COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

J.A.S.
          v. H.M.

2008
          BCCA 5

Date: 20080109

Dockets: CA033543 and CA033861

Docket: CA033543

Between:

J.
    A. S.

Respondent

(
Plaintiff
)

And

N.
    J. S.

Respondent

(
Defendant
)

And

H.
    M.

Appellant

(
Defendant
)

-  and  -

Docket: CA033861

Between:

J.
    A. S.

Respondent

(
Plaintiff
)

And

H.
    M.

Appellant

(
Defendant
)

Before:

The
          Honourable Madam Justice Prowse

The
          Honourable Mr. Justice Smith

The
          Honourable Mr. Justice Chiasson

G.Turriff,
          Q.C.

Counsel for the Appellant

M.A.
          Dunnaway

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

October 9, 2007

Further
          Written Submissions:

October 25 & 31, 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

January 9, 2008

Written
          Reasons by
:

The
          Honourable Madam Justice Prowse

Concurred
          in by:

The
          Honourable Mr. Justice Smith

The
          Honourable Mr. Justice Chiasson

Reasons
    for Judgment of the Honourable Madam Justice Prowse:

INTRODUCTION

[1]

These appeals arise from a bitterly contested custody and access battle
    between J.A.S. and B. over their daughter and son, who were 4 and 2 years
    of age when the litigation began in July 2000.  At the conclusion of the trial,
    and based largely on B.s conduct in persistently disobeying court orders
    providing that J.A.S. have access to the children, the trial judge awarded
    sole custody and guardianship of their daughter to J.A.S.  The parties son
    died shortly after the trial concluded as a result of a sudden illness.

[2]

The trial judge found that B.s mother, H.M., financed and actively
    supported B. in this litigation, and that she aided and abetted B. in her
    breaches of court orders.  In the result, he found that the conduct of both
    B. and H.M. was reprehensible and justified orders for special costs against
    them.  He dismissed a related application by J.A.S. for special costs against
    one of the lawyers who had acted for B. prior to trial (Mr. Bjurman).

[3]

H.M. is appealing, with leave, from the two orders awarding special
    costs against her.  The first appeal is from an order, made October 26, 2005,
    providing that she is jointly and severally liable for J.A.S.s special costs
    throughout.

[4]

The second appeal is from an order made February 8, 2006, providing
    that H.M. is liable for special costs of the special costs application and
    any subsequent proceedings to assess costs.

[5]

In pursuing these appeals, H.M. also challenges two orders (the waiver
    orders) made by the trial judge during the course of the costs proceedings.
    The first order, made September 9, 2003, requires that all of B.s previous
    lawyers produce all records and notes in their possession of telephone conversations,
    correspondence to and from, and meetings with [H. M.], with respect to this
    proceeding, up to, during and after the trial of this matter, until March
    26, 2003.

[6]

The second order, made July 9, 2004, provides that ... solicitor/client
    privilege respecting Trevors Bjurmans retainer in this action be waived.

[7]

H.M. does not challenge a further order made by the trial judge on
    March 29, 2004, waiving privilege over Mr. Bjurmans file in this matter to
    the extent necessary to enable Mr. Bjurman to consult with and instruct counsel
    with respect to the application for special costs against him.

ISSUES ON APPEAL

[8]

H.M. submits that the trial judge erred in:

(1)
    Waiving privilege over B.s file, in whole or in part;

(2)
    Making an order for special costs in circumstances where H.M. was not provided
    with a fair process for defending herself against this claim;

(3)
    Ordering that H.M. pay special costs of the special costs hearing in the absence
    of any reprehensible conduct of H.M. in relation to that hearing;

(4)
    Ordering that H.M. pay special costs for steps in the action, including an
    assessment of costs, that had not occurred when the order for special costs
    was made.

CONCLUSION

[9]

For the reasons which follow, I conclude that the appeal must be dismissed.
    I am not persuaded that the process followed by the trial judge in making
    the orders for costs against H.M. was unfair.  Further, I am satisfied that
    he was correct in ordering H.M. to pay special costs of the special costs
    proceedings and any subsequent proceedings for an assessment of costs.

[10]

While there is a basis for arguing that the trial judge erred in making
    the waiver orders with respect to some or all of the contents of B.s file,
    I am not persuaded that H.M. has any standing to challenge those orders for
    her own benefit on this appeal, on the basis that the privilege waived by
    the trial judge was that of B. and was a personal right to her.  I note that
    B. is not a party to this appeal.

BACKGROUND

[11]

The background giving rise to the special costs orders is lengthy,
    involving numerous applications before several judges with respect to custody
    and access.  The proceedings were also complicated by parallel proceedings
    for custody and access brought by B. in Hawaii where she had moved with the
    children in 1999.  Those proceedings were eventually resolved by the courts
    in Hawaii declining jurisdiction in favour of the B.C. Supreme Court.

[12]

As a matter of convenience, and to provide some context for the ensuing
    discussion of the waiver orders and special costs orders which are the subject
    of this appeal, I will refer to the more relevant litigation history in point
    form, as follows:

1)
     J.A.S. and B. were not married, but cohabited from August 1995 to October
    1999.

2)
     They had a daughter and a son, born July 10, 1996 and April 17, 1998, respectively.

3)
     In 1998, J.A.S. told B. of intrusive sexual thoughts he had concerning their
    daughter and advised her that he may have been abused as a child.  This revelation,
    together with allegations that J.A.S. had threatened violence to B., the children
    and H.M., became the focus of B. and H.M.s concerted and unrelenting efforts
    to deny J.A.S. access to the children.  (I note at this point that the trial
    judge accepted medical evidence which stated that J.A.S. did not represent
    a danger to the children.)

4)
    Around Christmas 1999, B. advised J.A.S. she was taking the children to Hawaii
    for a vacation.

5)
    On December 27, 1999, B. moved to Hawaii with the children with the financial
    assistance of H.M.  (J.A.S. did not see the children again until October 2001.)

6)
    In May 2000, B. married Mr. B., an American citizen she met in Honolulu.

7)
    On June 30, 2000, J.A.S.s brother saw B. when she was in Vancouver for a
    few days with the children staying at H.M.s apartment. J.A.S. sought and
    obtained an interim
ex parte
order from Smith J. on July 2, 2000 giving
    the parties interim joint custody of the children and ordering that B. not
    remove them from British Columbia.  This order was served substitutionally
    on H.M. on July 3, 2000.  The trial judge found that B. had notice of this
    order before returning to Hawaii with the children that evening and rejected
    the evidence of B. and H.M. to the contrary.  He eventually found B. in contempt
    of this order.

8)
    In September 2000, B. obtained an
ex parte
order in proceedings for
    custody she had commenced in Hawaii, temporarily restraining J.A.S. from having
    any contact with the children.  She used that order to deny J.A.S. telephone
    access to the children which had been ordered by Madam Justice Satanove on
    September 21, 2000.

