance of a freeze order. As the Commission acknowledged at para. 33 of its December reasons (quoted supra ), Commission staff is expected to monitor the status of freeze orders and if appropriate, apply to have them revoked or varied. If it becomes apparent the complaining party is not to be believed (as was argued unsuccessfully by Pioneer in this case) or that the freeze order is causing serious harm to innocent members of the public, the onus under s. 171 might well be met. Or the concerns underlying a freeze order might be addressed by proof of financial means of the alleged wrongdoer. None of the foregoing situations existed in this case; nor had a long delay in the bringing of charges against the subjects of the investigation occurred. [33] The Commission found that the public interest in issuing the freeze orders was “compelling” in the present circumstances. These circumstances consisted primarily of a review of the allegations made by the complainant, which were not frivolous, and a recounting of the specific facts alleged in support. By their nature, allegations of breaches of the Act will almost always involve conduct that may be contrary to the public interest in having securities markets that are transparent, honest and efficient and that inspire investor confidence. I am unable to say the Commission was clearly and palpably wrong in concluding that the freeze orders in this case were issued in the public interest, or that the panel exercised its discretion on a wrong principle or failed to consider all relevant factors. [34] I take further comfort from the Commission’s September reasons for my conclusion that the tribunal did not equate the evidentiary burdens required for investigatory orders and freeze orders respectively. In those reasons, the Commission fully accepted the passage from Amswiss in which it acknowledged that a freeze order generally has more serious and immediate consequences than an investigation order and that the Commission must consider all the evidence supporting the freeze order “so that it can weigh the threat to the public interest against the potential consequence of the order”. (At para. 41.) The Executive Director was given the opportunity to provide the evidence on which she had relied, and did so. At para. 31 of its December reasons, the Commission found that: The information contained in the affidavits and Memoranda satisfies the evidentiary burden set forth in [ EBT ] and thereby fully justified the issuance of the Freeze Orders. This potential misconduct may also cause serious harm to investors and Yco if the status quo is not maintained . [Emphasis added.] [35] I am not persuaded that the Commission erred in law in misapprehending the evidentiary burdens required to issue investigative orders and freeze orders, or that the Commission erred in the application of the law to the facts (i.e., the evidence put before the Commission prior to the December hearing) before it. I would not accede to this ground of appeal. Applied Wrong Test? [36] At para. 11 of its factum, Pioneer asserts that: The Decision does not address the requirement that the Chair consider the seriousness of the allegations and the evidence supporting those allegations, and then weigh the threat to the public interest against the potential consequences of the Freeze Orders prior to granting the Freeze Orders. It is true that nowhere in its December decision did the Commission expressly ask itself whether the allegations being investigated against Pioneer were “serious”. However, it will be recalled that the information gathered during the course of the investigation included those items listed in para. 15 of the reasons, including a reference to “the Complainant’s serious allegations against [Mr. Z] and members of his family”. The Commission continued: The Commission investigators set forth their apprehensions that the information outlined in the Memoranda raised significant concerns that [Mr. Z] may have been acting as an unreported de facto director of Yco and, if so, Yco had failed to comply with section 85 of the Act and [Mr. Z] had failed to file insider trading reports for the trading in securities of Yco that the Applicant and Xco had made. Furthermore, if [Mr. Z] were a de facto director of Yco, given [Mr. Z]’s involvement with Yco summarized above, Yco’s public filings may have contained misrepresentations. [At para. 16.] [37] It may be that Pioneer or counsel do not regard these allegations as serious, but I cannot say that the Commission would be clearly and palpably wrong to so characterize them. Nor did the Commission consider a factor it should not have or fail to consider a relevant matter. It did, for example, consider the fact that an interim stay had been granted by an Alberta court in a defamation action against the alleged complainant in this case; but the Commission was apparently of the view that that evidence was not determinative at that point. [38] I would not accede to this ground of appeal. Breach of Procedural Fairness? [39] Finally, counsel for Pioneer asserted at the hearing of the appeal that it and the other subjects of the investigation were denied fundamental justice as a result of the “process” followed in this case. In particular, Pioneer asserts that in addressing the validity of a freeze order, procedural fairness requires that the Commission “produce the evidence relied upon by the Chair and the Commission in granting [the Freeze Order].” It also suggested that if the Chair had attempted to address the allegations made against Pioneer, it would have been apparent to her that the allegations were “unsubstantiated”. In summary, Pioneer says the Chair did not engage in the “evidentiary and weighing analyses” mandated by the governing authorities before issuing the freeze orders. [40] In my view, this argument must also fail. In its September reasons, the Commission acknowledged that “it would be procedurally unfair to the Applicant to require it ‘to tender evidence or provide a factual basis that revocation of the Freeze Orders would not be prejudicial to the public interest ’” while at the same time withholding the evidence that was before the chair when she granted the investigative orders and the freeze orders. The Commission explained that in most instances, applications for the variation or revocation of a previous order are heard by the original decision-maker after substantial proceedings have taken place, up to and including hearings on the merits. In the circumstances of this case, however, the panel had not granted the underlying orders and therefore did not have “the context and considerations from the original proceedings, as is often the case in a section 171 application” and no specific allegations had yet been made or notice of hearing issued. (At para. 42.) As seen above, the Commission found it would be “impossible” to proceed under s. 171 “in the absence of consideration of at least some of the underlying evidence.” [41] As we have seen, by the time of the December hearing, the affidavit and memoranda had been provided to the Commission. It found at the end of the day that that information “fully justified the issuance of the Freeze Orders” and that the public interest in maintaining those orders was “compelling”. [42] I agree with the Commission that it was simply not the case that there was “no evidence” before the Commission that could have justified the issuance of the freeze orders. The fact that this evidence may not have complied with the rules of evidence is not fatal: s. 173(c) of the Act provides that the Commission is generally not bound by the rules of evidence in conducting a hearing. This means that “information” provided by a complainant may be relied upon even though he or she has not been cross-examined on it. At this stage, the Commission is not called upon to assess the merits of the complaint or to assess the credibility of the complainant or anyone else. [43] In my view, no breach of the rules of procedural fairness has been shown. Disposition [44] For the foregoing reasons, I would dismiss the appeal. I emphasize that Pioneer expressly elected not to advance any constitutional argument in this case regarding s. 151. These reasons should not be read as commenting on that issue in any way. “The Honourable Madam Justice Newbury” I agree: “The Honourable Madam Justice Saunders” I agree: “The Honourable Mr. Justice Harris” Schedule of Legislation Appeal of commission decision 167 (1) A person directly affected by a decision of the commission, other than (a) a decision under section 48 or 76, (b) a decision under section 165 in connection with the review of a decision of the executive director under section 48 or 76, or (c) a decision by a person acting under authority delegated by the commission under section 7, may appeal to the Court of Appeal with leave of a justice of that court. (2) The commission or the Court of Appeal may grant a stay of the decision appealed from until the disposition of the appeal. (3) If an appeal is taken under this section, the Court of Appeal may direct the commission to make a decision or to perform an act that the commission is authorized and empowered to do. (4) Despite an order of the Court of Appeal in a particular matter, the commission may make a further decision on new material or if there is a significant change in the circumstances, and that decision is also subject to this section. (5) The commission is a respondent to an appeal under this section. Order to freeze property 151 (1) The commission may make a direction under subsection (2) if (a) it proposes to order an investigation in respect of a person under section 142 or during or after an investigation in respect of a person under section 142 or 147, (b) it or the executive director proposes to make or has made an order under section 161 in respect of a person, (c) criminal proceedings or proceedings in respect of a contravention of this Act or the regulations are about to be or have been instituted against a person and the commission considers the proceedings to be connected with or to arise out of a security or exchange contract or a matter relating to trading in securities or exchange contracts, or out of any business conducted by the person, (d) a person fails or neglects to comply with financial conditions applicable to the person under this Act, or (e) it proposes to apply or has applied to the Supreme Court for an order under section 157, or the Supreme Court has made an order under section 157. (2) In the circumstances described in subsection (1), the commission may direct, in writing, (a) a person having on deposit, under control or for safekeeping any funds, securities, exchange contracts or other property of the person referred to in subsection (1), to hold those funds, securities, exchange contracts or other property, and (b) a person referred to in subsection (1) (i) to refrain from withdrawing any funds, securities, exchange contracts or other property from any person having them on deposit, under control or for safekeeping, or (ii) to hold all funds, securities, exchange contracts or other property of clients or others in the person's possession or control in trust for an interim receiver, custodian, trustee, receiver manager, receiver or liquidator appointed under the Bankruptcy Act (Canada), the Company Act , the Business Corporations Act , the Law and Equity Act , the Personal Property Security Act , the Winding-up Act (Canada), the Supreme Court Act or this Act. (3) In the case of a savings institution, a direction of the commission under subsection (2) applies only to the offices, branches or agencies of the savings institution that are named in the direction. (4) A direction of the commission under subsection (2) does not apply to funds, securities, exchange contracts or other property in a clearing agency or to securities in process of transfer by a transfer agent unless the direction expressly so states. (5) In any of the circumstances referred to in subsection (1), the commission may, in writing, notify a land title office or gold commissioner that proceedings are being or are about to be taken that may affect land or mining claims belonging to the affected person. (6) The commission may, in writing, revoke or modify a notice given under subsection (5) and, if a notice is revoked or modified, the commission must send a copy of the written revocation or modification to the land title office or gold commissioner, as the case may be. (7) A notice sent under subsection (5) or a copy of a written revocation or modification under subsection (6) must be registered or recorded against the lands or claims mentioned in it and has the same effect as the registration or recording of a certificate of pending litigation or a caveat. Discretion to revoke or vary decision 171    If the commission, the executive director or a designated organization considers that to do so would not be prejudicial to the public interest, the commission, executive director or designated organization, as the case may be, may make an order revoking in whole or in part or varying a decision the commission, the executive director or the designated organization, as the case may be, has made under this Act, another enactment or a former enactment, whether or not the decision has been filed under section 163. Authority of persons presiding at hearings 173 The person presiding at a hearing required or permitted under this Act (c) is not bound by the rules of evidence.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. MacKay, 2021 BCCA 87 Date: 20210104 Docket: CA44514 Between: Regina Respondent And Kurk Joshua MacKay Appellant And Ministry of Children and Family Development Intervenor Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4(2) of the Criminal Code in cases involving sexual offences to ban the publication, broadcasting or transmission in any way of evidence that could identify a complainant or any witness under the age of 18. This publication ban applies indefinitely unless otherwise ordered. Pursuant to s. 16(4) of the Sex Offender Information Registration Act [ SOIRA ], no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA . FILE SEALED IN PART Before: The Honourable Mr. Justice Willcock The Honourable Madam Justice Dickson The Honourable Mr. Justice Butler On appeal from:  An order of the Supreme Court of British Columbia, dated March 9, 2017 ( R. v. MacKay , Victoria Docket 165264). Oral Ruling re In Camera Proceedings Counsel for the Appellant (via videoconference): T.J. Russell Counsel for the Respondent (via videoconference): M.G. Scott Counsel for the Intervenor (via videoconference): L. Hawes Place and Date of Hearing: Vancouver, British Columbia January 4–5, 2021 Place and Date of Judgment: Vancouver, British Columbia January 4, 2021 Summary: The appellant applies for an order that the entire appeal be held in camera, or, in the alternative, an order that the grounds of appeal addressing errors relating to the trial judge’s application of ss. 278.93 and 278.3 of the Criminal Code be held in camera. Held: Application granted in part. The application to hear the entire appeal in camera is dismissed, but the application to hear the grounds of appeal addressing ss. 278.93 and 278.3 in camera is granted. [1] WILLCOCK J.A. : The appellant applies for an order that this appeal be heard in camera pursuant to s. 9 of the Court of Appeal Act , R.S.B.C. 1996, c. 77, and our general jurisdiction. [2] In the alternative, he seeks an order that those aspects of the appeal founded upon the grounds the trial judge erred in addressing the application pursuant to s. 278.93 of the Criminal Code , R.S.C. 1985, c. C‑46 for the determination that evidence of a complainant’s sexual activity might be admitted into evidence be heard in camera , and an order that that aspect of the appeal founded on the grounds of the trial judge erred in addressing an application for production of third party records in possession of the intervenor, Ministry of Children and Family Development, be heard in camera . [3] We are of the view the application to hear the entire appeal in camera ought to be dismissed. [4] We will hear those grounds of appeal founded upon the alleged error in addressing s. 278.93 in relation to a complainant’s prior sexual activity, and the appeal founded upon an alleged error in relation to s. 278.3 for production of third party records in camera . These appeals may require us to make determinations that are required to be made following an in‑camera hearing pursuant to the applicable provisions of the Criminal Code . “The Honourable Mr. Justice Willcock” “The Honourable Madam Justice Dickson” “The Honourable Mr. Justice Butler”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Baranec, 2021 BCCA 18 Date: 20210107 Docket: CA44035 Between: Regina Respondent And Eduard Viktorovitch Baranec Appellant Restriction on publication:  A publication ban has been imposed under s. 486.5(1) and s. 486.5(9) of the Criminal Code restricting the publication, broadcasting or transmission in any way of information that could identify the undercover police officers in this case. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Saunders (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated October 8, 2016 ( R. v. Baranec , New Westminster Docket X075945). Oral Reasons for Judgment No one appearing on behalf of the Appellant Counsel for the Respondent (via teleconference): S.E. Elliott Counsel for the Attorney General of Canada on behalf of the RCMP (via teleconference): J.I. Katz Place and Date of Hearing: Vancouver, British Columbia January 7, 2021 Place and Date of Judgment: Vancouver, British Columbia January 7, 2021 Summary: A ban restricting publication of information that may identify undercover police officers is renewed indefinitely with the same term for setting it aside as was contained in a previous order of the court. [1] SAUNDERS J.A. : This is an application for a renewal of a publication ban order that was granted on May 1, 2018 by Mr. Justice Willcock, that has now expired, as has the trial court’s order. [2] Mr. Nathanson, who has acted for Mr. Baranec, most recently in the Supreme Court of Canada on the leave application, has indicated that Mr. Baranec takes no position on the application. [3] It is likely that it was expected the renewal would be taken up by the division that heard the appeal, but it was not. [4] The publication ban sought to be renewed is to restrict publication of any documents or information that could identify the identity of undercover police officers, including any pseudonyms, and so on. The application seeks the same terms as the last publication ban that was issued by this court. Quite obviously, a publication ban should continue. The appeal has been disposed of, and I understand the proceedings in the Supreme Court of Canada also have concluded. [5] The application is granted. Any interested party may apply to set aside this order on three clear days’ notice. “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Xu v. Hu, 2021 BCCA 2 Date: 20210107 Dockets: CA43073; CA43079 Docket: CA43073 Between: Tianyun Xu also known as Terence Xu Respondent/ Appellant on Cross Appeal (Claimant) And Yuenyuen Hu also known as Betty Hu Respondent/ Respondent on Cross Appeal (Respondent) And Vancouver International Enterprises Ltd., and Best Honour International Trading & Investment Co. Ltd. Appellants/ Respondents on Cross Appeal (Respondents) - and - Docket: CA43079 Between: Tianyun Xu also known as Terence Xu Respondent/ Appellant on Cross Appeal (Claimant) And Yuenyuen Hu also known as Betty Hu Appellant/ Respondent on Cross Appeal (Respondent) And Vancouver International Enterprises Ltd., and Best Honour International Trading & Investment Co. Ltd. Respondents/ Respondents on Cross Appeal (Respondents) Before: The Honourable Madam Justice Fenlon The Honourable Mr. Justice Hunter The Honourable Mr. Justice Butler On appeal from:  Orders of the Supreme Court of British Columbia, dated August 10, 2015 ( Xu v. Hu , 2015 BCSC 1400, Vancouver Docket E120635); December 8, 2017 ( Xu v. Hu , Vancouver Docket E120635); and July 23, 2019 ( Xu v. Hu , 2019 BCSC 1336, Vancouver Docket E120635). Counsel for Vancouver International Enterprises Ltd., and Best Honour International Trading & Investment Co. Ltd., appearing via videoconference: L.N. MacLean, Q.C. S. Chen Counsel for Tianyun Xu also known as Terence Xu, appearing via videoconference: C.J. Cao Counsel for Yuenyuen Hu also known as Betty Hu, appearing via videoconference: H.B. Chiu L.B. Williams Place and Date of Hearing: Vancouver, British Columbia September 21, 2020 Place and Date of Judgment: Vancouver, British Columbia January 7, 2021 Written Reasons by: The Honourable Madam Justice Fenlon Concurred in by: The Honourable Mr. Justice Hunter The Honourable Mr. Justice Butler Summary: The parties sought a divorce and division of assets, including the family residence held by a corporation controlled by the wife’s parents. The trial judge granted the divorce, declared the family residence to be subject to an express trust in favour of the wife and therefore a family asset, and divided the interest equally between the spouses. Held: Appeal allowed in part, express trust declaration set aside. The facts found by the judge did not establish the requisite certainties of intention and object. Characterization and division of other assets not disturbed, as the trial judge made the best of an inadequate evidentiary record and unreliable testimony. All parties to bear their own costs given their litigation misconduct in misleading the court. Reasons for Judgment of the Honourable Madam Justice Fenlon: [1] This appeal turns primarily on whether the judge erred in finding that a corporate-owned family residence was subject to an express trust in the wife’s favour and therefore a family asset. Yuenyuen Hu, also known as Betty Hu, appeals that finding (CA43079), as do the corporate appellants, Vancouver International Enterprises Ltd. (“VIE”) and Best Honour International Trading & Investment Co. Ltd. (“BHIT”): CA43073. The respondent husband, Tianyun Xu, also known as Terence Xu, cross appeals in both proceedings, seeking a larger share of that asset and the setting aside of an order directing him to bear 50% of the residence’s expenses. Ms. Hu and Mr. Xu also appeal orders determining and dividing other assets. [2] For the reasons that follow, I would allow the appeal in part, setting aside the orders declaring that BHIT holds the family residence in trust for Yuenyuen Hu and dividing the beneficial interest in that property between Ms. Hu and Mr. Xu. Background [3] The parties married in 2002. At the time, Mr. Xu was living and working in Beijing. He moved to Vancouver to join Ms. Hu and her son from a previous marriage and to begin working in the seafood business owned by Ms. Hu’s wealthy parents, Mr. Hu and Ms. Fan. That business consists of the two corporate appellants, BHIT and VIE, as well as Best Honour International Seafood Ltd. (“BHIS”). After marrying, Ms. Hu continued her employment as a manager in the family business. Mr. Xu initially worked receiving shipments of fresh seafood but eventually took on a more significant role. [4] After the couple’s son was born in 2005, BHIT purchased a home on Marguerite Street in Vancouver and the family resided there until Mr. Xu and Ms. Hu separated in 2012. BHIT paid the mortgage, property taxes, and renovation and insurance costs, while the couple took care of routine home maintenance. Ms. Hu’s annual tax forms recorded a taxable housing benefit reflecting the use of the Marguerite Street property. [5] Following a 26-day trial, the judge resolved a range of issues, including the enforceability of a separation agreement initially drawn up by Ms. Hu, the pool of family assets, spousal and child support, responsibility for extraordinary expenses, and eligibility for a divorce. She determined the Marguerite Street property was the subject of an express trust in favour of Ms. Hu and that, like the other family assets, it should be apportioned equally between the spouses. [6] Most of the orders made are not in issue on this appeal, so I need not review the judge’s reasons for making them. Of note, however, is her assessment of the parties’ credibility: [27] This is a case in which I cannot accept all, or even much, of the evidence of any party or its principals. To varying extents, all were careless with the truth, self-serving and argumentative or dissembling while on the witness stand. On balance, Mr. Xu suffered least from these testimonial deficiencies, but, given their magnitude in others, this is hardly praiseworthy. The net result, mildly put, is that finding facts on disputed matters has been unusually challenging. [28]      Mr. Xu, Ms. Hu and Mr. Hu all seemed to have trouble answering many of the questions posed on direct and cross examination. Instead, they launched into long soliloquies or rambled off on tangents with regrettable frequency. In addition, none of the three seemed to strive much for factual accuracy. Their trial testimony often differed from contemporaneous documents, previous affidavit or discovery evidence and, when confronted, the common reaction was to shrug off the inconsistency dismissively or project blame elsewhere . For her part, Ms. Fan mostly parroted what her husband said. [Emphasis added.] [7] The judge was faced with the almost insurmountable task of finding the truth about what had occurred despite the parties’ marked failure to assist the court in that exercise. [8] Although the judge found Mr. Xu suffered least from these “testimonial difficulties,” that assessment shifted markedly after she granted the appellants’ application to reopen the trial. In unpublished oral reasons delivered on December 8, 2017 (“supplementary reasons”), the judge described the events leading to the reopening this way: [5]        Shortly after the reasons were issued, Ms. Hu’s counsel learned that Mr. Xu had recently become the registered owner of two houses on the west side of Vancouver, 8556 Oak Street and 2134 West 53 rd Avenue. Searches revealed that he purchased 8556 Oak Street for $1,165,000 on February 18, 2015, two months after final argument completed, and he purchased 2134 West 53 rd for $2,160,000 on August 20, 2015, 10 days after the reasons were issued. The searches also revealed mortgages with Mr. Xu as borrower registered on both properties. [6]        On the face of it, these facts were starkly at odds with the picture Mr. Xu painted of his financial circumstances and prospects at trial only a few months earlier. In particular, he would plainly not have been able to afford such purchases or to qualify for mortgages if this trial description of his financial had been accurate. [9] After setting out a litany of deficiencies in Mr. Xu’s evidence on the reopening, the judge said: [14] The foregoing are but a few examples of Mr. Xu’s many false, or at best, misleading statements regarding his financial circumstances that came to light when the trial was reopened. Mr. Xu made some of these false statements inside the courtroom and he made others outside the courtroom. As discussed below, considered together, they affect my previously expressed view that Mr. Xu suffered the least from testimonial deficiencies as compared to Ms. Hu and Mr. Hu. In my view, what they demonstrate is that he testified in an equally deficient way . [Emphasis added.] [10] With that sorry context, I turn to the grounds of appeal. Analysis 1.       Did the judge err in finding that the Marguerite Street property was subject to an express trust? [11] I begin by noting that, although Mr. Xu pleaded express, constructive, and resulting trusts, he did not pursue an express trust claim at trial. Instead, he argued that he was entitled to an interest in the Marguerite Street property either as a matter of contract or constructive trust . The claim in contract was based on Mr. Hu’s alleged promise to “buy a big house” for Mr. Xu within two years of arriving in Canada if he worked hard in the family seafood business. The constructive trust claim was based on Mr. Xu’s contributions to the seafood business and his maintenance of the Marguerite Street property. On appeal, Ms. Hu and the corporate parties do not take issue with the judge’s conclusion that it was open to her to decide the case before her on the basis of an express trust. I will accordingly proceed on that assumption. [12] Express trusts are established when the certainties of intention, subject, and object have been established, and the property has been vested in the trustee: Suen v. Suen, 2013 BCCA 313 at para. 45. [13] The onus of establishing each of the certainties lies with the party asserting the trust’s existence: McInerney v. Laass, 2015 BCSC 1708 at para. 36. The standard of proof is the usual civil balance of probabilities: Pavlovich v. Danilovic, 2020 BCCA 239 at para. 27. [14] Certainty of intention is a question of fact; certainty of subject and object are questions of mixed fact and Law: Grewal v. Khakh , 2018 BCCA 357 at para. 24. Thus, the trial judge’s conclusion that the requisite certainties were satisfied is reviewable on a standard of palpable and overriding error, except for any extricable questions of law, which are reviewable on a standard of correctness: Housen v. Nikolaisen , 2002 SCC 33. [15] The settlor’s intention is the critical element for the creation of an express trust. As explained by Deschamps J.: “Express or ‘true trusts’ arise from the acts and intentions of the settlor and are distinguishable from other trusts arising by operation of law”: Century Services Inc. v. Canada (Attorney General), 2010 SCC 60 at para. 83. As explained by A. H. Oosterhoff, Robert Chambers & Mitchell McInnes in Oosterhoff on Trusts: Text, Commentary and Materials, 8th ed. (Toronto: Carswell, 2014) at 193–194: Certainty of intention is a question of construction. That intention may be express or implied, it may arise from words or acts . Technical language need not be used. A settlor may create a trust without using the word “trust” and, indeed, without fully understanding the concept of trusteeship. Nor is there any magic in words. intention ultimately is a matter of substance rather than form . Language alone cannot create a trust. [Emphasis added.] [16] However, it is not enough for the purported settlor to intend for another party to benefit; they must have intended for the other party to benefit on trust : Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012) at 143–144. Since Milroy v. Lord (1862), 4 De. G.F. & J. 264—adopted in BC in Re Mee (1971), 23 D.L.R. (3d) 491 (B.C.C.A.); courts have been unwilling to allow imperfect gifts to take effect as a declaration of trust. Therefore, where the intention to benefit is clear, the crucial inquiry is whether the donor intended the property as a gift or as a trust. If the benefit was intended as a gift, the court cannot convert it into a trust. [17] Although no particular form of words is required to constitute a trust, “there must be a clear declaration of trust” to avoid imperfect gifts being given effect as trusts: Paul v. Constance , [1976] 1 W.L.R. 527 (C.A.) at 531. Further, “the donor should have evinced by acts which admit of no other interpretation, that he himself has ceased to be, and that the other person has become, the beneficial owner”: Heartley v. Nicholson (1875), L.R. 19 Eq. 233 (Eng. Ch.) at 242. In Richards v. Delbridge (1874), L.R. 18 Eq. 11, Jessel M.R. said: It is true he need not use the words “I declare myself a trustee,” but he must do something which is equivalent to it, and use expressions which have that meaning, for, however anxious the court may be to carry out a man’s intentions, it is not at liberty to construe words otherwise than according to their proper meaning . [Emphasis added.] [18] Compounding the difficulty of discerning the settlor’s intention, in British Columbia, trusts are specifically exempted from the general requirement that dispositions of land be evidenced in writing: Law and Equity Act, R.S.B.C 1996, c. 253, s. 59(1)(a). [19] The judge in the present case concluded that certainty of intention had been established. She found that Mr. Hu “unambiguously told Ms. Hu and others that the Marguerite Street house was being gifted to her”: at para. 162. She found that Mr. Hu’s goal in creating the trust was to protect his daughter’s interest in the house from claims by Mr. Xu (at para. 164), but concluded he had failed in that objective because a trust property that would be a family asset if owned by a spouse is a family asset: s. 58(3) of the Family Relations Act, R.S.B.C 1996, c. 128 [ FRA ] . [20] Addressing the remaining elements of an express trust, the judge said: [166]    The first certainty is thus established. The same is true of the second and third. The subject of the trust is the equity in the Marguerite Street house. The only person intended to benefit is Ms. Hu, who is its object. Although Mr. Hu referred to Mr. Xu in some of the statements he made, given the nature and circumstances of the family relationship and his other conduct, I find he intended to give the beneficial interest in the house to Ms. Hu alone . [Emphasis added.] [21] In my view, and with great respect to the judge who was faced with a most challenging record, the findings of fact she relied on fall short of establishing the certainties of intention and object. [22] First, the judge found that Mr. Hu told Ms. Hu and others that the Marguerite Street property was being gifted to Ms. Hu. The use of the word “gift” is not conclusive, but it is a very strong indication that a gift was intended. I note as well that there is a presumption that parties usually intend to gift, but rarely intend to constitute themselves as trustees: Oosterhoff at 256. [23] Second, the judge found Mr. Hu told Mr. Xu that the house was for Mr. Xu and Ms. Hu , that Mr. Hu wanted the company to pay the mortgage for tax-saving purposes, and that once the mortgage was paid title would be transferred into Mr. Xu’s and Ms. Hu’s name : at para. 91. Although the judge found these statements did not necessarily reveal Mr. Hu’s true reasons for putting the house in BHIT’s name (at para. 95), in my view, they are consistent with an intention to make a future gift to both spouses and do not support an intention to immediately transfer a beneficial interest to Ms. Hu alone. [24] Third, the judge accepted the evidence of Kong Hung Tsui, a guest at a dinner party hosted by Ms. Hu’s parents at their home shortly after the Marguerite Street house was purchased. Ms. Tsui testified that Mr. Hu told those present he had purchased a house on the west side of Vancouver for his daughter and son-in-law “to live in.” This evidence is ambiguous as to whether the house was being purchased as a gift or being purchased to provide the couple with a rent-free place to live, but in either case, the statement does not support an intention to make only Ms. Hu the object of a trust. [25] Finally, the judge found the following statements made to witnesses Lina Xu and Kangkang Wang supported an intention to give a beneficial interest in the house to Ms. Hu alone: [98] i.          when Mr. Xu’s friend, Mr. [Wang], visited the Marguerite Street house in November 2005 Ms. Hu gave him a tour and told him her parents bought the house and gave it to her and Mr. Xu ; and ii.         over dinner attended by Mr. Xu’s sister, Ms. Xu, in 2005, Mr. Hu remarked on how lucky Mr. Xu and Ms. Hu were because they did not have to pay a mortgage and got to live in a big house and Ms. Fan told Mr. Xu’s mother she didn’t have to worry about her son because “we bought them a big house, best location” . [Emphasis added.] [26] All of the statements relied on refer to the house being intended for both Mr. Xu and Ms. Hu. The judge nonetheless relied on the “nature and circumstances of the family relationship and [Mr. Hu’s] other conduct” to conclude that he intended the beneficial interest to pass only to Ms. Hu: at para.166. The difficulty with this conclusion is that it contradicts the very words relied on to create the trust. In addition, “the nature and circumstances of the family relationship and Mr. Hu’s other conduct” must refer to Mr. Hu’s apparent antipathy towards Mr. Xu. However, the relevant time to determine certainty of objects is the time the trust is created: Champoise v. Prost, 2000 BCCA 426 at para. 16. In the present case, that was October 2005, when the Marguerite Street property was purchased—the same year the couple’s son was born. The judge expressly rejected Mr. Hu’s evidence at trial that he disliked Mr. Xu from the outset and did not speak to him prior to his arrival in Canada: at para. 64. She found that “Mr. Hu wanted Mr. Xu to marry Ms. Hu and come to Canada to work for him. In particular, he wanted a suitable husband for his daughter and a suitable son-in-law with whom to work …”: at para. 69. In my view, Mr. Hu’s change in attitude towards his son-in-law after the date on which the trust was alleged to have been created cannot be used to override the intention he expressed that the house was purchased for both Ms. Hu and Mr. Xu. [27] In my respectful view, the judge’s findings of fact do not establish the certainties of intention and object necessary to establish an express trust. The statements relied on are consistent with either an imperfect gift or an unenforceable gratuitous promise to transfer the house to Ms. Hu and Mr. Xu at a future date: Oosterhoff at 248. More importantly, the words relied on do not amount to a clear declaration of trust that “admit of no other interpretation”: Heartley at 242. [28] I note that the judge did not have direct evidence about whether Mr. Hu intended to create a trust because Mr. Xu did not advance this claim at trial. Nor did the judge have the benefit of submissions on the issue. [29] Because all three certainties must be proved to establish an express trust, it is not necessary to consider whether certainty of the subject matter of the trust could be established given the ambiguity in whether Mr. Hu’s words referred to the entire property or only the equity in the property. [30] Nor is it necessary to address the corporate appellants’ submission that the judge erred in finding that BHIT purchased the Marguerite Street property for Mr. Hu as his agent, and that his declarations were therefore capable of causing BHIT to hold the beneficial interest in trust for Ms. Hu (at para. 162). The corporate appellants contend that a corporation can act only by way of resolution, and as no corporate resolutions or other documentary evidence supported an intention on the part of BHIT to grant a beneficial interest in the property to Ms. Hu, no trust could have been created, let alone through the statement of a 50% shareholder. [31] In conclusion on this ground of appeal, I would set aside the declaration that BHIT held the Marguerite Street property in trust for Ms. Hu. [32] As a result of that conclusion, a number of other grounds of appeal fall away. Following trial, the Marguerite Street property was sold in February 2018, with the proceeds of sale held in trust pending the resolution of these proceedings. The sale triggered tax obligations for BHIT in the range of 2 to 3.5 million dollars. The parties applied for directions: first, as to the responsibility of the various parties for the tax obligations; and second, as to the responsibility for expenditures of BHIT on Marguerite Street while the couple resided there, including property taxes, insurance, and renovation expenses. A chambers judge heard the applications, and ordered Ms. Hu and Mr. Xu to pay for the taxes and expenses out of the sale proceeds as family debt before dividing the remaining funds. Mr. Xu, in his cross-appeal, challenges this order, but the parties agree that in the event it is determined that BHIT held both the legal and beneficial title to the Marguerite Street property, (as it now has been), Mr. Xu will not be required to pay taxes and expenses relating to that asset. It follows that Mr. Xu’s appeal from that order must be allowed and the order set aside. [33] Similarly, the appeals from the order apportioning the Marguerite Street property—Ms. Hu having received 75% on the reopening and each of Ms. Hu and Mr. Xu on appeal seeking up to 100% of that asset—are no longer in issue, and the orders relating to division of that asset should be set aside. [34] I turn now to the remaining grounds of appeal. 2.       Did the judge err in refusing to allow Mr. Xu to claim a constructive trust in the corporate appellants? [35] On appeal, Mr. Xu argues that his salary was not commensurate with his contributions to the family business. He contends the corporate appellants were unjustly enriched by his work and, therefore, that he is entitled to a constructive trust interest in the corporate appellants. This ground of appeal can be dealt with summarily. [36] The judge began her judgment by grappling with which of the claims advanced at trial could be addressed. She ruled that Mr. Xu could not pursue a constructive trust remedy against the corporations because he had not pleaded an unjust enrichment claim in relation to BHIT and VIE and had, in fact, abandoned those claims by consent shortly before the trial commenced: at para. 18. On appeal, Mr. Xu does not argue that the judge erred in so holding; instead, he attempts to argue the merits of the unjust enrichment claim for the first time in this Court—a course that is patently not open to him. 3.       Did the judge err in finding the insurance policy on Ms. Hu’s life to be a family asset? [37] The judge found that a whole life insurance policy owned by Ms. Hu at the time of her marriage was a family asset under s. 58 of the FRA because it was ordinarily used for a family purpose: at para. 175. [38] Ms. Hu contends the judge erred in so finding because BHIS paid the premiums, and her parents were the named beneficiaries, not Mr. Xu. [39] I see no error in the judge’s finding. Because this was a whole life policy, it had monetary value that increased over time and could be cashed in at any point—as it eventually was for $109,936. As the owner of the policy, Ms. Hu was able to make use of that asset whenever she chose. There was accordingly evidence to support the judge’s finding that “the policy provided Ms. Hu, and by extension, her husband, with a measure of security,” which was a family purpose within the meaning of s. 58 of the FRA . 4.       Did the judge err in finding that properties acquired by Mr. Xu after the marriage ended were not family assets? [40] Ms. Hu says that the judge erred in finding that she was not entitled to a 50% share of properties acquired by Mr. Xu when the first trial came to a close and shortly thereafter. In issue are three properties in Vancouver. First, a property held in Mr. Xu’s mother’s name at 8568 Oak Street, purchased in October 2014 for $1,090,000; second, a property acquired in Mr. Xu’s name at 8556 Oak Street in February 2015 for $1,165,000; and third, a property acquired in Mr. Xu’s name at West 53rd Avenue in August 2015 for $2,160,000. Mr. Xu is registered as the borrower on both of the latter properties’ mortgages: supplemental reasons at para. 5. [41] On the reopening to address these properties, the judge was once again faced with an unsatisfactory evidentiary record. She noted that Mr. Xu did not call any witnesses to corroborate his version of events that the properties belonged to his mother and his new romantic partner, Ms. Liu. The judge described Mr. Xu’s testimony as follows: [17]      Mr. Xu testified further that he met Ms. Liu in 2014 but they did not become common-law partners until January 2015. He described Ms. Liu as a very shrewd businesswoman. He went on to say that before they were common-law partners, he learned of a good development prospect in Marpole based on new zoning, and he told Ms. Liu about it. As a result, he said, she decided to purchase 8556 Oak Street, which was near the property at 8568 Oak that his mother already owned. As to 8568, Mr. Xu adamantly denied that it was actually his property and being held in trust by his mother for his benefit. [18]      Mr. Xu went on to testify that Ms. Liu asked him to purchase 8556 Oak on her behalf and provided him with the funds to do so. She later did substantially the same thing, he said, with respect to 2134 West 53 rd . She also caused funds for this purpose to be wired in to their joint accounts by various of her employees in China or family members. She did this, he said, in order to get around Chinese currency controls. [19]      In the result, Mr. Xu said he acquired and held both properties in trust entirely for the benefit of Ms. Liu. As already noted, he also said that the properties were purchased in his name even though the beneficial interest was Ms. Liu’s because CIBC representatives told them as a non-resident that Ms. Liu could only hold one real property in her name. [42] The judge was unable to determine the precise extent to which 8556 Oak Street and 2134 W. 53rd Avenue were purchased with funds from Ms. Liu, but the judge was satisfied on the whole of the evidence that Ms. Liu provided at least the majority of the funding for the acquisitions: supplemental reasons at para. 24. As a result, the judge concluded that, in large measure, Mr. Xu holds the properties at 8556 Oak Street and West 53rd Avenue for the benefit of Ms. Liu; although, the judge was also satisfied that he received, at a minimum, some form of interest in them in exchange for the use of his name on title. [43] Drawing an adverse inference against Mr. Xu for failing to call his mother as a witness despite her being available for that purpose, the judge was satisfied that 8568 Oak Street had been purchased in October 2014 for Mr. Xu’s benefit. Again, she was unable to determine the precise extent of that benefit or how and why the arrangement had been made as it was. [44] Although the judge stated that she was unable to determine whether the three properties were family assets, this amounts to a finding that Ms. Hu had not met the burden of proving that the properties were acquired with family assets so as to warrant a compensation order under s. 66(2)(c) of the FRA. Under the FRA, assets acquired by a spouse after the “triggering event,” are not “family assets”: Foster v. Foster , 2007 BCCA 83 at paras. 34–37. In the present case, the triggering event (a declaration under s. 57 of the FRA that Ms. Hu and Mr. Xu had “no reasonable prospect of reconciliation with each other”) occurred in April 2012, long before Mr. Xu took title to the properties. [45] The judge did, however, take Mr. Xu’s changed financial circumstances into account. She increased Ms. Hu’s share of the Marguerite Street property from 50% to 75% and increased the income attributable to Mr. Xu for child support and special expenses from $45,000 to $75,000 per year. [46] Although Ms. Hu will no longer receive an increased share in the Marguerite Street property, I would not disturb the judge’s decision to leave intact her order dividing all other family assets equally between the former spouses. It is apparent the judge was doing the best she could with an inadequate evidentiary record and unreliable testimony. Parties who come to court intending to dissemble and deceive cannot expect perfect justice. In these circumstances, I would not accede to this ground of appeal. 5.       Did the judge err in ordering the parties to bear their own costs? [47] In the court below, all parties sought special costs against the opposing parties, pointing to litigation misconduct on the part of the others. In addressing this question, the judge said: [38] I conclude that all concerned engaged in litigation misconduct in that each of Mr. Xu, Ms. Hu and Mr. Hu sought to mislead the court in various ways and provided unreliable testimony. These actions prolonged the trial and made the resolution of all the claims extraordinarily difficult. In the end, success was divided, although Mr. Xu did succeed to some extent on some major issues such as the validity of the Chinese divorce agreement and the existence of the express trust in the equity of the Marguerite Street house. Nevertheless, I conclude that the litigation misconduct of all concerned disentitles all of them to costs , and I order that all of the parties bear their own costs. [Emphasis added.] [48] Costs orders are discretionary decisions that are afforded deference on appellate review. I see no reason to interfere with the judge’s exercise of her discretion in this case. Indeed, for the same reasons, I would not award costs of the appeals to any party as an expression of this Court’s censure of the parties’ cavalier disregard for the oaths and affirmations they made to tell the truth. Disposition [49] The appeals are allowed in part: The declaration at 8(a) of the December 2017 order that BHIT holds the Marguerite Street property in trust for Yuenyuen Hu is set aside, as is paragraph 10(a) of the order dividing that beneficial interest. The cross appeals are allowed in part by setting aside the order of the chambers judge made October 16, 2019, including paragraph 4 relating to costs of the chambers hearing. Each party is to bear their own costs of the appeals and cross appeals. “The Honourable Madam Justice Fenlon” I AGREE: “The Honourable Mr. Justice Hunter” I AGREE: “The Honourable Mr. Justice Butler”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Kaban Resources Inc. v. Goldcorp Inc., 2021 BCCA 6 Date: 20210108 Docket: CA47032 Between: Kaban Resources Inc. Appellant (Plaintiff) And Goldcorp Inc., Goldcorp Holdings (Barbados) Ltd., and Guatemala Holdings (Barbados) Limited Respondent (Defendants) Before: The Honourable Mr. Justice Grauer (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated September 4, 2020 ( Kaban Resources Inc. v. Goldcorp Inc. , 2020 BCSC 1307, Vancouver Docket S165822). Counsel for the Appellant (via videoconference): R.D. Gibbens, Q.C. Counsel for the Respondents (via videoconference): A. Cocks Place and Date of Hearing: Vancouver, British Columbia December 21, 2020 Place and Date of Judgment: Vancouver, British Columbia January 8, 2021 Summary: The respondents apply for security for costs of the appeal and the proceedings below in the respective amounts of $16,017.95 and $163,851.14. The respondents seek an order that the appeal be stayed pending the posting of security for costs and that the respondents be at liberty to apply to have the appeal dismissed as abandoned should the appellants fail to post security. Trial costs is this matter have not yet been assessed. Held: the applications for security for costs of the appeal and trial are allowed, but not in the amount sought by the respondents. Security for costs of the appeal are ordered in the amount of $11,200. The appellant led no evidence that would demonstrate that an order for security for costs would prevent it from pursuing this appeal, and failed to meet its onus of demonstrating that it would not be in the interests of justice to order security for costs of the appeal. Security for costs of the trial are also ordered, but in the amount of $60,000. The manner in which the appellant pursued its claim in the proceedings below caused the respondent to obtain and deliver a costly expert report on the question of damages. Now, the parties cannot proceed to assess trial costs without waiving privilege over the expert report, practically preventing the respondents from pursuing its remedies from trial. As such, the respondents have established real prejudice and met the onus of demonstrating that it is in the interests of justice to order partial security for costs of the trial. The appeal is stayed for 30 days to permit the appellants time to post the security. In the event the appellants fail to post the security ordered, the respondents are at liberty to apply to have the appeal dismissed as abandoned. Reasons for Judgment of the Honourable Mr. Justice Grauer: Introduction [1] The appellant, Kaban Resources Inc, has brought this appeal from the judgment of Mr. Justice Voith, then of the Supreme Court, dismissing its claim after a summary trial.  Justice Voith’s reasons for judgment are indexed at 2020 BCSC 1307. [2] The respondents, whom I shall describe collectively as “Goldcorp”, now apply under sections 24(1) and 10(2)(a) and (b) of the Court of Appeal Act , RSBC 1996, c 77, for an order requiring the appellant to post security both for the costs of the appeal, and for their costs of the proceedings below.  Goldcorp seeks security in the amount of $16,017.95 for a one-day appeal, and in the amount of $163,851.14 for its trial costs (in excess of existing security), and asks that the appeal be stayed pending deposit of the amounts sought. Goldcorp also seeks the costs of this application payable forthwith. Background [3] The appellant’s claim against Goldcorp was for damages for the wrongful repudiation of a contract between the parties.  To summarize matters very briefly, the parties had signed a letter agreement on February 3, 2016, providing for the transfer of mining assets of Goldcorp in Guatemala on various terms and conditions.  On March 14, 2016, the appellant delivered an agreement to Goldcorp that purported to comply with the terms and conditions of the letter agreement, but involved a new party, Fortuna Silver Mines Inc., not mentioned in the letter agreement.  Goldcorp had something to say about this, responding by letter on March 17, 2016.  On March 21, 2016, Kaban sent an email to Goldcorp asserting that the March 17 letter constituted a repudiation of the February 3 letter agreement, and advising that Kaban accepted the repudiation, and considered the letter agreement to be at an end. [4] As I will discuss in more detail below, at a relatively early stage in the Supreme Court proceedings, the appellant was ordered to post security for costs in the amount of $60,000.  It did so.  The matter was later set for trial by jury, and ultimately came before Justice Voith on Goldcorp’s summary trial application. [5] As Justice Voith noted at para 5, the application raised four issues: i. Is this application suitable for disposition under Rule 9-7? ii. Did the Letter Agreement contain various implied terms? iii. Was there any obligation on Goldcorp to consent to the Fortuna Agreement? and iv. Did the March 17 Letter constitute a repudiation of the Letter Agreement? [6] The parties were agreed as to the first issue: the application was suitable for disposition by way of summary trial.  As to the rest, Justice Voith noted at para 6 that each issue was independent.  Goldcorp would succeed if the answer to question (ii) were ‘yes’, or if the answer to either of questions (iii) or (iv) were ‘no’.  The judge concluded that the answer to (ii) was ‘yes’, the answer to (iii) was ‘no’, and it was unnecessary to answer question (iv). [7] Accordingly, the judge dismissed the appellant’s claim with costs.  Goldcorp subsequently applied for double costs under Rule 9-1(5)(b) of the Supreme Court Civil Rules .  That application was dismissed in reasons delivered December 15, 2020, and indexed as 2020 BCSC 1982. [8] I turn next to consider Goldcorp’s application for security for the costs of this appeal.  I will then consider its application for security for its trial costs. Security for the costs of the appeal [9] The relevant considerations have been discussed in many cases.  I will quote from one, the reasons of Madam Justice D. Smith (in Chambers) in Arbutus Bay Estates Ltd v Canada (Attorney General) , 2017 BCCA 133: [17] The appellant against whom security is sought bears the onus of showing why security should not be required: Creative Salmon Company Ltd. v. Staniford , 2007 BCCA 285 at para. 9. The ultimate question is whether the order would be in the interests of justice: Lu v. Mao , 2006 BCCA 560 at para. 6. The following relevant considerations were set out in Lu at para. 6: (a) the appellant’s financial means; (b) the merits of the appeal; (c) the timeliness of the application; and (d) whether the costs will be readily recoverable. [18] The appellant’s financial position is the principal basis on which an order for some, all, or none of the security for appeal costs is made. See Zen v. M.R.S. Trust Company (1997), 88 B.C.A.C. 198 at para. 18. It is a discretionary order. Courts have also distinguished between corporate and individual plaintiffs, generally treating corporate plaintiffs with less flexibility. [10] As Justice Smith observed, the onus is on the appellant to establish that the interests of justice require that security not be ordered. [11] There is no doubt that Goldcorp has brought this application in a timely manner.  Accordingly, the question really comes down to the appellant’s financial position and the merits of its appeal.  These need to be balanced in order to ensure that the interests of justice are not frustrated by an order for security of costs inhibiting a meritorious appeal. [12] In this case, it is relevant to note that the appellant is a shell company with no active business.  If it has any exigible assets, or other means of securing costs, it has declined to adduce any evidence of such, though repeatedly invited to do so by Goldcorp in order to avoid this application.  It has been able to raise funds, including $60,000 to post in the court below to secure Goldcorp’s costs there, but that is quite a different thing from having the ability to satisfy a judgment of costs against it.  No one connected with the appellant has come forward to undertake to cover costs. [13] In essence, the appellant rests its opposition to the application on what it maintains is a meritorious appeal.  It has not, however, led evidence to indicate that if it is obliged to post security for the costs of the appeal, it will be unable to proceed. [14] I am satisfied that the appellant should be ordered to post security for Goldcorp’s costs of this appeal.  The appellant has failed to meet the onus upon it of demonstrating that it would not be in the interests of justice to make the order. [15] With respect to the merits of the appeal, I would not suggest that the appeal is bound to fail.  Nevertheless, the grounds it raises attract, prima facie , a deferential standard.  Though they are framed as errors of law, they raise questions of contractual interpretation.  But even if properly described as errors of law, the appellant is obliged to charge uphill given the trial judge’s findings.  An additional ground of appeal, alleging that the judge created “a reasonable apprehension of bias through … engaging in ad hoc judicial moralism” also faces the significant hurdle of a heavy burden, given the presumptions of impartiality and judicial integrity. [16] The question then becomes, how much should the appellant be obliged to post as security for Goldcorp’s costs of the one-day appeal?  Goldcorp’s draft bill of costs seeks the maximum for the items relating to the preparation of the factum and preparation for the hearing of the appeal.  Given the nature of the appeal, I consider that unlikely to be achieved on an assessment.  Its expected disbursements include the sum of $2,850 for transcripts, which will be disputed in the context of a summary trial, where the evidence was all in affidavits.  In the circumstances, I would consider $8,000 for costs and applicable taxes, and $3,200 for disbursements and taxes, to be a fair estimate for present purposes.  Accordingly, I order the appellant to post $11,200 to secure Goldcorp’s costs of this appeal. Security for trial costs [17] As Justice Smith observed in the Arbutus Bay Estates case at para 16, the principles relating to an application for security for the costs of trial differ from those relating to security for the costs of the appeal.  Most importantly, the onus flips from the appellant to the respondent.  In para 19, Justice Smith said this: [19]      The principles governing the exercise of discretion in awarding security for trial costs are set out in Fat Mel’s Restaurant Ltd. v. Canadian Northern Shield Insurance Company (1993), 76 B.C.L.R. (2d) 231 (C.A.); and Kropp v. Swanaset Bay Golf Course Ltd. (1997), 29 B.C.L.R. (3d) 252 (C.A). They include: (a)      The onus is on the applicant to show that it is in the interest of justice to order posting for security of trial costs; (b)      The applicant must show prejudice if the order is not made; and (c)      In determining the interests of justice the chambers judge should consider the merits of the appeal and the effect of such an order on the ability of the appellant to continue the appeal. See Bronson v. Hewitt, 2012 BCCA 268 at para. 13. [18] A relevant consideration is the fact that, generally, in relation to collecting its trial costs, the respondent will be in no worse a position by reason of the appeal than it was before the appeal.  It follows that an important question is whether the appellant’s pursuit of the appeal negatively alters Goldcorp’s ability to recover sums found by the trial court to be owing to it (for instance, by the appellant obtaining a stay pending appeal): see, for instance, D Bacon Holdings Ltd v Naramata Vines Inc , 2010 BCCA 427 at paras 25–26; Agent E v Canada (Attorney General) , 2018 BCCA 492 at para 17; and EB v British Columbia (Child, Family and Community Services) , 2020 BCCA 263 at para 29. [19] The appellant contends that Goldcorp has demonstrated no such negative effect here, and indeed already has the benefit of security for its trial costs in the amount of $60,000.  Moreover, the appellant points out, Goldcorp has yet to have its trial costs assessed, a step that is usually expected unless the interests of justice dictate otherwise: Arbutus Bay Estates at para 20. [20] Goldcorp maintains that it has demonstrated a negative effect, and real prejudice.  I agree.  The question is whether it is sufficient to support the amount of security it requests. [21] Goldcorp points to the manner in which the appellant pursued its claim below.  Initially, it indicated that it would pursue matters in an economical manner.  When Goldcorp raised the prospect of an application for security for costs, the appellant sought to sever the questions of liability and quantum.  It was in this context that it was ordered to pay security in the amount of $60,000. [22] But, as Goldcorp notes, that is not what happened.  Instead, the appellant set the matter down for a six-week jury trial on both liability and quantum, set for the fall of 2020.  Although Goldcorp set its summary trial application down for hearing in August 2020, it was obliged, it asserts, to obtain and deliver a lengthy expert report on the question of damages, given the pending jury trial. [23] The expense related to this expert report comes to a total of just over $168,000.  This cost was not in contemplation at the time Goldcorp applied for security for its trial costs, because the trial was then expected to be on liability alone. [24] Now, because of this appeal, Goldcorp is not in a position to disclose its expert file for the purposes of supporting this expense, because to do so would waive privilege when the appellant seeks to have the case returned to the Supreme Court for a trial on damages—the subject of the expert report. [25] In these circumstances, I agree that prejudice arises.  Because of the appellant’s change in tactics (which I do not criticize, but which has consequences), Goldcorp has incurred a hefty expense that was not anticipated when it first sought to secure its costs.  Now, because of the appeal, it cannot proceed to assess those costs without waiving privilege. The practical effect is much like a stay, since the respondent is practically prevented from pursuing its remedies in the trial court, all in the context of an appellant who appears to be costs-proof (compare Chung v Shin , 2017 BCCA 355 at paras 33–35). [26] But the fact remains that the appropriateness of the expert witness fee, and the reasonableness of incurring it at the time it was incurred, are in issue.  It is by far the largest component of Goldcorp’s unassessed bill of costs for the proceeding below. [27] It is, of course, open to me to order full security as requested, partial security or no security at all.  Given all of the factors I have discussed, I consider that it is in the interests of justice to require the appellant to post an additional amount to secure Goldcorp’s trial costs—but not the full amount requested by Goldcorp, particularly without an assessment.  I conclude that requiring the appellant to post the further sum of $60,000 would be appropriate. Disposition [28] Within 30 days, the appellant shall post the sum of $11,200 as security for Goldcorp’s costs of this appeal. [29] Within 30 days, the appellant shall post the sum of $60,000 as further security for Goldcorp’s costs of the proceedings in the Supreme Court. [30] The appeal is stayed pending the posting of security as ordered. [31] Goldcorp will be at liberty to apply to have the appeal dismissed as abandoned in the event the appellant fails to comply with this order. [32] Goldcorp seeks the costs of this application payable forthwith, in any event of the cause.  In the circumstances, given that the appeal may continue, I award Goldcorp the costs of this application in the cause.  I note, moreover, that Goldcorp’s draft bill of costs already includes the costs of preparation for and attendance at this application.  In the circumstances, an order requiring the appellant to pay Goldcorp the costs of this application forthwith in any event of the cause, as Goldcorp requests, would be equivalent to requiring the appellant to pay the application costs twice: once forthwith, and a second time when posting the security that has now been ordered. “The Honourable Mr. Justice Grauer”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Czechowski, 2021 BCCA 19 Date: 20210108 Docket: CA45999 Between: Regina Respondent And Jeremy Robert Czechowski Appellant Restriction on publication: A publication ban has been imposed under ss. 486.4(1) and 486.4(2) of the Criminal Code restricting publication, broadcasting or transmission in any way of any information that could identify the complainant or a witness. This publication ban applies indefinitely unless otherwise ordered. Restriction on publication: Pursuant to s. 16(4) of the Sex Offender Information and Registration Act [ SOIRA ], no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA . Before: The Honourable Madam Justice Saunders (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated May 16, 2018 ( R. v. Czechowski , 2018 BCSC 1646 , Kelowna Docket 84432-2 ). Oral Reasons for Judgment Counsel for the Appellant (via teleconference): M.A. Nathanson Counsel for the Respondent (via teleconference): M. Vojvodic Place and Date of Hearing: Vancouver, British Columbia January 4, 2021 Place and Date of Judgment: Vancouver, British Columbia January 8, 2021 Summary: Application for bail pending disposition of the applicant’s application for leave to appeal from conviction to the Supreme Court of Canada. The application is opposed by the Crown on the basis the applicant has not established that his detention is not necessary in the public interest (s. 679(3)(c) of the Criminal Code). The proposed grounds of appeal relate to this court’s application of the curative proviso in s. 686(1(b)(iii) where two serious errors of law have been identified. Held: Application allowed on terms. The components of the s. 679(3)(c) criterion are public safety and public confidence in the administration of justice. The public confidence component balances enforceability versus reviewability. Given the degree of arguability of the proposed grounds of appeal and their possible national import, the proposed leave to appeal application has sufficient potential to weigh in favour of release. That potential, combined with the ability of strict terms of release to address public safety issues and the character of the proposed appeal as an initial review of the issues raised, favours release pending determination of the leave application. [1] SAUNDERS J.A. : Mr. Czechowski applies pursuant to s. 679(1)(c) of the Criminal Code , R.S.C. 1985, c. C‑46 for judicial interim release (bail) pending his s. 691 application for leave to appeal his convictions to the Supreme Court of Canada. He was convicted at trial by judge alone on May 16, 2018 of four offences arising from a sexual encounter between himself and the complainant in February 2016: sexual assault causing bodily harm, unlawful confinement, attempting to choke or suffocate or strangle, and uttering threats. On April 5, 2019, he was sentenced on these offences to five years’ incarceration, in total. [2] The applicant appealed his convictions to this court. Pending his appeal, he was given judicial interim release, as he had between the time of his conviction and sentencing, and indeed time before his conviction. In August 2020, while this court’s decision on his conviction appeals was reserved, the Crown applied to revoke his bail because he had been charged with uttering threats in an unrelated incident. Mr. Justice Butler dismissed that application in reasons indexed at 2020 BCCA 237, but imposed more restrictive terms of release. [3] The applicant’s conviction appeal was dismissed on October 13, 2020, by reasons indexed as 2020 BCCA 277. [4] The issues at trial related to consent in respect of sexual activity between the applicant and the complainant. The judge accepted the complainant’s testimony that she had not consented to any of the sexual activity and found, in the alternative, that she had no capacity to consent in any event. In so finding, the judge relied upon expert evidence from a medical doctor about the complainant’s memory and referred to the doctor’s evidence of a prior consistent statement made by the complainant at the hospital. The trial record included a body of evidence of physical injuries sustained by the complainant in the encounter, and words said by her in communications between the police and the complainant shortly after she left the residence. [5] Before this court, the applicant raised seven grounds of appeal. This court found that the trial judge had made two serious errors of law, the first in admitting and relying on expert evidence from a physician that went beyond the physician’s expertise, and the second in considering the complainant’s prior consistent statement to the physician. This court then considered the application of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code in the circumstances of the two errors of law identified. This court held that evidence of the injuries to the complainant, the doctor’s assessment of the injuries, and the complainant’s interactions with police immediately after the incident were inconsistent with consensual sex and in conclusion found that circumstantial evidence against the applicant “overwhelmingly established non‑consent” apart from the complainant’s testimony. It dismissed the appeal on the basis conviction would be inevitable upon a retrial. [6] In his application for leave to appeal to the Supreme Court of Canada, the applicant contends that this court has “watered down” the standard applicable in application of the curative proviso, contrary to jurisprudence of the Supreme Court of Canada such as R. v. Sarrazin , 2011 SCC 54 and R. v. Van , 2009 SCC 22. [7] He says that this court selectively looked to evidence that supported the Crown’s case and ignored evidence capable of raising a reasonable doubt, diminishing the high standard for application of the curative proviso and he refers to jurisprudence from other provinces that he says has rejected the use of the proviso in similar circumstances. Further, the applicant contends that this court reversed the onus of proof, contrary to ss. 7 and 11(d) of the Charter and that the results violate his right to a jury trial under s. 11(h) of the Charter . [8] Section 679(3) sets out the criteria that must be established by an applicant to obtain judicial interim release: (3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (a) the appeal or application for leave to appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. [9] Each of these three criteria must be met on a balance of probabilities: R. v. Oland , 2017 SCC 17 at para. 17. [10] On this application, the applicant says that he has met all three criteria. [11] The Crown agrees that the applicant has met the first two criteria, but says that the applicant has not established that his detention is not necessary in the public interest. In particular on the third criterion, the Crown says that application for leave to appeal is fundamentally flawed because it seeks to undermine jurisprudence from the Supreme Court of Canada wherein the curative proviso has been applied to sustain convictions based on a subset of the evidence adduced at trial, and that the applicant has not raised any issues of national importance. [12] I will address the three criteria separately – the first two in short compass. [13] It is accepted that the merits assessment of the first criterion, whether the application is frivolous, is a low bar. On a leave application the merits will include consideration of whether the proposed appeal could be of national importance: R. v. Pires , 2004 BCCA 91. This is in the context, however, of the low bar. [14] In light of the low bar and the articulated proposed grounds of appeal, I am satisfied that the applicant has met this first criterion. [15] The second criterion engages the likelihood that the applicant will surrender himself into custody in accordance with the terms of the order. I agree that on the materials before us, there is ample evidence to satisfy this criterion. [16] The real question before me is whether the applicant has satisfied the third criterion: has he established that his detention while he awaits the decision in his leave application is not necessary in the public interest. [17] There are two components to the third criterion, public safety and public confidence in the administration of justice: Oland at para. 23. The Crown says that the public safety consideration weighs against release because he has been charged with uttering threats that necessitated a further tightening of his bail conditions before this court dismissed his conviction appeal. [18] I recognize this concern but note that the charge of uttering threats is still in early stages of the trial process, and Justice Butler considered the tightened bail conditions sufficiently met the public safety risk that charge indicated. There is no evidence of a failure to meet the tightened conditions. While this feature is troubling, in light of the history in this court on the prior applications I cannot say, by itself, it is determinative. [19] This application therefore comes down to a question of public confidence in the administration of justice. In Oland , the Supreme Court of Canada said, at para. 47, concerning public confidence: [47]      ... is to be measured through the eyes of a reasonable member of the public. This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values. [20] The question of public confidence in turn engages two competing interests which must be balanced, the enforceability interest and the reviewability interest. [21] In R. v. Boima , unreported, (5 November 2018), Vancouver CA44501 (B.C.C.A.), Madam Justice Dickson described enforceability and reviewability in these terms: [21]      Enforceability relates to the public interest in the enforcement of judgments and in denying bail to a person convicted of a serious offence. It captures the gravity of the offence, the circumstances surrounding the commission of the offence and the potential length of imprisonment: Oland at para. 38. The fact that an appellate court upheld a guilty verdict means that the pendulum swings towards enforceability and away from bail pending further review: R. v. Drabinsky , 201 1 ONCA 647 at para. 10 (Doherty J.A. in Chambers). [22]      Reviewability relates to the public interest in the review and correction of errors in judgments: R. v. Mapara , 2001 BCCA 508 at para. 32. In the appellate context, the strength of the case factor translates into the strength of the grounds of appeal and informs reviewability: Oland at para. 40. Using their experience and knowledge, judges should form a preliminary assessment of the strength of the grounds of appeal to see if they "clearly surpass the not frivolous standard": Oland at paras. 44–45. [22] In respect of enforceability, the Supreme Court of Canada in Oland said: [37]      In assessing whether public confidence concerns support a pre-trial detention order under s. 515(10)(c), the seriousness of the crime plays an important role. The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released on bail pending trial. So too for bail pending appeal. In considering the public confidence component under s. 679(3)(c), I see no reason why the seriousness of the crime for which a person has been convicted should not play an equal role in assessing the enforceability interest . [38]      With that in mind, I return to s. 515(10)(c), where Parliament has set out three factors by which the seriousness of a crime may be determined: the gravity of the offence, the circumstances surrounding the commission of the offence, and the potential length of imprisonment (s. 515(10)(c)(ii), (iii) and (iv)). In my view, these factors are readily transferable to s. 679(3)(c) — the only difference being that, unlike the pre-trial context, an appeal judge will generally have the trial judge’s reasons for sentence in which the three factors going to the seriousness of the crime will have been addressed. As a rule, the appeal judge need not repeat this exercise . [39]      I pause here to note that while the seriousness of the crime for which the offender has been convicted will play an important role in assessing the enforceability interest, other factors should also be taken into account where appropriate. For example, public safety concerns that fall short of the substantial risk mark — which would preclude a release order — will remain relevant under the public confidence component and can, in some cases, tip the scale in favour of detention: R. v. Rhyason , 2006 ABCA 120, 208 C.C.C. (3d) 193, at para. 15; R. v. Roussin , 2011 MBCA 103, 275 Man. R. (2d) 46, at para. 34. The same holds true for lingering flight risks that do not rise to the substantial risk level under s. 679(3)(b). By the same token, the absence of flight or public safety risks will attenuate the enforceability interest. [Emphasis added.] [23] In respect of the reviewability interest, the strength of the appeal or application for leave to appeal is important, beyond the “not frivolous” standard of the first criterion in s. 679(3): see Oland at para. 44; R. v. Porisky , 2012 BCCA 467; R. v. Mapara , 2001 BCCA 508. Here also the level of the legal proceedings is significant. [24] In Drabinsky , Justice Doherty considered an application for judicial interim release of an applicant sentenced to five years’ incarceration on two counts of fraud who had applied to the Supreme Court of Canada for leave to appeal from conviction. All grounds of appeal had been rejected by the appellate court. In dismissing the application for judicial interim release, Justice Doherty gave priority to the enforceability interest in recognition that the grounds of appeal advanced had already been reviewed and rejected on appeal and there was no further right to an appeal. Last, he considered that the length of sentence in that case meant that there would still be a large remainder of the sentence to be served after the leave application was determined. [25] A different result obtained in Boima . In Boima , Madam Justice Dickson observed that the applicant’s application for leave to appeal amounted to an attempt “to push beyond the current boundaries of the law”. She then observed that sometimes boundaries are pushed successfully, and that the length of sentence imposed in the case before her meant that almost all of the sentence would have been served before the leave application would be known. This latter factor weighed strongly in her view that, combined with the absence of a flight risk and the absence of a concern for public safety, the reviewability interest outweighed the enforceability interest. [26] The case before me is between the circumstances of Boima and those of Drabinsky . Unlike Boima , the applicant will not have served all or nearly all of the sentence by the time the leave application is decided. And unlike Drabinsky , not all of the applicant’s grounds of appeal were rejected by this court. Indeed, unlike Drabinsky, in this case two serious errors of law were found before this court applied the curative proviso. By definition the application of the curative proviso, the focus of the applicant’s leave application, has not been the subject of appellate review. [27] I consider that the reviewability interest here has more force in the circumstances of this application than was the case in Drabinsky as this case is more akin to the situation of an appellant advancing his first appeal. As to the merits of the application for leave to appeal, there is difficulty inherent for a justice of this court determining the degree of likelihood that leave to appeal will be granted from a judgment of this court. What I can say is that the grounds of appeal appear to have some substance beyond the non-frivolous standard, and engage issues that the Supreme Court of Canada could consider are of national importance. While I would not dip my toe into predicting the outcome of the application for leave, what I know of the application for leave to appeal suggests it is a real step beyond one “doomed to fail”. [28] I recognize that the offences of which the applicant has been convicted are ones of serious interference with a person. Yet the seriousness of an offence does not preclude bail. Indeed Mapara is a case in which the applicant obtained bail although he had been convicted of first degree murder. [29] On balance, considering the nature of the challenge to this court’s order, I conclude that the reviewability interest marginally outweighs the enforceability interest, and that in the circumstances presented, the applicant has met the requirement of demonstrating that his detention pending determination of his application to the Supreme Court of Canada is not necessary in the public interest, provided that the public safety concerns may be addressed through restrictive terms similar to those imposed by Justice Butler. [30] I would allow the application on terms. [Discussion establishing terms (a) through (r).] “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Li, 2021 BCCA 3 Date: 20210108 Docket: CA47049 Between: Regina Respondent And Wei Li Appellant Before: The Honourable Madam Justice Newbury (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated October 18, 2019 ( R. v. Li , Victoria Docket 172348‑1). The Appellant appearing in person (via teleconference): Wei Li Counsel for the Respondent (via teleconference): S. Gillespie Place and Date of Hearing: Vancouver, British Columbia December 18, 2020 Place and Date of Judgment with Written Reasons to Follow: Vancouver, British Columbia December 18, 2020 Place and Date of Written Reasons Vancouver, British Columbia January 8, 2021 Summary: Application for appointment of counsel under s. 684 of Criminal Code dismissed. Proposed appeal had little chance of success and chambers judge was not satisfied that the appellant, who had been released from prison, was completely unable to work or earn money. More importantly, it was not in the interests of justice to permit him to pursue an appeal at public expense in order to present a completely different version of events from the version he had testified to at trial. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] After hearing Mr. Li’s application in chambers for the appointment of counsel under s. 684 of the Criminal Code , I stated that the application was dismissed, for reasons to follow. These are the reasons. Evidence at Trial [2] Mr. Li was convicted on October 18, 2019 by a judge, sitting with a jury, of arson contrary to s. 434.1 of the Code . The fire occurred in a duplex located in Esquimalt owned by Mr. Li., who had lived for many years in Quebec but had stayed in the duplex from when he purchased it in the fall of 2016 until April 2017. He had then returned to Quebec. However, due to problems in the condition of the duplex, he came to Esquimalt again in late September for a visit. At the time of the fire, the upper suite of the building had been rented to a Mr. Montgomery. The lower suite was empty, having been vacated by the previous tenant. The other half of the duplex was owned by a Ms. Brett. [3] Relations between Mr. Li and Mr. Montgomery had become very fraught by the last few days of September. Mr. Li had served Mr. Montgomery with an eviction notice for non‑payment of rent but the tenant was appealing the notice — a process Mr. Li rightly expected would take a great deal of time. The property — especially the electrical and water systems — had been the subject of many complaints and investigations by local authorities. According to Mr. Li, Mr. Montgomery refused to allow workmen into the premises to effect necessary repairs. Mr. Li testified that police had been present on site at his request concerning the condition of the building and the theft of furniture from the bottom suite. He also testified that shortly before the fire, Mr. Montgomery had threatened to burn the house down. Mr. Li had not mentioned this to police, he said, because they already knew about the animosity between them. However, he had told Ms. Brett about the threat in a text on September 30. [4] Before the fire broke out at 10:02 a.m. on October 3, 2017, Mr. Li had arrived at the duplex and gone into the basement suite. Mr. Montgomery had been present in the upper part of the house with two overnight guests, Ms. Watson and Mr. Daley. Mr. Montgomery was angry that Mr. Li had shown up unannounced, and yelled at him, perhaps with racial epithets, through the floor and basement door. The trial judge found that eventually, Mr. Montgomery and his two guests departed, leaving Mr. Li alone on the property. [5] At trial, Mr. Li testified that he had not seen anyone but heard sounds like people walking or running in the suite inside, so he had walked directly into the suite and opened the door. He found that the window close to the kitchen was open and he leaned out of it to see if he could see anyone. He saw no one. He proceeded to check the other rooms until, he testified, he heard a very loud noise outside the suite. He then ran out of the suite into the hallway towards the door leading to the “loft”, or “mezzanine”, which door was half open. At that point he said he switched on the light with his left hand, pushed the door open and “there was an explosion”. He was unable to get out of the main entrance door so ran into the suite and jumped out of the window. He sustained burns to his face, neck and hands as a result of the fire. [6] Although he testified he could not look around due to “star[s] in front of my eyes”, Mr. Li immediately left the property and drove himself to the airport in order to catch a (pre‑booked) flight to eastern Canada. He made no effort to call the Fire Department or police, who had headquarters not far from the duplex. He acknowledged that he had discarded a jacket and a “bag of tools” at or en route to the airport. After checking in, he asked for medical help for his burns and told airport personnel about the fire. He appeared “scattered” and traumatized. Police were called, and he was eventually arrested. [7] Mr. Li was not asked directly at trial why he had fled the scene without calling the Fire Department, but did say, “I ran away. I did not have the chance to call the police.” In cross‑examination, he insisted that he had “chosen” not to board the flight and that he had been open in telling airport personnel about the fire. He told them he was lucky to be alive. [8] The trial judge found that the fire had damaged the garage and the duplex structure itself and had posed a serious risk of injury to persons and property in the area. It was only because of the prompt attendance of firefighters at the scene that more serious damage was avoided. Mr. Li says in his material on this application that the insurer denied coverage and it appears his bank ended up with all the proceeds of sale of the duplex. [9] The issue at trial was how the fire had started. The Crown submitted that Mr. Li had deliberately started the fire out of frustration with Mr. Montgomery and that he had then attempted to flee the jurisdiction to evade capture. Mr. Li, who was represented at trial, testified in his own defence. He contended that the fire had started accidentally when he had attempted to turn on the light switch. The suggestion was that the electrical wiring to the light was faulty. As the Crown observed in its memorandum of argument, the expert evidence was inconclusive as to the mechanism of ignition. Investigators did not find any accelerant at the scene, although first responders had noticed a strong smell of gasoline. The location of the start of the fire could not be determined conclusively, but the fire was most intense in the loft area. The defence relied on the absence of physical evidence of accelerants, together with various inconsistencies in the evidence of Crown witnesses and the apparent unlikelihood that Mr. Li would have burned down his own property. [10] On the other hand, there was evidence that the day before the fire, Mr. Li had done an Internet search of whether it was safe to use a plastic bottle for gas and on the location of the local police and Fire Department. A firefighter testified that he had found a half‑filled open gas can with a nozzle and some wood or kindling in the lower suite. Soot patterns on a log which was allegedly used by Mr. Li to climb out of a window after starting the fire, suggested that the log had been placed there before the fire to enable him to escape. Sentence [11] In his sentencing reasons, reported at 2020 BCSC 113, the trial judge, Mr. Justice Baird, stated: ... Quite clearly, the jury rejected the accused’s evidence that the fire must have been ignited by an electrical spark when the accused attempted to turn on the garage light. The jury decided that the accused intentionally set the fire. I am persuaded beyond a reasonable doubt, furthermore, that on all of the evidence, his doing this was a premeditated act and that he used gasoline as an accelerant. In this latter connection, I note, in particular, the online inquiries from the preceding day about the safe transportation of gasoline in plastic containers; his text message to his neighbour Irene Brett, that someone had threatened to burn the house down; the unexplained presence of a jerrycan containing gasoline in the basement suite; and the fact that the firefighter primarily responsible for extinguishing the fire reeked of gasoline afterwards. [At paras. 5–6.] [12] Mr. Li was age 49 at the time of sentencing and had no previous criminal history. He had immigrated to Canada from China in 2003 and had lived, and now lives, in Quebec. He had a “long history of useful and gainful employment” as an electronics engineer and has a wife and two children who are now also in Quebec. [13] He received a sentence of two years in a federal penitentiary. He was released in September 2019. He wishes to appeal his conviction and sentence. Section 684 Application [14] In his affidavit filed in support of his application for an order under s. 684, Mr. Li stated that his income is zero and that he has not had a job since his release from prison. He says his debts total some $120,000 and that he still owes some $8,000 to his defence lawyer at trial. He feels his English (not his first language) is not “good enough for a court appeal”. He provided a long “supporting document” in which he contends that the trial judge misunderstood the evidence and gave wrong instructions to the jury, although he did not supply specifics of such misstatements. In Mr. Li’s submission, the Crown relied heavily at trial on the three “key witnesses who had [stayed] inside the house for a dozen of hours until the fire.” Mr. Li now says that a “gang” was directly involved in the arson. (Indeed he testified that Mr. Montgomery was a member of Hell’s Angels.) Mr. Li says he believes that part of the “team” was on site when the fire broke out; that he “met two persons who jumped out of the basement”; and that they drove away immediately after starting the fire. [15] Mr. Li points out inconsistencies in the evidence of Mr. Montgomery concerning where he went after shouting at Mr. Li, and says it is clear that Mr. Montgomery and his friends “colluded a lot”. He argues that the trial judge should have given the jury a Vetrovec warning at least about Mr. Montgomery’s credibility; and that his, Mr. Montgomery’s, criminal record and those of other witnesses should have been disclosed to the jury. Perhaps most importantly, he contends that he did not receive effective assistance from his lawyer at trial. Analysis [16] Obviously, in approaching an application under s. 684, a court must consider the applicant’s ability or inability to pay for counsel on the appeal. The remaining factors are well‑known and include the merits of the proposed appeal, the complexity of the case, the penalty at stake, whether the appeal is of any general importance, and the need for counsel to present argument or carry out research. Some of these factors may be dealt with fairly easily in this case: here the appeal is fact‑intensive and not of general significance to the law or the public. Mr. Li has already served his time, assuming good behaviour in future, so that the penalty is a neutral factor. Further, although English is not Mr. Li’s first language, his testimony at trial indicates in my view that he understands the language well and has a subtle mind. [17] As far as Mr. Li’s financial means are concerned, it is difficult to draw conclusions. He swears that he is unemployed and has no income, but has not provided tax returns, banking documents, or evidence of being on social assistance or efforts to find a job. He does have a degree in engineering and was employed as a computer engineer between the time of his immigration to Canada and the date of his arrest. He testified that between April 2017 and April 2019, he had earned $120,000 per year, and had also become a “certified investor”. The Crown points out that he had owned a house in Montreal. Although he lacks resources at this time (as he would after being in prison), I am not confident that he will be unable to find employment or other opportunities. [18] The more important issue is whether, given the merits of the proposed appeal, it would be in the interests of justice to appoint counsel for Mr. Li under s. 684. In my view it would not, primarily because of the difference between his testimony at trial and the version of events he now asserts. This difference portends that the merits of an appeal are low. As the Crown submits, since Mr. Li argued at trial that the fire must have been started accidentally by him when he switched on a light, the presence or absence of Mr. Montgomery and his friends was not highly relevant. The failure to give a Vetrovec warning would not have been significant in the circumstances. The Crown in fact acknowledged at trial that Mr. Montgomery’s credibility was doubtful; its case did not depend upon his credibility. If a new trial were to take place, Mr. Li’s new testimony (if he gave evidence) or his new position at trial would obviously be suspect given its inconsistency with his sworn statements at trial. Simply put, why would he have testified that he started the fire accidentally if it had in fact been started by a gang? [19] I have perused the transcript of the trial proceedings on October 16, 2019 when Mr. Li testified. Of course, I am not aware of what decisions were made by trial counsel, but as the Crown points out, the defence ‘capitalized’ at trial on the inconclusive expert evidence as to how the fire had started. On its face, the transcript suggests no ineffectiveness on counsel’s part, and Mr. Li does not contend that counsel acted against his instructions at trial or that the overall approach of the defence was undertaken without his approval. [20] The Crown filed a copy of a letter from Legal Aid BC confirming that it had refused Mr. Li’s application for legal aid for his appeals against conviction and sentence. The refusal was not for financial reasons. The issues considered by Legal Aid included whether the absence of the criminal records of some of the Crown witnesses, which were not in evidence, would support an appeal; and whether Mr. Li had received ineffective assistance from counsel. [21] At the end of the day, I do not find that the factual assertions and arguments Mr. Li now seeks to advance could or should have been advanced at trial, given the defence of accidental ignition of the fire by Mr. Li himself. I agree with the Crown that the whereabouts and conduct of Mr. Montgomery and his friends were essentially background information and that the evidence regarding gasoline, a gasoline can and Mr. Li’s strange flight from the scene were likely what led to his conviction. In my opinion, it is not in the interests of justice to require that counsel be appointed at public expense to permit Mr. Li now to change his story completely and seek another trial, blaming his lawyer. Such an appeal has little likelihood of success. [22] For the foregoing reasons, I dismissed Mr. Li’s application. “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Madadi v. Nichols, 2021 BCCA 10 Date: 20210112 Docket: CA46891 Between: Behroz Madadi Respondent (Plaintiff) And Norman Nichols, Roderick McDonald and Patricia Kelley Appellants (Application Respondents/ Proposed Defendants) And Her Majesty the Queen in Right of the Province of British Columbia Respondent (Defendant) Before: The Honourable Madam Justice Dickson The Honourable Madam Justice Fisher The Honourable Mr. Justice Voith On appeal from:  An order of the Supreme Court of British Columbia, dated May 20, 2020 ( Madadi v. British Columbia , 2020 BCSC 765, Vancouver Docket S157192). Counsel for the Appellants (via videoconference): C.E. Hunter, Q.C. E.V. Madhur Counsel for the Respondent, Behroz Madadi (via videoconference): B. Zargarian Counsel for the Respondent, Her Majesty the Queen in Right of the Province of British Columbia (via videoconference): M.N. Weintraub Place and Date of Hearing: Vancouver, British Columbia December 4, 2020 Place and Date of Judgment: Vancouver, British Columbia January 12, 2021 Written Reasons by: The Honourable Madam Justice Fisher Concurred in by: The Honourable Madam Justice Dickson The Honourable Mr. Justice Voith Summary: The appellants appeal from an order adding them as defendants to the respondent’s claim of misfeasance in public office. The appellants were members of the former College of Teachers of British Columbia who had presided over a disciplinary hearing into the respondent’s conduct. The respondent’s claim against the appellants was statute-barred. Relying in part on a previous judgment that allowed the respondent to amend his pleading in misfeasance, the chambers judge held there was a sufficient connection between the proposed new defendants and the respondent’s claim, and given the balance of prejudice, it was just and convenient to add them as parties. The appellants submit that the chambers judge erred by failing to consider the merits of the respondent’s claim when assessing the relative prejudice to the parties, and misapprehending the evidence in that assessment. Held: Appeal dismissed. The chambers judge was correct to reject the appellants’ argument that there should be some assessment of the merits of an otherwise statute-barred claim when balancing prejudice. Although the chambers judge did not properly apply the initial threshold that requires a plaintiff to establish first a real, non-frivolous issue between the claim and the proposed defendants, the pleadings allege sufficient material facts to support the elements of misfeasance in public office against the appellants. There is also no basis to otherwise interfere with the judge’s assessment of the balance of prejudice. Reasons for Judgment of the Honourable Madam Justice Fisher: [1] This is an appeal from an order adding the appellants as defendants to a claim of misfeasance in public office that was, but for the order, statute-barred. The primary issue concerns the threshold requirement to establish an issue between a plaintiff and a proposed defendant that is connected with the relief, remedy, or subject matter of the proceeding, and the extent to which this may be considered when assessing whether it is just and convenient to add a defendant to a statute-barred claim. [2] The appellants are retired teachers who, as members of the former College of Teachers of British Columbia (the College), presided over a disciplinary hearing into the respondent’s conduct as a teacher, found him guilty of some allegations of misconduct, and imposed a penalty. There had been considerable delay from the time of the allegations (2001), the investigation (2003), and the disciplinary hearing (2009–2011). After those proceedings concluded, the respondent made a human rights complaint, which was dismissed in 2012, and pursued a statutory appeal, which was dismissed by consent in 2014 after the College agreed to set aside the decisions of the disciplinary panel. [3] The respondent commenced the proceedings at issue in this appeal in 2015. He raised various causes of action against the Province of British Columbia, including misfeasance in public office. In 2018, the Province successfully applied to strike most of the claims but the court granted the respondent leave to amend two of his claims, including misfeasance in public office. In January 2019, the respondent filed a Further Amended Notice of Civil Claim, and in September 2019, sought to add the three appellants as defendants pursuant to Rule 6-2(7) of the Supreme Court Civil Rules . That application was heard in February 2020 and in reasons for judgment issued May 20, 2020, indexed as 2020 BCSC 765, Matthews J. granted the order sought. [4] The appellants contend that the chambers judge erred by refusing to consider the merits of the respondent’s proposed claims as set out in the pleadings before her and by misapprehending the evidence relevant to her assessment of the issues of prejudice and delay. [5] Despite an error by the chambers judge in assessing the relevant threshold for joinder under Rule 6-2(7)(c), it is my view that the respondent has established a real and non-frivolous issue in his claim against the proposed defendants. It is also my view that the judge did not misapprehend the evidence in her assessment of the relative prejudice to the parties. For the reasons that follow, I would dismiss the appeal. Background facts [6] The background facts were succinctly set out by the chambers judge: [10]      The disciplinary proceedings arose out of complaints made against Mr. Madadi in 2001 when he was a teacher-on-call in the New Westminster School District. Mr. Madadi deposed that as a result of his status as a teacher-on-call and the complaints, his ability to work as a teacher while the investigation proceeded was very limited. In 2005, due to inadvertence on the part of Mr. Madadi, he did not pay his professional fees on time and his certificate was cancelled. He applied to have it reinstated, but the College’s Qualifications Committee refused to reinstate him, in part citing the ongoing investigation. At that time, it had been four years since the complaints were made. [11]      In 2010, the disciplinary panel found Mr. Madadi guilty of some of the allegations and not guilty of others. In 2011, the disciplinary panel imposed a penalty prohibiting the College from issuing a certificate of qualification to Mr. Madadi for 12 months. [7] In November 2011, the respondent appealed both decisions to the B.C. Supreme Court, seeking relief that included damages. In 2012, while the appeal was pending, he also filed a complaint with the Human Rights Tribunal, raising similar allegations of misconduct by the College. In October 2012, the Tribunal dismissed the respondent’s complaint on the basis that it was more appropriately addressed in the context of his appeal. [8] In the appeal, the College agreed to an order setting aside the decisions of the hearing panel, but there was no agreement on costs, so the matter went before Gropper J. in March 2014. In addition to the agreed-upon order to set aside the decisions, the respondent sought various other orders, including compensation for injury to his dignity and damages. However, Gropper J. held that she had no jurisdiction to grant a remedy for breach of the Human Rights Code , R.S.B.C. 1996, c. 20, and she refused to award damages in the context of an appeal that was in the nature of a judicial review. [9] On September 1, 2015, t he respondent commenced the current action, first naming the Teacher Regulation Branch as the defendant and then naming only the Province of British Columbia. He sought relief that included compensatory and punitive damages for misfeasance in public office, defamation, breach of contract, negligence, and Charter damages. [10] The Province’s application to strike the respondent’s claims or to dismiss them summarily was heard in September 2018. In reasons issued November 1, 2018, indexed as 2018 BCSC 1891, Milman J. issued reasons for judgment striking or dismissing some of the claims and granting leave to amend the claims in misfeasance against the College officials and breach of contract against the Province. The pleading he considered, which was not filed, made three claims in relation to misfeasance in public office. The first was directed generally at the College arising from delay, the second at the hearing panel, and the third at the successor Teacher Regulation Branch (TRB) for failing to remove archived material from its website. [11] The first allegation was pleaded as follows: The cumulative effect and context of the College’s actions opens the inference that the College was aware, reckless or wilfully blind as to the legality of its conduct and its harmful effects on Mr. Madadi. [12] The court held that this pleading was not sufficient to make out the necessary elements of the tort: [65]      … Mr. Madadi does not plead specifically that the various officials at the College and the TRB who dealt with his case acted deliberately and unlawfully and that they knew that their conduct was unlawful and likely to harm him, causing him legally recoverable damages. Rather, the claim improperly takes the form of an argument. It invites an “inference” as to the state of mind of “the College” as a whole (but not the TRB), based on the “cumulative effect and context” of the facts asserted. [13] The second allegation was that the hearing panel members discriminated against the respondent “based on his place of origin” or otherwise displayed a bias against him. The court held that this pleading “ could suffice to make out the first element of deliberate and unlawful conduct as against them, at least”, but added: [67]      … There is, however, no express allegation that they were aware, constructively or otherwise, of the fact that their conduct was unlawful and likely to cause harm, although this appears to be implied. There is also no description of the legally recoverable damages that are alleged to flow from their misfeasance, which is problematic because the Decisions themselves have already been set aside. [68] The intended allegation against the hearing panel members appears to be that, animated by an improper bias reflected in their reasons, they deliberately and unlawfully imposed a penalty on Mr. Madadi that was unduly harsh and that in doing so they added an unwarranted extra year to the delay in reinstating him as a teacher. [14] The court then described the remaining problems with the pleading: [ 69 ] The other facts supporting the misfeasance claim (i.e., the inordinate delays in the College’s investigation and accreditation processes and the TRB’s later failure to remove the archived TC magazine from the website in a timely manner) are alleged elsewhere to have caused recoverable damages, but they appear to have involved the acts or omissions of different officials. The claim is silent about their state of mind. There is, in particular, no allegation, express or implied, that their conduct was deliberate and unlawful or that they knew, constructively or otherwise, that their conduct was unlawful and likely to cause harm to Mr. Madadi. [ 70 ] The claim is also deficient for its failure to name the responsible officials individually. I appreciate that Mr. Madadi may not know all of their identities prior to obtaining discovery, but he clearly knows who some of them are (e.g., the hearing panel members) and could identify others by reference to what they are alleged to have done or failed to do. [15] Despite these deficiencies in the misfeasance claim, Milman J. granted leave to amend the pleading “to allege the missing elements properly” as he considered that the respondent had pleaded particulars “that could amount to misfeasance if bolstered by the missing allegations”. This was, however, subject to his ruling under the summary judgment Rule 9-6(5) (at paras. 71–72). [16] Justice Milman went on to consider the misfeasance claim against the Province under Rule 9-6(5), describing the evidence supporting it as follows: [121]    In his affidavit, Mr. Madadi recounts the history of the proceedings until his reinstatement and the effect of the delays on his career. There is very little evidence in Mr. Madadi’s affidavit to support the misfeasance claim. The only real evidence of deliberate, unlawful conduct on the part of the responsible College and TRB officials, apart from the bare fact of the delay itself, is drawn from the reasons of the hearing panel finding Mr. Madadi guilty of professional misconduct . [122 ] Mr. Madadi characterizes those reasons as “discriminatory, prejudicial and biased” (see the unfiled Further Amended Notice of Civil Claim, Part 3, at para. 6(c)). The claim alleges (at para. 14 of Part 1) that the hearing panel’s reasons fit that description because they contained the following statements: (a) Mr. Madadi “did not appear to have the same sense of personal space as people in the North American culture”; (b) Mr. Madadi “has been a resident of Canada long enough to know [that the phrase] ‘I pray for you’ in this context could be construed as threatening”; (c) “As a long time resident of Canada, Mr. Madadi ought to have known that the use of the phrase ‘I pray for you’ in this context would be construed as threatening”; and (d) Mr. Madadi was not considered credible because, among other things, he had a stake in the outcome of the prosecution against him. [Emphasis added.] [17] Justice Milman found, however, that only the statements referred to in (b) and (c) were made by the panel. In this regard, he said this: [126]    … I accept that the panel’s unnecessary reference to the length of time that Mr. Madadi had been in Canada, and what he “ought to have known” as a result of it, could be argued to evidence a discriminatory bias against him “based on his place of origin,” as alleged in the claim. [18] He noted, however, that this evidence related only to the conduct of the hearing panel itself, and the remainder of the misfeasance claim relied on the “cumulative effect” of this alleged bias “coupled with the delays in the investigation and accreditation processes, the later failure by the TRB to remove the archived edition of TC magazine, and the inconsistent reasons offered to explain it” (at para. 127). He was not persuaded that these things could realistically be said to accumulate in that manner for that purpose: [ 128 ] Rather, as the Province argues, the TRB inherited the liabilities of the College but not necessarily its motives. Moreover, the mere fact that the hearing panel may have been biased against Mr. Madadi based on his place of origin does not necessarily mean that the same bias permeated the investigation and accreditation processes within the College, which presumably involved many other officials . [ 129 ] The Province has adduced no evidence to explain the delays. That is unfortunate because they appear to have been long enough [to] call out for an explanation, particularly given their foreseeable impact on Mr. Madadi’s career. Although both sides were required “to put their best foot forward” on this application, Mr. Madadi was not in a position to know, prior to obtaining discovery, what reasons lay behind the delays. Only the Province could have adduced evidence going to that issue. [ 130 ] I am not permitted to weigh the evidence on this application. I can only determine if the evidence adduced by the parties demonstrates that Mr. Madadi’s claim has no chance of success. I find that I am unable to reach that conclusion with respect to the claim in misfeasance as it pertains to the conduct of the responsible officials of the College in respect of the delays . [Emphasis added.] The claim against the appellants [19] In accordance with the leave granted by Milman J., the respondent filed a Further Amended Notice of Civil Claim on January 11, 2019 (the Claim). He asserts misfeasance in public office against the Province for the conduct of several sub-committees of the former College and the three appellants as members of the disciplinary panel who adjudicated the complaints against him. The respondent’s claim against the appellants is based on alleged unlawful acts relating to the panel’s reasoning for finding him guilty of misconduct, the penalty it imposed, and maintaining the proceedings after a 10-year delay: 55.       On November 12, 2010, the Panel found Mr. Madadi guilty on eight of the twelve instances of alleged misconduct (the “Decision”). In finding him guilty, the Panel relied, in part, on the following reasoning: a.   Mr. Madadi “has been a resident of Canada long enough to know … ‘I pray for you,’ in this context, could be construed as threatening”; and b.   “As a long time resident of Canada, Mr. Madadi ought to have known that the use of the phrase ‘I pray for you’ in this context would be construed as threatening.” 56.       The Panel’s reference to Mr. Madadi’s place of origin or other similar reference was irrelevant to deciding the issue before it. 57.       The Panel’s reasoning was abusive, biased, discriminatory, oppressive, unfair, unreasonable and unlawful. 58.       The Panel knew, was wilfully blind, or was reckless as to the a.   illegality of its reasoning; and b.   likelihood of harm to Mr. Madadi, including his inability to work, loss of income, and psychological distress. 59.       The Panel’s reasoning was for the purpose of injuring Mr. Madadi or a similarly improper purpose. 60.       The Panel’s reasoning was in bad faith. 61.       On June 22, 2011, the Panel imposed on Mr. Madadi a penalty of 12 months’ suspension from teaching to commence that day (the “Penalty”). 62.       The Panel was aware that Mr. Madadi’s teaching certificate had been cancelled since 2005 due to his inadvertent non-payment of fees. 63.       The Panel had the authority to impose a sentence of “time served” on Mr. Madadi, such that he would not serve any further period of suspension. 64.       The Penalty was abusive, biased, discriminatory, oppressive, unfair, unreasonable, unduly harsh and unlawful. 65.       The Panel knew, was wilfully blind, or reckless as to the a.   illegality of the Penalty; and b.   likelihood of harm to Mr. Madadi, including his inability to work, loss of income, and psychological distress. 66.       The Panel imposed the Penalty for the purpose of injuring Mr. Madadi or a similarly improper purpose. 67.       The Panel imposed the Penalty in bad faith. 68.       The ten years that passed from when the last of the Allegations arose in June 2001 and the disciplinary proceedings finished on June 22, 2011 was an abuse of power, biased, discriminatory, oppressive, unfair, unreasonable, and unlawful. 69.       The Panel knew was wilfully blind, or was reckless as to the a.   illegality of maintaining the proceedings in light of the delay; and b.   likelihood of harm to Mr. Madadi, including his inability to work, loss of income, and psychological distress. 70.       The Panel maintained the proceedings for the purpose of injuring Mr. Madadi or a similarly improper purpose. 71.       The Panel maintained the proceedings in bad faith. Adding parties: Rule 6-2(7) [20] Rule 6-2(7) provides: (7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules (9) and (10), (a) order that a person cease to be party if that person is not, or has ceased to be, a proper or necessary party, (b) order that a person be added or substituted as a party if (i) that person ought to have been joined as a party, or (ii) that person's participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated on, and (c) order that a person be added as a party if there may exist, between the person and any party to the proceeding, a question or issue relating to or connected with (i) any relief claimed in the proceeding, or (ii) the subject matter of the proceeding that, in the opinion of the court, it would be just and convenient to determine as between the person and that party. [21] Rule 6-2(7)(b) has been interpreted narrowly, as being concerned with remedying defects in the proceedings. A plaintiff applicant must establish either that the proposed defendant “ought to have been joined as a party” or that their “participation in the proceeding is necessary”: Letvad v. Fenwick , 2000 BCCA 630 at paras. 16–17; Alexis v. Duncan , 2015 BCCA 135 at para. 15; and Byrd v. Cariboo (Regional District) , 2016 BCCA 69 at para. 36. [22] Rule 6-2(7)(c) is broader and therefore more commonly relied upon. A plaintiff applicant must establish that there is a question or issue between the plaintiff and the proposed defendant that relates to or is connected with the relief, remedy, or subject matter of the proceeding. This threshold is low. It is generally expressed as establishing a real issue between the parties that is not frivolous, or that the plaintiff has a possible cause of action against the proposed defendant: The Owners, Strata Plan No. VIS3578 v. John A. Neilson Architects Inc. , 2010 BCCA 329 at para. 45 [ Neilson Architects ]; Strata Plan LMS 1816 v. Acastina Investments Ltd., 2004 BCCA 578 [ Acastina ]; and MacMillan Bloedel Ltd. v. Binstead et al. (1981), 58 B.C.L.R. 173 (C.A.) [ Binstead ]. I would define a frivolous issue as an issue that does not go to establishing the cause of action, does not advance a claim known to law, or serves no useful purpose and would be a waste of the court’s time and public resources. This is similar to the considerations for determining whether a claim should be struck as “unnecessary, scandalous, frivolous or vexatious” under Rule 9-5(1)(b): see, for example, Nevsun Resources Ltd. v. Araya , 2020 SCC 5 at paras. 65, citing in Willow v. Chong , 2013 BCSC 1083 at para. 20. [23] This threshold requirement is usually met solely on the basis of the proposed pleadings, but the parties may provide affidavit evidence addressing it. If evidence is provided, the court is limited to examining it only to the extent necessary to determine if the required issue between the parties exists; it is not to weigh the evidence and assess whether the plaintiff could prove the allegations: Neilson Architects at para. 45, citing Acastina and Binstead . Whether or not evidence is provided, it is necessary for the court to examine the pleadings in order to determine whether the plaintiff has a possible cause of action against the proposed defendants. The pleadings must set out material facts sufficient to establish a real and not frivolous issue between the plaintiff and the proposed defendants: Neilson Architects at paras. 60, 62, and 75. [24] If this requirement is met, the court must next determine whether it would be just and convenient to decide the issue between the parties in the proceeding. It is in relation to this issue that evidence is more commonly provided. This is a discretionary decision, which discretion must be exercised judicially, and in accordance with the evidence adduced and the guidelines established in the authorities. In Letvad , this court adopted a list of factors to be considered from Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996) , 19 B.C.L.R. (3d) 282 (C.A), a decision that addressed the amendment of pleadings after the expiry of a limitation period. These factors include the extent of the delay, the reasons and any explanation for the delay, the expiry of a limitation period, the degree of prejudice caused by the delay, and the extent of the connection, if any, between the existing claims and the proposed new cause of action: Teal Cedar at para. 67; Letvad at para. 29; see also Chouinard v. O’Connor , 2011 BCCA 161 at para. 21. In the context of adding parties, the last Letvad factor may be more accurately described as the extent of the connection, if any, between the existing claim and the parties to be added. [25] The existence of a limitation defence is an important factor, as such a defence is extinguished if the proposed defendant is added: Limitation Act , R.S.B.C. 1996, c. 266, s. 4(1)(d), repealed and replaced with Limitation Act , S.B.C. 2012, c. 13, s. 22(1)(d); and Anonson v. North Vancouver (City) , 2017 BCCA 205 at para. 13 . However, this is not determinative. In Neilson Architects , this court adopted the following approach to considering a limitation defence (at para. 47): If it is clear there is an accrued limitation defence, the question is whether it will nevertheless be just and convenient to add the party, notwithstanding it will lose that defence. The answer to that question will emerge from consideration of the factors set out in Letvad . [26] These principles were recently reiterated in Smithe Residences Ltd. v. 4 Corners Properties Ltd. , 2020 BCCA 227 at paras. 49–51. The decision below [27] The application before the chambers judge was argued on the basis that the limitation period in respect of the respondent’s claims had expired in June 2017. [28] After setting out the background facts, the chambers judge briefly discussed the decision of Milman J. granting leave to amend the claims in misfeasance of public office against the College officials and breach of contract against the Province: [15]      In doing so, Mr. Justice Milman held that Mr. Madadi’s misfeasance in public office claim against the College officials, including the allegations pertaining to the disciplinary panel, was deficiently pleaded but could be amended to properly plead the missing elements, including naming those whose identity he knows and by identifying others in reference to what they are alleged to have done or failed to do. Mr. Justice Milman addressed British Columbia’s argument that the misfeasance in public office claim against the College officials, including the allegations pertaining to the disciplinary panel, had no chance of success but he did not accede to that argument. [29] The judge then described the court’s discretion to add parties under Rule 6‑2(7) as one that “should be exercised generously to allow the effective determination of the issues, without delay, inconvenience or separate trials” unless the allegations are frivolous (at para. 19, quoting Ipsos S.A. et al v. Angus Reid et al , 2005 BCSC 1114 at para. 107). She held that the necessary overarching assessment, whether under Rule 6-2(7)(b) or (c), is whether adding the party would be just and convenient, which, in this case, required a balancing of the prejudice between the party seeking to add the party and the party who will lose its limitation defence. In such circumstances, she recognized that the analysis must consider whether the plaintiff had reasonably explained his delay (at para. 23–25). [30] The chambers judge rejected the submission of the appellants that the court could consider the strength of a plaintiff’s claim when balancing the prejudice between the parties. The judge considered this proposition to be inconsistent with authorities such as Binstead, Acastina , Wong v. Spittal, 2018 BCSC 1795, and Meade v. Armstrong (City), 2011 BCSC 1591. She held that there is no analysis of the merits of the claim to be made against the proposed defendants so long as the plaintiff can establish the connection (at para. 30). [31] The judge concluded that the circumstances of the case satisfied the requirements of Rule 6-2(7)(b)(ii) and (c). She found that it was necessary to add the proposed defendants in order to fully and properly adjudicate the claim of misfeasance in public office (at para. 33). She also found that the “connection preliminary threshold” under Rule 6-2(7)(c) was satisfied (at para. 42). [32] In assessing this, she considered there to be a low threshold question of whether there is a real issue between the plaintiff and the proposed defendants “that is not frivolous”, or whether the plaintiff has a “possible cause of action against the proposed party”, citing Neilson Architects. She recognized that where affidavit evidence was provided to address this requirement, its role was limited to assisting the court to determine whether a real issue exists between the parties, and the court is not to weigh the evidence (at paras. 35–36). [33] The judge rejected the appellants’ submission that the claim against them lacked supporting material facts and therefore did not warrant joinder. She held that Milman J., in refusing to dismiss the misfeasance claim on summary judgment, had already determined that if the pleading were amended to address the deficiencies he identified, it could not be said that there was no chance of success (at para. 38). She also rejected their argument that the allegation of discrimination against them cannot amount to unlawful conduct in the misfeasance claim, as she considered Milman J.’s conclusion to remain applicable: [39]      … Mr. Justice Milman addressed the allegation of discrimination and held that if other deficiencies he described in the pleadings were corrected, the allegation of discrimination could “suffice to make out the first element of deliberate and unlawful conduct as against them, at least” (at para. 67 of 2018 BCSC 1891). Mr. Madadi does not plead discrimination as a cause of action giving rise to a remedy, he pleads discrimination as the unlawfulness underlying the first and second elements of the tort of misfeasance in public office. Although the proposed defendants were not before Milman J. and the filed amended notice of civil claim may be different than the draft amendments before Milman J., the conclusion Milman J. drew is applicable and I will not entertain a re-argument of it. [34] The chambers judge declined to take into account whether the alleged discriminatory comments would be “satisfactory proof that discriminatory viewpoints infused the reasoning or the decisions” of the proposed defendants (at para. 40). She also considered that Milman J. determined that this claim was adequately particularized by pleading that the penalty was imposed for an improper purpose, namely discrimination. [35] Finally, the chambers judge assessed whether it was just and convenient to add the proposed defendants given that the limitation periods had lapsed. She was guided by the factors set out in Letvad , describing these at para. 43 of her reasons: a) the extent of the delay in seeking to add the parties; b) the reasons for the delay; c) any explanation to account for the delay; d) the degree of prejudice caused by the delay; and e) the extent of the connection, if any, between the existing claims and the proposed parties or claims. [36] In addressing delay, the judge summarized the principles arising from the jurisprudence as follows (at para. 47): a) explanations should be specific and not contradicted by other evidence in order to amount to reasonable explanation; b) where a party is represented, delay that is attributable to counsel or based on the failure to give any or adequate advice is not held against the plaintiff to the same degree as it would be if the plaintiff was personally responsible for it; c) where a party is self-represented, the court should give consideration to that status; d) whether the delay was tactical is relevant; and e) in order for delay to give rise to prejudice, the prejudice must be associated with the delay. [37] She then reviewed the chronology of the proceedings and the respondent’s explanation for the delay. She accepted his explanation for the delay up to June 2014 but found that most of the delay after that was “not entirely explained and so not entirely reasonable” (at para. 61). She gave the respondent some leeway as a self-represented litigant during that period of time and found that the delay was not tactical. She held that lacking a reasonable explanation was not an absolute bar to adding a party: [62]      Lacking a reasonable explanation is not an absolute bar to adding a party under R. 6-2(7): Letvad at paras. 26-28. Demonstrating a reasonable explanation merely creates an onus related to prejudice. The party opposing the addition can no longer rely on the presumed prejudice as a result of not being able to mount a limitation defence; the party has to show actual prejudice: Neilson at para. 94. In any case, both the presumed and actual prejudice must be weighed and considered as to what is just and convenient, they are not determinative. [38] The judge recognized that the loss of the limitation defence presumed serious prejudice to the appellants. She also considered that the loss of the chance to argue misfeasance in public office was a serious prejudice to the respondent. Despite the fact that not all of the respondent’s delay was adequately explained, she noted that if added, the appellants would be defending a case involving a 13-year delay in the College disciplinary process, none of which was explained, including that in which the proposed defendants were involved (at para. 65). She discounted the prejudice asserted by the appellants arising from their lack of recollection of the details of the proceedings and their inability to rely on their notes, in light of the fact that the notes had been destroyed long ago in any event, and the respondent had procured transcripts of the hearings. She did not consider other aspects of actual prejudice to the appellants to be greatly significant: the death of a College witness was not central to the allegations of misfeasance, i.e., the intentions of the proposed defendants, and the illness of one of the proposed defendants could be accommodated in the trial process. The judge therefore concluded that the presumed prejudice to the respondent was greater. [39] The chambers judge found the strength of the connection between the parties to be strong, “perhaps absolute”, in that “the claim pertaining to misfeasance in the hearing portion of the disciplinary process, which is where the allegation of discrimination is focussed, cannot proceed unless the proposed defendants are added”. She declined to consider the likelihood of success (at paras. 72–73). [40] The judge therefore concluded that the balance of prejudice favoured adding the proposed defendants and that it was just and convenient to do so, summarizing as follows: [75]      Mr. Madadi’s delay is marked but not extensive when his explanations for much of it are taken into account and considered against other cases. While it is not completely adequately explained other than his evidence of health issues and financial constraints, those explanations go some way and certainly there is no suggestion of tactical or knowing delay. When viewed in the totality of the timeline from the beginning of the College proceedings, his delay takes on less significance. [76]      There is presumed prejudice to both. I consider the proposed defendants’ losses of limitation defences to be less detrimental than the loss of the claim Mr. Madadi has been trying to pursue over many years despite significant disadvantages. The standard of review [41] A decision whether to add a party to a proceeding is a discretionary one that is entitled to deference on appeal. This court may interfere only where the chambers judge misdirected herself, erred in law or principle, failed to give weight, or sufficient weight, to relevant considerations, or if the result is so plainly wrong on the facts as to result in an injustice: Neilson Architects at para. 41; Byrd v. Cariboo (Regional District) at para. 33; and Smithe Residences at para. 54. On appeal [42] The appellants contend that the chambers judge: 1. erred in law in refusing to consider the merits of the plaintiff’s proposed claims against the panel members on the basis that it was impermissible for her to do so; 2. erred in law in holding that the viability of the plaintiff’s discrimination claim was res judicata as against the panel members following Milman J.’s decision on the province’s application to strike and dismiss the claim; and 3. committed palpable and overriding error in misapprehending the evidence with respect to both the prejudice to the proposed defendants of the passage of time and the plaintiff’s explanation for his delay. [43] I see the first two grounds of appeal as linked to the issue of what the appellants characterize as the appropriate “merits” threshold, and its application. I would characterize the issues on appeal as follows: 1. What is the appropriate “merits” threshold in an application to add parties in circumstances where a limitation period has expired? 2. How is the threshold to be applied to an examination of the pleadings and any evidence provided? 3. Did the chambers judge misdirect herself or make an error in principle in her “just and convenient” analysis? Analysis 1.       The appropriate “merits” threshold [44] The appellants submit that there is a threshold, albeit a low one, for assessing the merits of a claim in an application to add parties. They also submit that the merits should take on an increased significance where a limitation period has expired given that defendants joined to a statute-barred claim lose their limitation defence. They say the chambers judge erred in concluding that she was not entitled to consider the merits of the claim against the proposed defendants. [45] I will begin by stating that I consider the appellants’ reference to a “merits” threshold to create some confusion as to what is required in an application to add parties under Rule 6-2(7)(c). As discussed above, the threshold question is as described in Neilson Architects at para. 45: the plaintiff must establish that there is a real issue between the parties that is not frivolous, or a possible cause of action against the proposed defendants. This does not involve any assessment of the merits of the claim, other than to ensure that the pleading raises a legal issue in relation to the proposed defendant that is supported by sufficient material facts. [46] Although the appellants accept this definition of the threshold, their submission in this appeal advocates for some broader assessment of the merits in cases where a limitation period has expired. They suggest that a plaintiff in such circumstances should be required to establish that the claim against the proposed defendants “has sufficient merit” that depriving them of their limitations defence is just and convenient. In their factum, they describe a “merits” threshold that would require a plaintiff to establish a prima facie case, or an “air or reality” to the pleadings, and that this should inform the balancing of prejudice in the just and convenient analysis. [47] While the appellants’ submission has some compelling aspects, it does not accord with the long-standing jurisprudence that does not distinguish between cases where a limitation period has expired and those where it has not. The threshold has been described simply as a pre-requisite to the court going on to consider whether it is just and convenient to add the proposed parties. I would not be inclined to complicate the analysis by requiring some assessment of the merits of a claim against proposed defendants as suggested by the appellants. The law in this province permits a defendant to be added to an otherwise statute-barred claim where a court determines that it would be just and convenient to do so. That determination takes into account the prejudice to a proposed defendant who loses a limitations defence and balances that with the prejudice to the other party. Such an analysis will be unnecessary where a plaintiff is unable to establish a real, non-frivolous issue with a proposed defendant. [48] The application in the court below was complicated in some ways due to the way in which the case was argued. The focus of the parties’ submissions was on the just and convenient assessment rather than the specific requirements for joinder under each of Rule 6-2(7)(b) and (c). The appellants argued, as they did in this court, that the judge could consider the strength of the plaintiff’s claim when balancing prejudice between the parties. The chambers judge considered their approach to be inconsistent with the test described in Binstead and other cases. She set out the test as follows: [30]      So long as the plaintiff can establish the connection, there is no analysis of the merits of the claim to be made against the proposed defendants. In Meade Mr. Justice Dley held that: [16] 3) In exercising the discretion to add a party, the court should not concern itself as to whether the action will be successful other than to be satisfied that there may exist an issue or question between the applicant and the party being joined. [49] The judge was correct to reject the argument that she could assess the strength of the claim or its chances of success. While this description of the threshold in Meade does not necessarily reflect the jurisprudence requiring a real, non-frivolous issue, it is apparent in the judge’s reasons overall that she recognized the correct description of the threshold as set out in Neilson Architects . She rejected the appellants’ argument that the pleadings before her lacked supporting material facts sufficient to warrant joinder, and concluded that the “connection preliminary threshold” in Rule 6-2(7)(c) was satisfied. I will return to her reasons for this conclusion in the next section. [50] The judge also concluded that the circumstances of the application satisfied Rule 6-2(7)(b). She went on to consider the “just and convenient” analysis, holding that exercising discretion under either Rule 6-2(7)(b) or (c) is guided by a just and convenient analysis and the factors set out in Letvad . [51] Although the discretion in Rule 6-2(7)(b) is narrower than that in Rule 6‑2(7)(c), I would agree with the chambers judge that a just and convenient analysis may be appropriate where a plaintiff has satisfied either rule. However, where a plaintiff does not satisfy the initial threshold under Rule 6-2(7)(c), joinder would not likely be justified under Rule 6-2(7)(b); in those circumstances it would therefore be unnecessary to balance the prejudice by conducting a just and convenient analysis. [52] In any event, it was in the context of the chambers judge’s assessment of the Letvad factors that she refused to consider the merits of the claim against the proposed defendants. I see no error in that conclusion. The only Letvad factor that is at all related to the “merits” is the extent of the connection between the claim and the proposed new defendants. However, this only encompasses an examination of the legal and factual connection, not an assessment of the merits of the claim itself. [53] The reasons of the chambers judge demonstrate that she considered the relevant jurisprudence regarding the threshold required under Rule 6-2(7)(c). The question is whether she properly examined the respondent’s claim as set out in the pleadings before her to assess whether that threshold was met. 2.       Application of the threshold [54] As discussed above, the application of the threshold requires an examination of the pleadings for the purpose of determining whether the claim sets out material facts sufficient to establish a real and not frivolous issue between the plaintiff and the proposed defendants. This standard is similar to that applied to strike a pleading as frivolous, but it is focused on a possible cause of action against the proposed defendants, and the onus is on the plaintiff to establish the required connection. [55] As I read the chambers judge’s reasons, she based her conclusion that the respondent had satisfied the “connection preliminary threshold” in Rule 6-2(7)(c) on the following: · the appellants did not argue that the pleadings and affidavit evidence failed to disclose an issue between them and the respondent that relates to the proceeding (at para. 37); · Justice Milman had already determined that if the pleading were amended to address the deficiencies he identified, it could not be said that there was no chance of success (at para. 38); · the respondent pleaded discrimination as the unlawfulness underlying the first and second elements of the tort of misfeasance in public office, and Milman J. had already determined that this allegation could suffice to make out the first element of the tort, deliberate and unlawful conduct as against the proposed defendants, “at least” (at para. 39); · she did not consider it appropriate to take into account whether the alleged discriminatory comments would be “satisfactory proof that discriminatory viewpoints infused the reasoning or the decisions” of the proposed defendants (at para. 40); and · Justice Milman determined that the pleading relating to penalty as misfeasance was adequately particularized as alleging the penalty was imposed for an improper purpose, namely discrimination (at para. 41). [56] The appellants make a forceful submission that the respondent’s claim against them fails to meet the non-frivolous standard when the pleadings are examined, as informed by the evidence. That evidence consists of the reasons of the panel in respect of the complaints against the respondent and the penalty they imposed. They say the chambers judge failed to assess either the pleadings or the evidence and instead considered that Milman J.’s conclusions about the merits of the misfeasance claim were res judicata . [57] The respondent submits that the appellants’ argument would require a weighing of the evidence, and the pleadings as amended allege sufficient material facts to establish a cause of action in misfeasance. He also submits that the chambers judge simply agreed with Milman J. in respect of the element of unlawful conduct, and not the merits more generally. [58] I do not agree with the appellants that the chambers judge treated the conclusions of Milman J. about the merits of the misfeasance claim as res judicata , as she recognized that the parties and pleadings before her were not the same. She simply found Milman J.’s conclusion that the allegation of discrimination by the panel members could suffice to establish deliberate and unlawful conduct continued to be applicable. [59] However, it is my view that the chambers judge relied too heavily on Milman J.’s conclusions and failed to examine the pleadings before her with the view of determining whether the claim set out material facts sufficient to establish a real and not frivolous issue between the respondent and the appellants. She also failed to examine the evidence before her for the purpose of determining if the required issue between the parties existed. The pleadings that were before Milman J. were not before the chambers judge, and it was necessary for her to examine the Claim before her to assess not only whether the deficiencies he had identified had been addressed, but also whether they satisfied the threshold in relation to the proposed defendants. This was an assessment of the legal and factual basis for the claim against them as pleaded, and this needed to be done before considering the balance of prejudice, in accordance with Neilson Architects . [60] In light of this error, it is necessary for this court to examine the pleadings, as informed by the evidence, to determine whether the respondent has established a real, non-frivolous issue between him and the appellants. To do so, I will first set out the essential elements of the tort of misfeasance in public office, and then examine the pleadings in relation to those elements, as informed by the evidence. Misfeasance in public office [61] The tort of misfeasance in a public office is an intentional tort with two distinguishing elements: (i) deliberate unlawful conduct in the exercise of a public function; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. In addition to proving these elements, a plaintiff must prove that the tortious conduct was the legal cause of his injuries, and that those injuries are compensable in tort law: Odhavji Estate v. Woodhouse , 2003 SCC 69 at para. 32. [62] As I read the Claim, the respondent purports to plead the essential elements of Category B misfeasance in public office . As Iacobucci J. explained in Odhavji Estate at paras. 22–23, the tort of misfeasance in a public office can arise in one of two ways, which he referred to as Category A and Category B: Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff… [T]he two categories merely represent two different ways in which a public officer can commit the tort ; in each instance, the plaintiff must prove each of the tort’s constituent elements In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff. [63] This tort has a narrow ambit that requires an element of bad faith or dishonesty. The essential question to be determined is whether the alleged misconduct is unlawful and deliberate. T he public officer must deliberately engage in conduct knowing it to be inconsistent with the obligations of the office (unlawful) and knowing it would harm the plaintiff (deliberate ). The knowledge element requires a subjective awareness that harm to the plaintiff is a likely consequence of the alleged misconduct; at the very least, the defendant must have been “subjectively reckless or wilfully blind” to this possibility: Odhavji Estate at para. 38. [64] As the court summed up in Odhavji Estate at para. 29: Liability does not attach to each officer who blatantly disregards his or her official duty, but only to a public officer who, in addition, demonstrates a conscious disregard for the interests of those who will be affected by the misconduct in question. [65] The seriousness of a claim for misfeasance of public office was reiterated by this court in Rain Coast Water Corp. v. British Columbia , 2019 BCCA 201: [3]        … Primarily fact-driven, it serves to remind all concerned that claims for damages for the misuse of public power by dissatisfied citizens must be advanced, scrutinized and resolved with caution and restraint. As Justice Newbury explained in Powder Mountain Resorts Ltd. v. British Columbia , 2001 BCCA 619 , the tort of misfeasance in public office provides redress for egregious intentional misconduct, not for what may be, at worst, maladministration, official incompetence or bad judgment in the execution of public duties. For this reason, when addressing claims of misfeasance in public office, the courts strike a careful balance between curbing unlawful behaviour by governmental officials, on the one hand, and, on the other, protecting those charged with making decisions for the public good from unmeritorious claims by those adversely affected by their decisions. The respondent’s claim [66] The Claim alleges bad faith against two sub-committees of the former College and the appellants as panel members in the disciplinary hearing. In respect of the tort of misfeasance, the claim alleges that the same parties · acted unlawfully “by breaching statute, natural justice, and procedural fairness”; · did so “with knowledge, wilful blindness, or recklessness as to their conduct’s illegality and the likelihood of harm” to the respondent; and · “acted for an improper purpose”, all of which are stated to be particularized in Part 1. The claim also alleges that the respondent “suffered financial and psychological losses as a result”. [67] The particulars of the allegations against the sub-committees relate primarily to their respective roles in the College’s delay in maintaining and prosecuting the allegations of professional misconduct against him. The particulars in respect of the appellants, reproduced above at para. 19, stem from the following remarks in the panel’s reasons for finding him guilty of eight of the allegations: a.         Mr. Madadi “has been a resident of Canada long enough to know … ‘I pray for you,’ in this context, could be construed as threatening”; and b.         “As a long time resident of Canada, Mr. Madadi ought to have known that the use of the phrase ‘I pray for you’ in this context would be construed as threatening.” [68] As I read the pleading, the essence of the claim against the panel members is that they deliberately and unlawfully imposed a penalty on the respondent that was “oppressive, unfair, unreasonable” and “unduly harsh”, arising from biased and discriminatory reasoning in the decision above. The Claim also alleges that the panel’s reasoning, the penalty, and maintaining the proceedings were “in bad faith” and for the purpose of injuring the respondent. [69] The chambers judge rejected the appellants’ submission that the allegation of discrimination could not amount to unlawful conduct for Category B misfeasance and accepted Milman J.’s opinion that an allegation that the panel members discriminated or were otherwise biased against the respondent “could suffice” to make out the first element of deliberate and unlawful conduct. While I agree that such an allegation “could suffice”, the question here is whether the material facts pleaded are sufficient to establish all of the elements of the tort. [70] The respondent’s primary complaint in the Claim stems from the inordinate delays by officials of the former College in investigating, prosecuting and determining allegations that arose in 2001. The appellants’ role in that delay was to “maintain the proceedings” and impose a penalty that extended the respondent’s suspension from teaching for a further year. There is no question, as Milman J. observed, that the delays in this case were long enough to call out for an explanation. However, delay in itself does not equate to abuse of process or otherwise unlawful conduct; it must be shown to be unacceptable to the point of oppression that taints the proceedings: Blencoe v. British Columbia (Human Rights Commission) , 2000 SCC 44. This is largely a factual determination that is not based on the length of the delay alone but on contextual factors such as the nature and complexity of the proceedings and whether the respondent caused or waived any of it. [71] The tort of misfeasance in public office requires more than a bald pleading that a public official acted with the intention of harming the plaintiff. There must be material facts about specific officials and their specific unlawful purpose in acting as they did. The material facts may lack detail in the early stages of a proceeding, but it is generally sufficient to establish “a narrow window of opportunity” to make out the claim: Trillium Power Wind Corporation v. Ontario (Ministry of Natural Resources) , 2013 ONCA 683 at paras. 59–61. [72] The Claim sets out the elements of the tort of misfeasance in public office. The material facts that relate to the appellants include the alleged discriminatory reasoning described above, maintaining the proceedings in the context of the overall delay, and imposing a penalty of an additional year of suspension knowing that the respondent’s teaching certificate had been suspended since 2005 for non-payment of fees. In my opinion, these pleaded facts, taken together with the pleas of knowledge that the conduct was unlawful, subjective awareness of the consequential harm to the respondent, and improper purpose, sufficiently plead the tort of misfeasance in public office. With respect to the harm element, the reasons for penalty indicate that the panel members considered evidence that the respondent had been working, but it is clear that he was not working as a teacher. Other than that, the evidence does not call into question the existence of the pleaded facts. [73] While the respondent may well have further challenges in pursuing this claim, it is my view that he has established a possible cause of action against the appellants sufficient to meet the initial threshold under Rule 6-2(7)(c). 3.       The just and convenient analysis [74] The appellants’ primary challenge to the chambers judge’s just and convenient analysis is on the basis that her failure to consider the lack of merit in the claim against them undermined her assessment of the prejudice to the parties. I have already addressed this aspect of the appellant’s submission. I find no error in the judge’s refusal to consider the likelihood of success of the claim in her assessment of relative prejudice, and the appellants do not challenge this. However, they question the judge’s determination that there was a strong, “perhaps absolute” connection between the claim and the proposed defendants. [75] On this point, the judge considered only the legal basis for the claim. While she ought to have also considered its factual basis, the legal connection is significant in light of the requirement to name individual public officials alleged to have committed misfeasance. The purpose for this requirement is to give those individuals an opportunity to defend themselves against these serious allegations. As this court stated in J.P. v. British Columbia (Children and Family Development) , 2017 BCCA 308: [350]    The tort of misfeasance in public office is an extremely serious claim. Finding someone liable for such egregious conduct requires, at the very least, that the individual be a named party in the Notice of Civil Claim so that they may defend the claim against them. Procedural fairness in our justice system mandates that an alleged tortfeasor have notice of, and the opportunity to defend, such a claim, with all of the attendant procedural safeguards to which a party to a proceeding is entitled. [76] Those procedural safeguards include the ability to seek summary dismissal of a claim that has little likelihood of success. [77] The appellants also challenge the chambers judge’s assessment of prejudice on the basis that she misapprehended the evidence related to the loss of the panel members’ notes of the proceedings and the respondent’s explanation for the delay. [78] The judge rejected an argument by the appellants that the loss of their notes was prejudicial given their inability to recall their deliberations in the course of the hearing. She found that there was no actual prejudice from the loss of the notes that was due to the delay because the College had destroyed them long ago and despite the appeal brought by the respondent alleging the same discriminatory conduct by the appellants. She also found that transcripts of the proceedings obtained by the respondent would address the loss of recollection of what occurred during the public portion of the hearings. [79] The appellants submit that this conclusion misapprehends the import of the combined effect of the delay and the destruction of the notes. First, had the respondent brought his claim sooner, the appellants say they might not have needed to refresh their memories. Second, they say that the College’s practice of destroying their notes cannot negate the prejudice in losing access to “the best evidence”, i.e., the “records of their deliberations”, which will not be ameliorated by a review of the transcripts. [80] In my view, the judge may have given short shrift to the consequence of the loss of the notes in the context of the length of the delay, but she did not misapprehend the evidence. [81] The evidence of the appellants regarding the notes they took is imprecise. They each depose only that they took notes during the hearing. Mr. Nichols stated that he could not recall specific details about the hearing, or about delays and the scheduling of the hearing, without referring to “notes and records” of the proceeding. More particularly, he deposed that he did not feel able to completely respond to the allegations against the panel members without access to his own notes from the hearing. Ms. Kelley also deposed that she could not recall details of the hearing without her notes “and other records of the proceedings”. Mr. McDonald believed he would have taken notes during the hearing, and would not be able to reconstruct his memories “without access to comprehensive records”, including his own notes. None of them knew what the College did with their notes. Ms. Kelley found some of her notes during a move in 2011 and destroyed them for privacy reasons. [82] Whether or not the notes were destroyed long ago, the evidence demonstrates that there is some actual prejudice from the loss of the notes. None of the appellants destroyed notes with any knowledge of litigation against them personally. That said, the evidence also supports the judge’s conclusion that the transcripts would assist to refresh memories of the hearing itself. It is unknown whether the notes themselves contained any information about the panel’s deliberations, but in any event, the fact that transcripts will be available is a significant factor that reduces the actual prejudice to the appellants. [83] With respect to the delay, the appellants submit that the chambers judge misapprehended the evidence in finding that the respondent explained his failure to file this claim until 2015 by his status as a self-represented litigant. They take particular issue with these passages from the reasons for judgment: [57]      … However, I accept that given his inability to work during most of the period, and the many years he was under investigation and disciplinary proceedings, he had experienced loss of income and stress that interfered with his ability to retain counsel in these proceedings and proceed without delay. [60]      In this case, the delay was not tactical and so how it is viewed should take into account Mr. Madadi’s self-representation due to financial constraints and issues with his health. However, his explanation did not provide specifics of how those issues prevented him from advancing his case. [84] The appellants contend that these findings disregard the fact that the respondent was represented by counsel when he filed his appeal of the panel members’ decisions in 2011 and when he commenced his human rights complaint against the College in 2012. They say the respondent’s delay in filing the civil claim until 2015, whether or not this was tactical, cannot be justified on the basis that he was not able to retain counsel until 2018, as he was represented by counsel for a significant part of the limitation period, and through counsel made other procedural choices. They also say it was an error for the judge to hold that only the delay from June 2014 had to be explained because he had been pursuing other remedies until then, and there was no basis for the judge to conclude that the respondent had “significant disadvantages” in trying to pursue the civil claim. [85] I appreciate that the respondent made different choices when he was represented by counsel. However, his attempts to obtain compensation or damages were unsuccessful. The Human Rights Tribunal summarily dismissed his complaint because it considered the matter more appropriately dealt with in his statutory appeal. In the appeal, Gropper J. refused to award compensation or damages given the nature of the proceeding before her. His civil claim is another attempt to obtain some kind of monetary compensation. I see no basis to interfere with the judge’s consideration of the respondent being self-represented from 2014 to 2018. Nor do I see a basis to interfere with her conclusion that the respondent had been trying to pursue this claim over many years “despite significant disadvantages”. She accepted the evidence that he had been unable to work for a period of time (without attributing the cause) and had experienced loss of income and stress that interfered with his ability to retain counsel. [86] Most importantly in my view, the judge recognized that the respondent did little to advance his claim between 2015 and 2018, when he finally retained counsel, and the entire delay was not entirely explained and therefore “not entirely reasonable” (at para. 61). She also recognized that lacking a reasonable explanation is not an absolute bar to joinder, as demonstrating a reasonable explanation simply results in the opposing party being required to show actual prejudice, and in any event both presumed and actual prejudice must be weighed (at para. 62). Finally, the judge accepted that the loss of the limitation defence in this case was serious, presumed prejudice. In balancing the prejudice between the parties, she made no error in principle that would call into question her exercise of discretion. [87] Therefore, I see no basis to interfere with the chambers judge’s assessment that it was just and convenient to add the proposed defendants to the claim. [88] For all of these reasons, I would dismiss the appeal. “The Honourable Madam Justice Fisher” I AGREE: “The Honourable Madam Justice Dickson” I AGREE: “The Honourable Mr. Justice Voith” Appendix — Further amended Notice of Civil Claim Material facts pleaded in relation to the appellants : 55.       On November 12, 2010, the Panel found Mr. Madadi guilty on eight of the twelve instances of alleged misconduct (the “Decision”). In finding him guilty, the Panel relied, in part, on the following reasoning: a.         Mr. Madadi “has been a resident of Canada long enough to know … ‘I pray for you,’ in this context, could be construed as threatening”; and b.         “As a long time resident of Canada, Mr. Madadi ought to have known that the use of the phrase ‘I pray for you’ in this context would be construed as threatening.” 56.       The Panel’s reference to Mr. Madadi’s place of origin or other similar reference was irrelevant to deciding the issue before it. 57.       The Panel’s reasoning was abusive, biased, discriminatory, oppressive, unfair, unreasonable and unlawful. 58.       The Panel knew, was wilfully blind, or was reckless as to the a.         illegality of its reasoning; and b.         likelihood of harm to Mr. Madadi, including his inability to work, loss of income, and psychological distress. 59.       The Panel’s reasoning was for the purpose of injuring Mr. Madadi or a similarly improper purpose. 60.       The Panel’s reasoning was in bad faith. 61.       On June 22, 2011, the Panel imposed on Mr. Madadi a penalty of 12 months’ suspension from teaching to commence that day (the “Penalty”). 62.       The Panel was aware that Mr. Madadi’s teaching certificate had been cancelled since 2005 due to his inadvertent non-payment of fees. 63.       The Panel had the authority to impose a sentence of “time served” on Mr. Madadi, such that he would not serve any further period of suspension. 64.       The Penalty was abusive, biased, discriminatory, oppressive, unfair, unreasonable, unduly harsh and unlawful. 65.       The Panel knew, was wilfully blind, or reckless as to the a.         illegality of the Penalty; and b.         likelihood of harm to Mr. Madadi, including his inability to work, loss of income, and psychological distress. 66.       The Panel imposed the Penalty for the purpose of injuring Mr. Madadi or a similarly improper purpose. 67.       The Panel imposed the Penalty in bad faith. 68.       The ten years that passed from when the last of the Allegations arose in June 2001 and the disciplinary proceedings finished on June 22, 2011 was an abuse of power, biased, discriminatory, oppressive, unfair, unreasonable, and unlawful. 69.       The Panel knew was wilfully blind, or was reckless as to the a.         illegality of maintaining the proceedings in light of the delay; and b.         likelihood of harm to Mr. Madadi, including his inability to work, loss of income, and psychological distress. 70.       The Panel maintained the proceedings for the purpose of injuring Mr. Madadi or a similarly improper purpose. 71.       The Panel maintained the proceedings in bad faith. Legal basis pleaded in relation to the appellants : 1. Statutory Immunity and Bad Faith 1. Pursuant to section 87 of the TPA , the Province is liable for the wrongful actions of the College, its employees, agents and committees. 2. Section 42(1) of the Teaching Profession Act immunizes the College, its employees, agents, committees, and the Province from claims for damages while acting in good faith. Proving bad faith is a threshold requirement a plaintiff must meet before proceedings to the merits of a cause of action. 3. “Bad faith includes dishonesty, fraud, bias, conflict of interest, discrimination, abuse of power, corruption, oppression, unfairness and unreasonable conduct” ( MacMillan v Galiano. [1995] BCJ No 1763 at paras 153-4 )). 4. Undue delay may amount to oppression or abuse of process ( Blencoe v British Columbia. 2000 SCC 44, paras 102, 105-6, 113, 115, 121 and 122 [Blencoe] ). 5. PlSC, FISC, and the Panel acted in bad faith in their dealings with Mr. Madadi as particularized in Part 1 of this Notice of Civil Claim. 2. Misfeasance in Public Office 6. Misfeasance in public office may occur under Category A or Category B of the tort. Category A occurs when a public officer 1) engages in deliberate and unlawful conduct, and 2) is aware the conduct was unlawful and likely to harm the plaintiff. Category B occurs when a public officer acts for an improper purpose. 7. Subjective recklessness or wilful blindness will satisfy the subjective mental elements of the tort ( Odhavji Estate v Woodhouse. 2003 SCC 69 at paras 23 – 24, and 38 ). 8. Unlawful conduct includes breaching statute, natural justice rights, and procedural fairness. 9. PlSC, FISC, and the Panel were administrative bodies that owed duties of natural justice and procedural fairness to Mr. Madadi. Those duties included duties of fair, timely, and lawful treatment of Mr. Madadi. 10. PlSC, FISC, and the Panel were under statutory duties, including pursuant to the TPA , Bylaws, and Human Rights Code , [RSBC 1996] c. 210, to treat Mr. Madadi in a fair, timely, and lawful manner. 11. PlSC, FISC, and the Panel acted unlawfully by breaching statute, natural justice, and procedural fairness as particularized in Part 1 of this Notice of Civil Claim. 12. PlSC, FISC, and the Panel knowingly, willfully blindly, or recklessly engaged in unlawful conduct with knowledge, wilful blindness, or recklessness as to of their conduct’s illegality and the likelihood of harm to Mr. Madadi, as particularized in Part 1 of this Notice of Civil Claim. 13. PlSC, FISC, and the Panel acted for an improper purpose toward Mr. Madadi, as particularized in Part 1 of this Notice of Civil Claim. 14. Mr. Madadi has suffered financial and psychological losses as a result.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: NBC Holdings Ltd. v. Aarts Nursery Ltd., 2021 BCCA 7 Date: 20210112 Docket: CA46585 Between: NBC Holdings Ltd. Appellant (Petitioner) And Aarts Nursery Ltd., Garry Edward Cassidy and Darlene Aunita Cassidy Respondents (Respondents) Corrected Judgment: The cover page of the judgment was corrected on January 13, 2021. Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Dickson The Honourable Mr. Justice Hunter On appeal from:  An order of the Supreme Court of British Columbia, dated November 25, 2019 ( NBC Holdings Ltd. v. Aarts Nursery Ltd. , 2019 BCSC 2016, Vancouver Docket S192487). Counsel for the Appellant (via videoconference): D.J. Taylor G. Paulson, Articled Student Counsel for the Respondents (via videoconference): S. Payne Place and Date of Hearing: Vancouver, British Columbia December 8, 2020 Place and Date of Judgment: Vancouver, British Columbia January 12, 2021 Written Reasons by: The Honourable Chief Justice Bauman Concurred in by: The Honourable Madam Justice Dickson The Honourable Mr. Justice Hunter Summary: The appellant petitioned the court for cancellation of an easement on the grounds that the easement was obsolete, or alternatively, that the parties agreed to cancel the easement. The chambers judge declined to cancel the easement, instead ordering that, pursuant to certain terms of the easement agreement, the easement be relocated at the appellant’s expense. She awarded special costs against the appellant for its breach of the easement agreement and for bringing the petition. Held: Appeal allowed; the special costs award is set aside. The parties are at liberty to pursue a traditional civil claim in the Supreme Court. While purporting to exercise her jurisdiction under s. 35 of the Property Law Act, the judge effectively ordered specific performance of a clause in the easement agreement. In doing so, she erred in interpreting her jurisdiction under s. 35. Specific performance, or enforcement generally, of the clauses in an easement agreement cannot be pursued by a petition under s. 35. With respect to costs, the judge erred in finding that the appellant’s pre-litigation conduct warranted a special costs award against it. Reasons for Judgment of the Honourable Chief Justice Bauman: I. Overview [1] This case considers the proper scope and application of s. 35 of the Property Law Act , R.S.B.C. 1996, c. 377 [ PLA ]. It does so in the context of an easement agreement (the “Easement”) benefitting lands of the respondent Aarts Nursery Ltd. (“Aarts”) and burdening those of the respondents Cassidy and the appellant, NBC Holdings Ltd. (“NBC”). [2] For simplicity, I will refer to the properties as Aarts’ Lot, Cassidys’ Lot and NBC’s Lot. [3] Aarts operates a commercial nursery on its lot. The nursery is currently dependent on a private water supply from a well on NBC’s Lot, which runs through buried pipe across the Cassidys’ Lot to Aarts’ Lot. The Easement covers the maintenance, repair and replacement of the well and pipe making up the water supply system. [4] By its terms, the Easement prohibits the construction of buildings and structures over its defined area. With admitted knowledge that it was doing so in breach of this term, NBC constructed a substantial wall over the Easement in order to enclose its principal’s new home. [5] NBC sought to cancel the Easement by way of petition in the Supreme Court under s. 35 of the PLA . Notwithstanding its conduct in constructing the wall, NBC takes the position that it has the right to cancel the Easement in accordance with certain of its provisions. [6] In the result, the chambers judge fashioned something of a judicial compromise by ordering that the Easement be relocated across NBC’s Lot “in a way and to a location agreed upon in advance and in writing by Aarts” and at NBC’s expense. [7] NBC takes the position that its alleged breach of the Easement is irrelevant because circumstances exist obliging Aarts to cancel it after connecting to the municipal water supply in the area. Given that position, NBC questions the even-handedness of the “compromise” and it brings this appeal. [8] In my view, the parties have misunderstood the scope of s. 35 of the PLA and have misguidedly invoked its jurisdiction. For reasons that follow, I would allow the appeal but I would dismiss the petition and leave the parties at liberty to pursue a traditional civil claim in Supreme Court if they are so inclined. However, as I note below, there is much to be said for a compromise here utilizing clause 13 of the Easement and fairly allocating the costs of its relocation. II. The Easement [9] The Easement was entered into in 1984 between the owners of the affected lots. [10] A municipal water supply (from the township of Langley) was not then available to Aarts’ Lot. [11] The owners of NBC’s Lot and the Cassidys’ Lot agreed under clause 8 of the Easement not to construct on the Easement areas across their lots, including “any building, structure, concrete driveway or patio”, without Aarts’ consent. They also agreed that they “will not on any part of the easement areas do any act or thing that will interfere with or injure the . . . pipe or the right or ability of [Aarts] to have access to and draw water from the well system, and maintain the . . . pipe . . .” [12] Clause 13 of the Easement qualifies this prohibition in these terms: If the location of the easement areas on [NBC’s Lot] and [Cassidys’ Lot] at any time interfere with the use or enjoyment or the planned or desired use or enjoyment by [NBC and Cassidys], [NBC and Cassidys] shall respectively have the right, at their sole expense, from time to time, to alter the location of the easement areas and [Aarts’] Pipe on [NBC’s Lot and Cassidys’ Lot] so long as the rights and benefits of [Aarts] hereunder are not otherwise affected and so long as the location where the easement areas and [Aarts’] Pipe meet the boundary between [NBC’s Lot] and [Cassidys’ Lot] and the [Aarts’ Lot] is not altered without the written consent of [Aarts], and where such alteration is permitted or authorized by [Aarts] pursuant to this clause, [Aarts] will immediately on request execute all documents and plans necessary for such purpose. [13] Clause 14 of the Easement is the other critical provision in this piece: If Municipal water becomes available to [NBC’s Lot] and [Cassidys’ Lot] and [Aarts’ Lot] and is sufficient for the commercial purposes of [Aarts], then all of the parties covenant that within 120 days of receiving notice from the Municipality of Langley of the availability of the Municipal water, that they will connect to the Municipal water and all parties will immediately after connection to the Municipal water supply release, discharge and cancel the easement hereby granted. [14] Access to municipal water has been available in the area of the Lots for some time. Whether that water supply “is sufficient for the commercial purposes” of Aarts was an issue of mixed fact and law below and was the subject of expert evidence led by Aarts and NBC. [15] In this regard, NBC’s witness opined that Langley’s water supply system can supply water “in excess of the commercial needs” of Aarts’ Lot. [16] Aarts tendered expert, on the contrary, said he conservatively estimated the cost of that municipal supply at $32,000 per year, at minimum. [17] Aarts’ evidence was to the effect that this cost would be prohibitively expensive to it. It is a live issue whether the cost of water and the cost of connecting to Langley’s municipal water system properly figure into the “sufficient for the commercial purposes of Aarts” inquiry under clause 14 of the Easement. [18] Aarts’ witness concluded: In any event, in my experience, the Township of Langley is not guaranteed to agree to provide municipal water in the volumes required by the Nursery to operate its business. Section 21 of the Township of Langley’s Waterworks Regulation Bylaw 2008 No. 4697. This section confirms that proposed water usage for other than Normal or fire protection use (which includes irrigation and commercial agricultural use) requires the written authorization of the Engineer. Use of municipally-supplied water for these uses requires written application to the Engineer, and such usage will only be permitted upon receipt of written authorization of the Engineer, and may include terms and conditions imposed by the Engineer. In consequence, the provision of municipal water for such purpose as irrigation and commercial agriculture is discretionary. Based on my experience and dealings with the Township of Langley, I am skeptical that the Township of Langley would approve of water connections permitting the 172,800 gallons per day the Nursery reasonably requires to operate its business. III. The Petition [19] The petition was brought under s. 35 of the PLA and Rule 2-1(2)(b) of the Supreme Court Civil Rules . [20] The latter rule allows a party to bring a petition proceeding where an enactment so authorizes. Section 35 does so in the circumstances described therein, which I will canvass below. [21] A petition proceeding is, of course, quite summary and usually expeditious. The petition is heard by a judge in chambers and is based on affidavit evidence only. It has a number of obvious advantages over the formal trial process where there are no serious and disputed questions of fact. [22] NBC sought these orders by way of its petition: 1.         A Declaration that a municipal water supply is available to the Respondents; 2.         A Declaration that the municipal water supply is sufficient for the commercial purposes of the Respondent, Aarts Nursery Ltd.; 3.         An Order that the Respondents connect to the municipal water supply, if they have not already done so; 4.         An Order that once the Respondents are connected to the municipal water supply, the parties will immediately release, discharge and cancel the easement registered in the New Westminster Land Title Office with Registration Number X2935; 5.         Further, or alternatively, a Declaration that the easement registered in the New Westminster Land Title Office with Registration Number X2935 is obsolete; 6.         costs; and 7.         such further and other relief as this Honourable Court may deem just. [23] NBC recited clause 14 of the Easement and alleged the availability of a water supply from the Municipality of Langley, sufficient for the commercial purposes of Aarts. NBC pleaded that Aarts (and the Cassidys, who have allied themselves with Aarts in these proceedings) had breached clause 14 of the Easement. NBC, of course, invoked s. 35 of the PLA . It provides: 35(1)    A person interested in land may apply to the Supreme Court for an order to modify or cancel any of the following charges or interests against the land, whether registered before or after this section comes into force: (a)        an easement; (2)        The court may make an order under subsection (1) on being satisfied that the application is not premature in the circumstances, and that (a)        because of changes in the character of the land, the neighbourhood or other circumstances the court considers material, the registered charge or interest is obsolete, (b)        the reasonable use of the land will be impeded, without practical benefit to others, if the registered charge or interest is not modified or cancelled, (c)        the persons who are or have been entitled to the benefit of the registered charge or interest have expressly or impliedly agreed to it being modified or cancelled, (d)        modification or cancellation will not injure the person entitled to the benefit of the registered charge or interest, or (e)        the registered instrument is invalid, unenforceable or has expired, and its registration should be cancelled. (3)        The court may make the order subject to payment by the applicant of compensation to a person suffering damage in consequence of it but compensation is not payable solely for an advantage accruing by the order to the owner of the land burdened by the registered instrument. [24] It was NBC’s essential position that, by reason of the available municipal water supply, the Easement was obsolete (s. 35(2)(a)). [25] Alternatively, by virtue of clause 14 of the Easement, the parties expressly or impliedly had consented to its cancellation within the meaning of s. 35(2)(c). IV. The Chambers Proceeding and Judgment [26] In order to understand the genesis of the “compromise” ordered by the chambers judge, it is necessary to refer at some length to the submissions below of NBC’s counsel, Mr. Taylor, and his colloquy with the chambers judge. [27] Mr. Taylor advanced the essential submission under s. 35 of the PLA that I have outlined. During the course of his submissions, the chambers judge interjected: THE COURT:  Can there be no good neighborliness in this? Because this is a fight that, although one person my win, it's going to -- it's going to end up with bad feelings because we have three lots, two of whom, from what I hear, are in favour of the easement continuing. Your client wants to move in, I imagine wants their family to live in a happy environment, which means that everybody should get along. Is there no way that this can be resolved so that that happens? THE COURT:  Can this not be solved with some – and this is really speaking off the top of my head -- but some agreement between your client and the other easement holders that if there's a problem, they can get under that wall or part of the wall might have to be taken down? There might never, ever have to be a problem. MR. TAYLOR: Without -- if the easement were to be cancelled and those rights were given in a way that doesn't involve an easement, I expect that would probably resolve my client's concerns, because then he could get an occupancy permit and he could move in. THE COURT:  No, the easement -- I don't see the easement -- and again, really, this is just -- I'm just throwing this out, but I don't see the easement being cancelled, but I can see it being amended to allow for the wall and access, if need be. I don't know. You're squirming, so that might not even be -- MR. PAYNE:   My client would certainly be open to some sort of agreement that would reserve the easement. Just speaking frankly, they're a bit baffled why their neighbour built a wall directly overtop before even beginning proceedings. [28] Chambers then broke, with the encouragement of the chambers judge that the parties use the break to “work together”. [29] Mr. Taylor returned from the break and advised the court that while the parties had “some useful discussions… regrettably, we have to carry on.” Later, Mr. Taylor submitted: In paragraph 96 we're relying on subsections 35(2)(a) and 35(2)(c). Alternatively, and I can say this: To the extent that you are mind to consider the modification of the easement as compared to a cancellation, there is something that I can suggest which may be of assistance to you in that context. The easement in question runs directly beneath the building wall that's constructed at the front of the house. Further to the front of the house there is approximately 4 feet of property owned by my client. So there's the house, the wall and another 4 feet. At present the front wall is right on top of the pipe. A modification of the easement that allowed for a bypass pipe just across the frontage, so in other words, the pipe from the well up to the start of the wall stays. At least a bypass pipe that goes to the front of the wall and across the length of that wall in front of the property and connects again on the other side of it. That bypass pipe would effectively, as Your Ladyship suggested this morning, leave everybody with what they want. In that instance the easement would be modified to cover that area as compared to where the wall is, and the result of that is my client gets his occupancy permit and the city is satisfied, and Aarts Nursery gets its continued easement, gets its access to water, basically has everything that it has now, and it will be able to access that water pipe and there's no issue. So to the extent that the court is more minded to try to fashion something that will be of assistance to both parties rather than making a decision on cancellation, in my submission, of course you have to be under the same section of the act, the authority to modify the easement, and a modification in that respect certainly will need the court to address cost, so there will be a cost of moving that pipe. THE COURT:  So you're saying that if I'm so inclined, then the only matter I'd have to consider is costs. MR. TAYLOR: I believe that to be the case, because -- THE COURT: And your submission on costs? MR. TAYLOR: Well, my submission is, in the circumstances, the cost of that should be either borne entirely by Aarts or significantly by Aarts because – [30] At the end of his submissions, Mr. Taylor provided the chambers judge with further argument on the court’s statutory authority to modify the Easement under s. 35 of the PLA : THE COURT:  But how do I get to the mid ground? MR. TAYLOR: Well, either modification. THE COURT:  Right. MR. TAYLOR: Well, I think section -- the authority for it, My Lady. I can take you to this. Tab 3 of my book of authorities, which is the statute. THE COURT:  That would allow me to modify? MR. TAYLOR: Yes. THE COURT:  Okay. MR. TAYLOR: Yes. That's the statutory authority, and that's in 35(1): A person interested in land may apply to the court for an order to modify or cancel. And sub (a) is an easement. THE COURT:  Okay. MR. TAYLOR: So that's the statutory authority that allows you to go there, and then the other things that I think would come into your consideration is, of course, what kind of a modification may do justice between the parties, and I can't think of anything that could really get to a higher platform than a modification that would leave both parties with the gravamen of what they really want. My client wants to be able to get the occupancy permit and live there. THE COURT:  Right. MR. TAYLOR: And Aarts wants to have access to my client's well and the water supply and be able to access the pipeline in the event there's a problem, and a modification that allows for that one bypass appears to give everybody what they want so that the issue just remains, what would the cost of that be, and I think the court can, if it's so minded, deal with that in a number of different ways. THE COURT:  Okay. MR. TAYLOR: Including the possibility of saying, the first X many dollars will be -- you know, required for the bypass will be funded by one or the other of the parties, and in my submission it would be Aarts. Pay for the first $10,000 and parties have liberty to come back if the costs become something nobody is anticipating. But I'm telling you that my understanding today from inquiring about this is that the cost of that bypass for that specific finite area is anticipated to be less than $10,000. THE COURT:  Okay. Good. Thank you. [31] Counsel for Aarts, Mr. Payne, and Mr. Taylor made the following submissions on the prospect of reaching a negotiated settlement: THE COURT:  I don't want to short circuit. If you want to go ahead on your long submissions, that's fine because I'm willing to hear them. But if we can walk away and everybody is happy, that would be a good thing. MR. PAYNE: My Lady, if it's a matter of negotiated settlement at this point, I do not have instructions to enter into it. THE COURT:  Okay. MR. PAYNE:   But just speaking as counsel, I'm aware that you have that discretion, and I agree that could be a practical solution. I just submit that the petitioner should bear the costs and there should be a costs consideration on top of that for these proceedings, given that they are unnecessary in light of section 13 of the agreement. MR. TAYLOR: Well, to be clear, My Lady, I'm not abandoning my principal position , because I believe strongly it's an appropriate case for cancellation. THE COURT:  Okay. Well, let's go ahead with your argument. MR. TAYLOR: I'm not saying I'm not prepared for the modification, but I'm not prepared to say I'm giving up on my argument about cancellation at all. [Emphasis added.] [32] This brings me to the reasons of the chambers judge. They are brief. [33] After setting out the background and the positions of the parties, the judge seized on the so-called “middle ground” mooted in argument: [17]      There is a solution that both parties agree is feasible. [18]      As set out in paragraph 13 of the Easement Agreement, the owners of Lots 1 and 2 may alter the location of the easement and the pipe if it interferes with the use or enjoyment of their lots: If the location of the easement areas on Lot 3 and Lot 2 at any time interferes with the use or enjoyment or the planned or desired use or enjoyment by the First Grantor of Lot 3, and the Second Grantor of Lot 2, the First and Second Grantor shall respectively have the right, at their sole expense, from time to time, to alter the location of the easement areas and the Grantee's Pipe on the First Grantor’s Lot and Second Grantor’s Lot so long as the rights and benefits of the Grantee hereunder are not otherwise affected and so long as the location where the easement areas and the Grantee’s Pipe meet the boundary between the First Grantor’s Lot and the Second Grantor’s Lot and the Grantee’s Lot is not altered without the written consent of the Grantee, and where such alteration is permitted or authorized by the Grantee pursuant to this clause, the Grantee will immediately on request execute all documents and plans necessary for such purpose. [19]      That clause should dispose of this issue. But it does not as the parties cannot agree on who should bear the cost of moving the pipe. NBC takes the position that Aarts should. Aarts says NBC should. [20]      Not only is it clearly stipulated in the Easement Agreement that NBC is responsible for the cost of moving the pipe, it is in my view, just and equitable that they bear the expense. [21]      Given this mid-ground remedy that both parties agree is workable, I see no reason to go further. It is a happy resolution. It allows Aarts to continue their long established business and the Sidhus to move into and enjoy their home. [34] The chambers judge concluded by making these orders: 1) Pursuant to paragraph 13 of the Easement Agreement, NBC shall relocate the portion of the pipe over which they have erected a concrete and brick wall in a way and to a location agreed upon in advance and in writing by Aarts; and 2) Pursuant to paragraph 13 of the Easement Agreement, NBC is solely responsible for the cost of the relocation of the pipe and any associated expense. V. Analysis [35] I generally observe that, in my view, the parties and the chambers judge have misunderstood the scope of the s. 35 PLA jurisdiction in analyzing and disposing of the essential issues before the court on the application. [36] It is telling that in making the noted orders, the chambers judge did so expressly “Pursuant to paragraph 13 of the Easement Agreement”. [37] The chambers judge was essentially ordering specific performance of the obligations on the parties created by clause 13. However, on the face of that clause, those obligations could only be invoked by the “Grantor and Second Grantor” that is, at this time, NBC and/or the Cassidys. In particular, given the Cassidys’ passive interest in the litigation, the right to call for the relocation of the Easement area, pipe and waterworks, could only be invoked by NBC. NBC clearly did not do so; it did not petition the court for enforcement of this clause in the Easement, nor did it have any intention, as Mr. Taylor’s submission to the judge made clear, to be responsible for the costs of relocating the works. [38] Specific performance, or enforcement generally, of the clauses in an easement agreement cannot be pursued by a petition under s. 35 of the PLA . [39] Again, s. 35(2) contemplates the modification or cancellation of an easement present the alternative conditions in ss. (a) to (e) and if not premature “in the circumstances”. Enforcement of the terms of the Easement, whether they are those contained in clause 13, clause 14 (the requirement to connect to a municipal water supply), or clause 8 (the prohibition on building on the area of the Easement), are matters that must be pursued through the traditional trial process, not the summary petition process under s. 35 of the PLA . [40] Section 35 of the PLA provides a comprehensive code for the modification or cancellation of the interests in land identified in subsection (1). A comprehensive code displaces the common law, such that “the authority of the court to cancel [or modify] an easement is constrained by the specific grounds set out in s. 35(2)”: Lafontaine v. UBC , 2018 BCCA 307 at para. 51; Vandenberg v. Olson , 2010 BCCA 204 at para. 23. [41] What is critical, is the fact that the jurisdiction to cancel or modify the easement is constrained by subsection (2). This point was succinctly summarized by Justice Punnett in Langlois v. Tessaro , 2018 BCSC 1463 [ Langlois ] (aff’d with minor variance in 2019 BCCA 95) at para. 27: For the petitioners to succeed on their application under s. 35 of the Property Law Act , (whether for cancellation or modification of the easement), they must: a)         Demonstrate that the application is not premature; b)         Demonstrate that the application fulfills one of the five criteria in subsection 35(2); and c)         Persuade the court that, in all the circumstances, the court should exercise its discretion in favour of granting the application. [42] The five criteria in s. 35(2) provide the necessary context for the cancellation/modification jurisdiction set out in s. 35(1). That jurisdiction is not at large and, in particular, it is not triggered by allegations of non-performance of obligations under the instrument. [43] This is all to say again that specific performance or enforcement generally of the clauses in an easement must be pursued by a traditional civil action as indeed was done in Langlois . [44] In this regard, it is instructive to look again at the relief claimed in the petition. NBC sought these orders: 1.         A Declaration that a municipal water supply is available to the Respondents; 2.         A Declaration that the municipal water supply is sufficient for the commercial purposes of the Respondent, Aarts Nursery Ltd.; 3.         An Order that the Respondents connect to the municipal water supply, if they have not already done so; 4.         An Order that once the Respondents are connected to the municipal water supply, the parties will immediately release, discharge and cancel the easement registered in the New Westminster Land Title Office with Registration Number X2935; 5.         Further, or alternatively, a Declaration that the easement registered in the New Westminster Land Title Office with Registration Number X2935 is obsolete; [45] In my view, the only claimed relief available under s. 35 of the PLA is that sought in para. 5. The declarations sought in paras. 1 and 2 are necessary findings in enforcing the obligations under clause 14, which are in turn the subject of the enforcement orders sought in paras. 3 and 4. The enforcement of these obligations may only be sought in a traditional civil claim. They do not come within the modification/cancellation jurisdiction vested in the court by s. 35. A judge has the jurisdiction under s. 35 to cancel an easement if the parties have agreed to the cancellation. She does not, however, have the jurisdiction to order specific performance of conditions precedent in order to perfect an agreement so that she may order cancellation. [46] It might be said that to the extent the judge invoked clause 13 in the manner she did, she was “modifying” the Easement under s. 35(1). But that is not what the chambers judge said she was doing. What was done was “ Pursuant to paragraph 13”. In any event, neither party made an application to modify the Easement and the judge made none of the findings of fact necessary before a modification order can be made under s. 35(2) of the PLA . Those findings of fact, again, are set out in s. 35(2) and are summarized by Justice Punnett in the above quotation from Langlois . [47] Finally, it is doubtful, even in these circumstances, that modification is available against the interests of the servient party (NBC) on the application of the dominant party (Aarts): Banville v. White , 2002 BCCA 239. [48] On this appeal, Aarts argues that NBC knew and agreed that a “modification” of the Easement was a possibility and that it was “on the table”. However, an appellate court is not bound by concessions of law made in the court below ( Orphan Well Association v. Grant Thornton Ltd. , 2019 SCC 5 at para. 125) and counsel cannot accord jurisdiction by consent where it is otherwise lacking. [49] Similarly, if the order of the chambers judge were in some way to be squeezed into the s. 35 modification jurisdiction, NBC would rightly submit that the judge’s discretion to assign the costs of the relocation to it was exercised with a view to its breach of the “no construction” covenant, and without regard to the obligation under clause 14 on Aarts to connect to the municipal water supply and without making the findings of fact to determine if indeed clause 14 had been triggered. [50] Finally, in light of Mr. Taylor’s last submission that “I am not prepared to say I am giving up on my argument about cancellation at all”, one cannot characterize what the judge ordered as giving effect to some sort of settlement reached during oral argument. [51] On this analysis, the disposition of the chambers judge cannot stand. It was a well-intentioned judicial compromise that exceeded the judge’s jurisdiction under s. 35 of the PLA and, in any event, is not based on a consideration all of the equities relevant in the matter; that is to say, in ordering that NBC bear the costs of relocation, the judge considered NBC’s alleged breach of the agreement but did not put the possibility of Aarts’ failure to connect to the municipal water supply into the balance. [52] What then of NBC’s petition? It too was misguided. In respect of the relief sought in para. 5 (the only viable relief sought), recall that there are two branches to NBC’s s. 35 case: the Easement is obsolete in light of the availability of a municipal water supply (s. 35(2)(a)) or, alternatively, the parties expressly or impliedly consented to the Easement’s cancellation (s. 35(2)(c)). [53] The obsolescence argument fails at the threshold. The well and pipeline continue to supply water to Aarts’ Lot. The Easement clearly is not obsolete. If Aarts is in breach of clause 14, that is a matter for civil enforcement of the contract. [54] Whether an easement is obsolete depends on the nature of the easement itself and the circumstances of the use of the relevant property; it is not to be decided on a basis of balancing the rights of the parties: Chivas v. Mysek , [1986] B.C.J. No. 2547 (C.A.). As this Court held in Vandenberg at para. 33, on the plain language of s. 35(2)(a), an easement cannot be obsolete in circumstances in which it has been in regular use. [55] In order for the court to cancel the Easement on the basis of obsolescence, evidence would need to be before it that Aarts no longer uses the private water system covered by the Easement. [56] Indeed, before we get to s. 35(2)(a) and the other considerations set out in sections (2)(b) to (e), NBC must have demonstrated that “the application is not premature in the circumstances”. It fails here as well. In Newco Invt. Corp. v. B.C. Transit (1987), 14 B.C.L.R. (2d) 212 (at 223), this Court provided the following guidance on the issue of prematurity: . . . Thus where it appears that considerations, material to a determination whether grounds exist under paras. (a) to (e), have not yet materialized or where, for other reasons, it would be better to defer to a later date consideration of whether the covenant should be struck out, the application should be dismissed. [57] Here, the considerations material to whether grounds exist under s. 35(2)(a) and (c) had not yet materialized. These considerations included the formal notice from the Municipality of Langley of the availability of municipal water, the passage of 120 days from receiving the notice, and the connection by Aarts to the municipal water supply. Accordingly, the application by NBC was premature in the circumstances. [58] Then NBC pursues the “agreed to cancel” submission. That finds its genesis in clause 14 of the Easement. Again, that provides: If Municipal water becomes available to [NBC’s Lot] and [Cassidys’ Lot] and [Aarts’ Lot] and is sufficient for the commercial purposes of [Aarts], then all of the parties covenant that within 120 days of receiving notice from the Municipality of Langley of the availability of the Municipal water, that they will connect to the Municipal water and all parties will immediately after connection to the Municipal water supply release, discharge and cancel the easement hereby granted. [59] However, NBC’s submission ignores the clear conditions precedent that must be satisfied before the parties agree to “release, discharge and cancel the easement hereby granted”. [60] The conditions are: (i) the parties receiving “ notice from the Municipality of Langley of the availability of Municipal water” “sufficient for the commercial purposes of [Aarts]” (emphasis mine) and (ii) the connection of the Lots to the water supply within 120 days of receipt of that notice. [61] There is no evidence in the record that Langley has given such notice. Indeed, if one accepts Aarts’ evidence through its expert, there is some doubt Langley would approve of the needed water connections, and the chambers judge certainly did not make any finding in this regard. [62] When asked about proof of service of the required notice by Langley, counsel for NBC submitted that it was effectively given to all the world by virtue of the fact that municipal water regulated by Langley’s bylaw was available in the area. [63] In my view, that is not the notice contemplated by the Easement. The Easement contemplates a formal notice stating the availability of municipal water, which in turn would trigger a 120 day period within which the parties had to connect to the water system. That has not happened—at least there is no evidence that it has. It is then said by NBC that this aspect of the matter hinged on an application by Aarts to Langley; that this was beyond the control of NBC. There is nothing in the record indicating that Langley would not cooperate with NBC by giving the required notice or, further, that NBC could not compel Langley’s cooperation through an appropriate proceeding. NBC wants to rely on a very significant obligation in the Easement that leads to its very cancellation. It is incumbent on NBC to ensure that the conditions precedent to that cancellation have been performed. [64] Finally, of course, Aarts has not connected to the municipal water supply system. Neither condition has been fulfilled. The “agreed to cancel” argument under s. 35 cannot be sustained. [65] The petition must be dismissed. [66] If Aarts and NBC wish to enforce the obligations under the Easement that benefit them, they must pursue a civil claim in the Supreme Court. However, as I indicated above, a reasoned compromise must be considered. NBC built on the Easement in apparent contravention of clause 8. Aarts arguably has failed to connect to an available municipal water supply thus obviating the need for a private supply. Clause 13 of the Easement does provide a scheme for compromise with the parties modifying that scheme by fairly sharing the costs of relocation of the private works. NBC could do so because whether Aarts is in breach of clause 14 is problematic. Without deciding the question, the phrase “sufficient for the commercial purposes of [Aarts]” must in my view, and contrary to NBC’s submission, involve some consideration of the economics of the matter from the perspective of Aarts’ business operation, perhaps on the basis of a subjective/objective assessment of the impact of those costs on Aarts. And Aarts of course would consider a compromise for the very reason that its position under clause 14 is not at all clear. The Special Costs Award [67] NBC also appeals the award of special costs against it. I note that the decision to award special costs is discretionary and that discretion should not be interfered with on appeal unless the judge made an error in principle or the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9 at para. 27. [68] Special costs are typically awarded when there has been reprehensible conduct on the part of one of the parties: Young v. Young , [1993] 4 S.C.R. 3 at 134. Reprehensible conduct means scandalous or outrageous conduct but also encompasses milder forms of misconduct deserving of reproof or rebuke: Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.) at para. 17. [69] This Court established a bright line rule regarding special costs and pre-litigation conduct in Smithies Holdings Inc. v. RCV Holdings Ltd. , 2017 BCCA 177 at para. 134: Special costs should be reserved to punish and deter reprehensible conduct in the course of litigation. Pre-litigation conduct should not be considered in determining whether such an award is appropriate. There are other suitable mechanisms to censure pre-litigation conduct. The reasons of the chambers judge with regard to the special costs award do appear to be focused on NBC’s pre-litigation conduct (at para. 23): NBC purchased the property fully aware of the Easement Agreement. But it chose to build the wall right on top of the easement, did not halt building when requested and chose instead to complete the wall, then apply to court to cancel the easement. Not only is this behaviour contrary to the Easement Agreement, it is relevant to the issue of costs. I am satisfied that NBC created a problem that did not have to be created, then made resolution of it far more difficult than it should have been. As such an award of special costs against NBC is warranted. [70] The judge made no reference to the ongoing effect of the wall on the terms of the Easement. Instead, she focused on the choices that NBC made prior to the commencement of the litigation, its resistance to out-of-court resolution, and its choice to make what she viewed as an unnecessary petition. The problem that NBC “created” is properly the subject of a claim for relief in a civil action, not a special costs award following a petition. [71] A failure to resolve an issue out of court also does not attract special costs. Litigation is an inherently adversarial process and parties are generally entitled to have their claims or petitions heard on their merits. [72] In my opinion, the judge erred in principle by awarding special costs against NBC. VI. Disposition [73] I would allow the appeal from the orders of the chambers judge but dismiss the petition with liberty to proceed as I have indicated. I would set aside the award of special costs. [74] In the odd circumstances of this litigation, I think it is appropriate that the respondents have their costs of the chambers application and this appeal. “The Honourable Chief Justice Bauman” I agree: “The Honourable Madam Justice Dickson” I agree: “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Perkins, 2021 BCCA 9 Date: 20210112 Docket: CA45393 Between: Regina Respondent And Corey Jim Perkins Appellant Before: The Honourable Madam Justice Fenlon The Honourable Madam Justice Griffin The Honourable Mr. Justice Voith On appeal from: An order of the Supreme Court of British Columbia, dated March 12, 2018 ( R. v. Perkins , 2018 BCSC 823, Chilliwack Docket 65705‑3). Counsel for the Appellant (via videoconference): D. Markovitz Counsel for the Respondent (via videoconference): C.W. Greenwood Place and Date of Hearing: Vancouver, British Columbia December 18, 2020 Place and Date of Judgment: Vancouver, British Columbia January 12, 2021 Written Reasons by: The Honourable Madam Justice Griffin Concurred in by: The Honourable Madam Justice Fenlon The Honourable Mr. Justice Voith Summary: Appeal from conviction on two counts of possession of cocaine, six counts of illegal possession of firearms, and two counts of possession of prohibited devices. The charges arose from the seizure of drugs, firearms, and firearm accessories upon the execution of various warrants. At trial, the appellant challenged the facial validity of the warrants. The judge initially held that the warrants were invalid, based on the informations to obtain (“ITOs”) that were redacted for informant protection. After the Crown provided the judge with partially unredacted ITOs, the judge found the warrants were valid. The appellant appeals on the grounds that the unredacted information was insignificant, the new information revealed had been virtually conceded, and the judge treated informant evidence inconsistently. Held: Appeal dismissed. The trial judge did not err in finding the unredacted information was significant or in his weighing of that evidence. If the appellant did concede the inference available from the unredacted ITO, the judge did not accept it. There was no inconsistency in the way the judge treated informant evidence. Reasons for Judgment of the Honourable Madam Justice Griffin: Introduction [1] The appellant, Corey Perkins, appeals his convictions on March 12, 2018, of two counts of possession of cocaine and fentanyl for the purpose of trafficking; six counts of illegal possession of various firearms (including restricted semi‑automatic rifles, a prohibited sawed‑off shogun, and restricted or prohibited handguns); and two counts of possession of prohibited devices, namely detachable cartridges and silencers. [2] The firearms were discovered after the execution of search warrants on a storage locker, the keys to which were in the appellant’s blue Mercedes car, which had been the subject of a tracking warrant and was also the subject of a search warrant. The keys found in the Mercedes also opened a safe inside the storage locker, which contained cocaine, and a safe located in a barn on Taylor Road. The police searched the barn and found an additional firearm, as well as drugs in the safe. The appellant’s fingerprints were inside the safe. An additional firearm was discovered on execution of a search warrant on the appellant’s residence. Cocaine and fentanyl were also found in an envelope delivered by the appellant to a Canada Post outlet. Similar packaging was found in the barn. Surveillance of the appellant showed him attending the storage locker and the Taylor Road barn and moving containers around these places as well as to the Canada Post outlet. The surveillance of the appellant’s Mercedes revealed short meetings in parking lots, consistent with drug transactions, based on police experience. [3] This appeal focuses on a number of voir dire rulings at trial concerning evidence obtained by way of a production order served on the owner of the storage facility, a general warrant for the storage locker, and search warrants covering the storage locker, the barn, and the appellant’s home and vehicle. The rulings addressed applications by the appellant for declarations that his right to be secure against unreasonable search and seizure, guaranteed by s. 8 of the Charter , was violated by the searches, and for an order pursuant to s. 24(2) of the Charter excluding all evidence obtained. [4] The judge initially held that the information to obtain (“ITO”) was insufficient to justify the production order and the general warrant, in that the information did not provide reason to believe that the appellant was someone who had committed a drug offence. This was in part because the judge was unable to give weight to information provided by a confidential informant known as Source E. That information was initially redacted from the evidence presented to the judge in order to protect the identity of the informant. [5] After the judge found the ITO to be incapable of supporting the warrants, the Crown supplemented the evidence placed before the judge. This supplemental evidence revealed to the judge that Source E identified the appellant by sight, used a single consistent name for him, and had picked up “cocaine [redacted]” from him. The judge approved a judicial summary of the evidence to this effect, which was provided to the appellant. This was all done pursuant to step six of the procedure laid out in R. v. Garofoli , [1990] 2 S.C.R. 1421 at p. 1461. [6] Based on the supplemented ITO, the judge upheld the production order, general warrant and other search warrants as valid. The evidence obtained by use of these warrants was then admitted against Mr. Perkins. [7] The sole issue on appeal is whether the judge erred in law in finding that the additional, unredacted information in the ITOs, together with the pre‑existing information, was sufficient to support the production order and warrants. The appellant submits that there was no material change in the information from what the judge had earlier determined to be insufficient. The appellant characterizes the judge’s decision as reversing his earlier rulings. [8] It is important to note that the appellant takes no issue with the judge’s adoption of step six of the procedure in Garofoli . The appellant also does not take issue with the judicial summary. He accepts that the judicial summary provided a sufficient basis for the appellant to appreciate the nature of the unredacted evidence shown to the judge. [9] Rather, the appellant simply says the unredacted information provided to the judge, and summarized for the appellant, was too insubstantial to have tipped the balance and to have caused the judge to change his conclusion that the ITO was insufficient to support the production order and warrants. [10] For the reasons that follow, I am not persuaded that the judge erred. The judge did not “reverse” his earlier rulings. He followed the correct procedure in considering the unredacted information, applied the correct legal test, and properly appreciated all of the evidence in upholding the production order and warrants as valid. Standard of Review [11] Before I delve into a review of the background and various rulings by the trial judge concerning the warrants, it is important to remind ourselves of the standard by which the appeal court may review the decision of a trial judge who is tasked with the review of a judicial officer’s order authorizing a search or seizure. Court of Appeal Standard of Review [12] This Court’s role in reviewing the trial judge’s findings in respect of a warrant review is deferential. The Court should decline to interfere with the trial judge’s decision absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence: R. v. Slemko , 2020 BCCA 207 at para. 53; R. v. Reid , 2017 ONCA 430 at para. 8; R. v. Grant (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at para. 18, leave to appeal ref’d [1999] S.C.C.A. No. 168; R. v. Ebanks , 2009 ONCA 851, leave to appeal ref’d [2010] S.C.C.A. No. 84. Reviewing Judge’s Standard of Review [13] The trial judge’s role is to determine whether the order could have been granted based on the record that was before the authorizing justice, as amplified on review, not whether, in the view of the trial judge, the order should have been granted: R. v. Whitaker , 2008 BCCA 174 at para. 43; leave to appeal ref’d [2008] S.C.C.A. No. 296; R. v. Araujo , 2000 SCC 65 at para. 51; R. v. Al‑Maliki, 2005 BCCA 157. [14] The production order and warrants at issue on this appeal all required the justice to first conclude that the evidence in support of the warrant provided “reasonable grounds to believe” that the offence described in the warrant had been committed. The offences alleged in this case were possession of drugs for the purpose of trafficking and trafficking in drugs contrary to ss. 5(1) and (2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“ CDSA ”). It was the determination of “reasonable grounds to believe” these offences had been committed that is at issue on this appeal. [15] The justice considering the applications for the production order and warrants at issue had to also determine that there were reasonable grounds to believe that execution of the order and warrants would afford evidence of these offences. The reviewing judge’s determination that this aspect of the test was met is not at issue on this appeal. [16] The “reasonable grounds to believe” standard is applied in several different contexts. It was explained in Whitaker : [39]      The “reasonable grounds” standard is well‑known. The Supreme Court of Canada said this about it in Mugesera v. Canada (Minister of Citizenship & Immigration) , [2005] 2 S.C.R. 100, 2005 SCC 40: 114      The first issue raised by s. 19(1)(j) of the Immigration Act is the meaning of the evidentiary standard that there be “reasonable grounds to believe” that a person has committed a crime against humanity. The FCA has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities: Sivakumar v. Canada (Minister of Employment and Immigration) , [1994] 1 F.C. 433 (C.A.), at p. 445; Chiau v. Canada (Minister of Citizenship and Immigration ), [2001] 2 F.C. 297 (C.A.), at para. 60. In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information: Sabour v. Canada (Minister of Citizenship & Immigration) (2000), 9 Imm.L.R. (3d) 61 (F.C.T.D.) [40]      The judgment of Madam Justice Wilson in R. v. Debot , [1989] 2 S.C.R. 1140 (at 1166), is also apt: The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J.A. that the appropriate standard is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or “ prima facie case”. The phrase “reasonable belief” also approximates the requisite standard. [41]      A determination with respect to whether reasonable grounds exist requires a consideration of the “totality of the circumstances”: R. v. Bracchi , 2005 BCCA 461, 201 C.C.C. (3d) 35 at para. 20; Re Church of Scientology & The Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.) at 502. This means that, “it is important that the Information be examined as a whole and not one piece of evidence at a time, because each piece of evidence colours other pieces of evidence and a fuller picture emerges by considering all of the evidence together”: R. v. Lam , 2002 BCCA 99, 172 B.C.A.C. 161 at para. 10. [42]      Further, the assessment of the facts relied upon to establish reasonable grounds is made on a practical, non‑technical, and common sense basis: R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont.Ct.)