Citation:

R. v.
Forknall

Date:
20030121

2003 BCCA 43

Docket:

CA027842

COURT OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

REGINA

RESPONDENT

AND:

PAUL CHARLES FORKNALL

APPELLANT

Before:

The
          Honourable Madam Justice Ryan

The
          Honourable Madam Justice Huddart

The
          Honourable Mr. Justice
Thackray

R.W.
          Cornett and H.G. Stevenson

Counsel for the Appellant

O.S.
Kuzma
, Q.C.

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

October
              31, 2002

Place
          and Date of Judgment:

Vancouver, British Columbia

January
              21, 2003

Written Reasons
    by:

The Honourable Madam Justice Ryan

Concurred in by:

The Honourable Madam Justice
    Huddart

The Honourable Mr. Justice
Thackray

Reasons for Judgment of the Honourable Madam Justice
    Ryan:

Introduction

[1]

On
November
    3, 2000
the appellant,
    Paul
Forknall
, and a co-accused, Robert Copeland,
    were convicted by a judge and jury in
Prince George
, of the
September
    24, 1994
first degree murder of Tiffany McKinney.

It was a second trial for both men after this
    court ordered new trials in December 1999.

[2]

Mr. Copeland abandoned his conviction
    appeal on
July 16, 2002
.

[3]

Counsel for Mr.
Forknall
raises four grounds of appeal. Broadly stated they relate to the refusal of
    the trial judge to order separate trials, the admissibility of statements
    made by the appellant to undercover police officers, the failure of the trial
    judge to give the jury a "Hodgson warning", and the charge and recharge
    to the jury as it related to causation and abandonment.

Factual Background

[4]

Mr.
Forknall
, Mr. Copeland and Tiffany McKinney were friendly
    acquaintances.

They planned to move
    together from
Quesnel
to
Kelowna
at the end of September 1994.

Ms. McKinney never arrived in
Kelowna
.

Her parents
    reported her missing to the police on
October
    15, 1994
.

[5]

Shortly after Ms. McKinney's disappearance
    Mr.
Forknall
and Mr. Copeland were residing in
Kelowna
and had possession of her car.

[6]

Several civilian witnesses testified
    at trial that Mr.
Forknall
and Mr. Copeland had
    given a number of conflicting stories about the circumstances in which they
    acquired the deceased's car and how they separated from her.

They asserted to some people that the owner of the car had gone to
Vancouver
from
Kelowna
and to others that they had dropped the owner
    off in
Vancouver
.

On some
    occasions they asserted that they had purchased the car and on others claimed
    that the owner, who they identified to some as "Tiffany", simply
    loaned the car to them.

[7]

After Ms. McKinney was reported missing,
    both
Forknall
and Copeland were interviewed at various
    times by different police officers.

Both maintained that Ms. McKinney had gone with
    them to
Kelowna
, traveled with a male friend to
Vancouver
, and left her car with them.

[8]

The focus of the Crown's case was evidence
    gathered by an undercover police operation.

Undercover officers, posing as members of a criminal drug operation
    obtained admissions from both Mr.
Forknall
and Mr. Copeland as to their participation in the
    murder of Ms. McKinney.

[9]

In his undercover role as "recruiter"
    a police officer, Constable
Bentham
, first approached Copeland in
Quesnel
in February 1995.

During the course
    of their contact
Bentham
told Copeland that he was
    a member of a drug organization.

He
    invited Copeland to accompany him on trips to collect drug debts from other
    undercover officers posing as drug dealers.

Eventually Copeland was sent by
Bentham
to
    recover a debt and agreed to beat up the person who owed the money if it was
    not produced.

At some point Copeland
    was asked by
Bentham
if he wanted to earn $20,000
    to $30,000 for work off-loading narcotics in locations near
Vancouver
or
Prince Rupert
.

Copeland
    expressed an interest in doing so.

Bentham
asked Copeland
    to assure him that there was "no heat" on him.

[10]

Copeland was introduced to other members of the
    operation.

The undercover officers
    told him that they had learned that Copeland was a suspect in a murder in
Quesnel
.

Copeland told
    them that
Forknall
told him that he had murdered
    a girl and thrown her body into the
Fraser

River
.

Copeland said that
Forknall
warned him that if Copeland said anything he,
Forknall
, would tell the police that Copeland was there.

[11]

On
March
    10, 1995

Bentham
met with Copeland
    and
Forknall
.

He told
Forknall
not
    to point the finger at Copeland to draw the attention of the police to him.

Forknall
told the officer that he had killed
    the young woman and had thrown her body into the river.