9)
    B. denied J.A.S. access in Hawaii in January 2001, contrary to the order of
    Mr. Justice Hood made December 13, 2000, as amended by Master McCallum on
    January 24, 2001 to provide for unsupervised access.  B. subsequently admitted
    that she hid with the children at an address unknown to J.A.S. when he travelled
    to Hawaii with his mother to exercise access in January.

10)
    The custody and access trial began in August 2001 in Vancouver.  At the conclusion
    of J.A.S.s case (as plaintiff), B. indicated her willingness to cooperate
    in arranging access to the children by J.A.S.  The trial was then adjourned
    on the understanding that there would be supervised access by J.A.S. to the
    children in accordance with a report prepared pursuant to s. 15 of the
Family
    Relations Act
, R.S.B.C. 1996, c. 28.

11)
    In October, 2001, H.M. sent an 80 page unsolicited missive to the trial judge
    attaching documents, including J.A.S.s medical records, a chronology of B.s
    allegations, and documents relating to the Hawaiian proceedings, to demonstrate
    why J.A.S. should not be granted access.  The trial judge returned this letter
    unread by memorandum dated October 22, 2001.  (The letter was before him,
    however, in the subsequent hearing for special costs.)

12)
    B. removed the children to California in December 2001 to thwart J.A.S.s
    court ordered access to them.  For this, she was found in contempt of court
    by the trial judge on January 31, 2002 and was advised through her counsel
    that she could purge her contempt by returning with the children by February
    11, 2002 for the continuation of the trial on February 18, 2002.  B. did not
    return with the children until February 15, 2002.

13)
    At the continuation of the trial, B. acknowledged that she did not believe
    or know that J.A.S. was a paedophile; that she had perjured herself in sworn
    documents filed in Hawaii and in British Columbia; and that she had falsely
    sworn that J.A.S. had threatened her, the children and H.M. with violence
    and death.

14)
    During the course of the trial, H.M. sent medical reports from the psychiatrists
    who had provided opinions about J.A.S. directly to J.A.S.s relatives with
    letters from her stating that one of the doctors had perjured himself in
    providing an opinion that was an outright lie.  Those letters also contained
    other scurrilous material concerning J.A.S. and his family.

15)
    The 11 day trial concluded on March 6, 2002 and the trial judge reserved his
    decision.

16)
    On March 18, 2002, following the unexpected death of their son, the parties
    and H.M. appeared before the trial judge with respect to H.M.s behaviour
    in telling the daughter that J.A.S. was responsible for her brothers death
    and in assisting the daughter in calling J.A.S. to advise if he did not return
    the daughters belongings she would call 911.  H.M, B. and Mr. B. agreed that
    they would do nothing more to interfere with the re-establishment of a normal
    relationship between the daughter and J.A.S.

17)
    On March 25, 2002, the trial judge issued reasons for judgment awarding J.A.S.
    sole custody and guardianship of their daughter with liberal access by B.,
    to be exercised in Vancouver.

18)
    On October 7, 2002, J.A.S. applied to add Mr. Bjurman and H.M. as parties
    for the purpose of seeking special costs against them jointly and severally
    with B., and requested directions as to the manner of hearing.

19)
    On March 26, 2003, the trial judge made an order adding H.M. as a party and
    ordering that the file be unsealed.  (Mr. Bjurman was not added as a party,
    but special costs against him were pursued under Rule 57(37) of the
Rules
    of Court
, B.C. Reg. 221/90 (the Rules)).

20)
    On July 23, 2003, J.A.S. filed an application seeking, amongst other things,
    an order:

2.  That
    all previous counsel for [B.] including Trevors Bjurman, Jack Aaron, and Stephen
    Mansfield, produce forthwith to counsel for [J.A.S.] all records and notes
    in their possession of telephone conversations, correspondence to and from,
    and meetings with, [H.M.], up to, during and after the trial of this matter
    until the date that [H.M.] was named a party in this proceeding;

21)
    On September 9, 2003, the trial judge made an order which included the terms
    requested in the immediately preceding paragraph.

22)
    On October 1, 2003, B. filed a Notice of Appeal with respect to this order,
    followed by a Notice of Abandonment filed November 27, 2003.

23)
    On March 5, 2004, Mr. Bjurman applied for an order seeking, amongst other
    things:

2.  that
    solicitor/client privilege respecting Trevors Bjurmans retainer in this action
    be waived to the extent that Mr. Bjurman be permitted to provide his counsel,
    Carla Forth, with a complete copy of his file and to discuss with his counsel,
    Carla Forth, any and all communications between Mr. Bjurman and [B.] and/or
    [H.M.] and any agents retained on their behalf;

24)
    On March 29, 2004, the trial judge made an order in accordance with item 2
    of the application referred to in para. 23,
supra
, and also requiring
    that counsel for J.A.S. file and serve draft written submissions with respect
    to the special costs application within two weeks.

25)
    On July 6, 2004, Mr. Bjurman applied for an order:

1.  that
    solicitor/client privilege respecting Trevors Bjurmans retainer in this action
    be waived to the extent that Mr. Bjurman be permitted to swear an Affidavit
    responding to the allegations made against him but that the waiver of privilege
    will be limited to the specific communications set out in the Affidavit and
    not a general waiver of solicitor/client privilege over the entire file;

pursuant
    to the inherent jurisdiction of the court.

26)  On
    July 9, 2004, the trial judge made an order waiving solicitor-client privilege
    over the entire file.

27)
    On October 26, 2005, the trial judge made an order dismissing the application
    for special costs against Mr. Bjurman, but awarding special costs against
    H.M. and B. jointly and severally throughout.

28)
    On February 8, 2006, the trial judge made an order that H.M. pay special costs
    of the special costs hearing and of all future proceedings to assess costs.

[13]

As earlier noted, it is the orders with respect to special costs referred
    to in paras. 27 and 28 which are the direct subjects of this appeal.  However,
    the orders referred to in items 21 and 26 dealing with waiver of solicitor-client
    privilege were also challenged by H.M. on this appeal.

A PRELIMINARY ISSUE - WAIVER

[14]

Counsel for J.A.S. submits that this Court should not consider the
    validity of the waiver orders on this appeal since no appeal was taken from
    those orders at the time they were made in 2003 and 2004 (or, more accurately,
    B. filed an appeal against the first waiver order, but then abandoned it).
     Counsel for J.A.S. stated that H.M. never asserted an independent right of
    privilege in relation to the communications covered by the waiver orders,
    and submits that it is not open to her to assert a claim of privilege on appeal.