(G.D.)) at 367. As Mr. Justice Cumming observed in R. v. Charlton (1992), 15 B.C.A.C. 272, the person deciding whether the reasonable grounds standard has been met is entitled to “put two and two together”: para. 34. [Emphasis in original.] [17] Warrants are obtained on an ex parte basis, frequently relying on information provided by confidential informants. [18] The dilemma when reviewing the basis for a warrant is how to protect three interests: enforcing the law; informer privilege, which is designed to protect a confidential informant’s safety; and an accused’s right to make full answer and defence: R. v. Crevier , 2015 ONCA 619 at para. 1. In Garofoli , the Supreme Court of Canada established a six‑step editing procedure to address that dilemma. [19] The Garofoli procedure can be briefly summarized as follows. Initially, the information produced to the defence and the court on review of the warrant can be edited to protect the identity of the confidential informant. If, after redaction of the confidential information, the reviewing judge considers the remaining information to be insufficient to support the warrant, the Crown may apply to produce some of the previously redacted material to the judge. This is “step six” of the Garofoli procedure. The reviewing judge will only consider the newly unredacted material if satisfied that a judicial summary of it has been provided to the defence that provides the defence with enough knowledge to still be able to challenge it. It is this procedure that was followed here, and the appellant does not suggest it was done incorrectly. [20] When considering whether information provided by a confidential informant, together with other information, meets the “reasonable grounds for belief” standard, the reviewing judge must consider whether the ITO provides sufficient details to be able to assess the informant’s reliability. In R. v. Debot , [1989] 2 S.C.R. 1140 at p. 1168, Wilson J. identified three criteria as the focus of assessing an informant’s evidence: the information must be compelling; it must come from a credible source; and it must be corroborated by police investigation prior to being relied on. The consideration of the informant’s credibility can include evidence from the police as to the quality of the information received in the past from this informant and the motives of the informant. None of these factors form a separate test, and weaknesses in one area may be offset by strengths in another, but these factors are part of the “totality of the circumstances” that must meet the standard of reasonable grounds for belief. [21] In a challenge to an issued warrant, a distinction is made between facial defects and subfacial defects, as explained in Slemko at para. 2: A warrant may be quashed when the Information to Obtain (“ITO”) the warrant does not set out reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the search (a facial defect); or because the reviewing judge is satisfied the warrant was founded upon false, inaccurate or misleading evidence (a subfacial defect). [22] The present appeal involves a facial challenge to the warrants in question. There is no allegation that the information provided to obtain the warrants was in error, and so there was no amplification of the record on review to correct good faith errors. [23] The appellant does not allege that the judge erred in law in respect of any of the above principles that applied to his task of reviewing the issuance of the production order and warrants. [24] Indeed, it is clear that the judge properly instructed himself on these principles in his reasons, citing Whitaker and Debot , among other authorities. Background [25] The judge was required to make a number of voir dire rulings regarding admissibility of evidence obtained by warrant. Not all of these rulings are the subject of appeal, but the judge’s analysis of the evidence set out in the relevant ITOs was sometimes a necessary stepping‑stone for his subsequent rulings. [26] I will focus only on those rulings relevant to the issue on this appeal. February 1, 2018 Ruling re Tracking Warrant [27] At trial, the appellant challenged the validity of a warrant issued on November 6, 2014, to track the movements of a certain blue Mercedes automobile registered in the name of the appellant (the “Tracking Warrant”). The Tracking Warrant was issued on the basis of an ITO affirmed by Cst. Davies on November 6, 2014. The information in this ITO was carried forward into additional ITOs affirmed by Cst. Davies. [28] The appellant sought a declaration that the Tracking Warrant should not have been granted. The judge dismissed that application on February 1, 2018, in reasons indexed as 2018 BCSC 232 (“Ruling re Tracking Warrant”). No issue is taken with this decision. [29] While the Crown did not seek to have evidence obtained by way of the Tracking Warrant admitted at trial, that evidence was relevant because it was included in subsequent ITOs to obtain additional warrants, which were being challenged and are at issue on appeal. [30] In the judge’s Ruling re Tracking Warrant, he noted that the standard for issuing such an order is “reasonable grounds to suspect” that an offence has or will be committed and that information relevant to the commission of the offence can be obtained through use of a tracking device: s. 492.1(1) Criminal Code ; R. v. Chehil , 2013 SCC 49. This standard is lower than the “reasonable grounds to believe” standard that applies to other warrants at issue. [31] The judge noted that the ITO made five assertions in support of a reasonable suspicion that a tracking device on the Mercedes would assist in obtaining information relevant to the offence of drug trafficking and possession for the purpose of trafficking, at para. 17: (a) that Mr. Himpfen (“Himpfen”) and Ms. Losier (“Losier”) were drug dealers; (b) that Himpfen was observed meeting or tracked to a meet with the Mercedes; (c) that Corey Perkins was the registered owner of the Mercedes and had been seen driving it; (d) that Corey Perkins was reputed to be a drug dealer; and (e) that Himpfen was supplied indirectly by someone called “Corey.” [32] The ITO set out evidence from four confidential informants, Sources A, B, C, and D. The ITO set out information relating to their reliability, including their past history and the extent to which the information they provided was confirmed by other sources. The information provided by Source B was redacted. There was also surveillance evidence. [33] It is convenient to set out the judge’s review of the evidence in the ITO, because, as noted, this evidence was a foundational part of the record and context for the judge’s subsequent rulings: THE ASSERTION THAT HIMPFEN AND LOSIER WERE DRUG DEALERS [19]      Paragraphs 22 to 28 of the ITO set out information obtained from Source A, who had a limited history with the Abbotsford Police as an informant, but whose information had in the past led to the arrest of persons with outstanding warrants. [20]      Source A provided information that Esther Losier and Jason Himpfen sold cocaine and methamphetamine including out of Losier’s car and out of Himpfen’s house on Tims Street. Source A provided specific details that were confirmed by the police including that the two were “seeing” each other, that Losier lives on Capilano Place, and that Himpfen “hangs around” the “tent city” near the Salvation Army. The information that people came to Himpfen’s house at 2856 Tims Street to buy drugs is consistent with police observations of multiple people attending that address for short periods of time. [21]      Source C provided information on Himpfen and Losier, some of which confirmed A’s information; for example, the assertion at paragraph 30(a) that drugs were being sold out of 2856 Tims Street. Source C also provided information at paragraph 30(d) about three specific vehicles that Himpfen and Losier were driving, a Nissan 350Z, a Dodge Magnum, and a GMC Yukon, which they used to reload their drug dealers. The use of these three specific vehicles by Himpfen and Losier was confirmed by police surveillance. [22]      Like Source A, Source C had a limited history as an informant, and his credibility might initially be assessed as low, but the information about the three vehicles was very specific, and it was confirmed by other evidence. [23]      I am satisfied that the information provided by Source A and by Source C should not be entirely discounted, but rather can be considered along with the other evidence as part of the constellation of facts relevant to the assessment of the reasonable suspicion standard. [24]      In any event, the assertion that Himpfen and Losier were drug dealers was supplemented by the facts set out in paragraphs 36 to 37, that Himpfen and Losier were arrested in the Nissan on October 28, 2014 for possession of controlled substances, at which time Losier had one cell phone in her boot and another in her bra, and Himpfen had $1,522 in folded bills in his pants pocket. Losier was searched, and a plastic bag was found in her vagina. The bag contained a light brown powder and a bag of white crystals, which were suspected of being heroin and methamphetamine. THE ASSERTION THAT MR. HIMPFEN MET WITH THE MERCEDES OWNED BY MR. PERKINS [25]      Surveillance evidence set out at paragraphs 32 to 33 of the ITO showed that on October 21, 2014, Himpfen and Losier left the Tims Street house in the Yukon and an hour later parked in the parking lot of the Twister Gym beside a blue Mercedes. Himpfen got out of the Yukon and into the front passenger seat of the Mercedes. About 30 seconds later, he got out of the Mercedes and back into the Yukon. Both vehicles then left the area. Cst. Davies affirmed that in his experience, these actions were consistent with a drug transaction. [26]      The Yukon went directly to 32847 Capilano Place for two minutes and then returned to the Tims Street house. [27]      During the surveillance, Cst. Nugent observed that the licence plate of the blue Mercedes contained the characters, “AD8.” A subsequent check with ICBC showed a possible match for a blue Mercedes in Abbotsford with the licence, “AD8 81N.” A CPIC check showed the registered owner of that vehicle to be Corey Jim Perkins of 34239 Green Avenue, Abbotsford, British Columbia. A query of the Abbotsford Police Department booking system produced a booking photo for the name Perkins at the Green Avenue address, and that photograph was circulated to other police members. Surveillance on October 27, 2014, showed Mr. Perkins exiting the residence at 34239 Green Avenue and driving away in the Mercedes. He drove to a farm property at 29939 Taylor Road. At paragraph 34(d) of the ITO, it states, “Perkins appeared to be working in a greenhouse.” [28]      On November 3, 2014, Himpfen was observed exiting the Tims Street house and driving away in the Nissan. A tracking device on the Nissan showed that it stopped on Satchell Street just west of Ross Road. At the same time, the Mercedes was seen leaving eastbound from the same area. Satchell Street is a rural farm road, and no other vehicles were observed in the area at the time. The Mercedes parked at 29939 Taylor Road, and Corey Perkins was confirmed as the driver. The Nissan did not stop until it entered the driveway of the Tims Street house, where Himpfen was seen exiting the Nissan carrying a small white grocery bag. THE ASSERTION THAT MR. PERKINS WAS REPUTED TO BE A DRUG DEALER [29]      Paragraph 42 of the ITO shows that Cst. Davies performed a CPIC and PRIME search on November 4, 2014, and found that Corey Jim Perkins has convictions for trafficking in a Schedule I substance in 2009, a conviction for production of a Schedule I substance in 2009, and a conviction for possession of a Schedule I substance for the purpose of trafficking in 2009. THE ASSERTION THAT HIMPFEN WAS SUPPLIED INDIRECTLY BY SOMEONE CALLED “COREY” [30]      Source D provided information that Phil Aslin works for someone named “Corey” and that Phil Aslin supplies Himpfen with drugs. This information lacks specificity, in that Source D provided no surname for the person named “Corey”. As well, Source D had a very limited history as an informant, and police had never before acted on any information supplied by him. [31]      Nevertheless, his information is consistent with a PRIME report that Phil Aslin was a passenger in a vehicle driven by Corey Perkins on April 16, 2014. [32]      While the information supplied by Source D is entitled to very little weight, it need not be discounted in its entirety, but rather can properly be considered as one small and relatively insignificant part of the overall constellation of circumstances. I say this bearing in mind that the evidence is not to be evaluated on a piecemeal basis. [34] The judge considered the circumstantial evidence and concluded it met the reasonable suspicion standard (para. 39). February 7, 2018 1 st Ruling re Production Order [35] Another voir dire ruling was made on February 7, 2018, indexed at 2018 BCSC 307 (the “1 st Ruling re Production Order”). This concerned a production order granted on December 10, 2014, by a justice of the peace (the “Production Order”), requiring the production of information by a storage company. The information sought concerned video, customer information, contracts and pass codes relating to a specific storage locker. [36] The Production Order had been granted on the basis of an ITO provided by Cst. Davies, dated December 10, 2014. That ITO built on the earlier ITO provided by Cst. Davies that had been used to support the Tracking Warrant. [37] The judge recognized and stated that the task before him was different than the task of reviewing the Tracking Warrant. Whereas the latter was subject to the “reasonable suspicion” standard, the present task was subject to the “reasonable grounds to believe standard”: REASONABLE GROUNDS STANDARD [12]      Unlike a tracking warrant, where the application materials must satisfy a reasonable suspicion standard, the legislation in relation to production orders and general warrants sets the bar higher and requires that the prerequisites be established on the standard of reasonable grounds to believe. [13]      Reasonable grounds are something more than suspicion, but less than the civil standard of a balance of probabilities, and less than a prima facie case . It is a practical, non‑technical, and common sense standard that requires a consideration of the totality of the circumstances: R. v. Debot (1989), 52 C.C.C. (3d) 193 at p. 213 (S.C.C.); R. v. Whitaker , at paras. 39‑42; R. v. Lam , 2002 BCCA 99 at paras. 7‑8; and R. v. Liu , 2014 BCCA 166 at paras. 33‑39. [14]      In reviewing the application materials submitted for a production order or a warrant, the grounds must be assessed from the standpoint of a reasonable person standing in the shoes of the police officer, and in this respect the experience of the affiant is relevant: R. v. Tran , 2007 BCCA 491 at paras. 12‑13. [15]      Where the affiant relies on information obtained from a confidential informer, the court must assess the informer’s reliability, including past performance, motive, and whether the information was compelling, credible, and corroborated, although weakness in one area may be compensated for by strengths in the others: R. v. Debot at p. 215. [16]      Reasonable grounds can be based in part on reputation evidence, including the reputation of the suspect and the reputation of people with whom the suspect associates, although the weight to be given to such evidence will depend in part on its reliability: R. v. Debot at pp. 215‑216. [38] After reviewing the law, the judge considered the evidence in the ITO, as redacted, and whether it provided a basis on which the justice could have found there were reasonable grounds for Cst. Davies’ stated belief that the appellant had committed a drug offence and that production of the data relating to the storage locker would afford evidence respecting the commission of that offence. [39] The judge noted that in his Ruling re Tracking Warrant he found that the Tracking Warrant was properly issued, but the standard for a tracking warrant was only reasonable suspicion, not reasonable belief. In the 1 st Ruling re Production Order, the judge noted that the earlier ITO would not have met the standard of reasonable grounds to believe (para. 26). [40] The judge thus moved on to consider whether the additional information in Cst. Davies’ December 10, 2014 ITO was sufficient to raise the level of confidence from that of reasonable suspicion to reasonable grounds to believe the appellant committed a drug offence. [41] The judge found that there were four categories of additional evidence: 1. Additional evidence that the appellant regularly drove the blue Mercedes, including on dates in November and December 2014, all of which strengthened the inference that it was the appellant in the Mercedes when it was seen meeting in suspicious circumstances with Himpfen’s Yukon on October 21, 2014 (para. 30); 2. Information that even after his arrest, Himpfen continued to be involved with activities consistent with drug activities. That strengthened the inference that there may have been a drug transaction between Himpfen and the appellant when Himpfen’s vehicle and the Mercedes were tracked in close proximity to each other near a rural farm (para. 31); 3. Two further occasions when the appellant was the subject of surveillance and was seen driving his Mercedes to brief meetings with persons in circumstances consistent with drug activities. In one meeting in a parking lot, a person entered the Mercedes, left after one minute and drove away. In another meeting in a different parking lot, the appellant’s Mercedes was parked adjacent to a vehicle; the appellant entered the other vehicle, and in under two minutes left the other vehicle and drove away. The driver of the other vehicle was someone with a record for possession for the purpose of trafficking; and 4. New evidence from a confidential informant, described as Source E. [42] The earlier ITO had not referred to Source E. The new ITO stated that: Source E had been providing information since 2014; the information he provided resulted in one tracking warrant and two CBSA search warrants in which controlled substances were located and seized; Source E was motivated by money and consideration of current charges and was awaiting disposition on something; and the information he provided was based on personal knowledge. [43] The judge observed that the paragraph of the ITO setting out the information provided by Source E was heavily redacted, leaving it “impossible to tell” if the information was “very significant or inconsequential”. The judge noted: [37]      On this review, however, almost the entirety of paragraph 43 has been redacted . What is left unredacted is just parts of clause (f), clause (g), and clause (i) . Clause (f) speaks of Source E identifying a booking photo of Corey Perkins as, and then there is a redaction . Clause (g) says that Source E described, and then there is a redaction, followed by the words, “as white and skinny with a long skinny face and had a tattoo on the top of his hand”, after which Cst. Davies added the comment that Cst. Toews observed a tattoo on the top of Perkins’ hand . Clause (i) states that Source E picked up cocaine, and then there is a redaction, followed by the words “directly from” followed by another redaction, and then the comment of Cst. Davies that Perkins has a criminal record for drug trafficking . [38] Depending on what is in those portions that have been redacted, this information from Source E could be very significant or it could be completely inconsequential . In its current redacted form, it is impossible to tell, and it would be wrong to speculate . [Emphasis added.] [44] Because of the redactions, the judge concluded that he could not place any weight on information provided by Source E (para. 39). [45] The judge found that the other additional information had provided a stronger basis for believing that the appellant was involved in a drug offence than what was provided in the earlier ITO (para. 40). But, while the case was “ very close to the line ”, he concluded that the “reasonable grounds for belief standard has not been met on the basis of the December 10, 2014 ITO as currently redacted ” (para. 42; emphasis added). The judge held that “on the basis of the redacted ITO, there were not grounds upon which the justice could have properly issued the production order” (para. 43; emphasis added). February 8, 2018 2 nd Ruling re Production Order [46] Following the judge’s 1 st Ruling re Production Order, the Crown immediately applied to have the court consider a partially unredacted version of the ITO. The judge approved a judicial summary of this additional information, which was provided to the appellant. [47] After considering the additional information, the judge issued a second ruling with respect to the production order on February 8, 2018, indexed at 2018 BCSC 308 (the “2 nd Ruling re Production Order”). [48] As explained in the 2 nd Ruling re Production Order, the judge was provided with a new page of the ITO, revealing to him some of the information that was previously redacted (although other redactions remained). The judge approved a judicial summary of the new material that he was shown, and that summary was provided to the appellant. The judge explained the nature of the new information: [5]        With the new information that was not before me at the time of my ruling on February 7, 2018, paragraph 43(f), (g) and (i) of the ITO may now be understood in this way, as explained in the judicial summary: (f)         Source E identified a booking photo of Corey Perkins as being [NAME]. (g)        Source E described [NAME] as white and skinny with a long skinny face and had a tattoo on the top of his hand [Cst. Toews observed a tattoo on the top of Perkins’ hand]. . . (i)         Source E picked up cocaine [redacted] directly from [NAME] [Perkins has a criminal record for drug trafficking]. [6]        In the previously redacted version of this material, it was not clear whether Source E was referring to the same individual in clauses (f), (g) and (i). Following the Garofoli Step 6 procedure, it is now clear that he was referring to the same person in each of those clauses. That is, Source E identified a booking photo of Corey Perkins as being a person he referred to by a certain name. He described that person as being white and skinny with a long skinny face, and had a tattoo on the top of his hand and he picked up cocaine [redacted] directly from that person. [49] The judge noted two arguments advanced by the appellant. [50] One argument was that the appellant did not know the specific name that Source E used, which would help him in knowing whether Source E was mistaking him for someone else. The Crown position was that revealing the actual name would compromise informant privilege. [51] The second argument advanced by the appellant was that the new information did not add anything significant to what was known before. In particular, the appellant noted that the information in (i) above, which states that Source E picked up cocaine from the appellant, was undated. Since it was known from information in the earlier ITO that the appellant had a previous conviction for a drug offence in 2009, it was possible that Source E was referring to the transaction for which the appellant had previously been convicted. [52] The judge considered these arguments but noted that the issue was not whether the new information on its own was sufficient, but whether “the entire constellation of information … is sufficient to provide reasonable grounds for belief” (para. 11). [53] The judge found that the additional information, along with the earlier information from the December 12, 2014 ITO, did provide reasonable grounds for Cst. Davies’ belief that the appellant was involved in a drug offence (para. 29). [54] The judge went on to consider the second requirement for obtaining a warrant: whether the material provided reasonable grounds to believe that the production order would afford evidence of the offence. He concluded that it did. The appellant does not take issue with this aspect of the judge’s analysis. February 8, 2018 1 st Ruling re General Warrant [55] The judge next considered an application by the appellant for a declaration that a general warrant to search the storage locker (the “General Warrant”) should not have been granted. This was the same storage locker that was the subject of the Production Order. The General Warrant allowed access to the storage locker, as well as examining, photographing and taking samples of the contents. [56] On execution of the General Warrant, numerous firearms were found in the storage locker, as well as ammunition and relatively small quantities of drugs. [57] The judge’s first ruling on this was on February 8, 2018, in reasons indexed as 2018 BCSC 309 (“1 st Ruling re General Warrant”). The basis for the General Warrant was an ITO of Cst. Davies affirmed December 12, 2014, the majority of which was identical to the December 10, 2014 ITO for the Production Order, including the redactions as to the information provided by Source E. [58] The judge concluded, for substantially the same reasons as in the 1 st Ruling re Production Order, that on the basis of the redacted ITO he could “place no meaningful interpretation of the evidence from Source E”. Again, the judge held that “although the case is very close to the line”, the standard had not been met on the issue of whether there were reasonable grounds for Cst. Davies’ belief that the appellant had committed a drug offence. As such, the General Warrant could not be sustained (para. 3). February 9, 2018 2 nd Ruling re General Warrant [59] The Crown then followed the same procedure as with the Production Order, as outlined in step six of Garofoli . A partially unredacted version of the ITO was produced to the judge, and a judicial summary of the newly produced material was provided to the appellant. The judge then made a second ruling regarding the General Warrant for the storage locker, indexed at 2018 BCSC 310 (“2 nd Ruling re General Warrant”). [60] The judge considered similar arguments advanced by the defence as had been advanced in the 2 nd Ruling re Production Order, to the effect that: the additional information was insufficient and not material because the appellant did not know the name used by Source E, hindering his ability to know whether the source was mistaken; and since the previous information already disclosed that the appellant had a criminal record from 2009, that conviction might have been the drug transaction that Source E was referring to. [61] Applying similar albeit somewhat expanded reasoning as he had in respect of the 2 nd Ruling re Production Order, the judge concluded that the additional information, together with the other material from the December 12, 2014 ITO, was sufficient to provide reasonable grounds for Cst. Davies’ belief that the appellant was involved in a drug offence of trafficking or possession for the purpose of trafficking (para. 29). [62] The judge went on to consider the question of whether there were reasonable grounds for belief that information concerning the offences would be obtained by way of the General Warrant. The judge reviewed the surveillance evidence in more detail, linking the appellant’s movements to the storage facility and linking the movements from the storage facility to drug trafficking, and answered this question in the affirmative, upholding the General Warrant. This aspect of the judge’s reasoning is not at issue on appeal. February 16, 2018 Ruling re CDSA Warrants [63] The judge was subsequently required to consider the validity of four search warrants issued pursuant to the CDSA (the “ CDSA Warrants”). The judge’s ruling in this regard was on February 16, 2018, and is indexed at 2018 BCSC 312 (“Ruling re CDSA Warrants”). [64] The warrants were to search, respectively: the storage locker; the residence of the appellant; the blue Mercedes; and a barn located on Taylor Road in Abbotsford. [65] A single ITO was sworn by Cst. Davies on December 15, 2014 in respect of the CDSA Warrants. [66] While the judge expressly adopted his previous rulings, he also meticulously set out the standard of review applicable to the issuance of the warrants and the standard required of “reasonable grounds to believe”. He carefully reviewed the information in the ITO that pre‑existed the information that came from Source E. Rather than splitting the matter into two separate hearings, at this voir dire hearing the Crown applied to have the judge consider a partially unredacted version of Source E’s evidence, in accordance with step 6 of the Garofoli procedure. [67] The same information was provided to the judge and the same judicial summary was provided to the appellant of Source E’s evidence as was the case in the 2 nd Ruling re Production Order and 2 nd Ruling re General Warrant. [68] Similar arguments were advanced by the defence as to the insignificance of the evidence from Source E. The judge reached similar conclusions as he did in the 2 nd Ruling re Production Order and 2 nd Ruling re General Warrant, namely, that the newly redacted information, together with the “entire constellation of evidence from the ITO”, was sufficient to establish reasonable grounds to believe that the appellant was involved in drug trafficking or possession for the purpose of drug trafficking (para. 54). [69] The judge next turned to the question of whether there were reasonable grounds to believe that any drugs or drug‑related items would be found in the four places to be searched pursuant to the CDSA Warrants. The judge answered this question in the affirmative with respect to three of four places, but in the negative with respect to drugs at the private residence. A s. 24(2) Charter application then followed with respect to the items found at the residence, with the judge ruling the evidence admissible: 2018 BCSC 395 at para. 31. These aspects of the judge’s analysis are not in issue on appeal. Trial Judgment [70] At trial, the Crown relied on surveillance evidence, evidence obtained by search warrants, a police interview of the appellant after his arrest, and admissions. The combined evidence was sufficient to persuade the judge beyond a reasonable doubt of the appellant’s guilt. [71] The judge imposed a global sentence of eight years and 10 months’ imprisonment, after taking into account a credit of 38 months served in pre‑trial custody. Appellant’s Position on Appeal [72] The appellant submits that the issue on appeal is very narrow. As he puts it: was there any material change in the unredacted information from Source E to justify a reversal of the judge’s original rulings? [73] The appellant argues that the information from Source E that was unredacted was immaterial and could not have changed what was previously insufficient evidence to support reasonable grounds to believe the offences had been committed. I have grouped the appellant’s arguments about the insufficiency of the new evidence into the following three points: 1. Significant parts of Source E’s evidence remained redacted and there were gaps and a lack of detail in Source E’s evidence, all of which affected the reliability and relevance of his evidence; 2. The defence had made a “virtual concession” that the person Source E was referring to by name was the same person seen in the photograph, so nothing new was established by confirming that by way of the unredacted information; and 3. The judge’s reasoning after receiving the additional unredacted information from Source E was inconsistent with how he had previously treated evidence from other informants. [74] The Crown disagrees with each of the three points. Analysis [75] I will address the applicant’s three challenges to the sufficiency of Source E’s evidence in turn. Argument that Source E’s Evidence Remained Immaterial [76] The appellant suggests that Source E’s redacted evidence, even after it was revealed he was referring to the same named person identified as the appellant, was so undetailed and vague as to not be worthy of any weight. [77] The appellant argues that the evidence that Source E “picked up cocaine [redacted] from the person he identified in the booking photo” as “[name]” is very vague and problematic for several reasons. [78] First, the date of this transaction is unknown. Since earlier versions of the ITO revealed that the appellant had a 2009 drug offence conviction in Alberta, the information could have been referring to this old transaction. The appellant submits that lack of any date or even a range of time in proximity to the offences being investigated is highly problematic. [79] Second, the police showed Source E a booking photo. The appellant says that showing the booking photo could have been prejudicial and influenced the identification of the appellant. The appellant suggests the police should have used a more recent surveillance photo. Further, by not revealing the actual name used by Source E to describe the appellant, it was difficult for the appellant to challenge whether Source E was referring to the 2009 offence. [80] Third, the appellant questions the meaning of the redaction after the word “cocaine”. The appellant suggests it opens the possibility that it was not cocaine at all that was involved in the transaction between Source E and the person identified as the appellant, but something else, such as scale, or buffer, or pipes. [81] I accept that the judge could have found these issues to be problematic if Source E’s evidence was the only evidence being relied upon by the police investigator in obtaining the warrant. However, it was not the only evidence. There was an abundance of surveillance evidence observing the appellant, and someone in his blue Mercedes, engaging in activity that created a high level of suspicion it was drug trafficking. There was other informant evidence suggesting someone named “Corey” (the appellant’s first name) was supplying drugs, but that informant evidence did not visually identify the appellant. [82] Source E’s evidence was reliable because it was consistent with the pre‑existing large body of circumstantial evidence suggesting that the appellant was involved in drug trafficking. The fact that Source E could visually identify the appellant was credible. This visual identification was not just from a booking photo, but by way of physical description which included a tattoo on the top of the appellant’s hand. The hand tattoo was corroborated by a police officer’s evidence. Source E’s evidence that he “picked up cocaine [redacted]” directly from the person identified as the appellant was highly significant. I accept that the missing redacted word is curious, but I do not find that it sufficiently diminishes the inference that Source E purchased cocaine or something related to the cocaine trade from the appellant. [83] The judge acknowledged the argument that the cocaine transaction could have been connected to the 2009 drug offence, but he was not persuaded that was a reasonable inference. [84] The appellant raises an issue with the fact that in his later sets of reasons, the judge added the explanation that there was no evidence that the 2009 offence had to do with the appellant trafficking in cocaine (see for example para. 23 of 2 nd Ruling re General Warrant and para. 51 of the Ruling re CDSA Warrants). The judge did not mention this rationale in his 2 nd Ruling re the Production Order. I do not see anything significant in this amplification of the judge’s reasons. The judge considered the appellant’s argument regarding the date of the cocaine transaction in all of his rulings after production of Source E’s partially unredacted information and did not find it persuasive. The appellant raised this argument on each occasion (as he was entitled to do, of course), and so the judge dealt with it again as well. [85] Further, the appellant’s criticism seems to imply that the judge ought to have ordered further disclosure of Source E’s evidence. However, as the Crown points out, that criticism is fully answered by the fact that the defence never brought an application for further disclosure. [86] It is clear that the appellant’s criticisms of the judge’s treatment of missing details in Source E’s evidence does not raise an error of law, misapprehension of evidence, or a failure to consider relevant evidence. Rather, the appellant’s real criticism is with the weight the judge gave to evidence of the confidential informant Source E. I see the judge’s weighing of the evidence as entirely reasonable, and it does not provide any basis for appellate interference. Argument that There Had Been a Prior Concession [87] The appellant argues that the judge’s treatment of Source E’s partially unredacted evidence as significant made no sense because the significant point had virtually been conceded even before the new disclosure. Specifically, the appellant argues the defence had virtually conceded that the person identified by Source E as the appellant was the same person referred to elsewhere in Source E’s evidence, including as the person involved in the “cocaine [redacted]” transaction. [88] There are two problems with this position. First, the record is far from clear that this was “virtually conceded”. In support of the proposition that defence counsel virtually conceded this point, the appellant points to a single extract from the transcript of the hearing: “… you have E saying, “the skinny guy, long face, tattoos on hand. Yeah that’s the guy you showed me in the booking photo. I picked up cocaine,” — and I’m adding to that because we more or less have inferred that that’s what is meant. [89] With respect, I do not think counsel stating that he has “more or less” inferred what is the content of a redaction can clearly be seen as a concession. [90] Second, it was the judge who had to be satisfied that this was the substance of Source E’s evidence. The redactions created the possible inference that Source E could have been referring to different people and not only to the appellant. The judge explicitly refused to speculate about the content of the redactions in his 1 st Ruling re Production Order and 1 st Ruling re General Warrant. Clearly, that was the proper approach. [91] This means there was nothing inconsistent about the judge then finding the partially unredacted evidence significant when it confirmed that Source E was referring to the appellant throughout. In fact, the judge in his early ruling alluded to the possibility that this information could be “very significant”. [92] I therefore see no merit to the appellant’s suggestion that this point had been “virtually conceded”. Argument that There Was an Inconsistency in the Treatment of Informant Evidence [93] As was set out in the overview of the standard of review above, Debot establishes that when considering an informant’s evidence as support for a warrant, some consideration should be given to the question of whether there is any corroboration for it. [94] The appellant suggests that the judge treated the informant evidence inconsistently as between the earlier reasons, where he found the warrant invalid, and his subsequent reasons, where he found the warrants to be valid. [95] In my view, there was also nothing inconsistent about the judge’s treatment of the information provided by the confidential informants as between the judge’s sets of reasons. For example, in his Ruling re Tracking Warrant, the judge noted that Source D’s evidence was “entitled to very little weight” but “need not be discounted in its entirety”. In his 2 nd Ruling re Production Order, the judge described Source D’s information as weaker than Source E’s information because it left the key connection—the fact that the “Corey” Source D referred to was in fact the appellant—as a matter of inference. The judge consistently found that Source D’s information was weak, but worthy of some consideration. [96] The judge instructed himself on the principles from Debot . It is clear that in considering the totality of the evidence, he considered the criteria of how compelling Source E’s evidence was, whether it was credible, and whether it was corroborated. The judge explicitly noted the weaknesses in Source E’s credibility, namely his short time as an informant and the fact that his motivation for informing was financial and consideration of charges he currently faced, before ultimately concluding that some weight could be put on his information. [97] Of course it is the very nature of circumstantial evidence that piece‑by‑piece it can accumulate to meet the necessary standard of proof, which here was the standard of “reasonable grounds to believe” that the offences had been committed. There was a substantial amount of circumstantial evidence set out in the ITOs, some from informants and some from surveillance. Source E’s evidence was capable of strengthening, or as the judge described it, “tightening”, the inferences of criminal activity that were available from the “entire constellation” of the evidence. [98] The judge’s approach was consistent with the authorities, as summarized in Whitaker : [41]      A determination with respect to whether reasonable grounds exist requires a consideration of the “totality of the circumstances”: R. v. Bracchi , 2005 BCCA 461, 201 C.C.C. (3d) 35 at para. 20; Re Church of Scientology & The Queen (No. 6) , (1987), 31 C.C.C. (3d) 449 (Ont. C.A.) at 502. This means that, “it is important that the Information be examined as a whole and not one piece of evidence at a time, because each piece of evidence colours other pieces of evidence and a fuller picture emerges by considering all of the evidence together”: R. v. Lam , 2002 BCCA 99, 172 B.C.A.C. 161 at para. 10. [42]      Further, the assessment of the facts relied upon to establish reasonable grounds is made on a practical, non‑technical, and common sense basis: R. v. Sanchez , (1994), 93 C.C.C. (3d) 357 (Ont.Ct.)(G.D.)) at 367. As Mr. Justice Cumming observed in R. v. Charlton , (1992), 15 B.C.A.C. 272, the person deciding whether the reasonable grounds standard has been met is entitled to “put two and two together”: para. 34. [99] I do not find anything inconsistent in the judge’s approach to informant evidence. It was within the reviewing judge’s purview to give weight to Source E’s newly unredacted evidence and to conclude that it, together with the whole of the evidence set out in the relevant ITOs, was sufficient to support the conclusion that there were reasonable grounds to believe that the appellant had committed the offences of drug trafficking or possession of drugs for the purpose of trafficking. Conclusion [100] For the reasons given, I would dismiss the appeal from conviction. “The Honourable Madam Justice Griffin” I AGREE: “The Honourable Madam Justice Fenlon” I AGREE: “The Honourable Mr. Justice Voith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Barendregt v. Grebliunas, 2021 BCCA 11 Date: 20210113 Docket: CA46634 Between: Ashley Suzanne Barendregt Respondent (Claimant) And Geoff Bradley Grebliunas Appellant (Respondent) Before: The Honourable Madam Justice Newbury The Honourable Madam Justice DeWitt‑Van Oosten The Honourable Mr. Justice Voith On appeal from: An order of the Supreme Court of British Columbia, dated December 18, 2019 ( Barendregt v. Grebliunas , 2019 BCSC 2192, Smithers Docket E18295). Counsel for the Appellant (via videoconference): G.A. Lang Counsel for the Respondent (via videoconference): G.E. Greene Place and Date of Hearing: Vancouver, British Columbia October 8, 2020 Place and Date of Judgment: Vancouver, British Columbia January 13, 2021 Written Reasons by: The Honourable Mr. Justice Voith Concurred in by: The Honourable Madam Justice Newbury The Honourable Madam Justice DeWitt‑Van Oosten Summary: The judge granted the respondent primary residence of the parties’ two children and allowed her to relocate with the children from the Okanagan to the Bulkley Valley. The judge relied on two primary considerations in favour of the move: the financial situations of the parties and their relationship with each other. The appellant applies to adduce new evidence of his financial situation on appeal. Held: Appeal allowed. It is in the interests of justice to admit the new evidence as it displaces the trial judge’s concerns about the parties’ financial positions and the appellant’s ability to remain in the family home in West Kelowna. The remaining circumstances indicate that the best interests of the children would be served by the children returning to the Okanagan under a shared parenting regime. Reasons for Judgment of the Honourable Mr. Justice Voith: [1] This appeal arises out of a family law action that addressed various issues. The only aspect of the order that is appealed granted the respondent primary residence of the parties’ two children and allowed her to relocate with the children from West Kelowna to Telkwa in the Bulkley Valley of northern British Columbia. West Kelowna and Telkwa are approximately 1,000 kilometres apart. The outcome of this appeal turns on two questions: first, whether new evidence filed by the appellant should be admitted; second, with that new evidence, and accepting the trial judge’s findings, what is in the best interests of the children. Background [2] The parties met in Smithers, British Columbia, in the summer of 2011. The appellant, Mr. Grebliunas, moved to Kelowna in early 2012. He was joined by the respondent, Ms. Barendregt, in December 2012. The parties married in March 2013. At the time, Mr. Grebliunas was 21 years old and Ms. Barendregt was 19 years old. Their first son, K., was born in May 2014. Their second son, M., was born in January 2016. [3] Each of the parties was employed during the marriage and they had almost always shared parenting duties. Mr. Grebliunas was trained as a carpenter, but he had, some years prior to the trial, obtained employment at a local sawmill. Ms. Barendregt was employed in various janitorial positions. [4] The parties separated on November 14, 2018. This was precipitated by an argument that, Ms. Barendregt alleged, escalated into Mr. Grebliunas assaulting her. Mr. Grebliunas denied any such assault. Ms. Barendregt took both her sons back to her parents’ home in Telkwa. She commenced a family law action on November 26, 2018. The parties’ pleadings, insofar as they related to custody or parenting issues, relied on both the Divorce Act, R.S.C. 1985 c. 3 and the Family Law Act , S.B.C. 2011, c. 25. Mr. Grebliunas continued to live in the family home that the parties had purchased in 2013 and that was located in West Kelowna (“the Family Home”). [5] As a result of an interim order made on December 18, 2018, Ms. Barendregt and Mr. Grebliunas began three‑week periods of alternating parenting time between Telkwa and West Kelowna respectively. That order was varied on March 27, 2019, and provided for the children to be returned to the Okanagan area, with Mr. Grebliunas to have interim primary residence, and for the parties, once Ms. Barendregt returned to the Okanagan, to have alternating weekly custody. The order further provided that Mr. Grebliunas would subsidize Ms. Barendregt’s rent for up to one year upon her making that move. [6] The children returned to West Kelowna to live with their father in the Family Home on April 27, 2019. Mr. Grebliunas’s mother moved down from Smithers to help him care for the children. Ms. Barendregt did not return to the Okanagan and she continued to live with her parents. She did, however, care for the children for the month of August 2019 in Telkwa. The Trial [7] The trial of the action was heard for nine days commencing in late October 2019. The central issue at trial was where the parties’ two children would reside. The reasons of the trial judge also addressed issues of spousal and child support and property division. Those reasons for judgment are indexed at 2019 BCSC 2192. [8] The trial judge considered that a disproportionate amount of time at trial was spent hearing evidence concerning particular incidents during the marriage and post-separation. His impression was that “neither party was entirely honest and forthcoming as to these incidents.” As to those specific matters of past conduct that were relevant, and where he was able to make findings in the face of conflicting testimony, he was “in general far more persuaded by the testimony of Ms. Barendregt.” He considered that both parties were good parents. He further commented that he had “no expert opinion evidence as to the means and abilities of the parties to parent the children, nor as to the positive or negative consequences of the proposed relocation.” [9] After a review of the relevant authorities, he compared the relative advantages of the two scenarios that were advanced by the parties—“the children living primarily with their mother in Telkwa, or parenting being shared in the Okanagan”. [10] Notwithstanding the various constraints in the evidence he had identified, he concluded that “there are two issues arising from the evidence that significantly impact my analysis of the children’s best interests. … The first, although the less significant of the two, is the parties’ financial situation, particularly as it pertains to the house”. [11] The trial judge’s concerns, in relation to the Family Home, were largely tied to the parties’ finances. His comments and conclusions in relation to the Family Home are interspersed throughout the judgment and occupy a significant part of the judgment. [12] The parties purchased the Family Home in June 2013. The house was in poor condition and the parties hoped that Mr. Grebliunas would be able to renovate it using his carpentry skills. Shortly after the parties moved into the Family Home, they had an electrical fire in an interior wall space. They also discovered an issue with a rodent infestation. As Mr. Grebliunas renovated the Family Home, they uncovered still further difficulties. [13] The trial judge found that Mr. Grebliunas worked on various projects, often assisted by friends with carpentry and electrical skills, as he was able. He accepted that the renovation of the Family Home had been an “ongoing construction project”. The first project Mr. Grebliunas finished was the children’s bedroom, which was “clean, bright, and well insulated.” He renovated the upstairs bathroom over the course of several years. The kitchen had been torn out in 2015 and, at the time of the trial, it still did not have proper kitchen cupboards, sufficient counter space, or a functioning sink. [14] The trial judge concluded that the parties had struggled to make ends meet. The Family Home had originally been purchased for $252,000 and had been financed with a mortgage of $238,750. By September 2019, on account of various reasons, including “much‑needed renovation to the house” and the purchase of a new truck, the parties owed $260,100 on their mortgage and a further $73,500 on a line of credit, for a total of $333,600. [15] At trial Mr. Grebliunas testified that he had, since the parties’ separation, been working on the renovations at an “accelerated pace,” using his credit cards and borrowing more on the line of credit. Importantly, he also gave evidence in relation to his future plans for the Family Home. This plan had two components. [16] First, Mr. Grebliunas proposed to have his parents give him $152,000 for a half interest in the Family Home. He planned to use a part of those monies to pay contractors. He also accepted that he would have to obtain refinancing to pay out Ms. Barendregt’s interest in the Family Home. [17] Mr. Grebliunas’s father, who also gave evidence, testified that he too was prepared to move from Smithers to the Okanagan to live with his wife, son, and grandsons. He had spoken to his banker in Smithers and to a bank in West Kelowna shortly before the trial about buying either a half interest in the Family Home or purchasing it outright. He said that he and his wife had equity of $387,000 in their home in Smithers and that they had a line of credit for $90,000. [18] The trial judge also had an appraisal report and evidence of Mr. Roworth, an appraiser who was called by Mr. Grebliunas. Though the Family Home had a current assessed value of $490,000, Mr. Roworth fixed the value of the Family Home at $303,000. Mr. Roworth accepted that the renovation costs could be lower than his estimate. He also accepted that the work done to date by Mr. Grebliunas had added some value and, for the purposes of estimating depreciation, the work had lowered the Family Home’s effective age to some extent. [19] Mr. Roworth further expressed the opinion that obtaining financing in the current market would be difficult. He estimated that the Family Home had an effective remaining life of 24 years, and that in the current lending environment a bank would likely deduct five years from that figure, meaning that any mortgage loan could only be amortized over 19 years. This would, in turn, further limit the property’s market value. [20] The trial judge expressed concern that he had no evidence from any bank of a willingness to refinance given the current state of the Family Home. He expressed this concern in relation to the evidence given by both Mr. Grebliunas and by his father. He expressed a further concern about Mr. Grebliunas’s father having waited until the eve of trial to make inquiries about financing. He noted that Mr. Grebliunas’s father was equivocal about whether he was prepared to offer any more than the amount of the debt on the Family Home. [21] The second component of Mr. Grebliunas’s plan, which is somewhat related to the first component, had him hiring contractors to finish the work on the Family Home. He believed that that work would cost approximately $70,000. His father considered that a figure of $75,000 was likely “on the high side.” Neither had prepared a detailed budget or had any written estimates for the work that remained outstanding. [22] Based on the whole of this evidence the trial judge said: [39]      Whether any of the financing options Mr. Grebliunas Sr. and his son have discussed are practicable is an open question. Mr. Grebliunas’ plan to continue living in the house with the boys is, for all practical purposes, entirely dependent on the willingness and ability of his parents to pay off the mortgage and the debt on the line of credit secured by the home, and finance the remainder of the renovations. As of the date of trial, this all seemed uncertain. Absent such financial support from his parents, Mr. Grebliunas’ does not have the means to buy out Ms. Barendregt’s interest in the family home and complete the renovations; it seems plain from the parties’ testimony that they struggled to make ends meet while they were together, and Mr. Grebliunas offered no plan for how, were both parties to remain in the Okanagan, he could afford to take on additional debt while at the same time having obligations to pay spousal and child support. [40]      In summary, the parties’ financial position means that the possibility of Mr. Grebliunas being able to remain in the house, and possibly even being able to remain in West Kelowna, are less than certain. [23] The trial judge described the second dominant issue that he identified as “the relationship between the parties, and the implications it has for the children”. He further concluded: [42] There is therefore, I find, compelling evidence of Mr. Grebliunas’ continuing animosity towards Ms. Barendregt. Three concerns arise from this evidence: a) First, I find it more likely that Ms. Barendregt will work to promote in the children a positive attitude toward their father, than the converse. This factor weighs strongly in favour of the children’s best interests being promoted through Ms. Barendregt having primary residence; b) Second, if the parties remain in close proximity, there is a greater risk – difficult, if not impossible, to quantify, but still significant – of continuing conflict between the parties spilling over and directly impacting the children; and c) Third, even if the parties were never to engage in open conflict or derogatory behaviour in the presence of the children, I find it doubtful that they will be able, in the near future at least, to surmount the emotional issues between them and work co‑operatively to promote the children’s best interests, which optimally is one of the desired outcomes of a shared parenting structure. [24] Finally, witnesses at trial had described Ms. Barendregt as “someone who needed to be taken care of” and as both “stressed” and “overwhelmed” when taking care of her children. The trial judge said: [44]      … These glimpses seem consistent with Ms. Barendregt having a need for emotional supports that were not available to her during the marriage and would not be available to her in Kelowna. The emotional weight of having to establish a new life on her own, of learning to parent independently, and possibly of having to continue to cope with the emotional outfall of continuing close contact with Mr. Grebliunas should she remain in the Okanagan, all weigh in favour of a move. So does the factor of the support that will be available to her from the family should she further her education. [46]      I find the present case is likely one where the children would at least indirectly benefit from their mother residing in Telkwa, in addition to directly benefiting from close contact with their maternal grandparents and Ms. Barendregt’s siblings. It is also likely the case that they would at least suffer indirectly to some degree if their mother remained in the Okanagan. [25] The trial judge’s ultimate conclusion was thus based on his concerns about the Family Home and other financial issues, together with his concern over Mr. Grebliunas’s interactions with Ms. Barendregt and her need for some support. He ordered that Ms. Barendregt be awarded primary residence of the children in the Bulkley Valley. He granted Mr. Grebliunas parenting time at various specific times of the year. The New Evidence a) The Content of the New Evidence [26] Mr. Grebliunas filed an appeal. That appeal was heard. At the conclusion of the hearing of the appeal, counsel for Mr. Grebliunas stated that she had just received material indicating that the Family Home had been refinanced by Mr. Grebliunas and that he had purchased Ms. Barendregt’s interest in the Family Home. The Court permitted counsel for Mr. Grebliunas to file these materials and to make a new evidence application. It also permitted counsel for Ms. Barendregt the opportunity to respond to that application. [27] In his new evidence affidavit, Mr. Grebliunas deposes: 2.         In order to comply with the order of the trial judge I took steps to pay out the respondent for her interest in the family property, including our former family home in West Kelowna. 3.         I sold a one‑half interest in the home to my parents, Kelly and Heather Grebliunas, who now hold one‑half of the home in joint tenancy. The three of us refinanced the home and obtained a mortgage from the Royal Bank of Canada. 4.         The completion and possession date for the transfer of the home was October 8, 2020. 5.         As a result of the refinancing and thirty year amortization, my mortgage payment is reduced from $1,930 a month to $1,186 a month. 6.         My parents also increased their personal line of credit by $100,000 to facilitate the completion of renovations on the home. 7.         Since the trial date I have renovated the bathroom and the master bedroom. I’ve also contracted with Norelco to complete the kitchen renovation. Attached hereto and marked Exhibit A is a copy of the drawings from Norelco for the kitchen renovation. [28] Mr. Grebliunas attached a number of further documents to his affidavit. This included a copy of the RBC line of credit facility that his parents had obtained, documents that were relevant to the transfer of the Family Home between Mr. Grebliunas and his parents, the mortgage that had been obtained by Mr. Grebliunas and his parents, and the relevant Statement of Adjustments and Property Transfer Tax Form. It also included correspondence between counsel representing Mr. Grebliunas and Ms. Barendregt with respect to the agreement of the parties on the terms of the purchase of Ms. Barendregt’s interest in the Family Home, as well as payment to her on account of her interest in a truck the parties had owned. b)       The Relevant Legal Framework – Admissibility of the New Evidence [29] There is a material difference between new evidence and fresh evidence. The former is evidence that was not in existence at the time of trial but has arisen as a result of events or matters that transpired subsequent to trial. The latter is evidence that existed at the time of the trial but was not adduced at that time: Hellberg v. Netherclift , 2017 BCCA 363 at para. 53 [ Hellberg No. 1 ]; Jens v. Jens , 2008 BCCA 392 at para. 24; Struck v. Struck , 2003 BCCA 623 at para. 37; Scott v. Scott , 2006 BCCA 504 at para. 22. [30] The admissibility of fresh evidence is subject to the well‑established test in Palmer v. The Queen , [1980] 1 S.C.R. 759 at 775. Notwithstanding some periodic imprecision in the use of language, this Court has on a number of occasions noted that new evidence is not subject to the Palmer test: see Fotsch at paras. 19–20; Korol (Re) , 2014 BCCA 380 at para. 36; Jens at para. 29. [31] Having said this, this Court has at times considered whether the new evidence would change the result at trial or could reasonably be expected to do so. This consideration is one of the factors in Palmer . The following are mobility cases where the Court applied this consideration to new evidence: Hellberg No. 1 at para. 57; Hellberg v. Netherclift , 2018 BCCA 404 at para. 36; R.E.Q. v. G.J.K. , 2012 BCCA 146 at para. 66. [32] New evidence is admitted in “rare” or “exceptional” circumstances: see Animal Welfare International Inc. v. W3 International Media Ltd. , 2015 BCCA 148 at para. 10 and Fotsch at para. 20, respectively. In Jens at para. 29, the Court used “rare” and “exceptional” interchangeably. [33] This high standard is on account of the importance of certainty and finality in trial judgments: Fotsch at para. 21; Struck at para. 37. Nevertheless, it is contrary to the “interests of justice” to have a decision that is inconsistent with the known facts: Jens at para. 30; Animal Welfare at para. 12; Island Savings Credit Union v. Brunner , 2014 BCCA 449 at para. 25. [34] One recognized “exceptional” circumstance, where new evidence may be admitted, was described by the Court in Fotsch : [21]      Circumstances which might permit the admission of new evidence include where the judge made assumptions about future events but new evidence establishes those assumptions to be incorrect. See North Vancouver (District) v. Lunde , (1998), 60 B.C.L.R. (3d) 201 (C.A.) at paras. 25-26. [35] In United States of America v. Wilson , 2010 BCCA 85 at para. 34, the Court described this “assumption” category as the “main exception” to the general inadmissibility of new evidence on appeal. [36] The question becomes what the word “assumption,” within this context, means. The primary meaning given to the word “assume” in the Concise Oxford English Dictionary , 11th ed, revised, is to “accept as true without proof.” [37] There are two difficulties with applying this lay, or dictionary, meaning to the test for admitting new evidence. First, a conclusion that is accepted by a trial judge as “true without proof” would in most instances be inherently problematic. It would not be necessary to adduce new evidence to address such a concern. [38] Second, as a practical matter, this is not how the word “assumption” is generally used in the authorities that address this issue. In most cases, trial judges have made decisions based on the evidence before them. The new evidence, which is filed on appeal, reveals that there has been a change in circumstances. The judges, however, made no “assumptions,” but rather based their decisions on the evidence before them. See, e.g., Garcia v. Tahoe Resources Inc. , 2017 BCCA 39; Stav v. Stav , 2012 BCCA 154. [39] In North Vancouver (District) v. Lunde (1998), 60 B.C.L.R. (3d) 201 (C.A.), a decision that is often referred to, this Court limited the scope for admitting new evidence. It was in this case that the language of an “assumption,” in the context of admitting new evidence, seems to have first emerged. Justice Lambert, for the Court, rejected the appellant’s new evidence motion and said: 25        Of course, this evidence does not meet the usual rules for the introduction of fresh evidence. It was not in existence when the summary trial was held and so could not have affected the summary trial. However, it is sought to be admitted under the rule applied in Cory v. Marsh (1993), 77 B.C.L.R. (2d) 248 (B.C. C.A.) on the basis that the fresh evidence "falsified" the trial judgement. 26        In my opinion the rule in Cory v. Marsh applies only in relation to the situation where the trial judge made assumptions about future events in order to calculate damages or for some other reason, and then, before an appeal was heard, the trial judge's assumptions are shown by the course of events to be or to have become incorrect. See also Knutson v. Farr (1984), 55 B.C.L.R. 145 (B.C. C.A.) and Christie (Guardian ad litem of) v. Insurance Corp. of British Columbia (1993), 79 B.C.L.R. (2d) 370 (B.C. C.A.). I do not think it is a general rule that evidence of new events which change the factual circumstances is permitted to be given and permitted to have some kind of retroactive legal applicability requiring this Court to apply different laws to different facts than those which confronted the trial judge. [40] The concept of an “assumption” having been rendered inaccurate has been expressed in various ways. In Garcia , the Court said that the “new evidence casts serious doubt” on the conclusion of the chambers judge, and that the facts relied on by the chambers judge had been “a significant, if not pivotal, point in the judge’s decision to grant a stay”: at para. 61. The Court commented that the “new evidence goes to the very underpinnings of the order under appeal and is likely to have affected the outcome”: at para. 64. Because circumstances had not unfolded as expected, “contrary to the assumption made by the judge,” the Court considered the evidence should be admitted: at para. 66. [41] In Animal Welfare at para. 12, the Court said that the new evidence revealed that “the situation of the parties has been fundamentally altered since the hearing of the application” and concluded that it was in the interests of justice to admit the new evidence. [42] In Stav at para. 103 , the Court determined that the new evidence revealed the trial judge’s understanding of the parties’ financial situations “was unfounded, thus, significantly undermining the significance the trial judge placed on it in making her decision.” [43] Accordingly, depending on the circumstances, new evidence may be admitted if it establishes that a premise or underpinning or understanding of the trial judge that was significant or fundamental or pivotal has been undermined or altered. [44] Apart from these descriptions of the threshold criteria that are pertinent, further considerations are relevant. New evidence has been admitted in different kinds of cases. Two sets of circumstances, which intersect in this case, are relevant. [45] First, in Animal Welfare , the Court observed that “[e]vidence of material alterations in the parties’ financial positions has occasionally been sufficient to meet” the test for the admissibility of new evidence: at para. 10. In that case, a justice of this Court, in chambers, had dismissed the appellant company’s application for a stay of execution of the trial judgment pending appeal. The appellant had sought a stay to prevent the sale of the company’s equipment on the basis that it required that equipment to continue operating. The appellant applied to a division of this Court to discharge or vary the chambers judge’s order. On that application, the respondents sought, and were allowed, to adduce new evidence indicating that the preservation of the appellant’s assets for use by a related third party had removed any threat of irreparable harm to the appellant. The Court accordingly dismissed the appellant’s application. [46] Similarly, in Island Savings Credit Union , a master had granted a one‑month redemption period on an Order Nisi of foreclosure. This was “predicated on a lack of equity in the properties” based on appraisal evidence put before the master by the respondent: at para. 25. At the hearing of the petition, the master had denied the appellants an adjournment so that they might obtain further appraisal evidence. On appeal, the appellants sought, and were permitted, to adduce new appraisal evidence that established the properties were worth almost double the appraised value the respondent had proffered and that the master had relied on. The Court considered that it was in the interests of justice to allow the new evidence to be adduced, and it remitted the matter back to the Supreme Court: at paras. 25–26. See also Korol (Re) at paras. 38–39 for a further illustration of these principles in this context. [47] Second, it is recognized that both new evidence and fresh evidence may be admitted more flexibly in family cases: Stav at para. 31; Jens at para. 30; Luney v. Luney , 2007 BCCA 567 at para. 31. [48] The broad category of “family cases” has been further refined to cases where the best interests of children are concerned: Stav at para. 31; Fotsch at para. 20. And it has been further refined to include cases where the refusal to admit new evidence might lead to long‑term injustice: Jens at para. 34; see also Levin v. Levin (1996), 84 B.C.A.C. 73 at para. 12 (C.A.); Shabaga v. Shabaga (1992), 75 B.C.L.R. (2d) 128 at para. 15 (C.A.). A relocation case is likely to engage each of these various considerations. Furthermore, the overarching consideration of what is in “the interests of justice” may have particular resonance in a relocation case. Standard of Review [49] The standard of review applicable to the trial judge’s findings and conclusions was addressed by Madam Justice D. Smith in Fotsch v. Begin , 2015 BCCA 403: [66]      It is well established that an appellate court may not interfere with the exercise of discretion of a trial judge in the absence of a demonstrated material error of law or fact, a serious misapprehension of the evidence, or a decision that is “clearly wrong”. See Van De Perre v. Edwards , 2001 SCC 60 at paras. 14-15; Falvai v. Falvai , 2008 BCCA 503 at para. 18; and R.E.Q. v. G.J.K ., 2012 BCCA 146 at para. 33. On appeal, “matters must be reviewed as they stood at the time of trial” ( Scott at para. 25) or there would be no finality to the litigation. An appellate court is not a court of second instance. [67]      The parameters of this Court’s jurisdiction to interfere with an order in a family matter was helpfully summarized by Madam Justice Newbury in R.E.Q. v. G.J.K. at para. 33: The Supreme Court of Canada has said that the standard of review is a high one, i.e., that in family cases as elsewhere, an appellate court may not interfere with the exercise of discretion of a trial judge in the absence of a material error (including a “significant misapprehension of the evidence”, the trial judge’s having “gone wrong in principle or [his] final award [being] … clearly wrong”): see Moge v. Moge [1992] 3 S.C.R. 813, at 832; and R.M.S. v. F.P.C.S. 2011 BCCA 53 at para. 43, citing Hickey v. Hickey [1999] 2 S.C.R. 518 at para. 12 and Van de Perre v. Edwards 2001 SCC 60 at paras. 14-5. In the latter case the Court wrote: Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. [At para. 13]. Thus the authorities make it clear that it is not for an appellate court to re‑weigh the evidence or to interfere on the basis that the appellate court would give more weight than the trial judge did to one factor or another – or, in the words of the Court in Hickey , that it would have “balanced the factors differently.” [Emphasis added.] Analysis [50] The foregoing legal framework supports the admission of the new evidence Mr. Grebliunas relies on. The evidence speaks to the financial circumstances of the parties and it arises in the context of a family case where the long‑term best interests of the parties’ two children are directly engaged. [51] The new evidence that Mr. Grebliunas seeks to adduce is cogent and material. It directly addresses one of the two primary underpinnings of the trial decision and it goes to the core of the judge’s analysis. Most of the critical “assumptions” on which this aspect of the trial judgment rests have been shown, by subsequent events, to be incorrect. Indeed, the new evidence establishes that Mr. Grebliunas has done almost exactly what he originally testified he intended to do. He has sold a half interest in the Family Home to his parents. He did so for the very price he had planned to. The Family Home has been refinanced with a bank. He has paid Ms. Barendregt her half interest in the Family Home. He has continued to renovate the Family Home, on an accelerated basis, and he has hired third party contractors to do aspects of that work. Finally, though this issue was not addressed in the trial judgment, refinancing the Family Home has increased the amount of disposable income that he has available to him on a monthly basis. [52] Counsel for Ms. Barendregt raises two primary issues in opposing the admission of the new evidence. The first is that this new evidence might, with reasonable diligence, have been available to Mr. Grebliunas at trial. There are two difficulties with this submission. First, it relies on one of the conditions found in Palmer , that being the question of whether the evidence in question could, with reasonable diligence, have been made available at trial. Indeed, the written submissions of counsel for Ms. Barendregt expressly rely on the Palmer criteria. However, the Palmer conditions do not, as I said earlier, strictly govern the admission of new evidence. [53] Second, this submission is only partly accurate. It may be that Mr. Grebliunas, or his father, could or should have secured some sort of commitment letter from a bank dictating the terms on which that bank would offer financing in relation to the Family Home. The reality, however, is that such a commitment letter would only govern one set of circumstances, and it would not have addressed other issues that were raised by the trial judge. For example, such a commitment letter would have addressed one set of values when it is clear that there were different possible fair market values for the Family Home, as well as for the cost of renovating that home. Similarly, it would not address other hypotheticals that were apparently put to Mr. Grebliunas’s father, such as whether he was prepared to offer any more than the amount of the debt on the Family Home. [54] The second issue raised on behalf of Ms. Barendregt is that the trial judge’s concerns in relation to the viability of Mr. Grebliunas’s renovating and remaining in the Family Home was the lesser of the two dominant considerations that were identified by the trial judge and that grounded his decision. [55] In Hejzlar v. Mitchell‑Hejzlar , 2011 BCCA 230 at para. 46, Saunders J.A. emphasized the importance of considering the best interests of a child “in the round”. Although that expression was used in a particular context in Hejzlar, it is a concept of general application and it simply means that a consideration of a child’s best interests requires a fully rounded analysis that takes into account all relevant factors: Hellberg No. 1 at para. 72. [56] In this case there were several factors that were identified by the trial judge and that militated in favour of the children staying in Kelowna. It is not possible to glean or determine what the trial judge would have done had he not had the various concerns he expressed in relation to both the financial viability of Mr. Grebliunas being able to stay in the Family Home and the finances of the parties at large. [57] The trial judge’s concern, or expectation, or “assumption,” that Mr. Grebliunas might not be able to remain in the Family Home and that he might not “possibly even [be] able to remain in West Kelowna” has been displaced. That concern was, in the trial judge’s words, one of the “two issues … that significantly impact[ed his] analysis”. It is in the interests of justice that this new evidence be admitted. [58] A related consideration is pertinent. In keeping with the trial judge’s concern over Mr. Grebliunas’s ability to both hold and renovate the Family Home and to stay in West Kelowna , he expressed other concerns of a financial nature. He found that when the parties had lived together, they had struggled to make ends meet. He also gave some weight, “but only to a slight degree”, to the relative expense of Ms. Barendregt living in the Okanagan, as opposed to her being able to live with her parents for a time and then finding her own accommodation in the Bulkley Valley. [59] In this context it is relevant that the trial judge determined that Mr. Grebliunas’s income pursuant to the Federal Child Support Guidelines was $65,270 and that he imputed income of $33,150 to Ms. Barendregt. Accordingly, the parties had income of nearly $100,000. There was also evidence before the trial judge that both sets of parents were prepared to help their children financially. [60] In Stav at paras. 93–106, the Court addressed the various ways in which the trial judge had misapprehended the evidence relating to the financial positions of the parties. One aspect of this concern is described in the following paragraphs: [94]      Mr. Stav also submits that the trial judge erred in finding that Mr. Stav’s salary of $90,000 was not sufficient to support two households if the family remained in Vancouver following the divorce (and assuming that he continued to be unemployed). He submits that many families live in Vancouver on incomes of substantially less than $90,000 per year. Thus, he submits that not only did the trial judge err in her assessment of the financial circumstances of the parties, but that she further erred in drawing the inference from this evidence that his proposal to continue to live and support the family in Vancouver was not a viable option. [95] Mr. Stav says the extent to which the trial judge’s misconception of the parties’ financial circumstances unduly influenced her decision is particularly evident at paras. 53 and 56 of her reasons. At para. 53, the trial judge states that Mr. Stav’s preferred option of shared parenting in Vancouver “fails to acknowledge that these parties do not have enough money to maintain two residences and a reasonable lifestyle in Vancouver.” She reiterated this view at para. 56, where she stated: The experience of the Stav family in Vancouver has not been entirely positive. They have lived beyond their means for significant periods since they have been here. They have been unable to purchase any assets beyond the family vehicle. Living apart in Vancouver will necessarily increase their expenses. I find that there is no realistic chance that the parties will be able to live within their means here. [61] In relation to this concern, the Court determined that the trial judge had “placed undue emphasis on her perception that the parties could not live reasonably in Vancouver if they were restricted only to Mr. Stav’s salary” (at para. 101) and that she had made “unwarranted assumptions that the parties could not afford to continue to live in Vancouver” (at para. 106). The Court further said that “in the absence of circumstances in which the court will impute income to a parent who is failing to meet his or her obligations for child or spousal support, it is not for the courts to dictate the standards of living of the parties—these parties are not alone in living beyond their income” (at para. 102). [62] In this case the trial judge similarly appears to have been influenced, “but only to a slight degree”, by the concern that the parties’ combined income, of nearly $100,000, was insufficient for them to both reside in West Kelowna. This issue appears to have been tied to and to have reinforced his concerns about whether Mr. Grebliunas would be able to renovate and stay in the Family Home. Neither of these concerns, particularly in light of the new evidence, appears to be properly grounded. The Best Interests of the Children in Light of the New Evidence [63] The introduction of new evidence and the ensuing reconsideration of the determination made by a trial judge is generally either based on the trial judge having misapprehended the evidence or because it is in the interests of justice to do so: see e.g. Stav at paras. 101–06, 119 and Jens at para. 34, respectively. [64] In such circumstances, it is open to this Court to either make its own determination of the best interests of the children or to remit the matter to the trial court. To the extent it is possible to do so, it is generally preferable for the Court to make its own determination. Remitting the matter to the trial court necessarily causes additional expense and delay and emotional uncertainty for the parties and their children. [65] I have earlier said that the trial judge’s ultimate conclusion was based on his concerns about the Family Home and other financial issues, together with his concerns over Mr. Grebliunas’s interactions with Ms. Barendregt and her need for some support. The question becomes whether his findings continue to dictate a given result when one of two dominant considerations—albeit the lesser one—no longer applies to his analysis. This is not a question of reweighing the evidence that was before the trial judge. Rather it is a question of revisiting the parties’ circumstances, bearing in mind the trial judge’s remaining findings, and ascertaining what result would be in the best interests of the children. [66] Several core findings made by the trial judge set the framework for this analysis. Both parents were custodial parents. Both were good parents. The trial judge found that Mr. Grebliunas was a good father, with a strong bond to his children, and who had taken “extraordinary steps” to manage his schedule so that he could be engaged with the children. The children, who had always lived in the Okanagan, had been with their father for most of the six months prior to trial. There is no suggestion in the trial judge’s reasons that the children were struggling in any way or that Mr. Grebliunas had made disparaging comments to the children about Ms. Barendregt during this time, or indeed at any time. [67] Unlike most child mobility cases, Ms. Barendregt did not move to Telkwa to advance her career, for better educational opportunities, or because she had a new partner there. It is such circumstances that are generally seen to advance the moving parent’s ability to meet the best interests of the child. [68] Similarly, there is no suggestion that the Bulkley Valley provided the children with any benefits that were unavailable to them in Kelowna. The trial judge allowed Ms. Barendregt to move to the Bulkley Valley with the children because he believed that she might require some assistance taking care of the children, because her parents were there, and because he was concerned about Mr. Grebliunas’s past and future treatment of Ms. Barendregt. [69] There are several reasons that these remaining considerations, standing alone, are problematic and no longer support the ultimate result arrived at by the trial judge. [70] First, the trial judge’s concerns about Mr. Grebliunas’s behaviour towards Ms. Barendregt warrant some context. This context takes several forms. First, the proposition that Mr. Grebliunas’s hostility towards Ms. Barendregt supported her moving to Telkwa was never argued by Ms. Barendregt at trial. Instead, her evidence was that the parties were getting along better than they had when they first separated. Even after the trial judge asked Mr. Grebliunas’s counsel about this issue during his closing submissions, Ms. Barendregt’s counsel, in his reply submissions, did not rely on the issue as a matter of any real concern. [71] I do not say that it was not open to the trial judge to make the findings he did. But the seriousness of the circumstances he addressed are attenuated by these realities. In particular, it is relevant that his dominant concern in support of Ms. Barendregt’s move to Telkwa with the children was simply not an issue that Ms. Barendregt or her counsel were significantly concerned about at trial. [72] Furthermore, many of the issues the trial judge was concerned about had taken place in the past, and there was some support in the evidence for Ms. Barendregt’s belief that the relationship between the parties was improving. The trial judge considered that Ms. Barendregt had been subject to Mr. Grebliunas’s overbearing personality during the marriage and that there was “a significant possibility” that she had suffered from some degree of emotional abuse at that time. He referred to the alleged assault in November 2018, and he was inclined to accept Ms. Barendregt’s evidence in relation to this issue. It was this alleged assault, a year before trial, that had caused the parties to separate. He referred to Mr. Grebliunas’s false character statements made in late January 2019 and to the fact that an affidavit he made in June 2019 had included a nude selfie of Ms. Barendregt. He was also concerned about the continuing acrimony in Mr. Grebliunas’s testimony during trial. I do not diminish the seriousness of these conclusions, but simply note that several of these events occurred at or around the time the parties separated. Furthermore, there was no evidence of any event involving the children, or taking place in the presence of the children, since the parties had separated a year earlier. [73] Apart from these issues of context, it is significant that the conclusions arrived at by the trial judge of Ms. Barendregt’s need for some emotional support and the concern over Mr. Grebliunas’s behaviour have generally not, on their own, supported a relocation in the case law. [74] There are virtually no decisions of this Court where a need, on the part of the moving parent, for emotional support, even with some friction between the parties, has justified a relocation. [75] The one exception may be K.W. v. L.H. , 2018 BCCA 204, leave to appeal ref’d [2018] 3 S.C.R. vii. In that case, the mother, who had been her son’s primary caregiver since birth, wanted to move with her child to Nova Scotia. She had a major depressive disorder that had kept her from working. Her physician had recommended that she move to Nova Scotia where she had family and other emotional support. There are some parallels to this case because the mother was concerned she would not be able to afford to live in the same area in Vancouver as the father. Furthermore the father had, in the past, drunk excessively, and he had been verbally abusive to the mother in front of the child. He apparently stopped drinking and had taken steps to reduce his abusive behaviour since the parties separated. [76] Goepel J.A., at para. 135, emphasized, however, that the mother had been the child’s “primary caregiver for almost all of his life” and that the child was a “troubled child” who would benefit from being surrounded by a loving extended family. Both of these factors are absent in this case. [77] Similarly, in McArthur v. Brown, 2008 BCSC 1061 at paras. 150–62, the trial judge allowed a mother, who was the primary caregiver for her triplets and who suffered from depression, to relocate to where her family lived. [78] A further concern, of a principled nature, arises. The relevant case law recognizes that litigation is adversarial, that it can lead to hostility and bitter feelings, and that this is particularly true in the case of matrimonial litigation: Liedtke v. Liedtke , 1999 BCCA 364 at para. 23. This Court has stated that “generally the animosity parents feel for each other must not be allowed to defeat either their obligation to do what is best for their children or to avoid arrangements that are in the best interests of their children”: Vincent v. Roche‑Vincent , 2013 BCCA 304 at para. 27. [79] I do not say that there are not, or will not, be cases where the hostility between parents interferes with their ability to jointly parent a child. But this is not that case. This is apparent both because the trial judge did not suggest that these children were being negatively impacted in any way by the parties’ ability to communicate, and because the issue of hostility was, again, not a significant concern to Ms. Barendregt or her counsel. At a minimum, this must speak to the severity of that issue. [80] A survey of the jurisprudence of this Court indicates that, in the main, sole custody or parenting responsibility may be awarded to one parent due to an alienation of affection, conflict between the parties, or abuse by one or both parents in circumstances where there is evidence that the impugned conduct is directly harming the parties’ children or where the conduct is much more egregious than the findings and circumstances in the present case. [81] In Bain v. Bain , 2008 BCCA 49 at para. 18, the Court referred to “overwhelming” evidence that the parties could not communicate to co‑parent their children. In this case, conversely, the record is replete with references to the parties continuing to communicate in a civil manner when discussing their children. In A.A. v. S.N.A. , 2007 BCCA 363 at para. 3, the Court stated that it was certain that the parties’ child would suffer “serious psychological damage” if she remained in the care of the mother. In Boynton v. Boynton , 2014 BCCA 142 at paras. 9–20, 42, the Court detailed the lack of cooperation between the parents and the mother’s history of alcohol abuse, abusing the father, and disregarding various court orders. [82] Conversely there are numerous cases where joint custody or shared parenting has been ordered notwithstanding some history of acrimony or difficulty between the parents: see e.g. L.M.T. v. R.S.T. , 2008 BCSC 890 at paras. 215–21; R.A.C. v. V.L.C. , 2009 BCSC 825 at paras. 146–48; M.J.T. v. D.M.D. , 2012 BCSC 863 at paras. 150–54. [83] The foregoing propositions are supported when viewed through a different lens. If Mr. Grebliunas had agreed to move to Telkwa, he and Ms. Barendregt would have continued to share custody and parenting responsibilities. There was no suggestion or argument from either party otherwise. This reality makes Ms. Barendregt’s relocation to Telkwa with the children problematic. If the parties could both parent in Telkwa, notwithstanding some ongoing friction, it is hard to understand how that same friction would support a relocation order. [84] Unfortunately, many parents interact poorly. This is usually dealt with through the assistance of a parenting coordinator or otherwise. But it does not, without more, normally warrant a change in custody or parenting responsibilities, absent extreme circumstances or absent evidence that the parties’ children are being affected adversely. [85] Still another issue arises. I have said that a significant reason that justified Ms. Barendregt moving to Telkwa was the concern about her need for emotional support that was not available to her during the marriage and that would not be available to her in the Okanagan. The trial judge considered the children “would at least indirectly benefit from their mother residing in Telkwa, in addition to directly benefiting from close contact with their maternal grandparents and Ms. Barendregt’s siblings.” [86] With this conclusion in hand, it was necessary, however, for the trial judge to consider whether the children should stay in Kelowna with their father. His counsel had proposed this, albeit in passing. The trial judge’s failure to do so, even while recognizing that Ms. Barendregt had said she would move back to Kelowna if she was not permitted to relocate with the children, was an error. This is because either custodial parent was, in concept, able to care for the children. The fact that Ms. Barendregt indicated she would return to the Okanagan, and that that might give rise to some conflict, is a curious basis to suggest that she should then be able to move to Telkwa with the children. [87] A consideration of the children’s best interests “in the round,” and of the factors in Gordon v. Goertz , [1996] 2 S.C.R. 27 at paras. 49–50, suggests that the best interests of the children would be served by the children staying in Kelowna with their mother and father. Both parents were custodial parents. Both were good parents. The children had grown up in Kelowna. Their friends were there. Their paternal grandparents had moved there or were in the process of doing so. Permitting the relocation was inconsistent with the object of maximizing contact between the children and both their parents. Indeed the relocation was likely to permanently and profoundly alter the relationship of the children with their father. [88] One last practical point is relevant. The trial judge considered that “[t]he emotional weight of having to establish a new life on her own, of learning to parent independently, and possibly of having to continue to cope with the emotional outfall of continuing close contact with Mr. Grebliunas” all militated in favour of Ms. Barendregt moving back to Telkwa. I leave aside that these considerations appear to be directed to Ms. Barendregt’s well‑being and not to the best interests of the children. The trial judge had earlier indicated that he believed the children would benefit from these factors, at least “indirectly.” [89] If, however, one considers a normal case of shared parenting responsibilities, on a week‑on, week‑off basis, the children would have been with their father for a week. Ms. Barendregt would not need any assistance with the children during that period of time. During the week that the children were with their mother, they would be in school during the week and, if she required assistance in the evenings or on the weekend, it would be necessary for her, as is the case with many single parents, to find that help. The reality is that there would be relatively little need for the parties to interact. What is hoped for in the interactions of divorced parents is civility and respect. What is required is that those interactions not adversely affect the well‑being and best interests of their children. Many parents in strained circumstances interact by text or email. In the event Mr. Grebliunas acted or expressed himself inappropriately, that could be addressed in any one of a number of ways. [90] Accordingly, for the various principled reasons and practical considerations that I have described, I do not consider that the trial judge’s concerns about the “relationship between the parties,” or his concerns about Ms. Barendregt’s need for some emotional support, outweigh the benefits to the children of remaining in Kelowna. Instead, I consider that the best interests of the children would be served with their primary residence being in Kelowna and with their being parented by both their parents. [91] I would admit the new evidence, allow the appeal to the extent of setting aside paragraphs 1–6 of the order made at trial, which concern parenting, and order that the children be returned to Kelowna. I would further order that the parties enter into a shared parenting and shared guardianship regime. I am mindful that the impact of COVID‑19 may impede the ability of the children to move back to Kelowna and the placement of the children in new schools. Accordingly this order is to take effect as soon as reasonably possible and, in any event, no later than three months from the date it is made. Until the children are moved to Kelowna, those terms of the existing order that grant Mr. Grebliunas parenting time are to remain in place. [92] One last matter arises. The trial judge, for reasons that were not developed, dismissed Ms. Barendregt’s claim for spousal support. In light of the orders now being made, it may, or may not, be appropriate to revisit that issue. [93] The parties are to bear their own costs of the appeal. “The Honourable Mr. Justice Voith” I AGREE: “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Madam Justice DeWitt‑Van Oosten”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Findlay v. George, 2021 BCCA 12 Date: 20210113 Dockets: CA46004; CA46336 Docket: CA46004 Between: William Aubrey Findlay Appellant (Plaintiff) And St. John George also known as John Taylor, deceased Respondent (Defendant) - and - Docket: CA46336 Between: William Aubrey Findlay Respondent (Plaintiff) And St. John George also known as John Taylor, deceased Appellant (Defendant) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Dickson The Honourable Madam Justice DeWitt‑Van Oosten On appeal from: Orders of the Supreme Court of British Columbia, dated March 14, 2019 ( Findlay v. George, Vancouver Docket M148460), and July 25, 2019 ( Findlay v. George , 2019 BCSC 1227, Vancouver Docket M148460). Counsel for the Appellant (via videoconference): G.J. Kehler Counsel for the Respondent (via videoconference): D. De Baie Place and Date of Hearing: Vancouver, British Columbia November 13, 2020 Place and Date of Judgment: Vancouver, British Columbia January 13, 2021 Written Reasons by: The Honourable Madam Justice DeWitt‑Van Oosten Concurred in by: The Honourable Madam Justice Saunders The Honourable Madam Justice Dickson Summary: The appellant suffered post‑traumatic stress from his involvement in a motor vehicle collision. He sued the other driver for damages. A jury dismissed the action, finding the appellant did not prove liability against the other driver. The appellant challenges the jury’s verdict, seeking a new trial. On appeal, he alleges the judge wrongly excluded evidence from the jury, namely: (1) a portion of a witness statement provided by someone (now deceased) who observed the collision; and (2) information relating to the other driver’s medical condition, recorded in documents completed by the respondent and a physician 13 months prior to the collision. Held: Appeal dismissed. The judge did not err in excluding an ambiguous and misleading part of the witness statement. With respect to the medical information, the judge’s assessment of probative value and prejudicial effect is entitled to significant deference and the appellant has not established overriding error. On completion of the trial, the respondent sought double costs based on the appellant’s rejection of a pre‑trial settlement offer. The trial judge declined to award double costs. The respondent appeals that decision, alleging a misapprehension of evidence, the consideration of irrelevant factors, and a failure to give meaningful effect to the objective underlying double costs. Held: Appeal dismissed. Awarding double costs is a discretionary determination, entitled to considerable deference on review. The respondent has not established overriding error in the judge’s analysis. Reasons for Judgment of the Honourable Madam Justice DeWitt‑Van Oosten: Introduction [1] These reasons address two appeals: one from a jury’s verdict dismissing a claim in negligence; the second from an order denying double costs. [2] In January 2013, the appellant was driving a logging truck on a snow‑covered highway. A pickup truck, travelling in the opposite direction, collided with the back of his trailer. Tragically, the driver of the pickup truck died. [3] The appellant attempted to assist the other driver at the scene. As a result, he suffered post‑traumatic stress that he says has profoundly affected his life. He sued for damages. The trial proceeded before a jury in March 2019. The jury dismissed the claim, finding the appellant did not prove liability against the respondent. On appeal, the appellant asks that the verdict be set aside. He says the judge wrongly excluded evidence from the jury that could have resulted in a different outcome. [4] After the dismissal, the defence applied for double costs based on the appellant’s refusal to accept a pre‑trial settlement offer. The trial judge awarded single costs only. That ruling is also under appeal, on grounds that the judge committed errors in principle in reaching his conclusion. [5] For the reasons that follow, I would dismiss both appeals. Background Negligence Action [6] The collision occurred in January 2013. It was daylight. The roadway was covered in snow. A witness who observed the collision testified there was a “lot of ice” on the road. The posted speed limit was 90 kilometres per hour. [7] The appellant (William Findlay) was driving a commercial logging truck, consisting of a tractor and an empty tandem log trailer. The logging truck had a series of “bunks” along its length, to keep the logs from rolling. Two of those bunks were on the tractor. Another two were on the trailer. The outside edges of the bunks extended beyond the width of the tractor. At the rear of the log trailer, the driver’s side bunk extended 11.8 inches out from the trailer’s wheel. The bunks contained reflective tape. However, the logging truck was also required to have warning flags attached to the bunks. The purpose of such flags is to notify other drivers that the vehicle is over‑sized and to make sure it is visible. The flags attached to the rear of the trailer were not bright red or orange. Nor did they meet the required size. According to a witness who inspected the logging truck post‑collision, the flags were “tattered and faded, to the point of not – almost being invisible”. [8] The appellant was travelling northbound on Highway 118, approximately 12 kilometres from Granisle. The respondent (St. John George, also known as John Taylor) was travelling in the other direction, driving a GMC Sierra pickup truck. Neither the logging truck nor the respondent’s vehicle had mechanical defects. [9] In his testimony, the appellant described Highway 118 as a “very, very poorly maintained road”. On the day in question, it was “kind of slick”. The appellant said that just before the collision, he was in the process of slowing down, getting ready to turn right. He thought he was travelling at a speed of about 40 kilometres per hour. [10] The appellant saw the respondent’s vehicle approaching him. There was nothing unusual about the manner of driving. The respondent passed by the tractor. Again, there was nothing about his driving that “concern[ed]” the appellant. The appellant described the pickup truck as being “maybe … [f]our to six feet” away from his vehicle. After the respondent passed the tractor, the appellant did a shoulder check. He heard a loud noise, looked in his mirror and did not see anything. He looked a second time and saw the respondent’s vehicle in the ditch. The appellant “slammed on [his] brakes and stopped”. [11] At the location of the collision, the highway had a slight, leftward curve for northbound traffic. The respondent was travelling on the inside of that curve, heading south. There was nothing obstructing each vehicle’s view of the other. [12] At the point of impact, the appellant’s northbound lane of travel was 3.87 metres wide, measured from the centre line. The respondent’s lane of travel was 4.15 metres wide, measured from that same point. Because of the snow, the lane markings were not visible on the day of the collision. This included the centre line. [13] The appellant testified that when the two vehicles passed, he had no concerns about how the log trailer was tracking behind his tractor. A witness travelling in a vehicle approximately 20 to 25 car lengths behind the pickup truck said everything looked “normal” as the vehicles began to pass. [14] The respondent called an expert in collision reconstruction. He opined that at the point of impact, the outer bunk at the rear of the appellant’s trailer (driver’s side) was in the respondent’s southbound lane of travel. The left front of the pickup truck collided with that bunk. The pickup truck “under‑rode the outside left rear bunk, so basically the front of the hood caught that bunk, and then it – it went under, and that bunk tore through the upper part of the hood, and pillars”. The pickup truck ended up in a ditch across the appellant’s (northbound) lane of travel. [15] Photographs of the pickup showed extensive damage to its front, top and driver’s side. The damage to the logging truck was primarily to the rear corner of the trailer (driver’s side). In his report, the expert opined that the: impact likely happened in the southbound lane . At the point of impact, the [respondent’s] pickup appears to be established approximately centrally in its lane. The [appellant’s] tractor trailer was approaching impact from a position that was slightly over the center line. At impact, the path of the [appellant’s] tractor was directed back towards its lane of travel. However, the outer bunk of the [appellant’s] trailer was still approximately 1 meter over the center line . It is likely that the impact to the left side of the [respondent’s] pickup induced a counter‑clockwise rotation to the vehicle, which is consistent with its measured tire marks. [Emphasis added.] [16] The encroachment in the southbound lane measured one metre over the centre line. The front of the respondent’s pickup truck was 1.85 metres wide. According to the appellant’s calculations, this would have left 1.3 meters to spare in the southbound lane of travel (or approximately 4.3 feet). [17] An agreed statement of facts filed at trial stated that the respondent’s vehicle “collided with the last bunk on the [appellant’s] tandem trailer”. [18] Following the collision, the appellant was charged with driving without due care and attention under the Motor Vehicle Act , R.S.B.C. 1996, c. 318. He disputed the charge, had a trial in the Provincial Court and was found guilty of the offence. At the civil trial, the parties agreed to the fact of the conviction going before the jury, with the following explanatory context: With respect to the subject accident, the plaintiff, Mr. Findlay, was convicted in the Provincial Court of British Columbia of driving without due care and attention, a traffic violation, contrary to s. 144(1)(a) of the Motor Vehicle Act . It was proven beyond a reasonable doubt that the manner of Mr. Findlay's operation of his motor vehicle was in all of the circumstances "a departure from the accustomed sober behaviour of a reasonable person". As part of the conviction, the Provincial Court found that a part of the trailer of Mr. Findlay's vehicle had crossed the centre into the southbound lane of travel of the pickup truck driven by the defendant in this lawsuit. The Provincial Court did not determine whether a part of the trailer being across the centre line in fact caused the accident. [Emphasis added.] [19] The trial on the negligence claim lasted 10 days. The jury dismissed the appellant’s claim, finding that he did not prove liability against the respondent. As a result, there was no assessment of damages. Application for Double Costs [20] In September 2017, the respondent delivered a formal settlement offer to the appellant for $80,000. The appellant did not accept that offer. Instead, he responded with an offer for $600,000. He later revoked that position and offered to settle for $500,000, plus taxable costs and disbursements. [21] At trial, and in addition to non‑pecuniary damages, appellant’s counsel asked the jury to award: $388,382.66 for gross past wage loss (before statutory deductions); $308,694.78 for loss of future earning capacity; $27,566.56 for loss of past housekeeping capacity; $67,000 for loss of future housekeeping capacity; and $50,939.10 in special damages. [22] The jury dismissed the appellant’s claim in its entirety. In June 2019, the respondent applied for costs under the Supreme Court Civil Rules . He asked for an assessment at Scale B up to the date of the $80,000 offer, and double costs thereafter. The trial judge awarded the respondent single costs. Positions at Trial Negligence Action [23] For use in the jury charge, each party provided the trial judge with a summary of their position on liability. The appellant argued that the logging truck was “there to be seen”. Had the respondent been driving attentively, the collision would not have occurred. The appellant said the respondent “had the time and he had the space to avoid the accident”. As such, he was negligent in failing to move to the right when passing the logging truck. The fact that the appellant was convicted of an offence in “traffic court because a part of his trailer was across the invisible centre line” was not determinative of liability. “More than one mistake can go into the making of an accident”. [24] The respondent argued for dismissal of the claim on grounds that the appellant did not prove the respondent caused or contributed to the collision. The evidence established that the log trailer was in the respondent’s lane of travel at the point of impact. There were no witnesses to the impact and no evidence of negligent or otherwise problematic driving on the part of the respondent. Instead, the respondent was “faced with an emergent situation created by the [appellant’s] trailer being in his lane of travel”. The appellant led no evidence to show that a reasonable driver in the respondent’s position would, or ought to, have seen the trailer in their lane of travel. Nor that a “reasonably skillful driver” would have had the opportunity to avoid a collision. Application for Double Costs [25] Reasons for judgment on the application for costs are indexed as Findlay v. George , 2019 BCSC 1227 (“RFJ”). [26] The appellant acknowledged he was liable for costs based on the jury’s verdict. However, he said the respondent failed to justify double costs. Given the evidence known to the appellant when he rejected the $80,000 offer, it was reasonable for him to believe that he could obtain a substantially larger amount of damages at trial. That evidence included medical information about the respondent that the appellant believed would support his theory of liability because it revealed, among other things, that the respondent would “[lose] concentration when driving”. In opposing the request for double costs, the appellant also cited his own “precarious financial position” (RFJ at paras. 19–21, 32, 36). [27] The respondent argued that on the totality of the evidence, including the appellant’s conviction under the Motor Vehicle Act , it should have been readily apparent to the appellant that there was a significant risk he could not prove liability. Moreover, to the extent that the appellant thought information about the respondent’s medical condition would bolster his claim, the respondent let the appellant know before trial that the admissibility of those documents was in dispute. As such, there were no guarantees they would go before the jury. [28] The trial judge declined to award double costs. His reasons for doing so are briefly stated: [39] Here, despite the fact hindsight makes clear the offer ought to have been accepted, I conclude that the plaintiff’s rejection of the defendant’s offer, when made and to the date of trial, was not unreasonable based upon the following: 1) the evidence from [the collision reconstructionist] and the two lay witnesses that there was plenty of room within the defendant’s lane of travel to pass the plaintiff’s trailer without contacting the plaintiff’s trailer despite its incursion into his lane of travel; 2) the overall magnitude of the claim given the commonality of the medical opinions regarding the plaintiff’s condition and the economic impact of the injuries he admittedly suffered; and 3) the uncertainty surrounding the admissibility of the medical records of the defendant which the plaintiff thought would assist the jury in concluding that the defendant failed to react appropriately to reasonably avoid the collision. 4) Finally, the offer to settle provided no legal or factual analysis on which the plaintiff could consider acceptance or rejection; specifically, there was no analysis of the weaknesses of the plaintiff’s position resulting in the defendant’s assessment of the case in making the offer. Issues on Appeal [29] In challenging the verdict on the negligence claim, the appellant contends that: (1) the trial judge erroneously kept a portion of a witness statement from the jury; and (2) the judge wrongly deprived the jury of evidence about the respondent’s medical condition, associated symptoms, and their potential impact on his driving. [30] On the appeal from the costs order, the respondent also raises two issues. He says: (1) the trial judge “misdirected” himself on facts and factors relevant to the costs analysis; and (2) he gave inadequate weight to the purpose of double costs. In support of his costs appeal, the respondent applies to introduce fresh evidence, namely, correspondence between the parties relating to the September 2017 exchange of settlement offers. Discussion Appeal from Jury’s Verdict – Excluding the Witness Statement [31] Two people travelling behind the respondent witnessed the collision: Kenneth Gowan and Glen Taylor. Mr. Gowan was driving a pickup truck. Mr. Taylor was his passenger. By the time of trial, Mr. Gowan had died. The appellant applied to admit a statement Mr. Gowan gave to police at the scene of the collision. From the appellant’s perspective, the statement “could provide evidence … that the [respondent] had plenty … or lots of room to pass by” the full length of the logging truck. [32] The respondent opposed the application. He acknowledged that in light of Mr. Gowan’s death, the appellant satisfied the admissibility criteria of “necessity” under the principled exception to the rule against hearsay. However, he contested the statement’s “threshold reliability”. Among other things, the respondent contended that an answer provided in the statement responded to a “leading” question and was too “ambiguous” to leave with the jury. The problematic portion of the statement is underlined below: [Mr. Gowan] Ok. … It, ah, this is a guess but it happened close to about 9:15, maybe 9:25 at the most. My friend Glen and I were driving down the road the ah victim … passed us about 2 kilometres maybe before the accident happened. I didn’t see the point of impact itself but I saw the 2 vehicles approaching each other and it looked like there was plenty of space and then all of a sudden the pickup ah … hit the logging truck[,] went out of control and ah crossed the road and rolled … once (inaudible) [Police officer] Ok. Um … so … you said that ah the pickup when it was ah … it was southbound, it appeared that it had lots of room to go by the trailer or the logging truck. [Mr. Gowan] yeah, yeah neither myself nor Glen thought much about it and all of a sudden Glen was saying whoa, whoa, whoa and … I saw it at the same time but I never actually saw the point of impact so I don’t, I just don’t know how it happened because it looked like there was plenty of room but neither myself nor my friend were even thinking about accident. [Emphasis added.] [33] The trial judge admitted Mr. Gowan’s statement, but not the underlined passages. Citing R. v. Bradshaw , 2017 SCC 35, the judge was satisfied that the bulk of the statement met the test for threshold reliability. The statement was made within 30 to 40 minutes of the collision; it was made to a police officer in circumstances where the truth would be expected in light of Mr. Gowan’s “non‑biased” observations; and the judge found that the “gravity of the accident [gave] rise to a presumption that the investigating police officer was expecting the truth …”. As such, cross‑examination would be unlikely to change Mr. Gowan’s evidence. [34] However, the judge excluded the impugned passages on grounds that “the answer given [by Mr. Gowan] was in response to a leading question referencing the [log] trailer; the answer given was ambiguous, and, in the result, could be misleading, even with proper instructions”. As explained in his ruling: [24]      Mr. Gowan, in his initial description of the events … was clear that he did not see the point of impact, but saw the two vehicles approaching each other, and it looked like there was plenty of space, and “then all of a sudden the pickup hit the logging truck, went out of control, and crossed the road and rolled over once”. [25] Only in response to the question posed next by the constable that it appeared that he had lots of room to go by the trailer or logging truck, did Mr. Gowan seem to agree … responding, “yeah, yeah”, but then clarifies that he nor to his knowledge his friend Glen actually saw the point of impact, so he did not know what happened, but it appeared there was plenty of room . [Emphasis added.] [35] The appellant says the trial judge erred in his admissibility ruling by wrongly characterizing the police officer’s question as “leading”. The officer did not pose a question that suggested an answer or assumed a state of facts that was in dispute: R. v. E.M.W. , 2011 SCC 31 at para. 9. Moreover, the appellant says this evidence carried substantial probative value for his claim. Not only did it confirm his theory that there was ample room for the respondent’s vehicle to pass by the entirety of the logging truck, this portion of the statement captured the fact that the collision surprised Mr. Gowan. It did not make sense to him in light of the space he saw between the logging truck and the respondent’s vehicle as they were approaching each other. The appellant says a jury could have inferred from that fact that the respondent must have done something unexpected or unusual to cause or contribute to the collision, or that he failed to take evasive action that was reasonably open to him (appellant’s factum at para. 64). [36] The respondent says the police officer’s question to Mr. Gowan was a leading question and introduced a fact into the statement that Mr. Gowan himself had not spoken to, namely, that there was “lots of room” between the entire length of the logging truck and the respondent’s vehicle. As a result, it was not possible to know from his answer of “yeah, yeah” to the officer’s question whether Mr. Gowan was agreeing to “lots of room” to pass by the tractor, or “lots of room” to pass by the trailer. Because of Mr. Gowan’s death, the respondent had no opportunity to cross‑examine on the difference between the two, and the respondent says the judge was right to find that this portion of the witness statement carried the realistic potential of misleading the jury. It implied that Mr. Gowan was able to see the positioning of the two vehicles while the respondent’s vehicle was alongside the trailer, and to describe the distance between them. Yet, in his answer to the officer’s question, Mr. Gowan made it clear that he “never actually saw the point of impact”. [37] A hearsay admissibility ruling is subject to review on a standard of correctness, if what is at issue is the legal test or the standard for admissibility applied by the trial judge. However, the actual assessment or weighing of relevant factors in applying that test attracts deference: R. v. Moir , 2020 BCCA 116 at para. 82. [38] The appellant does not contest the judge’s ruling on grounds that he wrongly instructed himself on the test for admissibility or applied an incorrect legal standard. Rather, his argument focuses on the conclusion that the portion of the statement excluded from evidence was ambiguous because of the nature of the officer’s questioning. Furthermore, he contests the judge’s determination that, even with proper instructions, the impugned passages could mislead the jury. In my view, those conclusions were reached after a weighing of relevant factors and a consideration of the evidence in the context of everything else before the judge. Accordingly, they attract deference. [39] I am not persuaded the trial judge committed an error in principle, let alone an overriding error, or was clearly wrong in excluding part of Mr. Gowan’s statement. The question posed by the police officer may not have been leading, in the technical sense, but it did misstate what Mr. Gowan said to the officer. Prior to the excluded portion, Mr. Gowan told the officer that he “saw the 2 vehicles approaching each other and it looked like there was plenty of space” (emphasis added). In repeating that observation back to him, the officer described it this way: “you said that … the pickup … it appeared that it had lots of room to go by the trailer or the logging truck ” (emphasis added). That is not what Mr. Gowan said. He described seeing “plenty of space” as the vehicles approached each other, not “lots of room” to move alongside the tractor and the trailer. In fact, as noted, Mr. Gowan told the officer that he “never actually saw the point of impact”. As such, he could not give evidence about the amount of space between the log trailer and the respondent’s vehicle. He said he would be “guessing” as to where the pickup and the logging truck “hit”. [40] In that context, it was open to the judge to find that the impugned portion of Mr. Gowan’s statement was ambiguous, of insufficient reliability to leave with the jury, and that it carried the realistic potential of prejudicing the fact‑finding process. He was justifiably concerned that a finding of there being “lots of room” to travel by the log trailer, arising from Mr. Gowan’s statement, would be grounded in the police officer’s casting of what Mr. Gowan had said to him, rather than Mr. Gowan’s personal observation. As the judge noted in his discussions with counsel on the admissibility voir dire , it was the officer’s question that “threw” the log trailer “into the mix”, not anything mentioned by Mr. Gowan. It was “only at the instance of the police that all of a sudden the trailer [came] into it …”. [41] I am also of the view that had the judge admitted the entirety of Mr. Gowan’s statement, it would have made no difference to the verdict: Gray v. ICBC , 2010 BCCA 459 at para. 30. As such, even if the admissibility ruling reflects an error of sufficient magnitude to displace the deferential standard of review, it does not warrant a new trial. [42] In deciding admissibility, the judge took the evidence of Glen Taylor into account. By the time of the ruling, Mr. Taylor had testified at trial. The judge described his evidence as conforming “in large measure” with the description of events provided by Mr. Gowan. [43] Mr. Taylor was Mr. Gowan’s passenger. He said they were “roughly 20, 25 car lengths” behind the respondent when the collision occurred. As they approached the logging truck, Mr. Taylor could see the trailer, the “stakes … the trailer bed, and the tires”. He saw the respondent “pass by the front end of the truck … and the driver wheels of the … tractor ” (emphasis added). From Mr. Taylor’s perspective, it “just looked like normal two vehicles passing one another. Everything looked normal as far as passing”. [44] In response to a question posed by counsel, Mr. Taylor admitted to being “surprised” by the accident. He described how, immediately following the collision, Mr. Gowan’s vehicle was able to travel southbound past the (now stopped) logging truck in the respondent’s lane of travel: A          … I mean, understanding the truck had stopped and -- and the accident was right here at the back of the trailer, all the debris was on the highway right here, and yet we wound through it and we had two feet on my side to the snowbank and two feet on Ken's side to the logging truck, so all told there would be ten feet at least of highway that we can go through no problem at all, maybe 12 feet. A          I mean that -- that part -- you know, you think about it later more so than you do right at the -- right at the accident you don't think of things like that, but you do -- your mind plays that whole game of remembering. [45] The excluded portions of Mr. Gowan’s statement did not add anything to the evidence that was not otherwise available to the appellant through the testimony of Mr. Taylor (as well as the testimony of the appellant, who said there was four to six feet between the two vehicles). This factor mitigates the prejudicial effect of the judge’s ruling: Wright v. Sun Life Assurance Company of Canada , 2019 BCCA 18 at para. 88. [46] In fact, Mr. Taylor’s evidence was more robust than that of Mr. Gowan on the question of whether there was sufficient room to get by the log trailer. Neither witness was able to describe the point of impact; however, Mr. Taylor’s observation that everything appeared “normal” when the vehicles began to pass each other went beyond that of Mr. Gowan’s, and visually tracked the respondent’s vehicle as it passed the driver’s wheels of the tractor. Mr. Gowan’s evidence described only the circumstances as the vehicles were “approaching each other”. [47] Mr. Taylor also described being able to proceed through the southbound lane after the fact. As such, his evidence offered support for the appellant’s sought‑after inference that was not available through Mr. Gowan, namely, that there was room to pass by the entire length of the logging truck in the respondent’s lane. Indeed, that was precisely the submission made on behalf of the appellant before the jury. In addition to highlighting Mr. Gowan’s reference to “plenty of space” when the vehicles were approaching each other (which was admitted into evidence), appellant’s counsel emphasized Mr. Taylor’s testimony that there was: nothing abnormal about the passing. He was watching, he didn't see at the point of impact, but he did see the vehicles pass, and he saw nothing abnormal, nothing that caught his eye They drove through the -- the actual scene of the accident, and driving cautiously, what he called I believe the debris, and he said that his belief was that there was lots of room. I believe he said there was ten feet, maybe more, like 12 feet of room, that -- where they drove through as they go through the -- the debris, and I believe -- it will be my submission that again that was a very good guess, because when you look at the numbers that we got from the engineer today, that's about what the distance was in that lane of travel. That's the available distance of the lane of travel that Mr. George was in. Well, the things that [the appellant, Mr. Gowan and Mr. Taylor] came to was he had plenty of room to pass , and I submit that that's important. Those are the occurrence people, that's not the people who sit down and do calculations three years later. [Emphasis added.] [48] I note that when the trial judge reviewed the evidence on liability for the jury, he described Mr. Taylor’s evidence in generous terms. He told the jury that when Mr. Taylor saw the two vehicles “side by side”, “cab to cab”, Mr. Taylor “noted there was plenty of space between the two of them”. The reference to “plenty of space” came from Mr. Gowan, not Mr. Taylor. In his testimony, Mr. Taylor was not able to “tell the court anything about the distance between the two vehicles at that moment”. The judge’s mingling of this evidence inured to the benefit of the appellant. [49] In my view, the excluded portion of Mr. Gowan’s statement did not deprive the appellant of an evidentiary foundation from which to argue that there was sufficient space for the respondent to get by the logging truck, or materially impair his ability to make that submission. Accordingly, I would not accede to this ground of appeal. Appeal from Jury’s Verdict – Excluding the Medical Information [50] The appellant also challenges a decision by the trial judge to exclude medical information relating to the respondent. [51] Prior to trial, the appellant served the respondent with a Notice to Admit (Rule 7‑7(1), Supreme Court Civil Rules ). The Notice attached two applications for a “Disabilities Designation” signed by the respondent in 2011. The appellant sought an admission that the disability applications “contain[ed] an accurate recording of the [respondent’s] condition as at the dates of each document”. [52] The first of the applications was dated June 8, 2011, and included a “Physician Report” stating the respondent had been diagnosed with, among other things, bilateral deafness (1996), bilateral carpal tunnel syndromes (past redemption) (2000), and hepatitis C (1992). Section 4 of the application included an “Assessor Report”, the purpose of which was to document the respondent’s “impairments and their impact on performance of Daily Living Activities”. Under the heading “Cognitive and Emotional Functioning”, the Assessor Report indicated that the impairments had “moderate impact” on the respondent’s “Attention/concentration (e.g. distractible, unable to maintain concentration, poor short term memory) ” (italics in the original). [53] The second of the disability applications was dated December 13, 2011. The Physician Report listed the same diagnoses as the first. It also stated that the respondent was “getting weaker. He is more unsteady & has had a dozen or so falls in the last few weeks”. “Significant deficits” with cognitive and emotional function were noted to include “Attention or sustained concentration”. Under the heading “Additional Comments”, it was stated that the respondent “is losing concentration when driving”. The Assessor Report noted “moderate impact” in the area of “Attention/concentration”. The respondent’s “impairment” was likely to continue for two years or more, with an “estimated duration” of “lifetime”: He is being treated for [a particular medical condition] successfully according to the blood tests. But the illness is taking its toll as it does. He will continue to deteriorate slowly. [54] The respondent delivered a Reply to the Notice to Admit. He admitted that the disability applications “contain[ed] an accurate recording of the [respondent’s] condition as at the dates of each document”. He also admitted the authenticity of the documents. [55] At trial, the appellant sought to have the disability applications put before the jury for the truth of their contents. From his perspective, the documents contained evidence that the respondent was “suffering from a condition or an illness which might explain why he failed to avoid the trailer of the [appellant’s] vehicle”. More specifically, that the respondent “lacked – suffered from fatigue, a lack of concentration when driving”. The appellant was prepared to call the physician named in the applications to speak to the “legibility” of those records (not to “expand” on them, or to “give [an] opinion”), but he did not consider it necessary to do so. [56] The respondent objected to admissibility, contending that the disability applications were not relevant (or material) to a live issue at trial. In support of the objection, respondent’s counsel emphasized that the appellant’s pleadings did not cite the respondent’s medical condition as a cause of the collision: “If what [the appellant] really wanted to do is say that the [respondent’s] medical condition caused or contributed to the motor vehicle accident, that ought to have been a very specific particular. They [should have] said operating a motor vehicle on a highway when his ability to drive was impaired by his medical condition. [That’s] missing.” The respondent also argued that even with such a pleading, there was “no evidence to support … an inference that the [respondent’s] medical condition was in any way causally connected to the collision that occurred”. The absence of an evidentiary link weighed against admissibility. [57] In response to the latter contention, the appellant said expert opinion evidence was not necessary: it is open to lay people, in fact a jury, to take these fairly simple basic facts that are contained within these records, lack of concentration, fatigue and so on that’s permanent and – and make inferences and make conclusions or not, but it’s information that should be available to them. [58] The trial judge declined to admit the disability applications. He found that the appellant’s pleadings were not “specific enough to embrace a medical condition that would alert [the respondent] to the fact that such was an issue they had to address at trial”. This included a pleading that the respondent’s ability to drive was “impaired by alcohol, drugs and fatigue or any one or more of the alcohol, drugs and fatigue”. Had the appellant pleaded that one or more aspects of the respondent’s physical health supported a liability finding, the defence may have considered it necessary to marshal evidence about his medical state “more proximate to the accident”. [59] The judge also expressed concern about admitting the records without a substantiated evidentiary nexus between the respondent’s medical condition and the fact of the collision. Without such evidence, the appellant’s causation theory was “mere speculation”. Ultimately, it was the judge’s view that: [18]      … placing the medical records sought to be tendered as evidence for the jury to consider, regardless of what instruction I give them as to the limited use of which they can make, has a prejudicial effect which will outweigh the probative value of what reasonably could be made of the commentary contained within . [Emphasis added.] [60] The appellant says the judge erred in keeping the disability applications from the jury. Moreover, doing so was fatal to successfully advancing his claim in negligence. [61] First, the appellant submits that by admitting to the accuracy and authenticity of the documents, the respondent conceded the truth of their contents. He also conceded that the disability applications were relevant and admissible at trial. The respondent could only pull back from that position by seeking leave to withdraw his “admission of fact” under Rule 7‑7(5). He did not do so and it was not open to him to “re‑litigate the admissibility and relevancy” of the evidence (appellant’s factum at para. 79). Furthermore, without withdrawal of the admission , the judge should have considered himself bound to place the documents before the jury. [62] Second, and in the alternative, the appellant contends that the judge committed overriding error in finding that the prejudicial effect of this evidence outweighed its probative value. Months before the collision, a physician recorded that the respondent was losing concentration when driving. He also opined that the respondent’s health would continue to deteriorate. That evidence was “logically relevant to the issue of who, or what, caused the [collision]” and “worthy of being heard by the jury” (appellant’s factum at para. 87). The appellant says a juror “with even a modicum of common sense” would recognize that a medical condition that causes a loss of concentration while driving could provide a logical explanation for the collision. [63] The appellant says there was no prejudice in admitting the disability applications. Starting in May 2017, the appellant applied for more than one production order relating to the respondent’s medical records. Respondent’s counsel was aware of those applications and the resultant orders. There was more than sufficient time to prepare a defence. [64] In response to this ground of appeal, the respondent contends that the appellant did not raise Rule 7‑7(5) and its implications for the admissibility analysis with the trial judge. Citing Gorenshtein v. British Columbia (Employment Standards Tribunal) , 2016 BCCA 457 at para. 44, the respondent says the appellant should not be allowed to raise this issue for the first time on appeal (respondent’s factum at paras. 22–23). [65] In any event, the Reply to the Notice to Admit acknowledged only that the disability applications accurately recorded the respondent’s medical “condition” at the time they were completed and were authentic. The respondent says he did not admit to the truth of all of the facts and opinions stated in the applications, including all of the recorded symptoms associated with the diagnosed medical “conditions”; their impact on daily functioning; their frequency or duration; or, importantly, the things the respondent told the physician about his circumstances. Finally, and most significantly, the disability applications carried minimal (if no) probative value vis‑à‑vis live issues at trial. There was no evidence connecting the information recorded in the documents to the respondent’s driving at the time of the collision. As such, the judge was right to hold that the prejudicial effect of this material outweighed its probative value. [66] The respondent is correct: the appellant did not argue below that the Notice to Admit was determinative of admissibility. However, I do not consider it necessary to decide whether that should preclude him from raising the argument on appeal. In my view, even if granted leave to pursue this issue, the appellant could not establish that the judge erred in law by not viewing himself bound to allow the disability applications into evidence. [67] First, the respondent’s position that the admission was not as extensive as the appellant suggests has merit. The respondent admitted that the disability applications “contain[ed] an accurate recording” of the respondent’s “condition as at the dates of each document”. However, the term “condition” was not defined. Nor did the Notice to Admit specify which of the statements, observations, opinions or other notations in the disability applications formed part of the admission. The contents of the documents were not particularized as facts. [68] As a result, it is not clear to me that admitting the respondent’s “condition” was “accurately record[ed]” in the disability applications extended beyond the formal medical diagnoses and captured everything noted therein, or, even if it did, whether that admission was to the truth of the notations as facts. These include the stated deficits, impairments or symptoms associated with the medical diagnoses; the impact of those impairments on daily functioning; their severity or duration; the likelihood of improvement; and the respondent’s self‑reports about his physical health. As cautioned in Morrissey v. Lydiard (1993), 35 B.C.A.C. 299, when a party relies on a Notice to Admit as proof of the truth of the contents of one or more documents, seeking to elevate those contents to the status of admitted facts (in whole or part), the contents should be stipulated as facts for the purpose of the admission. See also, Wunsche v. Wunsche (1994), 114 D.L.R. (4th) 314 (Ont. C.A.). [69] Adherence to the Morrissey standard is especially important when dealing with clinical records, a consultant’s report, or a physician’s notes (the functional equivalent of what was at issue in this case). Ordinarily, when these sorts of records are admitted into evidence on a stand‑alone basis, the trier of fact can make only limited use of them in light of their hearsay nature. As noted by Metzger J. in Seaman v. Crook, 2003 BCSC 464, observations made by a physician and treatments prescribed by them, as recorded in the documents, are generally admissible as facts. Any diagnoses or opinions , however, are admissible solely for the fact they were made. Without something more, the diagnoses or opinions are not admissible for their truth (at paras. 14–15). See also Healey v. Chung , 2015 BCCA 38 at paras. 19–21. The cautionary language of this Court in Samuel v. Chrysler Credit Canada Ltd ., 2007 BCCA 431, is apposite: “[c]linical records should not be admitted into evidence, by consent or otherwise , unless counsel identify the specific purpose for particular portions of the records” (at para. 39; emphasis added). [70] Second, and in any event , I do not accept that the admission, even if it was as extensive as the appellant suggests, precluded the trial judge from exercising his gatekeeping role and keeping the disability applications from the jury. In other words, the Notice to Admit was not determinative of admissibility. [71] This Court has held that a trial judge is not bound to act on a formal admission if the evidence called at trial does not support the admission: Boscoe v. Connelly (1987), 5 A.C.W.S. (3d) 249 (C.A.). Likewise, it seems to me that where there is a dispute over the scope of an admission concerning documents; a trial judge has questions about the preconditions to admissibility; or it is unclear what use can properly be made of the documents, the party seeking to tender that evidence must be prepared to meet those concerns: Morrissey ; Wunsche . [72] This includes, logically, any concern that the prejudicial effect of the impugned evidence outweighs its probative value. The appellant cites Desharnais v. Parkhurst and Romanowski , 2013 BCCA 113, for the proposition that securing admissions through a Notice to Admit will “normally” dispense with the need to establish the preconditions to admissibility (at para. 94). I agree. However, where an admission—as here—is unclear and the parties disagree on its scope and legal effect, the general rule must allow for a flexible application. Moreover, dispensing with the preconditions to the admissibility of documents does not necessarily mean that the entirety of those documents is then available for the truth of their contents . [73] A s I see it, the respondent did not withdraw from his admission. Instead, the objection to admissibility was that the “condition” of the respondent, although accurately recorded in the disability applications as at the date of those documents , carried no probative value because of the lack of a demonstrated nexus between the “condition” and the collision. Moreover, because of the absence of a nexus, the documents, if placed before the jury on a stand‑alone basis, would have prejudicial effect. In my view, the Reply to the Notice to Admit did not preclude the respondent from invoking the evidentiary gatekeeping role of the trial judge on this basis. [74] I accept the appellant’s position that if the respondent was objecting to admissibility on the basis of relevance, or he was unsure of the scope of the admission, he should have been clear about that from the beginning and flagged it in his Reply (Rule 7‑7(2)(c)). However, he did tell the appellant of his opposition to admissibility prior to the commencement of trial. Furthermore, in response to another of the appellant’s sought‑after admissions, the Reply was explicit that, from the respondent’s perspective, there was “ no reliable evidence with respect to the medical condition of the [respondent] immediately prior to the accident” (emphasis added). As such, the appellant ought to have known that the materiality of pre‑collision medical information involving the respondent was in issue. [75] I am satisfied that, notwithstanding the admission, the trial judge retained discretion to determine admissibility and to keep the disability applications from the jury if he considered their admission improper. Even where parties have consented to documents being put before a jury, that factor will not always be “determinative” of whether they should have been entered into evidence: Han v. Park , 2015 BCCA 324 at para. 32. The parties received full opportunity to make submissions on admissibility, addressing both the logical and the legal relevance of the evidence. The judge considered those submissions and, ultimately, he used his discretion to exclude the disability applications. This he was entitled to do. [76] A judge’s decision to disallow evidence after weighing its probative value and prejudicial effect is entitled to considerable deference, provided it is not “premised on a wrong legal principle or the result of a palpable or overriding error”: Houston v. Kine , 2011 BCCA 358 at para. 14. Finally, if the judge erred in keeping the disability applications from the jury, a new trial is not warranted if a properly instructed jury, acting reasonably, would necessarily have reached the same result had the evidence been admitted: Tsoukas v. Segura , 2001 BCCA 664 at paras. 73–74, citing Anderson v. Maple Ridge (District) (1992), 71 B.C.L.R. (2d) 68 at 77. [77] I would not give effect to the appellant’s alternative submission that the trial judge’s weighing of probative value and prejudicial effect reveals overriding error. A close review of questions posed to appellant’s counsel on the admissibility voir dire reveals that the judge had significant concern about the absence of evidence linking the statements in the documents to the respondent’s driving at the time of the collision. The following excerpts from the dialogue with counsel are lengthy, but they make clear the issue that was troubling the judge: what do you say to [the respondent’s] point that the mere fact of a medical condition, there needs to be something more? I think I raised this when I was questioning you that in the absence of something else, if this was corroborative of some other evidence that would explain a course of action taken by the defendant that might -- in the face of conflicting evidence weigh the scale one way or the other, but what is the link between his medical condition as we know it in December of 2012 -- '11, pardon me, to some 13 months later that allows the trier of fact to simply say, well, his health wasn't the best and that's a possible explanation? this is a very long bow for a jury to stretch to say, well, we know he had problems with concentration, we know he was deaf, we know he can't pick things up that [weigh] over five kilograms, ergo it is possible. Anything's possible, just as you could say, well, he had heart problems and surely you don't suggest that if he'd had heart problems from time to time and was on heart medication that absent a medical opinion saying there was a heart attack at the time of the accident that -- absent anything else you can say, well, he had heart problems. Maybe that explains the accident. how does this jury know … 13 months later that [the respondent] was still having concentration problems? The only permanence that is ascribed to the conditions are those that are set out and noted as permanent It’s not for [the jurors] to come up with an explanation. It’s for them to weigh evidence and determine on the basis of the evidence whether somebody has proven the case, not to speculate as to the many -- many may be overstating it, but a variety of possible explanations for this. And as I say, I’m concerned about the length of time. this is a point in time separate from the accident. I appreciate what you’re saying. It’s a CPP disability form and it says, yes, the permanent symptoms are going to last more than two years, hence the disability, the permanent disability, but I am having a lot of difficulty with the proposition that just a symptom absent something that causally connects that symptom to the issue of negligence is something that just leaves open for the jury to infer negligence. We just pick a point in time and we assume that things either got worse or stayed as they are described in that document and that was what was prevailing and it was at that moment in time because of the curve, that despite the fact that there’s no other indication of his driving being erratic or him doing anything with these people following for I don’t know how long, that this goes into evidence to leave the jury with the thought that maybe he just missed the corner. [78] The appellant’s response to the concern about an insufficient causative connection was that the judge underestimated the probative value of the disability applications, standing on their own, and the inferences available from them. The appellant said the jury could infer, without expert opinion or any evidence of distracted or abnormal driving, that the respondent had a propensity for lost concentration while driving and that it manifested itself while passing the logging truck. “If you already have the underlying fact that you have difficulty with concentration or difficulty with driving, then you have difficulty with driving and that is an explanation. It doesn’t – an expert would add nothing to it at all”. [79] I agree with the trial judge that the probative value of the disability applications, standing alone, was minimal. [80] Contrary to the judge’s view, I accept that these records passed the logical relevance threshold on the pleadings as framed by the appellant. In R. v. Arp , [1998] 3 S.C.R. 339, the Supreme Court made it clear that to be logically relevant, “an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to ‘increase or diminish the probability of the existence of a fact in issue’. … As a consequence, there is no minimum probative value required for evidence to be relevant ” (at para. 38; internal reference omitted; emphasis added). The pleadings put the respondent’s physical condition in issue, with a specific allegation of “fatigue” while driving. They also alleged driving without due care and attention. [81] However, I am satisfied it was nonetheless reasonably open to the judge to find that without something more than broadly stated diagnoses, symptoms, impairments and self‑reports, recorded 13 months prior to the collision , an inference that a loss of concentration while driving must have caused or contributed to the collision would be speculative. This is so even if the Court gives the appellant the benefit of the doubt on the scope of the admission obtained pursuant to the Notice to Admit and assumes for the purpose of this appeal that the respondent admitted to the truth of the documents’ contents. (I note that statements made by the respondent about his own mental and physical health, as recorded in the disability applications, would have been admissible for their truth as statements against interest in any event: Bancroft‑Wilson v. Murphy , 2009 BCCA 195 at para. 9.) [82] In R. v. Hall , 2018 MBCA 122, Mainella J.A. explained that the prejudicial effect of evidence is assessed: [127]    … by identifying the dangers of the evidence and considering how real those dangers are to the fairness of the trial …. Prejudice, however, does not refer to the mere fact that the evidence supports the moving party's case to the prejudice of the respondent …. [128]    Some of the dangers otherwise admissible evidence may cause to the fairness of a trial are undue arousal of the jury's emotions, distraction, unnecessary delay or repetition, unfair surprise to a party and usurpation of the role of the jury . [Internal references omitted; emphasis added.] [83] I would add to this the risk of improper use through conjecture or speculative reasoning. As aptly stated by Doherty J.A. in R. v. Figueroa, 2008 ONCA 106, “[w]hile it is for the jury to choose among reasonable inferences available from the evidence, the jury cannot be invited to draw speculative or unreasonable inferences” (at para. 35). [84] As I read the reasons on the admissibility voir dire , this was the judge’s predominant concern about admitting the disability applications as stand‑alone evidence. To establish liability, the appellant wanted the jury to infer that the respondent lost concentration while driving past the logging truck, and, as a result, that he either did not see the last of the bunks on the trailer or was not paying enough attention to take precautionary measures by moving to the right. The judge was concerned that the jury could not reasonably draw that inference from the contents of the applications. I appreciate that the line between a permissible inference and impermissible speculation is often difficult to determine. However, it was not unreasonable for the judge to conclude that records created 13 months before the collision, in which the respondent had reported (or a physician had inferred) that he was “losing concentration when driving”, did not provide a sufficiently reliable grounding for the sought‑after inference. [85] Other than the one reference to “losing concentration” (without a causal explanation), there was nothing in the disability applications explicit to impairment of the respondent’s ability to drive. In both applications, the physician described the respondent’s medical circumstances as having “moderate impact” on his ability to maintain concentration. However, he offered no particularity on how often a loss of concentration was occurring (frequent, sporadic or rare); how it manifested itself; its duration or degree; or the extent to which the respondent’s driving was actually affected, if at all. Critically, the documents shed no light on whether there was a loss of concentration at the time of the collision; the likelihood of that having occurred; or even the extent of any propensity in this regard. In his charge to the jury, the judge properly said that before drawing an inference, there must be a “solid base of proven facts . … No issue should be decided on the basis of a guess, no matter how shrewd that guess may be”. Neither party takes issue with the propriety of that instruction. [86] As noted, a decision to disallow evidence after weighing its probative value and prejudicial effect is entitled to considerable deference on appeal: Houston at para. 14. The trial judge is in a far better position than this Court to assess prejudicial effect as informed by the pleadings, the parties’ theories of the case, the evidence, and the strength of the inferences sought from that evidence. Although another judge might have allowed the disability applications into evidence, the fact that this judge chose not to—standing on its own—is not sufficient to displace the deferential standard of review. I see no error in principle here, or a palpably wrong admissibility determination. [87] In any event, I am satisfied that a properly instructed jury, acting reasonably, would have reached the same result on liability even with this evidence. [88] Mr. Taylor testified that the respondent passed Mr. Gowan’s vehicle two or three miles before the collision. He said there was nothing “unusual” about the respondent’s driving when managing that pass. After he passed, and while Mr. Gowan and Mr. Taylor followed the respondent towards the logging truck, “everything went great”. Again, there was nothing of concern about the respondent’s driving. Similar to Mr. Gowan, he was driving under the speed limit. Mr. Taylor could see the respondent pass by the front end of the logging truck and “[e]verything looked normal”. There was nothing in the evidence surrounding the respondent’s driving to suggest that he was distracted, not paying attention, failing to keep a proper lookout, driving unsafely, or that he had time to take evasive measures, but failed to do so. There was no evidence to suggest that his pickup truck was anywhere other than appropriately in his lane of travel , where one might reasonably expect a vehicle to be. None of the civilian witnesses could testify about the positioning of the logging truck and the pickup immediately prior to impact. They did not see the vehicles collide. The appellant called no expert evidence to indicate that the respondent was operating his vehicle without due care and attention in light of the conditions of the road or vis‑à‑vis the logging truck. [89] On the other hand, there was expert evidence that the outer bunk at the rear of the log trailer had encroached on the southbound lane of travel at the point of impact, providing a plausible explanation for the collision arising from the appellant’s failure to keep to the right while passing an oncoming vehicle on a curved and icy roadway. The warning flags attached to the rear of the trailer were not bright red or orange. There was testimony that they did not meet the required size. They were “tattered and faded, to the point of not—almost being invisible”. [90] The appellant admitted, as a fact, that he had been found guilty of operating his logging truck in a manner that "[departed] from the accustomed sober behaviour of a reasonable person". He was driving without due care and attention. He further admitted that the Provincial Court found a part of his trailer had crossed into the southbound lane of travel. Again, there was no such evidence relating to the respondent’s driving. [91] In the context of this factual matrix, I do not see how the disability applications—reflecting observations made of the respondent, or symptoms reported by him, more than a year before the collision—would have taken the jury from dismissal to liability on a balance of probabilities. I say this given the cryptic nature of many of the notations in the applications; no explanation of their meaning; only one reference to “losing concentration when driving”, without explanatory context; and the absence of evidence, in the form of expert opinion or otherwise, showing a causal or even temporal connection between the medical conditions, their symptoms and the collision. As noted in Samuel , the notes found in medical-related records are often “meaningless to [a] jury without explanatory viva voce evidence” (at para. 9). [92] Because of the inherent hardship associated with a new trial, the resultant uncertainty, delay and added costs, an appellant who seeks a retrial in a civil case is required to put a “strong case” forward: de Araujo v. Read , 2004 BCCA 267 at paras. 50– 52 . Generally, a new trial will not be ordered unless it is plainly required in the interests of justice: Mazur v. Lucas , 2010 BCCA 473 at paras. 45–46; Tsoukas at paras. 71–75. [93] In my view, the appellant has not put forward a strong case for a new trial. Accordingly, I would not accede to this ground of appeal . Appeal from Denial of Double Costs [94] Under Rule 9‑1(5)(b) of the Supreme Court Civil Rules , a judge may “award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of [an] offer to settle”. In making this order, the judge may consider : (1) whether the settlement offer was one that ought reasonably to have been accepted; (2) the relationship between the terms of that offer and the final judgment; (3) the relative financial circumstances of the parties; and (4) any other factor considered appropriate (Rule 9‑1(6)). [95] In Bains v. Antle , 2019 BCCA 383, Dickson J.A. explained that whether an offer ought reasonably to have been accepted is considered “without the benefit of hindsight”: [34] In other words, only the circumstances in existence at the time of the offer are relevant, not the award made at trial: Cottrill v. Utopia Day Spas and Salons Ltd. , 2019 BCCA 26; Bailey v. Jang , 2008 BCSC 1372 at para. 24. The question is not whether the offer itself was reasonable, but whether it was unreasonable to refuse it: Cottrill at para. 30. In answering this question, the court may consider the recipient’s subjective reasons for rejecting the offer, but must also decide whether those reasons are objectively reasonable: C.P. v. RBC Life Insurance Co. , 2015 BCCA 30 at para. 97. [35] In Hartshorne v. Hartshorne , 2011 BCCA 29 at para. 27, this Court set out several factors that may be considered in assessing the reasonableness of refusing an offer. They include: the timing of the offer; whether it had some relationship to the claim; whether it could easily be evaluated; and whether some rationale for it was provided. [36] The relationship of the offer to the claim is relevant because it speaks to whether a plaintiff should be penalized for proceeding to trial in hopes of achieving more than what was offered. It is not unreasonable for a plaintiff to refuse an offer that is a fraction of the amount sought, provided the plaintiff had reasonable confidence in her claim: Cottrill at para. 32; see also Tisalona [ v. Easton , 2017 BCCA 272] at para. 102; Wafler v. Trinh , 2014 BCCA 95 at paras. 53, 64–65. In several decisions below, the court has considered this relationship to be important where there was objective evidence supporting a plaintiff’s claim for loss of earning capacity although the claim was ultimately rejected at trial. For example, in Payne v. Lore , 2010 BCSC 1313, Justice Wedge found that, had the plaintiff’s claim for future income loss been successful, the defendants’ offer would have fallen well short of the award at trial and, therefore, it was not unreasonable for the plaintiff to refuse the offer: at paras. 28–29. In Parker v. Martin , 2017 BCSC 1161, Justice Ball noted that by the time the offer in question was received, the plaintiff had retained expert medical witnesses whose opinions supported his belief that there was a “real and substantial possibility of future income loss”: at para. 26. [37] A further relevant consideration under Rule 9‑1(6)(a) may be whether the plaintiff knew her claim was largely dependent on the court’s assessment of her credibility: Wafler at para. 73; Gehlen v. Rana , 2011 BCCA 219 at paras. 50–51. This is because there is more risk in proceeding to trial where a claim lacks objective evidence and, therefore, refusal of a reasonable offer may be unreasonable. [96] Granting or denying double costs engages a broad discretion. The parties agree that a deferential standard of review applies. An appellate court may only interfere with a costs order if the party seeking to have the order set aside demonstrates an error in principle or that the award is plainly wrong: Hartshorne v. Hartshorne , 2011 BCCA 29 at para. 23; Bains at para. 30. [97] The respondent says the trial judge committed errors in principle. For one, his finding that the appellant possessed evidence of “plenty of room” in the respondent’s lane of travel when passing the logging truck reflects a misapprehension of the evidence (RFJ at para. 39). Second, when considering the “overall magnitude of the claim”, the judge was wrong to conclude that if the appellant succeeded in proving liability, in whole or in part, his damages would likely have exceeded the $80,000 offer. The appellant was seeking a cumulative $730,000, plus non‑pecuniary damages; however, the respondent led expert evidence that the appellant’s degree of disability was less than asserted and his future losses would not have been as substantial as claimed. Assuming a division of liability substantially in favour of the respondent, the aggregate damages award would likely have been less than or close to $80,000. [98] The respondent says it was an error for the judge to include in his costs analysis the “uncertainty” surrounding the admissibility of the respondent’s medical information. Those records carried no probative value because of their remoteness in time from the collision; they would not have affected the result; and the appellant ought to have known this. To the extent that the appellant’s decision to reject the $80,000 relied on the disability applications, the rejection was unreasonable. [99] The respondent also contends that as a matter of legal principle, there is no requirement that a settlement offer include a legal or factual analysis in support of the offer, explaining the perceived weaknesses with the other party’s case. The trial judge was wrong to treat this as a requirement. The respondent’s rationale for offering $80,000 should have been obvious to the appellant, especially in light of the appellant’s conviction under the Motor Vehicle Act . In the alternative, the respondent applies to tender fresh evidence on this point, consisting of an email sent to appellant’s counsel the day before delivery of the settlement offer, with a rationale for the $80,000: I don’t find your client to be a very sympathetic witness. Moreover, his negligence resulted in the death of my client. We will argue for a dismissal of the action with costs. In the grand scheme of things, I do not foresee a jury … rewarding him with a large sum of money – even in the unlikely event that a small degree of negligence was apportioned against our deceased client. [Italics in the original.] [100] Finally, the respondent contends the judge erred by failing to give sufficient weight to the underlying objective of Rule 9‑1(5)(b). This rule is designed to encourage settlement wherever possible by requiring litigants to carefully assess the strengths and weaknesses of their case before trial: Giles v. Westminster Savings and Credit Union , 2010 BCCA 282 at para. 74. A careful pre-trial assessment in this case should have led the appellant to recognize that his negligence claim was based on irrelevant considerations and an inadequate review of the available evidence. In not awarding double costs, the trial judge has undermined the purpose of Rule 9‑1(5)(b). [101] In my view, the respondent’s challenge to the costs award does not provide a principled basis on which to displace the significant deference owed to the judge’s ruling. [102] It is apparent from the RFJ that the trial judge understood the respondent’s bases for claiming that the rejection of the settlement offer was unreasonable (see paras. 10–19, 26). In considering the respondent’s position, the judge correctly instructed himself on the application of Rule 9‑1(5)(b), including the non‑exhaustive factors for consideration under 9‑1(6). He turned his mind to the guiding legal principles, with explicit reference to C.P. v. RBC Life Insurance Co. , 2015 BCCA 30, and Cottrill v. Utopia Day Spas and Salons Ltd., 2019 BCCA 26 (RFJ at paras. 23–24). Those decisions set out the purposes of Rule 9‑1(5), emphasized by the respondent in the appeal. The judge was alive to the rule’s objectives (at para. 23), as well as his obligation to exercise his discretion “judicially” (at para. 38). [103] The judge conducted his costs analysis based on information known to the appellant at the time of the offer, before the admissibility rulings kept some of that evidence from use at trial (RFJ at paras. 25, 39). This included the witness statement of Mr. Gowan, in which he responded affirmatively to the question of whether there was “lots of room to go by the trailer or the logging truck” (emphasis added). It also included evidence from Glen Taylor at the appellant’s Provincial Court trial. There, Mr. Taylor testified that when the pickup truck passed the cab of the logging truck, there was “ample room” between them, “five to six feet”. (He did not provide this same estimate of distance at the civil trial). Prior to rejecting the settlement offer, the appellant also had a copy of the report prepared by the collision reconstructionist who testified at trial and the documents he reviewed in preparing his report. From measurements contained in that material, the appellant calculated that the respondent had 1.3 metres of additional space in his lane of travel when moving past the log trailer. [104] It was not improper for the judge to consider the availability of this material, even though some of it did not make its way before the jury. Whether a party unreasonably rejected a settlement offer is not determined with reference to the trial’s outcome: Cottrill at para. 29. I also do not agree that the judge misapprehended this evidence or incorrectly took the “uncertainty surrounding the admissibility of the [respondent’s] medical records” into account. The respondent interprets the evidence differently and considers the admissibility rulings to have been a fait accompli , but that does not mean the trial judge erred in principle by giving weight to the appellant’s pre‑trial lens, including the inferences the appellant considered available to a jury. In my view, the respondent has brought a post‑trial perspective to these aspects of his submission. [105] Finally, I am not persuaded the trial judge erred in considering the “overall magnitude” of the appellant’s damages claim or the absence of any “legal or factual analysis” supporting the offer as delivered to the appellant. Neither of these factors were determinative, and this Court has recognized the legitimacy of both in a double costs analysis: Bains at paras. 35–36. [106] The $80,000 represented only a fraction of what the appellant was seeking, and the judge accepted, based on the “commonality” of the medical evidence available to the parties, as known by him , that even a partial liability finding may have resulted in damages beyond the $80,000 (RFJ at paras. 9, 34). An articulation of the rationale behind the $80,000 would have provided a more substantial informative context from which to assess the objective reasonableness of the rejection. The respondent has attempted to fill this gap through the fresh evidence application; however, in my view, that evidence should not be admitted. The affidavit in support of the application acknowledges that the email sent the day prior to formal delivery of the offer was available prior to the respondent’s submissions on the costs hearing and could have been made available to the trial judge. As such, the fresh evidence does not meet the due diligence criteria for admissibility: Palmer v. The Queen (1979), [1980] 1 S.C.R. 759. In any event, the explanation contained in that email offers no real analysis of either party’s case. [107] The trial judge was in the best position to assess the reasonableness of the decision to reject the respondent’s offer. He sat through the admissibility voir dires , as well as the 10‑day trial, with opportunity to develop a “deep appreciation” of the evidence available to the appellant at the time the offer was rejected: Bains at para. 38. Applying a deferential standard of review, I would not interfere with the judge’s exercise of discretion to award single costs. Disposition [108] For the reasons provided, I would dismiss the appeal from the jury’s verdict. [109] I would also dismiss the application to adduce fresh evidence on the appeal from the costs order and dismiss that appeal. “The Honourable Madam Justice DeWitt‑Van Oosten” I AGREE: “The Honourable Madam Justice Saunders” I AGREE: “The Honourable Madam Justice Dickson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Li v. Li, 2021 BCCA 39 Date: 20210114 Dockets: CA44691; CA46070 Docket: CA44691 Between: Shaoqing Li Respondent (Plaintiff) And Xingzi Li also known as Xing Zi Li also known as Withy Li and Minwoo Kim Appellants (Defendants) - and - Docket: CA46070 Between: Shaoqing Li Respondent (Plaintiff) And Xingzi Li also known as Xing Zi Li also known as Withy Li and Minwoo Kim Appellants (Defendants) Before: The Honourable Madam Justice Dickson The Honourable Madam Justice DeWitt‑Van Oosten The Honourable Mr. Justice Voith On appeal from: Orders of the Supreme Court of British Columbia, dated July 27, 2017 ( Li v. Li , 2017 BCSC 1312, Vancouver Docket S160037) and April 9, 2019 ( Li v. Li , 2019 BCSC 533, Vancouver Docket S160037). Oral Reasons for Judgment Appearing in person on behalf of the Appellants (via videoconference): X. Li Counsel for the Respondent (via videoconference): B. Blake Place and Date of Hearing: Vancouver, British Columbia January 6, 2021 Place and Date of Judgment: Vancouver, British Columbia January 14, 2021 Summary: Following a 25‑day trial, the appellant, Withy Li, was found to have wrongfully converted $423,900 belonging to her father (the respondent). The trial judge also determined that Ms. Li failed to repay a $10,000 loan. Ms. Li’s spouse, Minwoo Kim, was found to have benefitted from the converted funds; as such, each appellant was unjustly enriched. Some of the converted funds were used to purchase a townhouse in Ms. Li’s name. In his final judgment, the trial judge granted the respondent a 100% interest in that townhouse. On appeal, the appellants challenge the judge’s liability findings and the proprietary remedy, contending: he made errors of fact; his conduct gave rise to a reasonable apprehension of bias; and he erred in his legal analysis of the proprietary remedy. Held: Appeal dismissed. The appellants have not shown palpable and overriding errors of fact, a reasonable apprehension of bias, or an error of law. Instead, they effectively ask this Court to retry the case, conduct its own assessment of credibility and make its own findings of fact. That is not the role of an appeal court, and, on the record in this case, there is no principled basis on which to interfere with the judge’s conclusions. DEWITT-VAN OOSTEN J.A. : Introduction [1] After a lengthy trial, a Supreme Court judge determined that the appellants, Withy Li and Minwoo Kim, wrongfully converted funds belonging to Shaoqing Li, the respondent. The judge also found that Ms. Li failed to repay Mr. Li a loan of $10,000. Withy Li is Shaoqing Li’s daughter. Minwoo Kim is her spouse. The judge found that the wrongful conversion benefitted both appellants, resulting in their unjust enrichment. [2] Before finalizing his resolution of the case, the judge directed that a registrar conduct a tracing and accounting inquiry on the converted funds, which totalled $423,900 ( Supreme Court Civil Rules , Rules 18‑1(1) and (3)). The registrar reported on various uses made of the funds, including the purchase of a townhouse in Withy Li’s name (the “Townhouse”). The judge determined that Mr. Li was entitled to a 100% interest in the Townhouse. He quantified Mr. Kim’s liability to the respondent at $145,061.67. [3] The trial judge reached his conclusions on conversion, unjust enrichment and unpaid debt after a 25‑day trial in which he heard extensive evidence from each side and assessed the credibility of their witnesses. The appellants did not dispute that Ms. Li took possession of funds originating with the respondent. However, the parties offered starkly different narratives of the reasons why Ms. Li had access to those funds; their intended purpose and use; and Ms. Li’s beneficial entitlement to them. Some of the circumstances surrounding the dispute were captured in documentary evidence; however, much of the case depended on testimonial descriptions of familial events that preceded the alleged conversion; conversations between the parties over time; and their respective perceptions of the reasons or motivation behind particular acts vis‑à‑vis one another. [4] Given that context, the judge’s assessment of credibility played a critical role. The parties acknowledged that credibility would heavily influence the outcome of the trial. Ultimately, the judge found the respondent and his witnesses credible and accepted the respondent’s version of events. He rejected Ms. Li’s assertion that she was lawfully entitled to the $423,900, as well as Mr. Kim’s testimonial support for Ms. Li’s position. [5] On appeal, the appellants challenge the judge’s findings, contending that his assessment of credibility and the ensuing determinations of fact reflect a misapprehension or inadequate consideration of the evidence on several key points. They also allege a reasonable apprehension of bias. They seek to have all liability findings set aside. Doing so would mean that neither appellant is responsible for the $423,900, in whole or in part; the unpaid debt would cancel; and Ms. Li would be entitled to a 100% interest in the Townhouse. [6] If they are not successful in challenging the liability findings, the appellants say that in quantifying Mr. Li’s interest in the Townhouse, the judge misunderstood the nature of Withy Li’s contributions to the Townhouse, as well as the applicable law. As such, even if this Court affirms the findings of conversion, unjust enrichment and unpaid debt, Ms. Li is legally entitled to a share of the Townhouse. Findings at Trial [7] In 2002, Mr. Li purchased an apartment in China (“802”) and registered it in his daughter’s name. The apartment sold in 2015. The proceeds of sale lie at the centre of the dispute between the parties. [8] At trial, Withy Li argued that her father purchased the apartment as a gift for her, intending that she have immediate beneficial ownership. Mr. Li’s position was that he purchased the apartment with the intention of passing beneficial entitlement to Ms. Li upon his death. He acknowledged having registered the property in her name, but for other reasons. He argued that Ms. Li held the apartment in trust for him and that he reserved the right to deal with it as he saw fit, including disposing of the apartment during his lifetime and claiming the proceeds. [9] The trial judge accepted Mr. Li’s evidence. His key factual findings are detailed in reasons for judgment indexed as Li v. Li , 2017 BCSC 1312 (“RFJ‑1”): [194]    When Mr. Li purchased 802, he did not intend it to be an inter vivos gift to his daughter. He purchased 802 for several reasons: (a) to provide a home for his aging parents to live; (b) to provide an inheritance for his daughter on his death; (c) to avoid disputes between his two children on his death; and (d) to protect his cash. [195]    Mr. Li did not create a testamentary disposition in favour of his daughter. [196]    When Mr. Li purchased 802, he intended to have complete control over the disposition of 802 during his lifetime, including the right to use and sell it, and in that event, to disburse the sale proceeds, all as he saw fit. His intention in that respect never changed. [197]    Ms. Li was aware since May 2003 of Mr. Li’s reasons for purchasing 802 and of his right to deal with and dispose of it during his lifetime. She understood that she had no right to take, control, or sell 802, and also, that she might not inherit 802 on her father’s death. [198]    Mr. Li registered title to 802 in Ms. Li’s name, but she held it in trust for him until it was sold. At no time did he gift his beneficial ownership to her. Nor did he ever gift the proceeds of the sale of 802 to Ms. Li. The sale proceeds belonged to Mr. Li. [199]    Mr. Li’s plans in respect of 802 changed in the late summer of 2014, when he decided to immigrate to Canada with Ms. Wei and R.L. [their son]. Ms. Li was fully aware that her father’s plans for 802 changed. [200]    Mr. Li reached an agreement with Ms. Li to pay her $150,000 to act as his family’s sponsor and to facilitate their immigration application. She knew that she would not receive the proceeds of sale of 802. [201]    Ms. Li invited R.L. to live with her and Mr. Kim after R.L. graduated from elementary school. In accordance with that invitation, R.L. moved to live with his stepsister in August 2015. [202]    Ms. Li and Mr. Li agreed that he would give her $20,000 per year to cover R.L.’s tuition and living expenses, which he proposed, and they agreed, would be set at $650 per month. Of that amount, Ms. Li could keep whatever sum she did not spend in a particular month. [203]    Ms. Li removed money that Mr. Li deposited in R.L.’s RBC Account and Mr. Li’s RBC Account, without her father’s consent. She used those funds for the benefit of herself and Mr. Kim. Except for her withdrawal of funds from R.L.’s RBC Account to purchase the vehicle and to pay her debt, which she told her father she had done after the fact, Mr. Li was unaware of his daughter’s conduct in respect of his other funds. She repaid the funds she took from R.L.’s RBC Account with her father’s funds. [204]    Contrary to her agreement with Mr. Li, Ms. Li refused to act as the family’s sponsor. She did not take any steps to carry out her agreed role. She nonetheless took the $150,000 payment for her own purposes. [205]    On December 2, 2015, Ms. Li made a sudden and abrupt demand that R.L. be removed from her home. She told her father that she would renounce her custodianship of R.L. when he turned 13 on December 12. [206]    Ms. Li has not repaid any of her father’s funds. [207]    Ms. Li has wrongfully taken $420,000 that belongs to Mr. Li. [208]    She has also refused to return the remainder of the funds she was given for R.L.’s living expenses for the months of January to June 2016. [209]    Ms. Li used her father’s money to renovate her house, to pay personal debt, to invest in a TFSA, and to make the down payment on the Townhouse. It is unclear whether she used all or any portion of those specific funds that Mr. Li wired into Ms. Li’s chequing account to purchase the Townhouse, or whether she used funds from Mr. Li’s RBC Account, or a combination of both. [210]    Mr. Kim has also benefitted from his wife’s wrongful conduct. [10] The trial judge also found that Ms. Li failed to repay $10,000 loaned to her to assist with the purchase of her principal residence in June 2013. [11] After the judge reached his conclusions on liability, he directed a registrar to conduct a tracing and accounting inquiry on the converted funds. The registrar produced two reports. The judge confirmed both of them, as set out in reasons for judgment indexed as Li v. Li , 2019 BCSC 533 (“RFJ‑2”). [12] In the first report, the registrar found that the $423,900 in converted funds had been used for several purposes. They consisted of: (a) a down payment on the Townhouse ($133,776.67); (b) repairs and renovations to the home Ms. Li owns with Mr. Kim ($76,966.27); (c) the purchase of a pick‑up truck ($51,376.64); (d) personal use, including a vacation with Mr. Kim ($13,000); and (e) legal fees ($148,780.42). [13] The registrar also found that Mr. Kim benefited from one‑half of the converted funds ($145,061.67), excluding the down payment for the Townhouse. [14] In his notice of civil claim, Mr. Li sought a declaration of constructive trust over assets held by the appellants, as well as a tracing order and an accounting. At trial, he obtained leave to amend his pleadings to include a claim for a certificate of pending litigation (“CPL”) against the Townhouse. The judge directed the registrar to determine Mr. Li’s beneficial interest in the Townhouse. As at December 11, 2018, the property carried a fair market value of $520,000. [15] The registrar reported the purchase price of the Townhouse to be $323,976.67, including property transfer tax, conveyance costs and legal fees. As noted, the down payment came from the converted funds. Mortgage financing secured by Ms. Li covered the remainder of the purchase, including conveyance costs. After the purchase, Ms. Li rented the Townhouse to one or more tenants. The registrar found that between June 2015 and October 2017, rental income totalled $42,740.97. The related expenses for that period totalled $37,376.10. As detailed at para. 15 of RFJ‑2, those expenses were covered by the rent. This included: (a)        monthly mortgage payments between August 2015 and October 2017 totalling $24,292.23; (b)        strata fees between July 2015 and October 2017 totalling $4,628.04; (c)        property taxes for 2015 to 2017 totalling $6,101.45; (d)        a one‑time special levy imposed by strata council for repairs and maintenance of $220.38; and, (e)        tax paid on the rental income in May 2018 of $2,134.00. [16] The appellants did not dispute the numbers in the registrar’s first report. In fact, as explained by the registrar, the parties “reached an agreement, by consent, which they believed resolved all the issues referred to the registrar”. [17] The registrar’s second report addressed the relative interests of Mr. Li and Ms. Li in the Townhouse. Mr. Li conceded that his daughter did the legwork in finding and purchasing the Townhouse. Based on that fact, as well as the fact that she secured the mortgage, Ms. Li argued that her father’s interest in the Townhouse was limited to a 41.3% share, consistent with the proportion of the original purchase price covered by the down payment. In light of her own contributions, Ms. Li said she was entitled to a 58.7% interest. [18] The registrar rejected Ms. Li’s position on the ground that it would result in a “windfall to her directly from her wrongful conduct, where she has made no actual financial contribution to the purchase of the Townhouse”. He recommended that Mr. Li receive a 100% interest in the Townhouse. The trial judge agreed. He declared that Ms. Li held the property on a constructive trust for Mr. Li’s benefit (RFJ‑2 at paras. 45–46). He then said: [53]      Turning to whether Ms. Li can claim an interest in the Townhouse and a consequential pro‑rata share of the increase in its value, I will begin by saying that I agree with Registrar Nielsen’s finding that the mortgage for the Townhouse was secured only because … Mr. Li’s converted funds were used as the down payment. [54] Next, by her own admission, Ms. Li did not make any financial contribution to the Townhouse . No case has been cited to me where a non‑financial contribution has been sufficient to establish a pro‑rata interest. I do not conclude, however, that a non‑financial contribution could never be sufficient to found a pro‑rata interest. But, in this case, where Ms. Li chose not to adduce any evidence of the value of any non‑financial contribution, there is no evidentiary basis in which to consider her claim . [55]      As a result, Ms. Li has not established that she has made the requisite contribution to the Townhouse to establish an interest in it. [56]      Lastly, I wish to address Ms. Li’s submission that a tortfeasor’s right to share in the increase in value or profit can only be precluded in cases involving findings of breach of fiduciary duty or fraud (which she argues were not pleaded by Mr. Li in his notice of civil claim). No cases dealing with claims in conversion and unjust enrichment containing any statement of principle to that effect were cited to me. [Emphasis added.] Issues on Appeal [19] In challenging the findings of conversion, unjust enrichment and unpaid debt, the appellants raise two grounds of appeal. They say: (1) the trial judge’s credibility determinations and findings of fact are materially flawed and undermine his conclusions on liability; and (2) he made “comments and interventions” during the trial that gave rise to a reasonable apprehension of bias. [20] The appellants challenge the respondent’s 100% interest in the Townhouse on two bases. They say: (1) the judge misapprehended the evidence on financial contributions by Ms. Li to the Townhouse; and (2) in any event, he erred in his legal analysis of the effect of her non‑financial contributions. [21] There is an ancillary issue. At the hearing of the appeals, Mr. Li applied to adduce “new” evidence concerning events since the trial. He filed an affidavit that, among other things, indicates the Townhouse sold in September 2019, with the net proceeds transferring by consent to Mr. Li. Counsel for Mr. Li advised that the primary purpose of this evidence was to bring the Court up to date on what has transpired since the judge made his findings. The appellants objected to the admissibility of the evidence, saying it is irrelevant to the issues raised on appeal. [22] I do not consider it necessary to address the legal framework that governs the admission of new evidence, or the particulars of the evidence adduced by Mr. Li. Upon a review of the affidavit, I agree with the appellants that the events addressed there are irrelevant to assessing the merits of the grounds of appeal as framed by the appellants. Nor does the new evidence render moot any of the issues before us. As such, I would deny the application. Discussion Did the Trial Judge Err in His Assessment of Credibility and the Facts? [23] The appellants allege five material errors in the judge’s acceptance of the respondent’s testimony. They say the judge misapprehended the trial evidence, or ignored relevant evidence, in relation to each of these points. Cumulatively, it resulted in a skewed credibility assessment in favour of the respondent. As the judge’s assessment of credibility heavily influenced his findings of fact, the appellants contend that the conclusions he reached on liability are irreparably flawed. [24] Specifically, the appellants say the trial judge was wrong to find that: · Mr. Li had been “effectively separated” from his first wife (Withy Li’s mother) since 1993; · Mr. Li and his daughter had a conversation in June 2013 wherein Ms. Li proposed that her half‑brother, R.L., travel to Canada and live with her once he graduated from elementary school; · Mr. Li did not know that the Canadian bank accounts opened for him and R.L. in July 2014 were held jointly with Ms. Li; · the proceeds of sale from 802 were sent to Canada for three specific purposes: (1) $150,000 for Withy Li to assist Mr. Li and his immediate family with immigration sponsorship; (2) $150,000 for Mr. Li to purchase property in Canada; and (3) $120,000 for R.L.’s education; and · Mr. Li did not know that $70,000 removed by Withy Li from R.L.’s Canadian bank account had been repaid by her, at least in part, using funds taken from Mr. Li’s account. [25] Credibility findings are subject to a deferential standard of review. Appeal courts must defer to a trial judge’s assessment of credibility unless the party seeking to challenge that assessment establishes palpable and overriding error. As explained in R. v. Wright , 2019 BCCA 327: [25] The assessment of credibility is “not a science” — it involves a complex process of watching, listening, and reconciling the various versions of events: R. v. Gagnon, 2006 SCC 17 at para. 20. Trial judges are required to justify their credibility findings and explain how credibility concerns were resolved; however, deficiencies in a trial judge’s credibility analysis will rarely rise to the level requiring appellate intervention : R. v. Dinardo, 2008 SCC 24 at para. 26; R. v. Kinney 2013 YKCA 5 at para. 14. [Emphasis added.] [26] The standard of review for factual findings is also highly deferential and requires palpable and overriding error to justify appellate interference: Housen v. Nikolaisen , 2002 SCC 33 at para. 10. A palpable error is one that is “obvious”, “plain to see” or “clear”: Housen at para. 5. An overriding error is one that is “so tied to the issues at trial that it can be said to have affected the outcome”: Franklin v. Cooper , 2016 BCCA 447 at para. 13. [27] The appellants say the trial judge’s credibility assessment of the respondent, and his ensuing findings of fact, meet the test for palpable and overriding error because they reflect misapprehensions of the trial evidence or a failure to consider relevant evidence. [28] It is the respondent’s position that the judge did not commit palpable and overriding error. Instead, he properly “reviewed the evidence in the entire context, considering the parties/witnesses’ relationship, cultural background, language ability, and places of residence, and weighed trial testimonies with objective evidence such as contracts of sales, names shown on bank documents, wire transfer information, photos, text messages, emails, and oral testimony” (respondent’s factum at para. 120). [29] I have considered each of the five errors alleged by the appellants and the evidence they say either contradicts the findings of the trial judge or was given insufficient consideration in the assessment of the credibility of Mr. Li’s testimony. I have also carefully considered the various points raised by them in support of their argument that Mr. Li’s evidence was inherently implausible, demonstrably fabricated, inconsistent with his pleadings, and inconsistent with the documentary evidence, including text messages exchanged with his daughter, banking statements for Mr. Li and R.L.’s bank accounts, and records surrounding the opening of those accounts. [30] In my view, it was open to the trial judge to make his findings, both in his assessment of credibility and his determinations of fact. There was a supportable basis for those findings in the record, allowing him to draw the inferences that he did and to accept the evidence of Mr. Li and his witnesses over the evidence of the appellants. The reasons for judgment reflect a comprehensive and careful review of the evidence, as a whole , with explicit reference to many of the portions of the record—both testimonial and documentary—that the appellants say the judge failed to appreciate or ignored all together. The appellants complain that some of the evidence they consider supportive of their version of events was not mentioned by the judge in resolving the issues before him; however, the law does not oblige a judge to advert to every piece of evidence that was tendered and considered at trial: R. v. J.M.H. , 2011 SCC 45 at para. 32. [31] The appellants do not allege that in finding conversion, unjust enrichment and unpaid debt, the trial judge misunderstood or wrongly applied the relevant legal principles. Instead, it is the judge’s interpretation of the evidence that they take issue with. Consistent with the position put forward at trial, the appellants say the preponderance of the evidence supported their narrative, not the version advanced by the respondent. From their perspective, the evidence made it clear that 802 was intended as an immediate beneficial gift to Ms. Li when purchased in 2002; that intention never changed; and, as a result, the sale proceeds from the property belonged to her, not her father. Any conclusion to the contrary is said to defy common sense. [32] I appreciate that the appellants believe firmly in the rightness of their position. However, it was up to the trial judge to decide whether such was the case, after considering and weighing the whole of the evidence, within the context of the pleadings as reviewed and understood by him. It is not for this Court to re‑try 25 days of evidence and submissions and substitute our own view of credibility and the facts: Silverhill Homes Ltd. v. Borowski , 2019 BCCA 227 at paras. 29–31, 40; Wright at paras. 23, 25; Esau v. McCurdy et al. , 1999 BCCA 223 at para. 2. Instead, the deferential standard of review on this first ground of appeal mandates that we respect the trial judge’s determinations in the absence of palpable and overriding error. The appellants have not met that test. Is There a Reasonable Apprehension of Bias? [33] The appellants allege that the judge’s “comments and interventions” during the trial gave rise to a reasonable apprehension of bias. As noted by Bauman C.J.B.C. in Dhillon v. Dhillon , 2019 BCCA 163, this is a “serious allegation and one that should not be made lightly. The independence of the judiciary, both actual and reasonably perceived, is a foundation of our legal system” (at para. 30). [34] The appellants face a “high barrier” on this ground of appeal because of the presumption of impartiality: Dhillon at para. 31. As explained by the Supreme Court of Canada in Wewaykum Indian Band v. Canada , 2003 SCC 45: [59] [t]he presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption . [60 ]      In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board , supra , at p. 394, is the reasonable apprehension of bias: . . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision‑maker], whether consciously or unconsciously, would not decide fairly.” [Emphasis added.] [35] The appellants say the trial judge conducted himself in a manner that left a reasonably held perception he was assisting the respondent’s case and that he prejudged Ms. Li’s credibility. The impugned conduct is said to include: · repeatedly attempting to have respondent’s counsel acknowledge that Mr. Li told his first wife about his extra‑marital affair (presumably in support of a finding that they were “effectively separated”); · allowing a late motion to amend the respondent’s pleadings to include a request for a CPL against the Townhouse and blaming Ms. Li for not disclosing that property; · providing legal counsel with case law during their submissions that assisted the respondent’s case; and · making negative comments about Withy Li and her testimony before deciding the case. [36] I have reviewed the parts of the record the appellants point to in support of their position on bias. The judge asked questions about whether Mr. Li told his former wife of his relationship with R.L.’s mother (Ms. Wei) to ensure that he accurately understood the evidence referred to by respondent’s counsel in her submissions. Before allowing the respondent to add a CPL against the Townhouse to his pleadings (the merits of which is not under appeal), the judge gave both sides an opportunity to address the issue, including possible prejudice to the appellants. At the hearing of the appeals, Ms. Li said the judge wrongly found that she did not disclose the Townhouse until she was cross‑examined. She says she referred to it in her direct evidence. That may be so, but Ms. Li does not take issue with the fact that before the start of trial , she did not disclose her purchase of the Townhouse, or that proceeds from the sale of 802 had been used for the down payment. Quite properly, it was that fact that carried analytical significance on the motion to amend. [37] When he raised case law not advanced by counsel, the judge gave them time to review it and to make submissions on its relevance and legal effect. Finally, I do not agree that comments made about Ms. Li’s testimony, the manner in which she expressed herself in text messages, and her demeanour while testifying, indicate that the judge prejudged her credibility. Instead, the impugned comments arose during closing submissions by appellants’ legal counsel. The judge candidly flagged his concerns with Ms. Li’s evidence and provided her counsel an opportunity to address those concerns before the judge reached his final determination. Credibility was a critical issue at trial. In that context, it was appropriate for the judge to identify the parts of the evidence that troubled him and to ask Ms. Li’s lawyer to show him, with reference to the record, why those concerns were unwarranted. [38] A bias inquiry is fact‑specific, contextual and informed by the entirety of the proceedings. In the circumstances of this case, I am not persuaded that an informed person, viewing the matter realistically and practically, would think it more likely than not that the trial judge would not decide the matter fairly: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) , 2015 SCC 25 at para. 20, citing Committee for Justice and Liberty v. National Energy Board , [1978] 1 S.C.R. 369 at 394. Did the Judge Err in Finding No Financial Contribution to the Townhouse? [39] The appellants say: (1) the judge misapprehended the record in finding there was “no evidence” of the amount of tax paid by Ms. Li on rental income (RFJ‑2 at para. 40); and (2) because of that misapprehension, he committed palpable and overriding error in concluding that Ms. Li did not financially contribute towards the Townhouse (RFJ‑2 at para. 54). [40] The respondent says there is no error. Ms. Li made all payments associated with the Townhouse from its rental income, including related income tax. There was no evidence of Ms. Li expending her own funds for the purchase of the Townhouse or the costs of maintaining it as a rental unit. [41] I agree with the appellants that, contrary to the judge’s statement at para. 40 of RFJ‑2, the amount of income tax paid on the rental income had been quantified. In his first report, the registrar put that amount at $2,134: see para. 15 of RFJ‑2. The judge was mistaken on this point. However, I do not see that the factual error makes a difference. In other words, it is not overriding. The parties agreed for the purpose of the registrar’s first report that the rents have covered all the expenses, including any “paid rental income taxes”. Furthermore, consistent with that agreement, Ms. Li did not argue before the trial judge that the income tax constituted a financial contribution (RFJ‑2 at para. 40). [42] The tracing and accounting inquiry did not reveal any form of direct financial contribution by Ms. Li. Moreover, for the registrar’s second report, the appellants declined to provide evidence quantifying the monetary value of any of her contributions that did not involve an expenditure of funds, from which Ms. Li might then have argued in support of an indirect financial contribution. The ultimate finding, that Ms. Li “did not make any financial contribution to the Townhouse”, is borne out by the record (RFJ‑2 at para. 54). Did the Judge Err in Denying Ms. Li an Interest in the Townhouse? [43] This ground of appeal raises a question of law, reviewed on a standard of correctness: Housen at para. 8. [44] The appellants say that even if this Court affirms the conversion and unjust enrichment, Mr. Li’s interest in the Townhouse was necessarily limited to a 41.3% share, proportionate to the amount of the down payment. Consistent with their position in the court below, the appellants contend that Ms. Li is entitled to a 58.7% share, proportionate to the amount of the purchase price covered by the mortgage. She says the trial judge erred in law when he awarded Mr. Li a 100% interest. [45] The record established that Ms. Li did not expend personal funds towards the purchase or maintenance of the Townhouse. However, she was the party who found the Townhouse; researched the neighbourhood; facilitated the purchase; arranged for one or more tenants; and made sure that the property taxes were paid. Critically, from her perspective, she was the party who secured the mortgage, which made up the bulk of the purchase, and exclusively bore its risk. Without the mortgage, the purchase would not have completed. Ms. Li also says that the existence of the mortgage, and the payments made in reducing its principal, facilitated the growth of equity in the Townhouse over time. In light of these factors, she contends the trial judge was duty bound to adopt the approach taken in ICBC v. Dragon Driving School , 2007 BCSC 389, and recognize that Ms. Li is entitled to a share of the Townhouse. [46] The respondent says Dragon Driving School is distinguishable on its facts. Unlike in that case, Ms. Li made no “separate, unrelated, direct or indirect financial contribution” towards the Townhouse (respondent’s factum at para. 35). Accordingly, the judge rightly held that Ms. Li is not entitled to an interest in the Townhouse, allowing her to benefit from her tortious conduct by sharing in its fair market value. [47] I agree with the respondent that in the circumstances of this case, the judge correctly awarded Mr. Li a 100% interest in the Townhouse. The judge properly held that Mr. Li’s remedy for conversion is “neither premised nor restricted to the actual loss he has suffered” (RFJ‑2 at para. 47). Indeed, at trial, Ms. Li acknowledged that her father was “entitled to recover a pro rata share of the increase in the value of the Townhouse” (RFJ‑2 at para. 35). [48] This Court recognized in Ruwenzori Enterprises Ltd. v. Walji , 2006 BCCA 448, that wrongfully obtained funds traced to the purchase of real property, in whole or in part, entitle the plaintiff to an equitable claim in proportional ownership (at para. 28). To hold otherwise would constitute a “reproach to justice”, allowing the wrongdoer to “profit from their own wrongdoing by receiving any increase in the asset value” (at para. 41). See also British Columbia Teachers’ Credit Union v. Betterly (1975), 61 D.L.R. (3d) 755 (B.C.S.C.) (a conversion case) and the discussion in Dhillon v. Dhillon , 2006 BCCA 524 at paras. 85–93. [49] In Dragon Driving School , Groberman J. (as he then was) found that the entirety of the equity in real property at the time of its purchase was traceable to a fraud (at para. 39). However, he was not prepared to make that same finding in relation to equity that built up subsequent to the purchase by paying down the mortgage, because “some of that money may have come from the proceeds of sale of another home, the acquisition of which predated the fraud” (at para. 39; emphasis added). In other words, the equity in the property at the time of granting the remedy reflected a “commingling” of fraudulent and bona fides funds (at para. 40). [50] That is not the situation here and the trial judge was correct to distinguish Dragon Driving School on that basis (see RFJ‑2 at paras. 