COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

United
                States of America v. Reumayr,

2005 BCCA
            34

Date: 20050120

Docket: CA032101

Between:

Alfred
      Heinz Reumayr

Applicant

And

Canada
      (Minister of Justice)

Respondent

Before:

The Honourable
            Madam Justice Rowles

(In Chambers)

A.H. Reumayr

Appearing on his own behalf

D.J. Strachan

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

2 December 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

20 January 2005

Reasons for Judgment of the Honourable Madam Justice
        Rowles:

[1]

Mr.
      Alfred Heinz Reumayr has applied for an extension of time within which
      to bring appeals from three orders made in the course of extradition proceedings
      against him.  The first two orders, dated 25 October 1999 and 1 December
      1999, extended the time within which the Requesting State could deliver
      its supporting documents.  The third order, dated 31 October 2001, was
      the committal order made by Williamson J.

[2]

Mr.
      Reumayr's appeal from the committal order was dismissed on 26 June 2003
      in
U.S.A. v. Reumayr
, 2003 BCCA 375, 176 C.C.C. (3d) 377
      (cited to C.C.C.), but his application for judicial review of the surrender
      order was allowed "to the extent of directing that the surrender be
      set aside and the matter remitted back to the Minister to determine whether
      the surrender order is consistent with the committal order in accordance
      with these reasons" (at 396).

[3]

On
      23 August 2004, Mr. Reumayr filed an appeal from the orders made by Macaulay
      J., Dohm A.C.J. and Williamson J. as well as applications for a discharge,
      a stay of proceedings,
habeas corpus
, prohibition, certiorari and
      a Notice of Constitutional Question.  In seeking both an extension of time
      within which to appeal the orders and leave to appeal, Mr. Reumayr submits
      that the time limits set out in s. 14 of the
Extradition Act
,
      S.C. 1999, c. 18 ("
Act
") cannot be judicially extended
      after their expiry and the orders extending the time, as well as the committal
      order, are therefore nullities.  To support his argument, Mr. Reumayr relies
      on the mandatory wording of s. 14 of the
Act
and, among other
      cases, the decision of this Court in
United States v. Manns
,
      2004 BCCA 158, 183 C.C.C. (3d) 330.

[4]

The
      respondent's position may be summarized as follows:

(a)        the orders Mr. Reumayr now wishes
      to appeal are all superseded by this Court's dismissal of the appeal from
      the committal order;

(b)        this Court has no jurisdiction
      to reopen the appeal from the committal order to entertain Mr. Reumayr's
      new argument because the formal order has been entered; and

(c)        Mr. Reumayr has, in any event, failed to demonstrate a clear
      and compelling case that a miscarriage of justice will result unless the
      point he now wishes to raise is permitted to go forward to appeal.

[5]

By
      way of background, Mr. Reumayr is charged in the United States District
      Court for the District of New Mexico with attempting to bomb the Trans-Alaska
      Pipeline by means of explosive devices, and aiding and abetting in the
      attempted bombing, in violation of Title 18,
United States Code
,
      sections 844(i), 1366(a), 2332b, and 2.  The charges stem from an investigation
      conducted by the R.C.M.P. and the United States Bureau of Alcohol, Tobacco
      and Firearms (the "ATF").  Mr. Reumayr allegedly planned to detonate
      numerous bombs along the Trans-Alaska oil pipeline on or about New Year's
      Day, 2000 with financial gain as his motive.  His plan was to purchase
      large amounts of oil futures contracts on the commodities market before
      the bombing.  Once the pipeline was damaged, Mr. Reumayr hoped that the
      supply of crude oil in the market would decrease, the price of his oil
      commodities contracts would rise, and that he would reap a substantial
      profit by selling his oil contracts.

[6]

It
      is alleged that in order to carry out his plan, Mr. Reumayr contacted James
      Paxton, a former member of the U.S. Special Forces and an expert in explosives,
      whom he had met when they were both inmates at a prison in Seagoville,
      Texas.  Mr. Reumayr sought to enlist Mr. Paxton's help in obtaining blasting
      caps.  Subsequently, Mr. Paxton told the ATF about Mr. Reumayr's requests
      for blasting caps, which caused the ATF to begin an investigation into
      Mr. Reumayr's plan.  Mr. Paxton, now working as an agent for the ATF, entered
      into correspondence with Mr. Reumayr over several months, which culminated
      in two meetings between them in July and August 1999 at hotels in the Lower
      Mainland area of British Columbia.  At this point, Mr. Paxton had also
      become an agent for the R.C.M.P.  During these meetings, Mr. Reumayr gave
      Mr. Paxton a quantity of explosives and bomb components.  The two men discussed
      extensively the technical details of Mr. Reumayr's plan to bomb the pipeline.

[7]

On
      18 August 1999, the R.C.M.P. arrested Mr. Reumayr when he returned to Mr.
      Paxton's hotel room for a third meeting.  Charges were laid against him
      by both the Attorney General of British Columbia and the United States
      Attorney in the District of New Mexico.

[8]

A
      provisional request for extradition was subsequently made by the United
      States pursuant to the
Treaty on Extradition Between Canada and the
      United States of America
, Can. T.S. 1976, No. 3, as amended (the "
Treaty
").

[9]

On
      20 August 1999, a provisional warrant for Mr. Reumayr's arrest was issued
      under the
Act
.  The warrant was executed on 24 August 1999
      at the North Fraser Pretrial Centre where Mr. Reumayr was being held on
      the domestic charges.  He was brought before the Supreme Court of British
      Columbia in New Westminster and remanded over to 26 August to appear in
      Supreme Court in Vancouver.

[10]

As
      of 24 August 1999, the United States had 60 days within which to present
      its formal request for extradition and supporting documents.

[11]

On
      25 October 1999, counsel for the United States of America applied under
      s. 14 of the
Act
to extend the time for the United States
      to provide documents in support of the extradition request.  Mr. John Banks,
      who was then counsel for Mr. Reumayr, took no position on the application.  On
      25 October 1999, an order was made by Macaulay J. that the date by which
      the United States authorities were to provide documents in support of the
      request for the extradition of Mr. Reumayr was extended to 23 November
      1999.

[12]

On
      1 December 1999, counsel for the United States brought a second application
      to extend the time in which to provide supporting documents.  That application
      was opposed by Mr. Banks but a further extension was granted by Dohm A.C.J.
      to 17 December 1999.

[13]

On
      10 December 1999, the United States provided its supporting documents.

[14]

On
      10 January 2000, the Minister of Justice issued an authority to proceed
      ("ATP") under the provisions of the
Act
, in which
      the corresponding Canadian offences were set out as follows:

a)         possession
      of an explosive substance contrary to section 82(1) of the
Criminal
      Code
of Canada;

b)         possession
      of materials with intent to cause the explosion of explosive substances
      contrary to section 81(1)(a) of the
Criminal Code
of Canada;

c)         attempt
      arson contrary to sections 433 and 463(d) of the
Criminal Code
of
      Canada;

d)         attempt
      mischief contrary to sections 430 and 463(d) of the
Criminal Code
of
      Canada.

[15]

On
      16 March 2000, Mr. Reumayr applied for judicial interim release on the
      extradition matter before Oppal J. (as he then was) who detained him on
      both the primary and secondary grounds.

[16]

On
      3 April 2000, the domestic charges were stayed by the Attorney General
      of British Columbia.

[17]

On
      15 September 2000, on an application for a 90 day bail review, Baker J.
      continued his detention on both the primary and secondary grounds.

