COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Main v. The Hershey Company,

2011 BCCA 21

Date: 20110118

Docket:
CA038259

Between:

Jacob Stuart Main

Respondent

(Plaintiff)

And

The Hershey
Company and Hershey Canada Inc.

Appellants

(Defendants)

And

Cadbury Schweppes
Plc, Cadbury Adams Canada Inc., Itwal Limited,
Mars, Incorporated, Mars Canada Inc. formerly known as Effem Inc.,
Nestle S.A. and Nestle Canada Inc.

Respondents

(Defendants)

The
front page of the judgment was corrected on April 4 and 7, 2011.

Before:

The Honourable Mr. Justice Hall

The Honourable Madam Justice Levine

The Honourable Mr. Justice Tysoe

On appeal from: Supreme
Court of British Columbia, June 10, 2010
(
Main v. Cadbury Schweppes plc
, 2010 BCSC 816, Vancouver Registry S078807)

Oral Reasons for Judgment

Counsel for the Appellants:

J.S. Maidment
A. Boudreau

Counsel for the Respondent, J.S. Main:

L.P. Brasil

Counsel for the Respondents, Cadbury Schweppes plc &
  Cadbury Adams Canada Inc. :

C. Naudie

Counsel for the Respondent, Itwal Ltd.:

M. Lam
D. Houston

Counsel for the Respondents, Mars Inc. & Mars Canada
  Inc.:

J.C. MacInnis

Counsel for the Respondent, Nestle S.A. & Nestle
  Canada Inc.:

D. Neave

Place and Date of Hearing:

Vancouver, British
  Columbia

January 17, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 18, 2011

[1]

LEVINE J.A.
: These appeals are from the orders of a Supreme Court
justice approving a settlement agreement in a class proceeding.

[2]

The class action was brought against four chocolate manufacturers (which
I will refer to in these reasons for judgment as Cadbury, Hershey, Mars, and
Nestle) and a chocolate distributor (ITWAL Limited), alleging price fixing. The
causes of action are the intentional torts of conspiracy and interference with
economic relations, and a statutory claim for damages under s. 36 of the
Competition
Act
, RS 1985, c. C-34, for conduct contrary to Part VI of that
Act
.

[3]

The plaintiff settled with Cadbury and ITWAL. The terms are summarized
in the appellant, Hersheys, factum, as follows:

a)

Cadbury
will pay $5.7 million in respect of the claims of the entire Canadian
settlement class;

b)

ITWAL will
pay no money but instead will assign to the plaintiff any right of action that
ITWAL may have against the NSDs;

c)

The
plaintiff will pursue the NSDs jointly and severally for the alleged
overcharges collected by the SDs;

d)

Any claim
by the NSDs or any other person for contribution and indemnity against Cadbury,
ITWAL or any of the other numerous other Releasees will be prohibited; and

e)

Notwithstanding the settlement with the SDs, the plaintiff will
restrict his claim against the NSDs to the NSDs proportionate share of
liability only if and when the NSDs establish, at trial, that there is a right
of contribution and indemnity. Thus, the NSDs remain exposed to liability for
profits earned and retained by Cadbury and ITWAL.

[4]

The SDs are the Settling Defendants (Cadbury and ITWAL). The NSDs
are the Non Settling Defendants (Hershey, Mars and Nestle), who are the
appellants in the three appeals.

[5]

The approval of the settlement was made pursuant to ss. 12 and 13 of the
Class Proceedings Act
, R.S.B.C. 1996, c. 50:

12.       The court may at any time make any order it
considers appropriate             respecting the conduct of a class proceeding
to ensure its fair and expeditious determination and, for that purpose, may
impose on one or more of the parties the terms it considers appropriate.

13.       The court may at any
time stay any proceeding related to the class             proceeding on the
terms the court considers appropriate.

[6]

The chambers judge followed the reasoning of Strathy J. of the Ontario
Superior Court in the related Ontario proceeding:
Osmun v.
Cadbury Adams Canada Inc.
,
2010
ONSC 2643("
Osmun
settlement reasons"). Subsequent to the BC
approval, the settlement was also approved by the Quebec Superior Court, and
the Ontario Court of Appeal upheld the judgment of Strathy J. (2010 ONCA 841). Counsel
informed us at the hearing of these appeals that applications for leave to
appeal to the Supreme Court of Canada will be made from the order of the
Ontario Court of Appeal, and, if these appeals are dismissed, from the order of
this Court.

[7]

The crux of the settlement agreement is a bar order,
which the appellants refer to as injunctions and stays of proceedings. The
bar order prohibits any claim for contribution or indemnity by NSDs against
SDs, and permits the plaintiffs, unless the law permits the NSDs to claim
contribution and indemnity, to claim joint and several damages from the NSDs
for all of their damages, including those that would have been apportioned to
the SDs if they had not settled.

[8]

The salient provisions of the bar order are:

1.
.... (I)   Proportionate Liability means
that proportion of any judgment that, had they not settled, this Court would
have apportioned to the Cadbury Releasees; and ...

20.
THIS COURT ORDERS that all claims for
contribution, indemnity or other claims over, whether asserted, unasserted or
asserted in a representative capacity, inclusive of interest, taxes and costs,
relating to the Released Claims (including, without limitation, the ITWAL
Claims, whether held by ITWAL or an assignee) which were or could have been
brought in the Main Proceedings or the Additional Proceedings (whether or not
brought in the Main Proceedings or in the Additional Proceedings), by any
Non-Settling Defendant or any other Person or party, against a Cadbury
Releasee, or by a Cadbury Releasee against any Non-Settling Defendant or any
other Person or party (), are barred, prohibited and enjoined in accordance
with the terms of this order.

21
. THIS COURT ORDERS
that if the Court determines that there is a right of contribution and
indemnity or other claim over, whether in equity or in law, by statute or otherwise:

(a)  the members of the BC Settlement Class shall
not be entitled to claim or recover from the Non-Settling Defendants that
portion of any damages (including punitive damages, if any), restitutionary
award, disgorgement of profits, interest and costs (including investigative
costs claimed pursuant to s. 36 of the
Competition Act
) that corresponds
to the Proportionate Liability of the Cadbury Releasees proven at trial or
otherwise; and

(b)  this Court shall
have full authority to determine the Proportionate Liability of the Cadbury
Releasees at the trial or other disposition of this action, whether or not the
Cadbury Releasees appear at the trial or other disposition and the
Proportionate Liability of the Cadbury Releasees shall be determined as if the
Cadbury Releasees are parties to this action and any determination by this
Court in respect of the Proportionate Liability of the Cadbury Releasees shall
only apply in this action and shall not be binding on the Cadbury Releasees in
any other proceedings.

[9]

The chambers judge found, leaving aside the question of the fairness of
the bar orders, that the settlement agreements were fair and reasonable and
... in the best interests of the class (at para. 11). He also found there is
nothing unfair about the terms of bar order (at para. 20):

In summary,
there is nothing unfair about the terms of the bar order. The NSDs continue to
have the ability to claim the right of contribution and indemnity from the SDs.
If they are successful with that argument, the settlement will be
"symmetrical". If they are not successful, it will not. They have not
lost any substantive right as a result of the bar order.

[10]

In their factums, the appellants contended that the broad and sweeping
injunctions are not authorized by ss. 12 and 13 of the
CPA
, and in any
event the chambers judge did not apply the proper legal tests in making the
orders. They maintain that the bar order creates a material risk of unfairness
to the NSDs and others.

[11]

On the hearing of the appeals, counsel for Hershey, who made submissions
that were adopted by the other appellants, argued that the terms of the
settlement are contrary to the intention of the BC Legislature embodied in ss.
4(1) and (2) of the
Negligence Act
, R.S.B.C. 1996, c. 333, and the
principles established by this Court for partial settlements in
British
Columbia Ferry Corp. v. T & N plc
, (1996), 16 B.C.L.R. (3d) 115 (C.A.).
Counsel argued that the
Act
clearly provides that where several
tortfeasers are made subject to joint and several liability, they have a right
of contribution and indemnity against each other: see
Brown v. Cole
(1995), 14 B.C.L.R. (3d) 53 (C.A.), 43 C.P.C. (3d) 111 at para. 29, quoting
Lambert J.A. in
London Drugs Ltd. v. Kuehne & Nagel  International Ltd.
(1990), 45 B.C.L.R. (2d) 1, affirmed [1192] 3 S.C.R. 299. He says further that
the
BC Ferry
model for partial settlements embodies the legislative
intent by limiting a plaintiffs claim against non-settling defendants to their
proportionate liability where claims by the non-settling defendants for
contribution and indemnity against the settling defendants are excluded by the
settlement.

[12]

The appellants say that the law in BC is well-established that the
apportionment provisions in the
Negligence

Act
apply to
intentional torts, and therefore the bar order in this case should have
followed the
BC Ferry
model. Counsel for the appellants argued that the
chambers judge erred in approving the bar order ostensibly on the basis that
the law in BC as to apportionment in cases of intentional torts is unsettled,
citing the chambers judges reasons (at para. 19):

Finally,
I reject the suggestion that the law in British Columbia is different such that
any bar order must contain the symmetrical provisions that are usually seen in
a
B.C. Ferry
release. Courts in other provinces have decided that fault
does not include torts other than negligence. The British Columbia courts have
accepted that fault applies to a broad variety of intentional wrongs:
Anderson
v. Stevens
(1981), 29 B.C.L.R. 355 (S.C.);
Aylsworth v. Richardson
Greenshields of Canada Ltd
(1987), 21 B.C.L.R. (2d) 49 (C.A.); and
Brown
v. Cole
(1995), 14 B.C.L.R. (3d) 53 (C.A.). However, the issue has not been
considered by the Supreme Court of Canada. In
Blackwater v. Plint
, 2005
SCC 58, a case from British Columbia, the Court had the opportunity to consider
the issue but decided that it was not necessary to do so in order to render a
decision (para. 67). More importantly, the specific issue that needs to be
considered in this case -- whether there is a right of contribution and
indemnity between co-conspirators in a case involving price-fixing claims and
breaches of the
Competition Act
-- has not been considered by any court
in Canada. The NSDs' suggestion that the law is settled in British Columbia is,
quite simply, without merit.