52–55). The down payment for the Townhouse and all direct and indirect expenses associated with its purchase and ongoing maintenance were traceable to Ms. Li’s use of the converted funds. Any reduction of the mortgage principal, to the extent it may have occurred, was only possible because of income generated by the property. The appellants provided no evidence showing that Ms. Li put her own funds towards the Townhouse, or funds drawn from a source unconnected to the property. Ms. Li relies upon various non‑financial contributions as a basis for entitlement to the Townhouse. However, assuming without deciding that non‑financial contributions may be considered, the appellants did not lead any evidence quantifying those contributions, through an equivalent monetary value or otherwise, for the purpose of the judge’s analysis. As a result, there was no demonstrated commingling of wrongfully converted and bona fides funds. Disposition [51] For the reasons provided, I would dismiss both appeals. [52] The respondent seeks “increased costs” on the appeals because of the volume of the record, the time required for preparation and the lack of merit. I see nothing out of the ordinary about these appeals that would warrant such an order. Accordingly, I would order that the costs of the appeals be assessed at Scale 1, payable by the appellants. [53] DICKSON J.A. : I agree. [54] VOITH J.A. : I agree. [55] DICKSON J.A. : The appeals are dismissed. Costs of the appeals are assessed at Scale 1, payable by the appellants. “The Honourable Madam Justice DeWitt‑Van Oosten”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Provost v. Dueck Downtown Chevrolet Buick GMC Limited, 2021 BCCA 15 Date: 20210114 Dockets: CA44808; CA44809; CA44810 Docket: CA44808 Between: Quinn Provost Respondent (Plaintiff) And Dueck Downtown Chevrolet Buick GMC Limited and Kyle Katerenchuk Appellants (Defendants) And David James Bolton and ABC Corporations #1–3 Respondents (Defendants) - and - Docket: CA44809 Between: Attorney General of Canada Respondent (Plaintiff) And Dueck Downtown Chevrolet Buick GMC Limited and Kyle Katerenchuk Appellants (Defendants) And David James Bolton Respondent (Defendant) - and - Docket: CA44810 Between: Brandy Brundige Respondent (Plaintiff) And Dueck Downtown Chevrolet Buick GMC Limited and Kyle Katerenchuk Appellants (Defendants/Third Parties) And David James Bolton, Minister of Justice for the Province of British Columbia, John Doe #1 and John Doe #2 Respondents (Defendants/Third Parties) Before: The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Butler The Honourable Madam Justice DeWitt-Van Oosten Supplementary Reasons to Provost v. Dueck Downtown Chevrolet Buick GMC Limited , 2020 BCCA 86. Counsel for the Appellants/Respondents on Cross Appeal in CA44810: A. Mersey, Q.C. M. Sobkin E.J. Segal Counsel for the Respondent, Brandy Brundige: A. Leoni B.J. Colangelo Counsel for the Respondent/Appellant on Cross Appeal in CA44810, Minister of Justice for the Province of British Columbia and Respondent, Attorney General of Canada: D. Kwan E.L.C. Louie Counsel for the Respondent, Quinn Provost: K. Gourlay P.J. Bosco Counsel for the Respondent, David James Bolton: T.S. Hawkins R.S. Bernard Place and Date of Hearing: Vancouver, British Columbia October 24 and 25, 2019 Place and Date of Judgment: Vancouver, British Columbia March 12, 2020 Written Submissions Received: November 10, 18, 24, and 30, 2020 Place and Date of Supplemental Reasons: Vancouver, British Columbia January 14, 2021 Supplementary Reasons of the Court Summary: Defendant/appellant, Dueck, succeeded in overturning finding of liability at trial and seeks costs from the plaintiffs. In the circumstances, a Sanderson order is warranted whereby Dueck’s costs are payable directly by the unsuccessful defendants, Mr. Bolton and the Minister. Mr. Bolton sought to shift blame to Dueck and the plaintiffs. Dueck was not blameless in the events leading to the plaintiffs’ injuries. It would not be just or fair in the circumstances to erode the judgment funds of the plaintiffs based on liability disputes between defendants. The Minister is to pay costs of its unsuccessful cross-appeal. Supplementary Reasons for Judgment of the Court: [1] These Supplementary Reasons address the issue of costs following the successful appeal of Dueck Downtown Chevrolet Buick GMC Limited (“Dueck”) against a finding of liability at trial in three actions concerning motor vehicle collisions: 2020 BCCA 86, leave to appeal ref’d 2020 CanLII 89595 (SCC). In its decision, the Court also dismissed the cross-appeal brought by the Minister of Justice for the Province of British Columbia (the “Minister”) in one of the three actions. The parties were unable to agree on costs and the Court invited further submissions on costs that have now been received. Background [2] The factual background and procedural circumstances of the dispute are complicated. In April 2012, David James Bolton stole a truck from Dueck and caused a series of accidents. In the first accident, Mr. Bolton collided with and caused damage to an RCMP vehicle. In the second accident, he collided with another RCMP vehicle driven by Constable Quinn Provost. In the third accident, Mr. Bolton collided with a vehicle driven by Brandy Brundige. [3] The Attorney General of Canada (the “AG”), Cst. Provost, and Ms. Brundige (together, the “plaintiffs”) all commenced actions for damages. The AG claimed against Mr. Bolton and Dueck for the costs of the two damaged RCMP vehicles and advanced a subrogated claim to recoup benefits paid to Cst. Provost (the “AG Action”). Cst. Provost claimed against Mr. Bolton and Dueck for injuries, damage, and expense suffered by him (the “Provost Action”). Ms. Brundige claimed against Mr. Bolton, Dueck, and the Minister for vicarious liability for the conduct of members of the RCMP (the “Brundige Action”). [4] The liability trials were heard together in June 2017. In reasons indexed as 2017 BCSC 1608, the trial judge found the defendants liable and apportioned fault: 1. The AG Action : Mr. Bolton and Dueck were found jointly and severally liable to the AG, with liability apportioned 85% to Mr. Bolton and 15% to Dueck. The AG was awarded costs payable by Mr. Bolton and Dueck. 2. The Provost Action : Mr. Bolton and Dueck were found jointly and severally liable to Cst. Provost, with liability apportioned 85% to Mr. Bolton and 15% to Dueck. Cst. Provost was awarded costs payable by Mr. Bolton and Dueck. 3. The Brundige Action : Mr. Bolton, Dueck, and the Minister were found jointly and severally liable to Ms. Brundige, with liability apportioned 70% to Mr. Bolton, 15% to Dueck, and 15% to the Minister. Ms. Brundige was awarded costs payable by Mr. Bolton, Dueck, and the Minister. [5] The quantum trials took place in November–December 2017. In reasons indexed as 2018 BCSC 1090, the judge awarded Cst. Provost $461,142.29 and the AG $23,051.53 for vehicle damage and $43,500.69 in medical/rehabilitative costs for Cst. Provost. In separate reasons indexed as 2018 BCSC 1843, the judge awarded Ms. Brundige $784,375.98 in damages, reduced by $102,450.11 pursuant to s. 83 of the Insurance (Vehicle) Act , R.S.B.C. 1996, c. 231. [6] Dueck filed notices of appeal in all three actions seeking to set aside the liability findings of Justice Kelleher. The Minister filed a notice of cross-appeal in the Brundige Action in respect of the judgment apportioning liability to the Minister. Dueck’s liability appeal and the Minister’s cross-appeal were heard together before a division of this Court. [7] Dueck and Mr. Bolton also filed notices of appeal in the Provost Action and the AG Action raising a single ground of appeal: whether the trial judge erred by concluding that the AG has an equitable right of subrogation for the wage loss benefits paid by the RCMP to Cst. Provost and by including the amount of those benefits in his assessment of damages. The hearing of that appeal is set for February 2021. Issues [8] It is not contentious that Dueck, the successful party on appeal, is entitled to costs of the appeal and the proceedings below. It seeks an order that their trial and appeal costs be paid equally by each of the three plaintiffs (Cst. Provost, Ms. Brundige, and the AG). Mr. Bolton supports this position. [9] The plaintiffs all support a Sanderson or Bullock order whereby Dueck’s costs of defending the three actions in the liability and quantum trials and in the liability appeal are payable by the unsuccessful defendant(s). As a result of Dueck’s successful appeal, Mr. Bolton is now 100% liable in the Provost and AG Actions; Mr. Bolton and the Minister are liable in the Brundige Action. We will address the parties’ submissions in greater detail in our analysis below. First, however, we will address two preliminary matters. Subrogation Appeal [10] Cst. Provost submits that the issue to be addressed is costs for the liability trial and appeal, but not for the quantum trial and appeal. We do not agree. The sole issue in the quantum appeal is whether the trial judge erred in finding that wages paid by the AG to Cst. Provost were subject to an equitable right of subrogation. The decision in that appeal will not affect Dueck’s liability to any of the plaintiffs. Moreover, Dueck would not have been involved in the quantum proceedings if the correct result had been achieved at the liability trial. Any order for costs of the ongoing appeal will not affect Dueck’s right to trial costs, which will be considered below. Costs of the Minister’s Cross-Appeal [11] As a second preliminary matter, Dueck seeks an order for “costs of defending the AG cross appeal” as “100% payable by the AG”. As joint counsel for the AG and Minister notes, the cross-appeal was brought by the Minister as a respondent in the Brundige Action, not the AG (the plaintiff in the AG action). Counsel does not otherwise dispute Dueck’s position and notes that any order of costs relating to the cross-appeal should be against the Minister and not the AG. [12] However, we note that only Mr. Bolton and Ms. Brundige opposed the cross‑appeal. Dueck was not a respondent on the cross-appeal: at paras. 4, 94. Dueck did not file a respondent’s factum in the cross-appeal although it stated in its reply factum that it supported the position of Ms. Brundige and adopted her submissions in response to the Minister’s cross-appeal. We therefore decline to award Dueck its costs of defending the cross-appeal. We will return to the matter of cross-appeal costs below. Discussion and Analysis Statutory Provisions [13] Under s. 23 of the Court of Appeal Act , R.S.B.C. 1996, c. 77: 23 Unless the court or a justice otherwise orders, the party who is successful on an appeal is entitled to costs of the appeal including the costs of all applications made in the appeal. [14] Rule 14-1(9) of the Supreme Court Civil Rules specifies that costs of a proceeding must be awarded to the successful party unless the court otherwise orders. [15] Rule 14-1(18) of the Supreme Court Civil Rules states: (18) If the costs of one defendant against a plaintiff ought to be paid by another defendant, the court may order payment to be made by one defendant to the other directly, or may order the plaintiff to pay the costs of the successful defendant and allow the plaintiff to include those costs as a disbursement in the costs payable to the plaintiff by the unsuccessful defendant. Sanderson and Bullock Orders [16] It is not disputed that Dueck, as the successful party, is entitled to its trial and appeal costs. The question is whether these costs should be paid by the plaintiffs (Cst. Provost, the AG, and Ms. Brundige) or by the unsuccessful defendants (Mr. Bolton and the Minister) under Rule 14-1(18) of the Supreme Court Civil Rules , which provides the basis for what are commonly referred to as Sanderson and Bullock orders. As this Court noted in Davidson v. Tahtsa Timber Ltd. , 2010 BCCA 528: [50]      In Fraser, Horn & Griffin, The Conduct of Civil Litigation in British Columbia , 2nd ed. looseleaf (Markham: LexisNexis, 2007), the authors explain at para. 38.19: Rule 14-1(18) provides that the court may order that a successful plaintiff pay the costs of a successful defendant and recover such costs as a disbursement against an unsuccessful defendant. Such order is commonly known as a Bullock order. The Rule also provides that the court may, as an alternative, order that the unsuccessful defendant pay the costs of the successful defendant directly. Such order is commonly known as a Sanderson order. A court may make such order where there is more than one defendant in an action and also where actions have been consolidated for trial or ordered to be tried at the same time. . . . . . Where all parties are solvent, it does not matter much which form of order is made . The advantage of a Sanderson order in such a case is confined to avoiding circuitousness. If the unsuccessful defendant is insolvent, then the Bullock form of order imposes a hardship upon the plaintiff who may recover nothing from the unsuccessful defendant and yet has to pay the successful defendant. A Sanderson form of order, on the other hand, imposes the hardship upon the successful defendant. Where the successful defendant is blameless, the courts have generally refused to make a Sanderson order . [Emphasis added.] [17] The threshold test for a Sanderson or Bullock order is whether it is reasonable for the plaintiff to have joined the successful defendant in the action. If this is satisfied, the question becomes whether it “would be just and fair in the circumstances” for the unsuccessful defendant to pay the successful defendant’s costs: Davidson at paras. 53–56. In Grassi v. WIC Radio Ltd. , 2001 BCCA 376 at para. 32, Justice Southin described the secondary consideration as whether the unsuccessful defendant “ought” to pay the costs of the successful defendant. The decision to award a Sanderson or Bullock order is a matter of discretion, which must be exercised judicially based on the judge’s assessment of the circumstances of the case: Robertson v. North Island College Technical and Vocational Institute (1980), 119 D.L.R. (3d) 17 (B.C.C.A.) at para. 14. [18] In Grassi , Justice Southin noted that “[t]here must be something which the unsuccessful defendant did, such as asserting the other defendant was the culprit in the case , to warrant his being made to reimburse the plaintiff for the successful defendant’s costs”: at para. 33 (emphasis added). Justice Southin elaborated: 34        … orders under Rule 57(18) [now Rule 14-1(18)] are not restricted to cases where the unsuccessful defendant in the course of the litigation has blamed the successful defendant but may extend to acts of the unsuccessful defendant which caused the successful defendant to be brought into the litigation. [19] In Davidson , this Court held that “a Sanderson or Bullock order requires some conduct on the part of the unsuccessful defendant in order to justify the award”: at para. 54. There, even though the Court found that it was reasonable for the appellant to have joined both defendants in one action, it was not just and fair in the circumstances to make a Sanderson or Bullock order because there was no credible evidence to support the claim against the successful defendant: at para. 56. Analysis [20] In all three actions, the threshold question is easily satisfied. Given Dueck’s actions, it was eminently reasonable for the plaintiffs to join Dueck as a defendant. The trial judge held Dueck liable for breaching the requisite standard of care, and while Dueck’s liability was overturned on appeal, it was on the basis that Dueck did not owe a duty of care to Cst. Provost, Ms. Brundige, or the AG. Dueck did not dispute the standard of care on appeal and whether Dueck owed the plaintiffs a duty of care would not have been certain at the outset. [21] At the second stage, there are a number of factors which favour a Sanderson or Bullock order. We will consider each of the underlying actions and the parties’ individual submissions separately below. However, we will first address two general points which apply to all plaintiffs. [22] First, it is clear that the actions of Mr. Bolton caused the successful defendant, Dueck, to be brought into the litigation: Grassi at para. 34. Mr. Bolton’s theft of the truck and his actions in evading the police were central to the liability considerations involving Dueck and the actions of the police officers. [23] Second, we do not accept Mr. Bolton’s assertion that he did not actively attempt to attach any blame to Dueck. He submits that “at no time during the Liability Trial or appeal did Bolton assert that Dueck should bear liability to any of the plaintiffs”. He concedes that “the negligence of Dueck was pled” but asserts that this position was never “actively pursued” at trial. He notes that in his trial briefs, he took the position that he would not be denying liability at trial. [24] In his response to civil claim in the Brundige Action, Mr. Bolton submitted that the accident occurred solely as a result of Ms. Brundige’s negligence in driving her motor vehicle. In the alternative, he submitted that the accident occurred solely as a result of the negligence of the defendant Dueck. In the further alternative, Mr. Bolton submitted that the accident occurred as a result of the negligence of the defendant police officers and, separately, the Minister. In other words, the allegations made by Mr. Bolton in his pleadings attempted to shift blame onto each of Ms. Brundige, Dueck, and the Minister for the actions of the RCMP. [25] At the liability trial, Justice Kelleher described Mr. Bolton’s position: [7]        He concedes that his negligent driving caused the motor vehicle collisions which are the subject of this case, and that he is liable to the plaintiffs for their damages. He submits however, that he is not the only person liable to the plaintiffs. [8]        Mr. Bolton submits, like Ms. Brundige, that the collision with her car would not have occurred but for the RCMP engaging in a dangerous police pursuit. [9]        Moreover, Mr. Bolton alleges that the RCMP created a dangerous situation when officers attempted to arrest him at gun point. The RCMP, Mr. Bolton alleges, breached the standard of care owed to people in the immediate vicinity, including their employee, Constable Provost. [10]      Dueck denies liability for any of the accidents. It submits that Constable Provost was contributorily negligent for his injuries for not wearing his seatbelt at the time of the collision. By the time of the trial, Mr. Bolton no longer actively sought to shift blame on Dueck but continued to do so with respect to the actions of the RCMP officers and Cst. Provost. [26] While Mr. Bolton did not make submissions about Dueck’s liability at trial or on appeal, it is clear that he did not have to do so to obtain the benefit of a finding in that regard. Mr. Bolton’s pleadings alleged that Dueck was at fault. He even issued a third party notice against Dueck in the Brundige Action. Dueck’s liability was always going to be a live issue at trial, given that the plaintiffs all claimed against Dueck. As such, it did not matter at that point whether Mr. Bolton, too, explicitly sought to blame Dueck. Dueck’s liability would be fully considered at trial, and on appeal after Dueck was found liable in negligence at first instance. [27] With this in mind, we turn to the individual actions below. Brundige Action [28] Ms. Brundige submits that she was forced to trial due to a contest between defendants in apportioning liability. She notes that Mr. Bolton initially attempted to blame Dueck; that Dueck blamed Mr. Bolton and the Minister; and that the Minister blamed Mr. Bolton and Dueck. All defendants filed Third Party Notices against each other. Despite the fact that Mr. Bolton and Dueck were both insured and represented by ICBC, and that there was no divergence of interest between Mr. Bolton and Dueck on quantum of damages, there were two sets of counsel instructed by ICBC in attendance at the quantum trial. [29] Ms. Brundige says the outcome of the liability contest was of no import to her other than establishing the liability of Mr. Bolton, which was a foregone conclusion. Due to the defendants’ refusal to admit fault (until Mr. Bolton conceded fault at trial while seeking liability on the part of the Minister), lengthy trials were required. Ms. Brundige notes that Sanderson or Bullock orders are frequently granted where defendants seek to shift blame onto each other. That occurred in this case both at trial and on appeal, even if Mr. Bolton did not have to actively advance the case against Dueck. [30] In our view, the submissions of Ms. Brundige have considerable merit. It would not be just or fair in the circumstances to require her to pay costs stemming from the multiple trials and appeal which occurred because of the defendants’ attempts to shift blame. Although Dueck was ultimately found not to owe a duty of care in the unique circumstances of this case, they were not “blameless” in a sense that would mitigate against a Sanderson order: Davidson at para. 50. From Ms. Brundige’s perspective, given that Mr. Bolton’s liability was a foregone conclusion, it mattered not whether Dueck and/or the Minister were also liable. As Ms. Brundige notes, she should not see her judgment funds potentially eroded as a result of costs awards flowing from a liability dispute between defendants that was of little concern to her. [31] We would accordingly make a Sanderson order in Ms. Brundige’s favour. Dueck’s trial and appeal costs will be payable directly by the unsuccessful defendants, Mr. Bolton and the Minister, according to the proportion of liability allocated to each of them. A Sanderson order is preferable to a Bullock order because it avoids circuitousness: Davidson at para. 50. Having arrived at this conclusion, we need not consider Ms. Brundige’s request for leave to adduce evidence of “without prejudice” settlement communications. [32] Separately, Mr. Bolton and Ms. Brundige are awarded their costs of defending the Minister’s cross-appeal in the Brundige Action, to the extent that those costs are distinct from their costs of the main appeal and may be ascertained as such. Provost Action [33] Cst. Provost’s situation is analogous to that of Ms. Brundige. In his pleadings, Mr. Bolton denied liability and alleged that Dueck and Cst. Provost were at fault. As in the Brundige Action, the liability contest in the Provost litigation was between Mr. Bolton and Dueck. While Cst. Provost argued that both defendants should be found at fault, the question of liability as between the defendants was not of practical significance to him. [34] In these circumstances, it is appropriate to order Mr. Bolton to pay Dueck’s costs. Like Ms. Brundige, Cst. Provost should not have the potential for his judgment funds to be eroded by the liability contest between Mr. Bolton and Dueck. Dueck was not blameless in the events leading to his injuries, and the conduct of Mr. Bolton was such that it is just and fair for him to pay Dueck’s costs. We would also make a Sanderson order in favour of Cst. Provost. AG Action [35] The AG seeks a Sanderson order and cites a number of factors that support such an order: in the course of litigation, Mr. Bolton continued to attribute fault to Dueck and issued a third party notice against Dueck; before and at trial, Mr. Bolton and Dueck attempted to attribute fault to the police; and Dueck’s conduct was not absolved in any way in litigation, but liability was avoided based on the absence of a duty of care. Moreover, as between Dueck (who carelessly stored its vehicle) and the Crown (whose servants were not blameworthy in damage caused by Mr. Bolton’s conduct), the risk of recovery of costs from Mr. Bolton ought to fall to Dueck and not the AG. [36] We accept that these considerations favour a Sanderson order. There is a distinction between the AG’s role in the subrogation claim, and as owner of the damaged property, from that of the Minister as respondent in the Brundige Action. With that in mind, it is just and fair in the circumstances for Mr. Bolton to pay Dueck’s costs directly. Again, Dueck is not blameless in the events leading up to the damaged vehicles, and there was no negligence on the part of Cst. Provost or the other police officers working with him at the time of that collision. Mr. Bolton should pay Dueck’s trial and appeal costs in the AG Action. Summary and Disposition [37] In summary, we make Sanderson orders in favour of all three plaintiffs. Mr. Bolton is ordered to pay Dueck’s costs of the liability and quantum trials and the liability appeal in the AG and Provost Actions. The Minister and Mr. Bolton shall pay Dueck’s costs in the Brundige Action, based on their respective shares of liability. This order is without prejudice to any costs award made following the appeal on the subrogation issue in the Provost Action as the decision in that appeal will not affect Dueck’s liability or this order for trial costs. We also order the Minister to pay costs to Mr. Bolton and Ms. Brundige for its unsuccessful cross‑appeal in the Brundige Action. “The Honourable Madam Justice MacKenzie” “The Honourable Mr. Justice Butler” “The Honourable Madam Justice DeWitt-Van Oosten”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. N.P., 2021 BCCA 25 Date: 20210114 Docket: CA46612 Between: Regina Respondent And N.P. Appellant Restriction on publication: A publication ban has been automatically imposed under s. 110(1) of the Youth Criminal Justice Act restricting the publication of information that would identify a young person referred to in this judgment. A publication ban has also been automatically imposed under s. 111(1) of the Youth Criminal Justice Act restricting the publication of information that would identify a young person as having been a victim or witness. Both publication bans apply indefinitely, unless the information is published by the young persons under ss. 110(3) and 111(2), respectively, or the court has ordered publication. A publication ban has been imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of information that could identify a victim or witness under 18. This ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Hunter The Honourable Mr. Justice Grauer On appeal from:  An order of the Provincial Court of British Columbia, dated March 28, 2019 ( R. v. [N.P.] , Cranbrook Docket 3834-1). Oral Reasons for Judgment Counsel for the Appellant (via videoconference): J.L. Martin Counsel for the Respondent (via videoconference): N.G. Melling Place and Date of Hearing: Vancouver, British Columbia January 14, 2021 Place and Date of Judgment: Vancouver, British Columbia January 14, 2021 Summary: The appellant, N.P., was convicted of sexual assault of his stepsister. N.P. submitted, and the Crown conceded, that the judge erred by admitting Facebook messages between the complainant and her father following the alleged assault as consistent statements which reflected positively on her credibility. Held: Appeal allowed and new trial ordered. The prior consistent statements of the complainant should not have been entered into evidence or considered by the trial judge in assessing her credibility or corroborating her testimony. Prior consistent statements are presumptively inadmissible and no exception to this rule applied in this case. [1] NEWBURY J.A. : The Crown has conceded that this appeal should be allowed and a new trial ordered, and I agree with that disposition. [2] Mr. P was convicted of the sexual assault of B.M. At the time, he was 15 years old. B.M. was his stepsister and was then age 16. B.M. testified that at about 1:00 a.m. on July 24, 2018, the appellant and B.M. were staying at the home of her paternal grandparents. Apparently they were expected to sleep on the same couch. The two were at opposite ends of a sectional; she was positioned on one end of the couch with her feet towards him at the other end. She testified at trial that he began to rub her legs with his hand. When she moved her legs away, he tried to “touch her and [run] his hand up her leg.” (Reasons at para. 3.) He then crawled on top of her and grabbed her breasts. She responded by repeatedly saying ‘no’ and told him to stop. He said, “Then blow me and I’ll leave you alone.” When she refused, he again grabbed her breasts and as she tried to move away, grabbed her by the hips and pulled her back onto the couch. She testified that he pulled her pyjama pants to her knees and inserted his penis into her vagina. [3] The appellant testified in his defence, agreeing with virtually all of the foregoing, except that he denied touching B.M. sexually or at all. [4] The Crown entered into evidence a series of Instagram messages between the appellant and B.M. In one these exchanges, which took place two months before the alleged offence, B.M. told Mr. P it was “wack” — i.e., absurd — for him to try to “smash” her — i.e., have sex with her — given that he was her (half) brother. His reply was, “Of course I am I’m 15 and your [sic] sexy.” In his testimony, the appellant explained these messages as being simply “stupid” and the result of his being drunk at the time. [5] The Crown also sought to adduce into evidence some Facebook messages between B.M. and her father later in the morning of July 24, 2018 , in which she complained of what had happened, in a manner that was, in the trial judge’s words, “consistent with what she testified to.” (At para. 16.) Details of these messages are set forth at para. 21 of the appellant’s factum. [6] In an exchange with Crown counsel, the trial judge suggested that B.M.’s “prior consistent statements”, while not admissible for the truth of their contents, were admissible and could be used in assessing her credibility , on either the second or third branch of R. v . W.D. [1991] 1 S.C.R. 742. Defence counsel agreed that the Facebook messages could be used to assess credibility, “to the extent that it rebuts any sort of suggestion of a ... recent fabrication.” He continued, “I could concede that, to the extent that she hasn’t made up some story later on. I would submit that it would be — should be assessed for that limited purpose ....” In fact, there was no evidence that would have supported recent fabrication by B.M. of her evidence. [7] No voir dire was held to determine the admissibility of the consistent statements from Facebook. Trial Judge’s Reasons [8] At para. 5 of his reasons, the trial judge correctly stated the three prongs of R. v. W.D . On the first branch, he said he did not believe the appellant’s denial of sexual contact and characterized Mr. P’s explanation of the Instagram messages as “not compelling”. With respect to the second branch of W.D. , the judge found that the appellant’s evidence did not raise a doubt, and that: He acknowledges in his evidence that in sending an eggplant emoji and referring to “licked” he was asking B.M. to perform a blowjob, that is to say, fellatio. It is consistent with B.M.’s evidence that on the couch he asked her to “blow” him. [At para. 13.] [9] Turning next to the third branch of W.D. , the judge said this: ... I turn to consider the balance of the evidence. I found the evidence of B.M. to be credible and compelling. Indeed, with respect to the surrounding facts, including opportunity, it was confirmed by [Mr. P]. Furthermore, the Instagram exchange between them, and to which I have already referred, is consistent with what she alleges occurred later in this assault. Other than [Mr. P]’s denial being put to her, she was not challenged or inconsistent in any way. Lastly, in Exhibit 1, pages 2 to 7, the Facebook messages between B.M. and her father later in the morning on July 24, 2018, she complained to her father of what occurred, which was again consistent with what she testified to. While those Facebook messages from her are not proof of what occurred, they are consistent with her evidence and reflect positively on her credibility . In conclusion, I accept the evidence of B.M. that she was assaulted by [Mr. P] just as she described. [At paras. 14–7; emphasis added.] [10] In the result, the appellant was found guilty as charged. On Appeal [11] Statements consistent with a witness’s evidence are normally regarded as self‑serving evidence and are presumptively inadmissible because they (i) lack probative value and (ii) constitute hearsay when adduced for the truth of their contents: see R. v. Stirling 2008 SCC 10 at para. 5; R. v. Dinardo 2008 SCC 24 at para. 36; R. v. Ellard 2009 SCC 27 at para. 27; R. v. M (E-H) 2015 BCCA 54 at para. 46; and more recently, R. v. Gill 2018 BCCA 275 at para. 65. As S.N. Lederman, A.W. Bryant and M.K. Fuerst observe in The Law of Evidence in Canada (5 th ed., 2018) at §7.3, in addition to the lack of probative value of such evidence, the most common rationale for the rule is the risk of fabrication: no one should be allowed to create evidence for him or herself. An exception historically existed in sexual assault cases for “recent complaints” made by complainants soon after the incident complained of, but that exception was abrogated by an amendment to the Criminal Code in 1983. (See now s. 275.) [12] There are several other exceptions to the rule but, in my view, none of them is remotely applicable to this case. I have already mentioned that no imputation of recent fabrication arises. The Crown suggested in its factum that the exception known as “narrative as circumstantial evidence” — where out‑of‑court statements made by a complainant in a sexual assault case may be used for the “limited purpose of helping the trier of fact to understand how the complainant’s story was initially disclosed” ( Dinardo at para. 37) — might have application, but I cannot agree. Cases in which it has applied have generally involved witnesses who because of age, infirmity or similar circumstances are unable to testify or have a particular difficulty beyond their control, in testifying. In Dinardo itself, the complainant was young person with a disability. In R. v. G.C. [2006] O.J. No. 2245 (C.A.), the complainant was 8 years old. The Supreme Court in Dinardo approved the reasoning of the majority in G.C. that her prior consistent statements could be admitted, emphasizing at para. 39 that she had had difficulty in situating events in time, was easily confused, and lied on occasion. [13] At the same time, the Supreme Court in Dinardo approved the Court of Appeal’s conclusion in G.C . that the trial judge had erred in admitting the content of the complainant’s prior consistent statements to corroborate her testimony at trial. Both courts cited with approval the observation of the Ontario Court of Appeal in R. v. F.(J.E.) (1993) 85 C.C.C. (3d) 457 that: The fact that the statements were made is admissible to assist the jury as to the sequence of events from the alleged offence to the prosecution so that they can understand the conduct of the complainant and assess her truthfulness. However, the jury must be instructed that they are not to look to the content of the statement as proof that a crime has been committed. [At 476; emphasis added.] [14] Very recently, in R. v. Langan 2020 SCC 33, the Supreme Court adopted the reasons of Chief Justice Bauman, dissenting, reported at 2019 BCCA 467. The Chief Justice quoted with approval passages from Gill, including this: The prior consistent statement is not admitted for the truth of its contents or as a form of self-corroboration of the trial testimony of the witness . The trier of fact also must not rely on the statement to support the prohibited inference that repetition enhances truthfulness. Rather, “the probative value of the statement lies in the inferences that can be drawn from the timing and circumstances of the statement, rather than the simple fact that the [witness] has said the same thing before ” . . . [At para. 91; emphasis added.] [15] The situations in which the “narrative” exception may be relied upon, then, are limited, and in any event such statements are not to be used for a hearsay purpose — i.e., as a “form of self-corroboration”. ( Gill at para. 76.) No difficulty like that encountered in Dinardo or G.C. arose with respect to the complainant’s testimony in the case at bar; nor was it contended that the timing or fact of her complaint was of “independent cogency” in assessing that testimony. It follows in my opinion that the prior consistent statements of B.M. should not have been entered into evidence or considered by the trial judge in assessing her credibility or corroborating her testimony. The only relevance these statements could have had was to support the “prohibited inference that repetition enhances truthfulness.” ( Gill at para. 76.) [16] I also agree with the Crown that the curative proviso in s. 686(1)(b)(iii) cannot properly be applied in this case. As Mr. Melling acknowledged, it cannot safely be said that defence counsel made a tactical decision not to object; and the trial judge gave sufficient importance to the Facebook evidence to suggest that it did figure significantly in his reasoning. [17] In the result, I am satisfied that we have no choice but to allow the appeal, and order that the case be remitted for retrial. [18] I thank counsel for their helpful submissions. [19] HUNTER J.A. : I agree. [20] GRAUER J.A. : I agree. “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Nahanee, 2021 BCCA 13 Date: 20210114 Docket: CA46730 Between: Regina Respondent And Kerry Alexander Nahanee Appellant Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4(2) of the Criminal Code in cases involving sexual offences to ban the publication, broadcasting or transmission in any way of evidence that could identify a complainant or any witness under the age of 18. This publication ban applies indefinitely unless otherwise ordered. Pursuant to s. 16(4) of the Sex Offender Information Registration Act [ SOIRA ], no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA . Before: The Honourable Mr. Justice Willcock The Honourable Madam Justice Fenlon The Honourable Madam Justice Griffin On appeal from:  An order of the Provincial Court of British Columbia, dated February 7, 2020 (sentence) ( R. v. Nahanee , North Vancouver Dockets 66176‑1 and 66435‑2‑C). Counsel for the Appellant (via videoconference): H. Lucky Counsel for the Respondent (via videoconference): M. Shah Place and Date of Hearing: Vancouver, British Columbia November 20, 2020 Place and Date of Judgment: Vancouver, British Columbia January 14, 2021 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Madam Justice Fenlon The Honourable Madam Justice Griffin Summary: The appellant pleaded guilty to two counts of sexual assault and was sentenced to eight years’ imprisonment. He appeals his sentence on the basis that the judge erred in (1) failing to alert counsel that she planned to impose a sentence in excess of that sought by Crown counsel, (2) imposing a demonstrably unfit sentence, (3) incorrectly applying statutory and common law aggravating factors, and (4) failing to properly consider his Aboriginal heritage. Held: Appeal dismissed. Because the guilty plea was not accompanied by a joint submission on sentencing, the trial judge was not obliged to notify counsel that she planned to impose a longer sentence than that sought by the Crown. The sentence was in line with those imposed on offenders who sexually assaulted children while in positions of trust. The judge was permitted to consider the appellant’s lack of insight or ongoing risk to the public, the victims’ ages, and the age differential between the victims and appellant when determining the sentence, and she properly considered whether the appellant’s Indigenous heritage attenuated his culpability. Reasons for Judgment of the Honourable Mr. Justice Willcock: Introduction [1] On January 30, 2019, the appellant pleaded guilty to sexually assaulting S.R. on one occasion on July 12, 2018. On December 10, 2019, he pleaded guilty to sexually assaulting E.N. on many occasions between October 1, 2010 and June 30, 2015. [2] When the second guilty plea was entered, defence counsel advised the court as follows: Through extensive resolution discussions with my friend, including quite a thorough statement of facts and Crown's sentencing decision which was provided by my friend's office, and a copy has been provided to Mr. Nahanee , I do have instructions to resolve Information 66435 [the charges in relation to E.N.]. It's a three count Information, and specifically a plea of guilty to Count 1 which alleges a sexual assault of [E.N.] between the 1st day of October, 2010, and the 30th day of June, 2015, .... [Emphasis added.] [3] The appellant’s counsel confirmed he had reviewed s. 606(1.1) of the Criminal Code with his client. Before accepting the plea, the sentencing judge reviewed the provision with the appellant as follows: Mr. Nahanee, just so you know, it's a provision of the Criminal Code that a judge has to make sure it's been complied with before a guilty plea can be accepted. And it requires that the accused who's entering the guilty plea do so voluntarily, no pressure, understands that there will be consequences to the guilty plea; is acknowledging that he or she did the things that make up the offence, and that even if your lawyer and Crown counsel have the same view of what the appropriate or the right sentence is, that it's the sentencing judge who has to make the ultimate decision and the judge isn't bound by what the lawyers say. So that's why I'm asking, Mr. Lucky, when I say have you reviewed those provision. [4] Submissions on sentencing for both offences were heard on January 23, 2020. The sentencing judge then had a pre‑sentence report, a psychiatric assessment prepared by Dr. Kropp, a Gladue report ( R. v. Gladue , [1999] 1 S.C.R. 688) and two Statements of Fact, all of which were marked as exhibits without objection. [5] The material facts were recounted by the Crown. [6] The offence against S.R. was committed in July 2018. Mr. Nahanee was then 27 years old. S.R. was 15 years old. She spent the evening of July 11, 2018 drinking and smoking with friends in North Vancouver. Instead of taking a bus home to Surrey, she went to her grandparents’ home in North Vancouver. The appellant, her uncle, was living there. In the middle of the night, S.R. awoke as the appellant digitally penetrated her; he then removed her shorts and had unprotected sex with her. At approximately 3:15 in the morning, she called the police to report being sexually assaulted. She was taken to the hospital where examination confirmed injuries consistent with non‑consensual sex. Vaginal swabs were taken. The appellant’s DNA was later found to be present on the swabs. [7] Following his arrest, in a warned statement, Mr. Nahanee told a West Vancouver Police Department detective that S.R. had awakened him from a dead sleep and threatened to scream if he didn't have sex with her. He admitted he stuck his fingers in S.R.’s vagina for approximately five to 10 minutes before having sex with her. [8] The offences against E.N. were committed over a long period. E.N. lived at the North Vancouver home of her grandparents, in their care, together with the appellant, between 2010 and 2015. When she first moved into their home in 2010, she was 13 years old, and the appellant, her uncle, was 19 years old. Approximately five months after E.N. moved into the home, the appellant began repeatedly assaulting her at night. E.N. would wake up to find him digitally penetrating her. In October 2010, when she had just turned 14 years old, the assaults escalated to include vaginal intercourse. E.N. lost track of how many times the appellant sexually assaulted her because the assaults happened frequently. She estimates approximately 10 to 15 assaults, with intercourse occurring about eight times. [9] E.N. came forward to the police in August 2018, after learning that Mr. Nahanee had also assaulted her younger cousin, S.R. [10] The Agreed Statement of Facts with respect to the offence against S.R. included the following admissions: 25.       SR had told her grandmother about past assaults by her uncle, but was not believed by her family. Instead, SR's grandmother characterized her as 'vindictive', with 'mental health problems' and 'difficult'. 26.       In her statement to police dated July 12, 2018, SR expressed: “I didn't want to be called crazy for it anymore...it's all in my head is what she would told me, no it's not, this is what happens when you let someone like him get away with what it was...and they didn't believe me; it's all in my head. I smoked too much pot. It's always this; it's always that.” “It's been so long she's told me: it's all in my head and I've wanted to believe that. I wanted to (unintelligible) it's all in my head 'cause I couldn't imagine my own...uncle doing this to me and...I don't know. He just... It just hurts that she doesn't believe me.” Sentencing Submissions [11] In sentencing submissions, Crown Counsel relied upon a series of cases in support of the proposition that the sentencing range for an offence against a child involving sexual intercourse is three to five years , including R. v. R.R.M. , 2009 BCCA 578; R. v. R.E.L. , 2010 BCCA 493 ; R. v. E.S ., 2017 BCCA 354; and R. v. Jaden , 2018 BCSC 1685. [12] The Crown recognized the guilty plea as a mitigating factor but emphasised the following aggravating factors: a) the fact the appellant was the victims’ uncle, an aggravating factor codified by s. 718.2(a)(ii) and (iii) [the Crown now acknowledges this was an error as “that aspect of s. 718.2(a)(ii) was not in force at the time of the offences and therefore did not apply”]; b) he abused a position of trust; c) the young age of the victims, 13 and 15 years, another codified aggravating factor under s. 718.2(a)(ii.1); d) the age differential; e) penetrative intercourse occurred, and a condom was not used; f) the vulnerability of the victims; g) the number of offences; h) the fact the appellant when questioned by the police attempted to shift blame to the victim; i) physical injuries were suffered by S.R.; and j) the profound impact of the offences on the complainants’ mental well‑being, including familial alienation. [13] There was some discussion in the course of submissions of the formal admission that S.R. had complained to her grandmother about past assaults by the appellant. The judge noted the guilty plea referred to only one incident involving S.R. and asked Crown counsel what weight could be placed upon that particular admission by the appellant. She questioned whether that was a matter that might be taken into account in weighing the extent to which the guilty plea was mitigating. Crown counsel took the position that the admission could be weighed in measuring the impact of the index sexual assault on S.R. Counsel noted: MS. MCPHERSON : … Certainly he's not been charged with any of those offences, but it does put into context the extreme emotional trauma that she has suffered through the alienation, the disbelief on the part of her family members, the lack of support and the fact that what she had to do essentially was endure a serious sexual assault in order -- in her young mind to consider that she would have what she called proof to. So if Your Honour is asking … in terms of sentencing … how much weight essentially to put on a complainant's allegation of prior events, that is a very complicated, difficult question that Crown is not in a position to be able to answer for Your Honour. Perhaps my friend will be able to speak more to that. There were certainly never any dispute with respect to these prior allegations, but at the same time they were not investigated, nor was Mr. Nahanee ever charged with any of these incidents. So what we have before the court today is a single incident, a serious sexual assault from July of 2018, and that, Crown says, is what the court is able to -- THE COURT: That's what I am required to sentence him on. MS. MCPHERSON: Sentence him on. THE COURT: Yes, I'm clear on that. And that is what I will do -- MS. MCPHERSON: Yes. THE COURT: -- is sentence with regard to that single offence with regard to that particular Information. And perhaps -- well, your submissions with regard to the impact on S.R. is something I will take into consideration. I'm sure [the appellant’s counsel] will address these questions. [14] The Crown’s position on sentencing, in brief, was: The Crown will be asking Your Honour to consider a global sentence of four to six years of incarceration, with respect to both files. Disposition is based on aggravating facts of each count; the mitigation of Mr. Nahanee's guilty pleas; the primary sentencing considerations of denunciation and deterrence as set out in the Criminal Code , and sentencing precedents. In the Crown's view a three to five year sentence of incarceration is an appropriate sanction for each offence individually, but that globally, taking into account the principles of totality, a four to six year sentence is fair and meets the primary sentencing objectives of denunciation and deterrence, while not losing sight of Nahanee's rehabilitation. This is not a joint position, Your Honour. I anticipate that my friend will ask Your Honour to consider a shorter period of incarceration. [15] Defence counsel emphasised the appellant’s guilty plea as a mitigating factor and took the position that the offences in question were not as egregious as many of those addressed in the precedents cited to the court. He submitted that less egregious offences had resulted in sentences at the low end of the range suggested by Crown counsel, citing , among other cases, R. v. William , 2014 BCSC 1639, and R. v. W.F.G ., 2013 BCPC 302. He argued that sentences at the high end of the range were imposed where there was no guilty plea and egregious abuse over time by a person in a position of trust, as in R. v. D.E.L ., 2006 BCPC 79, and R. v. J.G.B. , 2008 BCSC 1069 . [16] Insofar as the shifting of blame is concerned, defence counsel emphasised that the offensive blaming of the victim S.R. occurred as the appellant’s first reaction to “being confronted with something horrible that he's done … about something that he himself has not yet acknowledged he's done ...”. [17] It is fair to say Gladue factors were not stressed by the appellant. In submissions, his counsel acknowledged that while such common features as addiction or substance abuse, childhood abuse and mental health issues were not present, it was nevertheless important to bear in mind “t he systemic, intergenerational effects of the collective experience of First Nations’ people”. The sentencing judge acknowledged that fact but noted that ultimately she had to have in mind the offender’s moral culpability. [18] The trial judge addressed Gladue factors in submissions, in part, as follows: THE COURT: But isn't there also in …, the material before me, isn't there a … factual circumstance and that is notwithstanding the fact that, for example, the grandparents went to Indian Residential School and mom did the Day School; that Mr. Nahanee's childhood was actually pretty much not impacted by that because of the efforts and the pretty positive environment that his parents were able to create because of their awareness. MR. LUCKY: Yes. I can’t … take issue with what Your Honour has said or what's in the reports in front of the court. [19] The sentencing judge assured counsel that she would take Gladue factors into account, but was seeking to identify factors specific to the appellant. [20] The appellant’s position, briefly stated, was: Mr. Nahanee is aware that the offences for which he's entered his guilty plea do require federal custody. He's asking the court to consider a sentence in the range of 36 to 42 months which would be three to three and a half years globally for both offences. [21] Defence counsel did not make any submissions with respect to what weight the sentencing judge could place upon the appellant’s admission that S.R. had complained of other prior incidents of sexual abuse at the hands of the appellant. Sentencing [22] The sentencing judge began her reasons by noting there was not a joint submission on sentencing, and by summarizing the parties’ respective positions on the appropriate sentence range. [23] She erroneously believed that because the Crown had proceeded by indictment in both cases, s. 271 of the Criminal Code provided a maximum sentence of 14 years’ jail on each count. Prior to June 18, 2015 (the date of assent to S.C. 2015, c. 23 ), the maximum sentence for the offence of sexual assault, where the Crown proceeded by indictment, was imprisonment for a term of ten years . That maximum applied to the offence charged in relation to E.N. From 2015 to 2020, the maximum sentence for the offence of sexual assault, where the Crown proceeded by indictment, was imprisonmen t for a term of 14 years , if the complainant was under the age of 16 years . S.R. was assaulted in 2018, when she was 15 years old. A 14‑year maximum therefore applied in relation to that charge only. [24] Citing s. 718.01, the judge held that because the offences involved the abuse of victims under 18 years old, primary consideration must be given to denouncing and deterring such conduct. [25] She considered what she understood to be four codified aggravating factors applicable in relation to both the assaults of E.N. (which occurred between 2010 and 2015) and S.R. (in July 2018): a) Mr. Nahanee abused a member of his family in committing the offence (referring to s. 718.2(a)(ii)); b) he abused a person under the age of 18 (s. 718.2(a)(ii.1)); c) he abused a position of trust, as the victims’ uncle and, for E.N., as an adult residing in the residence in which she resided as a place of refuge (s. 718.2(a)(iii)); and d) the offence had a significant impact on the victims (s. 718.2(a)(iii.1)). [26] The first of these was not a statutory aggravating factor in relation to either offence. In 2018, s. 718.2(a)(ii) provided that abuse of a common‑law spouse or partner was an aggravating factor. The reference to family members was not added until 2019 (by S.C. 2019, c. 25, s. 293). [27] The last of the enumerated statutory aggravating factors was not in force until January 2013 (by S.C. 2012, c. 29) and was therefore applicable in relation to only some of the offences against E.N., and the offence against S.R. [28] In addition to the statutory aggravating factors, the sentencing judge considered the following to be aggravating in relation to E.N.: a) The repetition of sexual intercourse with E.N. on eight occasions; b) the sexual intercourse was unprotected, exposing the victim to the risk of pregnancy and STDs; c) the assaults occurred at the height of E.N.'s vulnerability, when she was alone and asleep; and d) they occurred in a home where she had been placed by her family as a place of safety. [29] Some of these factors were also aggravating in the case of S.R. In particular, the judge noted: a) this was “not an isolated incident”; b) the sexual assault involved not only digital penetration, but also sexual intercourse; c) the appellant did not wear a condom; d) the assault occurred at the height of her vulnerability, when she was asleep; e) the assault was brazen, in that it was committed while other children slept nearby; f) it occurred in a place where S.R. had sought safety; g) there was a twelve-year age difference between the appellant and S.R.; and h) there was an initial effort to shift blame. [30] She took into account as mitigating factors in both cases: a) the appellant had entered a guilty plea; b) he had a good work history, and a supportive family in the community; c) he had no criminal record and is relatively young; d) he performed well on bail; e) while he demonstrated limited insight, his expression of remorse was genuine; and f) he expressed a need and willingness to undergo treatment. [31] Gladue factors were considered at length by the trial judge, but did not weigh significantly in sentencing. The judge described the appellant’s youth and upbringing and noted that he had grown up on the Squamish Nation Capilano Reserve in West Vancouver, observing: “This is not a rural or remote area.” Referring to the Gladue report and the evidence of the appellant’s mother, she weighed the fact the appellant had not endured violence or abuse, and was raised in a safe home. She described the appellant’s family’s history, and his forebears’ experience in residential schools and their loss of cultural and spiritual connections. [32] Referring to the comments of this Court at para. 13 in R. v. Eustache , 2014 BCCA 337, the sentencing judge recognized her obligation to consider the systemic and intergenerational effects of the collective experiences of Aboriginal peoples, and that the appellant was not required to establish a causal link between those factors and the commission of the offence. However, she was of the view that the law required her to consider the extent to which Gladue factors actually affected the appellant, citing R. v. D.G. , 2014 BCCA 84, and R. v. Morris , 2004 BCCA 305, in particular this Court’s conclusion (set out in the following passages) in Morris , where the sentencing judge had failed to consider how the Gladue factors should be weighed in assessing the moral blameworthiness of the offender: [60]      … [T]he sentencing judge failed to appreciate the moral culpability of this offender. Although he identified Mr. Morris as an aboriginal offender, he did not properly assess how any systemic or background factors related to that identity contributed to bringing him before the court. In particular, Mr. Morris is not a victim of alcohol or other substance abuse. There is no evidence that he endured a childhood of family breakdown or dysfunction. And although he mentioned residential school in his submission, I do not understand him to say that he had been victimized or abused in school. [61]      We are bound to be aware of and sensitive to systemic issues faced by aboriginal peoples generally. However, there do not appear to be any of the personal mitigating factors so often present in cases of aboriginal offenders. [33] She held: [71]      These passages from Morris are helpful in my assessment of the application of the Gladue factors here. I am mindful that Mr. Nahanee is an Aboriginal offender. I am mindful of his family's historic experiences. However, he grew up in an urban area, in a happy home, devoid of violence or substance abuse. He attended public school, did fairly well, has no cognitive deficits. There are none of the personal mitigating factors so often present in cases of Aboriginal offenders, such that his blameworthiness is consequently attenuated. [73]      I note further in Morris , Chief Justice Finch stated at paragraph 53 that Gladue made it clear that it was not the principles of sentence that varied in sentencing Aboriginal offenders, but the application of those principles to a particular case. [34] Following R. v. R.R.M. , the sentencing judge adopted the approach described in Gladue at para. 80 as follows : [ 80]      As with all sentencing decisions, the sentencing of Aboriginal offenders must proceed on an individual (or a case-by-case) basis: for this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ? [35] She placed significant weight upon the fact the victim and the community in question here were Aboriginal, and the victims, as a result, were much more vulnerable to sexual assault that their non‑Aboriginal counterparts: R. v. Barton , 2019 SCC 33; R. v. S.P.S. , 2019 BCPC 158. [36] She found assistance in identifying the appropriate range of sentences for the offence against E.N. in R. v. D.(D. ) (2002), 163 C.C.C. (3d) 471 (Ont. C.A.); and in the review of cases in R. v. J.M. , 2019 BCPC 235, including R. v. T.A.D. (1995), 68 B.C.A.C. 236 . In relation to the offence against S.R., the decision of this Court in R. v. R.R.M . was found to be most helpful. [37] She distinguished the cases relied upon by the appellant’s counsel, William , W.F.G. , 2013 BCPC 302, and R. v. McLean , 2014 BCSC 1293, as cases where there were highly significant Gladue factors that are absent here, including substance abuse and a history of childhood sexual abuse, attenuating the offenders’ culpability. [38] The sentencing judge concluded: [107]    Having found that the appropriate sentence for Count 1 on lnformation 66435-2-C is six years and the appropriate sentence for the offence set out in Count 1 of Information 66176 is four years, I must apply the principle of totality, as the two sentences for the two offences shall be served consecutively. [108]    In my respectful view, the appropriate length of jail for these two offences is eight years in total. The sentence with regard to the offence of sexually assaulting E.N. shall be reduced to five years’ jail; the sentence with regard to the offence against S.R. shall be reduced to three years’ jail, …, to be served consecutively. Grounds of Appeal [39] Mr. Nahanee appeals his sentence on the grounds the judge erred by: a) failing to alert counsel that she was planning to impose a sentence in excess of that sought by Crown counsel, a global sentence of 4 to 6 years incarceration; b) imposing demonstrably unfit sentences in relation to each of the offences to which he pled guilty; c) incorrectly applying statutory and common law aggravating factors; and d) failing to properly consider the appellant’s Aboriginal heritage. Discussion Imposition of a Sentence Not Sought [40] The Crown says the decision of this Court in R. v. R.R.B ., 2013 BCCA 224, is a complete answer to the argument that the sentencing judge erred in law by imposing a sentence greater than that sought by the Crown. In that case, the sentencing judge imposed a sentence of four years’ imprisonment, when the Crown had sought a jail term of between two and three years, and the defendant sought a conditional sentence order of between 18 and 24 months. One ground of appeal was that the sentencing judge had erred in failing to give notice to counsel that he intended to exceed the range suggested by the Crown and then failed to afford counsel the opportunity to make further submissions. Prowse J.A., writing for the court, held: [ 22 ]      … [A]s noted in [ R v. Allen , 2012 BCCA 377 ] and many other decisions of this and other appellate courts, there is no requirement that, if a judge disagrees with the range of sentence proposed by one or more counsel, he/she is obliged to advise counsel that he/she is considering imposing a sentence outside that range. While it is undoubtedly preferable for the sentencing judge to afford that opportunity to counsel in appropriate circumstances, failure to do so does not amount to an error of law or principle . [ 23 ] I accept that submissions of counsel arising from plea bargaining should be given careful consideration by sentencing judges, whether or not they result in a joint submission as to the precise nature of the sentence to be imposed. In this case, there is no indication that the sentencing judge ignored or overlooked counsels’ submissions. In the result, he simply did not agree with them. … It is, of course, the judge who ultimately makes the decision as to what constitutes a fit sentence, not counsel. [ 24 ] Nor am I persuaded that it was incumbent on the sentencing judge to advise counsel that he proposed to impose a greater period of imprisonment than that proposed by them and to then give them the opportunity to make further submissions . Counsel had already made thorough submissions, both written and oral, canvassing all relevant sentencing factors, and had provided the sentencing judge with all of the tools necessary to enable him to determine a fit sentence. … Counsel for R.R.B. suggested on appeal that further details could have been provided to the sentencing judge justifying the plea bargain, but I see nothing in her submissions, or in the materials, which persuades me that there was any unfairness in the sentencing process which would have affected the result. [Emphasis added.] [41] Crown counsel contends that not only is this good law, but that the case is on all fours with this appeal. Here, as in R. v. R.R.B ., there was no joint submission. Adversity at sentencing between the accused and the Crown resulted in full submissions being made in relation to aggravating and mitigating factors. A range of sentencing cases was put before the judge. There is nothing more that could have been said for the accused if he been alerted to the judge’s inclination to impose a longer sentence than that sought by the Crown. [42] The appellant submits that we are not bound by the decision in R. v. R.R.B ., because that decision was founded upon precedents that have been overtaken. The appellant contends that the Supreme Court’s examination of the procedure that should be followed by a sentencing judge who is not inclined to accept a joint submission , and the standard of review for sentences imposed in such circumstances, in the October 2016 decision in R. v. Anthony-Cook , 2016 SCC 43, fundamentally altered the landscape. [43] While it is correct, in my view, to say that the judgment in that case settled a significant question regarding the circumstances in which a sentencing judge may depart from a joint submission on sentence following a negotiated guilty plea, the decision does not fundamentally undermine the decision of this Court in R. v. R.R.B. [44] The Supreme Court in Anthony-Cook emphasised the importance of giving counsel an opportunity to make submissions with respect to whether the public interest demands a departure from a joint submission. It held “fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the … judge’s concerns before the sentence is imposed” (at para. 58). In doing so, the Court cited, as a precedent statement of that proposition, a decision of the Court of Appeal of Alberta that predated R. v. R.R.B .: R. v. G.W.C ., 2000 ABCA 333. In the Alberta case, Berger J.A. for the majority wrote: [26] In addition to the foregoing, the procedure followed by the sentencing judge in rejecting the joint submission in this case is a matter of concern. Once a sentencing judge concludes that he might not accede to a joint submission, fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the sentencing judge’s concerns before the sentence is imposed. In this case, lengthy submissions were made by both counsel in support of a probationary term which evoked no expressions of concern by the sentencing judge. He then retired to consider the disposition of the case. It was only upon his return to the courtroom, and in the course of giving reasons for rejecting the joint submission, that counsel had any indication of concern on his part. As a result, they were afforded no opportunity to address that concern. Indeed, had the sentencing judge made his concern known to counsel in a timely fashion, the foundation upon which the joint submission rested might well have been laid. I do not suggest that any particular procedure is de rigueur ; I say only that the principle of audi alteram partem should be followed. [45] When this Court decided R. v. R.R.B. , it was generally recognized that a sentencing judge should not depart from a joint submission without giving counsel an opportunity to make submissions on whether it is appropriate to do so. For that reason, Prowse J.A. emphasized there had not been a joint submission on sentencing. Anthony-Cook did not fundamentally alter the landscape in that respect. [46] A different approach has been taken in cases where the guilty plea is not conditional upon agreement to a joint submission. The rule, as set out in R. v. R.R.B. , is, while it is preferable to advise counsel of the intention to impose a sentence outside the range suggested by either counsel, it is not an error of law or principle to fail to do so. That rule appears to have been adopted in Alberta and Québec as well. [47] In R. v. Keough , 2012 ABCA 14 at para. 20, Slatter J.A. held: [20]      The case law recognizes the importance of a trial judge giving fair warning to counsel when he or she proposes to sentence outside the recommended range: R. v Hood , 2011 ABCA 169 at para. 15; R. v Abel , 2011 NWTCA 4 at para. 23; R. v Beal , 2011 ABCA 35 at paras. 15, 18, 502 AR 177, 44 Alta LR (5th) 306. This is a component of a wider principle that the parties are entitled to reasonable notice if the judge proposes to decide the case in a way not advocated by either party: R. v Al-Fartossy , 2007 ABCA 427 at paras. 22-5 , 83 Alta LR (4th) 214 , 425 AR 336 ; Murphy v Wyatt , [2011] EWCA Civ 408 , [2011] 1 WLR 2129 at paras. 13-19 ; Labatt Brewing Co. v NHL Enterprises Canada , 2011 ONCA 511 at paras. 5, 14, 106 OR (3d) 677; In Re Lawrence's Will Trusts , [1972] Ch 418 at p. 436-7 . Nevertheless, the sentencing judge has an obligation to impose a fit sentence, and neither exceeding the recommended range, nor failing to give counsel notice of intention to exceed the range, is, without more, reviewable error. If the sentence imposed is not demonstrably unfit having regard to the principles of sentencing in the Criminal Code , appellate interference is not warranted. Failing to seek the input of counsel may, however, make it more likely that the trial judge may overlook or overemphasize the relevant factors, rely on an irrelevant factor, impose a sentence based on an error in principle, or commit some other reviewable error . [Emphasis added.] [48] A similar result was obtained in Gabriel c. R. , 2015 QCCA 1391, which cited both R. v. R.R.B. and Keough. [49] In R v. Parr , 2020 NUCA 2 , the majority of the Nunavut Court of Appeal took a similar approach, concluding that a sentencing judge’s failure to advise counsel of his intention to exceed the recommendation of counsel was not an error of law per se, but could result in the failure to consider a material fact or principle. Slatter and Feehan JJ.A. wrote: [ 54 ] While the failure of a sentencing judge to flag an intention to sentence outside the recommended range is strongly discouraged, when this does occur, the question for the appellate court is whether the sentence imposed is unfit: R v Ehaloak , 2017 NUCA 4 , paras 34-39 . However, the accused must be given fair notice of the case he has to meet. While Mr. Parr was aware of the Crown’s position on sentence, the trial judge never warned him that there were other concerns at issue. The trial judge could have easily advised counsel that he thought their ranges of sentence were low. He could also have warned the parties that he was aware of cases that he thought gave a different range. [Emphasis in original.] [50] The approach adopted in this province was left undisturbed by the Supreme Court in Anthony-Cook . In a footnote to the judgment in that case, Moldaver J. wrote: [T]hese reasons do not address sentencing flowing from plea agreements in which the parties are not in full agreement as to the appropriate sentence. In other instances, the Crown and accused may negotiate sentencing positions that reflect partial agreement or an agreed upon range. Such arrangements may involve a comparable quid pro quo . In such circumstances, it may be that similar considerations would apply where a trial judge is, for instance, inclined to exceed the ceiling proposed by the Crown, but we leave that question for another day. [51] In R. v. Scott , 2016 NLCA 16, Rowe J.A. (as he was) considered R. v. R.R.B. and the divergent opinions of other appellate courts on this question, including: R. v. Burback , 2012 ABCA 30 ; R. v. Abel , 2011 NWTCA 4 ; R. v. Hood , 2011 ABCA 169 ; R. v. Hagen , 2011 ONCA 749 ; R. v. Williah , 2012 NWTSC 53; R. v. G.W.R. , 2011 MBCA 62 ; and Keough (which he considered to stand for a different rule than R. v. R.R.B. ). He concluded that fairness mandated that the sentencing judge take what he described at para. 18 as “a simple procedural step … to ensure that all relevant facts are before the judge before he or she imposes sentence after a guilty plea”. [52] The appellant urges this approach upon us. He says all of the logic in Anthony-Cook in support of affording counsel a right to make informed submissions before departing from a joint submission, is as applicable where the court is considering a sentence in excess of that sought by the Crown on a guilty plea. [53] There is some merit in that argument. However, in my view, as a division of three justices we are bound by the decision in R. v. R.R.B. , and it cannot be said to have been overturned or overtaken by the judgment in Anthony-Cook . The decision in Scott predates the decision in Anthony-Cook . It is a considered and valuable contribution to the jurisprudence that may be addressed by a five‑person division of this Court, or by the Supreme Court of Canada, but cannot be relied upon here in the face of the clear precedent of R. v. R.R.B . [54] For that reason, I am of the view that it is not open to us to hold that the sentencing judge erred in law by failing to advise counsel of her intention to impose a sentence in excess of the range proposed by the Crown, without more. [55] Having said that, if the trial judge had been obliged to advise counsel of her intention and to hear further submissions, but failed to do so, the appellant’s remedy would be to apply for leave to adduce new or fresh evidence on appeal or to make additional or further submissions on sentence. The appellant here does seek to introduce new evidence, which speaks only to the fact that the second guilty plea was entered after the appellant was assured of the position that would be taken by the Crown on sentencing. [56] As the Crown rightly points out on this appeal, the appellant has not demonstrated that he was prejudiced by the lack of a warning and opportunity to make submissions. The sentencing judge was aware of the fact that in entering his guilty plea the appellant had relied upon the sentencing position taken by the Crown. There is little else that can be said in favour of giving effect to the Crown’s sentencing position. Having considered the fresh evidence the appellant seeks to introduce, I am of the view that this evidence would not have had any impact upon the sentence imposed. As I have noted, the court was made aware by defence counsel at the sentencing hearing that the appellant had entered his second guilty plea following “extensive resolution discussions” which included “a thorough statement of facts and Crown's sentencing decision”. [57] It follows that I would not accede to the appeal on this ground. It remains for us to consider whether the sentence imposed is demonstrably unfit having regard to the principles of sentencing and, in particular, whether the sentencing judge overlooked or overemphasized relevant factors, relied on an irrelevant factor, imposed a sentence based on an error in principle, or committed some other reviewable error: R. v. Lacasse , 2015 SCC 64 . Demonstrably Unfit Sentence [58] The appellant says the trial judge erred by characterizing the gravity of the offence against S.R. as being “on the very high end of the spectrum”. He submits the jurisprudence establishes an appropriate range of sentence for the sexual assault to which he pleaded guilty in this case in the range of 2 to 3 years, subject to an assessment of aggravating and mitigating factors. He submits that several aggravating factors are absent in this case. In particular, he argues that he did not stand in loco parentis to the complainant S.R. [59] In relation to the events against E.N., the appellant says the jurisprudence establishes the range of sentence of 5 to 8 years, and this offence falls at the “very low end” of that spectrum given the guilty plea and numerous mitigating factors. Further, he says the trial judge erroneously considered the maximum sentence for the offence to which he pleaded guilty to be 14 years and that must have factored in the setting of his sentence. [60] As I have noted, the judge placed significant reliance upon R. v. R.R.M. in sentencing the appellant for the offence committed in relation to S.R. In that case, the trial judge had surveyed cases where offenders sexually assaulted children in trust situations. Some involved offenders who stood in loco parentis to the victims. The sentencing judge in the case at bar noted (at para. 103) that the appellant did not stand in that place, but she did “have regard to his position of trust and his familial connection to his victim”. For that reason, she found the precedents in R. v. R.R.M . to be helpful. The categories of relationship that can give rise to a relationship of trust are not strictly defined. In Jaden , DeWitt-Van Oosten J. (as she was) held: [32]      The Crown does not argue that Mr. Jaden was in a position of trust or authority in relation to the victim, within the meaning of s. 718.2(iii) of the Code . However, it is apparent from the Admissions of Fact that Mr. Jaden was actively engaged with A.U.'s family, regularly bringing groceries to their apartment and visiting with A.U. and her mother, approximately three to four times a week. A.U.'s mother obviously trusted him enough to provide him with a key. Within this context, the offence against A.U. constitutes a significant betrayal. [61] In my view, DeWitt-Van Oosten J. was correct to find a betrayal of trust in Jaden ; similarly, the sentencing judge in the case at bar was correct to find the appellant was in a position of trust and significantly betrayed the victim, S.R. [62] Insofar as the offence against E.N. is concerned, the Crown admits the judge erred in describing the applicable maximum sentence. The Crown says, however, there is no indication this error affected the sentence imposed. I agree. When setting the sentence in relation to this offence, the trial judge surveyed the relevant cases and placed significant weight on R. v. T.A.D. and R. v. R.E.L . In the latter case Hinkson J.A. (as he was), for the court, held that a five‑year sentence imposed on an offender who had pleaded guilty to sexually abusing his step‑daughter over years was within the appropriate range of sentences for prolonged sexual abuse of a child, as described in R. v. T.A.D. (as 5 to 8–9 years) and in R. v. O.M. , 2009 BCCA 287 (4 to 7 years). These cases, of course, preceded the increase in the maximum sentence in 2015. The sentencing range in these cases was expressed in relation to an offence for which the maximum sentence was then 10 years. [63] In R. v. Friesen , 2020 SCC 9, the Court held: [ 100 ] To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament’s view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [ translation ] “toughened sanctions” (para. 175; see also Woodward , at para. 58). Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences. [64] Reference to R. v. T.A.D. , R. v. O.M. and R. v. R.E.L . for guidance in sentencing continues to be appropriate in relation to offences committed before the increase in the maximum sentence for the offences in question. However, these older cases are less helpful in relation to sentencing for the prolonged sexual assault of children occurring after the increase in the statutory maximum, as they may underestimate our current assessment of the gravity of such offences. [65] It follows from what I have said, that I am of the view the sentences imposed are not demonstrably unfit. Consideration of Aggravating Factors Prior Incidents [66] The appellant says that although he pleaded guilty to a single incident of non‑consensual intercourse with S.R., the trial judge wrongly considered the fact that the offence was “not an isolated incident” to be an aggravating factor. In my view, it was not an error for the trial judge to address the harm done to S.R. by placing the offence in context, including the facts admitted by the appellant that magnified the impact of the specific offence to which he pleaded guilty. [67] In Friesen , the Court noted: [60] Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship ( R. v. D.R.W. , 2012 BCCA 454 , 330 B.C.A.C. 18 , at para. 41). If a parent or family member is the perpetrator of the sexual violence, the other parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim (see “The ‘Statutory Rape’ Myth”, at p. 292). Children who are or have been in foster care may be particularly vulnerable since making an allegation can result in the end of a placement or a return to foster care (see R. v. L.M. , 2019 ONCA 945 , 59 C.R. (7th) 410 ). Even when a parent or caregiver is not the perpetrator, the sexual violence can still tear apart families or render them dysfunctional ( R. v. D. (D.) (2002), 58 O.R. (3d) 788 (C.A.) , at para. 45). For instance, siblings and parents can reject victims of sexual violence because they blame them for their own victimization (see Rafiq , at para. 38). Victims may also lose trust in the ability of family members to protect them and may withdraw from their family as a result ( Rafiq , at paras. 39-41). [61] The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in the communities and people they know. They may be reluctant to join new communities, meet new people, make friends in school, or participate in school activities (C.-A. Bauman, “The Sentencing of Sexual Offences against Children” (1998), 17 C.R. (5th) 352 , at p. 355) . This loss of trust is compounded when members of the community take the side of the offender or humiliate and ostracize the child ( R. v. Rayo , 2018 QCCA 824 , at para. 87 (CanLII) ; R. v. T. (K.) , 2008 ONCA 91 , 89 O.R. (3d) 99 , at paras. 12 and 42). Technology and social media can also compound these problems by spreading images and details of the sexual violence throughout a community (see R. v. N.G. , 2015 MBCA 81 , 323 Man.R. (2d) 73 ). [62] The Criminal Code recognizes that the harm flowing from an offence is not limited to the direct victim against whom the offence was committed. Instead, the Criminal Code provides that parents, caregivers, and family members of a sexually victimized child may be victims “in their own right” who are entitled to present a victim impact statement (B. Perrin, Victim Law: The Law of Victims of Crime in Canada (2017), at p. 55; see also Criminal Code , ss. 2 (“victim”) and 722). [Emphasis added.] [68] The admission made by the appellant, reproduced above, amounted to an admission that there had been prior, uncharged assaults, the victim had reported them to her grandmother, and she had been disbelieved. Given that the admission was made to assist the court in sentencing following a guilty plea, no other purpose could be served by the admission. It was certainly not an admission that the victim had previously made false reports to her grandmother. [69] The appellant knew the admission was tendered by the Crown to “put into context the extreme emotional trauma that [E.N.] has suffered through the alienation, the disbelief on the part of her family members [and] the lack of support”. The judge noted she would take that submission into consideration, subject to what the defence had to say. The appellant did not object, in fact consented, to the evidence of prior complaints forming part of the record on sentencing, and took no position with respect to its use for the purpose described. It my view, in the circumstances, it was not an error to rely upon the fact the offence was not an isolated incident as an aggravating factor. As this Court noted in R. v. Ladue , 2011 BCCA 101: [31] There is no question that the Crown has the obligation to prove any aggravating fact beyond a reasonable doubt: see s. 724(3)(e) and R. v. Gardiner , [1982] 2 S.C.R. 368 . Any party wishing to rely on a relevant fact, including a fact in a pre-sentence report, has the burden of proving the fact: see s. 724(3)(b). However, these provisions do not come into play until the fact is disputed. What constitutes a dispute may differ depending on the circumstances, but any dispute over the facts presented on a sentencing hearing must be clear and unequivocal: see R. v. Ford , 2010 BCCA 105 , 254 C.C.C. (3d) 442 ; and R. v. Hodwitz , [1985] B.C.J. No. 1676 (C.A.) . Statutory Aggravating Factors [70] The appellant says the trial judge incorrectly applied statutory aggravating factors that were not in effect at the time the defences were committed, specifically the provision in s. 718.2(a)(ii) identifying the fact the abuse involved a family member as aggravating. The Crown admits this provision was not in effect at the material time (although Crown counsel relied upon it at sentencing), but says that is not relevant because the family relationship would inevitably have been treated as a separate aggravating factor that exacerbated the harm. I agree. As pointed out above in Friesen , the Supreme Court of Canada has expressly taken note of the significance of the harm that the breach of trust caused by the offence occasions in such circumstances. It stands to reason that Parliament has embodied in the statutory aggravating factors one factor that common sense would have judges consider in any event. [71] The same may be said for the explicit addition, as a statutory aggravating factor, of the significant impact of the offence on the victims. Common Law Aggravating Factors [72] The appellant takes issue with the judge’s consideration of two other aggravating factors: his initial efforts to shift blame, and the age differential between himself and the victims. [73] The Crown says the appellant’s statements to the police that cast blame upon S.R. could properly be considered as a lack of insight, a factor that may be taken into account in sentencing, pursuant to R. v. May , 2018 BCCA 391. In that case Fitch J.A. held: [ 35 ]      It was open to the judge to find that the appellant had not taken responsibility for his actions. In my view, it would have been open to the judge in this case to conclude that the appellant demonstrated a shocking lack of insight into his own behaviour and a callous disregard for the devastating impact his behaviour had on others. From there, it would have been open to the judge to impose a sentence that reflected the appellant’s guarded rehabilitative prospects and emphasized the need for specific deterrence as a matter of public protection: R. v. Montgomery , 2018 BCCA 27 at para.11; R. v. Alderman , 2017 BCCA 26 at para. 15; R. v. Athey , 2017 BCCA 350 at paras. 37-38; R. v. Purdy , 2012 BCCA 272 at paras. 23-26. If the judge had approached the issue in this way, she would not have been punishing the appellant for failing to express remorse; rather, she would have been calibrating the sentence to take account of the extent to which he posed a continuing risk to the public. That the judge does not appear to have taken the analysis this far is not something the appellant can complain about. [74] In the case at bar, the sentencing judge did not expressly describe the purpose for which she considered the appellant’s initial denial of responsibility. However, the only express reference to the denial is in the following passage, in the judge’s discussion of the sentencing cases relied upon by the appellant, in some of which the offender had taken steps to address underlying conditions: [105]    While all of these cases simply provide me with a guideline, I note that Mr. Nahanee faces no immigration consequences; denied the offence when the police dealt with him and offended against a family member which is statutorily aggravated. It was not an isolated incident in relation to S.R. [75] The passage suggests the denial was considered in relation to the extent to which the appellant had insight or posed a continuing risk. I cannot say his initial denial was inappropriately relied upon in sentencing the appellant. [76] Further, the appellant says the judge double‑counted the age of the victim as an aggravating factor because she considered it both as a statutory and a common law aggravating factor (t he abuse of a person under the age of 18 being a statutory factor (s. 718.2(a)(ii.1), and age differential being a common law factor). [77] These are, however, different aspects of the offence. While there is some overlap, as with many aggravating factors, the separate consideration of age differential , as distinct from the absolute age of the victim, is appropriate. As Goepel J.A., writing for the Court in R. v. S.C.W ., 2019 BCCA 405, noted (relying in part on reasoning in R. v. B.S. , 2019 ONCA 72 ), the former is relevant to assessing the degree of the offender’s culpability, the latter is relevant to assessing the victim’s degree of vulnerability. Indigenous Heritage [78] Finally, the appellant says the sentencing judge erred when she stated that the intergenerational impact of colonialization was successfully ameliorated in the appellant’s case. [79] I would not accede to that ground of appeal. The judge’s finding that, as a result of the efforts of the appellant’s parents, his childhood was not affected by the impact of colonialization and he enjoyed a positive environment cannot be said to have been founded upon a misapprehension of the evidence. Defence counsel acknowledged as much in colloquy with the judge. [80] As noted above, the sentencing judge acknowledged the obligation to consider the Gladue principles in this case, as in every case involving an Indigenous offender. Having done so, it was not an error to consider the extent to which the offender himself was affected by cultural oppression, social inequality and systemic discrimination. [81] As the Supreme Court of Canada noted in R. v. Ipeelee , 2012 SCC 13 at para. 83: [T]he operation of s. 718.2( e ) does not logically require [a direct causal link between the offender’s circumstances and his offending] . Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [82] In R. v. Elliott , 2015 BCCA 295, Donald J.A. held: [ 16 ]      A sentencing judge must take judicial notice of the systemic and background factors that affect all Aboriginal persons in Canada, including lingering institutional racism and the historical effects of past policies and injustice. But this does not mean that every offence committed by an Aboriginal offender is motivated by or a consequence of these factors to any extent. Nor does every offender with some Aboriginal heritage hold a worldview that reduces the rehabilitative effects of incarceration. In every case, the sentencing judge must create a fit sentence for this particular offender committing this particular crime. [ 17 ]      In summary, a sentencing judge must consider the factors discussed above when determining a fit sentence. To fail to consider these factors is a legal error that may lead to a disproportionate sentence: Ipeelee at para. 87. However, once a judge has considered these factors, a fit sentence is still in her or his discretion. Gladue does not impose a particular result; it imposes a particular process. Aboriginal offenders are not expected to receive a diminished sentence in every case. Each sentence is individually made by the sentencing judge and – absent an error in principle, a failure to consider a relevant factor, or an overemphasis of the appropriate factors – is subject to substantial deference by this Court: R. v. M. (C.A.) , [1996] 1 S.C.R. 500 at para. 90. [83] In my view, appropriate care was taken in this case to identify Gladue factors and to determine whether they attenuated the appellant’s moral blameworthiness. In this case, as in Elliott , I am of the view the following may be said: [ 30 ]      The judge expressly considered the unique circumstances the appellant faced as an Aboriginal offender, and then placed little weight on it in the particular context of this offence. The weight to place on given factors was within the judge’s discretion, and this Court should defer to it. [84] It should be borne in mind that the application of the Gladue principles in this case must also have been tempered by consideration of the fact the victims were Indigenous children. In Friesen , the Court wrote: [ 70 ]      Children who belong to groups that are marginalized are at a heightened risk of sexual violence that can perpetuate the disadvantage they already face. This is particularly true of Indigenous people, who experience childhood sexual violence at a disproportionate level (Statistics Canada, Victimization of Aboriginal people in Canada, 2014 (2016), at p. 10). Canadian government policies, particularly the physical, sexual, emotional, and spiritual violence against Indigenous children in Indian Residential Schools, have contributed to conditions in which Indigenous children and youth are at a heightened risk of becoming victims of sexual violence (see British Columbia, Representative for Children and Youth, Too Many Victims: Sexualized Violence in the Lives of Children and Youth in Care (2016), at p. 8 (“ Too Many Victims ”); The Sexual Exploitation of Children in Canada: the Need for National Action , at pp. 29-33). In particular, the over-representation of Indigenous children and youth in the child welfare system makes them especially vulnerable to sexual violence ( Too Many Victims , at pp. 11-12). We would emphasize that, when a child victim is Indigenous, the court may consider the racialized nature of a particular crime and the sexual victimization of Indigenous children at large in imposing sentence (T. Lindberg, P. Campeau and M. Campbell, “Indigenous Women and Sexual Assault in Canada”, in E. A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (2012), 87, at pp. 87 and 98-99). [85] The effort at reconciliation that, in part, motivates the Gladue approach to sentencing, is not served by sentences that do not sufficiently deter violence against Indigenous children. Disposition [86] For all of these reasons I would dismiss the appeal. “The Honourable Mr. Justice Willcock” I agree: “The Honourable Madam Justice Fenlon” I agree: “The Honourable Madam Justice Griffin”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Pawson, 2021 BCCA 22 Date: 20210114 Docket: CA46604 Between: Regina Respondent And Erik John Henning Pawson Appellant Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Goepel The Honourable Madam Justice DeWitt-Van Oosten On appeal from: An order of the Provincial Court of British Columba, dated October 4, 2019 ( R. v. Pawson , Sechelt Docket 17524-2-C). Oral Reasons for Judgment Counsel for the Appellant (via videoconference): K.M. Lee S. MacDonald Counsel for the Respondent (via videoconference): J.R.W. Caldwell Place and Date of Hearing: Vancouver, British Columbia January 12, 2021 Place and Date of Judgment: Vancouver, British Columbia January 14, 2021 Summary: The appellant was convicted of causing an accident resulting in bodily harm while operating a motor vehicle with a blood alcohol level over .08.  He challenges that conviction on the basis that the judge erred in finding that he had not been arbitrarily detained, that there was a suspicion justifying the demand for an ASD sample, that the first breathalyzer test was administered within two hours of the accident, and that the “presumption of identity” applied.  Held: Appeal dismissed. The judge made no errors when she concluded the appellant was not detained until the officer smelled alcohol on his breath.  The judge did not err in finding that the officer’s subjectively held suspicion of alcohol consumption was objectively reasonable on the basis of the odour of alcohol, the appellant’s admission to having one beer, her belief that the accident had just occurred, and her belief that the appellant probably had more than one beer.  The judge made no errors in her factual findings about when the accident occurred.  Finally, the presumption of identity applies in transitional cases. [1] FRANKEL J.A. : Erik John Henning Pawson was convicted by Judge Craig of the Provincial Court of British Columbia of causing an accident resulting in bodily harm while operating a motor vehicle with a blood alcohol level over .08.  Following the accident, Mr. Pawson provided a breath sample into an approved screening device (“ASD”) that resulted in a “fail”.  As a result of that “fail”, he was arrested and taken to a police detachment where he provided breath samples into an approved instrument—commonly referred to as a breathalyzer—that produced two readings over .08.  Mr. Pawson now appeals.  His grounds centre on the trial judge’s finding that his blood alcohol level at the time of the accident was over .08. [2] Mr. Pawson contends the judge erred in finding that: (a) he was not detained before a police officer demanded he provide an ASD sample; (b) the suspicion needed to make an ASD demand existed; (c) the first breathalyzer test was administered within two hours of the accident; and (d) the statutory “presumption of identity” applied even though that provision of the Criminal Code , R.S.C. 1985, c. C‑46, was repealed during the trial.  This last argument relates to the fact that An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts , S.C. 2018, c. 21, made major changes to the drinking and driving provisions of the Code . [3] The judge made the first two disputed findings following a voir dire held to deal with Mr. Pawson’s application to have the ASD and breathalyzer results excluded on the basis of violations of his rights under the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.  Mr. Pawson did not testify or call evidence on that voir dire .  As well, he did not testify or call evidence on the trial proper. [4] The accident occurred on July 28, 2017, on the Sunshine Coast Highway (Highway 101) between Gibsons and Sechelt.  Where the accident occurred the highway is undivided, with one lane in each direction.  Mr. Pawson lost control of the vehicle he was driving, swerved into the oncoming lane and off the road, and struck Mehran Mirani, who had just gotten off a bus. [5] Kate Haxton, who had gotten off the same bus, witnessed the accident.  She immediately ran to Mr. Mirani, who was lying in the bush, moaning, and in a semiconscious state.  Ms. Haxton flagged down a passing truck.  The driver of the truck, Bruce McNiven, also witnessed the accident.  Mr. McNiven’s wife called 9-1-1 and spoke to an emergency call taker.  Mr. McNiven and Ms. Haxton also spoke to the call taker.  Following the 9-1-1 call, firefighters, paramedics, and police officers attended at the scene.  A helicopter transported Mr. Mirani to Vancouver General Hospital. [6] Constable Andrea Ceulemans of the Royal Canadian Mounted Police was one of the officers who attended at the scene.  She was on patrol in a police vehicle when she received a dispatch at 8:07 p.m. from Emergency Health Services who were then en route to where a pedestrian had been struck on the highway.  Constable Ceulemans arrived at the scene at approximately 8:12 p.m.; firefighters and paramedics were already there.  Constable Ceulemans saw a grey vehicle in the ditch area, facing in the opposite direction of normal traffic.  There were marks on the roadway and on the gravel next to the roadway leading to that vehicle, indicating that the vehicle had skidded across the highway.  It was clear to Constable Ceulemans that the grey vehicle had been involved in an accident in which a pedestrian had been struck.  Mr. Pawson was standing at the front of that vehicle looking at Mr. Mirani.  The fire chief pointed out Mr. Pawson as the driver involved in the accident. [7] Constable Ceulemans approached Mr. Pawson.  She asked him if he was the driver; he responded, “Yes, I am” and gave her his name.  Mr. Pawson was emotional and appeared very concerned about Mr. Mirani.  Being concerned about Mr. Pawson’s emotional state and wanting to find out what had happened, Constable Ceulemans asked Mr. Pawson to follow her to her vehicle, which was parked a short distance away.  As Mr. Pawson appeared “fairly shaken up” she told him he could sit down on the back seat of her vehicle.  He did so, with his legs and feet outside the vehicle.  Constable Ceulemans asked Mr. Pawson for his driver’s licence and used the radio attached to her shoulder to check his name and date of birth. [8] Mr. Pawson told Constable Ceulemans he had spent some time on his boat in the Gibsons area and was driving home when the accident happened.  Because of the noise from the firefighters and paramedics—Constable Ceulemans described the scene as “loud” and “chaotic”—she leaned towards Mr. Pawson to hear him.  When she did so—at approximately 8:14 p.m.—she detected the slight smell of alcohol coming from Mr. Pawson’s breath as he was speaking.  She asked him whether he had had any alcohol that day; he replied he had had a beer at 5:00 p.m. [9] Constable Ceulemans suspected Mr. Pawson had operated a motor vehicle within the preceding three hours with alcohol in his body.  Acting under what was then s. 254(2) of the Criminal Code , she made an ASD demand at approximately 8:18 p.m.  She testified she formed that suspicion on the basis of the following: (a) her belief the accident had occurred just prior to her being dispatched; (b) the odour of alcohol on Mr. Pawson’s breath; (c) his admission to having had one beer; and (d) her belief he probably had had more than one beer. [10] As already mentioned, the result of the ASD test was a “fail”.  Based on the “fail”, Constable Ceulemans arrested Mr. Pawson for impaired driving causing bodily harm at 8:22 p.m.  She then advised him of his Charter rights and, acting pursuant to what was then s. 254(3) of the Criminal Code , demanded he provide breath samples. [11] Constable Ceulemans drove Mr. Pawson to the Sechelt Detachment where a breathalyzer technician, Constable Michelle Larsen, was waiting.  After arriving at the detachment, Mr. Pawson stated he wished to speak with a particular lawyer and he did so at 8:56 p.m.  At 9:10 p.m., Constable Larsen, at Mr. Pawson’s request, telephoned Mr. Pawson’s girlfriend to let her know he had been in a collision and was alright.  Constable Larsen analyzed two samples of Mr. Pawson’s breath.  The first sample, taken at 9:24 p.m., registered .140.  The second sample, taken at 9:44 p.m., registered .150. [12] Mr. Pawson contends the trial judge erred in finding that he was not arbitrarily detained in violation of his rights under s. 9 of the Charter before the ASD demand was made.  His position is that he was detained as soon as Constable Ceulemans approached him to determine the cause of the accident and that she “placed” him in the back of her vehicle.  Mr. Pawson further says that when Constable Ceulemans approached him she was obligated to immediately advise him of his rights as required by ss. 10(a) and (b) of the Charter .  I see no merit in these arguments. [13] In her voir dire ruling, the judge, who found Constable Ceulemans to be a credible and reliable witness, said the following with respect to detention: [45]      … I make the following findings from Constable Ceulemans’ evidence surrounding her question[ing] of Mr. Pawson : 1. Constable Ceulemans did not tell Mr. Pawson to come to her vehicle, she asked him to follow her to her vehicle, and to talk about what happened, and Mr. Pawson followed her there . 2.  While at the police vehicle Constable Ceulemans did not see any injuries on Mr. Pawson, but was concerned about his emotional state, and recognized that he may be in shock from the accident. She asked him if he was okay, and he said he was okay. 3. Constable Ceulemans told Mr. Pawson he could sit in the back of the police vehicle, which he did .  Mr. Pawson sat sideways in the rear seat with his legs out of the vehicle and feet on the ground.  This is some indication to me that Mr. Pawson was not being restrained physically or mentally. The car door remained open throughout the conversation. 4.  Constable Ceulemans stood in front of Mr. Pawson as he was seated.  She leaned in towards him when he told her what he had been doing that day leading up to the incident.  I accept Constable Ceulemans’ evidence that she leaned in so that she could hear Mr. Pawson, with her face approximately one foot from Mr. Pawson’s face. 5. I accept Constable Ceulemans’ evidence that she would have moved out of the way if Mr. Pawson got out of the vehicle.  I accept that she was not blocking Mr. Pawson’s egress, nor was she crowding him, and that Mr. Pawson could have got up and walked away without bumping into Constable Ceulemans . 6.  Constable Ceulemans testified that she believed she detained Mr. Pawson once she read him the ASD demand.  She accepted in cross-examination that she would probably have detained Mr. Pawson if he tried to get up and leave after she smelled alcohol on his breath, but before she asked him if he had had anything to drink. 7.  The duration of Constable Ceulemans’ interaction with Mr. Pawson from the time she first approached him to the time she read the ASD demand was approximately five minutes.  Constable Ceulemans ran checks on Mr. Pawson’s identity at 8:14 p.m., just after they arrived to her vehicle.  She made the ASD demand at 8:18 p.m.  The demand was made after Mr. Pawson said he had one beer at 5:00 p.m., which was after Constable Ceulemans had asked him if he had had alcohol to drink that day when she smelled liquor on his breath. [46] Taking into account all of these circumstances, I do not believe that a reasonable person in Mr. Pawson’s position would believe that his right to choose how to interact with Constable Ceulemans had been removed when he talked to Constable Ceulemans .  I find that Mr. Pawson was not detained when he was seated in the back of the police vehicle, until after the officer smelled alcohol on his breath.  I find that his detention crystallized once Constable Ceulemans smelled alcohol on Mr. Pawson’s breath. [Emphasis added.] [14] In R. v. Suberu , 2009 SCC 33 at para. 26, [2009] 2 S.C.R. 460, the Court said that in the absence of physical restraint or a legal obligation to comply with a request to “wait”, the “analysis must consider whether the officer’s conduct in the context of the encounter as a whole would cause a reasonable person in the same situation to conclude that he or she was not free to go and that he or she had to comply with the officer’s request.”  The Court also stated: [29]      The line between general questioning and focussed interrogation amounting to detention may be difficult to draw in particular cases.  It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. That is exactly what the trial judge did and I can see no error in her factual findings in regard to the interaction between Constable Ceulemans and Mr. Pawson or in the conclusion she reached on the basis of those findings. [15] The next issue concerns whether a legally sound basis existed for the ASD demand.  Mr. Pawson contends the judge erred in finding that the suspicion required to make an ASD demand existed.  As discussed by Justice Fitch in Mackenzie v. British Columbia (Superintendent of Motor Vehicles) , 2018 BCCA 354, 16 B.C.L.R. (6th) 301, there is both a subjective and objective aspect to this question: [35]      The demanding officer must subjectively entertain an honest suspicion that the detained driver has alcohol in his or her body.  Credibility issues and the need to make factual findings as a consequence thereof will most commonly arise in resolving whether the officer subjectively entertained the requisite honest suspicion. [36]      Further, the suspicion must be based on objectively verifiable circumstances which, taken together and subjected to independent judicial scrutiny, establish that the suspicion subjectively entertained by the officer was reasonable: R. v. Chehil , 2013 SCC 49 at paras. 26 and 29.  The inquiry is based on circumstances known to the police officer at the time and asks whether it was reasonable, based on the totality of those circumstances, for the officer to suspect that the driver had alcohol in his or her body.  The objective component of the test may be framed in these terms: “[W]ould a reasonable person, standing in the shoes of the investigating police officer and aware of all of the objectively verifiable evidence, reasonably suspect the driver had alcohol in his or her body?”: R. v. Yates , 2014 SKCA 52 at paras. 33‒34. [37]      The inquiry is “fact-based, flexible, and grounded in common sense and practical, everyday experience”: Chehil at para. 29. [16] I see no merit in the argument that Constable Ceulemans did not subjectively believe she had the suspicion needed to make a lawful ASD demand.  As the trial judge stated in her reasons: [23]      … The defence did not seriously challenge Constable Ceulemans’ credibility, or the honestly of her belief - for good reason.  Constable Ceulemans came across as an honest witness, The real issue is whether, having regard to the trial judge’s findings of fact, the officer’s suspicion was objectively reasonable.  This is a question of law: R. v. MacKenzie , 2013 SCC 50 at para. 54, [2013] 3 S.C.R. 250. [17] In considering this ground of appeal it is important to keep two things in mind.  The first is that “reasonable suspicion deals with possibilities, rather than probabilities”: R. v. Chehil , 2013 SCC 49 at para. 28, [2013] 3 S.C.R. 220.  The second is that the officer who makes the demand does not have to believe the driver is impaired or some other crime has been committed: R. v. Gilroy , 1987 ABCA 185 at para. 5, 3 M.V.R. (2d) 123, leave to appeal ref’d [1988] 1 S.C.R. ix; R. v. Lindsay (1999), 134 C.C.C. (3d) 159 at para. 2 (Ont. C.A.). [18] In the present case, the trial judge said this in finding the ASD demand was validly made: [24]      The real challenge from the defence was to the objective basis for Constable Ceulemans’ suspicion.  The defence says that Constable Ceulemans’ suspicion was not reasonable since it was only formed after Mr. Pawson admitted to drinking a beer.  The defence argues that the admission has very little significance since the beer was consumed three hours earlier.  I agree that the significance of Mr. Pawson’s admission to consuming alcohol was attenuated by the fact that it had been over three hours earlier, but that does not mean the admission carries no weight.  In my view it is just one of the factors that contributed to an objectively reasonable suspicion that Mr. Pawson had alcohol in his body, and a minor factor. [25]      More significant than the admission by Mr. Pawson to consuming alcohol three hours earlier was the fact that there was an unexplained collision of Mr. Pawson’s vehicle with a pedestrian on the side of the road. There were skid marks consistent with very erratic driving.  They showed the vehicle had swerved across the centre yellow lines of the road, across the oncoming lane, and then off the road and through the gravel to land adjacent to the forested area facing the wrong direction. [26]      Constable Ceulemans sought an explanation for the cause of the collision when she talked to Mr. Pawson.  When she talked to Mr. Pawson, Constable Ceulemans smelled alcohol on his breath.  Although it was described as a slight smell, when combined with the unexplained accident, and the admission to alcohol consumption, I am satisfied there were objectively reasonable grounds for Constable Ceulemans to suspect that Mr. Pawson had alcohol in his body. [33]      Mr. Pawson provided further information to indicate that he had been recently driving.  Constable Ceulemans testified that Mr. Pawson told her that he had spent the day in North Vancouver, then had taken a ferry to Langdale, and then had spent some time on his boat, and was driving from Gibsons to his home in Madeira Park.  He told her he had had a beer at 5:00 p.m. [34]      Given this constellation of factors, I am satisfied that Constable Ceulemans subjectively believed that Mr. Pawson was the driver of the vehicle that struck the pedestrian, and that he had been driving in the previous three hours.  That belief was objectively reasonable.  I find that Constable Ceulemans had the requisite grounds to demand Mr. Pawson to provide an ASD breath sample. I see no error in the judge’s conclusion.  However, there are two arguments advanced by Mr. Pawson that I will specifically address. [19] Mr. Pawson says the judge should not have had regard to there having been an “unexplained accident” because Constable Ceulemans did not state this was something she considered in deciding to make the ASD demand.  However, to state the obvious, it is clear that when Constable Ceulemans made the demand the fact there had been an accident was in her mind.  This is reflected in the following exchange during her examination-in-chief: Q         When you -- when you made the ASD demand did you have any indi -- any sense of when you believed he had been operating a motor vehicle? A          Just previously, probably to police getting there.  I had no doubt that that collision had just occurred prior to -- prior to me getting there, prior to -- to us being dispatched -- Q         And -- and what -- A          -- to the call. Q         -- lead you to that conclusion? A          Oh, it -- it’s the only highway on the Sunshine Coast.  It’s -- like I said, it’s -- it’s -- it’s a single lane highway going one lane in each direction, and the vehicle left serious or I would call them very noticeable skid marks and was on the side of the highway in an opposite direction.  I don’t think that there’s any way that that would go unnoticed. Q         Was there anything else about the -- the -- the location of the vehicle and the information you had that would -- A          No, it was fairly obvious that there was an accident there and I think anybody -- anybody that would be driving by would notice that and -- and, yeah. [20] Mr. Pawson also says the trial judge erred in finding there was an objective basis to suspect he had been driving in the preceding three hours as required by s. 254(2).  As the ASD demand was made at 8:18 p.m., he argues, in effect, that there is no objectively reasonable possibility the accident occurred at or after 5:18 p.m. [21] Although there was no direct evidence as to the exact time of the accident, it is clear the 9-1-1 call was placed within minutes of it occurring.  The trial judge found that Constable Ceulemans received a dispatch at 8:07 p.m. and that when she arrived at the scene at 8:12 p.m., other first responders were already there.  The judge also accepted the officer’s evidence that the accident occurred on a busy highway during the summer tourist season and would have been obvious to anyone travelling that highway.  In light of this, it strains credulity to accept that Constable Ceulemans’ belief that the accident occurred just before she arrived on the scene was not objectively reasonable.  To accede to Mr. Pawson’s argument one would have to accept it took more than two and one-half hours after the 9-1-1 call was placed for the police to be dispatched.  As Chief Justice McEachern stated in R. v. To (1992), 16 B.C.A.C 223, in dealing with whether the beyond‑a‑reasonable-doubt standard for conviction had been met, “ [i]t must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility”: at para. 41. [22] Next, Mr. Pawson challenges the trial judge’s finding that he was driving within two hours of when the first breathalyzer sample was taken.  This argument relates to the former s. 258(1)(c) of the Criminal Code , which contained what is known as the “presumption of identity”.  It provided that if the first sample was taken not less than two hours after an alleged offence, then the results of the breathalyzer tests were “conclusive proof” of the blood alcohol level at the time of the offence.  In this case, the first sample was taken at 9:24 p.m. and, therefore, for the presumption to apply, the Crown had to prove the accident occurred at or after 7:24 p.m. [23] The exact time of the accident was a matter of considerable controversy and conflicting evidence.  For example, Mr. Mirani thought the accident occurred at 3 or 4 p.m.  Mr. McNiven said it could have been around 6 or 7 p.m.  Another driver who witnessed the accident believed it happened between 7:40 and 7:45 p.m., based on the time she usually gets off work.  A firefighter said he was dispatched around 7 or 8 p.m., but believed it was closer to 8 p.m. [24] In rejecting the defence theory that the accident happened before 7:24 p.m., the judge relied on evidence of the timing and sequence of events that she found reliable.  Based on that evidence, she found that: · the 9-1-1 call was placed very shortly after the accident; · an ambulance was dispatched at 8:03 p.m. and arrived on scene at 8:08 p.m.; and · the ambulance arrived 22 to 25 minutes after the accident. In other words, she found that the accident occurred at or after 7:43 p.m., well within the two-hour window. [25] Mr. Pawson’s arguments are no more than an attempt to retry this issue on appeal.  The judge’s assessment of the reliability of the various aspects of the evidence and of the weight to be assigned to the evidence were hers to make and are entitled to deference.  It cannot be said the judge’s findings are “clearly wrong, unsupported by the evidence or otherwise unreasonable”: R. v. Clark , 2005 SCC 2 at para. 9, [2005] 1 S.C.R. 6.  Accordingly, I would not accede to this ground. [26] The last ground of appeal concerns whether the Crown was entitled to rely on the “presumption of identity” given that it was repealed when the new impaired driving regime came into force on December 18, 2018.  Under this regime, the Crown is no longer required to prove a driver’s blood alcohol level at the time of driving.  What the Crown must now prove is that the driver’s blood alcohol level is equal to or over .08 within two hours of driving.  This change made the presumption of identity redundant.  However, the transitional provisions in the new legislation are silent with respect to whether the presumption continues to apply to offences alleged to have been committed before December 18, 2018. [27] At trial, Mr. Pawson argued the Crown could not rely on the presumption and that, without it, there was no evidence of his blood alcohol level at the time of the accident; his position was that the Crown was required to call an expert witness to establish that fact.  Mr. Pawson relied on R. v. Shaikh , 2019 ONCJ 157, 49 M.V.R. (7th) 130, and R. v. Jagernauth , 2019 ONCJ 231, 49 M.V.R. (7th) 157, a case which followed Shaikh .  Both are judgments of the Ontario Court of Justice.  For its part, the Crown relied on several subsequent decisions of that court which held the presumption continues to apply in transitional cases.  The trial judge preferred the reasoning in those latter cases.  As a result, she applied the presumption and found Mr. Pawson’s blood alcohol level at the time of the accident to have been .140. [28] On appeal, Mr. Pawson continues to rely on Shaikh .  However, not only has Shaikh been widely rejected in the Ontario Court of Justice, it was held to have been wrongly decided in R. v. Persaud , 2020 ONSC 3413, a summary conviction appeal judgment upholding a conviction for driving over .08.  That case refers to two previous summary conviction appeal judgments in which Shaikh was not followed: R. v. McManus , 2019 ABQB 829, 55 M.V.R. (7th) 31, leave to appeal granted on other grounds 2020 ABCA 84, and R. v. Cameron , 2020 NSSC 58, 59 M.V.R. (7th) 82. Shaikh has also not been followed in R. v. Mombourquette , 2020 NSSC 105, 61 M.V.R. (7th) 207, and Gohier Goyer c. R. , 2020 QCCS 2881, leave to appeal granted on other grounds 2020 QCCA 1656. [29] Much judicial ink has been spent on whether the presumption of identity applies in transitional cases.  As I agree with those judgments that have held that the presumption does apply in such cases, there is no need for me to use more than a modicum of ink.  It is enough to say that I adopt the reasons in Persaud at paras. 33–60. [30] In the result, I would dismiss this appeal. [31] GOEPEL J.A. : I agree. [32] DEWITT-VAN OOSTEN J.A. : I agree. [33] FRANKEL J.A. : The appeal is dismissed. “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: French v. French, 2021 BCCA 30 Date: 20210115 Docket: CA44140 Between: Deanna Marie French Appellant (Claimant) And Bradley Stewart French Respondent (Respondent) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Hunter The Honourable Mr. Justice Grauer On appeal from:  An order of the Supreme Court of British Columbia, dated November 22, 2016 ( French v. French , New Westminster Docket E33521). Oral Reasons for Judgment Counsel for the Appellant appearing via videoconference: A. Sandhu Counsel for the Respondent appearing via videoconference: D.R. Thompson Place and Date of Hearing: Vancouver, British Columbia January 13, 2021 Place and Date of Judgment: Vancouver, British Columbia January 15, 2021 Summary: The appellant appeals a variation in a spousal support order which imputed to her income which she had earned prior to an accident that had left her unable to work for 18 months. The judge held that the consequences of the accident did not constitute a material change in circumstances. Held: Appeal allowed. The chambers judge erred in imputing pre-accident income in these circumstances. Arrears were required to be paid and the question of spousal support going forward referred to the Supreme Court for review. [1] HUNTER J.A .: This appeal of a spousal support order reaches this Court more than four years after the judgment under appeal was pronounced and nearly ten years after the final order determining support entitlement. The effect of the order under appeal was to vary an existing support order in circumstances where both parties had suffered reduced employment income, the respondent Mr. French because he had been required to change employment and the appellant Ms. Cindrich (formerly Ms. French) because she had been unable to work as a result of injuries suffered in a motor vehicle accident. [2] The issues raised by this appeal are whether the chambers judge erred in imputing to Ms. Cindrich her pre-accident income when calculating support obligations, and whether the judge erred in concluding that Ms. Cindrich’s inability to work was not a material change in circumstances justifying an adjustment in the support payments. [3] The resolution of these issues will not resolve all the questions of spousal support that may have arisen over the past four years, and the parties will need to return to the Supreme Court of British Columbia for a review of their support obligations and entitlements. This Court can, however, assist by determining whether the order under appeal represents the starting point for that review. Background [4] The parties were married in 1992, separated in 2008 and were divorced on September 5, 2011 pursuant to the order of Armstrong J., made in the Supreme Court of British Columbia under the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), on August 5, 2011. I will refer to this order as the “Final Order” as it was intended to be final subject to necessary changes to accommodate unanticipated future events. The Final Order made provision for the custody and guardianship of the parties’ two children and set child support at $1,696 per month. As well, the Final Order made the following provision for spousal support, based on Guideline Income of $32,604.55 for Ms. Cindrich and $120,000 for Mr. French: 14.       Commencing July 1, 2011 and continuing on the 1 st day of every month thereafter, the Respondent will pay spousal maintenance to the Claimant for her own support in the amount of $1,625.00 per month pursuant to the provisions of Divorce Act (Canada) and the Spousal Support Advisory Guidelines ; 15.       Commencing July 1, 2012 and for so long as the Respondent is required to pay child and spousal maintenance, the parties will exchange copies of their income tax returns and supporting documents and their notices of assessment annually; 16.       The Respondent will be at liberty to review spousal maintenance in 5 years’ time or upon the Claimant obtaining new employment or a promotion as a result of any course or program of study whichever should occur first; 17.       Either party is at liberty to review spousal maintenance at any time upon there being a material change in circumstances; [5] Over the next four years, Ms. Cindrich was employed by the City of Langley as a recreational therapist. However, on May 25, 2015, she was involved in a motor vehicle collision that prevented her from returning to her employment. She anticipated that she would in due course be awarded damages for the motor vehicle accident, which would include lost income, but at the time of the application under appeal her sole income was temporary total disability benefits from ICBC of $300 per week. She advised the chambers judge that she expected to be able to return to work in February 2017, and also that at the time of accident she was earning “about $48,000 a year.” [6] In March 2016, Mr. French lost his employment. On June 22, 2016, he brought an application to cancel spousal support and reduce child support until he could obtain employment. This application was heard in chambers on June 22, 2016. The chambers judge reduced Mr. French’s child support obligations, but required that upon obtaining new employment, Mr. French immediately adjust his child support payments to the amounts provided under the Federal Child Support Guidelines , SOR/97-175, for two children at that income. The judge did not cancel spousal support, but did suspend it pending resumption of employment by Mr. French. His order, which I will refer to as the “Suspension Order”, contains the following terms in relation to spousal support: 5.         Pursuant to the provisions of the Divorce Act (Canada) the requirement to pay spousal support in the order of Mr. Justice Armstrong is suspended pending resumption of employment by the respondent. 6.         If the respondent's new employment income is the same or greater than under his most recent contract then the spousal support will resume in the month that his employment begins in the amount required in the order of Justice Armstrong. 7.         If the respondent's income is less than under his most recent contract then the amount of spousal support payable by him will be set pursuant to the review provided in paragraph 16 of the order of Mr. Justice Armstrong. 8.         Term # 6 is subject to the outcome of the review provided in paragraph 16 of the order of Mr. Justice Armstrong. [7] Mr. French obtained new employment in late July 2016, earning $75,000 per year plus commissions. Since this amount was less than he had earned under his old contract, the amount of spousal support should have been set at a review, as directed by paragraph 7 of the Suspension Order. As well, under paragraph 4 of the Suspension Order, Mr. French was required to immediately adjust his child support payments to the amounts provided under the Federal Child Support Guidelines. [8] Instead, Mr. French began to pay $1,600 per month as combined child and spousal support. This amount represented $1,136 in child support and $464 in spousal support. He did not request the review directed by the Suspension Order. In pleadings filed in response to Ms. Cindrich’s application, Mr. French explained that it was his intention to initiate the review once Ms. Cindrich’s new income level was established. [9] Ms. Cindrich was not satisfied with this unilateral decision to pay combined child and spousal support of $1,600 per month, and on October 26, 2016, brought an application to set the Guideline amounts of child support and spousal support payable for the period from August (when Mr. French resumed employment) to October 2016 and on a go-forward basis. She asked that the Guideline Income be established at $75,000 for Mr. French and zero for herself. Ms. Cindrich, who was representing herself, also sought payment of any arrears from August to October 2016, as well as retroactive spousal support from July 2012 to April 2016 (when Mr. French lost his employment). Ms. Cindrich framed the application as seeking a variation of the Suspension Order. [10] Mr. French, who also was self-represented, filed an application response in which he requested that spousal support be reduced based on changes in circumstances. He did not accept that Ms. Cindrich should be attributed an income of zero, but did not ask that her pre-accident income be used as Guideline Income. The Chambers Judgment [11] Both parties were self-represented at the chambers hearing, which took place on November 22, 2016. The chambers judge indicated that he would be making new support orders for the parties. Mr. French’s Guideline Income was not an issue. The judge used his current salary of $75,000 per year, recognizing that this amount “may have to be adjusted” once the amount of Mr. French’s commissions were known. [12] The question of fixing Ms. Cindrich’s Guideline Income was more complicated. Ms. Cindrich submitted that her income should be set at zero because she was unable to work for medical reasons. During submissions, she advised the judge that she was receiving $300 per week from ICBC in temporary total disability benefits and expressed uncertainty as to whether those benefits should be taken into account for Guideline Income. [13] The position of Mr. French, as expressed to the judge, was that “all her current income should be attributed to the calculation” of Guideline Income. [14] The judge considered three scenarios for the determination of Ms. Cindrich’s Guideline Income: zero income (based on the fact that she was currently unable to work for medical reasons), $14,400 in income (representing an estimate of the annual value of the temporary total disability benefits), and $48,000 in income (representing her estimate of her annual income pre-accident). [15] During submissions, the judge tentatively proposed using Guideline Income of zero, with the proviso that when Ms. Cindrich was reimbursed for wage loss by ICBC, there would be an adjustment and a payment back to Mr. French. Ms. Cindrich was content with that arrangement, but Mr. French expressed a concern about the length of time it might take to resolve the ICBC claim. After submissions concluded, the judge took a break, returned and delivered an oral judgment setting Ms. Cindrich’s Guideline Income at $48,000, which resulted in spousal support of zero. [16] The judge explained his rationale for this decision in this way: [16]      I do not view the claimant’s motor vehicle accident and her consequent inability to work with the City of Langley as a change in circumstances sufficient to vary Armstrong J.’s order. [17]      Despite the fact that the claimant has been unable to work as a consequence, she expects to be able to return to work in February 2017. Liability for the accident is not an issue. If the accident is not her fault, she will presumably be able to recover her past wage losses net of taxes once her claim has resolved. If her claim for past wage loss was ignored for spousal support purposes, the respondent would be unfairly penalized for something that neither he nor the parties’ marriage played any role. [17] Child support payments were set at $1,136 per month. That amount is not at issue on this appeal. [18] Finally, the judge adjourned Ms. Cindrich’s application for retroactive adjustment of child support and spousal support going back to 2012, expressing a concern that the material was inadequate to deal with the application: [25]      For reasons I have explained during the hearing of the claimant’s application, I have determined that the claimant’s application for arrears of child support and spousal support going back to August 5, 2011, that being the date of Justice Armstrong’s final order, is premature and must be adjourned. The adjournment will allow the parties to review the Supreme Court of Canada decision in D.B.S. v. S.R.G ., 2006 S.C.C., p. 37, regarding the claim for arrears and then be prepared to make submissions on the point. The Appeal [19] Ms. Cindrich submits that the chambers judge erred in three respects: (i)       by committing a palpable and overriding error of fact in deciding that Ms. Cindrich’s income should be imputed at $48,000 and further deciding that no spousal support was payable from Mr. French to her; (ii)      by committing an error of law in misapplying the legal test for a material change of circumstances regarding Ms. Cindrich’s inability to work; and (iii)      in ruling that Ms. Cindrich’s application for arrears of child support and spousal support was premature and must be adjourned. [20] The first two grounds are interrelated and I will address them together under the heading, “The Spousal Support Order.” The third ground is relatively straightforward and will be dealt with at the conclusion of my judgment under the heading “Adjournment of Application for Retroactive Payments.” Preliminary Matters [21] At the outset of the hearing, Ms. Cindrich raised several preliminary matters. She sought to introduce additional affidavit material and exhibits that were before the chambers judge but had been omitted from the appeal books. She objected to Mr. French filing and relying on the transcript of proceedings on the basis that it contained submissions of the parties and not oral evidence as required by Rule 20 of the Court of Appeal Rules , B.C. Reg. 297/2001. She filed a brief supplementary affidavit updating the financial material that had been before the chambers judge. She also suggested (without formally applying) that the appeal should be adjourned so that the factums could be revised to reference the new material and exclude Mr. French’s transcript references. [22] Mr. French opposed the filing of the new material, primarily because it had been raised at the last minute. He took the position that a review should take place in the Supreme Court of British Columbia to determine the proper level of support, if any, that should be ordered, but also submitted that the parties were not in agreement as to the starting place for that review and would benefit from a decision of this Court as to the correctness or otherwise of the chambers judgment under appeal. [23] We declined to adjourn the appeal, but indicated that we would limit our decision to a determination of whether the chambers judge erred in the conclusions he had reached, and what consequences flowed from our decision. [24] To deal with the preliminary matters raised by Ms. Cindrich, I would allow the additional material to be filed as it was material that was before the chambers judge and should have been in the appeal book, absent agreement by the parties to the contrary. I do not consider that it was inappropriate for Mr. French to file the transcript of proceedings. Where the proceedings are brief, it is often helpful to the Court to have a transcript of those proceedings so that the judge’s order can be viewed in proper context. I would not admit the supplementary affidavit updating Ms. Cindrich’s finances. These are matters for consideration at the review of the circumstances of both parties to take place in the Supreme Court of British Columbia. The Spousal Support Order [25] Ms. Cindrich had an existing entitlement to spousal support pursuant to the Final Order. Spousal support had been set and had been paid for about five years on the basis of Guideline Income of $32,604.55 for Ms. Cindrich and $120,000 for Mr. French. Mr. French (but not Ms. Cindrich) had the express right in the Final Order to seek a review of the spousal support after five years, namely, after September 2016. [26] Two intervening events occurred before the review authorized in the Final Order could take place. First, Ms. Cindrich was injured in a motor vehicle accident in May 2015 and was unable to return to work. At the time of the chambers hearing, Ms. Cindrich had been off work for 18 months. Mr. French in the meantime had lost his employment in March of 2016 and had obtained an order that his spousal support obligations set out in the Final Order be suspended until he could resume employment. If he found employment at an income level less than he had been making, the Suspension Order provided that his payment obligation under the Final Order should be determined at the review contemplated by that order. [27] This was the status of the parties at the time of the chambers application in November 2016. The nature of the application before the chambers judge is not entirely clear. The Suspension Order had directed that if Mr. French obtained employment at a reduced salary, the new amount of spousal support would be set at a review. At a review, it is not necessary to show a material change of circumstances: Jordan v. Jordan , 2011 BCCA 518 at paras. 28–33. However, neither party applied for a review. Ms. Cindrich did not think she was entitled to apply for a review, given the terms of the Final Order. Mr. French stated that he intended to apply for a review once Ms. Cindrich’s employment status was known. The judge treated Ms. Cindrich’s application as a variation application, and the parties have approached this appeal on that footing. [28] The two questions that arise on this appeal are whether the chambers judge erred in concluding that Ms. Cindrich’s injuries did not constitute a material change of circumstances justifying a reduction in the Guideline Income used in the Final Order, and the related question whether the judge should base Ms. Cindrich’s Guideline Income on imputed income at her pre-accident level. [29] Both of these questions turn on whether Ms. Cindrich could have returned to work before November 2016. If so, the judge could have been justified in discounting the length of time she was off work and imputing income to her that she could have earned, and could earn into the future. It was open to the judge to come to that conclusion given the thin record of the impact of Ms. Cindrich’s injuries. But the judge did not do so. The judge expressly accepted “the fact that the claimant has been unable to work as a consequence” of her injuries. That being so, I can see no basis for concluding that the effects of the motor vehicle accident did not constitute a material change in circumstances, nor can I see any principled basis on which the judge could attribute her pre-accident income to reduce her entitlement to spousal support to zero. [30] A change of circumstances sufficiently material to justify a variation of a spousal support order is one that, if known at the time, would likely have resulted in different terms. The change must have some degree of continuity and not be merely a temporary set of circumstances: L.M.P. v. L.S ., 2011 SCC 64 at paras. 32, 35. An injury that results in an inability to work for 18 months has a sufficient degree of continuity to meet this requirement. The judge may have been influenced by Ms. Cindrich’s optimistic assessment that she expected to be back at work by February 2017, but at the time of the application (and for many months prior), it is apparent on the judge’s findings that her financial circumstances had changed materially, in the same way that Mr. French’s financial circumstances changed materially when he lost his employment in March 2016, albeit for only four months. [31] Under s. 17(4.1) of the Divorce Act , before making a variation order in respect of a spousal support order, a judge must be satisfied that a change in the condition, means, needs or other circumstances of a spouse has occurred since the making of the spousal support order. I conclude that the judge erred in principle by failing to consider the length of time Ms. Cindrich had been unable to work in determining that there had been no material change in Ms. Cindrich’s means and other circumstances. [32] I am also satisfied that the judge erred in imputing income of $48,000 in calculating Ms. Cindrich’s Guideline Income. Ms. Cindrich has argued that there was no basis for the judge selecting the amount of $48,000 to represent her pre-accident income, but I would not give effect to that submission. Ms. Cindrich told the judge that her earnings from employment at the time of her accident were “about $48,000,” and there was evidence before the judge that her income in 2013 and 2014 was in that range. [33] The problem with the judge’s imputation of income was not, in my view, that he selected the wrong number for pre-accident income, but that there was no proper basis to use pre-accident income in the circumstances of this case. [34] Under the Spousal Support Advisory Guidelines , income is calculated as in the Federal Child Support Guidelines . Section 19(1) of the Federal Child Support Guidelines states that income can be imputed to a spouse in various circumstances, including where the spouse is intentionally under-employed or unemployed. The judge’s finding that Ms. Cindrich was unable to work as a consequence of her injuries negates any conclusion that, at least as of November 2016, she was intentionally underemployed. [35] The judge’s real concern, as expressed in para. 17 of his judgment, seems to have been that if Ms. Cindrich received support based on her current income, she might be overcompensated when (or if) she was reimbursed for wage loss through her ICBC claim. This possibility, which was no more than speculative as of November 2016, could have been accommodated by including a term in the order similar to the term in the Suspension Order requiring Ms. Cindrich to disclose if she was subsequently compensated for wage loss though her damage claim, and permitting Mr. French to apply for a retroactive adjustment. But in my view, the prospect of reimbursement at some time in the distant future does not represent a proper basis for imputing income to someone who has not received that income, and who the judge has found is not able to earn that income due to her medical condition. [36] Mr. French submits that there is support for the judge’s approach in two judgments from the Supreme Court of British Columbia, Neufeld v. Neufeld , 2001 BCSC 1197, and M.K. v. R.A.S ., 2004 BCSC 1798. However, in both of these cases, the payor spouse had already received the damage award and the issue was one of accounting for that part of the damage award that related to loss of earning capacity. That is a far different situation from that at the time of Ms. Cindrich’s application in November 2016. It was not known at that time whether there would be a damage award and if so, how much would be allocated to lost earnings. Again, the judge may have been influenced by Ms. Cindrich’s optimism about her litigation prospects, but it is not unknown for litigants to have a rosier view of their likelihood of success than circumstances merit. [37] In any event, I am satisfied that the judge made an error in principle by setting Ms. Cindrich’s Guideline Income at her pre-accident level on the expectation that at some point in the future she would “presumably” be compensated for the loss of that income. Mr. French had quite properly not requested that result, but had asked only that the Guideline Income be set at the actual amount she was receiving, rather than zero income as she was requesting. That is the order that was supportable on the record before the judge, supplemented by the parties’ statements at the hearing. [38] As I have indicated, the chambers judge reviewed three options for setting Ms. Cindrich’s Guideline Income. He calculated that utilizing her actual income at the time of the application would result in a requirement for Mr. French to pay spousal support in the amount of $822 at the mid-range level. That amount is roughly half what Ms. Cindrich had been receiving under the Final Order. The reduced amount reflects Mr. French’s significantly lower income as at November 2016. But it is approximately twice what she had been receiving since August 2016, and properly reflects her loss of employment income after her accident. In my opinion, that is the order that ought to have been made, to operate until the review that was authorized in the Final Order and expressly contemplated in the Suspension Order could take place. [39] For these reasons, I am satisfied that paragraph 3 of the order under appeal must be set aside. [40] Pursuant to s. 9(1) of the Court of Appeal Act , this Court may make any order that could have been made by the court appealed from. I would substitute for paragraph 3 the following paragraph: 3.         Pending the review contemplated by the orders of this Court dated August 5, 2011 and June 22, 2016, the respondent will pay spousal support to the claimant in the amount of $822 per month, based on Guideline Income of $14,400 for the claimant and $75,000 for the respondent, effective August 1, 2016. [41] An order in these terms would result in arrears in support payments between August and November 2016 of $1,432, representing the difference between the $464 that Mr. French paid during those months and the amount that ought to have been paid given the parties’ respective incomes during that period. [42] As Mr. French stated his intention to the chambers judge of initiating a review in accordance with the Final Order and Suspension Order, I consider it appropriate to assume that the review would have taken place by May of 2017. Arrears in support payments from December 1, 2016 to May 1, 2017 on the basis of an $822 monthly obligation amount to $4,932. Total arrears to May 1, 2017 are $6,364. Those arrears should be paid now. [43] As to Mr. French’s obligations beyond May 1, 2017, I consider that this Court does not have adequate information, nor is it our role, to determine the amount, if any, that should be paid in spousal support after that date. I would remit this case back to the Supreme Court of British Columbia and direct that the review contemplated in the Suspension Order be conducted. Mr. French is directed to initiate this review, not later than March 1, 2021. Adjournment of Application for Retroactive Payments [44] The final ground of appeal relates to paragraph 4 of the order under appeal, which adjourned Ms. Cindrich’s application for retroactive adjustment of the spousal support payments between July 2012 and April 2016. The judge adjourned this application because he was not satisfied that the parties were ready to address the test for retroactive support orders set out in D.B.S. v. S.R.G ., 2006 SCC 37. [45] I would not interfere with this order. It was within the discretion of the chambers judge to adjourn the application if he concluded that the parties were not properly prepared to deal with the legal requirements for such an order. Ms. Cindrich could have brought that application on for hearing at any time in the last four years, and can do so now if so advised. Disposition [46] For these reasons, I would allow the appeal and order as follows: 1.       Paragraph 3 of the order under appeal is set aside and replaced with the following: 3.         Pending the review contemplated by the orders of this Court dated August 5, 2011 and June 22, 2016, the respondent will pay spousal support to the claimant in the amount of $822 per month, based on Guideline Income of $14,400 for the claimant and $75,000 for the respondent, effective August 1, 2016. 2.       Mr. French shall pay Ms. Cindrich the sum of $6,364, representing arrears in spousal support from August 1, 2016 to May 1, 2017. 3.       Ms. Cindrich’s claims for spousal support after May 1, 2017 are remitted to the Supreme Court of British Columbia to be considered at the review contemplated by the orders of this Court made August 5, 2011 and June 22, 2016, such review to be initiated by Mr. French no later than March 1, 2021. [47] NEWBURY J.A. : I agree. [48] GRAUER J.A. : I agree. [49] NEWBURY J.A. : The appeal is allowed to the extent given in Mr. Justice Hunter’s reasons. To emphasize, we are expecting the review in the Supreme Court of British Columbia will be initiated no later than March 1, 2021. “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: McDermott v. Thompson, 2021 BCCA 23 Date: 20210115 Docket: CA46949 Between: Kevin Franklin McDermott Appellant (Claimant) And Karen Gillian Thompson Respondent (Respondent) Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Goepel The Honourable Madam Justice DeWitt-Van Oosten On an application to vary: An Order of the Court of Appeal for British Columbia (in Chambers), dated October 14, 2020 ( McDermott v. Thompson, Vancouver Docket CA46949). Oral Reasons for Judgment The Appellant, appearing in person (via videoconference): K.F. McDermott Counsel for the Respondent (via videoconference): M.G. Perry Place and Date of Hearing: Vancouver, British Columbia January 11, 2021 Place and Date of Judgment: Vancouver, British Columbia January 15, 2021 Summary: The appellant applies to vary an order made by a judge of this Court dismissing his application for leave to appeal a Family Law Act protection order made by a Supreme Court judge that precludes him from having access to his child.  The dismissal was based on the fact that the appellant had been charged with assaulting the child and was subject to a no-contact undertaking.  Held: Application dismissed.  New evidence that the criminal charge against the appellant had been stayed constitutes a material change to the circumstances which underpinned the chambers judge’s decision.  However, a fresh consideration of whether leave to appeal should be granted results in the same outcome.  The interests of justice do not warrant granting leave to appeal as the protection order permits the appellant to apply in the Supreme Court to set the order aside and the hearing of such an application is underway. [1] FRANKEL J.A. : This is a high-conflict family law case commenced by the appellant, Kevin Franklin McDermott, in October of 2011.  Mr. McDermott now applies, pursuant to s. 9(6) of the Court of Appeal Act , R.S.B.C. 1996, c. 77, to vary an order of Justice Abrioux, sitting in chambers.  That order dismissed Mr. McDermott’s application for leave to appeal two orders made by Justice Mayer of the Supreme Court of British Columbia.  Those orders concern Mr. McDermott’s access to the child he and the respondent, Karen Gillian Thompson, had together.  That child is now ten years old and has grown up primarily in Ms. Thompson’s care. [2] On May 5, 2020, Ms. Thompson applied for a protection order under s. 183(3)(a) of the Family Law Act , S.B.C. 2011, c. 25.  She also sought to vary earlier orders granting Mr. McDermott parenting time.  At that time, the trial was scheduled to commence on July 2, 2020, for four weeks. [3] In the affidavit Ms. Thompson swore in support of her application, she alleged Mr. McDermott had been emotionally and physically abusive to the child on a number of occasions.  The most recent incident was alleged to have occurred on April 30, 2020.  Ms. Thompson deposed that when she picked the child up from Mr. McDermott’s home that day, the child told her Mr. McDermott had assaulted him.  She reported the matter to the police.  This led to Mr. McDermott being arrested for assault in early May.  He was released on an undertaking with the condition that he not have any direct or indirect contact with the child.  Later, an information was sworn charging Mr. McDermott with assault. [4] On May 14, 2020, the application for a protection order came before Justice Mayer.  Mr. McDermott, who had been unable to prepare response materials, unsuccessfully sought an adjournment.  On the basis of the limited materials before him, Justice Mayer considered it appropriate to make what he described as “an interim protection order … on a without-prejudice basis”, pending a full hearing.  That order restricts Mr. McDermott’s ability to communicate with the child or be in the child’s presence.  A formal order was entered that day.  As provided for in s. 183(4) of the Family Law Act , the order states it will expire in one year. [5] On May 20, 2020, Mr. McDermott filed an affidavit in which he disputed all the allegations. [6] The hearing resumed on May 21, 2020.  At the conclusion of that hearing Justice Mayer ordered the continuation of the protection order and stayed the parenting-time orders while that order was in effect.  In giving Mr. McDermott leave to apply to set the protection order aside, Justice Mayer said this: [21]      I will just make an additional order which is that Mr. McDermott is at leave to bring an application, if he is successful in gathering additional relevant evidence, to apply to set aside this protection order on one condition, that is, that any such application to set aside this protection order will not be set down prior to the conduct of a case management hearing before [the case management judge] for a number of reasons. [22]      First of all, there is an issue with respect to the completion and/or issuance of the s. 211 report which I understand has been completed by Dr. England pursuant to previous orders of this Court, but has not been released as a result of non-payment.  That is an issue to be discussed, in my view, before [the case management judge].  It is one thing to argue that further evidence would be of assistance to the court in determining whether or not a protection order is necessary.  It is another thing to make that argument when at the same time taking steps which arguably have resulted in that report not being issued.  I am not certain if that is the case, Mr. McDermott. I do not know if that is the case, but it may be the case, and this is something that [the case management judge] will be able to work out at a case management conference. [7] The May 21st order has not been entered because the parties have been unable to agree on its terms.  The dispute is over the basis on which Mr. McDermott can apply to set the May 14th order aside.  The draft order prepared by Ms. Thompson’s counsel states: 2.   The Claimant is granted leave to bring an application to set aside this court’s May 14, 2020 Protection Order on the basis of new evidence, but subsequent to a case management hearing with the case management Justice. Mr. McDermott’s position is that the order should use the words “additional relevant evidence” as per para. 21 of Justice Mayer’s May 21st reasons.  However, as discussed below, in light of the position on the admissibility of evidence taken by Ms. Thompson on this application, it appears the parties’ differences are only a matter of semantics. [8] The trial did not proceed in July of 2020; it is now set for July of 2021. [9] On August 4, 2020, Mr. McDermott filed a notice of appeal from the May 14th and 21st orders and an application for a no fees order.  On August 25, 2020, a judge of this Court granted a no fees order and directed that the notice of appeal stand as an application for leave to appeal.  That judge expressed the view that one of Mr. McDermott’s three proposed grounds of appeal is arguable.  On September 23, 2020, Mr. McDermott filed an amended application for leave to appeal setting out six grounds, the first being the one said to be arguable. [10] On October 5, 2020, Mr. McDermott filed an application to settle the terms of the May 21st order.  That hearing has yet to take place because the parties have been unable to agree on a mutually convenient date. [11] The chambers judge heard the leave application on October 8, 2020, and gave oral reasons dismissing it on October 14, 2020.  He accepted that arguable grounds exist with respect to the protection order.  However, he concluded it was not in the interests of justice to grant leave because of the no-contact undertaking.  In this regard, he stated: [27]      First of all, Mr. McDermott’s undertaking to not have any contact with his child remains in force and, in my view, is dispositive of this application.  An appeal to set aside the Protection Order and reinstate parenting time would serve little purpose and would be contrary to the interests of justice. [28]      Furthermore, I am not persuaded that an appeal would be an efficient use of the Court’s or the parties’ resources.  I am advised by the parties that following his memorandum, [the case management judge] has set down a case management conference for Wednesday, October 14, 2020, that is today, at which time he will apparently establish a schedule for the hearing of Mr. McDermott’s application to set aside the Protection Order as contemplated in the May 21, 2020 order. [29]      Accordingly, I am of the view there is no benefit to be gained by permitting Mr. McDermott to pursue proceedings in this Court in relation to the May 21 order when there is a procedure available to obtain essentially the same relief in the Supreme Court.  I do recognize, however, that the appellant’s position in this Court is that the Protection Order was made on an improper legal basis.  But to grant leave would likely negatively affect, that is “hinder” the broader issues between the parties, namely the hearing of the application to set aside the Protection Order in the Supreme Court and ultimately a trial of the action which is now under renewed case management. [32]      In any event, while there may well be a real issue as to whether an appeal would be “bound to fail,” the issue is essentially moot as long as Mr. McDermott is subject to the no-contact undertaking, at least during the timeframe of the upcoming case management and the hearing of his application in the Supreme Court to set aside the Protection Order. [12] On October 20, 2020, Mr. McDermott filed an application to vary the chambers judge’s order.  He seeks an order granting leave to appeal the May 14th and 21st orders and directing that the appeal be heard on an expedited basis. [13] As disclosed in an affidavit Mr. McDermott filed on November 3, 2020, the Crown entered a stay of proceedings on the assault change on October 31, 2020.  It did so based on a recording Mr. McDermott made of his April 30, 2020 parenting time that disclosed the assault did not happen.  As a result of the stay, Mr. McDermott is no longer bound by the undertaking.  Ms. Thompson accepts the child misled her and others in regard to Mr. McDermott engaging in acts of physical violence on this and other occasions. [14] Mr. McDermott has filed an application in the Supreme Court seeking to set the protection order aside.  The application commenced before the case management judge on December 11, 2020.  Following a daylong hearing it was adjourned to January 28, 2021, for continuation.  On that application, Mr. McDermott relies on recordings he made of many of his parenting times with the child, including the one from April 30, 2020.  In addition, he relies on a Family Law Act s. 211 report prepared by psychologist Dr. Rebecca St. Clere England in January 2020, which had been completed but not released to the parties when this matter was before Justice Mayer.  In that report, Dr. England recommends the child be equally parented by Mr. McDermott and Ms. Thompson.  Dr. England further opines that she does not have concerns regarding family violence but is concerned the child has developed an unhealthy alignment with Ms. Thompson, and is at risk of becoming alienated from Mr. McDermott. [15] The standard of review on an application to vary an order made by a chambers judge in this Court is as set out by Justice Willcock in Animal Welfare International Inc. v. W3 International Media Ltd. , 2015 BCCA 148, 66 C.P.C. (7th) 309: [9] On an application to discharge or vary an order of a justice in chambers, the applicant must establish there has been an “error in principle”; the justice was “wrong in the legal sense”; the justice misconceived the facts; or relevant information was not brought to the justice’s attention: East Broadway Residents Association v. Vancouver (City) , 2000 BCCA 657; Haldorson v. Coquitlam (City) , 2000 BCCA 672; and McKnight v. Hutchison , 2012 BCCA 510. Mr. McDermott contends the chambers judge made both factual and legal errors. [16] There can be no question that the undertaking was central to the chambers judge’s decision to refuse leave.  However, that undertaking is no longer in force.  This is new evidence that should be admitted and considered on this application: Animal Welfare International Inc. at paras. 10–12.  As the elimination of the undertaking constitutes a material change in circumstances, Mr. McDermott’s application for leave warrants fresh consideration. [17] Even though the undertaking is no longer in force, and notwithstanding the existence of at least one arguable ground, I am not persuaded that leave should be granted.  I say this because the interests of justice are the overarching concern on an application for leave: K.F.M. v. K.G.T. , 2020 BCCA 10 at paras. 11–12, 35 R.F.L. (8th) 74. [18] As the chambers judge noted at para. 23 of his reasons, protection orders are a form of “interim relief”, which is why leave to appeal is required.  This Court is generally reluctant to interfere with interim orders in family law matters: K.F.M. at paras. 13–14.  Apposite is the following from the judgment of Justice Huddard in F.(G.F.) v. B.(C.L.) , 2003 BCCA 382 (Chambers), 184 B.C.A.C. 1: [10]      The jurisdiction of this Court to vary an interim order for custody or for most orders made under the Family Relations Act is very limited.  All of these orders are discretionary.  It is only in exceptional circumstances, where there is a clear reason to interfere that this Court will do so.  In a case which Mr. F. so properly provided to me ( Testawitch v. Farquhar [1997] B.C.J. No. 2866), Mr. Justice Hall commented that the management of these cases is usually best left to the trial court.  It is only when a final resolution of the matter has been arrived at in the trial court that it will usually be appropriate for this Court to hear the matter.  Even then it is rare for this Court to interfere with the decision of a trial judge after the trial.  This Court has recently been told by the Supreme Court of Canada ( van de Perre v. Edwards [2001] 2 S.C.R. 1014), we should not interfere with a decision of a custody matter except in the most exceptional of circumstances. [19] Also pertinent is the following from Gill v. Delbeck , 2020 BCCA 37 (Chambers), in which Justice Garson refused an application by the father for leave to appeal an interim order granting the maternal grandparents time with the children, the mother having died: [21] As stated in Munro v. Munro , 2015 BCCA 530 at para. 18 (Chambers), the “values of efficiency and proportionality are relevant to the interests of justice.”  The question is whether the potential benefit of a successful appeal justifies the expense that both parties will incur if it proceeds, given that the appeal will have no effect on the final order made at trial.  In my view, it does not. [20] In his submissions, Mr. McDermott emphasized that his position is that a protection order should never have been granted and expressed concern the case management judge might not have the ability to make that determination.  He submits that if the order is set aside only on a going-forward basis, then the stigma associated with it having been granted in the first place will remain.  Further, based on the terms of the May 21st draft order prepared by Ms. Thompson’s counsel, Mr. McDermott is concerned Ms. Thompson may object to the admissibility of some of the evidence he seeks to have the case management judge consider because it is “fresh” as opposed to “new” evidence: see Stav v. Stav , 2012 BCCA 154 at para. 30, 18 R.F.L. (7th) 326, leave to appeal ref’d [2012] 3 S.C.R. xiii. [21] With respect to the scope of the review now taking place in the Supreme Court, Ms. Thompson submits the case management judge is entitled to consider whether a protection order should have been granted in the first place (i.e., that judge is entitled to consider the matter de novo ).  In the circumstances of this case, I agree.  It is clear the protection order was made on a most limited record.  The case management judge, based on the fuller record before him, can properly determine whether it should have been made.  That judge is not limited to determining whether there has been a material change in circumstances that makes that order no longer necessary. [22] Ms. Thompson also clarified her position with respect to some of the evidence Mr. McDermott wishes the case management judge to consider.  More specifically, Ms. Thompson said she does not object to the admissibility of: (a) the parenting-time recordings; (b) Dr. England’s report; and (c) evidence the assault charge was stayed.  What weight the case management judge should give to any of the evidence is, of course, a matter for argument. [23] Given that the application before the case management judge will be continuing in just under two weeks, I have concluded that the time and resources of the parties, not to mention the resources of the judicial system, are best spent litigating whether the protection order should be set aside in the Supreme Court.  Put otherwise, in the circumstances of this case, it is not in the interests of justice to grant leave. [24] I would urge the parties to settle the terms of the May 21st order prior to the resumption of the hearing before the case management judge. [25] In the result, I would dismiss this application.  I would order that the parties bear their own costs. [26] GOEPEL J.A. : I agree. [27] DEWITT-VAN OOSTEN J.A. : I agree. [28] FRANKEL J.A. : The application is dismissed and there will be no order as to costs. “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: The Owners, Strata Plan VR29 v. Kranz, 2021 BCCA 32 Date: 20210118 Docket: CA47027 Between: The Owners, Strata Plan VR29 Respondent (Petitioner) And Fred Kranz Appellant (Respondent) Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Fitch The Honourable Madam Justice Griffin On appeal from: An order of the Supreme Court of British Columbia, dated September 17, 2020 ( The Owners, Strata Plan VR29 v. Kranz and others , Vancouver Docket S197870). Oral Reasons for Judgment Counsel for the Appellant (via videoconference): J.D. Shields Counsel for the Respondent (via videoconference): J.M. Chatten Place and Date of Hearing: Vancouver, British Columbia January 18, 2021 Place and Date of Judgment: Vancouver, British Columbia January 18, 2021 Summary: Appeal brought from a judge’s Chamber’s decision to adjourn a petition hearing to permit the filing of additional evidence by the petitioner. Held: appeal quashed. The substance of the order was an adjournment, which is a limited appeal order for which leave to appeal is required pursuant to Court of Appeal Rule 2.1(e). GRIFFIN J.A. : Introduction [1] This proceeding is an appeal from a decision made in a petition proceeding involving a dispute between the respondent Strata Corporation and one of the owners of a residential condominium unit in the Strata complex, the appellant Mr. Kranz. [2] The matter before us today is a preliminary matter, having to do with whether or not the order sought to be appealed is appealable, and if it is, whether the appeal ought to be stayed. Background [3] The Strata filed a petition on July 15, 2019 seeking a number of orders against Mr. Kranz, including judgment for just over $78,000 allegedly owed for strata fees and special levies; legal fees; and for an order to sell the strata lot owned by Mr. Kranz. [4] The Strata filed one affidavit, the Affidavit #1 of Geoffrey Langford (the “Langford Affidavit”), in support of its petition. Mr. Langford was identified as a co‑president of the Strata council and an owner of a unit in the same building. The Langford Affidavit referred to a number of historical facts regarding the management of the Strata, its fees and levies, and its several disputes with Mr. Kranz. A great part of the history preceded Mr. Langford’s ownership of a unit in the building. The affidavit attached, as supportive evidence, various Strata records, correspondence from the Strata’s management company and lawyers, a Land Title search to prove Mr. Kranz’s ownership of his unit and liens filed against the title, and reasons for judgment dealing with past disputes between the Strata and Mr. Kranz, among other things. [5] Mr. Kranz opposed the petition. The response to petition did not seek to rely on any evidence that would contradict the facts relied upon in the petition, and Mr. Kranz did not file any evidence. Rather, the response simply stated: “[t]here is no admissible evidence to prove the Petition, or meet the high onus on the Petitioner, and the Petition must be dismissed” and “[t]he Langford Affidavit is all but inadmissible”. The response to petition then listed “ inter alia ”, 37 cases without any indication of what point in the cases was relevant. [6] At the hearing of the petition on September 8, 2020, Mr. Kranz advanced objections to the admissibility of the Langford Affidavit, taking the position that most of it was inadmissible hearsay. [7] The Strata relied on a number of exceptions to hearsay. [8] The Strata also argued that if the judge was to rule that parts of the Langford Affidavit were inadmissible, the petition should be adjourned and leave granted for it to file additional affidavit evidence, and for Mr. Kranz to file responsive affidavits. [9] Mr. Kranz argued that the judge should not grant leave to the Strata to file additional evidence, it being the duty of the petitioner to put its full case forward. He also argued that allowing additional affidavits would split the petitioner’s case. [10] Only one day was set aside for the hearing, and it was taken up with hearing the evidentiary objections. [11] In reasons for judgment issued September 17, 2020, the judge noted that because a final order was being sought, hearsay evidence was presumptively inadmissible, citing 0690860 Manitoba Ltd. v. Country West Construction Ltd. , 2009 BCCA 535 at para. 33. While some of the evidence objected to was simply background and normally would not be controversial, the judge held that Mr. Kranz was entitled to put the petitioner to strict proof of the facts. Some but not all of the documents may have qualified as subject to recognized exceptions to hearsay evidence , such as the business records exception and public documents exception, but not all of the formal steps had been taken by the petitioner to certify the latter. The judge found that the principled exception to hearsay evidence was not made out. The judge accepted the submissions of Mr. Kranz that much of the Langford Affidavit was inadmissible. [12] The judge noted that Mr. Kranz’s materials were also defective. The judge observed that Mr. Kranz’s response to petition took broad positions as to the inadmissibility of evidence and listed 37 cases, without explanation as to the basis for his objections or the particular point being relied upon in the cases. [13] The judge considered Mr. Kranz’s objection to her granting leave to file additional evidence, but ruled she did have that broad discretion and should exercise it, citing The Owners, Strata Plan VR 390 v. Harvey , 2014 BCSC 2580 and Sharp v. Royal Mutual Funds Inc. , 2019 BCSC 2357. [14] The judge held: [59]      I must balance the need for strict compliance with the substantive rules of evidence against the public interest in ensuring that cases are heard on their merits. [60]      The court has discretion to craft its own processes, including discretion to allow the petitioner to correct its shortcomings in the evidence. In Hayes Forest Services Limited v. Krawcyzk, 2006 BCCA 156, a criminal contempt case, the Court of Appeal agreed with Justice Harvey that the court has discretion on how to proceed, subject to the principles of fairness: para. 55. This is consistent with the court’s truth seeking function. [61] Since I allowed the respondent to proceed with his objection to the affidavit despite the deficiencies in his pleading, in the interest of fairness I should also allow the petitioner to overcome the deficiencies in the affidavit . [62]      I am bolstered by the fact that I see no prejudice in allowing the petitioner to file additional affidavits. I do not accept that granting leave to allow the petitioner to file additional affidavits is splitting its case in this situation. The petitioner is not filling in “ evidentiary gaps ” as referred to in the cases relied upon by the respondent: British Columbia (Director of Civil Forfeiture) v. Vu, 2020 BCSC 106; The Owners, Strata Plan KAS 2971 v. American Bankers Insurance Company of Florida , 2016 BCSC 581. The petitioner is not being permitted to “ patch up ” its case under the guise of reply: Slaughter at para. 56. The respondent has not provided the petitioner with his argument on the merits of the case, so the petitioner has no greater indication about what needs “ patching ” up than it did prior to filing Mr. Langford’s affidavit. It will simply be correcting the form of the same evidence already provided to the court through admissible affidavits . [63] The hearing of the petition on its merits has not commenced . The respondent will be in a position to provide responsive affidavits and to amend his response to petition if he believes this is required. [64] Rule 1‑3 is overarching. The stated objective is to find a just, speedy, and inexpensive way to determine every proceeding on its merits. It is not in the interests of justice that I not hear the petition on its merits based on these admissibility issues with the affidavit . [Emphasis added.] [15] In the result, the judge neither granted nor dismissed the petition. She adjourned the hearing of the petition and granted leave to the Strata to file new or revised affidavits to correct the deficiencies. She also granted leave to Mr. Kranz to file responsive affidavits and an amended response to petition. The judge made clear that the Strata was not to bolster its evidence in the process, in the sense that the new evidence should be supporting what was said in the Langford Affidavit, not going into new areas. [16] Mr. Kranz drafted an order, but the Strata resisted approving it on the grounds that the judge simply made an evidentiary ruling and not an order. [17] After a hearing to determine whether the formal order should be entered, the judge issued her ruling regarding the form of order on October 27, 2020. She declined to wade into the parties’ dispute about whether or not her ruling was merely a mid‑proceeding evidentiary ruling or an order, quite correctly leaving it for this Court to characterize the nature of her decision. She observed that signing the order was not determining the question. [18] In her ruling regarding the form of order, the judge noted at para. 3 Mr. Kranz’s position that this was “a decision with respect to practice issues: the order that the matter be adjourned and the order that new affidavits may be filed prior to the hearing of the petition” (emphasis added). At para. 10 of her ruling, she observed that the “decision deals not only with an evidentiary ruling on the validity of evidence in affidavits, but also allows the filing of new affidavits and adjourns the hearing of the petition so this can occur” (emphasis added). She endorsed the form of order from which Mr. Kranz has brought his appeal. [19] The terms of the entered order read that: THE HEARING OF the Petition coming on for hearing …: 1.        THIS COURT ORDERS that the Petitioner has leave to refile the Affidavit of Jeffrey Langford and/or file other affidavits to support the Petition. 2.        THIS COURT FURTHER ORDERS that the Respondent Fred Kranz may file response affidavits and an Amended Response to Petition. 3.        THIS COURT FURTHER ORDERS that costs of this hearing are to be determined at a later date. [20] As mentioned, Mr. Kranz has filed this appeal from the entered order. The relief he seeks on appeal is dismissal of the petition. [21] The Strata brought an application to dismiss the appeal for want of jurisdiction, or in the alternative for a stay of the appeal. This matter came before a single justice, who referred it to a division of this Court to determine whether the entered order is appealable, and, if so, whether a stay ought to be granted. [22] This division is therefore not considering the question of whether or not the judge below made any error in her decision. The Parties’ Positions [23] In support of its position that the order below is not appealable, the Strata relies on Cambie Surgeries Corporation v. British Columbia (Attorney General) , 2017 BCCA 287. In that case, this Court held that mid‑trial evidentiary rulings are not orders that can be appealed while the trial is ongoing, and instead are rulings that should be appealed as a ground of appeal upon conclusion of the trial. The Strata argues that the same logic applies to mid‑petition evidentiary rulings decided on chambers applications. [24] Further, the Strata argues that the substance of the order was an adjournment, for which leave to appeal is required. [25] In the alternative, the Strata submits that the appeal should be stayed pending a final decision on the merits of the petition. The Strata relies on s. 10 of the Court of Appeal Act , R.S.B.C. 1996, c. 77 (“ CA Act ”), and Hollander v. Nelson , 2013 BCCA 83. [26] Mr. Kranz relies on Eastside Pharmacy Ltd. v. British Columbia (Minister of Health) , 2019 BCCA 60. That case distinguished Cambie Surgeries as dealing with a trial of an action, not a petition proceeding. This Court in Eastside Pharmacy allowed an appeal from a ruling made during a petition proceeding. The ruling had allowed an application pursuant to R. 22‑1(4)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 (“ SC Rules” and individually “SC Rule”) for cross‑examination of an affiant. [27] Mr. Kranz submits that the issue on his appeal from the judge’s order will be a jurisdictional issue. He submits that the judge did not have jurisdiction to permit the Strata to file additional evidence. Analysis [28] In order to solve this procedural puzzle, it is necessary to: a) review the basis for this Court’s jurisdiction on appeals; and b) consider the authority for and substance of the decision or order of the judge. Court of Appeal Jurisdiction on Appeals [29] In Cambie Surgeries , this Court referred to two unassailable propositions. One is that this Court is a creature of statute. This means that the authority to appeal must be found in either the CA Act or another statute conferring jurisdiction. The other is that appeals are brought from the formal order entered in the court appealed from, not from the reasons for judgment that gave rise to the order. [30] This Court’s jurisdiction to entertain appeals from decisions of the Supreme Court is established by s. 6(1) of the CA Act , dealing with appeals as of right; and s. 7, dealing with limited appeal orders, for which leave to appeal is required. The latter are prescribed under R. 2.1 of the Court of Appeal Rules , B.C. Reg. 297/2001 (“ CA Rules ” and individually “CA Rule”). [31] Section 6(1)(a) of the CA Act provides: 6(1)      An appeal lies to the court (a) from an order of the Supreme Court or an order of a judge of that court, [32] An order is defined in s. 1 of the CA Act : 1 “order” includes (a)     a judgment, (b)     a decree, and (c)     an opinion, advice, direction, determination, decision or declaration that is specifically authorized or required under an enactment to be given or made; [33] Not every decision or pronouncement of a judge is an “order” for purposes of appeal. Even if the decision was documented in the record of the Supreme Court as an “order”, that does not necessarily mean the decision gave rise to an appealable order within the meaning of the CA Act . What governs is the substance, not the form: Cambie Surgeries at paras. 30, 39, citing First Majestic Silver Corp. (Re) , 2015 BCCA 452 at paras. 34–35 . [34] This Court may look behind the wording of an order, which might not properly reflect its true substance: Tri‑City Capital Corp. v. 0942317 B.C. Ltd. , 2016 BCCA 407 at paras. 22–24 (Smith J.A. in Chambers). [35] Section 7 of the CA Act provides: 7 (1)     In this section, “limited appeal order” means an order prescribed under the rules as a limited appeal order. (2)     Despite section 6(1) of this Act, an appeal does not lie to the court from a limited appeal order without leave being granted by a justice. [36] Limited appeal orders, from which leave to appeal is required, are prescribed by R. 2.1 of the CA Rules : 2.1    The following orders are prescribed as limited appeal orders for the purposes of section 7 of the Act: (a)     an order granting or refusing relief for which provision is made under any of the following Parts or rules of the Supreme Court Civil Rules: (i)       Part 5 [Case Planning] ; (ii)      Part 7 [Procedures for Ascertaining Facts] , other than Rule 7‑7 (6) [application for order on admissions] ; (iii)      Rule 9‑7 (11), (12), (17) or (18) [adjournment or dismissal, preliminary orders, orders and right to vary or set aside order] ; (iv)     Part 10 [Property and Injunctions] ; (v)      Part 11 [Experts] ; (vi)     Rule 12‑2 [trial management conference] ; (vi.1)  Rule 18‑1 [inquiries, assessments and accounts] ; (vii)     Rule 21‑7 [foreclosure and cancellation] ; (b)     an order granting or refusing relief for which provision is made under any of the following Parts or rules of the Supreme Court Family Rules: (i)       Part 5 [Financial Disclosure] , other than Rule 5‑1 (28) (b) and (c) [relief] ; (ii)      Rule 7‑1 [judicial case conference] ; (iii)      Part 9 [Procedures for Obtaining Information and Documents] , other than Rule 9‑6 (6) [application for order on admissions] ; (iv)     Rule 11‑3 (11), (12), (17) or (18) [adjournment or dismissal, preliminary orders, orders and right to vary or set aside order] ; (v)      Part 12 [Property and Injunctions] ; (vi)     Part 13 [Court Ordered Reports and Expert Witnesses] ; (vii)     Rule 14‑3 [trial management conference] ; (viii)    Rule 18‑1 [inquiries, assessments and accounts] ; (c)     an order granting or refusing interim relief under the Family Law Act ; (d)     an order, granting or refusing an investigation into a family matter, made under section 211 of the Family Law Act ; (e) an order granting or refusing an adjournment or an extension or a shortening of time; (f)      an order granting or refusing costs, or granting or refusing security for costs, if the only matter being appealed is that grant or refusal; (g)     an order of a Supreme Court judge granting or refusing an appeal from any order referred to in paragraphs (a) to (f) of this rule. [Emphasis by underlining added.] [37] The predecessor CA Act and CA Rules attempted to distinguish between interlocutory and final orders as the basis for deciding when leave to appeal should or should not be required. This attempt at categorization turned out to be a fruitful source of litigation. [38] It can be seen in the present CA Act and CA Rules that the overall policy goal of distinguishing between decisions that finally determine a party’s rights and those that do not remains the same. Thus, the CA Act and CA Rules recognize that it is in the interests of justice that there be an automatic right of appeal from orders which finally determine a claim or defence. The drafting of CA Rule 2.1 also recognizes that it could clog the justice system and increase the expense and time of litigation to have automatic appeals from orders that are largely procedural and discretionary and that relate to the conduct of a claim or defence. It therefore makes good sense to require leave to appeal from some orders. [39] The present CA Act and CA Rules were designed to provide more certainty and clarity and less room for debate about whether a particular order requires leave to appeal or not: Clifford v. Lord , 2013 BCCA 302 at para. 29 (Garson J.A. in Chambers); Tri‑City Capital Corp. at para. 22. [40] As can be seen by the express language of CA Rule 2.1(a) and (b), in many cases what now governs the question of whether leave to appeal is required is the basis of the authority under which the order was granted: Clifford at para. 29; Tri‑City Capital Corp. at paras. 22–23. [41] In other words, to determine whether leave to appeal is required in a civil proceeding, the question must first be asked: pursuant to which rule of the SC Rules was the order made? [42] Because of the approach of creating an express list of those types of orders requiring leave to appeal in CA Rule 2.1, it is perhaps inevitable that some anomalies result. [43] Specifically, SC Rule 22‑1(4) creates somewhat of an anomaly. It provides the judge with the discretion in a chambers application to make a number of orders regarding evidence that are of an interlocutory nature, yet it is not identified in CA Rule 2.1 as a category of limited appeal orders. [44] SC Rule 22‑1(4) provides: (4) On a chambers proceeding, evidence must be given by affidavit, but the court may (a) order the attendance for cross‑examination of the person who swore or affirmed the affidavit, either before the court or before another person as the court directs, (b) order the examination of a party or witness, either before the court or before another person as the court directs, (c) give directions required for the discovery, inspection or production of a document or copy of that document, (d) order an inquiry, assessment or accounting under Rule 18‑1, and (e) receive other forms of evidence. [45] It can be seen that orders of the nature outlined in SC Rule 22‑1(4) are not final orders determining the merits of a proceeding. Rather, they are very much of a procedural nature and are similar to orders for discovery in actions, orders that are limited appeal orders requiring leave to appeal. Nevertheless, because SC Rule 22‑1(4) orders are not one of the categories of listed orders in CA Rule 2.1, these types of orders give rise to an automatic right of appeal. In this regard, see for example, Galloway v. A.B. , 2019 BCCA 385 (Griffin J.A. in Chambers), dealing with an order for production of documents in a petition proceeding; and Eastside Pharmacy Ltd., dealing with an order for cross‑examination of a witness who swore an affidavit in a petition proceeding. [46] It is important to note that the question of under what SC Rule an order was made determines many but not all categories of limited appeal orders pursuant to CA Rule 2.1. [47] As examples, CA Rules 2.1(e) and (f) are not based on the authority by which an order is made, but are based on the subject‑matter of the order. CA Rule 2.1(e) requires leave to appeal from orders dealing with adjournments and extending or shortening time. CA Rule 2.1(f) requires leave to appeal from orders dealing solely with costs or security for costs. [48] Lastly, there remains another undefined category of judicial decisions, a category that does not involve a final order and does not involve a limited appeal order. From this category of decisions, there is neither an automatic right of appeal nor an ability to seek leave to appeal. Rather, a decision in this grey area might simply form one part of a ground of appeal, if later in the proceeding an appealable order is made. An example is the evidentiary ruling made mid‑trial in Cambie Surgeries . [49] This grey area includes a wide number of discretionary decisions by judges in the trial court, as they manage the caseload and individual cases before them. [50] As explained in the concurring judgment of Justice Saunders in Cambie Surgeries : [70]      The juridical nature of the Supreme Court's tools for managing its caseload has taken on added importance with the enactment of current s. 7 of the Court of Appeal Act referred to by my colleague. That section changed the criterion for leave to appeal from “interlocutory order” to a “limited appeal order” enumerated in Rule 2.1. There are a great number of events that occur in the trial court under a rule that provides “the court may order”, that are interlocutory, that would never have attracted leave to appeal under the former s. 7, and that are not under a rule enumerated in Rule 2.1. There are also judicial instructions given that are not expressly provided for by a rule but are recorded by the Supreme Court of British Columbia and filed in documents entitled “order” . If such matters are within s. 6 of the Court of Appeal Act , they are appealable as of right. An example of this effect is demonstrated in British Columbia (Director of Civil Forfeiture) v. Lloydsmith , 2014 BCCA 72 , a case concerning a document entitled “order” that addressed the timing of a cross‑examination. This Court held the matter was not appealable because it concerned no more than a ruling made in the management of litigation. [71]      Two approaches are possible. One is to give a literal reading to the Supreme Court Civil Rules and all documents entered by the Supreme Court of British Columbia entitled “order”, so as to engage this Court’s process whenever a litigant chooses to challenge such an “order”. The other is to enquire into the substance of the event that occurred in the Supreme Court of British Columbia, to determine whether an “order”, as intended by s. 6 of the Court of Appeal Act , has been made that allows an appeal. [Emphasis added.] [51] As is clear from Cambie Surgeries , this Court has decided on the second approach articulated by Justice Saunders. The Court does not take a literal approach to the question of whether a document is an “order” to determine if it gives rise to a right of appeal or to the right to seek leave to appeal. Rather, the substance of the matter is considered. The Authority for and Substance of the Judge’s Decision [52] We must consider whether the judge’s order is an appealable order within the meaning of the CA Act ; fits within one of the categories of limited appeal orders listed in CA Rule 2.1; or is neither. [53] That requires consideration of the authority for and substance of the judge’s decision that is the subject of Mr. Kranz’s appeal. [54] No specific reference to the SC Rules or other authority is set out in the order. The hearing of the petition was before the judge and no other application was brought. The judge did not dismiss the petition, nor did she grant it. [55] Having considered the content of the order, I am not persuaded that the form of order fully captures the substance of the judge’s decision. [56] The judge granted the relief sought by the Strata, which she earlier identified at para. 26 of her reasons: If I am inclined to rule that parts of the affidavit are inadmissible, the [Strata] argues the petition should be adjourned and leave granted for it to file additional affidavit evidence. Counsel concedes that if I do so, I should also grant leave for [Mr. Kranz] to file responsive affidavits and/or an amended response to petition. [Emphasis added.] [57] In my view, the substance of the judge’s decision was to adjourn the hearing of the petition on terms that allowed the Strata the opportunity to file supplemental evidence and provided Mr. Kranz with the opportunity to respond to the same. The judge did not rule on the admissibility of any supplemental evidence or other materials. [58] The authority for the judge’s order was not SC Rule 22‑1(4). The judge was not being asked to determine any application under that sub‑rule. She did not order cross‑examination, discovery, or the receipt of evidence in a form other than by affidavit. Eastside Pharmacy is distinguishable because it was dealing with an application and order expressly authorized under SC Rule 22‑1(4), as noted at paras. 29 and 33. [59] In my view, the judge’s authority to adjourn the petition can be found within the powers granted to a judge in chambers by SC Rule 22‑1(7)(b), which provides: (7) Without limiting subrule (4), on the hearing of a chambers proceeding, the court may (a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the chambers proceeding, (b) adjourn the chambers proceeding from time to time, either to a particular date or generally, and when the chambers proceeding is adjourned generally a party of record may set it down on 3 days' notice for further hearing, (c) obtain the assistance of one or more experts, in which case Rule 11‑5 applies, and (d) order a trial of the chambers proceeding, either generally or on an issue, and order pleadings to be filed and, in that event, give directions for the conduct of the trial and of pre‑trial proceedings and for the disposition of the chambers proceeding. [Emphasis added.] [60] Had the judge not adjourned the petition, but proceeded to grant or dismiss it, there is no question that there would be an automatic right of appeal. But, in my view, because the substance of the judge’s order is an adjournment of the hearing of the petition, on terms, it requires leave to appeal pursuant to CA Rule 2.1(e). [61] I pause to acknowledge that in her October 27, 2020 ruling at para. 8, the judge stated that both parties agreed that the case was not a limited appeal order. Mr. Kranz suggests it would be unfair for the Strata to resile from that position now. There is no transcript of that chambers application and counsel for the Strata does not recall whether he took that position. [62] I do note that it is possible both parties agreed with the proposition in Eastside Pharmacy , a case they cited to the judge, that an order under SC Rule 22‑1(4) is not a limited appeal order. However, the judge’s order was not made pursuant to SC Rule 22‑1(4). [63] Regardless of the position taken by the parties, as the judge noted at para. 11 of her October 27, 2020 ruling, it is for this Court to decide the character of the ruling for the purposes of appeal. We are not bound by the position taken by either party on the hearing before the judge as to the nature of her order. [64] I recognize that wrapped up in the adjournment was the judge’s evidentiary ruling that parts of the Langford Affidavit were inadmissible. Mr. Kranz, of course, is not seeking to appeal that aspect of the judge’s decision. Had the Strata sought to appeal that aspect of the judge’s decision, in my view the reasoning in Cambie Surgeries would apply. A ruling determining the admissibility of evidence midway through a petition hearing (and not the subject of a distinct application authorized by the SC Rules ) should not be considered an appealable order. The significance of the judges’ evidentiary ruling on the merits of the petition is not yet known and will not be known until the outcome of the continued petition hearing itself. It may be that in the future the evidentiary decision will be a ground of appeal for the Strata, should the petition be dismissed, but that remains to be determined. [65] The aspect of the judge’s decision that Mr. Kranz complains about is the judge’s granting of leave to the Strata to file supplementary affidavits. Mr. Kranz takes the position before us that the judge did not have jurisdiction to grant such an order. I do not find any support for the proposition that this was a matter of the judge’s jurisdiction, as opposed to simply being the exercise of her discretion. Leaving aside a judge’s inherent jurisdiction to control the process, it is clear that a judge hearing a petition in chambers has the power, under the SC Rules , to make a wide variety of orders relating to procedure and evidence: see for example, SC Rules 16‑1(7); 16‑1(18); 22‑1(4); 22‑1(7). SC Rule 16‑1(7) expressly gives the court the power to permit a party to serve additional affidavits. Indeed, Mr. Kranz conceded in oral argument before us that there could be circumstances where a judge would be permitted to exercise discretion to allow for additional evidence to be filed on a petition; he just takes the position the judge ought not to have done so here. [66] In my view, the judge’s exercise of her discretion to permit the Strata to attempt to provide supplemental evidence was part of the reasoning for the judge’s decision to adjourn the petition hearing and was not a separate decision giving rise to a right of appeal. Even if one was to say it was a separate decision, in my view it would fall into the grey area that Justice Saunders discussed in Cambie Surgeries as simply being a decision relating to the management of the ongoing hearing of the petition. It would not be appealable as of right, but could potentially form a ground of appeal depending on the final outcome of the petition hearing. Conclusion [67] Having determined that the substance of the judge’s order was to adjourn the hearing of the petition, on terms, and having concluded that this means Mr. Kranz will require leave to appeal, there is no need to deal with the Strata’s application for a stay. The concerns raised by the Strata regarding the bringing of an appeal mid‑way through the petition hearing could properly be raised in response to any leave to appeal application and application for an extension of time. [68] For these reasons, I would quash the appeal. I would give the Strata costs of the appeal. The scale and quantum of costs can be addressed by written submissions, including the applicability or inapplicability of the case of Strata Plan KAS 2428 v. Baettig , 2017 BCCA 377. [69] BAUMAN C.J.B.C. : I agree. [70] FITCH J.A. : I agree. [71] BAUMAN C.J.B.C. : The appeal is quashed. The Strata will have its costs determined in the manner indicated in Justice Griffin’s reasons following submissions of the parties in accordance with a schedule that they hopefully can agree to. “The Honourable Madam Justice Griffin”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Marshall Mountain Telecom Ltd. v. The Owners, Strata Plan EPS 4044, 2021 BCCA 21 Date: 20210119 Docket: CA46307 Between: Marshall Mountain Telecom Ltd. Respondent (Plaintiff) And The Owners, Strata Plan EPS 4044 Appellant (Defendant) Before: The Honourable Madam Justice Newbury The Honourable Madam Justice Saunders The Honourable Mr. Justice Harris On appeal from:  An order of the Supreme Court of British Columbia, dated July 23, 2019 ( Marshall Mountain Telecom Ltd. v. The Owners, Strata Plan EPS 4044 , 2019 BCSC 1180, New Westminster Docket S 206131). Counsel for the Appellant (via videoconference): M.S. Both Counsel for the Respondent (via videoconference): G.S. Hamilton Place and Date of Hearing: Vancouver, British Columbia November 25, 2020 Place and Date of Judgment: Vancouver, British Columbia January 19, 2021 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice Saunders The Honourable Mr. Justice Harris Summary: Disclosure statement made by a real estate developer in the course of marketing strata lots to purchasers, stated that part of the common property might in future be leased by the developer, or an assignee thereof, to install and operate telecommunications equipment on the rooftop of the stratified building. Later, developer granted such a lease to the plaintiff “Telecom”, an affiliate of the developer. Lease was registered as a charge against title. Telecom then granted a licence to a third party, which sought municipal approval for the construction of a radio tower on the roof. The municipal authority required the consent of the “owner”, which by now was the strata corporation. It refused to consent, arguing that the lease was invalid because developer had owed a fiduciary duty to the strata corporation under s. 6 of the Strata Property Act and had allegedly not provided disclosure statements to all 317 purchasers; that the extent of disclosure in the disclosure statement had been inadequate for purposes of the Real Estate Development Marketing Act (“REDMA”); and that there was no privity of contract between Telecom and the strata corporation. Telecom sued, seeking primarily a declaration that the lease was valid and that the lessor’s obligations thereunder ran with the land. Injunctive relief was also sought. Trial court heard the case by summary trial and granted a declaration that the lease was valid and an injunction requiring strata corporation co-operate with Telecom in providing necessary consents etc. to enable Telecom to obtain municipal approval for the construction of the tower. Held: Appeal Dismissed. Trial judge had not erred in proceeding with summary trial even though defendant took the position it had not completed examination for discovery of developer. Developer had failed to provide all 317 purchaser acknowledgments of disclosure statements — it did provide 11 — and said it was difficult to locate all 317. There was no allegation that any strata owner had not received a disclosure statement. It was open to trial judge to find that all 317 purchasers had received such statements, as deposed to by president of developer. In finding as a fact that this had occurred, trial judge had not “reversed” the evidential onus on plaintiff. Nor had trial judge erred in finding that the disclosure of the “nature” of the lease in the disclosure statements had been sufficient or that the lease “ran with the land”. The parties accepted as a proposition of law that disclosure of a conflict of interest in a disclosure statement effectively met the obligation of a fiduciary (see s. 6 of the Strata Property Act) to disclose a conflict of interest on developer’s part. It was therefore not necessary to determine whether developer’s duty to strata lot purchasers was truly “fiduciary” in nature; nor whether the disclosure here “attained” the protection of strata purchasers in the REDMA context, as suggested in several trial decisions. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] It is a well‑known fact — perhaps even one of which judicial notice may be taken — that the real estate market in Vancouver and environs is often extremely active and involves high stakes for both sellers and buyers. Since 2004, the rights and obligations of parties to transactions involving certain types of real estate in this province have been regulated by the Real Estate Development Marketing Act , S.B.C. 2004, c. 41 (“ REDMA ”). Described by some as consumer protection legislation, REDMA prescribes various steps and filings that must be carried out, notwithstanding the terms of any contract, by developers in connection with sales of subdivision lots in a new subdivision, strata lots in a building that is intended to be stratified, and other shared interests in land. [2] This appeal is about the sale of strata lots in a 37‑storey building called “Delta Rise” in Surrey, B.C. It was developed by Marshall Mountain Homes Ltd. (“Marshall Homes”) between late 2013 and April 2017 when Strata Plan EPS 4044 was deposited at the Land Title Office, creating strata units in a strata corporation controlled at first by the developer but ultimately by the ‘retail’ purchasers of strata lots. That strata corporation is the defendant in this proceeding. The Legislation [3] REDMA provides in s. 5 that a developer must not “market” a strata lot unless: (a) a strata plan ... has been deposited in a land title office, or (b) the appropriate municipal or other government authority has issued a building permit in relation to the strata lot.... Section 11 requires that before marketing a strata lot (referred to in the statute as a “development unit”) the developer must have made adequate arrangements to ensure that any purchaser “will have assurance of title” in one of the ways described in s. 11(2) and that any purchaser may, by complying with the terms and conditions of his or her “purchase agreement”, obtain title free and clear of any mortgage or lien that secures the payment of money. [4] Consistent with the objective of consumer protection, a central feature of REDMA is the requirement that developers of strata lots prepare and provide “disclosure statements” to prospective purchasers at the time of entering into purchase agreements, allow them time in which to consider the statements, and obtain written acknowledgments that they have had the opportunity to do so. Failing this, a purchaser is entitled to rescind his or her purchase agreement. In particular, sections 14 and 15 provide as follows: Filing disclosure statements 14 (1) A developer must not market a development unit unless the developer has (a) prepared a disclosure statement respecting the development property in which the development unit is located, and (b) filed with the superintendent (i) the disclosure statement described under paragraph (a), and (ii) any records required by the superintendent under subsection (3). (2) A disclosure statement must (a) be in the form and include the content required by the superintendent, (b) without misrepresentation, plainly disclose all material facts , (c) set out the substance of a purchaser's rights to rescission as provided under section 21 [rights of rescission] , and (d) be signed as required by the regulations. (3) A developer must provide to the superintendent any records the superintendent requires to support any statement contained in the disclosure statement filed under subsection (1). Providing disclosure statements to purchasers 15 (1) A developer must not enter into a purchase agreement with a purchaser for the sale or lease of a development unit unless (a) a copy of the disclosure statement prepared in respect of the development property in which the development unit is located has been provided to the purchaser, (b) the purchaser has been afforded reasonable opportunity to read the disclosure statement, and (c) the developer has obtained a written statement from the purchaser acknowledging that the purchaser had an opportunity to read the disclosure statement . (2) A developer must (a) retain a written statement obtained under subsection (1)(c) for a period of 3 years or a longer period prescribed by regulation, and (b) produce the written statement for inspection by the superintendent on the superintendent's request. (3) Despite section 4 (2) of the Electronic Transactions Act , a developer may provide a copy of a disclosure statement by electronic means only with the written consent of the purchaser. [Emphasis added.] [5] Under s. 16, if a developer becomes aware that a disclosure statement does not comply with REDMA or regulations thereto or contains a misrepresentation, it must immediately file a new disclosure statement with the Superintendent and provide a copy of the amendment to each purchaser who is entitled “at any time” to receive a disclosure statement under s. 15 and has not yet received title for which he or she has contracted. [6] Part 3 of REDMA sets out details of purchasers’ rights of rescission. Under s. 21(2) the purchaser of a strata unit may rescind his or her purchase agreement, even if title to the strata unit has been transferred , within seven days of the later of the date of the purchase agreement itself and the date on which the purchaser acknowledges in writing that he or she has had an opportunity to read the disclosure statement, or any new disclosure statement required by s. 16(1)(a). Under s. 21(3), where a purchaser who was entitled to a disclosure statement does not receive one, he or she may rescind at any time his or her purchase agreement by serving written notice of rescission on the developer. [7] Section 22 deals with the liability of developers for misrepresentations contained in a disclosure statement. Where the statement contains a misrepresentation, the purchaser is deemed to have relied on it and has, inter alia, a right of action for damages against the developer. This applies even where the misrepresentation was “removed or otherwise corrected” after the purchase agreement was entered into. [8] Finally, the Strata Property Act , R.S.B.C. 1998, c. 43 (“ SPA ”), which replaced the Condominium Act, R.S.B.C. 1979, c. 61, contains various provisions dealing with the relationship between developers and strata corporations. I have attached the relevant provisions as a schedule to these reasons; but I note here in particular s. 6: In exercising the powers and performing the duties of a [strata] council, the owner developer must (a) act honestly and in good faith with a view to the best interests of the strata corporation , and (b)  exercise the care, diligence and skill of a reasonably prudent person in comparable circumstances. [Emphasis added.] Under s. 2 of the SPA , the corporation comes into existence at the time the developer deposits the strata plan in the Land Title Office. The corporation must hold its first general meeting within the time-frame described in s. 16. Factual Background [9] Against this statutory background, I turn to the facts of this case. Few of them are in contention. The chronology begins on October 16, 2013, when Marshall Homes prepared and filed with the Superintendent a disclosure statement for use in marketing the 317 strata units in Delta Rise in accordance with REDMA . As required, the first few pages of the statement set forth in clear terms the rights of rescission of purchasers under REDMA and the Superintendent’s Policy Statement 5 regarding such rights. The body of the statement disclosed the material items required to be disclosed, including conflicts of interest on the part of the developer and its directors; permitted uses of the property under current zoning bylaws; the responsibilities of strata lot owners generally; the budget of the strata corporation; management agreements proposed to be entered into by the developer for the strata corporation’s first year of operation; and liens and encumbrances registered against the property or to be registered in future. In Article 4.4 of the disclosure statement, headed “Proposed Encumbrances to be registered against the Lands”, the developer disclosed that in addition to existing charges, four additional encumbrances might in future be registered against title to the lands. The third of these was: (c) a long‑term lease and/or other charges in favour of the Developer, a related or affiliated company, or a telecommunications provider with respect to all or a portion of the common property (including the rooftop of the Building) for the purpose of installing, operating and repairing telecommunications (including cellular) equipment, antennae, conduits, cables, wires, communications facilities and related equipment; [10] The marketing of the Delta Rise strata lots was carried out by a property management company related to Marshall Homes, Maple Leaf Home Realty. (This relationship was disclosed at Article 1.6 of the disclosure statement.) It appears that 315 lots were sold (Marshall Homes retained two for its own use) by the time the strata plan was deposited in the Land Title Office in April 2017, making it possible for the developer finally to convey the strata units and close the sales to purchasers. [11] According to an affidavit of Mr. Satish Sharma, Marshall Homes agreed on or about March 30, 2017 to lease to Marshall Telecom Ltd. (“Marshall Telecom”), the plaintiff herein, a portion of the rooftop of the Delta Rise building. The rooftop is designated as common property. Marshall Telecom and Marshall Homes are non‑arm’s‑length parties, and Mr. Sharma was president of both at the time. The recital to the Lease acknowledged that the rooftop would be designated as common property under the SPA and that “title to the common property of the Strata Development may be encumbered by this Lease”. Marshall Telecom covenanted in the Lease that it would use and occupy the leased area only for purposes of the construction, installation and operation of telecommunications works as defined, for the term of the Lease. That term would commence on the day the Lease was filed in the Land Title Office and terminate on the winding‑up or dissolution of the strata corporation. The rent payable was stated to be $10.00. The Lease also provided: 1.1 Grant (a)       Owner hereby leases to Marshall Telecom for the Term (as defined in Section 1.2) all of the Lease Area. (b)       The Lease Area shall be used and occupied only for the following purpose, and for no other use or purpose: to construct, install, attach, operate, maintain, modify, supplement, reconfigure, relocate, replace and remove on, over and under the Lease Area (identified below), telecommunications works consisting of a tower, monopole, carrier on wheels (COW), or wooden pole, telecommunications equipment and apparatus including without limitation, equipment shelter and/or equipment cabinets, antennas, antenna mounts, attachments, support structures, anchoring mechanisms, wire, fibre optic or other cabling, cable trays and associated equipment, all as necessary for Marshall Telecom's undertaking. (c)       Owner also hereby grants and conveys for the Term and at all times to Marshall Telecom, for use by Marshall Telecom, its officials, employees, contractors, subcontractors, agents, licensees, invitees and permittees, the full, free and uninterrupted right, licence, liberty, privilege and easement in common with Owner on, over, under and within common property in the Strata Development for the purposes of gaining access to or egress from any portion of the Lease Area, and for installing, constructing, repairing, maintaining and/or operating the equipment, as may be necessary for any other purposes incidental to the above purposes, and in connection therewith: i)       to bring vehicles, machinery, equipment, tools and supplies on to the Lands, and use them for the purposes described in this Section; and ii)      to do anything else on, over, or under the Lands that Marshall Telecom considers necessary or desirable in connection with the rights granted herein. ... 