[18]

At
      the commencement of the extradition hearing before Williamson J., counsel
      for the Attorney General of Canada filed the ATP as an exhibit.  The ATP
      gives the superior court jurisdiction to conduct a hearing pursuant to
      s. 24(1) of the
Act
.  Mr. Reumayr did not raise any issue
      as to the lawfulness of his custody at that time.

[19]

On
      30 October 2001, after a lengthy hearing, Williamson J. committed Mr. Reumayr
      for surrender pursuant to s. 29(1) of the
Act.
He found
      that Mr. Reumayr's conduct, if it occurred in Canada, would amount to the
      first two offences set out in the ATP, but that the evidence did not establish
      the attempt offences.  Mr. Reumayr was represented by counsel, Mr. Mark
      Jetté, throughout the hearing.

[20]

On
      23 May 2002, the Minister ordered Mr. Reumayr's surrender on all the outstanding
      American charges.  Mr. Reumayr then brought both an appeal from committal
      and an application for judicial review.

[21]

As
      noted above, on 26 June 2003, this Court dismissed the appeal from the
      committal order.  Mr. Reumayr was represented by Mr. Jetté on the appeal
      and the application for judicial review.  One of the issues raised was
      pre-hearing delay, but that point was dismissed because this Court was
      of the view that Williamson J. had adopted the correct approach in dismissing
      the application for a stay of proceedings at first instance.  The primary
      issue on the application for judicial review was whether, in view of the
      findings of Williamson J. on the corresponding Canadian offences (the issue
      of dual criminality), Mr. Reumayr could be surrendered to face the American
      attempt charges or whether he could be surrendered to face only the possession
      of explosive devices charges.  This Court decided that the terms of the
      surrender order did not appear to be consistent with the committal order
      and remitted the matter to the Minister for reconsideration.

[22]

Mr.
      Reumayr subsequently brought an application under s. 69 of the
Act
for
      an order that he be discharged from custody on the ground that the Minister
      of Justice had not made an order of surrender within the time limit prescribed
      in the
Act
.  Alternatively, Mr. Reumayr applied for
habeas
      corpus
on the ground that his continued detention was unlawful and
      constituted a violation of his rights under s. 7 of the
Charter
.  On
      16 June 2004, in
Reumayr v. Canada (Minister of Justice)
,
      2004 BCSC 808, Garson J. dismissed Mr. Reumayr's application.

[23]

On
      2 July 2004, Mr. Mark Jetté, counsel for Mr. Reumayr, sought a reconsideration
      by the Minister on the basis that, among other things, there has been unreasonable
      delay such that an order of surrender would now be contrary to s. 7 of
      the
Charter
.

[24]

On
      21 July 2004, Mr. Reumayr filed an appeal of the decision of Garson J.,
      an application for judicial review pursuant to s. 57(6), a renewed application
      for discharge pursuant to s. 69, an application to stay the proceedings,
      and an application for an expedited hearing.

[25]

On
      9 November 2004, the Minister rendered his second decision, surrendering
      the appellant to face all of the charges on the American indictment, including
      the attempt charges.

[26]

The
      appeal from the orders made by Garson J. is now set to be heard by this
      Court on 18 January 2005.

[27]

With
      that background, I turn now to the applications before me.

[28]

While
      represented by counsel on other matters, Mr. Reumayr is acting on his own
      behalf on his application to extend the time within which to appeal the
      orders of Macaulay J. and Dohm A.C.J. made in 1999 and the committal order
      of Williamson J. made in 2001.  His argument that the interlocutory orders
      and the subsequent committal order are nullities is being raised for the
      first time on this application.

[29]

It
      is Mr. Reumayr's submission that the time limits set out in s. 14 of the
Act
cannot
      be judicially extended after their expiry.  He argues that
USA v.
      Manns
,
supra
, among others, supports his argument.  The
      following facts, as stated in his written brief, are relevant to Mr. Reumayr's
      submissions:

[1]        On 16 August 1999, a provisional warrant for arrest of the
      appellant was sought by the United States, and authorized by the Attorney
      General.  (The exact same body of conduct grounded both the Canadian and
      U.S. charges.)

[2]        The appellant was arrested on domestic charges, on August
      18, 1999 and remanded into custody.

[3]        The provisional warrant for arrest was issued by Dohm J.,
      of the BC Supreme Court, on August 20, 1999, while appellant was in custody.

[4]        The provisional
      warrant of arrest was served on appellant on August 24, 1999.

[5]        The Minister
      applied on October 25, 1999, on behalf of the Requesting State, for an
      extension of time pursuant to s.14(2) of the
Extradition Act
in
      which to deliver the Supporting documents.  The Court extended the time
      until November 23, 1999. Appellant's counsel took no position on the matter,
      at this application.

[6]        The Requesting
      State failed to meet the extended deadline and the Minister applied on
      December 1, 1999, for a second extension.

[7]        The Court
      extended the time until December 17, 1999, but this extension was opposed
      by appellant's counsel.

[8]        Supporting
      documents were certified by the Requesting State on December 10, 1999.

[30]

Mr.
      Reumayr relies on provisions in both the
Treaty
and the
Act
to
      support his arguments.  Article 11, paragraph (3), as amended, of the
Treaty
reads
      as

follows:

(3)        A person
      arrested shall be set at liberty upon the expiration of sixty days from
      the date of arrest pursuant to such application if a request for extradition
      and the documents specified in Article 9 have not been received. This stipulation
      shall not prevent the institution of proceedings with a view to extraditing
      the person sought if the request and documents are subsequently received.

[31]

The
      applications made in the Supreme Court to extend the time for the United
      States to provide documents in support of the extradition request were
      made under s. 14 of the
Act.
That section provides:

14.(1)    A person who has been provisionally arrested, whether detained
      or released on judicial interim release, must be discharged

(
a
)        *
      * *

(
b
)        if
      the provisional arrest was made pursuant to a request made under an extradition
      agreement that contains a period within which a request for extradition
      must be made and the supporting documents provided,

(i)   when the
      period has expired and the extradition partner has not made the request
      or provided the documents, or

(ii)   when the
      request for extradition has been made and the documents provided within
      the period but the Minister has not issued an authority to proceed before
      the expiry of 30 days after the expiry of that period; or

(
c
)        *
      * *

(2)        On application of the Attorney General, a judge

(
a
)        may
      extend a period referred to in subsection (1); or

(
b
)        *
      * *

(3)
In
      extending a period under subsection (2), the judge may also grant the person
      judicial interim release or vary the conditions of their judicial interim
      release.

[32]

Mr.
      Reumayr points out that the Minister did not apply for an extension of
      time to produce the necessary supporting documentation until after the
      60-day period set out in the
Treaty
had expired.  He further
      points out that the time period in which supporting documentation must
      be delivered by the requesting state had expired before both the first
      and second extensions of time were granted by Macaulay J. and Dohm A.C.J.
      respectively.  The result, in Mr. Reumayr's submission, is that he was
      entitled to be discharged pursuant to s. 14(1)(b)(i) of the
Act
after
      the time period for producing supporting documents had elapsed.

[33]

Mr.
      Reumayr relies on the mandatory wording of
s.
      14(1)(b)(i)
: "
A person who has been
      provisionally arrested, whether detained or released on judicial interim
      release,
must
be discharged," when, in the case of a treaty
      request, the formal extradition request and the documents required for
      the extradition hearing have not been provided within the time limit prescribed
      by the
Treaty
.  He submits that the decision in
USA
      v. Manns
,
supra
, is analogous and supports his argument.