[15]

In reply, counsel for H.M. submits that the waiver orders should be
    treated as rulings made in the course of the ongoing proceedings on costs
    which were subsumed in the costs orders and which did not require a separate
    application for leave to appeal.  Counsel acknowledges that H.M. did not assert
    an independent right of privilege at trial with respect to the communications
    in issue and, for that reason, he does not assert an independent right of
    privilege on appeal.  He states, however, that none of the authorities before
    the Court specifically precludes H.M. from challenging the waiver orders at
    issue, and that it is a relevant consideration in that regard that H.M. acted
    as an agent of B. for the purpose of communicating with her lawyers prior
    to, and during the course of, the trial.

[16]

I do not find it necessary to determine whether the waiver orders should
    have been the subject of a separate appeal or appeals.  In my view, it is
    clear that H.M. has no standing to challenge those orders for her own benefit
    in any event.  She did not, and does not, assert that she had any privilege
    in the communications at issue.  She acknowledges that it was B. who enjoyed
    the privilege in those communications with her counsel and that, at most,
    H.M. acted as an agent or conduit of B. in facilitating those communications.
    In my view, the fact that H.M. was an agent for the purpose of facilitating
    B.s communications with counsel is of little moment in determining whether
    H.M. can now rely on B.s privilege in seeking to overturn the waiver orders
    on appeal.  B. is not participating in this appeal and there is no evidence
    that H.M. is now acting as her agent to claim the privilege on her behalf.

[17]

Counsel did not refer the Court to any authorities which address this
    issue directly.  It is apparent from the authorities to which we were referred,
    however, that the solicitor-client privilege is a personal right of the client
    which operates for the clients benefit.  The nature of the right is described
    by Chief Justice Lamer, speaking for the court, in
Descôteaux v. Mierzwinski
,
    [1982] 1 S.C.R. 860 at 871:

There
    is no denying that a person has a right to communicate with a legal adviser
    in all confidence, a right that is founded upon the unique relationship between
    solicitor and client (
Solosky [ v. The Queen
, [1980] 1 S.C.R. 821],
supra
.)
It is a personal and extra-patrimonial right which follows
    a citizen throughout his dealings with others.
Like other personal, extra-patrimonial
    rights, it gives rise to preventive or curative remedies provided for by law,
    depending on the nature of the aggression threatening it or of which it was
    the object ...

[Emphasis added.]

[18]

The
Civil Code of Quebec
, S.Q. 1991, c. 64, arts. 2-3
    distinguishes between patrimonial and extra-patrimonial rights, and gives
    as an example of the latter the right of a person in the respect of his name,
    reputation and privacy.  Extra-patrimonial rights are described as inalienable.

[19]

It is apparent from the authorities referred to in
Descôteaux
,
    and in subsequent decisions of the Supreme Court of Canada, that the concept
    of privilege as a personal, inalienable right is consistent in both the civil
    and common law.  The essence of solicitor-client privilege is its personal
    and confidential character.  While there may be instances when a third party,
    for example, a partys solicitor, is expected (if not required) to assert
    the privilege on behalf of his or her client, the privilege asserted is that
    of the client for the benefit of the client.  Here, H.M. is purporting to
    assert B.s right of privilege, not for the benefit of B., but for her own
    benefit.

[20]

In the absence of specific authority on this point, I will refer to
    only one case which directly addresses the question of whether a third party
    can take the benefit of the solicitor-client privilege belonging to another.
    In
Marston v. Downes
(1834), 1 Adol. & El. 31, 110 E.R.
    1119 (K.B.), the attorney for a non-party gave parol evidence regarding a
    deed to the detriment of the defendants in that case, in circumstances where
    that evidence was arguably privileged.  On the point being reserved to the
    full court, Denman C.J. held that, even if the judge had erred in admitting
    the attorneys evidence, the defendants could not advance the error because
    the privilege did not belong to them.  At p. 34 of the decision, he stated:

...whether
    or not the privilege of the mortgagee extended to protect him from the attorneys
    giving parol evidence of the contents of the deed, still the evidence having
    actually gone before the jury, the defendants were not a privileged party;
    and they, therefore, had no right of objection, even on the supposition that
    the learned Judge had done wrong.

[21]

I also note that, in
Wigmore, Evidence in Trials at Common Law
,
    McNaughton Revision, vol. 8 (Boston: Little, Brown & Co., 1961) at para.
    2196, the author discusses the consequences of an incorrect ruling on privilege
    (including solicitor-client privilege) on third parties adversely affected
    by the result:

(2)
    But what if the court
rules improperly
on the claim of privilege?
    (a) If the ruling
denies the privilege
and compels the witness to testify,
    there is no legitimate ground for exception by the party against whom the
    evidence weighs. By hypothesis, the privilege does not exist for the benefit
    of the party nor for the sake of the better ascertainment of the truth of
    his cause.  The offered testimony is relevant and is, in all other respects
    than the privilege, admissible.  The admission of it, by denying the privilege,
    has not introduced material which in any way renders less trustworthy the
    finding of the verdict.  On the contrary, only the exclusion of it could have
    been an obstacle to the ascertainment of the truth.  The only interest injured
    is that of the privileged person.  His remedy  if, as is usually the case,
    he was a witness, was to refuse to obey and to appeal for vindication if the
    court has attempted improperly to use compulsory process of contempt.

[Emphasis in original.]

[22]

In my view, this analysis can be applied to the solicitor-client privilege
    in this case.  While B. had standing to appeal the orders denying her the
    benefit of her solicitor-client privilege in the communications with her lawyers,
    H.M., who claimed no personal privilege in those communications, had no basis
    for appealing on her own behalf.

[23]

In summary, because H.M. has conceded that she is not in a position
    to assert privilege on her own behalf with respect to the two waiver orders,
    and because I have concluded that she has no right to assert or take the benefit
    of any privilege B. enjoyed over the communications in issue, I find there
    is no foundation for setting aside those orders on appeal.  Similarly, there
    is no basis for finding that the trial judge erred in relying on the contents
    of those communications in making his order for special costs.

[24]

Based on this conclusion, it is unnecessary for me to analyze the other
    issues raised by counsel with respect to the issue of waiver.

DISCUSSION OF THE ISSUES

(a)
The Trial
    Decision

[25]

The starting point for an analysis of the special costs orders are
    the findings of the trial judge in his reasons for judgment of March 25, 2002
    following the trial.  Those findings set the stage for J.A.S.s claims for
    special costs against B., H.M. and Mr. Bjurman.  In that regard, it is noteworthy
    that, although H.M. was not a party to the proceedings at the time those reasons
    were rendered, she had provided affidavit evidence in the course of the proceedings
    to which the trial judge made reference in his reasons.