2.0 SUBDIVISION BY STRATA PLAN 2.1 Strata Plan This Lease and the covenants and obligations of Owner [defined as Marshall Homes] under this Lease run with and bind the Lands, and upon subdivision of the Lands by means of the Strata Plan such covenants and obligations will: (a) continue to run with and bind each subdivided parcel; and (b) be automatically assumed by the Strata Corporation . 2.2 Common Property This Lease is intended to apply only to a portion of the common property of the Strata Development and not at any time to burden the title to any individual strata lot. 2.3 Terms and Conditions: ... (d)       Marshall Telecom upon paying the Fee shall have full use of the Lease Area subject only to any obstructions wit[h]in the Lease Area as at the commencement of the Term. Owner shall not cause interference or permit others to interfere with or impair the quality of the telecommunications services being rendered by Marshall Telecom from the Lease Area. Owner shall ensure that other carriers granted space on the Property coordinate site access and antenna placement with Marshall Telecom to ensure there is no interference or impairment and Marshall Telecom’s full use of the Lease Area is protected. Owner shall only use the Lease Area in a manner which does not interfere with the use of Marshall Telecom of the Lease Area or the telecommunications services thereupon. ... (f) Marshall Telecom may assign its rights under this Agreement and to its equipment and may sublicence all or any part of the Lease Area to its affiliates, associates, lenders, a third party or a purchaser of all or a part of its undertakings and may undergo a corporate reorganization, including, without limitation, a merger or amalgamation upon written notice to Owner. ... (n)       The terms and conditions of this agreement shall extend to and bind the heirs, personal representatives, successors and assigns of Owner and Marshall Telecom. (o)       Each party, upon the reasonable request of the other, will execute, do or cause to be done or executed all further and other lawful acts, deeds, documents, instruments and assurances for the better or more perfect and absolute performance of the terms of this Agreement. [Emphasis added.] Attached to the Lease was a copy of an explanatory plan of the leased area, together with the floor‑by‑floor strata plans for EPS 4044. [12] On April 13, 2017 the strata plan was deposited in the Land Title Office, and the Lease was registered as a charge on the common property. [13] According to Mr. Sharma’s affidavit, on or about November 24, 2017, Marshall Telecom granted a license to Akash Broadcasting Inc. (“Akash”) to install and maintain a rooftop tower on the building “for the purposes of FM radio rebroadcasting”. The term of this license was to commence on the date of a first broadcast, projected to be November 1, 2017, and continue until October 31, 2022, and thereafter would renew automatically for five‑year periods unless either party elected to terminate not less than 9 months before the end of the current term. Akash agreed to pay Marshall Telecom the sum of $4,000 per month in the first term; the license fee for later periods was to be based on the fair market value of the installation, but not less than $4,000 per month. Mr. Sharma stated in his discovery that this revenue was “part of the whole business model” of the development and that it had allowed strata lots to be sold at lower prices than would otherwise have been the case. [14] In June 2018, a consultant acting on behalf of Mr. Sharma applied to the City of Delta for the permit required for the construction of a radio tower on the rooftop of Delta Rise. The City replied that it required the permission of the owner, now the defendant strata corporation, in order to proceed with the application. The strata corporation refused to consent and told Marshall Telecom it would not comply with the Lease. [15] After various communications between the parties and the City, Marshall Telecom began this proceeding in the Supreme Court of British Columbia against the strata corporation, seeking specific performance of the Lease, including an order that the defendant execute and deliver the necessary consent required for the installation of the tower and related equipment on the leased area; an injunction restraining the defendant from interfering with Marshall Telecom’s rights under the Lease; and general damages. The notice of civil claim was filed on September 19, 2018. Pre-Trial Proceedings [16] Two months later, on November 19, 2018, counsel for Marshall Telecom scheduled a summary trial application. This was done prior to any examinations for discovery or production of documents. Evidently, the parties then agreed to adjourn the summary trial application, in part to allow for Mr. Sharma to be discovered in his capacity as the representative of Marshall Telecom. The discovery took place on February 8, 2019 – six days before the summary trial was scheduled to begin. [17] In his examination for discovery, Mr. Sharma deposed that he had provided a disclosure statement to each purchaser of a strata unit in the building at the time of purchase. He said each purchaser had acknowledged receiving a disclosure statement by signing and dating it, and that these “documents” were “in the lawyer’s office”. Counsel for the strata corporation, Mr. Both, requested that Mr. Sharma speak with his lawyers to ask that copies of the acknowledgements be provided to him. When Mr. Hamilton on behalf of Marshall Telecom asked if Mr. Both wanted “all of the contracts of purchase and sale with respect to every strata lot”, Mr. Both replied that he did not need “the entire purchase and sale document” but just wanted “the confirmation that the disclosure statement was received, read and signed.” Mr. Hamilton replied that he would “consider” that request. [18] At the end of the examination for discovery, four requests for document production were outstanding. Mr. Both closed his discovery by stating, “Subject to my requests for information and documents, those are my questions. Thank you very much.” He characterizes the examination as having been “adjourned” (as opposed to terminated), subject to the requests for document disclosure. [19] However, we were told by counsel that rather than providing the 317 acknowledgments, Mr. Hamilton emailed to Mr. Both copies of 11 acknowledgments “from a series of random buyers” on or about February 12, 2019 — i.e., two days before the trial commenced. On February 13, he informed Mr. Both that his client was not prepared to provide all 317 documents “which appear to be irrelevant to the legal issues before the court”. Mr. Hamilton informed us that when the trial began, he told the Court that it would be “unduly onerous” for his client to produce all 317. Strangely, the 11 acknowledgments were not entered into evidence; nor was any attempt made to provide further affidavit evidence as to the difficulty of producing all 317. [20] Mr. Both applied for an adjournment of the trial on the basis that the documents had not been provided. The trial judge, Mr. Justice Riley, dismissed the application and the trial proceeded over three days, ending in June 2019. The Trial Judge’s Reasons [21] Riley J. began his reasons for judgment by summarizing the strata corporation’s three‑part response to the plaintiff’s claim for the enforcement of the Lease, namely that Marshall Homes had entered into the Lease in breach of its fiduciary duty as a developer, making the Lease “invalid”; alternatively, that the Lease was not binding and enforceable against the strata corporation because it was not a party to it; and in the further alternative, that certain of the remedies sought by the plaintiff were “unjustified”. (See para. 2.) [22] In the course of setting out the facts, the judge noted Mr. Sharma’s affidavit evidence — which he noted was “unequivocal and stands unchallenged” — that each purchaser had been given an opportunity to review the disclosure statement at the time of purchase. The strata corporation had not presented any evidence to the contrary. Specifically, there was “no affidavit evidence from any of the more than 300 strata unit purchasers challenging Mr. Sharma’s assertion, or denying receipt of the disclosure statement.” (At para. 5.) [23] The first issue for determination, however, was whether the case was suitable for summary trial under R. 9‑1 of the Supreme Court Civil Rules . The strata corporation argued that it would be premature to proceed because examinations for discovery had only recently been completed, and because the request for production of the 317 written acknowledgments was still outstanding. (At para. 13.) Compliance with this request would, the defendant suggested, assist in determining whether Marshall Homes had complied with its fiduciary obligation to provide prospective purchasers with notice of its intention to negotiate contracts “for the benefit of Marshall Homes or its affiliates.” [24] The judge reasoned on this issue: In response to this submission, counsel for Marshall Telecom asserted that the Strata Corporation’s request for production of 317 separate written acknowledgements was unduly onerous. Counsel says Marshall Homes attempted to satisfy the Strata Corporation’s request by providing written confirmations from 11 randomly selected purchasers. Counsel referred to the affidavit of Mr. Sharma, the president of both Marshall Homes and Marshall Telecom, averring that each of the original purchasers of Delta Rise strata lots received and acknowledged receipt of the disclosure statement. Discovery of Mr. Sharma is now concluded and there is nothing to contradict his affidavit. Nor has the Strata Corporation presented any contradictory evidence , including affidavit evidence from a single one of the more than 300 strata unit purchasers denying receipt of the disclosure statement. [At para. 15; emphasis added.] [25] The judge acknowledged case-law to the effect that where there is a “real possibility” that further discovery or document production will yield evidence to support a party’s case, an adjournment of a summary trial will be granted to permit the party to obtain such evidence. However, he said, that proposition “has its limits”. Citing Tassone v. Cardinal 2014 BCCA 149, he noted that an argument that further discovery might “turn up” something useful is not usually sufficient to defeat a summary trial application. (See also Hamilton v. Sutherland (1992) 68 B.C.L.R. (2d) 115 (C.A.) and Everest Canadian Properties Ltd. v. Mallmann 2008 BCCA 275, at para. 34.) Further, where a matter is set down for summary trial, the parties are expected to come to court prepared for trial. As stated in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989) 36 B.C.L.R. (2d) 202 (C.A.), if the court can find the facts necessary to decide the issues of fact or law, it may decide to proceed with the trial unless it would be unjust to do so in the circumstances. [26] Applying these principles to the case at bar, the judge concluded that he was in a position to find the facts necessary to decide the case by summary trial. He was not persuaded that further document discovery was likely to produce evidence that would advance the defendant’s case or undermine the plaintiff’s case; the “most counsel could say was that further document production from Marshall Homes might assist”. Further, he said: ... The assertion in Mr. Sharma’s affidavit that each of the Delta Rise strata unit purchasers was provided with and acknowledged receipt of the disclosure statement stands unchallenged. The summary trial application began on 14 February 2019, and continued on two subsequent dates over the span of the next four months. Over that time, the Strata Corporation has not put forward any other evidence on this issue, and has not applied to cross-examine Mr. Sharma on his affidavit. ... The circumstances pertaining to the marketing and sale of the Delta Rise strata units, the extent of the owner-developer’s disclosure concerning the potential for a rooftop lease, the terms of the rooftop lease, the filing of all relevant documents in the Land Title Office, and the subsequent steps taken by Marshall Homes to act under the lease are all before the Court. Moreover, there are no conflicts in the affidavit evidence . [At paras. 18–9; emphasis added.] [27] As to whether it would be unjust to decide the matter summarily, the judge considered that the case was not factually complex, the legal issues were not novel, and any further delay would prejudice all parties, given that Marshall Telecom’s application for City approval of the construction of the tower was stalled and its licensing agreement with Akash was “in limbo”. He decided it would be appropriate to proceed. [28] Turning then to the merits, the first issue was whether the Lease was invalid because the developer had allegedly entered into it in breach of its fiduciary duty. The trial judge noted at para. 22 that both parties were agreed that the developer had owed a fiduciary duty to strata unit purchasers at common law, which duty was “reflected” in the SPA. He cited The Owners, Strata Plan 1261 v. 360204 B.C. Ltd. (1995) 50 R.P.R. (2d) 62 (B.C.S.C.), where Thackray J., as he then was, had stated that this duty encompassed “an obligation to the individual buyers [of strata lots] not to allow [the developer’s] self‑interest to interfere with the interests of those present and future purchasers.” (At para. 103.) This seems to represent the views of the majority of appellate courts that have considered the position of a purchaser who has agreed to buy but who has not yet had title to a strata unit conveyed to him or her: see York Condominium Corp. No. 167 v. Newrey Holdings Ltd (1981) 122 D.L.R. (3d) 280 (Ont. C.A.) at para. 18, lve to app. ref’d. (1981) 32 O.R. (2d) 458n (S.C.C.); Terrace Corp. (Construction) Ltd. v. Condominium Plan No. 752-1207 Owners 1983 ABCA 126 at paras. 9-10; Winnipeg Condominium Corp. No. 37 v. 255 Wellington Crescent Ltd . (1984) 27 Man. R. (2d) 309 (C.A.) at paras. 6–7; Owners: Condominium Plan No. 86-S-36901 v. Remai Construction (1981) Inc. et al. (1992) 84 D.L.R. (4th) 6 (Sask. C.A.) at paras. 26–9; and Peel Condominium Corp. No. 417 v. Tedley Homes Ltd. (1997) 35 O.R. (3d) 257 (C.A.) at para. 19. [29] On the other hand, in Peel Condominium Corp. No. 505 v. Cam-Valley Homes Ltd. (2001) 196 D.L.R. (4th) 621, a majority of the Ontario Court of Appeal reasoned that the nature of the duty owed by a developer to purchasers of strata units “is not fully understood” and that it cannot be correctly described as a “fiduciary” one. In the analysis of Finlayson J.A.: ... A prospective purchaser cannot be the fiduciary of the developer in any accepted equitable sense; otherwise the developer could not negotiate with the buyer at all . Furthermore, the trial judge’s emphasis on the Condominium Act as having “consumer protection objectives” does not reflect the balance that this court has said exists between that goal and the commercial realities of the condominium industry. The basis of the relationship is set out more accurately by Robins J.A. for this court in Abdool v. Somerset Place Developments of Georgetown Ltd. (1992), 10 O.R. (3d) 120, 96 D.L.R. (4th) 449. He held on behalf of the court at p. 145: While I may generally agree with the learned judge's critique of the legislation, I am unable to accept his approach to the current disclosure requirements. In my respectful opinion, this approach fails to construe s. 52 in a manner that properly balances consumer protection and the commercial realities of the condominium industry and, if adopted, would require a disclosure document incompatible with the underlying aim of the section. [At 635; emphasis added.] and: ... The developer does not hold the condominium property in trust for the purchaser of the unit, it holds the title to the unit in trust for the prospective purchaser who has executed an agreement of purchase and sale to purchase a unit. The developer's good faith obligation, or duty, is to carry out the terms of the agreement and deliver whatever title the contract between the parties calls for. This obligation or duty is circumscribed by the documentation required by the Condominium Act . The purchaser, for his or her part, has an equitable interest in the unit by virtue of the agreement that is signed; an equitable interest that equity will enforce by specific performance. However, there is no overarching fiduciary duty arising out of the relationship of a vendor and purchaser as such. The suggestion by the trial judge that a prospective purchaser is entitled to repose some element of trust in the developer that it will deal with the purchaser's reasonable expectations in the disclosure documents introduces an element of paternalism that is totally unjustified in such a relationship . As I have indicated, the protection of the consumer rests with compliance by the developer with the disclosure provisions of the Condominium Act . It is inappropriate to refer to the unit holder as a fiduciary in any circumstance. The prospective purchaser is protected by the statutory requirement of full disclosure, not the extension of fiduciary principles to the bargaining process . After executing an agreement of purchase and sale, he or she is entitled to rely on the good faith of the developer to carry out the agreement honestly. [At 638–9; emphasis added.] The majority also doubted the suggestion made by Wilson J.A., as she then was, in Newrey that a fiduciary duty is owed to “prospective purchasers” — i.e., persons who have not yet signed binding agreements of purchase. Finlayson J.A. described this suggestion as “unsupported by the general law” and “contradicted by recent decisions.” (At 636.) These discussions, of course, took place in a statutory context that differs from that imposed by REDMA . [30] Returning to the case at bar, the trial judge noted case‑law to the effect that as long as a developer “acts in adherence to the development plans described in the disclosure statement, and prospective purchasers have notice of the owner-developer’s intentions”, the developer’s entering into a transaction for its own benefit might not constitute a breach of its (fiduciary) duty. On this point, he noted in particular The Owners, Strata Plan VIS 2968 v. K.R.C. Enterprises Inc. 2007 BCSC 774 rev’d on other grounds by The Owners, Strata Plan VIS 2968 v. K.R.C. Enterprises Inc. 2009 BCCA 36, in which Madam Justice Gerow reviewed Hill v. Strata Plan NW 2477 (1991) 57 B.C.L.R. (2d) 263 (C.A.) and Peel Condominium v. Tedley Homes Ltd. , supra . From these, she reasoned: It is clear from the cases that the courts have acknowledged that one of the objectives of the Condominium Act is consumer protection. However, this objective is attained by the disclosure requirements of the Condominium Act and must be seen in the context of the full disclosure package : Peel Condominium Corp. v. Cam-Valley Homes Ltd. (2001), 196 D.L.R. (4th) 621 at 635 (Ont. C.A.). In Hill the Court of Appeal took into consideration that the purchasers were aware there was a problem, that a prudent purchaser would have made an effort to clarify the situation by searching the title, and that the purchasers would have been able to walk away from the purchase if it could not be concluded to their satisfaction. The cases in which courts have found that the developer has been in breach of its fiduciary duty, regardless of notice, are cases in which the limitation has not been included in the disclosure statements nor registered against the title to the property so that the prospective purchaser can determine the extent of any restrictions on the common property by searching the title. [At paras. 27–9; emphasis added.] [31] Applying this reasoning, Riley J. concluded that a developer who “fairly discloses” its intention to enter into a transaction from which it will benefit will not for that reason alone be found to have breached its duty to strata lot purchasers. At para. 29, he again emphasized Mr. Sharma’s affidavit evidence to the effect that each purchaser had received and acknowledged receipt of the disclosure statement, which had expressly stated that the common property might be encumbered by a telecommunications lease in favour of Marshall Homes or an affiliate thereof. Again, the defendant had adduced no evidence calling this testimony into question. [32] The strata corporation next submitted that the disclosure statement had not fairly disclosed the full extent of the encumbrance constituted by the Lease. In its submission, the terms of the Lease were more burdensome than suggested by the description in the disclosure statement: the term was for the entire life of the strata corporation; the $10 consideration payable to Marshall Homes had not been specified; the Lease allowed for “significant intrusions on the property for the installation and construction of telecommunications equipment”; the Lease purported to run with each subdivided parcel of land on the property (although it correctly stated that it bound only the common property and not the strata lots themselves); and it imposed “positive obligations” on each party to execute such further documents and take any further lawful action as may be required “for the better or more perfect and absolute performance” of its terms. [33] The summary trial judge did not find this argument persuasive. In his analysis: ... In broad strokes the disclosure statement provided fair notice to purchasers that the owner-developer reserved the right to enter into a telecommunications lease on the common property. The disclosure statement indicated that the lease would be for the benefit of the owner-developer or an affiliated company. The terms of the lease negotiated between Marshall Homes and Marshall Telecom are entirely consistent with the description contained in the disclosure statement . Moreover, the lease itself was filed in the Land Title Office and registered against the title to the Delta Rise property on the very same day that the strata plan was filed and registered. Thus, each strata title purchaser was at liberty to search the title in the course of the conveyancing process, prior to completion. [At para. 31; emphasis added.] [34] Finally in connection with the validity of the Lease, the defendant submitted that the Lease was invalid because it had not been placed before the strata corporation at the first annual general meeting as required by s. 20 of the SPA. The trial judge did not regard this as fatal. He noted 299 Burrard Management Ltd. v. The Owners, Strata Plan BCS 3699 2014 BCSC 390, in which the Court held that such a failure does not make the contract unenforceable as a matter of law. (At para. 63.) Similarly here, the judge concluded that the fact no encumbrances had been put before the meeting was an “irregularity” that did not amount to a breach of the developer’s fiduciary duty or otherwise render the Lease invalid. (At para. 33.) No challenge is made on appeal by the defendant to this ruling. [35] At paras. 34–43 of his reasons, the trial judge dealt next with the strata corporation’s argument that it was not bound by the terms of the Lease because there was no privity of contract between it and Marshall Telecom. (Indeed, the strata corporation was not in existence when the Lease was granted.) Riley J. noted in passing some authorities dealing with pre‑incorporation contracts at paras. 35–6; but the plaintiff relied instead on the fact that the Lease stated it would run with the land and that its terms would be “automatically assumed” by the strata corporation. The judge noted the suggestion made by Madam Justice McLachlin (as she then was) in Nylar Foods v. Roman Catholic Episcopal Corporation of Prince Rupert (1988) 48 D.L.R. (4th) 175 (B.C.C.A.) that a covenant may by its words “clearly establish that the parties intended to create a restriction that runs with the land”. Marshall Telecom also cited the rule in Spencer’s Case (1583) (1558-1774) All E.R. 68, where an exception was created to a formerly strict and ancient rule that positive covenants could not be enforced by or against successors in title. Spencer’s Case clarified that “the burden and the benefit of a covenant, which touches or concerns the land demised and is not merely collateral”, may “run at law with the reversion and the term of the lease whether the covenant be positive or restrictive”. [36] Relying as well on Williams & Rhodes, Canadian Law of Landlord and Tenant (6th ed., 1988), the trial judge reasoned: ... Landlord-tenant arrangements are in a class of their own because the obligations under a lease only encumber the very property that is the subject of the lease, and only during the term of the lease. Thus, in the case of leaseholds, it is “not at all inconsistent with the nature of property that positive covenants affecting the land bind those who take the term of the leasehold by assignment”: Amberwood at para. 27.This distinguishes the case at bar from other recent decisions holding that by virtue of the so-called “rule in Austerberry ”, positive obligations under an easement cannot run with and bind the land: The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd. , 2019 BCCA 144 at para. 2, 74-76, 79-80, 81; Crystal Square at para. 4, 31. I return then to the issue of enforceability of covenants said to “run with the land” in the landlord-tenant context. Applying the rule in Spencer’s Case as summarized in Amberwood , the key question is whether the burdens and benefits under the rooftop lease “touch or concern the land” and are not “merely collateral”: Williams & Rhodes at p. 15-77. To qualify as an obligation touching or concerning the land, a covenant “must either affect the land as regards mode of occupation, or it must be such as per se , and not merely from collateral circumstances, affects the value of the land ”: Rogers v. Hosegood , [1900] 2 Ch. 388 at p. 395, cited with approval in Galbraith v. Madawaska Club Ltd. , [1961] S.C.R. 639 at p. 652. [At paras. 40–1; emphasis added.] [37] He concluded that the burdens and obligations under the Lease sought to be enforced by the plaintiff “run with and bind” each subdivided parcel within the Delta Rise property and “affect the land as regards mode of occupation”. This included the obligation of the lessor and its assigns to take further steps and execute such further documents as might be necessary to allow the leased area to be used for its stated purposes. (At para. 43.) [38] With respect to the relief sought by Marshall Telecom, the Court found that with one exception, it was unnecessary to grant injunctive relief. A declaration that the obligations of the lessor contained in the Lease run with the land and are therefore binding on the strata corporation would “clarify” any uncertainty as to the enforceability of the Lease and there was no suggestion that the defendant would disregard its obligations thus clarified. However, the judge concluded that given that the City of Delta’s approval process had been on hold pending receipt of an application signed by the defendant or a letter from it authorizing Marshall Telecom to proceed with the application on the defendant’s behalf, a mandatory injunction compelling the strata corporation to sign or execute all necessary documents for the application to proceed, would be in order. [39] Marshall Telecom’s claim for damages was adjourned generally. On Appeal [40] The strata corporation filed a notice of appeal in this court on August 15, 2019. It asserts in its factum that the summary trial judge erred in: a.    making the following palpable and overriding errors of fact, errors of law, and/or errors of mixed fact and law, one or more of which caused him to erroneously deny EPS 4044’s application at the outset of the Summary Trial Application to adjourn the hearing pending disclosure of information and documents, including the Disclosure Receipts: committing a palpable and overriding error of fact by concluding that the examination for discovery of Mr. Sharma had been concluded at the time of the Summary Trial Application; ii. committing an error of mixed fact and law by determining that Mr. Sharma's evidence was unchallenged; and iii. committing an error of law by reversing the evidentiary burden. b.    committing an error of law by misconstruing the timing and extent of the disclosure required for an owner developer to contract with itself for its benefit as developer but to its detriment as owner without breaching its fiduciary duty to original purchasers of strata lots. “Adjournment” of Examination for Discovery? [41] I turn to the defendant’s argument that the trial judge committed a palpable and overriding error of fact in finding that Mr. Sharma’s examination for discovery had been “concluded”. Mr. Both relies on the fact that the transcriber of the discovery added “Proceedings adjourned” at the end of the transcript after Mr. Both had stated, “Subject to my requests for information and documents, those are my questions.” It is, of course, not for the transcriber to characterize what, as a matter of law, occurred. Much trouble would have been avoided if counsel had clearly stated that he would want to question Mr. Sharma more after the documents had been provided. The plaintiff’s lawyer could then have taken issue with the idea of “adjourning”, or more helpfully, could have said he intended to proceed with the trial on February 14 but would ensure the requested documents were delivered expeditiously. It could hardly be said those documents were “irrelevant”. As already mentioned, Marshall Telecom in fact delivered a random group of 11 acknowledgments to Mr. Both on February 12, 2019 and told the trial judge at trial that the request to produce all 317 acknowledgments was “too onerous”. Counsel adduced no evidence to this effect. [42] In this unfortunate situation, I expect that many judges might have adjourned the trial to permit counsel to produce all 317 acknowledgments or to cross‑examine Mr. Sharma or his solicitor on the difficulty of producing them. However, the trial judge was mindful of the prejudice this would involve for Marshall Telecom and its licensee. It appears that counsel for the defendant did not apply to cross‑examine Mr. Sharma under R. 9‑7(12) at trial or at any point in the four months over which the trial was heard. Nor, as the judge observed, did the defendant present any evidence of its own or of any of its members to the effect that any strata owner had not received a disclosure statement or had sought rescission of his or her purchase. In these circumstances, it was open to the judge to find there was likely no “real possibility” that further discovery would turn up evidence to the effect that not all purchasers received disclosure statements. [43] As this court stated in Tassone , supra , at para. 38, there is no rule that a discovery must always take place before a matter may be dealt with by way of summary trial. The important question for the trial judge was whether he could find the facts necessary to determine the issues before him. I am not persuaded that Riley J. erred in the exercise of his discretion in deciding that it would not be unjust to proceed in this case, even though the circumstances were less than ideal. Evidence Unchallenged? [44] The defendant also argues that the trial judge fell into error in “failing to identify” that counsel had directly “challenged” Mr. Sharma’s evidence at discovery that the original purchasers of strata lots received and acknowledged receiving disclosure statements. In its factum, the strata corporation submits that it was entitled to challenge Mr. Sharma’s evidence “by way of examination for discovery”. It had exercised that right. It did not have a “duty”, counsel submits, to produce “independent evidence” disproving Mr. Sharma’s “bare assertion” on this point, or to cross‑examine him on his affidavit. [45] As I read the transcript of the discovery, Mr. Both asked various questions about the disclosure statements and received straightforward answers from Mr. Sharma that unambiguously supported Marshall Telecom’s case. Whether the questions amounted to a “challenge” of the deponent’s evidence is perhaps debatable, but Mr. Sharma’s affidavit and discovery evidence were before the Court and were not contradicted by any evidence . In my opinion, it cannot be said the trial judge was wrong, much less clearly and palpably wrong, in finding at para. 29 that the disclosure statements were provided to all purchasers of strata lots at or before the time of purchase. The defendant did not have a “duty” to adduce evidence to the contrary, but if it wanted to prevail at trial, it had to meet the plaintiff’s case. [46] I would not accede to this ground of appeal. Reversed Evidentiary Burden? [47] Finally under this rubric, the defendant submits that by denying its application to adjourn pending production of the acknowledgments and any cross‑examination of Mr. Sharma thereon, the trial judge “effectively shifted” the evidentiary burden from Marshall Telecom to the strata corporation. [48] The term “evidential burden” generally refers in civil litigation to the obligation of a party to adduce evidence such that any motion by the opposite party for a non‑suit will be overcome. As stated in Lederman, Bryant and Fuerst in The Law of Evidence in Canada (4th ed., 2014): A major source of confusion is the failure to describe the effect of the satisfaction of an evidential burden. A party who has the evidential burden must point out the evidence on the record or adduce evidence to the satisfaction of the trial judge. The party who has an evidential burden is not required to prove a fact or issue either on a balance of probabilities or beyond a reasonable doubt. In this sense, “the discharge of an evidential burden proves nothing — it merely raises an issue.” [At §3.26.] The authors also write: In a civil negligence action, the plaintiff must adduce some evidence of the defendant’s negligence to overcome a non‑suit. If the trial judge rules adversely to the plaintiff, the plaintiff will lose the case. If the theory of the defence is contributory negligence, the defendant must point to evidence on the record or adduce sufficient evidence of contributory negligence in order for the trial judge to leave this issue for the jury’s consideration. If the defendant fails to satisfy this evidential burden, the defendant will lose on this issue, although he or she will not necessarily lose the case as the plaintiff must satisfy the persuasive (legal) burden of proof on the issue of the defendant’s negligence. Accordingly, a party who has both the evidential and persuasive burdens on an issue will lose on that issue as a matter of law if that party fails to satisfy the evidential burden. Conversely, if the party has only an evidential burden on an issue, failure to satisfy it will not automatically result in the loss of the case because the trier of fact must still accept the evidence of the party having the persuasive burden on the other issues. If that evidence is indeterminate, the persuasive burden will be applied against the party having the onus of proof. [At §3.33–4.] [49] Proceeding on the basis, then, that where a party satisfies an “evidential burden”, the trier of fact may make a determination favourable to that party in the absence of evidence to the contrary, but is not required to do so, I cannot agree with the notion that an impermissible shifting of the evidentiary burden from the plaintiff to the defendant took place in this case. The fact is that, as the trial judge said more than once, the defendant adduced no evidence to the effect that the original purchasers of all 317 strata lots did not receive disclosure statements, in the form appended to Mr. Sharma’s affidavit, at the time of purchase. Certainly the inference that disclosure statements had been provided to all purchasers was available to the trial judge. The plaintiff met the evidential burden on it to adduce evidence in support of its case and the defendant failed to adduce any evidence to the contrary, or otherwise in support of its defence. I cannot say the trial judge was wrong to reach the conclusion he did. Timing and Extent of Required Disclosure [50] As mentioned earlier, the parties are agreed that the developer was subject to a duty, which counsel described as fiduciary, not to use its position of control over the strata corporation for its own benefit. It is therefore not necessary for us to wade into the debate (which may be limited to the previous statutory regime in Ontario) evident in Cam-Valley, supr a, about the nature of the duty owed at common law by a developer to individual strata lot purchasers. In K.R.C. Enterprises , decided in 2007, Gerow J. referred briefly to Cam-Valley but did not take up this issue. She did adopt the statement of Finlayson J.A. at 635 to the effect that the protection of strata purchasers in this context is “attained by the disclosure requirements of the Condominium Act and must be seen in the context of the full disclosure package”. (At para. 27.) This proposition is consistent with several decisions of our trial court in the REDMA context: see for example 625692 B.C. Ltd. v. The Owners, Strata Plan BCS1492 2015 BCSC 119, per Verhoeven J.; Strata Plan BCS 3165 v. KBK No. 11 Ventures Ltd. 2014 BCSC 2276 per Kelleher J.; and most recently, Interville Development Limited Partnership v. The Owners, Strata Plan BCS2313 2019 BCSC 112 at para. 98, per Warren J. As I understand it, the defendant does not contest this proposition on this appeal. Not having received substantive argument on these points, I do not find it necessary or appropriate to decide it on this occasion. [51] Nor is it necessary to decide whether, as suggested at para. 29 of K.R.C. Enterprises , a purchaser’s access to a title search could constitute, without more , sufficient notice for purposes of overcoming the conflict of interest created by a transaction between the developer and itself or an affiliated entity. I also leave that question for another day. [52] As for the extent of the developer’s disclosure, I am unable to agree with the defendant that Marshall Homes was required to provide an actual copy of the Lease as part of the disclosure statement. As far as I am aware, it is not “standard practice” for the actual lease or other charge to be appended to a disclosure statement and nothing in REDMA suggests such a requirement. In the case at bar, it is reasonable to assume that the Lease did not even come into existence until shortly before its execution on March 30, 2016 — long after the marketing of the strata lots had begun. [53] Cam-Valley does offer some guidance concerning the standard of disclosure applicable in this context. At 635–6, the majority quoted with approval the comments of Robins J.A. for the Court in Abdool v. Somerset Place Developments of Georgetown (1992) 96 D.L.R. (4 th ) 449 (Ont. C.A.): The objective of consumer protection is attained by the requirement of full disclosure under s. 52 of the Condominium Act and must be seen in the context of the full disclosure package. As Robins J.A. stated at p. 145: The vagueness of the requirements and the absence of statutory guidelines mandate a broad and flexible approach --not a rigid or stringent one--in determining whether a given disclosure statement is adequate. As I indicated earlier, the disclosure statement cannot be viewed as separate from and unrelated to the other documents called for by s. 52(6) and (7); it must be seen in the context of the entire disclosure package. The narrative section of the disclosure statement can realistically be expected to do no more than highlight or summarize the most important features of the condominium documents and assist purchasers in comprehending those documents by directing them to the full text . Earlier, Robins J.A. dealt with the standard of compliance by which disclosure is to be measured by the court. He said at p. 136: These disclosure provisions must of course be given a construction consistent with their consumer protection objectives . However, in judging the adequacy of the disclosure for the purposes of deciding whether an agreement is binding, the rights of both parties to the agreement must be taken into consideration. The purchaser is clearly entitled to the information called for by the Act in order to make an informed decision about his or her condominium purchase. At the same time however, once the ten-day period has expired, the vendor is entitled to assume that it has a binding agreement of purchase and sale and to rely on the certainty of that agreement in developing the project and conducting its business affairs. [At 635–6 of Cam-Valley; emphasis added.] [54] Applying this reasoning in the context of the statutory scheme created by REDMA , I see no error in the trial judge’s conclusion that the disclosure statement in the case at bar met the required standard. Anyone reading it would know the purpose for which the Lease would be granted, the “nature” of the equipment that might be required and the fact it would “run with the land”; and would reasonably expect that it would impose positive obligations on the strata corporation to co-operate in giving effect to its terms. If further information was wanted, the Lease was available in the Land Title Office from and after April 13, 2017, the date on which the strata plan was also deposited. Disposition [55] In the result, I would not accede to any of the grounds of appeal asserted by the strata corporation. I would dismiss the appeal. “The Honourable Madam Justice Newbury” I agree: “The Honourable Madam Justice Saunders” I agree: “The Honourable Mr. Justice Harris” Schedule of Legislation Strata Property Act, R.S.B.C. 1998, c. 43 Owner developer's control of strata corporation 5 (1) The owner developer must exercise the powers and perform the duties of a council from the time the strata corporation is established until a council is elected at the strata corporation's first annual general meeting. ( 2) In exercising the powers and performing the duties of a council, the owner developer need not comply with bylaw requirements respecting the constitution of the council or the holding or conduct of council meetings . Owner developer's standard of care 6 (1) In exercising the powers and performing the duties of a council, the owner developer must (a) act honestly and in good faith with a view to the best interests of the strata corporation, and (b) exercise the care, diligence and skill of a reasonably prudent person in comparable circumstances. (2) Without limiting subsection (1), the owner developer must make reasonable efforts to pursue any remedies under warranties in existence with respect to the construction of the common property and common assets. (3) Sections 32 and 33 do not apply to an owner developer exercising the powers and performing the duties of the council, as long as the owner developer complies with subsection (1) of this section. Passing resolutions before first conveyance 8        Before the first conveyance of a strata lot to a purchaser, the owner developer may pass any resolution of the strata corporation permitted or required by this Act or the regulations, including a resolution to amend the strata corporation's bylaws under section 127, without holding a special general meeting. Restriction on contracting powers 10 In the period after the first conveyance of a strata lot to a purchaser but before the first annual general meeting, no contract or transaction may be entered into by or on behalf of the strata corporation with either the owner developer or a person who is not at arm's length to the owner developer, unless the contract or transaction is approved by a resolution passed by a unanimous vote at a special general meeting. Business at first annual general meeting 20      (1) At the first annual general meeting, the eligible voters must elect a council, for a term of one year, in accordance with section 25. (2) At the first annual general meeting, the owner developer must (a) place before the meeting and give the strata corporation copies of all of the following: (i)  all plans that were required to obtain a building permit and any amendments to the building permit plans that were filed with the issuer of the building permit; (ii)  any document in the owner developer's possession that indicates the actual location of a pipe, wire, cable, chute, duct or other facility for the passage or provision of systems or services, if the owner developer has reason to believe that the pipe, wire, cable, chute, duct or other facility is not located as shown on a plan or plan amendment filed with the issuer of the building permit; (iii) all contracts entered into by or on behalf of the strata corporation ; (iv)  any disclosure statement required by the Real Estate Development Marketing Act or section 139 of this Act; (v)  the registered strata plan as obtained from the land title office; (vi)  names and addresses of all contractors, subcontractors and persons who supplied labour or materials to the project, as required by the regulations; (vii)  all warranties, manuals, schematic drawings, operating instructions, service guides, manufacturers' documentation and other similar information respecting the construction, installation, operation, maintenance, repair and servicing of any common property or common assets, including any warranty information provided to the owner developer by a person referred to in paragraph (vi); (viii)  all records required to be prepared or retained by the strata corporation under section 35; (ix)  any other records required by the regulations, and (b) place an annual budget, prepared in accordance with section 21, before the meeting for approval. (3) If the owner developer contravenes subsection (2) (a) and the strata corporation must pay money to obtain a document referred to in that provision, the amount of the payment is money owing to the strata corporation by the owner developer, and sections 112 to 118 apply. [Emphasis added.]

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Burgoyne, 2021 BCCA 51 Date: 20210120 Docket: CA46884 Between: Regina Respondent And Henry Harold Burgoyne Appellant Before: The Honourable Mr. Justice Abrioux The Honourable Mr. Justice Grauer The Honourable Mr. Justice Voith On appeal from: An order of the Provincial Court of British Columbia, dated May 21, 2020 ( R. v. Burgoyne , Cranbrook Dockets 33877‑1; 34378‑2‑C). Oral Reasons for Judgment Counsel for the Appellant (via videoconference): B. Blakley M.A.S. Blakley Counsel for the Respondent (via videoconference): C. Lusk Place and Date of Hearing: Vancouver, British Columbia January 20, 2021 Place and Date of Judgment: Vancouver, British Columbia January 20, 2021 Summary: The appellant pleaded guilty to assault and breaking and entering a dwelling house and committing an indictable offence therein. He appeals a “No Go” condition of his probation order restraining him from being within 100 kilometres of any place one of the victims lives, works, attends school, worships, or happens to be. Held: Leave to appeal granted; appeal allowed in part. The Crown concedes that the condition as worded amounts to a banishment condition and is unreasonable. The circumstances identified by the sentencing judge justify the imposition of a reasonable “No Go” condition. The condition is varied by replacing the words “100 kilometres” with “100 metres”. [1] VOITH J.A. : The appellant, Mr. Burgoyne, applies for leave to appeal from sentence and, if leave is granted, appeals a condition of the probation order that was imposed when he was sentenced. He entered guilty pleas to breaking and entering a dwelling house in Invermere, British Columbia, and committing assault therein, and to assaulting Ms. Arlene Hunter, the sister of his wife, Ms. Betty Burgoyne. He was sentenced for these two offences to 700 days’ jail and 90 days’ jail, respectively, to be served concurrently, less 315 days’ credit for 210 days actual time served, to be followed by three years’ probation. [2] On this appeal Mr. Burgoyne takes issue with a single term of the probation order. That condition requires Mr. Burgoyne to “not go to or be within 100 kilometres of any place where Betty Burgoyne lives, works, attends school, worships, or happens to be” and, in the event he sees her, to “leave her presence immediately without any words or gestures.” [3] The Crown concedes that the impugned condition, as worded, is unreasonable given the length and extent of the geographic restriction but submits that this Court ought to vary, rather than remove, the condition “by substituting metres for kilometres.” Circumstances of the Offences [4] The circumstances of Mr. Burgoyne’s offences were captured in an Agreed Statement of Facts. On October 24, 2019, Mr. Burgoyne entered the residence of Ms. Hunter (defined as the “Residence” in the Agreed Statement of Facts). The Residence is located in Invermere, British Columbia. [5] Mr. Burgoyne was intoxicated when he entered the Residence. He then assaulted Ms. Hunter in the Residence by kneeing her in the stomach. He wanted his wife, Ms. Burgoyne, to go home with him, but she refused, saying that he was drunk. Mr. Burgoyne was told to leave the Residence, which he did after some delay. Mr. Burgoyne left the Residence driving a green pickup truck. He was prohibited from driving at the time under the Motor Vehicle Act , R.S.B.C. 1996, c. 318. [6] Mr. Burgoyne then returned and entered the Residence just after midnight. He was carrying a loaded .22 calibre rifle with the safety on. In the hallway, Mr. Michel, another person at the Residence, wrestled the rifle away from Mr. Burgoyne and pushed him out the door. [7] Mr. Burgoyne was arrested a short time later, while driving the green pickup truck. He later stated to the police that Mr. Michel should have let him walk past so that he could shoot Ms. Hunter. The Reasons of the Sentencing Judge [8] Before the sentencing judge, the Crown sought a custodial sentence of six years. The defence sought a sentence of time served. The sentencing judge, in unreported reasons dated May 21, 2020, read the Agreed Statement of Facts into the record. He addressed Mr. Burgoyne’s circumstances, noting that he was 54 years old, that he was of Indigenous descent, that aspects of his life had been difficult, and that a “thorough” Gladue report had been prepared for the sentencing. [9] He addressed Mr. Burgoyne’s criminal record, which consisted of seven convictions over 37 years. Four of those convictions related to driving while impaired. He had two prior convictions for assault and one for assault causing bodily harm, though each of these latter convictions was dated. [10] The sentencing judge addressed the three victim impact statements that had been filed and dealt with two of them, from Ms. Hunter and Ms. Burgoyne, at some length. [11] The sentencing judge noted that Mr. Burgoyne recognized that “alcohol and anger were factors” in the offences and that he was an alcoholic. The sentencing judge further noted that, unfortunately, Mr. Burgoyne did not see the need to receive any treatment and that he blamed Ms. Hunter for the offences. The sentencing judge then dealt with the mitigating and aggravating circumstances before the court, several of which are relevant to this appeal. [12] The sentencing judge accepted that Mr. Burgoyne “believe[d]” that he had made a stupid mistake and that this would not happen again. It seems clear, however, that the sentencing judge was skeptical about this assurance. He again noted that, unfortunately, Mr. Burgoyne saw “no need to address his alcoholism” and that it appeared he had “no empathy for the harm he has caused to Arlene Hunter and the other victims.” He said, “It is clear Mr. Burgoyne was not traumatized by what happened and that concerns me.” [13] He emphasized that the offences had occurred at a dwelling house, that Mr. Burgoyne knew the house was occupied, and that there had been some violence, which are deemed to be aggravating circumstances under s. 348.1 of the Criminal Code , R.S.C. 1985, c. C‑46. It was also an aggravating factor that there was a firearm involved. He considered that it was a further aggravating factor that the break and enter had occurred twice. He observed that on the first occasion, when he was confronted, Mr. Burgoyne left the Residence. He also said, “Sadly or unfortunately this did not cool off his anger, and he in fact upped the ante and he made everything more terrifying for everyone in that residence.” [14] Still further, the sentencing judge noted that the offences were in the nature of a domestic dispute, and he quoted from portions of s. 718.2(a) of the Criminal Code , which provide that the following are deemed to be aggravating circumstances: (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation [15] The trial judge also noted relevant mitigating factors, including the fact that Mr. Burgoyne had pleaded guilty, that he had generally been a productive member of society, and that he did not have a general pattern of antisocial behaviour. He recognized that Mr. Burgoyne was of Indigenous descent and the resulting importance of s. 718.2(e) of the Criminal Code . He noted that the Gladue report he had reviewed had been helpful and informative and that “without it the sentence would almost certainly have been higher.” [16] Finally, it is relevant that in imposing various conditions of probation, the judge did not impose any rehabilitative conditions. This is notwithstanding the role that alcohol played in these offences and Mr. Burgoyne’s history of difficulty with alcohol. This was, again, on account of the fact that Mr. Burgoyne was not willing to attend counselling, a fact that was confirmed in the Gladue report that was before the court. Instead, various protective conditions were imposed with reference to the conditions as worded and numbered in the General Harmonized 2019 Probation and Peace Bond Picklist (December 16, 2019) (the “Picklist”). [17] Under condition 2002, the judge imposed a “No Contact” condition, prohibiting Mr. Burgoyne from directly or indirectly contacting or communicating with Ms. Hunter, Ms. Burgoyne, or a Mr. Jesse Paul. [18] The judge did not purport to rely on condition 2302‑2, the “Banishment” condition. Instead, under condition 2005‑1, which is described as a “No Go” condition, he imposed a condition that Mr. Burgoyne not go or be “within 100 kilometres of any place where [Ms.] Burgoyne lives, works, attends school, worships, or happens to be.” However, condition 2005‑1, as it appears on the Picklist, starts with the words “you must not go to (or be within ____ metres of)” where one or more named individuals “lives, works, attends school, worships, or happens to be.” When the sentencing judge pronounced this condition, the defence inquired, and the judge confirmed, that he had intended to impose a 100‑kilometre restriction. The General Legal Framework [19] Sentencing judges have considerable latitude in crafting appropriate conditions of probation: R. v. Shoker , 2006 SCC 44 at para. 14; R. v. Goddard , 2019 BCCA 164 at para. 19. The sentencing judge’s decision about which conditions to include in a probation order involves an exercise of discretion. An appellate court will intervene in that exercise of discretion only if the judge has erred in principle, imposed a condition that is clearly unreasonable, or if the order is manifestly inappropriate or renders the sentence unfit: Goddard at para. 19; R. v. Manca , 2019 BCCA 280 at para. 42. [20] Under the residual clause in s. 732.1(3)(h) of the Criminal Code , a judge has broad authority to impose reasonable conditions that are considered desirable to protect the public and to facilitate an offender’s reintegration into the community: Manca at para. 39. [21] Conditions of probation do not have to be linked to the offence. There must, however, be a nexus between the offender, the protection of the public, and the offender’s reintegration or rehabilitation into the community: R. v. Duguay , 2019 BCCA 53 at para. 65, citing Shoker at para. 13. Furthermore, conditions may serve either one or both of the purposes of protection of the public and rehabilitation: R. v. Timmins , 2006 BCCA 354 at para. 9; Goddard at para. 23; Duguay at para. 63. Finally, conditions must be clear, unambiguous, enforceable, and compliant with federal and provincial laws and the Charter : Goddard at paras. 20–23. [22] Mr. Burgoyne reasonably characterizes the condition at issue, which adopts the language of a “No Go” condition from the Picklist, as amounting to a banishment condition due to its geographic scope. The Crown agrees with this characterization. Banishment conditions are rare: R. v. Forner , 2020 BCCA 103 at para. 53. They are often viewed as “fundamentally wrong”: Forner at para. 53. In R. v. Rowe (2006), 212 C.C.C. (3d) 254 at para. 7, the Ontario Court of Appeal said, “Plainly, the larger the ambit of the banishment, the more difficult the order will be to justify.” [23] Counsel accept that, if the sentencing judge has made an error in principle, this Court can undertake its own analysis to determine a fit sentence or condition of probation: R. v. Friesen , 2020 SCC 9 at para. 27; Manca at paras. 42, 53, 56. Analysis [24] Mr. Burgoyne raises various concerns in relation to the condition that the judge imposed. I have said that the Crown agrees that the condition was inappropriate in the circumstances of this case. There is, accordingly, no need to address aspects of the specific concerns that are raised and developed by Mr. Burgoyne. [25] The only question is whether the No Contact condition that was imposed by the sentencing judge is sufficient, without more, in the circumstances of this case. Alternatively, is a new “No Go” restriction, which limits Mr. Burgoyne’s ability to go within some reasonable physical distance of where Ms. Burgoyne lives, works, attends school, worships, or happens to be, reasonable in the circumstances of this case? [26] Not surprisingly, such determinations are largely case specific. In R. v. Deering , 2019 NLCA 31, the accused appealed a condition of his probation order that barred him from being present on any part of the Burin Peninsula in Newfoundland south of a particular bridge. He had an “unenviable criminal record” of 82 convictions over 17 years. Of those convictions, 36 involved breaches of probation: at para. 6. The court observed that “the appellant’s criminal history demonstrates an unwillingness or inability to abide by court orders in general and no‑contact orders in particular”: at para. 22. The court upheld the challenged condition of probation. [27] In Forner , the appellant appealed both her custodial sentence and a condition in her probation order that prevented her from being within a 50‑kilometre radius of Osoyoos, British Columbia, other than with the written permission of her probation officer. The Court noted that at the time of the offence, the appellant had a 16‑year history of alcohol abuse. She expressed what was considered to be genuine and significant remorse about the offence but said she had no memory of it: at para. 12. The Court subsequently emphasized the appellant’s genuine remorse, her post‑offence rehabilitation efforts, and her lack of any record of violent behaviour: at para. 50. When addressing the banishment condition, the Court noted the condition would force the appellant to live outside of her community of ordinary residence, thereby likely hindering her rehabilitation: at para. 59. There was also no reason to believe that the condition would render society safer or more secure: at para. 60. [28] Notably, in Forner , the Court considered that there were other conditions in place that would protect the victim of the appellant’s attack. This included both a prohibition on the appellant having any direct or indirect contact or communication with the victim or her family and a further prohibition that prevented her from going to any residence, school, or workplace of the victim or members of her immediate family: at para. 60. Accordingly, the Court considered that “the safety of the victim and her children has been addressed”: at para. 60. [29] In this case, Mr. Burgoyne’s primary submission is that there is no basis for a “No Go” condition because there is no evidence that he poses a risk or danger to his wife. In aid of this submission his counsel identifies, for example, that it was Ms. Hunter, rather than Ms. Burgoyne, who was assaulted. [30] This mischaracterizes what occurred. Mr. Burgoyne broke into the Residence to get his wife to leave with him, in circumstances where she made clear that she did not wish to do so. Ms. Hunter was assaulted because she appears to have been in the way. He later returned to the Residence with a loaded weapon. Furthermore, the assertion that he did not assault Ms. Burgoyne, or poses no risk to her, ignores the significant distress and ongoing anxiety that he has caused her. She too was a victim of his actions. [31] Mr. Burgoyne also argued, in the alternative, that some of the language of the “No Go” condition the sentencing judge imposed should be varied to address various potential scenarios and changes of circumstance. Under s. 732.2(3) of the Criminal Code , it is open to Mr. Burgoyne, should there be such a change of circumstance, to return before the sentencing judge and to seek a variation of the conditions of his probation. [32] In the present circumstances, the various conditions of probation that the sentencing judge imposed were protective, rather than rehabilitative, in nature. Mr. Burgoyne showed no remorse for his offences. His offences took place in an occupied dwelling house and were violent in nature. He showed no interest in addressing his difficulties with alcohol, though he recognized that they had likely fueled his behaviour. He also had some history of violence, albeit dated. The victim impact statements the judge referred to established that Mr. Burgoyne’s behaviour had caused Ms. Burgoyne considerable anxiety and concern for her safety. [33] There is a clear nexus between a reasonable “No Go” condition and Mr. Burgoyne’s offences. Such “No Go” conditions, though restrictive, are frequently justified in the case of violent and other offences. There is often no good reason for an offender who has committed a violent offence to be within a limited but fixed distance of the victim or the places she frequents. [34] Further, as previously noted, Mr. Burgoyne drove his pickup truck while prohibited from driving under the Motor Vehicle Act . He was sentenced simultaneously on a separate information for a guilty plea to operating a motor vehicle while prohibited. The sentencing judge referred to a statement attributed to Mr. Burgoyne in his Gladue report that he has never had a driver’s licence, and the judge noted that Mr. Burgoyne appeared to have “no intention of complying with the law”. This demonstrates some unwillingness on Mr. Burgoyne’s part to abide by legal prohibitions. [35] Accordingly, I would grant leave to appeal from sentence and allow the appeal to the extent of varying the “No Go” condition that was imposed by the sentencing judge by replacing the words “100 kilometres” with “100 metres”. [36] ABRIOUX J.A. : I agree. [37] GRAUER J.A. : I agree. [38] ABRIOUX J.A. : Leave to appeal from sentence is granted and the appeal is allowed to the extent of varying the “No Go” condition that was imposed by the sentencing judge by replacing the words “100 kilometres” with “100 metres”. “The Honourable Mr. Justice Voith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Jacques v. Rona Inc., 2021 BCCA 37 Date: 20210121 Docket: CA47033 Between: Chang Jacques Appellant (Petitioner) And Rona Inc. Respondent (Respondent) Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Fitch The Honourable Madam Justice Griffin On appeal from:  An order of the Supreme Court of British Columbia, dated August 27, 2020 ( Jacques v. Rona Inc. , 2020 BCSC 1262, New Westminster Docket S207804). Oral Reasons for Judgment The Appellant, appearing in person (via videoconference): C. Jacques Counsel for the Respondent (via videoconference): E.J.F. Grant Place and Date of Hearing: Vancouver, British Columbia January 18, 2021 Place and Date of Judgment: Vancouver, British Columbia January 21, 2021 Summary: Appeal from an order denying the appellant’s request to file process in the Supreme Court and prohibiting the appellant from filing documents connected with the proceedings. Held: appeal dismissed. The appellant failed to identify a reviewable error. [1] BAUMAN C.J.B.C. : The appellant appeals from an order by a Supreme Court judge denying her leave to file process in that court, essentially re-litigating matters judicially considered and disposed of. The order further prohibits the filing of “any document in the registry of this Court that is in any way connected with the subject matter of this proceeding”. [2] The background of the matter is fully set out in the reasons of the Supreme Court judge indexed as 2020 BCSC 1262. [3] I conclude that the appellant has not identified any reviewable error in the order made below and I would dismiss the appeal with costs to the respondent. I would dispense with the appellant’s approval of the order dismissing this appeal. [4] FITCH J.A. : I agree. [5] GRIFFIN J.A. : I agree. [6] BAUMAN C.J.B.C. : The appeal is dismissed. “The Honourable Chief Justice Bauman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. A.B. , 2021 BCCA 20   REDACTED Date: 20210121 Docket: CA45531 Between: Regina Respondent And A.B. Appellant Restriction on publication:  A publication ban has been imposed under s. 486.5(1) of the Criminal Code restricting the publication, broadcasting, or transmission in any way of information that could identify the appellant, referred to in these reasons for judgment as A.B. SEALED FILE An order has been made by this Court sealing all materials in the court file and directing that the appeal proceed under the style of cause, Regina v. A.B., 2019 BCCA 387. This published judgment has been redacted from the original reasons for judgment, which have been sealed. These redacted reasons set out the background to the case and explain, in as much detail as is appropriate in the circumstances, the legal issues raised in the appeal and the resolution of those issues. Before: The Honourable Mr. Justice Goepel The Honourable Mr. Justice Hunter The Honourable Mr. Justice Voith On appeal from:  An order of the Supreme Court of British Columbia, dated February 28, 2018 ( R. v. [A.B.] , 2018 BCSC 1371, Revelstoke Docket 22872-2). Counsel for the Appellant: T.M. Arbogast K.A. Kirkpatrick Counsel for the Respondent: J.N. Walker Place and Date of Hearing: Vancouver, British Columbia September 29, 2020 Place and Date of Judgment: Vancouver, British Columbia January 21, 2021 Written Reasons by: The Honourable Mr. Justice Hunter Concurred in by: The Honourable Mr. Justice Goepel The Honourable Mr. Justice Voith Summary: The appellant appeals his conviction for possession of cocaine for the purpose of trafficking. He argues that the search of his truck that uncovered the drugs violated his Charter right to be secure from an unreasonable search and seizure. He further submits that the trial judge erred in assessing whether the Crown had proved the mens rea element of the offence beyond a reasonable doubt. Held: Appeal dismissed. The search was authorized by statute and was not unreasonable. There was no error in the trial judge’s finding that the mens rea was proved beyond a reasonable doubt. Reasons for Judgment of the Honourable Mr. Justice Hunter: [1] The appellant was convicted of possession of three kilograms of cocaine for the purpose of trafficking. The cocaine was discovered in a duffel bag found during a search of the commercial tractor-trailer the appellant was driving, after the appellant was pulled over for erratic driving. The location of the duffel bag was variously described by the parties in a toolbox (by the Crown) or the sleeping compartment in the cab (by the appellant). [2] The appellant appeals on two grounds. First, the appellant submits that the search that uncovered the cocaine was unlawful, and the trial judge erred in admitting the evidence resulting from the search. Second, he argues that the judge erred in concluding that the Crown had established that the appellant had the requisite mens rea to commit the offence. [3] As this Court explained in R. v. Bacon , 2020 BCCA 140, there are rare cases that demand protection of privileged and confidential information to the degree that the reasons must be sealed to allow the issues engaged to be adjudicated. This is such a case. Due to the sensitive nature of certain information in this appeal, a sealing order and publication ban are in place. The unredacted reasons are sealed. The analysis of the appellant’s second ground of appeal, relating to the trial judge’s approach to proof of mens rea , is redacted to be suitable for publication. These redacted reasons set out the background to the case and explain, in as much detail as we are allowed, the legal issues raised in the appeal and the resolution of those issues. [4] The characterization of the location of the cocaine drives the first issue raised by the appellant, who contends that the warrantless search that led to the discovery of the drugs exceeded the authority of the arresting officer. The appellant submits that an accused person has a protected expectation of privacy in the sleeping compartment of a commercial truck, and in any event, the intended purpose of the stop had already been satisfied. This issue turns largely on the findings of fact made by the trial judge, assessed in light of the principles explained by the Supreme Court of Canada in R. v. Nolet , 2010 SCC 24. [5] In my view, for the reasons that follow, the principles in Nolet govern this appeal. I am not persuaded that the trial judge erred in his application of those principles. [6] The second issue raised by the appellant arises from his testimony at trial providing exculpatory evidence about whether the mens rea element of the offence was satisfied. The trial judge rejected the appellant’s explanation and concluded that the Crown had proved the requisite mens rea beyond a reasonable doubt. The appellant submits that in coming to this conclusion, the trial judge failed to properly apply the principles set out in R. v. W.(D.) , [1991] 1 S.C.R. 742. [7] For the reasons that follow, I do not agree that the trial judge failed to follow the principles in W.(D.) in finding that the appellant had the requisite mens rea for the offence. Admissibility of the Evidence of Cocaine Possession [8] The question of admissibility of the cocaine found in the tractor-trailer the appellant was driving was addressed at a voir dire . The judge’s restricted reasons are indexed at 2017 BCSC 2672. [9] During the voir dire , the arresting officer, Constable Coleman, testified that after he pulled over the appellant, he asked the appellant to produce his logbook, licence and fuel receipts, required under the Motor Vehicle Act Regulations, B.C. Reg. 26/58 [ Regulations ]. The appellant produced his logbook, but there were no entries within the prior four days, which is an offence under the Regulations . [10] Constable Coleman advised the appellant that he was going to be placed out of service for a minimum of eight hours and possibly up to 72 hours. The appellant asked to be able to drive the truck about three kilometers up the road to a parking lot at a motel. At the parking lot, Constable Coleman conducted a search of the vehicle. He located the duffel bag containing the cocaine in what he described as a jockey box or toolbox. The judge described the location of the toolbox in this way: [9]        Constable Coleman was aware that evidence of log books might be concealed in the toolbox area. The toolbox was used to store items required for the operation and maintenance of the tractor-trailer unit. Included in the items typically carried in the toolbox was lubrication oil, tie-on straps, windshield washer fluid, road flares, and dirty rags. [10]      The toolbox was divided off in a separate compartment from the sleeping area. The officer was aware that the driver had an expectation of privacy with respect to the bed and the closet. He did not search the bed, the bedding, or clothing. [11] Constable Coleman testified that the toolbox was also accessible from the exterior of the truck, but that the easiest way to search the toolbox area was to lift the bed and look down on the toolbox. [12] The judge described the discovery of the drugs in this way: [3]        Constable Coleman lifted up the bed in the sleeping berth of the truck and looked into the toolbox area. He saw a bag partially open and showing a brick of cocaine. In the bag there were other two similar-sized bricks of cocaine weighing about 1,065 grams respectively. The officer arrested [A.B.] for possession of drugs for the purposes of trafficking. [13] The judge accepted Constable Coleman’s evidence that he was searching for the missing logbooks when he searched the truck. He concluded that the search was authorized by statute and was carried out lawfully. The evidence of the cocaine was admitted. [14] In this Court, the appellant alleges that the judge erred in admitting the evidence on the basis that the search was unreasonable and violated the appellant’s Charter rights. He raises two issues in relation to the search, which he frames as follows: 1.       Did Constable Coleman have the authority to engage in a further search of the vehicle after he had determined that the appellant was non-compliant and had issued him a violation ticket? 2.       If Constable Coleman had the authority to engage in a further search, was that search properly conducted or did Constable Coleman step out of bounds when he searched the sleeping compartment of the truck and lifted up the bed? Authority to Search [15] The power to search commercial vehicles is set out in s. 239(1) of the Motor Vehicle Act , R.S.B.C. 1996, c. 318 [ MVA ], as follows: A peace officer may, without a warrant, search a business vehicle on a highway to determine whether this Act and the regulations are being complied with in the operation of that business vehicle, and for that purpose may require the driver of the business vehicle to stop the business vehicle and permit the search to be made. [16] The appellant submits that once Constable Coleman was presented with incomplete logbooks and had decided to issue a ticket, there was no further reason (nor further authority) for any search. He further submits that apart from accepting Constable Coleman’s evidence that he was looking for logbooks, the judge did not address the issue of why a search for missing logbooks was necessary when the appellant had been unable to produce them when requested to do so. He concludes that the judge erred in interpreting s. 239 to permit a further search in these circumstances. [17] In my opinion, the judgment in Nolet provides a complete answer to this ground of appeal. In Nolet , a commercial truck was pulled over by a police officer for a random spot check. The officer noticed an expired fuel sticker on the outside of the vehicle. Driving without a current sticker was a provincial offence. The officer asked for the logbook and vehicle registration. The logbook was incomplete, and the vehicle registration had not been prorated for commercial driving in Saskatchewan, which was also a provincial offence. The officer conducted an initial search of the trailer, looking for documents to confirm or dispute the contents of the logbooks. Instead he found a duffle bag containing more than $100,000 in small denominations. After police back-up was summoned, the officer conducted a further search of the trailer, and discovered a hidden compartment containing significant volumes of prohibited drugs. The question for the Court was whether this sequence of searches violated Mr. Nolet’s Charter right to be secure from unreasonable search or seizure. The Court held that it did not. [18] The statutory authority at issue in Nolet was s. 63(5)(b) of the Highways and Transportation Act, 1997, S.S. 1997, c. H-3.01 [ H&TA ], which read as follows: 63 (5)  Where the peace officer or the person appointed by the minister has reasonable grounds to believe that a vehicle is being operated in contravention of … a regulation made pursuant to clauses 69(1)(v) to (oo), the peace officer or person appointed by the minister may: (b) search the vehicle for evidence of an offence [19] The Supreme Court held that, armed with this statutory authority, the police officer was authorized to search for further evidence of provincial offences: [28]      There is no doubt that, after the initial stop, the officer quickly obtained reasonable grounds to believe that the appellants were operating the truck in violation of the H&TA , having regard to the lack of a truck licence valid in Saskatchewan, the display of an expired fuel sticker and inconsistent entries in the driver’s logbook. At the time the officer began to investigate the cab of the tractor unit, it was quite within his statutory authority to search for further evidence related to H&TA offences. [20] The Court concluded that “the search of the tractor-trailer rig for relevant papers was authorized by s. 63(5)(b)”: para. 29. [21] The appellant seeks to distinguish Nolet from the circumstances at bar on the basis that the Saskatchewan statute has preconditions for a warrantless search, whereas the MVA does not. The only precondition for a search contained in s. 63(5)(b) is that the police officer must have reasonable and probable grounds for believing that the vehicle was being operated in contravention of regulation. Section 239 of the MVA does not contain such precondition, but in my view it does not follow that the statutory authority granted is less broad than the Saskatchewan statute under consideration in Nolet . I note that, as in Nolet , the reasonableness of the law itself is not challenged on this appeal. [22] The appellant also argues that Constable Coleman was acting on a “good hunch” rather than on reasonable grounds because appellant had a history of criminal activity and had admitted his failure to comply with the logbook regulations. However, the trial judge specifically considered, and rejected, the defence argument that the officer’s reliance on the MVA and the Regulations to search the vehicle was merely a “ruse” to uncover drugs or guns. He accepted Constable Coleman’s evidence that he was searching the toolbox to look for logbooks: at paras. 16, 24, 26, 30. There is no basis to disturb this conclusion on appeal. [23] The Supreme Court of Canada in Nolet went on to address whether the specific search was reasonable, as I will discuss in the next section of this judgment, but in my view the conclusion of the Court that the officer in Nolet was justified in conducting a search once he was aware of a provincial infraction is not materially distinguishable from the conclusion reached by the trial judge in the case at bar. I would not give effect to the first ground in relation to the initial decision to search the truck. The Location of the Search [24] The second objection to the search raised by the appellant is the location of the search, near the sleeping compartment of the truck. The appellant submits that he had an expectation of privacy in the sleeping compartment of the truck, which was violated when Constable Coleman accessed the toolbox by lifting the sleeping berth from within the cab of the truck. [25] The Court in Nolet dealt with this issue as well and concluded that in light of the possibility of mandatory inspections and searches, there could be little expectation of privacy, even in the sleeping area of the truck: [31]      While the appellants did not testify about their subjective belief, the court may presume that individuals would expect a measure of privacy in what, for a long-distance trucker, suffices as a temporary mobile home. The expectation is objectively reasonable because living quarters, however rudimentary, should not be classified as a Charter -free zone: Johnson v. Ontario (Minister of Revenue) (1990), 75 O.R. (2d) 558 (C.A.), and R. v. Belnavis , [1997] 3 S.C.R. 341. Nevertheless, the level of expectation is necessarily low because the cab of a tractor-trailer rig is not only a place of rest but a place of work, and the whole of the cab is therefore vulnerable to frequent random checks in relation to highway transport matters . As Wilkinson J.A. pointed out, “[k]nowledge of the transportation legislation is a requirement to be licensed as a driver. The [appellants] would be well aware of the possibility of mandatory inspections and searches, whether for documents or for potential violation of any one of the countless obligations imposed by the regulatory scheme” (para. 70). Accordingly, there can be little expectation of privacy, even in the sleeping area of a truck (particularly one which is travelling in violation of relevant highway regulations). A stop may quickly precipitate a search, and the occupants either know or ought to know of that reality and govern themselves accordingly. [Emphasis added.] [26] Thus the search of the toolbox, located below the sleeping berth, was not, without more, a violation of the appellant’s right to be secure from unreasonable search or seizure. [27] The appellant submits, however, that this principle cannot apply if the statutory authorization for the search prohibits entry to the sleeper area of the truck. He relies on s. 37.19.02(1) of the Regulations , which reads as follows: A peace officer may at any reasonable time enter or stop and enter a commercial motor vehicle, except for its sleeper berth , for the purpose of inspecting the daily logs and supporting documents. [Emphasis added.] [28] The trial judge addressed this argument in his voir dire ruling. After reviewing s. 239 and s. 37.19.02(1), as well as the definition of “sleeper berth” found in Schedule 1 of the Regulations , the judge concluded as follows: [22]      Based on those provisions, I am also satisfied that Constable Coleman was entitled to search the toolbox. It was not part of the sleeper berth . [23]      The mere fact that [A.B.] may have stored some of his personal items in the toolbox does not change the character of that area to become part of the sleeper berth. It is apparent from looking at the contents of the toolbox that the items stored in it were to be used for the operation and maintenance of the truck. [Emphasis added.] [29] I conclude that on the findings of fact by the trial judge, the toolbox where the drugs were located was not part of the sleeper berth such that the search of the toolbox can be said to have been in violation of s. 37.19.02(1) of the Regulations . [30] The secondary argument of the appellant is that the entry to the area of the sleeper berth was itself contrary to s. 37.19.02(1), rendering the subsequent search illegal. The implication of this argument is that the regulation limits the scope of the general statutory authority in s. 239 of the MVA to “search a business vehicle on a highway to determine whether this Act and the regulations are being complied with in the operation of that business vehicle.” I cannot agree that the regulation has the effect of qualifying the general power contained in the statute. [31] On its face, s. 37.19.02(1) relates to an inspection of the daily logs and supporting documents, not the search for undisclosed logbooks. To the extent that there may be overlap between the authority to inspect daily logs of commercial motor vehicles and the authority to search business vehicles for documents evidencing non-compliance with regulations, I do not consider that the regulation could be read as prevailing over the general power expressed in the statute: see Friends of the Oldman River Society v. Canada (Minister of Transport) , [1992] 1 S.C.R. 3 at 38–39. [32] Accordingly, it is my view that s. 239 of the MVA authorized the search of the toolbox, notwithstanding that the police officer located the toolbox beneath the sleeper berth of the truck and notwithstanding the provisions of s. 37.19.02(1) of the Regulations . The law recognizes broad powers for search of commercial vehicles when the purpose of the search is regulatory oversight: R. v. Kenyon , 2010 MBCA 70 at para. 7. The trial judge did not err in admitting the evidence of the cocaine that was seized pursuant to this search. Proof of the Mens Rea Requirement [33] At trial, the appellant gave exculpatory evidence relating to the mens rea element of the offence. Two other witnesses gave evidence relevant to this issue, and certain parts of their evidence were contradictory. I will refer to these witnesses as “Witness A” and “Witness B”. The appellant’s position was that his evidence, combined with contradictory evidence given by the other two witnesses, raised a reasonable doubt about whether the Crown had proved mens rea . [34] The trial judge recognized that the issue was whether the appellant had the requisite mens rea to commit the offence, which engaged the principles set out in W.(D.) . He summarized the question before him in this way: [7]        The Crown must prove the case against [A.B.] beyond a reasonable doubt. The burden of proof remains with the Crown throughout the case. The burden never shifts to [A.B.]. [A.B.] has testified. Where an accused testifies, the convenient manner of analyzing the issues is set out in the W.(D.) ( R. v. S. (W.D .), [1994] 3 S.C.R. 521 line of cases. It requires the trier of fact to follow the following principles: 1)   if I believe the testimony of [A.B.] that he did not commit the offence charged, I must find him not guilty; 2)   if I do not believe the testimony of [A.B.], but if it leaves me with a reasonable doubt about his guilt, I must find him not guilty; 3)   if I do not know whom to believe, it means I have a reasonable doubt and I must find [A.B.] not guilty; and 4) even if the testimony of [A.B.] does not raise a reasonable doubt about his guilt, if, after considering all of the evidence, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit. [8]        These four principles are simply a convenient way of describing the court’s duty to consider the whole of the evidence on every issue. [35] The appellant takes no issue with this statement of principle, but argues that in his assessment of the evidence, the judge did not apply the W.(D.) principles properly. [36] The judge reviewed the testimony of the three witnesses. He held that the evidence of the appellant was not reliable, and identified some specific contradictions in his testimony. With respect to the other two witnesses, the judge found Witness A to be reliable and specifically accepted his version of the evidence where it contradicted that of Witness B. The judge also accepted Witness B’s testimony, except where it contradicted Witness A’s evidence. Part of the evidence from Witness A and Witness B that the judge accepted tended to contradict the exculpatory evidence the appellant gave relating to his mens rea . [37] It is this part of the judge’s reasoning that the appellant submits demonstrates error in assessing his mens rea . The appellant submits that the judge failed to grapple with the significance of the inconsistency between the evidence of the two witnesses, which in turn undermined the strength of the Crown’s case. He relies on the judgment of the Ontario Court of Appeal in R. v. M.G. (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), for the proposition that if there is a significant inconsistency in a witness’s testimony then the trial judge must pay careful attention to it when assessing the reliability of the witness’s evidence. [38] In my view, the judge’s reasons addressing the inconsistency in Witness B’s evidence demonstrate that he paid careful attention to the inconsistency, and explain why he did not consider it sufficiently significant to affect the reliability of the evidence that related more directly to the issue at hand, the appellant’s mens rea to commit the offence. [39] The judge went on to conclude that he was satisfied the appellant had the requisite mens rea to commit the offence of drug trafficking. In particular, he found the Crown had proved beyond a reasonable doubt that the appellant had the intention of transporting or delivering cocaine. He therefore found the appellant guilty as charged. [40] The judge was entitled to accept all, part or none of Witness B’s testimony. He accepted the witness’s testimony that was most relevant to the appellant’s mens rea , which tended to contradict the appellant’s evidence . It was unnecessary for the judge to go further and expressly state that he did not have a reasonable doubt about the appellant’s guilt: R. v. R.E.M ., 2008 SCC 51 at para. 56. [41] The judge correctly articulated the principles from W.(D.) that he was to follow. I can see no error in his application of these principles in his judgment. [42] For the foregoing reasons, I would dismiss the appeal. “The Honourable Mr. Justice Hunter” I AGREE: “The Honourable Mr. Justice Goepel” I AGREE: “The Honourable Mr. Justice Voith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Clayton , 2021 BCCA 24 Date: 20210121 Docket: CA45683 Between: Regina Respondent And Larry Daniel Clayton Appellant Before: The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Goepel The Honourable Mr. Justice Abrioux On appeal from:  An order of the Supreme Court of British Columbia, dated November 18, 2016 (conviction) ( R. v. Clayton , 2016 BCSC 2153, New Westminster Docket X078546). Counsel for the Appellant (via videoconference): B.R. Anderson Counsel for the Respondent (via videoconference): E.V. Gottardi, Q.C. R.A. McConchie Place and Date of Hearing: Vancouver, British Columbia December 1, 2020 Place and Date of Judgment: Vancouver, British Columbia January 21, 2021 Written Reasons by: The Honourable Madam Justice MacKenzie Concurred in by: The Honourable Mr. Justice Goepel The Honourable Mr. Justice Abrioux Summary: The appellant was convicted of assault and unlawful confinement following a trial by judge alone in the BC Supreme Court. He and the complainant had been in an intimate relationship and her pregnancy was a source of conflict. On appeal, the appellant argued the trial judge erred in refusing to direct the complainant to answer questions in cross‑examination about whether she had an abortion, and if so, when. Held: Appeal dismissed. The information sought by the defence was relevant to its theory about the complainant’s motive to lie, and was therefore relevant to her credibility. However, the trial judge did not err in refusing to direct the complainant to answer the questions. The Crown put the information sought on the record. Once that information was before the judge, it was no longer a live issue and there was no need to cross‑examine the complainant to obtain the same information. The appellant was not prevented from arguing his theory on motive, nor was he otherwise limited in his defence. Reasons for Judgment of the Honourable Madam Justice MacKenzie: Introduction [1] After a trial by judge alone in the Supreme Court of British Columbia, the appellant was convicted of assault and unlawful confinement, contrary to ss. 266 and 279(2) respectively, of the Criminal Code , R.S.C. 1985, c. C‑46. [2] The appellant and the complainant had been involved in an intimate relationship. The charges arose from the complainant’s allegations that the appellant assaulted her and forced her into his car, verbally abusing and threatening her. The conflict centered on the complainant’s pregnancy with the appellant’s child about which she did not wish to speak to the appellant. [3] The appellant represented himself at trial except that pursuant to s. 486.3(3) of the Criminal Code , the judge appointed counsel to cross‑examine the complainant (“counsel”). During cross‑examination, counsel asked the complainant whether she had had an abortion. The complainant replied that she did not feel comfortable answering that question. Counsel then asked the judge to direct the complainant to answer the question. The Crown had disclosed to the appellant both the fact and date of the abortion, which the Crown admitted for the record. [4] Following submissions, the judge declined to order the complainant to answer the questions proposed by counsel (the fact and the date of the abortion). The judge said he was fully aware the complainant was pregnant when the assault and unlawful confinement allegations arose and that the appellant would be upset if she were not going to have the baby. In light of the circumstances, including the Crown’s “admission”, the matter was not in issue. Accordingly, the judge did not “see any point in putting the witness through it”. [5] The sole ground of appeal is whether the appellant’s trial was unfair because the judge declined to order the complainant to answer counsel’s proposed questions. [6] In my opinion, the judge properly exercised his discretion not to order the complainant to respond to the questions. I would therefore dismiss the appeal. The Evidence at Trial [7] The complainant was the key witness at trial. The outcome depended primarily on the judge’s assessment of her credibility. In support of the complainant’s evidence, the Crown adduced a surveillance video from outside of the complainant’s home. It showed part of her interaction with the appellant at the material time. Three police officers and one civilian gave evidence as to the authenticity of the surveillance video. The Crown also adduced text messages the appellant had sent to the complainant after the allegations arose. There is no issue on appeal regarding either the surveillance video or the text messages. One of the police officers who attended the complainant’s home on March 1, 2015, to take her statement testified that she seemed fearful. [8] The appellant did not testify. He called one witness who gave uncontroversial evidence related to the surveillance video. The Complainant’s Evidence [9] To give context to the issue on appeal, I will review the complainant’s evidence in some detail. [10] At the time of trial, the complainant was 24 years old. She immigrated to Canada in 2003 and had been living in British Columbia ever since. [11] The complainant met the appellant in October 2014. Early in their relationship, things went well. After a month, however, the complainant testified that the appellant became jealous and controlling. In one incident in November 2014, he yelled, swore, and damaged her cellular phone upon seeing another man’s name on her call display. There were other instances of yelling and expressions of jealousy by the appellant, but the two remained friends. [12] On the morning of February 27, 2015, the appellant appeared unannounced at the complainant’s home and drove her to work. He said he wanted to talk to her. He was aware she was pregnant and was concerned about her intentions regarding the baby. The complainant testified that he wanted her to have this baby. Later that day, the appellant picked up the complainant from work and drove her home. [13] On the evening of February 27, 2015, the complainant went to a nightclub in New Westminster. On arriving, she noticed the appellant, despite their lack of plans to see each other. He again asked to talk to her, but the complainant declined. She also later declined the appellant’s request to drive her home. At about 2:00 a.m., the complainant took a taxi home with her friend, Chad. [14] The taxi dropped off the complainant in front of a house next door to her home. She saw the appellant’s car in the driveway. It was approximately 2:30 a.m. The complainant testified that as she walked towards her home, the appellant got out of his car and said again that he wanted to talk to her. She refused. The appellant asked who was in the taxi with her, to which she responded, “It was Chad.” She testified that the appellant then “lost it” and punched a gate. [15] The complainant went through the gate, but tripped and landed flat on her back. The appellant was then on top of her, straddling her body, threatening her, and yelling a lot. The complainant said he grabbed her neck and she fainted. [16] When the complainant eventually got up, she said the appellant took her to his car and put her in the front passenger seat. (In her examination‑in‑chief, the complainant was asked if she tried to move away from the appellant when he was taking her to his car. She testified that she did not because the appellant said he was going to punch her in the face.) She testified that she tried to get out of the car, but the appellant said, “Don’t even try”. The complainant was scared. Once the appellant started driving the car away from the complainant’s home, the complainant attempted to call 9‑1‑1 but the appellant took away her cellular phone. The complainant testified that the appellant drove her to a parking lot in the Guildford area (the “parking lot”), a neighbourhood in Surrey, and during the car ride, he kept yelling at her and calling her names. He was angry. She “zoned out” and awoke with her head on the appellant’s lap in the parking lot. The appellant then said, “If you try anything … I’m going to do it again”. [17] While the two were in the appellant’s car in the parking lot, the appellant used his cellular phone to call a friend named “Ty”. The complainant testified that she heard the appellant say, “If you don’t hear back from me by this time ... go take care of [the complainant]’s family”, which the complainant understood meant to kill her family. The appellant had referred to her by her nickname. [18] The appellant eventually drove to the complainant’s home. She testified that she “zoned out” and did not recall what was said or whether the appellant followed her into the house as she was “so weak … and tired.” She later recalled that the appellant had walked her to the door before eventually leaving. [19] The next day, the complainant called her workplace and said she was sick. The appellant returned to her home. The complainant testified that he stayed almost the whole day and said at one point, “You can’t keep me away from my child”. By then she had decided “what [she] was going to do with the baby”, but did not tell the appellant. (The trial judge inferred from this that she had decided to have an abortion.) Later that day, the complainant’s sister called the police who attended and took a statement. [20] The complainant was shown a surveillance video taken from a camera attached to the outside of the house where she lived with her sister and her brother. The camera had a view towards the street. It showed the road in front of the property and the driveway leading up to the gate that led to the entrance of the complainant’s home. [21] The complainant provided identification commentary on the video surveillance footage. Its clarity was poor, so without the assistance of the complainant, it was not possible to identify her or the appellant as the two people depicted. [22] The first of the videos began at 2:55 a.m. on February 28, 2015. The complainant described the appellant’s car coming into view, then parking by her house. The next video, timestamped 3:15:59 a.m., showed a taxi pass by the front of the complainant’s house and stop out of view. The complainant testified that she walked away from the taxi towards her house. The appellant got out of his car and stood by the gate leading to the side of the house. She described backing up near the gate with the appellant approaching her, screaming. He moved aside from the gate and she walked along the side of the house, out of view of the camera. The incident described above—where she landed on the ground with the appellant straddling her—then followed. [23] At 3:21:42 a.m. of the footage, the complainant described the appellant holding her while he walked toward the car. He opened the car door to the front passenger seat, put her in, shut the door, and got into the driver’s seat. The video showed the front passenger door opening and shutting when the car drove away. [24] At 4:29:37 a.m. of the footage, the complainant testified that she saw the appellant’s car return and pull into the driveway. She was in the car then. At 5:08 a.m., both she and the appellant got out of the car and walked towards the gate. [25] The complainant testified that her sister later called the police as the complainant was too scared to call. The complainant received text messages from the appellant after the alleged assault and unlawful confinement and after it had been reported to the police. The text messages showed the appellant was upset about the complainant seeing another man while she was pregnant with the appellant’s child. The text messages also reflected his upset about having to deal with the police because of her sister’s complaint. [26] In the days following the text messages and after the appellant’s exchanges with the police, the complainant and the appellant got together. The complainant testified the appellant had no where to go, so she got him a hotel room. She visited him there and he apologized to her. [27] In cross‑examination, the complainant refused to answer the question as to whether she had had an abortion. The judge’s exercise of discretion not to order her to answer the question, or the follow‑up question as to “when”, forms the basis of this appeal. I will address this issue after reviewing the reasons of the trial judge, to which I now turn. The Reasons of the Trial Judge [28] I will also review in some detail the reasons of the trial judge to further situate the relevance of the proposed questions on cross‑examination. [29] The trial judge observed that the most important witness by far was the complainant and that his decision rested primarily on an assessment of her credibility. The judge thoroughly reviewed the complainant’s evidence. He also reviewed the video surveillance footage together with the complainant’s identification commentaries, and the content of the text messages the appellant sent to the complainant after the allegations arose. [30] The judge found the text messages “went to” post‑event conduct relating to the credibility of the complainant and to the appellant’s conduct towards her. The judge found the text messages to be part and parcel of the narrative of the events of the day in question and shortly thereafter. In the texts, the appellant referred to the complainant as a “baby killer”. The judge found this corroborative of the complainant’s evidence that the appellant was threatening toward her and corroborative of her allegation that she was not safe. [31] The judge noted that the appellant, relying on his allegation of the complainant’s lack of credibility and the alleged unreliability of the video evidence, took the position that the Crown had failed to prove the offences. [32] The judge was satisfied the video surveillance recordings were an accurate depiction of the events outside the complainant’s home in the early morning of February 28, 2015. While the recordings could not support a positive identification, they depicted a person who resembled the complainant and a male who exited the parked car and confronted the complainant. That evidence corroborated the testimony of the complainant regarding, in particular, the confrontation between her and the appellant. [33] The trial judge considered counsel’s submissions challenging the complainant’s credibility, specifically (at para. 32): • The complainant misled the police as to the extent of her relationship with Mr. Clayton by saying Mr. Clayton was not her boyfriend in spite of being in an intimate relationship with Mr. Clayton on an almost daily basis since the fall of 2014. • The complainant did not mention to police the incident in November 2014 when Mr. Clayton was upset and broke her cell phone which she considered to be a violent act. She had told the police that the incidents of February 28, 2015 were the first occasion Mr. Clayton had been violent. • At the preliminary inquiry the complainant had testified as to getting off work at 6 p.m. on February 27, 2015 but at trial stated she had gotten off work at 3 p.m. and regarding the same day provided inconsistent answers as to whether she had asked Mr. Clayton to pick her up or whether he had appeared at work uninvited by her. • At the conclusion of her cross‑examination, the complainant was asked: Q.        I’m going to suggest to you that you went ‑ ‑ you went into the vehicle voluntarily. A.         No. Q.        And you were not assaulted and you were not confined. A.         I don’t have a doubt. There was assault, but I did not go to the vehicle against my will [sic]. [34] The judge responded to the attacks on the complainant’s credibility in this way: [33]      There were other areas where the complainant’s credibility was raised. After having reviewed her evidence overall, I agree that there were responses from the complainant that were inconsistent or incorrect and there were matters in respect of which she failed to advise police or which she did not mention in her testimony at the preliminary inquiry. Regarding matters that were not referred to prior to her evidence at trial such as not having told the officers that she was pregnant, her answers depended upon what she was asked in the first instance, in other words, she did omit some matters, such as how Mr. Clayton had grabbed her neck while on the ground on the sidewalk beside the house and whether she had gone unconscious. In a situation where a woman has been threatened and left frightened, it is not unusual that she may omit some description of what occurred, likely unintentionally, due to the situation and the stress of answering the questions of a police officer. Overall, I found the inconsistencies in her evidence to be inconsequential and do not relate to any assault or confinement. [34]      Regarding the statement by the complainant that she “did not go into the vehicle against my will”, that evidence was entirely inconsistent with her answer to the previous question she had been asked, i.e. that she went into the vehicle voluntarily to which she answered “no”. I conclude in this instance that she either misspoke or was confused when she then stated she did not go to the vehicle against her will. Video evidence of her getting to and into the car corroborated the appearance that she did not get into the Cadillac voluntarily. [35] The judge discussed the elements of assault and unlawful confinement and said there was no evidence of consent before him. [36] Overall, the judge found the frailties in the complainant’s evidence to be inconsequential and unrelated to the assault or unlawful confinement charges. He found her evidence with respect to the offences was reliable and credible. The judge explained his reasons for so concluding (at para. 63): • The video evidence, especially of the scene when the complainant was pushed towards and into the Cadillac is corroborative of her evidence. • Any inconsistencies in her evidence are not in respect of the actual assaults and confinement but relate to other matters which are not elements of the offences. • During the early hours of February 28, 2015, the complainant experienced a highly emotional and frightening exchange with Mr. Clayton who “lost it”, according to the complainant and who continued to berate her steadily until eventually returning her to her home hours later. She also testified that she fainted or was “out” on occasion which is understandable, considering she encountered an extremely dangerous and threatening experience. The temperament of Mr. Clayton, including his threats, are also consistent with the text messages that he sent her after the police became involved. He was very emotional over her pregnancy and attempted to continue his control over her. • She also testified at trial that she had not consumed drugs or alcohol and so would be more likely to accurately recollect what may have happened subject to having fainted. • The complainant’s evidence was consistent with her wanting to end the relationship and trying to get away from him when he was pressing her regarding her pregnancy. She avoided him at the night club and said she did not want to talk. • The complainant’s evidence was consistent with Mr. Clayton’s use of physical and psychological confinement when she was in the car. She had no meaningful escape routes/means of being released from confinement. • The complainant clarified that when she said that Mr. Clayton was “someone that she used to know” she meant that once she’d been hurt by Mr. Clayton, she had treated him as if she’d put him to one side (See transcript, Feb 1, 2016, p. 63, ll. 43‑46). • The complainant was quite reticent to discuss her pregnancy and abortion with the police. Her reticence is likely due to the fact that she is from a prominent South Sudanese family who are adherents of Roman Catholicism and would not tolerate extramarital relations (See transcript, Feb 1, 2016, p. 64 l. 25 ‑ p. 65, l. 26). [37] In the result, the judge was satisfied beyond a reasonable doubt that the appellant assaulted the complainant on more than one occasion in the early morning of February 28, 2015. He accepted the evidence of the complainant that the appellant held the front of her neck while straddling over top of her at the side of the house. Those actions caused the complainant to have pain in her neck area and to briefly pass out. The judge also accepted that the appellant screamed and threatened to punch the complainant in the face. All of these actions, in his view, satisfied the definition of assault. [38] The trial judge also found the appellant had committed another assault by pushing the complainant, against her will, towards and into his car. He considered it likely that a further assault took place inside the car in the parking lot, but noted that the evidence was inadequate to prove it. [39] The judge additionally considered that when the appellant pushed the complainant towards his car, opened the door and pushed her inside before driving off, he committed the offence of unlawful confinement. [40] Noting there was no evidence to contradict the video surveillance footage and the evidence of the complainant, the judge convicted the appellant of assault and unlawful confinement as charged. The Issue [41] The only ground of appeal is whether the judge erred in not ordering the complainant to answer the question(s) posed in cross‑examination as to whether she had had an abortion (and if so, when). The appellant says the judge erred in concluding that because the evidence sought did not go to the ultimate issue of guilt or innocence, it was irrelevant. The Impugned Ruling on Cross‑Examination [42] Toward the end of the complainant’s cross‑examination, she refused to answer the question on which this appeal is centered. The exchange was as follows: Q         Okay. What -- what happened to the -- to the child? THE COURT:  What happened to the what? [COUNSEL]: Q         The -- the child that the two of you have. A          What does this have to do with anything? Q         Well, unfortunately I have to ask you the question. A          Well, I can’t answer that. Q         Sorry, are you -- you’re refusing to answer that question? A          I don’t feel comfortable answering that question. Q         All right. Did you have an abortion? A          I can’t answer that. [COUNSEL]:  I’d like a direction that the witness answer the question, please. [43] The trial judge asked the complainant to step out of the courtroom while he received submissions on the issue. The Crown noted the complainant was “clearly uncomfortable answering that question” and informed the court that disclosure provided to the appellant made clear that the complainant did have an abortion. The trial judge expressed concern about whether the question was relevant. The Crown offered to “put … on the record” the fact that the complainant had an abortion and the date on which the abortion took place if it was important to the defence. [44] The judge asked counsel to clarify whether “[t]hat’s what you want to know”, being the fact and timing of the abortion. Counsel confirmed it was. Counsel submitted the evidence was relevant to “the context of the relationship and the context of the argument that they were having”, which “related to the pregnancy, what was going to happen with the child”. He further submitted the information was relevant to the appellant’s theory as to “why this witness is saying that this happened”. In particular, counsel pointed to the temporal link between the complainant finding out she was pregnant and the allegations arising. He submitted this was important because the complainant was from a conservative Catholic family and the question of “what to do about” the pregnancy out of wedlock would be “a serious issue that must have caused her a lot of angst”. [45] Counsel then alluded to the fact that cross‑examination is often “the only method to uncover the truth in a matter.” The judge responded by noting that “you’ve got what we understand to be the truth in that she did have the abortion”. The judge recognized that the appellant clearly did not want the complainant to have an abortion. [46] Counsel responded that he also wanted to establish the timing of the abortion. The judge asked why that was relevant. Counsel responded that the timing of the abortion relative to her reporting the allegations to the police was relevant to her motive. Essentially, the theory was that she reported the matter to the police so that she could deal with her pregnancy without having to “answer to Mr. Clayton for what happened”. [47] The Crown agreed that “timing might be relevant” and there was a good faith basis for the question. Crown counsel offered to make an admission that the complainant had had an abortion on March 2, 2015. This would “achieve what [the defence] wants to achieve without having to make the witness more uncomfortable.” The defence could put to the complainant their theory that she fabricated the events and she could “choose to accept it or deny it or continue to say she’s uncomfortable”. [48] The judge refused to direct the complainant to answer the questions at issue: THE COURT:  I’m here to decide whether or not there is an assault and whether or not there is a confinement. I’m fully aware of the circumstances that she was pregnant at the time and your client, you know, would be, you know, upset if she wasn’t going to have the baby or whatever. From this perspective, that’s fully -- I can understand that. I don’t think it’s going to make any difference to me one way or the other as to how -- you know, the outcome of this matter [indiscernible/microphone not functioning] as to whether or not she had an abortion. Regarding the admission on the record, I think that’s -- that’s there, and I know when. And I appreciate those circumstances. But if she says yes or no, that “I didn’t have an abortion” or “I did have an abortion” and when, in these circumstances is unnecessary and it’s just -- I don’t think I need to hear that at all, and I don’t see any point in putting the witness through it if it’s not -- not an issue, and it isn’t an issue, so that’s what happens. [49] It is significant that in his closing argument, the appellant submitted the complainant had made up the allegations against him because she and her sister wanted the appellant “out of the way”. He contended that the complainant’s family was pressing her to have an abortion and “she wasn’t willing to have the abortion if [he] was there”. Applicable Legal Principles Standard of Review [50] The parties disagree on the standard of review. The appellant says the standard is correctness as it is a question of law whether the judge erred in taking an overly restrictive view of relevance in the context of cross‑examination. The Crown’s position is that the judge’s assessment of the probative value and prejudicial effects of the evidence, and his management of cross‑examination, is owed deference on appeal. In my view, both parties are correct. [51] Whether the threshold requirement of relevance is met is a question of law reviewable on a correctness standard; it would be a legal error to admit irrelevant evidence. However, not all relevant evidence is necessarily admissible. A judge’s decision to exclude relevant evidence where its probative value is outweighed (or, for defence‑led evidence, substantially outweighed) by its prejudicial effect involves the exercise of discretion. Absent reliance on improper legal principles, the judge’s conclusion in this regard is owed deference: R. v. Araya , 2015 SCC 11 at para. 31; R. v. Ansari , 2015 ONCA 575 at para. 112, leave to appeal ref’d (2016), [2015] S.C.C.A. No. 487. [52] The judge’s decision as to how to best manage cross‑examination is also owed deference. As this Court held in R. v. Podolski , 2018 BCCA 96 at para. 369, leave to appeal ref’d (2019), [2018] S.C.C.A. No. 322, “[a]bsent the kind of unwarranted interference in cross-examination that denies an accused the right to make full answer and defence, this is a matter of trial management with which an appellate court should not lightly interfere.” The Right to Cross‑Examination [53] It is common ground the accused has the right to cross‑examine witnesses without significant or unwarranted constraint. This right is part of the accused’s constitutional right to make full answer and defence. Cross‑examination is particularly important where credibility is a central issue at trial: R. v. Osolin , [1993] 4 S.C.R. 595 at 663–65. [54] Nor is it disputed that as a general rule, witnesses must answer questions put to them as long as the questions are relevant and otherwise admissible. Where a question asked is relevant and otherwise admissible, and where the trial judge directs the witness to answer the question, a witness’s continued refusal to answer is an affront to the authority of the court, requiring a remedy. The trial judge has broad discretion regarding the best way to handle such a situation: R. v. Arradi , 2003 SCC 23 at paras. 32, 34–35. [55] But as the Crown submits, witnesses are not obliged to answer irrelevant questions, and trial judges are not obliged to direct them to do so. Rather, a judge has a duty to inquire into and determine the relevance of a question before ordering a reluctant witness to answer it: R. v. Fields (1986), 28 C.C.C. (3d) 353 at 358–59 (Ont. C.A.). Relevance and the Admissibility of Evidence [56] Evidence must be relevant to a material issue in order to be admissible: R. v. Calnen , 2019 SCC 6 at para. 107, per Martin J., dissenting on other grounds. The relevance threshold is a low one that will be met where the evidence has some tendency to make the proposition for which it is advanced more likely than it would be in the absence of the evidence: Calnen at paras. 108, 142. Despite the low threshold, evidence is irrelevant if the inference it is adduced to support is speculative, equivocal, or unreasonable: R. v. White , 2011 SCC 13 at para. 167. [57] To be material, “the evidence must be relevant to a live issue”: Calnen at para. 109 (emphasis in original). Materiality can relate directly to an issue that must be decided in the case, or it can relate to information that assists the trier of fact in assessing the quality of the other evidence, such as the credibility of the witnesses. This is sometimes referred to as “primary” and “secondary” materiality: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence , 8th ed. (Toronto: Irwin Law, 2020) at 35. [58] As stated, even if evidence is relevant to a live issue, it may be excluded where the judge is of the view that the probative value of the evidence is outweighed by its prejudicial effect. When the issue relates to defence‑led evidence, its probative value must be substantially outweighed by its prejudicial effect: R. v. Seaboyer , [1991] 2 S.C.R. 577 at 611. The probative value inquiry is an assessment of the strength of the evidence, the extent to which it supports the inferences sought to be drawn from it, and the extent to which the matters it tends to prove are at issue in the proceedings: Ansari at para. 110. The prejudicial effect relates to the “costs” of admitting the evidence, such as the risk it will be used improperly, or will distract from the real issues in the trial: Ansari at paras. 105–108. The Appellant’s Position [59] The appellant submits the complainant’s pregnancy was a “crucial contextual piece” of the case and its outcome was the “heart and soul” of the conflict between the parties. He submits there was an element of unfairness to the manner in which the parties were permitted to adduce evidence of their theories of the case in this regard: the Crown was permitted to adduce text messages of the appellant’s post‑event conduct that corroborated the complainant’s version of events. But the appellant was not permitted to cross‑examine the complainant on the outcome of the pregnancy, which was important to his ability to establish the complainant’s motive to lie. [60] In particular, the appellant argues he was prevented from asking the complainant about whether her family would “disown” her if she did not have an abortion. He also submits he was prevented from testifying about his conversation at the hotel with the complainant about why she was “doing this” as those questions had not been put to the complainant. [61] The appellant contends the trial judge’s ruling was based on an incorrect view of relevance that required the answers sought to relate directly to the issue of guilt or innocence. He argues an accused should be permitted to cross‑examine on any question that is relevant to the issues and for which there is a good faith basis. The Crown at trial conceded these points. Accordingly, there was no reason not to allow the cross‑examination on these questions. The appellant further submits the complainant’s discomfort with the proposed question was not a proper reason not to allow the cross‑examination. [62] Finally, the appellant contends the Crown’s admission on the fact and timing of the abortion does not “change the calculus”. The appellant was not obliged to accept the veracity of the information provided by the Crown, which was based on the complainant’s unrecorded statement to a police officer. As noted in the dissenting judgment in R. v. R.V. , 2019 SCC 41 at para. 115, an accused’s ability to make full answer and defence depends not just on the fact of cross‑examination, but also on the accused’s ability to control the rhythm of that process. The effectiveness of cross‑examination could be significantly blunted if the Crown could replace that right on any given topic with an admission of its choosing. The ability to control the cross‑examination was particularly important because the appellant was already somewhat limited in his ability to conduct his own defence due to the appointment of counsel for the cross‑examination of the complainant. Discussion/Analysis [63] I agree with the appellant’s submission that evidence does not have to relate directly to an issue that must be resolved in the case—such as whether the elements of the offences of assault and unlawful confinement were proved—to be “relevant”. More precisely, evidence need not be relevant to an issue of “primary materiality” in order to be admissible. [64] As earlier described, evidence must be relevant to a material issue to be admissible. Evidence has “secondary materiality” when it assists the trier of fact in assessing the quality of the evidence adduced to prove the issues in the case—in other words, where it assists in assessing the evidence that has “primary materiality”. [65] In this case, the appellant submits the evidence was relevant to establishing the complainant’s motive to lie. Whether the complainant had a motive to lie about the allegations was relevant to her credibility: if she had a reason to lie, it is more likely she was in fact lying when she gave her evidence. Evidence relevant to establishing a motive to lie is material because it assists the trier of fact in deciding whether to believe the complainant’s evidence, which forms the basis of the Crown’s ability to prove the elements of the offences. [66] This raises the question of whether the fact and timing of the complainant’s abortion were relevant to establishing this motive to lie. The appellant’s theory was that the complainant was motivated to fabricate the allegations so the appellant would be “out of the way”, allowing the complainant to have the abortion that he did not want her to have. In many cases, there would not be a “logical link”, as the Crown puts it, between the complainant having had an abortion after she gave her police statement and the likelihood that she lied about the appellant’s conduct. However, given the complainant’s evidence that the appellant was following her and threatening her about the status of her pregnancy, I accept that in this case, the fact the complainant had the abortion some time after giving her police statement has some tendency to make it more likely that she lied about the allegations to get the appellant out of the way than it would be in the absence of that evidence. Accordingly, the fact and timing of the abortion were relevant to a material issue in the case. [67] Nevertheless, the trial judge did not err in refusing to direct the complainant to answer counsel’s questions about the fact and timing of the abortion. This is because the Crown’s “admission” that the complainant had an abortion on March 2, 2015, provided the defence with the very information sought in order to argue its theory. The important point for the defence theory was that the abortion occurred some time after the report to police. The information the Crown put on the record aligned with this theory. While there may be circumstances in which a proposed admission is unacceptable for various reasons (see e.g., Araya at paras. 31–38), in this case, the defence was not prejudiced when Crown counsel put the information on the record rather than having it elicited through cross‑examination of the complainant. [68] It is in this context that the judge’s comment that there was no “point in putting the witness through it if it’s not … an issue” must be read. Once the trial judge had the information that the defence sought to elicit on cross‑examination of the complainant, that information was no longer a live issue. Thus, there was no need to cross‑examine the complainant to obtain the same information. In other words, the information was no longer “material” as defined in Calnen at para. 109. [69] The scope of the trial judge’s ruling was narrow: it related only to the fact and timing of the abortion. The defence was not prevented from asking the complainant about her family’s views on whether she should have an abortion, how they would react if she did or did not have an abortion, or whether certain answers she gave the appellant in the hotel room as to her motives were true. [70] The record reflects a thorough cross‑examination of the complainant on matters related to her pregnancy and relevant to the appellant’s theory. For example, counsel asked the complainant about her personal views on her pregnancy. He suggested it was a problem and she agreed. The complainant acknowledged she was fairly religious, she was raised in the Catholic faith, and still followed its tenets. She agreed the church was opposed to premarital sex and unwed mothers. She also agreed that learning she was pregnant was quite stressful for her. [71] Counsel asked the complainant about her family’s background and views on her pregnancy. She agreed she came from a prestigious family, and her parents were religious and socially conservative. The complainant further agreed with counsel’s suggestion that her family, culture, and church would disapprove of her out‑of‑wedlock pregnancy. The complainant was cross‑examined on whom she had told about her condition, and about the conflict with the appellant over the pregnancy. She agreed he wanted her to have his baby and was very concerned about the outcome of the pregnancy. [72] Further, the complainant agreed with counsel that the idea of reporting the alleged offences to the police came from her sister and friends. It was not her idea and she was afraid to make the call to the police. [73] Finally, counsel did put the appellant’s theory to the complainant. Counsel suggested that she and her sister had made up the allegations because she did not want the appellant’s input into what happened to the baby. The complainant denied having made up the allegations. [74] In sum, I see no basis for the appellant’s submissions that he was somehow limited in his defence. In the circumstances, the judge’s ruling was a reasonable exercise of his discretion and trial management powers. Disposition [75] In the result, I would dismiss the appeal. “The Honourable Madam Justice MacKenzie” I AGREE: “The Honourable Mr. Justice Goepel” I AGREE: “The Honourable Mr. Justice Abrioux”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Fonseca v. Gabriola Island Local Trust Committee, 2021 BCCA 27 Date: 20210122 Docket: CA45681; CA45682 Docket: CA45681 Between: Joaquim Mamede Da Fonseca Olinda Maria Carvalho Da Fonseca Respondents (Plaintiffs) And Gabriola Island Local Trust Committee Appellant (Defendant) – and – Docket: CA45682 Between: Gabriola Island Local Trust Committee Appellant/ Respondent on Cross Appeal (Petitioner) And Joaquim Mamede Da Fonseca Olinda Da Fonseca Respondents/ Appellants on Cross Appeal (Respondents) Before: The Honourable Mr. Justice Harris The Honourable Mr. Justice Goepel The Honourable Mr. Justice Abrioux On appeal from:  An order of the Supreme Court of British Columbia, dated October 1, 2018 ( Fonseca v. Gabriola Island Trust Committee , 2018 BCSC 1684, Vancouver Dockets S177664 and S1611967). Counsel for the Appellant (via videoconference): S.S. Manhas Counsel for the Respondent (via videoconference): A.C. Bjornson Place and Date of Hearing: Vancouver, British Columbia November 4, 2020 Place and Date of Judgment: Vancouver, British Columbia January 22, 2021 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Mr. Justice Goepel The Honourable Mr. Justice Abrioux Summary: The Gabriola Island Local Trust Committee appeals an order that its Land Use Bylaw is inapplicable to a seawall constructed by the landowners, the Fonsecas, on their property. The judge held the bylaw inapplicable to the structure for the reason that the purpose of a seawall is to protect one’s property from erosion, a right held at common law by a landowner that can only be abrogated by clear legislative intent. The Fonsecas cross appeal the order that other structures on their property, including fences and a deck/walkway, contravened the bylaw and that they be removed. Held: Appeal allowed; cross appeal dismissed. A right to protect one’s property from the impact of erosion might exist at common law, but it operates to govern the relations between private persons, not to circumscribe the scope of statutory grants of municipal power. Local governments have the authority to regulate the exercise of private rights through zoning bylaws, as did the Island Local Trust here. The seawall contravenes the bylaw and must be removed. On cross appeal, the judge correctly determined that the fences, gates and deck/walkway were offending structures under the bylaw and ordered their removal. Table of Contents Introduction .. 4 The Land Use Bylaw .. 5 The Fonsecas’ Structures . 8 The Judgment Below .. 9 On Appeal . 11 Analysis . 12 The Approach to Statutory Interpretation of a Grant of Zoning Authority . 13 The Riparian Right to Protect Property . 18 Disposition . 20 The Cross Appeal . 21 The Gates . 21 The Fences . 22 The Walkway . 25 Disposition . 26 Conclusion .. 26 Reasons for Judgment of the Honourable Mr. Justice Harris: Introduction [1] This appeal turns on the circumstances in which a common law right to use or protect property is subject to regulation by local government land use zoning bylaws. Specifically, the appeal and cross appeal concern the authority of the Gabriola Island Local Trust Committee (“Island Local Trust” or “Local Trust Committee”) to control the location of structures on waterfront property on Mudge Island through its zoning powers. The structures in issue are a “deck”, fences, a set of gates on a boat ramp, and a sea or embankment wall intended to prevent the erosion of the property by the sea. [2] The issue before the judge was whether the structures contravened the Mudge Island Land Use Bylaw No. 228, 2007 (“Land Use Bylaw”) and should be removed. The judge ordered the removal of all of the structures except what I will refer to as the seawall. He concluded that the Land Use Bylaw did not authorize the regulation of the location of the seawall because the Island Local Trust’s empowering legislation was not sufficiently clear to abrogate the common law right of the property owner to erect erosion control structures on the shoreline to protect the property. The Land Use Bylaw, however, permissibly regulated the location of the other structures. [3] The Island Local Trust appeals the order concluding that the Land Use Bylaw did not apply to the seawall. The property owners seek to uphold the order in respect of the seawall but argue, in their cross appeal, the judge erred in his order requiring the removal of the other structures. [4] I will refer to the respondents and cross appellants as the Fonsecas. [5] For the reasons that follow, I would allow the appeal and dismiss the cross appeal. The Land Use Bylaw [6] On September 18, 2008, the Island Local Trust adopted the Land Use Bylaw. The ultimate source of its authority to do so is s. 479 of the Local Government Act , R.S.B.C. 2015, c. 1. [7] The Island Local Trust derives its powers from the Islands Trust Act , R.S.B.C. 1996, c. 239. The purpose of the Island Local Trust is to carry out the object of the Islands Trust, including through the regulation of “the development and the use of land in [its] local trust area by exercising powers conferred by [the Islands Trust Act ], including powers that would otherwise belong to the regional district for each area.” (s. 4(4)). [8] The object of the Islands Trust is set out in s. 3 of the Islands Trust Act : The object of the trust is to preserve and protect the trust area and its unique amenities and environment for the benefit of the residents of the trust area and of British Columbia generally, in cooperation with municipalities, regional districts, improvement districts, other persons and organizations and the government of British Columbia. [9] Sections 24, 28, 29, 31 and 32 of the Islands Trust Act confer powers on the Island Local Trust to achieve the object of the Islands Trust. Sections 24, 28, and 29 confer on the Island Local Trust the powers of regional districts under the Local Government Act to enact bylaws that regulate the development and use of land in its local trust area and to enforce those bylaws. [10] In particular, s. 29(1)(b) confers on the Island Local Trust the powers found in Part 14 of the Local Government Act , including: 479 (1) A local government may, by bylaw, do one or more of the following: (a) divide the whole or part of the municipality or regional district into zones, name each zone and establish the boundaries of the zones; (b) limit the vertical extent of a zone and provide other zones above or below it; (c) regulate the following within a zone : (i) the use of land , buildings and other structures ; (ii) the density of the use of land, buildings and other structures; (iii) the siting , size and dimensions of (A) buildings and other structure s, and (B) uses that are permitted on the land; (iv) the location of uses on the land and within buildings and other structures; [Emphasis added.] [11] It is clear from reading the Islands Trust Act together with Part 14 of the Local Government Act that the Island Local Trust may regulate the siting, size, location and dimensions of buildings and other structures within zones under its jurisdiction through the use of bylaws. [12] In furtherance of its mandate, the Island Local Trust passed an official community plan in 2008 setting out the goals and principles of regulation for Mudge Island: Bylaw No. 227, Mudge Island Official Community Plan, 2007 (“Official Community Plan”) . [13] The Official Community Plan sets out the approach to land regulation: The Bylaw's approach to land use and development growth is one of consideration and caution. It is hoped that by laying out a pattern of low impact land use, adopting a cautious approach to development, and fostering a cooperative relationship among the local community and other governmental agencies, reasonable land use and development will take place without requiring complex and expensive facilities and services, thereby maintaining the Islands’ unique character as a place where the human community lives in and with nature. [14] The Official Community Plan sets out the general zoning policy related to ecosystem protection, including: Policy 5        Permits, bylaw amendments or other approvals should include protection of environmentally sensitive and hazardous areas including: wetlands, watercourses, riparian areas, groundwater, intertidal areas, forests and bluffs; a precautionary principle approach should be taken whereby decisions are not made until adequate information is obtained. Policy 7        Zoning provisions should establish a minimum building setback from wetlands, watercourses and the sea. [15] The Plan also sets out policies specific to the regulation of the coastline and foreshore: Objectives Objective 1   To minimize disturbance and pollution of the foreshore and the surrounding waters. Objective 2   To minimize conflicts between marine and foreshore users and uses. Policies Policy 1        In addition to setbacks for all buildings and structures, land immediately upland of the foreshore and extending out over the water may be designated as a development permit area. Policy 2        Zoning should allow for low impact recreational opportunities in coastal and foreshore areas. Policy 3        Coastal and foreshore zoning shall be designed to protect against disruption of natural beach systems and limit development. Policy 4        Public beach access areas should have minimal clearing, retain vegetation and not be unduly obstructed by development. [16] To give effect to the policies contained within the Official Community Plan, the Island Local Trust enacted the Land Use Bylaw, dividing Mudge Island into zones pursuant to s. 479(1)(a) of the Local Government Act. It contains land use regulations for each zone, including regulations enacted pursuant to s. 479(1)(c). The Fonsecas’ property is zoned rural residential. [17] Section 3.3 of the Land Use Bylaw sets out regulations applicable in every zone, including the siting regulation under s. 3.3(4) of the Land Use Bylaw, which is at issue in these appeals. Section 3.3(4) provides as follows: 3.3. Siting and Setback Regulations (4)  Despite all other provisions in this Bylaw, buildings and structures must be sited a minimum of 30 metres (98.4 feet) from and 1.5 metres (4.9 feet) above the natural boundary of a wetland, watercourse, the sea or other body of water, except for barge/boat ramps, stairs and walkways with an average maximum elevated floor height of 0.3 metres (0.9 feet). [18] I do not think there can be any reasonable doubt about the following. The Island Local Trust is empowered to pass a bylaw (by virtue of s. 479) that creates zones. The zoning power includes the power to regulate the use, siting, size, location and dimensions of buildings and other structures and uses that are permitted on the land. The Island Local Trust is also authorized to enforce its bylaws. There is also no reasonable dispute that the structures in issue on the land are structures within the meaning of s. 479, hence the Island Local Trust is empowered to regulate them. This latter proposition is subject to the caveat that the Fonsecas argue that the seawall is not a structure for the purposes of s. 479 for reasons I shall develop. The Fonsecas’ Structures [19] It is sufficient for current purposes to record that the property has a house set back more than 30 metres from the natural boundary of the sea. It also has a deck, fences, and a stone and concrete seawall. The fences and the seawall abut the sea’s natural boundary. The seawall is intended to prevent erosion of the property by the sea. The property is also serviced by a gated boat ramp. The gates, which sit atop the boat ramp, are extensions of the fence. [20] These structures, the Island Local Trust argues, do not comply with s. 3.3(4) of the Land Use Bylaw. The Fonsecas constructed them without contacting the Island Local Trust. If the structures are structures for the purposes of the Land Use Bylaw, their location is not in conformity with its siting requirements. The Land Use Bylaw defines ‘structure’ in s. 1.1 as meaning “any construction and human made land alteration fixed to, supported by, or sunk into land or water; for clarity septic fields, septic tanks, absorption fields and related appurtenances, concrete and asphalt paving or similar surfacing of the land, and retaining structures are considered structures.” [21] Beginning in 2012, the Island Local Trust began to attempt to enforce the Land Use Bylaw by demanding the removal of the non‑conforming structures. In May 2015, the Fonsecas applied to the Island Local Trust for a development variance permit seeking permission to keep them. That permission was granted for some structures, but denied for others, including the “deck”, seawall and fences. The Fonsecas did not remove the offending structures. [22] Eventually, two proceedings started in the Supreme Court. The Island Local Trust sought a declaration that the structures violated the Land Use Bylaw and should be removed. The Fonsecas sought a variety of declarations in support of their position that the Land Use Bylaw did not apply to the structures. The Judgment Below [23] The judge dealt first with the deck, stairs and fences. He rejected the Fonsecas’ argument that the deck was actually a walkway, which is a permitted use under s. 3.3(4). He concluded that the structure’s primary function was as a deck and would be seen as such by any reasonable person. The judge concluded that if the stairs could be used separate and apart from the deck to permit access to the foreshore, then they could remain. He then went on to find that the fences which sat on top of the seawall and gates at the top of the boat ramp violated s. 3.3(4) and should be removed. It was material to his decision that neither the fences nor the gates existed to prevent erosion by the sea. [24] The judge reached a different conclusion about the seawall. After rejecting certain constitutional arguments, not in issue here, he turned his mind to whether the Land Use Bylaw applied to limit construction of a seawall. In his view, this would require that the Local Government Act empowered the Island Local Trust to abrogate a property owner’s common law riparian right to protect property from erosion by the sea. He decided it did not and therefore the Land Use Bylaw did not apply to the seawall. [25] The judge accepted first that a common law riparian right existed to protect one’s property from erosion caused by inroads of the sea. The judge also accepted that the Island Local Trust had the authority to regulate the siting, size and dimensions of structures through a bylaw by virtue of s. 479(1)(c)(i) of the Local Government Act. He then reasoned: [58]      However, that does not mean the Local Trust Committee has the ability to prevent the Fonsecas from building an embankment wall on the edge of their property, which would require a complete abrogation of their common law riparian right to protect their property where it bounds the sea. To do so, the Local Government Act and related provincial legislation would have to either abrogate the common law right or authorize the Local Trust Committee [to] abrogate the right. [59]      Modification, alteration, or abrogation of a common law right must be explicit or by necessary implication. In respect to the latter, the implication must be necessary and clear, not just reasonable. In the present case, it is neither explicit nor necessarily implied. [26] The judge drew support for his view that the common law riparian right had not been abrogated by legislation by relying on the reasoning of this Court in Bryan’s Transfer Ltd. v. Trail (City) , 2010 BCCA 531. At issue in Bryan’s Transfer was whether ss. 94–96 of the Land Title Act , R.S.B.C. 1996, c. 250 modified the common law doctrine of accretion, such that a landowner would need to apply through the process set out in the Act in order to vindicate riparian rights acquired over accreted land owned by the Crown. In the result, the Court of Appeal held that the statute lacked the requisite clear intent to modify, alter, or abrogate the common law, either expressly or by necessary implication. In applying Bryan’s Transfer , the judge concluded that: [63]      The scope of Bylaws is valid only insofar as the authorizing statute permits. In the present case, there is no specific extinguishment of the subject riparian right in the authorizing legislation, the Local Government Act and the Islands Trust Act , nor any reference to the subject riparian right. Also, I do not find that the language has the “irresistible clearness” to conclude that the subject right was extinguished by necessary implication. As such, the Bylaws cannot operate to prohibit the construction of an embankment wall at the marine boundary whose purpose is to protect against erosion. [27] Accordingly, the judge granted the declaration that s. 3.3 of the Land Use Bylaw infringes the Fonsecas’ common law riparian right to protect the property from erosion and is inapplicable to the embankment walls. On Appeal [28] The issues on appeal and cross appeal are distinct. I will deal with each separately. [29] The Island Local Trust contends that the judge fell into a series of related errors. [30] First, he misunderstood the nature of riparian rights to prevent erosion of property. These rights are not “positive” rights capable of being asserted against and in the face of clear legislative intent to regulate them. They are not a distinct form of property right. The Island Local Trust submits that there was no basis on which the judge could properly distinguish the seawall from the other structures to which s. 3.3(4) applied. [31] Second, he misapprehended the interpretive principle about legislation “abrogating” common law rights. In the contention of the Island Local Trust, that interpretive principle applies only where legislation might be interpreted as altering, or authorizing the alteration of, common law rules or principles (i.e., only where it might change the general law itself). It has no application to an ordinary regulation like the Land Use Bylaw that makes unlawful, as a public law matter, activities that remain lawful at common law, as a private law matter. [32] Third, the judge improperly interpreted s. 479 of the Local Government Act . The judge erred by, in effect, reading down the section so that it did not authorize the bylaw regulating an erosion control structure, contrary to the plain meaning of the legislation. [33] The Fonsecas, for their part, support the reasoning of the judge, but also argue that the Island Local Trust has changed its position on appeal, having argued below that the riparian right had been abrogated. Now, they say, the Island Local Trust is impermissibly resiling from its earlier position and recasting its argument. Analysis [34] In my opinion, the judge fell into two errors in his analysis. It may well be that he was led into error by the Island Local Trust which stressed the argument that the right to construct a seawall to prevent erosion had been abrogated by the regulatory scheme. From there, it was a short step for the judge to deploy an approach to statutory interpretation that looks for irresistible clearness and explicit targeting of the affected right in the grant of legislative authority. [35] First, the judge erred in his approach to the statutory interpretation of grants of legislative authority to pass zoning bylaws that regulate the exercise of property rights. This error was confined to his consideration of the seawall. In my opinion, he approached the issue of the authority to regulate the other structures by applying the proper approach to statutory interpretation. Had he applied that approach consistently, he would have reached a different conclusion about the seawall. [36] Second, in my opinion, the judge erred in his approach to the riparian right to protect one’s property from erosion caused by the inroads of the sea. In effect, he treated the right as a positive or special right, different in its essential character from other property rights, that can be asserted in the face of a regulatory scheme, in effect limiting the scope of the regulatory body’s grant of statutory authority, unless that grant overrides the right explicitly, either with irresistible clarity or by necessary implication. The error lies, as I see it, in conferring on the riparian right a privileged status, not shared by other types of property rights, and then searching for a degree of specificity in a grant of authority to abrogate it. [37] The two errors, as I see them, are related. What I see as the error in statutory interpretation may have sprung from the judge’s evaluation of the nature of the property right. I will begin by considering the proper approach to interpreting grants of authority to regulate property rights. I consider that the zoning power granted here is appropriately viewed as regulating the exercise of private common law rights as a matter of public law, and not as abrogating those rights, which continue to exist as a private law matter between neighbouring landowners. Approaching the issue this way leads me to the conclusion that the zoning power applies to the regulation of all property rights falling properly within its scope, irrespective of their differing character. The Approach to Statutory Interpretation of a Grant of Zoning Authority [38] I begin by acknowledging two important propositions of interpretation. First, it is commonplace that we must interpret the statutory powers in accordance with the modern principle. This requires that the words of a provision be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”: Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 at para. 26, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. While plain meaning is important, plain meaning alone is not determinative because statutory interpretation is incomplete without considering the context, purpose and relevant legal norms: McLean v. British Columbia (Securities Commission) , 2013 SCC 67 at para. 43. This is so because words that appear to have a clear meaning may in fact prove to be ambiguous once placed in their context. [39] Second, the zoning powers of the local government should be interpreted in accordance with the purposes of the Local Government Act and the Islands Trust Act . As Chief Justice Bauman explained in Society of Fort Langley Residents for Sustainable Development v . Langley (Township) , 2014 BCCA 271: [13]      Again, in the context of municipal empowering legislation and bylaws enacted pursuant thereto, this Court said in Neilson v. Langley (Township ) (1982), 134 D.L.R. (3d) 550 (at 554 per Hinkson J.A.): In the present case, in my opinion, it is necessary to interpret the provisions of the zoning by-law not on a restrictive nor on a liberal approach but rather with a view to giving effect to the intention of the Municipal Council as expressed in the by-law upon a reasonable basis that will accomplish that purpose. [14]      In United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, Mr. Justice Bastarache stated for the Court (at paras. 6 and 8): [6]        The evolution of the modern municipality has produced a shift in the proper approach to the interpretation of statutes empowering municipalities. ... The “benevolent” and “strict” construction dichotomy has been set aside, and a broad and purposive approach to the interpretation of municipal powers has been embraced... ... [8]    A broad and purposive approach to the interpretation of municipal legislation is also consistent with this Court’s approach to statutory interpretation generally. ... [15]      These common law rules must be married with the expressions of intent by the Legislative Assembly. [16]      Generally, in s. 8 of the Interpretation Act , R.S.B.C. 1996, c. 238 we are told that: 8       Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. [17]      Specifically, under s. 4(1) of the Community Charter , S.B.C. 2003, c. 26, we are directed so: 4(1)      The powers conferred on municipalities and their councils under this Act or the Local Government Act must be interpreted broadly in accordance with the purposes of those Acts and in accordance with municipal purposes. [18]      Frankly, the Court can take the hint – municipal legislation should be approached in the spirit of searching for the purpose broadly targeted by the enabling legislation and the elected council, and in the words of the Court in Neilson , “with a view to giving effect to the intention of the Municipal Council as expressed in the bylaw upon a reasonable basis that will accomplish that purpose”. [40] The interpretive principle to be applied is also set out in s. 187(1) of the Local Government Act: 187 (1) The powers conferred on regional districts and their boards under this Act must be interpreted broadly in accordance with the purposes of this Act and in accordance with regional district purposes. [41] There is no doubt that a legislature may authorize the regulation of private conduct, and in doing so may impair rights that might otherwise exist. As Chief Justice Bauman said in H. Coyne & Sons Ltd. v. Whitehorse (City), 2018 YKCA 11 at para. 46, “the impairment of private rights lies at the core of the zoning power.” The scope of regulation may simply focus on the use, for example, a landowner may make of his or her own land, but do so without affecting private property rights that exist at common law as they govern relations between landowners. Alternatively, it is conceivable that a statutory conferral of power to regulate may also affect, impair or abrogate common law rules, principles, or rights as they run between private persons. There is nothing in the scope of the zoning power at issue before us that purports to displace or affect any common property rule that governs the relations between private landowners. [42] It appears to me that on a plain reading of the text of s. 479, the Island Trust Committee has the power to regulate the use of land and the siting of structures. It has done so by the enactment of the Land Use Bylaw. This power is also, in my opinion, consistent with the purposes and objects of the statutory scheme, including the purposes set out in the Islands Trust Act . [43] Furthermore, I can see no basis on which one could interpret the power to regulate structures as excluding a structure such as a seawall or, for that matter, any other structure, on the basis that the structure’s purpose was to protect the property from erosion. [44] The use of the general term ‘structure’ to identify the subject matter of regulation indicates a broad grant of authority. A structure is virtually anything that is constructed or put together: Black’s Law Dictionary (11th ed., 2019). Nothing in the grant of authority in s. 479 indicates an intention to capture only some kinds of structures and not others. As the judge correctly recognized, the seawall is a structure, the regulation of which is captured at least by the plain language of the enabling legislation and the Land Use Bylaw (as quoted above in para. 20). [45] The Island Local Trust has chosen to exercise its power by regulating the siting of structures. The Land Use Bylaw stipulates that no structures can be sited within 30 metres of, and 1.5 metres above, the natural boundary of the sea. The seawall contravenes this aspect of the Land Use Bylaw. [46] The Fonsecas argue that the Island Local Trust is not authorised to pass a bylaw regulating the siting of a seawall for another reason; namely, the legislature did not intend to confer a grant of authority on the Island Local Trust to regulate erosion control works (such as the seawall) because that subject matter is more specifically dealt with, apart from the general zoning power, in s. 312 of the Local Government Act. Accordingly, the seawall, or other structures erected for the purpose of erosion control, cannot be structures for the purposes of s. 479 which are subject to the Land Use Bylaw’s siting requirements. [47] Section 312 of the Local Government Act expressly gives local governments the power to establish requirements, by bylaw, that must be met by persons undertaking the construction of works, to protect part of the land mass of the regional district from erosion by action of the sea: 312 (1) In this section and section 313, "stream" has the same meaning as in section 1 (1) of the Water Sustainability Act . (2) A board may, by bylaw, (a) establish requirements that must be met by owners of dikes, and (b) establish requirements that must be met by persons undertaking the construction of (i) dikes, (ii) works to maintain the proper flow of water in a stream, ditch, drain or sewer in the regional district, or (iii) works to reclaim or to protect part of the land mass of the regional district from erosion by action of the sea or a stream or from any other cause. [48] The Fonsecas argue that s. 479 does not cover structures the purpose of which is to protect land from erosion. Power to regulate such structures is given to “a board” under s. 312, not the Island Local Trust. They contend that the power in s. 312 can only be exercised by the Islands Trust Council. The Islands Trust Council has not enacted any bylaws intended to restrict the ability of landowners to erect erosion‑protection works. Moreover, the use of the word “works” in the section indicates the legislature’s intention to distinguish between works intended to protect against erosion, such as a seawall, and structures subject to the zoning power. [49] Respectfully, I am unable to give effect to this argument. In the first instance, the argument depends on the proposition that a more specific grant of authority should be interpreted as derogating from a more general grant or as not falling within the more general grant. This suggestion runs afoul of the interpretive guidance found in the Local Government Act itself. Section 187(2) reads: (2) If (a) an enactment confers a specific power on a regional district or board in relation to a matter, and (b) the specific power can be read as coming within a general power conferred under this Act, the general power must not be interpreted as being limited by that specific power, but that aspect of the general power that encompasses the specific power may only be exercised subject to any conditions and restrictions established in relation to the specific power. [50] Here, it seems to me, the general zoning power controls the siting of a structure, and s. 312 permits the imposition of requirements on the construction of a structure intended to control erosion. These requirements may take many forms, including design, appearance, and materials, by way of example. [51] In my opinion, the power to impose requirements under s. 312 for the construction of erosion‑protection works does not limit the more general grant of authority to regulate the siting of those structures found in s. 479. Bylaws setting out requirements for the same structure or works could be enacted under each provision, respectively, and a landowner would have to comply with both. [52] Furthermore, I do not think that the use of “works” in s. 312 signals a legislative intent to distinguish between works and structures for the purposes of s. 479. “Works” is arguably a more encompassing term than “structure”, but the terms overlap and a work can certainly be a structure, and a structure a work. On any reasonable view of the seawall at issue here, it is both a work and a structure. [53] By relying on s. 187(2) of the Local Government Act to arrive at this conclusion, I should not be taken as expressing any view on the entity empowered to enact bylaws under s. 312. Section 187(2) makes clear that, under the scheme, a specific power does not oust or limit a more general power. That is sufficient to conclude that s. 312 does not limit the Island Local Trust’s authority to regulate the siting of the seawall pursuant to s. 479. [54] In sum, I do not think there is anything in the grant of authority to pass bylaws regulating the siting of structures that supports an argument that the legislature did not intend to grant to a local authority the power to regulate any structure sited on land. There is no basis to distinguish between different types of structures according to the purpose for which they are built, or the property right that is engaged in constructing them. The Land Use Bylaw in issue is, therefore, effective to regulate a structure such as the seawall. In my opinion, we are compelled to this conclusion once the approach to interpreting grants of statutory power set out above is applied. The Riparian Right to Protect Property [55] The judge based his analysis on his view that a riparian right to protect property from erosion could be extinguished or abrogated only by clear legislative intent. In that respect, the riparian right is inherently different from other rights to use property in the absence of regulation. [56] I acknowledge the line of authority dealing with the clarity courts look for before concluding that a legislature intended to abrogate common law rights, rules or principles. But I am not persuaded that that line of authority applies in this case. [57] A landowner has a right at common law to take steps to protect land from erosion. In some instances, that right is a riparian right. It is clear that such a right governs the private relations between neighbouring landowners. It is based in common law rules governing neighbours’ private rights against each other. Accordingly, a landowner who exercises a riparian right may have causes of action against or defences to claims by neighbours if the landowner engages in conduct that affects them. [58] From this, two points emerge. First, the existence of private property rights running between adjoining landowners does not, without more, have any implications for the scope of a grant of authority to a local government to regulate the same subject matter. Second, the mere regulation of that subject matter by a local government does not affect or abrogate the common law rules governing the private relations between adjoining landowners. [59] In the case at bar, neither s. 479 nor the Land Use Bylaw purport to change the common law rules or rights running between private landowners. Accordingly, I do not think the cases relied on by the Fonsecas, which are examples concerning whether a legislature has intended to alter or abrogate common law rules, are of any assistance. [60] Moreover, many of the cases they rely on arose in the context of private law disputes and do not deal with the effect of government regulation on common law property rights or vice versa. For example, Rhineland (Municipality) v. Letkeman , [1978] M.J. No. 33, 3 W.W.R. 97 (M.B.C.A.), concerned, not regulation, but a permanent injunction sought by a municipality against a farmer to prevent him from damming up a watercourse that threatened to flood his property. Though the municipality had the authority to regulate surface watercourses such as the one which traversed the farmer’s land, it had not passed any bylaw doing so—a fact relied upon by Justice O’Sullivan in arriving at his conclusion: [14]      In the case now before us on this appeal, there is no suggestion that the municipality ever passed any by-law determining that there was a surface watercourse across the defendant's land. There was never any by-law to prevent the obstruction of such a surface watercourse in any manner. There was no suggestion that the municipality ever attempted to provide any outlet for a surface watercourse which it now alleges ran across the defendant's land. [61] In the absence of any applicable regulation, the court held that the farmer had a right to build the dike, and dismissed the appeal. But that case is inapposite to one in which a bylaw is in force regulating the subject matter in question, as it is here. [62] In addition, none of the cases cited to us establish that a riparian right to protect property has a privileged or different status from other property rights. Cases like Laxton & Company v. West Vancouver (District) , 2010 BCSC 1297, confirm the existence of the right at common law generally; an issue that is not contested in this proceeding. But, in that case, the court also distinguishes the existence of the right to protect one’s property at common law from the ability of a municipal government to regulate that right through zoning bylaws: [23]      Laxton argued that he has a common law right to protect his property against the elements, which right is not subject to regulation. To support this proposition, he took us back to Rex v. The Commissioners of Sewers for Pagham, Sussex (1828), 8 B. & C. 355; 108 E.R. 1075, and McBryan v. The Canadian Pacific Railway Company (1899), 29 S.C.C. 359. These indeed established the first part of Laxton's proposition, which the district does not dispute. As between adjoining landowners: ...every landowner exposed to the inroads of the sea has a right to protect himself, and is justified in making and directing such works as are necessary for that purpose....(per Bayley J. in Pagham at p. 361) [24]      Where such a landowner acts bona fide and does no more than is reasonably and honestly necessary for the protection of his property, then an adjoining landowner who suffers damage as a result has no claim. But that is not what concerns us here. The question is whether a landowner's exercise of that common law right can be the subject of municipal regulation. [25] As a general principle, that question must be answered in the affirmative. There is no doubt that the district has the power to pass zoning bylaws that regulate the use of the foreshore and foreshore waters as well as the land: Salt Spring Island Local Trust Committee v. B&B Ganges Marina Ltd. , 2007 BCSC 892, upheld 2008 BCCA 544; North Pender Island Trust Committee v. Hunt , 2008 BCSC 391, 2009 BCCA 164; see also Ovcharick v. North Saanich (District) (1998), 46 M.P.L.R. (2d) 128 (B.C.S.C.), upheld (1999), 50 M.P.L.R. (2d) 147 (B.C.C.A.). [Emphasis added.] [63] In short, the right to protect one’s property from the inroads of the sea, or other threats, is not a positive right of a nature that may operate to circumscribe or limit a grant of statutory authority, nor does the right support reading down a grant of regulatory authority. Disposition [64] Ultimately the question before the court below and this Court is whether the regulation of the siting of the seawall fell within the grant of authority to the Island Local Trust and whether the Land Use Bylaw did so regulate its siting. This is a matter of statutory interpretation. To the extent that the Island Local Trust has recast its argument, I think it is appropriate for this Court to consider the argument as reframed. The issue here is about interpreting statutory authority. I see no prejudice to the Fonsecas in considering the argument which now brings the real legal issues into proper focus. For the reasons I have given, I would allow the appeal. The Cross Appeal [65] The judge upheld the determination of the Island Local Trust that the gates at the top of the boat ramp, the fences, and the deck or walkway be removed. The issues here, as they are raised in the cross appeal, do not turn on whether the Land Use Bylaw applies to these structures, at least in principle, but whether the decisions that they be removed were reasonable or were properly before the judge. [66] The Fonsecas allege the judge erred in ordering relief that had not been sought in the petition (removal of the metal gates), removal of the fences without a proper factual basis, and the removal of the walkway without analysing its use, i.e., what had been a deck (and contrary to the Land Use Bylaw) had since been converted to a walkway that did not violate the Land Use Bylaw. The Gates [67] The contention here is that the removal of a set of metal gates at the top of the boat ramp had not been sought in the petition. The petition sought the removal of “a deck, a fence and seawalls.” [68] The factual context for this argument is the suggestion that the Island Local Trust had made a demand for the removal of a “concrete ramp structure with large gates inside ocean setback” but had dropped that demand during discussions between the parties. It is clear that the Island Local Trust did drop its demand for the removal of the boat ramp. The question is, does this mean that when read with the petition, no order was sought to remove the gates and the removal of the gates was included within the boat ramp issue. [69] The Fonsecas argue that if the Island Local Trust was seeking an order that the gates be removed, they should have had notice of that claim so that they could present evidence and make arguments about whether the gates are properly part of the boat ramp, or whether they are structures for the purposes of the Land Use Bylaw. [70] While I agree that a judge ought not to grant an order not sought by a party, and that proper notice of what orders are sought should be given, I am not persuaded that these principles are engaged on the facts. The Island Local Trust did “drop” the boat ramp issue, but I think the fact that it considered the gates on the boat ramp to be part of the illegal fences was clearly communicated to the Fonsecas. [71] During the course of the dispute, the Fonsecas had applied for a development variance permit related to the structures in dispute. That application was approved, but only in part. On February 26, 2016, the Island Local Trust informed the Fonsecas that the application for a variance in respect of the “[f]ences, fence footings, and gate attached to the fence at the top of the boat ramp” had been denied. Clearly, the position of the Island Local Trust was that the gates were part of the fences. This is, in my view, evident from the photographs in evidence. I do not think the judge erred in treating the relief sought to remove the fences as including the gates or in treating the gates, in fact, as part of the fences. [72] I would not accede to this ground of cross appeal. The Fences [73] The simple point here is that the Fonsecas assert that the fences were built before the current Land Use Bylaw came into effect, and that they did not contravene any applicable bylaw when they were constructed. The fences may, accordingly, be continued as a non‑conforming use pursuant to s. 528(1) of the Local Government Act . [74] The Fonsecas argue that the bylaw in force when the fences were built stipulated that “no building or structure except a sign, fence or pumphouse , shall be sited within six (6) metres (19.68 ft.) of the front end and rear lot lines ...”: s. 9 .4 D(i) of the previous bylaw (emphasis added in factum). The issue is whether the Fonsecas are correct that the fences, if they were constructed under the previous bylaw, were exempt under the applicable setback rules. [75] The current Land Use Bylaw provides: 3.3. Siting and Setback Regulations (2) No buildings or structures may be sited within setback areas established in this Bylaw, except a fence, utilities, navigation aid, driveway, foot path, pump/utility house, fire fighting water tower and signs. (4) Despite all other provisions in this Bylaw…, buildings and structures must be sited a minimum of 30 metres (98.4 feet) from and 1.5 metres (4.9 feet) above the natural boundary of a wetland, watercourse, the sea or other body of water, except for: (a) barge/boat ramps; and (b) stairs and walkways with an average maximum elevated floor height of 0.3 metres (0.9 feet) and a maximum width of 1.5 metres (4.92 feet). [76] The relevant provisions under the prior bylaw were sections 9.4 D and 4.1 A, and the definition of “structure” under that bylaw. Section 9.4 D provided: 9.4 Regulations Pertaining to the R-3 Zone The following regulations shall apply to every development in all areas designated by this Bylaw as R-3: D. Siting i) Lots Equal to or Less than Four Thousand (4,000) Square Metres in Area On a lot having an area equal or less than four thousand (4,000) square metres (.99 acre), no building or structure except a sign, fence or pumphouse, shall be sited within six (6) metres (19.68 ft.) of the front end and rear lot lines nor within one decimal five (1.5) metres (4.92 ft.) of any side lot line, except that the minimum setback for an accessory building from a rear lot line shall be two (2) metres (6.56 ft.). [Emphasis added.] [77] Section 4.1 A provided: 4.1 Floodplain Provisions and Setback from Water A. Notwithstanding any other provisions of this Bylaw , no building except a boathouse or pumphouse or any part thereof shall be constructed, reconstructed, moved or extended nor shall any mobile home or unit, modular home or structure be located: i) within seven point five (7.5) metres (24.6 ft.) of the natural boundary of the sea, a lake, swamp or pond; ... [Emphasis added.] [78] It is apparent that both bylaws establish a minimum setback from the natural boundary of the sea for certain types of structures. Those setback requirements operate despite other provisions of the respective bylaw. That means they operate to override other setback requirements found in other parts of the bylaw, including exemptions from those requirements. I am persuaded that, in respect of the prior bylaw, s. 4.1, rather than s. 9.4, sets out the applicable setback, and prohibits the siting of a fence within the stipulated setback, if it is a structure for the purpose of that section. Section 4.1 operates notwithstanding the other provisions of the bylaw, such as the exemption for fences from the general setback requirement established by s. 9.4. I take the view that s. 4.1 A governs and imposes the applicable setback where the lot boundary in question is the sea, and the exemption for fences found in s. 9.4 D is not applicable. [79] The issue reduces, in my opinion, to the question of whether the fences (including the gates) should be considered a structure for the purposes of s. 4.1 A of the previous bylaw. [80] It is certainly arguable that the use of the term “structure” in s. 4.1 A could be read as being qualified by the preceding words in the provision, which refer to buildings, mobile homes, or modular homes. Certainly a fence is not a building or a dwelling. I do not think, however, that the bylaw should be read so restrictively in light of the proper approach to the statutory construction of local government powers. We must have due regard for the purpose of the section, which is to limit the erection of substantial structures close to the sea. Under the bylaw, a structure is defined as “any construction fixed to, supported by, or sunk into land or water.” This broad definition seems to me to support a reading of the section as restricting the location of buildings (of all kinds—except a boathouse or pumphouse), dwellings of various kinds and any other “structure” that meets the definition, as certainly do the fences built here. [81] I would not accede to this ground of cross appeal. The Walkway [82] A walkway is a permitted use, although some aspects of its dimensions are subject to regulation. The Fonsecas argue that the judge erred in treating as a deck a structure that had been converted into a walkway and hence in ordering its removal. They say the judge erred by not considering its current use, after modification. The failure to consider its current use, they say, was a legal error, relying on Salt Spring Island Local Trust Committee v. B & B Ganges Marina Ltd. , 2008 BCCA 544. Salt Spring Island involved an oil‑tank barge, moored in a marina on Salt Spring Island, which was no longer being used as a vessel, but rather had been recommissioned as the office and reception area for the marina. The Court of Appeal upheld the judgement of Justice Tysoe (as he then was), who had found that the structure contravened the Salt Spring Island Land Use Bylaw in force at the time, which set out sizing restrictions for buildings and structures. Tysoe J. determined that the barge was no longer properly characterized as a ship or vessel, but as a floating building or structure which exceeded the bylaw’s size limits, given its current use. [83] I do not think that Salt Spring Island can be taken as laying down a general principle that what a structure is can only be determined by its use. That case turned on unusual facts. Rather, I think that, although purpose may bear on what something is, it is not the only or a necessary part of the analysis. Often it is possible to identify what something is objectively, as I think the judge did here. [84] The structure in question had undoubtedly been built and used as a deck in the past. As originally constructed, it was an elevated platform extending from the rear of the property, alongside the boat ramp, without stairs to the boat ramp. After the dispute arose with the Island Local Trust, the Fonsecas modified the structure by adding stairs to the boat ramp and dividing the structure into two sections by means of a railing, one section of which is used for storage. [85] Looking at the photographs, I fail to see how the modifications transformed the structure from something prohibited (a deck) into something permitted (a walkway). I cannot conclude the judge fell into error in concluding that the structure was objectively a deck, nor that the Island Local Trust’s determination that the structure was a non‑compliant deck can be disturbed. [86] I would not accede to this ground of cross appeal. Disposition [87] I would dismiss the cross appeal. Conclusion [88] I would allow the appeal and dismiss the cross appeal. In my opinion, each party should bear their own costs of the appeal.  The Island Local Trust did in certain respects recast the argument on appeal from that advanced below.  Had it framed the issue properly before the judge, the judge may not have fallen into error and the appeal may not have been necessary. I see no reason, however, to depart from the ordinary costs rule respecting the cross appeal. “The Honourable Mr. Justice Harris” I agree: “The Honourable Mr. Justice Goepel” I agree: “The Honourable Mr. Justice Abrioux”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: S.R. v. A.B., 2021 BCCA 28 Date: 20210122 Docket: CA46467 Between: S.R. Respondent (Claimant) And A.B. Appellant (Respondent) Before: The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Goepel The Honourable Mr. Justice Abrioux On appeal from:  An order of the Supreme Court of British Columbia, dated September 25, 2019 ([ S.R. ] v. [ A.B. ], Vancouver Docket E121370). The Appellant, appearing in person (via videoconference): A.B. Counsel for the Respondent (via videoconference): J.E. Roos Place and Date of Hearing: Vancouver, British Columbia December 3, 2020 Place and Date of Judgment: Vancouver, British Columbia January 22, 2021 Written Reasons of the Court Summary: The parties have two children together. By order dated September 25, 2019, the father was granted limited supervised parenting time with his younger child. The order varied a previous order granted in 2017, which had in turn varied a 2013 order. The 2013 order provided that the parties’ older child would reside with the father, and the younger child with the mother during weekdays, and the children would reside together with each parent on alternate weekends. This order was varied in 2017 to provide that each child would reside exclusively with each parent: the older child with the father and the younger child with the mother. That arrangement was extended by a 2018 order. The father appeals the 2019 order on the grounds that the judge erred in (1) finding, absent expert evidence, that he had alienated his child; and (2) misapprehending evidence related to his compliance with past orders. Prior to the hearing the Court, by memorandum, requested submissions from the parties on the validity of the 2019 order. Held: Appeal allowed. The 2018 order was made on the judge’s own motion after the 2017 order had expired. The judge therefore erred in law in basing his decision on a variation of the 2017 order when the extant order was the 2013 order. The 2019 order is set aside with the exception of a term prohibiting the parents from discussing the litigation or parenting arrangements with the younger son; the 2013 order governs parenting arrangements in respect of the younger son, the older child having reached the age of majority. Reasons for Judgment of the Court: Introduction [1] This appeal arises from an order dated September 25, 2019 (or the “2019 Order”) which was made in the context of a high-conflict and protracted matrimonial dispute. The judge granted the father limited supervised parenting time with his youngest son A. who was then 11 years old. At the time the 2019 Order was made, the chambers judge had been seized of the matter for almost two years and was well aware of the parties’ circumstances. [2] The appellant father seeks to set aside the 2019 Order in favour of an order for three months of equal parenting time and the preparation of a “views of the child” report pursuant to s. 211 of the Family Law Act , S.B.C. 2011, c. 25 [ FLA ]. He also seeks an order directing that his older son B., who resides with him, be interviewed by Justice Gomery, who made a temporary parenting order for the 2018 year-end holiday season when the judge was unavailable to hear the application. [3] The hearing of this appeal took place approximately 15 months after the 2019 Order was made. Furthermore, the 2019 Order provides that the parties are entitled to review the parenting arrangement in January 2021. [4] The father also seeks to adduce fresh evidence, being reports authored after the 2019 Order was made and which relate to supervised access visits which have occurred since then. [5] For the reasons that follow, we allow the appeal, although not on the grounds raised by the father, which we need not address. Nor is it necessary to address the application to adduce fresh evidence. Instead, as explained below, we allow the appeal on the basis the judge erred in purporting to extend an expired order, which made the parenting arrangements in the 2019 Order invalid. Background [6] In light of our disposition of the appeal it is necessary to set out the background in some detail. [7] The parties were married in 1993 and divorced in 2013. They have two children, B. and A., born in 2001 and 2008 respectively. [8] On June 5, 2013, following a five-day trial, Justice N. Smith ordered, inter alia , that the parties have joint custody of the children, their residence to be with the mother from 6:00 p.m. on Sunday to 6:00 p.m. on Friday and with the father from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. This schedule was ordered to continue and not be affected by statutory holidays. The children’s Christmas holidays, spring breaks, and summer vacations were to be divided equally, with the children living with each parent on alternate weeks (the “Trial Order”). [9] Approximately five months later, on November 6, 2013 the trial judge varied the Trial Order since the older son B. had been running away from the mother’s home to be with the father. He ordered that B. live with the father on weekdays, and that the children spend alternate weekends together with each parent (the “November 2013 Order”). [10] Over the next five years, the parties returned frequently to court. As of December 2018, the parties had appeared on 44 occasions. The majority of those appearances are not relevant to this appeal, but at least two of those appearances involved unsuccessful applications brought by the father to vary A.’s residence. [11] On the April 10, 2015, occasion, Justice Bowden commented that the “parenting arrangements have been determined by this court and the applicant has not provided any evidence of a change in circumstances since the previous orders were made”. Since the application was dismissed on the same basis as a previous application brought by the father, Bowden J. ordered that the father not bring another application without leave of the court, or until May 1, 2016. Efforts by the father to bring further applications before that date were dismissed. [12] On September 27, 2017 the mother filed a notice of application in which she sought compensatory parenting of A. and an order that she and B. participate in family counselling. She also sought enforcement of prior court orders and that the father pay a fine for his wrongful denial of parenting time (the “September 27, 2017 Application”). Her notice of motion relied on eight different affidavits she had filed in the course of the proceedings. [13] The September 27, 2017 Application contained the following alternative claim for relief: [A.]’s change of Residence and School Upon [A.]’s request, and in order to minimize damage on [B.] due to custody battles; if the Judge finds this to the children’s best interest, 13. Order to change [A.]’s residence to reunite our children, 14. Order that during school time [A.] spends every other weekend with the [mother] from Friday 7 PM to Sunday 7 PM 15. Order that during holiday, [A.] spend time with each parent on 50-50 basis 16. Order that [the mother] can visit both children [B.] and [A.], in the middle of the week, for few hours in the evening 17. Order that the [father] provides his phone number to [the mother] and provides the means so the [mother] can call [A.] on daily basis [14] It is significant that in his application response, the father consented to the alternative relief concerning the change of A.’s residence. He opposed the other relief sought. His response said he would rely on six affidavits he had filed in the proceedings. [15] On October 11, 2017, the September 27, 2017 Application came on for hearing in regular Family Chambers before the judge, who had had no prior involvement with the parties. Both parties were self-represented. [16] After listening to the parties for approximately 40 minutes, the judge said he was going to change the court order. He then gave brief oral reasons for judgment. In that regard he said: [1]        THE COURT: What has happened here, folks, is that your children have become pawns of a dispute which the two of you do not seem to be able to get over. I am not sure what the whole basis of that is. Most every couple that comes to court eventually gets to the stage where they let go of the difficulties that happened in their relationship. [2]        But it is telling to me that the [father] here, the former husband, begins his presentation talking about what happened in the 1990s and how he lost money as a result, allegedly, of his former wife and her aunt’s activities. It suggests to me that, sir, that you are not able to let things go and that is clouding your judgment. [3]        The unfortunate thing is that this is having a dramatic effect on your children and everybody needs a timeout, and the timeout is going to be this: [A.] is going to reside with his mother exclusively until the 28th of February, 2018, and [B.] is going to reside with you exclusively until the 28th of February, 2018. You are entitled to call [A.] every Tuesday night at seven o’clock and every Saturday night at seven o’clock for a half an hour conversation, during which time you and/or [B.] can speak to [A.]. On Wednesdays at seven o’clock and on Sundays at seven o’clock, Ma’am, you are entitled to call [B.] and speak to him. [4]        [S.R.]: Yes. [5]        THE COURT: And [A.] can speak to [B.] at that time. That is what is going to happen between now and then because these kids need a break. You both need a break. Running back and forth to court all the time — 30 applications since the trial in 2013 — is craziness. You can spend your entire time in court and ruin your children’s lives, or you face a judgment like I have made today, which is both of you are going to have a relationship with one child, which you can try to repair with that one child, but other than that, you are only going to talk to the other child on the telephone. [6] I am seizing myself of any court applications, and there are to be no court applications. [7]        Sir, is there some reason you are smirking? [8]        [The father]: May I talk, Your Honour? [9]        THE COURT: Just a second. I have asked you a question. Is there some reason you are smirking when I said I am seizing myself of applications? [10]      [The father]: The [mother’s] seeking for order [ sic ] was for [A.] to be reunited with his brother, and none of us agreed to separate the children like this. [11]      THE COURT: Well, it does not matter what you have agreed to, sir, because that is the order I have made. My job as a judge is to hear from people and then make a decision that is in the best interests of these kids, and what a nine-year-old and a 16-year-old do not need is constant battles about going back and forth to a parent. So everybody is going to have a timeout, and that is what I have ordered. [12]      [The father]: May I sit? [13]      THE COURT: Yes, please do. Now, there are to be no applications until after the 28th of February, 2018, but after February 28th of 2018, both of you can file an application, exchange it, get in front of me for a full day application and I will see what happens from that point on, and if it is the case that things have calmed down, then maybe I will try some reintegration of a parent with a child. But if you are still verbally arguing or making things difficult for each other, then maybe the regime will continue. [17] The order arising from the reasons is as follows: THIS COURT ORDERS THAT, 1) [A.] shall reside with the [mother], exclusively, and [B.] shall reside with the [father], exclusively until February 28 2018. 2) The [father] shall have telephone access with [A.] from 7pm on Tuesday and Saturday for half hour and the [mother] shall have telephone access with [B.] at 7pm on Wednesday and Sunday for half hour at which times the children may speak with each other during the call. 3) [The judge] is seized of any further applications. 4) No applications are to be filed until after February 28 2018 and the applications must be set before [the judge] for a full day. 5) The application filed by the [mother] on September 27 2017 is adjourned generally. [The “2017 Order”.] [18] The effect of the order was that A. would reside exclusively with his mother while B. would live exclusively with his father. Contact between the non-resident parent and their child would be limited to two telephone calls per week. The two brothers would be separated from each other. [19] The 2017 Order was not appealed. That is not surprising given that the parties were self-represented, the order was interim in nature, could only be appealed with leave and in any event would expire by its terms on February 28, 2018. [20] On March 26, 2018 the mother filed a notice of application in which she sought, inter alia , an order that A. reside exclusively with her while B. would reside exclusively with the father. That application was set for April 6, 2018 before the judge. In advance of the hearing the father sent a letter to the Registry requesting an adjournment because he had been diagnosed with pneumonia. He provided a certificate of health status confirming the diagnosis. [21] Notwithstanding the request for an adjournment, the hearing proceeded on April 6, 2018 in the father’s absence. The judge heard submissions from the mother for approximately one hour. At the end of the hearing, on his own motion, he ordered that “[t]he order pronounced … on October 11, 2017, is hereby extended until further order of this court”. The judge also made certain orders respecting A.’s passport, and permitted the mother to travel with A. to the United States and outside Canada on certain conditions. The judge also ordered that “[the] outstanding issues in this application are adjourned generally” (the “April 2018 Order”). [22] The April 2018 Order was not appealed. [23] In December 2018, the father applied for parenting time with A. for the upcoming seasonal holidays. The parties appeared before Justice Gomery on December 19, 2018, since the judge was not available. At that time, Gomery J. made an order which provided the father with limited unsupervised holiday parenting time with A. (the “December 2018 Order”). Justice Gomery found there was no evidence that A. did not wish to see or spend time with his father and that “there is no history of family violence and no suggestion that [A.] will not be physically safe and secure in his father’s care”: [ S.R. v. A.B. ] (December 19, 2018), Vancouver Docket E121370 (B.C.S.C.) at para. 9. [24] In his reasons for judgment Justice Gomery noted: · while the father’s “frustration with the current parenting arrangement is understandable, his attempts to get his 10-year old son to take sides were inappropriate and not in [A.’s] best interests”: at para. 13; and · there is some justification for the [mother]’s concern that A. would be subjected to pressure from his father and brother if this application is allowed, and there would be at least some risk to A.’s emotional health: at para. 14. [25] Justice Gomery’s reasons also provided: [18]      [The mother] has taken the view that [the judge’s] order prevents [the father] or [B.] from coming into her neighbourhood or showing up where [A.] is, and she has said as much in correspondence to [the father]. [19]      The order does not say that. [The mother] directed me to paragraph 6 of the order made by Justice Smith on November 6, 2013. I think that Mr. Justice Smith’s entire order was replaced by the order of [the judge], and even if paragraph 6 of the earlier order somehow survived, it only limited being “in the vicinity of the other party’s residence.” [The mother’s] aggressive interpretation of [the judge’s] order is incorrect. [20]      I am troubled by [the mother’s] decision to record all of [A.]’s telephone conversations with his father. In my view, [A.] and his father should be afforded some privacy in their relationship. [21]      Taking all this into account, I am not persuaded that [A.]’s emotional health is necessarily at risk if he spends time with his father and his brother over Christmas. There is some risk to his emotional health either way. He is emotionally bonded with both parents and he needs contact with both of them at this important time of the year. [22]      I have considered [the mother’s] alternative submission, that access by [the father] take place under supervision. I think that the risk of inappropriate conduct by [the father] or [B.] during the visit can be addressed by the following orders: (a)        The parties will not: 1.         Question [A.] about the other parent or time spent with the other parent beyond simple conversational questions. 2.         Discuss with [A.] this court proceeding or any inappropriate court or legal matters. 3.         Blame, criticize or disparage the other parent to [A.]; or 4.         Encourage [A.] to seek any change in the parenting arrangements that have been, are, or will be ordered by the Court. (b)        [The father] will not encourage or permit [B.] to speak to [A.] in any way he would not himself be permitted under this order. [23]      On this basis, I think that an overnight stay is in order and the length of the visit should be the same as was historically the case under the order of Justice Smith. [24]      Unless there is some reason to change the dates, I would repeat Justice Smith’s order, that [A.] should be with the [father], from 10:00 a.m. on December 25 to 7:00 p.m. on December 30. I order that the pickup arrangements be as set out in paragraph 1(d) of the notice of application. [25]      My order is only for this Christmas period. The parenting over future holidays will be addressed by [the judge]. [26] The next day, that is December 20, 2018, the father filed an application in which he sought additional unsupervised parenting time with A. to include every other weekend, and Tuesdays and Wednesdays after school on alternating weeks. This is the application which was ultimately heard in July 2019 and which resulted in the 2019 Order under appeal. The notice of application does not allege any material change in circumstances arising since the 2017 Order. Instead, “Part 2: Factual Basis” focused on prior orders of the court, evidence that was before the judge when he made the 2017 Order, and the father’s alleged breaches of that order. [27] A week later, on December 27, 2018, the mother filed an application seeking preparation of a views of the child report to obtain A.’s views regarding future parenting arrangements, and requesting that the 2017 Order, as extended on April 6, 2018, be continued until the report was prepared. Alternatively, the mother sought an order that A. have supervised visits with the father one weekend per month, and that the father cover the cost of those visits. [28] The mother also filed a further application on June 26, 2019, seeking an order that the father obtain leave of the court before bringing any further applications and that she be entitled to travel outside of Canada with A. [29] That day, the mother also filed her materials responding to the appellant’s application for additional parenting time. In those materials, she raised concerns about the father’s behaviour towards A., including that he had, contrary to Justice Gomery’s order, pressed A. during the 2018 holiday parenting time with respect to whom he wanted to live with. [30] These three applications initially came on for hearing before the judge on July 4, 2019. Since the appellant had recently received the mother’s materials, the hearing was set over to July 25, 2019 so that the father would have an opportunity to provide a full response. In the course of submissions, the judge indicated on several occasions that he had made findings of fact at the time of the October 11, 2017 hearing and the onus on this application was on the father to show a material change of circumstances since that date. [31] The parties re-appeared before the judge on July 25, 2019. The judge acceded to the father’s counsel’s request that it would be appropriate for him to speak directly with A., then 11 years old. He would give reasons for judgment thereafter. That conversation occurred on August 21, 2019. The Reasons [32] On September 25, 2019, the judge issued his unreported reasons for judgment, which in part refer to the circumstances of his prior orders: [ S.R. v. A.B. ] (September 25, 2019), Vancouver E121370 (B.C.S.C.) (the “Reasons”). He explained that at the time of the 2017 Order, he had “concluded that there had been attempts at, for a lack of a better term, alienation or undue influence exerted by … [the father], and the elder child, [B.] … in regards to [A.] …”: at para. 4. He noted that the father’s conduct had included over-holding A., not returning him at the agreed times, “expressing statements to [him] of a negative nature about [the mother] and encouraging … [B.] to do the same”: at para. 5. He regarded B. as having already been “virtually alienated” towards the mother under the father’s influence. [33] The judge also made certain comments about his conversation with A.: · A. appeared “comfortable ... [and] that in terms of a level of comfort, he was able to smile and engage and was not outwardly distressed”; · the conversation “for the most part confirmed the version of events attested to by the mother but denied by the father. Specifically, A. volunteered that during his visit with his father at Christmas, he felt that he was being pressured about changing his living arrangements and, despite the express words of the order of Mr. Justice Gomery, his father brought up the topic of where he should live”; · A. expressed a lack of comfort when his father and B. showed up unexpectedly at A.’s sporting and other events. In this regard, A. recited additional incidents of contact that were not deposed to by the [ mother]; and · A. expressed that he loves his dad but desires “not to see him because of the stress associated with contact”. [34] On several occasions in the Reasons, the judge noted his concern that the father could not abide by court orders but he also recognized that a child having no personal contact with a parent generally may be unhealthy in the long‑term. [35] The judge summarized the situation as follows: [23]      So again, I have a father who cannot abide by court orders, but I know that having no personal contact with a parent generally is not a good thing for a child, and absent threats of physical violence directed at the child, non-contact is not healthy in the long term. As indicated, a short-term timeout can sometimes be effective to resolve the problems. That did not happen here and that did not work in resolving the problems. [36] Accordingly, the judge: · dismissed the father’s application for specific parenting time; · ordered that the telephone contact previously ordered continue; and · ordered that the father be permitted supervised access with A. every second Saturday of each month for four hours, with the appellant to bear the costs of the professional supervision agency, essentially as sought by the mother in her application filed December 27. [37] The judge also reaffirmed the prior order that neither parent discuss the litigation, residential arrangements, or access arrangements with A., (at para. 4) with the order also providing that the parties were “ entitled to review [the] parenting arrangement in January 2021 by way of application”. Issues on Appeal [38] In his amended factum, the father submits that the judge erred by: a) finding, absent expert evidence, that he had alienated A.; and b) misapprehending evidence respecting his compliance with prior orders. [39] The mother’s position as set out in her amended factum is that the judge made neither an error in principle nor error in law, nor did he significantly misapprehend the evidence in dismissing the father’s application to vary the October 17, 2017 order. [40] In light of our conclusion on an additional issue as explained below, it is unnecessary to address the issues advanced by the father. We turn to the additional issue now. Additional Issue on Appeal [41] On November 30, 2020, the Court, by memorandum (the “Memorandum”), requested the parties’ submissions at the hearing of the appeal as to the validity of the order under appeal, being the September 25, 2019 order in that: · the order of September 25, 2019, varied the order of October 11, 2017; · the October 11, 2017 order in turn purported to be a variation of the order of Justice N. Smith dated November 6, 2013; · however, the October 11, 2017 order expired on February 28, 2018; and · despite the expiry of the October 11, 2017 order, the judge purported to extend that order on April 6, 2018, until further order of the court. Accordingly, the question is: could the judge on his own motion extend an expired order? Discussion [42] Neither the notice of application filed December 20, 2018 nor the Reasons identify the parenting order which the father sought to be varied. The parties agreed, however, that the order in question was the 2017 Order which provided that A. reside exclusively with the mother and B. reside exclusively with the father, with the children each having telephone access with their non-resident parent. [43] We are of the view that the 2017 Order varied the Trial Order as varied by the November 2013 Order. Accordingly, we disagree with Gomery J.’s view expressed at para. 19 of the December 2018 Reasons that “ Mr. Justice Smith’s entire order was replaced by the order of [the judge]”. [44] In that regard, t he Trial Order provided that “[p]ursuant to the Divorce Act the [mother] and the [father] shall have joint custody of the children”, with the parenting arrangements ordered pursuant to the FLA . A prerequisite to variation under either statute requires proof of a material change of circumstances: Williamson v. Williamson , 2016 BCCA 87 at paras. 