[34]

In
United
          States v. Manns
,
supra
, this Court determined that an
          authority to proceed had not been issued until the day following the
          expiry of the time period in which it was to be made, and held that
          the appellant was therefore entitled to be discharged.  The sections
          under consideration in
Manns
were s. 15 and s. 14(1)(b)(ii)
          of the
Act
which provide:

15.(1)    The Minister may, after receiving a request for extradition
      and being satisfied that the conditions set out in paragraph 3(1)(
a
)
      and subsection 3(3) are met in respect of one or more offences mentioned
      in the request, issue an authority to proceed that authorizes the Attorney
      General to seek, on behalf of the extradition partner, an order of a court
      for the committal of the person under section 29.

14.(1)    A person who has been provisionally arrested, whether detained
      or released on judicial interim release, must be discharged

(
a
)        *
      * *

(
b
)        if
      the provisional arrest was made pursuant to a request made under an extradition
      agreement that contains a period within which a request for extradition
      must be made and the supporting documents provided,

(i)   * * *

(ii)   when the
      request for extradition has been made and the documents provided within
      the period but the Minister has not issued an authority to proceed before
      the expiry of 30 days after the expiry of that period; ...

[35]

In
Manns
,
      the extradition judge had considered whether Mr. Manns was entitled to
      be discharged on the ground that the ATP had not been issued within the
      prescribed time limit.  In considering this question, the extradition judge
      engaged in an interpretation pertaining to the precise number of days that
      had elapsed in the relevant period.  In doing so, he applied the
Interpretation
      Act
, R.S.C. 1985, c. I-21, and concluded that the authority to
      proceed has been issued within the requisite time.  In allowing the appeal,
      Smith J.A. analyzed the relevant provisions of the
Interpretation
      Act
and determined that the extradition judge had misinterpreted
      that Act, and the error had led him to miscalculate the pertinent date
      on which the time period had expired.  What the Court considered to be
      the correct application of the Act led to the conclusion that the authority
      to proceed had been issued one day after the expiry of the time period
      and, on that basis, held that the appellant was entitled to be discharged.

[36]

While
      Mr. Reumayr's argument on the point he raises may have merit, I am not
      persuaded that this is a case in which an extension of time within which
      to appeal the three orders ought to be granted.

[37]

In
      Elaine F. Krivel, Q.C.
et al.
,
A Practical Guide to Canadian
      Extradition
, (Toronto: Carswell, 2002) the authors note that s. 14
      is unique to the new
Extradition Act
and that no comparable
      section existed in the earlier legislation.  As to the significance of
      the new provision, the authors state, at 73,
§
3.0:

The negotiated terms of the treaties with respect to the time periods
      within which the formal request and supporting materials are to be provided
      continue to apply.  However, the Act has modified the operation of the
      treaty terms by providing that the time periods may be extended on the
      order of a judge.

[38]

The
      authors go on to discuss the purpose of the new section, at 74,
§
4.0:

The purpose
      of s. 14 is to implement safeguards and impose time limits on the duration
      of provisional arrest given its exceptional nature.  Provisional arrest
      is exceptional because it allows for the arrest of a person in urgent or
      other pressing circumstances without Canada actually having received the
      extradition request from the requesting state.  As well, the application
      for the provisional arrest is made without having the benefit of the complete
      record which will be supplied in support of the extradition request.  Section
      14 places limits upon the length of time that a person can remain subject
      to extradition proceedings prior to receipt of the formal extradition request,
      the documentation for use at the hearing, and the authority to proceed.  The
      section is flexible, however, in that it permits the time periods to be
      extended by a judge.  The authority to extend the time periods in favour
      of the requesting state is balanced by the provision that allows the judge
      to grant or vary judicial interim release orders.

[39]

One
      of the aims of s. 14 appears to be to avoid permitting a person who has
      been provisionally charged to languish in custody.  This aim or factor
      was discussed in
United States v. Drysdale
(2000), 32 C.R.
      (5
th
) 163, [2000] O.J. No. 214 (Q.L.) (Ont. S.C.J.),
per
Dambrot
      J, aff'd on other grounds at (2004), 21 C.R. (6
th
) 386, 183 C.C.C. (3d) 133 (
sub. nom
.
United
      States of America v. Manningham
) (Ont. C.A.):

[65]       Finally,
        on this issue, I note that s. 14(2) of the
Act
permits a judge
        to extend a period referred to in s. 14(1).  If necessary, I would extend
        the
period in this case to September 21, 1999,
nunc pro tunc
,
        if I have the authority to do so.  The Applicants contend, however, that
        s. 14(2) only permits a judge to extend the time for issuing an authority
        to proceed before the expiration of the statutory period.  There is much
        force to this argument.  Where the framers of this statute intended to
        permit extensions of time to be made after the expiry of a statutory
        time limit, they used explicit language to accomplish that end.  In this
        regard, I refer to s. 50(2) and s. 57(3) of the
Act
.  Moreover,
        given that s. 14(2) entitles a fugitive to be discharged and set at liberty
        at the expiration of a certain period of time should certain acts not
        be done, it is not illogical that there be no power to extend the time
        after the right to be discharged has accrued. In any event, however,
        in light of my earlier conclusions, the application for discharge is
        refused.

[40]

In
Drysdale
,
      Dambrot J. was of the view that the extensions of time that can be granted
      under s. 14(2) are available only where the initial period has not elapsed.  On
      appeal, however, that issue was not directly considered. Instead, the Ontario
      Court of Appeal considered the question of whether the time periods set
      out in s. 14 applied to the case, given that the provisional arrest of
      the person sought had taken place before the
Act
came into
      effect.

[41]

There
      are several Ontario superior court decisions which have permitted extensions
      of time where the extension was sought after the period set out in s. 14(1)
      had expired:
Germany v. Schreiber
, [1999] O.J. No. 5297 (Q.L.)
      (Ont. S.C.J.),
per
Hamilton J.;
Romania v. Oeffner
,
      (1 December 2000), unreported (Ont. S.C.J.), 2000 CarwsellOnt 6166
per
Dunnet
      J.; and
Kocsis v. Hungary (Republic)
(7 October 1999), unreported
      (Ont. S.C.J.), 1999 CarswellOnt 5456
per
Ewaschuk J.

[42]

The
      reasoning in those cases, if applied in this case, would not support Mr.
      Reumayr's arguments.

[43]

Overall,
      I agree with the respondent's submissions that the orders Mr. Reumayr now
      wishes to appeal have been superseded by this Court's decision dismissing
      the appeal from the committal order and remitting the matter to the Minister
      to reconsider the terms of the surrender order.  When the appeal from the
      committal order was taken, Mr. Reumayr was obliged to bring all points
      he wished to appeal forward at that time.  To hold otherwise would undermine
      the principle of finality in litigation.  Moreover, this Court has no jurisdiction
      to reopen the appeal from the committal order because the formal order
      has been entered.

[44]

It
      is also my view that Mr. Reumayr has not presented a compelling case that
      a miscarriage of justice will result if he is not able to put forward his
      new argument on an appeal.  At the time the orders were made by Macaulay
      J. and Dohm A.C.J., Mr. Reumayr was also in custody on the domestic charges.  In
      view of the fact that he was in custody on the domestic charges, there
      was no prejudice to him in allowing the United States additional time to
      present its request and supporting documents.  Mr. Reumayr did not apply
      for bail on either the domestic charges or on the extradition matter until
      March 2000, at which time he was detained.  His subsequent application
      for release before Baker J. was denied.  Thus, at the commencement of the
      extradition hearing, the applicant was lawfully in custody before the court.