[26]

The more significant findings of the trial judge in relation to the
    eventual claim against H.M. for special costs include the following:

(1)
    He rejected as a fabrication the evidence of H.M. and B. denying that they
    had been served with the order of Mr. Justice Smith, made July 2, 2000, and
    found that B. had taken the children to Hawaii in contravention of that order,
    with the assistance of H.M. (para. 37).

(2)
    He found B.s evidence that she and H.M. hated his [J.A.S.s] guts was consistent
    with them embarking on a concerted plan to prevent J.A.S. from contacting
    the children (para. 38).

(3)
    He found that H.M. financed the plan by paying for lawyers in British Columbia
    and Honolulu; by acting as a go-between for the lawyers and B.; and by financially
    supporting B. and the children in Honolulu (para. 39).

(4)
    He inferred that H.M. had called the police in Honolulu in an attempt to block
    J.A.S.s access to the children in January 2001 (paras. 46 and 47).

(5)
    He found that H.M., B. and Mr. Bjurman frustrated J.A.S.s access in January
    2001 by wrongly insisting it be supervised (para. 49).

(6)
    He found that This conduct amounted to a deliberate and egregious disobedience
    of this courts orders. (para. 50).

(7)
    He found that H.M., B. and Mr. B. made unjustified complaints about the supervision
    of J.A.S.s access in late September and early October 2001 after the trial
    was adjourned (para. 56).

(8)
    He found that H.M. improperly disclosed J.A.S.s medical records to his family
    together with letters containing groundless complaints impugning the professional
    reputation of one of the doctors.  He observed that the tone and content of
    H.M.s letters is so reckless and scurrilous as to indicate that she wrote
    them for no other purpose than to denigrate the father and others, including
    Dr. [name omitted], who H.M. regarded as supportive of the father.  If any
    corroboration were necessary of the mothers statement that both she and H.M.
    [sic] hated his guts these letters provide it. (paras. 68-70).

(9)
    He found that both H.M. and B. were motivated to make false statements about
    J.A.S. by their admitted hatred of him and their desire to get him out of
    their lives and that of the children.  He further found that H.M. encouraged
    B. in her actions by instructing counsel on the mothers behalf and by actively
    discrediting the father in the letters just referred to, in affidavits and
    in false reports she made about him to law enforcement authorities. (paras.
    71-72).

[27]

At paras. 73 and 74 of his reasons, the trial judge made the following
    findings directly implicating H.M. in B.s contempts of court orders:

I find the mother committed flagrant and repeated contempts
    of this court by disregarding court orders of which she was aware, as she
    admitted.  These contempts of the courts process cannot be condoned or excused.

I find [H.M.] aided and abetted the mother in her contempt
    of court orders.  I have heard sufficient evidence to permit me to compel
    [H.M.] to appear before the court to stand trial herself for contempt of court.
I refrain from doing so only because of the risk such a trial may serve to
    enflame antipathy between the parties and divert their attention from the
    urgent need to co-operate to ensure the best interest of [the daughter] is
    met.  [The daughter] needs support from both her parents and her grandparents,
    all the more so since the tragic death of her brother....  She does not need
    further strife among them which can only be detrimental to her best interest.

However,
I put [H.M.] on notice that if it comes to
    the courts attention that she has in future done or failed to do anything
    which further encourages or assists the mother to disobey the letter and spirit
    of orders of this court, [H.M.] will be compelled to appear before the court
    to show cause why she should not be found in contempt for aiding and abetting
    non-compliance with court orders in the past and for any contempt subsequent
    to this judgment.

[Emphasis added.]

[28]

Unfortunately, the trial judges stated intention of avoiding further
    strife between the parties by not initiating contempt proceedings against
    H.M., proved fruitless.  Rather than contempt proceedings,
per se
,
    J.A.S. relied on the trial judges findings in his reasons for judgment as
    the foundation for an application to add H.M. as a party to the action and
    to claim special costs against her, B. and Mr. Bjurman.

(b)
The First
    Decision on Costs

[29]

In his reasons for judgment dated October 26, 2005, the trial judge
    ordered special costs of the trial against H.M. to be paid jointly and severally
    with B.   He dismissed the application for special costs against Mr. Bjurman.

[30]

Early in his reasons, the trial judge noted that he had awarded special
    costs against B. because of her reprehensible conduct of the litigation,
    including perjury she admitted at trial and blatant contempt of numerous orders
    of this court.  He observed that H.M. and Mr. Bjurman had not been parties
    to the action or participants in the trial.  He noted their submission that
    he should disregard his earlier adverse findings regarding their conduct,
    particularly in light of B.s admitted perjury and general lack of credibility.

[31]

The trial judge then referred to the materials he considered on the
    application, including a 57 page affidavit with 140 exhibits sworn by Mr.
    Bjurman detailing his conduct of the case and attaching much of his correspondence
    with B. and H.M.; a written submission on behalf of Mr. Bjurman; an affidavit
    from former counsel for J.A.S.; a 62 page argument and 11 page reply filed
    on behalf of J.A.S.; a 16 page affidavit sworn by H.M. and a 67 page written
    submission on her behalf adopting, in part, the submission of Mr. Bjurman.
    The trial judge stated that he had thoroughly reviewed this material, together
    with all of the relevant court record, and that it provided a comprehensive
    picture of how the mothers side of this litigation was conducted during the
    period of Mr. Bjurmans retainer.

[32]

The trial judge then dealt in detail with the claim for special costs
    against Mr. Bjurman.  After so doing, he concluded that the adverse inference
    he had initially drawn that Mr. Bjurman participated in B.s contemptuous
    behaviour was incorrect in light of what is disclosed by his file.  He also
    concluded that B.s testimony at trial to the effect that Mr. Bjurman and
    H.M. had handled everything was incorrect, and that B. was much more involved
    in the conduct of her file than she had admitted.  In the result, he concluded
    that Mr. Bjurman had not acted reprehensibly, negligently or in bad faith.

[33]

The trial judge then went on to deal at length with the claim for special
    costs against H.M.  He observed that, unlike B., H.M. had never recanted her
    stated belief that J.A.S. was a paedophile and a dangerous person.  He inferred
    from this that H.M. was the more intransigent of the two in denying J.A.S.
    access, and that she exerted considerable influence over B.s choices because
    she was financing the litigation (and B.s exodus to Hawaii).  In that regard,
    the trial judge stated (at para. 73):

[H.M.]s involvement in these proceedings went far beyond
    merely paying the mothers legal and other bills and acting as an agent or
    conduit for instructions between the mother and Mr. Bjurman.  As noted in
    2002 BCSC 440, [H.M.] and the mother acted in concert to deny the father court
    ordered access.  [H.M.] aided and encouraged the mother in her contempt of
    court orders.