[13]

Counsel conceded that the chambers judge was correct when he said that
no court in Canada has considered whether apportionment applies to the
statutory claim under the
Competition Act
. He maintained nonetheless
that the chambers judge has introduced uncertainty into the law where there is
none, and erred in approving the settlement on that basis.

[14]

It is my opinion that the appellants arguments are simply untenable. The
chambers judge made no error in summarizing the present state of the law in BC
or Canada, and the provisions of the bar order clearly contemplate these
circumstances. They bar the NSDs claims for contribution and indemnity, but
provide that where there is a legal right of contribution and indemnity, the BC
plaintiffs claim against the NSDs will not include the proportionate
liability of the SDs -- effectively the
BC Ferry
model. Thus, if the
NSDs are found liable for intentional torts to which the contribution and
indemnity provisions of s. 4 of the
Negligence Act
would have applied
but for the bar order, the BC plaintiffs claims will be limited to the NSDs
proportionate liability. If the NSDs are found liable for damages under s. 36
of the
Competition Act
, and it is determined that no apportionment
provisions apply, the
BC Ferry
model does not apply. All of this is
consistent with the appellants arguments about the policy of the Legislature
embodied in s. 4 of the
Negligence Act
and the principles developed by
this Court in
BC Ferry

Corp.

[15]

Appellants counsel could not identify any prejudice to the NSDs from
the bar order, other than the necessity to continue to be involved in the
litigation and establish the nature of their liability, if any. Such prejudice,
however, does not arise from the bar order but from the litigation itself. The
NSDs settlement prospects, and the strategy they follow in seeking settlement,
are not matters in which this Court can involve itself.

[16]

All other matters concerning the fairness of the settlement have been
thoroughly canvassed in the reasons for judgment of Strathy J. in the
Osmun
settlement reasons and by the chambers judge in his reasons for judgment, and
the appellants did not raise any issues other than the terms of the bar order. I
agree with the Ontario Court of Appeal that the bar order does not interfere
with [the appellants] substantive rights, and accordingly, I would dismiss
the appeals.

[17]

HALL J.A.
: I agree.

[18]

TYSOE J.A.
: I agree.

[19]

HALL J.A.
: The appeals are dismissed.

(submissions by
counsel re. costs)

[20]

HALL J.A.
: It occurs to me that the four counsel who are here for
the respective four appellants will want to say something. There are two
approaches that I could suggest. We do have some written material from learned
counsel for the respondents. If counsel for the appellants deem it requisite or
desirable that they have an opportunity to provide something in writing, we
would certainly be open to that suggestion, but we would not foreclose counsel
at the present moment from saying anything they want to orally.

(submissions by
counsel re. filing written submissions)

[21]

HALL J.A.
: I think that we would afford to counsel for the
appellants a period of 21 days to file written material, they think requisite,
with the Registrar, and that following that the respondents would have 10 days
from that period to file anything in writing that they think is requisite in
response. We would then let you know what we think. My intention is that within
about a month we will have the materials from all sides then we can address the
issue. We will reserve on that issue until we receive the material.

The Honourable Mr. Justice Hall

The
Honourable Madam Justice Levine


COURT OF APPEAL FOR BRITISH
COLUMBIA

Citation:

R. v. Bi,

2011 BCCA 10

Date: 20110118

Nos:
CA037710; CA037711

Docket:
CA037710

Between:

Regina

Respondent

And

Luo Zhang Bi

Appellant

Docket:  CA037711

Between:

Regina

Respondent

And

Jian Yi Deng

Appellant

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Low

The Honourable Madam Justice Garson

On appeal from:
Provincial Court of British Columbia, July 23, 2009,
(
R. v. Bi and Deng
, Vancouver Docket No. 182552-1)

Counsel for the Appellants:

C. Johnson

Counsel for the Respondent:

V. Hartney

Place and Date of Hearing:

Vancouver, British
  Columbia

November 26, 2010

Place and Date of Judgment:

Vancouver, British
  Columbia

January 18, 2011

Written Reasons by:

The Honourable Mr. Justice Low

Concurred in by:

The Honourable Madam Justice Newbury
The Honourable Madam Justice Garson

Reasons for Judgment of the Honourable
Mr. Justice Low:

[1]

The appellants are husband and wife.  They were convicted by Howard P.C.J.
of unlawful cultivation of marijuana, possession of marijuana for the purpose
of trafficking and theft of electricity.  They admit that they were the
upstairs tenants of a Burnaby house in the basement of which police found a
grow operation, and that the evidence supports the conclusion that they had
knowledge of it.  However, they contend that the evidence was insufficient to
support the conclusion reached by the trial judge that they were parties to the
offences charged.

[2]

The trial courts in this province hear numerous cases involving offences
arising out of the discovery of marijuana grow operations in single-family
residences.  Many of these cases are concerned with whether accused persons
found to be living in the house are criminally implicated in the exposed drug
enterprise.  Evidence that establishes mere knowledge of the criminal conduct
taking place in the residence is not enough.  There must also be evidence from
which it can be inferred that the accused person owned the marijuana crop,
cultivated the crop, aided or abetted somebody else in the criminal operation,
or otherwise had some control over the crop.

[3]

Neither appellant testified.  They called Oy Yen Pat as the only defence
witness.  He is the son of the property owner, Ze Ling Xu.  The judge discussed
his evidence as follows:

[5]        ...
He testified that in early
2007, he was sent by his mother to collect rent from the tenants of this
residence while she was away in Hong Kong.  He attended the residence in early
2007 on two occasions.  He understood that there were two tenants; Mr. Bi and
Ms. Deng in the upstairs, and a person whose name he could not recall, maybe it
was David, who allegedly rented the basement.  Mr. Pat explained that he called
first to say that he was coming to collect the rent.  On both occasions, he
knocked on the front door of the residence and collected rent directly from Mr.
Bi for the upstairs, and on both occasions the downstairs tenant met him
outside the suite or the basement to deliver the rent to him in cash.  Because
he met the downstairs tenant outside, he never looked inside the basement.  He
had no idea there was a marihuana grow operation there.

[6]        Mr. Bi is in fact Mr. Pats
uncle, the brother of Mr. Pat's father.  Mr. Pat explained that his parents had
been divorced for some 15 years.  He had little contact with his father over
those years, and he did not know that Mr. Bi was his uncle although his mother
did.  He only learned this fact from his mother sometime after the execution of
the search warrant at the residence.

[7]        I have not found Mr. Pats
testimony to be particularly

persuasive.
Even though I am concerned about the reliability of his testimony, I cannot
conclude beyond a reasonable doubt that it must be rejected.  There is no
evidence directly contradicting his testimony or any other evidence that leads
me to conclude beyond a reasonable doubt that Bi and Deng were the only
tenants.  Given this conclusion,
I am proceeding on the basis that there
were two tenants at the residence
, giving the benefit of the doubt to the
accused.  Bi and Deng clearly lived upstairs and rented the upstairs portion.
The unknown David was the basement tenant.

[8]        Based on the evidence, it would
be clear that David was a full party to the marihuana production and theft of
electricity that was occurring or that consumed his portion of the residence.
This fact alone does not lead to a reasonable doubt as to the role of the
accused in this operation. However, it is an important fact that must be
considered in context with all the evidence before.

[Emphasis
added.]

[4]

The evidence of Oy Yen Pat did not disprove involvement of the
appellants in the grow operation.  It only served to require the court to
examine the evidence on the basis that there was a separate tenant in the basement
who likely owned the marijuana and had access to it.

[5]

It is reasonable in such cases to start with the premise that the owner
of an illicit marijuana crop in a single-family residence would take steps to
ensure that occupants of the premises would be people not disposed to report
the illegal activity to the police.  To that end, the owner of the marijuana
might well employ the occupants as gardeners of the crop or give them a
security role, or both.

[6]

Police officers executed a search warrant at the house on 4 April 2007.
The appellants and their teenage son lived on the main floor and all of them
were home at the time of the search.  The entire basement was used for the
production of marijuana.  There were 375 marijuana plants, 132 grams of dried marijuana
bud and six grams of marijuana shake.  The value of the plants was between
$105,000 and $281,250.

[7]

The residence was of modest size.  On the main floor, there were two
bedrooms, one bathroom, a kitchen, living room and dining room.  There was an
odour of marijuana within this living area and fans used in the production of
marijuana in the basement could be heard.  There was condensation on many of
the windows on the main floor.  These facts compelled the concession that the
appellants had knowledge of the grow operation in the basement.

[8]

The trial judge described the evidence with respect to basement access:

[4]        I
begin by noting that in terms of the structure of the residence, access to the
upper floor from the basement level would normally have been available through
a stairway that ran from the basement up into the kitchen area.  However, when
the police attended, that stairwell was blocked by equipment, pipes, exhaust
pipes, and ducting related to the marihuana operation.  So the basement was not
accessible from the upstairs kitchen area through these stairs.  The police did
find a key that opened the exterior door to the basement.  It was found in a
drain pipe near to the basement door.

[9]

The hydro meter was on the outside of the south wall of the house just
above the ground.  Opposite the meter inside the basement there was an
unauthorized electrical by-pass.  There was evidence of an estimated loss of
hydro billing in the amount of $2,853.60.

[10]

In the living room, police found a current hydro bill and a current natural
gas bill, both in the name of the owner, Ze Ling Xu.