[45]

Mr.
      Reumayr was represented by counsel at the extradition hearing and on the
      appeal and the application for judicial review.  The appeal and the application
      for judicial review dealt with the arguments on the merits of the request.

[46]

Apart
      from the application of the principle of finality, Mr. Reumayr's submissions
      overlook Article 11, paragraph (3) of the
Treaty
which provides
      that even if a person arrested is set at liberty upon the expiration of
      60 days from the date of arrest, "[t]his stipulation shall not prevent
      the institution of proceedings with a view to extraditing the person sought
      if the request and documents are subsequently received."  Section
      4 of the
Act
carries that Article into effect by providing
      that
the discharge of a person under the
Act
does
      not preclude further proceedings, whether or not they are based on the
      same conduct, with a view to extraditing the person under the
Act
unless
      the judge is of the opinion that those further proceedings would be an
      abuse of process.  Section 4 provides:

4.         For greater certainty, the discharge of a person under this
      Act or an Act repealed by section 129 or 130 does not preclude further
      proceedings, whether or not they are based on the same conduct, with a
      view to extraditing the person under this Act unless the judge is of the
      opinion that those further proceedings would be an abuse of process.

[47]

Even
      if Mr. Reumayr would have been entitled to a discharge, if the issue had
      been raised in a timely way, there does not appear to be any reason why
      further proceedings would have been precluded in this case.

[48]

In
      the circumstances, I am of the view that no miscarriage of justice has
      resulted, even if Mr. Reumayr would have been entitled to be discharged
      because of the failure of the requesting state to meet the time requirements
      under the
Treaty
and the
Act
.

[49]

Accordingly,
      I would dismiss the application for an extension of time to appeal the
      three orders.  With the dismissal of the extension application, the applications
      for leave to appeal the orders must also fail.

The Honourable Madam Justice Rowles


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Valley
                Mortgage and Investment Company Ltd. v. The Lakers Golf Club
                Ltd.,

2005 BCCA
            28

Date: 20050120

Docket: CA031975; CA032409

Between:

Valley
      Mortgage and Investment Company Ltd.

Respondent

(
Plaintiff
)

And

The Lakers
      Golf Club Ltd., 355534 B.C. Ltd.,

354354
      B.C. Ltd., 353844 B.C. Ltd.,

Kerry John
      Korberg also known as Kerry Korberg,

Kevin Gene
      Korberg also known as Kevin Korberg, and

Coastline
      Developments

Appellants

(
Defendants
)

Before:

The Honourable
            Chief Justice Finch

The Honourable
            Madam Justice Southin

The Honourable
            Madam Justice Huddart

G.S. McAlister

P. Dawson

Counsel for the Appellants

D.P. Church

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

November 25, 2004

Respondents
            Submission Filed:

November 30, 2004

Appellants
            Submission Filed:                 December 9, 2004

Place and
            Date of Judgment:        Vancouver, British Columbia

January 20, 2005

Supplementary Reasons on Costs

Written
              Reasons by
:

The Honourable
            Chief Justice Finch

Concurred
              in by:

The Honourable
            Madam Justice Southin

The Honourable
            Madam Justice Huddart

Reasons for Judgment of the Honourable Chief Justice
        Finch:

[1]

The
      successful plaintiff respondent seeks special costs in two applications.  We
      pronounced oral reasons in both matters on 25 November 2004.

[2]

In
      the first application (Docket No. CA031975), the defendants applied to
      review and vary or discharge the order of Mr. Justice Oppal pronounced
      on 30 September 2004.  He held that leave to appeal the B.C. Supreme Court
      order of 4 May 2004 was required, that leave to appeal should be refused,
      and that the defendants application for a stay of the order should also
      be refused.  He refused leave to appeal on the basis that there was no
      merit in the proposed appeal.  We agreed, and dismissed that application.

[3]

In
      the second proceeding (Docket No. CA032409), the plaintiff applied to quash
      the appeal commenced by the defendants against the order of Mr. Justice
      Brooke pronounced on 15 October 2004 approving sale of the subject properties
      for $4.025 million.  We granted the order quashing that appeal on the basis
      that such an order necessarily followed the order in the first proceedings
      dismissing the application to vary or discharge Mr. Justice Oppals order
      refusing leave to appeal.

[4]

The
      plaintiff says an order for special costs is warranted in both proceedings
      because they amounted to an abuse of process, brought for the purposes
      of delay, in a case where the application for review was entirely without
      merit, and where the second appeal was completely unnecessary.  Counsel
      points to the terms of the mortgage which include provisions that the mortgagor
      (defendant) will pay to the mortgagee (plaintiff) costs on a solicitor
      client basis for proceedings taken to enforce the mortgage unless the
      court otherwise orders.  This provision is one factor the Court may consider
      in deciding whether to grant costs on a solicitor client basis:
CIBC
      Mortgage Corp. v. Lalji
(1986), 8 B.C.L.R. (2d) 310 (C.A.).

[5]

Factors
      to consider in whether an order for special costs should be granted include
      any delay in the proceedings caused by the mortgagor, the mortgagors equity
      in the subject property, and the inequity in permitting the mortgagor to
      have the benefit of contractual interest rates while the mortgage is in
      default while not bearing the burden of contractual costs: see
Saskatchewan
      Trust Co. v. Kalanj
(1989), 39 B.C.L.R. (2d) 385 (B.C.S.C.).

[6]

In
      the circumstances of this case a consideration of these factors favours
      an order for special costs in both proceedings.  The defendant had no equity
      in the property which, on a sale, will likely result in a shortfall to
      the plaintiff of about $1.5 million.  As set out in our reasons of 25 November
      2004, there was no merit to the defendants position in either proceeding.  As
      well, the history of the proceedings suggests delay on the defendants
      part as the principal, if not only, motivating factor.  The defendants
      pursued a review of the refusal to grant leave to appeal after being told
      by Mr. Justice Oppal that the appeal itself had no merit.  The defendant
      also filed a notice of appeal in the second proceeding knowing full well,
      as a result of Mr. Justice Oppals previous reasons, that leave to appeal
      was required.

[7]

Section
      20 of the
Law and Equity Act
, R.S.B.C. 1996, c.253 gives
      the court a discretion to award solicitor and client costs in foreclosure
      proceedings, whether provided for in the mortgage or not.  I do not understand
      any provision of the
Land Title Act
, R.S.B.C. 1996, c.250
      to fetter that discretion.

[8]

I
      would order that the plaintiff have special costs of both proceedings in
      the Court of Appeal.