During that time
Forknall
expressed an interest in joining the criminal organization.

[12]

Later that day
Forknall
was introduced to the "boss" of the organization, Corporal
Bertagnolli
.

Forknall
repeated to
Bertagnolli
the story of the killing.

On the morning
    of
March 11, 1995

Forknall
led
Bentham
and
Bertagnolli
to a place by the river where he said that he
    had disposed of the body of his victim.

[13]

On March 14
Bentham
took
Forknall
and Copeland to a hotel in
Quesnel
and introduced them to an undercover officer posing
    as the "mechanic".

The mechanic,
    Staff Sergeant Ross, was said to be a clean-up person who would ensure that
    any evidence linking Copeland and
Forknall
to the
    murder would be disposed of so that it could not endanger the organization.

[14]

In accordance with the police plan Copeland and
Forknall
were separated.

Copeland went for a drive with
Bentham
,
Forknall
stayed with
Bertagnolli
.

A short
    time later
Bertagnolli
received a telephone call
    from
Bentham
.

Bentham
told
Bertagnolli
that Copeland
    had told him that
Forknall
had not taken them to
    the place where the body had been disposed of.

Bertagnolli
pressed
Forknall
to come clean.

Forknall
told them that he had lied to them because he thought they were the police.

He then gave the undercover police officers a lengthy account of the
    killing.

[15]

Forknall
told
Bertagnolli
and
    Ross that Copeland said he was going to kill Ms. McKinney and take her car.

A couple of days before the murder the two of them went into the woods
    near
Quesnel
, dug a pit and covered it with boards.

They left a crowbar nearby.

On
    the day of the murder they picked up Ms. McKinney at her apartment and took
    her to the spot in the woods.

They
    created a teepee from crates from a building supply store and covered it with
    a shower curtain.

They told her that the marijuana was in the
    pit.

Ms. McKinney crawled into the
    hole looking for the drugs.

Copeland
    gave her a hand out.

Forknall
took the crowbar.

He was to deliver
    the first blow but could not do it.

He
    turned his back and heard a thump.

Copeland
    had struck the victim.

He saw Ms. McKinney
    fall to her knees.

Copeland hit the
    victim again and turned the crowbar over to
Forknall
.

He told him
    to hit her.

Forknall
said he could not.

Copeland said, "You're
    going to have to because I can't".

Forknall
took the
    crowbar and hit the victim about twelve times on the side of the head.

The two then dragged Ms. McKinney's body into
    the hole and covered it with the shower curtain and the crates.

As they drove away
Forknall
threw the crowbar into the bush.

[16]

Forknall
took the undercover officers to the burial site
    and showed them where everything had happened.

The undercover officers told
Forknall
to tell Copeland that he had told the members of
    the organization what happened.

Forknall
did this when
Bentham
returned
    to the hotel with Copeland.

Bertagnolli
was left alone with Copeland who told him a similar
    version of events.

[17]

Copeland and
Forknall
were arrested shortly after these confessions.

The police returned to the wooded area and exhumed
McKinney
's body from its burial site.

[18]

A forensic pathologist conducted a post-mortem
    examination of Ms. McKinney's remains.

She
    noted injuries concentrated around the deceased's head.

She identified eight splits of the scalp, five
    of which split through completely to the skull bone.

One of the blows, in the area of the right side
    of the head above the right ear, had broken the underlying skull bone, pushing
    bone fragments at that location through the skull lining into the brain.

The pathologist concluded that a minimum of eight blows to the head
    were suffered by the deceased and that a combination of one or more of those
    blows, particularly the one to the right temple area of the head, caused Ms.
    McKinney's death.

She said:

The blows to the head would
    have had a cumulative effect, depending on which order they were received.

Certainly the one or more blows to the right side of the head that
    produced skull fracturing and the actual damage to the brain would have caused
    death.

[19]

The pathologist was asked which of the blows were immediately
    life-threatening.

She answered:

The only ones that I could say were immediately
    life-threatening, that in and of their own right would have caused death,
    would be the blow or blows that produced the injury to the right side of the
    head.

And
    later the pathologist testified:

These injuries have -- all had similar characteristics,
    certainly consistent with being sustained over a short period of time.

They are -- the injury to the brain was certainly caused during life,
    and it's likely that the injuries, depending on which order they were received,
    were mostly caused during life, although I am sure by the time she'd sustained
    all of these injuries she was in fact dead.

[20]

The pathologist said that death would have come
    very quickly, within a few minutes, after the significant blow to the right
    side of the head.