[11]

After noting, as was conceded, that both accused had knowledge of the
marijuana operation, the trial judge discussed the additional evidence that
tended to link the appellants with the illicit activity in the basement:

[10]
There were three other evidentiary
links between the upstairs tenants and the basement.  In one of the basement
rooms, the police located an overflowing ashtray full of cigarette butts; there
were two types, Players and a Chinese cigarette called Double Joy, I think is
the word.  If I have not got that correct, it is Double something.  The officer
confirmed that both cigarettes, both the Players cigarettes and this particular
brand of Chinese cigarettes were very common; the latter being common in the
Chinese community.  In the upstairs area where the accused live, the police
located cartons of cigarettes, Players and Double Joy.  The defence position is
that this may be mere coincidence given that the two brands are so popular.
The Crown points out, fairly, that there are only two brands of cigarettes
found in the residence and both are located in the upstairs portion and the
downstairs portion of the residence.

[11]      In addition, there was a very
amateurish video

surveillance
system set up in the upper bedroom -- upstairs bedroom of the son of Ms. Deng.
A hole was drilled through the drywall of the back wall of his bedroom, all the
way through the exterior wall of the back of the house.  Just around the corner
from this hole at the side of the house on the ground hidden amongst bricks was
a video camera pointing down this side of the house.  The video camera captured
the pathway from the front of the house to the rear.  It also captured that
area where the Hydro metre was located.  This is the metre that would be
checked by Hydro employees on a monthly or bi-monthly basis, and it is the same
metre that would be checked by Hydro employees during a possible investigation
or during an investigation of possible Hydro theft.  A cable ran from the video
camera up the back wall of the house, through the hole in the wall into the
bedroom and then from there to a VCR device and a monitor in the bedroom. When
the police entered the residence to execute the search warrant, the monitor was
on and the side of the home could be seen on the screen.

[12]      Thirdly, in the upstairs area of
the house, the police found a bag of marihuana in the butter section of the
refrigerator door.  It was ten grams of marihuana and it was described by one
officer as suitable for smoking.  This marihuana would be observable or
visible to anyone opening the refrigerator door.

[13]      The Crown relies upon the above
pieces of evidence in support of its position that Bi and Deng were not only knowledgeable
about the marihuana operation in the basement, but they were also parties to
that operation.

[14]      The
defence position is that there are innocent explanations for each of the above
three pieces of evidence and that the evidence as a whole does not establish
beyond a reasonable doubt that the accused had any measure of control over the
downstairs operation that, at a minimum, clearly belonged to the downstairs
tenant.  At best, it establishes passive acquiescence to an illegal activity
occurring in a part of the residence over which they had no control.

[12]

The judge also took into account the value of the marijuana operation,
including the product and the equipment, in considering whether the owner of
the operation would be content to have upstairs tenants exercising no control
over it.

[13]

Finally, the trial judge explained her conclusion that each of the
appellants was a party to the offences charged:

[17]
In my view, all of the evidence
taken as a whole, leads to only one conclusion.  That is that the only
reasonable inference to be drawn is that the accused were indeed parties to the
offences that were occurring in the basement of the residence.  Again, the
factors that have led me to this conclusion are the fact that the accused had
to have known about the illegal operation because of the odour and the sounds
from the basement, the presence of marihuana in the butter dish on the door of
the fridge in the accused upstairs residence, the fact that only two types of
cigarettes were found in the residence and both of these, Players and Double
Joy, were found in the accused portion of the residence and in the basement,
the key to the basement that was hidden in the drain pipe near the basement
door which would have been accessible -- which key would have been accessible
to the downstairs tenant and the accused, the video surveillance camera
operated from the back bedroom of the son of Ms. Deng, which was aimed at the
same walkway where the Hydro metre was placed, and the unlikely prospect that
the downstairs tenant would set up this valuable operation in the basement of
this residence without the cooperation or participation of the accused who
lived in the upstairs portion.

[18]      In the
end, I am satisfied beyond a reasonable doubt on all of this evidence, that the
accused were indeed parties to the offences before the court.  The evidence of
control, although circumstantial, has been established beyond a reasonable
doubt.

[14]

Thus the judge concluded that, together with the basement tenant, the
appellants were parties to the crimes committed.

[15]

The appellants contend that the trial judge erred in para. 16 of her
reasons by stating that it was a common sense inference that the downstairs
tenant would want the upstairs tenants to participate in the illicit operation.
The argument is that this imported the law as to the presumption of intent into
determining a fact other than intent.

[16]

I do not see the use of the phrase in its context to be a flaw in the
reasoning of the judge.  The ensuing sentence begins with the phrase (f)rom a
common sense perspective.  It is clear to me that the judge simply applied
ordinary human experience in her assessment of the evidence.  There was no
speculative reasoning.  As I have said above, it is common sense reasoning in
cases such as this that the owner of the marijuana-grow operation would want
exclusive residents of the premises to be involved in some aspect of the
operation.  That is part of the context in which the trial judge analysed the
evidence in this case.

[17]

The appellants argue that this court should set aside the verdicts of
the trial judge under s. 686(1)(a)(i) of the
Criminal Code of Canada
on
the basis that they are unreasonable or cannot be supported by the evidence.
The test under that section was stated in
Corbett v. The Queen
, [1975] 2
S.C.R. 275, at 282: The function of the court is not to substitute itself for
the jury, but to decide whether the verdict is one that a properly instructed
jury acting judicially, could reasonably have entered.

[18]

The test was confirmed in
R. v. Yebes
, [1987] 2 S.C.R. 168 and in
R. v. Biniaris
, [2000] 1 S.C.R. 381.  In
Biniaris
, Arbour J.
added this:

[37]      The
Yebes
test
is expressed in terms of a verdict reached by a jury.  It is, however, equally
applicable to the judgment of a judge sitting at trial without a jury.  The
review for unreasonableness on appeal is different, however, and somewhat
easier when the judgment under attack is that of a single judge, at least when
reasons for judgment of some substance are provided. In those cases, the
reviewing appellate court may be able to identify a flaw in the evaluation of
the evidence, or in the analysis, that will serve to explain the unreasonable
conclusion reached, and justify the reversal.

[19]

At para. 17 of her reasons, the trial judge stated that the only
reasonable inference to be drawn from the whole of the evidence is that the
appellants were parties to the offences charged.  This conclusion contains a
correct instruction as to the applicable law.  The judge had to ask herself
whether the only reasonable inference to be drawn from the proven facts was
that each appellant was guilty:
R. v. Cooper
(1977), 34 C.C.C. (2d) 18
(S.C.C.).  It is trite law that the court must consider the circumstances
cumulatively and not isolate each one and consider it separately.

[20]

The question of control over the marijuana applies only to the
possession count.  This can involve the question of proof of constructive
possession under s. 4(3) of the
Criminal Code
.  But that question need
not be specifically addressed if the Crown proves that the accused was a party
to the offences charged  as a principal offender or as an aider or abettor.
As I read the trial judges reasons, she found that the only reasonable
inference to be drawn from the whole of the evidence was that each of the
appellants was a party to each of the offences charged.  She did not have to
determine whether each was a principal, an aider or an abettor, only that each
was one or the other. The evidence established to her satisfaction that each
appellant was a principal or was otherwise a party to the offences.

[21]

In my opinion, the evidence as a whole supported the conclusion reached
by the trial judge that each of the appellants was a party to the offences
charged.  They were the tenants in the small home in which the grow operation
was discovered by the police and they had knowledge of the operation.  On the
floor they occupied, there was an electronic surveillance system set up to monitor
the location of the hydro meter, obviously a measure designed to provide
security for the criminal activity below.  Marijuana was in plain view in the
refrigerator upstairs.  The appellants had ready access to a key for the
outside basement door and therefore had ready access to the grow operation.  In
the basement there was an ashtray full of cigarette butts of the same two
brands contained in cigarette packages found upstairs.

[22]

There was expert evidence that the crop was valuable and would have
required tending at least every two days to maintain the plants.  The
environment was carefully controlled and advanced cultivation techniques were
in use.  The plants were in good condition.  These things suggest regular
attention to the crop consistent with at least some of the cultivation being
done by residents in the house.

[23]

Absent an innocent explanation capable of raising a reasonable doubt,
the cumulative effect of these circumstances is to compel the conclusion that
the appellants were parties to the cultivation and possession of the marijuana
and to the theft of electricity.  There was no flaw in the reasoning of the
trial judge and the evidence supported the convictions.

[24]

I would dismiss each appeal.

The
Honourable Mr. Justice Low

I agree:

The
Honourable Madam Justice Newbury

I agree:

The Honourable Madam Justice Garson


COURT OF APPEAL FOR BRITISH
COLUMBIA

Citation:

Sykes v. Rosebery Parklands Development Society,

2011 BCCA 15

Date: 20110119

Docket: CA037970

Between:

Brian Joseph Sykes
and Mary Jane Sykes

Respondents

(Plaintiffs)

And

Rosebery Parklands
Development Society

Appellant

(Defendant)

Corrected
Judgment:  The text of the judgment was corrected
at paragraphs [17], [44], [45], [47] and [48] on 23 February 2011.

Before:

The Honourable Chief Justice Finch

The Honourable Madam Justice Huddart

The Honourable Madam Justice Garson

On appeal from:
Supreme Court of British Columbia, 23 February 2010,
(
Sykes v. Rosebery Parklands Development Society
, 2010 BCSC 227, Kelowna
Docket 75905)

Counsel for the Appellant:

T.W. Pearkes,
A. Fernandez

Counsel for the Respondents:

D.M. Frechette

Place and Date of Hearing:

Kelowna, British
  Columbia

November 1, 2010

Place and Date of Judgment:

Vancouver, British
  Columbia

January 19, 2011

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Madam Justice Huddart

the Honourable Madam Justice Garson

Reasons for Judgment of the Honourable
Chief Justice Finch:

I.  Introduction

[1]

The defendant Society appeals from the order of the Supreme Court of
British Columbia pronounced 23 February 2010 following a summary trial under
Rule 18A granting the plaintiffs an easement over lands formerly owned by the
defendant, and now owned by the Regional District of Central Kootenay
(RDCK).  The easement grants the plaintiffs access from their property across
the defendants parkland for moorage on the waterfront of Slocan Lake.