The Honourable
Chief
      Justice Finch

I Agree:

The Honourable
Madam Justice Southin

I Agree:

The Honourable
Madam Justice Huddart


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Snelgrove,

2005 BCCA
            51

Date: 20050121

Docket: CA032274

Between:

Regina

Respondent

And

Christian
      Charles Snelgrove

Appellant

Before:

The Honourable
            Mr. Justice Hall

The Honourable
            Madam Justice Saunders

The Honourable
            Mr. Justice Lowry

Oral Reasons for Judgment

D.F.O. Henderson

Counsel for the Appellant

W.J.S. Bell

Counsel for the Respondent

Place and
            Date:

Vancouver, British Columbia

21 January 2005

[1]

HALL
        J.A.:
On 26 January 2004, the appellant was convicted
        of forcible confinement contrary to s. 279(2) of the
Criminal Code
and
        assault using a weapon contrary to s. 267(a) of the
Criminal Code
.  Both
        offences carry a maximum penalty of 10 years in prison.  The trial judge,
        observing that a fit sentence for confinement would be four years and
        for the assault two and a half years and taking into account pre-sentence
        custody thereby giving the appellant 18 months credit, sentenced the
        appellant to a sentence of two and a half years on the confinement count
        and one year concurrent on the assault count.  The appellant appeals
        to this Court arguing that the learned sentencing judge failed to give
        him appropriate credit for time served and as well argues that the sentence
        of two and a half years imposed on the confinement count is excessive
        and unfit.

[2]

The
      incident for which the appellant was sentenced arose out of a confrontation
      that occurred at the home of his common-law spouse around 3:30 a.m. on
      21 April 2003.  The appellant, who was high on cocaine at the time, broke
      into the house where the victim resided.  Hearing a noise, she came downstairs
      from her bedroom whereupon the appellant who was holding a stick swore
      at her and then ran upstairs to her bedroom carrying the stick.  The victim,
      fearing possible harm to their four month old daughter, followed him up
      to the bedroom.  What occurred in the bedroom was described by the trial
      judge in his reasons for sentence:

The Offender was then pacing back and forth at the foot of the bed, holding
      the stick over them and continuing to threaten her that she was an "evil
      bitch" and that he was going to "smash her head in" and
      so on.  Ms. McDonald testified that at the time she was terrified.  He
      wanted her to confess but she did not know what he wanted her to say.  She
      was too frightened to try and leave the bed.

[6]

During the ordeal in the bedroom, the Offender
      tore her engagement ring off her finger.  He also videotaped her and the
      child on the bed.  It was never clear exactly how long they were in the
      bedroom.  Ms. McDonald, whose evidence I accepted over that of the Offender,
      thought that it was about a half hour.  I was satisfied that it was for
      an appreciable period of time, ample time for the Offender to have committed
      the acts complained of.

[7]

In any event, the bedroom ordeal ended when
      she agreed to go with him to his parents' residence in North Vancouver
      so that he could question her in their presence.  She drove her car with
      the baby in her car seat and he followed her in his truck with his companion.  She
      was eventually able to phone the police on her cell phone and a high speed
      vehicle chase then ensued before the police were able to pull both cars
      over.

[3]

The
      appellant had a previous record going back to 1991 when he was initially
      convicted under the
Narcotic Control Act
and was put on probation
      for 12 months.  Soon after in March 1992, he was convicted of a serious
      incident of kidnapping, extortion and forcible confinement for which he
      received 13 years at trial subsequently reduced to 10 years by this Court.  He
      was paroled in 1995.  Although he has at times been able to work satisfactorily
      in jobs and has attained certain trade qualifications, it appears that
      he continues to suffer from problems of substance abuse including the use
      of heroin and cocaine.  He has a supportive family but they can only do
      so much and they recognize that unless he deals with his addiction, his
      problems will continue.  The appellant is presently 33 years of age.  The
      victim and the appellant had a relationship for about six years and lived
      together for about five years.  In late 2002, the victim requested that
      the appellant leave home because of his continuing abuse of drugs.  She
      apparently keeps contact with the appellant because of the fact that they
      have a child together but she has some doubts as to whether they can reconcile
      given his continuing problems with drugs.  Prior to the offence, the appellant
      had entered a residential treatment program at the Miracle Valley Centre
      in January of 2003 where he stayed until March 2003 when he was discharged
      for continuing to use drugs.

[4]

He
      was released on bail after this offence and was to return to a drug treatment
      program but was not accepted as he continued to show positive for drugs.  At
      that point, his surety withdrew and thereupon in June of 2003 the appellant
      surrendered into custody and remained in custody until he was sentenced.  It
      was asserted that as a result of his continuing pre-sentence custody, he
      ought to have been credited with something in the range of 20 to 21 months
      as opposed to 18 months, the amount of credit given to him on this account
      by the trial judge.  The appellant expresses a desire to turn his life
      around and asserts that he will try to deal in a positive way with his
      addiction problems but he has had considerable difficulty in the past in
      successfully doing so.

[5]

Counsel
      for the appellant asserts that the sentence imposed was imposed on a wrong
      principle when the judge referred to this as being a "home invasion" and
      further submits that the sentence is out of step with sentences imposed
      in similar cases for similar incidents.  The Crown respondent suggests
      the sentence ought not to be interfered with.  I note that at the sentencing
      hearing the Crown suggested the appellant should receive an additional
      four months to the time he had already served and counsel for the appellant
      submitted that he had already done sufficient time in custody and should
      receive no further custodial sentence.

[6]

The
      learned trial judge did not agree with either submission.  He found that
      this was an aggravated offence occurring with regard to a person who was
      in a matrimonial type relationship with the appellant, that it involved
      violence, that the appellant had a previous serious record for a similar
      offence and that he had had continuing problems with drugs which he had
      not successfully dealt with.  He noted that in this case the appellant
      had not only confined and assaulted his partner and done so in the presence
      of the young child, but that he did so in her own dwelling house.  He found
      that there were a number of serious aggravating circumstances which ought
      to be reflected in any sentence to be imposed.  He said this at a point
      near the conclusion of his reasons:

[57]       In these circumstances, I have carefully considered Mr. Henderson's
      submissions, although I have been unable to agree with what he considers
      to be the appropriate sentence.  I need not refer further to the aggravating
      circumstances.

[58]

I have also considered the circumstances
      which favour the Offender, including that he now may have some insight
      into the nature and extent of his conduct and is remorseful; that he has
      the support of his parents who will not accept his substance abuse or cover
      for him; the fact that his friend and former employer supports him and
      will have work for him in his trade when he is released from prison; his
      achievements when he was on parole earlier when he earned his carpentry
      apprenticeship; the fact that he has taken some steps in the North Fraser
      Pre-Trial Service Centre towards recovery; and that arrangements have been
      made for him to enter a recovery institution upon his release from prison.

[59]

In my opinion, without regard to the pre-sentencing
      custody, for the moment, a fit and proper sentence for forcible confinement
      in the case at Bar would be four years; and for the assault using a weapon,
      two and a half years concurrent.  Taking into account the period of pre-sentencing
      custody and giving the Offender 18 months credit, the sentence for confinement
      is two and a half years and the sentence for assault using a weapon is
      one year concurrent.

[60]

In my view, the sentence meets the sentencing
      principles contained in s.718, having particular regard to denunciation,
      the deterrence of the Offender and others, rehabilitation and the promotion
      of a sense of responsibility in the Offender and an acknowledgement of
      the harm done to Ms. McDonald and to his daughter.

[7]

The
      victim of the offence has filed an affidavit in these proceedings narrating
      that she takes the young child to visit the appellant in the institution
      where he is incarcerated every two to four weeks and she states that she
      is not afraid of the appellant since he has stopped using drugs and is
      not seeking a no contact order.  She avers that he is a hard worker and
      could be a good father provided he is drug free.  So she maintains some
      contact with him but she asserts in her affidavit that she is not interested
      at this time in renewing a personal relationship with him but would like
      the daughter to develop some relationship with the appellant who is the
      father of the infant.