29–34. [45] As stated earlier, however, this appeal need not be decided on the grounds raised or arguments made by the parties in their factums, and in particular on whether a material change in circumstances had been established. [46] In response to the Memorandum, counsel for the respondent referred the Court to Sutherland v. Reeves , 2014 BCCA 222 and Rogers v. Taylor , 2015 BCCA 244. [47] It was the mother’s submission that the 2017 Order, when considered in its proper context, did not expire on February 28, 2018. She relies on Sutherland and the statement of the Chief Justice: [31] court orders are not interpreted in a vacuum. This Court has recently described the correct approach to the interpretation of court orders ( Yu v. Jordan , 2012 BCCA 367 at para. 53, Smith J.A.): [53]      In my view, the interpretation of a court order is not governed by the subjective views of one or more of the parties as to its meaning after the order is made. Rather an order, whether by consent or awarded in an adjudicated disposition, is a decision of the court. As such, it is the court, not the parties, that determines the meaning of its order. In my view, the correct approach to interpreting the provisions of a court order is to examine the pleadings of the action in which it is made, the language of the order itself, and the circumstances in which the order was granted . [Emphasis added in original.] [48] The mother’s position is that it was not “objectively reasonable” to conclude that on October 11, 2017 the judge intended that as of March 1, 2018 the parenting arrangements would revert to the November 2013 Order or that the parties would be left “in limbo”. Rather his intention was that the 2017 Order would not expire and he would at a later time decide whether it should be varied or extended. She argues that both on October 17, 2017 and April 6, 2018, the judge considered the best interests of the children and was entitled to proceed as he did even without submissions of either party and in the appellant’s absence. [49] We do not accept this submission for several reasons and dispose of the appeal on the basis that the 2017 Order expired on February 28, 2018, at which point it became ineffective: see Burbank v. Garbutt, 2012 BCSC 190 at para. 28; Maxwell’s Plumbing and Heating Ltd. v. British Columbia, 2017 BCCA 285 at para. 2. Accordingly, in September 2019 the judge erred in law by basing his decision on a variation of the 2017 Order when the extant parenting order was in fact the Trial Order as varied in November 2013. [50] First of all, the foundation for the 2019 Order under appeal is the 2017 Order which was then purportedly “extended” by the judge on his own motion on April 6, 2018. Although the 2017 Order was not appealed, it is our view, for reasons we shall explain, that it was problematic for a number of reasons. [51] Rogers involved an appeal of a spousal support order which was made without an application or evidence. Justice Bennett, for the Court, in granting the appeal explained: [12] Generally, a court should not make an order on an matter that was not before it ( Naderi v. Naderi , 2012 BCCA 16 at para. 22 and D.W.H. v D.J.R. , 2013 ABCA 240 at para. 42). Sometimes such orders will arise during the course of an application, and depending on the circumstances, may not be wrong. Here, however, neither party was heard on the application, nor was there was any evidence upon which to base the order. As a result, an unfairness has occurred with respect to Mr. Rogers. See also Liapis v. Keshow , 2020 BCCA 28 at para. 15. [52] While the circumstances here were somewhat different than in Rogers, the reasoning nonetheless applies. In October 2017, neither party requested the “time out” imposed by the judge and that order was in fact contrary to the alternative relief sought by the mother that A.’s primary residence change to be with his father and to which he consented. The 2017 Order, which was a variation of the November 2013 Order, was also made without any reference or analysis in the judge’s reasons to the requirement of a material change in circumstances. [53] Accordingly, both parties were prejudiced at that time. [54] This prejudice or unfairness was compounded when on April 6, 2018, the order was extended on the judge’s own motion and in the father’s absence, due to medical reasons that were not in dispute. [55] In his Reasons, the judge also referred to his decision of October 11, 2017 and explained certain of the findings he had made that day. The difficulty is that the judge made no findings in his October 11, 2017 reasons. In our view, this further undermines the basis for that order and was unfair to the parties, including as to their ability to consider an application to seek leave to appeal what was intended to be an interim parenting order. [56] We add that the judge appears to have implicitly accepted certain of the allegations made by the mother that the father’s conduct had breached the 2017 Order, for example, the view that his order(s) prevented the father and B. from visiting the neighbourhood where A. and his mother resided. Justice Gomery had not accepted this interpretation of the judge’s order in December 2018: December 2018 Reasons at para. 19. [57] In any event, in our view the correct interpretation of the October 11, 2017 order is that the “time out” expired on February 28, 2018 and it was for the parties to file any applications or reset any adjourned application after that date at which time: if you are still verbally arguing or making things difficult for each other, then maybe the regime will continue. [58] When we consider the brief reasons for judgment of October 11, 2017, it may well be that the judge did not appreciate what we consider to be the legal effect of the order; that is, upon a further application after February 28, 2018, the extant orders would be the Trial Order as varied by the November 2013 Order. Those were the extant orders at the time of the October 2017 hearing. [59] Accordingly, we conclude that the appeal should be allowed and the order of September 25, 2019 should be set aside in its entirety with the exception of para. 4 which pertains to the prohibition on both parents from discussing the litigation or parenting arrangements with A. Ongoing parenting arrangements in relation to A., (B. having now reached the age of majority), are governed by the Trial Order as varied by the November 2013 Order. Pursuant to the terms of that order, A. resides with his mother during the week and spends alternate weekends with his father. Those weekend visits should commence January 29, 2021. Either party is at liberty to apply to vary those parenting arrangements. If either party so applies, then the father will presumably file the evidence he considers to be of assistance to his position. [60] We add that, while allowing the appeal, we are mindful of A.’s statements to his mother and the judge that in late December 2018, when exercising unsupervised parenting time, the father breached Gomery J.’s order by attempting to pressure A. about the parenting arrangements. [61] This allegation is vehemently denied by the father. If true, however, while not a permissible excuse, it occurred in the context of a father who had been denied in‑person parenting time with his son from October 11, 2017 to late December, 2018. [62] There have been allegations of misconduct in relation to both parties and we note the concerns which we consider were appropriately raised by Gomery J. regarding the respondent recording A.’s conversations with his father. [63] Suffice it to say that the parties must comply with all court orders including para. 4 of the September 2019 Order. The Judge’s Decision to Declare Himself Seized of Further Applications in This Proceeding [64] On October 11, 2017, at the conclusion of the application which is at the core of this appeal, the judge made an “order” that he was seized of any further applications in this proceeding. He repeated this order on September 25, 2019. [65] In this Court, the father submitted that any further hearings in the Supreme Court should be before a different judge. Essentially his position is that he was not provided with an opportunity to be heard before the 2017 Order was made and that the interactions between himself and the judge that day and on subsequent occasions show that he has not been dealt with fairly. [66] This Court has previously stated that judges may declare themselves seized whenever it is in the interests of justice to do so: Dhaliwal v. Beloud, [1996] B.C.J. No. 1459 (C.A.) at para. 25 [ Dhaliwal ]. [67] The practice of a judge seizing themselves is common in high-conflict family cases, where it offers several practical advantages. As Justice Rowles observed in D.M.M. v. T.B.M., 2011 YKCA 8: [4]        It may be helpful to observe at the outset that it is not unusual for a judge to become seized of proceedings in parental alienation or other high conflict family law cases. Such a practice was commented upon by Martinson J. in A.A. v. S.N.A., 2009 BCSC 387 at para. 81. In “One Case-One Specialized Judge: Why courts have an obligation to manage alienation and other high-conflict cases”, (2010) 48 Family Court Review 180, she elaborated on the rationalization for adopting such a practice. [68] Justice Martinson explained in A.A. v. S.N.A., 2009 BCSC 387, that it is “imperative in high conflict family cases generally … that one member of the Court take charge of the case”. This is commonly referred to as becoming “seized”. Justice Martinson explained: [78]      The reasons for doing so for all cases are obvious. The judge will be familiar with the case so the litigants do not have to explain the situation over and over again. It avoids “judge shopping” to try to get a better result. It prevents inconsistent approaches. It saves legal and other costs. There will be times in dealing with some cases when it is not convenient or practical to do so. [69] Nonetheless, becoming seized carries risks. As the Court explained in N.R.G. v. G.R.G., 2017 BCCA 407 [ N.R.G. ]: [ 60 ]      There is much wisdom in Madam Justice Martinson’s observation that a family unit may benefit from a judge seizing him or herself of a case. That does not mean, however, that the seized judge should remain seized to the last application filed. The very fact the judge is seized of the case increases the opportunity to develop an impermissible point of view about the case or the parties, and emphasizes the vital requirement of assiduous objectivity. All trial judges will know there may come a time in the conduct of a case when the judge says, “I have done my best and should pass this to fresh eyes .” [ Emphasis added.] [70] This then raises the question as to whether this Court has jurisdiction to review a decision by a judge to be seized of a matter. In Dhaliwal, Justice Cummings stated: [27]      Whether or not a judge agrees to be seized of a matter is a decision which lies within the ambit of that judge’s discretion. An appeal court should only interfere if a judge was clearly wrong in the exercise of that discretion [71] In Dhaliwal, the Court declined to intervene on the grounds that the judge’s decision was correct: at para. 27. In Insurance Corp. of British Columbia v. Hoang, 2002 BCCA 714 (Chambers), Justice Smith noted, in denying leave to appeal a decision to become seized, that the Court “has never interfered with the manner in which the Supreme Court conducts its business”: at para. 6. In The Owners, Strata Plan K855 v. Big White Mountain Mart Ltd., 2014 BCCA 397 [ Strata Plan K855 ], the Court dismissed the appellant’s request to set aside a decision where the judge had become seized and similarly stated that “[o]rders or directions by which a judge seizes him or herself are inherently matters of trial management to which this Court owes high deference”: at para. 34. [72] These authorities all predate N.R.G . which examined the issue in some detail. In that case, the Court considered the jurisdictional issue as to whether a judge’s decision to become seized is an “order” for the purposes of s. 6 of the Court of Appeal Act, R.S.B.C. 1996, c. 77 and concluded that it is not: at para. 62. As the Court explained: [63]      The determination that the judge is seized of the case is recited in two documents entitled “Final Order”, one from the trial and the other from the review and reconsideration. Notwithstanding this title, we respectfully suggest that the determination is more in the nature of a procedural direction or instruction that applications in the proceedings should be set before him—it does not address matters of substance between the parties or issues raised in the pleadings. Such a direction is likely not an order or decision that is within the jurisdiction given us by the Court of Appeal Act , R.S.B.C. 1996, c. 77: see Cambie Surgeries Corporation v. British Columbia (Attorney General) , 2017 BCCA 287; Director of Forfeiture v. Lloydsmith , 2014 BCCA 72. As we note in Lloydsmith , it happens that matters of the trial court’s management sometimes are included in documents entitled “Order” that do not bear that character. [Emphasis added.] [73] In addition to these comments, the Court noted that it would decline in any event to “interfere in the administration of the Supreme Court of British Columbia in the manner sought and defer the question to that court”: at para. 64. [74] This does not leave parties without recourse. As explained in N.R.G., also at para. 64, it remains open to the parties to “address [their] complaint[s]…either to the judge or the Chief Justice”. Furthermore, complaints about a judge’s decision to remain seized have often overlapped with concerns which relate to the judge’s impartiality: see Lee v. Lee, [1990] B.C.J. No. 2277 (C.A.) ; Strata Plan K855 at para. 34 ; and N.R.G. at paras. 57–58. Where these rise to the level of a reasonable apprehension of bias, the remedy will be the disqualification of the judge seized: Wewaykum Indian Band v. Canada, 2003 SCC 45 at para. 62; and N.R.G. at paras. 65–82. [75] We have reviewed the transcripts of the various substantive proceedings before the judge. In light of: · certain of the interactions between the judge and the father; · the fact the 2017 Order was made without submissions from the parties and the judge decided not to hear from the father after it was made, with the resulting unfairness to which we have referred; · the April 2018 Order was made in the absence of the father; and · the effect of the 2017, April 2018 and 2019 Orders, being that the father has had no in-person parenting time with A. from October 2017 to now with the exception of the brief period of unsupervised parenting time in December 2018 and supervised parenting time since September 2019, we would respectfully suggest that consideration be given as to whether any further application by the parties be “passed to fresh eyes”. Disposition [76] We allow the appeal and set aside the September 2019 Order with the exception of para. 4 as described above. [77] In light of our conclusion that the 2017 Order was unfair to both parties, and that order formed the basis of the April 2018 and 2019 Orders, we make no order as to costs in this Court or in the court below. “The Honourable Madam Justice MacKenzie” “The Honourable Mr. Justice Goepel” “The Honourable Mr. Justice Abrioux”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Quigley v. Cymbalisty, 2021 BCCA 33 Date: 20210126 Dockets: CA46555; CA46556; CA46557 Docket: CA46555 Between: Robyn Kathleen Quigley Appellant (Plaintiff) And Eugenie Cymbalisty Respondent (Defendant) - and - Docket: CA46556 Between: Robyn Kathleen Quigley Appellant (Plaintiff) And Wanda Jonsen Respondent (Defendant) - and - Docket: CA46557 Between: Robyn Kathleen Quigley Appellant (Plaintiff) And Jessica Johanson Respondent (Defendant) Before: The Honourable Madam Justice Fenlon The Honourable Mr. Justice Hunter The Honourable Mr. Justice Butler On appeal from:  An order of the Supreme Court of British Columbia, dated November 5, 2019 ( Quigley v. Jonsen , 2019 BCSC 1812, Nanaimo Dockets M76543; M74318; M75819). Counsel for the Appellant: G. Cameron C.R. Phillips Counsel for the Respondents: G. Ritchey Place and Date of Hearing: Vancouver, British Columbia September 24, 2020 Place and Date of Judgment: Vancouver, British Columbia January 26, 2021 Written Reasons by: The Honourable Mr. Justice Butler Concurred in by: The Honourable Madam Justice Fenlon The Honourable Mr. Justice Hunter Summary: The appellant was injured in three motor vehicle collisions. She appeals the judge’s damages awards for her future loss of earning capacity and the cost of future care, alleging that the judge erred in applying the relevant legal tests and in misapprehending or ignoring the evidence. Held: Appeal dismissed. The judge’s conclusions on the appellant’s future loss of earning capacity were reasonably supported by the evidence and were made in accordance with the applicable legal principles. It is not the Court’s role to reweigh the evidence on appeal. Similarly, the judge did not err in his assessment of the cost of future care but rather used the available evidence to determine an award that was medically justified and reasonable in the circumstances. Reasons for Judgment of the Honourable Mr. Justice Butler: Introduction [1] The appellant, Robyn Quigley, was injured in three low velocity motor vehicle collisions that occurred in December 2012, June 2013, and March 2014. Her actions against the defendant drivers were heard at the same time. Liability was admitted by the defendants, as was the fact that, at the time of trial, the appellant continued to suffer from the effects of the physical and psychological injuries sustained in those accidents. The sole issue at trial was the quantum of damages. [2] In reasons indexed as 2019 BCSC 1812 (the “Reasons”), the trial judge awarded Ms. Quigley damages of $381,503, including $150,000 for future loss of earning capacity and $64,558 for the cost of future care. Ms. Quigley appeals the two future loss awards, arguing the judge failed to properly apply the tests for loss of future earning capacity and cost of future care despite making favourable findings of fact. She also argues that the judge misapprehended, misconceived, or ignored evidence in determining the cost of future care award. [3] The respondents submit the judge made no errors in determining the amounts to award for those heads of damage. They say the appellant’s arguments attack the findings of fact made by the trial judge but that she is unable to identify any palpable and overriding errors that would warrant interference on appeal. In particular, the respondents submit that the judge’s inferences of fact were reasonably supported by the evidence available to him. [4] For the reasons that follow, I would dismiss the appeal. Reasons [5] The appellant is an artist and art teacher. She has two university degrees in fine arts, including a Master of Fine Arts and has had a number of exhibitions of her work. She was married in 2000 and moved to Nanaimo in 2002. After the birth of her son in 2006, she started a small business providing private and group art lessons. From its inception in 2009, the business returned a profit. She continued to operate the business after the collisions and up to the date of trial: Reasons at paras. 1–3, 10–14. [6] The judge found that Ms. Quigley was physically and emotionally healthy prior to the motor vehicle accidents (“MVAs”). He found her to be a credible witness with an effervescent personality and a gift for relating to her students: Reasons at para. 8. The appellant was passionate about the business and the judge described its significance to her: [15]      The profits from the business may have been less than handsome, but it is clear that an important return for Ms. Quigley is the sense of satisfaction she gets from spurring her students’ creativity. She also derives real pleasure from the bond she forms with her students. She has taught many students in the past ten years, and her husband described walking around Nanaimo with her is like being in the company of a rock star. Ms. Quigley testified that she enjoys this recognition of her teaching efforts. [7] The judge was also persuaded that at the time of trial, the appellant continued to suffer pain. The respondents did not question the appellant’s credibility and the judge found that she had “gone the extra mile to mitigate her losses.” He found that the appellant had “doggedly carried on with the business notwithstanding persistent pain.” Nevertheless, the judge accepted the respondents’ position that when assessing damages he should be “cautious about taking too much from her demeanour in the witness box” and should “not lose sight of the fact that [the appellant] is capable of projecting positivity and upbeat energy”: Reasons at paras. 17–19. [8] The judge noted that there was little controversy in the medical opinion evidence about the appellant’s injuries and the extent of her disability. She suffered “a whiplash disorder with cervicogenic headaches, soft tissue injury to her upper thoracic area, and anxious mood.” While there had been some improvement, Ms. Quigley has “chronic pain due to musculoskeletal and soft-tissue-type-injuries”. The judge accepted the psychiatric diagnosis that the appellant suffered an “adjustment disorder with chronic anxiety, and somatic symptom disorder.” The judge also accepted the prognosis from the expert physiatrist that “[i]t is likely [the appellant] will remain symptomatic with chronic pain and some limitation as a result. … [T]he chances of complete resolution of symptoms where she would return to a point of being symptom-free are quite slim.”: Reasons at paras. 20–24. [9] In addition, the judge accepted the evidence from a treating psychological counsellor who noted recent improvement in the appellant’s condition saying she is “better able to manage her pain and anxiety. Her self-esteem and confidence are building, and she is happier and less tearful.” The psychologist predicted that the appellant would “make further progress in recovering from her emotional injuries”: Reasons at para. 26. The judge concluded his assessment of the extent of the appellant’s injuries as follows: [27]      I think it likely that Ms. Quigley will continue to make some modest progress, both physically and emotionally, and the elimination of the anxiety associated with this litigation will help that improvement process. However, notwithstanding the prospect of some improvement, the damages assessment must account for the likelihood of the continuation of a significant level of pain with the attendant need to modify her work and home life, and account for the risk of physical and emotional relapses. [10] The judge then returned to the issue of mitigation, noting that broadly, the defendants “have little cause for complaint about [the appellant’s] efforts to minimize her losses”. However, the defendants did argue that the appellant ought to have purchased $15,440 of ergonomic equipment recommended by an occupational therapist: Reasons at paras. 28–29. All of the medical experts and the appellant herself were of the view that the equipment would be of assistance to her. However, the judge found that the appellant had been unable to purchase the equipment because of her impecuniosity; going further in debt to acquire the expensive ergonomic equipment was not a realistic option. Accordingly, he rejected the mitigation argument and found that the plaintiff had acted reasonably: Reasons at paras. 32–35. [11] The judge then considered non-pecuniary damages and past loss of earning capacity. He recognized that the appellant identified as an artist, teacher, businessperson, mother, and spouse and that having to endure pain from the injuries suffered in the MVAs had a significant impact on her ability to fulfil and enjoy those roles. He awarded $110,000 for non-pecuniary damages. This included a “slight upward adjustment” for impairment of her housekeeping capacity. He also awarded a net past income loss of $33,000: Reasons at paras. 41, 51, 73. Neither of those awards are challenged on appeal. [12] On future loss of earning capacity, the judge set out the earnings and capital asset approaches to quantifying the appellant’s loss and referred to the leading authorities in this province. The judge found that the appellant wanted to continue her business and concluded that she would be able to do so, but at a reduced capacity. He awarded damages for that future loss of capacity on the basis that she would continue the business but would not be able to work to the same level as she would have but for the accident. He estimated that the diminishment in her capacity would result in an annual loss of income of approximately $6,000 in relation to her business and $1,000 for lost art sales. He applied the $7,000 annual loss and a multiplier of 17 to age 70. This produced a loss of capacity of $120,000, which he then adjusted upwards to take into account various contingencies, including pain flare-ups and other setbacks. He concluded that $150,000 was a fair and reasonable measure of the diminishment of the appellant’s future earning capacity: Reasons at paras. 52–60. [13] Lastly, the judge considered each of the appellant’s claims for costs of future care. These included various therapy expenses, medications, housecleaning services and the cost of the ergonomic equipment. He awarded a total of $64,558 for that head of damage: Reasons at para. 75. Added to the $110,000 for non-pecuniary damages, $33,000 for past loss of earning capacity, $150,000 for future loss of earning capacity, and $23,945 in special damages, the judge awarded Ms. Quigley a total of $381,503. Grounds of Appeal [14] The appellant argues the judge erred: 1. In failing to properly apply the test for future loss of earning capacity, thereby coming to erroneous conclusions on this head of damages; and 2. In failing to properly apply the test for determining the cost of future care awards, and in misapprehending, misconceiving, or ignoring material evidence regarding future care costs, thereby coming to erroneous conclusions. [15] I will consider each ground of appeal in turn. Future Loss of Earning Capacity Appellant’s Position [16] The appellant says the judge appropriately recognized that the evidence established a real and substantial possibility she would suffer a future loss of earning capacity. However, she says the judge failed to properly apply the principles governing assessment of loss of earning capacity to his findings of fact about the appellant’s circumstances. Instead of assessing her loss by examining factors that would demonstrate the magnitude of her loss, such as the impairment of her ability to work to full capacity and grow the business, the judge applied a flawed “replacement cost” analysis. The appellant says the failure to apply the proper principles is an error of law which resulted in an award that significantly undercompensated her future loss. However, the appellant says that even on the judge’s “flawed methodology”, the award he calculated was significantly lower than the replacement cost expense he intended to compensate. [17] The appellant submits that in arriving at his conclusion about the appellant’s future loss of capacity, the judge must have ignored or failed to take into account evidence that he purportedly accepted. This includes the fact that the appellant had to sacrifice her personal and home life to keep the business operating; her specific involvement in the business as pivotal to its success; its trajectory of growth; and the real possibility that her business could fail, forcing her to access a job market in which her ability to succeed would be impaired. Further, she says the judge’s conclusion that her symptoms would likely improve is divorced from the medical evidence that the judge accepted. Respondents’ Position [18] The respondents say that the judge’s findings of fact are reasonably supported by the evidence and provide a proper basis for the award of future loss of capacity. The respondents stress that inferences drawn about hypothetical future events are fundamentally different from findings of fact about past events. The respondents note the high level of deference to be afforded to inferences drawn by a trial judge about future hypotheticals so long as they are reasonably supported by the evidence. In this case, there was a significant body of medical and other evidence about matters relevant to the appellant’s future symptoms and her ability to work. The respondents submit that the appellant is asking this Court to do that which it cannot do: reweigh the evidence in order to draw alternate inferences from those drawn by the judge. [19] In addition, the respondents submit that the appellant failed to present evidence to support any different analysis than the one undertaken by the judge. They say the appellant failed to provide useful or relevant evidence that the judge could have used to assess the economic impact her injuries might have on her ability to earn income in the future. This failure makes her arguments largely theoretical or speculative and say they do not lend support for the argument that the judge erred in principle. On the contrary, they say the judge considered and weighed the available evidence and did the best he could where the evidence was lacking. Standard of Review [20] A failure to apply the governing legal principles attracts the standard of review of correctness. The standard of review applicable to findings of fact and inferences drawn from facts directly proven is palpable and overriding error. However, where an erroneous finding of the trial judge can be traced to an error in characterization of the legal standard, then the correctness standard of review is applied: Housen v. Nikolaisen , 2002 SCC 33 at paras. 8–10, 27, 31–33. [21] As this ground of appeal is concerned with inferences about future hypothetical events, the correct approach for an appellate court is to determine whether the inferences drawn by the trial judge are reasonably supported by the evidence. If so, there is no palpable and overriding error and it is not for the reviewing court to interfere or reweigh the evidence. In H.L. v. Canada (Attorney General) , 2005 SCC 25, Justice Fish, for the majority, stated: 74        I would explain the matter this way. Not infrequently, different inferences may reasonably be drawn from facts found by the trial judge to have been directly proven. Appellate scrutiny determines whether inferences drawn by the judge are “reasonably supported by the evidence”. If they are, the reviewing court cannot reweigh the evidence by substituting, for the reasonable inference preferred by the trial judge, an equally – or even more – persuasive inference of its own. This fundamental rule is, once again, entirely consistent with both the majority and the minority reasons in Housen. [Emphasis in original.] Analysis [22] As I will explain, I am of the view that the appellant is not able to show that the judge erred in his application of the relevant legal principles. Rather, she is inviting this Court to reweigh the evidence and substitute its own inferences about her future loss of earning capacity. I find that the inferences drawn by the judge are reasonably supported by the evidence. [23] While the judge’s review of the applicable principles and his analysis of the appellant’s claim was stated succinctly, it was based on his thorough review of the evidence and is responsive to the arguments advanced at trial. [24] The appellant does not dispute the judge’s summary of the applicable legal principles at para. 53. The judge acknowledged the two approaches to future loss assessment—the “earnings approach” and the “capital asset approach”—and that his task was to make a fair and reasonable award by weighing the real and substantial possibilities of loss according to their relative likelihood. He also recognized the need to make allowance for the possibility that the assumptions upon which the award is based may be wrong. [25] After explaining the general approach, the judge turned to the appellant’s argument that she was entitled to be compensated as if she were intent on maximizing the financial returns from her capital asset—even though she may not have done so in the past. I note that this is similar to the argument advanced on appeal. At trial, in support of this argument, the appellant pointed to evidence that she said should have led to favourable answers to the four factors set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353. The judge rejected the argument, stating: [54]      This argument is not tenable in the aftermath of the judgment of McLachlin C.J.C. in M.B. v. British Columbia , 2003 SCC 53 at para. 50: These damages are not ... based on a fixed value that has been assigned to an abstract capacity to earn. Rather, the value of a particular plaintiff’s capacity to earn is equivalent to the value of the earnings that she ... would have received over time, had the tort not been committed. This approach dovetails with instructions from our Court of Appeal indicating that the essential analysis is comparing the plaintiff’s working life if the accidents had not happened with her working life after the MVAs, and then give consideration to the overall fairness and reasonableness of the assessment taking account of all of the evidence : Rosvold v. Dunlop , 2001 BCCA 1 at para. 11; Gregory v. Insurance Corporation of British Columbia , 2011 BCCA 144 at para. 32. [Emphasis added.] [26] The judge determined that the assessment should not focus on the appellant’s theoretical capacity, that is, economic evidence showing the average earnings of a person of similar age with a Masters degree in Fine Arts. This statistics-based evidence might be valuable if the appellant had been unsettled in her career choice or if she were unable to carry on with the business, which was not the case: Reasons at para. 55. Rather, the judge held that the focus of the assessment should be on the appellant and her particular circumstances, noting that her “singular goal” was to establish the art school business. Not only had she done so, but she had been able to continue the business in the years leading up to trial. He found that she derived important non-monetary returns from the work and that making money was never at the core of why she established her business or why she carried on after the MVAs despite her pain: Reasons at para. 56. [27] The judge’s key conclusion is that the appellant would be able to continue to operate the business and would seek to do so after the MVAs, albeit at a reduced capacity. The judge explained this significant inference as follows: [57] But for the MVAs, I am certain she would have continued to operate her business indefinitely. The medical evidence and her own track record establishes that she is able to continue in her business notwithstanding her injuries, although she has to make accommodations for herself. I think it is highly unlikely that she will choose to shut down her business, or otherwise be in a position of having to access the labour market . It is not irrelevant to the assessment that she is less capable overall from earning income from all types of employment, or is less marketable or attractive as an employee to potential employers, or has lost the ability to take advantage of all job opportunities that might have been open to her if she was not injured, or is less able to earn income in a competitive labour market. However, I am assessing damages for this plaintiff and I must take into account that it is highly unlikely, with or without the MVAs, that she would explore employment options outside of her business. In these circumstances, the primary focus of the assessment must be on the effect of her injuries on her capacity to produce income from her business . [Emphasis added.] [28] Having identified the focus of the assessment, the judge used his assessment of the appellant’s past loss of capacity as the starting point of his analysis. The appellant criticizes this approach, saying that the judge used a “replacement cost” analysis that failed to consider the appellant’s loss of capacity. I disagree. It is important to note that the judge considered, and accepted, the appellant’s position regarding her claim for past loss of income, which was presented as a claim for past loss of earning capacity. That claim had three parts: (1) reimbursement for the expense of hiring employees she would not have hired but for her injuries; (2) loss of revenue to the business because of her impaired capacity for teaching; and (3) loss of ability to create and sell her own art. The appellant quantified that claim (before consideration of income tax) at $37,485. The judge awarded $39,000, adjusted to $33,000 after accounting for income tax: Reasons at para. 51. In doing so, the judge accepted the appellant’s submission (made in response to the respondents’ argument that the judge should draw an adverse inference from the failure to call employees) that “the evidence establishes that the plaintiff was able to substantially mitigate her financial losses” through the steps taken to teach fewer hours and hire additional employees: Reasons at para. 48. [29] In accepting the appellant’s submissions on how to quantify the past loss, the judge considered but did not attempt a reduced profits analysis to guide the assessment of future loss because of the lack of evidence: [49] I conclude that there are too many variables and too many unknowns to attempt a reduced profits analysis . Despite the MVAs, Ms. Quigley earned more money from the business than she did before the MVAs, and her business continues to grow. At the time of the MVAs she was still in the fairly early stages of establishing her business, and it would be guesswork to try to compare the actual returns against what she might have achieved but for the MVAs . [Emphasis added.] [30] Having found that the appellant would continue to operate her business in the future, and without any other evidentiary basis on which to assess her future loss, it was reasonable for the judge to use his assessment of her past loss of capacity as the starting point for the future loss assessment. The judge reasoned: [58]      I think an appropriate starting point of the analysis is what I have found to be an average annual loss of capacity since the third MVA of approximately $7000 — $6000 in relation to her business and about $1000 for lost art sales. I adopt a multiplier of 17 to age 70, based on the labour market statistics applicable to persons with a master’s degree, increased somewhat to account for my impression that Ms. Quigley is a person with a greater than average inclination to remained employed. It makes sense to use the multiplier to age 70 because the multiplier is derived using labour market participation rates, so the multiplier reflects the fact that it is unlikely that people in this statistical cohort will still be working at age 70. A starting figure of approximately $120,000 for the loss of capacity is the product of a $7000 annual loss and a multiplier of 17. [31] The judge then adjusted the $120,000 starting figure upwards to account for the possibility of future flare-ups and setbacks, a shorter career than she might otherwise have enjoyed, and the slight chance that she might have chosen to alter her career path. He also took into account the possibility that she could experience improvements in her condition and the likelihood that the ergonomic equipment would assist her. He acknowledged that the assessment was difficult but concluded that “$150,000 is a fair and reasonable measure of the diminishment of Ms. Quigley’s future earning capacity”: Reasons at para. 60. [32] I see no error in the judge’s analysis. Indeed, the appellant has not identified any error in principle other than to argue that the judge arrived at an award on a “replacement costs basis”. The appellant’s argument is based on the proposition that the judge’s approach was limited and flawed because he considered only the cost of hiring additional teachers to replace the work that might have been done by the appellant. That is a misreading of the judge’s reasons. He did not restrict his analysis in that way. He took into account the various components of her financial loss based on the evidence presented and the appellant’s arguments on loss of capacity. These included the cost of hiring additional teachers, loss of revenue to the business because of the appellant’s impaired capacity for teaching, and the loss of the ability to create and sell her own art. The judge determined that this was the fairest approach for valuing her loss of capacity based on the evidence before him. Further, the assessment had to take into account the judge’s conclusion that she was going to continue to operate the business as she would have done but for the injuries. [33] As the respondents argue, the appellant’s approach to her loss of capacity is theoretical in that there is an absence of evidence that could demonstrate the economic impact of her injuries and reduced capacity. As Justice Savage observed in Gao v. Dietrich , 2018 BCCA 372, the capital asset approach can be appropriate where it is difficult to quantify a loss, but “the approach is not a panacea for situations where what could have been proven, or at least given some evidentiary foundation, was not proven or given an evidentiary foundation”: at para. 62. Here, the judge used the available evidence as the foundation for his assessment of the appellant’s loss. [34] The appellant’s complaint about a “replacement cost” approach suggests that the judge inappropriately performed a calculation rather than undertaking an assessment, contrary to the directions given by this Court in Schenker v. Scott , 2014 BCCA 203 at paras. 50–53, and Jurczak v. Mauro , 2013 BCCA 507 at paras. 35–36. I disagree. The judge identified the proper approach at para. 53: a loss of capacity award should be assessed, not calculated, and economic analysis and arithmetic assistance ought to be used to help frame the award. That is precisely what the judge did. He determined an approximate annual loss of capacity, taking into account the appellant’s past experience, and used that as a “starting figure” for loss of capacity. He applied a multiplier of 17 to age 70, based on expert economic evidence and factors particular to the appellant. He then identified and weighed positive and negative contingencies based on the evidence and adjusted the starting figure upward by 25%. The judge’s reasons clearly show that he assessed the appellant’s loss of capacity taking into account the evidence and the arguments at trial. [35] The appellant argues that the judge’s approach ignored evidence that the appellant had the capacity to teach at least 28 hours per week. I do not agree. The appellant is asking this Court to reweigh the evidence about the appellant’s capacity to work based on a single piece of evidence about one week in 2012, her busiest ever week, when the appellant taught for 28 hours. As the respondents note, the evidence about the appellant’s pattern of work was not extensive. However, it is clear that she was required to perform a wide variety of tasks to operate the business in addition to teaching. The respondents concede that in 2012, the appellant taught 22 hours per week on average. In 2019, after the MVAs, the evidence also shows that she was able to teach an average of 12.5 hours per week. The difference between these figures is nine-and-a-half hours, which is very close to the eight hours used by the judge as the amount of teaching time to be replaced. Taking into account the judge’s conclusion that it was likely the appellant’s condition would show a modest improvement, the judge’s use of eight hours as the amount of replacement teaching required per week was reasonably supported by the evidence. [36] The appellant argues that the judge’s conclusion that the plaintiff’s condition would improve is divorced from the medical evidence that the judge purported to accept. She says the only physical evidence referred to by the judge was Dr. Zaki’s finding that the appellant showed less muscular tenderness and an improvement in range of motion. However, that is not an accurate characterization of the judge’s reasoning. The judge referred to the medical evidence in some detail and, as I have indicated, accepted Dr. Zaki’s conclusion that it was likely the appellant would remain symptomatic with chronic pain and some limitation. He did not ignore the medical evidence, but concluded on all of the evidence that it was likely the appellant’s condition would improve. That evidence included, in addition to Dr. Zaki’s physical evidence: · Dr. Beattie, the treating psychological counsellor, noted improvement in the appellant’s ability to manage her pain and anxiety and predicted further progress (Reasons at para. 26); · The appellant’s husband and mother reported recent improvements to her condition as a result of her sessions with Dr. Beattie (Reasons at para. 26); · Dr. Ancill opined that if the appellant underwent successful treatment for anxiety, headaches and pain, she would experience symptomatic improvement (Reasons at para. 25); · Dr. Thompson agreed that there was “room for improvement” in the appellant’s condition with a consistent level of exercise and the benefit of psychological counselling; · All of the medical experts were of the view that the ergonomic equipment (which the judge allowed for in the cost of future care award to enable her to afford its purchase) would be of assistance to the appellant; and · The judge’s view that the elimination of the anxiety caused by the litigation would improve her condition (Reasons at para. 27). Taken together, there was a sufficient body of evidence on which the judge could (and did) rely to infer that it was likely the appellant’s condition and capacity to work would improve. Of course, the judge heard the witnesses and was in the best position to weigh their evidence. [37] The appellant identifies four specific factors that she says the judge failed to consider: a) the impairment to her capital asset as owner and operator of the art school and the pivotal importance of her contributions to that business; b) the trajectory of the business, including that it was only three years old when the first accident occurred; c) the fact that her contributions to the business could not simply be “replaced” by others and that without her full energies the business would not thrive; and d) the real and substantial possibility that the business would fail and that she would be forced to access the job market. [38] The suggestion that the judge failed to consider the last of these factors is not supportable. There was no evidence to support the proposition that the business might fail. Further, the judge specifically took into account the possibility that the appellant might have chosen to shut down the business or otherwise have to access the labour market, though he found it highly unlikely, with or without the MVAs, that she would explore employment options outside of her business: Reasons at para. 57. [39] The first three of these alleged failures involve consideration of factors that were clearly before the court on the evidence at trial. It is clear from the Reasons that the judge identified each of these factors and took them into account in assessing damages. For example, the judge’s assessment of the past loss of capacity, as described at para. 50, is based on his finding that the appellant could not work to full capacity. The same assumption was carried through to his future loss assessment: at para. 58. Further, throughout the Reasons the judge acknowledged the appellant’s abilities as a teacher and manager of the business: see paras. 28, 57. [40] The judge also set out in some detail the history and trajectory of the business. He clearly acknowledged that the appellant was the school’s driving force. The appellant’s suggestion that the judge failed to consider these factors is without merit. The appellant is not able to demonstrate a failure to consider the evidence and relevant factors. Her real argument is that the judge should have drawn a different inference about the appellant’s future loss of capacity. However, where the inferences drawn were reasonably supported by the evidence, and in the absence of an error in principle, it is not this Court’s role to reweigh the evidence or draw different inferences on appeal. [41] In summary, I would not give effect to this ground of appeal. The judge examined the available evidence and performed an assessment of the appellant’s loss of capacity in accordance with the applicable principles. His conclusions were reasonably supported by the evidence and I find no palpable and overriding error to warrant interference on appeal. Cost of Future Care [42] The parties do not dispute the legal principles used by the trial judge to assess the cost of future care but disagree on their application. [43] The purpose of the award for costs of future care is to restore the injured party to the position she would have been in had the accident not occurred: Andrews v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R. (3d) 452 (S.C.C.) at p. 462; Gignac v. Insurance Corporation of British Columbia , 2012 BCCA 351 at para. 29. This is based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33, adopted in Aberdeen v. Zanatta , 2008 BCCA 420 at para. 41. [44] It is not necessary that a physician testify to the medical necessity of each item of care for which a claim is advanced. However, an award for future care must have medical justification and be reasonable: Aberdeen at para. 42; Gao at para. 69. [45] In Lines v. W & D Logging Co. Ltd. , 2009 BCCA 106, Justice Saunders described the correct approach to appellate review of cost of future care awards: [9]        ... Thus it was stated some time ago, in a passage that has equal force today, in Nance v. British Columbia Electric Railway Company Ld. , [1951] A.C. 601 at 613-14, [1951] 3 D.L.R. 705 (P.C.): ... Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage . [10]      On questions of law or principle, the question for this Court is correctness. However, where the question is one of mixed fact and law, as explained in Housen v. Nikolaisen , the deferential standard applies. [Emphasis added.] [46] It is not open for this Court to substitute a figure of its own simply because it would have awarded a different figure if it had tried the case at first instance. Rather, the judge’s assessment of damages may only be overturned if there was no evidence on which he could have reached his conclusion, if he proceeded on an incorrect principle of law, or if the result reached was a wholly erroneous estimate of the damage: Gignac at para. 19; Kim v. Lin , 2018 BCCA 77 at para. 40. Analysis [47] At trial, the appellant sought a $200,000 award for cost of future care. The respondents submitted that $32,000 would be appropriate. The judge awarded $64,558, and made a slight upward adjustment to the non-pecuniary damages award for impairment of the appellant’s housekeeping capacity. [48] The appellant submits that the judge made three errors in assessing this head of damages: (1) first, by holding that future care costs (specifically, massage) should be paid out of non-pecuniary damages; (2) second, by finding that Ms. Quigley was likely to improve, which limited the amount of time for which certain items of care were awarded (including massage and medication); and (3) in his appreciation of the evidence regarding massage therapy, medication, and housekeeping capacity. [49] The respondents submit that the medical evidence provided little guidance as to the frequency or duration of various recommended treatment, specifically with respect to massage therapy, medications, and Botox. As such, the judge used what evidence was available to assess what was medically justified and reasonable. The respondents further submit that the judge made no error in principle on non‑pecuniary damages in relation to either massage or housekeeping capacity. [50] The appellant does not dispute the awards for ergonomic equipment and services ($17,708), psychological counselling ($10,000), physiotherapy, or kinesiology ($5,000), and fitness costs ($25,000). I will consider each of the disputed awards in turn. Massage Therapy [51] The judge briefly summarized the evidence of the doctors: [64]      Dr. Zaki and Dr. Thompson are generally supportive of active forms of therapy and exercise such as physiotherapy, kinesiology, Pilates, and gym exercise. Dr. Zaki supports massage therapy on an as-needed basis, but Dr. Thompson’s evidence was not supportive of massage. [52] The judge concluded that an allowance of $1,500 was sufficient to provide for medically justified massage therapy: [68]      Up until recently, Ms. Quigley took massage occasionally – about 50 treatments beginning in 2016. Currently she sees her massage therapist very regularly, and does get some short-term pain relief. I conclude that massage therapy during flare-up periods is medically justified , but if the plaintiff wishes to take regular massage it ought to be paid from the non-pecuniary damages. A $1500 allowance will be sufficient to provide the medically justified coverage. [Emphasis added.] [53] The appellant submits the judge erred in finding that massage therapy should be funded from non-pecuniary damages. Further, she says the judge misapprehended Dr. Thompson’s evidence, who acknowledged on cross‑examination that he would support massage therapy if the appellant reported relief from it. The evidence established that she had averaged 15.7 sessions per year from 2016 to January 2019, and weekly thereafter. As such, the appellant submits the judge erred to award the equivalent of only 20 sessions of massage therapy, for the rest of her life. [54] The respondents submit that the judge’s comment that “if the plaintiff wishes to take regular massage it ought to be paid from the non-pecuniary damages” is not a statement that pecuniary losses are to be paid from non-pecuniary damages. Rather, the judge concluded that the only medically justified massage therapy was during periods of flare-ups. The respondents say that his comment should be interpreted to suggest that if the appellant wanted additional massage therapy, it could be paid for out of non-pecuniary damages, which intend to compensate a plaintiff for her pain and suffering. [55] On cross-examination, Dr. Thompson stated as follows with respect to massage: Q [Counsel for the defendants]: Do you see this woman using massage, not to cure her or to make her much better, but just for symptom relief? A [Dr. Thompson]: Some people will do that. The problem of course is that often massage is very temporary, and I think she mentioned that to me. And the other problem with sort of continued passive therapies beyond the acute phase is that there isn’t much medical evidence to support their use . And second, sometimes overuse of passive therapies at the expense of active therapy can be detrimental, both in terms of, you know, decreased physical conditioning, and it can also sometimes negatively reinforce misbehaviour. And I guess the other point I’d make is that often in someone like Ms. Quigley’s circumstance, the sort of goal of treatment is to give them the skills to self-manage their symptoms. So, for example, if she did find that massage in certain areas was beneficial, a physiotherapist or a massage therapist may be able to show her how to use a rolling technique where you take a ball or a similar sort of device to self-massage the area. Q: Doctor, if massage is used for symptom relief along with an exercise program and counselling, would you agree that that would be suitable for this woman? A: Yes and no. As I said, I have some concerns about, you know, continued use of passive therapies beyond the acute phase because it isn’t supported by medical evidence and because it may develop some dependency as well . Q: If Robyn Quigley reports that she gets benefit, i.e. symptom relief from massage therapy, and that she sees that as a benefit -- and this is, doctor, a woman with a very active life and with a drive to maximize her functioning -- would you accept that for her, while there’s no long-term benefit, if it gives her symptom relief, then it’s worthwhile her doing, again, along with the gym, Pilates, exercising and staying very active? A: I would not disagree with that. I mean, if she does feel that it makes a difference. But, as I pointed out, there are techniques that patients can do on their own to do that sort of thing for themselves, and that gives them the flexibility of doing it when they need it and not taking time out of the day to go to see a massage therapist. Q: And if this woman also says I’ve tried it and massage gives me relief, and even though it's inconvenient for me to take time to go to massage, it’s worth my while to do that. Would you accept that from her? A: I would accept it. Something that she and the massage therapist or physiotherapist had made an effort to try and get her to do it for herself, give her the flexibility of doing it on her own time, and when she needed it . [Emphasis added.] [56] Based on the foregoing, I am of the view that the judge did not misapprehend Dr. Thompson’s evidence. Dr. Thompson opined that the medical evidence did not support the use of continued passive therapies like massage beyond the acute phase. Rather, he noted that the goal is to assist patients to develop skills to self‑manage symptoms that massage may alleviate, through techniques learned from physiotherapists or massage therapists. [57] The appellant also argues that Dr. Zaki was in favour of massage. In Dr. Zaki’s expert report, he stated that “[m]assage therapy can be utilized on an as‑needed basis as a non-pharmacological way of managing pain flare-ups as needed”. As such, Dr. Zaki may be more accurately characterized as being in favour of massage on an as-needed basis to manage pain flare-ups. [58] On appeal, the appellant asks that this Court award $109,200 for massage therapy. This represents the annual cost of $3,900 for one massage per week for 28 years using the present value multiplier used by the judge. In my view, the evidence of Dr. Zaki and Dr. Thompson does not support such an award. Neither doctor opined that the appellant would require that frequency or duration of massage therapy to manage her symptoms. On the basis of the expert evidence, it was not unreasonable for the judge to conclude that $1,500 was sufficient for medically justified massage coverage during flare-up periods. [59] Further, the judge did not find that medically necessary massage therapy should be funded from non-pecuniary damages. Rather, the judge based his pecuniary award on what was medically necessary, and stated that any further massage therapy would have to be funded from other sources. In Gignac , Justice Bennett for the Court made similar comments at para. 42, holding that if the appellant “wishes to buy furniture to enable him to return to this hobby, he will need to rely on the funds from the non-pecuniary award.” In my view, the judge did not err in principle in his discussion of non-pecuniary damages or in his assessment of a reasonable award for massage therapy. Medications [60] The judge awarded $1,750 for prescription medications. He accepted the defendants’ analysis on this amount, given the plaintiff’s pattern of usage and his “expectation that the plaintiff will experience some improvement”. [61] The appellant submits that there was no basis in the evidence for the selection of a two-year period for use of medication. She notes the physician’s support for Ms. Quigley’s use of medications, her continued use in fact, and Dr. Zaki and Dr. Ancill’s prognosis that debilitating headaches would continue for the foreseeable future. She submits that the judge erred to find that her condition was likely to improve, which radically limited the amount of time for which medications were awarded. [62] The respondents submit that there was no guidance in the medical evidence with respect to the frequency or duration of recommended medications. [63] First, as discussed above, the judge’s inference that the appellant would experience some improvement is reasonably supported by the evidence. [64] Second, the judge’s award for medications was reasonable based on the evidence. The appellant seeks a $21,117.60 award for medication, based on a current annual cost of $754.20 and a multiplier of 28. This assumes that the appellant would continue to take her current medications indefinitely. In my view, the medical evidence does not support this claim. In his expert report, Dr. Thompson wrote as follows: Ms. Quigley’s desire to limit medication use to over the counter medication for her musculoskeletal/orthopaedic symptoms would be appropriate. In addition to minimizing side effects associated with prescription medication, the level of medical evidence to support the efficacy for most prescription medications for soft tissue injuries is low. [Medical Legal Report of Dr. J.P. Thompson, 28–29.] [65] Similarly with Botox, I am of the view that an award of $3,600 is not unreasonable or a wholly erroneous estimate of the damage. The judge found that there is “ample medical justification for a Botox trial”, but that it is a challenge to determine an award that takes into account the various possibilities, including the possibility that the treatment would not be effective. At trial, counsel for the appellant agreed that $3,600 would be a reasonable award: My friend’s last submission, My Lord, was on the Botox, and she has submitted that an appropriate award is $3,600, which provides 12 treatments. My Lord, I think that’s probably worthwhile. I say that in part because everything she’s tried before, she’s tried and in the end it didn’t provide much benefit. So I would say that the $3,600 for the Botox is reasonable . It’s unfortunate that she didn’t have the Botox before trial and then we would all know how effective or ineffective it is. [Emphasis added.] [66] On appeal, the appellant departs from this position and seeks an award of $33,600, representing the annual cost of $1,200 for quarterly Botox injections for 28 years. I would not give effect to this argument for two reasons. First, this Court is reluctant to permit a party to resile from a position deliberately taken at trial. As Justice Frankel stated in Sahlin v. The Nature Trust of British Columbia, Inc. , 2011 BCCA 157, “ although the practice is not immutable, this Court has, in the past, refused to allow a party that has deliberately adopted a position in the trial court to resile from that position on appeal”: at para. 38. [67] In some circumstances, the taking of inconsistent positions can constitute an abuse of process: Fortinet Technologies (Canada) ULC v. Bell Canada , 2018 BCCA 277 at para. 23 . While I do not suggest that the change of positions in this case rises to that level, there would be an element of unfairness in allowing the appellant to resile from the concession made at trial. Because of that concession, the judge was not asked to consider the arguments of the parties and did not give reasons on that issue. To allow the appellant to change that position on appeal would be contrary to the interest of finality. While the award for Botox is a minor issue in this case, permitting an appellant to take a position on appeal contrary to a concession made at trial should not be encouraged. [68] That is a complete answer to this argument. However, I am also of the view that the award is reasonably supported by the evidence. Though Dr. Zaki stated that Botox injections can be quite effective in reducing headaches and severity of muscle spasms, he did not recommend that the appellant receive four injections a year for an indefinite—or any—period. As agreed by counsel at trial, the evidence supported a trial of Botox and nothing more. Housekeeping Services [69] The judge concluded that “the claim for housekeeping services has not been shown to be medically required or justified”. Further, he was “quite sure” that Ms. Quigley would not make use of such services: Reasons at para. 73. However, the judge did make a slight upward adjustment to the non-pecuniary damages award for impairment of her housekeeping capacity. This was reflected in his non‑pecuniary damages award of $110,000. [70] The appellant disputes what she characterizes as an effectively ‘nil’ award for housekeeping services. She submits that the evidence indicates a significant impairment to her functioning at home, which was exacerbated by her efforts to go the ‘extra mile’ to mitigate her economic losses, which in turn benefitted the defendants on other heads of damages. She submits that the appropriate award is $72,800, based on two hours per week of assistance at $25 an hour and a multiplier of 28. [71] The loss of housekeeping capacity may be compensated by a pecuniary or non-pecuniary award: McTavish v. MacGillivray , 2000 BCCA 164 at para. 73; Kim at para. 28. It is within the trial judge’s discretion whether to address such a claim as part of the non-pecuniary loss or as a segregated pecuniary head of damage: Liu v. Bains , 2016 BCCA 374: [26]      It lies in the trial judge’s discretion whether to address such a claim as part of the non-pecuniary loss or as a segregated pecuniary head of damage. In McTavish at paras. 68-69, the Court suggested that treating loss of housekeeping capacity as non-pecuniary loss may be best suited to cases in which the plaintiff is still able to perform household tasks with difficulty or decides they need not be done, while remuneration in pecuniary terms is preferable where family members gratuitously perform the lost services, thereby avoiding necessary replacement costs. [72] In Kim , Chief Justice Bauman suggested that where a plaintiff suffers an injury which would make a reasonable person in the plaintiff’s circumstances unable to perform usual and necessary household work, that loss may be compensated by a pecuniary damages award. Where the plaintiff suffers a loss that is more in keeping with a loss of amenities, or increased pain and suffering, that loss may instead be compensated by a non-pecuniary damages award. However, this is not an inflexible rule. It remains within the judge’s discretion to determine whether pecuniary or non-pecuniary damages are more appropriate: Kim at para. 33. [73] The appellant relies on Gregory v. Insurance Corporation of British Columbia , 2011 BCCA 144, in which this Court overturned the trial judge’s decision not to award damages for housekeeping assistance and home and yard maintenance. However, the circumstances in the present case are distinguishable from those in Gregory , where this Court held that the trial judge erred in concluding that housekeeping assistance was not medically necessary when, in fact, an expert occupational therapist recommended that the plaintiff receive multiple hours per week of assistance: Gregory at paras. 40, 47. [74] In the present case, the judge concluded on the basis of the appellant’s testimony that she was able to continue to perform the necessary household work. She stated that she did the work with some increase in her symptoms, including headaches. Nevertheless, she chose to do that work herself rather than have others perform it. There was no medical or other expert evidence recommending housekeeping assistance. I see no error in the judge’s appreciation of the evidence. With that factual foundation, it was within the judge’s discretion to determine whether pecuniary or non-pecuniary damages were appropriate: Kim at para. 33. I see no error in his decision to compensate the appellant by awarding an increase in the amount for non-pecuniary damages, rather than making a pecuniary award. [75] In summary, the appellant asks this Court to reweigh the evidence presented at trial on the future care expenses and award larger amounts than the judge did. That is not the task of this Court. The appellant is unable to demonstrate that the judge’s assessment was based on any incorrect principle of law, nor was it wholly erroneous either in aggregate or in any of the individual areas discussed above. Further, there was limited medical evidence to support the assertion that the treatments or medications were necessary let alone as to their frequency or duration. Despite the shortcomings of the evidence, the judge used the available evidence to fashion an award that is medically justified and reasonable in the circumstances. I would not give effect to this ground of appeal. Disposition [76] I would dismiss the appeal. “The Honourable Mr. Justice Butler” I AGREE: “The Honourable Madam Justice Fenlon” I AGREE: “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Kendall v. Bouchard, 2021 BCCA 45 Date: 20210127 Docket: CA46788 Between: Alan Kendall carrying on business as Al’s Contracting and Silver Creek Log Sort Ltd. Appellants (Plaintiffs) And Michele Bouchard carrying on business as Bouchard & Company and Michele Bouchard Inc. Respondents (Defendants) Before: The Honourable Mr. Justice Tysoe The Honourable Madam Justice Fenlon The Honourable Madam Justice Fisher On appeal from:  An order of the Supreme Court of British Columbia, dated March 3, 2020 ( Kendall v. Bouchard, 2020 BCSC 727, Vancouver Docket S145569). Oral Reasons for Judgment Counsel for the Appellants, appearing via videoconference: B. Martyniuk M.B.J. Stainsby Counsel for the Respondents, appearing via videoconference: J. Forsythe Place and Date of Hearing: Vancouver, British Columbia January 27, 2021 Place and Date of Judgment: Vancouver, British Columbia January 27, 2021 Summary: The appellants retained the respondents to provide accounting expertise to help resolve a payment dispute between the appellant and a third party. Based on the respondents’ report, the appellants commenced an action against the third party. The appellants’ counsel in that matter later terminated his retainer and began an action against the parties, alleging flaws in the respondents’ report. The appellants subsequently brought a claim in professional negligence against the respondents. The trial judge dismissed the claim as statute-barred for having been commenced after the limitation period. The appellants challenge the trial judge’s interpretation of the pre-2013 Limitation Act as only requiring knowledge of the facts that could ground a potential claim. Held: Appeal dismissed. The trial judge did not err in her interpretation and application of the Limitation Act. The limitation period begins to run when a party has the facts that, with the appropriate advice, would lead them to reasonably conclude they have a potential claim. The Act imputes the necessary technical advice once the party possesses the underlying facts. It was open to the judge to find that the appellants should have been aware that there was a problem with the respondents’ report when they received their previous counsel’s statement of claim. FENLON J.A. : Introduction [1] The appellants appeal the dismissal of their professional negligence claim against the respondents as statute-barred. The main issue on appeal is whether the judge erred in her interpretation and application of the postponement provisions in the pre-2013 Limitation Act, R.S.B.C. 1996, c. 266. Background [2] The appellant, Mr. Kendall, and his companies, Al’s Contracting and Silver Creek Log Sort Ltd., supplied logs to a sawmill. A dispute arose with the sawmill about who owed money to whom. The appellants retained Ms. Bouchard, who is a Certified Management Accountant, to review the sawmill’s books and to resolve the dispute. [3] From 2000 to 2003, Ms. Bouchard spent 1,000 hours conducting a review. She concluded that the sawmill owed the appellants about $1.7 million. Based on that accounting, the appellants commenced an action against the sawmill to obtain payment. The appellants retained a lawyer, John Frank, on a contingency fee basis in June 2004 to prosecute that claim. Ms. Bouchard agreed to assist Mr. Frank in preparing the case, although she advised the appellants that an expert accountant should be retained to prepare a report, as she did not want to go to court. [4] In January 2007, Mr. Frank terminated his retainer and started an action against the appellants and the respondents, claiming that the contingency fee agreement had been breached. That action was ultimately settled, but the information in the notice of claim played an important part in the judge’s analysis—a matter to which I will return. [5] In 2008, the appellants retained new counsel in the action against the sawmill. Their new counsel, in turn, retained an accounting expert, Mr. Salton, who, in September 2008, identified numerous errors with Ms. Bouchard’s reconstruction of the accounts. [6] The appellants commenced the underlying professional negligence action against Ms. Bouchard and her professional corporation on June 18, 2014. Proceedings Below [7] Ms. Bouchard brought a summary trial application to dismiss the appellants’ claim as statute-barred or, in the alternative, on the basis that liability had not been proven. The judge determined the matter was suitable for resolution by way of summary trial. She found the start of the running of the limitation period had been postponed until December 17, 2007, when Mr. Frank filed a statement of claim against the parties to this action, alleging flaws in Ms. Bouchard’s report and her refusal to explain her work to him. Because the appellants in the present case filed the claim against Ms. Bouchard in June 2014, more than six years after receiving that information, the judge found the claim to be statute-barred and dismissed it. On Appeal [8] There are two grounds of appeal: 1.       Did the judge err in holding that the limitation issue was suitable for disposition by summary trial? 2.       Did the judge err in interpreting and applying s. 6 of the Limitation Act ? [9] With respect to the first ground of appeal, I see no basis to conclude that the judge erred in determining that this matter was suitable for disposition by summary trial. [10] In addressing the question, she said: [29]      The plaintiffs argue that there are conflicting affidavits, and in order to determine any of the matters in issue, including the limitations issue, the court will have to resolve conflicts in the sworn evidence of witnesses and ultimately make credibility findings. [30]      I disagree. I fail to see any conflicting evidence with respect to the facts that I need to find in order to determine the limitations issue. In their response to the application, written argument and oral submissions, the plaintiffs pointed to no specific conflicts in the evidence at all and certainly no conflicts relating to limitation issues . [Emphasis added.] [11] On appeal, the appellants identify conflicts in the evidence as to whether Ms. Bouchard had signed a letter setting out her professional opinion on the amounts owed by the sawmill and the extent to which she participated in the subsequent litigation commenced by the appellants against that company. I do not see that these conflicts, identified for the first time on appeal, make the resolution of a limitation defence unsuitable for summary trial—they are peripheral to the facts the judge relied on to decide the limitation period had expired. [12] The second ground of appeal contends the judge erred in her finding of facts and in the interpretation and application of the (admittedly) tortured language of s. 6 of the pre-2013 Limitation Act . That section provides for the postponement of the running of the six-year limitation period if certain criteria are met and reads: 6 (4) Time does not begin to run against a plaintiff or claimant with respect to an action referred to in subsection (3) until the identity of the defendant or respondent is known to the plaintiff or claimant and those facts within the plaintiff’s or claimant’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that (a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and (b) the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action. (5) For the purpose of subsection (4), (a) “ appropriate advice” , in relation to facts, means the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require, (b) “facts” include (i) the existence of a duty owed to the plaintiff or claimant by the defendant or respondent, and (ii) that a breach of a duty caused injury, damage or loss to the plaintiff or claimant, [13] The appellants make two main arguments. First, they say the judge made an error of fact because she misapprehended the meaning of Mr. Frank’s statement of claim. She found that the pleading identified Ms. Bouchard’s work as faulty, when the paragraphs she relied on only say that Mr. Frank could not understand the reconstruction report. For example, at para. 27 of the statement of claim, they point to Mr. Frank saying that he “was unable to trace accounting information either back from the summary or forward from the original entries to assist in verifying these claims.” [14] The appellants say the pleading does nothing more than flag Mr. Frank’s inability to understand the records in order to support his allegation that the retainer letter was breached by Ms. Bouchard refusing to explain her work and answer his questions. [15] I would, with respect, not accede to this argument. Although couched in terms of Mr. Frank’s inability to understand and follow Ms. Bouchard’s accounting, it was open to the judge on the record before her to infer that Mr. Frank was asserting there was a problem with the report and, in particular, that there was no way to verify the sums Ms. Bouchard had concluded were owing. The problems described by Mr. Frank in his statement of claim were not new to the appellants. Mr. Frank had set out more details of his complaints about Ms. Bouchard in a letter of January 9, 2007, when he terminated his retainer, and Mr. Kendall acknowledged that Mr. Frank’s complaints about not getting information were “always an issue.” As the judge noted, one of the primary claims against Ms. Bouchard in the underlying litigation was that she failed to assist legal counsel. [16] I also note the concerns raised by Mr. Frank in his pleading do not differ significantly from the concerns raised by Mr. Salton in his September 2008 communication, which the appellants acknowledge was sufficient to start the running of the limitation clock. [17] I turn now to the second argument raised on this ground of appeal. The appellants say that they could not have assessed whether they had a reasonable prospect of succeeding against Ms. Bouchard in professional negligence until they were told by an accountant —Mr. Salton—that her conclusions could not be traced back to source documents and verified. They say that did not occur until they received Mr. Salton’s critical comments about Ms. Bouchard’s reconstruction in September 2008, and it was therefore only at that point that the limitation period began to run. [18] In my respectful view, the appellants’ argument is based on a misreading of the section. The critical point is not when a party actually receives advice from an expert that identifies the basis for a claim. It is, rather, the point at which a party has the facts that, taken with appropriate advice, would lead a reasonable person to conclude they had a reasonable prospect of a successful claim. In short, the Act imputes appropriate medical, or legal, or accounting advice to the plaintiff at the point at which they have those facts: Karsanjii Estate v. Roque (1990), 43 B.C.L.R. (2d) 234 (C.A.) at 242. [19] It follows that the judge was correct to focus on the date the appellants had the factual knowledge about Ms. Bouchard’s conduct, rather than the date on which they received advice from an accounting expert, opining that her work could not be verified. In this regard, the judge said: [50]      When were the critical facts within the means of knowledge of the plaintiffs? [51]      I find that by the time Mr. Frank filed his statement of claim against the plaintiffs in the Frank Action, they knew or ought to have known that there were serious issues with the Reconstruction and Ms. Bouchard’s accounting work more generally. The statement of claim in the Frank Action, filed December 17, 2007, raised the same concerns that form the basis of the plaintiffs’ professional negligence action herein. The statement of claim makes the following allegations: 27.   The Plaintiff [Mr. Frank] attempted to identify the individual transactions in the Bouchard accounting that form part of these aggregate claims to identify the underlying documentary or other evidence presumably relied on by Bouchard. With the exception of interest expense, the plaintiff unable to identify any underlying entries in the Bouchard accounting that would assist him in locating underlying evidence and verifying these claims, either in whole or in part. More particularly, the plaintiff was unable to trace accounting information either back from the summary or forward from the original entries to assist in verifying these claims. 28.   In addition, the plaintiff was unable to itemize by way of a reconciliation, the difference between the balances shown as owing on Watkins records as at September 2001, the date of the Bouchard accounting, and the claims of Silver Creek and Kendall as shown on the Bouchard summary. This unaccounted for difference was approximately $200,000.00. [53]      I find that upon receipt of the statement of claim in the Frank Action, a reasonable person would have been aware that there was a problem with Ms. Bouchard’s work, and that the shortcomings in her work, namely, its inability to be reconstructed or traced to source documents, meant that it likely could not be relied upon to ground a claim against Watkins in the Watkins Action. [54] The facts known to the plaintiffs or within their means of knowledge were such that, having taken the appropriate advice, they were in a position at that point to have started a claim against Ms. Bouchard and her company for the losses they suffered in pursuing what reasonably looked to be a fruitless claim in reliance on her work. [Emphasis added.] [20] I see no error in the judge’s interpretation and application of the pre-2013 Limitation Act to the facts she found. Accordingly, there is no basis upon which this Court could interfere with her decision. [21] I recognize that this means that the appellants will not be able to pursue what otherwise could be a valid claim against Ms. Bouchard. It is never a satisfying outcome for a plaintiff to find their claim barred by the passage of time. But limitation acts seek to balance rationales oriented towards defendants—the right to be free of suits at some point and to have cases brought diligently when evidence is fresh—with the interests of plaintiffs to have a reasonable period within which to commence an action once they know enough to reasonably do so: Novak v. Bond, [1999] 1 S.C.R. 808 at para. 66. In this case, that balance results in the appellants’ action being barred. I acknowledge that is a frustrating result for the appellants, but it is compelled by the balance the Legislature has struck and the law we must apply. Disposition [22] The appeal should be dismissed. [23] TYSOE J.A. : I agree. [24] FISHER J.A. : I agree. [25] TYSOE J.A. : The appeal is dismissed. “The Honourable Madam Justice Fenlon”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Edge, 2021 BCCA 35 Date: 20210127 Docket: CA46315 Between: Regina Respondent And Peter Matthew Edge Appellant Before: The Honourable Mr. Justice Abrioux The Honourable Mr. Justice Grauer The Honourable Mr. Justice Voith On appeal from:  An order of the Supreme Court of British Columbia, dated May 22, 2019 (conviction) and July 18, 2019 (sentence) ( R. v. Edge , 2019 BCSC 1388, Vancouver Docket 27198-14). The Appellant, appearing in person (via teleconference): P.M. Edge Counsel for the Respondent (via teleconference): S. Gillespie Place and Date of Hearing: Vancouver, British Columbia January 18, 2021 Place and Date of Judgment: Vancouver, British Columbia January 27, 2021 Written Reasons by: The Honourable Mr. Justice Abrioux Concurred in by: The Honourable Mr. Justice Grauer The Honourable Mr. Justice Voith Summary: In 2019 the appellant was convicted of criminal harassment and uttering threats, and sentenced to 18 months’ imprisonment (reduced to time served) and a three-year term of probation. He applied to the Legal Services Society to fund an appeal. This was denied for reasons other than financial ineligibility. He subsequently initiated an appeal and, in June 2020, applied for court-appointed counsel pursuant to s. 684 of the Criminal Code. His application was dismissed on the basis that there was no merit to the appeal. He failed to attend two case management hearings. The Associate Registrar then referred the matter to a justice pursuant to Rule 13(3) of the Criminal Appeal Rules. The appellant again failed to appear, and the justice referred the matter to a division of the Court to consider whether to dismiss the appeal for want of prosecution. Held: Appeal dismissed for want of prosecution. The appellant has not taken the required steps to advance his appeal since his s. 684 application was dismissed, nor indicated any intention to do so. He has not provided a reasonable explanation for his inaction. Reasons for Judgment of the Honourable Mr. Justice Abrioux: Introduction/Background [1] This matter concerns a reference to the Court pursuant to Rule 13(3) of the British Columbia Court of Appeal Criminal Appeal Rules, 1986, B.C. Reg. 145/86 [ Criminal Appeal Rules ] whereby an order is sought dismissing Mr. Edge’s conviction and sentence appeals for want of prosecution. [2] I will set out the pertinent background and appearances in this Court. [3] On May 22, 2019, Justice Devlin (sitting with a jury) convicted the appellant, who was self-represented at his trial, of criminal harassment of his then-spouse, as well as uttering threats to cause death or bodily harm both to his then-spouse and to his mother. On July 18, 2019, Devlin J. sentenced the appellant to a total of 18 months’ imprisonment (reduced to time served due to extensive pre-trial custody) and a three-year term of probation. [4] Following the imposition of sentence, the appellant applied to the Legal Services Society (“LSS”) to fund his appeal. By letter dated June 25, 2020, the LSS denied the appellant’s application for reasons other than financial ineligibility. [5] On August 19, 2019, Mr. Edge initiated an appeal in this Court by filing a Notice of Appeal in which he alleged multiple grounds of appeal regarding both conviction and sentence which include: · the inherent unfairness of proceeding to trial while he was unrepresented, which rendered the trial itself invalid such that a new trial is required; and · ancillary grounds of appeal alleging malfeasance by various justice system participants, including the police, Crown Counsel, and the trial judge. [6] On June 9, 2020, pursuant to s. 684 of the Criminal Code , R.S.C. 1985, c. C‑46, the appellant applied for counsel to be appointed to represent him on the appeal. On July 24, 2020, his application was dismissed in Chambers by Justice Dickson, on the basis that there was no merit to his appeal. [7] Following the dismissal of his s. 684 application, a case management hearing was scheduled by teleconference for September 25, 2020. Crown counsel attended, the appellant did not and the Court was unable to reach him via telephone. By letter dated September 29, 2020, Crown counsel advised Mr. Edge of the missed case management hearing and informed him of the next appearance date, being a case management hearing scheduled for November 2, 2020. [8] The appellant did not attend at that hearing. By letter dated November 3, 2020, Crown counsel advised Mr. Edge that no further appearances would be scheduled until he took some action to proceed with his appeal, and should this not occur by December 3, 2020, his appeal could be dismissed pursuant to Rule 13(3) of the Criminal Appeal Rules . [9] By letter dated November 4, 2020, the Associate Registrar advised the appellant that pursuant to Rule 13(3) of the Criminal Appeal Rules , a hearing date had been scheduled for December 3, 2020 at which time it would be decided whether the appeal would be referred to the Court to be dismissed. The appellant was provided with the requisite information to attend the hearing by telephone. [10] The appellant did not attend the December 3, 2020 hearing. Justice Tysoe then referred the matter to proceed before a division of the Court to consider whether the appeal should be dismissed for want of prosecution. [11] By letter dated December 3, 2020, Crown Counsel advised Mr. Edge that if he declined to take further action, his appeal “may be dismissed for want of prosecution pursuant to Rule 13 of the Criminal Appeal Rules” . Crown Counsel also attempted to contact the appellant by telephone on December 4, 2020, but was unable to reach him. [12] By letter dated December 24, 2020, the Associate Registrar advised the appellant that a referral to a division of the Court to consider dismissing the appeal had been set for Monday, January 18, 2021 at 10:00 a.m. The appellant was provided with the requisite information to attend the hearing by telephone together with a Notice of Abandonment form should he wish to abandon the appeal. [13] The appellant appeared at the teleconference of January 18, 2021. Position of the Parties [14] The Crown’s position was that the appellant had, as of January 18, 2021, taken no action to move forward with his appeal since his s. 684 application was dismissed. He had not contacted the Crown nor the Registry to indicate that he wished to proceed with his appeal. [15] The Crown also pointed to the fact that Mr. Edge was provided with notice of the case management conferences of September 25, 2020 and November 2, 2020, and the December 3, 2020 hearing, and did not attend on any of those occasions. [16] The appellant’s position was that he was unable and unwilling to represent himself on the appeal. He argued that the Court had a responsibility to instruct the LSS to provide him with legal counsel; if it did not do so then the appeal “will have to wait”, even if it might take “a long time”. He also explained that his failure to move the appeal forward flowed from his unemployment and lack of funds to order transcripts or take other steps in the process. In that regard he says that there was no point in attending the teleconferences and/or the hearing of December 3, 2020 since he did not have counsel. Discussion [17] The appellant has not taken the required steps to advance his appeal. His s. 684 application was dismissed more than five months ago, and in the intervening time he has neither filed the outstanding appeal materials nor indicated any interest in pursuing his appeal in any practical way. [18] In light of the appellant’s submissions, it must be emphasized that on July 24, 2020, following an analysis of the alleged grounds of appeal of both conviction and sentence, the s. 684 application was dismissed on the basis that there was no merit to either appeal and the appointment of counsel was not in the interests of justice. [19] It is evident from the appellant’s submissions that he has no plan to do what is required to move the appeal forward. In my view he has also not provided a reasonable explanation for what I consider to be a lengthy period of inaction, which includes his failure to attend the teleconference hearings of September 25, 2020, November 2, 2020 and December 3, 2020. Disposition [20] I would dismiss both the conviction appeal and the application for leave to appeal sentence for want of prosecution. “The Honourable Mr. Justice Abrioux” I AGREE: “The Honourable Mr. Justice Grauer” I AGREE: “The Honourable Mr. Justice Voith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Johnston , 2021 BCCA 34 Date: 20210128 Dockets: CA42488; CA42490 Docket: CA42488 Between: Regina Respondent And Matthew James Johnston Appellant ‑ and ‑ Docket: CA42490 Between: Regina Respondent And Cody Rae Haevischer Appellant ABBREVIATED REASONS FOR JUDGMENT Restriction on publication: A publication ban has been imposed under s. 486.5(1) and s. 486.5(9) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify victims, or witnesses, including, without limitation, the persons referred to in this judgment as “Person X”, “Person Y”, “K.M.” and “D.Y.”. This publication ban applies indefinitely unless otherwise ordered. These reasons for judgment have been abbreviated from sealed reasons for judgment in order to protect confidential information. Corrected Judgment:  The text of the judgment was corrected at paragraphs 2, 101, 208, 291 and at the heading above para. 61 on February 19, 2021. Before: The Honourable Mr. Justice Tysoe The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Willcock On appeal from: Orders of the Supreme Court of British Columbia, dated October 2, 2014 and November 19, 2014 ( R. v. Haevischer , 2014 BCSC 1863, 2014 BCSC 2172, and 2014 BCSC 2194, New Westminster Docket X072945‑B). Counsel for the Appellant Matthew James Johnston (CA42488): B. Martland, Q.C. J.P.R. Desbarats D.J. Song E. Holzman Counsel for the Appellant Cody Rae Haevischer (CA42490): S.R.A. Buck R.P. Thirkell D. Dlab Counsel appearing as Amici Curiae : A.K.S. Kapoor V.M. Cichalewska Counsel for the Respondent Crown: M.K. Levitz, Q.C. J.M. Gordon, Q.C. C.G. Baragar, Q.C. M.J. Wolf Place and Date of Hearing: Vancouver, British Columbia October 14–16 and 19–23, 2020 Place and Date of Judgment: Vancouver, British Columbia January 28, 2021 Date of Release of Abbreviated Reasons for Judgment: February 25, 2021 Abbreviated Reasons of the Court Summary: At trial, the appellants were found guilty of the murder of six men inside a Surrey apartment building. The judge found they were either co‑principals to the six murders or, alternatively, one was a principal as a shooter and the other an aider or abettor. As part of the pre‑trial proceedings, the judge held an in camera, ex parte hearing to assess whether allowing an unindicted co‑conspirator, Person X, to testify would compromise the fair trial rights of the appellants. The Amici were appointed to provide an adversarial context to this proceeding. At the same in camera, ex parte hearing, the judge upheld E5’s privilege claim and precluded Person X from testifying due to trial fairness concerns. Post‑trial, the appellants applied for a stay of proceedings on the grounds that their pre‑trial conditions of confinement and alleged police misconduct constituted abuses of process. The Amici joined the appellants in submitting the police misconduct constituted an abuse of process. The Crown brought an application for the summary dismissal of the stay applications without an evidentiary hearing, which the judge granted. The appellants appeal from their convictions as well as the summary dismissal of their stay applications. The Amici support the appellants in appealing the dismissal of their stay applications and in appealing their convictions to the extent they are based on inadequate disclosure. Held: Appeal allowed in part. The judge did not err in excluding the appellants from the in camera, ex parte hearings, and this decision did not contravene s. 650 of the Criminal Code. Relatedly, she did not err in failing to address the scope of the exclusion of Person X’s evidence. The judge also did not err in her assessment of the credibility of certain witnesses. Although the judge did err in her assessment of the after‑the‑fact‑conduct of Mr. Haevischer, the curative proviso of the Criminal Code is applied to this error. The judge did not err in assessing other circumstantial evidence against Mr. Haevischer, nor did she err in applying the principles of party liability to him. The judge similarly did not err in favouring inferences urged upon her by the Crown rather than those of Mr. Johnston. The Crown did not breach its disclosure obligations. The judge did err in summarily dismissing the applications for a stay of proceedings. An evidentiary hearing was necessary to resolve factual controversies about the extent of police misconduct. Having found that the alleged abuses of process risked undermining the integrity of the judicial process and that the only acceptable remedy was a stay of proceedings, the judge could not properly balance the interests in favour of a stay against society’s interests in entering the convictions without resolving those controversies. In addition, there is fresh evidence that could reasonably affect the outcome of the summary dismissal applications. While the verdicts of guilt are affirmed, the convictions are quashed and the matter is remitted for an evidentiary hearing on the applications for a stay of proceedings for abuse of process. Table of Contents Paragraph Range Introduction [1] - [11] Evidence of the Offences [12] - [41] The Trial Reasons [42] - [47] The Open Vukelich Ruling [48] - [53] The Sealed Vukelich Ruling [54] - [57] Issues on Appeal [58] - [60] Did the Trial Judge Err in Excluding the Appellants from the Hearing that Led to Her Excluding Person X’s Testimony? [61] - [91] Did the Trial Judge Err in Her Assessment of the Credibility of Person Y and K.M.? [92] - [114] Did the Trial Judge Err in Her Assessment of the Circumstantial Evidence Against Mr. Haevischer? [115] - [185] (a) Standard of Review [115] - [122] (b) Did the Judge Err in Her Handling of Inferences Inconsistent with Guilt? [123] - [134] (i) Positions of the Parties [123] - [127] (ii) Discussion [128] - [134] (c) Did the Judge Err in Her Assessment of After-the-Fact Conduct? [135] - [160] (i) Positions of the Parties [135] - [149] (ii) Discussion [150] - [160] (d) Did the Judge Err by “Filling in the Blanks” [161] - [185] (i) Positions of the Parties [161] - [180] (ii) Discussion [181] - [185] Did the Trial Judge Err in Her Application of the Principles of Party Liability in Finding Mr. Haevischer Guilty of First Degree Murder? [186] - [215] (a) Did the Judge Err in Law in Relation to Party Liability? [186] - [196] (i) Positions of the Parties [186] - [191] (ii) Discussion [192] - [196] (b) Did the Judge Err in Finding Mr. Haevischer Liable as a Principal Under s. 21(1)(a)? [197] - [207] (i) Positions of the Parties [197] - [206] (ii) Discussion [207] - [207] (c) Did the Judge Err in Finding Mr. Haevischer Liable as an Aider or Abettor? [208] - [215] (i) Positions of the Parties [208] - [214] (ii) Discussion [215] - [215] Did the Trial Judge Err in Favouring Inferences Urged by the Crown, Rather Than Those Suggested by Mr. Johnston? [216] - [251] (a) Positions of the Parties [216] - [239] (b) Discussion [240] - [251] Did the Trial Judge Err by Failing to Address the Scope of the Exclusion of Person X’s Evidence, Causing Particular Harm to Mr. Johnston? [252] - [259] (a) Positions of the Parties [253] - [258] (b) Discussion [259] - [259] Did the Crown Fail to Meet Its Disclosure Obligations to the Appellants? [260] - [358] (a) Background [260] - [262] (b) Legal Principles [263] - [269] (c) The Brassington Interview [270] - [311] (i) The Appellants’ Arguments [275] - [278] (ii) The Respondent’s Arguments [279] - [280] (iii) Discussion [281] - [311] Have the Appellants Demonstrated a Breach of the Duty to Disclose? [285] - [295] Is There a Reasonable Possibility That Non-disclosure Could Have Affected the Trial Outcome or the Fairness of the Trial Process? [296] - [311] (d) Person Y’s WPP Status [312] - [357] (i) Information Disclosed to the Appellants Before or During the Trial [318] - [319] (ii) Newly Disclosed Information Provided to the Appellants [320] - [324] (iii) Sealed Information Adduced by the Amici and the Crown [325] - [329] (iv) The Appellants’ Arguments [330] - [332] (v) The Amici ’s Arguments [333] - [334] (vi) The Respondent’s Arguments [335] - [336] (vii) Discussion [337] - [357] (e) Conclusion on Non-Disclosure Issues [358] - [358] Did the Trial Judge Err in Dismissing the Applications for a Stay of Proceedings in the Absence of an Evidentiary Hearing on the Allegations of Abuse of Process? [359] - [429] (a) Background [359] - [362] (b) Legal Principles [363] - [375] (i) Abuse of Process [363] - [369] (ii) [Heading Removed] [370] - [371] (iii) The Vukelich Threshold [372] - [374] (iv) Standard of Review of the Vukelich Rulings [375] - [375] (c) Positions of the Parties on the Open Vukelich Ruling [376] - [382] (i) The Appellants’ Arguments [376] - [379] (ii) The Respondent’s Arguments [380] - [382] (d) Positions of the Parties on the Sealed Vukelich Ruling and Sealed Fresh Evidence [383] - [393] (i) The Amici’s Arguments [383] - [388] (ii) The Respondent’s Arguments [389] - [393] (e) Discussion [394] - [429] (i) The Trial Judge Erred by Engaging in a Fact-finding Exercise Instead of Taking the Amici ’s Submissions at Their Highest [395] - [404] (ii) The Trial Judge Erred by Imposing Too High a Threshold on the Vukelich Application [405] - [410] (iii) [Heading Removed] [411] - [413] (iv) The Amici ’s Fresh Evidence Application [414] - [421] (v) There Are No Categories of Offences for Which a Stay of Proceedings Can Never Be an Appropriate Remedy for an Abuse of Process [422] - [424] (vi) [Heading Removed] [425] - [427] (vii) Conclusion [428] - [429] This Court’s Jurisdiction to Remit the Matter for a Hearing on the Issue of Abuse of Process [430] - [432] Disposition [433] - [434] Reasons for Judgment of the Court: Introduction [1] On October 19, 2007, six men were shot to death while lying defenceless on the floor of suite 1505 of the Balmoral Tower, an apartment building in Surrey, British Columbia (the “Balmoral”). The victims were Corey Lal (“Mr. Lal”), three associates of Mr. Lal (Michael Lal, Edward Narong and Ryan Bartolomeo), and two unrelated bystanders (Christopher Mohan and Edward Schellenberg). These killings have become known as the “Surrey Six murders”. [2] The appellants, Matthew James Johnston and Cody Rae Haevischer were charged with one count of conspiracy to murder Mr. Lal (contrary to s. 465(1)(a) of the Criminal Code , R.S.C. 1985, c. C‑46) and six counts of first degree murder of all six of the victims (contrary to s. 235(1) of the Criminal Code ). James (Jamie) Bacon and Quang Vinh Thang (Michael) Le were also each charged with one count of conspiracy to murder Mr. Lal and one count of first degree murder of Mr. Lal. Mr. Le pleaded guilty to the conspiracy charge and testified in the trial of the charges against the appellants. [3] The appellants were tried separately from Mr. Bacon. A stay of proceedings was entered by Justice Ker in the case against Mr. Bacon, but a Crown appeal was allowed by this Court ( R. v. Bacon , 2020 BCCA 140). Mr. Bacon subsequently pleaded guilty to the conspiracy charge and another unrelated offence. [4] A participant in the killings, Person X, pleaded guilty to the offences of conspiracy to murder Mr. Lal and of second degree murder of three of the victims. After an in camera proceeding conducted in the absence of the appellants, Person X was precluded by the trial judge from testifying in the trial against the appellants. [Sentence removed.] [5] In reasons for judgment dated October 2, 2014, and indexed as R. v. Haevischer , 2014 BCSC 1863 (the “Trial Reasons”), the appellants were each found guilty of the conspiracy charge and the six first degree murder charges following a trial by judge alone. [6] Prior to the issuance of the Trial Reasons, the appellants had each made an application for a judicial stay of proceedings on the basis of abuse of process relating to the conditions of their pre‑trial confinement and police misconduct. The appellants sought to introduce evidence in support of their applications. Relying on the decision of R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.), leave to appeal ref’d (1997), [1996] S.C.C.A. No. 461, the Crown resisted the holding of an evidentiary hearing on the basis that the facts alleged by the appellants, if assumed to be true and taken at their highest, did not support the granting of a stay of proceedings. The trial judge appointed amici curiae to deal with confidential information not known by the appellants that augmented the appellants’ assertions of abusive police conduct. The lawyers who have from time to time been appointed as amici curiae will be referred to as the “ Amici ”. [7] In published reasons dated November 19, 2014, and indexed as R. v. Haevischer , 2014 BCSC 2172 (the “Open Vukelich Ruling”), and sealed reasons dated November 20, 2014, and indexed as R. v. Haevischer , 2014 BCSC 2194 (the “Sealed Vukelich Ruling”), the trial judge agreed with the Crown’s position and, as a result, the appellants’ stay applications were dismissed and convictions were entered. [8] On these appeals, the appellants assert that the trial judge erred in several respects in the Trial Reasons and erred in dismissing their stay applications. They also apply to introduce fresh evidence in support of the ground of appeal that the Crown failed to meet its disclosure obligations prior to trial and thereby breached their right to make full answer and defence. [9] The appellants say the judge erred in the Trial Reasons in assessing circumstantial evidence and drawing improper inferences, in applying the principles of party liability in respect of Mr. Haevischer and in erroneously concluding that confirmatory evidence permitted her to rely upon the testimony of witnesses of disreputable character . They also assert that the judge contravened s. 650(1) of the Criminal Code by excluding them from the hearing in which she decided to preclude Person X’s testimony, and Mr. Johnston says that the judge erred by failing to discuss the scope of the exclusion of Person X’s evidence. [10] As they did before the trial judge, the Amici join with the appellants on the abuse of process issue on appeal. The Amici say that the stay applications should not have been summarily dismissed on the basis of the record before the judge and on the basis of fresh confidential evidence they apply to introduce that was obtained from the proceedings against Mr. Bacon. They further apply to introduce fresh confidential evidence in connection with the custodial arrangements of a witness, Person Y, who testified at trial, and they rely on this evidence in support of the appellants’ ground of appeal that the Crown breached its disclosure obligations. [11] The portions of the hearing of the appeals dealing with the fresh confidential evidence and the submissions of the Amici (and the Crown’s response) were held in camera , and these reasons will be abbreviated prior to their release to the public in order to remove confidential information. The full version of these reasons will be sealed. Evidence of the Offences [12] The parties filed a joint statement of facts for the purposes of these appeals. Most of the facts describing the circumstances of the offences come from the joint statement, but they also include contested testimony at trial and some findings of the trial judge. [13] The Crown’s case consisted of a body of circumstantial evidence and admissions made by the appellants. As Person X did not testify, there was no direct evidence of the killings themselves. [14] The appellants and Mr. Bacon were members of a gang called the Red Scorpions. One of the victims, Mr. Lal, was a rival drug dealer. A dispute arose between Mr. Bacon and Mr. Lal, which led to a meeting between them (and others) at a restaurant. One of the members of the Red Scorpions, Person Y, testified that Mr. Bacon imposed a “tax” of $100,000 on Mr. Lal, which was to be paid before the end of the day on which the meeting was held. At the meeting, Person Y confiscated a 9 mm Glock gun being carried by Mr. Lal and decided to keep it as his own. [15] The tax was not paid, and the judge found that the Red Scorpions decided to kill Mr. Lal so that they did not look weak. Person Y testified that he initially agreed to kill Mr. Lal on his own if someone lured him into a parking lot, but that he withdrew his offer when Mr. Bacon decided to get money and drugs out of Mr. Lal before killing him, a plan that would require more than one assailant. [16] In the early afternoon on the day of the killings, there was a meeting at a Korean restaurant in Surrey. Cell phone records showed that Mr. Johnston’s cell phone used the dominant cell‑signal site for the restaurant around the time of the meeting, that a call received by Person Y was consistent with him being en route to the restaurant, that Mr. Le’s cell phone used the dominant server for the restaurant and that Person X used his cell phone within the expected coverage area of the restaurant. Person Y and Mr. Le both testified that Mr. Johnston and Person X were present in or outside the restaurant. Person Y testified that Person X asked to borrow his gun at this meeting and that he gave the gun confiscated from Mr. Lal to Person X. The gun was found at the scene of the killings with the DNA of Person Y on it. [17] At the time of the killings, Mr. Haevischer and his girlfriend, K.M., lived in a suite in an apartment building in Surrey known as The Stanley. On the day of the killings, the Surrey Drug Section of the Royal Canadian Mounted Police (“RCMP”) was conducting surveillance at The Stanley for an unrelated investigation, and one of the officers took some video of the area. In addition, The Stanley had an internal security video system that recorded various areas of the building. The video showed that Mr. Johnston and Person X arrived at The Stanley at 1:48 p.m. on the day of the murders. Mr. Johnston was wearing a black hoodie with an intricate white design and Person X was wearing a light grey hoodie with a large black Nike “swoosh” logo on the back and a smaller one on the front, and he was carrying a black bag strapped across his chest. [18] K.M. testified that she and Mr. Haevischer were at their suite in the early afternoon on the day of the killings when Mr. Johnston and Person X arrived unannounced. She testified that they asked if they could clean some guns and K.M. helped them clean the guns and bullets with Windex and paper towels in the living room of the suite. She said that Mr. Haevischer changed clothes and the three men left the suite, with Mr. Johnston asking her to move his vehicle from the front visitor parking area to the rear area of The Stanley. [19] The video evidence showed Mr. Johnston, Mr. Haevischer and Person X leave The Stanley in K.M.’s black 745 BMW at 2:16 p.m. and K.M. moving Mr. Johnston’s vehicle to the rear of the building. The video showed Mr. Johnston and Person X wearing the same clothes as before (with Mr. Johnston also wearing a baseball cap) and Mr. Haevischer wearing a black hoodie. [20] One of the drug dealers for the Red Scorpions, referred to as D.Y., lived in the Balmoral. It consisted of one 15‑floor high‑rise tower and four low‑rise buildings. The complex had an underground parkade which was accessed by separate gates for vehicles and pedestrians. The residential floors could be accessed by elevator, which required a fob for the outside entrances and the parkade entrances. Mr. Lal was the occupant of suite 1505 of the Balmoral, but no one resided in the suite and it was used as a “stash” house for his group’s money and drugs. [21] D.Y. testified that he gave his fob for the Balmoral to Mr. Johnston in the early afternoon of the day in question. The fob was used to gain access to one of the pedestrian gates in the underground parkade at 2:23 p.m. The distance between The Stanley and the Balmoral is approximately three kilometers, which would typically take four minutes or slightly longer to drive in a vehicle. [22] A Bible study took place in an apartment in the Balmoral on October 19, 2007; one of the participants, Ms. Lee, left the meeting at approximately 2:15 p.m. to return to her car in the underground parkade. She testified that when she was walking down a ramp towards the parkade, she saw a black 745 BMW. She watched the BMW park, and, as she was heading to the exit ramp of the parkade in her vehicle, she saw two men exit the BMW. She described the two men as Caucasian, between 18 and 22 years of age with no facial hair and wearing gloves. She said one of them was approximately 183 cm tall and was wearing a grey hoodie with a Nike “swoosh” logo on the back and the other was approximately 170 cm tall and was wearing a black hoodie. [23] Ms. Lee also testified that she saw a third man holding open the pedestrian gate out of the parkade. She described him as being approximately 170 cm tall and wearing black gloves and a black hoodie with white markings pulled down to cover his face. The other two men were walking in his direction. When she was out of the parkade and driving on the road, Ms. Lee phoned the hostess of the Bible study to report that there were some strange men in the parkade. Cell phone records showed that this call occurred at 2:24 p.m. [24] The trial judge concluded that Ms. Lee’s descriptions of these three men were consistent with the video taken by The Stanley’s closed‑circuit television (“CCTV”) of Mr. Johnston, Mr. Haevischer and Person X. [25] The judge found that the perpetrators of the killings entered Mr. Lal’s suite in the Balmoral at 2:30 p.m. and that the victims were killed at approximately 2:40 p.m. She made these findings primarily on the basis of cell phone and fob records, supplemented by evidence of persons in contact with the victims. [26] The evidence indicated that Mr. Lal, Michael Lal, Mr. Bartolomeo and Mr. Schellenberg (who was servicing fireplaces in the Balmoral) were in the suite when the perpetrators entered. Mr. Mohan (who lived across the hall) and Mr. Narong subsequently came or were brought into the suite. [27] The crime scene established that the victims were killed by two shooters. Two guns were found at the scene, and there were two separate groupings of the victims, three by a computer near the front door and three by a fireplace. The Glock gun Person Y had given to Person X was used to kill three of the victims, and a 9 mm Ultrastar gun was used to kill the other three. The victims were all found in submissive positions and were shot in the back of the chest or head with 16 of the 19 bullets fired by the guns. The victims’ pockets had been emptied and their cell phones were all taken. The bodies were discovered by one of the managers of the Balmoral, who went looking for Mr. Schellenberg. [28] One of the other participants of the Bible study, Ms. Kim, was leaving the Balmoral at approximately 2:45 p.m. As she was backing out of her parking stall in the underground parkade, she saw three young men in dark tops come out of the pedestrian gate and get into a black BMW parked a few stalls away. The BMW passed her vehicle on the exit ramp of the parkade travelling at a very high rate of speed. The trial judge concluded that these three men were Mr. Johnston, Mr. Haevischer and Person X. [29] Based on police and video surveillance, Mr. Johnston, Mr. Haevischer and Person X arrived together in the BMW at The Stanley at approximately 2:56 p.m. Mr. Johnston was observed carrying a white plastic bag. Both Mr. Johnston and Mr. Haevischer were hooded and wearing gloves. They went into The Stanley. Person X waited by Mr. Johnston’s vehicle in the rear of the building. [30] K.M. testified that when Mr. Johnston and Mr. Haevischer returned to the suite at The Stanley approximately an hour after they had left, Mr. Johnston emptied the contents of a black plastic bag containing bundles of cash and cell phones. She saw Mr. Haevischer boiling cell phones in a pot on the stove, and, when Mr. Haevischer and his brother (who arrived before the return of the others or shortly thereafter) were writing on a whiteboard, she saw the words, “People Died”. [31] The surveilling police observed Mr. Johnston re‑emerge from the building a few minutes later. Mr. Johnston got into his vehicle and drove away with Person X in the passenger seat at 3:04 p.m. [32] K.M. testified that the cell phones, clothing worn by Mr. Haevischer and a pair of shoes were put into a laundry bag and that Mr. Haevischer told her to do whatever his brother told her to do. She said she and Mr. Haevischer’s brother went to a location in Surrey where the laundry bag and its contents were burned. The Stanley CCTV video captured K.M. and Mr. Haevischer’s brother (carrying a large cloth bag) going to the parkade at 4:34 p.m. and K.M.’s Acura Integra leaving The Stanley at 4:35 p.m. The video showed K.M’s Acura returning at 6:41 p.m., and she and Mr. Haevischer’s brother were seen a few minutes later walking from the parkade to the elevator. [33] K.M. testified that she and Mr. Haevischer left The Stanley shortly after 8:00 p.m. and went to stay in an associate’s house for several days. K.M. said that on that evening Mr. Haevischer told his associate on a whiteboard that “six people died”. The next day, she said Mr. Haevischer asked her the question, “Burnt it all, all gone[?]” on a whiteboard and K.M. nodded affirmatively. K.M. further testified that Mr. Haevischer told her that one of his associates was going to get her BMW cleaned. [34] Person Y testified that Mr. Johnston made admissions to him regarding the murders on three separate occasions. The first occurred on the evening of the murders, when Person Y was waiting in Mr. Bacon’s car in a parking lot of a pub next to the apartment building in which Person X lived. He was waiting for Mr. Bacon to return from the building. He testified that Mr. Johnston unexpectedly climbed into the car and told him of events that had taken place earlier in the day. [35] Person Y testified that Mr. Johnston was animated and told him that there were lots of bodies, that he had to pull someone in from outside the suite and that they put bodies by a fireplace. He also said that Mr. Johnston used hand signals to show how many people it was. [36] The RCMP was conducting surveillance of Mr. Bacon at this time and saw that his vehicle had parked in the parking lot next to Person X’s apartment building. The police did not see anyone get into or out of the vehicle until a male got into the vehicle before it drove off. Cell phone records of Mr. Bacon, Mr. Johnston, Person X and Person Y were consistent with them all being in the area at the time. [37] Person Y was acting as a police agent on the other two occasions Mr. Johnston made admissions, which took place approximately four months and five months after the killings. Person Y was wearing a wire, and his testimony at trial included descriptions of hand gestures made by Mr. Johnston. [38] On the second occasion, Person Y asked Mr. Johnston how it was that his (Person Y’s) DNA was found on a gun, and Mr. Johnston replied that he never touched the gun. Mr. Johnston said he did not know where the gun was left and Person Y would have to ask Person X about it. Mr. Johnston also said that he saw Person X clean the guns with Windex. [39] The following was said by Mr. Johnston on the third occasion (with Person Y’s testimony in brackets): · when asked if he had seen Person X boil the guns, Mr. Johnston said he was not exactly sure but clearly one of the guns was left there and the other was not; · when asked why Person Y’s gun had been left, Mr. Johnston said he did not know but it was not him; · when asked why guns were used, Mr. Johnston said he did not know and all he knew is that he was told to do something (Person Y first testified that Mr. Johnston pointed to his eyes indicating that he was the “lookout” person and he subsequently corrected himself that Mr. Johnston rubbed his fingers together to indicate money, but he was 80 to 90 percent certain Mr. Johnston also pointed to his eyes); · Mr. Johnston said the other person was supposed to “do this” (which Person Y testified was accompanied by a hand gun gesture with a cocked thumb and two fingers extended); · when questioned about Person Y’s gun, Mr. Johnston said there were some things he could not answer and “I watched him do this … [b]oth of them” (which Person Y testified was accompanied by the same hand gun gesture); · when asked why Person Y’s gun had been left, Mr. Johnston said he was just told to get “this” (which Person Y testified was accompanied by Mr. Johnston rubbing his fingers together to indicate money) and “everybody else like” (which Person Y testified was accompanied by a hand gun gesture); · when told that Person X claimed that $50,000 had been taken from the suite, Mr. Johnston replied that “there was nineteen five, I swear”, and Mr. Johnston denied stealing any of the money and said words to the effect that it was Mr. Haevischer who counted it; · when asked why six people were killed and whether Person X had panicked, Mr. Johnston said he was not inside and Person Y knew that to be the case because Person X had already told him; and · when Person Y said that Person X had not boiled the guns, Mr. Johnston replied that he never had one in his hand the whole entire time (which Person Y testified was accompanied by a hand gun gesture). [40] There are other facts and alleged facts that are relevant to the issues relating to the alleged abuse of process and lack of disclosure. We will outline them when dealing with those issues. [41] We will next briefly summarize the Trial Reasons, the Open Vukelich Ruling and the Sealed Vukelich Ruling. We will elaborate on the judge’s reasoning when discussing the issues raised on these appeals. The Trial Reasons [42] The Trial Reasons were very extensive, consisting of 728 paragraphs (as well as an executive summary). After giving an overview of the Crown’s case and a description of the witnesses who testified, the trial judge set out the factual narrative in great detail. [43] During the factual narrative, the judge made a number of findings of fact. She found that there were two shooters (each of whom shot three of the victims), that the murders were execution‑style shootings, and that the victims were under domination of the perpetrators at the time they were shot. She found that there was initially a plan for Person Y, acting alone, to kill Mr. Lal and that it changed to a plan in which members of the Red Scorpions would break into Mr. Lal’s stash house in order to kill him and take his money and drugs. [44] The judge made findings as to the events that took place on October 19, 2007, along the lines of the evidence set out above. She accepted the evidence of Person Y with respect to the admissions made by Mr. Johnston and found that they constituted acknowledgements that Mr. Johnston was aware of the plan to kill Mr. Lal, that he was present during the cleaning of the guns, that he was present at the scene at the time of the murders and that he provided assistance in carrying out the plan. [45] The judge then conducted an assessment of the testimony of four witnesses of disreputable character , including Person Y and K.M. She was satisfied that it was Person Y’s intention to tell the truth and she found his evidence was corroborated in many respects by independent evidence. She concluded that many key aspects of K.M.’s evidence were in accordance with the “preponderance of probabilities” and that there was other evidence tending to show that K.M. was telling the truth in the material aspects of her testimony. [46] Finally, the judge turned to the specific charges against the appellants. She was satisfied beyond a reasonable doubt that Mr. Johnston was a member of the conspiracy to murder Mr. Lal and that the only logical inference was that Mr. Haevischer knew that the three men were on their way to kill Mr. Lal by the time they exited the BMW in the parkade of the Balmoral. [47] The judge found that the appellants were co‑principals in the six murders or, alternatively, one of them was a principal in the murders as a shooter and the other was an aider or abettor of the shooters. She was satisfied beyond a reasonable doubt that the murders were planned and deliberate in that the perpetrators had at all times planned to kill Mr. Lal and the plan expanded to killing the other five victims because they could identify the killers. In the alternative, the judge found the appellants guilty of first degree murder of all six victims because they caused their death while committing the offence of unlawful confinement. The Open Vukelich Ruling [48] The task of the trial judge on the Crown’s application for the summary dismissal of the stay applications was to determine whether the appellants had demonstrated that the alleged police misconduct during the investigation into the Surrey Six murders, together with the conditions of confinement during their first 14 months of pre‑trial custody, justified holding a full evidentiary hearing to determine whether a judicial stay of proceedings was warranted. She began by reviewing the principles set out in R. v. Babos , 2014 SCC 16, and she noted the stay was being sought under the “residual” category of conduct impinging on the integrity of the justice system, not the “main” category of conduct that compromises trial fairness. [49] In the first stage of the Babos analysis, the judge looked to whether the state had engaged in conduct that was offensive to the notions of fair play and decency so as to harm the integrity of the judicial system. She accepted for the purposes of the Crown’s application that the fact that the appellants had been kept in segregated confinement for 14 months at the direction of the RCMP was offensive to notions of fair play and decency and could amount to an abuse of process. [50] The alleged police misconduct arose from an investigative technique referred to as the “moving witnesses strategy”. The strategy involved the police targeting vulnerable members or girlfriends of members of the Red Scorpions in an attempt to bring them into new relationships with the police so that they would become witnesses against the Red Scorpions. The trial judge accepted that the effect of the strategy was to encourage an “anything goes” attitude on the part of four officers, which led to egregious misconduct involving exploitative sexual relationships with protected female witnesses, endangerment of the safety of these witnesses by revealing information about them, lying to their superiors and manipulation of overtime and expense claims to cover up their conduct. She concluded that this misconduct could also constitute an abuse of process. [51] In the second stage of the Babos analysis, the trial judge accepted that no remedy short of a stay of proceedings was capable of redressing the prejudice to the justice system from the alleged misconduct. [52] In the third stage of the Babos analysis, the trial judge weighed the seriousness of the state misconduct and the societal interest in having the convictions entered. It was her view that the seriousness of the charges and society’s interest in seeing justice done were the factors that weighed most heavily in the balance. When she weighed the impugned state misconduct against society’s interest in having the convictions entered, she concluded that this was not one of the “clearest of cases” where the exceptional remedy of a stay of proceedings was warranted. [53] As the trial judge concluded that the grounds advanced by the appellants would not support a stay of proceedings, an evidentiary hearing was unnecessary. She dismissed their applications and directed the entry of their convictions. The Sealed Vukelich Ruling [54] In the in camera hearing before the trial judge, the Amici took the position in support of the appellants’ applications for a stay of proceedings that an evidentiary hearing was necessary to deal with the abuse of process allegation on an additional ground of alleged police misconduct. [Sentence removed.] [55] [Paragraph removed.] [56] [Paragraph removed.] [57] In the third stage of the Babos analysis, the judge concluded that, even when the abuses were considered cumulatively, a stay of proceedings would be disproportionate in view of the seriousness of the offences and the interest of the community in having the appellants’ convictions entered. She confirmed her summary dismissal of the applications for a stay of proceedings. Issues on Appeal [58] The issues on appeal are as follows: a) Did the trial judge err in excluding the appellants from the hearing that led to her order prohibiting the testimony of Person X in contravention of s. 650 of the Criminal Code ? b) Did the trial judge err in her assessment of the credibility of Person Y and K.M.? c) Did the trial judge err in her assessment of the circumstantial evidence against Mr. Haevischer? d) Did the trial judge err in her application of the principles of party liability in finding Mr. Haevischer guilty of first degree murder? e) Did the trial judge err in favouring inferences urged upon her by the Crown, rather than those suggested by Mr. Johnston? f) Did the trial judge err by failing to address the scope of the exclusion of Person X’s evidence, causing particular harm to Mr. Johnston? g) Did the Crown fail to meet its disclosure obligations owed to the appellants? h) Did the trial judge err in dismissing the applications for a stay of proceedings in the absence of an evidentiary hearing dealing with the allegations of abuse of process? [59] In addition, there are applications for the introduction of fresh evidence in relation to the last two of these issues. [60] The Amici join the appellants on the final two issues. We will deal with each of these issues in turn. Did the Trial Judge Err in Excluding the Appellants from the Hearing that Led to Her Excluding Person X’s Testimony? [61] In the fall of 2012, about a year prior to the commencement of the trial, the appellants filed an application challenging the Crown’s position that it was entitled to withhold disclosure of certain materials from them on the basis that the materials would tend to identify persons designated as E3 and E5, who the Crown asserted were confidential informants. [Sentence removed.] On application by the appellants, the trial judge granted a consent order dated November 6, 2012, appointing the Amici to assist the court “by providing an adversarial context in the ex parte hearing to adjudicate the Respondent Crown’s claim of informant privilege”. The order provided, among other things, that the Amici were to ensure that the appellants and their counsel would receive disclosure of all information that did not tend to identify the confidential informant. [62] It is important to note that the role played by the Amici in this case was different than the role described by Justice Karakatsanis in Ontario v. Criminal Lawyers’ Association of Ontario , 2013 SCC 43 [ Criminal Lawyers’ Association ]. The Amici ’s initial appointment was to assist with the resolution of the privilege claims of E3 and E5, which necessarily had to proceed without the accused or their defence counsel. Once those claims were upheld, Amici ’s role shifted to providing an adversarial context to the ex parte portions of this proceeding, and thus took on a role similar to that of defence counsel. At the hearing of these appeals, Amici helpfully suggested that their role was more akin to that of “special counsel”, and that they would not use the term Amici if the appointment were made today. [63] We agree with Amici ’s submission that their role is more accurately described as that of special counsel. Amici were not truly appointed to be friends of the court, but rather to provide an adversarial context in the absence of defence counsel. They fulfilled that role ably on appeal. Nevertheless, because the appointment of Amici predates the decision in Criminal Lawyers’ Association , and the term Amici has been used throughout this litigation, we will continue to use the term Amici . [64] The Crown indicated an intention to advance its privilege claims under the common law, as opposed to s. 37 of the Canada Evidence Act , R.S.C. 1985, c. C‑5. [65] Mr. Johnston raised an objection to the Crown proceeding with in camera hearings in his absence dealing with informer privilege at common law on the basis that s. 650 of the Criminal Code bars proceedings in the absence of the accused. Section 650(1) reads as follows: Accused to be present 650 (1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial. Subsections (1.1) to (2) and s. 650.01 have no application to this case. [66] In oral reasons given on February 12, 2013, and written reasons subsequently issued on September 20, 2013, and indexed as 2013 BCSC 1735, the judge ruled that the Crown was not required to proceed under s. 37 of the Canada Evidence Act and that s. 650 of the Criminal Code was not a bar to the Crown proceeding with in camera hearings in the absence of the accused. [67] The judge proceeded to deal with issues of informer privilege by way of in camera hearings in the absence of the appellants. She heard the Crown’s claim of informer privilege in accordance with R. v. Basi , 2009 SCC 52, and Named Person v. Vancouver Sun , 2007 SCC 43 . At the first stage, the judge ruled that E5 was a confidential informant with a subsisting informer privilege. At the second stage, she dealt with the consequences of the privilege. [68] [Paragraph removed.] [69] While it was believed that the in camera proceedings were still ongoing, Mr. Johnston filed an application for an order that he be permitted to attend and participate in the hearings and that he be given a report about what was occurring in the hearings. The in camera proceedings had actually completed before this application was filed, and the trial judge released her ruling approximately two weeks later, with the result that she never dealt with the application (except indirectly by issuing her written reasons dated September 20, 2013, confirming that s. 650 did not prevent the proceedings from being held in camera in the absence of the accused). [70] The trial judge issued two versions of her rulings. In the published version, indexed as 2013 BCSC 1526, the judge briefly explained that Person X could not be called by the Crown due to trial fairness concerns. [Sentence removed.] [71] [Paragraph removed.] [72] [Paragraph removed.] [73] On appeal, the appellants do not argue that s. 650 gave them a right to be present at what was described in Basi as the first stage to determine whether an informer privilege exists. Rather, they argue that it was a violation of s. 650 to exclude them from the next stage, at which the judge addressed the consequences of the privilege, which in this case included a consideration of prohibiting Person X’s evidence. [74] The appellants say the main purposes of s. 650, as articulated in R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.), leave to appeal ref’d [1982] 2 S.C.R. x, are to enable an accused to be able to make full answer and defence to the charges and to bring transparency and the appearance of fairness to the proceedings. Citing Named Person at paras. 50–51, the appellants contend that at the second stage they should have been given standing to present meaningful submissions on how the informer privilege could be protected with minimal effect on their vital interests. They say the approach taken by the trial judge was incompatible with s. 650 and irreconcilable with their fair trial rights. They say their vital interests are at stake, and there is no obligation on them to show prejudice. [75] Before turning to Named Person and Basi , it is useful to summarize the characteristics of informer privilege as discussed by the Supreme Court of Canada in R. v. Leipert , [1997] 1 S.C.R. 281. Informer privilege prevents the disclosure of information which would tend to identify the informant, and it was developed to protect people who assist law enforcement and to encourage others to assist: Leipert at para. 9. The privilege is of fundamental importance to the workings of the criminal justice system: Leipert at para. 10. Although the privilege belongs to the Crown, it cannot be waived without the informant’s consent, who must be properly informed of the consequences of the waiver: Leipert at para. 15; Named Person at para. 25. With one exception, the privilege is absolute, and the police and courts are bound to give effect to it without balancing other interests against it: Leipert at paras. 12–14. The one exception, known as “innocence at stake”, requires the identity of the informant to be disclosed when it is necessary to demonstrate the innocence of the accused: Leipert at para. 21. [76] Both Named Person and Basi involved a situation in which the court was determining whether informer privilege existed. In Named Person , after a person represented to the judge that he was a confidential police informant, the judge invited counsel for media groups to a hearing and subsequently ordered that those counsel could review documents prepared by an amicus curiae upon giving undertakings of confidentiality. [77] In allowing the appeal of the person claiming informer privilege, the Supreme Court of Canada held that the judge had made three errors. The judge should not have appointed the amicus curiae because the determination of the legal test was the judge’s responsibility. The judge should not have given notice to selected media counsel. The judge should have proceeded in camera to determine whether the privilege applied and should not have made an order allowing media counsel to review documents which were privileged. [78] Other than making the point that the Amici is not a substitute for defence counsel as a result of the lack of a solicitor‑client privilege, the appellants do not assert it was an error for the trial judge to appoint an amicus curiae in this case. Indeed, the appointment of the Amici was made on their application. In Named Person , it was found to be an error for the judge to have appointed an amicus curiae because a legal determination was delegated to the amicus , although the Court acknowledged that it may be permissible to appoint an amicus curiae in some cases. As discussed above, the function of the Amici in this case was not the traditional role of an amicus curiae to assist as a “friend of the court”. The trial judge appointed the Amici to provide an adversarial context; in other words, the Amici was instructed to take an adversarial position in support of the appellants’ interests. This served to ameliorate the absence of the appellants and their counsel from the in camera proceedings. [79] The appellants rely on passages from Named Person in which the Court discussed how a judge should proceed once the existence of informer privilege has been established. At para. 50, Justice Bastarache, writing for the majority, stated that, while the judge must not violate the privilege, he or she should protect and promote the values of the open court principle. At para. 51, he said the following: [51]      … Restricted disclosure will of course be necessary to protect the privileged information, but the protection of the open court principle demands that all information necessary to ensure that meaningful submissions, which can be disclosed without breaching the privilege, ought to be disclosed. Therefore, standing may be given at this stage to individuals or organizations who will make submissions regarding the importance of ensuring that the informer privilege not be overextended and the way in which that can be accomplished in the context of the case. The appellants complain they were not given the opportunity to make meaningful submissions on how the informer privilege could be protected with minimal effect on their interest. [80] The appellants’ point would probably be persuasive in cases where meaningful submissions could be made without breaching the informant’s privilege. However, this was a very unusual case in which the trial judge took the extraordinary step of excluding the entirety of Person X’s evidence in order to avoid a breach of the privilege. [Sentence removed.] The above comments of Bastarache J. about the open court principle were subject to the overriding qualification that the court cannot release information tending to identify the confidential informant. In the unique circumstances of this case, it is our view that the trial judge could not have disclosed any information to enable the appellants to have made meaningful submissions without breaching the privilege. [81] In Basi , the judge ordered that defence counsel could participate in an in camera hearing to determine the validity of a claim of informer privilege as long as they gave undertakings of confidentiality. The judge based her decision both on the common law of privilege and s. 650 of the Criminal Code . The Crown then invoked s. 37 of the Canada Evidence Act , which provides for non‑disclosure where a public interest is at stake. The judge subsequently affirmed her decision. The invocation of s. 37 gave the Crown an immediate right of appeal. [82] In allowing an appeal from the judge’s order, the Supreme Court of Canada ruled that the judge erred in permitting defence counsel to hear testimony that would tend to reveal the identity of the putative informant at the “first stage” hearing: Basi at para. 44. The Court held that the right to make full answer and defence does not trigger an exception to informer privilege, and the only exception to the privilege arises when innocence is at stake: Basi at para. 43. [83] The Court addressed the fact that the judge had relied upon s. 650 in making her order. It first pointed out that an application under s. 37 of the Canada Evidence Act is not caught by s. 650: Basi at para. 50. It then went on to point out that the Crown was not relying on the redacted portions of the documents to prove guilt of the accused: Basi at para. 51. [84] As it did in Named Person , the Court commented on the need for trial judges to adopt all reasonable measures to permit defence counsel to make meaningful submissions and stated that trial judges have broad discretion to craft appropriate procedures: Basi at para. 55. As stated above, this obligation is subject to the overriding qualification that trial judges cannot do anything that would breach the privilege. [85] The Court also commented that fairness may require trial judges to provide the defence with redacted or summarized versions of the evidence and that trial judges may appoint an amicus curiae in particularly difficult cases: Basi at para. 57. In this case, the trial judge did appoint an amicus curiae , and she could not have disclosed any information about the evidence heard during the in camera proceedings without breaching the privilege. [86] The submissions made by the appellants are similar to the arguments made in R. v. Lucas , 2014 ONCA 561, leave to appeal ref’d (2015), [2014] S.C.C.A. Nos. 460, 461. In that case, the trial judge held an ex parte , in camera hearing to deal with the Crown’s claim of informer privilege in respect of statements contained in an information to obtain a wiretap authorization. The appellants argued that the judge erred in relying on Named Person as authority for conducting an ex parte , in camera hearing because Named Person did not involve the exclusion of the accused from the hearing. [87] Relying on Basi , the Ontario Court of Appeal in Lucas held that the appellants had no right to attend the in camera hearing. The Court pointed out that Basi did not turn on the Crown’s invocation of s. 37 of the Canada Evidence Act because the conclusion in that case was premised on the need to protect the identity of the confidential informants: Lucas at para. 63. [88] The Court in Lucas also rejected the appellants’ alternate argument that they had the right to make submissions about the procedure to be followed in the hearing. The Court pointed out that the decision in Basi provided that trial judges have broad discretion to craft procedures to safeguard the privilege and to protect the interests of the accused: Lucas at para. 66. The Court held that the provision of a redacted transcript of the hearing being provided to the appellants’ counsel was sufficient to safeguard the interests of the appellants: Lucas at paras. 67, 69. In the present case, the appointment of the Amici in an adversarial role was sufficient, in our view, to safeguard the interests of the appellants. [89] Finally, the appellants argue in reply that Named Person and Basi both involved the first stage of determining the existence of informer privilege and that there is a balancing of competing rights at the second stage of determining the consequences of the privilege. In that regard, they point to the comment at para. 53 of Basi that the accused should be excluded “only to the necessary extent”. [90] As discussed above, informer privilege is absolute, subject only to the “innocence at stake” exception. The absolute nature of the privilege applies as equally at the second stage of a Basi hearing as it does at the first stage. There can be no balancing of interests that results in a breach of the privilege. While protecting the privilege, the court has a broad discretion to take measures to safeguard the interests of the accused. In the present case, the trial judge appointed the Amici to safeguard the appellants’ interests. We are satisfied that she could not have taken any other meaningful steps without jeopardizing the privilege. [91] We do not give effect to this ground of appeal. Did the Trial Judge Err in Her Assessment of the Credibility of Person Y and K.M.? [92] There were four witnesses at trial who were considered to be witnesses of disreputable character (commonly referred to as “ Vetrovec witnesses”), Person Y, K.M., D.Y. and Mr. Le. After the judge reviewed the evidence generally in the Trial Reasons, she turned to her assessment of the unsavoury witnesses. In the result, she accepted most of the evidence of Person Y, K.M. and D.Y., but rejected the evidence of Mr. Le in respect of admissions allegedly made to him by each of the appellants. The appellants assert that the judge erred in her application of the Vetrovec principles with respect to Person Y and K.M. [93] The trial judge began her discussion of the credibility of the unsavoury witnesses at para. 463 of the Trial Reasons by quoting the following summary of the applicable Vetrovec principles from R. v. Roks , 2011 ONCA 526, as adopted by this Court in R. v. Khan , 2011 BCCA 382 at para. 43: [63] Among the essential elements of a Vetrovec caution is an instruction about the essential characteristics of confirmatory evidence. Jurors are to be told that, in determining the veracity of the suspect evidence, they should look for evidence from another source tending to show that the untrustworthy witness is telling the truth about the guilt of the accused:  [ R. v. Khela , [2009] 1 S.C.R. 104], at para. 37; R. v. Kehler , [2004] 1 S.C.R. 328, at paras. 17‑19; R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 82, leave to appeal refused, [2005] 1 S.C.R. xv. The trier of fact is to look for confirmation from some other source (the independence requirement) that the suspect witness is telling the truth in some part of his story that goes to show that the accused committed the offence charged (the implicative quality or materiality requirement): Kehler , at para. 19; R. v. Vetrovec , [1982] 1 S.C.R. 811, at p. 829. [64]      The independence requirement insists that to be confirmatory, evidence must not be “tainted” by connection to the Vetrovec witness: Khela , at para. 39. [65]      To satisfy the materiality requirement, confirmatory evidence need not implicate the accused: Khela , at paras. 40‑41; Kehler , at para. 16. The materiality requirement is met where the confirmatory evidence, in the context of the case as a whole, gives comfort to the trier of fact that the Vetrovec witness can be trusted in his or her assertion that the accused is the person who committed the offence: Khela , at para. 42; Vetrovec , at p. 833. Where the only issue in dispute is whether the accused committed the offence, to be confirmatory, evidence must comfort the trier of fact that the Vetrovec witness is telling the truth in that regard before convicting on the basis of the Vetrovec witness’ evidence: Khela, at para. 43. [66]      It is worth reminder that a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence of confirmatory evidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling the truth: Khela , at para. 37; Kehler , at para. 22; Sauvé , at para. 82. [Italic emphasis in original.] The appellants do not take issue with the correctness of any of these principles, but contend that the judge did not apply them properly. [94] In assessing the credibility of Person Y, the trial judge began by setting out the features that Mr. Johnston asserted made Person Y an untrustworthy witness. Two of those features involved Person Y’s motive to work with police: to exact revenge against Mr. Bacon; and to receive benefits from the police in an amount which ultimately exceeded $1.3 million. [95] The trial judge then reviewed the evidence relating to Person Y and his testimony. At para. 478, she stated that Person Y could have easily implicated one or both of the appellants without contradiction but did not do so. At para. 479, she found that Person Y had no motive to falsify his evidence. She concluded her assessment as follows: [481] In my view, Person Y’s actions do speak for him. His actions answer many of the issues raised by Mr. Johnston in challenging Person Y’s credibility. Considering the evidence of Person Y as a whole, as well as the circumstances that have brought him before the Court, I am satisfied that his intention was to tell a true story to the Court. I would note that even Mr. Haevischer argues that Person Y’s shortcomings relate more to his reliability than credibility and that the Court ought not to reject his evidence in total. Importantly, Person Y’s evidence is corroborated in many respects by independent evidence, and I have accepted it on many of its essential points . [Emphasis added.] [96] The trial judge then conducted a similar assessment of K.M.’s trustworthiness. At para. 504, she referred to the attempt by the defence to paint a picture of K.M. as a jilted girlfriend seeking revenge and a person trying to save her own skin by falsely implicating the accused. The judge commented that there was no apparent reason why K.M. would wish to falsely implicate Mr. Johnston. [97] At para. 505, the judge dealt with the defence submission that K.M. was lying to protect herself, and the judge asked the rhetorical question of why K.M.’s evidence did not implicate either accused in a more direct way. The judge observed that K.M. could have significantly implicated both accused without danger of contradiction. [98] The trial judge concluded her assessment of K.M.’s trustworthiness as follows: [508]    As with Person Y, there are areas of K.M.’s evidence with respect to which she is honestly mistaken, or where her memory was unclear. However, many key aspects of her evidence are in accordance with the “preponderance of probabilities” in this case. Further, there is evidence from other sources tending to show that K.M. is telling the truth in the material aspects of her testimony. [Emphasis added.] [99] The appellants concede that it is possible for a trial judge to accept the evidence of an unsavoury witness without finding confirmatory evidence: Roks at para. 66. However, they say the trial judge accepted the material aspects of the evidence of Person Y and K.M. on the basis that there was confirmatory evidence when there was none. [100] The appellants do not assert that the judge erred because she did not identify the specific confirmatory evidence to which she referred in paras. 481 and 508 of the Trial Reasons. However, they maintain that there was no such confirmatory evidence and that this amounts to an error in law despite the fact that it was open to the judge to accept the evidence of Person Y and K.M. in the absence of confirmatory evidence. We need not decide whether this would amount to an error in law because we are satisfied that there were at least two pieces of confirmatory evidence in respect of the testimony of each of Person Y and K.M. [101] It is not necessary for the confirmatory evidence to corroborate the witness’s evidence in every respect: R. v. Chenier (2006), 205 C.C.C. (3d) 333 at 350 (Ont. C.A.). As discussed in para. 65 of Roks (quoted above), evidence need not implicate the accused in order to be confirmatory. However, it must have materiality, a concept which the Supreme Court of Canada noted at para. 40 of R. v. Khela , 2009 SCC 4, can be a difficult one. To be material, the confirmatory evidence must be capable of restoring the trier’s faith in relevant aspects of the witness’s account: Khela at para. 43. [102] The most material evidence confirming Person Y’s testimony relates to his evidence that, at the meeting at the Korean restaurant on the day of the killings, he gave Person X the Glock gun he had confiscated from Mr. Lal. The independent confirmatory evidence was that the gun was found at the scene of the killings with Person Y’s DNA on it. The police did not reveal this fact to Person Y until after he told them that he had given the gun to Person X: Trial Reasons at para. 236. [103] Other confirmatory evidence relates to the testimony of Person Y about the admissions made to him by Mr. Johnston on the evening of the killings. He testified that the conversation took place in Mr. Bacon’s car outside of the apartment building in which Person X lived. The confirmatory evidence was that the RCMP surveillance placed Mr. Bacon’s car in that parking lot at the time. In addition, cell phone records were consistent with Mr. Bacon, Mr. Johnston, Person X and Person Y being in the area at the time. [104] The appellants argue there was no confirmatory evidence of Person Y’s testimony in this regard because it is not supported by independent evidence. They point to the facts that the police did not see anyone get into Mr. Bacon’s car except immediately prior to its departure and that the police did not see Mr. Johnston’s vehicle even though it was on their list of targeted vehicles. However, the trial judge found it was entirely possible for the exchange between Person Y and Mr. Johnston to have occurred before the police set up their surveillance, and she accepted Person Y’s evidence about the encounter: Trial Reasons at paras. 419, 425. The appellants are simply repeating arguments they made at trial and, in the absence of palpable and overriding error (which is not alleged), the findings of fact of the trial judge are owed deference. These arguments do not detract from the independent confirmatory evidence that Mr. Bacon’s car was in the location where Person Y testified he had the encounter with Mr. Johnston and that cell phone records are consistent with them being in the area. [105] There was also confirmatory evidence of at least two aspects of K.M.’s testimony. The first was her testimony that she helped Mr. Johnston and Person X clean guns and bullets with Windex and paper towels in the living room of her and Mr. Haevischer’s suite at The Stanley on the day of the killings. She and Mr. Haevischer did not return to the suite after they left it on the evening of the killings, and the confirmatory evidence of K.M.’s testimony was that the police searched the suite several days after the killings and found two rolls of paper towels on the living room table and a bottle of Windex on the kitchen counter: Trial Reasons at para. 283. [106] The second aspect was K.M.’s testimony that, after Mr. Haevischer and Mr. Johnston returned to The Stanley suite on the afternoon of the killings, she and Mr. Haevischer’s brother took a laundry bag containing cell phones, clothing and shoes to a location in Surrey and burned the laundry bag and the contents of the bag. Confirmation of this testimony was provided in part by The Stanley CCTV video, which captured K.M. and Mr. Haevischer’s brother leaving with a large cloth bag at approximately 4:35 p.m. and returning at approximately 6:40 p.m. It was further confirmed by the evidence of a police officer who accompanied K.M. in April 2009 to the location where she said the things had been burned. The officer testified that the area was charred and showed signs of burning: Trial Reasons at para. 359. [107] In addition to claiming that the trial judge erroneously applied the Vetrovec principles to the credibility of Person Y and K.M., the appellants say the judge made two other errors in assessing the credibility of Person Y and K.M. They submit the judge erroneously enhanced the credibility of both Person Y and K.M. by finding that they had no motive to lie and that they did not embellish their evidence when they could have done so without contradiction. [108] With respect to the lack of motive to lie, the appellants cite R. v. R.W.B. (1993), 24 B.C.A.C. 1, and R. v. Batte (2000), 145 C.C.C. (3d) 449 (Ont. C.A.). In R.W.B. , Justice Rowles said the following: [28]      It does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Whether a witness has a motive to lie is one factor which may be considered in assessing the credibility of a witness, but it is not the only factor to be considered. Justice Doherty made similar comments in Batte : [121]    What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive, or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility. [109] In our view, the trial judge did not conclude that Person Y and K.M. were credible solely because they did not have a motive to lie. At most, it was one factor she took into account in assessing their credibility. More importantly, however, the reason that the judge addressed the issue of motive was that the appellants had taken the position at trial that Person Y and K.M. were untrustworthy because they did have a motive to lie. It was perfectly appropriate for the judge to address something that the appellants had argued was a detraction from the credibility of Person Y and K.M. [110] With respect to the lack of embellishment, the appellants rely on the following paragraph from R. v. Kiss , 2018 ONCA 184: [52]      The trial judge would have erred if he treated the absence of embellishment as adding to the credibility of [the complainant’s] testimony. It is wrong to reason that because an allegation could have been worse, it is more likely to be true: R. v. G.(G.) (1997), 115 C.C.C. (3d) 1, at p. 10 (Ont. C.A.), [1997] O.J. No. 1501; R. v. L.L. , 2014 ONCA 892, at para. 2; R. v. R.A.G. , 2008 ONCA 829, at para. 20. While identified exaggeration or embellishment is evidence of incredibility, the apparent absence of exaggeration or embellishment is not proof of credibility. This is because both truthful and dishonest accounts can appear to be without exaggeration or embellishment. [111] The appellants say it was an error in law for the trial judge to have bolstered the credibility of Person Y and K.M. on the basis of a lack of embellishment in their testimony. Embellishment can serve as evidence of a lack of credibility, but a lack of embellishment serves no evidentiary purpose. [112] In our opinion, Kiss does not stand for the proposition that a trial judge necessarily errs by making a comment about lack of embellishment when discussing the credibility of a witness. This is demonstrated by the two paragraphs of Kiss following para. 52: [53]      On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross‑examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible. [54]      Trial judges are presumed to know the law. In this case, there is no basis for apprehending that the trial judge inappropriately added weight to [the complainant’s] credibility. In my view, on a fair reading of the reasons for judgment, the trial judge was simply recording that [the complainant’s] evidence did not suffer from a problem of exaggeration or embellishment that would have diminished its weight. He did not err on this ground. [113] On a reading of the Trial Reasons as a whole, it is our view that the judge did not use the lack of embellishment as a makeweight in favour of the credibility of Person Y and K.M. There were numerous other factors that she took into account when assessing their credibility. As in Kiss , the judge was simply noting that their credibility was not diminished by the existence of embellishment in their testimony. In the case of K.M., the judge made her comments about lack of embellishment in addressing the argument of defence counsel that K.M. was falsely implicating the accused in order to save her own skin. [114] This ground of appeal cannot succeed because the appellants have failed to show that the trial judge made any errors in her assessment of the credibility of Person Y and K.M. Did the Trial Judge Err in Her Assessment of the Circumstantial Evidence Against Mr. Haevischer? (a) Standard of Review [115] The appellant Haevischer says the judge committed three legal errors in her treatment of circumstantial evidence: a) wrongly requiring that “inferences consistent with innocence” be based on proven facts, contrary to the law as described in R. v. Villaroman , 2016 SCC 33 at para. 35; b) relying on evidence of post‑offence conduct to assess his degree of culpability, when the evidence did not particularly speak to culpability; and c) bridging gaps in the evidence rather than recognizing the circumstantial evidence fell short of supporting a finding beyond a reasonable doubt that Mr. Haevischer engaged in conspiracy to murder Mr. Lal. [116] The Crown urges upon us the deferential standard of review described in R. v. Paquette , 2019 BCCA 396 at para. 23; R. v. R.S.B. , 2020 BCCA 33 at para. 10; R. v. Widdifield , 2018 BCCA 62 at para. 30; and described as follows in R. v. Bransford , 2019 BCCA 408: [31]      An appeal from conviction in a circumstantial case that seeks to challenge the inferences drawn (or rejected) by a trial judge attracts a deferential standard of review. It is “fundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt”: Villaroman at para. 56, citing R. v. Dipnarine , 2014 ABCA 328 at para. 22. As a result, the question on appeal is whether the “trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: Villaroman at para. 55, citing R. v. Yebes , [1987] 2 S.C.R. 168. [117] Similarly, in R. v. O.V. , 2015 BCCA 449, this Court set out the deferential standard of review for inferences made by trial judges: [47]      As held in R. v. Newman, 2015 BCCA 237, [reversed on other grounds: 2016 SCC 7] inferences made by trial judges are not to be disturbed unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable: [65]      I must keep in mind the limited scope of appellate review that applies with respect to the inference-drawing process. As Mr. Justice Fish stated in R. v. Clark , 2005 SCC 2 at para. 9, [2005] 1 S.C.R. 6, “Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable.” Also apt is R. v. Damin , 2012 BCCA 504 at para. 38, 331 B.C.A.C. 101, wherein Madam Justice Smith indicated, quoting Housen v. Nikolaisen , 2002 SCC 33 at para. 23, [2002] 2 S.C.R. 235, that inferences drawn by a trial judge from accepted or found facts can be interfered with on appeal “only where the inference-drawing process itself is palpably in error”. [118] The Crown notes the appellant, Mr. Haevischer, avoids any reference to the standard of review. He does not assail findings of fact, and he does not address whether the inferences drawn were reasonable. It says a reviewing court should assess inferences drawn from circumstantial evidence by considering the evidence as a whole and should refrain from taking a piecemeal approach: R. v. Duong , 2019 BCCA 299 at para. 64; R. v. Tahirsylaj , 2015 BCCA 7 at paras. 29–30, 38. A fair reading of the judge’s reasons as a whole, the Crown submits, does not support the position the judge lost sight of the proper process of inference‑drawing. [119] The Crown says the judge was fully aware of the alternative inferences proffered by the appellant, specifically the contention he was unaware the plan was to murder Mr. Lal. She clearly and emphatically rejected such inferences, and it is not open to this Court to revive them: R. v. Robinson , 2017 BCCA 6 at para. 38, aff’d 2017 SCC 52; R. v. De Aquino , 2017 BCCA 36 at para. 33; Duong at para. 65. [120] In Robinson , Justice Newbury wrote: [38]      … [T]his court’s task is to determine “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable inference available on the totality of the evidence.” ( Villaroman , at para. 55.) This does not constitute a different standard of review for circumstantial cases; but it does provide finders of fact and appellate courts with an alternate formulation by which to assess such cases–in the words of Professor Berger, a kind of “inferential litmus test.” (At 71.) In circumstantial cases, as in non-circumstantial cases , the appellate court may not interfere if the verdict is one that a properly instructed jury could reasonably have rendered. ( Yebes , at 186.) It is generally the task of the finder of fact to draw the line between reasonable doubt and speculation. ( Villaroman , at para. 71.) It is not open to a court of appeal to conceive of inferences or explanations that are not reasonable possibilities; nor to attempt to revive evidence or inferences that the trial judge reasonably rejected. ( Grover , at para. 2, quoting from the reasons of Jackson J.A. in the Court of Appeal.) If an appellant is to succeed, an inference other than guilt must be “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.” ( Villaroman , at para. 36.) [121] The Crown contends the words of this Court in R. v. Vickers , 2016 BCCA 98 at para. 22, accurately describe the appeal: “the substance of this appeal is better seen as an argument that the verdict is unreasonable because the evidence left open reasonable inferences that were inconsistent with guilt”. See also R. v. Dipnarine , 2014 ABCA 328 at para. 2. [122] Further, the Crown says it is open to us to consider that Mr. Haevischer did not testify in his defence in assessing the reasonableness of the verdict: Tahirsylaj at para. 40 ; R. v. Jir , 2010 BCCA 497 at para. 39. (b) Did the Judge Err in Her Handling of Inferences Inconsistent with Guilt? (i) Positions of the Parties [123] The appellant Haevischer emphasises the trial judge’s description of the inference‑drawing process at paras. 588–91 of the Trial Reasons, particularly the concluding paragraph: [591]    The line between inference and speculation can be a fine one, and where evidence is circumstantial it is critical to distinguish between the two. D. Watt, Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2006) at 95 states: Inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture . [Emphasis added.] [124] He says the passage cited from Justice Watt writing extrajudicially in the 2006 edition of Watt’s Manual of Criminal Evidence cannot be reconciled with the 2016 judgment in Villaroman and, in particular, the following passage from the judgment of Justice Cromwell: [35]      At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver , [1965] 2 O.R. 475 (C.A.) … However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela , 2009 SCC 4 … at para. 58 ... Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [Emphasis added.] [125] He contends Watt J.A.’s statement of principle does not distinguish between inferences consistent with guilt and inferences inconsistent with guilt; the author clearly treats them both as requiring positive proven facts. The trial judge, by adopting the statement without qualification, was misguided and erred in her assessment of the circumstantial evidence. [126] In response, the Crown says the appellant mistakenly assumes the passage was cited in reference to inferences inconsistent with guilt. The Crown says the appellant misreads the text; the cited passage is still included in current editions of Watt J.A.’s text, together with references to Villaroman ; and the rule, as stated, is inferences consistent with guilt must be based on proven facts. The Crown says the trial judge referred to the passage in question during her discussion of the Crown’s burden to prove the conspiracy count beyond a reasonable doubt and in that respect, it is apt. It is a reference of the sort referred to at para. 49 of Villaroman : [M]ost of the references to the effect that inferences must arise from evidence concern the Crown’s burden to prove guilt beyond a reasonable doubt. Of course, there is no error in this regard as the Crown cannot rely on a gap in the evidence to prove an element of the offence . [Italic emphasis in original; underline emphasis added.] [127] In order to succeed on this ground, the Crown says the appellant must identify inferences consistent with innocence that were not drawn because of the error alleged: R. v. Russell , 2020 BCCA 108 at para 44 (also indexed as R. v. Dingwall ), review by the Supreme Court of Canada pending. The Crown says the judge did not refuse to draw the inferences proposed by the appellant because they were not supported by proven facts. Rather, she failed to draw them because they were “so resoundingly negatived by the facts”. (ii) Discussion [128] Watt’s text is cited in the course of the trial judge’s consideration of Count 7, the conspiracy charge (Trial Reasons at paras. 576–91), where there is a summary review of the jurisprudence. The focus of the trial judge at this point in the reasons is the extent to which a concerted purpose, such as to entitle her to find the existence of the unlawful agreement, could be inferred. The case against the accused was circumstantial, but the judge noted conspiracies are often proved by circumstantial evidence. She specifically identified the following propositions in the cases to which she referred: a) membership in a conspiracy may be inferred from evidence of conduct that assists the unlawful object; b) any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership; c) the cumulative effect of “several isolated doings” must be interpreted and their cumulative effect must be properly estimated in the light of all surrounding circumstances; d) evidence of association between conspirators can be some evidence; e) an agreement may be established by inference from the manner in which the substantive offence was committed; f) it is not necessary that all members of a conspiracy play, or intend to play, equal roles in the ultimate commission of the unlawful object; and g) members in a conspiracy need not personally commit, or intend to commit, the offence that each has agreed should be committed. [129] All of these propositions relate to the manner in which a conspiracy may be proved. None relates to inferences inconsistent with guilt. [130] The trial judge then turned to the basis upon which an inference in favour of the Crown could properly be drawn: [588]    Where the Crown’s case against an accused is based on circumstantial evidence, the trier of fact must be satisfied that the only rational inference is the guilt of the accused. In R. v. Griffin , 2009 SCC 28, the Supreme Court of Canada stated the proposition this way at para. 33: The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. [131] The only reference to inferences inconsistent with guilt in this discussion of the law is at para. 589 of the Trial Reasons, where the judge quoted the following passage from R. v. Kresko , 2013 ONSC 1159 at para. 32: The strength of an inference to be drawn from circumstantial evidence is determined by the probative value of the underlying evidence; see R. v. Handy , [2002] 2 S.C.R. 908, at para. 26. When assessing the strength of an inference the trier must also consider any alternative explanation or contradiction, and the accused may submit any other plausible theory : see Fontaine v. Loewen Estate , [1998] 1 S.C.R. 424, at para. 33. [Emphasis added.] [132] That reference to the necessity to consider any other “plausible theory” submitted by the accused closely reflects what the Supreme Court of Canada says with respect to inferences inconsistent with guilt in Villaroman : [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba , [1938] O.R. 200 (C.A.) , at pp. 205 and 211 , per Middleton J.A., aff’d [1938] S.C.R. 396 ; R. v. Baigent , 2013 BCCA 28 , 335 B.C.A.C. 11 , at para. 20 ; R. v. Mitchell , [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw , [1972] S.C.R. 2 , at p. 8 . “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [133] In our opinion, it is clear the reference to the necessity of a factual basis for inferences was adopted by the trial judge only in relation to inferences consistent with guilt in the Crown’s conspiracy case. The judge correctly instructed herself in that regard. There is no indication in her discussion of the jurisprudence or the application of principles to the facts in this case that suggests she erred in her treatment of the circumstantial evidence. [134] Further, as we note below, the trial judge discussed at length and rejected the inferences inconsistent with guilt now urged upon us by the appellants. (c) Did the Judge Err in Her Assessment of After‑the‑Fact Conduct? (i) Positions of the Parties [135] The trial judge placed weight upon the after‑the‑fact conduct described at paras. 345–98 of the Trial Reasons, specifically: a) the destruction of evidence (cell phones belonging to the victims and clothing belonging to the accused); b) flight (Mr. Haevischer and K.M. abandoned their apartment); and c) discussions between and amongst the accused (some of which were recorded). [136] At para. 679 of the Trial Reasons, the judge correctly observed after‑the‑fact conduct has no probative value where it is equally explained by, or is equally consistent with, two or more offences: R. v. White , 2011 SCC 13 [ White (2011) ]. [137] When she addressed the evidence of Mr. Haevischer’s participation in the conspiracy to murder Mr. Lal, she said: [634]    The evidence of events after the murders only strengthens the logical inference that Mr. Haevischer was a participant in the conspiracy. Upon his return to his apartment with Mr. Johnston, Mr. Haevischer boiled the victims’ cell phones and directed that the phones, and the clothing he and Mr. Johnston had been wearing, be destroyed. He told his brother on a whiteboard that people died. He directed K.M. to pack her things and the two left their apartment at the Stanley, never to return. Later that evening before it had been reported on the news, Mr. Haevischer told Windsor Nguyen by whiteboard that six people died. The next day he told his [Red Scorpions] associates that items connecting him to the crime scene had been burned. He arranged for the BMW that transported him and his cohorts to and from the scene to be cleaned and detailed. [138] In addressing the probative value of this evidence in relation to the murder charge, the judge said: [704]    Mr. Haevischer arranged the immediate destruction of the victims’ cell phones, as well as the clothing he had been wearing at the time of the murders. This is circumstantial evidence suggesting that Mr. Haevischer was not only present at the crime scene but actively involved in the killings. Destruction of the clothing suggests that Mr. Haevischer knew it might contain blood or other forensic evidence tying him to the murders. That, in turn, suggests that he was not standing passively some distance away from the events going on in the suite. It is a reasonable inference that Mr. Haevischer arranged the destruction of the evidence to eliminate his detection as one of the perpetrators: White at para 42. [139] Mr. Haevischer contends the judge misused the evidence of after‑the‑fact conduct, notwithstanding her correct summary of the law. He says the conduct in issue was as consistent with his desire to avoid being placed at the scene of a violent crime as it was with involvement in the planning or execution of the murders. [140] In R. v. White , [1998] 2 S.C.R. 72 [ White (1998) ], Justice Major, addressing the probative value of after‑the‑fact conduct, said: [32]      … The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute. It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged. Post-offence conduct might also be relevant in cases where the accused has admitted to committing a physical act but asserts that the act was justified in some way; in those circumstances, an act of flight or concealment might constitute some evidence from which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable act and had not, for example, acted in self-defence. See Peavoy [(1997), 117 C.C.C. (3d) 226 (Ont. C.A.)], at p. 241; Jacquard , [[1997] 1 S.C.R. 314], at p. 348. [141] A decade later, in White (2011) , Justice Rothstein said: [42]      … Whether or not a given instance of post-offence conduct has probative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. There will undoubtedly be cases where, as a matter of logic and human experience, certain aspects of the accused’s post-offence conduct support an inference regarding his level of culpability. [142] These judgments make it clear the probative value of evidence of after‑the‑fact conduct is contextual, and careful consideration must be given to how such evidence may speak to the accused’s culpability. The appellant says his after‑the‑fact conduct did not exclusively suggest he was a party to either conspiracy to murder or murder. He says even if the evidence suggests he knew the clothing he destroyed might contain blood or other forensic evidence tying him to the murders (as the trial judge assumed), the fact he destroyed the clothing did not allow the judge to draw an inference he was a perpetrator of the murders rather than a perpetrator of manslaughter (as a party to robbery). Physical proximity to the killings reveals nothing about the intent required to support a conviction for murder rather than manslaughter. There was nothing in the post‑offence conduct at issue that made it “out of all proportion” to the offence of manslaughter, and which would thereby allow it to support a conviction for murder. [143] The Crown agrees the proper legal treatment of after‑the‑fact conduct is highly context‑ and fact‑specific. However, it says Mr. Haevischer misapprehends the use made of the evidence of after‑the‑fact conduct. The judge did not use the evidence to determine the degree of Mr. Haevischer’s culpability but as evidence tending to establish his participation in a conspiracy, which was an issue at the trial, and as circumstantial evidence of his proximity to and active involvement in the killings. [144] The Trial Reasons refer to post‑offence conduct in three places. The first is at para. 634, quoted above but reproduced here for ease of reference: [634]    The evidence of events after the murders only strengthens the logical inference that Mr. Haevischer was a participant in the conspiracy. Upon his return to his apartment with Mr. Johnston, Mr. Haevischer boiled the victims’ cell phones and directed that the phones, and the clothing he and Mr. Johnston had been wearing, be destroyed. He told his brother on a whiteboard that people died. He directed K.M. to pack her things and the two left their apartment at the Stanley, never to return. Later that evening before it had been reported on the news, Mr. Haevischer told Windsor Nguyen by whiteboard that six people died. The next day he told his [Red Scorpions] associates that items connecting him to the crime scene had been burned. He arranged for the BMW that transported him and his cohorts to and from the scene to be cleaned and detailed. [145] The Crown says this reference to post‑offence conduct is used by the judge to support the inference she has drawn from other evidence. Mr. Haevischer’s examination of this paragraph in isolation from this context gives it an unwarranted significance. [146] The second reference to the post‑offence conduct is found at paras. 679–80 of the reasons: [679]    Post-offence conduct, if admissible, can provide circumstantial evidence of the culpability of the accused. Evidence of post-offence conduct must be relevant to a live issue and not subject to any exclusionary rule. It may also be excluded where its probative value is outweighed by its prejudicial effect. Such evidence has no probative value where an accused’s post-offence conduct is equally explained by, or is equally consistent with, two or more offences. That is to say, where the evidence cannot logically support an inference of guilt with respect to one crime rather than another (for example, murder as distinct from manslaughter) then it has no probative value and should not be admitted: R. v. White , 2011 SCC 13. [680]    Whether or not a given instance of post-offence conduct has probative value with respect to an accused’s culpability depends entirely on the specific nature of the conduct, its relationship to the evidence as a whole, and the issues raised at trial. There will be cases where, as a matter of logic and human experience, an accused’s post-offence conduct will support an inference regarding his level of culpability: White at para. 42. [147] The Crown says this is an unobjectionable statement of principle that reflects the judge’s awareness of the guiding principles. [148] The final reference is at para. 704 of the Trial Reasons: [704]    Mr. Haevischer arranged the immediate destruction of the victims’ cell phones, as well as the clothing he had been wearing at the time of the murders. This is circumstantial evidence suggesting that Mr. Haevischer was not only present at the crime scene but actively involved in the killings. Destruction of the clothing suggests that Mr. Haevischer knew it might contain blood or other forensic evidence tying him to the murders. That, in turn, suggests that he was not standing passively some distance away from the events going on in the suite. It is a reasonable inference that Mr. Haevischer arranged the destruction of the evidence to eliminate his detection as one of the perpetrators: White at para 42. [Emphasis added.] [149] The Crown says this paragraph is the last piece of an analysis of Mr. Haevischer’s culpability for murder, either as a co‑perpetrator or an aider or abettor. Before referring to the after‑the‑fact conduct, the judge had rejected as implausible Mr. Haevischer’s contention he was never inside suite 1505. She concluded Mr. Haevischer, Mr. Johnston and Person X were acting with a common purpose to kill Mr. Lal; the three intruders jointly and actively participated in the murders with the requisite intent; and there was a shared self‑interest in killing the other five victims who were witnesses to the murder of Mr. Lal. (ii) Discussion [150] Consideration of Mr. Haevischer’s after‑the‑fact conduct followed the judge’s recognition, in relation to the conspiracy charge, that she was required to estimate the cumulative effect of “several isolated doings” in the light of all surrounding circumstances. At para. 610, she observed: [610]    … As Moldaver J. stated in [ R. v. J.F. , 2013 SCC 12] at para. 52, where a person with knowledge of the unlawful object does something to further that object, with the approval of one of the existing conspirators, that is powerful circumstantial evidence from which membership in the conspiracy can be inferred. It follows, in my view, that all of the actions of an accused before, during and after the achievement of the unlawful object, must be considered -- and considered as a whole, not piecemeal -- in order to determine whether the only logical inference is the accused’s membership in the conspiracy. [151] It was in this light she first considered Mr. Haevischer’s after‑the‑fact conduct: [624]    … the jurisprudence is clear that all of the actions of an accused before, during and after the achievement of the unlawful object must be considered as a whole in determining whether the only logical inference is the accused’s membership in the conspiracy. [152] Reviewing that conduct at paras. 623–35 of the Trial Reasons, the judge placed most emphasis upon the events leading up to the day of the murders and the evidence of what occurred on October 19. We agree with the Crown’s description of the limited weight placed upon the after‑the‑fact conduct at para. 634 of the Trial Reasons, where the trial judge says that conduct “strengthened” the inferences she had drawn. [153] Mr. Haevischer’s after‑the‑fact conduct was also considered in relation to the murder charge: Trial Reasons at para. 704. [154] Again, however, the evidence of after-the-fact conduct plays a small role in the analysis. As the Crown notes, before addressing the after‑the‑fact conduct, the trial judge had found Mr. Haevischer was present in Mr. Lal’s apartment at the time of the murders: [701]    … It is not plausible to suggest (as do both accused) that one of the three [Red Scorpions] associates could -- or would -- stand by and do nothing while the victims in the suite were being kept under control, unexpected witnesses were arriving, and the risk of yet other unsuspecting persons stumbling onto the scene remained a significant possibility. [702]    The evidence concerning the timing of events and the scene the killers left behind leaves little doubt that the three [Red Scorpions] associates jointly and actively participated in the murders, and did so with the necessary intent. [155] As we have noted, the judge concluded her consideration of the after‑the‑fact conduct as follows: [704]    … Destruction of the clothing suggests that Mr. Haevischer knew it might contain blood or other forensic evidence tying him to the murders. That, in turn, suggests that he was not standing passively some distance away from the events going on in the suite. It is a reasonable inference that Mr. Haevischer arranged the destruction of the evidence to eliminate his detection as one of the perpetrators: White at para 42. [156] The concluding reference to White (2011) is to the observation in that case, previously cited by the judge, that there will be cases where, as a matter of logic and human experience, an accused’s post‑offence conduct will support an inference regarding his level of culpability. [157] The appellant, in our view, is correct in saying his destruction of his clothing does not support an inference regarding his culpability for murder. Another reasonable inference might have been drawn: he simply sought to destroy any evidence that would establish his presence at the killings, including clothing that might have been seen by those he encountered in the Balmoral parking lot or recorded on video cameras. Common sense does not suggest the only explanation for Mr. Haevischer’s destruction of his clothing was that it was blood‑stained. While his methodical after‑the‑fact conduct (like his actions leading up to and at the scene of the murders) was probative of his involvement in a conspiracy, the same cannot be said in relation to the murder charges. [158] The question on appeal, however, is not whether each and every inference drawn by the trial judge is the only inference that could be drawn from the evidence. It is, rather, as this Court stated in Duong , whether the critical inference essential to guilt was properly drawn: [64] In reviewing inferences drawn from circumstantial evidence, the evidence must be assessed cumulatively and not in a piecemeal fashion: R. v. Tahirsylaj , 2015 BCCA 7 at paras. 29 , 38. Thus, although individual pieces of circumstantial evidence may be “reasonably or rationally explained away”, the ultimate question is whether, on the whole of the evidence, the Crown has proven that the accused’s guilt is the only reasonable inference: Tahirsylaj at para. 38 . Individual items of evidence are “links in the chain of ultimate proof” and must not be examined separately and in isolation: [ R. v. Uhrig , 2012 ONCA 470] at para. 13 , citing R. v. Morin , [1988] 2 S.C.R. 346 at 361 . [159] In this case, the ultimate question was whether Mr. Haevischer jointly and actively participated in the murders. The inference he destroyed evidence after the fact with a view toward concealing that participation was inessential to the chain of proof. Here, as in R. v. Feil , 2012 BCCA 110, and R. v. Purchase , 2015 BCCA 211, the trial judge’s error is of the first type described in White (2011) : it is an error that appears significant in isolation but is insignificant in context because it only related to a minor aspect of the case that could not have had any effect on the outcome. This type of error is described in R. v. Alexander , 2015 BCCA 484 at para. 68, as an error that is harmless on its face or in its effect. [160] In its factum, the Crown urges us to apply the curative proviso of s. 686(1)(b)(iii) if we find the judge erred in assessing Mr. Haevischer’s after‑the‑fact conduct. Disregarding the evidence of after‑the‑fact conduct in relation to the murder charge, in our view, does not undermine any inferences crucial to Mr. Haevischer’s guilt. No substantial wrong or miscarriage of justice arose from the consideration of that conduct. In our opinion the curative proviso of s. 686(1)(b)(iii) is applicable. (d) Did the Judge Err by “Filling in the Blanks” (i) Positions of the Parties [161] The third error alleged by the appellant Haevischer in relation to the inferences drawn by the judge is of the sort described by Cromwell J. in Villaroman as follows: [26]      … There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury may unconsciously “fill in the blanks” or bridge gaps in the evidence to support the inference that the Crown invites it to draw. Baron Alderson referred to this risk in Hodge’s Case [(1838), 2 Lewin 227, 168 E.R. 1136]. He noted the jury may “look for — and often slightly . . . distort the facts” to make them fit the inference that they are invited to draw: p. 1137. Or, as his remarks are recorded in another report, the danger is that the mind may “take a pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of one connected whole”: W. Wills, Wills’ Principles of Circumstantial Evidence (7th ed. 1937), at p. 45; cited by Laskin J. in John [ v. The Queen , [1971] S.C.R. 781], dissenting but not on this point, at p. 813. [162] Mr. Haevischer says the trial judge fell into error by unconsciously filling in blanks and bridging gaps in the evidence to support the inference the Crown invited her to draw: Mr. Haevischer was a member of the conspiracy to murder Mr. Lal. [163] The Crown argued the only rational inference from all of the evidence is that Mr. Haevischer had been informed of the plan to murder Mr. Lal by the time he arrived at suite 1505. The judge addressed that critical question by weighing the following facts at paras. 625–27 of the Trial Reasons: a) Mr. Haevischer was a tattooed member of the gang with all of the obligations of loyalty that entailed; b) he had the same interest in protecting the gang’s drug turf and its reputation as did the other members of the group; c) he kept guns and ammunition in his apartment, and he was involved in acts of violence incidental to the drug trade; d) he had a significant association with Mr. Johnston, his gang mentor, with whom he was personally very close, like a brother; e) Mr. Johnston and Person X, key participants in the conspiracy, went to the Stanley to enlist the help of Mr. Haevischer on the day of the murders, apparently without any notice to him; and f) by doing so, Mr. Johnston displayed considerable confidence that he would assist without any hesitation, and Mr. Haevischer did so. [164] Mr. Haevischer says some bridging of gaps is necessary to move from these facts to the inference he was a party to the conspiracy to murder. He says the “simple fact” he might have had the same motive to kill Mr. Lal as Mr. Johnston and Person X is not proof they told him the plan involved a murder. Proof he had a broad shared motive is not proof the plan to kill was communicated to him. His significant association with Mr. Johnston is of no help in answering the question of whether Mr. Johnston told him of the plan to commit a murder. Finally, it is only by “filling in the blanks” that the judge concluded the purpose of the visit was to “enlist the help of Haevischer” and “Mr. Johnston displayed considerable confidence that Mr. Haevischer would assist without any hesitation”. [165] The judge placed weight upon the careful cleaning of guns and bullets that occurred at Mr. Haevischer’s apartment and the fact he changed his clothes and wore gloves as evidence he knew he was being enlisted to commit a crime involving violence. Mr. Haevischer says the nature of the activities of the gang was such that he could have been enlisted to commit “all manner of crimes involving guns but not necessarily violence”. Only by bridging gaps and filling in blanks was it possible to conclude the prospect of violence entailed murder. [166] The judge found Mr. Johnston and Person X turned up at Mr. Haevischer’s apartment without any apparent notice. There was no evidence from K.M. about conversation in the apartment. If Mr. Haevischer entered a conspiracy to commit murder, he must have done so between the time the others arrived at his apartment and when the trio arrived at the Balmoral. However, there was no evidence of conversation in the apartment and no evidence of conversation in the car. An inference of his involvement in a conspiracy can only be drawn from his actions, and Mr. Haevischer argues they are consistent with a conspiracy to commit any number of violent offences. [167] The judge placed weight upon the fact the plan to rob and murder Mr. Lal in an apartment building was fraught with risks, including the risk of an “armed standoff”. Mr. Haevischer says there was no basis to conclude what the men anticipated, or what they considered likely to occur. He argues the judge’s comments suggest the members of the conspiracy had an agreement to deal violently with anyone they encountered in apartment 1505. Mr. Haevischer argues that was not the conspiracy the Crown alleged or attempted to prove. [168] The judge concluded: [630]    … [T]he question is whether Mr. Johnston would enlist his close friend and associate for such a venture without telling him what the venture entailed. The suggestion that he would keep Mr. Haevischer in ignorance of the plan begs the question why Mr. Johnston and Person X enlisted his help at all. It is difficult to think of any reason for Mr. Haevischer’s enlistment other than his assistance to execute a plan involving multiple unknowns. To keep Mr. Haevischer in ignorance of the plan would surely have placed him, and the others, in harm’s way. To seek Mr. Haevischer’s assistance, yet keep him in ignorance of the plan to kill Mr. Lal, would be antithetical to the close personal and professional association between the two men. Had Mr. Johnston wanted, for some reason, to shield Mr. Haevischer from the full force of the plan, he would not have enlisted him at all. [169] Mr. Haevischer argues there are reasons why Mr. Johnston and Person X would enlist Mr. Haevischer’s help without telling him the true nature of the plan. For example, the possibility that if they told him the plan he might refuse to participate. While it was necessary he understand the role he was to play, he argues he could have been enlisted to fulfill a role such as a lookout without knowing the full plan. [170] Mr. Haevischer claims not to understand the proposition that keeping him in ignorance of the plan would have placed him, and the others, in harm’s way, arguing the suggestion imputes a level of rational forethought inconsistent with everything Mr. Johnston and Person X planned to do that day. [171] The appellant takes greatest exception to the judge’s view that keeping him in ignorance of the plan to kill Mr. Lal would be “antithetical to the close personal and professional association between the two men”. He concedes the judge’s conclusion might be tenable if the Crown had managed to prove Mr. Johnston always told Mr. Haevischer the full details of his plans. That was not the evidence. [172] The judge observed: [631]    On Mr. Haevischer’s part, one must ask whether it is reasonable to infer that he would accompany Mr. Johnston, his close [Red Scorpions] associate, on a venture involving cleaned and loaded guns, wearing clothing designed to conceal his identity and heading to a large residential apartment complex without asking what the venture entailed and the dangers he should expect to face at the Balmoral. Mr. Haevischer was no underling of Mr. Johnston; he was a tattooed member of the [Red Scorpions] with his own guns, his own drug lines and considerable history with the [Red Scorpions]. [173] Mr. Haevischer says the answer to the question posed by the judge is this: the irrational thinking that would have led Mr. Haevischer to participate in the event at all is exactly the same irrational thinking that would lead him to participate without knowing the full plan. [174] The Crown denies the judge filled in blanks and bridged gaps in the evidence in order to conclude that Mr. Haevischer became a member of the conspiracy to murder Mr. Lal. Neither Mr. Johnston nor Mr. Haevischer challenged the existence of some sort of plan against Mr. Lal. By the time the judge came to consider the question of Mr. Haevischer’s membership in the conspiracy, she had already accepted evidence that a conspiracy to murder Mr. Lal existed before October 19, 2007, and Mr. Johnston was a member of the conspiracy. Direct evidence was not necessary in order to prove Mr. Haevischer was a co‑conspirator. Membership in a conspiracy may be inferred from evidence of conduct that assists the unlawful objective: Trial Reasons at para. 578, citing R. v. J.F. , 2013 SCC 12 at para. 53. [175] In drawing the inference Mr. Haevischer became a member of the conspiracy to murder Mr. Lal before he entered Mr. Lal’s suite, the judge looked to Mr. Haevischer’s actions as a whole, before, during and after the achievement of the unlawful objective. [176] The Crown says the judge rejected as implausible the notion Mr. Johnston would not have told his close friend about the plan. It made no sense that Mr. Haevischer would accompany the two others without asking what they were about to do and what dangers he should expect to face. It was not in accord with common sense to infer Mr. Haevischer was enlisted to come along without playing any active role. The gang had a reputation for using violence and intimidation to advance and expand its drug trafficking business. The group motive ascribed to the murder of Mr. Lal was to the end of advancing both the gang’s business and reputational interests. Mr. Haevischer himself “was involved in acts of violence incidental to the drug trade”. [177] The Crown says the appellant Haevischer takes a piecemeal approach to this evidence. While it is true the “simple fact” Mr. Haevischer might have had the same motive as Mr. Johnston to kill Mr. Lal is not proof they told him the plan involved a murder, it is a factor that can be weighed in determining what inferences to draw. It was not an error of law to give some weight to that evidence. [178] The Crown submits the fact that a piece of circumstantial evidence does not in and of itself prove the fact in issue is not the end of the question. The trial judge did not conclude Mr. Haevischer knew of and agreed to participate in the conspiracy simply because he and Mr. Johnston had a close relationship. In contrast to Mr. Haevischer’s piecemeal approach, the judge properly considered as a whole the evidence concerning Mr. Haevischer’s words and actions in drawing the inference Mr. Haevischer knew of the plan and agreed to participate in it. The Crown argues absence of direct evidence concerning their objective that afternoon does not detract from the availability of the inference; on the totality of the evidence, Mr. Haevischer joined the conspiracy: Widdifield at para. 36. [179] The Crown says the judge was not filling in gaps by referencing aspects of the evidence such as the group motive and the close association between Mr. Haevischer and Mr. Johnston. She was carrying out the task the law of circumstantial evidence imposes upon her. That is, she carried out a close analysis of all the evidence and drew inferences she was entitled to draw. [180] In short, the Crown submits, the argument here resembles that rejected in Vickers in the following terms: [29]      … Mr. Vickers’ argument falls into the error of taking pieces of evidence in isolation and arguing that certain inferences should not be drawn from them. The proper approach, however, is to examine the totality of the evidence. In large measure, his argument reargues his case at trial. He contends that the judge should have found facts different from those he found or drawn inferences other than those he drew. In doing this he does not point to any palpable and overriding error. Indeed, after acknowledging that the judge was entitled to reject his evidence, he attempts to buttress his argument by impliedly arguing that the judge was wrong to do so. (ii) Discussion [181] Insofar as the conspiracy charge against Mr. Haevischer is concerned, it cannot be said the trial judge failed to consider inferences inconsistent with guilt. She clearly addressed and discounted both the inference Mr. Haevischer was told nothing of the plan and the inference he was told only of the plan to rob Mr. Lal of his drugs and money. [182] In our view, the Crown correctly asserts the allegation the judge “bridged the gaps” or “filled in the blanks” is essentially a challenge to the inferences drawn (or rejected) by the trial judge. It requires us to ask whether the trier of fact, acting judicially, could reasonably be satisfied the accused’s guilt was the only reasonable conclusion available on the totality of the evidence. [183] There was evidence in support of all of the findings set out at paras. 625–27 of the Trial Reasons upon which the inference Mr. Haevischer was a party to the conspiracy was based. None of those findings is challenged. They include findings with respect to Mr. Haevischer’s membership in and fealty to the gang, his interest in the gang’s objectives, his regular involvement in violence, and his close association with Mr. Johnston. All were reasonably relied upon by the trial judge in inferring Mr. Johnston went to Mr. Haevischer’s apartment with a view toward enlisting him in a conspiracy and did so successfully. The judge, in our opinion, could reasonably be satisfied his commission of the offence charged on Count 7 was the only reasonable conclusion available on the totality of the evidence. [184] We do not accede to the argument the judge erred by overlooking or misapprehending the evidence Mr. Johnston was an inveterate liar when she concluded he must have been forthright with Mr. Haevischer about the plan to murder Mr. Lal. The evidence was that there was a particularly close relationship between Mr. Haevischer and Mr. Johnston; they were “like brothers”. Evidence Mr. Johnston lied to others and that gang members are generally treacherous does not detract from the evidence upon which the judge relied in finding Mr. Johnston would not have enlisted Mr. Haevischer on this particularly dangerous job without telling him what was planned. We see no error in the judge’s application of common sense and reason in addressing the question of Mr. Haevischer’s knowing participation in the murder conspiracy. [185] In particular, we do not accede to the argument that the judge ought not to have drawn inferences consistent with reason and common sense because those who commit mass murder are not amenable to reason. It is an argument, in effect, that no inferences can be drawn in relation to horrific crimes. It is at odds with the extensive record of the purposive and intentional (although violent and criminal) conduct of the gang implicated in these murders. Did the Trial Judge Err in Her Application of the Principles of Party Liability in Finding Mr. Haevischer Guilty of First Degree Murder? (a) Did the Judge Err in Law in Relation to Party Liability? (i) Positions of the Parties [186] The appellant contends the trial judge erred in finding him guilty as a principal to the offence of murder pursuant to s. 21(1)(a) of the Criminal Code and submits her conclusion, in the alternative, he was guilty as an aider or abettor pursuant to s. 21(1)(b) or (c) of the Criminal Code , was equally faulty. [187] The relevant provision reads as follows: 21. (1) Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. [188] The appellant contends the trial judge was required to set out in her reasons the basis upon which she found the Crown had proved all elements of each of the six separate counts of murder. He says she did not do so and, in particular, she failed to explain how she found the Crown proved the critical element of intent. [189] Further, he says the judge erred in law in considering the law to be indifferent to whether the accused personally committed the offence as a principal or aided or abetted another in committing the offence, and in seeing no need to distinguish between the possible routes to a conviction under s. 21(1). The judge wrote: [665]    Section 21(1) is designed to prevent the acquittal of an accused who was either a principal or an aider/abettor, but whose precise role in the killings is unclear. Both forms of participation are not only equally culpable, but are to be treated as one single mode of incurring criminal liability: Thatcher , at para. 72. Thus, where evidence of concerted action in the commission of the offence exists, it is open to the Court to convict all of the accused either as principals or as aiders or abettors pursuant to s. 21(1), even though the extent of the individual participation in the violence is unclear: R. v. Wood (1989), 51 C.C.C. (3d) 201 (Ont. C.A.) at 220; see also R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.) at para. 152. [190] The trial judge began her analysis of party liability by stating the Crown’s theory of liability, and by offering a general statement about the nature of party liability: [663]    The Crown in the present case submits that the circumstantial evidence establishes that Mr. Haevischer and Mr. Johnston, along with Person X, pursuing the objective of the conspiracy to murder Corey Lal, forced their way into suite 1505 and jointly participated in confining and killing the six victims. [664]    It is the Crown’s primary position that Mr. Haevischer and Mr. Johnston are liable for the six counts of first degree murder as co‑principals under s. 21(1)(a). However, as observed by Dickson C.J.C. in R. v. Thatcher , [1987] 1 S.C.R. 652 at para. 73, the law is indifferent whether the accused personally committed the offence as a principal or aided or abetted another in committing the offence, so long as the Court is satisfied beyond a reasonable doubt that the accused did one or the other. [191] The appellant says this analysis of Thatcher is not entirely accurate. He says the focus in Thatcher was on the question of whether s. 21 precludes a requirement of jury unanimity as to the particular nature of the accused's participation in the offence charged. The Court held jurors should not be required to make a choice on “a subject which is a matter of legal indifference”. However, when an accused is tried by a judge alone, the appellant submits, the matter is not one of indifference; the judge has an obligation to deliver reasons that “justify and explain the result ... and enhance meaningful appellate review”: R. v. Sheppard , 2002 SCC 26 at paras. 24–25. (ii) Discussion [192] In our view, the criticism of the judge on this ground is unfounded. First, as the Crown points out, the judge gave extensive reasons for finding Mr. Haevischer and Mr. Johnston guilty of first‑degree murder of all six victims. The plan to kill one became a plan to kill six in order to eliminate witnesses. The killings were considered and deliberate, if only for a brief period before they were carried out. [193] Further, however, the legal proposition upon which the appellant’s claim is founded has been recently advanced in very similar terms and rejected by this Court. In Russell , Newbury J.A., writing for the Court, said at paras. 57–58: [57]      The appellants say the trial judge erred in adopting the principle expressed in R. v. Haevischer to the effect that “the law is indifferent whether the accused personally committed the offence as a principal or aided or abetted another in committing the offence, so long as the court is satisfied beyond a reasonable doubt that the accused did one or the other.” (At para. 664, citing R. v. Thatcher [1987] 1 S.C.R. 652 at 694.) Counsel contends that the issue addressed in Thatcher was jury unanimity. The Supreme Court of Canada decided that it was open to a jury to be divided as to whether an accused committed the crime personally or aided another in committing it. In the appellants' submission, however, the same rule does not apply in a trial before a judge alone. [58]      Counsel say this distinction is significant in a judge-alone trial because the judge has an obligation to deliver reasons which “justify and explain the result ... and enhance meaningful appellate review”. (See R. v. Sheppard 2002 SCC 26 at paras. 24-5.) With respect, I do not read Thatche r as being limited to jury trials. To the contrary, I read Chief Justice Dickson's comments at 694 as establishing a more general principle: ... s. 21 has been designed to alleviate the necessity for the Crown choosing between two different forms of participation in a criminal offence. The law stipulates that both forms of participation are not [only] equally culpable, but should be treated as one single mode of incurring criminal liability. The Crown is not under a duty to separate the different forms of participation in a criminal offence into different counts. Obviously, if the charge against Thatcher had been separated into different counts, he might well have been acquitted on each count notwithstanding that each and every juror was certain beyond a reasonable doubt either that Thatcher personally killed his ex-wife or that he aided and abetted someone else who killed his ex-wife. This is precisely what s. 21 is designed to prevent. [194] Similarly, in R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.), which was cited by the trial judge, Doherty J.A. wrote at para. 152: It is beyond question that where two persons, each with the requisite intent, act in concert in the commission of a crime, they are both guilty of that crime. Their liability may fall under one or more of the provisions of s. 21(1) of the Criminal Code : R. v. Sparrow , (1979), 51 C.C.C. (2d) 443 (Ont. C.A.) at 457‑58. [195] The judge did not misinterpret Thatcher or misapprehend the principle of law stated therein. She correctly stated the law and correctly applied it to find each appellant guilty either as a co‑principal or as an aider or abettor even though the extent of the individual participation of each is unclear. [196] In short, in our view there is no basis upon which we can conclude the trial judge erroneously described the law with respect to liability as a principal or as an aider or abettor. (b) Did the Judge Err in Finding Mr. Haevischer Liable as a Principal Under s. 21(1)(a) ? (i) Positions of the Parties [197] The appellant Haevischer, relying on this Court’s decision in R. v. Podolski , 2018 BCCA 96 (which, in turn, cites R. v. Martineau , [1990] 2 S.C.R. 633), says the onus upon the Crown in the murder case requires it to prove beyond a reasonable doubt he had the subjective foresight that his participation in the events of October 19 would cause the death of six separate victims. He contends the Crown did not allege or tender any evidence to prove any broader intent than the conspiracy to commit the murder of one person, Mr. Lal. That intent was described by the judge as follows: [690]    Mr. Johnston and Mr. Haevischer, together with Person X, were members of a conspiracy to murder Mr. Lal. The common purpose of the three men was to gain access to suite 1505 and kill Mr. Lal. They achieved that purpose. [198] He submits the Crown failed to prove his intent to kill Mr. Lal survived the change in circumstances encountered upon entering the suite. (He cautions that the fact Mr. Lal was killed some time after the men entered the apartment is not such proof). [199] The critical findings of intent are in the following passages: [702]    The evidence concerning the timing of events and the scene the killers left behind leaves little doubt that the three [Red Scorpions] associates jointly and actively participated in the murders, and did so with the necessary intent. [703]    Although there need only be evidence of joint participation, there is also strong evidence of common purpose. The two accused and Person X were acting in concert to kill Mr. Lal as members of a conspiracy to that end. They arrived at the suite with that common purpose. Both Mr. Haevischer and Mr. Johnston had the subjective intent to murder Mr. Lal, and they achieved that objective. They had the same self-interest in killing the other five victims to eliminate witnesses to their involvement in the murder of Mr. Lal. [200] In the final sentence of this passage, the judge finds Mr. Haevischer and Mr. Johnston had a motive for the killings: to eliminate witnesses. The appellant suggests the judge did not address the basis on which she concluded Mr. Haevischer acted pursuant to that motive; having a motive and acting on it are different things. [201] Mr. Haevischer argues nothing done in the apartment was necessarily done for the sole purpose of the killings, except the killings. For example, he says, making everyone present lie down on the floor is as consistent with a robbery as it is with a plan to murder. If all Mr. Haevischer did was make the victims lie on the floor to facilitate a robbery, while the other two men decided to shoot them, he is not a co‑principal to a murder. The appellant submits the Crown did not prove how “Mr. Haevischer’s intent expanded from the alleged agreement to kill one person, to an actual intent to kill six”. [202] In response, the Crown says the judge explained in detail her reasons for finding the three men were acting in concert guided by a group motive to achieve the goals of the gang. Her conclusions were largely drawn from a careful and thorough examination of all the evidence available with respect to what happened in suite 1505 from 2:30 p.m. until 2:45 p.m. on October 19, 2007. [203] The trial judge expressly rejected the contention Mr. Haevischer did not enter the suite. She found when Mr. Haevischer, Mr. Johnston and Person X arrived at the suite, they took and maintained control of four individuals then present, and they must have done so for the 10‑minute interval preceding the arrival of Mr. Narong and the ensnarement of Mr. Mohan. The victims were separated into two groups, and they were in submissive positions prior to their deaths: face down with their arms by or above their heads. She inferred the victims had been commanded by the perpetrators to assume these positions. The apartment and victims were searched, and money and cell phones were taken. The number and direction of the shots fired, the fact two weapons were used, and the positions of the victims suggested all six victims were shot at the same time and there were two shooters. The judge concluded it defied common sense to say the non‑shooter would have stood around and done nothing while his two companions took control of a situation that began with four victims and expanded to include six victims over a ten‑minute period. [204] In the circumstances, she concluded the only reasonable inference was the non‑shooter actively participated in the confinement of the six victims and their subsequent murders. She explained how she found Mr. Haevischer to have the mens rea for murder under s. 21(1)(a): [701]    … It is not plausible to suggest (as do both accused) that one of the three [Red Scorpions] associates could -- or would -- stand by and do nothing while the victims in the suite were being kept under control, unexpected witnesses were arriving, and the risk of yet other unsuspecting persons stumbling onto the scene remained a significant possibility. [702]    The evidence concerning the timing of events and the scene the killers left behind leaves little doubt that the three [Red Scorpions] associates jointly and actively participated in the murders, and did so with the necessary intent. [205] The Crown places some weight upon the judge’s analysis of “planning and deliberation” and whether first degree murder had been made out under s. 231(2). She concluded once Mr. Haevischer and his companions entered suite 1505 and encountered individuals other than Mr. Lal, they “were immediately faced with a stark choice: either abandon the plan to kill Mr. Lal or proceed with that plan and deal with the other three persons who would become eyewitnesses to the killing”: Trial Reasons at para. 712. [206] The Crown notes the judge explicitly found the crime scene evidence to be consistent with a plan to kill and inconsistent with a plan to commit robbery or some other offence. She drew what she considered to be an “inescapable inference” from this physical evidence: [714]    None of the victims was a physical threat to the perpetrators; all six were lying defenceless on the floor. Once the victims were in submissive positions, the perpetrators could easily have left the suite without killing them. They decided against that option. Instead, they shot each of the victims. The crime scene evidence indicates that the shootings were calculated and deliberate executions, carried out after real consideration, not the random or scattered shots of a panicked shooter reacting impulsively to an unexpected situation. [715]    The inescapable inference is that the other five persons in the suite were killed because they could identify the killers of Mr. Lal. [716]    The decision was one based on necessity and self-preservation, taken in order to achieve the original plan -- one conceived with thought and deliberation – of killing Mr. Lal. The decision to kill all six was not the original plan, but it became the plan. The perpetrators made a decision, with time to assess their situation, to proceed with the plan to kill Mr. Lal, and to execute the other five people in the suite to avoid getting caught. (ii) Discussion [207] We can see no error in the trial judge’s conclusion the physical evidence in this case was consistent only with the domination and execution of six victims carried out in concert by individuals who had conspired to kill one person and then shared a group motive in killing the witnesses to that murder. In the words this Court used in Robinson , it is not open to us to conceive of inferences or explanations that are not reasonable possibilities, nor to attempt to revive evidence or inferences the trial judge reasonably rejected. If the appellant is to succeed, an inference other than guilt must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. That standard is not met in this appeal. (c) Did the Judge Err in Finding Mr. Haevischer Liable as an Aider or Abettor? (i) Positions of the Parties [208] Mr. Haevischer submits, to support a conviction as an aider or abettor, the Crown must prove the accused actually did something for the purpose of aiding or abetting; it is not enough to show the accused’s actions only had the effect of aiding or abetting. In R. v. Helsdon , 2007 ONCA 54, Associate Chief Justice O’Connor described the mens rea needed to support a conviction as an aider: [28]      … The starting point for determining the mens rea required for s. 21(b) is the language of the paragraph. The language of para. (b) is very specific. It requires that an accused do or omit to do something for the purpose of aiding another to commit an offence . On the face of it, a requirement that an accused do something for the purpose of achieving a prohibited result imposes a very high degree of subjective mens rea . “Purpose” under s. 21(b) is synonymous with “intention”: R. v. Hibbert (1995), 99 C.C.C. (3d) 193 (S.C.C.). While the Criminal Code does not contain a definition of either “purpose” or “intention”, the normal meaning of those words suggests that a person must subjectively advert to a specific objective and that he or she, therefore, must have knowledge of the facts that constitute that objective. [Emphasis in original.] [209] In her review of the principles relating to aiding and abetting, the trial judge referred to the judgment of Justice Charron in R. v. Briscoe , 2010 SCC 13, in which, at paras. 