[2]

The plaintiffs claim to the easement is based on proprietary estoppel.
The learned summary trial judge held that the defendants representations, the
plaintiffs reliance, and the parties conduct established an equity giving
rise to proprietary estoppel in the plaintiffs favour, and that it would be
unjust for the defendant to resile from its earlier position.

[3]

A licence for private moorage tenure must be obtained from the
Integrated Land Management Bureau (ILMB).  For this reason the courts order
includes this provision:

3.         the easement shall
establish access from Lot 2 across Lot 6 to the waterfront for moorage and
shall be granted in terms which will satisfy the Integrated Land Management
Bureau and result in the grant of a private moorage tenure.

[4]

On this appeal the defendant asserts that the foundation for proprietary
estoppel has not been made out, and attacks the order on several other grounds
as well.

[5]

For the reasons that follow I would not accede to any of the grounds of
appeal advanced, and would dismiss the appeal.

II.
Facts

[6]

In 1989 the Canadian Pacific Railway decided to sell its marshalling
yard located on Slocan Lake in Rosebery, B.C.  Some local residents decided to
purchase the land from the CPR and on 24 August 1989 incorporated the defendant
Society for that purpose.  Their goal was to create a public, low impact
tourism park.

[7]

Funds for the land purchase were raised from donations, an unsecured
loan, and a registered mortgage.  The Society proposed to repay the unsecured
loan and the mortgage by subdividing the land, and selling the subdivided lots.

[8]

The land was subdivided into six lots.  Lots 1 through 5 were intended
for sale to individual owners.  Lot 6 was retained by the Society for
parkland.  Lot 6 is an irregular shaped parcel, varying in width from 75 to 230
feet, and includes a strip of lake front that separates Lots 1 through 5 from
Slocan Lake.

[9]

Prior to the sale of the subdivided lots the Society granted an easement
in favour of Lots 1 through 5 which included this:

The Grantor does hereby grant,
convey and confirm unto the Grantee the full, free and uninterrupted right,
liberty and easement to use the Servient Tenement [Lot 6] for purposes of
ingress and egress from Slocan Lake by foot only.

[10]

Between 1989 and 1995 Lots 1 through 5 were sold to individual owners.
The proceeds of these sales were applied to the Societys mortgage liability.
There remained an balance owing of $68,000.

[11]

In 1994 an additional lot, Lot A, was subdivided from the parkland, Lot
6, but Lot A could not be sold for an amount sufficient to pay for the
Societys outstanding debts.  In 1995 Scott Leyland, a founder of the Society,
and its president from 1997 until 2006, loaned the society a sum sufficient to
pay out the mortgage.  When Lot A was eventually sold in 2005 the Society
repaid Mr. Leylands loan.

[12]

John Herrmann was also involved in the Society from its inception in
1989.  He was vice-president of the Society from about 1995 until 2006.

[13]

The plaintiffs became interested in acquiring a property in the subject
area in 2003.  The learned summary trial judge said:

[16] In 2003, the plaintiffs arrived from Alberta and
approached Leyland regarding the possible purchase of the lot owned by the
Society, lot A, as well as in regards to lot 2 which was privately owned but up
for sale. As the plaintiffs wished to moor a boat near any property they would
own, Mr. Sykes made inquiries with the Society regarding access to the lake and
rights of moorage prior to purchase.
Leyland deposes that he advised Mr.
Sykes that all lots in the subdivision had the right of common moorage. This is
confirmed in a facsimile Leyland sent to Mr. Sykes, attached to Leylands
affidavit.

[17]
Based in part on that representation, the plaintiffs
purchased lot 2 in the subdivision in the spring of 2003.
The plaintiffs
eventually built a home on their property. They became members of the Society
in 2003. The plaintiffs attended the Societys Annual Meeting in December 2003.
The only other people in attendance were Herrmann, Leyland and Betty Ann
Lawson. The plaintiffs were asked and became members of the board of the
Society.

[Emphasis added.]

[14]

The plaintiffs inquired about moorage and construction of a common dock,
but the Society took the view it could not afford a dock due to permitting and
insurance costs.  The learned judge said:

[19] The plaintiffs, Leyland, and Herrmann carried out
further discussions regarding the construction of a dock. In a letter dated
January 31, 2006, Leyland and Herrmann (writing in their capacities as
President and Vice-President of the Society) stated:

As requested by Brian and Mary Jane
Sykes, I am forwarding this document granting permission to moor a dock on the
shoreline of lot 6 in the Parklands in the northwest corner of the bay.

This subject has been discussed
since the inception of our society in 1989 and there has never been any
wavering. Owners of subdivided lots... will have access across lot 6 to the
shore and rights of moorage in a place we agree with (the corner of the bay as
is being proposed by the Sykes).

...So, to reiterate, we have built
into the covenants of each lot, the right to cross lot 6 to access Slocan Lake.
We have noted in several meetings (including AGMs) that moorage in the corner
of the bay would be a right of each lot owner.

[20] A further letter was sent by Leyland and Herrmann to the
plaintiffs on August 30, 2006, which stated in part:

The second part of this letter is
to confirm that the Society granted permission to the Sykes to place their
float perpendicular to the shore, in-line with the northwest iron-pin of lot 2.
This was after discussion and a site-visit with the architect Michael
Karassowitsch and John Herrmann.

[21] Prior to the dock being constructed, Mrs. Sykes
contacted the ILMB regarding the licencing process. She was informed that the
plaintiffs could install the dock before the licence was granted, and that
obtaining a licence should not be a problem as long as the Society consented.

[22] In the spring of 2006, the
plaintiffs constructed the dock at a cost of $12,000 and placed it in the
location agreed to in consultation with the Society on Slocan Lake, attached to
the Parkland lands. It is deposed by Leyland that the dock constructed by the
plaintiffs does not in any way restrict or limit the use of the Parkland. It is
used by members of the public for walking on and for mooring boats generally.

[15]

The Society held an annual meeting in September 2006.  Many more people
attended than had previously taken an interest in the Societys affairs.  They
were opposed to the construction of the Sykes dock.  Mr. Leyland subsequently
resigned as president of the Society.

[16]

The plaintiffs tried, unsuccessfully, to resolve issues related to the
dock with the Society.  This eventually led to the plaintiffs commencing this
lawsuit against the Society on 25 June 2007, and their filing of a certificate
of pending litigation against the parkland.  The judge recorded that:

[28] On September 26, 2008, the Society transferred the
Parkland to the Regional District of Central Kootenay (RDCK). RDCK did not
pay for the land and the transfer was essentially a gift from the Society. At
the time of the transfer the Society required RDCK to register a restrictive
covenant on the title of lands. The covenant includes a term which purports to
restrict the rights of moorage.

[29] RDCK took no part in this
proceeding. I am satisfied that they are aware of it. I am satisfied that they
were aware of the nature of this litigation when they took title to the
property. They are aware from reviewing the pleadings that the Court is being
asked to modify the easement and such modification may affect the validity of
the restrictive covenant. They are clearly aware that they took title subject
to any determination to be made in this litigation.

III.  The Reasons
for Judgment

[17]

The learned summary trial judge reviewed the law relating to proprietary
estoppel including references to
Zelmer v. Victor Projects Ltd.
(1997),
34 B.C.L.R. (3d) 125 (C.A.),
Trethewey-Edge Dyking District v. Coniagas
Ranches Ltd.
, 2003 BCCA 197, 12 B.C.L.R. (4th) 46,
Erickson v. Jones
,
2008 BCCA 379, 83 B.C.L.R. (4th) 333, and
Crabb v. Arun District Council
,
[1976] 1 Ch. 179 (C.A.).

[18]

He  held:

[45] Applying the foregoing principles of law to the facts of
this case, in my view, the plaintiffs have made out a cause of action in
proprietary estoppel. The plaintiffs were unequivocally advised that they had
the legal right to cross lot 6 and construct moorage facilities thereabouts;
they reasonably believed in and relied upon these representations and expended
funds as a result; the Society encouraged this expenditure at the material time
as it meant it would incur no liability for licencing or insurance premiums;
and, the Society now seeks to resile from its earlier position and rely upon
the strict wording of the easement registered against title, which it says conflicts
with the content of the representations.

[46] Having regard to the
representations made, the conduct of the parties, and the detriment incurred by
the plaintiffs in the course of their reliance on the Societys unequivocal
position, I find that an equity giving rise to proprietary estoppel has been
established in the plaintiffs favour, and that in all the circumstances it is
unjust for the Society to rely on its purported strict legal rights.

[19]

The judge held the plaintiffs had shown deprivation in incurring the
expense of constructing the dock in reliance on the Societys representations.

[20]

With respect to the appropriate remedy he held:

[82] Keeping these principles in mind, in my view the
appropriate remedy in the circumstances of this case is to grant a declaration
that an easement to be registered across the Parkland, establishing access from
the plaintiffs lot to the waterfront for moorage, in terms which will satisfy
the ILMB and result in the grant of a private moorage tenure. This remedy is the
minimum required to provide effective relief, and is in keeping with the
defendants representations and the parties mutual understanding at the time
the estoppel arose.

[83] Another issue arises as a result of the conveyance of
the property by the Society to the RDCK. In both
Zelmer
and
Trethewey-Edge
,
the court cited
Stiles v. Tod Mountain Development Ltd.
(1992), 64
B.C.L.R. (2d) 366 (S.C.), with approval. In that case, an equity giving rise to
proprietary estoppel was enforced against a successor in title who took with
notice and where the plaintiff had acted to his detriment.

[84] The plaintiffs filed a
Certificate of Pending Litigation against the Parkland, and it appears that the
RDCK took the property as a volunteer with notice, and as such is not a
bona
fide
purchaser without notice. In those circumstances, it is appropriate to
make it a term of the order that the easement granted is binding against the
RDCK as a successor in title, and that the covenant placed on the Parkland at
the time of its transfer by the Society to the RDCK, as it relates to moorage
rights, be removed from title.