[8]

It
      appears that when the learned trial judge sentenced the appellant, he did
      so in the hope and expectation that the appellant would be able to get
      a fairly high intensity drug treatment program in the institution.  We
      have been advised today by counsel that they have been advised it has not
      been possible to date to have that done and it is probably not going to
      be possible to have that done prior to the statutory release date which
      would be the summer of 2005.  It is possible that he may be put on a different
      lower intensity drug treatment program if he remains in the institution.

[9]

The
      learned sentencing judge, in my opinion, was correct to treat this as a
      serious matter and he was correct to take a serious view of it with particular
      regard to the background of the appellant who, as I have noted, was sentenced
      in the early 1990s to a very substantial term of imprisonment and not withstanding
      that, has relapsed back into behaviour that is criminal and he has relapsed
      back into the use of drugs for some years.  He is not what I would term
      a young offender being now 33 years of age and it seems that he is a person
      who himself must come to the realization that he is going to have to abstain
      from the use of drugs or else he will find himself again in trouble with
      the law.

[10]

The
      sentence imposed at the time it was imposed was one that had a valid purpose
      and recognized the aggravating circumstances relating to the offence and
      the offender.  But the hopes and expectations of the learned trial judge
      who sentenced the appellant have not been realized and apparently are not
      going to be fully realized having regard to the resources of the institution.

[11]

It
      seems to me that this appellant is an individual who requires some assistance
      to inspire him to do better.  For a substantial period of time while he
      was on the lengthy parole that he was on after being released on the offence
      for which he had been sentenced in 1992, he seems to have been able to
      do well in the sense that he got employment and was able to lead a more
      orderly life.  Then he began to use heroin and cocaine and that led to
      the present incident.  The use of cocaine, as is well known, often causes
      people to act in aggressive and irresponsible ways.  Of course heroin has
      its own perils because it tends to be a highly addictive substance.  This
      appellant has had addiction problems with two substances that have the
      capacity to cause him and those around him great difficulty which eventuated
      in the activities that led to his incarceration on the present offences.

[12]

Crown
      counsel has suggested that the sentence imposed was a fit one and that
      we ought not to interfere with it.

[13]

With
      perhaps some hesitation, I have been persuaded that in the rather unusual
      circumstances here where the course of treatment that the trial judge had
      in mind has proved to be an impossible achievement, it may be that another
      approach would be more efficacious in ensuring that this individual gets
      some treatment which according to his counsel he is firmly committed to
      doing and at the same time will provide a measure of control over him for
      a fairly lengthy period into the future.

[14]

So
      what I propose to do is to in part allow the appeal.   Iin place of the
      sentence of two and a half years imposed by the learned sentencing judge
      on the confinement count, I would substitute a sentence of 18 months and
      to that I would add a period of probation of 18 months which would take
      effect from the date of his release from custody.  I would direct that
      the probation order include specific terms that he abstain from the use
      of all narcotics, that he seek and maintain employment, that he should
      be under the direction of his probation officer, that he should keep his
      probation officer advised of his residence and his employment, and that
      he should under the direction of his probation officer seek treatment for
      his drug addiction problem.  He will be under the direction of the probation
      officer for a period of 18 months from the date of his release from his
      sentence of incarceration.  It seems to me that this is in accord with
      the disposition made by the learned sentencing judge who in my respectful
      view was correct in his general approach to this matter.  However, as I
      said, in light of the circumstance that his expectations with respect to
      the implementation of programs during the sentence have not been possible
      of achievement, it seems to me that the approach I have suggested may be
      an efficacious one in the particular circumstances of this case.  Therefore,
      I would alter the sentence in the way that I have set forth above.

[15]

SAUNDERS
        J.A.:
I agree.

[16]

LOWRY
        J.A.:
I agree.

[17]

HALL
        J.A.:
So, in the result, leave is granted, the
        appeal is allowed to the extent I have indicated, and the appellant will
        in due course enter into a probation order in the terms that we have
        ordered here today.

The Honourable Mr. Justice Hall


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Marcangelo
                de Cotiis v. Viam Holdings Ltd.,

2005 BCCA
            57

Date: 20050124

Docket: CA032391

Between:

Marcangelo
      de Cotiis and Donato de Cotiis

Respondents

(
Plaintiffs
)

And

Viam Holdings
      Ltd., Newcorp Properties Ltd.,

Newcorp
      Properties Partnership, Viam Properties Ltd.,

and Viam
      Properties Partnership

Appellants

(
Defendants
)

Before:

The Honourable
            Mr. Justice Lowry

(In Chambers)

Oral Reasons for Judgment

D.P. Church

I.G. Schidt

Counsel for the Appellant

D.J. Barker

Counsel for the Respondent

Place and
            Date:

Vancouver, British Columbia

24 January 2005

(leave to appeal, stay; costs; application
      for fresh evidence)

[1]

LOWRY
        J.A.
:  Application is made by the defendants
        in this action for leave to appeal an order of Madam Justice Ballance
        made 8 October 2004, dismissing their application for a dismissal of
        the action for want of prosecution.

[2]

The
      action was commenced in November 1997 and no steps were taken thereafter,
      until a notice of intention to proceed was served in August 2003.  The
      judge found that there had been an inordinate, inexcusable delay but that
      the delay did not prejudice the defence of the action.

[3]

The
      applicants contend that the judge erred in two respects.  It is said she
      first failed to properly apply the rebuttable presumption of prejudice
      that arises, and then erred in concluding that the health of a particular
      witness would not preclude him from testifying at the trial.  In the event
      the application is granted, the applicants seek a stay of proceedings in
      a related action pending the hearing of the appeal.

[4]

The
      considerations that govern an application for leave to appeal from an interlocutory
      order are recognised to be the apparent merits of the proposed appeal,
      the significance, if any, of the point to be raised on the appeal to the
      practice or the public, the significance of the point in the action, and
      whether the appeal will unduly hinder the action.  The granting of leave
      is not dictated by any one of these considerations, an over-all assessment
      is required.
Coast Hotels Ltd. v. Northwest Hotels Inc.
,
      [2001] B.C.J. No. 1578, 2001 BCCA 481.

[5]

The
      action arises out of the business dealings of members of the de Cotiis
      family as between themselves.  The family real estate development business
      was operated as a partnership for many years by four brothers, who in the
      proceedings are referred to as Amalio, Inno, Michael and Marc.  Marcs
      sons Donato and Nick have also participated.  A falling out between Marc
      and his son Donato, the plaintiffs in this action, and the other three
      brothers led to litigation in what is referred to as the Partnership Action.  That
      action was tried, and judgment was rendered in 1995, although some matters
      remained outstanding.

[6]

One
      issue that remained outstanding gave rise to the present action commenced
      two years later.  It has to do with an agreement, said to have been made
      in the mid-1980s between Mark and his brothers, that the partnership would
      acquire a warehouse for him and his sons, or extend to them a comparable
      benefit, as is said it did for each of Amalio and Inno.  The agreement
      is said to have been made orally, it was not documented.  The action is
      referred to as the Warehouse Action.

[7]

It
      goes without saying that the proposed appeal is significant to the action,
      and it would not delay its prosecution unduly.  But it appears clear that
      the proposed appeal raises no point that could be said to be of any significance
      to the practice or the public.

[8]

With
      respect to the merits of the proposed appeal, it must be recognised that
      the order the applicants wish to appeal is a discretionary one.  This Court
      would generally not interfere with an interlocutory order made in the exercise
      of discretion unless the discretion was not exercised judicially, or was
      exercised on a wrong principle,
Yang v. Yang,
2000 BCCA 486.