14–17, Charron J. identified key considerations where the Crown alleges either aiding or abetting. Certain elements of the offence of aiding and abetting murder were described as follows: [18] … Doherty J.A., in referring to this Court’s decision in R. v. Kirkness , [1990] 3 S.C.R. 74, rightly states that the aider to a murder must “have known that the perpetrator had the intent required for murder”. While some of the language in Kirkness may be read as requiring that the aider share the murderer’s intention to kill the victim, the case must now be read in the light of the … analysis in Hibbert . The perpetrator’s intention to kill the victim must be known to the aider or abettor; it need not be shared. Kirkness should not be interpreted as requiring that the aider and abettor of a murder have the same mens rea as the actual killer. It is sufficient that he or she, armed with knowledge of the perpetrator’s intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed. [210] In order to secure a conviction against Mr. Haevischer as an aider, the Crown had to prove he did something for the purpose of assisting the shooters, knowing they intended to kill the six victims. The appellant says the trial judge did not adequately address these questions. [211] The judge’s analysis on the application of s. 21(1)(a) and (b) is set out in this extract from the Trial Reasons: [706]    … [I]f I am wrong in my conclusion that each of Mr. Johnston and Mr. Haevischer was a principal in the murders, I am satisfied that the evidence outlined above amply establishes that one of them was a principal in the murders as a shooter, and that the other was at the very least an aider or abettor to the shooters. The non-shooter, as aider or abettor, possessed the requisite intent and actively assisted the shooters from the time the first victims were confined until all six were executed. As such, he was a significant contributing cause of the six deaths as required for second degree murder. [707]    To be clear, my alternative conclusion does not rest on a different characterization of the facts relating to the non-shooter. I do not suggest that the conduct of the non-shooter as an aider or abettor is any different factually from the conduct I have concluded renders him a co-principal. If I am wrong in law to conclude that the conduct of the non-shooter renders him a principal under subsection (a) of s. 21(1), then, in the alternative, it renders him an aider or abettor under subsection (b) or (c). As discussed, s. 21(1) is designed to prevent the acquittal of an accused who is either a perpetrator or an aider/abettor, but whose precise role in the killings is unclear. Both forms of participation are treated as one single mode of criminal liability: Thatcher , at para. 72; [ R. v. Rojas , 2006 BCCA 193], at para. 65. [212] The appellant contends the judge’s analysis of his liability as an aider or abettor suffers the same flaw as the analysis of his liability as a co‑principal: there is no analysis of the basis on which it can be safely concluded he knew the shooters intended to kill the victims. He says it is not enough that something he did assisted the shooters; the Crown had to prove he did so for the purpose of aiding them, knowing they intended to shoot the six victims. [213] The Crown says the judge explained the same factual matrix that grounded the conviction as a principal grounded her finding of liability for the non‑shooter (whoever he was) as an aider or abettor. A “stark choice” was made to kill all of the victims once the perpetrators were inside suite 1505. It is not plausible the non‑shooter simply stood by and did nothing. The only plausible explanation, inferred from all of the evidence, is the three men, acting in concert, were co‑principals or the non‑shooter assisted by corralling and confining the victims. [214] In response to the argument the Crown failed to prove the appellant assisted the shooters knowing they intended to shoot the victims , the Crown says it is reasonable to infer when the victims are lined up in prone positions such that they can be shot execution‑style in the back of their heads, the person assisting is well aware of what is about to happen. In Podolski , this Court approved the judge’s instruction the jurors could rely on the common sense inference – a sane and sober person intends the natural and probable consequences of his voluntary actions – to find the conduct of an accused would naturally aid and abet the principal offender and the accused therefore knew and intended that his conduct would aid or abet the principal offender: at para. 237. The Court further held: [258]    If the jurors accepted some or all of this evidence, it would have been open to them to find the requisite murderous intent was proved. In this regard, we note that direct evidence is not required to establish intent; indeed, it is rarely available. As a result, the “common sense inference” is a standard jury instruction on the element of intent in most jury charges. Absent evidence to the contrary, intent may be inferred from an accused’s conduct by an application of the common sense inference: R. v. Oluwa (1996), 107 C.C.C. (3d) 236 at paras. 87-88 (B.C.C.A.). (ii) Discussion [215] Given our conclusion with respect to the finding Mr. Haevischer was a principal to the offence, it is unnecessary to address the argument the judge erred when she concluded, in the alternative, he was “at the very least” an aider or abettor. We can see no cause to interfere with the judge’s conclusion Mr. Haevischer, Mr. Johnston and Person X dominated the victims and collectively put them in the positions in which they were murdered. As the conclusion Mr. Haevischer was an aider and abettor did not rest upon “conduct of the non‑shooter as an aider or abettor [that] is any different factually from the conduct [that] renders him a co‑principal”, no distinct ground of appeal can succeed under this head. Did the Trial Judge Err in Favouring Inferences Urged by the Crown, Rather Than Those Suggested by Mr. Johnston? (a) Positions of the Parties [216] Mr. Johnston raises two distinct arguments on appeal. First, he contends the trial judge erred in preferring inferences sought by the Crown over competing inferences of equal strength. His second argument, which relates to the manner in which the judge addressed the scope of the exclusion of Person X’s evidence, is addressed below. [217] Mr. Johnston takes issue primarily with one key inference drawn by the trial judge: he was in suite 1505 when the shootings occurred. He argues this was an inference drawn from Person Y’s evidence regarding two intercepted conversations that occurred while Person Y was acting as a police agent: one on February 17, 2008, and another on March 23, 2008. He says his statements in the intercepts, taken at their highest, supported an inference he was aware of a plan to rob Mr. Lal, but not a plan to murder him, and the statements do not support the inference he was in the room at the time of the offences. [218] Appreciation of this submission requires a brief review of the evidence with respect to the intercepts. As we have noted, recordings and transcripts of intercepted conversations between Person Y and Mr. Johnston were introduced at trial. Person Y testified with respect to the recorded conversations to the effect Mr. Johnston used gestures to answer some of the questions put to him, evidently reluctant to speak openly with respect to the killings. The evidence is reviewed in detail at paras. 426–62 of the Trial Reasons and summarized at para. 39 above. We repeat the material evidence below. [219] On March 23, 2008, Mr. Johnston is recorded as saying, in response to the question why guns were used in Mr. Lal’s apartment: I don’t know. I don’t know the whole story. I don’t know the plan. All I know is I was told to do somethin’, and this person was supposed to do this, and like I did what I had to do. [220] Person Y testified to the hand gestures Mr. Johnston used during the above exchange. When Mr. Johnston said he was told to “do somethin’”, he pointed toward his eyes. Person Y said this meant Mr. Johnston’s job had been to “keep point” or be on the lookout. When Mr. Johnston referred to the other person doing “this”, he made a gun gesture with cocked thumb and forefinger and middle fingers extended. [221] In the face of persistent questions by Person Y, angry his gun had been left in the apartment, Mr. Johnston is recorded saying: I watched – I watched him do this on. Both of them. [222] Person Y testified when Mr. Johnston said he watched them do “this”, he made a gun gesture shooting downwards with thumb cocked and forefinger and middle finger extended. [223] Still later in the intercepted discussion, Mr. Johnston is recorded saying: I was just told to get this and everybody else like – [224] Person Y testified when Mr. Johnston said he was told to get “this”, he rubbed his fingers together to indicate money. When he said “everybody else like”, Mr. Johnston again made the gun gesture. [225] The trial judge held the recorded statements and the accompanying gestures “support[] the inference Mr. Johnston saw the killings as they occurred, and was therefore present at the scene at that time”. The trial judge also took from these comments that Mr. Johnston “was aware the plan involved the shooting of someone”. [226] Mr. Johnston says when the judge found he, Mr. Haevischer and Person X “jointly and actively participated in the murders”, she was clearly placing considerable weight on the inference Mr. Johnston was in the suite at the time the shooting occurred. Specifically, given her view the decision to kill witnesses was not the original plan, but “became the plan” at some point, Mr. Johnston says the trial judge must have inferred he was in the room when the plan changed. [227] Similarly, her conclusion, in the alternative, with respect to aiding and abetting, was founded upon the inference whichever of the three perpetrators was not a shooter “actively assisted the shooters from the time the first victims were confined until all six were executed”. [228] In closing submissions, counsel for Mr. Johnston argued an alternate inference could be drawn from the evidence as a whole: Mr. Johnston was part of a plan to rob, not kill, Mr. Lal; and the gesture described by Person Y was open to an alternate interpretation – Mr. Johnston was describing the use of Windex to clean the firearms in Mr. Haevischer’s apartment in the hours before the killing. The cleaning of the guns had been discussed in the prior intercepted discussion on February 17, 2008. [229] The judge rejected this argument because a gesture had not been used when cleaning guns with Windex had been discussed in February: Trial Reasons at para. 461. Mr. Johnston was apparently less reticent to discuss that topic than the circumstances surrounding the killings. Further, Person Y’s interpretation of the gesture as a gun firing downward was not challenged in cross‑examination. [230] Mr. Johnston says rejection of the argument the gesture in question was intended to describe cleaning the guns should not have led to the inference Mr. Johnston was in the room at the time of the killings. He says the “downward gun” hand gesture was as consistent with a description of confinement at gunpoint as it was with Mr. Johnston having observed the shooting, and he was recorded as telling Person Y more than once he was not in the room. [231] He contends the judge did not address possibilities other than the interpretations of the gestures described by Person Y consistent with his guilt. Further, he says the judge erred in focusing upon what Mr. Johnston did not say (it was a robbery that went horribly wrong), rather than what he did say, specifically his numerous denials he was in the room. In effect, he contends, the judge fell into the error identified in Villaroman by “filling in the gaps” in the evidence and preferring the inference invited by the Crown to other plausible theories. [232] Mr. Johnston says there was ample evidence before the Court, in the intercepts, to support the alternate plausible inference he was not in the room at the time of the shooting, and was not aware of all of the details of the plan. He says this plausible theory grounded in the evidence was not addressed by the judge. [233] The clearest reference to Mr. Johnston not being present at the time of the shootings came in the second recorded conversation between Mr. Johnston and Person Y, on March 23, 2018, reproduced, in part, above. Person Y pressed Mr. Johnston about details of the shootings. Mr. Johnston said unequivocally he did not have a firearm, and he did not know who used which of the two firearms used in the killings. He also told Person Y, in response to a question about why guns were used at all: “I don’t know. I don’t know the whole story. I don’t know the plan.” [234] In response to Person Y asking him why Person X asked him for his firearm, Mr. Johnston said he had no answers to Person Y’s questions. Finally, Person Y pointedly asked Mr. Johnston why the shooting happened at all, and whether it was because Person X panicked: Y          …Like, dude, how did it end up—end up being six people? … Did—did—did—did—Did [Person X] panic? Is that what happened? MJ       I wasn’t inside (ph), man. The—You know that. You—and [Person X] has already told you [235] This last statement, “Person X has already told you”, suggests Person X had previously advised Person Y that Mr. Johnston was not inside the suite at the time of the killings. Mr. Johnston says this statement is consistent with a willsay statement of October 24, 2011, describing Person X’s evidence. [236] Mr. Johnston also implied in a conversation on February 17, 2008, that he was not in the suite at the time of the shootings. At several points, Person Y expressed outrage over the fact his DNA was recovered from one of the firearms used in the offence. Mr. Johnston denied knowing what happened to the firearms after the offence: Y          Okay but where what where was the gun left? Did you see okay [Person X]. MJ       I don’t know. I really don’t know. You have to talk to him. Y          Okay but he told me they boiled them dude. Did you see him boil my the gun? MJ       No. I don’t know anything about it man. Y          Okay this is the thing though man. That mother-fucker got a gun from me man right … before he went, alright? I I didn’t know he was gonna use the fuckin thing number one. Number two fuckin uh uh he told me he it was bur [ sic ] that he that he boiled. I I never even heard of that shit in the first fuckin place, man, you were with him. If you didn’t see fuckin uh how’s that gonna make sense man. They want to get my DNA man, to put it on … (indiscernable). Don’t fuckin lie to me then alright. Would he have told his girlfriend about that shit? MJ       I don’t think so. Last thing I want to do is talk about something I know nothing about whatsoever. [237] Person Y agreed in cross‑examination Person X told him he had boiled the guns in the suite. There was some physical evidence this had occurred. In light of this evidence, Mr. Johnston argues his professed ignorance of what happened inside the suite (in the recorded February conversation) is supportive of the inference he was not inside the suite at the time of the shootings. [238] He says the trial judge failed to resolve these contradictions in the intercepts. He argues the trial judge was obliged to consider the evidence as a whole, and in particular, whether the Crown had disproven other rational inferences that were, in this case, clearly before her in the form of his own recorded statements. Mr. Johnston’s words “I don’t know the plan” in particular were supportive of the theory he did not know of the plan to murder Mr. Lal. [239] In response, the Crown says this ground of appeal amounts to a disagreement with the judge over two specific inferences she drew. In advancing the argument, the Crown submits, the appellant engages in a piecemeal examination of the circumstantial evidence (looking at particular responses to questions asked of him by Person Y), contrary to law: Vickers at para. 29; Bransford at para. 56. Further, he wrongly seeks to have inferences inconsistent with guilt (his absence from the room at the time of the killings) drawn from evidence the trial judge implicitly, but necessarily, rejected in making her findings of fact. (b) Discussion [240] We do not accede to the argument the trial judge did not consider inferences other than those consistent with the guilt of Mr. Johnston. In light of all of the evidence consistent with Mr. Johnston being a party to the conspiracy to murder Mr. Lal, it was open to the judge to conclude there was no logical inference other than that which she drew. There was evidence Mr. Johnston was conscripted by Mr. Bacon to murder Mr. Lal, and at the time he was conscripted the plan was to go to Mr. Lal’s stash house, take all his money and drugs, and kill him. The planning, preparation and execution of the plan, described in detail by the trial judge, was consistent with the existence of such a conspiracy. [241] Mr. Johnston’s statements “I don’t know the whole story” and “I don't know the plan” when asked why Mr. Lal was shot in his apartment rather than being strangled, were followed immediately by a confession of what Mr. Johnston did know: “All I know is I was told to do somethin', and this person was supposed to do this, and like I did what I had to do.” [242] Person Y testified these words were accompanied by gestures: first, Mr. Johnston pointed to his eyes, indication he was supposed to keep watch, and, then, when he referred to the others doing “this”, he made a gesture indicating the use of a gun. [243] Taken as a whole, the statement does not undermine the conclusion the only reasonable inference that could be drawn was Mr. Johnston was part of the conspiracy to murder Mr. Lal. [244] While we do not agree with the appellant’s argument that the conclusion he was in the room at the time of the murders was essential to his murder conviction, we see no reason to disturb the trial judge’s conclusion he was, in fact, in the room. First, her inference Mr. Johnston and Person X recruited Mr. Haevischer to assist because this was a three‑person job was reasonable. It was consistent with the common sense assumption three individuals would not prepare as these three did, only to have one remain outside the apartment when their presence inside might be necessary. [245] Further, and more importantly in our view, there is no basis to disturb the trial judge’s conclusion Mr. Johnston told Person Y he saw the victims executed. The trial judge gave cogent reasons for dismissing the argument the words and gestures described by Person Y were in reference to the guns being cleaned in Mr. Haevischer’s apartment. That theory was not suggested to Person Y. [246] The suggestion Mr. Johnston’s statement to Person Y was only an admission to having seen guns used to intimidate and dominate the victims was neither put to Person Y nor argued at trial. It is inconsistent with the evidence of Person Y, who described the gesture made by Mr. Johnston as depicting persons “shooting downward”. He did not describe the guns simply being brandished to threaten the victims. He testified that as Mr. Johnston said “I watched them do this” he made a gesture. Crown counsel asked, “Okay. What's the gesture that you just showed?” He answered, “Like shooting down”. [247] That expression was repeated later, in the following exchange: Q.        And then over on the top of page 167 [of the transcript of the intercept], he says: I watched -- I watched him do this on both of them. Which -- A          “I watched them do this”, like this. And he says “both of them” and he was referring to Blake and [Person X]. Q         Okay. What's the gesture that you just showed? A          Like shooting down. Q         Okay. Can -- can you stand up and show that? Because I don't think anyone could see. So the -- A          Like this. Q         -- the thumb cocked with the forefinger -- sorry, the pointer finger and the middle finger -- A          Yeah, like -- like -- Q         -- in a gun gesture? A          -- like shooting -- Q         Downwards? A          Yes. [248] The trial judge noted of Person Y’s testimony with respect to the gestures, at para. 457: He was precise and clear in the demonstrations he gave of them, particularly with respect to the gun gestures. Person Y was adamant that what he saw in the stairwell was Mr. Johnston on each of the three occasions mimicking the shooting of a gun as he spoke of what was to occur, and had occurred, at the murder scene . I accept his evidence about the gestures. [Emphasis added.] [249] Having accepted the testimony that Mr. Johnston admitted to Person Y he saw the shootings, it was unnecessary for the judge to discount expressly the possibility Mr. Johnston might not have entered the room and might not have been present when the decision was made to kill all of the witnesses. [250] While the conclusion Mr. Johnston was aware of the plan and participated in the conspiracy was an inference, the finding he was in the room when the killings occurred was a finding of fact founded upon the acceptance of the evidence of Person Y that Mr. Johnston made admissions clearly establishing his presence when the killings occurred. The trial judge concluded: [462]    Considered as a whole, Mr. Johnston’s comments to Person Y on the night of the murders and during the scenarios are an acknowledgment that he was aware of a plan, one which involved a shooting, and that he had a specific role to play in it; that he was present for the cleaning of the guns in preparation of carrying out the plan; that he was present at the crime scene during the murders; and that he provided assistance in the carrying out of the plan. [251] In our view, there is no palpable and overriding error or misapprehension of the evidence that would permit us to interfere with the judge’s fact‑finding. The finding Mr. Johnston was in the apartment at the time of the killings is a complete answer to the argument some inference other than that should have been drawn from his statements to Person Y. Did the Trial Judge Err by Failing to Address the Scope of the Exclusion of Person X’s Evidence, Causing Particular Harm to Mr. Johnston? [252] As his second individual ground of appeal, Mr. Johnston expands upon the joint argument the appellants were wrongly excluded from part of the proceedings, arguing he suffered particular prejudice as a result of the order excluding the evidence of Person X without an opportunity to make submissions on the order. We have dealt earlier with the argument of both appellants that their exclusion was a breach of their right, protected by s. 650 of the Criminal Code , to be present in court during the whole of the trial. Here, Mr. Johnston focuses in particular on the detrimental impact of his exclusion on fair trial interests (a) Positions of the Parties [253] Mr. Johnston says the trial judge failed to adequately safeguard his fair trial rights because his counsel had no opportunity to make submissions on the scope of the exclusion of Person X’s evidence. [254] The judge held Mr. Johnston was present in the room, actively participating either as a co‑perpetrator, or as an aider and abettor, at the time of the shootings. The judge made this finding despite the fact she was aware, based on materials filed by Crown in open court (and presumably based on her knowledge of Person X’s anticipated evidence at the Basi hearing), that Person X was expected to testify that Mr. Johnston was outside of the room at the time the shootings occurred. While acknowledging Person X’s anticipated evidence would have hurt his case on key issues, Mr. Johnston argues that Person X’s evidence that he was not present at the time of the shootings would have been helpful. [255] Mr. Johnston was excluded from all stages of the hearing leading to the exclusion of Person X’s evidence. He was not privy to the arguments made, if any, in relation to the scope of the judge’s exclusionary order. He is unaware of the reasons for the judge’s finding that Person X’s evidence was inadmissible at trial. He now says certain material questions were not addressed when the order was made excluding the evidence of Person X: a) What uses could be put to Person X’s evidence? b) Should defence counsel be permitted to refer to the evidence in cross‑examination? c) Could the evidence be put to any potential use by the defence? [256] Mr. Johnston now contends he should have been given the opportunity to know about, and express a position on, any proposed remedies flowing from the findings that led to the exclusion of the evidence of Person X. It is of note that he did not express concerns with respect to the blanket exclusion of the evidence of Person X at trial. [257] In response, the Crown says: a) the trial judge fully and fairly considered Mr. Johnston’s interests in a fair trial in the course of the in camera hearings, where Amici spoke to the interests of the accused; b) the evidence of Person X would have unequivocally implicated Mr. Johnston; and c) the fact his counsel did not take issue with the exclusion of Person X’s testimony at trial reflects the fact the exclusion was a windfall rather than prejudicial to Mr. Johnston. [258] Insofar as Person X’s anticipated evidence is concerned, the Crown says: [73]      Person X was expected to testify that Bacon directed him to kill Corey Lal, and that part of Johnston’s role was to make sure that happened. While Haevischer, Johnston and Person X waited for the door-knocker in a suite on the 12 th floor of the Balmoral, Johnston and Person X discussed stealing from and killing Lal. All three entered the suite for that purpose. All three rushed into suite 1505 and forced the occupants to the ground. Johnston ransacked the apartment and collected money and phones from the victims and put them in bags. Johnston chased Mr. Narong after Narong tried to escape, and forced Mr. Narong down beside the two other people whom Haevischer was holding at gunpoint. They decided to kill all five people – Johnston told Person X and Haevischer to “do it” and that Johnston would have the elevator waiting for them. Johnston returned with Christopher Mohan, a neighbour, accusing him of being “their friend” despite Mr. Mohan’s pleas otherwise. Johnston forced Mr. Mohan down beside the other two people Person X was holding at gunpoint. Johnston then left the room to assist escape by calling the elevator, while the other two men shot the victims in the back of the head. [74]      Person X would have confirmed what mattered for culpability. What mattered to the judge in finding culpability for second-degree murder was active participation in the murders with the requisite intent and a common purpose, up until all six victims were executed, as shown by the timing and crime scene: RJ, 701-706. What mattered to the judge in finding culpability for first-degree murder was that: either the perpetrators had time in the suite to decide, and did decide, to proceed with the plan to kill Mr. Lal and to kill the other five people to avoid getting caught: RJ, 711-716; or alternatively, the nonshooter caused the deaths in the course of an unlawful confinement by being “instrumental in managing the scene… dealing with unexpected arrivals and preventing eyewitnesses from escaping the scene”: RJ, 723-726. [75]      Accepting that Person X would likely have given evidence that Johnston did not see “the killings as they occurred” (RJ, 459), it could not have assisted the appellant. Whether Johnston was in the room at the exact moment of the shootings or left just before the trigger was pulled is a factual distinction that could not have made a legal difference. [Internal citations omitted.] (b) Discussion [259] The submission the appellant should have been afforded an opportunity to address the second stage of the Basi hearing at which the court addressed the consequences arising from threatened breach of informer privilege is addressed elsewhere in these reasons. That argument focuses upon the fact the appellant was unaware of evidence that might have usefully been used to cross‑examine witnesses other than Person X. In our view, the Crown is correct to say the appellant, knowing the evidence of Person X was likely to implicate him in the conspiracy and murders, properly regarded its exclusion as a windfall and for that reason was content to have it excluded. Mr. Johnston did not raise any issue with the trial judge in respect of the exclusion of the entirety of the evidence of Person X, and, in our view, trial fairness was not adversely affected by its exclusion for all purposes. Did the Crown Fail to Meet Its Disclosure Obligations to the Appellants? (a) Background [260] The appellants and the Amici apply to adduce fresh evidence on appeal that consists of material they say the Crown failed to disclose at trial. The appellants and Amici submit this was in breach of the Crown’s duty to disclose all relevant, non‑privileged material in its possession or control: R. v. Stinchcombe , [1991] 3 S.C.R. 326. The applications relate to two categories of information: (a) information that a former police officer who was involved in the Surrey Six investigation, Derek Brassington, provided in an interview with the Ontario Provincial Police (“OPP”) as part of a plea agreement to criminal charges resulting from his conduct during the investigation (the “Brassington Interview”); and (b) information relating to the application and acceptance of Person Y into the witness protection program (“WPP”). The Amici ’s sealed application relates only to the information in category (b), as they had access to less redacted documents relating to Person Y that were not available to the appellants. [261] In response to both applications, the Crown applies to adduce supplemental fresh evidence attached as exhibits to affidavit #1 of Laura Munday. The sole purpose of adducing this evidence is to assist the Court in determining whether the appellants’ fresh evidence should be admitted. The Crown also seeks to supplement the Amici ’s sealed fresh evidence application with its own fresh evidence, attached as exhibits to affidavit #2 of Laura Munday (filed under seal). [262] We will first set out the legal principles governing the applications to adduce fresh evidence on appeal, the Crown’s duty to disclose, and the remedy for a breach of that duty. Then, we will address the appellants’ arguments on whether the Crown breached its disclosure obligation regarding the Brassington Interview. Finally, we will address both the appellants’ and the Amici ’s submissions on the Crown’s failure to disclose WPP documents relating to Person Y. (b) Legal Principles [263] The Court’s statutory authority to admit fresh evidence on appeal is found in s. 683(1) of the Criminal Code , which permits a court of appeal to receive evidence for the purposes of an appeal “where it considers it in the interests of justice” to do so. [264] Courts assess whether it is in the interests of justice to admit fresh evidence on appeal differently depending on the circumstances in which the information was obtained and the issue to which the information relates. Where the issue is the admission of fresh evidence discovered after the Crown has breached its duty to disclose, the principles applied are those established in R. v. Dixon , [1998] 1 S.C.R. 244; otherwise, the evidence is assessed under the test set out in Palmer v. The Queen , [1980] 1 S.C.R. 759 at 775: R. v. Taillefer , 2003 SCC 70 at paras. 73–77. [265] The Palmer test sets out four principles to guide the court’s discretion as to whether to admit fresh evidence on appeal: a) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial. This general principle will not be applied as strictly in a criminal case as in civil cases, particularly where the evidence is compelling and it is in the interests of justice to admit it: R. v. Lévesque , 2000 SCC 47 at paras. 14–15; b) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; c) the evidence must be credible in the sense that it is reasonably capable of belief; and, d) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. The overriding consideration for the court, in accordance with the language in the Criminal Code , is “the interests of justice”: Lévesque at para. 14. [266] The Dixon test applies when the information on which the defence relies was improperly withheld from them at trial in breach of the Crown’s Stinchcombe duty to disclose all relevant, non‑privileged material in its possession or control. “Relevance” means the material could reasonably be of some use to the defence in meeting the Crown’s case, advancing a defence, or otherwise making a decision that may affect the conduct of the defence: R. v. Egger , [1993] 2 S.C.R. 451 at 467. [267] Where the defence is successful in showing a breach of Stinchcombe disclosure obligations, a new trial does not necessarily follow. To obtain a new trial as a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms , the defence must show that the non‑disclosure impaired the accused’s right to make full answer and defence, a principle of fundamental justice under s. 7 of the Charter . The defence can discharge this burden by demonstrating there is a reasonable possibility the non‑disclosure affected the outcome at trial or the overall fairness of the trial process: Dixon at para. 34. [268] Under the first prong of the test, a new trial will be ordered where there is a reasonable possibility that the evidence could have made a difference to the trial outcome, not whether it would have: R. v. Illes , 2008 SCC 57 at para. 25. The accused is not required to demonstrate that it is probable or certain that the undisclosed evidence would have affected the result: Taillefer at para. 81. To answer this question, the court must assess whether the trier of fact might have had a reasonable doubt as to the accused’s guilt had the undisclosed information been available, having regard to the evidence in its entirety but without conducting an item‑by‑item assessment of the undisclosed evidence: Taillefer at para. 82. [269] If the undisclosed information does not affect the reliability of the verdict, the court will move on to consider the second prong of the Dixon test: whether there is a reasonable possibility that the overall fairness of the trial was impaired as a result of the non‑disclosure. This stage considers whether realistic – not speculative – opportunities to explore possible uses of the undisclosed information were closed to the defence as a result of the non‑disclosure: Dixon at paras. 34, 36. The defence can meet this burden by showing that the evidence could reasonably have been used to impeach the credibility of a Crown witness, to assist the defence in pre trial investigations and preparations, or in its tactical decisions at trial: Illes at para. 27. The diligence of defence counsel in pursuing disclosure from the Crown is a relevant consideration in assessing the overall fairness of the trial process and whether the remedy of a new trial is warranted: Dixon at paras. 37–38. (c) The Brassington Interview [270] The appellants base their arguments with respect to this category of information on the following fresh evidence, which was disclosed to them following the entry of their convictions: a) a “Memorandum of Agreement” dated January 15, 2019, between Mr. Brassington and the special prosecutor in charge of his prosecution in the Supreme Court of British Columbia agreeing, among other things, that Mr. Brassington “will provide a truthful statement under oath to members of the [OPP] concerning his knowledge of all matters pertaining to the [charges, including breach of trust and obstruction of justice, in the indictment under which he was charged in the Supreme Court of British Columbia].” (The content of this statement would become the Brassington Interview.) In essence, Mr. Brassington agreed to be truthful in his statement as a term of the Crown’s agreement to a joint submission on sentence; and b) a transcript of the Brassington Interview, which Mr. Brassington gave under affirmation in January 2019 to members of the OPP as a condition of his plea agreement. [271] In response, the Crown relies on exhibits “K” and “L” of affidavit #1 of Laura Munday, which contain statements K.M. gave to the OPP on June 13, 2011 and April 26, 2010, respectively. [272] It is important context for the appellants’ arguments to note that Mr. Brassington’s charges related in part to a relationship he had with a protected witness in the Surrey Six investigation. The relationship was sexual, but also involved an emotional connection as Mr. Brassington felt he had “fallen in love” with the protected witness. During this relationship, Mr. Brassington was an RCMP sergeant in charge of managing her as a witness (see R. v. Brassington , 2019 BCSC 265 at paras. 5–8). [273] The particular portions of the Brassington Interview on which the appellants rely include a statement by Mr. Brassington that he had “no doubt that shady stuff happened with [K.M. and her police handlers]”, in part because of what Cpl. Paul Dadwal, who was K.M.’s primary handler for some time, had told him when they met at a Cactus Club restaurant in South Surrey after Mr. Brassington had been suspended from duty. He elaborated on the content of the “shady stuff”: And so whatever the hell they did with [K.M.], and I suspect that it was just a massive amount of drinking and partying and things like this truth or dare, because at some point I was told, and I don’t know if it was by [the protected witness] or by [Sgt. Dave Attew] or by—I believe it was by Paul Dadwal though, that they had done the truth or dare game with [K.M.] [redacted] as well. [274] Later in his Interview, Mr. Brassington explained that Cpl. Dadwal had contacted him to meet at the Cactus Club to support him after he had been suspended or was on medical leave. He said Cpl. Dadwal explained that: the same thing happened to him with [K.M.] that happened to me and [the protected witness], that she was falling for him. He recognized that she was falling for him. Some shady stuff happened he says [redacted] with her, and she was calling him at all hours of the night and it got to the point where his wife eventually said Paul, it’s either me or [K.M.], what’s it going to be. So Paul Dadwal then went to [Supt.] John Robin and said you got to get me out. I can’t deal with this. But Ross Joaquin was involved with that, Paul Johnston was involved in that. And John Robin certainly had knowledge of that. Despite all of that they still rolled me into [handling the protected witness] after all of that had occurred. That pisses me off that that was exploited, if you will. And especially on the heels of what happened with Paul Dadwal and [K.M.], that John Robin knew about—Paul told him point blank, he went to John Robin and told him that she is falling for me and I need to get out because it’s wrecking my house life. (i) The Appellants’ Arguments [275] The appellants argue the information in the Brassington Interview is relevant and should have been disclosed before trial because it relates to misconduct by the three police officers who were in charge of handling K.M., who was one of the Crown’s key witnesses at trial. In particular, the appellants urge us to infer from Mr. Brassington’s statement that “the same thing happened to [Cpl. Dadwal] with [K.M.] that happened to [Mr. Brassington] and [the protected witness]” that Cpl. Dadwal confessed to a “relationship at some ‘shady’ level”, namely, a sexual relationship, with K.M. Further, senior RCMP officers were aware of this misconduct but failed to act. The appellants also interpret the reference to playing “truth or dare” to refer to a sexual game K.M. played with her police handlers. [276] The appellants argue both prongs of the Dixon test are engaged as a result of this non‑disclosure. With respect to the first prong, the appellants submit the trial outcome could have been affected had this information been known because it was relevant to the credibility of K.M., who was key to the Crown’s case. K.M.’s evidence linked the appellants to guns and to the events that occurred in the hours before and after the killings. Had the defence possessed information about K.M.’s alleged relationship with Cpl. Dadwal, they would have used it in their cross‑examination, and, depending on her response, the judge may not have given much (or any) weight to K.M.’s evidence or may have been less willing to overlook inconsistencies in her evidence. This, they say, puts the verdicts in question. [277] At the second prong of the Dixon test, the appellants argue the undisclosed information impacted trial fairness because they would have used the information in the Brassington Interview to impeach K.M.’s credibility. They may also have asked the judge to exercise her inherent jurisdiction to call witnesses such as Cpl. Dadwal or Supt. Robin if the Crown declined to call them. With respect to pre‑trial investigations and preparations, the appellants say they would have ensured they had received sufficient information to identify all occasions on which K.M. and Cpl. Dadwal had any sort of interaction. [278] Finally, the appellants argue the new information in the Brassington Interview was relevant to the Vukelich hearing on the abuse of process applications because it reveals further police misconduct. (ii) The Respondent’s Arguments [279] The Crown argues that because the Brassington Interview did not exist until 2019, several years after the trial had ended, the question of its admissibility must be resolved under the Palmer test, rather than the Dixon test. In any event, the Crown submits the information in the Brassington Interview is not admissible under either test because it cannot reasonably be expected to have affected the result at trial (failing to satisfy the Palmer test), and there is no reasonable possibility that the non‑disclosure could have affected the trial outcome or the fairness of the trial process (failing to satisfy the Dixon test). [280] The Crown raises the following points in support of its position: a) the Brassington Interview is inadmissible hearsay evidence; b) the allegations the appellants rely on are unreliable and vague; c) the appellants had disclosure at trial showing K.M. repeatedly denied witnessing inappropriate police conduct; d) the appellants cross‑examined K.M. about late night phone calls with Cpl. Dadwal, drinking and dancing with police, and sexual text and phone conversations between K.M. and police; e) the judge had many reasons for accepting K.M.’s evidence, including the fact it was corroborated by independent evidence, and she rejected the defence argument that K.M. was too close to the police; and f) the judge convicted the appellants on the basis of a broad spectrum of circumstantial evidence of which K.M.’s testimony formed only one part. (iii) Discussion [281] We begin with two preliminary matters raised by the Crown. First, in our view, the information in the Brassington Interview properly falls to be analyzed under the Dixon test, not the Palmer test. The relevant time to consider in determining which test applies is when the police (or the Crown, as the case may be) came into possession of the information the appellants say ought to have been disclosed. [282] In this case, the information the appellants say ought to have been disclosed is the alleged “shady” relationship between K.M. and her police handlers, particularly Cpl. Dadwal, and the knowledge of senior RCMP officers of this “shady” activity. It is the information discussed in the Brassington Interview, rather than the statement itself, that is the subject of the alleged non‑disclosure. This information relates to the handling of K.M. as a witness before trial . At the latest, it would have been in the hands of the police when the conversation between Mr. Brassington and Cpl. Dadwal occurred. Although the exact timing of the conversation is uncertain, Mr. Brassington says it took place around the time he was suspended from the RCMP. His suspension occurred in the spring of 2010, well before the trial. [283] Second, we note the Crown objects to the admission of the Brassington Interview as fresh evidence on the basis it is inadmissible hearsay when tendered through the affidavit of Ms. Ma, a legal assistant to the appellants’ counsel. Ms. Ma does not have personal knowledge of the truth of the contents of the Interview. The Crown relies on R. v. O’Brien , [1978] 1 S.C.R. 591 at 602; R. v. Teneycke (1996), 108 C.C.C. (3d) 53 at para. 18 (B.C.C.A.); and R. v. Dell (2005), 194 C.C.C. (3d) 321 (Ont. C.A.) at paras. 85–86, leave to appeal ref’d [2005] S.C.C.A. No. 524, in support of this argument. However, these cases refer to evidence that was required to meet the Palmer test for admissibility as fresh evidence, not to information not disclosed to the defence. [284] The appellants did not address this issue in their factums or their oral submissions. We find it unnecessary to resolve this admissibility question because even if the Brassington Interview were admissible, we conclude the appellants have failed to demonstrate a breach of the Crown’s disclosure obligations or that the Dixon test is met. Have the Appellants Demonstrated a Breach of the Duty to Disclose? [285] The onus is on the appellants to demonstrate on a balance of probabilities that the Crown breached its disclosure obligations. As already noted, they rely on the Brassington Interview as evidence of the existence of a “shady” relationship between K.M. and her police handlers, particularly Cpl. Dadwal, and as evidence that senior RCMP officers had knowledge of this “shady” activity. [286] It is common ground the police have a duty to provide to the Crown all relevant material in their possession: R. v. McNeil , 2009 SCC 3 at paras. 23–24. This relevant material includes the “fruits of the investigation”, meaning the information in the police investigative files, and any other information that is “obviously relevant to the accused’s case”: R. v. Gubbins , 2018 SCC 44 at paras. 21–23. For example, records of serious misconduct by police officers involved in the investigation of the accused are “obviously relevant” when the misconduct is related to the investigation or could reasonably impact the case against the accused: McNeil at paras. 15, 54–59. [287] We agree that police misconduct in the handling of a witness is “obviously relevant” to the accused’s case. Accordingly, the police are required to disclose any such information to the Crown, and the Crown in turn to the defence. However, we do not agree that the Brassington Interview establishes the police had information about misconduct in the handling of K.M. that was improperly withheld from the Crown, and in turn, improperly withheld from the defence. [288] First, we do not accept that the Brassington Interview establishes a “confession” by Cpl. Dadwal that he had a sexual relationship with K.M. Read in isolation, and with knowledge of the sexual relationship Mr. Brassington had with the protected witness, his statement, “…the same thing happened to [Cpl. Dadwal] with [K.M.] that happened to me and [the protected witness]”, could imply a sexual relationship between K.M. and Cpl. Dadwal. However, when this statement is read in context, the more reasonable interpretation is that Mr. Brassington was describing an emotional dependence on the part of K.M. as a result of the investigation’s “moving witnesses” strategy. This is supported by Mr. Brassington’s repeated statement that K.M. was “falling for” Cpl. Dadwal and was “calling him at all hours”. In any event, Mr. Brassington’s understanding or belief about the nature of the relationship between K.M. and Cpl. Dadwal as discussed in his Interview is hearsay. [289] Even absent a sexual relationship, a witness’s close personal relationship with or emotional dependence on an investigating officer may well be relevant to the accused’s case, as it may impact the witness’s credibility and motive to testify. However, the defence received – and relied on at trial – significant disclosure about the nature of the relationship between K.M. and her police handlers, including Cpl. Dadwal. This will be discussed later in these reasons when considering whether the appellants have demonstrated a reasonable possibility that either the verdict or trial fairness could have been impacted by the alleged non‑disclosure. [290] Given our findings with respect to the “confession” Cpl. Dadwal allegedly made to Mr. Brassington, we also conclude the appellants have not proved that senior RCMP officers knew of misconduct in the nature of a sexual relationship between K.M. and Cpl. Dadwal and failed to address it. Any allegations of this nature in the Brassington Interview are hearsay, as Mr. Brassington did not have personal knowledge of what Cpl. Dadwal said to Supt. Robin, or of what Supt. Robin understood from that conversation. [291] The appellants also rely on the Brassington Interview as evidence of “shady” behaviour by the police in their handling of K.M. as a witness generally. In particular, Mr. Brassington stated that he believed the “shady stuff” was likely “just a massive amount of drinking and partying and things like this truth or dare”. Earlier in his statement, Mr. Brassington confirmed that another officer, who was also criminally charged in relation to his misconduct in the handling of the protected witness (but the charge was subsequently stayed), asked the protected witness to masturbate in front of him during “truth or dare”. Mr. Brassington did not recall who told him officers had played truth or dare with K.M. – first he said it could have been the protected witness or Dave Attew, then he said he believed it was Cpl. Dadwal. [292] The information Mr. Brassington related is not sufficiently clear and reliable to support a finding on a balance of probabilities that undisclosed misconduct occurred in the handling of K.M. The words he used to discuss the “shady stuff” indicate he was speculating about what may have occurred, using language like “whatever the hell they did with [K.M.]” and stating he “suspect[s]” it involved drinking, partying, and “things like” the truth or dare game. Mr. Brassington could not recall who told him about the truth or dare game, but it is clear that he did not have personal knowledge of it, or any of what occurred in the handling of K.M. Mr. Brassington and K.M. had never met. [293] Furthermore, the appellants did receive disclosure from the Crown about K.M. drinking and partying with police officers. There is no indication that the “shady stuff” Mr. Brassington suspected occurred with K.M. was anything different than the conduct disclosed to the appellants. Again, this disclosed information will be discussed below. [294] We conclude the appellants have not established that the Crown breached its Stinchcombe disclosure obligations. Mr. Brassington did not have personal knowledge of any of the information he related, and in any event, the language he used in the Brassington Interview, read in context, does not give rise to a compelling enough inference that undisclosed misconduct occurred in the handling of K.M. The Interview contains second‑hand information discussed almost a decade after it allegedly took place. This information does not prove a breach of disclosure on a balance of probabilities. [295] Although we need not address whether the Dixon test is satisfied given this conclusion, we will do so as we received full submissions on the issue and it is an important aspect of the appellants’ arguments. Is There a Reasonable Possibility That Non‑disclosure Could Have Affected the Trial Outcome or the Fairness of the Trial Process? [296] Even if the appellants had succeeded in establishing a breach of their right to disclosure of the Brassington Interview, they have not persuaded us that a new trial would be an appropriate remedy under s. 24(1) of the Charter . Before addressing the trial fairness branch, the Dixon test typically considers whether the undisclosed information could have affected the verdict. But because the appellants’ argument about the validity of the verdict relates to K.M.’s credibility, we consider it appropriate to first consider the trial fairness branch. In assessing the trial fairness branch of Dixon , we will canvas the ways the defence attacked K.M.’s evidence at trial, which informs whether the undisclosed information could have raised a reasonable doubt in the circumstances before the trial judge. [297] For two reasons, we do not accept the appellants’ argument that there is a reasonable possibility the information in the Brassington Interview could have impacted trial fairness. First, as we alluded to above, the appellants received disclosure about the nature of the relationship between K.M. and her police handlers, including Cpl. Dadwal, in which she repeatedly denied witnessing inappropriate police conduct and denied having a relationship with Cpl. Dadwal. Second, the appellants cross‑examined K.M. at trial about her relationship with her police handlers. [298] The two statements K.M. gave to OPP officers in 2010 and 2011 during their investigation of the police misconduct in the Surrey Six investigation were disclosed to the appellants. In her first statement, K.M. informed the interviewer that her initial contact with the RCMP was through Cpl. Dadwal. He was the primary officer who spoke to her about becoming involved with the RCMP after she was arrested by the RCMP for unrelated offences. K.M. also named a number of other officers who assisted in her handling once she “signed on”, and explained that Cpl. Dadwal mostly “did interviews and stuff” during the Surrey Six investigation. [299] When K.M. was explicitly asked whether anything “inappropriate” had happened between her and any of the RCMP members as had happened between Mr. Brassington and the protected witness, or that would be inappropriate given her position as a witness, she said, “No”. When she was asked about a blog post that indicated she may have been involved with Cpl. Dadwal, she explained that people had assumed she was the girlfriend of a member of the Red Scorpions who had been involved with an officer. K.M. was angry that people were talking about her that way and said, “there’s never … been anything weird or fucked up”. She added that she did not “want to fuck up this case” and that she was “not a dumb ass like that other girl.” [300] In her second interview with the OPP, K.M. was specifically asked to discuss her experiences with Cpl. Paul Johnston and Cst. Danny Michaud. At some points in the interview, K.M. used the initials “PJ” to refer to Cpl. Johnston. At other points, she used the first name “Paul”, which is also the first name of Cpl. Dadwal. [301] K.M. was asked how many times she was looked after by “Paul and Danny and just them”, and she responded that it was two to three times. When asked when those times were, she was not sure of the exact dates, but noted she had not “seen Paul since … all that stuff came out about the other cops fucking that girl.” [302] The OPP interviewer asked K.M. about her activities with the officers. She mentioned going to a hockey game in another city. She was asked whether she went to a hockey game with Danny and Paul more than once, and she replied, “No”. When asked about the weekend they went to the hockey game, K.M. said the officers had come out to visit because she was having a “rough time”. Somebody would come out to see her every three or four months. After the hockey game, she went out for drinks with “PJ and Danny” but the officers did not stay long and left before she did. She could not remember details, and it was “kind of a blackout night”. [303] K.M. could not remember many other details of the trip because she had “an issue with drinking”. She was asked about a text message she sent to “Paul” the day after the game that said, “I knew I was fucked up but I didn’t realize how really fucked up I am. It was good to see you, thank you so much. Danny’s pretty cool too ha ha.” She said the text was about her mental state in general and not about what had happened the night before. [304] K.M. was asked yet again about whether anything inappropriate had happened with any of the officers, and she said “No”. She elaborated, saying she did not think she would “even be half as good as [she is] right now if it wasn’t for them”, that she missed “Paul” a lot because he was “really kind” and made her feel like she “could do this”, and that they were her “only support team” because she “lost everything”. [305] The Crown disclosed these statements to the defence (in December 2011 and April 2013) before the trial. K.M.’s interviews with the OPP came up during her cross‑examination, but the defence did not make much use of them other than to question her about the night of the hockey game she discussed in her second OPP statement. [306] We have considered the appellants’ submission that cross‑examination is unpredictable and one can never know what witnesses will say when questions are put to them in different ways. However, given K.M.’s repeated denial of any inappropriate relationship between herself and Cpl. Dadwal or any of the other officers in her interviews with the OPP (and the non‑specific suggestion of impropriety in the fresh evidence), there is no reasonable possibility that putting those suggestions to her in cross‑examination at trial could have resulted in any different answer. [307] During the extensive cross-examination of K.M. at trial, she was questioned about late night phone calls with Cpl. Dadwal, drinking and dancing with the police, and text and telephone communications between K.M. and the police that contained some sexual banter. Counsel put to her a 15‑tabbed volume of transcripts of text messages and phone conversations she had with various police officers. While the appellants say the police lost some of the text messages and/or telephone records, K.M.’s testimony on the topic of texts and calls did not reflect a sexual relationship with Cpl. Dadwal. In addition, given the close relationship K.M. had with the police, counsel submitted to the trial judge that she should view K.M.’s evidence “with extreme skepticism as she stands firmly in the corner of the prosecution”: Trial Reasons at para. 498. [308] With all this in mind, there is no reasonable possibility that the overall fairness of the trial process could have been impacted by the information in the Brassington Interview. The appellants were provided disclosure about “shady stuff” that occurred and the close relationship between K.M. and the police. They thoroughly pursued this line of inquiry in her cross‑examination. No realistic opportunities to explore uses of the information were closed to the defence as a result of non‑disclosure. [309] Finally, having regard to the evidence in its entirety, we conclude there is no reasonable possibility that the non‑disclosure could have affected the outcome at trial. We agree K.M.’s evidence, and therefore her credibility, was very important to the Crown’s case. However, the trial judge accepted K.M.’s evidence despite the appellants’ thorough attack on her credibility, rejecting the argument that she was too close to the police and noting that material aspects of her testimony were confirmed by independent evidence: Trial Reasons at paras. 482–508. [310] Accordingly, even had we found the Crown breached its duty to disclose the information discussed in the Brassington Interview, we would not have ordered a new trial: the appellants have not persuaded us that any such non‑disclosure could have impaired their right to make full answer and defence. [311] In light of our conclusion, as explained later in these reasons, that a hearing of the stay applications is required, it is unnecessary to address the appellants’ further argument that the information in the Brassington Interview was directly relevant to the Vukelich hearing as being further evidence of police misconduct. (d) Person Y’s WPP Status [312] As we explain earlier in these reasons, Person Y is a former member of the Red Scorpions who acted as a police agent during the Surrey Six investigation. He subsequently pleaded guilty to two unrelated first degree murders in April 2010, for which he is serving a life sentence with no parole eligibility until 2035. His evidence at trial, given between March 10 and April 1, 2014, was important in implicating the appellants in the murders. He was treated as an “unsavoury” witness by the trial judge, who conducted a careful review of his credibility and reliability: Trial Reasons at paras. 466–81. [313] In the fall of 2018, this Court heard a disclosure application made by the appellant Johnston, and supported by the appellant Haevischer, for Person Y’s WPP records. Although the Crown disputed the relevance of the documents, it disclosed the information in its possession relating to Person Y seeking and being afforded entry into the WPP, redacted for privilege, in response to the applications. Those materials are the subject of this part of the appellants’ fresh evidence application. The Court dismissed the appellants’ application for further disclosure in reasons indexed as R. v. Johnston , 2019 BCCA 107. [314] The appellants’ proposed fresh evidence relating to Person Y’s WPP status is the following: a) evidence described as “correspondence” of Supt. Robin between May 2013 and April 2014 relating to Person Y, disclosed to the appellants in October 2018; and b) email exchanges between the Integrated Witness Protection Section of the RCMP and the Correctional Service of Canada (“CSC”) regarding Person Y’s entry into the WPP shortly after his testimony at the appellants’ trial, disclosed to the appellants in December 2017. [315] In response, the Crown relies on various exhibits appended to affidavit #1 of Laura Munday. The exhibits include redacted documents disclosed to the appellants on dates ranging from September 2010 to February 2016 and various letters between counsel. The information is intended to provide the Court with an understanding of what had been disclosed to the appellants before and during the trial. [316] Also relevant to this issue is “Category 5” of the fresh evidence filed by the Amici and the Crown’s responsive evidence, which is contained in the sealed affidavit #2 of Laura Munday. [317] We will provide an overview of this evidence and refer to it as required in our analysis. (i) Information Disclosed to the Appellants Before or During the Trial [318] As a justice system collaborator, Person Y faces heightened security concerns in prison: Johnston at para. 114. Information disclosed in April 2012 shows that Person Y had been moved between the custody of the CSC and the RCMP due to difficulties with being recognized and threatened while in CSC custody. For his safety, Person Y had been required to enter segregation in CSC custody. Through his counsel, he expressed concerns about returning to segregation upon his return to CSC custody and its effects on his health. [319] Information disclosed on March 7, 2014, before Person Y testified, reveals his cooperation depended on having placement in CSC that did not require him to be in worse conditions than the average inmate due to his cooperation. (ii) Newly Disclosed Information Provided to the Appellants [320] The newly disclosed information indicates that in July 2010, Person Y told CSC officials and the police he would “become an uncooperative witness” if he were involuntarily transferred to another institution or placed in segregation for protective purposes. The information further shows that in October 2010, Crown counsel responsible for the prosecution believed that if Person Y were placed in segregation, his ability to provide meaningful evidence as a witness would be jeopardized by the deterioration of his mental state. [321] Correspondence from Supt. Robin indicates he had begun the process of applying for a witness’s admission to some sort of program in May 2013. Although the document is heavily redacted, the appellants suggest the correspondence related to the admission of Person Y to the WPP, and the Crown appears to accept this suggestion. Further correspondence from Supt. Robin in September 2013 indicates he had been told by Person Y and his counsel that Person Y’s cooperation would be “unlikely to continue” if segregation were considered as a protection option. [322] Finally, the affidavit of Cpl. Eric Boucher, sworn on February 6, 2014, was provided to the appellants in a redacted form on February 11, 2016, and is appended to affidavit #1 of Laura Munday. The Boucher affidavit was sworn in support of an application for a Transfer of Prisoner Order for Person Y (also referred to as a “spring order”) to allow him to be kept in RCMP custody until the end of his testimony in April 2014, at which point he would be transferred to a new institution. The affidavit reflects that, as a result of two previous spring orders, Person Y had been held in the custody of the RCMP from August 2013 to February 2014 in conditions reasonably close to the conditions he would experience with CSC. These orders were obtained because Person Y’s physical and mental health were deteriorating in CSC custody, where he had been living in “virtual segregation”. [323] Person Y ultimately obtained WPP status for his safety and protection shortly after he finished testifying. [324] We will refer to this body of proposed fresh evidence as “the WPP information”. (iii) Sealed Information Adduced by the Amici and the Crown [325] The Amici ’s fresh evidence contains less‑redacted versions of the documents than those relied on by the appellants, disclosed to the Amici in March 2020. [326] The unredacted Boucher affidavit indicates that when he testified, Person Y was in the process of entering the WPP. [Sentence removed.] [327] [Paragraph removed.] [328] [Paragraph removed.] [329] [Paragraph removed.] (iv) The Appellants’ Arguments [330] The appellants argue Person Y’s entry to the WPP constituted an undisclosed benefit to Person Y, and therefore should have been disclosed. They submit his consideration for entry to the WPP tended to contradict his evidence and provided a motive for Person Y to gain favour with the police, who were working to place him in the WPP, and was therefore relevant to his credibility. [331] The appellants submit there is a reasonable possibility the undisclosed WPP information could have impacted the trial outcome or the overall fairness of the trial process. Person Y’s evidence was crucial to the Crown’s case and his credibility was squarely at issue, particularly as a Vetrovec witness. Therefore, the appellants say, “[a]nything that called into question his credibility [has] the potential to affect the outcome of the trial”. The WPP information contradicts Person Y’s evidence about his future in the correctional system. This and the benefit he received from entry to the WPP both call into question his credibility, and thus the trial outcome. [332] Under the second prong of Dixon , the appellants say the failure to disclose the WPP information prevented them from attempting to impeach Person Y’s credibility by confronting him with that information. In addition, it limited their ability to apply for further information or challenge the Crown’s privilege claims in the documents. (v) The Amici’s Arguments [333] The Amici ’s arguments are similar to those of the appellants. They submit the protective measures and custodial arrangements available to Person Y through his entry to the WPP may be considered benefits, which may bear on the witness’s motives and state of mind while testifying. In particular, Person Y may have been motivated to ingratiate himself with the police and prosecution by providing favourable evidence: R. v. Pascal , 2020 ONCA 287, leave to appeal ref’d [2020] S.C.C.A. No. 214. [334] The Amici submit these benefits could have left a reasonable doubt with the judge due to their relevance to Person Y’s credibility, which was central to the verdict. Further, the undisclosed information could have been used to impeach Person Y on his evidence about his conditions of confinement. Finally, the Amici support the appellants’ argument that the non‑disclosure prevented them from challenging the Crown’s privilege claims. (vi) The Respondent’s Arguments [335] The Crown submits this Court’s decision in Johnston is determinative of these issues. In dismissing the disclosure application, the Court in Johnston found there was no reasonable possibility the WPP information could have affected the trial outcome or the fairness of the trial process: Johnston at para. 125. The Crown urges us to adopt the same analysis with respect to the non‑disclosure of the WPP information on these appeals. [336] The Crown says Johnston also disposes of the Amici ’s arguments. [Sentence removed.] (vii) Discussion [337] The Crown accepts the appellants and the Amici have established a breach of Stinchcombe disclosure from its failure to disclose the steps taken and decisions made respecting Person Y’s future custodial arrangements (subject to privilege claims). The Crown accepts this Court’s conclusion in Johnston that, due to the possibility of Person Y viewing his enrollment in the WPP as a benefit (even if the Crown did not), WPP information “dealing with promises made to Person Y about the WPP, and any of his demands regarding the same”, came within the scope of the Crown’s disclosure obligations under Stinchcombe : at paras. 103–04. [338] Accordingly, the issue on these appeals is whether the appellants and the Amici have established that this breach of the appellants’ right to disclosure also breached their s. 7 right to make full answer and defence. Although Johnston dealt with a somewhat different issue, we agree with the Crown that the Court’s reasons for dismissing the appellants’ disclosure application apply equally to the non‑disclosure issue raised on these appeals. [339] The Court in Johnston had to decide whether to order disclosure of all materials and information relating to Person Y and the WPP. As we noted above, the Crown disclosed the disputed information, subject to privilege claims, during the course of that application. Although challenges to those privilege claims were also before this Court, the division found it unnecessary to address that issue because of its conclusion that the documents failed to meet the threshold relevance test necessary to order disclosure in the course of an appeal. [340] To assess relevance, Justice Griffin, writing for the Court in Johnston , considered whether there was “a reasonable possibility the records might assist the appellant in prosecuting an appeal”: at para. 80. This question is to be assessed in the context of the possible uses of the information to support the grounds of appeal in that particular proceeding. Given that the proposed use of the information was to support a fresh evidence application under the Dixon test, the question before the division in Johnston was whether there was a reasonable possibility the disclosure would assist the appellants in arguing the Dixon test was met: at paras. 81–82. [341] As we have already noted, Griffin J.A. concluded there was a reasonable possibility the records would assist the appellants in showing a breach of the Crown’s duty to disclose at trial, which the Crown now accepts on this appeal. However, this was “only the first step in the necessary analysis” since, to be successful on the Dixon test, the appellants would also have to show the non‑disclosure could have affected the trial outcome or trial fairness: at para. 105. It is the Court’s conclusions in this respect that are particularly relevant to the issues before us on these appeals. [342] As in their disclosure application, the appellants focus on the following paragraphs of the trial judge’s assessment of Person Y’s credibility in which she discussed the relevance of Person Y’s evidence regarding his conditions of confinement to his motives to testify to (a) earn a profit and (b) have revenge on his former Red Scorpions associates: [477]    While [the amount the RCMP paid to Person Y is] unquestionably a very significant total sum, whether these financial benefits would influence or shape Person Y’s evidence in favour of the Crown must be considered in context. First, none of it was paid to him as an incentive to tell the police about his involvement in the murders. Much of the payment was for his work as a police agent … following his own decision to cooperate. Second, Person Y acknowledged earning substantial sums as a criminal in the drug business so the benefits must be considered comparatively. Third, and most importantly, it is unlikely that even the amount of money Person Y received can be considered a substantial benefit when serving 25 years to life of hard time. When it was put to Person Y in cross-examination that his cooperation was motivated at least in part by profit, his response was as follows: Let me tell you this, there is no money that can pay me for the -- for -- for the -- the difference and from the time, and I have the -- the situation of being an agent in prison. I’m sentenced to 25-to-life and I’m -- my time compared to any -- any gangster going in for 25-to-life, is apples and oranges now. I’m not sentenced to be -- to be subject to 24-hours verbal abuse and attacks and having this living -- living with the end of the -- in the -- in segregation at the very end alone because I can’t go anywhere else because I’m less than a child molester so I’m -- so if -- if you’re talking about that type of paid for, you can’t pay for those things. Money doesn’t come into it. [Transcript, March 27, 2014, p. 28] [479] Person Y had no motive to falsify his evidence. He freely acknowledged his disdain for Mr. Johnston as a person, but he had nothing to gain by implicating either accused. Counsel for Mr. Haevischer observed in his final submissions that Person Y did not appear to have a bias in favour of the Crown’s case; and that if he had any bias, it was against his former boss, Mr. Bacon. It was suggested to Person Y in cross-examination that his cooperation was driven by his hatred for Mr. Bacon, and that the accused were simply “collateral damage” in his desire to seek revenge against Mr. Bacon. Person Y’s response put that suggestion in perspective : Q Your motive is not justice, your motive is revenge. A Revenge? Q Just like you -- A You think -- what would revenge mean for me, man? I’m in prison. I’m never leaving solitary confinement or protective -- super-duper protective custody. Revenge? Q Yeah. A Revenge is nothing man. You think I care about revenge? That’s -- what does that get me? Nothing. I care about just dealing with my conscience, man. I could care less about your little revenge. Oh, I -- I hate more -- I get more intense about politics, about what is going on with the -- what’s going on in the U.S. in politics than I do worried about Jamie Bacon or Matt Johnston or Blake Cody Haevischer, believe -- they -- they don’t even make my list. I don’t care. This is justice, but revenge, sorry, sir, I -- I don’t carry that in my heart and that means nothing to me. Revenge -- the revenge -- technically they have the last laugh, even when they get found guilty, because they get -- they get to go into a system with open arms, so they’re gangsters for six homicides, they’re big tough gangsters and they didn’t rat, so what’s revenge? And then I will sit in a hole for the rest of my life. No, I’m doing this because I made a commitment to do this and this is the one right thing I’m doing in my life, period. [Transcript, April 1, 2014, pp. 60-61] [Emphasis added.] [343] Like the division of this Court in Johnston , we conclude there is no reasonable possibility the undisclosed WPP information could have affected the trial verdict. A fair reading of Person Y’s evidence, considered in the context of all the other evidence before the trial judge and her reasons for accepting Person Y’s evidence, leads us to this conclusion. [344] First, we agree with this Court’s conclusion in Johnston that the undisclosed WPP information does not directly contradict Person Y’s evidence in the manner the appellants suggest. As Griffin J.A. explained, Person Y’s testimony was not a bare assertion that he would spend the rest of his life in solitary confinement due to his cooperation with the RCMP: at para. 113. Instead, his evidence spoke to the fact it was against his interests to cooperate with the police because he would be labelled a “rat” by other inmates and require extra protection. Had he refused to cooperate, he would not face those threats or require additional protection. [345] In our view, Person Y’s evidence that he would be serving his sentence “in a hole” or placed in solitary confinement or “super‑duper protective custody” was consistent with his experience at that time in serving his sentence. By April 2014, he had spent much of his placement in CSC in solitary confinement or had been in RCMP custody. At times he lacked companionship and basic amenities like daylight and exercise for at least one hour per day. Further, his application to the WPP, which was in the works, was not complete at the time of his testimony. [346] Second, even if Person Y’s evidence could be read in the manner the appellants suggest, the newly disclosed WPP information does not materially change the reason the judge relied on the impugned testimony in her assessment of Person Y’s credibility. She concluded it was unrealistic to contend the money Person Y received or the potential for revenge against the Red Scorpions motivated his decision to testify against the appellants given that he was serving “25 years to life of hard time” made worse by his cooperation. The undisclosed information does not undermine the judge’s conclusion that the financial incentives or opportunity for revenge would be outweighed by the “hard time” Person Y knew he would face in order to keep him safe as a result of his cooperation. As Griffin J.A. explained in Johnston , there is no reasonable basis to suggest “a promise that Person Y would be enrolled in the WPP, as a means of trying to keep him safe in prison, would have provided him with an expectation that he would be better off in custody than he would have been if he had not been a cooperating witness”: at para. 117. [347] Third, the trial judge explained the multiple factors she considered in assessing Person Y’s credibility. The paragraphs on which the appellants rely form only a part of that assessment. Justice Griffin summarized the factors the trial judge took into account in assessing Person Y’s credibility and reliability at paragraph 24 of Johnston as follows: a) Person Y had a history of serious and horrific violent criminal behaviour which led him to describe himself as a “monster” and a “despicable human being”. The trial judge also found this to make him somewhat unique as a Vetrovec witness, in terms of his degree of self-awareness; b) he went to police of his own volition, and his cooperation was not the result of an arrest for his part in the offences. Notably, he volunteered that he gave his Glock semi-automatic handgun to Person X prior to the police telling him that they discovered a Glock bearing his DNA at the crime scene; c) he had the opportunity to evade Canadian law enforcement as he spent periods of time in South America in 2009. When he returned to Canada from South America in April 2010, he had been living free in Brazil and beyond the reach of Canadian law enforcement. He could have walked away from any commitments made to the police about his guilty pleas and testimony; d) he provided information with the understanding that, as a consequence of providing his statements, he would be charged with two counts of first degree murder for crimes separate from the Surrey Six murders; e) Person Y made no plea agreement with the Crown that would, in return for his testimony, affect his period of imprisonment. He entered his guilty pleas knowing that, as a former police agent and current justice system cooperator, he was facing “25 years of very hard time” in prison; f) the RCMP paid significant monies to Person Y for his work as an agent, including over $475,000 plus an ongoing payment for incidental and canteen expenses in jail, as well as his legal expenses of $472,627. However, the trial judge did not find these payments to influence or shape Person Y’s evidence in favour of the Crown because: (i) none of it was paid as an incentive to tell police about his involvement in the murders; (ii) one must consider the benefits comparatively, as Person Y acknowledged earning substantial sums as a criminal in the drug business; and (iii) it was unlikely the money constituted a substantial benefit when serving 25 years to life of hard time; g) during his nearly ten days under cross-examination, Person Y did not attempt to minimize his past criminal activities or his role in the conspiracy to kill Mr. Lal; h) when uncertain about aspects of his evidence, Person Y declined to implicate the appellants; i) Person Y had no motive to falsify his evidence; and j) independent evidence corroborated Person Y’s evidence in many respects. [348] Considering all the evidence before her, the trial judge concluded Person Y’s actions spoke for him and answered many of the credibility concerns raised by the appellants: Trial Reasons at para. 481. Of particular note is the fact Person Y made his decision to cooperate with the police on the Surrey Six investigation before any issues about his custodial conditions arose, as he was not in custody at the time and had not pleaded guilty to, or been charged with, any offences. In this context, there is no reasonable possibility that if the trial judge had the undisclosed WPP information before her, the result at trial could have been different. This conclusion applies with respect to the fresh evidence adduced by both the appellants and the Amici . [349] Under the second prong of Dixon , we are not persuaded there is a reasonable possibility the failure to disclose the WPP information could have affected the overall fairness of the trial. [350] We agree with the conclusion in Johnston that the undisclosed WPP information could not reasonably be expected to have made a difference to the appellants’ ability to impeach Person Y’s credibility. This is in part because of our conclusion above that Person Y’s evidence was not necessarily inconsistent with the undisclosed WPP information, and in part because – as Griffin J.A. explained in Johnston – Person Y was testifying to his belief or expectation about his future prison conditions, which would be difficult to impeach: at para. 115. This is particularly so as correspondence from Person Y’s counsel indicates he believed the RCMP had failed on multiple occasions to respect their promises with respect to Person Y’s confinement conditions. [351] We also agree with the Court in Johnston that if the appellants had wished to challenge Person Y’s evidence about his custodial conditions, they could have done so using information disclosed to them, including the fact he had been promised similar treatment and privileges as other inmates as a condition of cooperation: at para. 118. [Sentence removed.] [352] We further disagree that the lack of disclosure prevented the appellants from applying for further information about Person Y’s custodial circumstances or challenging the Crown’s privilege claims. Although we accept that in some circumstances, later disclosure can shed light on areas that seemed less important without knowledge of that additional information, this is not such a case. The appellants knew Person Y had been promised a certain standard of care within the RCMP and the CSC as a condition of testifying. They also knew Person Y had gone between RCMP and CSC custody and that the Crown viewed these movements as being irrelevant and privileged. The appellants were not prevented from cross‑examining Person Y about this information. The WPP information does not meaningfully change any of the information available to the appellants before Person Y’s testimony. [353] Even if the appellants had applied for further disclosure or challenged the privilege claims on the basis of the WPP information and the sealed evidence before us on this application, we conclude it would not have made a difference to the appellants’ conduct at trial. [Two sentences removed.] [354] We agree with Griffin J.A.’s finding that the information was “at best minor and tangential” to Person Y’s credibility: Johnston at para. 123. [355] Finally, the circumstances of this case are unlike those in Pascal . In Pascal , the appellant applied to adduce fresh evidence showing that one of the Crown’s witnesses had an undisclosed criminal record and outstanding criminal charges when she testified at his trial. Her evidence changed significantly between her initial police statement and her second police statement given over a year later, which she adopted in her testimony at the appellant’s trial. The criminal charges were laid in the time between her first and second statements. The trial judge relied on the change in her statement to accept the complainant’s testimony over the appellant’s. [356] In the case at bar, Person Y had already pleaded guilty to the two murders in question and was serving his sentence when he testified at the appellants’ trial. Before his evidence began, the appellants had disclosure showing Person Y was promised, as a condition of his testimony, custodial conditions similar to those provided to the average inmate. [Sentence removed.] In these circumstances, and given all the other reasons the trial judge gave in assessing his credibility, there is no reasonable possibility that the suggestion Person Y altered his evidence to “curry favour with the prosecution” to assist him in gaining entry to the WPP could have raised a reasonable doubt or affected the fairness of the trial. [357] We note the standard applied in Johnston was an even lower standard than the already low “reasonable possibility” standard set out in Dixon , since the question in Johnston was whether there was a reasonable possibility the information would assist in meeting the Dixon test, not whether Dixon itself was met: Johnston at para. 83. In the opinion of the Court in Johnston , there was no reasonable possibility the undisclosed information would assist in meeting the Dixon test. For similar reasons, we conclude the appellants have failed to demonstrate a reasonable possibility that the WPP information, sealed and unsealed, could have affected the trial verdict or trial fairness. (e) Conclusion on Non‑Disclosure Issues [358] For the reasons explained in this part, we do not give effect to either ground five of Johnston’s amended notice of appeal that the defence was denied basic disclosure, or to the fresh evidence application in which the appellants seek to adduce evidence of the content of the Brassington Interview and the WPP information. We also dismiss the Amici ’s application to adduce the fresh evidence contained in “Category 5” of its fresh evidence application. The Crown’s fresh evidence is admitted to the extent it was considered in addressing the appellants’ fresh evidence and the Amici ’s fresh evidence in Category 5. Did the Trial Judge Err in Dismissing the Applications for a Stay of Proceedings in the Absence of an Evidentiary Hearing on the Allegations of Abuse of Process? (a) Background [359] The appellants assert the judge erred in summarily dismissing their applications for a stay of proceedings for abuse of process without holding an evidentiary hearing. The Amici support the appellants’ position, relying on confidential information not known to the appellants. [360] The Amici also apply to adduce fresh evidence, being Categories 1–4 of the Amici ’s fresh evidence application, to supplement their submissions on this issue. In response, the Crown adduces additional fresh evidence attached as exhibits to the sealed affidavit #2 of Laura Munday, solely for the purpose of determining the admissibility of the fresh evidence sought to be adduced by the Amici . [361] It will be recalled from the introductory section of these reasons that the trial judge, in her Open Vukelich Ruling and Sealed Vukelich Ruling, granted the Crown’s application to summarily dismiss the appellants’ applications for a stay of proceedings as a result of abuse of process. In her rulings, the judge found police misconduct in the investigation, and the inhumane conditions in which the appellants were kept while on remand, amounted to abuses of process. Although she found that stages one and two of the Babos test were met, she concluded a stay would be a disproportionate remedy in light of the seriousness of the offences and the community’s interest in the entry of the appellants’ convictions. [362] The appellants and the Amici challenge the judge’s Open and Sealed Vukelich Rulings, respectively. Before addressing the arguments, we will set out the applicable legal principles. (b) Legal Principles (i) Abuse of Process [363] The appellants claimed abuse of process under both the common law and s. 7 of the Charter . Unless the impugned conduct does not engage the Charter , common law abuse of process is subsumed by the Charter : R. v. O’Connor , [1995] 4 S.C.R. 411 at paras. 70–71. [364] In R. v. Jewitt , [1985] 2 S.C.R. 128, the Supreme Court of Canada affirmed the authority of trial judges to enter a stay of proceedings as a remedy for abuse of process. Chief Justice Dickson adopted the test in R. v. Young , [1984] 40 C.R. (3d) 289 (Ont. C.A.), holding that judges have the discretion to stay proceedings “where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings”, with the caveat that this power may only be exercised in the “clearest of cases”: Jewitt at 136–37. [365] The abuse of process doctrine has developed as a means by which to dissociate the courts from unacceptable conduct of investigatory and prosecutorial agencies in a variety of contexts where the conduct may offend the community’s sense of fair play and decency. It recognizes that while society depends on police “to actively protect us from the immense social and personal cost of crime”, there are “inherent limits” on the state’s power to “manipulate people and events for the purpose of … obtaining convictions”: R. v. Mack , [1988] 2 S.C.R. 903 at 940–41. As Justice Lamer (as he then was) explained in Mack at 938–39: [C]entral to our judicial system is the belief that the integrity of the court must be maintained. This is a basic principle upon which many other principles and rules depend. If the court is unable to preserve its own dignity by upholding values that our society views as essential, we will not long have a legal system which can pride itself on its commitment to justice and truth and which commands the respect of the community it serves. It is a deeply ingrained value in our democratic system that the ends do not justify the means. In particular, evidence or convictions may, at times, be obtained at too high a price. This proposition explains why as a society we insist on respect for individual rights and procedural guarantees in the criminal justice system. [366] In Babos , the Supreme Court of Canada set out the legal principles pertaining to the abuse of process doctrine, and when a judicial stay of proceedings may be ordered as a remedy for such abuse. Justice Moldaver, for the majority, affirmed the two categories of abuse of process cases in which a stay of proceedings may be warranted. The first relates to state conduct compromising the accused’s trial fairness (the “main category”); the second relates to state conduct that does not threaten trial fairness, but nonetheless risks undermining the integrity of the judicial process by engaging in conduct that offends societal notions of fair play and decency (the “residual category”). It was common ground at trial that the abuse in question fell into the residual category. [367] Regardless of the category into which the conduct falls, the test for determining whether a stay of proceedings is warranted involves assessing the following criteria: a) there must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetuated, or aggravated through the conduct of the trial or by its outcome; b) there must be no alternative remedy capable of redressing the prejudice; and c) where the first two criteria are not determinative, the court must balance the interests in favour of granting a stay (including denouncing misconduct and preserving the integrity of the justice system) against the societal interest in having a final decision on the merits. ( Babos at para. 32.) [368] Justice Moldaver emphasized the need in “residual category” cases to assess these criteria in relation to the impact on the integrity of the justice system, rather than as redress for past harm done to the specific accused before the court: Babos at paras. 38–39. In this category of cases, the balancing stage is particularly important as either option is likely to result in some form of prejudice to the integrity of the justice system, either by staying the proceedings or continuing them despite the misconduct. The elements the court must consider in the balancing exercise are: a) the nature and seriousness of the impugned conduct; b) whether the conduct is isolated or systemic and ongoing; c) the circumstances of the accused; d) the charges the accused faces; and e) the interests of society in having the charges disposed of on the merits. ( Babos at para. 41.) [369] The drastic nature of the remedy of a stay of proceedings – which permanently halts the prosecution, frustrates the truth‑seeking function of the trial, and deprives the public of the opportunity to see justice done on the merits – means that it will be ordered rarely and only in the “clearest of cases”: Babos at paras. 30–31, 44. Nevertheless, the more egregious the conduct in question and the more it shocks the community’s conscience and/or offends the community’s sense of fair play and decency, the more likely a stay of proceedings will be required to avoid judicial condonation of the impugned conduct: Babos at para. 41. (ii) [Heading Removed] [370] [Paragraph removed.] [371] [Paragraph removed.] (iii) The Vukelich Threshold [372] The “ Vukelich application”, as it has come to be known, allows a party to apply to the court to dismiss, on a summary basis, an application for an evidentiary hearing. This process is grounded in the fact there is no automatic right to a voir dire in a criminal trial. Rather, the appropriate procedure to follow in a particular case is a matter to be decided by the trial judge in accordance with their trial management powers. [373] Vukelich described the applicable threshold as being a question of whether a full hearing would “assist the proper trial of the real issues” or whether the grounds put forward in the application disclose any basis for the judge to issue the remedy sought: at para. 26. More recently, the Supreme Court of Canada has articulated this standard as requiring an application to have a “reasonable prospect” of success or of assisting in determining the issues before the court: R. v. Pires , 2005 SCC 66 at para. 35; R. v. Cody , 2017 SCC 31 at para. 38. This assessment is based on an assumption that the allegations advanced in the proposed application could be proven: R. v. Frederickson , 2018 BCCA 2 at para. 26. [374] The Crown and the appellants agree the “fundamental question” before the judge on a Vukelich application concerning abuse of process is whether a hearing would “assist in determining the issues before the court”, namely, whether there has been an abuse of process warranting a stay. (iv) Standard of Review of the Vukelich Rulings [375] The decision to decline to order a full evidentiary hearing is discretionary and is owed deference unless the discretion has not been exercised judicially. This is a high threshold, but may be met, for example, where the discretion is exercised on the basis of an incorrect legal conclusion: R. v. M.B. , 2016 BCCA 476 at paras. 46–48, 107; R. v. Vickerson , 2018 BCCA 39 at para. 60. (c) Positions of the Parties on the Open Vukelich Ruling (i) The Appellants’ Arguments [376] The appellants’ essential argument or “basic complaint”, as they set out in their joint factum, is the judge applied too strict a test under Vukelich in assessing whether an evidentiary hearing should be ordered. They develop this argument with reference to errors they allege regarding the judge’s application of the test for abuse of process set out in Babos . [377] The appellants argue the trial judge should have ended her Vukelich inquiry and ordered a full hearing upon determining the appellants’ conditions of confinement and the misconduct of the investigating officers could amount to abuses of process. They submit an evidentiary hearing should follow in any circumstance where the accused shows a basis for demonstrating that the impugned conduct is offensive to societal notions of fair play and decency. This is because the full extent and impact of the conduct, which cannot be known without a full hearing, is relevant to assessing each of the remaining stages of the Babos test, which involves a weighing and balancing exercise. To carry out that balancing exercise without providing the appellants an opportunity to demonstrate the full scope of the abuse is not only fundamentally unfair, but an error in principle. [378] The appellants contend the judge erred in failing to take their case at its highest because she could not have truly done so without considering their entire case as presented by evidence. Absent a full hearing, the appellants were prejudiced in meeting stage one of Babos because the Crown controlled information about the extent of the police misconduct and they were precluded from presenting their own evidence or expert evidence about the impact of their mistreatment in custody. [379] At stage three of Babos , the appellants argue the court cannot balance the factors outlined by Moldaver J. absent determinative factual findings with respect to the true seriousness of the conduct, whether the conduct is systemic, and the circumstances of the accused. The full impact of these criteria—and in particular, the ongoing impacts on the appellants of the conditions of confinement—could not be understood merely by accepting the appellants’ submissions at their highest; the judge needed to hear evidence to properly assess the weight of these factors. (ii) The Respondent’s Arguments [380] The Crown submits the appellants have failed to discharge their onus of demonstrating a reasonable basis on which their stay applications could be granted, or that an evidentiary hearing would assist the judge in assessing the merits of their application. The judge had a comprehensive understanding of the proposed facts and arguments and took them at their highest. However, she determined the circumstances of the crimes the appellants committed were so serious that the factors militating against a stay outweighed the factors in favour of granting one. She exercised her discretion judicially in dismissing their application, so this Court has no reason to intervene. [381] Further, the Crown submits, a stay of proceedings could never reasonably be granted for the alleged abuse of process in the circumstances of this case given the horrific nature of the offences. [382] As indicated earlier in these reasons, we conclude that errors made in the Sealed Vukelich Ruling require a new abuse of process hearing. It is therefore unnecessary to discretely address the appellants’ arguments on the open hearing. We will address the appellants’ submissions on whether the judge applied too strict a test on the Vukelich application together with our analysis of the Amici ’s submissions on the Sealed Vukelich Ruling. (d) Positions of the Parties on the Sealed Vukelich Ruling and Sealed Fresh Evidence (i) The Amici’s Arguments [383] The Amici present arguments on two separate records: one on the record before the judge on the closed Vukelich application; and the other based on an “enhanced” record that includes fresh evidence obtained from the Bacon proceedings, assuming its admission on appeal. [384] The Amici argue that even without the fresh evidence, the errors in the judge’s Sealed Vukelich Ruling, considered separately or cumulatively with the errors in her Open Vukelich Ruling, require an evidentiary hearing to determine whether this is one of those rarest of cases where a stay of proceedings is the only appropriate remedy for the abuse of process in question. In summarily dismissing the applications for a stay of proceedings for abuse of process, the Amici allege the judge erred by: a) drawing inferences in favour of the Crown rather than inferences available to support the stay application; b) [clause removed]; and c) concluding there was no reasonable possibility a stay would be entered in the circumstances. [385] The Amici submit the judge erred by engaging in a fact‑finding exercise based on the record before her on the Vukelich application. Rather than taking the case at its highest by accepting the inferences most favourable to the appellants, she preferred inferences that favoured the Crown’s position. The Amici submit the judge imposed too high a burden by effectively requiring them to demonstrate that the inferences they put forward were the only inferences available. Instead, she should have ordered a hearing to resolve the conflicts in the evidence. [386] [Paragraph removed.] [387] Finally, the Amici argue the judge’s balancing analysis at stage three of Babos was based on impermissible factual findings that led her to conclude the misconduct was based on isolated events and not part of a larger investigative strategy. [Sentence removed.] Accordingly, the judge erred in concluding the balance favoured entering the convictions because of the gravity of the offences and the applications had no reasonable prospect of success. [388] The Amici submit the “enhanced record” supports the need for an evidentiary hearing. [Two sentences removed.] This conduct is relevant to stage three of Babos , and there must be an evidentiary hearing to determine the issue. (ii) The Respondent’s Arguments [389] The Crown submits the judge did not engage in an impermissible fact‑finding exercise. Instead, she took the facts alleged by the Amici at their highest, and properly determined what inferences could and could not reasonably be drawn from them. The Crown says it is not the law that the judge had to draw the inferences most favourable to the Amici . Accepting this proposition would render the Vukelich hearing ineffective as a filtering mechanism. A judge is not required to draw inferences unavailable on the underlying facts. [390] Further, the Crown contends the Amici do not argue that the inferences the judge drew were unreasonable or not reasonably supported by the facts. It is for the trial judge to assess whether alternative inferences are merely possible or whether they rise to the level of being reasonable: R. v. Nguyen , 2020 BCCA 166 at paras. 23–24. [391] [Paragraph removed.] [392] Finally, the Crown argues that even if the judge erred as contended, there is still no reasonable likelihood that a stay of proceedings would be granted after a full evidentiary hearing given the horrific nature of the crimes. [Sentence removed.] [393] [Paragraph removed.] (e) Discussion [394] We disagree with the appellants that the judge failed to take their case at its highest in her Open Vukelich Ruling. She properly took the facts advanced by the appellants to be true, and proceeded with her analysis on that basis. This differs from her conclusion on the Amici ’s arguments. As explained below, we conclude the trial judge erred in her analysis in the Sealed Vukelich Ruling, and ultimately in her conclusion that it was unnecessary to have a hearing on whether a stay of proceedings should be granted as a remedy for abuse of process. Accordingly, a new hearing is required on this issue. (i) The Trial Judge Erred by Engaging in a Fact‑finding Exercise Instead of Taking the Amici’s Submissions at Their Highest [395] In our view, the trial judge erred by weighing the evidence, drawing inferences, and finding facts on the limited record before her – an exercise that demonstrates the applications were not appropriately decided on a Vukelich application. As a result, she made a related error in finding that an evidentiary hearing would not assist in resolving the issues before the court. [396] [Paragraph removed.] [397] Although she purported to take the Amici ’s arguments at their highest, the trial judge accepted the Crown’s argument that the materials available on the Vukelich hearing did not support the Amici ’s theory. [Two sentences removed.] [398] We agree with the Amici ’s submission that the trial judge erred in her application of the Vukelich test by failing to assume the truth of the facts sought to be proved and instead, without a complete evidentiary record, interpreted evidence in favour of the Crown’s position. In so doing, she failed to take the Amici ’s submissions at their highest. [One sentence and five clauses removed.] [399] [Paragraph removed.] [400] [Paragraph removed.] [401] This error is not, as the Crown submits, a palpable and overriding factual error, but a failure by the judge to judicially exercise her discretion under Vukelich . The gatekeeping function of the trial judge in this case was not meant to determine factual controversies without an evidentiary hearing. The judge had thousands of pages of documents before her on the Vukelich application. Indeed, in this case, the application could properly be characterized as a modified evidentiary hearing based on documentary evidence and submissions, but without viva voce evidence. [402] We disagree that the circumstances of this case are analogous to those in Nguyen . Nguyen was an appeal from an order made after trial, where the judge’s findings of the facts, and the inferences to be drawn from them, were based on a full evidentiary record. Here, the judge’s error was in making findings about the appropriate inferences to be drawn on the limited record before her on the Vukelich application, rather than permitting the defence to develop their case by adducing all the relevant evidence. Only then could the factual controversies be properly resolved. [403] On a Vukelich application, the judge should assume the facts the applicant seeks to prove as true and assess whether those facts, assuming they are ultimately proven, are legally capable of supporting the remedy sought. If the remedy could not flow from the facts alleged, the judge may exercise their discretion not to hold an evidentiary hearing: R. v. Armstrong , 2010 BCSC 1041 at para. 29, aff’d 2012 BCCA 242, leave to appeal ref’d [2012] S.C.C.A. No. 352. Here, the judge did not assume the facts the appellants sought to prove as true. Instead, she made findings of fact at a preliminary stage using an incomplete evidentiary record. She did what Justice Schultes warned against in R. v. Gill , 2018 BCSC 661 at para. 24, by deciding the merits of the proposed application: [24]      One thing the court must be careful not to do when deciding a Vukelich hearing is to inadvertently decide the actual merits of the proposed application. The only question for me at this stage is whether there are facts alleged, either in the notice or counsel's submissions, that if found in the defence's favour could support one of the remedies being sought. If there are such facts, the application should proceed to the next stage of a full hearing. [404] In sum, where there are factual controversies (and the facts the defence seeks to prove could support the remedy sought), the refusal to hold an evidentiary hearing is an error as it prematurely denies the defence the opportunity to demonstrate why their interpretation of the evidence should be preferred. This is particularly so when the defence allegations are such that they can likely only be established through cross‑examination. This does not mean the defence is entitled to put forward entirely speculative allegations of abuse and claim that they can only be proven in cross‑examination. However, where there is a reasonable basis for the allegation, the judge should permit the defence to pursue it. In our view, the Amici identified sufficiently reasonable interpretations and plausible inferences to justify an inquiry, and the trial judge erred by refusing to permit that inquiry. (ii) The Trial Judge Erred by Imposing Too High a Threshold on the Vukelich Application [405] In light of the cumulative bases advanced by the appellants and the Amici for a stay of proceedings, we conclude the judge erred by requiring too high a standard to permit an evidentiary hearing. We emphasize that the applicable threshold is a low one: Frederickson at para. 33 . The appellants and the Amici had provided, with reasonable particularity, the serious grounds upon which the stay applications were made — namely, the police misconduct in the investigation (systemic or otherwise) and the abuse relating to the appellants’ time in remand. Based on the record before the judge and in light of the required balancing at stage three of Babos , together with inferences available on the documents and submissions put before the judge, taken at their highest, we conclude the appellants and the Amici met the threshold of showing a full hearing would assist in determining whether the abuse of process warranted a stay. [406] The Vukelich hearing was introduced as an expedient process designed to prevent undue delay or potential abuse arising from frivolous applications for voir dires in circumstances where the applicant is unable to demonstrate that the results of the hearing could affect the admissibility of the impugned evidence at trial: R. v. Tse , 2008 BCSC 867 at para. 18. Similarly, Vukelich applications have been used to screen other applications that have no reasonable prospect of success, including applications for a stay of proceedings based on an alleged abuse of process: Trans Mountain Pipeline ULC v. Mivasair , 2020 BCCA 255 at paras. 50–52. [407] Vukelich applications were “never intended as a tool by which to prevent legitimate investigation of alleged Charter breaches” or to be a “protracted pre‑hearing examination of the minutiae of the accused’s application”: Tse at paras. 21–22. Extensive submissions concerning the ultimate merits of an application at the Vukelich hearing stage without the full evidentiary foundation have the potential to unduly limit the ambit of the inquiry that should be undertaken, resulting in an injustice: Tse at para. 24. Ironically, this can sometimes lead to circumstances in which Vukelich applications unnecessarily extend the length of the court’s inquiry into the issue, contrary to the goal of minimizing delay and improving efficiency in the conduct of legitimate applications and motions. [408] The Vukelich application is a type of “shortcut” sanctioned by the court where the circumstances clearly show the inquiry will not assist the court in resolving the issues before it. For example, Vukelich itself dealt with a Garofoli application, named after R. v. Garofoli , [1990] 2 S.C.R. 1421, challenging the validity of a wiretap authorization under s. 8 of the Charter . In applying the Garofoli test, the court can consider facts that are deleted from or added to the relevant material in support of the wiretap authorization. If the impugned information is removed from the material and there is still sufficient information to support the issuance of the wiretap, then it is clear that embarking on a hearing to determine whether to remove the offending information does not assist in the trial of the “real issues”. [409] Here, the circumstances were not so clear. In our view, the judge’s determination that the applications stood to be resolved by a balancing of factors at stage three of Babos supports the conclusion that the low Vukelich threshold was met. By this point, the judge had determined that stages one and two of the Babos test were made out on the face of the proposed defence application—namely, that the police misconduct would shock the community’s conscience and/or was offensive to societal notions of fair play and decency, the integrity of the justice system would be prejudiced by continuing the proceedings, and no remedy short of a stay was capable of redressing the prejudice. Clearly, these applications were not frivolous, and there was a reasonable basis on which to find that a stay of proceedings could be warranted. As noted, the balancing undertaken by the trial judge at stage three purported to determine the ultimate issue, but without all of the evidence. In the circumstances of this case, the appellants were, in fairness, entitled to present evidence to allow the court to fully weigh the relevant factors at each stage of the Babos test to determine the appropriate disposition. [410] As the judge failed to exercise her discretion judicially by misapplying the Vukelich principles, no deference is owed to her decision not to hold an evidentiary hearing. We conclude, on the record before the trial judge and the submissions of counsel, there is a reasonable likelihood that an evidentiary hearing would assist in determining whether a stay of proceedings is an appropriate remedy for the state misconduct in question. (iii) [Heading Removed] [411] [Paragraph removed.] [412] [Paragraph removed.] [413] [Paragraph removed.] (iv) The Amici’s Fresh Evidence Application [414] The Amici ’s proposed fresh evidence (as it relates to this issue) falls into the following four categories: a) Category 1 – [clause removed]; b) Category 2 – [clause removed]; c) Category 3 – [clause removed]; and d) Category 4 – [clause removed]. [415] Given our conclusion that a new hearing is required, it is not strictly necessary to consider the fresh evidence adduced on this issue. That evidence, if counsel so chooses, may be put before the judge who hears the appellants’ applications. However, a few examples from Categories 1 and 2 suffice to show it could be open to a judge to make different findings about the extent of the misconduct. The findings would depend on the judge’s assessment of the evidence and the credibility and reliability of the witnesses. The Crown concedes the relevance of all the fresh evidence and does not dispute due diligence with respect to certain evidence in Categories 1 and 2. In our view, the fresh evidence in Categories 1 and 2 establishes there was conflicting evidence about key facts relevant to the Amici ’s argument, the resolution of which requires an evidentiary hearing. [416] [Paragraph removed.] [417] [Paragraph removed.] [418] [Paragraph removed.] [419] [Paragraph removed.] [420] [Paragraph removed.] [421] For these reasons, the evidence discussed from Categories 1 and 2 is, under the Palmer test, reasonably capable of affecting the result of the Vukelich application. This supports our conclusion that an evidentiary hearing is required to determine the seriousness of the abuse of process and whether a stay would be an appropriate remedy. Further, even had the judge not erred as described, the fresh evidence alone justifies an evidentiary hearing. (v) There Are No Categories of Offences for Which a Stay of Proceedings Can Never Be an Appropriate Remedy for an Abuse of Process [422] We must also reject the Crown’s repeated submission that a stay of proceedings could never be an appropriate remedy given the seriousness of the offences. Regardless of the nature of the offences being investigated, the police have a duty to conduct themselves in accordance with the law and in a manner that gives the public confidence in their methods. To repeat Lamer J.’s comment in Mack , while society depends on police “to actively protect us from the immense social and personal cost of crime”, there are “inherent limits” on the state’s power to “manipulate people and events for the purpose of … obtaining convictions”: at 940–41. [423] It is in precisely this sort of high‑profile case where the police may be tempted to act contrary to their duties on the basis that “the ends justify the means”. This is contrary to the rule of law on which our system of government is founded. The court must always retain the ability to dissociate itself from disreputable state conduct by staying the proceedings, no matter how serious the offence. Accordingly, there is no category of offence that is beyond the ambit of the abuse of process doctrine. [424] In any event, we do not see the outcome of the balancing in the third stage of Babos as inevitable. The abuses of process accepted by the judge in her Vukelich Rulings included very serious allegations of police misconduct and improper cooperation between the RCMP and CSC to keep the appellants in horrific pretrial conditions to attempt to weaken their state of mind and get them to “crack”. The horrific nature of the offences does not preclude a stay of proceedings regardless of the severity of the abuse ultimately established on the evidence. (vi) [Heading Removed] [425] [Paragraph removed.] [426] [Paragraph removed.] [427] [Paragraph removed.] (vii) Conclusion [428] It follows from this analysis that we sustain the argument that the judge erred by concluding there was no reasonable prospect an evidentiary hearing would assist in the determination of the issue. Having weighed the evidence and drawn inferences that favoured the Crown, the judge’s application of the Babos test was flawed. Having found in favour of the Amici at stages one and two of Babos , her finding at stage three was distorted by the absence of an evidentiary record demonstrating the true nature and scope of the police misconduct alleged. The balancing could not properly be carried out without having resolved factual controversies about the full extent of the misconduct in question. In any event, the appellants’ applications were supported by sufficient information to show a reasonable prospect of success, and it should not have been decided using a summary procedure. Even if the judge had not erred, the fresh evidence tendered by the Amici would justify holding an evidentiary hearing. [429] We conclude the judge erred in granting the Crown’s Vukelich application and summarily dismissing the applications for a stay of proceedings. This Court’s Jurisdiction to Remit the Matter for a Hearing on the Issue of Abuse of Process [430] Having concluded the trial judge erred in granting the Crown’s Vukelich application, the question arises as to our jurisdiction to remit the matter to the trial court for a hearing to determine whether a stay of proceedings should issue as a remedy for abuse of process. R. v. Pearson , [1998] 3 S.C.R. 620, provides authority for our jurisdiction to make such an order under s. 686(1), (2), and (8) of the Criminal Code , which provides, in relevant part: 686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (b) may dismiss the appeal where (i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; (c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong conclusion respecting the effect of a special verdict, may order the conclusion to be recorded that appears to the court to be required by the verdict and may pass a sentence that is warranted in law in substitution for the sentence passed by the trial court; or (d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances. (2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and (a) direct a judgment or verdict of acquittal to be entered; or (b) order a new trial. (8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires. [431] Pearson also involved an application for a stay of proceedings following a finding of guilt based on an abuse of process, but in the context of entrapment which affected the appellants’ trial fairness rights rather than the residual abuse of process category. Mr. Pearson was convicted of drug trafficking offences after the trial judge rejected his entrapment argument. The Quebec Court of Appeal allowed his appeal in part, ordering a new trial limited to the issue of entrapment on the basis that the Crown failed to disclose information relevant only to that aspect of his case. The Supreme Court of Canada agreed the appeal court had the authority to make such an order under s. 686(8) of the Code : 13        In such circumstances [where the guilt of the accused is not in question], it is unnecessary and wasteful to reopen the issue of the appellant’s guilt or innocence on the substantive charges in a new trial. Such a result is not mandated by any fundamental right protected by the Canadian Charter of Rights and Freedoms . Under s. 686(8) of the Criminal Code of Canada, a court of appeal has the power to make an ancillary order limiting the scope of a new trial under s. 686(2) when “justice requires” that order. In our view, given the unique nature of an entrapment proceeding after a verdict of guilty, s. 686(8) provides broad enough statutory authority on which to rest the direction by an appeal court of an entrapment proceeding. 16        A court of appeal which orders a new trial limited to the issue of entrapment exercises its statutory jurisdiction under s. 686 of the Criminal Code in the following manner: where an accused successfully impugns the finding of no entrapment at his or her first entrapment hearing, the court of appeal “allows an appeal against conviction”, in accordance with the wording of s. 686(1). Then, pursuant to s. 686(2), the court of appeal “quashes the conviction” and “orders a new trial”. However, the quashing of the formal order of conviction does not, without more, entail the quashing of the underlying verdict of guilt . In most successful appeals against conviction, the court of appeal which quashes the conviction will also overturn the finding of guilt; however, the latter is not a legally necessary consequence of the former. Under s. 686(8), the court of appeal retains the jurisdiction to make an “additional order” to the effect that, although the formal order of conviction is quashed, the verdict of guilt is affirmed, and the new trial is to be limited to the post-verdict entrapment motion. [Emphasis added.] [432] The jurisdictional issue in this case is very similar to that in Pearson , as entrapment is also a form of abuse of process for which a stay of proceedings is an appropriate remedy: see also R. v. Imola , 2019 ONCA 556. Accordingly, we apply the reasoning in that case to the circumstances before us. Disposition [433] The appellants’ application to adduce fresh evidence is dismissed. The Amici ’s application to adduce the evidence contained in Category 5 of its fresh evidence application is dismissed. The Amici ’s fresh evidence application is granted to the extent of the indicated portions of Categories 1 and 2. As stated earlier in these reasons, it is unnecessary to address the remainder of the Amici ’s fresh evidence application. The Crown’s application to adduce fresh evidence is allowed to the extent it is used to address the appellants’ and the Amici ’s fresh evidence applications. [434] Pursuant to s. 686(1), (2), and (8) of the Code , we allow the appeals against the convictions and quash the convictions, but we affirm the verdicts of guilt. We give no effect to any of the grounds of appeal that would have resulted in a new trial. We remit the matter to the trial court for an evidentiary hearing on the applications for a stay of proceedings for abuse of process. “The Honourable Mr. Justice Tysoe” “The Honourable Madam Justice MacKenzie” “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: iAnthus Capital Holdings, Inc. v. Walmer Capital Limited, 2021 BCCA 48 Date: 20210129 Docket: CA47108 Between: iAnthus Capital Holdings, Inc. and iAnthus Capital Management, LLC Respondents (Petitioners) And Walmer Capital Limited, Island Investments Holdings Limited and Alastair Crawford Appellants (Respondents) And Senvest Master Fund, LP, Senvest Global (KY) LP, Hadron Alpha PLC – Hadron Alpha Select Fund, Hadron Healthcare and Consumer Special Opportunities Master Fund, Gotham Green Fund 1 L.P., Gotham Green Fund 1 (Q), L.P., Gotham Green Admin 1, LLC, Gotham Green Fund II, L.P., Gotham Green Fund II (Q), L.P., Gotham Green Credit Partners SPV I, L.P., Gotham Green Partners SPV V, L.P., Oasis Investment II Master Fund Ltd., Blue Sky Realty Corporation and Sean Zaboroski Respondents FILE SEALED IN PART Before: The Honourable Mr. Justice Tysoe The Honourable Madam Justice Fenlon The Honourable Madam Justice Fisher On appeal from:  An order of the Supreme Court of British Columbia, dated October 5, 2020 ( iAnthus Capital Holdings, Inc. (Re) , 2020 BCSC 1484, Vancouver Docket S207785) Oral Reasons for Judgment Counsel for the Appellants (via videoconference): B. Roberts Jones K. Richard M. MacDonald Counsel for the Respondents, iAnthus Capital Holdings Inc. and iAnthus Capital Management, LLC (via videoconference): V. Tickle J. Levine Counsel for the Respondents, Senvest Master Fund, LP, Senvest Global (KY) LP, Hadron Alpha PLC – Hadron Alpha Select Fund, Hadron Healthcare and Consumer Special Opportunities Master Fund (via videoconference): H.L. Williams R. Jacobs Counsel for the Respondents, Gotham Green Fund 1 L.P., Gotham Green Fund 1 (Q), L.P., Gotham Green Admin 1, LLC, Gotham Green Fund II, Gotham Green Fund II (Q), L.P., Gotham Green Credit Partners SPV I, L.P., Gotham Green Partners SPV V, L.P. (via videoconference): C.E. Hunter. Q.C. M. Milne-Smith Counsel for the Respondent, Oasis Investments II Master Fund Ltd. (via videoconference): E.N. Kolers M. Wahaj Place and Date of Hearing: Vancouver, British Columbia January 26, 2021 Place and Date of Judgment: Vancouver, British Columbia January 29, 2021 Summary: iAnthus applied for an order approving a plan of arrangement pursuant to the B.C. Business Corporations Act.  Although the plan was initially rejected, the judge approved the plan after iAnthus amended part of the plan to narrow the scope of a release of claims.  The appellants opposed the application and now appeal on the grounds that the judge erred in approving the plan because: (i) iAnthus made a misrepresentation to the court by stating that all material financial information had been given to the shareholders and the court, when this was incorrect; and (ii) the appellants were denied an alleged security interest under the plan of arrangement.  The appellants also apply to adduce fresh or new evidence regarding iAnthus’ financial status and related matters.  Held: Appeal dismissed.  The judge made a palpable, but not overriding, error in finding that there were no undisclosed material changes from iAnthus’ first quarter financial results.  The failure to deal with an alleged security interest of a different class does not bar approval of the plan.  The evidence the appellants seek to adduce is not admissible under the Palmer test because they did not exercise proper due diligence and the evidence could not reasonably be expected to have affected the shareholder vote or the judge’s decision.  The court is not required to reject a plan of arrangement solely because of inadequate financial disclosure, although it may be a relevant consideration. [1] TYSOE J.A. : The appellants appeal the order of a chambers judge dated October 5, 2020 approving a plan of arrangement, as amended, of the respondents, iAnthus Capital Holdings, Inc. and iAnthus Capital Management, LLC (together, “iAnthus”) pursuant to s. 291(4) of the Business Corporations Act , S.B.C. 2002, c. 57 [ BCBCA ].  The appellants also apply to introduce fresh or new evidence relating to the financial position of iAnthus. Background [2] iAnthus was incorporated under the laws of British Columbia, but it carries on business in the United States of America.  Its business involves the growing, processing and dispensing of medical and licensed cannabis in ten of the United States. [3] In addition to ordinary trade creditors, iAnthus has two main categories of creditors.  It owes approximately $97.5 million in principal to a group of secured creditors, which hold secured debentures charging iAnthus’ assets (the “Secured Notes”).  It owes the principal amount of $60 million to a group of unsecured creditors, which hold convertible unsecured debentures (the “Unsecured Notes”). [4] iAnthus was not able to make the March 2020 interest payment on its secured debt.  As of August 4, 2020, iAnthus owes accrued interest on the Secured Notes of approximately $8.6 million, and interest accrues at the rate of approximately $1.3 million a month.  The default on the interest payment constituted a cross default under the Unsecured Notes, and the entire principal amount of approximately $157.5 million owing on the two sets of Notes is now due and payable. [5] In early April, iAnthus formed a special committee of its board to consider alternatives in view of its liquidity predicament.  It invited expressions of interest for restructuring or investment opportunities from over 100 parties.  It received approximately 25 expressions of interest, and it spent considerable effort in evaluating them over the following three months. [6] On June 22, 2020, counsel for the agent for the holders of the Secured Notes delivered a demand letter and a notice of intention to enforce the security.  This brought to a head discussions between iAnthus, the holders of the Secured Notes and a group of the holders of the Unsecured Notes owning $55 million of the outstanding $60 million on the Unsecured Notes.  They began negotiations on a restructuring support agreement. [7] On July 7, 2020, the special committee of iAnthus’ board, with the assistance of a financial advisor, considered the expressions of interest that had been received and the proposed restructuring support agreement.  On July 10, 2020, iAnthus’ board accepted the recommendation of the special committee and approved the proposed restructuring support agreement.  On the same day, iAnthus entered into the agreement (the “Restructuring Agreement”).  The holders of the Secured Notes advanced interim financing of approximately $14.7 million so that iAnthus could continue operations until the restructuring was implemented. [8] The Restructuring Agreement provided that the restructuring would be implemented by way of a plan of arrangement pursuant to s. 291 of the BCBCA .  The main thrust of the restructuring was that debt would be converted to equity, the details of which are as follows: (a) the principal amount of the Secured Notes would be reduced from $97.5 million to $85 million (with the interest rate also being reduced from 13% to 8%); (b) the amount of the Unsecured Notes would be reduced from $60 million to zero; (c) the holders of the Secured Notes and the holders of the Unsecured Notes would provide new unsecured financing of $5 and $15 million, respectively; and (d) the holders of the Secured Notes and the holders of the Unsecured Notes would each receive shares in iAnthus representing 48.625% of the total outstanding shares in iAnthus. As the two groups of noteholders would receive a total of 97.25% of the shares in iAnthus, the result of the restructuring was that the existing shareholders would have their holdings diluted to 2.75% of the total shares. [9] The Restructuring Agreement also provided that the plan of arrangement was to include a release of claims against groups defined as “iAnthus Released Parties” and “Securityholders’ Released Parties” except for claims of gross negligence, fraud or wilful misconduct.  It further provided that there was to be an injunction against persons taking steps to enforce the released claims. [10] The Restructuring Agreement provided that unless it could be implemented by way of an arrangement under the BCBCA by December 31, 2020 without a pending appeal or stay, the restructuring would be implemented pursuant to the Companies’ Creditors Arrangement Act , R.S.C. 1985, c. C‑36 [ CCAA ] except that the shareholders would be entitled to no recovery.  This deadline has been extended to January 31, 2021. [11] The relevant terms of the Restructuring Agreement were incorporated into a plan of arrangement (the “Plan of Arrangement”).  As part of the process of having the Plan of Arrangement approved by the court, iAnthus obtained a fairness opinion from PricewaterhouseCoopers (“PwC”).  In opining that the restructuring was fair to the existing shareholders from a financial point of view, PwC noted that iAnthus was unable to cure the defaults on its existing financing or to source new third party financing and that it did not appear that iAnthus had any other feasible alternatives.  It also observed that existing shareholders are typically eliminated in capital structure reorganizations under the CCAA . [12] On September 14, 2020, iAnthus held meetings of the holders of the Secured Notes, the holders of the Unsecured Notes and the holders of iAnthus shares (which included holders of warrants and options) to consider the Plan of Arrangement.  Both sets of noteholders unanimously approved the Plan of Arrangement.  Of the shareholders who voted, 66.32% approved the Plan of Arrangement (a higher percentage of the holders of warrants and options also approved it).  iAnthus then sought approval of the Plan of Arrangement by the B.C. Supreme Court. Decisions of the Chambers Judge [13] The approval of the Plan of Arrangement by the court was opposed by the appellants and a shareholder, Sean Zaboroski.  In reasons for judgment dated September 28, 2020 and indexed as 2020 BCSC 1442 (the “First Judgment”), the chambers judge initially declined to approve the Plan of Arrangement because he found that the release and accompanying injunction contained in the plan rendered the arrangement unfair and unreasonable. [14] In the First Judgment, the judge applied the test for approval of a plan of arrangement as set out in BCE Inc. v. 1976 Debentureholders , 2008 SCC 69; namely: [156]    … the corporation on a s. 192 application must satisfy the court that: (1) the statutory procedures are met; (2) the application is put forward in good faith; and (3) the arrangement is fair and reasonable, in the sense that: (a) the arrangement has a valid business purpose; and (b) the objections of those whose rights are being arranged are resolved in a fair and balanced way. The judge concluded that the first two requirements were met and that, apart from the release and injunction, the Plan of Arrangement was fair and reasonable.  He then considered the proposed release and injunction at some length and concluded they were overly broad.  The judge did not dismiss the petition and granted iAnthus liberty to re‑apply to approve the Plan of Arrangement, as amended to narrow the scope of the release and injunction. [15] One of the submissions made by the appellants related to the claim they were making in a pending action in the B.C. Supreme Court.  In that action, the appellants say that they were entitled to a secured interest in the assets previously owned by a company called MPX Bioceutical ULC (“MPX”) that was combined with iAnthus through a plan of arrangement.  The appellants held debentures against these assets, and they maintained that the debentures continued to subsist because they were not honoured in accordance with the provisions of the plan of arrangement.  The appellants also claimed damages against one of iAnthus’ directors for breach of fiduciary obligations. [16] Relying on the decision of Bravio Technologies Ltd. (Re) , 2019 BCSC 2135 [ Bravio ], the appellants submitted that iAnthus was not putting the Plan of Arrangement forward in good faith because it would extinguish the rights claimed by them in the litigation.  They also argued that it was not fair for the Plan of Arrangement to fail to deal with their claim.  The chambers judge distinguished Bravio and held that the Plan of Arrangement did not extinguish the appellants’ claim because the proposed release did not affect the appellants’ ability to pursue their rights under their debentures.  He also held that their claim was not being ignored, but it was being defended in the litigation. [17] Another one of the appellants’ submissions was that the shareholders were not given the most recent financial information when they were asked to vote on the Plan of Arrangement.  The judge dealt with the submission in the following paragraph of the First Judgment: [52]      Walmer submits that the shareholders were denied access to the most up-to-date financial information prior to the shareholders’ meeting, because iAnthus took advantage of a regulatory extension to postpone making public its second quarter 2020 financial results in advance of the meeting. iAnthus responds that the shareholders were advised by press release that there were no undisclosed material changes from the first quarter financial results. I find that the shareholders were adequately informed. [18] The penultimate sentence of this paragraph was based on the following submission made by iAnthus’ counsel: And there is a – the press release, which is at paragraph – sorry – Exhibit R to Mr. Crawford’s affidavit and I’m sorry, I don’t have an easy way of telling you what page that is, but the – in that press release, the company discloses that they are relying on the OSC COVID exemption for this – to delay, but they also disclosed in that press release that there have been no material changes since the last financial, except as has been press released. [19] Unfortunately, that is not what the press release stated.  It was a press release issued by iAnthus on September 11, 2020 stating that the Ontario Securities Commission and other Canadian securities regulators had granted blanket exemptions allowing issuers an additional 45‑day period to complete regulatory filings due by August 31 and that iAnthus would be relying on the exemption for the filing of its interim financial statements for the three and six‑month period ended June 30, 2020 (which otherwise were required to have been filed by the end of August).  The press release contained the following sentence: The Company confirms that there have been no material business developments, other than as disclosed through news releases, since August 14, 2020, being the date that the last interim financial reports that were filed. These statements will gain significance when we review the fresh or new evidence that the appellants apply to introduce on appeal. [20] iAnthus did amend the Plan of Arrangement to narrow the scope of the release and to delete the injunction (the “Revised Plan”).  On further application, the judge approved the Revised Plan.  In his reasons for judgment dated October 5, 2020 and indexed as 2020 BCSC 1484 (the “Second Judgment”), the judge rejected further arguments made by the appellants and Mr. Zaboroski, and concluded that the Revised Plan was fair and reasonable. [21] On the further application, the appellants again made submissions in relation to their claim related to the MPX debentures.  They argued that the Revised Plan was not fair because the release would wipe out much of their claim.  The chambers judge disagreed with this position.  He again held that the release would not eliminate the appellants’ claim for a secured interest in the assets formerly owned by MPX.  He also commented that, while the release may limit the appellants’ ability to pursue the director for damages, it may be that the alleged conduct of the director could be characterized as fraud or wilful misconduct and that the release did not cover claims of such a nature. Fresh or New Evidence [22] I have used the terminology “fresh or new evidence” because there is a dispute between the parties as to whether the evidence in question is fresh or new.  Fresh evidence is evidence that was in existence at the time of the hearing in the lower court but was not introduced at the hearing.  New evidence is evidence that came into existence subsequent to the hearing in the lower court.  Appellate courts are less inclined to admit new evidence than fresh evidence. [23] The evidence that the appellants apply to admit consists of two affidavits in relation to iAnthus’ financial statements for the first and second quarters of 2020 (“Q1” and “Q2”).  The first affidavit exhibits the Q1 and Q2 statements.  The Q1 statements were published prior to the meetings held for voting on the Plan of Arrangement.  The Q2 statements would normally have been published prior to the meetings, but they were not published until October 15, 2020 as a result of the blanket exemption granted by the securities regulators. [24] These statements show that iAnthus’ revenues increased and its expenses decreased in Q2 in comparison to Q1.  The net result was an improvement of approximately $10 million in iAnthus’ cash flow in Q2, from a negative cash flow of $5.7 million in Q1 to a positive cash flow of $4.8 million in Q2. [25] The second affidavit exhibits an expert report of the accounting firm, Deloitte. Applying the materiality range used in audits of 1% to 2% of annual revenue, Deloitte expressed the view that the changes in cash flow in Q2 appeared to be significant and meaningful to a user of iAnthus’ financial statements.  The affidavit also contains an expression of an opinion by a principal of the appellants that, had the iAnthus shareholders been provided with the Q2 financial statements, they may not have voted in favour of the Plan of Arrangement. [26] The appellants have also filed three further items.  The first is an affidavit exhibiting a second expert report from Deloitte expressing opinions as to when iAnthus management would have been expected to receive financial information prior to the publication of quarterly financial statements.  The second is an affidavit of a principal of the appellants exhibiting favourable press releases issued by iAnthus after the Plan of Arrangement was approved, documents regarding the price of shares in iAnthus and other companies in the same industry over the past several months and an exchange of text messages with the former chief executive officer of iAnthus.  The third is an affidavit exhibiting a letter dated September 11, 2020, that one of iAnthus’ in‑house lawyers sent to the Nevada Cannabis Compliance Board regarding the transfer of a licence.  In the letter, the lawyer discussed iAnthus’ favourable Q2 financial results and iAnthus’ recapitalization, and commented that iAnthus was well positioned to generate $30 million of annual discretionary cash flow in order to repay existing debt or enable refinancing. Discussion [27] The appellants assert two errors by the chambers judge.  First, they say the judge erred in making his decision as a result of the misrepresentation of facts by iAnthus that all material financial information had been provided to the shareholders and the court.  Second, they maintain the judge erred in determining the Revised Plan to be fair and reasonable when they were denied their security interest under the Revised Plan. [28] In my opinion, the issues in this appeal can be conveniently divided into two categories.  The first is whether, apart from the additional evidence, the judge made errors on the face of the First or Second Judgment that would result in his order being set aside.  The second category is whether the additional evidence should be admitted and, if so, whether it would result in the judge’s order being set aside. [29] There are two sub‑issues in the first category; namely, whether the judge made a palpable and overriding error in para. 52 of the First Judgment and whether the judge erred in approving the Revised Plan when it did not deal with the appellants’ security interest. a) Palpable and Overriding Error [30] It is clear that the judge made a palpable error in para. 52 of the First Judgment.  The evidence did not support the submission made by iAnthus’ counsel, which the judge accepted, that the shareholders were advised by press release that there were no undisclosed material changes from the Q1 financial results.  The statement in the press release issued by iAnthus was that there had been no material business developments (other than those disclosed through press releases).  Although one may argue that it is a matter of semantics, it is my view there is a meaningful difference between changes in financial results and business developments.  I should add that I do not believe iAnthus’ counsel deliberately attempted to mislead the judge; she simply paraphrased the press release in a manner that was not quite accurate. [31] The issue then becomes whether the error was overriding.  An overriding error is one that is “determinative in the assessment of the balance of probabilities with respect to that factual issue”: Schwartz v. Canada , [1996] 1 S.C.R. 254 at para. 35. [32] In my opinion, the appellants have not demonstrated that the judge’s error was overriding.  It is likely the judge would have reached the same conclusion regarding the fairness and reasonableness of the Revised Plan had he understood that the press release referred to business developments rather than financial results.  In the circumstances in which iAnthus found itself, it would have been more important to shareholders to know whether there had been material business developments than to know about material changes from the Q1 financial results unless those changes were material to iAnthus’ ability to meet its debt obligations. b) Failure to Deal with MPX Debentures [33] On appeal, the appellants repeat the arguments they made to the chambers judge on this point.  They rely on Bravio to argue that the Plan of Arrangement was not put forward in good faith because it did not address their rights.  They also say that iAnthus should not have selectively chosen to exclude them from the Plan of Arrangement. [34] I agree with the chambers judge that Bravio is distinguishable.  In that case, there was a dispute as to whether certain shares claimed to be owned by a party were valid.  The plan of arrangement effectively extinguished the disputed shares.  Justice Marchand held that the plan of arrangement was not brought in good faith and was not fair and reasonable. [35] Bravio is distinguishable because, in the present case, the chambers judge held that the Revised Plan did not extinguish the appellants’ claim.  Their claim was left alone by the Revised Plan except to the limited extent the release may have affected their right to claim damages.  In that regard, counsel for the appellants advised us at the hearing of this appeal that they were in the process of amending their pleading in the litigation to allege fraud, and claims of fraud are not covered by the release contained in the Revised Plan.  The appellants’ right to claim security against the MPX assets was unaffected by the Revised Plan.  iAnthus was not compelled to concede the appellants’ claim in the Revised Plan. [36] The appellant’s second complaint is that their claimed debentures should have been included in the arrangement so that they would have received shares like the two groups of noteholders.  However, there was no requirement for iAnthus to settle the appellants’ claim as part of the arrangement.  More importantly, iAnthus was not obliged to include all classes of security holders in the arrangement.  Section 288(1)(i) of the BCBCA permits arrangements that propose a compromise between “the company and the persons holding its securities or any class of those persons”.  The appellants’ claimed debentures were of a different class than the secured debentures and the unsecured debentures because they created security over part of iAnthus’ assets only and had a different ranking of security. [37] I would not give effect to this ground of appeal. c) Admissibility of Fresh or New Evidence [38] In my view, the two affidavits that the appellants have formally applied to have admitted as evidence on this appeal should be treated as fresh evidence, not new evidence.  Although the Q2 financial statements were not published until 10 days after the Second Judgment, I am satisfied that the information contained in them was in existence prior to the two hearings before the chambers judge.  The first Deloitte expert report is a commentary on the Q2 financial statements and, in my view, its admissibility should be considered on the same basis as the Q2 financial statements themselves despite the fact that the report did not exist at the time of the fairness hearings. [39] Hence, the so‑called Palmer test applies to these affidavits, without consideration of the more stringent test applicable to new evidence.  As set out in Palmer v. The Queen , [1980] 1 S.C.R. 759 at 775, the court is to be guided by the following principles on an application to admit fresh evidence: (1)        The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [ McMartin v. The Queen , [1964] S.C.R. 484]. (2)        The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3)        The evidence must be credible in the sense that it is reasonably capable of belief, and (4)        It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. As pointed out in Golder Associates Ltd. v. North Coast Wind Energy Corp. , 2010 BCCA 263 at para. 37, the overarching consideration is whether it is in the interests of justice to admit the fresh evidence. [40] The respondents do not contest that the third component of the test is satisfied.  They do dispute that the first, second and fourth components are satisfied. [41] The applications to approve the Plan of Arrangement and the Revised Plan were not the first applications heard by the chambers judge in this matter.  On August 6, 2020, the judge granted an order that the meetings of the holders of the Secured Notes, the holders of the Unsecured Notes and the holders of iAnthus shares be held on September 14.  On September 4, the appellants applied for, among other things, production of certain documents.  One of the sets of documents the judge ordered iAnthus to produce to the appellants was all of the documents listed on page 10 of PwC’s fairness opinion.  One of those listed documents was “iAnthus draft May year to date financials, dated June 25, 2020”.  Those draft financial statements were provided to the appellants’ counsel approximately two weeks prior to the September 25 hearing before the chambers judge to consider approval of the Plan of Arrangement. [42] These draft financial statements contained iAnthus’ financial results on a monthly basis for the first five months of 2020 or, in other words, the three months of Q1 and the first two months of Q2.  They showed that net revenue was approximately the same for each of the first four months but was approximately $2 million higher in the fifth month.  They also showed that employee expenses were approximately $1 million per month less in the first two months of Q2 than they were in the first two months of Q1.  Finally, they showed that EBITDA ( viz ., earnings before interest, taxes, depreciation and amortization), which was negative, had improved by approximately $5 million from the first month of Q1 to the second month of Q2. [43] Accordingly, the appellants had in their possession most of the financial information that they now apply to introduce.  They did not make any submissions to the chambers judge about them, including, for instance, submissions that the draft Q2 financial statements should be produced before the application proceeded. [44] All the appellants say in response to this point is that they did not have enough time to digest the 3,000 pages of documents produced to them and that Deloitte did the best it could in the circumstances. [45] In my opinion, the appellants have not satisfied the due diligence requirement.  They may have received a voluminous set of documents, but they had specifically applied for production of the documents listed on page 10 of PwC’s fairness opinion.  The appellants or their advisors had obviously read the page and knew that one of the sets of documents they would be receiving was the draft financial statements for the first five months of 2020.  If those statements are as important as the appellants now say they are, one wonders why they or their advisors would not have made the minimal effort to look at them.  They did not exercise the due diligence that one would expect in the circumstances. [46] The second and fourth components of the Palmer test are related because fresh evidence cannot be reasonably expected to have affected the result unless it was relevant to a potentially decisive issue.  I will assume that the Q2 financial statements were relevant, and I will focus on whether the statements, together with the related evidence, could reasonably have been expected to affect the outcome. [47] Section 290(1) of the BCBCA requires that persons entitled to vote on a plan of arrangement be sent an explanation to permit those persons to form a reasoned judgment concerning the plan of arrangement.  As is usual for proposed arrangements, iAnthus sent an information circular to the holders of securities who would be entitled to vote on the Plan of Arrangement, including its shareholders. [48] In my opinion, the availability of the Q2 financial statements could not reasonably be expected to have significantly affected the shareholder vote or to have affected the assessment by the chambers judge that the Revised Plan was fair and reasonable in view of iAnthus’ following circumstances as set out in the information circular: (a) as a result of the state of the global cannabis industry, iAnthus faced liquidity challenges and did not make the March 2020 interest payment due on the Secured Notes; (b) the aggregate principal amount of $157.5 million owing on the Secured Notes and the Unsecured Notes had become due and payable; (c) the positive cash flow in Q2 was not sufficient to pay the outstanding interest due on the Secured Notes and the Unsecured Notes, much less their principal amount; (d) iAnthus unsuccessfully pursued other alternatives, including asset sales, cost reductions, revenue enhancements, refinancing or repayment of debt and issuance of new debt or equity; (e) the holders of the Secured Notes were in a position to enforce their security against iAnthus’ assets; (f) iAnthus needed to borrow an additional $14 million from the holders of the Secured Notes and Unsecured Notes for the continuation of its operations pending the implementation of the arrangement; and (g) if the proposed arrangement was not implemented, the Restructuring Agreement provided that the restructuring was to be pursued in a CCAA proceeding except that the shareholders would be entitled to no interest. [49] My opinion in this regard is reinforced by PwC’s fairness opinion.  PwC was given iAnthus’ financial statements for the first two months of Q2 and still expressed the opinion that the proposed arrangement was fair to iAnthus’ shareholders from a financial point of view.  It is extremely unlikely that PwC’s opinion would have changed had it received the financial statements for the third month of Q2.  It is also noteworthy that, while it is impossible to predict with certainty the outcome of CCAA proceedings, PwC noted that capital structure reorganizations under the CCAA typically eliminate common shareholders. [50] Accordingly, I conclude that it would not be in the interests of justice to admit into evidence iAnthus’ Q2 financial statements because the first and fourth components of the Palmer test have not been satisfied.  I would not admit the affidavit exhibiting those statements into evidence.  Nor would I admit into evidence the affidavit exhibiting the first Deloitte report because it is dependent on the Q2 financial statements being in evidence. [51] The Court would be justified in refusing to admit the three further affidavits into evidence because there is no formal application seeking their admission.  In any event, I would not have been inclined to admit any of them had there been a formal application.  Like the first Deloitte report, the second Deloitte report is dependent on the Q2 financial statements being in evidence.  For the same reasons that the Q2 financial statements do not meet the fourth Palmer component, the letter to the Nevada Cannabis Compliance Board could not reasonably be expected to have affected the judge’s assessment that the Revised Plan was fair and reasonable.  The exhibits to the third affidavit constitute new evidence, and no special circumstances exist to warrant their admission: see Fotsch v. Begin , 2015 BCCA 403 at para. 20. [52] I would like to deal with one final point.  Relying on Magna International, Re , 2010 ONSC 4123 [ Magna ], Plutonic Power Corp. (Re) , 2011 BCSC 804, and Imperial Trust Company v. Canbra Foods Ltd. (1987), 78 A.R. 267 (Q.B.), the appellants argue that the Revised Plan should not have been approved as a result of inadequate or incomplete financial disclosure.  This submission is not necessarily dependent on the fresh evidence the appellants applied to have admitted. [53] None of these authorities stand for the proposition that the court is required to refuse to approve a plan of arrangement if the financial disclosure is inadequate or incomplete.  They simply state that the court may refuse to approve a plan in those circumstances.  It is noteworthy that, in Magna , Justice Wilton‑Siegel qualified his comments by saying it would be an important consideration “particularly in the absence of a recommendation or a fairness opinion” (at para. 175).  In the present case, of course, there was a fairness opinion.  In any event, for the same reasons that the Q2 financial statements do not satisfy the fourth Palmer component, the absence of those statements in the present circumstances does not justify the court’s discretion being exercised to refuse to approve the Revised Plan. Conclusion [54] I would dismiss the appellants’ application to introduce fresh evidence, and I would dismiss the appeal. [55] FENLON J.A. : I agree. [56] FISHER J.A. : I agree. [57] TYSOE J.A. : The application to introduce fresh evidence is dismissed, and the appeal is dismissed. “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Costello, 2021 BCCA 59 Date: 20210129 Docket: CA47105 Between: Regina Respondent And Shaun Earl Martin Costello Appellant Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice DeWitt-Van Oosten (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated July 24, 2020 (sentence) ( R. v. Costello , 2020 BCSC 1206, Kelowna Docket 92217‑2). Oral Reasons for Judgment The Appellant, appearing in person (via teleconference): S.E.M. Costello (appeared January 28, 2021 only) Counsel for the Respondent (via teleconference): C. Lusk Place and Date of Hearing: Vancouver, British Columbia January 28, 2021 Place and Date of Judgment: Vancouver, British Columbia January 29, 2021 Summary: The appellant applied for the appointment of legal counsel to assist with an application for leave to appeal/appeal from sentence for aggravated assault. Held: Application denied. The appellant has not met the test for an appointment of counsel under s. 684(1) of the Criminal Code. [1] DEWITT-VAN OOSTEN J.A. : Shaun Costello applies for the appointment of legal counsel to represent him on an appeal from sentence for aggravated assault. Section 684(1) of the Criminal Code , R.S.C. 1985, c. C‑46 authorizes an appointment of counsel where doing so is “desirable in the interests of justice” and the appellant does not have “sufficient means” to obtain the assistance of a lawyer. [2] The Crown does not take issue with Mr. Costello’s assertion that he lacks sufficient means to retain counsel. The appellant is in custody and has no income, no assets, and no family to provide financial support. Mr. Costello applied for funding through the Legal Services Society (“LSS”), but was not successful. The “[in]sufficient means” component of the test for an appointment is clearly met. [3] The remaining question, then, is whether it is in the “interests of justice” that Mr. Costello receive the assistance of a lawyer to advance his appeal. Factors for consideration include: (1) the complexity of his appeal; (2) the points to be argued; (3) Mr. Costello’s competency to present the appeal; (4) the need for counsel to find facts, research law, or make argument; (5) the nature and extent of the penalty imposed; and (6) the merits of the appeal. (See R. v. Myles , 2020 BCCA 143 (Chambers) at para. 37; R. v. Silcoff , 2012 BCCA 463 at paras. 19–27.) Background [4] Before addressing those factors, I will briefly set out the background to the appeal. [5] On July 6, 2020, Mr. Costello pleaded guilty to aggravated assault, contrary to s. 268(1) of the Code . An aggravated assault is an assault that “wounds, maims, disfigures or endangers the life of the complainant.” In pleading guilty to the offence, Mr. Costello acknowledged his culpability on all essential elements. [6] Eighteen days after the guilty plea, on July 24, 2020, Mr. Costello received a sentence in the British Columbia Supreme Court of 3.5 years in prison for the offence, less 368 days’ credit for time spent in pre‑sentence custody. This left Mr. Costello with an additional 909 days to serve in prison (or, just shy of 2.5 years). Mr. Costello was represented by a lawyer when he entered his guilty plea and at sentencing. [7] The oral reasons for sentence are indexed as R. v. Costello , 2020 BCSC 1206. An Agreed Statement of Facts was before the sentencing judge. There is no need for me to set out the contents in detail. The published reasons for sentence attach the statement as an appendix and it can be accessed there. [8] I have reviewed the Agreed Statement of Facts. For purposes of these reasons, it is sufficient to note that the aggravated assault consisted of striking the victim on the right side of her face with enough force to cause a three‑centimetre laceration to her right cheek, as well as “undisplaced” fractures to the underlying facial bone. The assault occurred in the presence of the victim’s three‑year‑old child. It formed part of a physical altercation between Mr. Costello and the victim, in which the victim repeatedly struck Mr. Costello. At sentencing, the Crown acknowledged that the aggravated assault was a provoked assault and occurred in response to the victim’s conduct. It was accepted that Mr. Costello’s culpability for the offence lay in the use of excessive (and therefore unreasonable) force. At the time of the assault, Mr. Costello was on a probation order prohibiting him from having contact with the victim. That order arose from a conviction for a prior assault committed against the same victim, for which Mr. Costello was sentenced to three months’ imprisonment and 18 months’ probation. [9] Before imposing sentence, the judge reviewed Mr. Costello’s familial, educational and work history. He acknowledged that Mr. Costello has experienced mental health issues, including anxiety and depression. The judge found that Mr. Costello has “spent most of his adult life incarcerated”. While in prison, he has experienced hardship, including physical and psychological trauma inflicted by others. The judge noted that when programming has been made available to him, Mr. Costello has “actively been involved with and completed all programs”. [10] The victim of the aggravated assault provided an impact statement for use at sentencing, setting out the adverse psychological, emotional and physical affects of the offence. She said this included a scar, continued pain and other health challenges resulting from injury to her eye socket. In the statement, the victim said she was “considering” surgery to address ongoing issues associated with her injury. [11] The sentencing judge described Mr. Costello’s criminal record as “extensive”. It includes a prior conviction for aggravated assault of a three-year-old child (for which he received a four‑year prison term, upheld on appeal by this Court in R. v. Costello , 2003 BCCA 421); convictions for assault causing bodily harm; assault with a weapon; multiple convictions for common assault; abandoning a child; uttering threats; and dangerous driving. Some of the prior assaults were committed against intimate partners. At sentencing, the judge was provided with a list of Mr. Costello’s convictions that involved harm perpetrated against intimate partners and their children. That list is also attached as an appendix to the published reasons for sentence. [12] Mr. Costello also has convictions for breaching bail and probation orders intended to keep him out of contact with former partners. According to the reasons for sentence, he has 17 prior convictions for non‑compliance with a court order. Several of his convictions for violent offending were committed while bound by a bail or probation order. As noted, at the time of the offence at issue, Mr. Costello was bound by a court order prohibiting him from contact with the victim. [13] Mr. Costello provided a letter to the sentencing judge expressing remorse for his offence. He described himself as untreated for anxiety, depression and post‑traumatic stress disorder. Among other things, the letter spoke of an abusive home environment as a child and a sexual assault committed against him while incarcerated. [14] The Crown sought a sentence of four years’ imprisonment (less credit for time spent in pre‑sentence custody). The defence sought a sentence in the range of “368 days to 18 months”, or, at most, an effective two years’ less one day of imprisonment, followed by probation. In making that submission, Mr. Costello’s counsel emphasized the circumstances surrounding the assault; in particular, the victim’s physical aggression and a corresponding reduction in the appellant’s moral blameworthiness. The defence also pointed out that Mr. Costello pleaded guilty, avoiding the necessity of a trial, and, while awaiting sentence, his custodial conditions were rendered more severe by the COVID‑19 pandemic. Programs shut down; visits halted; and there was limited movement, amounting to the functional equivalent of a general lockdown. The defence suggested that because of the harshness of those conditions, Mr. Costello should receive enhanced credit for his pre‑sentence custody (an additional two months). [15] After reviewing numerous sentencing decisions for aggravated assault and other violent offences, including ones involving violence inflicted against an intimate partner, the judge imposed the equivalent of 3.5 years’ imprisonment. In doing so, he emphasized a number of aggravating factors. First, he saw the offence as one involving the abuse of an intimate partner. Second, at the time Mr. Costello committed the offence, he was on probation for an earlier assault on the same victim and under a no contact order. Third, the judge accepted that the assault has had a “lasting physical and psychological impact” on the victim and her child. Fourth, Mr. Costello has an “extensive prior record of violence towards previous intimate partners and children of his intimate partners”, and sentences of imprisonment do not appear to have deterred him from offending. [16] In his reasons, the judge also identified a number of mitigating factors. These included Mr. Costello’s guilty plea and his difficult personal circumstances, including a troubled childhood, cocaine addiction, and challenges while incarcerated. The judge also took into account the fact that Mr. Costello has taken counselling while in custody and “the COVID‑19 crisis”. [17] In light of a generally accepted range of sentence for aggravated assault of 16 months to six years’ imprisonment and the principles of denunciation, general and specific deterrence, the judge considered a 3.5‑year sentence to be a fit sentence in the circumstances. In addition to the prison term, he imposed a no‑contact order with the victim under s. 743.21 of the Code and a s. 109(1)(a.1) firearms prohibition order, and he ordered a DNA sample pursuant to s. 487.051(1). Positions on the Application [18] In his notice of appeal/application for leave to appeal (filed November 9, 2020), Mr. Costello alleges that the sentencing judge committed material errors in principle. He also contends that the sentence is unduly harsh and excessive. At the hearing of the s. 684(1) application, he identified three primary errors. [19] First, he says the judge overemphasized the seriousness of the victim’s injury based on a false claim by the victim that she requires surgery to repair the injury. Mr. Costello says that is not true, the victim has fabricated that claim, and the information available to both the Crown and the sentencing judge made the fabrication clear. He says that information was ignored. Second, the judge is said to have given insufficient weight to the fact that the assault was committed in response to physically aggressive behaviour by the victim. Instead, the judge approached the case as if Mr. Costello committed an unprovoked assault. Third, Mr. Costello says the judge wrongly treated the relationship between him and the victim as an “intimate partner” relationship. Mr. Costello says there was no longer an intimate relationship between the two of them and they were just friends. Finally, Mr. Costello says the sentence of 3.5 years’ imprisonment is clearly unreasonable (demonstrably unfit) in light of the manner in which the assault unfolded and the fact that he did not intend to injure the victim. He says he was responding to aggression, not intending to cause harm. [20] In his submissions before me, Mr. Costello also contended that his lawyer’s representation at sentencing was ineffective; he alleged corruption in the prosecution process before and after the guilty plea; and he said he was “muscled” into pleading guilty to aggravated assault. However, he acknowledges that he has not filed an appeal from conviction asking to have his guilty plea set aside on the ground that it was either involuntary or uninformed. He furthermore understands that on the appeal from sentence, this Court has no jurisdiction to go behind the plea. [21] Consistent with its usual practice, the Crown made no submissions on whether an appointment of counsel is appropriate in this case. However, to assist the Court in its determination, the Crown made submissions on the merits of the appeal—a factor for consideration under s. 684(1). The Crown says no material errors in principle are apparent from the face of the judge’s reasons. The judge turned his mind to the mitigating factors put forward on Mr. Costello’s behalf. At the same time, he was alive to the many aggravating factors, including the appellant’s demonstrated recidivism for violent offending. In light of the aggravating factors, the Crown says the judge was entitled to emphasize the sentencing principles of denunciation and deterrence (both general and specific) and that the 3.5‑year prison term is well within the generally accepted range of sentence for this type of an offence and this type of offender. [22] The Crown reminds the Court that a deferential standard of review applies to appeals from sentence. Before a division of this Court would interfere with the prison term, Mr. Costello would have to show that the judge committed a material error affecting the sentence (such that the sentence would have been different but for the error) or that the sentence is demonstrably unfit: R. v. Friesen , 2020 SCC 9 at paras. 25–29; R. v. Agin , 2018 BCCA 133 at paras. 56–57; R. v. Lacasse , 2015 SCC 64. Discussion [23] Having reviewed the material on the s. 684 application, I am satisfied that the application for leave to appeal/appeal from sentence does not raise unusual or complex legal or factual issues. Instead, this appeal will likely focus on the aggravating and mitigating factors identified by the sentencing judge; whether those findings were reasonably open to him on the record; and the relationship between those factors and the assessment of quantum , as informed by the generally accepted range of sentence for aggravated assault. [24] I am also satisfied, based on his submissions, that Mr. Costello is capable of pinpointing errors he says were made by the judge and explaining, from his perspective, how those errors affected the sentence. He is also able to explain why he says the sentence is too harsh in light of the circumstances surrounding the offence and the victim’s participation in a physical altercation. I appreciate that he does not have legal training, but Mr. Costello describes himself as someone familiar with the criminal justice system; he understands how the process works; and, importantly, he has the competency to address matters relevant to the task of appellate review. He prepared a letter for use at sentencing that was articulate, focused and relevant to the issues before the judge. That same capacity manifested itself in his submissions before me. [25] The generally accepted range for sentence of aggravated assault is well established ( R. v. Gill , 2014 BCCA 88 at para. 28), and the judge’s reasons for sentence offer a fairly comprehensive review of the relevant case law. This includes cases in which lesser sentences for aggravated assault have been imposed. Submissions on range and the appropriateness of where this case falls in that range can be made with reference to the authorities captured in the judge’s reasons. In other words, there does not appear to be a need for further research. [26] Mr. Costello received a sentence of 3.5 years’ imprisonment. That is a substantial sentence and a factor that, depending on the circumstances, can carry considerable weight in the s. 684(1) analysis. However, in light of the inherent seriousness of the offence and his criminal record, including prior convictions for violence, I see little merit in the appeal given the deferential standard of review. This factor weighs against an appointment of counsel. It is generally not in the interests of justice to appoint counsel where an appeal has no merit: Silcoff at para. 26. [27] Specific to Mr. Costello’s alleged errors, I see no indication from the reasons for sentence that the judge treated the offence as more serious on grounds that the injuries sustained by the victim necessitated surgical intervention. The judge identified the “lasting physical and psychological impact on [the complainant] and her daughter” as an aggravating feature of the case. However, he did not single out surgery as one of the reasons for that or make mention of the possibility of surgery in the analysis portion of his reasons. [28] In respect of the second alleged error, the Crown acknowledged at sentencing that the assault arose during the course of a physical fight with the victim and, as such, it was not unprovoked. Mr. Costello’s lawyer told the judge of injuries sustained by Mr. Costello in the altercation, highlighting the mutuality of physical aggression. The judge was alive to this submission, explicitly making mention of it in his reasons for sentence (at para. 38). He described the force used by Mr. Costello as “excessive and unreasonable” (at para. 79). By necessary implication, he acknowledged that this was not an unprovoked assault. When discussing the range of sentence, the judge noted that “unprovoked attack[s]” tend to fall at the higher end of the 16‑month to six‑year range (at para. 71). He did not place Mr. Costello’s sentence at the higher end. [29] Finally, Crown counsel described this case to the sentencing judge as one involving intimate partner violence. I have summarily reviewed the transcript of the proceedings at sentencing. I do not see that this characterization was contested by the defence. Moreover, it appears consistent with the record before the sentencing judge. This includes the Agreed Statement of Facts, which indicated that Mr. Costello and the victim were in an intimate relationship when a first assault occurred in 2018. They then “reunited” after his release from imprisonment one to two months before the assault that forms the subject matter of the application for leave to appeal. The aggravated assault occurred while vacationing together in Kelowna. [30] Although the merits of the appeal will be a matter for a division of this Court to decide, based on my review of the material, I see no real prospect of success in establishing that the sentence for aggravated assault was affected by a material error in principle or clearly unreasonable. I note that LSS denied Mr. Costello funding on grounds that the appeal carries no prospect of success. Although certainly not determinative, that is a relevant factor for consideration in deciding whether the application for leave to appeal raises arguable grounds: Silcoff at para. 27. I appreciate that in seeking an appointment of counsel, Mr. Costello does not bear an onus of showing that his appeal will succeed; rather, only that the grounds he seeks to put forward are arguable: R. v. J.J.P. , 2019 YKCA 16 at para. 11. [31] After consideration of the s. 684(1) factors, as a whole, I am not persuaded that the interests of justice favour the appointment of counsel in this matter. Disposition [32] Mr. Costello filed his notice of appeal/application for leave to appeal outside of the required timeline; as such, he requires an extension of time under s. 678(2) of the Code and R. 16 of the Criminal Appeal Rules . The Crown does not oppose an extension. [33] Accordingly, I grant an extension of time to November 20, 2020. However, for the reasons provided, I dismiss the application for the appointment of counsel under s. 684(1) of the Criminal Code . “The Honourable Madam Justice DeWitt-Van Oosten”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. T.L.P. , 2021 BCCA 36 Date: 20210129 Docket: CA44929 Between: Regina Respondent And T.L.P. Appellant Restriction on publication:  A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify complainants or witnesses, referred to by the initials C, K, J, A and X. This publication ban applies indefinitely unless otherwise ordered. Pursuant to s. 16(4) of the Sex Offender Information and Registration Act [ SOIRA ], no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA . Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Fenlon The Honourable Mr. Justice Fitch On appeal from:  An order of the Supreme Court of British Columbia, dated October 20, 2017 (sentence) ( R. v. T.L.P. , 2017 BCSC 1868, Quesnel Dockets 25328‑2 and 26049‑2). Counsel for the Appellant: S.R. Wright Counsel for the Respondent: M. Shah Place and Date of Hearing: Vancouver, British Columbia November 6, 2020 Place and Date of Judgment: Vancouver, British Columbia January 29, 2021 Written Reasons by: The Honourable Mr. Justice Fitch Concurred in by: The Honourable Chief Justice Bauman The Honourable Madam Justice Fenlon Summary: The appellant was convicted of 13 counts of sexual assault‑related offences committed against five young girls, four of whom were his nieces. He was found to be a dangerous offender and was sentenced to a determinate sentence of 11 years’ imprisonment to be followed by a 10‑year period of community supervision. He appeals from the designation and the determinate sentence arguing that the judge: (1) made a “Boutilier error” by failing to consider his treatment prospects at the designation stage; (2) erred by failing to consider prospects of control in the community at the designation stage; and (3) committed errors in principle in sentencing with respect to the offences committed against one of the victims. Held: Appeal dismissed. The judge properly considered the appellant’s treatment prospects at the designation stage. Even assuming error in principle on this point, the appellant’s designation as a dangerous offender was inevitable on the factual findings made by the sentencing judge. The judge did not err by failing to consider the prospect of community‑based control at the designation stage. The judge did err in principle by imposing what he understood to be the mandatory one‑year minimum sentence for two counts of sexual interference. The Crown had conceded its inability to establish that these offences were committed after the one‑year mandatory minimum sentence for sexual interference came into force. However, the sentences imposed were not unfit given the nature of the offences, the context in which they occurred, the appellant’s high moral culpability, and the need to protect the public from the risk of re‑offence. Reasons for Judgment of the Honourable Mr. Justice Fitch: I.   Introduction [1] The appellant was convicted in 2015 by a Supreme Court judge of 13 counts of sexual assault‑related offences committed against five young girls. The offences occurred between 2001 and 2013. The victims were between four and 10 years of age. Four of the victims were nieces of the appellant. The fifth victim is the daughter of friends the appellant was living with when he sexually abused her. [2] Following conviction, a risk assessment was ordered pursuant to s. 752.1 of the Criminal Code , R.S.C. 1985, c. C‑46 [ Code ]. The assessment was assigned to Dr. Hughes Hervé. The appellant co‑operated with the assessment. He was found to meet the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM‑V) criteria for the following diagnoses: Pedophilic Disorder and Schizotypal Personality Disorder with Paranoid, Narcissistic and Antisocial Features. Dr. Hervé concluded that the appellant was at high risk to commit sexual offences against prepubescent girls in the future. His future treatment prospects were assessed as being “poor”. As Dr. Hervé put it in his assessment report, the appellant “is unlikely to fully address his criminogenic needs so as to be able to substantially reduce his risk to children”. Dr. Hervé did note, however, that the appellant “responds relatively well to structured, predictable, stable and supervised environments, both within institutions and in the community”. While the appellant can be a challenging person to supervise, he has generally followed externally‑imposed rules in the past, particularly when they are clearly articulated and consistently enforced. [3] Following receipt of the assessment report, the Crown applied to have the appellant designated a dangerous offender pursuant to s. 753(1)(a)(i) and (ii) and s. 753(1)(b) of the Code . The predicate offences relied on by the Crown were those committed against the appellant’s nieces. The offence involving the fifth victim was relied on by the Crown to assist in establishing the requisite pattern of behaviour. [4] Despite seeking a dangerous offender designation, the Crown conceded the evidence established that the significant risk the appellant poses to the public could be managed through the imposition of a lengthy period of incarceration to be followed by a 10‑year long‑term supervision order. [5] While the appellant contested his designation as a dangerous offender, he conceded that: · some of the predicate offences for which he was found guilty—specifically, the sexual assault offences—are defined as “serious personal injury offences” within the meaning of subparagraph (b) of the definition of “serious personal injury offence” set out in s. 752 of the Criminal Code , R.S.C. 1985, c. C‑46 [ Code ]; · the evidence established the requisite patterns of behaviour under s. 753(1)(a)(i) and (ii) of the Code ; · the evidence established a failure by him to restrain his behaviour in the past as required by s. 753(1)(a)(i) of the Code ; · the evidence established a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his past behaviour as required by s. 753(1)(a)(ii) of the Code ; and · the evidence established a failure to control his sexual impulses in the past as required by s. 753(1)(b) of the Code . [6] The appellant argued in the trial court that the evidence fell short of establishing the likelihood that he would fail to control his sexual impulses in the future. [7] The appellant sought dismissal of the Crown’s application to designate him a dangerous offender but conceded that he met the criteria for designation as a long‑term offender under s. 753.1 of the Code . He sought a shorter determinate sentence, but agreed that a 10‑year period of post‑release community supervision was appropriate. [8] The dangerous offender hearing was concluded and reasons for judgment, indexed as 2017 BCSC 1868, were given on October 20, 2017. The reasons were delivered after the release of this Court’s judgment in R. v. Boutilier , 2016 BCCA 235, but before the Supreme Court of Canada rendered judgment in the same case on December 21, 2017, for reasons indexed as 2017 SCC 64 (“ Boutilier (SCC)”). [9] The judge concluded there is a likelihood the appellant will fail to control his sexual impulses in the future and designated him a dangerous offender. Pursuant to s. 753(4)(b) of the Code , the judge imposed a global determinate sentence of 11 years’ imprisonment to be followed by a 10‑year long‑term supervision order. [10] The appellant appeals under s. 759(1) of the Code . He seeks an order allowing the appeal, setting aside the dangerous offender designation and substituting a long‑term offender designation. He also seeks a one‑year reduction of the determinate sentence imposed in the trial court. [11] In support of the order he seeks, the appellant submits that: 1.  The judge erred in principle by failing to consider his treatment prospects at the designation stage as required by Boutilier (SCC); 2.  The judge erred in principle by making a dangerous offender designation despite finding that he could be managed or controlled within the confines of a determinate sentence followed by a long‑term supervision order; and 3.  The judge committed material errors in principle in sentencing him for the offences he committed against K. [12] For reasons I will develop, I am not persuaded that the judge committed reversible error in principle by failing to consider the appellant’s treatment prospects at the designation stage, or by failing to consider at the designation stage whether he could be successfully managed in the community through the imposition of strict supervisory controls. I am persuaded that the judge erred in principle in sentencing the appellant for two counts of sexual interference involving K, and that the error had a material impact on the sentence imposed on those counts. Considering the matter afresh, with due deference to the factual findings made by the judge concerning the circumstances of the offences involving K and the context in which those offences were committed, I am not, however, persuaded that the overall sentence imposed in relation to the K counts is unfit. In the result, I would dismiss the appeal. II.  Background Overview [13] The grooming behaviour and criminal conduct engaged in by the appellant with respect to the five prepubescent female victims is depressingly familiar. What sets this case apart is the appellant’s entrenched belief that his conduct was justified, that he did nothing wrong, and that his victims were not harmed. [14] The appellant testified at trial. He admitted most of the allegations and volunteered information about his offending behaviour that went well beyond that which was led by the Crown. He testified that the five victims were, despite their ages, capable of consenting to the sexual acts he committed and, further, that the sexual activity he engaged in with the victims was not undertaken for a sexual purpose. He said that he sought to educate these children about the way in which sexual predators operate in order to “pedophile proof” them. [15] The trial judge rejected the self‑protective fiction inherent in the appellant’s account and found that he was motivated throughout by malign intent and sexually deviant impulses he could not control. [16] The appellant’s evidence was summarized by the trial judge in oral reasons for conviction, indexed as 2015 BCSC 618: [32]      Although the accused did admit to knowing the complainants’ ages he did nevertheless seek to suggest that the five children were somehow capable of consenting to the sexual offending with which he is charged. [36]      The accused’s testimony concerning his belief in the ability of a child of tender years to consent is based upon his adherence to a belief system espoused by those persons who style themselves Freemen‑on‑the‑Land or some iteration thereof. [37]      To the extent I understand his evidence, the accused says that consent is a matter of contract formed by offer and acceptance in social settings in which, unless an offer is refused and notice of refusal given to the offeree, consent is established. He asserts also that silence in the face of an offer, whether verbal or physical, for example, an unwanted touching of a person, can result in acceptance and therefore establish consent. [39]      Other than the repugnant notion that children of the ages of these complainants could consent to the sexual activity for which he has been charged, the accused has also sought to justify and decriminalize his behaviour by reference to what he considers to be appropriate methods to teach children of tender years about all aspects of sexual activity they might encounter so that they will not become victims of sexual predators. He also espouses the theory that if such children do become sexual victims, they will know that they are not to blame and will not suffer guilt. [40]      A part of his theory also is that children of tender years are inherently sexual and that if they are not properly taught about sexual activity in all of its aspects and possibilities so that they will have full knowledge about those sexual topics, they will explore sexuality in ways that might prove harmful to them and prevent healthy sexual development in later years into their adulthood. [41]      Those notions have become an essential part of the accused’s belief system based upon his observation and participation in discussions about child sexual abuse and pornography and child development on a website he identified as “Anonymous,” which he believes to be credible and in respect of which he has contributed. [42]      Primarily, based upon those theories, the accused testified and has submitted that the admitted sexual activity in which he engaged with the complainants and most specifically with, his four nieces, were not engaged in for a sexual purpose. He says they were engaged in solely for the purposes of teaching and development of trust relationships with them that would encourage them to come to him with sexual issues, questions, or concerns in the future after having been so instructed. [17] With respect to the appellant’s evidence that his actions were not undertaken for a sexual purpose, the judge said this: [70]      Firstly, I find that the evidence establishes that the accused has become obsessed with childhood sexuality. When that obsession first arose is not capable of determination on the evidence at this trial, but I have no doubt that it had started by at least 2001 when he became sexually involved with C. in violating and dominating her sexually. [71]      Secondly, I find that his obsession continued and became more entrenched in the years leading up to 2012 when his actions which are the subject of these proceedings escalated to involve his four nieces. That obsession is evidenced by his acknowledgement of the influence of the website “Anonymous” on his thinking and what he says is his study and knowledge of the subjects of child pornography, child sexuality, childhood sexual development, and the effect of sexual abuse on children in years following such abuse. [72]      Thirdly, I find that the accused decided that his knowledge of childhood sexuality, which he believed exceeded that of the general public and the children’s own parents, coupled with his Freeman philosophies, led him to believe that he had the right to insert himself into the lives of his nieces in areas which he knew were primarily the responsibility of their parents even though he knew they were all good parents because the accused believed he had some obligation to “pedophile‑proof” the children. [73]      That concept of “pedophile‑proofing” was something which he had discussed on Anonymous and had participated in developing. Part of that participation included techniques that he deliberately later engaged in with respect to his youngest nieces, in part, to seek to bring himself into their “inner” circle so that they would in future come to him with sexual questions and keep the specifics of his techniques secret. [74]      Fourthly, while he says that what he was doing was for the sexual protection of the children, his waiting for times in which there was no parental or other adult supervision of his interaction with the children leads me to the conclusions that the accused not only knew that what he was doing would be seen to be wrong but was still prepared to deliberately engage in those because he was convinced of his superior knowledge and abilities as well as the correctness of his philosophies concerning childhood sexuality and development which he believed should prevail over the rights of his nieces’ parents. [75]      Fifthly, I am satisfied that the accused’s unfounded belief in the superiority of his knowledge, coupled with his other philosophies, caused him to disregard known social norms of which he was well aware, but with which he did not agree, because they conflict [with] his own views of the world. He did so in deliberately seeking out his nieces for sexual instruction and philosophical teachings that he considered appropriate, notwithstanding their tender ages. He also did so notwithstanding that what he was doing in secret to build trust by exposing the children to what he believed had no potential for lasting harm because he said he was trying to protect them from abusers they might encounter in the future. [18] Not surprisingly, the judge rejected the appellant’s self‑serving explanations. He concluded that the appellant’s “actions … amounted to little more than the methodology by which pedophiles groom their victims” preparatory to acts of sexual abuse. [19] The appellant’s diagnosed pedophilic disorder coupled with his complete lack of insight understandably featured prominently in the judge’s conclusion that it was highly unlikely any treatment would successfully address the root causes of his behaviour or assist him in restraining his sexual impulses in the future. The Offences [20] I will summarize the offences briefly and in chronological order. I should add that the judge misspoke on several occasions in his reasons when addressing the counts that were to be stayed pursuant to Kienapple v. The Queen (1974), [1975] 1 S.C.R. 729. This gave rise to some confusion and doubt about whether the Warrant of Committal accurately reflected the intention of the sentencing court. As the confusion persisted when the appeal was argued, the parties were invited to appear before the sentencing judge to seek clarification and directions. Since reserving judgment, we have been advised by counsel that the judge ordered the Warrant of Committal to be amended to give effect to his intention that the sexual assault counts be stayed and that convictions be entered on the companion counts of sexual interference and invitation to sexual touching, contrary to ss. 151 and 152 of the Code . The convictions referred to herein with respect to each of the complainants are those reflected on the amended Warrant of Committal. [21] The offences involving the victim C were first in time. C is the only complainant not related to the appellant. She lived with her parents in a house also occupied by the appellant. The offences occurred in 2001 and 2002. C was sexually abused by the appellant on multiple occasions. On one such occasion, the appellant showed C his penis because he said she kept “bugging” him for sexual contact. At the time of the incidents, C was between four and five years old. The appellant admitted that on one other occasion when he said C wanted sexual contact with him, he bounced her on his knee while the lower half of her body was unclothed. The appellant said his intention was to initiate hard contact with C’s vaginal area and anus in order to cause her some pain. On a third occasion when he was alone with C after her fifth birthday, the appellant testified that instead of committing an act involving cunnilingus, he pinched C just above her vagina to inflict pain. The appellant said he did this so C would not like sexual activity and would not continue to seek it out. The judge found that the appellant was in a position of trust when the offences were committed. The appellant was found guilty of sexual assault (Count 7) and sexual interference (Count 8) in relation to C. The sexual assault count was conditionally stayed. [22] The appellant was found guilty of two counts of sexual assault and two companion counts of sexual interference in relation to K. The offences consisted of two acts committed by the appellant at different times and in two different locations between January 2011 and January 2013. K was between six and eight or nine years of age when the appellant sexually abused her. The appellant engaged K in discussions about sex and what to do if someone did something wrong to her. K said she would tell her mother. The appellant told her this was not the right thing to do and, acting on some bizarre notion espoused by Freeman‑of‑the‑Land, told her that she had to first say “no” to her abuser and give a second rejection or “notice of default”. He told her that silence meant consent. In the first incident, the appellant put his hand on K’s vaginal area while she was clothed to demonstrate to her how she should respond to a sexual predator. In the second incident, he put his hand beneath her underwear and touched the skin above her vagina, telling her that sex felt good. Convictions were entered on two counts of sexual interference (Counts 13 and 15). The sexual assault counts were conditionally stayed. [23] The appellant was found guilty of sexual assault (Count 10), sexual interference (Count 11) and invitation to sexual touching (Count 12) in relation to J. The sexual assault count was conditionally stayed. These offences occurred between February 2012 and January 2, 2013. J was between four and five years old when she was violated by the appellant. The offences were committed when the appellant came to live with his sister and her husband. The appellant groomed J for sexual abuse by secretly engaging her in discussions about male and female genitalia while both of them were unclothed, naming for her male and female sexual organs, showing her his penis, and demonstrating for J various sexual acts that involved bodily contact while both of them were clothed. He also encouraged her to masturbate and engage with him in sexual role‑playing. Within three months, the appellant violated J’s sexual integrity by having her submit to an act of oral sex the appellant testified was designed to give her pleasure. He also used a toy on J’s anus which caused her pain. The appellant claimed that he did this so J would understand she needed to be more careful when touching herself in sensitive areas of her body. The judge found that the appellant’s conduct displayed a disregard for social norms with which he does not agree and that he manipulated J and her family for his own sexual gratification. Significantly, he also found that the appellant would have continued to abuse J had he not been arrested in January of 2013. [24] The appellant sexually abused his nieces A and X, who are sisters, when he was looking after them on New Year’s Eve in 2012. A was seven years of age when she was sexually abused by the appellant. X was five. [25] The appellant admitted that he followed the same “pedophile proofing” steps with A as he had with J, but did so in an 18 hour rather than a nine‑month period of time. On this occasion, the grooming also included showing both children pornographic images. The appellant told Dr. Hervé that one of the images he showed both victims depicted a child crying while being raped. [26] The appellant admitted examining A’s vagina. He said he did so to ensure that her hymen remained intact and dispel his professed (and unsupported) concern that A was being sexually abused. X watched and was enlisted by the appellant to participate in the “examination” by touching her sister’s vagina. The appellant also admitted that he tried to get an erection to show A what an erect penis looks like. He then put his penis into her mouth. He also subjected A to an act of cunnilingus in the presence of X. The appellant was found guilty of sexual assault (Count 2), sexual interference (Count 1) and invitation to sexual touching (Count 3) in relation to A. The sexual assault count was conditionally stayed. [27] With respect to X, the appellant admitted taking her pants off and spreading her legs, or causing her to do so, so that he and A could examine her vaginal area. X touched herself in the vaginal area while this was occurring. The judge had a reasonable doubt about whether the appellant touched X during the “examination”. The appellant was convicted of invitation to sexual touching in relation to X (Count 6). [28] The appellant was arrested on January 1, 2013. He was released on bail two days later. While there were some difficulties associated with supervising the appellant while on judicial interim release, he was not convicted of breaching his recognizance between his arrest and the conclusion of the trial. [29] The appellant was convicted on March 6, 2015. He was remanded in custody pending the imposition of sentence. The appellant served 31.5 months in pre‑sentence custody. [30] After the conclusion of the dangerous offender hearing, the appellant pleaded guilty to one count of possessing child pornography, contrary to s. 163.1(4) of the Code . The Crown and defence jointly submitted that a one‑year sentence of imprisonment be imposed for this offence, concurrent to the sentences imposed on all other counts. Victim Impact [31] A number of victim impact statements were provided to the sentencing judge. Those statements speak powerfully to the harm caused by the appellant, including the devastating impact of his behaviour on the parents of the victims who were betrayed by him. They also speak to disturbing behavioural changes some of the parents have noted their children to display since the offences were committed. Finally, they address the inevitable trauma associated with a child of tender years undergoing a sexual assault examination. The Offender [32] The appellant was 43 years of age when Dr. Hervé conducted his risk assessment. He was 45 when sentence was imposed. He had no prior criminal record. [33] The appellant has two sisters who are the mothers of the complainants, K, J, A and X. [34] The appellant has two children, a son and daughter, from a marriage that appears to have ended in 2001. He has been estranged from his ex‑wife and children for many years. The appellant testified at trial that he removed himself from his daughter’s life when she was three or four years old because he wanted to protect her from what he then thought might be his own pedophilic urges. [35] The appellant began accessing child pornography in the late 1990’s. He became obsessed with conducting research on child sexual abuse and started affiliating with a number of fringe groups including Anonymous, a network of individuals he claims is responsible for identifying child sexual predators on the Internet, and Freemen‑on‑the‑Land. In his interview with Dr. Hervé, the appellant said these groups reshaped his worldview into what it has become today. [36] The appellant lived somewhat of a transient lifestyle after leaving his family before taking up residence with a friend and committing the sexual offences against C in 2001. Letters Sent by the Appellant Prior to Sentencing [37] The extent to which the appellant is entrenched in his self‑protective narrative and deviant disorder is apparent from letters he sent to the prosecutor and others before sentence was imposed. A brief sampling of those letters is set out below: You are wrong about me. When I taught my nieces about sex it was to protect them, because knowledge is power. I did not teach them about sex as part of a grooming regimen to later abuse them, as suggested by the Judge, and really, the idea is flawed, for if I wanted sex with my nieces, there would have been nothing to stop me … Never once did I become sexually aroused while teaching my nieces about sex, and if I had, I would have stopped, immediately, and sought out help, because I do understand about the damage that early childhood sexual abuse causes … I sought to protect my nieces from such abuses through knowledge, and they are protected. Especially J, who received many more lessons and more practice than the others. No one, no matter how adept at luring or abusing children, could lure or abuse her Please understand that I am not trying to downplay what I have done. I just do not see how it was wrong, and I think both you and the Judge (and also the police and my family) have made false presumptions as a result of a deeply held societal confirmation bias. I acted to protect those closest to me from very real dangers that few people understand … What I did was a mistake, but I don’t see it as a crime My purpose was to do a good thing, and while I failed to do so … The fact that I was not motivated by ill intentions should have excused my actions … I have concluded that there are definitely some problems with the way child abuse cases are handled, whereby I, as a child of God any veritable master of private international commercial law, will be making some changes My thinking and understanding of the world is so far apart from that of the average Canadian that I cannot be or rightly be considered to be a citizen of Canada, for is not a society a group of peoples gathered together with a common understanding for a shared purpose? And are statutes not the legislated rules of a society, binding only those who belong to that society? I am a Crown‑Freeman of the Crown‑Freeman Society. I am not a Canadian Note also that none of the girls had a problem with any of it. I do not understand how I harmed anyone. Note that the greatest harm done to an abused child is done by the courts, who, by their actions, cause lables [sic] to be affixed to the child ; victim, abused, survivor, complainant, such names stay with the child forever, making their past almost inescapable. [Emphasis added.] [38] In other correspondence, the appellant asserted that he was sovereign and, therefore, immune from prosecution. He further asserted and that he had a lawful excuse for ignoring any order issued by any Canadian court. He gave notice of his intention to seek $70 million in damages against the Crown unless the prosecutor repented and sought forgiveness. [39] Later, the appellant wrote the prosecutor a letter in which he stated: I would be happy to agree to an LTO if we can come to terms but first, let us agree that I am not an offender , but a deceiver for the Great Work, where lies are excused, because the end justifies the means. I did not abuse my nieces. Rather, I taught them about sex, and about their rights, and about how to say no, and about when to say yes [A]nd I did this because of the immense love that I have for them. [Emphasis added.] [40] The appellant also explained to the prosecutor that he wished to continue his work with the Anonymous, by surreptitiously ferreting out the activities of pedophiles: The plan then, is to create a secret society, wherein the outward appearance is a pedo‑friendly community where pedo‑sexuals … can meet and mingle with others like themselves, and possibly even meet sexually active children to have relationships with, but inwardly, secretly, the society is a prison for them, and a place of safety and healing for their victims. For such a plan to work, I need standing with the pedophiles. I must be able to stand among them, as one of them, so that they could believe me when I say that a society exists … and that they could be a member too, if they choose Now that you know my mind, here is what I wish. I want as short a sentence as possible. I would have liked to take the corrective programs myself, to have the experience, as I will be sending countless others to do so, but it is enough to know that the program is, at least partly, effective. That said, if I must serve some (more) time, then I do want to take such programs. I want a 10 year L.T.O., so I can have proof on hand for as long as possible that I am “one of them”, but I want lenient conditions. Reporting is to be by phone only, as I will be travelling often, to go where the pedophiles are, to recruit them into service and initiate them into...the secret society which I create. I will need to reside at a designated location, but this must never be checked, as I will often not be there. I can have no restrictions on weapons, as I will carry a gun by claim of right, because my life will be in constant danger, even more so than it is now. Neither can I have restrictions on Internet access, as initial contact will be made, in most cases, by computer, or, if such a condition is included, an agreement that it not be enforced. I am agreeable to any other condition which does not limit my ability to be effective in the protection of children or the correction of pedophiles Diagnoses and Risk Assessment Evidence [41] The appellant did not testify on the dangerous offender hearing. [42] The Crown called Dr. Hervé, a registered psychologist who specializes in forensic psychology, in support of its application to have the appellant declared a dangerous offender. The appellant called Conrad MacNeil. Mr. MacNeil holds a Master of Arts degree in psychology. He is a registered psychologist in British Columbia who has considerable experience in the assessment and treatment of offenders. The judge qualified Dr. Hervé to give opinion evidence in the area of forensic psychology, including the assessment of risk and the diagnosis and treatment of psychiatric disorders. He also qualified Mr. MacNeil to give opinion evidence on the diagnosis of psychiatric conditions and on the assessment of an offender’s treatment prospects and risk of re‑offence, concluding that his more limited qualifications went not to the admissibility of his evidence, but to the weight it should be given. [43] The appellant maintained with Dr. Hervé that his behaviour was motivated by educational ends, not sexual gratification. Dr. Hervé noted the appellant’s well‑ingrained deviant sexual interest in prepubescent girls, his preoccupation with child sexuality, and the odd beliefs he espoused in an apparent effort to justify his behaviour. He concluded that the appellant uses his profoundly disturbed belief system to rationalize his offending. He noted that the tenets of the appellant’s belief system—that sexual attraction to children is not unnatural and that children as young as three and four years old are sexualized beings who should be taught about sex—all support child exploitation. [44] Dr. Hervé also noted the appellant’s claim that his actions had “no negative impact” on his nieces “that he could see” and that they thanked him for teaching them about sex. The appellant does not see himself as a pedophile because he holds the view that a diagnosis of pedophilia requires proof that an individual has acted on their deviant sexual urges. The appellant continued to deny any such urges or motivation. [45] Dr. Hervé concluded that the appellant displayed little insight into his condition, aberrant thinking or risk factors. As he has convinced himself that he has done no harm, the appellant appears to have limited victim empathy and showed little remorse for his actions. Dr. Hervé further noted that, “given that [the appellant] continues to claim that he did nothing wrong, [he] showed limited interest in treatment”. Indeed, Dr. Hervé concluded that the appellant’s interest in and motivation for treatment is substantially lower than is typical of individuals being seen in treatment settings. The appellant’s responses suggested to Dr. Hervé that he is satisfied with himself as he is, that he is not experiencing marked distress, and that he sees little need for changes in his behaviour. The appellant’s limited insight and behavioural rationalizations were characterized as “significant disinhibiting factors that would facilitate offending”. [46] The appellant denied using child pornography for his own entertainment, but only as a means of identifying and exposing child predators. He told Dr. Hervé that his research into child sexual behaviours taught him that children “sometimes appear to enjoy sex, to be active participants”. Dr. Hervé also noted the appellant’s evidence at trial that “people don’t get caught for having sex with children … because the children lie about it to protect them, because who’s going to go and ruin their chance of having a second orgasm when they’ve just had one …” [47] Dr. Hervé concluded that if a finding was made that the appellant committed the offences for his own sexual gratification and invented the concept of pedophile proofing in an effort to get away with his offending behaviour, his actions would properly be viewed as being much more calculated, manipulative and callous. Dr. Hervé reported that this would be a very significant motivating risk factor. These factual findings were, of course, made by the sentencing judge. [48] On the issue of future risk, Dr. Hervé reported that the appellant is at a high risk to reoffend in a sexual manner against prepubescent girls and, in particular, to reoffend against girls he knows who are four years of age or younger. [49] Dr. Hervé addressed the appellant’s treatment prognosis in these terms: [The appellant’s] treatment prognosis (i.e., the likelihood of fully neutralizing his various criminogenic factors through treatment) is poor, given the following: the long‑standing, multifaceted, and entrenched nature of [the appellant’s] sexual offending; the hard to treat nature of his various criminogenic factors (i.e., personality issues, substance abuse, bipolar disorder, sexual deviancy, preoccupation with child abuse, and attitudes supportive of adult‑child sexual relationships are known to be difficult to treat to extinction); his responsivity issues, which are likely to complicate the treatment process; his positive impression management; his poor insight; his poor treatment motivation; his limited prosocial social support system; and his intention to continue to affiliate with like‑minded individuals and fringe groups. With that said, should [the appellant] put concerted, sustained effort towards rehabilitation, follow treatment recommendations, and have access to the appropriate treatments, and he has the intellectual and emotional capacity to make progress in treatment. He is likely to be most successful in the context of ongoing community support and treatment. [The appellant’s] prognosis for successful community reintegration is guarded (i.e., between good and poor). One [sic] the one hand, his treatment prognosis is poor and, therefore, he is unlikely to fully address his criminogenic needs so as to be able to substantially reduce his risk to children. On the other hand, [the appellant] was able to live in the community without reoffending for over two years while on bail. Accordingly, his risk is likely to be manageable within the community with ongoing, intensive supervision and consistent community support. [50] In his viva voce evidence on the dangerous offender hearing, Dr. Hervé said that even if the appellant does not make treatment gains, he can be managed in the community with appropriate conditions and close supervision. [51] Mr. MacNeil’s diagnostic impressions were similar to those of Dr. Hervé. He agreed that the appellant met the DSM‑V criteria for Pedophilic Disorder but was also of the view that he met the diagnostic criteria for Delusional Disorder with Grandiose Features. [52] The appellant remained adamant in his interview with Mr. MacNeil that he was not motivated by a sexual purpose when he touched the complainants. Mr. MacNeil did, however, report that the appellant acknowledged having pedophilic urges and wished to take steps to rid himself of what he described as intrusive and unwanted experiences. [53] In addressing the appellant’s future risk of re‑offence, Mr. MacNeil said this in his report: Consistent with Dr. Hervé’s impression is that [the appellant] is deemed to be a High Risk to sexually re‑offend against prepubescent children; however this degree of risk is associated with [the appellant] being in the community unsupervised and without limitations or restrictions, and having access to children within a home environment. Further, [the appellant] is a Low‑Moderate Risk to reoffend under similar community limitations and restrictions while under supervision as occurred while he was on bail release. The risk would move lower in that range upon successful completion of treatment programs that would be made available to him by Correctional Services of Canada within a federal penitentiary setting. Once it has been determined that [the appellant’s] progress through the completion of treatment programming within the institution is sufficient for follow up maintenance programming within the community he would be seen as a good candidate for release with a supervision period of sufficient length. Reasons for Sentence [54] The sentencing judge concluded that the sexual interference and invitation to sexual touching offences committed by the appellant are serious personal injury offences within the meaning of subparagraph (a) of the definition of “serious personal injury offence” set out in s. 752 of the Code ; namely, indictable offences involving the use or attempted use of violence against another person or conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person. That conclusion is not at issue on this appeal. [55] As noted earlier, the judge applied Kienapple by entering conditional stays of proceedings on the sexual assault counts in respect of which findings of guilt were made where the appellant was also convicted of sexual interference and/or invitation to sexual touching in relation to the same complainant. [56] The judge framed, in unobjectionable terms, the central issue on the dangerous offender hearing this way: whether the evidence established a likelihood that the appellant will sexually abuse children in the future (in which case a dangerous offender designation would follow), or whether the evidence established only a substantial risk that he would do so, (in which case a long‑term offender finding would be made). [57] Citing this Court’s judgment in Boutilier at para. 62 and R. v. Szostak , 2014 ONCA 15 at para. 36, the judge concluded that the appellant’s amenability to treatment played a limited role at the designation stage. The appellant asserts error in principle in connection with this issue and I will address it later in these reasons in addressing the grounds of appeal. [58] The judge noted the relentless stream of letters sent by the appellant to the prosecutor after his conviction. He concluded that the bizarre nature of those letters raised serious concerns about the appellant’s deeply‑ingrained deviance, lack of remorse and refusal to accept societal norms, all of which underscored the very serious risk that he will reoffend. As noted earlier, the appellant acknowledged his behaviour in those letters but persisted in his claim that he did nothing wrong and caused no harm to his victims. The judge also noted that the appellant’s willingness to accept treatment as expressed to Mr. MacNeil was inconsistent with these letters. This led the judge to doubt the reliability and sincerity of the appellant’s statement to Mr. MacNeil that he was motivated to obtain treatment. [59] The judge rejected Mr. MacNeil’s opinion that the appellant’s offending behaviour was the product of delusional beliefs. The appellant’s belief system was, however, found to be a serious risk factor informing the likelihood that the appellant will perpetrate similar sexual offences against children in the future. [60] The judge found that the appellant has a distorted perception of child sexuality and makes excuses for his pedophilic behaviours. He found the appellant to be unremorseful. [61] On the totality of the evidence, the judge was satisfied that the appellant was not motivated to accept rehabilitative treatment and that it was highly unlikely that any treatment would be successful in addressing the root causes of his offending behaviour. He concluded it was highly unlikely that any treatment the appellant might receive while incarcerated would restrain his future behaviour or serve to control his sexual impulses in relation to prepubescent female children. [62] The judge found that while the appellant was intractable from a treatment perspective, he accepted the Crown’s concession that there was a reasonable expectation a lengthy prison sentence followed by a long‑term supervision order would adequately protect the public against commission by the appellant of a future serious personal injury offence. This finding was based largely on the appellant’s performance in the community while on judicial interim release pending trial. [63] The Crown sought a global determinate sentence of 14 years’ imprisonment. The appellant sought a sentence in the range of 6 ½ to 9 years’ imprisonment. [64] The judge noted that he was required in imposing a determinate sentence to give primary consideration to the objectives of denunciation and deterrence because the appellant’s conduct involve the abuse of children: s. 718.01. He also noted other circumstances associated with the commission of these offences that were to be treated as aggravating factors under s. 718.2: the appellant abused a person under the age of 18 years; the appellant, in committing the offences, abused a position of trust or authority; the significant impact his behaviour had on the victims. [65] In the result, the judge designated the appellant a dangerous offender and imposed a global determinate sentence of 11 years’ imprisonment to be followed by a 10‑year long‑term supervision order. [66] Sentencing submissions were made by counsel and the sentence was imposed well before judgment was rendered in R. v. Friesen , 2020 SCC 9. The judge did, however, refer to R. v. D. (D.) , (2002) 58 O.R. (3d) 788 (C.A.) at paras. 