[34]

The trial judge rejected H.M.s evidence that she was not motivated
    by hatred for J.A.S. and found that the tone of her communications with Mr.
    Bjurman completely belied this assertion.  The trial judge also rejected H.M.s
    evidence that she was simply misdirected in sending J.A.S.s medical records
    together with offensive comments about him to members of his family.  He found
    that she sent this material contrary to Mr. Bjurmans advice and confirmed
    that these letters were reckless, scurrilous, written to denigrate the father
    and that they corroborated the mothers testimony that she and H.M. hated
    his guts.

[35]

The trial judge accepted that, contrary to his earlier finding, H.M.
    did not personally alert United States border officials to J.A.S.s  planned
    trip to exercise access in Hawaii which resulted in him being detained and
    questioned by the police.  However, he noted that H.M. had told a friend and
    business associate who was a member of the Honolulu police of her concern
    that J.A.S. was a paedophile and a dangerous person and said that it was
    disingenuous for her to imply by swearing her affidavit that she had nothing
    to do with the father being stopped at the airport and interviewed by the
    police .

[36]

The principal conclusions of the trial judge underlying his order for
    special costs against H.M. are found at paragraphs 90-92 of his reasons:

At paragraphs 70-74 of 2004 BCSC 440 I found that [H.M.]
    was motivated by her hatred of the father to aid and abet the mother in flagrant
    and repeated contempts of orders of this court and was susceptible to being
    found in contempt herself.

The evidence on this application reinforces that finding.

I find [H.M.]s actions in respect of this litigation reprehensible.  They
    warrant an award of special costs against her.  She will be jointly and severally
    liable with the mother for the fathers costs throughout.

(c)
The Process
    Leading to the First Order on Costs

[37]

Earlier in these reasons, I described the extensive background giving
    rise to the costs orders under appeal.  I will focus here on the proceedings
    commencing with the order of March 26, 2003 adding H.M. as a party to the
    proceedings to enable J.A.S. to claim special costs against her.  This was
    followed by the order of September 9, 2003 requiring former counsel for B.
    to produce all communications they had received from H.M. in relation to the
    action.  In making that order, the trial judge stated (at para. 19):

I am satisfied that in order to determine what role [H.M.]
    played in this litigation, to properly adjudicate the claim for costs against
    her, the order for disclosure of communications between [H.M.] and previous
    counsel for the mother should be made in the terms set out in the Notice of
    Motion.

[38]

At that time, the trial judge made a point of stating (at para. 29)
    that he had formed no opinion as to H.M.s prospects in resisting the application
    for special costs against her.

[39]

At the September 2003 hearing, the question of the appropriate process
    to follow with respect to the issue of costs was canvassed at length between
    the trial judge and counsel.  Issues were raised with respect to what evidence
    would be called, the possibility of cross-examination (of B., in particular),
    the fact that there were no pleadings
per se
, and the possibility
    of treating the trial judges earlier findings with respect to H.M.s conduct
    as being of a provisional nature by analogy with provisional orders in maintenance
    enforcement proceedings.  The trial judge expressed concern that the costs
    proceedings not mushroom into a full-blown trial with attendant costs and
    delay.

[40]

The next relevant development was the order of March 29, 2004 providing
    that solicitor-client privilege was waived to the extent necessary to permit
    Mr. Bjurman to discuss the file with his lawyer with respect to the application
    for special costs against him.  At that time, there were further discussions
    regarding process.  In order to ensure that H.M. (and Mr. Bjurman) were fully
    apprised of the case they had to meet, the trial judge ordered J.A.S. to file
    written submissions which would set forth the details of his claim.  Once
    H.M. (and Mr. Bjurman) had the opportunity to review J.A.S.s argument, the
    trial judge made it clear that it was open to them to seek to cross-examine
    B. or to lead
viva voce
or other evidence in reply.  The trial judge
    also indicated that he was available to provide further directions for the
    conduct of the hearing on costs, as required.

[41]

Mr. Bjurman then applied for an order for waiver of solicitor-client
    privilege to the extent necessary to permit him to file an affidavit in defence
    of the application for special costs against him.  He also sought an order
    that B. be produced for cross-examination.  In reasons for judgment pronounced
    July 9, 2004, the trial judge ordered that solicitor-client privilege over
    the entire file be waived and he adjourned the application for cross-examination
    of B., pending the filing of Mr. Bjurmans affidavit.

[42]

No further application was brought by any of the parties for cross-examination
    of B. (or any other witness at trial); nor did H.M. raise further issues concerning
    process.

(d)
Submissions of Counsel

[43]

Counsel for H.M. submits that the trial judge erred in adopting a summary
    procedure to deal with the issue of special costs in circumstances where H.M.
    was not a party at trial and, therefore, did not enjoy the advantages of pleadings
    and full cross-examination of witnesses. He submits that H.M. was also at
    a disadvantage because the trial judge had already adversely commented on
    her conduct in his initial reasons for judgment.  Finally, he emphasizes what
    he refers to as the unfairness arising from the disclosure of B.s file flowing
    from the waiver order of July 9, 2004.

[44]

In reply, counsel for J.A.S. submits that H.M. was never in any doubt
    as to the case she had to meet with respect to the issue of special costs.
    This was provided both in the trial judges comments regarding her conduct
    in his decision at trial and in J.A.S.s submissions.  Counsel submits it
    is apparent that the trial judge did not regard the adverse findings in his
    trial judgment as being immutable, as evidenced by the statement in his September
    2003 reasons that he had not formed an opinion as to H.M.s liability for
    special costs, and by the fact that he reversed his original view that Mr.
    Bjurman was complicit in B.s contemptuous conduct.

[45]

Counsel for J.A.S. also notes that H.M. made no request for discovery,
    or for cross-examination of any of the witnesses from the trial.  Finally,
    with respect to H.M.s claim that she was prejudiced by the order of July
    9, 2004 waiving privilege over B.s file, counsel observes that H.M. was prepared
    at that time to consent to an order whereby B. would waive privilege over
    the vast majority of the file such that it is now disingenuous of H.M. to
    say that she was highly prejudiced by the order that was made.  (In any event,
    I have determined that H.M. has no standing to challenge that order.)

(e)
Analysis and
    Conclusion on Process

[46]

It is not disputed that it is open to the court to make findings of
    costs against individuals who were not parties to the litigation by utilizing
    a summary process, although such orders are relatively rare.  For example,
    in
Young v. Young
, [1993] 4 S.C.R. 3, varying (1990), 75 D.L.R.
    (4
th
) 46 (B.C.C.A.), revg (1989), 24 R.F.L. (3d) 193 (B.C.S.C.),
    which involved contested custody proceedings, the trial judge made an order
    for special costs against the husband, the husbands lawyer, and the Watch
    Tower Bible and Tract Society (the Society), which had financially supported
    the husband in his pursuit of custody.  While the order against the lawyer
    and the Society were set aside by this Court on appeal, it was not suggested
    that the trial court had no power to make such an order or that the process
    followed in making the order on a summary basis was flawed. Rather, this Court
    found that the order was not justified in the circumstances.  In relation
    to the lawyer, this Court noted that there was no finding that the lawyer
    was a party to the husbands attempt to mislead the court, or that he was
    otherwise a party to any contempt of the court.  With respect to the Society,
    the Court found that there was no evidence that the husband would not have
    pursued his rights in relation to custody and access but for the financial
    contributions from the Society, or that there was any basis for finding that
    the tort of maintenance had been established.  A subsequent appeal to the
    Supreme Court of Canada, including an appeal with respect to costs, was dismissed.