[9]

The
      applicants say that the judge erred in principle when, having recognised
      that a rebuttable presumption of prejudice arises, she failed to give effect
      to it.  They say the respondents advanced nothing to rebut the presumption,
      such that it was not rebutted.  But that does not necessarily follow.  The
      effect of the rebuttable presumption is to reverse the onus that would
      otherwise be borne by the party applying for an order to dismiss an application
      for want of prosecution.

[10]

It
      is for the judge to determine whether, on a consideration of all the evidence
      that has been adduced, it can be said that there is no prejudice to the
      defence that would preclude a fair trial.  The applicant need not prove
      prejudice; a judge must be able to find that there will be no prejudice.  If
      that finding cannot be made, the onus borne by the respondent will not
      have been discharged, and the application may well then succeed.  But where
      a finding that there is no prejudice can be made, the onus is discharged.

[11]

The
      applicants maintain that the case will turn largely on the testimony of
      the individuals who were said to have been involved at the material time,
      extending to more than 15 years ago.  They say the memories will have faded
      with the passage of time, and that the respondents have not established
      that the defence is not jeopardized in the result.

[12]

In
      furtherance of their contention, the evidence that was once available will
      no longer be available at trial.  The applicants say that two key witnesses
      are not available to testify.  The first is Marc, one of the plaintiffs,
      who the applicants asserted before Madam Justice Ballance, was by far the
      more critical for their purpose of the two.  But Marc has long suffered
      from a debilitating mental disease that rendered him unable to testify
      in court proceedings before the Warehouse Action was commenced.  He was
      not able to testify at the trial of the Partnership Action.  As the judge
      concluded, the loss of any evidence attributable to Marcs inability to
      testify in support of his case is not attributable to the delay in the
      prosecution of the action.

[13]

The
      second witness who the applicants say is not now able to testify is Amalio.  The
      evidence establishes that his health has, for a long time, been compromised.  He
      suffers in particular from heart and related problems.  He testified at
      the trial of the Partnership Action and it is said that his condition has
      since then deteriorated, to the point where his ability to testify is now
      doubtful.

[14]

Before
      Madam Justice Ballance the appellants adduced evidence of an incident in
      November 2003 when Amalio suffered a serious infection in his back that
      required emergency surgery. The judge did not, however, consider the evidence
      about his medical condition established that he would be unable to testify.  She
      said:

[48] . . . I would expect that if Amalios health had continued to be
      compromised since December 2003, the defendants would have said so directly
      but they gave no evidence about Amalios present mental status.

[15]

The
      evidence about Amalios medical condition was in some conflict.  The judge
      concluded:

[50]      In weighing the evidence I am not persuaded that Amalios heart
      ailment or any other medical condition would prevent him from testifying
      in the Warehouse Action.  Nor does the evidence indicate that his ailments
      are any more debilitating today in terms of his capacity to give evidence
      than they would have been had the action been pursued diligently.

[16]

If
      leave to appeal is granted, the applicants now propose to seek leave to
      adduce fresh evidence, to the effect that in August 2004 Amalio was hospitalised
      for four weeks for treatment, and he has since had to return to the hospital
      for treatment on a weekly basis.  They would seek to adduce medical evidence
      to the effect that Amalios condition is exacerbated by stress, and an
      opinion to the effect that he should avoid participating in litigation
      proceedings because they could further compromise his medical condition.

[17]

The
      respondents would then seek to adduce evidence to the contrary, first with
      respect to Amalios activities, and then medical evidence to the effect
      that the kind of stress associated with being examined under oath would
      not normally compromise the health of a person with Amalios condition.

[18]

It
      should be noted that while Amalios admission to hospital occurred in August
      2004 after the application before Madam Justice Ballance was argued on
      February 27, May 6 and 7, it occurred before judgement was rendered in
      October 2004 and leave might have been sought to advance further evidence
      then, but no steps were taken to do so.

[19]

With
      respect to the prejudice associated with memories fading over time, Madam
      Justice Ballance said:

[51]      The authorities
      repeatedly make the obvious point that a plaintiffs delay may be detrimental
      to the defence because over time memories fade and relevant evidence can
      be lost.  Even so, however, as noted by Mr. Justice Esson in
Tundra

Helicopters
      Ltd. v. Allison Gas Turbine
, in assessing prejudice the court must
      recognize that in most lawsuits there will be a passage of time and with
      it, the erosion of witnesses memories.

[52]      In this case, there is no evidence as to the identity of any
      potential witnesses for the defence who may have disappeared or are otherwise
      unavailable to give evidence due to the plaintiffs delay.

Madam Justice Ballance concluded:

[59]      I conclude that there is an absence of serious prejudice or
      likelihood of it, to the defendants stemming from the plaintiffs delay
      in pressing this litigation forward.

[20]

I
      see little merit in the proposed appeal.  There does not appear to me,
      to be any basis on which it can be said that the judge erred in principle
      on applying the presumption of prejudice.  She recognized that it applied
      and made a clear finding of fact on the evidence before her that there
      was, in the circumstances, no prejudice to the defence that would justify
      the action being dismissed.  It was open to her to do so in the exercise
      of her discretion.  She neither overlooked nor misunderstood any evidence,
      and her decision cannot be said to have been made on some wrong basis.

[21]

For
      my part, I have difficulty seeing how it can be said in this case, that
      given the lapse of more than 15 years since the material events are said
      to have occurred, the last six years should make any critical difference
      in what any witness may remember.

[22]

I
      do not consider that if it were to be admitted, the proposed fresh evidence
      concerning Amalios ability to testify, being in conflict as it clearly
      is, renders the appeal any more
meritorious
.  The evidence in that
      regard, was in conflict before the judge, and it would remain in conflict.

[23]

In
      an application to dismiss an action for want of prosecution, evidence of
      that kind is, of course, best considered by a judge of the trial court.  It
      is conceded that the application could be renewed if, in fact, there were
      to be compelling evidence that was not available when the application was
      heard.  Indeed, the applicants have pleaded the action should be dismissed
      for want of prosecution, and I do not see any reason, in this case, why
      a further application, based on fresh evidence, could not be heard by the
      trial judge who might well be in the best disposition to assess the significance
      of evidence said to be unavailable by virtue of the passage of time.

[24]

Given
      that there appears to be little merit in the proposed appeal, and that
      it gives rise to no point of general interest to the practice or the public,
      I consider that the application for leave to appeal should be dismissed,
      and there will be an order accordingly.

The Honourable Mr. Justice Lowry


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Pretty,

2005 BCCA
            52

Date: 20050124

Docket: CA031927

Between:

Regina

Respondent

And

Jonathan
      Andrew Pretty

Appellant

Before:

The Honourable
            Madam Justice Ryan

The Honourable
            Mr. Justice Donald

The Honourable
            Mr. Justice Low

Oral Reasons for Judgment

B.H. Ralston

Counsel for the Appellant

S.J. Brown

Counsel for the Respondent

Place and
            Date:

Vancouver, British Columbia

24 January 2005

[1]

LOW
        J.A.:
This is a sentence appeal in a summary conviction
        matter, leave to appeal havening been given in chambers.  In Provincial
        Court the appellant pled guilty to one count of mischief under s. 430(4)
        of the
Criminal Code
.  Counsel for the Crown and counsel
        for the appellant made a joint submission for the imposition of a conditional
        discharge for a period of one year with certain conditions that included
        reporting to a probation officer and taking counselling as directed.  Without
        informing counsel of his concerns as to the adequacy of the proposed
        sentence, the sentencing judge gave reasons disagreeing with the proposal
        and suspended the passing of sentence under s. 731(1)(a) of the
Code
with
        a probation order containing substantially the same conditions as those
        proposed by counsel.  A Supreme Court judge dismissed an appeal of the
        sentence.