[21]

The trial judge rejected the defendants submission that the
representations of the president, Mr. Leyland, and of the vice-president, Mr.
Herrmann, could not bind the Society.  The judge also rejected the allegation
that the plaintiffs should be denied relief because of self dealing or other
alleged breaches of the
Society Act
, R.S.B.C. 1996, c.433.

IV.  Issues on Appeal

[22]

The defendant asserts that the learned summary trial judge made a number
of errors in his treatment of the evidence tendered on this summary trial, and
in the inferences he drew from that evidence.  The defendant says the judge
failed to consider whether the case was appropriate for determination under
Rule 18A.

[23]

The defendant says the judge erred in his interpretation of the
Society
Act
.  The defendant further argues that the plaintiffs failed to establish
a claim in proprietary estoppel, and that the judge erred in granting relief
that was too extensive.

V.  Analysis

A.  The Evidence  Suitability
For Summary Trial

[24]

The defendants first three grounds of appeal relate to the evidence
adduced by affidavit on the summary trial, and on the inferences the judge drew
from that evidence.

[25]

Specifically, the defendant contends the judge erred in preferring the
affidavit evidence adduced on the plaintiffs behalf over the affidavit
evidence of Leah Main, the principal deponent on the defendants behalf.  The
defendant says the judge erred in accepting the hearsay evidence of Mary Sykes
concerning a telephone conversation she had with an ILMB representative.  And,
the defendant says it was unfair for the judge to accept Mr. Herrmanns
evidence without explaining his rejection of Ms. Mains evidence.

[26]

In the result, the defendant says the summary trial judge erred in
proceeding to try the case under Rule 18A, and in finding facts which cannot
reasonably be supported by the evidence.

[27]

I see no merit in these grounds of appeal.  As the judge recorded in
para. 1 of his reasons, neither of the parties suggested that a Rule 18A trial
was inappropriate in the circumstances.  There is nothing in the record to
show that the defendant objected to a summary trial at any stage of the
proceedings.

[28]

Counsel for the defendant did not at any time seek to cross-examine any
of the deponents who swore affidavits in support of the plaintiffs case.

[29]

The fact that there is some conflicting affidavit evidence is not an
absolute bar to a trial under Rule 18A:  See
Inspiration Management Ltd. v.
McDermott St. Lawrence Ltd.
(1989), 36 B.C.L.R. (2d) 202 (C.A.) at 215-16.

[30]

More importantly, it does not appear to me that there was conflict or
dispute on those matters critical to a determination of whether there was a
basis for proprietary estoppel.  There was no conflict concerning the
representations made by Messrs. Leyland and Herrmann to Mr. and Mrs. Sykes at
the time they purchased their lot.  No one denies the Societys two
representatives told the Sykes they could build a dock.  No one disputes the
Sykes were told consistently that they were entitled to access across the
parkland for moorage purposes.

[31]

Ms. Main was not involved in any of the defendant Societys affairs
between 1995 and 2006, and she had no direct knowledge of the representations
made by Mr. Leyland and Mr. Herrmann during that period of time.

[32]

With respect to Mrs. Sykes telephone conversation with a representative
of ILMB as to whether the Sykes could install a dock before a licence was
granted to them, it does not appear that the trial judge relied on that
evidence for any improper purpose.  The evidence of that conversation was
tendered to explain why the Sykes proceeded as they did, and to show they made
reasonable inquiries before commencing to build.  It was not tendered for the
truth of its contents and therefore does not fall within the definition of
hearsay:  See Bryant, Lederman and Fuerst,
Sopinka, Lederman & Bryant:
The Law of Evidence in Canada
, 3d ed. (Markham, Ont.: LexisNexis, 2009) at
229.  In any event, this evidence did not go to any issue fundamental to the
decision on proprietary estoppel.

[33]

In short, although there was some conflicting affidavit evidence, there
was a proper evidentiary basis on which the judge could find the facts he did.
There was no objection to proceeding under Rule 18A and no request to
cross-examine any of the plaintiffs deponents.

[34]

I would not give effect to the first three grounds of appeal.

B.  Directors Conflict of Interest and the Society Act

[35]

The plaintiffs became members of the Societys board of directors in
2003, shortly after they purchased their lot.  The defendant now asserts that
both they, as well as Mr. Leyland, were in a conflict of interest; and that the
Sykes knew, or should have known, that Mr. Leyland was in a conflict of
interest.  The defendant says the plaintiffs knew that the Societys board had
not delegated authority to Mr. Leyland or Mr. Herrmann to grant an interest in
land to the Sykes.  The defendant says the courts rectification of the
Societys proceedings was unilateral and made without submissions from
counsel for the defendant.

[36]

Both Mr. Leyland and Mr. Herrmann were directors of the Society at all
material times, and were president and vice-president respectively.  They were
clearly authorized by the
Society Act
, and by the bylaws, to exercise
the powers of the Society.  The words and conduct of an agent acting within the
ambit of his instructions may effectively give rise to an estoppel:  See
Mooregate
Mercantile Co. Ltd. v. Twitchings
, [1976] 2 All E.R. 641 (H.L.), and
Crabb
v. Arun District Council
.

[37]

The learned trial judge said this with respect to the roles of Mr.
Leyland and Mr. Herrmann:

[57] The evidence establishes that at all material times
Herrmann and Leyland were the guiding minds of the Society, who kept it afloat
both financially and operationally. Mr. Sykes contacted Leyland prior to
purchasing the property and sought his advice as the President of the Society,
and it is clear that all negotiations regarding the construction of the dock
were contingent on the plaintiffs obtaining direction and assurances from
Leyland and Herrmann.

[58] Further, the letter of August 30, 2006 authorizing the
plaintiffs construction also describes an unrelated matter pertaining to the
use of the Parkland and the plaintiffs land. In this letter, Leyland and
Herrmann, on behalf of the Society, directed the plaintiffs to remove materials
they had mistakenly placed the Parkland. In my view, this letter further
exemplifies the fact that Leyland and Herrmann were both the
de facto
and the
de jure
managers of the defendants lands, and that they were
viewed as such by the plaintiffs.

[59] On the evidence as a whole
it is clear that, in the words of Lord Denning, these gentlemen were entrusted
to look after the property and interests of the Society, and that the
plaintiffs viewed them as responsible for doing so. I find that Leyland and
Herrmann were capable of, and did as a matter of fact, make representations
that bound the Society in equity.

[38]

The judge rejected, rightly in my view, that Mr. Leyland was in a
conflict of interest.  He said:

[65] The defendant submits that the plaintiffs ought to be
denied equitable relief on the ground that they did not declare a conflict of
interest, and that Leyland acted in furtherance of his own self-interest when
discussions took place at meetings regarding moorage, negating the effect of
his representations.

[66] The allegations against
Leyland are nothing more than speculation. Ms. Mains allegations relating to
Leylands future intentions are based on information and belief, and the source
of this information is not provided.

[39]

There is nothing to show that Mr. Leyland gained any benefit from his
dealings with the Sykes.  Mr. Leylands loan to the Society was paid out in
2005 when Lot A was eventually sold.  There is nothing to indicate that the
Sykes had any role in this transaction.

[40]

As to the courts unilateral rectification of the Societys affairs,
the defendant says that the trial judge should not have addressed this question
because the issue was not properly joined.

[41]

I am not persuaded that resort to relief under the
Society Act
was necessary, but to the extent that it was, the defendant has not advanced
any submission that would demonstrate an error in the judges reasoning, or in
his interpretation or application of s. 85(2) of the
Society Act
.
Moreover as the judge said:

[72] Regarding s. 85(2), there
are no creditors of the Society I am aware of. As for the Society, and its
directors, officers, and members, one could say that as the Society no longer
owns the Parkland, any order curing non-compliance for the limited purposes of
this transaction would have no effect on these parties; in any event, an
order excusing technical non-compliance would simply result in the Society
being bound by the unequivocal representations of its guiding minds, a result
in keeping with equity and justice.

[42]

I see no merit in the technical submissions advanced with respect to the
directors conduct, or their authority to act on the Societys behalf in their
dealings with the Sykes.

[43]

I would not give effect to these grounds of appeal.

C.  Proprietary Estoppel

[44]

The learned summary trial judge applied the broad, flexible approach to
proprietary estoppel endorsed by this Court in
Trethewey-Edge Dyking
District v. Coniagas Ranches Ltd.
and
Erikson v. Jones
, which relied
on English authorities such as
Crabb v. Arun

District Council
,
and
Taylors Fashions Ltd. v. Liverpool Trustees Co. Ltd.
, [1982] 1 Q.B.
133 (Ch. Div.).

[45]

At para. 64 of
Trethewey
, Madam Justice Newbury cited with
approval the following test from
Halsburys Laws of England
, 4th ed.
vol. 16 (London: Butterworths, 1992) at para. 1072:

The real test is said to be
whether upon the facts of the particular case the situation has become such
that it would be dishonest or unconscionable for the plaintiff, or the person
having the right sought to be enforced, to continue to seek to enforce it.

[46]

At para. 65 of
Trethewey
Madam Justice Newbury, citing
Taylors
Fashions
, further described the test as whether it would be unconscionable
for the representor to go back on the assumption which he had allowed the
plaintiff to make.

[47]

While detrimental reliance is sometimes identified as a necessary
element, it is perhaps better to consider it as part of the question of unconscionability.
  In the absence of detrimental reliance it would rarely, if ever, be
unconscionable to insist on strict legal rights: see Harpum, Bridge and Dixon,
Megarry
& Wade: The Law of Real Property
, 7th ed. (London: Sweet & Maxwell,
2008) at 711.