[47]

In this case, costs were not awarded on the basis of the tort of maintenance.
    Rather, costs were awarded on the basis that H.M. was a party to B.s contemptuous
    behaviour and that she had engaged in other reprehensible behaviour.

[48]

In making this order, the trial judge made every effort to ensure that
    the process he followed was fair to all parties.  He invited counsel to make
    submissions with respect to process, he took account of their stated concerns,
    and he fashioned a process which would enable H.M. to know the case she had
    to meet, and to make full answer to it.  I am unable to find that he restricted
    H.M. in pursuing any and all avenues to defend the application.

[49]

Although there were no pleadings with respect to the issue of costs,
    H.M. was placed on notice as of October 7, 2002, when J.A.S. applied to add
    her as a party, that J.A.S. was seeking special costs against her.  In my
    view, it is inconceivable given the nature of the proceedings to that date
    that H.M. would have been in any doubt as to the nature of the case against
    her on special costs.  In his reasons of March 25, 2002, the trial judge set
    forth his findings arising from the evidence which supported the conclusion
    that H.M. was a party to the contempts of court by B.  There is no suggestion
    that it was not open to the trial judge to make those findings based on the
    evidence he had heard (including evidence from H.M.).  Nor did counsel for
    H.M. suggest that the trial judge should have recused himself from ruling
    on the application for special costs.

[50]

The trial judge held several conferences with counsel with respect
    to the issue of costs to ensure that Mr. Bjurman and H.M. were given the opportunity
    to challenge the initial findings he had made in his reasons for judgment
    associating them with B.s misconduct.  Counsel for J.A.S. provided the entire
    transcript of B.s evidence to the parties to permit them to review it with
    a view to conducting a cross-examination of her if they so desired.  H.M.
    did not apply to cross-examine B., J.A.S. or any other witness.  This is significant
    because B. had asserted that H.M. was a driving force behind the litigation
    and her evidence indicated that H.M. fully participated in her ongoing efforts
    to deny J.A.S. access.  Had H.M. wished to challenge her evidence in that
    regard, it was open to her to do so.

[51]

The process followed required counsel for J.A.S. to file his submissions
    first to ensure that H.M. was fully aware of the case against her before being
    called upon to respond.  She was given the opportunity to file any affidavit
    or other material which she considered relevant to the issue of costs and
    to make full submissions.

[52]

It is also important to note that H.M. had filed affidavits at various
    times throughout the proceedings, and that the 80 page missive she had sent
    the trial judge after the trial adjourned was before him on the issue of costs.
    Her voice did not go unheard.  Her real problem is that the trial judge found
    that her evidence was either lacking in credibility, or, where credible, it
    confirmed that she had acted reprehensibly.

[53]

Counsel for H.M. was unable to provide any authority for the proposition
    that, where costs are sought against a person who was not a party to the proceeding,
    that person is entitled to the full panoply of procedures available to a person
    who was a party from the outset.  In
Young
, this Court observed
    that the procedure to be followed when costs are sought against a third party
    lawyer is a summary procedure.  Counsel for H.M. conceded in written submissions
    that a summary procedure will suffice in most cases involving applications
    for costs.  He simply says that it was not sufficient in this case.

[54]

Here, H.M. can point to no procedure or right which she requested and
    was denied in relation to the claim for special costs against her.  At best,
    she says that the process was unfair from the outset because the trial judge
    had already made up his mind that she had acted reprehensibly.  I do not accept
    that proposition.  As earlier stated (at para. 38,
supra
), in making
    his waiver order of September 9, 2003, the trial judge expressly stated that
    he had formed no opinion with respect to H.M.s prospects of success in resisting
    the application for special costs against her.  It cannot be said that he
    approached the issue of costs with a closed mind as evidenced by the fact
    that he changed his opinion concerning Mr. Bjurmans complicity in B.s conduct.
    It was open to H.M. to adduce further evidence, to request cross-examination
    and to put forward any submissions which she regarded as necessary to enable
    her to defend against the claim.  Having failed to avail herself of many of
    the rights which were afforded her, H.M. cannot now legitimately complain
    that she was deprived of a fair process or a fair hearing.

[55]

Apart from the claim of lack of fair process, H.M. does not suggest
    that the finding of special costs against her cannot be supported on the evidence.
    In my view, a fair reading of the evidence could not lead to any other result.

(f)
Costs of the
    Special Costs Hearing and Further Assessments

[56]

The final issue on this appeal is whether the trial judge erred in
    his order of February 8, 2006 by awarding J.A.S. special costs of the special
    costs application and of any subsequent proceedings to assess costs.  In that
    regard, the trial judge referred to various authorities, including
Szpradowski
    (Guardian ad litem) v. Szpradowski Estate
(1992), 48 E.T.R. 122 (B.C.S.C.),
    and this Courts decision in
Sarkodee-Adoo v. Sarkodee-Adoo
,
    2004 BCCA 105, 2 R.F.L. (6
th
) 221
.
He noted that those
    decisions appeared to support the proposition that where an award of special
    costs includes the whole of the proceedings, costs of the assessment of special
    costs are to be special costs.   He referred to the argument of counsel for
    H.M. that there was a danger in making an order for special costs of proceedings
    which had not yet occurred, since parties facing such costs would have nothing
    to lose by continuing to act in a reprehensible manner, having been ordered
    to pay special costs in any event.

[57]

The trial judge responded to this argument at paras. 61-63 of his reasons
    for judgment as follows:

As regards the possibility that an award of special costs
    throughout might encourage parties ordered to pay special costs to persist
    in reprehensible conduct during post-trial applications and proceedings such
    as assessments of costs, there is nothing to suggest that has occurred in
    the several cases cited where special costs of assessments have been found
    to follow from awards of special costs throughout.

In this case, I have no hesitation in finding that [H.M.]s
    defence of the application for special costs against her was not exemplary
    but was reprehensible, just as her involvement in these proceedings throughout
    had been.  Her conduct was egregious as illustrated, for example, at paragraphs
    84 to 89 of 2005 BCSC 1508 which describe how she swore an affidavit attempting
    to mislead the court.