[2]

The
      appellant contends that the appeal judge erred in not finding error on
      the part of the sentencing judge in imposing a sentence greater than that
      proposed in the joint submission without advising counsel and without having
      a good reason for the departure.  It is clear from the cases that a sentencing
      judge is not bound by a joint recommendation from counsel as to the appropriate
      sentence.  The judge can reject the joint submission but ought to give
      reasons for doing so and not disregard it or overlook it.  The authorities
      in this Court state that it is preferable for the judge to make plain the
      reasons for the concern with the joint submission so that counsel can place
      any additional relevant material on the record for a possible appeal.  However,
      the fact that the judge does not, before giving reasons for sentence, state
      concerns he has with respect to the joint proposal does not mean that an
      appeal court must find the sentence to be unfit and reduce it to that proposed
      in the joint submission.

[3]

During
      the sentence proceedings in the present case, counsel made brief but comprehensive
      submissions.  Counsel for the Crown described the circumstances of the
      offence which I will summarize as follows.  The appellant, a young man
      of 18 years at the time, bore some animosity toward a neighbour because
      he claimed the neighbour had previously thrown rocks at his dog.  While
      the neighbour was sitting on the sundeck at the rear of her house, the
      appellant fired a BB gun at the house.  It is accepted that he was not
      aiming at her.  The pellet passed through the open sliding glass door leading
      to the sundeck and was found by a police officer on the floor of the living
      room where it had fallen after striking the wall.  The appellant readily
      admitted to the police what he had done and why he had done it.  The appellant
      has no prior criminal record.

[4]

In
      rejecting the joint submission, the sentencing judge said that his concern
      was that the victim was "at considerable risk of being struck and
      had she been struck the injury could have been significant".  I do
      not understand the appellant to be contending on appeal that the evidence
      did not support this conclusion.

[5]

The
      judge concluded his reasons for sentencing as follows:

[3]        I am told that Mr. Pretty is under the care of a psychiatrist,
      a child and adolescent psychiatrist, and is being treated for, amongst
      other things, a mixed anxiety disorder.  That is certainly something that
      I should take into consideration in assessing the seriousness of his acts.

[4]        What does concern me is the resort to the use of this handgun
      to resolve this dispute and, in essence, to vent his frustrations in a
      fashion that clearly put the complainant at risk.  There seem to be increasing
      examples of people resorting to the use of weapons to resolve their disputes.  This
      is a good example.

[5]        In my view a conditional discharge may well be in the interest
      of Mr. Pretty, but I remain unconvinced that there is any public interest
      component that meets any test for a discharge on these facts.  I decline
      to grant a conditional discharge.

[6]        I think the more appropriate way to deal with this matter
      would be to suspend the passing of sentence and place this offender on
      probation for a period of 12 months.  The terms and conditions will be
      essentially those that are suggested: He is to keep the peace and be of
      good behaviour; report for the purpose of counselling to a probation officer
      in person and thereafter as and when directed; provide his residential
      address and not change it without prior notice to the probation officer;
      he is not to contact the complainant or any members of her family -- I
      think their names were specified -- directly or indirectly for any purpose;
      he is not to attend within 100 metres of any place of residence, school,
      or employment of the family members of the complainant residence; he is
      to take such counselling as directed by the probation officer; he is not
      to possess any weapons as defined by the Criminal Code.  There will be
      an order forfeiting the BB gun.

[6]

The
      summary conviction appeal judge found no error on the part of the sentencing
      judge.  He said this:

[63]      I also conclude that the sentencing judge did give the joint
      submission proper consideration.  He referred to some of it in his sentencing
      judgment, being the psychiatric treatment Mr. Pretty was receiving.  While
      the sentencing judge did not recite the joint submission in more detail
      by noting Mr. Pretty's age and the fact he was a first offender and entered
      a timely plea of guilty, I accept the comments of Madam Justice Prowse
      in
R. v. Romanowski
[(2002), 174 B.C.A.C. 164] where she said:

The reasons of the
      sentencing judge are brief.  Although he did not specifically refer to
      the respective positions on sentence suggested by counsel, it is inconceivable
      that he would not have in mind information he was provided shortly before
      he imposed sentence.

[64]      The sentencing judge was concerned about the considerable risk
      to Mrs. Miller, who was sitting on the deck within the line of fire, even
      though he accepted that Mr. Pretty was not shooting at her.

[65]      He also expressed concern about the resort to the use of this
      handgun to resolve the dispute and to the fact that this was one example
      of an increasing number of examples of people resorting to the use of weapons
      to resolve their disputes.

[66]      In my view, he was entitled to consider these matters on sentencing.  Section
      718 of the
Criminal Code
sets out two of the purposes of sentencing
      to be to denounce unlawful conduct and to deter the offender and other
      persons from committing offences, and s. 718.1 requires that the sentence
      be proportionate to the gravity of the offence and the degree of responsibility
      of the offender.

[67]      The sentencing judge did not consider the joint submission
      to be a fit sentence as he did not consider it to be in the public interest.  He
      imposed a sentence that carried the same conditions of probation as would
      have a conditional discharge, with the only difference being the imposition
      of a criminal record through a suspended sentence.  I believe the sentencing
      judge considered this appropriate to deter both Mr. Pretty and the general
      public and to recognize the gravity of this offence.

[68]      I agree that a fit sentence was imposed.  It was a serious
      incident carrying considerable risk to Mrs. Miller and perhaps others in
      the house and deterrence of Mr. Pretty and other similarly minded persons
      who would use weapons to resolve disputes was an appropriate consideration
      in sentencing.

[7]

We
      are not told that there was any other information that the defence could
      have put before the sentencing judge had he signalled dissatisfaction with
      the joint submission.  This was not a complicated matter and, although
      the sentence proceeding did not take much time, it seems that counsel made
      complete submissions and it is difficult to conceive what else might have
      been said to attempt to support the sentence proposed or to add to the
      record for a possible appeal.  The judge was not bound by the submission,
      he found that he did not consider a conditional discharge to be "not
      contrary to the public interest" as required by s. 730(1) of the
Criminal
      Code
, and the circumstances, in my view, made that a reasonable
      conclusion.

[8]

I
      agree with the decision of the appeal judge and I would dismiss the appeal.

[9]

RYAN
        J.A.:
I agree.  In this Court leave was granted
        earlier by Mr. Justice Lowry on a question of law alone.  We have dealt
        with that question of law.  The issue with respect to fitness was dealt
        with in the Supreme Court by Mr. Justice Truscott.  He found that he
        could not say that the sentence was unfit.  The question of the fitness
        of sentence is not a question of law alone.  Fitness standing alone is
        not before us.  For the reasons given by my colleague, Mr. Justice Low,
        I too would dismiss this appeal.

[10]

DONALD
        J.A.:
I agree with what both of my colleagues have
        said.

[11]

RYAN
        J.A.:
The appeal is dismissed.

The Honourable
      Madam Justice Ryan

The Honourable Mr. Justice Low