[48]

The defendant says the question should be framed in this way:

Has the appellant, by words or
conduct, affirmed the respondents right to establish a dock and have access
across its property for that purpose in circumstances making it unfair or
unjust for it now to assert its strict legal rights (citing
Litwin
Construction (1973) Ltd. v. Pan
(1988), 52 D.L.R. (4th) 459, 29 B.C.L.R. (2d)
88 (C.A.)).

[49]

The question as posed by the defendant is very much in accord with the
test referred to in the above authorities, adopting and applying the broad,
flexible approach to proprietary estoppel.

[50]

The defendant contends that the question so posed should be answered in
the negative.  It says it did not induce the plaintiffs to change their
position to their detriment.  It says it did not covenant to give the
plaintiffs an interest in land, and that it did not contract to apply for
moorage on the plaintiffs behalf.  It says it did nothing to encourage the
plaintiffs to go to the expense of building a dock, and that the plaintiffs
took that risk on their own initiative without first obtaining the necessary
moorage tenure from ILMB.

[51]

In my respectful view these submissions do not accord with the facts as
found by the trial judge.

[52]

In 2003, before the plaintiffs purchased their lot, Mr. Sykes spoke to
Mr. Leyland who was then president of the defendant Society.  Mr. Leyland told
Mr. Sykes that the lots adjacent to the parkland had the right of access across
the parkland for moorage purposes.  He confirmed that in writing.  Moorage was
important to the plaintiffs.  They purchased the lot relying on Mr. Leylands
representation, and believing they would have a right of access across the
parkland for moorage purposes.

[53]

The Societys subsequent conduct affirmed their original position.  When
the Society decided not to build a common dock for reasons of expense, Mr.
Leyland and Mr. Herrmann told the Sykes they could construct moorage adjacent
to the parkland, and have access to it across the parkland.  No one has
suggested that the access be by other than foot.

[54]

The representations of the defendant were relied on by the plaintiffs,
at least in part, in their decision to buy Lot 2, and in their subsequent
decision to build a dock.  I respectfully agree with the learned trial judges
conclusion at paras. 45 and 46, quoted above at para. 18, that in all the
circumstances it would be unjust for the defendant to rely on its purported
strict legal rights.

[55]

I would not give effect to this ground of appeal.

D.  Remedy

[56]

The defendant contends that the declaratory relief granting the
plaintiffs a registrable interest in land for moorage access (quoted above at
para. 3 of these reasons) is too extensive, and well beyond the minimum relief
necessary to balance the equities.  The defendant says that rather than a
perpetual interest in land, the relief should have been limited to a licence
for the life of the dock, or alternatively monetary compensation.  The
defendant acknowledges the court could not grant a licence, because only the
ILMB has authority to grant such a licence over Crown land.

[57]

The learned summary trial judge directed his attention to the principle
that the remedy in cases of proprietary estoppel should be the minimum equity
necessary to do justice to the claimant, and concluded that a declaration in
the terms granted was appropriate.

[58]

I am unable to say that the learned judge erred in this conclusion.  He
considered the relevant legal principles, and the critical facts.  He exercised
the wide discretion available in such cases in a way that gave the plaintiffs
essentially what they had been promised, and nothing more.

[59]

I would not interfere with the relief granted.

VI.  Conclusion

[60]

I would dismiss the Societys appeal with costs.

The
Honourable Chief Justice Finch

I agree:

The Honourable Madam Justice
Huddart

I agree:

The Honourable Madam Justice
Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Dosanjh v. Singh,

2011 BCCA 28

Date: 20110120

Docket: CA038285

Between:

Jaswinder Kaur
Dosanjh

Respondent

(Plaintiff)

And

Rupinder Singh

Appellant

(Defendant)

Before:

The Honourable Mr. Justice Low

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Bennett

On judicial review
from: Court of Appeal of British Columbia, September 29, 2010
(
Dosanjh v. Singh
, 2010 BCCA 425, Court of Appeal Reg. No. CA038285)

Oral Reasons for Judgment

Counsel for the Appellant:

G.M. Niemela

Counsel for the Respondent:

S.M. Dewar

Place and Date of Hearing:

Vancouver, British
  Columbia

January 17, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 20, 2011

[1]

BENNETT J.A.
: This is a review from the decision of Mr. Justice
Lowry refusing to stay an order for sale of a home jointly owned by the parties.
Mr. Singh framed the application as a review of a refusal to grant leave on
this issue. However, Lowry J. A. granted leave; he did not grant the stay of
the order for sale.

[2]

Ms. Dosanjh and Mr. Singh were married in India in 1995. Unbeknownst to
Ms. Dosanjh, Mr. Singh obtained a divorce in British Columbia in 1997. The two
began living together in B.C. in 1999 and, in 2002, bought a home, which was
registered in their names jointly. They separated in 2008. Mr. Singh continues
to reside in the home.

[3]

Ms. Dosanjh commenced this action in 2008. She sought partition and sale
of the home, as well as damages for a fraudulent divorce. Mr. Singh was served
with the writ of summons, but did not enter an appearance. Ms. Dosanjh took
default judgment nine months after he was served. Damages and costs were to be
assessed.

[4]

In January 2010, Ms. Dosanjh applied for an order for the sale of the
home and an accounting of money allegedly owed to her by Mr. Singh. Mr. Singh
was not served with this application. The judge ordered the home to be sold and
the net proceeds divided equally. Ms. Dosanjh was granted conduct of the sale
of the home, but Mr. Singh was permitted to remain in the house pending the
sale, subject to his cooperation with the realtor.

[5]

The judge also ordered a sum of money be paid to Ms. Dosanjh for
occupational rent, as well as $27,630 which Ms. Dosanjh deposed was half of the
rent received from the tenants of a suite in the house. Costs to be assessed
were also ordered.

[6]

Mr. Singh was given copies of these orders, and although he consulted
counsel, no steps to set aside the orders were immediately taken. It was not
until June 2010, after he refused entry to the premises by a real estate agent,
that Mr. Singh brought applications to set aside the default judgment and to
reconsider the order for sale of the house and the corollary relief. The
applications were heard mid-July with judgment rendered the same day.

[7]

Mr. Singh took issue, with, amongst other things, the accounting
regarding rent and mortgage payments.

[8]

The judge dismissed Mr. Singhs application and made an order granting
Ms. Dosanjh possession of the home for the purposes of sale, requiring Mr.
Singh to vacate the home.

Reasons of Lowry J.A.

[9]

Lowry J.A. held that the parties did not require leave to appeal the
order for default judgment as it was a final order. He granted leave to appeal
the order for sale of the home as the fact Mr. Singh was not served with the
application was sufficiently important for the matter to go before the court. Lowry
J.A. applied the test in
RJR - MacDonald Inc. v. Canada (Attorney General)
,
[1994] 1 S.C.R. 311 at 334, in considering the stay applications: whether there
is merit in the appeal, whether failure to stay will cause irreparable harm,
and where the balance of convenience lies.

[10]

He stayed the judgment against Mr. Singh with respect to both the
occupational and collected rent because if the appeal was allowed, then a new
accounting would occur and his claim regarding the mortgage payments would be
considered. Lowry J.A. also stayed the order requiring Mr. Singh to vacate the
home, subject to his cooperation with the process of the sale.

[11]

Lowry J.A. did not stay the order for sale of the home. There was merit
to the appeal based on the lack of service, but he concluded that the sale of
the home was inevitable. Ms. Dosanjh was entitled to partition and sale of the
property. He concluded that the balance of convenience favoured the sale of the
house. This is the part of the order which is under review.

Test on review

[12]

A division of this court will not interfere with the discretionary
decision of a single justice to refuse a stay absent evidence that the judge
applied the wrong test, erred in principle, or misapprehended material facts. See
DeFehr v. DeFehr
, 2002 BCCA 139 at para. 6.

Discussion

[13]

During the course of argument, counsel for Mr. Singh acknowledged that
his clients real concern is that he will not have an opportunity to buy out
Ms. Dosanjhs interest in the house because the order for sale is not subject
to court approval. There appears to be nothing preventing Mr. Singh from
returning to the trial court and seeking court approval as a term of the order
as it was not considered by the judge in the court below.

[14]

Mr. Singhs other concern is that Ms. Dosanjh will sell the property to
a friend or family member for less than market value. The order in the court
below clearly contemplates that the house be listed for sale on the public
market and sold at market value.

[15]

In my respectful view, Lowry J.A. applied the correct test for a stay of
execution of an order, he did not err in principle, and he did not misapprehend
the facts. Ms. Dosanjh is entitled to an order for sale as a joint tenant and
as Lowry J.A. found, the balance of convenience clearly lies with the sale
rather than delaying and possibly relitigating the inevitable.

[16]

Mr. Singh may apply for a remedy in the trial court to alleviate his
concerns regarding the sale of the property.

[17]

I would dismiss the application for review.

[18]

LOW J.A.
: I agree.

[19]

CHIASSON J.A.
: I agree.

[20]

LOW J.A.
: The application for review is dismissed.

The Honourable Madam Justice Bennett


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Johnny,

2011 BCCA 25

Date: 20110120

Docket: CA037577

Between:

Regina

Respondent

And

Kyle Johnny

Appellant

Before:

The Honourable Mr. Justice Hall

The Honourable Madam Justice Levine

The Honourable Mr. Justice Tysoe

On appeal from the
Supreme Court of British Columbia, October 6, 2009,
(
R. v. Kyle Johnny
, Smithers Registry No. 8152-1; and
R. v. Kyle
Dennis Johnny
, Smithers Registry Nos. 8152-2-A, 20758-1, 20758-2-A and
21123-1)

Oral Reasons for Judgment

Counsel for the Appellant:

K.R. Beatch and R.
  Thirkell

Counsel for the (Crown) Respondent:

M. Mereigh

Place and Date of Hearing:

Vancouver, British
  Columbia

January 19, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 20, 2011

[1]

HALL J.A.
: The appellant, who will be 28 years old in April of
this year, is of aboriginal background. A brief history of his unhappy
background was given by Justice Josephson as part of his reasons for sentence
in the case of
R. v. Edwards
, et al, [2001] B.C.J. No. 1062:

13.