[21]

The pathologist was shown the crowbar which was
    removed from the scene and marked as an exhibit at trial. She agreed that
    it could have caused the injuries to Ms. McKinney.

[22]

While neither testified, both Copeland and
Forknall
called evidence at the trial.

Copeland led evidence of alibi.

His position was that he was at work at the
    time of the murder.

Forknall
called the evidence of a clinical psychologist who testified that
Forknall
suffered from a borderline personality disorder characterized
    by impairment of emotional control.

He said that the appellant had a dependant personality
    disorder characterized by reliance on others to make life's decisions for
    him and for emotional support.

It was
    the psychologist's opinion that a person with
Forknall's
personality profile was unlikely to initiate violence and was given more to
    impulsive and unplanned violence, situational in nature, in response to a
    strong emotional reaction.

The Admissibility of the Undercover
    Statements

[23]

The appellant says that the trial judge erred in law in failing
    to exclude the statements elicited by the police in their undercover operation.

Counsel for the appellant submitted that the statements obtained by
    the undercover officers were obtained by inducements, the promise of money
    for assisting with a drug operation, and threats.

Counsel submitted that the tough talk of the police officers in their
    role as thugs was designed to frighten the appellant into revealing his part,
    if any, in the murder of Tiffany McKinney.

Counsel cited a number of times in which the undercover agents told
Forknall
that he was a "kink" because he might "draw
    heat" on the criminal family.

He
    submitted that when
Forknall
was told that Copeland
    told the other officers that
Forknall
had lied to
    them as to where he had disposed of the body, that
Forknall
was "palpably in fear of his life at this point in time."

[24]

Counsel submitted that in these circumstances the statements
    of
Forknall
were involuntary within the meaning
    of the confession rule and that the statements would have been inadmissible
    had the statements been made to persons known by the appellant to be police
    officers.

He submitted that the "person-in-authority
    rule" which forms the basis for the confession rule ought to be abolished
    as it is contrary to
ss
.  7, 8, and 11(d) of the
Canadian Charter of Rights and Freedoms
.

He submitted that all statements made by an accused person to any witness
    should be scrutinized for
voluntariness
.

[25]

In
Hodgson v. The Queen
, [1998]
    2 S.C.R. 449, 127 C.C.C. (3d) 449, the Supreme Court of
Canada
dealt
    with a case where the appellant had made
inculpatory
statements to members of the family of the complainant.

On appeal to the Supreme Court of Canada the
    appellant maintained that the family members were persons in authority and
    that the trial judge ought to have conducted a
voir
dire
to determine the admissibility of the appellant's statements
    to them.

The appeal provided the Supreme
    Court of Canada the opportunity to re-examine the principles underlying the
    common law confessions rule.

[26]

The Court concluded that the rule was concerned with reliability
    and fairness.

Speaking for the majority Cory J. remarked that
    the rule is carefully calibrated to ensure that the coercive power of the
    state is held in check and to preserve the principle of self-incrimination.
    (
Hodgson
,
para
. 29).

Earlier
    in his reasons, at
para
. 24, Cory J. noted:

The emphasis on
voluntariness
has two main effects: it both avoids the unfairness of a conviction based
    on a confession that might be unreliable, and has a deterrent effect on the
    use of coercive tactics. This deterrent effect is properly focused upon the
    prosecutorial authority of the state, not the personal authority of private
    individuals. It cannot be forgotten that it is the nature of the authority
    exerted by the state that might prompt an involuntary statement. As
Estey
J. stated in
Rothman
,
    [[1981] 1 S.C.R. 640], at pp. 650-51, "
their
    very authority
might, by promise or threat, express or implied, produce
    a statement whether or not the accused was truly willing to speak" (emphasis
    added). In other words, it is the fear of reprisal or hope of leniency that
    persons in authority may hold out and which is associated with their official
    status that may render a statement involuntary. The rule is generally not
    concerned with conversations between private citizens that might indicate
    guilt, as these conversations would not be influenced or affected by the coercive
    power of the state. This limitation is appropriate since most criminal investigations
    are undertaken by the state, and it is then that an accused is most vulnerable
    to state coercion.

[27]

In discussing the subjective nature of the inquiry into whether
    a person is a person in authority Cory J. quoted from

the words of Bain J. in
The
    King v. Todd
(1901), 4 C.C.C. 514 (Man. K.B.) where he said, at pp.
    526-7:

A
    person in authority means, generally speaking, anyone who has authority or
    control over the accused or over the proceedings of the prosecution against
    him. . . .