The duration and complexity of the plaintiffs special
    costs application were both needlessly exacerbated by [H.M.]s refusal to
    acknowledge her attitude, motivation and role in consistently frustrating
    court ordered access by the plaintiff to his children, even after these were
    abundantly demonstrated by the contents of Mr. Bjurmans file and his affidavit.

[58]

In my view, if there was ever a factual matrix calling for special
    costs, including special costs of the special costs proceedings, this is it.
    The trial judge found that H.M. acted reprehensibly throughout the proceedings,
    and that she continued to attempt to mislead the court, and to underplay the
    extent of her involvement in blocking J.A.S.s right to access, during the
    special costs proceedings.  The effect of her misconduct will undoubtedly
    be to increase the length and complexity of any assessment of costs which
    may ensue.  It follows that there is no basis for interfering with the trial
    judges order of February 8, 2006.

RESULT

[59]

I would dismiss the appeal.

The Honourable
Madam
    Justice Prowse

I Agree:

The Honourable Mr. Justice Smith

I Agree:

The Honourable
Mr. Justice Chiasson

CORRECTION
 25 January 2008

The Appellant and Respondents names have been changed
    to initials.


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Leila,

2008
          BCCA 8

Date: 20080111

Docket: CA034711

Between:

Regina

Respondent

And

Monir
    Alejandro Leila

Appellant

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Levine

G.
          Chand

Counsel for the Appellant

B.
          MacLean

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

03 October 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

11 January 2008

Written
          Reasons by
:

The
          Honourable Madam Justice Rowles

Concurred
          in by:

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Levine

Reasons
    for Judgment of the Honourable Madam Justice Rowles:

[1]

Mr. Monir Alejandro Leila has applied for an extension of time within
    which to appeal and for leave to appeal a two-year sentence imposed on him
    on 24 May 2006 in the provincial court following his guilty plea to possession
    of stolen property charged under s. 355(a) of the
Criminal Code
.
    The Crown does not oppose the extension of time and that order is granted.

[2]

Leave to appeal sentence is advanced on the ground that there is a
    serious and unintended collateral consequence to the sentence imposed by the
    trial judge in that a custodial sentence of two years or more results in the
    automatic termination of the appellants right to appeal a deportation order
    to the Immigration Appeal Division.

[3]

I have concluded that leave ought to be granted and that the appeal
    ought to be allowed.  My reasons for reaching that conclusion follow.

[4]

By way of background, the appellant is a citizen of Chile and, for
    immigration purposes, is classed as a permanent resident of Canada.  He immigrated
    to Canada with his family around 1982 when he was seven years old.  He is
    now 32 years of age.

[5]

The appellants criminal record, which is mainly for property offences,
    begins in 2001 and coincides with his becoming addicted to heroin.  Since
    2002, the sentences he has received have been for periods of incarceration
    of increasing length, although all within the provincial system.

[6]

In respect of the sentencing proceedings leading to this appeal, the
    appellant elected trial by provincial court judge and pleaded guilty to the
    charge of possession of stolen property charged under s. 355(a) of the
Criminal
    Code
.  At the same time, he pleaded guilty to two charges waived in
    from Windemere, British Columbia: impaired driving and wilfully obstructing
    a peace officer.

[7]

Crown and defence counsel made a joint submission for a two-year sentence,
    which was to be in addition to the two months the appellant had been in custody
    awaiting trial.  Defence counsel informed the sentencing judge that the appellant
    was addicted to heroin but had been clean and sober since his arrest.  Defence
    counsel also told the court that the appellant wished to avail himself of
    the programs available in the federal system to deal with his addiction and
    was therefore consenting to a sentence, if the Court sees appropriate, of
    two years on top of time served, which takes him into federal realm."
    Crown counsel submitted that as the appellants most recent prior conviction
    was effectively one of incarceration for 18 months, a two-year sentence is
    appropriate to address specific and general deterrence and it also addresses
    the step-up principle.

[8]

The sentencing judge acceded to the joint submission and imposed a
    two-year sentence, plus the time served in respect of the possession of
    stolen property charge.  The judge also imposed a 30-day concurrent sentence
    on the obstruction charge, and a $600 fine and a driving prohibition on the
    impaired driving charge.

[9]

The appellants immigration status in Canada was not raised or considered
    at the sentence hearing.  Mr. Rishi Gill, defence counsel at the sentencing
    hearing, has provided an affidavit in which he deposed:

4.
    During my interviews with the appellant I do not remember asking him where
    he was born, nor do I remember asking him whether or not he was a Canadian
    citizen.  To my recollection, the issue of his immigration status in Canada
    did not come up at any point in these proceedings.  I had no reason to believe
    that Mr. Leila was not a fully naturalized citizen of Canada nor did I think
    to ask.

[10]

Mr. Gill has also deposed that he was originally going to seek a custodial
    sentence of less than two years but, on the appellants specific instructions,
    he sought a two-year custodial sentence for the sole purpose of allowing the
    appellant access to federal institution programs to combat his drug addiction.
    Mr. Gill stated that he spoke to Crown counsel before the hearing and it was
    agreed that a joint recommendation or submission to the trial judge for a
    two-year custodial sentence would be made.

[11]

Section 36(1) of the
Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the
Act
) provides that a permanent
    resident of Canada who has been convicted of an offence in Canada under an
    Act of Parliament for which a maximum term of imprisonment of at least 10
    years could

be imposed is inadmissible to Canada and will be issued
    a deportation order.  Possession of stolen property charged under s. 355(a)
    of the
Criminal Code

carries a maximum penalty of 10
    years imprisonment.

[12]

A permanent resident who is issued a deportation order has the right
    to appeal the order to the Immigration Appeal Division, pursuant to subsection
    63(3) of the
Act
.  Under s. 67 of the
Act
,
    the Immigration Appeal Division may allow an appeal of a deportation order
    on grounds that include humanitarian and compassionate considerations warranting
    special relief in the circumstances.  In this case, as a result of being sentenced
    to a term of imprisonment of two years, the appellant has no right of appeal
    from a deportation order by reason of s. 64 of the
Act
, which
    provides:

64.
(1) No appeal may be made to the Immigration Appeal
    Division by a foreign national or their sponsor or by a permanent resident
    if the foreign national or permanent resident has been found to be inadmissible
    on grounds of [] serious criminality [.]

(2)
For the purpose of subsection (1), serious
    criminality must be with respect to a crime that was punished in Canada by
    a term of imprisonment of at least two years
.

[Emphasis
    added.]

[13]

In
Atwal v. Canada

(Minister of Citizenship and
    Immigration)
, 2004 FC 7, 245 F.T.R. 170, the Federal Court held that
    all time credited for pre-trial detention forms part of the "term of
    imprisonment" for purposes of s. 64(2) of the
Act
.  No
    issue is taken with the correctness of that decision.