35–36, which was cited with approval in Friesen , R. v. D.M. , 2012 ONCA 520 at para. 38, and this Court’s judgment in R. v. Worthington , 2012 BCCA 454 at paras. 31–34, in recognition of the harms caused to children who are sexually abused, and in support of the proposition that sentencing courts must impose sanctions that recognize the prevalence of child sexual exploitation, the high moral culpability that attaches to these offences, and the obligation to ensure that our most valued and vulnerable assets–children–are protected from sexual abuse. [67] The judge apportioned the determinate sentence as between the counts as follows: Count Complainant Offence Sentence Information 25328‑2 1 A Sexual Interference 30 months 3 A Invitation to Sexual Touching 30 months concurrent 6 X Invitation to Sexual Touching 12 months consecutive 8 C Sexual Interference 18 months consecutive 11 J Sexual Interference 4 years 12 J Invitation to Sexual Touching 4 years concurrent 13 K Sexual Interference 12 months 15 K Invitation to Sexual Touching 12 months consecutive Information 26049‑2 1 Possession of Child Pornography 12 months concurrent Total Determinate Sentence 11 Years’ Imprisonment [68] The judge concluded that the manner in which he structured the sentence did not violate the totality principle. The appellant was given enhanced credit for time served in pre‑sentence custody, at a ratio 1.5:1. Having served 31.5 months in pre‑sentence custody, he was credited for having served 48 months’ imprisonment. III. Analysis Legislative Framework [69] Before turning to address the appellant’s grounds of appeal, I will set out the provisions of the Code that were in force at the time of the sentencing and that are most relevant to the disposition of this appeal: PART XXIII Sentencing Purpose and Principles of Sentencing Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. Objectives — offences against children 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; PART XXIV Dangerous Offenders and Long‑term Offenders Application for finding that an offender is a dangerous offender 753   (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well‑being of other persons on the basis of evidence establishing (i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. Sentence for dangerous offender (4) If the court finds an offender to be a dangerous offender, it shall (a) impose a sentence of detention in a penitentiary for an indeterminate period; (b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long‑term supervision for a period that does not exceed 10 years; or (c) impose a sentence for the offence for which the offender has been convicted. Sentence of indeterminate detention (4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If offender not found to be dangerous offender (5) If the court does not find an offender to be a dangerous offender, (a) the court may treat the application as an application to find the offender to be a long‑term offender, section 753.1 applies to the application and the court may either find that the offender is a long‑term offender or hold another hearing for that purpose; or (b) the court may impose sentence for the offence for which the offender has been convicted. Application for finding that an offender is a long‑term offender 753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long‑term offender if it is satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community. [70] Section 753(1) lists the statutory requirements that must be met before a court can designate an offender as dangerous. This is referred to as the “designation stage”. Sections 753(4) and (4.1) relate to the sentencing of a dangerous offender. This is referred to as the “penalty stage”. The Applicable Standards of Review (a) Appeal from the Dangerous Offender Designation [71] The standard of review applicable to an appeal from a dangerous offender designation was recently restated in R. v. Garnot , 2019 BCCA 404 at para. 47: [47]      Under s. 759(1) of the Criminal Code , a person who is found to be a dangerous offender may appeal on any ground of law or fact or mixed law and fact. This court has stated that the appellate review of a dangerous offender designation is “somewhat more robust” than “regular” appellate review of a sentence, although some deference is still owed to the sentencing judge’s findings of fact and credibility. As observed in R. v. Malakpour 2018 BCCA 254, the standard for errors of law is correctness and for errors of fact, reasonableness. (At para. 47, citing R. v. Sipos 2014 SCC 47 at para. 26; R. v. Boutilier 2017 SCC 64 at para. 81; and R. v. Walsh 2017 BCCA 195 at para. 23.) Absent a material error of law, a dangerous offender designation and findings essential to it, including the assessment of an offender’s future risk and amenability to treatment, engage questions of fact to which deference is owed. The role of an appellate court is to ensure that the law was applied correctly and, if it was, to decide whether the designation is reasonable: Boutilier (SCC) at paras. 81, 85–88. (b) Appeal from the Determinate Sentence [72] The standard of review on an appeal challenging the fitness of a determinate sentence is deferential. Absent an error in principle shown to have a material impact on the sentence, an appellate court may not vary the sentence unless it is shown to be demonstrably unfit: R. v. M. (C.A.) , [1996] 1 S.C.R. 500 at para. 90; R. v. Lacasse , 2015 SCC 64 at para. 11; Friesen at para. 26; R. v. Agin , 2018 BCCA 133 at paras. 52, 56–57. Ground #1:  Failure to Consider Treatment Prospects at the Designation Stage [73] The appellant submits that the sentencing judge followed the jurisprudence as it existed before the Supreme Court of Canada’s decision in Boutilier and erred in principle by failing to consider his treatment prospects of the designation stage. As Boutilier (SCC) makes clear, before making a dangerous offender designation, the sentencing judge must be satisfied that the offender poses a high likelihood of harmful recidivism and that his conduct is intractable. This necessarily involves a consideration of future treatment prospects. The need to consider treatment prospects at the designation stage applies to dangerous offender applications premised on ss. 753(1)(a) and 753(1)(b): R. v. Skookum , 2018 YKCA 2 at para. 57 [74] The issue in this case is, therefore, whether the judge engaged in the required prospective assessment of risk at the designation stage by considering the appellant’s treatment prospects. [75] As Justice Saunders pointed out in R. v. Lawrence , 2019 BCCA 291 at para. 60, “it is not a truism that designations made after the new legislation was enacted but before Boutilier [(SCC)] contain the ‘ Boutilier error’ of failing to apply a prospective [risk] analysis.” In Lawrence , the Court was satisfied that the sentencing judge engaged in a prospective assessment of risk by considering the appellant’s treatment prospects at the designation stage despite not having the benefit of Boutilier (SCC). Similar conclusions were reached in R. v. Hexamer , 2019 BCCA 285 at paras. 187–199, and R. v. Wesley , 2018 ONCA 636 at paras. 14–17. In other contexts, pre‑ Boutilier (SCC) dangerous offender designations were set aside on appeal where a sentencing judge erred in principle by failing to consider the offender’s treatment prospects at the designation stage: Skookum at paras. 57–58; R. v. C.R.G ., 2019 BCCA 463 at para. 9; R. v. Zoe , 2020 NWTCA 1 at para. 41. [76] If error in principle is established in the application of the test at the designation stage, consideration must then be given to whether the error resulted in any substantial wrong or miscarriage of justice: Boutilier (SCC) at para. 82; R. v. Sipos , 2014 SCC 47 at para. 35; R. v. Johnson , 2003 SCC 46 at para. 49. In this context, there is a heavy onus on the Crown to show that there is no reasonable possibility the result—in this case, the dangerous offender designation—would have been different had the error not been made. This Court has, on a number of occasions, applied its curative power to dismiss an appeal in cases analogous to the one at bar: R. v. Malakpour , 2018 BCCA 254 at paras. 98–99; R. v. Roper , 2019 BCCA 68 at paras. 84–90; R. v. Awasis , 2020 BCCA 23 at paras. 110–112. [77] To determine whether a “ Boutilier error” was committed in the case at bar, close attention must be paid to the analysis actually undertaken by the sentencing judge at the designation stage. [78] Following this Court’s judgment in Boutilier at para. 62 and the reasoning in R. v. Szostak , 2014 ONCA 15 at para. 36 (rejected in Boutilier (SCC) at paras. 29–31), the judge said that treatment prospects played a limited role of the designation stage: [173]    On the present state of the law as enunciated in Szostak , and the Court of Appeal’s decision in Boutilier the possibility of successful treatment is of limited application in determining whether an offender is a dangerous offender. Rather, the possibility of successful treatment is significant in choosing the appropriate disposition. [Emphasis added.] [79] Standing alone, this statement reflects error in law. But it does not stand alone. Despite saying that treatment prospects play a limited role at the designation stage, the judge embarked on a considered analysis of whether the appellant had an intractable mental disorder that would likely be impervious to treatment intervention. He thoroughly reviewed the expert evidence. Writing under the heading, “ Has the Crown established that [the appellant] is a dangerous offender? ” and subheading “ Is [the appellant] genuinely motivated and amenable to rehabilitative treatment?” , the judge said this: [177] To the extent that I may undertake a limited inquiry into the issue of treatability at the designation stage I find that the totality of the evidence requires a finding that while [the appellant] may at times pay lip service to a willingness to engage in treatment to address the causes of his sexual offending against children -- as he expressed to Mr. MacNeil – the genuineness of that willingness is highly suspect. [178]    Both Dr. Hervé and Mr. MacNeil have opined that [the appellant] meets the DSM‑5 criteria necessary for the diagnoses of a Pedophilic disorder of the non‑exclusive type. [179]    Both experts also agree that the greatest risk of [the appellant] re‑offending sexually against children as he has in the past is with respect to prepubescent female children with whom [the appellant] is in a familial or similarly close adult‑child relationship. [180]    [The appellant] has demonstrated in his evidence at trial, in his interviews with Dr. Hervé, and Mr. MacNeil and in his letters to Crown counsel to which I have referred the belief that: he is not a pedophile and that others are; that he is a protector of children, not a predator; and, that he understands childhood development and sexuality better than medical or other professionals. [181]    As far as I am aware [the appellant] continues to make those assertions and has never espoused a different or ameliorated view of his offending. [182]    Perhaps the most disturbing of the evidence related to the prospect for effective rehabilitative treatment to address the pedophilic causes of his offending identified by both Dr. Hervé and Mr. MacNeil is that found in [the appellant’s] letter to Crown counsel … He writes that he will take treatment programs to gain knowledge of the treatment available so that he can credibly pose as a pedophile for the purposes of his proposed “secret society” to be created so that, as a protector of children, he can expose pedophiles. [183] The totality of the evidence satisfies me that [the appellant] is not genuinely motivated for rehabilitative treatment and that in those circumstances together with his long standing and still continuing obsession with childhood sexuality and prepubescent female children it is highly unlikely that any treatment will be successful in addressing the root causes of his criminal offending. [184] That evidence also leads me to conclude that given his conduct in the commission of the predicate offences and the pattern of his sexual offending against children since 2001 it is highly unlikely that any treatment he may receive will in future restrain his behaviour or control his sexual impulses against prepubescent female children. [Emphasis added.] [80] Before making the dangerous offender designation, the judge, as I read his reasons, concluded that the appellant’s deviant predilections are intractable and that, while he can be managed in the community through close supervision, the evidence established the likelihood that he will in the future, as he has in the past, be unable to control his sexual impulses: [192 ]    To that extent, I find that Mr. MacNeil’s opinion that the high risk that [the appellant] will in future re‑offend against prepubescent female children is limited to situations where he is “in the community unsupervised, without restrictions and having access to children within a home environment” conflates issues of control with issues of intractability. [194]    In those circumstances I am satisfied that notwithstanding the evidence of [the appellant’s] past performance while under supervision does establish a reasonable expectation for his control and the protection of the public, it does not overcome the likelihood that he will in the future fail to control his sexual impulses as he has in his offending against his four nieces that is the subject of the predicate offences as well as in his sexual offending against C in 2001. [195]    The totality of the evidence adduced at trial and during this Part XXIV sentencing hearing, in combination with concessions and admissions made by [the appellant] identified by me in para. 49 of these reasons establishes that by application of s. 752(1)(b) of the Code [the appellant] must be designated as a dangerous offender. [Emphasis added.] [81] In my view, the analysis undertaken by the judge at the designation stage is consistent with the requirements of Boutilier (SCC). [82] But I need not rest my conclusion on this point. Even if the judge committed a “ Boutilier error”, on the record before him and on the factual findings he made, I am satisfied there is no reasonable possibility that the Crown’s application to have the appellant designated a dangerous offender would have been resolved differently had the error not been made. As the result was inevitable, I would, if necessary, apply the equivalent of the curative proviso to sustain the designation. Ground #2:  Failure to Consider the Prospect of Control in the Community at the Designation Stage (a) The Judge’s Approach [83] The judge determined that the efficacy of community‑based controls to manage risk is a relevant consideration at the penalty stage of a dangerous offender application: [188]    … The issue of dangerousness is determined at the designation stage based upon proof that the offender meets the statutory criteria for a finding that he or she is a dangerous offender. The issue of whether there is a reasonable expectation of control in the community is a part of the inquiry at the disposition stage. As noted earlier, the judge resisted conflating the issue of intractability and the likelihood of harmful recidivism (relevant at the designation stage) with the issue of control (relevant at the penalty stage). (b) The Positions of the Parties [84] The appellant argues that the sentencing judge erred by failing to consider the prospect of control in the community at the designation stage. Relying on Boutilier (SCC) for the proposition that treatment prospects are relevant at the designation stage, the appellant submits there is no principled basis to distinguish between treatment that fosters in an offender the development of internal behavioural controls, and externally imposed supervisory conditions that permit an otherwise intractable offender to be safely managed in the community. The appellant submits that whether the management of risk is achieved through the internalization of gains made in treatment or through externally imposed supervisory controls, both achieve the same goal—protection of the public. As such, he submits there should be no bright line between an offender’s treatment prospects and the efficacy of externally‑imposed, community‑based controls at the designation stage. In essence, the appellant asks us to accept, based on the reasoning in Boutilier (SCC), that an offender with a pathologically intractable behavioural disorder who has been found highly likely to engage in harmful acts of recidivism cannot be designated a dangerous offender if he or she can be managed in the community through the imposition of strict supervisory conditions and close monitoring. [85] The Crown submits that the prospect of control in the community through the imposition of external controls is only appropriately considered at the penalty stage and that the judge made no error in so concluding. The Crown argues that this is entirely consistent with the legislative scheme, the holding in Boutilier (SCC), and subsequent appellate and trial court authorities on point. (c) Analysis 1. R. v. Johnson and the 1997 legislation [86] In R. v. Johnson , the Court considered the effect of the 1997 amendments to the Code which enacted the long‑term offender provisions and required an indeterminate sentence for an offender designated as dangerous . [87] Under the 1997 scheme, a sentencing judge had discretion at the designation stage whether or not to designate an offender dangerous even if all the statutory criteria were met. However, the judge had no discretion at the penalty stage. If the sentencing judge made a dangerous offender designation, the judge was required to impose an indeterminate sentence. [88] With the introduction of the long‑term offender provisions, the Court determined that if an offender could be managed in the community through a long‑term supervision order, then the offender should not be designated as dangerous. The Court held that if the public threat posed by an offender could be reduced to an acceptable level through either a determinate sentence or a determinate sentence followed by a long‑term supervision order, a sentencing judge could not properly declare an offender dangerous and sentence him or her to an indeterminate period of incarceration (at para. 32). [89] Given the absence of discretion at the penalty stage of the proceeding, the 1997 scheme was found in Johnson to require sentencing judges to consider the prospect of control in the community at the designation stage (at para. 36): [P]rospective factors, including the possibility of eventual control of the risk in the community, must be considered at some point leading up to a dangerous offender designation. This is necessary to ensure that an indeterminate sentence is imposed only in those circumstances in which the objective of public protection truly requires indeterminate detention. [Emphasis added.] [90] Until the 2008 amendments to the dangerous offender provisions, the manageability of an offender in the community was, therefore, considered at the designation stage. 2. R. v. Boutilier and the 2008 legislation [91] In Boutilier (SCC), the Court considered the effect of the 2008 amendments to the dangerous offender provisions . The amendments shifted the discretion reposed in a sentencing judge from the designation stage to the sentencing stage. If an offender met the statutory criteria for a dangerous offender designation, the sentencing judge was obliged to designate the offender as dangerous: Boutilier (SCC) at para. 41. However, even if the offender was made the subject of a dangerous offender designation, the sentencing judge was given discretion under the 2008 amendments to impose a proportionate sentence at the penalty stage: [58]      Since the 2008 amendments, indeterminate detention is no longer automatic for a dangerous offender. Rather, this sentence is only one option among others available under s. 753(4). In lieu of an indeterminate detention, a judge may impose a sentence that is more proportionate to the predicate offence for which the offender is being sentenced, whether it is imprisonment for a minimum of two years followed by long‑term supervision — which amounts to a long‑term offender sentence — or a sentence under the regular sentencing regime. The sentencing alternatives listed in s. 753(4) therefore encompass the entire spectrum of sentences contemplated by the Criminal Code . [92] The 2008 amendments replaced the mandatory indeterminate period of imprisonment required under the 1997 scheme “with a codification of the principle [established in Johnson ] that a sentencing judge must [retain the ability to] impose a sentence that is tailored to the specific offender and consistent with the principles of sentencing”: Boutilier (SCC) at para. 61. The legislation now expressly contemplates that an offender may be declared dangerous, but sentenced to a determinate sentence or a determinate sentence followed by a long‑term supervision order if the offender can be controlled in the community in a manner that adequately protects the public: Boutilier (SCC) at para. 60. [93] A central issue in Boutilier (SCC) was whether, after the 2008 amendments, an offender’s treatment prospects were to be considered at the designation stage. The Court concluded that while evidence of an offender’s future treatment prospects is relevant to both the designation and penalty stages, manageability of the offender in the community is only to be considered at the penalty stage: [31]      … The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence. [Emphasis added.] In the result, the Court held that the 2008 amendments were constitutional because a sentencing judge retained discretion at the penalty stage to impose a proportionate sentence. 3.   Prospect of control in the community should only be considered at the penalty stage [94] There are a number of reasons why the efficacy of community‑based controls in managing an offender’s risk should be considered only at the penalty stage. [95] First, the interpretive proposition advanced by the appellant—that an offender who can be managed in the community through the imposition of community‑based controls can never be declared dangerous—is inconsistent with the legislative scheme and the obvious intention of Parliament. [96] The modern principle of statutory interpretation was described by Elmer Driedger in Construction of Statutes , 2nd ed. (Toronto: Butterworths, 1983) and adopted by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27 at para. 21: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [97] The legislature does not intend to produce absurd consequences, including those that are illogical or promote incoherence in the scheme: Rizzo Shoes at para. 27. [98] Reading s. 753(1) to require consideration at the designation stage of the prospect of achieving risk reduction through the imposition of community‑based controls would render meaningless the discretion afforded sentencing judges at the penalty stage. I say this for the following reason. If consideration of the efficacy of community‑based controls was required at the designation stage, it seems to me that no offender could ever properly be declared dangerous but sentenced to something less than an indeterminate period of incarceration. The designation and the sentence would be logically inconsistent. And yet, ss. 753(4) and (4.1) of the Code expressly contemplate that an offender may be designated dangerous and be sentenced to a determinate sentence or determinate sentence with a long‑term supervision order. To endorse the proposition advanced by the appellant would, therefore, fail to give effect to the scheme of the Act or the obvious intent of Parliament. It would create disharmony in the scheme and lead to the absurd result that Parliament provided for certain sentencing options short of indeterminate incarceration for offenders designated as dangerous that could never logically be reached. It would, in effect, require us to bring to the legislative scheme an interpretation that is tantamount to judicial rewriting of the legislation. [99] Second, there is, in my view, nothing in Boutilier (SCC) that supports the appellant’s submission concerning the scope of the inquiry that is required at the designation stage. Indeed, that case supports the proposition that the prospect of the community‑based management of risk informs only the penalty stage of the proceedings. Writing for the majority, Justice Côté explained that in order to obtain a dangerous offender designation the Crown must prove beyond a reasonable doubt that: the offender has been convicted of a serious personal injury offence; the predicate offence is part of a broader pattern of violent behaviour; there is a high likelihood of harmful recidivism; and that the violent conduct is intractable (at para. 26). Intractable conduct means behaviour the offender is unable to surmount (at para. 27). Nowhere in her analysis did Côté J. suggest that the prospect of community‑based control through the imposition of a sentence short of an indeterminate period of incarceration is relevant at the designation stage . Indeed, she repeatedly emphasized in her reasons that whether the risk an offender poses can be adequately managed other than through the imposition of an indeterminate sentence is an issue that arises at the penalty stage (see Boutilier (SCC) at para. 31, quoted herein at para. 93, and at paras. 68 and 76). In my view, Boutilier (SCC) establishes that the prospect of control through the community‑based management of risk is relevant at the penalty stage, not the designation stage. [100] To summarize, public protection may be achieved where an offender is able to internalize the benefit of treatment, implement strategies for self‑regulation, and thereby surmount his or her violent tendencies. It would clearly be inappropriate to designate such an offender as dangerous. Alternatively, public protection may be achieved even in the case of an intractable offender—one who is unable to surmount their behavioural disorder—where the imposition of community‑based controls will adequately protect the public from the risk of harmful recidivism. This is a separate inquiry distinct from the questions of intractability and the likelihood of harmful recidivism that animate decisions at the designation stage. E vidence respecting an offender’s treatment prospects is relevant, albeit for different purposes, at both the designation and penalty stages. As pointed out in Boutilier (SCC), even where an offender’s treatment prospects are not sufficiently compelling to obviate the need for a dangerous offender designation, they will still be relevant in choosing the sentence required to adequately protect the public (at para. 45). The prospect of managing the threat posed by an intractable, high‑risk offender through a sentence less draconian than indeterminate incarceration—one that allows for the imposition of externally‑imposed supervisory conditions—is, however, an inquiry reserved to the penalty stage. [101] Third, reserving consideration of the prospect of control in the community to the penalty stage is an approach that has been consistently endorsed by appellate and trial courts: Awasis , at paras. 71–73; R. v. Smarch , 2020 YKCA 7 at para. 4; R. v. K.P. , 2020 ONCA 534 at paras. 13–14; R. v. Piche , 2019 SKCA 54 at paras 98–102; R. v. S.P.C. , 2018 SKCA 94 at paras. 38–39; and R. v. Broadfoot , 2018 ONCJ 215 where Justice Greene put it this way: [77]      … At the designation stage, intractability relates to whether or not the conduct can be treated. At the sentencing stage, the court has found that the conduct cannot be treated so the question becomes can the conduct be managed. [102] For the foregoing reasons, I conclude that the sentencing judge did not err in principle by failing to consider at the designation stage the prospect of controlling the appellant’s intractable conduct in the community through the imposition of a sentence other than indeterminate incarceration. Ground #3:  Fitness of the Sentence Imposed for the Counts Involving K [103] As previously noted, the appellant was found guilty of four counts involving K—two counts of sexual assault and two companion counts of sexual interference. The offences consisted of two incidents separated in time. The circumstances of the offences are set out herein at paragraph 22. [104] The Crown sought the entry of convictions on the two sexual assault counts, an order conditionally staying the two sexual interference counts pursuant to Kienapple , and concurrent sentences of two years on each sexual assault count, to be served consecutively to the sentences imposed on other counts involving different victims. The appellant agreed with the Crown’s position on the application of Kienapple , but submitted that the appropriate sentence for the offences against K was 12–18 months’ imprisonment. [105] Given the uncertainty of the timing of the two offences committed against K, the Crown conceded that the one‑year mandatory minimum sentences for sexual assault of a person under the age of 16 years and sexual interference (where the Crown proceeds by indictment) that came into force on August 9, 2012, were not applicable to the appellant. I would add, parenthetically, that reasons were released in this case before the mandatory minimum sentence in s. 151(a) was found to be unconstitutional: R. v. Scofield , 2018 BCSC 91, aff’d 2019 BCCA 3. [106] As the sentencing hearing proceeded, the Crown and the appellant’s counsel agreed to amend Count 14 to include both instances of sexual assault against K. In light of the proposed amendment, the Crown agreed that Count 16 (the other sexual assault count) could be conditionally stayed. The sentencing judge appeared to convey his approval noting that what had been proposed was, “the appropriate disposition”. The proposal did not affect the sentencing positions of either party. The Crown sought a two‑year sentence for the offences committed in relation to K. The appellant continued to seek a sentence in the range of 12 to 18 months’ imprisonment. [107] On further reflection, the judge made a considered decision to give effect to the Kienapple principle by conditionally staying the sexual assault counts rather than the sexual interference counts. [108] The judge sentenced the appellant to 12 months’ imprisonment on each of the sexual interference counts in relation to K, to be served consecutively to each other and to the sentences imposed on the other counts. He declined to impose concurrent sentences on these two counts noting that the offences were not committed at the same time and because of the appellant’s “persistence in his offending against K while living in her home”. [109] Importantly, the judge noted that the sentence he was imposing on each count reflected what he understood to be the required mandatory minimum sentence. As the Crown had acknowledged its inability to prove that the offences committed against K took place after the mandatory minimum sentences came into force, the judge fell into error on this issue. [110] The appellant submits that in imposing a total sentence of two years’ imprisonment on the K counts, the judge erred in principle by: i.   sentencing him on two counts in relation to K in the face of the agreement by counsel that sentence could be imposed on a single count combining both instances of sexual abuse; ii.   sentencing him on the basis that a one‑year mandatory minimum sentence applied to the offending conduct; and iii.  sentencing him on the basis of an unproven aggravating factor—that he was living in the home in which K resided when the offences were committed. [111] The Crown concedes that the judge erred in principle in sentencing the appellant on the understanding that the offences attracted a one‑year mandatory minimum term of imprisonment. The Crown also concedes that the error had a material impact on the sentence. In the result, the Crown invites this Court to perform its own sentencing analysis to determine a fit sentence for the offences committed against K, giving deference to the factual findings made by the judge. [112] I agree that the judge committed an error in principle in proceeding on the footing that he was required to impose at least the mandatory minimum term of imprisonment on each of the K counts. I will, for the purposes of this analysis, accept the Crown’s concession that the error had a material impact on the sentence imposed on these counts. As a consequence, it is necessary for this Court to consider afresh the sentence that should be imposed in relation to the K counts having regard to the factual findings made by the judge concerning the circumstances of these offences, the larger context in which they occurred and the likelihood that, unless he is controlled by strict conditions, the appellant will sexually abuse prepubescent girls in the future. [113] In light of the conclusion I have reached on this point, it is unnecessary to consider in any detail the first and third errors in principle alleged by the appellant. But I am not persuaded the judge erred in principle on either issue. [114] With respect to the first alleged error in principle, the appellant acknowledges that it was open to the sentencing judge to depart from the agreement of counsel that sentence be imposed on a single count of sexual assault. He asserts, however, that if the judge was inclined to proceed in this fashion, it was incumbent on him to alert counsel to this and provide them with an opportunity to make submissions informed by the counts in respect of which sentence would be imposed. I make two observations in response to the appellant’s complaint. First, after counsel advised the judge of their agreement that sentence could be imposed on a single count of sexual assault encompassing both incidents, the appellant’s counsel took the position that nothing turned on whether the sexual assault count or the sexual interference counts were conditionally stayed pursuant to Kienapple . Second, the appellant has suffered no irremediable prejudice by the manner in which this issue unfolded in the sentencing court. Any theoretical prejudice has been remedied by the full opportunity the appellant has been given in this Court to address the fitness of the sentences imposed on the K counts. [115] With respect to the third alleged error in principle, this Court is not in a position to definitively resolve whether the appellant was living in K’s home when he abused her. We have not been taken to K’s evidence at trial on this issue. The appellant has the onus of establishing error in principle. In my view, that onus has not been met on the materials before us. Parenthetically, I would add that the appellant appears to have admitted to Dr. Hervé that he was living with K’s parents in her home when at least one of the incidents of sexual abuse occurred. [116] I turn next to consider the fitness of the two‑year cumulative sentence imposed on the appellant for the two counts of sexual interference committed against K. [117] The authorities relied on by the appellant in support of his contention that concurrent sentences of 12 months’ imprisonment on each of the two counts involving K would be fit and appropriate predate the release of judgment in Friesen . They are, for this reason, of limited assistance. [118] In Friesen , the Court acknowledged the prevalence of sexual violence against children, the disproportionate impact these offences have on girls and young women, and the lasting harms caused by this type of criminal conduct. The Court reiterated in the strongest of terms that the sexual exploitation of children is morally reprehensible conduct that must be reflected in the application of the proportionality principle. As the Court put it: [76]      Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.), at para. 80; R. v. Morrisey , 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case. [119] While sentencing is an individualized exercise, the Court noted that sexual offences against children, “will frequently require substantial sentences” to reflect the high moral culpability of the offender, the consequential harm caused by their conduct, and the need to give effect to Parliament’s direction that offences of this kind be treated more severely with the primary goals of general deterrence and denunciation firmly in mind (at paras. 100, 105 and 114). Without purporting to fetter the ability of a sentencing judge to do justice in individual cases, the overall message to be taken from Friesen is clear: “that mid‑single digit penitentiary terms for sexual offences against children are normal and that upper single‑digit and double‑digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances”: at para. 114. In addition, the Court emphasized that it is an error in law to treat sexual interference as less serious than sexual assault: at para. 120. [120] The Court helpfully reiterated a non‑exhaustive list of factors that will significantly impact the determination of a fit sentence in a case of this kind, including: the offender’s risk to reoffend; whether the offence involved abuse of a position of trust or authority; the duration and frequency of the sexual violence engaged in by the offender; the age of the victim(s); and the degree of physical interference that characterizes the offending acts: at paras. 122–147. [121] In applying these factors to the case at bar I note, first, that the appellant has an intractable deviant disorder and, absent close and long‑term community supervision, has been found to be a high risk to engage in harmful recidivism against prepubescent girls. His offending conduct spans more than a decade. He is untreated and the judge found it highly unlikely that any treatment will successfully achieve the goal of risk reduction. The judge could not reasonably have come to any other conclusion. Whether as a function of his disorder or the product of his enduring and self‑protective narrative, the appellant has yet to demonstrate that he understands either the wrongfulness of his behaviour or the harm he has caused. Given the appellant’s complete lack of insight, the need to protect children from the risk of re‑offence is palpable. As the Court noted in Friesen, where an offender presents an increased likelihood of reoffending, “the imperative of preventing further harm to children calls for emphasis on the sentencing objective of separating the offender from society in s. 718(c) of the Criminal Code ”: at para. 123. [122] The appellant was K’s uncle and the offences he committed against her constituted a gross breach of his position of trust. As the sentencing judge put it, the appellant “was in a position of trust and authority over each [victim], having been given the responsibility to protect his victims by their own parents”. He abused that trust, and the trust reposed in him by the victims, by secretly grooming them for his own sexual purposes. The abuse of a position of trust is an aggravating factor because it enhances the offender’s moral culpability and is likely to increase the harm to the victim ( Friesen at paras. 126, 129). [123] The appellant sexually interfered with K on two occasions. The judge described the appellant’s predatory behaviour in relation to her as “persistent”. Like the other victims, the appellant was clearly grooming K for future sexual abuse. This, too, is a significant aggravating factor. As explained in Friesen : [133]    … sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime. Judges cannot permit the number of violent assaults to become a statistic. Each further instance of sexual violence traumatizes the child victim anew and increases the likelihood that the risks of long‑term harm will materialize. Each further instance shows a continued and renewed choice by the offender to continue to violently victimize children. [124] K was between six and nine years of age when she was violated by the appellant. She was a child, dependent on others for her physical protection and emotional security. As noted in Friesen , the age of the victim is relevant to both the gravity of the offence and the degree of responsibility of the offender: at para. 135. The appellant recognized and exploited K’s vulnerability. His moral blameworthiness is extremely high. [125] Without in any way diminishing the seriousness of the appellant’s conduct or the moral culpability that attaches to it, the offences against K were the least physically intrusive of all of the offences committed by the appellant. This is a factor to be taken into account. At the same time, the Court in Friesen emphasized that “any manner of physical sexual contact between an adult and a child is inherently violent and has the potential to cause harm”: at para. 82. In addition, the Court cautioned “against downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio or cunnilingus, but instead touching or masturbation”: at para. 144. [126] Finally, the appellant’s violation of K did not occur in isolation. It formed part of a pattern of cunning and clandestine behaviour engaged in by the appellant to sexually exploit children over a very lengthy period of time—children who were vulnerable by virtue of their tender years and dependency on the appellant. The sentence imposed on the K counts must reflect the context in which these offences occurred and give proper expression to his elevated moral culpability and the applicable sentencing objectives informed by that context; chief among them, the protection of the public. [127] While it was open to the judge to impose sentences concurrent to each other on the two counts involving K, he chose not to do so. The appellant does not suggest error in principle in the way the judge determined to exercise his discretion on this issue. [128] In light of the material error in principle committed by the judge in relation to the K counts, the Court is not bound by the highly deferential standard of review ordinarily applicable on appeals from sentence: Lacasse at para. 61; Agin at para. 55. [129] The question for this Court to answer boils down to this: is a two‑year sentence imposed on an unremorseful, untreated, serial sexual abuser of prepubescent children unfit for two counts of sexual interference committed in relation to the offender’s 6 to 9‑year‑old niece? To state the question is to answer it. There is nothing unfit about the sentences imposed on these two counts. I would add that the overall determinate sentence imposed on the appellant reflects considerable restraint; it could have been much longer. IV. The Judge’s Reliance on Section 753(1)(b) to Ground the Dangerous Offender Designation [130] While the Crown argued that a dangerous offender designation was justified under s. 753(1)(a)(i) and (ii) and s. 753(1)(b) of the Code, the judge found the appellant to be a dangerous offender “by application of s. 753(1)(b)”. [131] Resort to s. 753(1)(b) is premised on an offender having been convicted of a “serious personal injury offence” described in paragraph (b) of the definition of that phrase set out in s. 752. Paragraph (b) of the definition of “serious personal injury offence” in s. 752 means an offence or an attempt to commit an offence of sexual assault (s. 271) sexual assault with a weapon (s. 272) or aggravated sexual assault (s. 273). The judge conditionally stayed the sexual assault counts and entered convictions on counts alleging sexual interference (s. 151) and/or invitation to sexual touching (s. 152). Sexual interference and invitation to sexual touching are not enumerated offences under paragraph (b) of the definition of “serious personal injury offence” in s. 752. [132] Although the issue was not raised by the appellant, the Crown alerted the Court to the question of whether it was open to the judge to declare the appellant a dangerous offender under s. 753(1)(b), having determined to conditionally stay the sexual assault counts. [133] In my view, it is unnecessary to express an opinion in this case on whether the legislation permits a designation under s. 753(1)(b) in circumstances where an offender was found guilty of both sexual assault and sexual interference/invitation to sexual touching counts, but the sexual assault counts were stayed pursuant to Kienapple . Even assuming error in principle on this point, I would, if necessary, exercise this Court’s curative powers to uphold the designation under s. 753(1)(a). I am satisfied that, had the judge turned his mind to this issue, it is inevitable the appellant would have been designated a dangerous offender under s. 753(1)(a) given: the appellant’s concession that sexual interference is a “serious personal injury offence” under paragraph (a) of the definition of that phrase in s. 752; his further concession that all of the criteria under s. 753(1)(a)(i) and (ii) had been established by the Crown, with the exception of the likelihood of re‑offence; and the sentencing judge’s factual finding that the appellant was unable to surmount his violent conduct and, absent close community supervision and control, was highly likely to engage in similar harmful acts in the future. V.  Disposition [134] For the foregoing reasons, I would dismiss the appeal from the dangerous offender designation and from the determinate sentence imposed under s. 753(4)(b) of the Code . “The Honourable Mr. Justice Fitch” I AGREE: “The Honourable Chief Justice Bauman” I AGREE: “The Honourable Madam Justice Fenlon”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Sohal v. Lezama, 2021 BCCA 40 Date: 20210129 Docket: CA46490 Between: Rupinder Sohal Respondent (Plaintiff) And Graham Lezama, Enterprise Rent-A-Car Canada Company/La Compagnie de Location D’autos Enterprise Canada doing business as Enterprise-Rent-A-Car or Enterprise Rentals, Enterprise Rent-A-Car of British Columbia doing business as Enterprise Rentals Appellants (Defendants) And PFM Productions Inc. and LHP Holdings Inc. Respondents (Third Party) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice DeWitt-Van Oosten The Honourable Mr. Justice Grauer On appeal from:  An order of the Supreme Court of British Columbia, dated October 8, 2019 ( Sohal v. Lezama , 2019 BCSC 1709, Vancouver Docket M147109). Counsel for the Appellants: V.G. Critchley J. Corbett Counsel for the Respondent: G. P. Brown, Q.C. E. LeDuc Place and Date of Hearing: Vancouver, British Columbia November 10, 2020 Place and Date of Judgment: Vancouver, British Columbia January 29, 2021 Written Reasons by: The Honourable Mr. Justice Grauer Concurred in by: The Honourable Madam Justice Saunders The Honourable Madam Justice DeWitt-Van Oosten Summary: The defendants in a motor vehicle accident claim applied for leave to file third party notices claiming contribution and indemnity from the defendant driver’s employer. The master granted leave, and the proposed third parties appealed the master’s order to the Supreme Court. The judge allowed the appeal and set aside the order on the basis that the claims for contribution and indemnity were time-barred by application of the new Limitation Act, SBC 2012, c 13. The defendants brought this appeal, arguing that the judge erred: (1) in his interpretation of the transition provisions of the new Limitation Act, specifically in finding that those provisions provided for the application of the new Limitation Act, rather than its predecessor; and (2) in his interpretation of section 22(2) that, because the applicable limitation period had expired, the claims for contribution and indemnity were prohibited. Held: appeal dismissed. Properly interpreted and applied, the appellants’ third party claims are time-barred under the new Limitation Act. Although the judge erred in his interpretation of the transition provision in section 30, he reached the correct result. Applying principles of statutory interpretation, it is apparent that a claim for contribution in an ongoing action does not fall under the definition of “pre-existing claim” within the transitional provisions in section 30 of the new Limitation Act. This is because the “act or omission” on which the claim for contribution is based is distinct from the “act or omission” that gives rise to the underlying tort claim. As such, it is the new Act that applies and, on the facts, the applicable limitation period had expired. Moreover, as the judge properly concluded, a third party claim for contribution constitutes a “court proceeding” under the new Limitation Act. Finally, the judge interpreted and applied section 22(2) correctly. The wording of the provision and principles of statutory interpretation support the judge’s conclusion that section 22 of the new Limitation Act does not permit proceedings for contribution or indemnity to be brought by way of third party notice or counterclaim after the applicable limitation period has expired. It follows that the judge correctly concluded that the master had no discretion to grant the appellants leave to file third party notices. Table of Contents Paragraph Range 1.0 INTRODUCTION [1] - [9] 2.0 BACKGROUND [10] - [34] 2.1 Claims for contribution under the old Act [10] - [14] 2.2 Claims for contribution under the new Act [15] - [24] 2.3 Chronology [25] - [34] 3.0 THE CHAMBERS JUDGE’S REASONS [35] - [39] 3.1 The section 22 issue [35] - [38] 3.2 The section 30 issue [39] - [39] 4.0 DISCUSSION [40] - [112] 4.1 An overview of the appellants’ position [40] - [52] 4.2 Principles of statutory interpretation [53] - [63] 4.3 Section 30 – a “pre-existing claim”? [64] - [75] 4.4 Sections 30 and 22 – a “court proceeding”? [76] - [96] 4.5 Section 22 – a bar to third party claims for contribution? [97] - [112] 5.0 CONCLUSION AND DISPOSITION [113] - [116] Reasons for Judgment of the Honourable Mr. Justice Grauer: 1.0 INTRODUCTION [1] This appeal arises out of an application by the defendants in a motor vehicle accident claim for leave to file third-party notices claiming contribution and indemnity from the defendant driver’s employer.  Those defendants are Mr. Lezama, the driver of the vehicle allegedly causing injury to the plaintiff, and the Enterprise Rent-a-Car defendants (“Enterprise”), owners of the vehicle. [2] The master granted leave.  The proposed third parties, PFM Productions Inc. and its successor, LHP Holdings Inc. (“PFM/LHP”) appealed to the Supreme Court. [3] In reasons for judgment delivered October 8, 2019, and indexed at 2019 BCSC 1709, Mr. Justice Kent allowed the appeal and set aside the master’s order.  He did so on the basis that the proposed third party claims were subject to a two-year limitation period under the Limitation Act , SBC 2012, c 13 [the new Act], and accordingly were time-barred.  It followed that those proposed claims could not be brought as they were prohibited by sections 6(1) and 22(2) of the new Act. [4] The defendants appeal to this Court.  They raise issues of law that they maintain attract a correctness standard of review.  The respondents agree, as do I, that correctness is the applicable standard. [5] The appellants maintain that the judge erred in two respects.  They say, first, that the judge erred in his interpretation of the transition provisions of the new Act.  Properly construed, they submit, those provisions provide that it is the old Limitation Act , RSBC 1979, c 266 [the old Act] that applies to this case, from which it follows that the proposed third party claims are not time-barred.  As I shall discuss in greater detail below, this is because the old Act started time running when a cause of action accrued, and a cause of action for contribution does not accrue until (at least) there has been judgment against a defendant who seeks to claim it, an event that has yet to occur in this case.  This approach changed under the new Act, which starts time running from the date of discovery of the claim, not from the date of accrual of the cause of action. [6] This argument that the old Act governs was not raised before the master, but debuted before the judge.  He disagreed.  As we shall see, I would interpret the transition provisions differently from the way the judge did, but I arrive at the same result.  I conclude, as he did, that it is the new Act that applies. [7] The appellants say, second, that if the new Act applies, the judge erred in his interpretation of section 22(2), which, they assert, properly interpreted, does not apply to claims for contribution or indemnity brought by way of third party notice, as opposed to a separate action. [8] As will become apparent, despite the able submissions of counsel for the appellants, I agree with the judge’s interpretation and application of this part of the new Act. [9] Accordingly, for the reasons that follow, I would dismiss the appeal. 2.0 BACKGROUND 2.1 Claims for contribution under the old Act [10] Claims for contribution and indemnity are not like other claims.  They can arise only when the party seeking contribution has been found liable to someone else.  As such, when first pleaded, they are contingent claims.  Their nature was explained by Madam Justice Neilson, for this court, in The Owners, Strata Plan LMS 1751 v Scott Management Ltd, 2010 BCCA 192, one of the notoriously complex “leaky condo” cases that arose as a result of water leaks in condominium developments built during the ’90s.  That litigation arose under the old Act. [11] Justice Neilson considered (among other things) the right of defendants to claim contribution by way of third party notice against parties allegedly liable to the plaintiff where the plaintiff could not sue those parties directly because of the expiry of a limitation governing the plaintiff’s cause of action.  In reviewing the background of claims for contribution and indemnity, Justice Neilson said this: [18] The defendants’ claim for contribution and indemnity is central to this appeal, and it is useful to set out the characteristics of this cause of action at the outset. The following description relies heavily on David Cheifetz, Apportionment of Fault in Tort (Aurora, Ont.: Canada Law Book, 1981), updated and modified for the British Columbia context. [19] The terms “contribution” and “indemnity” both refer to a restitutionary remedy rooted in unjust enrichment that provides a right of contribution toward a plaintiff’s damages as between concurrent tortfeasors. A claim for indemnity seeks recovery of the entire amount that a tortfeasor has paid to the plaintiff. A claim for contribution seeks only a portion of that amount. For the sake of brevity, in these reasons I use the term “contribution” to refer to both. [20] There was no right to contribution at common law between concurrent tortfeasors. A plaintiff could sue and collect 100 percent of her loss from any one of several concurrent tortfeasors regardless of his degree of fault. That tortfeasor had no right to then sue the others to recover the amounts attributable to their fault. [21] In British Columbia, that unfairness was remedied by enacting a statutory right to contribution and indemnity in 1936. Presently, that right is found in s. 4 of the [ Negligence Act , R.S.B.C. 1996, c. 333 (the “ Act ”)], which reads: 4  (1)  If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person was at fault. (2)  Except as provided in section 5 if 2 or more persons are found at fault (a) they are jointly and severally liable to the person suffering the damage or loss, and (b) as between themselves, in the absence of a contract express or implied, they are liable to contribute to and indemnify each other in the degree to which they are respectively found to have been at fault. [22] Section 4(2) thus creates two independent statutory rights. The first is a plaintiff’s right to recover the whole of her loss from any one of several concurrent tortfeasors on the basis that they are jointly and severally liable. The second is the right as between those tortfeasors to claim contribution. [23] The cause of action for contribution does not accrue, and the limitation period does not begin to run, until the defendant tortfeasor sued by the plaintiff has been found liable : George Wimpey & Co. v. British Overseas Airways Corporation , [1955] A.C. 169 at 177, [1954] 3 All E.R. 661 (H.L.); British Columbia Hydro and Power Authority v. Van Westen , [1974] 3 W.W.R. 20 at 22 (B.C.S.C); Krusel No. 1 at paras. 47-50 . [24] The Limitation Act , R.S.B.C. 1996, c. 266, does not set out a specific limitation period for a claim for contribution. It is thus subject to the residual limitation period of six years pursuant to s. 3(5) of that Act . [Emphasis added.] (I propose to follow Justice Neilson’s example of using the term “contribution” to cover both contribution and indemnity, for the sake of brevity.  Also for the sake of brevity, I propose to treat the appellants’ essentially identical separate claims for contribution as one claim.) [12] Justice Neilson concluded at para 57: Section 4(2)(b) of the Act creates an independent right of contribution as between the defendants and the respondents since the plaintiff had a cause of action against each of them when the alleged tort occurred. The objective of that right is to ensure that any damages established by the plaintiff will be shared equitably among concurrent tortfeasors according to their degree of fault. There is no principled reason why the post-tort conduct of the plaintiff in failing to join the respondents as defendants before the limitation period against them expired should interfere with the defendants’ right of contribution. [13] So the expiry of the limitation period governing the plaintiff’s cause of action against the proposed third parties did not prevent the defendants from claiming against those same parties for contribution.  No limitation had expired or even started to run in relation to the proposed contribution claim.  That cause of action would not accrue until there was a finding that the defendants were liable to the plaintiff; the limitation period would then run for six years. [14] That is the concept that the appellants say applies here, under the old Act. 2.2 Claims for contribution under the new Act [15] The new Act addressed this situation squarely in three ways. [16] First , it changed the starting point for the running of time by doing away with the relevance of cause of action accrual.  Instead, by section 6(1), it started the running of time from when a claim was discovered: Basic limitation period 6 (1) Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered. [17] Second , it dealt expressly with claims for contribution and indemnity by specifying in section 16 when such claims were deemed to be discovered: Discovery rule for claims for contribution or indemnity 16 A claim for contribution or indemnity is discovered on the later of the following: (a) the day on which the claimant for contribution or indemnity is served with a pleading in respect of a claim on which the claim for contribution or indemnity is based; (b) the first day on which the claimant knew or reasonably ought to have known that a claim for contribution or indemnity may be made. [18] It follows from section 16 that a claim for contribution will generally be discovered, and time will begin to run, long before a cause of action for contribution accrues (which is when the party seeking to assert it is found liable to another party, and when time would have begun to run under the old Act). [19] Third , it dealt specifically with contribution claims made by way of counterclaim or third-party claim in the context of other proceedings in section 22: Counterclaim or other claim or proceeding 22 (1) If a court proceeding has been commenced in relation to a claim within the basic limitation period and ultimate limitation period applicable to the claim and there is another claim (the "related claim") relating to or connected with the first mentioned claim, the following may, in the court proceeding, be done with respect to the related claim even though a limitation period applicable to either or both of the claims has expired: (a) proceedings by counterclaim may be brought, including the addition of a new party as a defendant by counterclaim; (b) third party proceedings may be brought; (c) claims by way of set off may be advanced; (d) new parties may be added or substituted as plaintiffs or defendants. (2) Nothing in subsection (1) gives a person a right to commence a court proceeding under subsection (1) (a) or (b) in relation to a claim for contribution or indemnity after the expiry of a limitation period applicable to that claim. [Emphasis added.] [20] The interpretation of section 22, and its impact on the third party claims in this case, is the subject of the second ground of appeal (the “section 22 issue”).  The appellants concede that the new Act’s limitation on claims for contribution had expired before their application to add the respondents as third parties.  But, they say, section 22(1) preserves the right to assert that claim by way of third-party proceedings in a related action.  The issue is whether that right is subject to section 22(2).  That question, as framed by the appellants, turns on whether the reference in section 22(2) to “a right to commence a court proceeding” includes third party proceedings claiming contribution, or contemplates only independent actions for contribution.  This focuses on the term “court proceeding” which is used throughout the new Act. [21] But this ground depends on which of the two Acts applies to this litigation, which is the subject of the first ground of appeal.  The new Act addressed this issue of transition in section 30 (the “section 30 issue”): Transition 30 (1) In this section: "effective date" means the day on which this section comes into force [ June 1, 2013 ]; "former Act" means the Limitation Act , R.S.B.C. 1996, c. 266, as that Act read immediately before the effective date; "former limitation period" means, with respect to a pre-existing claim, a limitation period that applied to the pre-existing claim before the effective date; "pre-existing claim" means a claim (a) that is based on an act or omission that took place before the effective date, and (b) with respect to which no court proceeding has been commenced before the effective date. (2) A court proceeding must not be commenced with respect to a pre-existing claim if (a) a former limitation period applied to that claim before the effective date, and (b) that former limitation period expired before the effective date. (3) Subject to subsection (2), if a pre-existing claim was discovered before the effective date, the former Act applies to the pre-existing claim as if the right to bring an action occurred at the time of the discovery of the pre-existing claim. (4) Subject to subsection (2), if a pre-existing claim was not discovered before the effective date, (a) in the case of a pre-existing claim referred to in section 3 of this Act, that section applies to the pre-existing claim, (b) subject to paragraph (a) of this subsection, in the case of a pre-existing claim referred to in section 8 (1) (a) or (b) of the former Act, Part 2 of this Act and section 8 of the former Act apply to the pre-existing claim, or (c) in the case of any other pre-existing claim, (i) subject to subparagraph (ii) of this paragraph, this Act applies to the pre-existing claim, and (ii) Part 3 of this Act applies to the pre-existing claim as if the act or omission on which the pre-existing claim is based occurred on the later of (A ) the effective date, and (B) the day the act or omission takes place under section 21 (2) of this Act. [22] This section 30 issue, then, turns primarily on whether the appellants’ claim for contribution against the respondents is a “pre-existing claim” within the meaning of section 30(1).  Here, no court proceeding had been commenced before the effective date of June 1, 2013, satisfying the second branch of the definition.  This question therefore comes down to the first branch: whether the claim for contribution can be considered a claim that is “based on an act or omission” that took place before June 1, 2013. [23] It will be immediately apparent that although the two issues are separate, and focus on different sections, they both turn on the interpretation of the new Act.  As I will discuss in more detail below, statutory interpretation is a process that involves, among other things, reading the words of an Act in their entire context, harmoniously with the scheme and object of the Act and the intention of Parliament.  Of necessity, this will require consideration of the Act as a whole, as well as consideration of the relevant sections individually. [24] Before turning to discuss these issues in detail, and the principles of statutory interpretation that must inform them, I set out the relevant chronology of events in this case. 2.3 Chronology [25] The motor vehicle accident in question happened on October 27, 2012 . [26] On June 1, 2013 , the new Act came into effect. [27] On October 27, 2014 , precisely two years after the accident, the plaintiff filed notice of civil claim.  She named as defendants the appellant driver, Mr. Lezama, whose name was inaccurately stated, and the appellant owner, Enterprise.  She also named John Doe, representing Mr. Lezama’s employer (since identified as PFM/LHP). [28] The plaintiff amended her notice of civil claim on July 27, 2015, to correct Mr. Lezama’s name.  The amended notice of civil claim was served on Enterprise on August 1, 2015 . [29] On September 1, 2015 , counsel representing both Mr. Lezama and Enterprise (who was not counsel on this appeal or on the application below) wrote to counsel for the plaintiff identifying the John Doe defendant as PFM Productions Inc. [30] The amended notice of civil claim was served on Mr. Lezama on September 15, 2015 .  Under the new Act, but not the old, the two-year limitation period for the defendants to advance a claim for contribution and indemnity against PFM/LHP would begin running on this date, being the later of the two available dates under section 16 of the new Act.  The earlier date was triggered at the beginning of September with defence counsel’s identification of PFM as Mr. Lezama’s employer. [31] The appellants filed their response on April 14, 2016. [32] PFM amalgamated with LHP on June 1, 2017. [33] On February 23, 2018, the appellant Mr. Lezama filed his application to add PFM/LHP as third parties.  The appellant Enterprise filed its application on May 7, 2018. [34] On May 30, 2018, the master granted the leave sought by the appellants.  The judge reversed that decision on October 8, 2019; hence this appeal. 3.0 THE CHAMBERS JUDGE’S REASONS 3.1 The section 22 issue [35] As noted, the appellants’ argument that it was the old Act that applied to their third party claim in accordance with section 30 (properly interpreted) had not been raised before the master.  Accordingly, after a detailed review of the history and principles of third party proceedings for contribution, the judge dealt first with the argument that had been raised: the effect of section 22 of the new Act.  He began by identifying the issue: [54] Section 22(1) of the new Limitation Act permits the filing of a third party proceeding in an action even though a limitation period applicable to the third party claims has expired.  Without more, the expiry of such limitation period would not prevent any court from granting leave pursuant to Rule 3-5(4)(a) for the filing of any such Third Party Notice. [55] Unlike the situation under the old Limitation Act , there is now more to the equation: s. 22(2) of the new Limitation Act qualifies the litigation rights granted in s. 22(1).  In particular, that section provides that s. 22(1) does not give a person the right to "commence a court proceeding" in relation to a claim for contribution or indemnity after the limitation period applicable to that claim has expired.  Hence the question that has given rise to this appeal:  What exactly is the effect of s. 22(2) of the new Limitation Act upon a proposed third party proceeding for contribution under the Negligence Act if the limitation period for such a contribution claim has otherwise expired? [36] The judge then reviewed a number of competing decisions on the subject, including Master Elwood’s decision in Dhanda v Gill , 2019 BCSC 1500, concluding: [58] I completely agree with and adopt the analysis of Master Elwood in Dhanda insofar as interpretation of the new Limitation Act in general and s. 22 of that Act in particular is concerned.  In my opinion: · the legislature intended to radically change the law and procedure regarding contribution and indemnity claims under the Negligence Act ; · properly interpreted, the new Limitation Act provides that a two-year limitation period (following "discovery") applies to contribution or indemnity claims under the Negligence Act whether brought as a plaintiff by way of a separate action or as a defendant by way of a third party proceeding in an action already underway; · expiry of the two-year limitation period is a substantive and complete defence to any such contribution/indemnity claim and one which, except in rare circumstances such as waiver or estoppel, will usually result in dismissal of the claim; · unlike s. 4(1) of the old Limitation Act , ss. 22(1) and (2) of the new Limitation Act do not remove an accrued limitation defence as a bar to third party proceeding for contribution or indemnity under the Negligence Act ; to the contrary, where such a defence has accrued and applies, the court should enforce same; · Rule 3-5(4) bestows a discretion upon the court to permit the filing of Third Party Notices; while that procedural discretion must be exercised judicially and with reference to the factors discussed in the case law, the rule does not permit the court to extinguish a substantive legal defence to a proposed contribution claim based on an expired limitation period; and · if the merits of any such limitation defence are in question ( e.g . date of discovery, waiver or estoppel, et cetera ), the court should direct that the issue be determined in the proposed third party proceeding or, if considered more appropriate, by way of a separate action. [37] The judge then turned to discuss external documents that had been reviewed by Master Elwood in Dhanda and were also in evidence before him (as they were before us): [59] In his Reasons for Judgment Master Elwood refers to the "White Paper on Limitation Act Reform:  Finding the Balance" (September 2010), issued by the Ministry of Justice as well as another ministry publication "The New Limitation Act Explained" (June 2013).  He observes: [55]      The White Paper includes a draft provision in substantially the same language as s. 22 of the current Limitation Act. The comment below the draft provision reads, at p. 70: This section provides that there is no limitation period for a secondary claim (i.e., a counterclaim, a third party proceeding, or a claim by way of set-off) so long as this secondary claim is related to the primary claim (or original lawsuit), and the primary claim was commenced in time. Judges will still have discretion to refuse relief on grounds unrelated to the expiry of a limitation period. This section carries forward the principles from section 4 of the current Act but removes the application of this section to claims for contribution. Contribution claims will be governed by limitation periods in the new Act . (emphasis added) [56]      The New Act Explained provides the following explanation of s. 22, at p. 41: Subsection (1) This provision has been carried forward from the former Act. It has been revised to fit within the language of the new Act. Subsection (1) provides that there is no limitation period for a person to commence a related claim (i.e. a counterclaim, a third party proceeding, a claim by way of set off, or the addition or substitution of a new party as plaintiff or defendant), as long as this related claim is related to or connected with the original claim, and the original claim was commenced within the limitation period under the new Act. This means that a judge retains the discretion to allow or not allow a related claim to proceed. Subsection (2) Section 22 does not apply to claims for contribution or indemnity. Contribution or indemnity claims are governed by the basic and ultimate limitation periods in the new Act . Section 16 sets out that the basic limitation period runs from the later of: the date a person claiming contribution or indemnity is served with the paperwork starting the original claim (on which the contribution or indemnity claim is based), or the date that a person first knew or reasonably ought to have known that he or she could make a claim for contribution or indemnity against a third party. (emphasis added) [60] The latter document also contained an explanation of s. 16, which further emphasized that the new limitation provisions were designed to remove judicial discretion to refuse to strike [or to grant leave to issue] a third party contribution notice in the absence of meaningful delay or prejudice: Under the former Act there was potential for lengthy delays between the running of time in the original lawsuit and the date a third party received notice of a claim against him or her for contribution or indemnity. Under the former Act it was open to the court to consider delay and prejudice in determining whether to strike a third party notice for contribution or indemnity. The new Act provides that a claim for contribution or indemnity cannot be brought against a third party more than two years from the time when the original claim (i.e. the one from which the claim for contribution or indemnity would arise) was served ... (p. 30) [61] These materials were also before the Court on this appeal along with extracts from Hansard evidencing discussion of the proposed new Act in the legislature: Hon. S. Bond: What we see in [s. 22] is actually a carry-forward of the principles from s. 4 of the current Act, so there is no new law. What it does do, though, is remove the section to claims for contribution or indemnity ... basically, it's a carry-forward and the removal of contribution or indemnity, which is covered off in s. 16 . [Emphasis added.] Hansard, 2011 Legislative Session:  4th Session 39th Parliament, Thursday, April 26, 2012 (Vol. 3, No. 6) at page 11169 [62] It is perhaps noteworthy that Canada's leading commentator on the law of limitations agrees that s. 22 of the new Limitation Act does not permit proceedings for contribution or indemnity once the relevant limitation period has expired: The new British Columbia Limitation Act , which came into force 1st June 2013, provides in s. 22(1) that if a court proceeding has been brought in a timely way, and there is another claim relating to or connected with the first claim, a proceeding by way of counterclaim and third party claim may be brought, and claims by way of set off may be advanced, even though the limitation period applicable to either or both of the claims has expired.  However, this provision does not give a person the right to commence a proceeding for contribution and indemnity once the limitation period for that relief has expired . [ Ibid , s. 22(2)].  Claims for contribution and indemnity are governed by s. 16 of the Act ... [Emphasis added.] Mew, The Law of Limitations (3d edit., LexisNexis, Toronto, 2016) at p. 179 [Emphasis original.] [38] The judge then turned to the appellants’ argument that the term “court proceeding” in s. 22(2) of the new Act refers only to a claim for contribution brought by way of a separate court action as opposed to a third party proceeding. This argument was based in part on what I said in Mayer v Mayer , 2015 BCSC 1193, about the meaning of “court proceeding” in the context of the application of section 30 of the new Act to amendments to pleadings.  The chambers judge disagreed with the appellants’ argument in this regard, and, as I will explain further below, so do I.  What the chambers judge said was this: [66]      With all due respect, it simply makes no sense for s. 22(2) of the new Act to be limited to separate lawsuits for contribution and not to include third party proceedings. [67] First the subsection itself refers to "a court proceeding under subsection (1)(a) or (b)"; that in turn refers only to "proceedings by counterclaim" and "third party proceedings", neither of which is a separate lawsuit.  In other words, s. 22(2) says "nothing in subsection (1) gives a person a right to commence a [proceeding by counterclaim] or a [third party proceeding] in relation to a claim for contribution or indemnity after expiry of a limitation period applicable to that claim."  The meaning of the prohibition is plain. [68] Second, I would point out that a Third Party Notice (and indeed also a Counterclaim) actually is a form of "originating process".  Rule 1-1 contains the following definition: "originating pleading" means a notice of civil claim, counterclaim, third party notice or any document, other than a petition, that starts a proceeding; The Third Party Notice is the pleading by which the proposed contribution claim is, quite literally, being originated. [69] Third, as noted above, claims for contribution or indemnity under the Negligence Act have traditionally and invariably been brought by way of third party proceedings.  Separate lawsuits in that regard simply did not (and do not) occur as a matter of practice.  In such circumstances, it makes no practical sense to impose a radically different limitation period for an essentially non-existent lawsuit and yet remove that limitation for the mechanism almost universally employed in practice to pursue such contribution claims.  That could not possibly have been the legislature's intent. [70] The defendants provide an "example of absurdity" to illustrate what they consider to be an irrational (and unfair) application of Rule 22-2 if the latter is considered to apply to contribution third party proceedings: A plaintiff could commence proceedings against a first defendant and then add new defendants after the limitation period has expired.  However, although those new defendants would then be able to third party each other and the first defendant as of right, the first defendant would not be able to third party the new defendants.  This could not have been the intention of the legislature. [71] I disagree with the characterization of this example as an absurdity.  Whether or not the first defendant would be able to third party the new defendants (or for that matter institute a separate contribution action against those new defendants) would be determined by the concept of "discovery".  If the first defendant was aware that the new defendants had caused or contributed to the plaintiff's loss or injury, then he could have and should have issued his contribution proceedings within the applicable two-year limitation period.  If he failed to do so, he has only himself (or his lawyer) to blame.  If, on the other hand, he was unaware that the new defendants had caused or contributed to the plaintiff's loss or injury, then he would have two years to sue for contribution starting from the date he knew or should have known of that fact.  As Master Elwood rightly states: [62]      Section 22(2) represents a legislative choice to time limit claims for contribution or indemnity. Whether it strikes the right balance between fairness to potential claimants and certainty for potential third parties is not for me to decide. 3.2 The section 30 issue [39] The judge found that the appellants’ claim for contribution was a pre-existing claim within the meaning of section 30(1) of the new Act, but was not discovered before the effective date (June 1, 2013).  Accordingly, by section 30(4), the new Act applied, and time began to run after the service of the amended notice of civil claim on Mr. Lezama on September 15, 2015: [91] A claim for contribution under the Negligence Act is premised on the plaintiff's "damage or loss" being caused by the fault of two or more persons.  The limitation period for a plaintiff to sue on account of that damage or loss is two years from the date of "discovery".  Such discovery occurs when the plaintiff knew or reasonably ought to have known "that the injury, loss or damage was caused by or contributed to by an act or omission" on the part of a person against whom a claim might be made (s. 8).  Declaratory claims for contribution or indemnity are thus "based on an act or omission" that caused or contributed to the plaintiff's loss or damage. [92] In this particular case, the acts, omissions, and resulting loss/damage all occurred on the date of the motor vehicle accident, namely, October 27, 2012. Hence, the proposed third party proceeding meets the first part of the definition of a "pre-existing claim" under s. 30(1) of the new Limitation Act , i.e. an act or omission occurring before June 1, 2013. [93 ] It is also clear from the chronology set out above that no court proceeding, whether a personal injury claim by the plaintiff or a third party proceeding for contribution or indemnity, was commenced before June 1, 2013 .  Hence the second condition is met and the proposed third party proceeding thus qualifies as a "pre-existing claim" within the meaning of s. 30(1) of the new Limitation Act . [94] Whether or not this pre-existing claim is governed by the old Limitation Act or the new Limitation Act is dependent on the date of its "discovery".  If such discovery occurred before June 1, 2013, the old Limitation Act applies (s. 30(3)).  If the discovery occurred after June 1, 2013, the new Limitation Act applies (s. 30(4)(c)(i)). [95] Section 16 of the new Act specifies the date on which a claim for contribution or indemnity is "discovered".  At the very earliest, that date would be the date on which the defendants were served with the plaintiff's Notice of Civil Claim, i.e. August/September 2015, fully two years after the new legislation came into force.  The result is that the proposed third party proceeding in this case is a "pre-existing claim" governed by the new Limitation Act and the two-year limitation period specified in that Act. [96] Hendrix v. Handa Travel Student Trip , 2016 BCSC 620 (Master), is an example of a pre-existing claim for claim for contribution or indemnity, which is governed by the old Limitation Act .  There the injury accident occurred in March 2011 and the defendants proposing to issue a third party proceeding contribution notice were served with the Notice of Civil Claim two years later in March 2013.  Master Muir concluded that date of service was the date the claim for contribution and indemnity was "discovered" within the meaning of s. 16 of the new Limitation Act and in the particular circumstances of that case.  Hence s. 30(3) of the new Act applied and the former legislation governed the relevant limitation period for the contribution claim. [97] The present case is very similar except for one crucial point, namely, that the contribution claim was not discovered until after the new legislation came into force and hence s. 30(4) of the Act provides that the new legislation governs the relevant limitation period. [98] It follows from all of the above that the transition provisions of the new Limitation Act do not "save" the defendants from the limitation expiry obstacle they otherwise confront. [Emphasis added.] 4.0 DISCUSSION 4.1 An overview of the appellants’ position [40] The appellant asserts that the term “court proceeding”, as used variously in sections 6, 22 and 30 of the new Act, can refer only to an originating proceeding, such as a petition or action, and not to a claim brought by third party notice in an existing action. [41] Turning to section 30(1), the reference in the second part of the definition to a claim “with respect to which no court proceeding has been commenced before the effective date” therefore does not include a third party claim for contribution.  Rather, it addresses the underlying litigation to which a third party claim for contribution relates.  Thus, in the appellants’ submission, the chambers judge correctly found that their claim for contribution was a “pre-existing claim” under section 30(1), for the reasons set out in paras 92 and 93 of his reasons for judgment, as quoted above: it was “based on” a motor vehicle accident that took place before the effective date, and no court proceeding had been commenced before the effective date. [42] Where the judge erred, the appellants contend, is in his application of subsections 30(3) and (4).  He interpreted the words “if a pre-existing claim was discovered before the effective date” to refer to the discovery of the third party claim for contribution, when in fact those words, construed properly, refer to the discovery of the underlying tort claim.  Since the tort claim was discovered before the effective date, the old Act applies. [43] But even if the new Act applies, the appellants submit, section 22(1) specifically preserves the ability to bring third-party proceedings even though a limitation period applicable to either the related claim or the third party claim has expired.  That ability, they contend, is not limited by subsection (2), which, properly interpreted, must be considered to prohibit only an independent claim for contribution, not the third party claim permitted by subsection (1).  This follows from the correct interpretation of the words “court proceeding”. [44] The appellants argue that in coming to the opposite conclusion, the chambers judge erred in relying on the external documents from which he quoted in support of his interpretation.  They submit that the judge’s reliance on such documents “demonstrates why our courts are generally reluctant to rely on external publications in interpreting legislation”, citing Morguard Properties Ltd v City of Winnipeg , [1983] 2 SCR 493. [45] To support their arguments, the appellants raise two scenarios that, they say, flow from the judge’s interpretation, but yield absurd anomalies that the legislature could not possibly have intended. [46] The first (“anomaly #1”) is raised in their factum.  The judge’s interpretation, they maintain, leaves the plaintiff governed by the old Act, while the defendants are subject to the new Act for contribution purposes.  This means that two different Acts apply to the same proceeding, with the limitation governing the defendants’ claims for contribution being different from the limitation governing the plaintiff’s tort claim against the defendants. [47] I observe at this point that this is hardly an anomaly, nor is it a situation that the legislature could not possibly have intended.  Under the old regime, this was invariably the result: see Scott Management , where the difference between the limitation governing the plaintiff’s claim against the proposed parties, and the limitation governing the defendants’ proposed third party claim against those same parties, was one of the central points.  In my view, such a result would not offend any interpretive principle, but would reflect the clear choice of the legislature. [48] The second (“anomaly #2”) is more complicated.  It flows, the appellants say, from the judge’s conclusion that the discovery date relevant to section 30(3) is the one applicable to claims for contribution under section 16 of the new Act, rather than the one applicable to the underlying tort claim under the old Act. [49] Suppose, the appellants posit, the motor vehicle accident took place in 2011, and the plaintiff commenced action in late 2012, naming two defendants.  Suppose, then, that the plaintiff served defendant #1 in March 2013.  On the judge’s reasoning, it would follow that defendant #1’s claim for contribution was discovered before the effective date of June 1, 2013, and the old Act would apply in accordance with section 30(3) of the new Act.  The result is that the limitation applicable to any claim for contribution brought by defendant #1 would not expire for at least six years. [50] Assume, then, that the plaintiff served defendant #2 shortly after the effective date of June 1, 2013.  By the judge’s reasoning, that defendant’s potential claim for contribution, like the claim here, would not be discovered until after the effective date, so the new Act would apply in accordance with section 30(4)(c)(i).  Defendant #2, then, would have only two years to start his claim for contribution, not six or more like defendant #1. [51] Such an anomaly, the appellants argue, cannot have been intended.  It follows, they submit, that when subsections 30(3) and (4) of the new Act refer to whether a pre-existing claim was discovered before or after the effective date, the reference must be intended to focus on the discovery of the underlying claim, here the motor vehicle accident claim, not the claim for contribution.  That way, the anomaly of different Limitation Acts applying to claims for contribution brought by different defendants in the same action cannot arise. [52] I observe at this point that anomaly #2, as set up by the appellants, would arise in only the very narrowest of windows (and not in this case), and if contrary to the apparent intention of the legislature, may suggest error by the judge other than in the interpretation of subsections 30(3) and (4). 4.2 Principles of statutory interpretation [53] This leads me to the principles of statutory interpretation.  They are not in doubt.  Where doubt may arise is in their application. [54] As we have seen, the appellants submit that the judge erred in his reliance on the external documents, citing Morguard Properties, a 1983 decision of the Supreme Court of Canada.  But this is not the most recent statement of the law. [55] The definitive statement comes from the Supreme Court’s decision in Rizzo & Rizzo Shoes Ltd (Re) , [1998] 1 SCR 27, where the court adopted Elmer Driedger’s description of the proper approach: 21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “ Construction of Statutes ”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely.  He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone.  At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec , [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp. , [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank , [1996] 3 S.C.R. 550; Friesen v. Canada , [1995] 3 S.C.R. 103. 22 I also rely upon s. 10 of the Interpretation Act , R.S.O. 1980, c. 219, which provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”. 23 Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA , its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized.  I now turn to a discussion of these issues. [56] In para 34, the Court relied, in aid of interpretation, on statements made by the Minister responsible for the legislation in question when he introduced the relevant amendments, and also on what the Minister said in legislative debates.  The Court went on to address the use of Hansard in para 35: 35 Although the frailties of Hansard evidence are many, this Court has recognized that it can play a limited role in the interpretation of legislation.  Writing for the Court in R. v. Morgentaler , [1993] 3 S.C.R. 463, at p. 484, Sopinka J. stated: . . . until recently the courts have balked at admitting evidence of legislative debates and speeches. . . .  The main criticism of such evidence has been that it cannot represent the “intent” of the legislature, an incorporeal body, but that is equally true of other forms of legislative history. Provided that the court remains mindful of the limited reliability and weight of Hansard evidence, it should be admitted as relevant to both the background and the purpose of legislation . [Emphasis added.] [57] This Court has also used legislative debates for assistance in determining the purpose of the legislation.  See, for instance, Reid v Strata Plan LMS 2503 , 2003 BCCA 126 at para 27: This analysis accords with one of the goals of the Legislature in rewriting the Condominium Act , which was to put the legislation in “plain language” and make it easier to use (British Columbia, Official Report of Debates of the Legislative Assembly, Vol. 12 (1998) at 10379). [58] In her book Sullivan on the Construction of Statues , 6th ed (Markham: Lexis Nexis, 2014) at para 2.1, Professor Sullivan sets forth the classic three-pronged method to interpretation, as discussed by the Supreme Court of Canada in Canada Trustco Mortgage Co v Canada , 2005 SCC 54 at para 10, Celgene Corp v Canada (Attorney General) , 2011 SCC 1 at para 21, and Canada (Information Commissioner) v Canada (Minister of National Defence) , 2011 SCC 25 at para 27 : (1) the ordinary meaning approach using the text of the statute as the primary source; (2) the contextual approach as originally described by Elmer Driedger and refined by the Supreme Court in Re Rizzo & Rizzo Shoes Ltd ; and (3) the purposive approach in order to consider the practical idea behind the enactment of both the relevant section and the statute as a whole, as well as the real world effects of the Court's interpretation. [59] In Reference re Firearms Act (Canada) , 2000 SCC 31 at para 17, the Supreme Court discussed what extrinsic material a judge may use to ascertain the purpose of a statute: A law's purpose is often stated in the legislation, but it may also be ascertained by reference to extrinsic material such as Hansard and government publications: see Morgentaler , supra , at pp. 483-84. While such extrinsic material was at one time inadmissible to facilitate the determination of Parliament’s purpose, it is now well accepted that the legislative history, Parliamentary debates, and similar material may be quite properly considered as long as it is relevant and reliable and is not assigned undue weight: see Global Securities , supra , at para. 25; Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 35; and Doré v. Verdun (City) , [1997] 2 S.C.R. 862, at para. 14. Purpose may also be ascertained by considering the "mischief" of the legislation — the problem which Parliament sought to remedy: see Morgentaler , supra , at pp. 483-84. [Emphasis added.] [60] The key, then, to the use of extrinsic materials, as discussed in the Firearms Act Reference , and Rizzo (at para 35) is that they be relevant and reliable, and not assigned undue weight.  Typically, as in Reid , they will be used to assist the court in determining the third prong of Professor Sullivan’s approach, also discussed by Driedger , being the purpose of the legislation and the intention of the legislature. [61] In all cases, of course, the court must seek to read the provisions of an Act as a harmonious whole, and avoid an interpretation that the ordinary meaning of the words used in the statute cannot bear. [62] In the present case, the appellants raise arguments concerning the interpretation of a number of words and phrases, including “claim”, “pre-existing claim”, “based upon”, and “court proceeding”, most of which are capable of bearing more than one meaning.  In these circumstances, I consider that the judge was entitled to have regard to the external documents he reviewed.  The only question is whether he gave them too much weight. [63] With these principles in mind, I turn to discuss the issues arising in this case. 4.3 Section 30 – a “pre-existing claim”? [64] As we have seen, the appellants submit that error arose in the judge’s finding that the relevant date of discovery for the “pre-existing claim” was that deemed by section 16 of the new Act to apply to claims for contribution, rather than the date of discovery of the underlying tort claim for damages. [65] The respondents also say that the judge erred in his interpretation of the transition provisions in section 30.  They maintain, however, that the error occurred further back along the judge’s chain of reasoning.  The problem, they contend, lay in focusing on the underlying tort claim at all.  The claim at issue is not the underlying claim, but is the appellants’ claim for contribution.  That claim must of necessity be “based on an act or omission” that has yet to take place (a finding of liability against the appellants).  It follows, in the respondents’ submission, that a third party claim for contribution in an ongoing action can never meet the definition of “pre-existing claim” in section 30(1). [66] On this analysis, the claim for contribution will always be subject to the new Act, and co-defendants who claim against each other for contribution will always be subject to the same limitation period.  If we take the appellants’ example, then on this interpretation, whether the plaintiff serves a defendant before or after the effective date cannot matter.  In either event, the claim for contribution, whenever it may be brought, must by its nature be based on an act or omission that has yet to take place, not one that took place before the effective date. [67] In my view, the respondents have it right. [68] A “pre-existing claim”, then, is defined as a “claim” that satisfies two conditions.  The second condition, that no court proceeding has been commenced before the effective date, has been satisfied here regardless of which claim is intended to be covered.  I therefore begin by looking at the first condition, that the claim be based on an act or omission that took place before the effective date.  I will then look at the definition as a whole. [69] The new Act defines “claim” as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”.  That does not enlighten us as to whether a “pre-existing” claim (in the context of this case) is intended to be limited to the underlying tort claim, or to the third party claim for contribution.  Both are claims to remedy injury, loss or damage occurring as a result of an act or omission.  But are they each “based on” the same “act or omission”? [70] With respect to claims for contribution, I go back to what Justice Neilson said in Scott Management at para 23: “The cause of action for contribution does not accrue … until the defendant tortfeasor sued by the plaintiff has been found liable”.  That finding of liability, coupled with a resultant unjust enrichment of the liable party who fails to contribute his or her fair share, comprise the “act or omission” upon which the claim is based. [71] That follows from the wording of section 4 of the Negligence Act as cited by Justice Neilson: 4 (1)  If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person was at fault. (2)  Except as provided in section 5 if 2 or more persons are found at fault (a) they are jointly and severally liable to the person suffering the damage or loss, and (b) as between themselves, in the absence of a contract express or implied, they are liable to contribute to and indemnify each other in the degree to which they are respectively found to have been at fault. [Emphasis added.] [72] It is therefore when two or more persons have been found at fault by a court that a right to contribution arises, based upon the unjust enrichment that arises in the event of a failure to contribute.  That is why, under the old Act, the six year limitation did not begin to run until that event had occurred. [73] This leads to what, in my view, was an error in the judge’s approach to this part of the case, as set out in para 91 of his reasons, quoted above.  First, he appears to have melded the acts/omissions giving rise to the plaintiff’s claim ( loss or damage caused by the fault of others) into the acts giving rise to the claim for contribution ( finding of fault of two or more persons).  He did so on the basis that the claim for contribution was declaratory (based upon its contingent nature), but that does not alter the fact that the declaration cannot be made until the finding of fault on the part of two or more persons has taken place.  It is that finding, and only that finding, that gives rise to the restitutionary claim for contribution. [74] Second, he then wove the discovery provision governing the plaintiff’s claim into his interpretation of the definition of a “pre-existing claim” under section 30(1) of the new Act.  But the relevance of discovery comes later, in subsections (3) and (4).  At that point, the judge found, it is the discovery of the contribution claim that matters, not the discovery of the tort claim.  I agree.  Returning to the definition, it asks in subparagraph (a) only whether the act or omission upon which the claim is based took place before the effective date, not whether it was discovered before the effective date.  Only if a claim is found to be a “pre-existing claim” does the date of its discovery become relevant in accordance with subsections (3) and (4). [75] To what claim, then, does the definition refer?  There is no doubt, as noted, that the underlying tort claim is a “pre-existing claim”.  What we need to determine is whether the contribution claim is a “pre-existing claim”.  That, as the respondents point out, is the claim at issue.  And is not the purpose of the definition to help the reader determine whether a particular claim falls under the old Act or the new Act? Why would that be limited to the circumstances surrounding an underlying action, as opposed to the claim for contribution itself? 4.4 Sections 30 and 22 – a “court proceeding”? [76] The appellants argue that the answer flows from the new Act’s use of the term “court proceeding”.  Although that term does not appear in the first branch of the section 30(1) definition of “pre-existing proceeding” that we have been discussing, it does appear in the second.  When one takes that into account, they say, it becomes clear that, viewed contextually, the definition’s reference to “a claim…based on an act or omission that took place before the effective date” is intended to refer to that underlying tort claim and any related claim arising from the act or omission. [77] I disagree.  The language of the first branch of the definition does not define a “pre-existing claim” as a claim that is related to , or connected to an act or omission; rather, it says “based on”.  So wide an interpretation as the appellants suggest could lead to considerable difficulty in the application of section 30(2), given that claims with quite different limitation periods could arise from the same facts. [78] As we have seen, the basis of a claim for contribution is a statutory right to restitution that flows from findings of liability, not from the commission of a tort.  The connection to the underlying claim is not to the act or omission that gives rise to the tort claim.  Rather, the connection arises from the bare fact of the tort action itself, because it seeks to impose liability. [79] The purpose of the claim for contribution is to remedy the defendant’s loss in paying too much of the plaintiff’s judgment as a result of the act or omission of the co-defendant or other third-party in failing to pay its proper share, thereby being unjustly enriched.  The act or omission on which the claim for contribution is based thus remains that failure, which is something quite different from the act or omission giving rise to the tort claim.  That is why tortfeasors may bring their claims for contribution independently of the tort claim, in a separate action, and are not obliged to attach them to the tort action by way of third-party proceedings. [80] In my view, this interpretation is consistent with the ordinary meaning of the words as used in the text of the statute, as well as the contextual approach described by Elmer Driedger, and the purposive approach of considering what the legislation was intended to accomplish as discussed in the materials reviewed by Master Elwood in Dhanda and adopted by the chambers judge.  It is also consistent with the approach taken in other jurisdictions to almost identical statutory provisions. [81] In Placzek v Green , 2009 ONCA 83, the Ontario Court of Appeal considered similar language, and concluded that the claims of contribution in question were based not on the acts or omissions giving rise to the tort claim, but on different acts or omissions giving rise to a claim for restitution: [34]      First, rather than being claims for damages arising out of a tort, Mr. Green’s proposed counterclaims are essentially claims for restitution based on unjust enrichment.  As such, although Mr. Green’s claims may be related to the tortious acts that underlie the accident, they are not founded on those acts.  Rather, they are founded on the acts or omissions giving rise to the claims for restitution. [35]      There is ample authority in Ontario for the proposition that a claim for contribution and indemnity under section 1 of the Negligence Act is not a damage claim arising out of the tort, but instead is a statutory claim founded on principles of restitution and unjust enrichment. I observe that although Justice Simmons, for the court, used the phrase “founded on”, the legislation in question (the Limitations Act, 2002 , SO 2002, c 24, s 24(2)), like our new Act, used the words “claims based on acts or omissions that took place before the effective date” (emphasis added). [82] Placzek was applied by the Court of Appeal for Saskatchewan in Casbohm v Winacott Spring Western Star Trucks , 2013 SKCA 88.  The analysis is entirely consistent with what Justice Neilson said in Scott Management , and I would apply it in this case: the appellants’ claim for contribution is not “based” (or “founded”) on the act or omission that gave rise to the tort claim and took place before the effective date.  Rather, it is (or will be) based on subsequent acts or omissions that, in accordance with principles of restitution and unjust enrichment, will found a claim for contribution. [83] I do not see that the use of the term “court proceeding” in the second branch of the definition of “pre-existing proceeding” leads to a different conclusion. [84] But the appellants contend that the use of the term throughout section 30, and also in sections 22 and 6, demonstrates that a “pre-existing claim” does not contemplate a dependent third-party claim, but rather covers the underlying main action.  This is because, the appellants submit, “court proceeding”, as it appears throughout the new Act, can refer only to an originating proceeding, such as a petition or action, and not to a claim brought by third party notice in an existing action.  It follows, they say, that the use of the term excludes a third party claim, and must refer to the underlying litigation, just as, in their submission, the act or omission referred to in the first part of the definition must refer to the underlying claim. [85] It would follow from this proposition that a third party claim for contribution could then constitute a “pre-existing claim” in accordance with the second part of the definition in section 30(1) only if the underlying claim to which it is connected had been commenced after the effective date, as is the case here. [86] But as I see it, that does not fit with the scheme of the transition provisions, and the approach the new Act takes to claims for contribution.  The result of the appellants’ interpretation yields a result entirely contrary to the purpose of the legislation.  I raise three points in this regard. [87] First, the appellants’ interpretation would exclude third-party claims of any kind from the limitation imposed by section 6(1), which provides that “a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered”.  This is because, according to the appellants, a third party claim cannot be a “court proceeding”.  As discussed below, this would make nonsense of much of section 22. [88] Second, it would have a potentially perpetuating effect on independent claims for contribution.  Such claims still depend upon the prospect of a finding of liability in an underlying claim, and thus are related claims.  If the underlying claims were commenced before the effective date, it would not be a pre-existing claim.  The act and omission upon which it is based, the discovery thereof, and the commencement of the action, would all have taken place before the effective date. It would follow from the appellants’ position that the old Act would apply not only to that underlying claim, but also to any “related” claim for contribution no matter when advanced or discovered, even if commenced as a separate action many years after the effective date. [89] Third, it would yield no change to the situation discussed in Scott Management , where third-party proceedings could be commenced long after the commencement of the original action. [90] These points precisely describe the mischief that the new Act was intended to address.  As was noted by the chambers judge at para 60, quoting from the ministry document, The New Limitation Act Explained : Under the former Act there was potential for lengthy delays between the running of time in the original lawsuit and the date a third party received notice of a claim against him or her for contribution or indemnity. [91] Perpetuating that problem is a result to be avoided unless clear and unambiguous language compels otherwise. [92] Nevertheless, the appellants rely in part on what I said in Mayer v Mayer , 2015 BCSC 1193, about the meaning of “court proceeding” in the context of the application of section 30 of the new Act to amendments to pleadings.  The chambers judge disagreed with the appellants’ argument in this regard, and so do I. [93] As the chambers judge noted, what I said in Mayer about “court proceeding” meaning originating processes was not at all inconsistent with “court proceeding” including a third party claim.  A third party claim is a proceeding brought in court that originates a claim: here, the claim for contribution.  Accordingly, consistent with the definition of “originating pleading” in Rule 1-1 of the Supreme Court Civil Rules , which includes a third party notice as a “document … that starts a proceeding”, a third party claim would constitute a “court proceeding”.  This fits with section 6 of the new Act. [94] In para 24 of Mayer , I expressed the view that “court proceeding” was intended to encompass originating processes.  For the reasons just discussed, that would include a third party notice.  For present purposes, it is not necessary to comment any further on that conclusion.  I also suggested that it would not encompass an application to amend pleadings, which is what was before me at that time, or “proceedings such as the filing of a counterclaim”.  The filing of a counterclaim was not before me; those dicta were, accordingly, obiter and, as it appears to me now, incorrect.  In fact, a counterclaim would qualify as an originating proceeding, for the same reason that a third party notice does.  Both are processes that originate proceedings for claims not previously raised. [95] Mayer , then, properly understood, does not support the appellant’s’ position.  Neither does the manner in which the term “court proceeding” is used in section 22. [96] I turn next to the section 22 issue—whether the new Act bars the appellants’ third party claim for contribution. 4.5 Section 22 – a bar to third party claims for contribution? [97] Claims for contribution and indemnity can be brought in more than one way.  Of relevance to this case, they can be brought by a defendant in an existing action by way of third party notice (as in the Scott Management case).  Alternatively, that same defendant could bring the claim as a plaintiff in a separate and independent action.  Are both of those proceedings treated the same way under the new Act?  This raises the interpretation of section 22, and, again, of the phrase “court proceeding” as discussed above.  I set out section 22 again, for convenience: Counterclaim or other claim or proceeding 22 (1) If a court proceeding has been commenced in relation to a claim within the basic limitation period and ultimate limitation period applicable to the claim and there is another claim (the "related claim") relating to or connected with the first mentioned claim, the following may, in the court proceeding , be done with respect to the related claim even though a limitation period applicable to either or both of the claims has expired: (a) proceedings by counterclaim may be brought, including the addition of a new party as a defendant by counterclaim; (b) third party proceedings may be brought; (c) claims by way of set off may be advanced; (d) new parties may be added or substituted as plaintiffs or defendants. (2) Nothing in subsection (1) gives a person a right to commence a court proceeding under subsection (1) (a) or (b) in relation to a claim for contribution or indemnity after the expiry of a limitation period applicable to that claim. [Emphasis added.] [98] Section 22(1)(b) provides that third party claims may be brought in an existing court proceeding notwithstanding that an applicable limitation period has expired.  This is, however, subject to section 22(2).  The question is whether that subsection prohibits the bringing of such third party claims (or counterclaims) where, as here, they are claims for contribution or indemnity .  The chambers judge found that it did.  The appellants argue that, properly construed, it does not. [99] Again, this turns on whether the term “court proceeding” in section 22 can mean only an independent original action, and excludes a third party claim.  The appellants say it does.  Accordingly, they assert, subsection 22(2) refers only to the right to commence a separate, independent action for contribution, and does not derogate from subsection 22(1)’s preservation of the right to bring a related third-party claim or counterclaim (section 22(1)(b) and (c)).  Its intention, they say, is to make it clear that while the ability to make a third party claim or counterclaim for contribution notwithstanding the expiry of the applicable limitation is preserved, the ability to commence an independent claim for contribution is not. [100] As the chambers judge intimated, that would be a most peculiar interpretation, rendering the subsection superfluous and confusing. [101] If the appellants’ position is correct, then subsection 22(2) would have to be interpreted as if the words “under subsection (1) (a) or (b)” were not there, or perhaps had crept in by mistake.  In any event, they would have to be ignored. [102] If they were ignored, the subsection would be pointless.  On the appellants’ interpretation, it would do no more than confirm what is already apparent from section 6(1), that one cannot commence an independent claim for contribution more than two years after it is discovered.  But why single out claims for contribution?  Third party claims and counterclaims may be based on any number of different causes of action. [103] Moreover, as discussed above, the basic limitation period in section 6(1) would never apply to a third party claim for contribution or anything else, because a third-party claim would not be a “court proceeding”.  So there would be no need for section 22(1)(b) to provide that third party claims may be brought in an existing court proceeding notwithstanding that an applicable limitation period has expired, and section 22(2) would, again, be rendered superfluous. [104] This would make no sense.  It flies in the face of all principles of statutory interpretation.  Reading the words of subsection 22(2) in their ordinary meaning, harmoniously with the rest of the statute, and with the contextual and purposive approaches endorsed by Professor Sullivan and the Supreme Court of Canada, they unmistakably include proceedings by counterclaim and third-party proceedings as “court proceedings”.  That interpretation is fully in harmony with the rest of the statute, including sections 6(1) and 30(1). [105] In my view, the chambers judge analysed the section 22 issue thoroughly and correctly.  He dealt appropriately with the conflicting case law, the legislative background, and the principles of statutory interpretation.  After carefully considering the appellants’ arguments, he concluded that section 22 of the new Act does not permit proceedings for contribution to be brought by way of third-party notice or counterclaim after the limitation for the claim of contribution has expired, as it had in this case. [106] As I see it, the judge did not err in his consideration of external documents, which certainly supported the view that the words “under subsection (1)(a) or (b)” in subsection 22(2) had not “crept in by mistake”.  Those documents informed the “entire context” of the words including the object of the Act and the intention of Parliament, as discussed in Driedger’s definitive formulation of the proper approach to statutory interpretation.  Did the judge place too much weight to those sources?  That he did not, in my view, is evident from the consistency of his interpretation with the grammatical and ordinary sense of the words taken in the context of the scheme of the Act.  Taken in the full and proper statutory context, the language is clear. [107] What about the purported absurdities raised by the appellants?  I have already discussed anomaly #1, which, in my view, does not give rise to an absurdity at all (see paras 46–47 above). [108] As to anomaly #2, the conclusion that a claim for contribution brought in an ongoing action can never be a “pre-existing claim” (see paras 48–52 and 65–66 above) means that such claims will always be subject to the new Act, and co-defendants who claim against each other for contribution will be subject to the same limitation period. [109] The appellants then submit that the judge’s interpretation leads to this further absurdity (“anomaly #3”): suppose a plaintiff commences action against defendant A, then 2½ years later, applies to add B as a defendant notwithstanding the expiry of a limitation, which is permissible according to section 22(1)(d).  The court finds it is just and convenient to do so, and B is added.  Defendant A then seeks to claim contribution from defendant B by third party notice.  But, the appellants say, on the judge’s interpretation, defendant A’s claim for contribution from defendant B would be time-barred. [110] Like anomalies #1 and #2, anomaly #3 is something of a mirage.  It ignores the discoverability provisions for claims of contribution in section 16.  By that section, time begins to run from the later of (a) the day on which the claimant for contribution or indemnity is served with a pleading in respect of a claim on which the claim for contribution or indemnity is based ; (b) the first day on which the claimant knew or reasonably ought to have known that a claim for contribution or indemnity may be made. [Emphasis added.] [111] As discussed above, a claim for contribution is based upon a finding of fault against two or more persons.  A pleading alleging damage caused by the fault of two or more persons could not be served upon defendant A until the application to add defendant B.  That is when time would begin to run in accordance with section 16(a).  It follows that, consistent with the scheme of the new Act as a whole, a third party claim for contribution by defendant A against defendant B would not be time-barred. [112] The appellants raised additional “absurdities”, but I do not consider them to have merit.  In the end, the interpretation for which the appellants contend stretches the language of the section well beyond what the ordinary meaning of the words can support, and well beyond the clear intention of the legislature to limit the time for bringing third-party claims for contribution.  In my view, the chambers judge’s interpretation of the section is correct.  Unlike the appellants’ interpretation, it is consistent with the grammatical and ordinary sense of the words, and harmonious with the scheme and object of the legislation. 5.0 CONCLUSION AND DISPOSITION [113] I conclude that the appellants’ proposed third party claim for contribution against PFM/LHP is not a “pre-existing claim” within the meaning of section 30(1) of the new Act.  Although it is a claim “with respect to which no court proceeding has been commenced before the effective date”, it is not a claim that is “based on an act or omission that took place before the effective date”. [114] This leads, of course, to the same result as that reached by the chambers judge, albeit by a different route.  As the proposed third party claim is not a “pre-existing claim”, it is the new Act that applies to the question of whether the claim is time-barred.  This question is answered by determining when the claim was discovered within the meaning of section 16.  That date was more than two years before the appellants sought to add the respondents as third parties. [115] I further conclude that section 22(1)(b) of the new Act does not permit the appellants’ proposed third party claim for contribution to proceed in the face of an expired limitation period.  This is because, properly interpreted and applied, the effect of section 22(2), as the chambers judge determined, is to prohibit the commencement of that specific type of third party claim after the expiry of the applicable limitation period in accordance with sections 6(1) and 16. [116] It follows, in my view, that the chambers judge was correct in concluding that the master had no discretion to grant the leave requested.  Accordingly, I would dismiss the appeal. “The Honourable Mr. Justice Grauer” I AGREE: “The Honourable Madam Justice Saunders” I AGREE: “The Honourable Madam Justice DeWitt-Van Oosten”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Ahluwalia v. Richmond Taxi Co. Holdings Ltd., 2021 BCCA 43 Date: 20210201 Docket: CA46504 Between: Ranjit Singh Ahluwalia Appellant (Plaintiff) And Richmond Taxi Co. Holdings Ltd. (Duart), Richmond Taxi Co. Limited (Duart), Richmond Taxi Cabs Ltd., Bank of Montreal Respondents (Defendants) Before: The Honourable Mr. Justice Harris (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated October 18, 2019 ( Ahluwalia v. Richmond Taxi Co. Holdings Ltd. , 2019 BCSC 2189, New Westminster Docket 201451). The Appellant, appearing in person with H. Ahluwalia who translated on his behalf (via teleconference): R.S. Ahluwalia Counsel for the Respondents Richmond Taxi Co. Holdings Ltd. and Richmond Taxi Co. Ltd. (via teleconference): B.A. Thompson Place and Date of Hearing: Vancouver, British Columbia January 21, 2021 Place and Date of Judgment: Vancouver, British Columbia February 1, 2021 Summary: The respondents apply for an order dismissing the appeal as abandoned for non‑compliance with the filing deadlines established by the Court of Appeal Rules. The appellant cross applies for an order extending the time to file appeal materials. Held: Application granted, cross application dismissed. The chambers judge struck the underlying claims in this action as being vexatious and barred by the doctrines of res judicata, cause of action and issue estoppel, and abuse of process. The claims relate to the same two events that were litigated and finally decided in actions beginning in 1994. The appeal is devoid of merit and the appellant did not offer an adequate explanation for the delay in advancing it. The appeal is dismissed as abandoned. Reasons for Judgment of the Honourable Mr. Justice Harris: [1] The respondents, Richmond Taxi Co. Holdings Ltd. and Richmond Taxi Co. Ltd., seek an order dismissing the appeal as abandoned. The appellant, Ranjit Singh Ahluwalia, applies for an extension of time of four weeks to file an appeal record. [2] This appeal arises from an order of Justice Marzari in Chambers dated October 18, 2019 striking out the appellant’s claims and dismissing his 2018 action against the respondents pursuant to R. 9‑5(1)(b) and (d) of the Supreme Court Civil Rules : Ahluwalia v. Richmond Taxi Co. Holdings Ltd. , 2019 BCSC 2189. The chambers judge also found that Mr. Ahluwalia is not entitled to maintain a certificate of pending litigation on any property on the basis of his claims in the action. She further allowed two other applications which are not at issue in this appeal: one for a vexatious litigant order against the appellant pursuant to s. 18 of the Supreme Court Act and another for increased costs following the appellant’s discontinuation of a 2016 action. [3] Mr. Ahluwalia filed a Notice of Appeal on November 12, 2019. To date, he has not filed or served an appeal record, appeal book or factum. The deadline for the appeal record was January 13, 2020 and the deadline for the appeal book and factum was February 12, 2020, in accordance with the Court of Appeal Rules . [4] On March 11, 2020, the respondents offered the appellant the opportunity to late file his appeal record by consent provided this was done by April 3, 2020. He replied on May 8, 2020, advising them that he would pursue the appeal when the courts reopened in light of COVID‑19 restrictions in place at that time. [5] Mr. Ahluwalia has taken no steps since the suspension of the running of time limits ended on September 13, 2020, save to apply, in an application filed January 12, 2021, for an extension of time to file the appeal record. On November 4, 2020, the applicants put Mr. Ahluwalia on notice that they intended to bring this application and sought dates from him. This application was filed on December 20, 2020. [6] Mr. Ahluwalia had not complied with the time limits to file his appeal record, appeal books or factum even before the time limits applicable for their filing were suspended on March 18, 2020 in light of the COVID‑19 pandemic. It appears that he filed his motion to extend time as a reaction to the respondents’ motion to have his appeal dismissed as abandoned. [7] The test to determine whether an extension of time should be granted is the same as the test for whether an appeal should be dismissed as abandoned. It is set out in Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 (C.A.): [20]      ...First, was there a bona fide intention to appeal? Second, when were the respondents informed of this intention? Third, would the respondents be unduly prejudiced by an extension? Fourth, is there merit in the appeal? And fifth, is it in the interest of justice that an extension be granted? ... [22]      The fifth question I think to be the most important as it encompasses the other four questions and states the decisive question. [8] In my opinion, the critical question before me is whether it is in the interests of justice to permit this appeal to continue, or to dismiss it as abandoned. To address that question, I think it is necessary to focus on the lack of merit in this appeal. I do not suggest that I will exercise my discretion solely on the basis that the appeal lacks merit, but its lack of merit in combination with other factors, to which I will turn, leads me to the view that the appeal should be dismissed as abandoned. [9] As I have noted, the order under appeal arose out of an application by the respondents to have the action dismissed in the British Columbia Supreme Court. This action is one among a series of actions in which Mr. Ahluwalia has litigated and relitigated substantially the same issues. As noted by the judge in describing the issues in the action before her: [13]      The 2018 action essentially repeats the claims in the 2016 action: a) First, Mr. Ahluwalia claims that one or more of the defendants wrongfully seized Cab No. 9 on August 1, 1998, and failed to return it, and Mr. Ahluwalia seeks an accounting of the profits from its use. In addition, he seeks to trace the profits from the seizure of that cab to the purchase of other property, possibly another cab, and he claims an equitable interest in that property. To that end, he has filed a certificate of pending litigation (“CPL”) against that property; and b) Second, Mr. Ahluwalia alleges the defendants failed to acknowledge him as the sole shareholder or principal owner of Richmond Cabs and Coral Cabs since 1988, and he seeks orders that he is entitled to take possession of all their assets and all the profits derived from the operation of these companies, together with an accounting of the assets and profits of these companies since 1988. [10] The judge then undertook a careful and detailed examination of the complex procedural history arising out of the circumstances just described. I do not intend to repeat that history here, but I observe that the substance of these matters were dealt with in 1994 by Madam Justice Newbury (as she then was) in a 19‑day trial. Her judgment dismissing Mr. Ahluwalia ’s action was upheld on appeal. There have since been other proceedings raising either the same issues or issues that ought to have been raised at the outset. Those proceedings have been dismissed. For example, in 1997 an action was dismissed as being res judicata based on the 1994 trial judgment. [11] After carefully examining both the substance of the allegations in previous litigation, and the basis on which they were dealt with by the courts, the judge identified the issue before her: [56]      As I said at the outset of Mr. Ahluwalia’s submissions and his review of his evidence, my concern in these applications is not to determine whether his current claims should succeed on their merits, but whether the claims he advances in the 2018 action arise from the same or a different set of factual events or circumstances, or different parties, than the claims he has already advanced in this Court since 1994. It is a lower threshold that he has to meet than proving the merit of the claims themselves, but he still has to meet it. [57]      To this end, I brought him back again and again to the question of when he became aware of the claims he is advancing in the 2018 action and how he says the claims he is advancing in the 2018 action differ from the claims he was previously advancing and was unsuccessful with respect to. [12] The judge then made the following finding: [58]      Having gone through this process, I am confident that Mr. Ahluwalia’s claims continue to arise from the same two significant events that his previous claims arose from: a) First, his purchase of shares and his entering into a share agreement with Richmond Cabs, together with an assignment of rights from Mr. Khan, in 1988 that gave him the right to drive Cab No. 9 with airport privileges; and b) Second, the seizure of Cab No. 9 from him in August 1998. [13] She went on to find: [66]      Regardless of the potential merit of these claims, I agree with the Richmond Taxi Defendants that these claims fundamentally contradict and seek to undermine the findings of Newbury J. and the Court of Appeal on essential findings made after a 19-day trial in 1994. Those proceedings conclusively and finally determined the fundamental nature of the agreement Mr. Ahluwalia and the other drivers entered into with Richmond Cabs in 1987 and 1988. [14] In short, all of the issues the appellant sought to advance in the 2018 action had already been decided against him, and he was barred from advancing them in court by the doctrines of cause of action estoppel, issue estoppel and abuse of process: Ahluwalia at paras. 70–85. She further found that the 2018 action was a vexatious proceeding: Ahluwalia at para. 86. [15] In my opinion, the proposed appeal is devoid of merit. Neither in his materials, nor during submissions, did Mr. Ahluwalia identify any error in the judge’s understanding or characterization of the issues in previous proceedings, nor the issues he sought to raise in this action. He provided no foundation to conclude that the judge misapprehended the facts. He offered nothing to suggest that the judge either misunderstood the law applicable to the issues before her, or that she misapplied it. Having reviewed the record, I can detect no arguable error in respect of any of these matters that is capable of raising the prospect that a division of this Court would interfere with the judgment. [16] Mr. Ahluwalia sought to persuade me that he had located documents that cast a different light on the issues that had previously been litigated. He suggested that he had new or fresh evidence that he said he should be able to advance. If he did so, the impediments provided by the history of previous litigation would fall away. I had no evidence of these suggestions, but in any event, I do not think there is any prospect that, after all of these proceedings over many years, a court would in effect reopen matters that have finally been determined to allow substantially the same matters to be litigated again. The judge below was alive to these arguments and clearly spent considerable time trying to tease out of Mr. Ahluwalia whether there were facts or issues that would take him outside the scope of the doctrines she was asked to apply. I see no arguable case that the judge erred in the way she disposed of this aspect of the matter. [17] In my view, it is in the interests of justice to dismiss the appeal as abandoned. Timelines have been missed, even before those timelines were suspended because of the pandemic. I am satisfied that Mr. Ahluwalia was aware (given his history of applying for extensions in other proceedings) of the need to comply with timelines for prosecuting an appeal. Mr. Ahluwalia has registered a certificate of pending litigation, the continuing presence of which I accept is a prejudice to the respondents. The judge pronounced a vexatious litigant order against Mr. Ahluwalia. Although, Mr. Ahluwalia offered some explanation of the delays in prosecuting the appeal, I am not persuaded that they satisfactorily explain the full extent of the delay. I am satisfied that Mr. Ahluwalia could have and should have prosecuted this appeal with greater respect for his obligations than he has displayed. [18] In my view, it is time to bring this litigation to an end. In one form or another it has been ongoing since the early 1990s. The issues that were there to be litigated properly were finally decided many years ago. In my judgment, the interests of justice compel that the appeal be dismissed as abandoned. I so order. “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: De Cotiis v. Hothi, 2021 BCCA 60 Date: 20210202 Docket: CA47112 Between: Vito De Cotiis Respondent (Plaintiff) And Gurdaver Singh Hothi and Paramjit Singh Hothi Appellants (Defendants) And Paramjit Singh Hothi and Ghassan Batal also known as Gus Batal, and Angell, Hasman & Associates Realty Ltd. Respondents (Third Parties) And Paramjit Singh Hothi and Gurdaver Singh Hothi and Davinder Hothi Respondents (Fourth Parties) Before: The Honourable Madam Justice DeWitt-Van Oosten (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated October 20, 2020 ( De Cotiis v. Hothi , 2020 BCSC 1545, Vancouver Docket S145068). Oral Reasons for Judgment Counsel for the Appellants (via teleconference): D.J. Barker Counsel for the Respondent, Vito De Cotiis (via teleconference): S.A. Griffin L.E. Burgess K. Marsh Place and Date of Hearing: Vancouver, British Columbia January 26, 2021 Place and Date of Judgment: Vancouver, British Columbia February 2, 2021 Summary: The appellants applied for leave to appeal a special costs order made following a 50‑day trial in the British Columbia Supreme Court. Held: Application for leave to appeal dismissed. The appellants have not established it is in the interests of justice that leave be granted. [1] DEWITT-VAN OOSTEN J.A. : The appellants, Gurdaver Singh Hothi and Paramjit Singh Hothi, seek leave to appeal from an October 20, 2020 order for special costs, indexed as De Cotiis v. Hothi , 2020 BCSC 1545 (“RFJ”). [2] The order followed a 50‑day trial held before Justice Burke of the British Columbia Supreme Court: De Cotiis v. Hothi , 2018 BCSC 2271. The trial arose out of a failed purchase and sale agreement from 2014 involving a property on Marine Drive in West Vancouver. The appellants were the vendors. At trial, the respondent purchaser, Vito De Cotiis, obtained an order for specific performance of the sale. The appellants appealed; however, this Court dismissed the appeals in December 2019: De Cotiis v. Hothi , 2019 BCCA 472. The appellants subsequently sought leave to appeal to the Supreme Court of Canada (“SCC”). The SCC denied leave in July 2020: De Cotiis v. Hothi , [2020] S.C.C.A. No. 60. [3] At the trial, the judge granted the parties leave to speak to costs. Oral submissions were heard after the SCC denied leave. Justice Burke awarded the respondent special costs. She found that the appellants engaged in “reprehensible” conduct during the litigation. They “fabricated a defence based on facts they knew to be untrue” (RFJ at para. 19). In addition, they: [19]      ... a.   concealed and suppressed critical documents; b.   disobeyed court orders for document production; c.   swore false evidence in affidavits filed in the litigation; and d.   deliberately provided false evidence throughout the course of trial. [20]      The [appellants] …. fundamentally misled the court and abused court processes in doing so. ... [4] The judge ordered that the appellants pay the respondent “his special costs of [the] proceeding on a fully indemnity basis” (RFJ at para. 55). The respondent requested that the judge assess the costs. She declined and, instead, directed that a registrar conduct the assessment. Positions of the Parties [5] The appellants allege that the trial judge made several errors in ordering special costs. Specifically, they contend that: a) the bases provided for special costs were either not supported by the findings made at trial or inconsistent with them; b) the judge wrongly considered the conduct of a non‑party witness; c) the appellants’ litigation conduct did not meet the threshold for reprehensibility; and d) the judge erred by ordering special costs payable on a “full indemnity basis”. [6] Specific to the last of the alleged errors, the appellants say the Supreme Court Civil Rules [ SCCR ] do not allow for the type of order made here. Giving effect to a full indemnity order will likely result in costs that exceed the purchase price—$1,250,000—of the property underlying the dispute. As at September 2020, the respondent estimated his legal expenses at $1.4 million. The appellants say this will result in an injustice and the appeal is necessary to avoid that from occurring. [7] The underlying litigation has been resolved and the appellants have exhausted all appeals on the merits. In those circumstances, the parties agree that the special costs order is a limited appeal order within the meaning of Rule 2.1(f) of the Court of Appeal Rules. [8] Accordingly, before granting leave to appeal, I must ask myself: (1)        whether the proposed appeal raises questions of principle that extend beyond the parameters of the particular case; (2)        whether the questions of principle are of significance to the practice; and (3)        whether the proposed grounds for appeal are arguable. Per Justice Hunter in Gichuru v. Pallai , 2019 BCCA 282 (Chambers) at para. 10. See also Berthin v. Berthin , 2020 BCCA 376 (Chambers) at para. 26. [9] The overarching consideration is whether it is in the interests of justice that leave be granted: Price v. Robson , 2017 BCCA 419 (Chambers) at para. 48. The appellants bear the onus of establishing that they meet the test for leave: Price at para. 47. [10] The respondent opposes the application for leave to appeal. He says the appellants have tried to fashion errors in principle; however, what they are really attempting to do is to challenge the findings of fact that justified the special costs order. The respondent stresses that the threshold for appellate intervention with a special costs order is stringent. Furthermore, the Court must assess the strength of the grounds of appeal with that standard of review in mind: Price at para. 50. [11] The respondent contends that the leave application does not come remotely close to meeting the requisite test. Moreover, allowing this litigation to carry on with yet another appeal is not in the interests of justice. The respondent says it will only serve to prolong the dispute between the parties and to add to their already considerable expenses. The property at issue has now been transferred to the respondent, in accordance with the order for specific performance. Discussion [12] After reviewing the application materials, I am not persuaded by the appellants that they should receive leave to appeal. [13] I have reached that conclusion recognizing that the special costs order carries significant financial implications for them. However, the appeal is not one that raises legal issues of interest beyond the four corners of the case. Nor does it pose questions of general importance to practice. Finally, in my view, the appellants have not presented arguable grounds of appeal. [14] With that, I will turn to the primary complaints about the order. [15] First, at the hearing of the leave application, the appellants accepted that in awarding special costs, a trial judge is not restricted, as a matter of law, to the credibility, reliability, and factual findings articulated in the reasons for judgment on the merits of the action. (This was an argument made to and rejected by the trial judge at the costs hearing. See paras. 6 and 26 of the RFJ.) [16] Indeed, a legal rule to that effect would make no sense. Deciding the merits of the action and the issue of costs engages distinct adjudicative functions and analytical frameworks. Although trial findings will undoubtedly inform the costs determination, and there may well be overlap because of the fact that they arise out of the same overarching context, a judge is entitled to make additional findings in the costs analysis specific to the manner in which the parties conducted the litigation. Some of those findings would not have been necessary to resolve the factual and legal issues at trial. Moreover, as correctly noted by the trial judge, reasons for judgment on the trial “are designed to address the matters at issue at trial. The matter of special costs may arise, but is not necessarily dealt with in the [r]easons as this may decrease efficiency in the court process” (RFJ at para. 26). [17] However, the appellants say that in this case, the judge’s factual bases for special costs went well beyond her findings at trial. Moreover, they contend that she reconstituted her already existing findings to reflect a more serious form of misconduct by the appellants. In that sense, say the appellants, the findings relied upon to ground the special costs order were either not supported by the evidence at trial or inconsistent with the judge’s previous factual determinations. [18] In support of this argument, the appellants created a chart (filed as part of their motion book), in which they listed and compared the trial findings with the findings articulated in the reasons for special costs. I have reviewed that chart and the excerpts from each set of reasons highlighted by the appellants. I do not see factual inconsistencies or reconstituted findings, let alone to the extent that would allow an appeal court to interfere with the judge’s factual conclusions on grounds of palpable and overriding error. Instead, it is clear from a reading of the RFJ as a whole that the trial judge hearkened back to the findings she made at trial (see paras. 27, 28, 31–32), and then fleshed out, amplified or explained those findings, where necessary, in light of the legal test for special costs and the analysis required. She also made additional findings as necessary, for the specific purpose of the costs determination. I see nothing wrong in that approach. [19] The appellants do not allege that the trial judge misdirected herself on the legal framework for a special costs order or that she misapprehended the evidence open for her consideration. Instead, I agree with the respondent that what lies behind this aspect of the application for leave to appeal is the appellants’ disagreement with the inferences drawn by the trial judge about their litigation conduct, her interpretation of the evidence, and the findings of fact she made in favour of a special costs order. That challenge does not raise issues that extend beyond the facts of the case. Nor does it require anything other than an individualized appellate analysis based on the evidentiary record before the trial court. Nor is it likely that this Court would interfere with the findings on appeal, in light of the highly deferential standard of review. I find that this ground of appeal has no reasonable prospect of success. [20] The second challenge to the impugned order is that the trial judge wrongly considered the conduct of a non‑party witness in ordering special costs. The witness referred to here is Davinder Hothi. She is the spouse of the appellant Paramjit Hothi. The appellants say the judge’s concerns about the veracity of Davinder Hothi’s evidence, her conduct at trial and her role as a witness carried significant weight in the special costs analysis (see paras. 30–34 and 36 of the RFJ). From their perspective, the attention paid to Ms. Hothi’s evidence is highly problematic because “[t]here is no authority for the proposition that special costs can be awarded against a litigant as punishment for the conduct of a third party” (appellants’ memorandum of argument at para. 54). [21] With respect, the appellants’ submission on this ground of appeal ignores the judge’s finding of a clear nexus between Ms. Hothi’s evidence and direction given to her by her spouse, a party to the litigation. [22] In her trial judgment, the judge noted at para. 32 that: Ms. Davinder Hothi denied the suggestion from counsel that her husband Mr. Paramjit Hothi was telling her what to say in evidence. She further denied that she was trying to help him or his brothers in giving her testimony. This denial was not believable for a number of reasons, including her unwillingness to admit anything adverse to her husband’s interest . [Emphasis added.] [23] This Court declined to interfere with the judge’s credibility findings in the appeal from the trial judgment (2019 BCCA 472 at para. 44). That necessarily extends to the credibility findings in respect of Ms. Hothi. [24] At para. 36 of the RFJ on the special costs order, the judge held: There is no doubt that in the face of clearly contradictory evidence and documents, Davinder Hothi was prepared to lie under oath before the Court to assist the Hothi family in the lawsuit . As noted in the Reasons for Judgment, Paramjit Hothi effectively ran the Hothi family business with administrative assistance from his wife, Davinder. Her false evidence was obviously calculated to ensure her testimony was in line with the largely fictional narrative constructed by Paramjit . While Davinder was a sophisticated witness, the inescapable inference is that Paramjit pressured Davinder to give false evidence under oath—both as to the underlying facts and then again regarding the cover‑up and failure to disclose documents . [Emphasis added.] [25] I see no inconsistency between the two sets of findings and, importantly, both of them connect the concerns about the veracity of Ms. Hothi’s evidence with Paramjit Hothi. This is not a special costs order that finds its factual basis in conduct unconnected to the litigation, or beyond the control or influence of one or more of the parties. Instead, the trial judge found that Ms. Hothi purposefully tailored her evidence to align with and support the narrative put forward by the defence, at the direction or insistence of Paramjit Hothi. In that context, I agree with the respondent that this second ground of appeal is factually specific, limited to the four corners of the case, and carries no prospect of success. [26] That brings me to the third ground raised in the appellants’ written argument, namely, that their litigation conduct—as assessed by the trial judge—did not meet the threshold for reprehensible conduct, a necessary pre‑condition to a special costs order. Counsel for the appellants did not press this issue at the hearing. With good reason. The term “reprehensible conduct” encompasses conduct that is scandalous or outrageous, as well as milder forms of misconduct that are nonetheless deserving of rebuke: Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.) at para. 17. Concealing and suppressing critical documents; disobeying court orders for document production; and swearing and deliberately providing false evidence for use at trial, as found by the trial judge, plainly meet that standard (RFJ at para. 19). I see no realistic possibility of this third ground of appeal gaining traction before a division of this Court. [27] Finally, the appellants’ fourth challenge to the order is that the judge erred in making them pay the respondent’s “special costs of [the] proceeding on a full indemnity basis” (RFJ at para. 55). At first glance, the wording of the order troubled me. As the appellants correctly point out, this Court has held more than once that the SCCR do not allow for a “full indemnity” costs award. See, for example, Tanious v. The Empire Life Insurance Company , 2019 BCCA 329: [45]      Rule 14‑1 [of the SCCR ] recognizes two categories of costs under the statutory costs regime in British Columbia: party and party costs and special costs, previously known as solicitor‑client costs. In awarding costs, a judge must stay within the statutory framework and may not impose any other form of costs sanction : Gichuru v. Smith , 2014 BCCA 414 at paras. 84, 89, 98, 102, leave to appeal ref’d [2014] S.C.C.A No. 547. The Rules do not provide for “full indemnity costs” . [Emphasis added.] [28] However, after hearing from counsel, I agree with the respondent that the wording of the order presents no substantive concern. [29] It is readily apparent from the RFJ that the trial judge did not make an order for full indemnity costs. Instead, she made a special costs order, the amount of which is to be assessed by a registrar. That reality is also apparent from the entered order, which provides that: “Gurdaver Hothi and Paramjit Hothi on a joint and several basis pay the Plaintiff his special costs of this proceeding on a full indemnity basis” (emphasis added). [30] In accordance with the language of Rule 14‑1(3)(a), and consistent with recent dicta from this Court, the registrar only has authority, in assessing the amount payable pursuant to the order, to allow as special costs those fees “ that were proper or reasonably necessary to conduct the proceeding ” (emphasis added). [31] On this point, see West Van Holdings Ltd. v. Economical Mutual Insurance Company , 2019 BCCA 110: [71] On an assessment of special costs, a party is entitled to those fees that were proper or reasonably necessary to conduct the proceeding . While there may be a close relationship between actual legal fees and special costs, they are not necessarily identical . [95]      … a judge cannot impose costs sanctions that are not authorized by the Rules. Full indemnity or solicitor-and-own-client costs awards are not authorized by the Rules . [Emphasis added.] [32] See also 567 Hornby Apartment Ltd. v. Le Soleil Restaurant Inc. , 2020 BCCA 69 at paras. 36, 40–41. In that case, the trial judge made orders for special costs “on a full indemnity basis”: 2016 BCSC 1340 at paras. 2, 5–6. Notwithstanding the wording, in assessing those costs, the registrar instructed himself in accordance with Rule 14‑1(3) and held that under the Rule, parties are “only entitled to their objectively reasonable legal costs” (2016 BCSC 1340 at para. 15). Moreover, “[t]he fact that a lawyer has billed a certain sum does not make the fee objectively reasonable” (2016 BCSC 1340 at para. 16, citing Gichuru v. Smith , 2014 BCCA 414 at paras. 104–105). [33] In its review of an appeal arising out of the registrar’s assessment, this Court did not take issue with the legal analysis applied by the registrar on this point, confirming that on “an assessment of special costs, a party is entitled to those fees that were proper or reasonably necessary to conduct the proceeding” (2020 BCCA 69 at para. 41). [34] In light of these authorities, I agree with the respondent that the trial judge’s reference to costs payable on a “full indemnity basis” adds nothing to her special costs order, and, in its practical application, will have no effect. Instead, Rule 14‑1(3) will guide the assessment. The parties agree that the judge’s reference to the term “full indemnity” likely originated from written material filed by the respondent. As I understand it, there was no discussion in the court below about an entitlement to full indemnification. Nor did the respondent seek costs on a solicitor‑client basis. [35] At the hearing of the leave application, counsel for the respondent informed the Court that when the respondent is before the registrar for purposes of the assessment, a submission on full indemnification as a matter of right will not be made, recognizing that the law does not allow for that. Instead, as was the case in Le Soleil , the focus will be on the objective reasonableness of the amounts claimed. The appellants would prefer to have that commitment in writing; however, they agree that if such is the case, their fourth ground of appeal raises no real issue. [36] Because of the discretionary nature of a special costs order, the test for granting leave to appeal is “particularly stringent”: Price at para. 50. In my view, the appellants have not met that test. Accordingly, notwithstanding the significant financial implications of a special costs order, I do not consider the interests of justice to weigh in favour of leave. [37] I see little (if any) chance of this Court interfering with the findings of fact made by the trial judge, who was obviously in the best position to “‘appreciate the course of the proceedings’ and to assess the case‑specific application of well‑established factors that are generally considered in determining whether to make an order for special costs”: Price at para. 51, citing Seminoff v. Seminoff , 2007 BCCA 403 (Chambers) at para. 4. Nor do I see the case raising novel or complex legal issues that require analysis by this Court, or issues for which greater clarity is needed to the benefit of practice. Disposition [38] For the reasons provided, the appellants have not persuaded me that it is in the interests of justice to grant leave to appeal. As such, I dismiss their application. “The Honourable Madam Justice DeWitt-Van Oosten”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Howdle v. Mission Medium Institution (Warden), 2021 BCCA 44 Date: 20210202 Docket: CA45781 Between: Clifford Barry Howdle Appellant (Petitioner) And The Warden of Mission Medium Institution Respondent (Respondent) Before: The Honourable Mr. Justice Harris The Honourable Madam Justice Dickson The Honourable Mr. Justice Abrioux Supplementary Reasons to Howdle v. Mission Medium Institution (Warden) , 2020 BCCA 334, Vancouver CA45781. Counsel for the Appellant, on September 14, 2020: N. Gilewicz The Appellant, appearing in person, for written submissions only: C.B. Howdle Counsel for the Respondent: C. De Los Reyes Place and Date of Hearing: Vancouver, British Columbia September 14, 2020 Place and Date of Judgment: Vancouver, British Columbia November 27, 2020 Written Submissions Received: January 7, 2021; January 12, 2021; January 18, 2021 Date of Supplementary Judgment: February 2, 2021 Supplementary Reasons of the Court Summary: Application to reopen appeal dismissed. Supplementary Reasons for Judgment of the Court: [1] Mr. Howdle applies to reopen his appeal. The appeal, which engaged issues arising out of his application for habeas corpus , was dismissed by this division in reasons indexed as 2020 BCCA 334. [2] The order dismissing the appeal has not yet been entered. The Court has the jurisdiction to reopen the appeal if the test for doing so is met. That jurisdiction is rooted in the court’s ability to control its own process to prevent an injustice. It is, however, an extraordinary power to be exercised rarely and only where it is necessary to do so in the interests of justice. The onus on the applicant is to demonstrate a clear and compelling case that a miscarriage of justice will likely occur if the appeal is not reopened: see, R. v. Chow , 2003 BCCA 248 at para. 11. The factors relevant to reopening an appeal were discussed in R. v. Hummel , 2003 YKCA 4 at para. 24: 1. Finality is a primary but not always determinative factor. 2. The interests of justice include finality and the risk of a miscarriage of justice. 3. The applicant must make out a clear and compelling case to justify a re‑opening. 4. If the case has been heard on the merits the applicant must show that the court overlooked or misapprehended the evidence or an argument. 5. The error must go to a significant aspect of the case. [3] The jurisdiction to reopen an appeal is not exercised to permit a party to re‑argue the appeal or to argue issues that ought to have been dealt with on appeal, but were not. [4] We have reviewed the written materials submitted by the parties. We are satisfied that this matter may be disposed of on the basis of those materials and that it is unnecessary to hear oral argument. [5] Mr. Howdle, who represents himself on this application, alleges that the reasons for judgment dismissing his appeal demonstrate a flagrant injustice and an abuse of authority. He contends that the Court exceeded its jurisdiction, was biased, predetermined the outcome, and that the justices involved in the decision were “covering for and protecting” the Correctional Service of Canada. He also suggests that the Court relied on case law that was not open and transparent and should have been considered moot and invalid. [6] In so far as Mr. Howdle’s argument touches on the substance of the appeal, we consider that the points he raises amount to a suggestion that the Court misapprehended the evidence and the significance of certain documents in the record. We see no merit in this argument and, in our view, Mr. Howdle is simply attempting to reargue issues on the appeal. [7] In our view, Mr. Howdle’s application to reopen the appeal is both without merit and is frivolous. In the circumstances, we dispense with his signature to endorse the order dismissing the appeal. “The Honourable Mr. Justice Harris” “The Honourable Madam Justice Dickson” “The Honourable Mr. Justice Abrioux”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Schneider, 2021 BCCA 41 Date: 20210202 Docket: CA46000 Between: Regina Respondent And William Victor Schneider Appellant Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Goepel The Honourable Madam Justice DeWitt‑Van Oosten On appeal from: An order of the Supreme Court of British Columbia, dated October 19, 2018 ( R. v. Schneider , Vancouver Docket 27343‑2). Counsel for the Appellant (via videoconference): C.J. Nowlin Counsel for the Respondent (via videoconference): G.D. McKinnon, Q.C. Place and Date of Hearing: Vancouver, British Columbia October 16, 19, 2020 Place and Date of Judgment: Vancouver, British Columbia February 2, 2021 Dissenting Reasons by: The Honourable Madam Justice DeWitt‑Van Oosten Written Reasons by: The Honourable Mr. Justice Goepel (Page 49; para. 151) Concurred in by: The Honourable Madam Justice Saunders Summary: A jury found the appellant guilty of second degree murder. He appeals his conviction on the grounds that the trial judge: (1) erred in admitting an overheard telephone conversation; (2) failed to instruct the jury on the “concurrence” principle; and (3) failed to seek clarification on an ambiguous question posed by the jury, which was then answered incorrectly. The appellant contends that these errors, individually or cumulatively, warrant a new trial. Held: Appeal from conviction allowed and new trial ordered. Per Goepel and Saunders JJ.A.: The overheard telephone conversation should not have been admitted into evidence. Its admission amounts to reversible error and warrants a new trial. The utterances were not logically relevant, as they lacked sufficient context for the jury to be able to determine their meaning. Agree with and adopt the reasons of DeWitt‑Van Oosten J.A. dismissing the second and third grounds of appeal. Per DeWitt-Van Oosten J.A. (dissenting in part): The appeal from conviction should be dismissed. The overheard telephone conversation was properly admitted. It was logically relevant to an issue at trial and there is no principled basis on which to interfere with the judge’s assessment of probative value and prejudicial effect. On the second and third grounds of appeal, this case did not require an instruction on the concurrence principle and the judge correctly answered the jury’s question on the definition of “bodily harm” as applicable to the offences of murder and manslaughter. Table of Contents Paragraph Range Reasons for Judgment of the Honourable Madam Justice DeWitt‑Van Oosten: [1] - [150] INTRODUCTION [1] - [5] BACKGROUND [6] - [24] A. Overview of Evidence [6] - [18] B. Crown and Defence Theories [19] - [24] ISSUES ON APPEAL [25] - [26] DISCUSSION [27] - [149] A. Did the Trial Judge Err in Admitting the Overheard Conversation? [28] - [104] The Evidence [30] - [45] Positions of Parties on Admissibility [46] - [50] Legal Principles [51] - [104] B. Should the Charge Have Included a Concurrence Instruction? [105] - [114] C. Did the Judge Mishandle a Question from the Jury? [115] - [149] DISPOSITION [150] - [150] Reasons for Judgment of the Honourable Mr. Justice Goepel: [151] - [208] INTRODUCTION [151] - [153] BACKGROUND [154] - [161] DISCUSSION [162] - [207] A. Overview [162] - [164] B. Standard of Review [165] - [165] C. The Ferris Decision [166] - [175] D. Are the Words Capable of Being an Admission [176] - [207] DISPOSITION [208] - [208] Reasons for Judgment of the Honourable Madam Justice DeWitt‑Van Oosten: INTRODUCTION [1] Natsumi Kogawa was a 30‑year‑old Japanese citizen who came to Canada on a student visa. She was reported missing on September 12, 2016. Tragically, her body was located approximately two weeks later, folded into a suitcase hidden in some bushes in Vancouver’s West End. [2] Following a jury trial, the appellant was convicted of second degree murder and interfering with Ms. Kogawa’s body after her death, contrary to ss. 235(1) and 182(b) of the Criminal Code , R.S.C. 1985, c. C‑46. [3] The appellant pleaded guilty to the second of these offences after the Crown closed its case. He admitted to being with Ms. Kogawa when she died and to disposing of her body. However, he disputed the Crown’s contention that he killed her. [4] The appellant says the murder verdict should be set aside and a new trial ordered. He contends that the trial judge erred in admitting parts of an overheard telephone conversation; erred in her instructions to the jury; and mishandled a question posed by the jury. [5] For the reasons that follow, I would dismiss the appeal. BACKGROUND A. Overview of Evidence [6] On September 28, 2016, Natsumi Kogawa’s naked body was found in a suitcase in Vancouver’s West End. The suitcase was in some bushes on an unoccupied property that borders Nicola and Davie Streets. The area was overgrown and neglected, but passable. [7] An autopsy revealed that Ms. Kogawa had two medications in her body: Zopiclone (typically used as a sleeping medication) and Lorazepam (anti‑anxiety medication with a sedative effect). When taken together, these medications will “promote the effect of sleepiness or decreased motor coordination, possibly dizziness and [affect] a person’s judgment”. Neither medication had been prescribed for Ms. Kogawa while living in Canada. The appellant had a prescription for Lorazepam, last filled on September 6, 2016. [8] Ms. Kogawa’s body was in a state of decomposition. The autopsy found no “anatomic evidence of major injuries”. A piece of cloth was “folded and stuffed within the anus, and the cloth was soiled a brown colour, [with] no obvious evidence of fresh blood”. There were “tree branches and leaves that were scattered on the body, predominantly on the right side …”. [9] A pathologist was not able to determine the cause of death because of the “lack of specific anatomic or visible [injury], and the lack of specific toxicological findings that can explain death”. She did not rule out overdose as a possible cause of death. She also testified that the absence of anatomic or visible injury was “not inconsistent with the cause of death being asphyxia by suffocation”. She defined asphyxia as the “inability to utilize oxygen or to use oxygen” and said “[a]sphyxia cases oftentimes are not associated with specific visible findings at autopsy”. [10] The pathologist testified that “… not a large amount of force is necessary to just block the nose and mouth”. More force is required to cause bruising. There was no sign of bruising to Ms. Kogawa’s nose. Her frenulum (the tissue that connects the top lip to the middle of one’s gums) was intact. There were no signs of petechial hemorrhaging to her mouth. Bruising, tearing of the frenulum, and petechial hemorrhaging are injuries that can occur when pressure is applied to the nose and mouth, depending on the degree of force used. [11] A toxicologist detected three compounds in Ms. Kogawa’s liver and surrounding fluid: Zopiclone, 2‑amino‑5 Chloropyridine (a breakdown compound associated with Zopiclone), and Lorazepam. The toxicologist did not attempt to determine the concentration levels of these drugs. Because of complexities arising from body decomposition, any numbers generated by that analysis would not reliably indicate drug concentration at the time of death. At some time prior to her death, Ms. Kogawa consumed Zopiclone and Lorazepam. However, the toxicologist could not opine on whether Ms. Kogawa was “under the influence” of those drugs when she died. [12] Ms. Kogawa was reported missing on September 12, 2016. On September 27, police issued a news release seeking the public’s assistance. It contained two video surveillance images taken on September 8, 2016. The images depicted Ms. Kogawa at a mall in downtown Vancouver with a then‑unidentified man. [13] One day after the news release, the appellant’s brother spoke with police in Vernon. He told police the appellant had talked to him about Ms. Kogawa. Among other things, the appellant told his brother the whereabouts of Ms. Kogawa’s body. That information led police to the suitcase. [14] The appellant gave a statement to police on October 18, 2016. The Crown has summarized the statement in its factum: the appellant talked about first meeting Ms. Kogawa mid‑August and their dates …. He said “… this isn’t a premeditated thing” …. On their last date (September 8), they were going to have “really good sex” that they had talked about. He bought a tent for $20 …. He thought they had arranged to meet at 11 a.m. but she was late. He knew she had another appointment later that day …. They had trouble setting up the tent, it was “really rushed”; they each drank three beers …. At one point he said, “… suddenly got very, very heated and, then went wrong”. When asked to clarify he said, “I think it was time …. the amount of time we’d given each other on that day” …. At another point he said, “… she’s definitely a victim. It shouldn’t have happened” …. When asked “How did she die?”, the appellant said he didn’t know “if her heart went or if it was her breath …” …. At that point he made a brief hand gesture, putting his fingers to his nose and cupping his mouth with his hand . He wasn’t “actually certain that she passed when sh-, at the moment she did”. He stepped out of the tent for a smoke and didn’t think she was at that time. He asked the police if it was her heart or her breath …. The appellant made a similar hand gesture shortly thereafter . He told police he would send a letter with a “full confession” to Ms. Kogawa’s family …. At the end of the interview, in response to a police comment that he has been showing remorse from day one, the appellant said “But it is, it’s my fault” …. [Respondent’s factum at paras. 11–13; internal references omitted, emphasis added.] [15] In their testimony, the officers who took the statement described the hand gestures made by the appellant: he was quite engaged making eye contact with us throughout the — the interview process. When we asked him question[s], as he’s explaining this, he paused, brought his hand to — towards his mouth, covered his palm over his mouth and put his index finger and his thumb to his nose like this, and he looked down and was in concentration as if, in my mind, recalling a memory. He had his hand in his — over his nose like this for about two or three seconds as he was talking through this …, he was — he brought his hand up, so he didn’t press hard, obviously you can hear he’s not talking like this. He’d bring his hand up and he was talking as he’s doing this with his hand — palm over his mouth. he brought his hand again to his mouth and bring index finger and thumb back to his nose, put it up and then put it down again. He used his finger and first finger — or, sorry, thumb and first finger, cupped it to his nose, placed it to his nose, and then cupped the hand around the mouth like so as he — whoops, sorry, as he spoke. When [the appellant] demonstrated that gesture to us, he was talking as he did so. … He talked to me and continued talking … held his thumb and his finger to put to his nose, and his mouth he cupped — cuffed — sorry, cuffed around his mouth. ... He placed his thumb and his finger to his nose, and he cuffed his hand around his mouth. [16] The surveillance footage that captured Ms. Kogawa walking with the (now‑identified) appellant on September 8 showed the appellant carrying what was believed to be a tent. At that time, the appellant was staying at a hostel on Cambie Street. Footage from the hostel’s video system showed the appellant leaving the hostel the morning of September 8 carrying the tent and a shoulder bag. He returned that evening without the tent and appeared to be wearing different pants. He left the hostel again on the morning of September 9 and returned that evening carrying a large, unweighted suitcase. The next morning, the appellant left the hostel with the suitcase and returned in the afternoon without it, wearing different clothes. At trial, the appellant admitted to placing Ms. Kogawa’s body in the suitcase. [17] In a letter to his father, dated November 4, 2016, the appellant spoke of contact he had with Revenue Canada about a “late $ return”. He told his father “$6‑700 [was] expected at [his father’s] address in the weeks ahead”. He then said, “just like court proceedings that await me, please believe me that none of it was premeditated”. [18] The appellant did not testify. B. Crown and Defence Theories [19] At trial, the Crown’s theory was that the appellant and Ms. Kogawa were on a date on September 8, 2016. He became angry because Ms. Kogawa had to leave for another appointment. “[I]n the heat of the moment”, the appellant killed her by “smothering or asphyxiating” her, using his hand and fingers to cover or block her mouth and nose. The Crown said the evidence proved that when he assaulted Ms. Kogawa, the appellant either intended to kill her or intended to cause her bodily harm that he knew was likely to result in her death, and he was reckless as to whether death ensued (s. 229(a) of the Code ). In Crown counsel’s words: “[W]hen someone cuts off another’s ability to breathe, they will undoubtedly die. Even a small child knows that.” [20] The Crown further argued that after the death, the appellant “took steps to cover his tracks so there wouldn’t be a trail of evidence that not only would lead the police to him, but also hamper their ability to gather evidence which would implicate him in the death …”. This included concealing Ms. Kogawa’s body in a suitcase. [21] The appellant’s conversations with his brother, an attempted suicide, his statement to police, and the letter to his father were said to be consistent with the appellant knowing that he had committed an unlawful act causing Ms. Kogawa’s death. [22] In its closing submissions, the defence argued that the Crown had not proved that anyone caused Ms. Kogawa’s death, let alone the appellant. There was no proof of an unlawful act that caused death, or that any such act—had it occurred—was committed with the intent required for murder. The pathologist did not know why Ms. Kogawa died. There were no autopsy findings consistent with the Crown’s assertion of asphyxiation. Without a determined cause of death, “that’s the end of it. It can’t be said that this was a homicide”. [23] The defence argued that placing Ms. Kogawa’s body in a suitcase and leaving the suitcase in bushes was not conduct from which the jury could reasonably infer consciousness of guilt for murder. It was equally consistent with the appellant panicking over the fact that Ms. Kogawa had died for some unknown reason and then making “very poor decisions” about how to respond. [24] The things the appellant told his brother were said to prove nothing other than that he knew the whereabouts of Ms. Kogawa’s body. His expressions of remorse and attempted suicide were equally consistent with feeling bad about interfering with the body. An overheard conversation with the appellant’s wife (detailed later in these reasons), was a “very, very undependable bit of conversation” to which the jury should attach no weight. The probative value of the hand gestures during the statement to police was not assessable in any meaningful way, as the officers did not video record the interview. The appellant admitted “fault” for his role in the events of September 8, 2016, but that admission did not extend to murder. ISSUES ON APPEAL [25] The appellant raises three issues on appeal. He says the trial judge (1) erred in admitting parts of a phone conversation overheard by the appellant’s brother; (2) erred in her instructions to the jury by not including direction on the “concurrence” principle; and (3) mishandled and incorrectly answered a question posed by the jury. [26] In his factum, the appellant also alleges a failure by the judge to provide reasons for admitting the overheard conversation. However, he abandoned that ground of appeal after it became apparent that reasons were available. DISCUSSION [27] In resolving the issues advanced by the appellant, it will be necessary to refer to parts of the instructions to the jury. I will work primarily from the written version, distributed for use during deliberations. The appellant does not allege discrepancies between the written charge and its oral delivery. A. Did the Trial Judge Err in Admitting the Overheard Conversation? [28] To answer this question, it is necessary to set out the related evidence in some detail. [29] Whether the overheard conversation was relevant to an issue at trial raises a question of law, reviewable on a standard of correctness: R. v. Mohan , [1994] 2 S.C.R. 9 at 20–21; Housen v. Nikolaisen , 2002 SCC 33 at para. 8 . Whether the evidence, if found relevant, should have been excluded because its probative value was overborne by its prejudicial effect, involved an exercise of discretion. That aspect of the judge’s admissibility determination is entitled to “significant deference”: R. v. Araya , 2015 SCC 11 at para. 31. The Evidence [30] In his opening statement to the jury, Crown counsel at trial (not counsel on the appeal) told the jurors that they would hear testimony from the appellant’s brother, Warren Schneider Jr. (“WS”). Among other things, WS would testify that the appellant borrowed his phone to call the appellant’s wife, who was living in Japan. During the call, WS overheard the appellant “say to his wife, words to the effect of, ‘Have you heard the news in relation to Natsumi’s death?’ and ‘I did it’ or ‘I killed her.’” [31] On the morning of WS’s testimony, defence counsel (not counsel on the appeal) took issue with the admissibility of the overheard conversation. WS told police about the phone call when interviewed by them in 2016, and he testified about it at the preliminary inquiry. However, the defence did not contest the admissibility of the evidence until WS was about to testify. Given the late notice, it was agreed that WS would start his testimony and be interrupted for an admissibility determination at the point at which the conversation arose. [32] WS took the witness stand. He explained that the appellant married in 2001. His wife’s name is Hiroe. They have a child together. The appellant’s wife and child live in Japan. At the end of August or early September 2016, the appellant phoned WS in the Okanagan and told him that he would be travelling to Kelowna. He arrived sometime around September 20. He contacted WS and they met in a park in Rutland. At one point, the appellant became upset. “He gathered his items and left, saying … that he did something bad and — and he walked off”. [33] WS later found out that the appellant had gone to Vernon and was staying with their father, who lived there. He next saw his brother on September 23 at a celebration for their grandmother’s birthday in Kelowna. [34] On September 27, WS received a phone call (or text message) from one of his daughters. She sent him a photo and asked, “Is this Willie?” WS looked at the photo (part of a news article) and recognized the appellant. The article was headed “Missing Japanese Student”. [35] WS called his father’s residence and spoke to the appellant. He told him there was a photo on the Internet of him and a missing Japanese student. The appellant did not say anything and hung up the phone. [36] WS travelled to Vernon that same day. He arrived at his father’s residence at about 10:30 p.m. He “grabbed [his] brother” and they walked to the beer store. On the way back, the appellant said, “it’s true”. The appellant looked “[v]ery sad. Remorsefully sad” and “[g]lad to get it off his chest, per se.” [37] The appellant shared some details with WS. He told WS that he had three dates with Ms. Kogawa. The third date was the last one. “[T]here was medication taken” by both of them. The appellant said Ms. Kogawa provided the medication. He told WS they had spoken about having sex in a tent in Stanley Park. WS also learned that Ms. Kogawa had been late for each of the three dates; she had another engagement or appointment on the day in question; and, in response to the suggestion that they have sex in Stanley Park, the appellant told Ms. Kogawa of “another spot”. WS told the appellant he did not want to hear anything more and they would talk about it in the morning. [38] The next morning, the appellant told WS that “he planned on buying some heroin to take himself out in the bush and — and kill himself out in the bush”. They went to a beer store and purchased alcohol. The appellant also bought $50 worth of heroin. The appellant “wanted to commit suicide, but he wanted [WS] at his side”. They went to a park in Vernon. The appellant consumed the heroin “by needle”. He “realized he got ripped‑off. It wasn’t strong enough and he didn’t die”. [39] WS testified that before the appellant injected the heroin, he told WS the location of Ms. Kogawa’s body. It was at Nicola and Davie Streets in Vancouver, at a “construction site, or a restaurant”. The appellant said the building was undergoing renovations. It was fenced‑off and might look like a construction site, a place not intended for the public, or, as if no one was living there. The appellant said Ms. Kogawa’s body was in a suitcase, and, after he killed himself, WS should tell the police. At this point, the testimony moved into a voir dire . [40] WS said that after the appellant failed to die from the heroin injection, he asked to use WS’s phone and said he was going to call his wife. The appellant dialed a number and had a conversation with the person who answered. WS said the call lasted several minutes (a phone record showed the call lasted 13 minutes). WS was about ten feet away from the appellant at the time. He could only hear one side of the conversation. When asked to convey the content of the call, WS said he heard the appellant ask near the beginning of the conversation, “Did you see the news of the missing Japanese woman, student?” Then, about halfway through, the appellant said, “I did it” and “I killed her.” [41] In cross‑examination on the voir dire , WS confirmed that he could only hear one side of the conversation. As a result, he did not know if the appellant’s wife was asking questions and the appellant was responding to them. The defence suggested to WS that he did not know the exact words spoken by the appellant. He testified that he could not recall “the full conversation, no”. It was suggested that he did not know whether the appellant had, in fact, said “I did it”. WS responded, “Yes, he said that.” He said “[t]hat he killed her”. WS’s testimony at the preliminary inquiry was put to him, in which he said he “believe[d]” the words used by his brother were “I did it” or “I killed her”. When asked to explain the difference between his evidence at the preliminary inquiry and his testimony on the voir dire , WS said: A.         … that’s what I said there, “I did it” or “I killed her,” but meaning that he’s responsible for her death. Q.        So you don’t know the exact words he said? A.         Not word‑for‑word, but the message that I got from that was — Q.        Your feeling about it? A.         Yes. A. Word‑for‑word, I don’t know the exact words. Q.        Well, you don’t know the words at all, do you? A.         Word‑for‑word, no. Q.        Well, when you say word‑for‑word, what do you mean by that? A.         In a sense, it seemed like he was admitting to the missing Japanese student’s death. “I did it” or “I killed her,” well, I guess that word “or” there. Overhearing a part of a conversation, “I did it. I killed her,” it’s along those lines, and word‑for‑word, maybe I was not missing a word, but it’s word‑for‑word. I — he did say “I did it.” Q.        But what you — you — that’s contrary to what you said in your last answer, sir, in that transcript I just read you when I said “What were the exact words,” and you said, “I don’t know the exact words,” and that’s true, isn’t it? A.         Well, the whole conversation. Q.        It was your feeling about the impression you got, isn’t that really it? A.         Yeah. Yes. [42] Following submissions on the voir dire , the trial judge admitted the evidence surrounding the overheard conversation. In her ruling, she acknowledged that WS “could not remember the exact words [the appellant] used nor could he remember any other parts of the [telephone] conversation”: R. v. Schneider , 2018 BCSC 2546 at para. 9 (“RFJ”). However, she was satisfied there was sufficient “context” surrounding the conversation that the evidence could be left with the jury: [18]      Although Warren Schneider Jr. was not actively trying to listen, he was present for [the] whole conversation and is able to give evidence about the context of the conversation. The context of the conversation was that he and Mr. Schneider had been discussing the missing Japanese woman. Prior to the conversation, Mr. Schneider had told Warren Schneider Jr. where Ms. Kogawa’s body was located. [19]      As set out in [ R. v. Ferris , [1994] 3 S.C.R. 756], the trial judge must be satisfied there is some evidence upon which a jury could conclude the meaning of the uttered words. As noted in [ R. v. Bennight , 2012 BCCA 190], the possibility of incompleteness is a matter of weight for the jury. [20]      In my opinion, it is apparent from Warren Schneider Jr.’s evidence on the voir dire that there is some evidence on which a jury could conclude the meaning of the uttered words. While he was unable to recall the exact words, Warren Schneider Jr. testified about the context of the conversation and that the gist of the conversation was that Mr. Schneider was taking responsibility for Ms. Kogawa’s death. [21]      In my view, the probative value of the evidence outweighs the prejudicial effect that it might be used improperly. The prejudicial effect can be ameliorated by a strong caution to the jury about what use can be made of the evidence. [43] After this ruling, WS resumed his testimony before the jury and gave evidence about the phone call. In his direct examination, he said he heard the appellant say to his wife, “Did you hear the news about the missing Japanese student?” About halfway through the conversation, he also heard the appellant say, “I did it. I killed her.” Crown counsel asked WS if those were the appellant’s exact words. He replied “no”. He only heard one side of the conversation and that was the “gist” of what was said. [44] In cross‑examination, WS agreed that the phone call lasted 13 minutes and he had no knowledge of what the appellant’s wife said during the call. He also agreed that he was purposefully trying not to eavesdrop. He said he was certain the appellant asked his wife whether she had “heard the news about the missing Japanese student” and that this question was posed at the start of the conversation. WS confirmed he did not know the exact words spoken by the appellant or if the appellant was being asked a question about Ms. Kogawa or something else when he was overheard to say “I did it”. He agreed that portion of the conversation could have been completely unrelated to Ms. Kogawa. He did not know if the words “I did it” were said in the middle of a sentence, at the start of a sentence, or at the end. [45] WS testified that after the phone conversation, he and the appellant went back to the beer store and purchased more alcohol. The appellant said he wanted to buy more heroin, but did not do so. They took some pictures. They “hugged as if it would be [their] last hugs together”. They cried. WS left the appellant and met their sister near the police station. WS subsequently told police about the location of Ms. Kogawa’s body. Positions of Parties on Admissibility [46] Relying on R. v. Ferris , 1994 ABCA 20, aff’d [1994] 3 S.C.R. 756, the appellant says the trial judge erred in admitting the evidence of the overheard telephone conversation. He contends that this evidence is subject to a “narrowly circumscribed, class‑based inadmissibility principle” specific to fragments of one‑sided conversations overheard by a third party that the Crown seeks to tender as an admission. The appellant says that before admitting this type of evidence, a trial judge must first determine whether the evidence constitutes an admission (potentially applying a standard of proof beyond a reasonable doubt). Only then will the evidence be logically relevant and open for consideration by the jury. If the judge is not satisfied that the words amount to an admission, because their meaning cannot be ascertained, the evidence is automatically inadmissible (appellant’s factum at paras. 52, 57, 58, 65). [47] The appellant contends that the trial judge failed to make this mandated threshold enquiry. Instead, she improperly left it to the jury to decide whether the overheard words amounted to an admission. Had she conducted the proper analysis, the judge would have concluded that the words did not constitute an admission because it was impossible to ascertain their meaning. Having reached that conclusion, there would be no alternative but to keep the evidence from the jury (appellant’s factum at para. 67). [48] Alternatively, the appellant says the judge was clearly wrong in her analysis of probative value and prejudicial effect. WS could only hear one side of the conversation and in snippets. He testified that he was trying not to listen to his brother. He did not hear what came before and after the impugned words and he could not recall the exact words spoken. The appellant says there is no real difference between this case and Ferris , and the prejudicial effect of admitting this evidence strongly outweighs its probative value. [49] The Crown says the admissibility ruling accords with the governing analytical principles and there is no basis for appellate intervention. The Crown sought to tender the overheard conversation as evidence of the appellant admitting his involvement in the death of Ms. Kogawa. In deciding whether that evidence should go before the jury, the judge properly asked whether there was some evidence by which the jury could determine the meaning of the words. Then she assessed the probative value of the evidence as against its prejudicial effect. This was all the judge was required to do. It was not the role of the judge to determine, as a fact, whether the impugned words did amount to an admission. If the judge admitted the evidence, that was for the jury to decide with the aid of proper instructions on how to assess the weight of the evidence and make use of it. [50] Relying on cases such as R. v. Bennight , 2012 BCCA 190 (inexact words spoken to a jail guard), the Crown says the circumstances surrounding WS’s interactions with the appellant in Rutland, Kelowna and Vernon in September 2016 provided ample evidentiary support for the judge’s decision to leave the overheard conversation with the jury. It offered sufficient context from which the jury could assess the meaning of the words and their weight. Legal Principles [51] Counsel agree that Ferris is the jurisprudential starting point for the admissibility analysis. [52] Mr. Ferris was arrested for murder. While in police custody, he asked to call his father. During the call, a police officer overheard Mr. Ferris say the words “I’ve been arrested” and “I killed David”. The officer could not hear what the father said to Mr. Ferris or any other parts of the conversation between the two men. The officer acknowledged there was conversation before, after, and in between the two sets of words he overheard. However, he did not know what it consisted of. He also did not know if the words “I killed David” came at the start, the end, or in the middle of a sentence: 1994 ABCA 20 at paras. 3–5. [53] The trial judge admitted the overheard remarks. The appeal court found that he erred. Conrad J.A. wrote for the majority and provided three bases for inadmissibility. [54] First, there was insufficient evidence from which a properly instructed jury could determine the meaning of the overheard remarks (at para. 27). The words “I killed David” were only relevant, and therefore admissible, if shown to be capable of supporting a conclusion that they amounted to an admission (at para. 31). If it was not possible to determine the meaning of the words, the Crown failed in its threshold burden to show that the words were relevant to an issue at trial (at para. 38). In Ferris , it was: [17]      … uncontradicted that the words were part of an utterance only, and that other words passed both before and after those words. It [was] uncontradicted that the words could have come at the beginning of a sentence or at the end of a sentence. In fact, the words may have been a part of a question such as "You don't think I killed David?" or a statement such as "They think I killed David" or "They think I killed David but I didn't". His father could have asked him what the police think he did and he could have replied "I killed David". Those utterances [did] not prove any fact in issue and [were] not an admission of guilt. Indeed, on the basis of the uncontradicted evidence, the possibility of statements with the words "... I killed David ..." contained therein [were] numerous. There [was] no way of determining the meaning or thought to be attributed to the words . [Emphasis added.] [55] The second basis for inadmissibility was a logical corollary of the first. The overheard conversation consisted of words spoken out‑of‑court. The Crown sought to tender the evidence for its truth, engaging the common law rule against hearsay. To have Mr. Ferris’s utterances admitted, the Crown was required to establish that they fell within a traditional exception to the hearsay rule or were otherwise admissible under the principled exception, requiring determinations of “necessity” and “reliability”. [56] The traditional exception engaged by the case was an admission. For the same reasons the Crown could not establish that the words “I killed David” were relevant to an issue at trial, the Crown could not show that they fell within the traditional exception (at para. 32). The utterances were not capable of interpretation as an admission. Conrad J.A. found that the utterances would also be inadmissible under the principled exception to the rule against hearsay as it stood at the material time. Because of the circumstances surrounding the overheard words, it would be “foolhardy” to find that they met the test for reliability (at para. 35). Nor was admitting evidence of an overheard, one‑sided conversation necessary. The Crown could have called the father to testify about the contents of the phone call with Mr. Ferris (at para. 36). It chose not to. [57] Conrad J.A.’s third reason for finding the evidence inadmissible was that, even if shown to be relevant and admissible hearsay, the probative value of the overheard words was overborne by their prejudicial effect: [37]      The last thing to consider is the balance between probative value and prejudicial effect. The statement "... I killed David ..." has no probative value given that we do not know the words which surrounded the utterance, the utterance was just as likely to be meaningless as inculpatory or even exculpatory. … Also, as mentioned earlier, this evidence could never meet the test of probative value versus prejudicial effect. The extreme prejudice is so great its exclusion must be favoured. [58] The Crown appealed the majority decision in Ferris . The appeal was dismissed. In a short oral judgment, the Supreme Court did not engage in a substantive analysis of the three bases provided by Conrad J.A. for non‑admissibility or discuss the relevant legal principles. Instead, the Court simply endorsed the third of the majority’s conclusions, holding that if the utterance “I killed David” had any relevance, “its meaning was so speculative and its probative value so tenuous that the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value” (at 756). [59] I do not agree with the appellant that in upholding the majority decision in Ferris , the Supreme Court established a “class‑based inadmissibility principle” or exclusionary rule specific to overheard, one‑sided utterances adduced by the Crown. Indeed, in decisions from this Court released after the Supreme Court’s ruling, Ferris has consistently been approached as a case in which the impugned remarks were rendered inadmissible after a weighing of their probative value and prejudicial effect. See, for example, R. v. Foerster , 2017 BCCA 105 at para. 74; Bennight at para. 91; R. v. Reierson , 2010 BCCA 381 at para. 39; and R. v. Mooring; R. v. Woods , 1999 BCCA 418. See also R. v. Hummel , 2002 YKCA 6 at paras. 29–32. [60] Furthermore, in R. v. Alcantara , 2015 ABCA 259, leave to appeal ref’d [2016] S.C.C.A. No. 14, the Court of Appeal of Alberta reviewed Ferris and explicitly rejected the proposition advanced by the appellant in this case. In Alcantara , police intercepted telephone conversations involving one of the accused. In one of those calls, words spoken by the accused were intelligible and recorded. However, “immediately preceding and following” those words were statements by the person to whom the accused was speaking. They were not intelligible (at para. 134). The accused’s comments (consisting of three sentences) were admitted. On appeal, he contended that the trial judge erred in doing so. He said that as a matter of legal principle , when the Crown seeks to rely upon an incomplete utterance, it “may be impossible to ascertain the meaning of the words” and, because of that risk, the evidence is inadmissible or, at the very least, must not be given any weight (at para. 135). [61] The appeal court found that admitting the evidence was reasonably open to the trial judge (at para. 147). Moreover, it held that the majority judgment in Ferris did not “ lay down a rule of inadmissibility (or zero weight) for any statement which is not complete, even if the statement comes without a live listener present” (at para. 140; emphasis added). Instead: [146] Orthodox rules of law for weighing prejudice and relevance apply , says the Supreme Court of Canada. The topic is entirely one of weight, before and after admission of the evidence. [Emphasis added.] [62] In reaching this conclusion, the Alcantara division pointed to two appellate decisions the Alberta Court rendered post‑ Ferris : R. v. Cador , 2010 ABCA 232, and R. v. Yates , 2011 ABCA 43. [63] In Cador , the accused was charged with aggravated assault. The Crown tendered evidence of a phone call made to the accused by the complainant’s sister the day after the alleged attack. In the call, the accused did not directly acknowledge involvement in the assault. She “basically just cried on the phone” and then said, “it wasn’t supposed to be this bad” (at para. 3). On appeal, the accused argued that because the conversation was “incomplete and equivocal”, it was not open for consideration by the trier of fact (at para. 16). The Court of Appeal disagreed: [16]      … Read in context, use of the word “basically” by [the witness] does not detract from the thrust and import of the Appellant’s admission that “it wasn’t supposed to be that bad”. The statement was properly admitted and appropriately relied upon by the trial judge. [64] In Yates , the accused was charged with murder. A sheriff overheard him make incriminating comments while in a prisoners’ van (at paras. 