[T]he authority that
    the accused knows such persons to possess may well be supposed in the majority
    of instances both to animate his hopes of favour on the one hand and on the
    other to inspire him with awe, and so in some degree to overcome the powers
    of his mind;
. . . .

[Emphasis added.]

[28]

Thus the
Hodgson
case confirmed that
    it is the effect of the power of the state on the will or mind of the accused
    that matters for the purposes of the confession rule.

If the accused does not know that he or she
    is dealing with agents of the state that coercive effect on his or her mind
    is not present.

Threats or inducements
    offered by those other than persons in authority would not fall within the
    ambit of the rule.

[29]

As I mentioned earlier, in the case at bar the trial judge
    was asked on a
voir
dire
to

decide whether
    the confession rule as it is currently constituted violates a number of provisions
    of the
Charter
.

The trial judge did not directly confront the
    question whether the confession rule ought to be expanded or abolished on
Charter
principles although he did refer to the constitutional notice filed by the
    appellant raising the issue.

Instead,
    he found that the statements were voluntarily made.

He said:

[15]

In
    the course of the undercover operation neither Mr. Copeland nor Mr.
Forknall
were ever detained.

It was made clear to both they did not have
    to participate if they did not want to  they voluntarily took part in the
    scenario and chose to make the statements they did.

The accused in this case believed the undercover
    police were members of a criminal organization which they wanted to join.

I am satisfied by the evidence on the
voir
dire
that the undercover police in this
    case were not persons in authority for the purpose of the confessions rule
    as discussed in the case of
Hodgson v. The Queen
. . .
    .

[30]

Later, when discussing whether the police officers had committed
    any crimes during the course of the undercover operation the trial judge said
    this:

[18]

No
    direct threats were made to either Copeland or
Forknall
.

Each may reasonably have inferred from Constable
Bentham
comments about getting "whacked"
    (killed), and "he kicks my ass once I kick your ass twice" and similar
    statements that breach of the rules of the criminal organization
they were
    seeking

to join
could well lead to violence against themselves.

* * *

[20]

The
    words uttered by the police in the course of this undercover investigation
    were not spoken with the intent to intimidate and cause fear, but with the
    intent to convince the accused that the undercover operation really was a
    criminal operation; accordingly the threats were not uttered as threats.

Words which bearing their plain grammatical
    meaning would convey threats are not threats if uttered jokingly, similarly
    the words spoken in this case uttered with the intention of deceiving the
    accused do not contravene the section of the
Code
referred to.

If the undercover officers had uttered the words
    intending them as threats, offences would have been committed, however on
    the evidence on the
voir
dire
.

I am satisfied that the intention was deception not threatening.

Having heard the words spoken, both accused
    remained anxious to join the organization, and
Forknall
in particular, spoke about how good it made him feel.

Copeland and
Forknall
may well have felt threatened, however they were not aware of the true circumstances
    and the fact that they subsequently felt threatened in the circumstances of
    this case does not establish the offence when the evidence shows the words
    were spoken with an intention to deceive rather than to convey threats.

[Emphasis
    added.]

[31]

In the end, the trial judge seems to be saying that while
    Copeland and
Forknall
may have felt threatened at
    some point by the undercover officers, their statements were nonetheless not
    coerced from them and remained products of the exercise of their free will.

[32]

Given the finding of fact that
Forknall's
statements were voluntarily made, it is unnecessary
    to discuss the expansion or abolition of the person-in-authority rule or whether
    the analysis in
Hodgson
,
supra
, precludes that result.

I
    would dismiss this ground of appeal.

The Failure to
    Give a Hodgson Warning

[33]

The trial judge did not give the jury what has come to be
    known as the "Hodgson warning".

[34]

In
Hodgson
, the court recognized
    that there is no doubt that there may be great unfairness suffered by an accused
    when a confession obtained by violence by a private individual is admitted
    into evidence.

In such a case the reliability
    of the statement will be of central concern.

Recognizing this fact Cory J. said this, at
paras
. 29-30:

The unfairness of admitting statements coerced
    by private individuals should be recognized.

However, it is the sort of change which should be studied by Parliament
    and remedied by enactment. . . .

Because
    of the very real possibility of a resulting miscarriage of justice and the
    fundamental unfairness of admitting statements coerced by the violence of
    private individuals, I would hope that the study will not be long postponed.