Kyle Johnny, now
eighteen years old, was raised on a reserve near Chase and in various
surrounding communities. The residential school system also had significant
impact on his family. While he was exposed to alcohol abuse and violence, his
childhood was relatively benign. He was not a victim of abuse as a child. He
suffers from attention deficit hyperactivity disorder. There were significant
disruptions in home and school placements. At age eleven or twelve years, he
began abusing alcohol, associating with negative peers and engaging in
aggression. Four or five months of foster care at that time due to behavioural
problems saw no improvement in his behaviour. His mother is well educated,
articulate and strongly supportive of Mr. Johnny. Her band is prepared to
offer an apparently well thought out and professional program of counselling
and treatment.

[2]

He is presently imprisoned in a Federal institution as a result of being
sentenced for a number of crimes on October 6, 2009, after credit for
pre-sentence custody on a two-for-one basis, to a sentence of 10 years and 9½
months. The sentences were imposed by a Provincial Court judge in relation to
seven charges to which the appellant had pleaded guilty. The time period covered
by the charges was from December 8, 2008 to May 27, 2009.

[3]

The chronology of the several incidents for which he was sentenced
commences on December 8, 2008. On that date he turned himself in to the police
detachment in Smithers, at which time he was found to be in possession of a
small amount of cocaine. It seems that he was then apprehensive as to his
safety because of a possible threat of retaliation from others in the cocaine
trade because he considered he had not satisfied certain obligations from
dealing in cocaine. However, at a later time, in a discussion with a probation
officer, he seemed to suggest that he turned himself in because he wanted to
get himself off the street and away from a drug problem. It is not entirely
clear if he remained in custody thereafter until January 22, 2009, but on this
latter date he was in court and was thereafter at liberty on a promise to
appear.

[4]

On March 8 he was involved in an altercation with a person named Cote at
Burns Lake which resulted in a charge of aggravated assault. The victim was in
a coma as a result of this assault and was on life support in Prince George
hospital for a time. The appellant was released again soon after his appearance
on this charge on an undertaking to appear. He was found committing bail
breaches at the end of March and beginning of April by using alcohol but
remained out of custody. Late in April, he failed to appear for a court date. That
resulted in a failure to appear charge, one of the charges for which he was
sentenced. On May 27, 2009, at Smithers he was involved in a serious incident
which resulted in his being detained in custody until he was sentenced in
October 2009. On this date he committed a violent robbery of a jewellery store.
A clerk and an 81 year old customer were assaulted in the course of the
incident. His detention in custody resulted in a credit for time served before
sentencing of some 260 days, being 130 days at two-for-one credit.

[5]

It was apparently intended that the sentencing court would have a
pre-sentence report before it as sentencing on the several charges to which he
had pleaded guilty was scheduled for the latter half of October 2009. However,
counsel for the appellant had the case called forward, apparently at the behest
of the appellant, who expressed concerns for his safety and sought to be
sentenced forthwith. The sentencing proceeded before the Honourable Judge
Struyk on October 6, 2009. At the sentencing, the Judge gave a brief
description of the facts underlying the aggravated assault charge:

[6]        ... At some point around the date of the alleged
offence, March 8, 2009, there was a confrontation between Mr. Johnny and
Mr. Cote, and Mr. Johnny struck Mr. Cote in the head area. It is
not certain as to how often that occurred as some of the admissions made by
Mr. Johnny were not clear on that, that is, the frequency of blows, but as
a result of that, it is understood that Mr. Cote then struck his head on
something else and had a severe injury in the way of an intracranial or a
closed head injury.

[7]        There were noted to be no defensive injuries on
Mr. Cotes person. Perhaps some of the notable factors here are that
Mr. Johnny then became involved in making sure that Mr. Cote was
delivered to the hospital to receive medical care, though Mr. Johnny did not
stay at the hospital. He left that location in Burns Lake and, on a later date,
after learning the police were looking for him, turned himself over to the
police ... .

[6]

The judge made reference to the results of the aggravated assault upon
the victim, a father of five young children, and his relatives:

[23]      With respect to the aggravated assault, I have
reviewed the victim impact statements of Robert Cote, the father, and Barb
Cote, the mother, who I understand are retired and upon whom a significant care
burden has now been placed with respect to Randall Cote. I also note that there
is a victim impact statement from Randall Cote himself.

[24]      I have reviewed all the medical reports that have
been filed, particularly the report which is filed as Exhibit 6, that of Karin
Frank, the occupational therapist, who notes there has been some improvement in
Mr. Cotes condition. According to that report:

[He] is walking independently
without any aids ... and is able to feed and dress himself independently. He
also carries out all his personal care without assistance. His balance has
improved greatly ... Mr. Cotes speech is affected greatly. He is able to
have meaningful conversations, but his diction makes it difficult to understand
him. He makes phone calls, keeps appointments and is able to express his needs.
[He does suffer] from some degree of retrograde amnesia and is not able to
recall the time he spent in hospital directly after the injury. He doesnt use
public transport and has to rely on his parents for transportation, as he is
unable to drive a car.

Mr. Cotes quality of life was greatly compromised by
his acquired brain injury. He will never fully recover to his formal level of
functioning, but I expect there will be some improvement made on the quality of
his speech, his community involvement and social networking following his
intensive rehabilitation in Halvar Jonson Rehabilitation Centre [which I
understand is where he was accepted for further rehabilitation in Alberta].

[25]      Exhibit 4, that is the report of Dr. Fourie,
indicates that Mr. Cote has a pervasive cognitive deficit at this time. His
communication is very limited.  He goes on to say:

He will be dependent on third party
care the rest of his life.

The doctor went on to say:

I cannot ever see him living independently again. We think
he has plateaued and we dont think we are going to see any drastic
improvements in the next six to twelve months.

[7]

The judge thereafter set out the circumstances of the robbery:

[10]      ... Mr. Johnny
attended to a jewellery store in Smithers during normal business hours and
proceeded to smash the jewellery cases, to access jewellery. As I understand
it, he managed to get some jewellery into a bag or backpack that he had with
him. He had a hammer in his possession and was wearing gloves. He was then
confronted by an 81-year-old customer who was somewhat successful in slowing
down Mr. Johnnys activities. The owner or manager of the store then
became involved and there was a further violent confrontation with
Mr. Johnny ending up, as I understand it, on the floor being held by the
customer and Mr. Carter when the police arrived.

[8]

The judge noted this about the effect of the robbery on those who were
involved at the scene:

[27]      With respect to the
robbery, I have noted already it appears to be premeditated, but I think most
robberies of this fashion are. There was also a violent struggle, and I have
reviewed the four victim impact statements of the clerks that worked at the
store and of the store owner or manager, Mr. Carter. These people, going
about their daily business, have all been significantly impacted in their sense
of security, working in a place such as they do and generally moving about the
community. I expect that is a sense of security that takes a great deal of time
to recover.

[9]

Although the judge did not have before him a pre-sentence report,
dealing with the aboriginal status of the appellant and resources available to
him in that community, he did have evidence from the mother of the appellant
who by telephone gave some background history of the family and as well, he had
a psychiatric report from Dr. Riley, who is associated with the Forensic
Psychiatric Services Commission. According to this report the appellant started
drinking to excess at the age of 12 and about two years prior to the date of
sentence had begun to abuse cocaine. The doctor noted that the appellant told
him that the period of time when he was released from custody on the cocaine
charge in late 2008 until the spring of 2009 when he was involved in the
robbery was the longest he had remained out of custody since the age of 15.

[10]

When the appellant was 15, he was involved in a very disturbing crime in
Kamloops. He was on the date of this incident in company with an 18 year old
and a 22 year old. All three individuals were of aboriginal descent. The three
individuals set upon a man who was returning from his shift at a restaurant,
along a bicycle path across the Overlander Bridge in Kamloops. They assaulted
the victim and delivered kicks to the head of the victim causing him to become
unconscious. The oldest of the three continued the attack with additional kicks.
This resulted in the death of the victim, a young married man with dependents. There
appeared to be no particular motive for this violent activity. The three young
men then left the scene but were soon apprehended. All three of the assailants
had been drinking. He was raised to adult court and convicted of manslaughter.

[11]

The 22 year old was sentenced to life imprisonment for the murder of the
restaurant worker. The judge noted that a mitigating factor in regard to both
of the younger assailants was that they had attempted to pull the older man
Edwards away from the victim, who was continuing his attack on the defenceless
victim. The judge noted that both had participated successfully in treatment
programs while incarcerated, and that there was hope for rehabilitation with
intensive on-going treatment programs. Taking into account time served, the
judge sentenced the 18 year old to imprisonment for three years (the equivalent
to a sentence of seven years when pre-sentence custody was considered) and the
appellant to imprisonment for two years (equivalent to six years when taking
into account pre-sentence custody). The appellant was ordered to be on
probation for two years after his release. The order required him to take
counselling under the direction of a probation officer. He breached his
probation order on a number of occasions after his release. After his release
from the sentence of incarceration near the end of 2002, his record is as
follows:

2002-11-12

Edmonton, Alta

Fail
  to comply with probation order

1
  day on each chg conc

2002-12-17

Salmon Arm, BC

Fail
  to comply with probation order

7
  week plus probation 1 yr

2003-07-08

Salmon Arm, BC

Fail
  to comply with probation order

9
  mos & probation 12 mos

2003-07-08

Salmon Arm, BC

Obstruct
  Peace Officer

Jail
  30 days

2004-03-02

Salmon Arm, BC

(1)
  Fail to comply with probation order

(2)
  Theft under $5000

(1)
  60 days & probation 2 yrs

(2)
  1 day

2004-09-01

Salmon
  Arm, BC

Fail
  to comply with probation order

1
  day

2004-09-09

St
  Paul, Alta

Fail
  to comply with probation order

3
  mos

2005-05-03

Salmon
  Arm, BC

Fail
  to comply with probation order

1
  day

2005-12-21

Kamloops,
  BC

(1)
  Fail to comply with probation order

(2)
  Obstruct Peace Officer

(1 - 2) Time served (1 day) on each chg

2005-12-21

Salmon
  Arm, BC

Breach
  of Probation Order (2 chgs)