10, 14). The sheriff testified that he was not paying attention at the start of the accused’s conversation with other prisoners; however, he did so once he realized that the accused was talking about the crime (at para. 17). Among other things, he heard the accused say, “He was skidding on my sister, so I shot him in the fucking head” (at para. 17). The trial judge admitted all of the comments into evidence. On appeal, the accused argued the evidence was wrongly admitted because it was “fragmented, not recorded verbatim , and incomplete in terms of context” (at para. 18). In addition, the judge should have excluded the utterances because their probative value was outweighed by their prejudicial effect and he failed to make that enquiry (at para. 18). [65] The Court of Appeal declined to intervene with the admissibility ruling. Unlike the circumstances in Ferris , the overheard comments represented “more than a small snippet of a statement” (at para. 20). They were “longer and more numerous” than the utterances overheard in Ferris , and they represented “more than partial thoughts” (at para. 20). The sheriff testified that he paid attention to the conversation once he realized the accused was talking about the crime. This testimony “add[ed] context to the utterances” (at para. 20). The defence did not press for a finding that the probative value of the comments was outweighed by their prejudicial effect, and the trial judge properly instructed the jury on the use it could make of them, including that it was up to the jury to decide “how much of the [sheriff’s] testimony to believe” (at para. 22). [66] In my view, Ferris , Alcantara and other of the cases cited by counsel on this ground of appeal tell us that the admissibility of the appellant’s phone conversation, as overheard by WS, was not subject to a unique exclusionary rule. Rather, first principles govern. The things said by the appellant were admissible as a recognized exception to the rule against hearsay if: (1) relevant to an issue in the case; and (2) their prejudicial effect did not outweigh their probative value. [67] See also R. v. Hunter (2001), 54 O.R. (3d) 695 (C.A.) at paras. 15–21 (overheard utterance made to the lawyer of the accused at the courthouse); and R. v. Buttazzoni , 2019 ONCA 645 at paras. 53–58 (utterances overheard by a police officer while hiding under a truck within earshot of the accused). [68] As explained by Charron J.A. (as she then was) in R. v. Collins (2001), 160 C.C.C. (3d) 85 (Ont. C.A.): [18]      … evidence that is relevant to an issue in the case will generally be admitted. Indeed, it is a fundamental principle of our law of evidence that any information that has any tendency to prove a fact in issue should be admitted in evidence unless its exclusion is justified on some other grounds: see R. v. Corbett , [1988] 1 S.C.R. 670 at 715; R. v. Morris , [1983] 2 S.C.R. 190 at 201; and R. v. Seaboyer , [1991] 2 S.C.R. 577 at 609. [19]      The grounds that justify the exclusion of evidence that is otherwise relevant and material form the basis of many of our more specific rules of evidence. The rule against hearsay, the opinion rule and the similar fact rule are a few examples. Quite apart from these specific rules, evidence that is otherwise relevant and material may also be excluded by the exercise of the trial judge's general power to safeguard the fairness of the proceedings. Our law of evidence recognizes the general power of a judge to exclude relevant and material evidence where its probative value is outweighed by the prejudice caused by its admission, provided that where the evidence is tendered by the defence, it should not be excluded on that basis unless the prejudice substantially outweighs the value of the evidence: see Seaboyer , supra , at 390; and R. v. B. (S.C.) (1997), 119 C.C.C. (3d) 530 (Ont. C.A.) at 541. Prejudice in this context does not mean, of course, that the evidence will be detrimental to the other party's position. Rather, it is related to the detrimental effect that the evidence may have on the fairness and the integrity of the proceedings. See also R. v. Grant , 2015 SCC 9 at paras. 18–19. [69] Applying this framework, the appellant is wrong to say that in assessing relevance, the trial judge was obliged to determine—in fact—whether the overheard words constituted an admission. Rather, the words said to have been spoken by the appellant were relevant if “ capable of being an admission” ( Ferris (C.A.) at paras. 26, 27, 29, 31, 38; emphasis added). [70] At this stage of the admissibility analysis, a trial judge is concerned with logical relevance. As explained by Doherty J.A. in R. v. Abbey , 2009 ONCA 624, leave to appeal ref’d [2010] S.C.C.A No. 125, logical relevance requires: [82]      … that the evidence have a tendency as a matter of human experience and logic to make the existence or non‑existence of a fact in issue more or less likely than it would be without that evidence …. Given this meaning, relevance sets a low threshold for admissibility and reflects the inclusionary bias of our evidentiary rules …. [Internal references omitted; emphasis added.] [71] In R. v. Arp , [1998] 3 S.C.R. 339, it was made clear that to be logically relevant, “an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to ‘increase or diminish the probability of the existence of a fact in issue’. … As a consequence, there is no minimum probative value required for evidence to be relevant ” (at para. 38; internal references omitted; emphasis added). See also R. v. Blackman , 2008 SCC 37 at paras. 29–30. [72] The Crown sought to tender the words overheard by WS as an admission of responsibility for the death of Ms. Kogawa. Clearly, that was a material issue at trial. To meet its burden on logical relevance, the Crown was required to show that those words were capable of interpretation as an admission. In assessing whether the Crown met that burden, the question for the judge to decide was whether there was “some evidence upon which [the] jury could conclude the meaning of the uttered words”: Alcantara at paras. 138–139. [73] If the answer was “yes”, the judge was obliged to move to the second stage of the analysis and determine whether she should keep the evidence from the jury because its prejudicial effect outweighed its probative value. It is only then that a trial judge engages in a weighing of the evidence, albeit on a limited scale. The purpose of the limited weighing is to assess legal relevance. Again, with reference to para. 82 of Abbey : Relevance can also refer to a requirement that evidence be not only logically relevant to a fact in issue, but also sufficiently probative to justify its admission despite the prejudice that may flow from its admission. This meaning of relevance is described as legal relevance and involves a limited weighing of the costs and benefits associated with admitting evidence that is undoubtedly logically relevant …. [Internal references omitted; emphasis added.] [74] To understand the scope of the judge’s role at the second stage of the analysis, I find R. v. Hall , 2018 MBCA 122, helpful. There, Mainella J.A. (writing for the Court) explained that: [125]    Determining whether the probative value of evidence outweighs its prejudicial effect requires a 'cost benefit analysis' ( R. v. Hart , 2014 SCC 52 at para 94). [126]    … Probative value is more than just the evidence having logical relevance ; it is also about the prospective materiality of the evidence. The legal concept of relevance ensures that the ultimate factual inquiry is "reasonable, practical and fair" …. Defining legal relevance requires the trial judge to assess "the degree to which the evidence would prove the fact in issue for which it was tendered" …, as well as any "defects" in the evidence in terms of credibility or reliability …. In carrying out this analysis, the trial judge must weigh the evidence to a limited degree but without encroaching on the domain of the fact finder as to whether the evidence should be believed and relied upon . The overriding question is whether the evidence is 'worthy' of being heard by the fact finder …. [127]    Prejudicial effect is assessed by identifying the dangers of the evidence and considering how real those dangers are to the fairness of the trial …. Prejudice, however, does not refer to the mere fact that the evidence supports the moving party's case to the prejudice of the respondent …. [128]    Some of the dangers otherwise admissible evidence may cause to the fairness of a trial are undue arousal of the jury's emotions, distraction, unnecessary delay or repetition, unfair surprise to a party and usurpation of the role of the jury …. [Internal references omitted; emphasis added.] [75] It is apparent from the voir dire ruling in this case that the trial judge correctly instructed herself on the legal principles she was bound to apply in determining admissibility. She asked whether there was some evidence upon which the jury could conclude the meaning of the words conveyed through WS (at para. 19). Once satisfied the evidence was logically relevant, she went on to assess legal relevance by asking whether its probative value outweighed the “prejudicial effect that it might be used improperly” (at para. 21). [76] After considering the totality of WS’s testimony about his interaction with the appellant, up to and including completion of his evidence on the voir dire , I am satisfied the judge was correct in her finding of logical relevance. [77] In my view, this case is qualitatively different from Ferris , which Conrad J.A. acknowledged to involve a “unique” set of facts (at para. 17). In Ferris , the Crown did not adduce any informing “context” from which the trier of fact could determine the meaning of the words “I killed David” (at para. 35). The evidence consisted of the fact of an arrest for murder, a phone call to the father of the accused while in police custody, and two overheard utterances: “I’ve been arrested” and “I killed David”. There was no one on the voir dire who could “swear positively to the fact that the essence of the accused’s words were an admission” (at para. 25). As a result, the “gist of the statement [was] unknown and, moreover, unascertainable” (at para. 25). The Crown did not tender any “independent evidence from which meaning [could] be drawn” (at para. 30). [78] In this case, there was far greater context to inform the meaning of the overheard utterances, including evidence that: · WS was the appellant’s brother, had a pre‑existing relationship with him and was familiar with his personal circumstances; · WS met with the appellant at a Rutland park on September 20 (or thereabouts). During that visit, the appellant became upset, gathered his things and left the interaction, saying he had done “something bad”; · on September 27, WS contacted the appellant by phone and told him about the news article circulating with a picture of the appellant and Ms. Kogawa. In response, the appellant hung up the phone; · WS travelled to Vernon that same day and spoke with the appellant. The appellant acknowledged the news release reporting Ms. Kogawa as missing (“it’s true”); he acknowledged being with her; and he provided WS with information specific to their last “date” together. WS described the appellant’s demeanour during this conversation as “[r]emorsefully sad”. He seemed “[g]lad to get it off his chest”; · the next morning, in the context of the preceding conversations, the appellant told WS that he wanted to kill himself and he followed through on that intention in the presence of WS, purchasing heroin and injecting the heroin for the purpose of an overdose; · he told WS about the location of Ms. Kogawa’s body and asked that WS relay that information to police after he was dead; · near the start of the phone call with the person WS believed to be the appellant’s wife, the appellant referred to the “missing Japanese woman, student”; · during that same conversation, WS heard “I did it” or “I killed her”, and understood that to mean “[the appellant’s] responsible for her death”; and, · although he did not recall the “full conversation”, or what the appellant said “word‑for‑word”, the “message” WS took from the phone call was that the appellant was admitting to Ms. Kogawa’s death. That was the “impression” left with him. [79] On this foundation, I cannot say there was no evidence from which the jury could conclude the meaning of the uttered words: Alcantara at paras. 138–139. [80] The statements “I did it” or “I killed her” formed part of a telephone conversation that was said to explicitly reference the “missing Japanese woman, student”, thereby connecting the conversation to the subject matter of the offence. The impugned words came after the appellant had already acknowledged to WS that Ms. Kogawa was missing, that he knew her, and that he had been with her. They also came after the appellant told WS he was aware of the location of her body and, by necessary implication, the fact that she was deceased. Up to this point, the appellant had not interacted with police about the matter, from whom he might have gleaned those details. The appellant had direct and peculiar knowledge of Ms. Kogawa’s circumstances when she was reported missing, which would logically inform any inferences drawn by WS (or the “impressions” left with him) from the overheard conversation. [81] The appellant displayed a remorseful demeanour during his conversations with WS. He expressed an intention to kill himself, after which WS was free to tell police the location of the body. This evidence is consistent with an awareness of culpability for a wrongful act that was grave in nature. The appellant followed through on the intention to take his own life, although he did not succeed. WS provided evidence on the gist or essence of the words spoken during the phone call, describing them as taking responsibility for Ms. Kogawa’s death. This impression formed after the appellant had already spoken directly with WS about Ms. Kogawa’s disappearance and his knowledge of her whereabouts. As noted, the impugned words came before any police involvement with the appellant or allegations of wrongdoing against him. As such, unlike Ferris , there could be no suggestion here that during the phone call, the appellant was simply repeating accusations made by police or responding to questions asked by the person on the other end of the phone about what police alleged he had done. [82] I also find this case distinguishable from R. v. O’Reilly , 2017 BCSC 276, an authority cited by the appellant. Mr. O’Reilly was charged with two counts of first degree murder. At trial, the Crown sought to adduce portions of conversations between the accused and one of his then co‑accused (later a cooperating Crown witness) that were overheard by two jail guards while Mr. O’Reilly was held in custody. One of the guards said she heard Mr. O’Reilly say “something to the effect” of “I’m not going down alone” (at para. 19). The other guard testified that she heard him say, “I was only there for 5W and that is when shit hit the fan” (at para. 25). When the second guard initially detailed these events to police, she also said she heard Mr. O’Reilly say, “I wasn’t going down by myself” (at para. 28). On the admissibility voir dire , the guard did not recall the latter words, but acknowledged that the information she gave to police was accurate and truthful. As such, the Crown sought to have this portion of the guard’s evidence admitted as past recollection recorded (at para. 28). [83] In opposing admissibility, the defence argued (among other things) that the meaning of the comments exchanged between Mr. O’Reilly and his co‑accused could not be ascertained, and, as such, they had no probative value or “so little probative value as to be outweighed by their prejudicial effect” (at para. 37). The trial judge agreed: [46]      I am not satisfied that the Crown has established that the fragmentary phrases that were allegedly overheard are relevant. The context is unknown and [the co‑accused] was not able to provide any assistance in this regard . The statements Mr. O’Reilly is alleged to have made are “I was just there when crap went down”/”I was only there for 5W and that is when shit hit the fan” and “I’m not going down alone”/”I wasn’t going down by myself”. The meaning the Crown seeks to attribute to these utterances is purely speculative without the surrounding context. Neither [the guards], nor indeed [the co‑accused] or any other witness called by the Crown on this voir dire , is able to say what Mr. O’Reilly meant when he allegedly said he was “there” or that he was not “going down” by himself . In my view, no meaning can be attributed to these dissevered words. Further, even if I am wrong and the utterances are relevant in that they are capable of supporting the meaning argued by the Crown, it seems clear to me that their prejudicial impact far outweighs any probative value they may have; the impact of this evidence on the jury would simply be out of proportion to its reliability. [Emphasis added.] [84] In reaching this conclusion, the judge in O’Reilly noted various difficulties with the proposed evidence, including that the guards did not hear the words spoken before or after the impugned utterances; they did not immediately make notes of what they heard, or everything they heard; and they acknowledged they may have some of the words wrong (at para. 44). In addition, the first guard was initially unable to identify Mr. O’Reilly on the voir dire . Nor could she describe the sound of his voice, even though she said she could recognize it (at para. 17). She further testified that she believed Mr. O’Reilly was talking to his co‑accused about the events that formed the subject matter of the charge for murder, but “was not able to recall their exact words as she was distracted by other duties” (at para. 21). By the time of the voir dire , the second guard had no recall of one of the remarks said to have been overheard. [85] In my view, the evidential foundation surrounding the impugned statements in O’Reilly was far less detailed than the one in this case. Moreover, WS was personally familiar with the appellant; before the overheard call, he received information directly from the appellant that was specific to the disappearance of Ms. Kogawa; and, critically , the evidence of WS was able to connect the overheard phone conversation to the subject matter of the charged offence. [86] Whether there is some evidence upon which a jury could conclude the meaning of utterances the Crown seeks to tender is a case‑specific enquiry, informed by the extent to which the circumstances surrounding those utterances (otherwise described as “context”) offer an evidential foundation that has the capacity to support the ascertainment of their meaning. In Ferris , the exclusion of the words “I killed David” was “anchored” in the absence of context that could assist in “giving meaning to [the] spoken words” ( Hunter at para. 19). That is not the situation here. [87] When assessing logical relevance, it is not proper to consider the impugned words in isolation. The threshold test for logical relevance is low. On the evidential foundation in this case, I agree with the trial judge that the Crown met that test. [88] I have had the privilege of reviewing a draft of the reasons provided by my colleague, Justice Goepel, specific to the admissibility of the overheard conversation. Although he does not take issue with the legal principles I have brought to bear in my analysis, we part company on whether the appellant’s utterances, as relayed by WS, met the test for logical relevance. Goepel J.A. is of the view that the words “I did it” or “I killed her” were not capable of interpretation as an admission. In my view, in reaching that conclusion, my colleague has undervalued the informative role of what he refers to as the “macro‑context” set out at para. 78 of my reasons, and, importantly, its proximity to the overheard conversation. [89] The utterances relayed by WS, as they stood at the time of the admissibility ruling, formed part of an ongoing interaction and dialogue between WS and his brother in which the appellant was also providing details of his relationship with Ms. Kogawa to WS, as well as information about circumstances surrounding her disappearance. In deciding logical relevance, the trial judge focused on that context, not the evidence of the case at large (see para. 18 of her RFJ). This is different from Ferris , in which the utterances stood alone, without any capacity to inform their meaning by reference to other information directly and contemporaneously received from the accused in relation to the deceased, or about events proximate to that individual’s death. [90] My colleague holds that without “micro‑context”, which he defines as “the parts of something written or spoken that immediately precede and follow a word or passage and clarify its meaning”, it was not possible to determine the meaning of the appellant’s impugned words. That is, in my view, too narrow an approach to the logical relevance analysis. Arguably, in its practical application, it also means that an incomplete utterance will rarely, if ever, be admissible. The absence of surrounding words will generally be dispositive at the first stage of the analysis. Respectfully, that approach is inconsistent with the low threshold for logical relevance endorsed by the Supreme Court in Arp , and it risks “lay[ing] down a rule of inadmissibility” of the type explicitly rejected in Alcantara. [91] I am also satisfied the judge’s conclusion that the probative value of the overheard conversation was not outweighed by its prejudicial effect should be respected. This aspect of her determination is entitled to significance deference: Araya at para. 31. [92] At this stage of the admissibility analysis, the judge’s determination of logical relevance had already addressed (and accounted for) the concern that any meaning ascribed to the impugned words would be purely speculative . The finding of logical relevance necessarily rejected that proposition. The judge had determined (correctly, in my view) that the overheard words were capable of interpretation as an admission in light of the surrounding evidentiary context. She found that there was some evidence from which a properly instructed jury, acting reasonably, could find that the utterances “I did it” or “I killed her” amounted to an acknowledgment of the appellant’s involvement in Ms. Kogawa’s death. In other words, in ascribing meaning to the words, the jury would not be engaged in mere conjecture. [93] In weighing probative value and prejudicial effect, the trial judge was entitled to conduct her assessment with that finding in mind. The probative value of the evidence may not have been strong because of its associated frailties, but that did not preclude the trial judge from asking whether a “strong caution to the jury” about those frailties, the proper way in which to assess and assign weight to the evidence, and its use was sufficient to ameliorate the prejudicial effect. [94] In R. v. Herntier , 2020 MBCA 95 , a decision released shortly before the hearing of this appeal, the trial judge admitted a statement made by the accused to a work associate in which the accused said he had “killed someone”, but did not reveal who that person was, when the killing occurred, or the surrounding circumstances. The witness could not specify the date of the conversation or the words spoken immediately before or after the comments at issue (at paras. 231–34). The Crown sought to tender the statement as an admission in the accused’s prosecution for murder. The defence opposed admissibility on Ferris grounds (at paras. 257, 265). The ruling to admit the statement was upheld on appeal. There was sufficient context to give “meaning to the words” (at paras. 267–74). In applying the applicable standard of review, the Manitoba Court stressed that “[t]he weighing of probative value and prejudicial effect takes place in the context of the evidence that has been called and the dynamics of the trial, and the trial judge is in the best position to assess those factors ” (at para. 276; emphasis added). I agree. [95] In this case, the trial judge determined that the potential prejudice to the fairness and integrity of the trial arising from the fact that the overheard telephone conversation was one‑sided and incomplete and that WS could not recall the exact words was mitigable with a strong ameliorative charge on proper use. In my view, that conclusion was reasonably open to her. Moreover, the evidence was not of the type that would unduly arouse emotions, lead to distraction, delay the proceedings or invite repetition: Hall at para. 128. Nor was the defence caught by surprise. It had known about this evidence from before the preliminary inquiry. Consistent with the appellate analysis brought to bear on the overheard utterances in Buttazzoni , I am satisfied the trial judge identified and applied the appropriate legal test for admission of the phone conversation, considered the frailties of the evidence, and reasonably left it to the jury to determine its weight. “The admission of such evidence is a discretionary call ….” ( Buttazzoni at para. 58). [96] After the admissibility ruling, WS repeated his evidence of the overheard conversation in the presence of the jury. In cross‑examination, WS confirmed that he did not know the exact words spoken or whether the appellant said “I did it” in response to a question, and he agreed with the possibility that this portion of the conversation may have been unrelated to Ms. Kogawa. [97] In her final instructions, the trial judge made it clear to the jury that it could accept all, part or none of a witness’s evidence (including, of course, that of WS). She told the jurors that in assessing the credibility of a particular witness, or deciding “how much to rely” on that person’s evidence, questions to ask included whether the witness was “in a position to make accurate and complete observations about the event ” (emphasis added). If the jury had a reasonable doubt about the appellant’s guilt “arising from the credibility” of the witnesses, the jury was obliged to acquit. [98] The judge also provided the jury with a specific instruction on how to approach the overheard conversation, as well as the use that could be made of it. She acknowledged the deficiencies in the evidence and made it plain that if the jurors had any doubt about what the appellant said during the phone call, or what he meant by the words used , they should ignore the evidence: [79]      You heard testimony from Warren Schneider Junior about a telephone conversation he overheard between Mr. Schneider and his wife. Warren Schneider Junior could not hear the other side of the conversation. He testified he only heard parts of the conversation and was trying not to eavesdrop. He did not hear what was said before or after the words he overheard and could not remember the exact words spoken by Mr. Schneider. This is something you need to bear in mind when you consider what, if any, weight can be given to Warren Schneider's evidence about the overheard conversation . [80]      As well, Warren Schneider Junior testified that at the time Mr. Schneider phoned his wife he had drunk a mickey of vodka and had taken some heroin. You should consider whether Mr. Schneider's drug and alcohol use may have affected what he said. It is up to you to decide whether you believe Warren Schneider Junior about what Mr. Schneider said and what Mr. Schneider meant by the overheard words. If you are in doubt about any of that, you should ignore the evidence . [81] Unless you decide that Mr. Schneider made a particular remark or statement, you must not use it against him in deciding this case . [85]      Occasionally during this trial a witness may have expressed his or her opinion about the state of mind of someone else, including Mr. Schneider. You must not rely upon such opinions for the truth or validity of the opinion. It is irrelevant if a witness had an opinion about another person's state of mind. [86] Another witness's opinion as to what Mr. Schneider meant by his words is irrelevant to the question of what he meant . It is your job and your job alone to decide the meanings of Mr. Schneider's words if you find he said them. [Emphasis added.] [99] In addition to the final instructions, the jury was cautioned by Crown counsel about WS as a witness, based on the manner in which he gave his evidence: Now, my submission to you is that you ought to approach Warren Schneider Junior's evidence with caution. He has a criminal record in the distant past, but my submission is that that does not bear greatly on his credibility, it's simply too old. I do say you can examine his demeanour and in my submission to you, his demeanour was not impressive. He was clearly, in my submission, conflicted between one, testifying, and the way he was asking frequently to refer to prior statements. You saw that. Request to, "Was it written," or, "Did I say it," or words to that effect. And also you must consider that he's testifying for the Crown in a second degree murder prosecution against his brother. I would … describe Warren Schneider Junior’s demeanour as terse, hesitant, and then at one point or at points, offering unsolicited and unexpected evidence. [100] And, in his closing submissions, defence counsel emphasized the evidentiary weaknesses inherent to a one‑sided conversation: That's the problem with only hearing one side of a conversation. He's telling her about the missing Japanese student. [The wife], you have no evidence from her. The other person on this call, you've not heard from. Was she saying, "What will they think you did?" And he said, "I," — even if he said, "I killed," — that, "I killed her," or, "I did it." And with respect, you can't even be satisfied he said that, because Mr. Warren Schneider Junior himself can't tell you what words were said. "I killed her," and, "I did it," in the context of this case, are very different things potentially. "I did it. I put the body in the suitcase"? Or, "I did it," as my friend would have you believe, "I killed her"? Or were the words, "I killed her"? Well, we don't know because Mr. Schneider Junior can't tell us what was said. this is a very, very undependable bit of conversation that is taken completely out of context and we have no context because you don’t have the person on the other end of the phone . And what we do have, we don’t even know if that was what it was actually said because he doesn’t know the exact words. With — in my submission it leaves you with virtually nothing at the end of the day. It’s contextually out of place and you can’t affix any value to it, even if you did know what he overheard, and he doesn’t know what you overheard — what he overheard, so he can’t — you can’t be convinced what he overheard. [Emphasis added.] [101] In my view, the instructions about the overheard utterances, considered with the closing submissions, ensured the jurors were fully aware of the frailties of this evidence; equipped them with the tools they required to assess its weight; and accurately explained the use that could be made of the evidence. The appellant suggests that the judge incorrectly told the jury to consider all of the circumstances in the case to determine the meaning of the words, including other evidence supportive of the appellant’s guilt (an instruction found to be erroneous by the Court of Appeal in Ferris, at para. 42). However, I do not read the judge’s instructions that way. Instead, she told the jurors it was up to them to decide how much weight to give the evidence, and to remember that, whatever the amount of weight they assigned, the overheard conversation formed only “part of the evidence” in the case and was to be considered “along with and in the same way as all of the other evidence”. I see nothing wrong with that instruction. [102] The judge’s charge included the language found adequate by this Court in Bennight (at para. 92). The appellant’s trial counsel accepted the instructions as appropriate. The defence had an opportunity to make submissions on the charge, and after the judge completed her instructions, defence counsel did not seek clarification or redirection on this issue. At the hearing of the appeal, the Court asked appellant’s counsel what the judge should have said about the overheard conversation that was not included in her charge. He was not able to point to anything material. Instead, the appellant’s complaint about this evidence is really about its admissibility. [103] For the reasons given, I am of the view the trial judge correctly decided logical relevance. The appellant has not shown error (let alone overriding error) in the judge’s exercise of discretion on legal relevance and the weighing of probative value and prejudicial effect. As such, the judge properly left the meaning of the impugned words and their weight with the jury. A functional review of the charge reveals that the instructions sufficiently cautioned the jury on use. [104] As noted by Rothstein J. in R. v. White , 2011 SCC 13: [56]      … once jurors are alerted to the risks that are not necessarily apparent to the average citizen, they can be trusted to properly weigh the evidence. Our jury system is predicated on the conviction that jurors are intelligent and reasonable fact‑finders. It is contrary to this fundamental premise to assume that properly instructed jurors will weigh the evidence unreasonably or draw irrational and speculative conclusions from relevant evidence. I would not accede to this ground of appeal. B. Should the Charge Have Included a Concurrence Instruction? [105] The appellant’s second ground of appeal raises a question of law alone, reviewable on a standard of correctness: R. v. Shevalev , 2019 BCCA 296; Housen at para. 8. [106] The appellant says the trial judge erred in not instructing the jury on the concurrence principle: R. v. Cooper , [1993] 1 S.C.R. 146. He contends the judge should have made it clear to the jury that before convicting the appellant of murder, the jury had to be satisfied beyond a reasonable doubt that the mens rea and the actus reus of the alleged offence coincided. [107] The Crown says a concurrence instruction was not necessary in the circumstances of this case. Nor was one sought by the defence at trial. The prosecution did not allege that the appellant committed multiple unlawful physical acts against Ms. Kogawa that caused her death, sequentially or otherwise. Rather, the actus reus of the murder was said to consist of one act, namely, physically assaulting Ms. Kogawa by covering her nose and mouth, causing her to asphyxiate. [108] In her final instructions, the judge told the jury that to find the appellant guilty of murder, the jury had to conclude that: (1) the appellant committed an unlawful act; (2) the unlawful act caused Ms. Kogawa’s death; and (3) the appellant had the intent required for murder. She then specified the “unlawful act” in question: [120]    The Crown says the unlawful act in Count 1 [murder] is an assault. The Crown’s theory is that Mr. Schneider asphyxiated or smothered Ms. Kogawa . I tell you as a matter of law that doing such a thing [constitutes] an assault contrary to the Criminal Code , and is an unlawful act. [121]    The Crown must prove beyond a reasonable doubt that Mr. Schneider committed the unlawful act of assault . [Emphasis added.] [109] The judge next instructed the jury on causation: “Did Mr. Schneider's Unlawful Act Cause Ms. Kogawa's Death? ” (emphasis added). She then moved to the intent required for murder and explained the two forms of intent prescribed by s. 229(a) of the Code . Section 229(a) reads: Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; [110] The judge told the jury that in deciding whether the Crown proved one of these forms of intent, the jury was obliged to “consider all the evidence, including the nature of the harm inflicted , and anything said or done in the circumstances” (emphasis added). She summarized the relevant evidence, and, in her summary, identified the physical harm attributable to the appellant by reference to the gestures he made during his statement to police, consistent with covering Ms. Kogawa’s nose and mouth. [111] After addressing Count 2 on the Indictment, the judge summarized the positions of the parties. The Crown’s position on murder was stated this way: Mr. Schneider caused the death of Ms. Kogawa on September 8th, 2016, by smothering or asphyxiating her. He assaulted her by blocking her ability to breathe by placing his hands and fingers over her mouth and nose . The assault killed her. [Emphasis added.] [112] This case was left with the jury as a case involving a single unlawful act—asphyxiation by covering the nose and mouth. Adopting the language of Frankel J.A. in Shevalev , the covering of the nose and mouth was the “starting and ending point of the actus reus ” (at para. 74). A concurrence instruction is generally only required where death results from a series of unlawful acts (for example, repeated blows to the head over several minutes) and those acts formed part of a single or continuous transaction. In those circumstances it is necessary to explain to the jury that to convict of murder, the Crown must prove that one of the two intents for murder coincided at some point in time with the continuous transaction: Cooper at 157–58, 160–61; Shevalev at paras. 53, 72. I agree with the Crown that in the context of this case it was not necessary for the trial judge to provide a concurrence instruction. In fact, doing so would have likely confused the jury. [113] From the charge, I am satisfied the jury would have understood that to convict the appellant of murder, it had to find beyond a reasonable doubt that he committed the unlawful act of assault by covering Ms. Kogawa’s nose and mouth. Furthermore, by doing so, he contributed significantly to her death. Finally, the jury had to find that when the appellant covered Ms. Kogawa’s nose and mouth, he either intended to kill her, or intended to cause bodily harm that he knew was likely to result in her death, and he was reckless as to whether death ensued . There is nothing erroneous about this aspect of the judge’s charge and it properly equipped the jury to decide the issue of intent. [114] I would not give effect to this ground of appeal. C. Did the Judge Mishandle a Question from the Jury? [115] After she delivered her final instructions, the judge received a question from the jury: Could you please expand on the definition of bodily harm in Q3 (intent required for murder) versus bodily harm as described in para 109./111 for manslaughter. * Bodily Harm. Any hurt or injury….. Interfers [sic] health More than just brief/ minor . * Concept of bodily harm. That the accused knows is “likely” to cause death and reckless [Emphasis in the original.] [116] “Question 3” in the written charge asked: “Did Mr. Schneider Have the Intent Required for Murder?” It was immediately followed by these two paragraphs: [132]    To prove that Mr. Schneider had the intent required for murder, the Crown must prove beyond a reasonable doubt one of two things, either: 1.         that Mr. Schneider meant to cause Ms. Kogawa’s death; or 2.         that Mr. Schneider meant to cause Ms. Kogawa bodily harm that he knew was likely to cause her death and was reckless whether death ensued or not. [133]    In other words, you must decide whether the Crown has proved beyond a reasonable doubt either that Mr. Schneider meant to kill Ms. Kogawa, or that Mr. Schneider meant to cause Ms. Kogawa bodily harm that he knew was so dangerous and serious it was likely to kill Ms. Kogawa and proceeded despite his knowledge of that risk. [Emphasis added.] [117] Paragraphs 109–111 of the charge, also referred to in the jury’s question, instructed on the fault for the included offence of manslaughter and explained the difference between murder and manslaughter: [109]    The criminal fault in manslaughter is the commission of the unlawful act which is objectively dangerous in the sense that a reasonable person, in the same circumstances as the accused, would recognize that the unlawful act would subject another person to the risk of bodily harm. “Bodily harm” is any hurt or injury that interferes with a person’s health or comfort and is more than just brief or of a minor nature . [110]    In the offence of murder there is in addition to the unlawful act, the ingredient of either an intention to cause death or an intention to cause bodily harm that the accused knows is likely to cause death and is reckless as to whether death ensues. These are the legal differences between the offences of second degree murder and manslaughter. [111] Therefore, what distinguishes murder from manslaughter is the mental state , or what we describe in criminal law as the intent of the person causing the death. [Emphasis added.] [118] Defence counsel interpreted the jury’s question as seeking clarification on the meaning of “bodily harm” specific to murder: [DEFENCE COUNSEL]: That’s my read is they’re asking of what type of — what is bodily harm seems to be the — is it that he knew it was so dangerous and so serious it was likely to kill her or is it — is it what’s described in 109 as any hurt or injury that interferes with a person’s health or comfort and is more than just a brief or minor nature. I don’t read it that they’re asking for an expanded definition of intent. I read it they’re asking for an expanded definition of bodily harm . in 109 it’s talking about any hurt or injury that interferes with the person’s health or comfort and is more than just brief or of a minor nature. And 133, it’s bodily harm he knew was so dangerous and serious it was likely to kill her. So it may be that what they’re really looking for is the definition of bodily harm which is defined in s. 2 of the Code . THE COURT: And are you suggesting that I read out s. 2, the definition of bodily harm, in the Code? [DEFENCE COUNSEL]: Yes. I’m saying that whether you’re looking at 109 or 133, bodily harm is defined as this . It’s the same — however they’re reading this, the term “bodily harm” in both paragraphs means the same thing. [Emphasis added.] [119] Ultimately, the judge, the defence and the Crown agreed that the correct way to answer the jury’s question was to tell the jurors there is no difference in the definition of bodily harm as it applies to murder and manslaughter, and to provide them with the statutory definition of that term. [120] The judge did precisely that, using s. 2 of the Code : Members of the jury, you have asked us to expand on the definition of “bodily harm” in question 3 of intent required for murder versus bodily harm as described in paragraph 109 and 111. The bodily harm in both is the same. Bodily harm is defined in the Criminal Code in the following manner: Bodily harm means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature. And for paragraph 109, when bodily harm is mentioned in paragraph 109 and 110, and then in paragraph 134 [sic] under question 3, that is the definition of bodily harm. All right? So hopefully that responds to your question. If you have any additional questions, we will assist you with those. All right? Do you want that definition read again or …? You’re fine with it? A JUROR: [Indiscernible/not at microphone]. THE COURT: One more time? All right. I will read the definition one more time. “Bodily harm” is defined in the Criminal Code as meaning any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature. And whenever the words “bodily harm” are used in the charge, that is what is being referred to . All right? So hopefully that answers your question and we’ll adjourn. Thank you. [Emphasis added.] The jury posed no further questions. Instead, the judge was told that the jurors wanted to carry on with their deliberations. [121] The appellant says that in responding to the jury’s question, the trial judge erred in two ways: (1) she should have asked the jury for clarification on the question because it was ambiguous; and (2) she failed to answer the question correctly. Both issues involve questions of law, reviewable on a standard of correctness: R. v. Brydon , [1995] 4 S.C.R. 253 at para. 2; Housen at para. 8. [122] On the first of the alleged errors, the appellant rightly states that a trial judge “has a duty to clarify a question from the jury where there is any ambiguity or room for doubt as to the meaning of the question”: R. v. Shannon , 2011 BCCA 270 at para. 51. See also R. v. Bradshaw , 2020 BCCA 97 at paras. 19–27; R. v. Penner , 2019 BCCA 76 at para. 40; R. v. Kahnapace , 2010 BCCA 227 at paras. 49–52. [123] However, I agree with the Crown that in the circumstances of this case, seeking clarification was not necessary and the appellant has failed to establish reversible error on this aspect of his argument. [124] First, I do not see the question as ambiguous. The jury was plainly asking whether the definition of “bodily harm” is different for murder than it is for manslaughter: “Could you please expand on the definition of bodily harm … for murder versus manslaughter” (emphasis added). Second, after discussing possible interpretations of the question, the trial judge and counsel reached consensus on what was likely troubling the jury, revealing that the question was understandable. Third, the consensus adopted the position of defence counsel. The appellant suggests that the jury’s question was incapable of an answer in the absence of clarification; however, he raises that issue for the first time on appeal. Finally, the judge invited the jury to return with “additional questions” if necessary. The jury did not do so, suggesting there was no longer any confusion. This is a relevant factor for consideration in the error analysis: R. v. Layton , 2009 SCC 36 at para. 32. [125] On the second of the alleged errors, the appellant also rightly states that questions posed by a jury must be answered “clearly, correctly and comprehensively”. That is so even where the original instruction was correct: R. v. S. (W.D.) , [1994] 3 S.C.R. 521 at 530–31, 537; R. v. W.(D.) , [1991] 1 S.C.R. 742 at 759–60; R. v. Naglik , [1993] 3 S.C.R. 122 at 138–39. [126] He contends that in this case, the answer provided by the trial judge was legally incorrect. The appellant says there is a substantive difference between the degree of bodily harm required to convict an accused of murder and the degree of bodily harm required to convict of manslaughter. It is his position that s. 229(a)(ii) of the Code requires factual proof of “ very serious bodily harm”, while a conviction for manslaughter requires proof of bodily harm that is “simply more than ‘brief,’ ‘trivial’, ‘trifling’ or ‘minor’” (appellant’s factum at paras. 44–46). Consequently, the judge was wrong in law to tell the jury that the s. 2 Code definition of bodily harm applies to both offences. [127] In making that argument, the appellant relies heavily on R. v. Miljevic , 2010 ABCA 115, aff’d 2011 SCC 8. In that case, a jury convicted the accused of second degree murder. The accused admitted to committing manslaughter, but denied he had the intent required for murder. In light of the admission, the trial judge did not charge the jury on the legal elements of manslaughter. Rather, he focused the jury’s attention on whether the Crown proved the “state of mind required for murder” (at para. 39). [128] The primary issue on appeal was whether the judge “was obliged to instruct the jury on the elements of manslaughter when the accused had admitted the commission of that offence” (at para. 50). In dissent, O’Brien J.A. held that because manslaughter was a “choice left with the jury, it remained a relevant legal issue” and the trial judge “ought to have instructed more fully on that offence” (at para. 79). A full instruction was of added importance in Miljevic because after delivery of the final instructions, the jury returned with a question, asking for assistance on the difference between murder and manslaughter (at para. 42). [129] During the course of his analysis, O’Brien J.A. noted that Mr. Miljevic posited a theory about the origin of the jury’s confusion. He said the jury’s question arose from the definition of bodily harm that the trial judge used when explaining the secondary intent for murder under s. 229(a)(ii): [85]      The appellant suggests on appeal that the question may have arisen because the distinction between murder and manslaughter had been blurred for the jury in a part of the charge instructing it on the secondary intent for murder under section 229(a)(ii) of the Criminal Code . That section speaks in terms of bodily harm that the accused knew was likely to kill. However, the trial judge, during this part of his charge while defining murder, expanded upon bodily harm as meaning: . . . any hurt or injury that interferes with health or comfort, and it has to be more than something that is just brief or fleeting or minor in nature. [86] This quality of bodily harm relates to the offence of manslaughter, not murder, and may have caused some confusion for the jury and caused the jury members to diminish the intent required to establish murder . This is especially so as this erroneous part was repeated to the jury in response to its question. [Emphasis added.] [130] O’Brien J.A. was not persuaded that the manner in which the trial judge defined “bodily harm” was the source of the confusion: [87] it is not at all clear that this brief passage in the charge was the source of confusion . The trial judge, in at least two other passages, had said that in the case of bodily harm for murder, there must be either intent to kill, or intent to cause bodily harm that the accused knew was likely to kill, and he was reckless whether the victim died. [Emphasis added.] [131] However, he went on to note that Mr. Miljevic was not obliged to identify a reason for the jury’s struggle before he could succeed on his ground of appeal. What mattered was that “the jury wanted to be informed as to what, as a matter of law, constituted manslaughter. The question was directed at a relevant and live issue and [he could] think of no good reason for depriving the jury of that instruction” (at para. 88). O’Brien J.A. considered the judge’s response to the question to be inadequate (the judge simply referred the jury back to his original instructions on the intent for murder), and he would have ordered a new trial on that basis. [132] The majority in Miljevic held that “most of the grounds of appeal must fail for the reasons [given by O’Brien J.A.]” (at para. 1). This included “the defence suggestion that ‘bodily harm’ was misdefined in the charge ”, a contention that, from the majority’s perspective, appeared to be “founded on yanking one sentence totally out of its context as a definition of one thing only” (at para. 1; emphasis added). The majority then reached a different conclusion from O’Brien J.A. on the adequacy of the response to the jury’s question, finding that it was sufficient. Accordingly, they dismissed the appeal from conviction. [133] Mr. Miljevic appealed as of right to the Supreme Court. Cromwell J., writing for the majority, dismissed the appeal, concluding that the trial judge did not err in his answer to the question posed by the jury. There is no discussion by Cromwell J. of the definition of “bodily harm”. [134] It is the appellant’s position that Miljevic “authoritatively” established a legal principle that “subjective foresight is not the only significant difference between murder and manslaughter”. He says the majority decision, upheld by the Supreme Court, agreed with O’Brien J.A. that “ the degree of bodily harm required for second degree murder is qualitatively different than that required for manslaughter” (appellant’s factum at paras. 46–47; emphasis added). As a result, it cannot be that the definition of “bodily harm” in s. 2 of the Code applies to both offences, and the trial judge’s use of that definition in responding to the jury’s question amounts to reversible error. The appellant says the judge was obliged to tell the jury that the appellant was only guilty of murder if the Crown proved beyond a reasonable doubt that he inflicted “dangerous and serious” harm on Ms. Kogawa. [135] With respect, I agree with the Crown that the appellant has misinterpreted Miljevic . As I read that decision, the majority did not find that the trial judge erred in defining bodily harm under s. 229(a)(ii) as “hurt or injury that interferes with health or comfort, and [that] has to be more than something that is just brief or fleeting or minor in nature” (cited at para. 85 of the decision). At para. 1 of their reasons, the majority explicitly rejected any suggestion that the trial judge had “misdefined” the term “bodily harm” in his charge on murder. I also agree with the Crown that in upholding the majority’s decision, the Supreme Court impliedly adopted this same perspective. At paras. 2–3 of Justice Cromwell’s reasons, he distinguishes between murder and manslaughter on the basis of the accused’s mental state , not because of a difference in the meaning of “bodily harm” as applicable to each offence (2011 SCC 8). [136] In my view, the trial judge in this case was correct to tell the jury, in answer to its question, that the definition of “bodily harm” is the same for murder and manslaughter. Section 2 of the Code applies, offering a generously worded definition that allows for a “broad spectrum” of physical hurts or injuries: Cooper at 150 (per Lamer C.J. in dissent). The term “bodily harm” has long been accepted in the Criminal Code context to encompass everything from non‑transient or trifling minor injuries that resolve themselves relatively quickly, to injuries that are severe and permanent: R. v. Saulis , 2020 NBCA 36 at para. 12, citing R. v. Gejdos , 2017 ABCA 227. [137] In R. v. Murray (1994), 20 O.R. (3d) 156 (C.A.), both an original charge on murder and a recharge defined “bodily harm” under s. 229(a)(ii) using substantially the same language as s. 2. The appeal court found that the trial judge erred by not sufficiently relating the trial evidence to the subjective foreseeability of death; however, it did not take issue with the judge’s definition of bodily harm. [138] The difference between proof of murder and proof of manslaughter lies not in the degree or type of bodily harm factually inflicted by the accused. Rather, what distinguishes these offences from one another is the knowledge that accompanies the harm. Section 229(a) requires proof beyond a reasonable doubt that the accused unlawfully inflicted bodily harm with the intent to kill, or that the accused knew the bodily harm was likely to cause death, and was reckless as to whether death ensued. Trial judges commonly explain the second of these two intents using language that mirrors the majority’s discussion in Cooper : “… the Crown must demonstrate that the accused intended to cause bodily harm that he knew was ultimately so dangerous and serious that it was likely to result in the death of the victim” (at 159; emphasis added). Indeed, this wording has been incorporated into the Canadian Judicial Council’s model jury instruction on the intent for murder: To prove that ([name of the accused]) had the intent required for murder, the Crown must prove beyond a reasonable doubt one of two things, either: 1.     that (NOA) meant to cause ([name of complainant])’s death; or 2.     that (NOA) meant to cause (NOC) bodily harm that s/he knew was likel y to cause his/her death and was reckless whether death ensued or not. In other words, you must decide whether the Crown has proved beyond a reasonable doubt either that (NOA) meant to kill (NOC) , or that (NOA) meant to cause (NOC) bodily harm that s/he knew was so dangerous and serious that s/he knew it was likely to kill (NOC) and proceeded despite his/her knowledge of that risk. [ Model Jury Instructions (online), Offence 229(a): Second Degree Murder ; emphasis added.] [139] However, the purpose of including words such as “dangerous” and “serious” is not to meet a legal requirement for factual proof of a higher degree of bodily harm, or a more serious type of bodily harm, than that required for the offence of manslaughter. Instead, the words are included to assist the jury with its deliberations on the subjective foreseeability of death arising from the bodily harm alleged to have been inflicted . It is proof of subjective foreseeability of death that distinguishes murder from manslaughter. Whatever the unlawful act may consist of in a murder prosecution, it is a “vital element” of the secondary intent for that offence (s. 229(a)(ii)) that the infliction of bodily harm as part of the act be accompanied by knowledge that it was likely to cause death: R. v. Nygaard , [1989] 2 S.C.R. 1074 at 1088. The emphasis is on the accused’s awareness of the nature of the act committed against the victim, and its likely consequences, not proof of a particular form or level of bodily harm. [140] A proper instruction on the secondary intent for murder is one that ensures the jury understands that “the accused must foresee a likelihood of death flowing from the bodily harm that he or she is occasioning the victim ”: R. v. McCracken , 2016 ONCA 228 at para. 102 (internal references omitted; emphasis added). Describing that harm as “grave”, “dangerous” or “serious” alerts the jurors to the need to consider the nature of the unlawful act alleged to have been committed when they decide whether the Crown has proved, beyond a reasonable doubt, foreseeability of death. As made clear by the trial judge at para. 135 of her written charge, if a jury has a reasonable doubt about that aspect of the case, it cannot convict of murder. [141] Under s. 229(a)(ii), the jury’s focus is properly on what the accused foresaw at the time the act was committed, not the gradation of the bodily harm at issue, whether that bodily harm fell within a particular category, or whether it met a particular standard. In my view, the appellant’s position on this third ground of appeal asks the Court to effectively rewrite s. 229(a)(ii) of the Code and introduce as an essential element of the offence of murder a bodily harm threshold along the s. 2 spectrum that, if not satisfied as a matter of proof, precludes a conviction. I am not prepared to do that. In Cooper, Lamer C.J. opined that the Code’s definition of “bodily harm” provides “general guidance” on the interpretation of that term under s. 229(a)(ii) (then s. 212(a)(ii)) (at 150). In the absence of specific language from Parliament excluding the application of the definition for use in the murder provisions, I agree. [142] There is no indication from s. 229(a)(ii) that Parliament intended anything other than the s. 2 definition to apply. As aptly noted by the Crown, where Parliament has intended to qualify the term “bodily harm” for use with a particular offence, such as “grievous bodily harm” under s. 25(3) (protection of persons acting under authority), or, “serious bodily harm” under s. 83.02 (terrorism‑related offence), it has made that intention explicit (respondent’s factum at para. 68). There is no such qualification built into s. 229(a)(ii). [143] In addition to providing the jurors with the statutory definition of “bodily harm”, it would have been preferable, in my view, for the trial judge to remind the jurors, consistent with paras. 110–111 of the written charge, that “what distinguishes murder from manslaughter is the mental state” and that murder requires one of the two intents under s. 229(a). However, on the record in this case, I am satisfied that the absence of the additional explanation is not fatal. [144] In his closing submissions, Crown counsel made it clear that the bodily harm the appellant was said to have inflicted on Ms. Kogawa was the blocking of her airways through pressure applied to her nose and mouth: But the Crown doesn't necessarily have to prove the accused meant to kill Natsumi Kogawa. That's one way. It is sufficient if you're satisfied that he intended to cause Natsumi Kogawa bodily harm that he knew was likely to cause her death and was reckless whether death ensued or not. Bodily harm is defined in the Criminal Code . It says: bodily harm means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature I say applying sufficient pressure to someone's airways for a sufficient duration to render them unconscious is beyond a doubt bodily harm and that everybody knows that death is likely if you do that . [Emphasis added.] [145] The judge told the jury that to convict of murder, it had to find that the bodily harm alleged by the Crown was inflicted with an intent to kill or knowledge that it was likely to cause Ms. Kogawa’s death. The judge did not err in her instructions on the secondary intent for murder and they are not challenged in the appeal. In his closing submissions, trial counsel for the Crown also correctly informed the jury of the s. 229(a) requirements, at least four times. [146] In explaining the included offence of manslaughter, the judge drew a clear distinction between murder and manslaughter based on their respective fault requirements. In her final instructions, she included the language that the appellant says is critical to the murder analysis. The judge told the jury that the Crown had to prove “Mr. Schneider meant to cause Ms. Kogawa bodily harm that he knew was so dangerous and serious it was likely to kill Ms. Kogawa and proceeded despite his knowledge of that risk” (emphasis added). [147] Nothing in the answer to the jury’s question is inconsistent with or detracts from the instructions in the main charge. In her answer, the trial judge drew the jury’s attention back to her written charge, specifically referring to paras. 109–111. Those paragraphs included an explanation of the distinction between murder and manslaughter, with reference to the differences in intent. Trial counsel for the appellant did not ask for a further instruction. Nor did the jury return with additional questions, an avenue left open by the trial judge. The fact that the jurors continued their deliberations with the availability of the written charge, including paras. 110 and 111, mitigates the possibility of prejudice: R. v. Moo , 2009 ONCA 645 at para. 62. [148] In my view, this is not a case where the answer to the jury’s question was inconsistent with what was said in the main charge, nor was it erroneous standing on its own: Brydon at para. 19. The main charge did not contain errors that required correction in the answer. Nor did the answer to the question exacerbate an existing error or give rise to a new one: Kahnapace at para. 58. On this record, I see no reasonable possibility of the jury having been misled and convicting the appellant of second degree murder based on a diminished form of intent. [149] Accordingly, I would not accede to this ground of appeal. DISPOSITION [150] I would grant the appellant an extension of time to file his appeal from conviction to April 9, 2019. However, for the reasons provided, I would dismiss the appeal. “The Honourable Madam Justice DeWitt‑Van Oosten” Reasons for Judgment of the Honourable Mr. Justice Goepel: INTRODUCTION [151] I have had the privilege of reading in draft form the reasons of my colleague Justice DeWitt-Van Oosten. I agree with and adopt her reasons dismissing the second and third grounds of appeal. With respect, however, to the first ground of appeal, I am unable to agree with her conclusion that the trial judge did not err in admitting evidence of the phone conversation overheard by the appellant’s brother. [152] For the reasons that follow, I conclude that the judge erred in admitting the phone conversation. [153] Accordingly, I would allow the appeal and order a new trial. BACKGROUND [154] An overview of the evidence, the Crown and Defence theories, and the parties’ positions on the issues underlying the appeal have been thoroughly set out by my colleague and need not be repeated in detail. That said, I will briefly review the background to the phone conversation on which my reasons focus. [155] On September 27, 2016, after seeing a picture from a news article with the appellant and Ms. Kogawa together, the appellant’s brother, Warren Schneider Jr. (“WS”) travelled to Vernon to meet with the appellant. The appellant shared with WS some details about his relationship with Ms. Kogawa and their three dates together. [156] The next morning, the appellant told WS he planned on buying some heroin with which to kill himself. They went to a beer store, purchased alcohol, and the appellant bought $50 worth of heroin. Before the appellant injected the heroin, he told WS the location of Ms. Kogawa’s body. The appellant said Ms. Kogawa’s body was in a suitcase, and, after he killed himself, WS should tell the police the body’s location. The appellant did not tell WS that he had killed Ms. Kogawa or had otherwise caused her death. [157] The appellant failed to die from the heroin injection. After the failed suicide attempt, the appellant asked to use WS’s phone to call his wife in Japan. WS gave the appellant his phone and stood roughly ten feet away. [158] The telephone call lasted approximately 13 minutes. On voir dire, WS testified that he could only recall two specific fragments of the conversation: at the beginning, he heard the appellant ask, "Did you see the news of the missing Japanese woman, student?" and sometime in the middle of the conversation, he heard the appellant say, “I did it” and “I killed her.” WS testified that he could not remember the exact words used, nor could he remember any part of the conversation other than the two fragments. The appellant’s wife did not testify; she lives in Japan and is not a compellable witness. [159] On cross-examination on the voir dire, WS confirmed he did not recall the full conversation. He testified that he had been intentionally trying not to eavesdrop or hear what the appellant was saying. He had not heard anything the speaker on the other end of the phone had said. WS confirmed that he had given different testimony at the preliminary inquiry, where he had testified that the appellant had said, “have you heard the news in relation to Natsumi’s death?” and “I did it” or “I killed her.” WS confirmed he did not know the exact words used, but his “feeling” was that the appellant was admitting responsibility for Ms. Kogawa’s death. [160] After the voir dire, the trial judge admitted the evidence, finding there was sufficient context to allow a jury to conclude the meaning of the uttered words: RFJ. She concluded: [20]      In my opinion, it is apparent from Warren Schneider Jr.’s evidence on the voir dire that there is some evidence on which a jury could conclude the meaning of the uttered words. While he was unable to recall the exact words, Warren Schneider Jr. testified about the context of the conversation and that the gist of the conversation was that Mr. Schneider was taking responsibility for Ms. Kogawa’s death. [21]      In my view, the probative value of the evidence outweighs the prejudicial effect that it might be used improperly. The prejudicial effect can be ameliorated by a strong caution to the jury about what use can be made of the evidence. [161] After the voir dire, on cross-examination, WS confirmed that he had not overheard anything the appellant’s wife had said and that he had been trying not to eavesdrop. WS was certain that the appellant had asked his wife at the start of the conversation if she had heard about Ms. Kogawa’s disappearance. WS confirmed he did not know the exact words spoken by the appellant or if the appellant had been asked a question about Ms. Kogawa or something else when he was overheard to say “I did it” or “I killed her.” He agreed that portion of the conversation could have been completely unrelated to Ms. Kogawa. He testified that he did not know if the words “I did it” or “I killed her” had been said at the start, in the middle, or at the end of a sentence. DISCUSSION A. Overview [162] I am in general agreement with my colleague’s review of the relevant legal principles. I agree with my colleague that Ferris —on which I will comment in greater detail below—is the jurisprudential starting point for the admissibility analysis. Like my colleague, I do not believe that Ferris established a “class-based inadmissibility principle” that precludes the admission of overheard, one-sided utterances. The conversation is admissible if it is relevant to an issue and its probative value is not outweighed by its prejudicial effect. [163] The Crown sought to tender the words overheard by WS as an admission of responsibility for Ms. Kogawa’s death. I agree with my colleague that the trial judge was not required to determine whether the overheard utterances were, in fact, an admission; rather, she had to determine whether the words were capable of being an admission of responsibility for Ms. Kogawa’s death. [164] This is where I part company with my colleague. I take the view that the uttered words were not capable of being an admission of responsibility for Ms. Kogawa’s death—and are therefore not relevant and, accordingly, inadmissible. The evidence should not have been put before the jury. B. Standard of Review [165] The threshold test for the admissibility of all evidence is logical relevance. For logical relevance, the standard is correctness: R. v. Schwartz , [1988] 2 S.C.R. 443 at 482. C. The Ferris Decision [166] Before returning to the admissibility of the statements at issue in this case, I wish to first review in further detail the Ferris decision, which, as my colleague notes, is the starting point for the admissibility analysis. Mr. Ferris was charged with the murder of David Parker, his former romantic partner. Mr. Ferris was arrested for murder and taken into police custody. Staff Sergeant Schmidt was in charge of gathering and collecting evidence. Sgt. Schmidt entered the interview room that Mr. Ferris was in and advised him he would be charged with Mr. Parker’s murder. Sgt. Schmidt advised Mr. Ferris of his right to silence and his right to counsel. [167] Mr. Ferris then asked to make a long-distance phone call to his father. Sgt. Schmidt placed the telephone call and, upon reaching the accused’s father, handed the phone to Mr. Ferris. A common cloth divider separated Sgt. Schmidt’s desk from the desk used by Mr. Ferris. As Sgt. Schmidt walked towards his own desk, he heard Mr. Ferris say the words: “I’ve been arrested.” Sometime later, when Sgt. Schmidt was approximately 12 feet away from the accused, he heard him say the words: “I killed David.” Sgt. Schmidt testified he had not heard what else was being said and that it had been his intent not to hear. He did not know if the words “I killed David” had come at the beginning, middle, or end of a sentence. [168] The trial judge admitted the evidence. He said the statements were made voluntarily. He found they were relevant to the charge before the court and that it was for the trier of fact to determine the weight to be given to the statement. [169] A majority of the Alberta Court of Appeal reversed the decision. Justice Conrad, writing for the majority, framed the issue as follows: [15]      … The issue here is not whether the officer is telling the truth that the accused uttered these words, but whether any meaning can be put on the words. Are they an admission? Certainly if they are, they are relevant and highly probative. While the jury ultimately makes that decision, the trial judge must determine whether there is evidence on which they could so decide. [170] Justice Conrad went on to conclude there were no circumstances or context from which the true meaning of the words could be inferred. In this regard, she said: [17]      The facts of this case are unique in that there exist no circumstances or context from which the true meaning of the words can be inferred. It is uncontradicted that the words were part of an utterance only, and that other words passed both before and after those words. It is uncontradicted that the words could have come at the beginning of a sentence or at the end of a sentence. In fact, the words may have been a part of a question such as "You don't think I killed David?" or a statement such as "They think I killed David" or "They think I killed David but I didn't". His father could have asked him what the police think he did and he could have replied "I killed David". Those utterances do not prove any fact in issue and are not an admission of guilt. Indeed, on the basis of the uncontradicted evidence, the possibility of statements with the words "... I killed David ..." contained therein are numerous. There is no way of determining the meaning or thought to be attributed to the words. A trial judge could not ascertain, nor could the jury, the meaning of the words . The difficulty is compounded by the acknowledgement of Sergeant Schmidt that this accused was talking in a slow fashion, pausing, repeating himself or trailing off into nothing. The circumstances are all before the trial judge and he should determine whether or not the evidence is sufficient for a jury to conclude the meaning of the words. Without meaning being ascertainable the words are not relevant to any fact in issue and they have no probative value . [Emphasis added.] [171] Justice Conrad stressed that the issue was not whether the words were spoken, but whether they were capable of meaning, saying: [26]      In this case, however, it is not a question of whether the utterance was given. Here words were spoken. What is in issue here is whether or not the words were capable of meaning, for without meaning they have no relevance. The officer cannot testify as to the gist of Ferris' utterance, in this particular case it cannot be determined if "... I killed David ..." was in fact an admission he killed David. The onus rests on the Crown to prove the words have relevance. [Emphasis in original.] [172] In Justice Conrad’s view, it was impossible to ascertain the meaning of the words. In this regard, she said: [27]      In my view, the trial judge, in his ruling following the voir dire, never directed his mind to the issue of completeness and whether or not words incapable of definitive meaning could be relevant to anything. He said in his ruling that all the circumstances could be brought out and the jury could assess the weight to be given to it. What circumstances? He had all the circumstances and it was his duty to determine whether or not on the evidence before him a properly instructed jury could determine from the fragmented utterance the meaning of the whole . He did not appear to direct his mind to that issue. This is not a question of weight. The question is whether or not this accused made a statement which is relevant. If it was an admission, I agree with McClung, J.A. that it is highly probative. However, because the Crown case makes it clear words were spoken before and after, and the utterance was incomplete, it is impossible to ascertain the meaning of the words. Thus no weight can be given to it and the prejudice of its introduction is easy to contemplate . There is a real prejudice of forbidden reasoning here. There would be an enormous temptation for any trier of fact to look at the outside evidence that tends to implicate the accused in the murder, use those facts to conclude that the accused probably committed the murder, and that therefore he admitted that he did. That finding would then be used to raise the probability of guilt to a conclusion of guilt. The danger implicit in that type of circuitous reasoning is obvious. [Underline emphasis added; italic emphasis in original.] [173] Justice Conrad held that it was impossible to conclude that the words were capable of constituting an admission. Accordingly, the words were not legally probative to a fact in issue. In this regard, she explained: [31]      The trial judge must be satisfied there is some evidence upon which a jury could conclude the meaning of the uttered words. On the evidence introduced at the voir dire it would be impossible for a properly instructed jury, acting reasonably, to come to a conclusion as to what these words meant on any standard of proof. A trier of fact could not ascertain the accused's meaning when he uttered the words. Certainly, it would be impossible to conclude they constituted an admission made by the accused. Therefore the words are not logically probative of a fact in issue, are not relevant, are inadmissible and should not have been left with the jury. [Emphasis added.] [174] Justice Conrad then went on to consider the balance between probative value and prejudicial effect. In this regard, she said: [37]      The last thing to consider is the balance between probative value and prejudicial effect. The statement "... I killed David ..." has no probative value given that we do not know the words which surrounded the utterance, the utterance was just as likely to be meaningless as inculpatory or even exculpatory. In Smith, of course, they were dealing with a complete statement. Also, as mentioned earlier, this evidence could never meet the test of probative value versus prejudicial effect. The extreme prejudice is so great its exclusion must be favoured. [175] Ferris was appealed to the Supreme Court of Canada: [1994] 3 S.C.R. 756. The Court did not call upon the accused to respond to the Crown’s submissions. Justice Sopinka for the Court gave brief oral reasons dismissing the appeal. He held that even if the overheard utterance had any relevance, it should be excluded. In that regard, he said at 756: In our opinion, with respect to the evidence that the respondent was overheard to say "I killed David", if it had any relevance, by reason of the circumstances fully outlined by Conrad J.A., its meaning was so speculative and its probative value so tenuous that the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value. D. Are the Words Capable of Being an Admission [176] The starting point is whether the words “I did it” or “I killed her” are capable of interpretation as an admission of responsibility for Ms. Kogawa’s death. This engages the question of logical relevance—whether the evidence tends to make a fact more or less likely: Arp at para. 38. While I agree with my colleague that logical relevance is a low threshold, in my opinion, a jury could not give meaning to the overheard fragment. Without an ascertainable meaning, the words are not relevant to any fact in issue, and they have no probative value. As such, I find that the evidence is irrelevant and thus inadmissible. [177] In my opinion, this case is more problematic than Ferris because, in this case, the witness does not recall the actual words the accused is alleged to have spoken. Regarding the overheard fragment “I did it” or “I killed her,” WS was unable to confirm exactly which of the two phrases the appellant had said on the phone call. “I did it” and “I killed her” carry vastly different ranges of meaning. Those words are qualitatively different. Even setting aside any words that may have come before or after, the two phrases raise very different implications. [178] I would respectfully suggest that the words “I did it” said six minutes into a conversation with no surrounding context are not capable of being an admission. The words may or may not have had anything to do with Ms. Kogawa’s death. They could have had a completely innocent meaning, such as a response to a question from his wife along the lines of, “Did you send our son the game he wanted?” Answer: “I did it.” Even if the words concerned Ms. Kogawa, they are not necessarily an admission of responsibility for her death. “I did it” could refer simply to placing Ms. Kogawa’s body into the suitcase, which the appellant conceded to having done. For example, the wife could have asked, “Did you move the body?” Answer: “I did it.” [179] The words “I killed her” are, of course, more problematic and prejudicial. One can envision several circumstances in which such words might well be an admission of guilt. However, that does not inevitably follow, as the reasons in Ferris make so clear. In this case, the exact same phrase as in Ferris is an issue. Like in Ferris , one can conjure various scenarios in which the words would not be an admission. For example, the appellant could have been asked, “Why didn’t you go to the police?” Answer: “[They would think] I killed her.” [180] The problem that arises from not knowing the exact words is highlighted by the jury charge. In this regard, the judge told the jury: [79]      You heard testimony from Warren Schneider Jr. about a telephone conversation he overheard between Mr. Schneider and his wife. Warren Schneider Jr. could not hear the other side of the conversation. He testified he only heard parts of the conversation and was trying not to eavesdrop. He did not hear what was said before or after the words he overheard, and could not remember the exact words spoken by Mr. Schneider. This is something you need to bear in mind when you consider what, if any, weight can be given to Warren Schneider Jr.'s evidence about the overheard conversation . [80]      As well, Warren Schneider Jr. testified that at the time Mr. Schneider phoned his wife he had drunk a mickey of vodka and had taken heroin. You should consider whether Mr. Schneider's drug and alcohol use may have affected what he said. It is up to you to decide whether you believe Warren Schneider Jr. about what Mr. Schneider said, and what Mr. Schneider meant by the overheard words. If you are in doubt about any of that, you should ignore the evidence . [81] Unless you decide that Mr. Schneider made a particular remark or statement, you must not use it against him in deciding this case . [86]      Another witness's opinion as to what Mr. Schneider meant by his words is irrelevant to the question of what he meant. It is your job and your job alone to decide the meaning of Mr. Schneider's words , if you find he said them. [Emphasis added.] [181] The judge told the jury it was up to them to decide whether the appellant made a particular remark or statement and that they must not use it against him unless they decided he made a particular remark. With respect, there was no way the jury could determine whether or not the accused said “I did it” or “I killed her” because the witness who testified was unable to recollect what was said. [182] This problem was compounded when WS testified that it seemed to him that the appellant was “admitting” to the missing Japanese student’s death. WS’s opinion as to what the appellant meant by his words is, as the trial judge correctly told the jury, irrelevant. It was for the jury to decide the meaning of the accused’s words, and without evidence of the words spoken, it was impossible for the jury to determine the meaning of the appellant’s words. [183] In this case, there is no way of knowing what potentially was said before or after the overheard utterances. WS was also unable to overhear the other half of the conversation. Lacking these key pieces of context, there is nothing that would allow a jury to determine the meaning of the utterances in a way that is not dangerously speculative. [184] In Ferris, not knowing what preceded or followed the phrase “I killed David” made it impossible to determine if the phrase was inculpatory or exculpatory—for example: “the police think I killed David.” My colleague notes that, unlike in Ferris , the conversation in this case occurred before any police involvement, so there was no possibility that the appellant was repeating police charges or responding to a question about police allegations. The implication is the absence of police involvement eliminates the possibility that the appellant was responding to questions about what the police had thought he had done or any accusations. [185] Respectfully, I do not accede to this implication and cannot meaningfully separate this case from Ferris on that point. It is entirely possible that the appellant’s utterance was in response to anticipated police proceedings or a question from his wife about the consequences of Ms. Kogawa’s death regarding the appellant. For example, in response to the question “what will the police think?” the appellant could very well have responded, “[they will think because I hid the body that] I killed her.” Without knowing the words immediately before or after the overheard fragment, there is no way of knowing whether the fragment was part of an exculpatory or inculpatory sentence. As in Ferris, the recipient of the call did not testify to the utterance’s meaning. As such, any potential meaning is speculative at best. [186] In my view, the mere fact that WS’s “impression” or “feeling” that the appellant’s words were an admission of responsibility for Ms. Kogawa’s death is insufficient to provide a meaningful context from which meaning can be drawn, and, as will be addressed later, risks the jury engaging in forbidden reasoning to conclude the appellant’s guilt. [187] In Ferris , Justice Conrad noted that in confession cases, the “person to whom the accused speaks generally testifies as to the gist of the words spoken, notwithstanding the fact that the evidence may not be fully recorded, or that it cannot be repeated word for word. There is someone who can swear positively to the fact that the essence of the accused's words were the admission”: Ferris at para. 25. [188] In many of the cases where the exclusion of evidence on Ferris grounds was unsuccessfully sought, the witness having been a participant in the conversation was a key factor in favour of admission. [189] In Bennight , the accused allegedly had a conversation with the jail supervisor after his arrest. The accused had asked the supervisor about the victim’s condition and said that he had not intended to hurt them so badly. On voir dire , the supervisor could not recall the exact words used by the accused, testifying that it was something “along the lines” that he had been fighting but “didn’t mean to beat them up that bad”: Bennight at paras. 22–23. The defence sought to exclude the evidence on Ferris grounds, arguing that the lack of context made the statements too vague to support more than speculative meaning. On appeal, this Court upheld the trial judge’s admission of the evidence, distinguishing the situation from that in Ferris, saying: [92]      In the instant case, by contrast, the witness could testify to both the “gist” of the statement and the context in which it was made. The fact that Special Constable Cardinal-Mitchell was unable to recall the exact words spoken does not in and of itself render the statement inadmissible; the possibility of incompleteness was a matter of weight for the jury [190] In Mooring, the accused and co-accused had arrived at the witness’ house and asked him to store guns that had recently been used in the commission of a murder. The witness had limited recall of the conversation and was unsure of the exact wording used. On appeal, this Court rejected the argument that the evidence should be excluded for lack of context, finding: [25]      In my view, the evidence of Mr. MacDonald's conversation with Mr. Mooring did not suffer from the lack of context which was found to be fatal to the admissibility of the statement in Ferris . Here, the statements made by Mr. Mooring were made directly to Mr. MacDonald within a short time of the robbery and killing of Mr. Kimberley. The statements were made in the context of Mr. Mooring's request to store two guns at Mr. MacDonald's residence. One of those guns was proven by other evidence to have been that which was used to shoot Mr. Choquette. [Emphasis added.] [191] In both Bennight and Mooring , the witness had been an active participant in the conversation—they had not merely overheard a conversation fragment. Their testifying as to the gist of the conversation was relevant because their impression had been formed by hearing the entirety of the conversation in context. Despite the lack of complete recollection in either case, the evidence was properly left with the jury to assess, with the incompleteness going to weight. [192] Unlike Bennight, however, the issue in this case is not one of completeness but one of relevance. WS was not a party to the conversation. He had been, by his own admission, trying not to eavesdrop on the conversation, and he could recall only the smallest fragments of the conversation—the exact wording of which he was not even able to recall. That he testified to the gist of the conversation is, at best, speculative, as he had been unable to overhear the full conversation in context, lacking the words being said on the other end of the phone. [193] The above is not to imply that one-sided overheard conversations are presumptively inadmissible. However, the inability to hear both sides of the conversation increases the difficulty of ascribing meaning to any overheard utterances. [194] In Alcantara , the court upheld as admissible overheard sentences despite the other half of the conversation being indiscernible. In Alcantara, phone conversations between the accused and various other people had been intercepted by police. In one of these conversations, three complete sentences by the accused had been recorded. However, immediately before and after were unintelligible statements made by the person with whom the accused was speaking. The accused’s sentences had been recorded in full, so there was no difficulty in ascribing meaning to them, even if the other half of the conversation had not been recorded. Further, the impugned statements were not the only intercepted communications. Dozens of communications had been intercepted, allowing a better understanding of what the overheard sentences intended to communicate. [195] In Yates , a sheriff had overheard part of a conversation between the accused and two other prisoners in the back of the sheriff’s van. The sheriff overheard and recorded in his notebook within an hour after the statements were made several comments by the accused, who sought to exclude them on Ferris grounds. The court distinguished Ferris as having only contained a small snippet of a statement, further noting that while the witness did not overhear the entirety of the conversation, he actively “paid attention to the conversation once he determined [Mr. Yates] was talking about his crime”: Yates at para. 20. [196] I do not think this is a case similar to Yates or Alcantara . In both Yates and Alcantara , full sentences were recorded, limiting, if not obviating, the need for the witness to testify as to their gist. Meaning could readily be drawn from them, and they did not suffer from the problems posed by the fragments in Ferris and in this case. [197] My colleague relies on Herntier , where the accused had told a witness before he was charged with any offence that he had killed someone. The accused argued that the statement had no, or little, probative value because it lacked context, in that the witness could not provide either a date for the statement or an explanation of the surrounding discussion to link the statement to the killing of the deceased. The Manitoba Court of Appeal distinguished Ferris and the Ontario Court of Appeal decision in Hunter and held the evidence was properly admitted because there was context that gave meaning to the words. They reasoned: [267]    In the present case, there is context that gives meaning to the words. The words "I killed someone" could constitute an admission. The context that distinguishes this case from Ferris and Hunter is the phrase that immediately followed, that "nobody would miss this person; scum, piece of shit person." This addresses the issue of an innocent explanation for the words. [198] There is a distinction between a third-party overhearing part of a conversation and the incomplete recollections of a party to the conversation. If the witness was a party to the conversation, their testimony as to the gist is equivalent to their testifying as to what was said—albeit in a less persuasive fashion than if they had recalled the exact words spoken to them. But, crucially, they were still the party to whom the accused was speaking. A third-party testifying as to the gist of a conversation in which they only overheard one speaker is engaged not in recollection but speculation. In this case, WS is necessarily speculating as to what meaning “I did it” or “I killed her” had. [199] Unlike my colleague, I am unable to substantially distinguish the present case from the circumstances in O’Reilly . While I concede that the evidentiary foundation in O’Reilly was less detailed than in the present case, the key deficiencies present in O’Reilly are also present here. WS did not hear the words spoken before or after the key fragment. He admitted that he did not know the exact words used, and he testified that he was intentionally trying not to hear what was being said. [200] I would also refer to the Ontario Court of Appeal decision in Hunter . In Hunter , the accused was convicted of using a firearm while committing an indictable offence, aggravated assault, and possession of a prohibited weapon. On the day of the appellant’s preliminary hearing, a bystander testified that he overheard the appellant say to his lawyer, “I had the gun, but I didn’t point it.” After a voir dire , the trial judge admitted the evidence despite the words before and after the overheard utterance not being before the court. He found the jury could determine the meaning of the overheard words and that it was for them to decide if the accused had made the statement and what value it should be given. [201] The court noted that the facts before it closely paralleled those in Ferris . They referenced Justice Conrad’s reasons and her conclusion that a properly instructed jury could not determine from the fragmented utterance the meaning, either of the whole thought or the overheard words themselves. Hence, the words were not probative to a fact in issue and were therefore irrelevant and inadmissible. The court, applying principles derived from Ferris, excluded the evidence. In that regard, they said: [19]      In my view, Sopinka J.'s reasoning is anchored in the important role that context can play in giving meaning to spoken words. Where an overheard utterance is known to have a verbal context, but that context is itself unknown, it may be impossible to know the meaning of the overheard words or to otherwise conclude that those words represent a complete thought regardless of context. Even if the overheard words can be said to have any relevance, where their meaning is speculative and their probative value therefore tenuous yet their prejudicial effect substantial, the overheard words should be excluded. [20]      When the principles derived from Ferris are applied to this case, I think the evidence must be excluded as it was in Ferris . The only possible relevance of the overheard utterance is if it could be found to constitute an admission by the appellant that he had a gun. Here, as in Ferris, the trial judge found that the overheard utterance had a verbal context, which is unknown and that it was part of a fuller statement. That statement may have been a statement such as "I could say I had a gun, but I didn't point it, but I won't because it is not true" or "What if the jury finds I had a gun but I didn't point it – is that aggravated assault?" Neither would constitute an admission. Indeed, given the reasoning of the trial judge, had these possibilities been pointed out to him he might well have reached a different conclusion. [21]      In my view, without the surrounding words, it would be impossible for a properly instructed jury to conclude that the overheard utterance was an admission or perhaps even what it meant. Clearly its meaning remains highly speculative. The trier of fact would have to guess at the words that came before and after to fix on a meaning. Since its meaning is highly speculative, its probative value is correspondingly tenuous. However, the substantial prejudicial effect is obvious. This balance clearly favours exclusion of the overheard utterance and, as in Ferris , that should have been the result. [202] My colleague suggests that this case is qualitatively different from Ferris because in Ferris , the Crown did not adduce any “informing context” from which the trier of fact could determine the meaning of the words, “I killed David.” In her reasons, she indicates that in this case, there was far greater context to inform the meaning of the utterances, identifying several items to that effect. [203] The term “context” must be used with care. The New Oxford Dictionary of English defines context as “the circumstances that form the setting for an event, statement, or idea” and also as “the parts of something written or spoken that immediately precede and follow a word or passage and clarify its meaning.” I will refer to the first definition as “macro-context” and the second as “micro-context.” [204] The items referenced by my colleague are all part of the macro-context. They form the setting for the appellant’s statement. An examination of the two judgments in the Alberta Court of Appeal indicates that the macro-context in Ferris was not dissimilar to the case at bar. Those circumstances include: Staff Sergeant Schmidt’s job was to gather and corroborate the evidence. Mr. Ferris and David Parker had, at some time before the killing, shared an apartment in a romantic relationship. At the time of the killing, they had separated, and Mr. Ferris had left the apartment and was living in a hotel room. Mr. Ferris reported the death of Mr. Parker by telephone to the city police on the morning of October 22, 1989. When the police arrived at Mr. Parker’s apartment, they found Mr. Ferris beside Mr. Parker’s dead body. Mr. Ferris was spotted with the deceased’s blood. Mr. Parker’s death had been caused by ten stab wounds. He had not been robbed. The suite had not been forcibly entered, but there was evidence of a violent struggle having taken place within it. Upon his arrest, Mr. Ferris admitted having been in Mr. Parker’s apartment the night of the murder. Mr. Ferris was taken into custody. He was in an interview room when Sgt. Schmidt entered the room and advised him he would be charged with murder and advised him of his rights to silence and counsel. Mr. Ferris asked to make a long-distance telephone call to his father. Mr. Schmidt placed the telephone call to Mr. Ferris’ father and, upon reaching the accused’s father, handed the phone to Mr. Ferris. Mr. Schmidt walked away. He heard the accused say the words, “I’ve been arrested.” Sometime later in the conversation, Sgt. Schmidt heard Mr. Ferris say the words, “I killed David.” Sgt. Schmidt did not hear the conversation before, after, or in-between the two overheard fragments. [205] What was missing, however, in Ferris and in the case at bar, is any micro-context. In neither case is it known what was said before or after the overheard words. Absent such micro-context, it is not possible to determine the meaning of the spoken words. As the Ontario Court of Appeal said in Hunter, “without the surrounding words, it would be impossible for a properly instructed jury to conclude that the overheard utterance was an admission”: Hunter at para. 21. [206] I am of the view that no properly instructed jury could conclude that the overheard fragment was an admission. Accordingly, it is not relevant and should not have been put before the jury. It was an error to admit the evidence. [207] Given this conclusion I need not consider the appellant’s alternative submission that the evidence should have been excluded on the basis that its prejudicial effect outweighed its probative value. DISPOSITION [208] In the result, therefore, I would grant the appellant an extension to file his appeal from conviction, allow the appeal, and order a new trial. “The Honourable Mr. Justice Goepel” I AGREE: “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Orr, 2021 BCCA 42 Date: 20210203 Docket: CA45726 Between: Regina Respondent And Arlen Jeffrey Orr Appellant Before: The Honourable Mr. Justice Groberman The Honourable Madam Justice DeWitt‑Van Oosten The Honourable Mr. Justice Grauer On appeal from: An order of the Supreme Court of British Columbia, dated April 9, 2018 ( R. v. Orr , Victoria Docket 168272‑2). Counsel for the Appellant (via videoconference): D.J. McKay Counsel for the Respondent (via videoconference): O.L. Bick Counsel for the Applicant, Office of the Chief Judge (via videoconference): E.V. Gottardi, Q.C. C.V. van Wiltenburg Place and Date of Hearing: Vancouver, British Columbia December 8, 2020 Place and Date of Judgment: Vancouver, British Columbia February 3, 2021 Written Reasons by: The Honourable Madam Justice DeWitt‑Van Oosten Concurred in by: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Grauer Summary: The appellant seeks to overturn two convictions for possessing drugs for the purpose of trafficking and one conviction for possessing a prohibited weapon. He says the trial judge erred in dismissing Charter applications filed at trial in which the appellant sought the exclusion of evidence and a stay of proceedings. Held: Appeal dismissed. The trial judge did not err in summarily dismissing the appellant’s claim under s. 8 of the Charter; finding that police had reasonable grounds for the appellant’s warrantless arrest; or concluding that the appellant did not prove an abuse of process within the meaning of s. 7. The Court also denies an application for a permanent sealing order and publication ban specific to a record filed at trial. Reasons for Judgment of the Honourable Madam Justice DeWitt‑Van Oosten: Introduction [1] This is an appeal from three convictions: two for possessing drugs for the purpose of trafficking and one for possessing a prohibited weapon. [1] [2] At his Supreme Court trial, the appellant filed Charter applications seeking the exclusion of evidence under s. 24(2) and a stay of proceedings under s. 24(1). The applications invoked ss. 7, 8 and 9 of the Charter. They did not succeed. [3] With that outcome, the appellant consented to the admission of Crown evidence sufficient to prove the three offences. He did not call a defence. Instead, he invited the trial judge to convict, presumably with a view to challenging the three convictions on appeal. With the Crown’s consent, the trial judge entered acquittals on all remaining counts on the Indictment. [4] The appellant says the trial judge committed reversible error in his Charter rulings and the convictions should be overturned. He says the judge wrongly deprived him of an evidentiary voir dire to challenge a search warrant; incorrectly found that police had reasonable grounds for a warrantless arrest; and should have stayed the charges against him on the ground of abuse of process. [5] I am of the view that the trial judge properly dismissed the constitutional claims and there is no principled basis for setting aside the convictions. Accordingly, I would dismiss the appeal. Background [6] The appellant’s convictions arose from a 2016 investigation conducted by the Victoria Police Department (“VicPD”). Three confidential informers told police that the appellant was trafficking in drugs. As a result, VicPD initiated surveillance. Surveillance [7] The surveillance occurred over six days in April and May 2016 and focused on the apartment building in which the appellant lived. Police also had information that tenants in that building had complained about the appellant trafficking in drugs. [8] During the surveillance, police observed activity they believed was consistent with drug trafficking. This included the appellant thrice leaving the apartment building and getting into a vehicle for a short period. On five occasions, people known or suspected to be involved in the drug trade entered the building at the appellant’s invitation and remained there for short periods. On two occasions, police saw people who left the appellant’s company conduct a hand‑to‑hand transaction with someone else or get into a vehicle for a short period. Search Warrant [9] On May 10, 2016, police obtained a warrant to search the appellant’s apartment. The Information to Obtain (“ITO”) included the intelligence from the confidential informers; the complaints by other residents of the apartment building; observations made during the surveillance; and the appellant’s criminal record, including a prior conviction for possessing drugs for the purpose of trafficking and three convictions for weapons offences. The ITO also indicated that police conducted a warranted search of the appellant’s residence in 2013 (a different location) and located 14.9 grams of cocaine, 11.8 grams of heroin, two cell phones and $1,128 in cash. The company that managed the appellant’s apartment building in 2016 confirmed he was a tenant in the building. This too was included in the ITO. Warrantless Arrest [10] On May 11, 2016, members of the Greater Victoria Emergency Response Team (“ERT”) arrested the appellant for possessing a controlled substance for purposes of trafficking. The arrest occurred away from his apartment. Police executed the search warrant after the arrest. In opening the apartment door, they used keys that were in the appellant’s possession when arrested. The search revealed 30 pills containing ketamine and fentanyl; 15.4 grams of “pebbled heroin and fentanyl”; 122 grams of caffeine; multiple score sheets; a working digital scale; $5,005 in cash; a money counter; an iPhone; a machete; six knives (one of which was a prohibited push dagger); and a baton. Charges and Unendorsed Arrest Warrant [11] Eight days after the search of the apartment (May 19, 2016), an Information was sworn charging the appellant with various drug and weapons offences. A justice of the peace issued an unendorsed warrant for the appellant’s arrest. [12] The trial judge found that police did not execute the arrest warrant until August 11, 2016. The arrest did not produce evidence relevant to the drug prosecution. Charter Applications at Trial [13] For purposes of his trial, the appellant gave written notice of two Charter applications. The applications raised multiple allegations of constitutional non‑compliance by police and others in the criminal justice system. [14] The appellant claimed that the search of his apartment on May 11, 2016, and the related seizures, were unreasonable in violation of s. 8 of the Charter because the ITO did not provide a sufficient basis for the warrant. He said the warrantless arrest preceding the search violated s. 9 because it was not supported by reasonable grounds. He claimed that the warrant for his arrest that issued on May 19, 2016, constituted an abuse of process in violation of s. 7 of the Charter because: only a summons was permitted in the circumstances; police took too long to execute that warrant; and the process for issuing the warrant was deficient as it had not been recorded. [15] In the first of his two Charter notices, the appellant sought the exclusion of evidence under s. 24(2). In his second notice, he added the remedy of a stay of proceedings into the mix, invoking s. 24(1). In addition to the Charter notices, the appellant asked the judge to issue “direction[s]” to all justices of the peace in British Columbia on the proper procedures for issuing an arrest warrant, including maintaining a producible record for purposes of review. [16] The Crown agreed that the complaint about the warrantless arrest on May 11, 2016, justified an evidentiary voir dire . However, it asked that the trial judge summarily dismiss the other Charter challenges on the basis that they carried no reasonable prospect of success. Rulings of the Trial Judge [17] The trial judge first addressed the challenge to the unendorsed arrest warrant issued on May 19, 2016: R. v. Orr , 2017 BCSC 2701 (“RFJ‑1”). [18] Citing R. v. Vukelich (1996), 108 C.C.C (3d) 193 (B.C.C.A.) , the Crown asked that this complaint be summarily dismissed on the ground that the appellant was unable to show the warrant did not comply with the requirements prescribed by s. 507(4) of the Criminal Code , R.S.C. 1985, c. C‑46. Nor was there evidence to support the appellant’s suggestion that the process by which the warrant issued and its execution constituted an abuse of process within the meaning of s. 7 of the Charter. [19] The judge deferred his ruling on this challenge until completion of the enquiry into the validity of the search warrant executed on May 11, 2016. He thought it possible that during the s. 8 application, evidence might become available for the defence in support of its challenge to the arrest warrant. The appellant had also indicated he might call a justice of the peace to testify about the “general process of authorization for warrants versus a summons”, and that he wanted to cross-examine the police officer who obtained the arrest warrant (RFJ‑1 at para. 10). The judge adjourned the first Charter issue and granted the appellant leave to raise it again after completion of the hearing on the search warrant. [20] The s. 8 challenge was next in line. The judge’s findings on this enquiry are indexed as R. v. Orr , 2017 BCSC 2702 (“RFJ‑2”). [21] The appellant said the search of his apartment was unreasonable because the authorizing warrant was invalid. The ITO “contained information that was prejudicial and unnecessary” (RFJ‑2 at para. 6). This included, but was not limited to, the appellant’s full criminal record and reference to a 2013 search of his then‑residence that resulted in a drug seizure but no criminal charges. [22] The Crown opposed an evidentiary voir dire on the search warrant, again citing Vukelich . It argued that the material complained of was properly included in the ITO, and, in any event, even if the judge were to excise that material, there remained “ample evidence” to support the warrant (RFJ‑2 at para. 10). As such, the warrant could have issued and the application to have it declared invalid carried no reasonable prospect of success. [23] The trial judge reviewed the entirety of the 37‑page ITO. He dismissed the s. 8 Charter claim, concluding that: even if the challenged portions of the information to obtain are excised, what remains is sufficient to satisfy the test of reasonable grounds for the search. It follows, therefore, that on the authority of R. v. Vukelich , I find that there is no reasonable prospect that the accused will be successful in having the warrant quashed, and I conclude that conducting a hearing into the validity of the search warrant would be a waste of judicial resources. See also R. v. Cody , 2017 SCC 31 at para. 38. [RFJ‑2 at para. 27.] [24] At this point, the judge returned to the complaint about the arrest warrant from May 19, 2016, and asked appellant’s counsel whether he had further submissions to make based on the s. 8 Vukelich hearing. There were no further submissions. [25] The judge proceeded to review ss. 507(1)–(4) of the Code , which enumerate the requirements for the issuance of process to compel an accused to attend court in a prosecution commenced by the federal or provincial Attorney General. He noted there was no material before him showing “what was placed before the justice of the peace” in this case, or detailing the process that was followed (RFJ‑2 at para. 34). [26] The appellant sought to argue there was “no reason” for an arrest warrant. There were no grounds to believe a warrant was necessary in the public interest (as required by s. 507(4)). There was “no indication that the police had any concerns about where the [appellant] was at any time between the time of the search and the issuance of the [arrest] warrant, or that any restriction was sought to be placed on the [appellant’s] movements or liberty in support of the public interest” (RFJ‑2 at para. 35). [27] The judge decided the appellant should be allowed to pursue this challenge by way an evidentiary voir dire : [36]      The difficulty that transpires in a case of this nature is that the hearing before the justice of the peace is ex parte . It may be that there was ample evidence placed before the justice of the peace to support the issuance of a warrant, particularly an unendorsed warrant, but we are not aware of what that was. That, in my view, is an unsatisfactory result as it is clear that the justice of the peace is obliged to meet the test of reasonable grounds to justify a warrant before issuing one. [37]      For the accused to explore that issue, there must be something by way of material that can be assessed and spoken to, either by submissions of counsel and perhaps supplemented with an affidavit. In this case, there is nothing. The only way that the accused can probe that particular issue is in the context of a voir dire where the police officer who presented the material can be questioned as to what material was placed before the justice of the peace. It may also be that a justice of the peace can be called and questioned about the general process, not the actual conduct of a judicial act, but the process that is typically followed and how information is recorded and presented at an ex parte hearing. [RFJ‑2.] [28] Before moving into that voir dire, the judge addressed a third of the appellant’s constitutional complaints, namely, the lawfulness of the arrest without a warrant on May 11, 2016. The judge’s ruling on that issue is indexed as R. v. Orr , 2017 BCSC 2703 (“RFJ‑3”). [29] Members of the ERT arrested the appellant on the same day police searched his apartment. The appellant argued police did not have reasonable grounds for the arrest and, as a result, it was arbitrary, in violation of s. 9 of the Charter. An evidentiary voir dire proceeded with the Crown’s consent. One witness testified: Sgt. Philip. He was involved in the surveillance that preceded the warrantless arrest. In his ruling, the trial judge reviewed the evidence of Sgt. Philip. He also reviewed s. 495(1) of the Code , which sets out the criteria for a warrantless arrest, and a leading Supreme Court authority on the legal standard applied under that provision: R. v. Storrey , [1990] 1 S.C.R. 241. The judge found, as a fact, that “the police officers who effected the arrest of the [appellant] honestly believed that the [appellant] was, at the time of his arrest, in possession of a controlled substance for the purpose of trafficking” (RFJ‑3 at para. 28). He also found that the information known to police at the time of the arrest “satisfie[d] the objective criteria sufficient to justify the arrest” (at para. 29). He dismissed the challenge to the lawfulness of the warrantless arrest. [30] Notwithstanding this conclusion, the judge went on to address a further issue. The evidence on the voir dire “suggest[ed]” to him that the appellant was “held in custody for some period of time” after his arrest, and then released without appearing before a justice of the peace or being rendered subject to a process compelling him to attend court. It also “appear[ed]” that the appellant was released after the search of his residence had been completed. As a result, the judge considered it important to remind “counsel and the police” that: [32]      … the purpose of an arrest is to take the accused before a justice so as to bring him under the authority of the court or to compel him to comply with conditions that are set, most of which consist of his adhering to the conditions that the court or the system of justice imposes upon him. [35]      … It appears that there is a common practice of arresting an accused at the time that a search is being conducted, and I question whether such practice is within the authority of the Criminal Code . [RFJ‑3.] [31] The next matter addressed was an application to reopen the s. 8 challenge to the search of the appellant’s apartment. The Crown opposed the application, taking the position that additional submissions would not change the previous outcome (dismissal). [32] The appellant said the evidence provided by Sgt. Philip on the voir dire relating to the warrantless arrest revealed material omissions and misstatements in the ITO. The result was a stronger foundation from which to argue that the search warrant was invalid and that the evidence obtained under the warrant should be excluded from trial. [33] The judge dismissed the application to reopen. His reasons are indexed as R. v. Orr , 2018 BCSC 2473 (“RFJ‑4”). The judge reviewed the information the appellant said had emerged from the s. 9 voir dire and concluded that the ITO “touche[d]” on some of those issues (RFJ‑4 at para. 9). Moreover, to the extent that the additional information revealed omissions or misstatements in the ITO, they were not of a “kind or nature that could lead to a finding that the issuing justice was misled in a way that could result in the warrant being set aside or the evidence obtained being excluded” (at para. 12). [34] That took the judge back to the complaint about the unendorsed arrest warrant that issued on May 19, 2016. By this point, the appellant had reshaped his constitutional claim on that issue. He had transitioned from a request for the exclusion of evidence under s. 24(2) of the Charter to an application for a stay of proceedings under s. 24(1) . The asserted basis for the stay was two‑fold. The appellant contended: (1) that an arrest warrant was not necessary in the public interest and therefore unlawful; and (2) that the process by which the warrant had issued was deficient. The Crown asked that the application for a stay of proceedings be dismissed on the ground there was no reasonable prospect of success. The judge rejected that argument and the matter moved into an evidentiary voir dire : R. v. Orr , 2018 BCSC 2474 (“RFJ‑5”). [35] The ruling on the s. 24(1) application is indexed as R. v. Orr , 2018 BCSC 1626 (“RFJ‑6”). Two witnesses testified on the voir dire : the police officer who swore the Information charging the appellant with drug and weapons offences (Cst. Mutch); and a justice of the peace who described, generally, the procedures surrounding the swearing of an Information and the concomitant issuance of process (Justice of the Peace (“JP”) Erickson). [36] In his ruling, the trial judge described the requirements under s. 507(1)–(4) of the Code as follows: [32]      … The justice of the peace must be satisfied upon hearing the facts of the case that the informant has reasonable and probable grounds to believe and does believe that the facts alleged in the information are true. The information is given upon the oath of the officer or, in the case of a private prosecutor, the person preferring the information. If so satisfied, the justice then turns to the question of whether or not to issue process. In doing so, the justice must have regard to the purpose of the process, which is to bring the accused under the jurisdiction of the court. [33]      The justice should be guided by the seriousness of the offence, as well as whether or not the accused is known to reside in the community, whether he or she will respond to a summons, and/or whether it is possible to serve a summons effectively, whether the accused is likely to commit further offences or to interfere with potential witnesses. There may be other factors to be considered, but those are some of them. The Crown may seek a warrant on the ground that it is necessary to arrest the accused, so that conditions can be imposed upon the accused to control his or her behaviour while awaiting trial. That, in my view, is a suitable framework for the analysis of the justice of the peace. I do not intend it to be an exhaustive analysis, but only some of the important factors that seem to arise in most cases. [RFJ‑6.] [37] Applying this analysis to the case, the judge dismissed the application for a stay of proceedings. He found that the appellant did not prove an abuse of process. There were “ample grounds upon which to base the issuance of the [I]nformation” (RFJ‑6 at para. 34). There was also “no evidence” showing that the justice who accepted the Information and issued the arrest warrant “did not comply with s. 507 and the process of an official is presumed to be conducted properly” (at para. 38). [38] The appellant also argued that justices of the peace should record all proceedings under s. 507. The absence of a recording was said to render the process for issuing an arrest warrant abusive because it precludes transparency for purposes of review. The trial judge rejected that argument, holding t here “is no need for an actual recording” (RFJ‑6 at para. 40). On this point, he also agreed with the comments of Ewaschuk J. in R. v. Whitmore (1987), 41 C.C.C. (3d) 555 (Ont. S.C.), aff’d (1989), 51 C.C.C. (3d) 294 (Ont. C.A.), stating that s. 507 of the Code (then s. 455.3) does not mandate a recording. [39] These conclusions were sufficient to dispose of the application under s. 24(1). However, the trial judge went on to express the following views. First, he opined that there is no “authorization in law to simply sit on a warrant or delay the arrest for any other purpose”. Second, there is “no authority in law to arrest someone to expedite the search of a residence or any other execution of a search warrant”. Third, when police attend before a justice to swear an Information and seek process, they “should have a notation of the reasons why a warrant, either endorsed or unendorsed, is sought at the first instance rather than a summons”. Finally, the reasons for the warrant “should be articulated to the justice of the peace” (RFJ 6 at paras. 36, 37, 40). [40] At the conclusion of his ruling, the judge expressed hope that his comments would be “considered by the Attorney General”, so that if an appropriate process is not being followed under s. 507 of the Code , it will be (RFJ‑6 at para. 42). Issues on Appeal [41] In his factum, the appellant makes substantive submissions on three main issues. He says the trial judge erred by: (1) summarily dismissing the s. 8 challenge; (2) finding there were objectively reasonable grounds for the warrantless arrest and therefore no violation of s. 9; and (3) concluding that issuance of the unendorsed arrest warrant did not give rise to an abuse of process under s. 7 of the Charter . I will resolve the appeal on those bases. [42] There is an ancillary issue to address. The Office of the Chief Judge of the Provincial Court of British Columbia (“OCJ”) has applied for a permanent sealing order and publication ban specific to an excerpt from a justice of the peace training manual that was provided to the judge at trial, and referred to by appellant’s counsel in his submissions on the s. 7 voir dire . I will address that issue at the end of my reasons. Discussion General Principles Applicable to Charter- based Claims [43] Before turning to the grounds of appeal, I consider it helpful to set out some well‑established principles governing Charter applications in the criminal trial context. These principles may appear trite to some, but they are germane to the issues raised by the appellant and worth repeating. [44] First , the applicant for a Charter remedy bears the overall burden of proving an infringement or denial of a constitutionally protected right or guarantee on a balance of probabilities. In some cases, that burden may be met by establishing a prima facie set of facts that triggers a presumption the Crown is then unable to rebut (such as the presumptive unreasonableness of a warrantless search). As another example, the applicant might establish an arrest (or detention) and, in response, the Crown is unable to justify the lawfulness of the liberty interference. Even in those circumstances, however, it remains the applicant’s overall burden to prove that the impugned state conduct violated the Charter . ( R. v. Duerksen , 2018 BCCA 46 at paras. 25, 35; R. v. Lotfy , 2017 BCCA 418 at para. 32, leave ref’d [2018] S.C.C.A. No. 14; R. v. Sadikov , 2014 ONCA 72 at para. 35 ; R. v. Harper, [1994] 3 S.C.R. 343 at 354 ; R. v. Collins , [1987] 1 S.C.R. 265 at 277–78.) [45] Second , constitutional claimants that seek the exclusion of evidence under s. 24(2) or an individualized remedy under s. 24(1) of the Charter must support their application for a remedy with a factual foundation. Allegations of constitutional violation cannot exist in a factual vacuum, or rely for their proof on conjecture, speculation, or the unsupported submissions of counsel. ( R. v. Fournier , 2019 ABCA 265 at para. 9: R. v. Patry , 2018 BCSC 591 at paras. 30–33; MacKay v. Manitoba , [1989] 2 S.C.R. 357 at 361–62; Collins. ) [46] Third , there is no automatic entitlement to an evidentiary voir dire in a Charter claim. As a result, where there is no reasonable likelihood that a voir dire can assist in determining the issues before the court, or no reasonable prospect of success in proving an infringement or obtaining the sought‑after relief, a trial judge has clear jurisdiction to decline an evidentiary voir dire and to summarily consider and dismiss the application. ( Vukelich ; R. v. Greer , 2020 ONCA 795 at para. 108; Trans Mountain Pipeline ULC v. Mivasair , 2020 BCCA 255 at paras. 49–52; R. v. Edwardsen , 2019 BCCA 259 at para. 62, leave ref’d [2019] S.C.C.A. No. 337; R. v. Vickerson , 2018 BCCA 39 at para. 61; R. v. Frederickson , 2018 BCCA 2 at paras. 11–14, 24, 26, 33, 39; R. v. Joseph , 2018 BCCA 284 at paras. 20–25; R. v. Cody , 2017 SCC 31 at para. 38; R. v. Mehan , 2017 BCCA 21 at paras. 43–47, 49; R. v. Pires, R. v. Lising , 2005 SCC 66 at para. 35.) [47] Fourth , a trial judge is entitled to revisit a Charter ruling made during the trial. However, that power is limited and to be exercised only when necessary because of a material change of circumstances or other development that renders a re‑opening in the interests of justice, and not if it results in an unfair proceeding. ( R. v. Slemko , 2020 BCCA 207 at para. 52; R. v. R.V. , 2018 ONCA 547 at paras. 98–103, rev'd on other grounds, 2019 SCC 41; R. v. Le , 2011 MBCA 83 at para. 123.) [48] Fifth , a decision to decline an evidentiary voir dire , or to re‑visit that ruling, will attract significant deference on appeal. ( Greer at paras. 108–109; Vickerson at paras. 61–62; R. v. M.B. , 2016 BCCA 476 at paras. 45–47; Pires, Lising at para. 47.) [49] With these principles in mind, I turn to the grounds of appeal. Did the trial judge err in summarily dismissing the s. 8 challenge? [50] The trial judge dismissed the challenge to the search warrant after a Vukelich hearing. The appellant says the judge went too far in summarily resolving his s. 8 claim. The “intent of the Vukelich hearing [is] to determine if there is an articulable basis to conduct a voir dire ”. Instead of asking himself that question, the appellant says the judge invited full submissions on the likely outcome of any such voir dire and assessed the relevant evidence before it was even adduced, prematurely making dispositive findings on the validity of the warrant (appellant’s factum at paras. 93–94). [51] The appellant contends that the judge’s approach to the s. 8 claim extended well beyond that contemplated by Vukelich . Moreover, it employed a screening methodology that he says engenders trial unfairness. If the Crown’s application for summary dismissal is not successful after the type of Vukelich hearing conducted in this case, and the s. 8 challenge proceeds to an evidentiary voir dire , the Crown unfairly receives two full opportunities to defeat the defence claim for Charter relief. Where the Vukelich application is successful, the appellant contends the approach adopted by the trial judge irreparably taints any subsequent request to reopen the s. 8 ruling because the court has already made conclusive findings in respect of the ITO. [52] The Crown says there is no basis on which to interfere with the judge’s exercise of discretion in dismissing the s. 8 challenge. He was entitled to manage the trial in this manner and to reduce the amount of court time spent on a Charter application that bore no reasonable prospect of success. The appellant made thorough submissions on the issues he wanted to raise with the judge. The judge had opportunity to read the entirety of the ITO; he reflected on the matter overnight; and then (correctly), the judge determined that the appellant would not be able to establish warrant invalidity. To declare an evidentiary voir dire in those circumstances would have wasted judicial resources. [53] The standard of appellate review governing the summary dismissal of a Charter claim was set out this way by Bennett J.A. in Vickerson : [61] The discretion to decline to hold a voir dire is founded in the need for trial judges to control the course of proceedings and to not embark upon enquiries that will not assist the real issues in the trial: M.B. at para. 45. These case management powers are a critical tool that trial judges should use to minimize delay : R. v. Cody , 2017 SCC 31 at para. 38, citing Vukelich with approval on this point. [62] Absent an argument on appeal demonstrating that the trial judge’s discretion in declining to hold a voir dire was not exercised judicially, this Court cannot and should not disturb such rulings. [Emphasis added.] [54] The importance of the deferential standard cannot be overstated. As explained by Charron J. in Pires, Lising , without deference to the discretionary exercise of case management powers, judges are “likely to embark upon many unnecessary hearings rather than risk vitiating an entire trial,” and the trial court’s “power to control the proceedings then becomes more illusory than real” (at para. 47). Such a result would be antithetical to the increased jurisprudential calls to avoid unnecessary delay in criminal proceedings and the “special role” judges play in heeding that call: R. v. Jordan , 2016 SCC 27 at paras. 41, 45, 114, 116, 139; Cody at paras. 1, 36–39; R. v. Thanabalasingham , 2020 SCC 18 at para. 9. [55] After reviewing the record in this case, I am not persuaded the trial judge failed to exercise his discretion judicially in dismissing the s. 8 challenge, both at first instance and following the application to reopen. As a result, there is no basis for appellate intervention with these rulings. [56] The trial judge in Vukelich summarily dismissed a challenge to a search warrant, as well as a subsequent application to reconsider that decision. This Court upheld the dismissals, confirming that a judge “need not embark upon an enquiry that will not assist the proper trial of the real issues” (at para. 26). [57] Writing for the Court, McEachern C.J. emboldened trial judges to conduct a threshold screening of Charter‑ based challenges and noted that they have considerable flexibility in doing so. In most cases, the utility of a voir dire to test admissibility can be determined from the “statements of counsel” (at para. 17). Counsel can explain the basis for the claim, particularizing the right or guarantee said to have been breached by the impugned state conduct; the manner of that breach; the anticipated evidence in support (arising from the Crown’s case or otherwise); and the remedy sought. Where there has been advance notice of the Charter application, it will logically assist in framing the discussion. (For a helpful discussion of advance notice in the s. 24(2) context, see Greer at para. 104; R. v. Sipes , 2008 BCSC 1257; and R. v. Fagan (1998), 115 B.C.A.C. 106 at paras. 38–56. The Constitutional Question Act , R.S.B.C. 1996, c. 68 governs notice in applications for a remedy under s. 24(1).) [58] If the “statements of counsel” prove insufficient for a threshold screening, greater material may be necessary, such as an affidavit setting out the evidence likely to support the constitutional challenge: Vukelich at para. 21. In some cases, “there would be nothing to prevent the defence from advancing its full position in the first instance” (at para. 21). What is required in a given case to justify an evidentiary voir dire will depend on the circumstances, including the breadth and complexity of the issues raised and the legal tests governing their review and resolution. In a Vukelich hearing, “there must be sufficient substance put before the court to enable the trial judge to properly exercise [their] discretion”, and the threshold analysis is contextual: Frederickson at paras. 26, 33. [59] In this case, the defence did advance its “full position” on the Vukelich hearing. On appeal, appellant’s counsel does not point to additional submissions he would have made or evidence he would have called had there been a voir dire . He says the summary dismissal at first instance deprived the appellant of the opportunity to cross‑examine the affiant. However, appellant’s counsel told the judge more than once that the challenge to the search warrant was restricted to its facial validity. At no point did the appellant seek to cross‑examine the affiant of the ITO. In a facial validity challenge, the record examined by the reviewing judge generally consists only of the ITO. It is not an “amplified or enlarged record”: Sadikov at para. 37. [60] I see nothing wrong with the approach taken by the trial judge in this case, given the nature of the s. 8 challenge, Vukelich and subsequent cases. It accords with the procedural fairness requirements for summary dismissal of a Charter motion set out by the Court of Appeal for Ontario in Greer . The appellant received an opportunity to make submissions; he was able to identify for the judge the evidence that he said supported his Charter claim; and the judge explained the reasons for his ruling (at paras. 110–114). [61] The judge had access to the entirety of the affidavit prepared in support of the search warrant. Appellant’s counsel worked through the ITO, highlighting the parts he said were misleading, irrelevant, incomplete, unduly prejudicial, and reflected conclusory statements about the appellant’s alleged drug trafficking that were speculative, failed to account for alternative and innocent explanations, and were of no assistance to assessing the existence of reasonable grounds. Appellant’s counsel broke down each of the incidents observed as part of the police surveillance in April and May 2016, highlighting the weaknesses of the inferences drawn from them. He emphasized the ITO’s inclusion of what he described as “ quasi‑ opinion evidence” on behaviours said to be consistent with drug trafficking, without expert qualification or independent support. He also addressed the fact that the ITO relied on information provided by confidential informers. He made submissions on the lack of corroboration in support of informer reliability, with specific reference to redacted portions of the ITO. [62] In addition to pulling apart the ITO, appellant’s counsel made submissions on the law governing the issuance of a search warrant. Citing R. v. Morelli , 2010 SCC 8, he emphasized the importance of full and frank disclosure when applying for a warrant to avoid misleading impressions or the potential for inferences that would not have been available had there been a complete recitation of the known facts: Morelli at para. 58. He also stressed the problems associated with the use of generalizations about the proclivities of particular types of offenders without supporting expert opinion, risking “dependence on stereotypes and prejudices in lieu of evidence”: Morelli at para. 79. From the appellant’s perspective, the search warrant in this case suffered from many of the frailties found to invalidate the warrant in Morelli. He submitted that after excising the impugned portions of the ITO (as particularized on the Vukelich hearing), the warrant could not have issued: R. v. Araujo , 2000 SCC 65. [63] After completion of the voir dire on the warrantless arrest, the appellant applied to revisit the Vukelich ruling (with a continued focus on facial validity). He said a number of facts arose from the evidence on the s. 9 voir dire that were not included in the ITO, raising serious questions about whether the ITO met the test for full and frank disclosure. He identified each of those facts for the trial judge and made submissions on why they made a difference to the appellant’s request for a voir dire . [64] In Cody, the Supreme Court made it clear that trial judges not only have jurisdiction to engage in a Vukelich hearing, but a positive obligation to use their case management powers to minimize delay: [ 38 ] For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success . This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily ( R. v. Kutynec (1992), 7 O.R. (3d) 277 (C.A.), at pp. 287‑89; R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” ( Jordan , at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion. [Emphasis added.] [65] After a close review of the s. 8 rulings in this case, I am satisfied the trial judge did what Cody requires of him. He judicially exercised his “screening function”. He was alive to the appellant’s specific concerns about the ITO, considering them at first instance and on the request to re‑open. This included the fact that during their surveillance, police did not see actual drugs pass hands and that the appellant’s conduct was “possibly consistent with totally innocent contact” (RFJ‑2 at para. 19). The judge acknowledged that because of redactions to the ITO, “critical information” in assessing the reliability of the information received from the confidential informers was not before him (at para. 21). He turned his mind to the prejudice that the appellant said flowed from including the entirety of his criminal record in the ITO (at para. 26). [66] In denying an evidentiary voir dire , the trial judge properly instructed himself that a warrant’s facial validity is assessed with reference to the totality of the material before the authorizing justice (RFJ‑2 at para. 25). He focused on the right question and asked himself “whether the facts set out in the ITO, after excising misstatements and adding omissions as suggested by the defence submissions, disclosed a reasonable basis on which the warrant could have been challenged”: Frederickson at para. 39. (See RFJ‑2 at para. 27; RFJ‑4 at para. 12.) Ultimately, the judge found there was no reasonable prospect of success on the s. 8 claim. This was a conclusion reasonably open to him on the ITO, considered in its entirety. On appeal, the appellant does not challenge the merits of the judge’s conclusion that even if he excised the “challenged portions” of the ITO, the warrant could have issued (RFJ‑2 at para. 27). Rather, he has focused on the process by which the judge reached that conclusion. [67] Applying the deferential standard of review to the Vukelich ruling, I would not accede to this ground of appeal. Did the trial judge err in his conclusion on the s. 9 complaint? [68] The appellant says the trial judge was wrong to find there were sufficient grounds for the appellant’s warrantless arrest on May 11, 2016. Any subjectively held belief that the appellant possessed one or more controlled substances for purposes of trafficking was not objectively reasonable. Instead, it was speculative. [69] Specifically, the appellant contends that the evidence on the s. 9 voir dire did not reveal actual hand‑to‑hand drug transactions involving the appellant. The observations made of the appellant were equally consistent with lawful activity. Police made no observations of the appellant inside his apartment, engaged in drug transactions with the people who entered. Police saw people leave the building who then exhibited conduct consistent with trafficking; however, the appellant was not an “observed party to [those] two incidents and his only connection [was] the speculative belief that [those] two people had met with [him] while inside the building” (appellant’s factum at para. 80). From the appellant’s perspective, police knowledge and experience in drug trafficking investigations could not make up for the lack of objective support for an arrest. [70] Relying on R. v. Lahtinen , 2011 BCPC 490 at para. 26, and like cases, the appellant says police brought a “jaundiced and overly negative view” of the appellant and his behaviour to their investigation. Applying that lens, Sgt. Philip and his co‑investigators are said to have misinterpreted the appellant’s conduct as consistent with drug trafficking. They had distorted subjective beliefs. [71] The Crown says the judge did not err in finding police had objectively reasonable grounds to believe the appellant had committed or was about to commit a criminal offence (in compliance with s. 495(1)(a) of the Code ). The surveillance observations, the other information available to police, and Sgt. Philip’s knowledge and experience as a drug investigator provided ample objective support for the warrantless arrest. It is the cumulative effect of the information known to police that matters: R. v. Luong , 2010 BCCA 158 at para. 17. [72] The appellant does not challenge the judge’s finding of fact that the officers who effected the arrest “honestly” held a subjective belief that the appellant was “in possession of a controlled substance for the purpose of trafficking” (RFJ‑3 at paras. 28–29). Rather, the s. 9 complaint focuses on the determination that the subjective belief was objectively reasonable. This raises a question of law. As noted in Vickerson , the standard of review is correctness: [64] The standard of review of whether reasonable and probable grounds exist is found in R. v. Shepherd , 2009 SCC 35 at para. 20: While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law . As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo , 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. ... Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness. [Emphasis added.] [73] Only one witness testified about the warrantless arrest: Sgt. Philip. At the material time, he was a supervisor with the VicPD “Strike Force” unit—a plainclothes surveillance unit with a primary mandate of investigating drug‑related offences. Sgt. Philip had been with that unit for five years. Prior roles included working in an undercover capacity in street drug investigations and eight years with an emergency response team. On at least three prior occasions, Sgt. Philip had been qualified by a court to give expert opinion evidence as a “drug expert”. He had specialized training in controlled substances; recruiting and managing confidential informers; and surveillance techniques. He was not a neophyte. [74] Sgt. Philip personally participated in the surveillance of the appellant as part of VicPD’s targeted drug investigation. On May 10, 2016, he concluded that police should arrest the appellant for drug offences and apply for a warrant to search the appellant’s residence. He relayed that conclusion to others at VicPD, and they took steps to effect the arrest. Sgt. Philip testified that he considered a “number of factors” in reaching his conclusion on the arrest. They included: · emails from people who managed an apartment building on Quadra Street in Victoria, indicating that other tenants had complained of the appellant engaging in drug trafficking “in and around the building”; · a tenancy list produced by the managers of that building confirming the appellant was a resident; · Sgt. Philip was personally familiar with the appellant, having investigated him twice previously for trafficking in controlled substances (2013 and 2015). The 2013 investigation included a search of the appellant’s then‑residence and the seizure of controlled substances; · Sgt. Philip regularly attended intelligence meetings at VicPD. The appellant’s name was “brought up on numerous occasions as being a viable target [for surveillance] and possibly involved in trafficking controlled substances”; · three confidential informers reported that the appellant was involved in trafficking and, based on information gathered from one or more other officers, Sgt. Philip came to believe the informers were reliable; · while conducting six days of surveillance of the appellant in late April and early May 2016, the surveillance team and/or Sgt. Philip made observations they believed were consistent with trafficking in controlled substances from his apartment building. This included observations of the appellant interacting with persons known to police as involved in Victoria’s “drug culture”; · by May 10, 2016, the surveillance team had “seen plenty of behaviour consistent with trafficking” and Sgt. Philip believed the appellant was a drug dealer; was “heavily involved” in trafficking; was in possession of controlled substances; and would continue to be; · Sgt. Philip relied on his own experience in drug investigations in forming his beliefs about the appellant’s conduct; · he also considered the “totality of everything[:] … the information of confidential informants and [their] surveillance observations and the beliefs of other members on the team”; and, · before the actual arrest on May 11, Sgt. Philip reviewed the ITO prepared in support of a search warrant to be executed that same day. The ITO “confirmed” that which he already knew of the appellant, based on his own observations or otherwise. Nothing in the ITO contradicted inferences that he had personally drawn. [75] In cross‑examination, Sgt. Philip acknowledged that during the surveillance, police did not see “actual drugs” in the appellant’s possession; they did not see the inside of the appellant’s apartment; the 2013 drug investigation did not proceed to court; and the 2015 investigation did not result in charges. [76] Section 495(1)(a) of the Code authorizes a peace officer to arrest without warrant a person who has committed an indictable offence or who, on reasonable grounds, the officer believes has committed or is about to commit an indictable offence. Assessing the validity of an arrest under this provision involves a two‑part test. First, the trial judge must factually determine whether the arresting officer subjectively believed that the person arrested had committed or was about to commit an indictable offence and the grounds for that belief. As explained by Frankel J.A. in Lotfy , the second stage of the validity analysis: [35] involves determining whether the officer’s grounds for that belief are objectively reasonable. This is a question of law: R. v. Shepherd , 2009 SCC 35 at paras. 18‒20, [2009] 2 S.C.R. 527; R. v. MacKenzie , 2013 SCC 50 at para. 54, [2013] 3 S.C.R. 250. … The officer’s training and experience are relevant in assessing objective reasonableness. MacKenzie at para. 73; R. v. Wilson , 2012 BCCA 517 at para. 26, 99 C.R. (6th) 76, leave to appeal ref’d, [2013] 3 S.C.R. xii. [77] There need not be a prima facie case for conviction before an arrest without a warrant: Storrey at 250–251. The reasonable grounds standard requires: [39]      … something more than mere suspicion, but something less than the standard applicable in civil matters of proof on the balance of probabilities: Mugesera v. Canada (Minister of Citizenship & Immigration) , 2005 SCC 40 at para. 114. The appropriate standard is one of reasonable probability: R. v. Debot , [1989] 2 S.C.R. 1140 at 1166. Reasonable or credibly‑based probability contemplates a practical, non‑technical and common sense evaluation of the probability of the existence of facts and asserted inferences : R. v. Sanchez (1994), 93 C.C.C. (3d) 367 at 367 (Ont. Ct. (G.D.)). [40]      Determining whether reasonable and probable grounds exist requires an assessment of the “totality of the circumstances”: R. v. Debot at 1168. [ R. v. Henareh , 2017 BCCA 7, per Fitch J.A.; emphasis added.] See also R. v. Glendinning , 2019 BCCA 365 at paras. 2–7. [78] In this case, the trial judge found a subjective belief that the appellant was in possession of one or more controlled substances for trafficking. In my view, he also correctly found there was an objectively reasonable basis for that belief. The totality of the circumstances known to police, including: the past involvement in drug offences; the concerns expressed by other tenants in his building; the information received from confidential informers; the observations made of the appellant and people interacting with him; and Sgt. Philip’s knowledge and experience with drug trafficking investigations generally, provided a credibly‑based probability of possession and trafficking. Police acknowledged they did not see the appellant in physical possession of actual drugs, transporting them, or distributing them to other individuals. However, Sgt. Philip was entitled to inform the inferences he drew about the appellant’s conduct with reference to the other information in his possession. As the Crown has appropriately emphasized in the appeal, it is the cumulative effect of the information known to police that matters. Individual pieces of evidence adduced on the evidentiary voir dire may carry the possibility of alternative (and innocent) inferences. However, the evidence in support of a warrantless arrest is “not [to be] assessed on a piece meal basis”: Luong at para. 17. [79] The appellant did not establish a s. 9 violation at trial. Accordingly, I would not accede to this ground of appeal. [80] Before leaving this issue, it is important to say something about the trial judge’s additional comments in his s. 9 ruling. Although he found that the warrantless arrest did not violate the Charter, he went on to comment adversely on the fact that after the arrest, police appeared to have held the appellant in custody and then released him without conditions or process compelling him to attend court. The judge expressed concern about a “common practice of arresting an accused at the time that a search is being conducted”, and queried whether any such practice is authorized by the Code (RFJ‑3 at paras. 32, 35). [81] With respect, there was no direct evidence on the voir dire about the amount of time the appellant spent in police custody on May 11, 2016; the reason why police kept him in custody; the circumstances surrounding his release; or any “common practice” of warrantless arrests being effected in conjunction with residential searches. Sgt. Philip testified that he was not involved in any of the decisions relating to the appellant’s detention following his arrest, or his release. No other officer gave evidence on the voir dire. The appellant did not testify on the voir dire. The only reason provided for the arrest in evidence was that police believed the appellant “was in possession of a controlled substance for the purpose of trafficking, [and] that he would continue to be on the following day”. [82] In his submissions on the s. 9 voir dire , appellant’s counsel offered the view that “the grounds for arrest were, in fact, to allow [police] to perform the search of [the appellant’s] residence”. However, there was no evidence in support of that proposition. It was speculative. Counsel did not suggest to Sgt. Philip in cross‑examination that this was the primary, or even a secondary, reason for the warrantless arrest. The trial judge found, as a fact, that the subjective belief underlying the arrest was the one articulated by Sgt. Philip in his testimony; moreover, he found that it was an honestly held belief and objectively reasonable. [83] It is also worth noting that the written notices of the appellant’s Charter applications filed prior to trial did not allege that the warrantless arrest was unlawful because it was done to facilitate the search of his apartment, or that his subsequent detention in custody and his release without process infringed his s. 9 right. Rather, the challenge to the arrest focused on the absence of reasonable grounds. [84] It follows that the judge’s comments about the legal propriety of the appellant’s detention post‑arrest; his release from custody without process; and the perceived “common practice” were obiter and unsupported by evidence. As such, they have no legal effect. Did the trial judge err in finding no abuse of process? [85] A prosecution by the federal or provincial Attorney General commences by invoking ss. 504 and 507 of the Code. In Ambrosi v. British Columbia (Attorney General) , 2014 BCCA 123, Bennett J.A. explained the process: [19] There are two stages to commencing a prosecution under the Criminal Code . The first is laying an information [under s. 504] and the second is issuing process. [20] The justice must receive the information [under s. 504] if the alleged offence is known to law and facially complies with the requirements of this section: R. v. McHale , 2010 ONCA 361 at para. 43, leave to appeal ref’d [2010] S.C.C.A. No. 290. This commences “criminal proceedings” and the person is “charged with an offence” for the purpose of s. 11(b) of the Charter of Rights and Freedoms [ Charter ] (the right to be tried within a reasonable time): see R. v. McHale at para. 44 and R. v. Kalanj , [1989] 1 S.C.R. 1594 at 1607. There is another step, however, before a “criminal prosecution” commences, and that is the pre-inquiry held by a judge to decide whether to issue process in the form of either a summons or a warrant . [21] Since 2002, the Code sets out two different procedures for issuing process. The first, s. 507, applies to informations laid by police officers, public officers, the Attorney General or the Attorney General’s agent. The second is s. 507.1, which applies to private prosecutions such as the one brought by Mr. Ambrosi. Before the 2002 amendment, both public and private informants were governed by s. 507. The relevant part of the current version of s. 507 (public prosecutions) reads as follows: 507. (1) Subject to subsection 523(1.1), a justice who receives an information laid under section 504 by a peace officer, a public officer, the Attorney General or the Attorney General’s agent, other than an information laid before the justice under section 505, shall, except if an accused has already been arrested with or without a warrant, ( a ) hear and consider, ex parte , (i) the allegations of the informant, and (ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and ( b ) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence. [Emphasis added.] See also R. v. Grinshpun , 2004 BCCA 579 at paras. 32, 33, leave ref’d [2004] S.C.C.A. No. 579. [86] For the purpose of this appeal, ss. 507(3) and (4) of the Code are also germane: (3) A justice who hears the evidence of a witness pursuant to subsection (1) shall (a) take the evidence on oath; and (b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied. (4) Where a justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the accused unless the allegations of the informant or the evidence of any witness or witnesses taken in accordance with subsection (3) discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused. [Emphasis added.] [87] The appellant’s third ground of appeal concentrates on s. 507 and the fact that this provision only mandates a recorded proceeding where witnesses give evidence before the justice of the peace (s. 507(3)(b)). The justice who issues process is not required to provide reasons for doing so. The appellant says, as a result, there is no “disclosable record” of the justice’s interaction with the informant. The “complete lack of transparency” is said to result in an abuse of process (and therefore a violation of s. 7 of the Charter ), because an arrest warrant leads to a deprivation of liberty “without any basis to understand, assess or review” the decision underlying its issuance (appellant’s factum at paras. 61, 68). The appellant contends that in dismissing his application for a stay of proceedings, the trial judge did not give meaningful effect to this process deficiency or its implications. [88] This is how appellant’s counsel framed the s. 7 issue in the court below. “Lack of transparency” was his predominant complaint: It’s really a question of whether or not what appears to have been the past practice of not recording ought to continue and whether or not that determination is contrary to the Charter rights of an accused to know the reason why he was arrested and the basis by which the warrant was issued and the ability to challenge that with regards to the arrest provisions of the Charter as well. I’m asking for a stay of proceedings and in doing so for the reasons that this is not only a process that has … gone on for far too long where an accused does not have the ability to challenge and/or test the issuance of a warrant as is provided for under the Charter of Rights . I want to be clear that the abuse of process that I’m alleging does arise out of the lack of transparency and the inability to review . So, it’s not that the prosecution did anything wrong, it’s not that … the police officer necessarily did anything wrong or the JP necessarily did anything wrong. We simply don’t know in those regards. [Emphasis added.] [89] The appellant says because the s. 507 proceeding is not recorded and cannot be transcribed, he has no way of knowing whether the justice of the peace who issued the arrest warrant on May 19, 2016, correctly determined there were reasonable grounds to believe a warrant was necessary in the public interest, as required by s. 507(4). The trial judge relied on the presumption of regularity in finding that such was the case, but from the appellant’s perspective, he was wrong to do so. The presumption of regularity (although acknowledged to apply to justices of the peace), cannot be used to support a process that, by its very nature, is “not … regular” (appellant’s factum at para. 72). [90] The Crown says the trial judge did not err in denying the appellant a stay of proceedings under s. 24(1) of the Charter . The appellant adduced no evidence establishing non‑compliance with s. 507 or other state conduct that adversely affected the fairness of his trial (a first basis for a finding of abuse of process). Nor did the lack of a recording under s. 507 impinge on the integrity of the judicial process (a second, residual basis for finding an abuse of process). As the appellant has acknowledged, s. 507 does not mandate a recording when witnesses do not give evidence before the justice of the peace. [91] The Crown emphasizes that stays of proceeding for abuse of process are “very rare” and says the appellant did not meet the test: R. v. Babos , 2014 SCC 16. Had the appellant wanted to challenge the absence of a mandated recording for all s. 507 proceedings, on grounds that a statutory provision authorizing such a process violates the Charter, the proper avenue was to bring a constitutional challenge to s. 507. He did not do so. [92] As the majority explained in Babos , a decision to decline a stay of proceedings is subject to a deferential standard of review. Appellate intervention: [48]      … is warranted only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice” ([ R. v. Bellusci , 2012 SCC 44] at para. 19; [ R. v. Regan , 2002 SCC 12] at para. 117; [ Canada (Minister of Citizenship and Immigration) v. Tobiass , [1997] 3 S.C.R. 391] at para. 87; R. v. Bjelland , 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 15 and 51). [93] The trial judge allowed the appellant an evidentiary voir dire on his s. 7 challenge. The police officer who swore the Information charging the appellant with drug and weapons offences testified. Cst. Mutch did not have an independent recollection of this case; however, she said it is her general practice when swearing an Information to provide the justice of the peace with a “synopsis” of the circumstances surrounding the allegations, as set out in a Report to Crown Counsel (“RTCC”) prepared by police for charge assessment and approval . If the synopsis does not contain sufficient information, she will typically look through the rest of the RTCC and find what she needs to ensure that the justice has a sufficient foundation for accepting the Information. This might include, for example, details about how the accused was identified as the perpetrator of the alleged offence(s); “specific information” surrounding the commission of the offence; and where the offence took place (presumably to establish jurisdiction). Cst. Mutch described herself as “pretty thorough” in setting out the circumstances for the justice. Usually, justices do not ask her for additional information. [94] Cst. Mutch testified that the RTCC typically includes a notation from the Crown on the form of process considered appropriate for the prosecution (a summons, endorsed warrant or unendorsed warrant). Cst. Mutch relays that request to the justice of the peace. In her experience, the justice of the peace will usually issue the process requested. [95] During the officer’s testimony, appellant’s counsel showed Cst. Mutch an RTCC containing a “Synopsis” that related to this case. She reviewed it and said it “look[ed] like” what she would have had access to when swearing the Information; however, she did not know if it was the same document. That RTCC was marked as an exhibit for purposes of the voir dire . The “Synopsis” portion is relatively brief. In subsequent questioning, Cst. Mutch said that in light of its brevity, she likely would have “gone through the file” in search of additional information to swear the Information and to seek process as against the appellant. However, because she could not remember the specific appearance, she was not able to indicate what that information would have consisted of. [96] JP Erickson also testified on the s. 7 voir dire . She was not the justice who accepted the Information or issued process in this case. However, in her role as a senior justice of the peace, she is familiar with the Provincial Court’s policies and procedures surrounding s. 507 of the Code. She confirmed that both the swearing of an Information (under s. 504) and a request for process occur under oath or affirmation. She also confirmed that in British Columbia, the s. 507 proceeding is held in camera and is not recorded unless witnesses are involved. [97] Based on the evidence called in support of the appellant’s s. 7 challenge, I am of the view the complaint about the denial of a stay of proceedings under s. 24(1) of the Charter has no merit. The appellant does not allege that the judge misdirected himself in law, or that he committed a reviewable error of fact. Instead, his argument is that the s. 7 ruling is clearly wrong and amounts to an injustice. I disagree. The evidence of Cst. Mutch and JP Erickson did not establish that the unendorsed warrant failed to meet the preconditions for a warrant under s. 507(4) of the Code , or that the process by which the warrant issued was improper or unauthorized. That was the judge’s finding on the voir dire and it was reasonably open to him on the evidence (RFJ‑6 at para. 38). Furthermore, without evidence of non‑compliance, the trial judge was entitled to presume that the justice of the peace adhered to the requirements of s. 507 and acted judicially: Re Tait (1950), 98 C.C.C. 241 at 253–54 (B.C.C.A.). [98] In his submissions on the voir dire , appellant’s counsel asked the judge to infer that there was “no need for an unendorsed warrant” on May 19, 2016, because police had arrested the appellant eight days earlier, held him in custody, and then released him without conditions or process compelling him to attend court (RFJ‑6 at para. 10). Furthermore, police did not execute the May 19 arrest warrant until August 2016. If police did not consider it necessary to put conditions on the appellant effective May 11, and did not consider it necessary to effect his arrest until three months after the warrant issued, how could a warrant have been “necessary in the public interest”? [99] The problem with this submission is that there was no evidence before the trial judge from which he could reasonably draw any such inference. [100] First, the appellant did not apply to have the evidence from the s. 9 voir dire expressly incorporated into or considered as evidence in the s. 7 voir dire . The successive voir dires engaged separate inquiries and, generally, the evidence adduced on one voir dire is not available for use in a later voir dire in the absence of an agreement between counsel or a ruling to that effect: Frederickson at para. 38; Sadikov at para. 31. [101] Second, even had the evidence on the voir dires merged for use by the trial judge, there was no direct evidence on the s. 9 voir dire about the amount of time the appellant spent in police custody on May 11, 2016; the reason why police kept him in custody; or the circumstances surrounding his release. [102] There was only limited evidence about the manner in which the ERT effected the warrantless arrest on May 11. There were admissions that police arrested the appellant in the parking lot of an auto parts store and that he was searched incidental to the arrest. Sgt. Philip’s testimony confirmed that the arrest occurred in the parking lot; that the appellant was a passenger in a car when arrested; and that police arrested the driver as well. Sgt. Philip testified that the ERT handled the arrest because of the appellant’s previous history with VicPD and the need to ensure a “safe” arrest. He acknowledged that arrests by the ERT often involve police drawing weapons and surrounding the target vehicle; however, he did not provide specifics on how the arrest unfolded in this case. [103] Finally, the judge acknowledged in his s. 7 ruling that the appellant adduced no evidence of what happened between the issuance of the arrest warrant on May 19, 2016, and its execution three months later (RFJ‑6 at para. 34). There was no evidence of the reasons for the delay in execution, or the appellant’s whereabouts or conduct during that period. There was reference in his counsel’s submissions to the appellant being under surveillance prior to the August 2016 arrest; however, these were submissions only, unsupported by an evidentiary foundation. [104] Harkening back to the principles set out at the start of these reasons, an allegation of state misconduct or non‑compliance with statutory requirements said to provide the basis for a constitutional remedy cannot rely for its proof on conjecture, or submissions alone. Charter decisions cannot find their grounding in the “unsupported hypotheses of enthusiastic counsel”: MacKay at 361–62. [105] Specific to the issue of “transparency”, the appellant acknowledges that on its face, s. 507 allows for the issuance of a summons or a warrant to proceed ex parte , in camera and without a recording unless witnesses are involved. No witnesses gave evidence before the justice of the peace in this case. In these circumstances, I fail to understand how the procedure adhered to by Cst. Mutch and the justice of the peace, or the unendorsed arrest warrant, amounted to an abuse of process in violation of s. 7 of the Charter . To obtain a stay of proceedings under the residual category of abuse of process, the appellant bore the onus of proving state conduct that is so “offensive to societal notions of fair play and decency … [that] proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”: Babos at para. 35. He also bore the onus of showing that “any other remedy short of a stay [was not] capable of redressing the prejudice”: Babos at para. 39. The evidence on the s. 7 voir dire did not come even remotely close to meeting that standard. [106] I also agree with the Crown that to challenge the process surrounding the issuance of the arrest warrant for “lack of transparency”, as a basis from which to seek a constitutional remedy , the appellant needed to attack the constitutionality of s. 507. His primary s. 7 complaint before the trial judge, and advanced on appeal, is that the procedure authorized by the Code for issuing an arrest warrant is deficient because it does not mandate a recording in all circumstances. In turn, that deficiency results in warrants that deprive persons of their liberty in a manner that contravenes one or more principles of fundamental justice. [107] That was the type of argument made in Whitmore , a case cited by the trial judge in his s. 7 ruling. Mr. Whitmore and his co‑accused brought an application for prerogative relief against an Information charging them with indictable offences, as well as a related summons. In support of their application, they attacked the procedure allowed for by statute and argued that what is now s. 507 of the Code violated s. 7 of the Charter by permitting an ex parte hearing. The argument was rejected (albeit in obiter ), as being “totally devoid of merit”: Whitmore at 571 (Ont. S.C). Ewaschuk J. opined that “procedural notions of the right of notice, the right of presence, and the right of participation at hearings”, as protected by s. 7 of the Charter , do not apply to s. 507: at 571–72. The Court of Appeal for Ontario agreed: “The Code prescribes an ex parte hearing. We can find no Charter breach in that prescription”: Whitmore at 296 (Ont. C.A.). [108] See also Southam Inc. v. Coulter (1990), 60 C.C.C. (3d) 267 (Ont. C.A.), wherein it was argued that, to the extent s. 507 mandates an ex parte hearing, it violates s. 2(b) of the Charter. As in Whitmore, that claim was made in the context of a constitutional challenge to the provision itself. [109] Here, rather than challenge the constitutionality of s. 507, the appellant argued that the absence of a recording gave rise to an abuse of process, even though it was a process allowed for by statute. Respectfully, that approach was misguided and the trial judge was right to deny a stay of proceedings in the circumstances. [110] Accordingly, I would not accede to this ground of appeal. [111] As I did under the second ground of appeal, I consider it important to address comments made by the trial judge in his s. 7 ruling that were not necessary given his finding that the appellant did not prove an abuse of process based on non‑compliance with s. 507. [112] In addressing the s. 7 claim, the trial judge offered his view that “there is no authorization in law to simply sit on a warrant or delay the arrest for any other purpose” (RFJ‑6 at para. 36). He also reiterated a concern expressed in his ruling on the s. 9 voir dire , namely, that there is “no authority in law to arrest someone to expedite the search of a residence or any other execution of a search warrant” (at para. 37). As discussed, neither of these issues properly arose on the evidence before him. As such, his comments were obiter and of no legal effect. [113] The trial judge also provided direction to police in his s. 7 ruling, holding that when they attend before a justice of the peace to swear an Information and seek process, they should “have a notation of the reasons why a warrant, either endorsed or unendorsed, is sought at the first instance rather than a summons” (RFJ‑6 at para. 40). Furthermore, the reasons for process “should be articulated to the justice of the peace” (at para. 40). The judge stressed the need to ensure that informants and justices not “lapse into a routine where the police simply present informations for signature, rather than for consideration and applications are simply requested and granted rather than carefully thought through” (at para. 41). [114] In his factum, the appellant asks this Court to endorse the judge’s directions. In fact, he goes further and asks that we “issue directions to the Provincial and Federal Attorneys General, crown counsel, the police and the Justices of the Peace in the Province of British Columbia specifically detailing procedures to be implemented” under s. 507. Any such “directions” should include the “form and the nature of evidence to be received and considered prior to the issuance of a warrant”. [115] Although I appreciate the trial judge’s attempt to highlight the importance of adhering to the requirements of s. 507 of the Code , and suggest best practices, the fact of the matter is that he did not find evidence of non‑adherence in this case. He did not find a violation of the appellant’s s. 7 right in the form of an abuse of process, or otherwise. He did not assess the constitutionality of s. 507 to determine whether the process authorized there comports with Charter principles, or, if it does not, what it would require to do so. The judge had no jurisdiction to read additional, mandatory process requirements into s. 507, whether specific to the public prosecution informants who seek process on a sworn Information, or the justices of the peace who address the issue. Accordingly, the direction provided in the s. 7 ruling was obiter and of no legal effect. [116] In the circumstances of this case, I also do not consider it appropriate for this Court to issue “directions” of the breadth and scope sought by the appellant. The question on this appeal is whether the appellant has established that his convictions should be set aside on the ground of a wrong decision on a question of law (s. 686(1)(a)(ii)) or a miscarriage of justice (s. 686(1)(a)(iii)). The answer to that question is “no”. As a result, there is no need for this Court to express views on the ancillary issues raised by the appellant. Application for a Sealing Order and Publication Ban [117] The trial judge sealed an excerpt from a justice of the peace training manual provided to him at trial . The excerpt was presented to the court (although not formally marked as an exhibit), during an application by the Attorney General for British Columbia (“AGBC”) to quash the subpoena for JP Erickson. [118] As I understand it, the judge received an affidavit appending the excerpt as a suggested alternative by the AGBC to having JP Erickson testify. The AGBC took the position that if the judge considered it necessary that the appellant be able to adduce evidence of “any policy regarding potential considerations that may have been engaged” at the time the unendorsed arrest warrant issued, the “relevant section of the JP training manual should go in by affidavit”. When the excerpt was submitted, the AGBC highlighted the confidential nature of its contents: These are not documents that — that parties normally have access to. They are specifically for judicial training and the office of the Provincial Court strongly prefers that portions of the JP training manual not be produced in this proceeding. They are concerned that production may open the door for future requests and that reading the excerpts may give insight into the exercise of judicial discretion by justices of the peace. [119] Ultimately, JP Erickson testified about administrative issues surrounding s. 507 of the Code , as opposed the adjudicative function. The judge ordered that the Crown and the defence have access to the excerpt from the training manual and the appending affidavit. Appellant’s counsel referred to the contents of the excerpt in his submissions on the s. 7 voir dire , specifically addressing some of the factors that justices of the peace are trained to consider, or may have reference to, in deciding the issuance of process. Crown counsel at trial also referred to the excerpt in her submissions, but only in general terms. [120] After conviction, the appellant successfully applied in the trial court to lift the sealing order for purposes of his appeal. In September 2019, the AGBC sought an interim sealing order in the appeal proceedings. The order was granted and applies to the excerpt; an affidavit appending the excerpt; any portions of the parties’ factums that refer to the contents of the training manual; and all related portions of the trial transcript that form part of the appeal record. On completion of the hearing of the appeal, we extended the interim sealing order to await judgment. [121] The OCJ has assumed conduct of the issue from the AGBC. It asks that we make the interim sealing order permanent. It also seeks a publication ban over the text of the excerpt from the training manual. The manual is an internal document electronically available to justices of the peace in British Columbia. They have exclusive use for purposes of “training” and “reference”. The OCJ describes the manual as being in the “nature of legal advice” (although not protected by solicitor‑client privilege). It is not ordinarily available to the public. The OCJ contends that a permanent sealing order and publication ban are necessary to prevent a serious risk to the proper administration of justice. The appellant and the Crown take no issue with the OCJ’s standing to bring the application. Nor do they take a position on the merits. [122] As noted by Groberman J.A. in GEA Refrigeration Canada Inc. v. Chang , 2020 BCCA 361: “The open court principle demands that we not prevent public access to court documents without good reason” (at para. 190). In cases where fair trial interests are not at stake (the situation here), whether “good reason” exists to prevent access is answered by applying the analytical principles established in Dagenais v. Canadian Broadcasting Corp ., [1994] 3 S.C.R. 835 and R. v. Mentuck , 2001 SCC 76. In accordance with para. 32 of Mentuck , the public should not be denied access to information that forms part of a court record unless: (a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. [123] Under the first prong of the analysis, the risk prevented by denying public access must be a “real and substantial” risk that “poses a serious threat to the proper administration of justice”: Mentuck at para. 34. It must also be “well‑grounded” in evidence: Mentuck at para. 34. [124] In assessing “deleterious effects” under the second part of the analysis, a court must account for the fact that restricting public access to court documents “clearly infringe[s] the public’s freedom of expression guarantee”: Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41 at para. 36. There is a “strong” and “highly valued” presumption that “courts should be open and reporting of their proceedings should be uncensored”: Mentuck at para. 39. This “access is the method by which the judicial process is scrutinized and criticized. Because it is essential to the administration of justice that justice is done and is seen to be done, such public scrutiny is fundamental”: Sierra Club at para. 52 (emphasis in original). [125] The party that seeks to restrict access bears the burden of displacing the general rule that court documents are open to the public: Mentuck at para. 38. The OCJ contends that allowing access to the contents of the training manual, and its possible publication, will impinge judicial independence, both its adjudicative and administrative aspects. In turn, the impingement will adversely affect the administration of justice. [126] The training manual assists justices of the peace in performing their adjudicative role. The manual also addresses matters relevant to the Provincial Court’s administration, including training, setting internal administrative standards and practices, and assigning judicial duties. The OCJ contends that public access to this material may have the adverse effect of parties “tailoring their submissions” to the manual when applying for court‑ordered process, rather than having regard to relevant case law or the applicable statutory requirements. It may also foster a tendency among justices of the peace to restrict themselves to the manual in rendering their judicial decisions, believing that to stray from it would heighten the risk of error and unnecessarily open them to review. [127] Finally, the OCJ submits that rendering the manual to public view could have a chilling effect on the development of administrative procedures and judicial training materials specific to the Provincial Court. The potential for the public’s reliance on those items requires a consideration of factors, relevant to content, the manner of development, and the means of communication, not otherwise accounted for in their production. [128] In support of its application for a sealing order, the OCJ relies on Mackeigan v. Hickman , [1989] 2 S.C.R. 796. In that case, the Supreme Court held that a public commission of inquiry did not have authority to compel judges to testify about why they arrived at a judicial decision, or why a certain judge sat on a particular appeal. [129] The OCJ also cites R. v. Harper , [2017] A.J. No. 1386 (Alta. Q.B.), in which a judge dismissed an application for the production of training materials developed by the National Judicial Institute on the topic of social context in sexual assault prosecutions. The purpose of the application was to enable the defence to know what instructional material the trial judge had access to in learning about sexual assault cases. The judge dismissed the application on the ground that the educational materials were not relevant to a live issue at trial. [130] I find neither of these cases of assistance in deciding the question before this Court. They are distinguishable on their facts, as well as the nature of the issues raised. Mackeigan prohibited compelled testimony about the exercise of adjudicative and administrative decision making by the judiciary in a particular case. Harper involved a request for access to educational material that might inform an adjudicative decision in a particular case, and, in any event, the court denied production on the ground of irrelevance, not because of a possible impingement of judicial independence. [131] The scenario before this Court is qualitatively different. The question of whether the excerpt from the training manual was properly before the trial court for use in the s. 7 voir dire is not before us. The parties have not asked the Court to consider that issue. Nothing I say here opines on its admissibility. Instead, the OCJ applies to seal a document that did make its way before the trial judge and now forms part of the record of a proceeding held in open court. A different analysis applies. [132] I have reviewed the excerpt from the training manual, as well as the appending affidavit. The excerpt consists of two pages of index from the training manual and five pages from Chapter 4 of the manual, entitled “Information and Process”. Among other things, the excerpt identifies the Code provisions that govern the swearing of an Information and the issuance of process and sets out some of the case law relevant to those provisions. It explains the differences between a summons and a warrant, as well as between an endorsed and unendorsed warrant. The excerpt emphasizes that issuing an arrest warrant is a “serious matter” and delineates factors a justice of the peace “may consider” in deciding whether a warrant is necessary in the public interest. It sets out an administrative procedure for justices after deciding to issue or not issue process, specific to marking and signing the Information. If a justice of the peace declines to issue process, the excerpt encourages them to “briefly indicate” the reason for that decision, either verbally or in writing. [133] Standing alone, the content of the excerpt is innocuous. Much of what is contained there is already publicly available through the Code ; learnable from the case law relevant to s. 507; or deductively apparent from the face of any sworn Information. The excerpt forms but a small part of a larger training manual. Denying the application for a sealing order and publication ban will not open the entirety of the training manual to public view. It will not reveal private or sensitive information about a particular case or the persons involved. It will not functionally compel an explanation for an adjudicative or administrative decision that is ordinarily immune from disclosure or review. [134] In light of these factors and the absence of compelling evidence substantiating the harms said to arise from disclosure, the OCJ has not persuaded me that access to the excerpt from the training manual and all references to it “poses a serious threat to the proper administration of justice”. Accordingly, the application fails under the first component of the Mentuck analysis. [135] That is sufficient to dispose of the matter. However, were it necessary to do so, I would also deny the application for a sealing order and publication ban under the second prong of the Mentuck analysis. [136] In R. v. Moazami , 2020 BCCA 350, Chief Justice Bauman described the open court principle as: [2] part of the bedrock founding our judicial institutions and the rule of law. Courts must be seen to function openly. Public access to court proceedings permits public scrutiny of judicial processes and enhances public confidence in the justice system and an understanding of how justice is administered in Canada. [3] The open court principle is inextricably linked to the freedom of expression and the freedom of the press, as protected by s. 2(b) of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act , 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [ Charter ]: Vancouver Sun (Re) , 2004 SCC 43 at para. 26. The public must be able to access information pertaining to judicial proceedings in order to meaningfully exercise the right to express ideas and opinions about the courts. The public’s right to be informed depends on the freedom of the press to gather and transmit this information. When court openness is restricted, so too is freedom of expression and freedom of the press: Canadian Broadcasting Corp. v. New Brunswick (Attorney General) , [1996] 3 S.C.R. 480 [ New Brunswick ] at para. 26. [137] Given the limited nature of the record at issue in this appeal, and the factors discussed above, the salutary effects of denying public access to the excerpt from the training manual do not outweigh the deleterious effects of precluding “public scrutiny of judicial processes” and the enhanced public confidence in the justice system that flows from that. Disposition [138] For the reasons provided, I would grant an extension of time in which to file the appeal from conviction to November 20, 2018, but dismiss the appeal. I would also dismiss the application for a permanent sealing order and a publication ban. “The Honourable Madam Justice DeWitt‑Van Oosten” I AGREE: “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Mr. Justice Grauer” [1] Section 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, and s. 91(2) of the Criminal Code , R.S.C. 1985, c. C‑46, respectively.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Warlow v. Sadeghi, 2021 BCCA 46 Date: 20210203 Docket: CA46057 Between: Elaine Elizabeth Warlow Appellant (Plaintiff) And Dr. Ali Sadeghi and Dr. Ali Sadeghi Inc. Respondents (Defendants) Before: The Honourable Mr. Justice Harris The Honourable Mr. Justice Goepel The Honourable Mr. Justice Abrioux On appeal from:  An order of the Supreme Court of British Columbia, dated April 1, 2019 ( Warlow v. Dr. Sadeghi , 2019 BCSC 463, Vancouver Docket S126901). Counsel for the Appellant: D.O. Shane E. Kwa Counsel for the Respondents: T. C. Hinkson J. Lauwers Place and Date of Hearing: Vancouver, British Columbia November 3, 2020 Place and Date of Judgment: Vancouver, British Columbia February 3, 2021 Written Reasons by: The Honourable Mr. Justice Goepel Concurred in by: The Honourable Mr. Justice Harris The Honourable Mr. Justice Abrioux Summary: The appellant suffered permanent nerve damage from a wisdom tooth extraction. She sued the surgeon for having failed to adequately inform her of the risk of potentially permanent nerve pain. The trial judge found that the surgeon had not adequately informed the appellant of the risk of nerve pain; however, the judge went on to find a reasonable person in the appellant’s position would have consented to the surgery even if properly informed and dismissed the claim. The appellant challenges the finding that she would have consented to the surgery even if properly informed. Held: Appeal dismissed. The trial judge properly applied the modified objective test in concluding that the appellant would have consented to the surgery even if adequately informed of the risks. Absent a palpable and overriding error, the trial judge’s conclusions were entitled to deference. Reasons for Judgment of the Honourable Mr. Justice Goepel: INTRODUCTION [1] The appellant, Elaine Warlow, appeals the dismissal of her claim for injuries suffered during a wisdom tooth extraction performed by the personal respondent, Dr. Ali Sadeghi. During the surgery, Dr. Sadeghi injured a nerve in Ms. Warlow’s lower right jaw, resulting in permanent and debilitating nerve pain that has altered virtually every aspect of her life. [2] Ms. Warlow sued Dr. Sadeghi in negligence. By the time of the trial, the parties had agreed that Dr. Sadeghi had performed the wisdom tooth extraction to the required standard of care. The remaining issue regarding liability was whether he had obtained Ms. Warlow’s informed consent before the surgery. [3] Justice Iyer found that Dr. Sadeghi did not adequately inform Ms. Warlow of the risk that having her wisdom tooth extracted could result in temporary or permanent nerve pain. Justice Iyer went on to find that Dr. Sadeghi was not required to expressly disclose the risk of permanent severe nerve pain because that risk was too remote. She further found that a reasonable person in Ms. Warlow’s circumstances would have decided to go ahead with the surgery even if the risk had been fully disclosed. [4] Ms. Warlow submits that the trial judge erred in finding that Ms. Warlow would, if properly advised, have proceeded with the surgery. Dr. Sadeghi submits that Ms. Warlow has not identified any error of fact or law that would permit this Court to allow the appeal. BACKGROUND [5] To put the legal issues in context, it is necessary to first review the events leading up to the surgery. [6] In 2010, Ms. Warlow was 41 years old and living in Vancouver. Since 2001, she had primarily been working as a full-time server at a busy restaurant. She enjoyed her work and was very good at it. She usually worked the busiest shifts, took extra shifts, and also worked part-time at other jobs. She had an active social life and enjoyed the outdoors, going to the gym, and dancing with friends. Ms. Warlow was generally healthy; although, she had previously undergone medical procedures, including two sinus surgeries and other dental work. [7] In August 2010, Ms. Warlow successfully applied for a position as a flight attendant with Sunwing Airlines. After completing medical, fitness, and security clearances, she commenced Sunwing’s intensive flight attendant training program towards the end of September. [8] Also in September, Ms. Warlow began experiencing a painful toothache and facial swelling in her lower right jaw. She went to her regular dentist, Dr. Gardner, whose notes record that Ms. Warlow came in for an emergency appointment on September 17, and that he tested the vitality of her lower right first molar (tooth 46). She returned to his office on September 23. Dr. Gardner’s notes for that visit state that he had planned to do restorative work on her lower right first and second molars (teeth 46 and 47) but did not proceed because he was unable to freeze the area adequately. Dr. Gardner placed some interim restorative material on those teeth as a temporary solution and told Ms. Warlow to call him if the pain worsened. [9] The pain did worsen, but when Ms. Warlow called Dr. Gardner later that day, she was told he had left the office. Ms. Warlow searched online for an emergency dentist and found Dr. Martin, who saw her that afternoon. Dr. Martin’s notes record that Ms. Warlow had pain and swelling in the gum around tooth 47 and that she had seen her regular dentist earlier that day for restorative work. Dr. Martin recorded that he was unable to probe the area without significant pain and noted that Ms. Warlow appeared to have a gum infection, which he described as a “gingival abscess, possible impacted food.” Unable to do anything else owing to the pain Ms. Warlow was in, he prescribed antibiotics for the infection and scheduled a follow-up appointment. [10] Ms. Warlow saw Dr. Martin for the follow-up appointment on September 29. He took a panoramic x-ray (“panorex”) of her mouth. He recorded that the infection had improved but that the area still ached. He noted that Ms. Warlow had “8–9 mm pockets” on the distal side of tooth 47, which was concerning as deep gum pockets are prone to infection. Dr. Martin wrote that pericoronitis (inflammation and infection of the gum around a wisdom tooth) was likely. He recommended Ms. Warlow have her impacted lower right wisdom tooth (tooth 48) extracted. He referred her to Dr. David, an oral and maxillofacial surgeon, on October 4 for a possible extraction. [11] In the week prior to October 4, Ms. Warlow completed the first week of Sunwing’s flight attendant training program. [12] On October 4, Ms. Warlow arrived at Dr. David’s office and was told that Dr. Sadeghi, an oral and maxillofacial surgeon who practiced with Dr. David, would see her instead. Dr. Sadeghi recommended extracting tooth 48. He advised Ms. Warlow that a risk of the surgery was temporary or permanent nerve injury, which he described as altered sensation, pins and needles, and/or numbness. He also discussed Ms. Warlow’s other options and their risks and benefits, including extracting tooth 47 or leaving both teeth in place. Ms. Warlow elected to proceed with the extraction of tooth 48 and signed a generic consent form for the surgery. The form stated that “the anticipated nature and effect of the proposed surgery” with intravenous sedation had been explained to Ms. Warlow and continued: I confirm that I have been informed that as a result of the surgery, I may experience some of the more common post operative symptoms such as: swelling, discomfort, dry socket, or infection. I am aware that in some situations there is a risk of temporary and/or permanent numbness or altered sensation of the lower lip, chin, gums or tongue. I am aware that the removal of some upper teeth can result in sinus problems that may require additional treatment. I am also aware that teeth and/or restorations adjacent to the surgical area may require replacement following surgery. [Emphasis added.] [13] During the surgery, Dr. Sadeghi injured Ms. Warlow’s inferior alveolar nerve (“IAN”). Injury to the IAN is a known risk associated with extraction of the lower wisdom teeth. As a result of the injury, Ms. Warlow has experienced chronic and severe facial pain. She has seen pain specialists, an oral science specialist, a neurosurgeon with expertise in neurosurgical treatment of neuropathic pain, and her family doctor for treatment of her pain, but none of the prescribed treatments have helped. [14] Ms. Warlow’s chronic pain has significantly impacted her life. At the time of the surgery, she was in Sunwing’s training program to become a flight attendant. Following surgery, she completed the program; however, her pain and the side effects of prescribed medications have made it impossible for her to work as a flight attendant. She resumed her previous employment as a server at a restaurant, but her pain limited her schedule to a maximum of two shifts per week, each of which needed to be during the day and limited to a few hours. The pain also adversely affected the quality of her work. As a result, her earning ability has decreased. [15] The pain has also affected other aspects of Ms. Warlow’s life. Eating became difficult, resulting in weight loss. She stopped exercising, dancing, and socializing, all of which had been important parts of her life before the surgery. She has become socially isolated. [16] In 2018, Ms. Warlow relocated from Vancouver to Victoria as a result of financial problems. She has been unable to find steady work and supports herself by cleaning homes two or three mornings per week. [17] The trial judge found that Ms. Warlow’s life had been devastated by the chronic and unresponsive neuropathic face pain from which she has suffered for over eight years. The judge held that there was nothing to suggest that Ms. Warlow’s situation will ever change. THE TRIAL REASONS [18] The central issue in the litigation was whether Dr. Sadeghi obtained Ms. Warlow’s informed consent before the surgery. It was common ground at trial that the test to be applied in such circumstance was the modified objective test established by the Supreme Court of Canada in Reibl v. Hughes, [1980] 2 S.C.R. 880 and reaffirmed in Arndt v. Smith, [1997] 2 S.C.R. 539. The trial judge summarized the test as follows: [44]      In summary, to establish a claim in negligence based on a lack of informed consent, a plaintiff must prove each of the following elements on a balance of probabilities: a) A risk that should have been disclosed to the plaintiff was not disclosed or not adequately disclosed in advance of the procedure; and b) A reasonable person in the plaintiff’s circumstances would not have consented to the procedure if properly advised of that risk. [19] The trial judge reviewed the evidence of Ms. Warlow and Dr. Sadeghi concerning their interactions before the surgery. Ms. Warlow and Dr. Sadeghi agreed that Dr. Sadeghi had reviewed with her the form she had completed; conducted a facial examination; showed her the panorex, pointing out how tooth 48 had rotated close to tooth 47; and indicating the location of her IAN canal. He recommended that she have tooth 48 extracted that day. Ms. Warlow read and signed the standard consent form. [20] Concerning risk disclosure, Ms. Warlow agreed that Dr. Sadeghi told her about the possibility of nerve damage but described it as “pins and needles” and “tingling” and that he did not tell her it could be permanent. Ms. Warlow recalled the conversation lasted only a few minutes. She testified that Dr. Sadeghi did not discuss with her any alternatives other than extraction of tooth 48. [21] Dr. Sadeghi testified that, following his standard practice, he would have discussed two alternatives to extracting tooth 48 with Ms. Warlow: extracting tooth 47 instead or leaving things as they were. He said he would have described to her the risks associated with both alternatives. He gave evidence of those risks. [22] Dr. Sadeghi testified he told Ms. Warlow that extracting tooth 47 would mean removing a functional molar, leaving the corresponding molar in her upper jaw without a complement and rendering it dysfunctional. Alternatively, leaving things as they were created the risk that acute infection, like the one that had originally sent Ms. Warlow to Dr. Gardner and Dr. Martin, could reoccur. Dr. Sadeghi said he told Ms. Warlow if the infection reoccurred, it would necessitate further antibiotic use and that there was a risk of the antibiotics becoming ineffective. He said he told her that a subsequent infection could also spread to the jaw and neck and might lead to hospitalization and death. [23] Dr. Sadeghi said he described to Ms. Warlow the consequences of injuring her IAN when extracting tooth 48 as altered sensation, including pins and needles and numbness, which could be temporary or permanent. He said he would have told Ms. Warlow that the chance of injuring her IAN was 1.5–2%. Dr. Sadeghi conceded that in describing the risk of nerve injury associated with the extraction of tooth 48, he did not tell Ms. Warlow there was a risk of “permanent nerve pain” or “permanent neuropathic pain.” He said he does not inform patients of the risk of permanent neuropathic pain because it is very remote. He said he has not seen any studies that quantify this particular risk and that he has never encountered a case of permanent neuropathic pain resulting from an IAN injury. [24] The trial judge found that both Ms. Warlow and Dr. Sadeghi were credible witnesses. She found Dr. Sadeghi’s evidence of what he discussed with Ms. Warlow before the surgery as more reliable than her account, and, to the extent that they conflicted, she preferred his evidence. She concluded that it was more likely than not that Dr. Sadeghi did discuss alternatives to the extraction of tooth 48 with Ms. Warlow, including the associated risks. She found he told her that extracting tooth 48 included a risk of “temporary or permanent nerve injury, but did not tell her there was any risk of neuropathic or nerve pain.” [25] On whether Dr. Sadeghi should have disclosed that nerve pain was a possible consequence and that it could be permanent, the trial judge agreed with Ms. Warlow that telling a dental patient there’s a risk of temporary or permanent “pins and needles” or “numbness” conveyed a qualitatively different meaning than telling a person that there was a risk of temporary or permanent nerve pain. This is because the sensation of pins and needles or numbness is strongly associated with the relatively benign and temporary effects of local anesthetic in the gums wearing off, whereas “pain” has more serious connotations to the ordinary patient. She found that in describing the consequence of the risk of nerve injury to Ms. Warlow, Dr. Sadeghi ought to have included the word “pain” along with other terms he used. [26] The trial judge rejected Ms. Warlow’s submission that Dr. Sadeghi ought to have specifically mentioned there was a possibility of “severe debilitating chronic neuropathic pain.” She found the evidence did not establish that this was a reasonable, foreseeable risk. In that regard, she relied on the evidence that Dr. Sadeghi and an expert called on his behalf, Dr. Aidelbaum, who both testified that they knew of no other cases of permanent severe nerve pain arising from an IAN injury. [27] Having found that Dr. Sadeghi ought to have included nerve pain as a possible consequence of an IAN injury, the trial judge turned to the question as to whether a reasonable person in Ms. Warlow’s circumstances would have consented to the procedure if properly advised of that risk. In considering this question, the judge made two critical findings. She found that Ms. Warlow’s evidence did not address whether she would have agreed to go ahead with the surgery if Dr. Sadeghi had included nerve pain in his description of a 1.5–2% risk of temporary or permanent nerve injury. She further held that a reasonable person in Ms. Warlow’s circumstances would have consented to the surgery if the consequences of the nerve injury had been adequately described. After discussing the circumstances relevant to the reasonable person analysis she summarized her conclusion as follows: [83]      Considering all of these circumstances, I find that a reasonable person in Ms. Warlow’s shoes would have consented to the extraction of tooth 48 by Dr. Sadeghi, even if properly advised that the consequences of nerve injury included temporary or permanent nerve pain as well as the other sensations Dr. Sadeghi described. [28] Having found that Ms. Warlow had not established the elements required to prove a lack of informed consent, the trial judge dismissed the action. ON APPEAL [29] On appeal, Ms. Warlow submits that the trial judge erred in finding that the appellant would have proceeded with the surgery if she had been properly advised of the material risk of permanent nerve pain. She submits that the trial judge misapplied and misinterpreted evidence of the appellant on this point and misapplied or failed to apply the modified objective test. [30] Dr. Sadeghi submits that Ms. Warlow has not identified any error of fact or law that would permit this Court to allow the appeal. He says that the trial judge properly applied the modified objective test. DISCUSSION [31] The modified objective test is a test of causation: Reibl at 898–900. It asks whether a reasonable person in the plaintiff’s circumstances would have consented to the proposed treatment if all the risks, benefits, and alternatives had been disclosed. The test relies on a combination of objective and subjective factors to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. Arndt at para. 17. [32] Causation is a question of fact, which attracts a deferential standard of review. Absent palpable and overriding error, deference must be given to the trial judge’s findings: Ediger v. Johnston, 2013 SCC 18 at para. 29. [33] At trial, Ms. Warlow had the burden to prove each element of her cause of action in informed consent: a) a material, special, or unusual risk was not disclosed to her in advance of the surgery; and b) a reasonable person in her position would not have agreed to the surgery if she had been sufficiently advised of such risk. [34] Ms. Warlow proved the first element of her cause of action. She should have been told in advance of the surgery that permanent nerve pain was a possible consequence. [35] The second element is a two-part test. The first part is subjective; the second part is objective.  In Bollman v. Soenen, 2014 ONCA 36, the court set out the elements of the test: [21]      The subjective test is based on what the particular patient would have agreed to if the risks were known. It will of necessity vary from patient to patient and take into account factors unique to the individual. The objective test is based on what a reasonable person in the respondent's position would have done. Both the subjective and the objective criteria must be established for the respondent to prove on balance of probabilities that she is entitled to damages for the lack of informed consent. [Emphasis added.] [36] To meet the subjective part of the modified objective test, Ms. Warlow needed to testify that if the material risks or treatment alternatives had been adequately disclosed, she would not have consented to the surgery. There can be no finding on what she would have done if she is not asked what she would have done had she been properly advised: Bollman at paras. 25–26. [37] Ms. Warlow contends that the trial judge erred in finding that she did not give evidence on what she would have done if properly informed of the risk of nerve pain. She argues the trial judge should have understood her testimony as including what she would have done if properly informed of the risk of “lesser pain” than “permanent, debilitating” nerve pain. [38] The judge did review Ms. Warlow’s evidence concerning what she would have done if properly informed: [79] Ms. Warlow was asked in her direct examination whether she would have consented to the surgery if she had known that it would turn out as it did. She said that she would not have gone ahead if she had known she would “end up like this.” As Dr. Sadeghi points out in his submission, that evidence is not particularly helpful. No one who undergoes a medical procedure that leaves them worse off than before would consent to the procedure if they knew for certain that would happen. Rather, it is useful to ask whether a plaintiff would have gone ahead if he or she had been fully informed about the risks of material adverse consequences. [80] That question was not put clearly to Ms. Warlow. After stating that she would not have consented to the surgery if she had known the outcome, the questioning continued as follows: Q. And what about the possibility of complications? A. No Q. Well, what do you mean by that “no”? A. As far as a possibility of how I’d end up now? Q. yes A. No. Q. if that was explained to you what would your reaction be? A. I would have left. I wouldn’t have – I would have asked for a second opinion or I – if it was told to me then I would have known. I would have had options. [81] For the reasons given in the preceding section, I have found that the possibility of permanent debilitating nerve pain was so remote that it was not required to be disclosed. It is clear that Ms. Warlow understood “complications” to mean “the possibility of how I’d end up now”. Having found that this was not a reasonably foreseeable outcome, Ms. Warlow’s evidence does not address whether she would have agreed to go ahead with the surgery if Dr. Sadeghi had included nerve pain in his description of a 1.5–2% risk of temporary or permanent nerve injury. [39] Ms. Warlow had the burden to prove what she would have done if she had been properly warned. In this case, as set out in the above excerpt, Ms. Warlow was not asked what she would have done if properly warned. She did not provide the testimony necessary to meet her burden on the subjective aspect of the modified objective test. Faced with this dearth of evidence, the trial judge could not infer what Ms. Warlow would have done. The insufficiency of the evidence means the plaintiff failed to meet her burden, and the trial judge did not err in dismissing her action. [40] Even if it could be said that the trial judge erred in her handling of the subjective aspect of the modified objective test, Ms. Warlow still faces an insurmountable hurdle. The trial judge found an adequately informed reasonable person in Ms. Warlow’s shoes would have proceeded with the surgery. Ms. Warlow contends the trial judge failed to consider the two alternatives to treatment when determining what a reasonable person in the appellant’s position would have done. It is clear, however, from the trial judge’s reasons that she was alive to the two alternatives. In that regard, she outlined the evidence concerning the two alternatives and their consequences: [51]      Dr. Sadeghi said that he told Ms. Warlow that extracting tooth 47 would mean removing a functional molar, leaving the corresponding molar in her upper jaw without a complement and rendering it dysfunctional. Alternatively, leaving things as they were created the risk that acute infection, like the one that had originally sent Ms. Warlow to Dr. Gardner and Dr. Martin, could recur. Dr. Sadeghi said he told Ms. Warlow that if the infection recurred, it would necessitate further antibiotic use and a risk of antibiotics becoming ineffective. He said that a subsequent infection could also spread to the jaw and neck, and might lead to hospitalization and death. [41] The trial judge carefully reviewed the circumstances relevant to the reasonable person analysis: [82]      In summary, the circumstances relevant to the reasonable person analysis are: · Ms. Warlow had recently experienced an acute gum infection and understandably would have been concerned to avoid a recurrence, especially because she was embarking on an exciting new career; · Both Dr. Martin and Dr. Sadeghi advised Ms. Warlow that extraction of her wisdom tooth was the best option for her and Ms. Warlow generally trusted and relied upon the advice of health professionals; · Wisdom tooth removal is a common procedure; · Ms. Warlow had had various kinds of dental work previously; and · Ms. Warlow consented to the surgery knowing that there was a 1.5–2% risk of temporary or permanent nerve injury that could result in altered sensation, numbness and/or pins and needles. [42] Ms. Warlow has not identified any palpable and overriding error in the trial judge’s findings relevant to the modified objective test. Instead, she simply says the findings should have led the judge to a different conclusion. It is not this Court’s role to reweigh the evidence; the trial judge’s findings are entitled to deference. [43] In the result, I would dismiss the appeal. “The Honourable Mr. Justice Goepel” I AGREE: “The Honourable Mr. Justice Harris” I AGREE: “The Honourable Mr. Justice Abrioux”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Richet, 2021 BCCA 50 Date: 20210204 Docket: CA45648 Between: Regina Respondent And Kelly Michael Richet Appellant Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Groberman The Honourable Madam Justice Stromberg‑Stein On appeal from: An order of the Supreme Court of British Columbia, dated July 20, 2018 ( R. v. Richet , Prince George Docket 44239). Counsel for the Appellant: J.C. LeBlond Counsel for the Respondent: C. Lusk Joint Written Submissions Received: January 21, 2021 Place and Date of Judgment: Vancouver, British Columbia February 4, 2021 Written Reasons of the Court Summary: Held: Appeal allowed by consent increasing credit for pre‑sentence custody. Reasons for Judgment of the Court: [1] Kelly Michael Richet was convicted of a number of offences. On Count 5, recklessly discharging a firearm, and Count 6, aggravated assault, he received a global sentence of six years (2190 days) on each count, concurrent. He was given no credit for pre‑sentence custody. He appeals his sentence on these two counts. The Crown consents to his appeal. [2] The parties agree that Mr. Richet was entitled to 569 days pre‑sentence credit and his sentence on Count 5 and Count 6 should be reduced to 1621 days. [3] In light of the Crown’s agreement, we would grant the extension of time to appeal, grant leave to appeal, and allow the appeal to the extent of reducing the sentence to 1621 days concurrent on Counts 5 and 6, in addition to pre‑sentence credit of 569 days. “The Honourable Madam Justice Saunders” “The Honourable Mr. Justice Groberman” “The Honourable Madam Justice Stromberg‑Stein”