In
    the meantime I would suggest that in circumstances where a statement of the
    accused is obtained by a person who is not a person in authority by means
    of degrading treatment such as violence or threats of violence, a clear direction
    should be given to the jury as to the dangers of relying upon it. The direction
    might include words such as these: "A statement obtained as a result
    of inhuman or degrading treatment or the use of violence or threats of violence
    may not be the manifestation of the exercise of a free will to confess. Rather,
    it may result solely from the oppressive treatment or fear of such treatment.
    If it does, the statement may very well be either unreliable or untrue. Therefore
    if you conclude that the statement was obtained by such oppression very little
    if any weight should be attached to it." However, if a private individual
    resorts to violence or threatens violence after the statement has been made,
    this conduct will not as a general rule be a factor affecting the
voluntariness
of the statement and the suggested direction
    will not be needed.

[35]

In the case at bar the trial judge found that the statements
    were not obtained by coercion.

He found that the appellant said what he did
    in order to please the crime gang who had befriended him and to gain admittance
    to the group and all its promised lucre.

In
    somewhat similar circumstances in
R. v.
McCreery
(1998), 108 B.C.A.C. and 176 W.A.C. 161, this court held (at
para
. 26) it was important that the trial judge convey to
    the jury the inherent unreliability of such statements and the significance
    in finding confirmation of the confession in other independent evidence.

[36]

In the case at bar the trial judge gave the jury no specific
    warning about the reliability of the appellant's statements to the undercover
    police officers.

The question for this court is whether the failure
    to do so was non-direction amounting to misdirection.

[37]

I am not persuaded that in the circumstances of this case
    it was necessary for the trial judge to warn the jury about the reliability
    of the appellant's statements to the undercover police officers.

Having lost his attempt to prevent the admission of the statements
    the appellant called evidence of his dependent nature and took the position
    that what he had said to the police officers supported a defence of abandonment.

In his closing address to the jury counsel for the appellant took issue
    with the truthfulness of much of what
Forknall
told
    the undercover police over the course of his induction into the gang.

Counsel suggested to the jury however, that
Forknall's
final description of the murder to Sergeant Ross
    was accurate, in that it supported, he said,
Forknall's
defence of abandonment.

[38]

At the conclusion of the charge to the jury counsel for the
    appellant did not object to the failure of the trial judge to leave a Hodgson
    or
McCreery
-type warning.

[39]

In most cases of this kind it is preferable for the trial
    judge to fashion a charge which points out the inherent
unreliablity
of statements made by a prospective member of a "crime gang" to
    "gang leaders".

But in the
    case at bar, the defence chose to discount many of the statements, and to
    rely on one of them as an accurate description of the murder.

In his summing up, the trial judge drew the jury's attention to the
    arguments made by the Crown and the defence as to the accuracy of the many
    statements.

In these circumstances
    a warning was unnecessary.

I would
    dismiss this ground of appeal.

Refusal to Order Severance

[40]

Before the trial commenced counsel for both Copeland and
Forknall
applied for an order for separate trials.

Forknall
took the position that it would be difficult for
    the jury, in examining the case against him, to ignore the statements Copeland
    made to police which implicated
Forknall
in the
    murder.

He also submitted that he,
Forknall
, would be limited in the attack he could make on
    Copeland's character.

The trial judge
    dismissed the application.

He recognized
    the difficulties, but held that a joint trial best favoured the interests
    of justice.

[41]

During the course of the trial counsel for Mr.
Forknall
advised the trial judge that he wished to place before the jury video-taped
    evidence of a conversation Copeland had with two police officers in
Prince George
on
February
    5, 1995
.

On that day Copeland had attended
    the offices of the R.C.M.P. for the purpose of taking a polygraph test.

On learning that he would be asked if he had killed Ms. McKinney, Copeland
    asserted his right to counsel and refused to take the test.

Counsel for
Forknall
planned to argue that Copeland's nervous, uncomfortable
    demeanour during the interview revealed a consciousness of guilt about his
    involvement in the murder.

The trial
    judge refused to permit counsel to play the tape before the jury.

He held that the evidence was of marginal utility
    as evidence of consciousness of guilt.

[42]

Counsel submits that the refusal of the trial judge to grant
    severance resulted in a miscarriage of justice.

He says that the joint trial deprived him of evidence of Copeland's
    display of consciousness of guilt which would have assisted his case.

He said too that the jury would have had difficulty understanding and
    applying instructions given them about how they were to approach evidence
    admissible against one, but not the other.

[43]

I will deal first with the submission that the jury would
    be unable to keep separate the evidence implicating only Copeland from the
    evidence implicating
Forknall
.

In
R. v. Crawford
, [1995] 1 S.C.R. 858,
    96 C.C.C. (3d) 481, the appellant and another were charged with second degree
    murder.