Time
  served & Jail 1 day on each chg

2006-06-27

Salmon
  Arm, BC

Breach
  of Recognizance

9
  mos Jail

2007-03-02

Edmonton,
  Alta

Fail
  to comply with probation order

10
  days

2007-04-25

Prince
  George, BC

Theft

Assault

Time
  served (22 days) & 3 mos Jail & 1 year probation

Time
  served (22 days) & 6 mos Jail & 1 year probation

2008-01-28

Prince
  Rupert, BC

Possession
  of a scheduled substance for the purpose of trafficking

4
  mos & mandatory prohibition order sec 109 CC

2008-01-15

Salmon
  Arm, BC

Mischief
  (2 chgs)

Breach
  of Recognizance

Fine
  $500

Jail
  38 days & 22 days credit

2008-08-25

Smithers, BC

Possession
  of controlled substance (2 chgs)

Breach of probation

Jail 3 mos each chg & consec. to Breach of Probation
Jail 30 days

[12]

As can be seen from the record, the appellant was in continuous
difficulty from the date of his release on the manslaughter sentence. It
appears he was involved in an incident of some violence in a theft at a liquor
store which resulted in the April 2007 sentences. His record for drugs appears
to commence in 2008.

[13]

Judge Struyk sentenced the appellant to six and a half years for the
assault of Cote. He referred to previous serious assault cases from this
jurisdiction of comparable facts,
R. v. Rasanen
, [1997] B.C.J.
No. 1260 (C.A.) and
R. v. Tschritter
, 2006 BCCA 202. In the former
case, a sentence of six years was sustained and in the latter an effective
sentence of eight years was sustained. Rasanen was 22 years old and Tschritter
was 21 years old. In both cases, catastrophic injuries resulted to the
respective victims, a situation paralleled in this case concerning the victim Cote.
While the assaults in those cases may have been more aggravated, the accused
were younger and had not accumulated the lengthy record for violence that is
the record of this appellant.

[14]

The judge imposed a sentence of five years consecutive on the robbery
plus three sentences of 60 days each on breaches of orders that occurred in the
Spring of 2009. These were to be consecutive to the sentences on the assault
and robbery. The collective sentences amounted to a total of 11 years and eight
months less credit of 260 days for a total effective sentence of time remaining
of just over 10 years and nine months.

[15]

The respondent notes that the Crown at sentencing had suggested a total
sentence in excess of fifteen years for the various charges. The defence asked
the Court to consider a global sentence in the three to five year range.

[16]

The appellant appeals from his sentence disposition to this Court. The
appellant seeks to have fresh evidence placed before the court, namely a
Gladue
type of report dated June 15, 2010. The appellant submits that the judge fell
into error when he did not refer to the aboriginal background and circumstances
of the appellant at the time of sentence, that the judge erred in failing to
have regard to the totality principle and that the total sentence imposed is
unfit as being too long. It is submitted on behalf of the appellant, as it was
to the sentencing judge, that an appropriate sentence would have been in the
range of three to five years in total, as being proportional to his overall
culpability and one that would properly take into account his circumstances as
an aboriginal offender as required by s. 718.2(e) of the
Criminal Code
.
Counsel for the appellant submits that the many disadvantageous systemic
factors affecting the appellant as disclosed in the material including a rather
chaotic upbringing by persons adversely affected by being residential school
survivors mitigates the moral blameworthiness of this appellant.

[17]

Arguably the judge fell into error when he failed to specifically make
reference to the aboriginal background of the appellant: see
R. v.
Sutherland
, 2009 BCCA 534. From the tenor and content of the sentence
proceedings, it does however appear to me that he was clearly aware that the
accused was of aboriginal descent. Because of this possible error, it falls to
this court to determine whether or not the sentences imposed resulted in a fit
sentence. The report sought to be filed contained considerable information
about this appellant and I consider it would be helpful to have this material
before us: see
R. v. Loring
, 2009 BCCA 166. I would therefore permit
this report to be adduced as fresh evidence. This material indicates there are
agencies that are prepared to work with this appellant upon his release. It
does seem that he has previously had access to resources to address his
problems and issues with alcohol and other addictive substances, but these to
date have not yielded much success as can be seen from the above criminal
record.

[18]

Counsel for the appellant suggests that the judge placed undue emphasis
on the tragic result of the assault and failed to distinguish the cases of
Rasanen
and
Tschritter
, which demonstrated more blameworthy conduct. Counsel
also submitted that the failure of the judge to consider the totality of the
sentences as to whether the aggregate sentences were appropriate discloses
error. It is submitted on behalf of the appellant that the sentences are simply
too long in total. Counsel suggested aggregate sentences in the range suggested
at sentencing would be fit for the circumstances of the offences and the
offender.

[19]

Counsel for the respondent notes that the only version of events about
the assault comes from the appellant since the victim has no memory of the
event. She submits that the absence of defensive type injuries on the victim
must be considered in assessing the circumstances of the assault. The
respondent submits that it was perhaps fortunate that more grave harm did not
result from the robbery incident having regard to the fact the appellant had
armed himself with a hammer and was prepared to engage in a violent struggle
with the staff and an elderly customer aged 81. Counsel for the respondent
submits that given the violent history of this appellant and his continuing
addiction problems, a lengthy period of incarceration was required in a
structured setting to protect the public and deter the appellant from further
offending. She submits the sentences in total were fit.

[20]

The assault charge and the robbery charge, the two most serious matters
for which he was sentenced, and comprise most of the aggregate time of the
sentences he faces, were very troubling crimes. The violence he inflicted in
the assault on Mr. Cote has resulted in the destruction of any normal life
for that person. It has imposed grievous burdens on the parents of the victim
and I am sure has also dramatically altered the prospects of his dependents. The
robbery of the jewellery store may have been motivated by the addiction
problems of the appellant. It is the fact that his activities at the store
manifested a very violent series of actions. I should say it is rather
fortuitous that someone was not seriously injured in that incident. It is in my
opinion of some significance that the appellant undertook this venture when he
was at least observably not in a condition of impairment by drugs or alcohol.

[21]

In the case of
R. v. Wells
, 2000 SCC 10, Iacobucci J. said this:

44.       Let me emphasize that s. 718.2(e) requires a
different
methodology
for assessing a fit sentence for an aboriginal
offender; it does not mandate, necessarily, a different
result
. Section
718.2(e) does not alter the fundamental duty of the sentencing judge to impose
a sentence that is fit for the offence and the offender. Furthermore, in
Gladue
,
as mentioned the Court stressed that the application of s. 718.2(e) does
not mean that aboriginal offenders must always be sentenced in a manner which
gives greatest weight to the principles of restorative justice and less weight
to goals such as deterrence, denunciation, and separation (at para. 78).
As
a result, it will generally be the case,
as a practical matter
, that
particularly violent and serious offences will result in imprisonment for
aboriginal offenders as often as for non-aboriginal offenders
(
Gladue
,
at para. 33). Accordingly, I conclude that it was open to the trial judge
to give primacy to the principles of denunciation and deterrence in this case
on the basis that the crime involved was a serious one.

[Emphasis added.]

[22]

If I thought it were at all possible that any proposal suggested on
behalf of this appellant had any likelihood of success, I might be persuaded to
accede to a submission that there should be some alteration of the total
sentence imposed on this offender by the sentencing judge. However, I do not
consider that there is any present likelihood of success from any of the
suggested proposals.

[23]

Section 718 of the
Criminal Code
sets forth the purposes and
principles of sentencing:

718.     The fundamental purpose of sentencing is 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;

(
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 and to the community.

[24]

The provisions of s. 718 that seem particularly applicable here are (b)
and (c) although (a) and (f) are also to be noted. The appellant, as his
counsel has noted, is not wholly to blame for his behaviour, having regard to
his history but that is cold comfort for those who have suffered at his hands. Because
the judge may have erred in failing to expressly have regard at sentencing to
the aboriginal circumstances of this appellant and to specifically advert to
the totality issue, this Court must review the sentences to determine if the
total sentence imposed on this appellant was fit.

[25]

The judge here was faced with an offender and offences that called for
heavy sentences. The appellant has a sad but dreadful history and is clearly a
continuing danger to any community he finds himself in. The only way in which
the public can be protected from further carnage by this unfortunate individual
is by his separation from society for a lengthy period. It may be that as he
progresses into his 30s that he can begin to mature and curb his violent
behaviour. While the judge did not advert to the totality principle, I consider
that the total sentences imposed were appropriate and fit. Nothing less would
have been adequate to recognize the continuing threat this appellant poses to
the safety of the public.

[26]

I think those charged with responsibility for parole will have to
carefully assess when it will be safe for the appellant to be at some form of
liberty. Upon his release he may be able to access resources that can assist
him to avoid further difficulties. That would be a highly desirable outcome,
but only time will tell if he can have any success in future along these lines.
I note that his mother, who has moved to Alberta to be away from what she sees
as a bad environment, stands willing to assist her son if he wishes to have
assistance. That may be a matter the appellant should seriously consider on his
release. Some family involvement could afford a measure of the stability that
has been lacking in the recent life of this appellant. In the result, despite
the able submissions of counsel for the appellant, I am not persuaded that we
ought to make any alteration in the total sentence of incarceration imposed by
the Provincial Court judge. Accordingly, although I would grant leave to
appeal, I would dismiss this appeal from sentence.

[27]

LEVINE J.A.
: I agree.

[28]

TYSOE J.A.
: I agree.

[29]

HALL J.A.
: This appeal is dismissed.

The Honourable Mr. Justice Hall