[14]

The ground on which Mr. Leila appeals his sentence is that there is
    a serious and unintended collateral consequence to the sentence imposed by
    the trial judge in that the custodial sentence of two years results in the
    automatic termination of his right to appeal any deportation order to the
    Immigration Appeal Division.

[15]

Counsel referred us to a number of appellate court decisions that have
    considered the question of whether an effect on immigration status may become
    a relevant factor in determining sentence, including the following:
R.
    v. Kanthasamy
, 2005 BCCA 135,
195 C.C.C.
    (3d) 182
;
R. v. Q.A.M.
,

2005 BCCA 615,
    204 C.C.C. (3d) 114;
R. v. Lacroix
(2003), 172 O.A.C. 147, 57 W.C.B. (2d) 606 (C.A.);
and
R. v. Leung
, 2004 ABCA 55, 354 A.R.
    2.

[16]

In
Kanthasamy
, the appellant had been given three concurrent
    sentences of three-months' imprisonment after the sentencing judge had given
    the appellant double time for the ten and one-half months he had spent in
    pre-trial custody.  The effective sentence the appellant received was therefore
    two years.  In that case, the appellant was a Tamil from northern Sri Lanka
    who said he had come to Canada to avoid persecution by the Tamil Tigers.
    He said that the Tamil Tigers had extorted money from his family and, when
    his older brother and sister had resisted going with them to become insurgents,
    they killed his brother.  In allowing the appeal in that case, Donald J.A.,
    for the Court, said:

[14]
    The question of fitness in this case relates not to the quantum of the sentence,
    in the ordinary sense, but to a serious but unintended collateral effect of
    the penalty.  The matter of a single day, two years rather than two years
    less a day, is inconsequential in terms of denunciation, retribution and deterrence,
    although it determines the availability of a probationary order and it also
    designates which corrections system, Federal or Provincial, is engaged.

[15]
    But, in relation to the appellant's immigration status and his personal safety,
    the difference of one day carries potentially enormous consequences.  [.]

[17]

Mr. Justice Donald observed that immigration consequences can be a
    relevant consideration in sentencing and, in that regard, referred to the
    following decisions of the Ontario Court of Appeal:
R. v. Hamilton
(2004), 72 O.R. (3d) 1, 241 D.L.R. (
4th)
490 (C.A.), and
R. v. Spencer
(2004),
    72 O.R. (3d) 47, 241 D.L.R. (4
th
) 542, leave to appeal
    to S.C.C. refused, [2003] S.C.C.A. No. 4, released the same day.  In
Hamilton
,
    the court said the following in relation to one of the accused, Ms. Mason:

[157]     [I]f Ms. Mason were to receive a sentence of two years and
    if she was ordered deported, her ability to challenge that deportation order
    would be adversely affected by the length of the sentence.

[158]    I would not characterize the loss of a potential remedy against
    a deportation order that might be made a mitigating factor on sentence.  I
    do think, however, that in a case like Ms. Mason's there is room for consideration
    of the potentially added risk of deportation should the sentence be two years
    or more.  If a trial judge were to decide that a sentence at or near two years
    was the appropriate sentence in all of the circumstances for Ms. Mason, the
    trial judge could look at the deportation consequences for Ms. Mason of imposing
    a sentence of two years less a day as opposed to a sentence of two years.
     I see this as an example of the human face of the sentencing process.  If
    the future prospects of an offender in the circumstances of Ms. Mason can
    be assisted or improved by imposing a sentence of two years less a day rather
    than two years, it is entirely in keeping with the principles and objectives
    of sentencing to impose the shorter sentence.
While the assistance afforded
    to someone like Ms. Mason by the imposition of a sentence of two years less
    a day rather than two years may be relatively small, there is no countervailing
    negative impact on broader societal interests occasioned by the imposition
    of that sentence
: see
R. v. Lacroix
, [2003] O.J. No. 2032 (C.A.).

[Emphasis added.]

[18]

Mr. Justice Donald concluded in
Kanthasamy
that substitution
    of a reformatory term in these circumstances "does no violence to the
    sentence imposed by the trial judge and avoids an unintended consequence of
    great significance." (at para. 23)

[19]

In this case, neither the appellant nor his counsel was aware of the
    consequences of seeking a term of imprisonment of two years, as opposed to
    a sentence of two years less one day.  There is no indication in the transcript
    that the sentencing judge was aware of the appellants immigration status
    or the consequences to the appellant of a sentence of two years or more.

[20]

In
Q.A.M
., a similar problem arose and this Court reduced
    the appellants two-year sentence by one day to preserve his right to appeal
    to the Immigration Appeal Division.  Mr. Justice Smith, giving judgment for
    the majority, said:

[31]
    On the authority of
R. v. Kanthasamy
[.], and as the unavailability
    of an appeal to the Immigration Appeal Division as a result of the difference
    of one day in the sentence was not brought to the attention of the sentencing
    judge, we may regard the loss of this right of appeal as a serious unintended
    collateral consequence.  In my view, this makes the sentence disproportionate
    in all the circumstances.

[21]

In
Leung
, the Alberta Court of Appeal reduced the appellants
    sentence of 30 months to one of two years less one day for the same reason.

[22]

In
Lacroix
, the Ontario Court of Appeal granted the same
    relief that the appellant seeks in this case.  In an endorsement, the court
    said:

[2]
    The appellant faces a deportation order.  Under the
Immigration and Refugee
    Act
he can appeal that order only if his sentence is less than two years.
    At the time of sentencing the appellant was unaware of and, therefore, did
    not make known to the trial judge the immigration consequences of his sentencing.
    These consequences are a relevant consideration on sentence.  No disservice
    to the fitness of the sentence would be caused by the variation the appellant
    seeks.

[23]

I agree with appellants counsel that the loss of the appellants immigration
    appeal rights is a disproportionately severe collateral sanction, which was
    unforeseen by the appellant and his counsel at the sentencing hearing and
    apparently unintended by the sentencing judge.  In the circumstances of this
    case, reducing the appellants sentence to one which will allow him to preserve
    his immigration appeal rights is inconsequential to the sentence principles
    relied upon by the sentencing judge.

[24]

As I understand it, the appellant spent from 29 March 2006 to the date
    of sentencing in pre-trial custody, which is a period of 57 days.  The judge
    imposed a sentence of two years plus time spent in custody.  There is no
    indication that the judge gave credit beyond the 57 days spent in pre-trial
    custody and, therefore, the effective sentence appears to be one of two years
    and 57 days.

[25]

I would grant leave and allow the appeal to the extent of reducing
    the effective sentence so that it is one day under two years.

The Honourable Madam Justice Rowles

I
    agree:

The
    Honourable Madam Justice Newbury

I
    agree:

The
    Honourable Madam Justice Levine