The Crown led the video-taped
    statement of the co-accused which implicated the appellant in the murder.

The co-accused did not testify at trial.

The appellant testified that the co-accused
    had committed the murder.

The appellant
    was cross-examined by counsel for the co-accused on his failure to make a
    pre-trial statement to the police.

The
    Supreme Court of Canada ordered a new trial on the basis that the trial judge
    failed to fully instruct the jury on the limited use that they could make
    of the appellant's pre-trial silence.

In
    analyzing the issues
Sopinka
J., writing for the
    majority, examined whether the trials of the two accused ought to have been
    severed.

He said this, at
paras
.
    30-32:

There
    exist, however, strong policy reasons for accused persons charged with offences
    arising out of the same event or series of events to be tried jointly.

The policy reasons apply with equal or greater
    force when each accused blames the other or others, a situation which is graphically
    labelled a "cut-throat defence".

Separate trials in these situations create a
    risk of inconsistent verdicts.

The
    policy against separate trials is summarized by Elliott,

[1]

. . . at p. 17 as follows:

There is a dilemma here which could only be
    avoided by separate trials. But separate trials will not be countenanced because,
    quite apart from the extra cost and delay involved, it is undeniable that
    the full truth about an incident is much more likely to emerge if every alleged
    participant gives his account on one occasion. If each alleged participant
    is tried separately, there are obvious and severe difficulties in arranging
    for this to happen without granting one of them immunity. In view of this,
    in all but exceptional cases, joint trial will be resorted to, despite the
    double bind inevitably involved.

Although
    the trial judge has a discretion to order separate trials, that discretion
    must be exercised on the basis of principles of law which include the instruction
    that severance is not to be ordered unless it is established that a joint
    trial will work an injustice to the accused. The mere fact that a co-accused
    is waging a "cut-throat" defence is not in itself sufficient. In
Pelletier
, [(1986), 29 C.C.C. (3d) 533
    (B.C.C.A.)], a co-accused was permitted to cross-examine another accused on
    a statement to the police that had not been proved to be voluntary. On appeal
    of his conviction, he contended if he had been tried separately, the cross-examination
    would not have been permitted. On this basis, he claimed that the trials should
    have been severed. In dismissing this ground,
Hinkson
J.A., on behalf of the court, stated, at p. 539:

On this point it is necessary to keep in mind
    that the trial judge has a discretion as to whether or not he will grant a
    severance. The general rule of severance is that persons engaged in a common
    enterprise should be jointly tried unless it can be demonstrated that a joint
    trial would work an injustice to a particular accused:
R. v. Black and six others
, [1970] 4 C.C.C. 251 at pp. 267-8, 10 C.R.N.S.
    17 at pp. 35-6, 72 W.W.R. 407. In this case, the trial judge was not persuaded
    that it was appropriate to grant a severance. I do not conclude that he erred
    in the exercise of his discretion.

As
    I pointed out above, neither party to this appeal contended that the solution
    to the problem is to order separate trials whenever the full exercise of the
    right to make full answer and defence by one accused appears to collide with
    the protections ordinarily accorded to an accused when facing the Crown alone.
    This position is consistent with both principle and policy as outlined above.
    The general rule, therefore, is that the respective rights of the co-accused
    must be resolved on the basis that the trial will be a joint trial. This does
    not mean, however, that the trial judge has been stripped of his discretion
    to sever. That discretion remains, and can be exercised if it appears that
    the attempt to reconcile the respective rights of the co-accused results in
    an injustice to one of the accused.

[44]

Thus, the general rule is that accused persons alleged to
    have been involved in a common criminal enterprise ought to be tried together
    unless it can be demonstrated that a joint trial would work an injustice to
    one of the accused.

Severance will
    not be granted solely on the basis that evidence led against one accused is
    inadmissible or limited in its use against another.

We operate on the premise that juries understand
    and will obey instructions given to them by the trial judge who can explain
    to them the uses that can and cannot be made of some of the evidence led at
    trial.

The decision to order separate
    trials is a matter of discretion for the trial judge who is in the best position
    to determine how the interests of justice will best be served.

Absent an error in principle, this court will
    refrain from interfering with that decision.

[45]

In my view the appellant has not demonstrated any error in
    the exercise of the trial judge's discretion.

I am not persuaded that the trial judge was wrong in concluding that
    the jury would be able to comprehend his instructions and to properly apply
    them to the case at bar.

[46]

In his submissions before this court counsel did not pursue
    with any vigour the suggestion that
Forknall's
right to a fair trial was prejudiced by the refusal
    of the trial judge to permit him to play the video-tape of Copeland.

I agree with the trial judge that the evidence would have been of marginal
    utility in this case.

I cannot say that this ruling resulted in unfairness
    to
Forknall
in the context of this trial.

[47]

I would dismiss this ground of appeal.

The Charge on Causation and the Defence of Abandonment

[48]

As I understand the argument of counsel for the appellant,
    he says that the trial judge erred in his instructions to the jury on the
    defence of abandonment and on the issue of causation.

The theory of the defence was that

Forknall
had, at the last minute, pulled
    out of the plan to murder Ms. McKinney.

He was present when Copeland administered the
    blows which caused the victim's death.

After
    the death blows were struck
Forknall
was enlisted
    by Copeland to strike the victim.

Since
    the medical evidence supports the view that the second series of blows were
    rendered after the death of the victim,
Forknall
could not be said to have caused her death. Counsel submitted that if the
    jury had a reasonable doubt with respect to abandonment,
Forknall
should only have been convicted of attempted murder.

He says that the trial judge did not handle
    the jury instructions properly during the initial charge to the jury and later,
    when answering a question posed by the jury.

[49]

The evidentiary basis of this theory is said to be found
    in the statements
Forknall
made to Sergeant Ross.

While showing Ross the gravesite
Forknall
explained that Copeland had devised the plan to kill Tiffany McKinney and
    to take her car.

Forknall
said that
    he and Copeland dug the hole in the woods a couple of days before they took
    Ms. McKinney to it.

He said that they
    had hidden a crowbar near-by.

One the
    day of the murder Ms. McKinney was driven by
Forknall
and Copeland to the pit.

She was told
    that there was marijuana there.

While
    she was in the pit searching for the drugs
Forknall
grabbed the crowbar out of the dirt and had it in his hand.

Forknall
told Ross
    that when the young woman climbed out of the hole he thought, "It's not
gonna
be worth it. I couldn't bring myself to do the first
    hit."

Forknall
said that he turned his back and heard a thump.

He said that the crowbar was in Copeland's hand.

Forknall
said that
    Copeland smacked
McKinney
in the head, she fell to her knees and Copeland hit her again.

It was at this point that the Copeland told
Forknall
to hit
McKinney
.

Forknall
said he could
    not, and Copeland replied, "You're going to have to because I can't".

Forknall
said that he grabbed the crowbar
    and struck the victim 12 times about the head.

[50]

In my view there is no air of reality to defences based on
    either causation or abandonment.

[51]

Rex v. Whitehouse
(1940), 75 C.C.C. 65 (B.C.C.A.), is the leading authority with respect
    to the elements of abandonment.

In
    that case a merchant was struck down and died in the course of a robbery.

Whitehouse was aided and abetted by two youths who performed, in part,
    the tasks assigned to them, but just before the victim was struck by Whitehouse
    the youths fled the scene.

An argument was made that the youths had abandoned
    the common object when they fled the scene.

This court held that they had not.

Sloan J.A. said this, at pp. 67-68:

Can
    it be said on the facts of this case that a mere change of mental intention
    and a quitting of the scene of the crime just immediately prior to the striking
    of the fatal blow will absolve those who participate in the commission of
    the crime by overt acts up to that moment from all the consequences of its
    accomplishment by the one who strikes in ignorance of his companions' change
    of heart? I think not. After a crime has been committed and before a prior
    abandonment of the common enterprise may be found by a jury there must be,
    in my view, in the absence of exceptional circumstances, something more than
    a mere mental change of intention and physical change of place by those associates
    who wish to dissociate themselves from the consequences attendant upon their
    willing assistance up to the moment of the actual commission of that crime.
    I would not attempt to define too closely what must be done in criminal matters
    involving participation in a common unlawful purpose to break the chain of
    causation and responsibility. That must depend upon the circumstances of each
    case but it seems to me that one essential element ought to be established
    in a case of this kind: where practicable and reasonable there must be timely
    communication of the intention to abandon the common purpose from those who
    wish to dissociate themselves from the contemplated crime to those who desire
    to continue in it. What is "timely communication" must be determined
    by the facts of each case but where practicable and reasonable it ought to
    be such communication, verbal or otherwise, that will serve unequivocal notice
    upon the other party to the common unlawful cause that if he proceeds upon
    it he does so without the further aid and assistance of those who withdraw.
    The unlawful purpose of him who continues alone is then his own and not one
    in common with those who are no longer parties to it nor liable to its full
    and final consequences.

[52]

This statement of the law was approved by the Supreme Court
    of Canada in
R. v. Miller and
Cockriell
,
    [1977] 2 S.C.R. 680, 31 C.C.C. (2d) 177, and again in
R. v.
Kirkness
,
    [1990] 3 S.C.R. 74, 60 C.C.C. (3d) 97.

[53]

In the case at bar
Forknall
said he told Copeland that he could not strike the
    first blow.

Copeland took it upon himself
    to do that.

When Copeland told
Forknall
that he could not strike the victim again, that
Forknall
would have to do it,
Forknall
picked up the crowbar and administered a flurry of blows.

Forknall
did not indicate
    his withdrawal from the plan.

He merely
    said that he could not strike the first blow.

This display of queasiness does not constitute
    evidence of an intention to abandon the enterprise, nor can it be said to
    be unequivocal notice of such an intention.

In my view there was no air of reality to the
    defence of abandonment.

[54]

Nor is there any air of reality to a defence based on causation.

In this case no importance can be attached to the question who struck
    the fatal blow.

This murder was a joint
    enterprise.

The blows of one were the
    blows of the other.

[55]

In
R. v.
Mena
(1987), 34 C.C.C. (3d) 304 (Ont.
C.A.
), Martin
    J.A. discussed the liability of joint perpetrators or co-principals.

He wrote (at pp. 314-5):

At
    common law, a principal in the first degree is one who has committed the act
    with his own hands, or through an innocent agent: see
Russell on Crime
, 12th ed., vol. I (1964), p. 131.

It was well established that, if several persons
    combined to commit a crime and each person committed a different part of the
    crime, every such person was a principal in the first degree.

In
Russell
    on Crime
, the author states at p. 131:

All the facts of the case must be taken into
    account, so that where
it appears that
    there is a joint enterprise afoot between two (or more) persons
in which
    each has an active part to perform in order to effect the criminal purpose
    then each participant is equally a principal in the first degree.

Thus in burglary if A hoists B through a half-open
    window and B then goes to the closed door of the home and opens it from the
    inside thus admitting A, both are principals in the first degree to burglary.

So also there may be joint action in cases of stealing and other crimes.

In certain circumstances each of the participants may do his part in
    the absence of the others and even may not know by whom the other parts were
    executed. [Footnotes omitted.][Emphasis added.]

Glanville
    Williams in
Criminal Law: The General
    Part
, 2nd ed. (1961), p. 349 states:

Two persons may be guilty as joint perpetrators.
    Hence where a body of men beat a constable (some with sticks, some by throwing
    stones, some with their fists), and the constable died of the aggregate violence,
    the judge directed the jury that "
If several persons act together
    in pursuance of a common intent, every act done in furtherance of such intent
    by each of them is, in law, done by all
". . . .

[Emphasis
    added.]

[56]

In
R. v. McMaster
, [1996] 1
    S.C.R. 740, 105 C.C.C. (3d) 193, two cousins were convicted of second degree
    murder.

The two men assaulted the victim
    by punching and kicking him.

One kicked
    the victim in the head, while the other, Harley McMaster, administered kicks
    to the body.

Forensic evidence indicated
    that the victim had died because of a blow or blows to the head.

Counsel for the Harley McMaster argued that
    he did not administer the fatal blow and could not be said to have caused
    the death of the victim.

In the Supreme
    Court of Canada, Lamer C.J.C. wrote for the majority, at
para
.
    33:

Counsel
    for Harley McMaster suggests that since the forensic evidence indicated that
    the deceased died because of a blow(s) to the head, the trial judge failed
    to consider whether Harley could have "caused" the death since the
    only evidence of his involvement was blows to the body.

However, the trial judge made it clear in his
    reasons that he was satisfied that the cousins were acting in concert and
    "jointly involved" in causing the death.

It is a well-established principle that where
    a
trier
of fact is satisfied that multiple accused
    acted in concert, there is no requirement that the
trier
of fact decide which accused actually struck the fatal blow.

See.
R.
    v. Isaac
, [1984] 1 S.C.R. 74, at pp. 80-81, and
R. v. Thatcher
, [1987] 1 S.C.R. 652.

[57]

Thus the fact that the appellant might not have landed the
    fatal blow is legally irrelevant to the issue of causation in the case at
    bar.

[58]

It is therefore unnecessary to examine the charge to the
    jury with respect to abandonment and causation.

Any error committed by the trial judge was in
    the appellant's favour.

I would dismiss
    this ground of appeal.

Conclusion

[59]

I would dismiss the appeal.

The Honourable
Madam Justice Ryan

I AGREE: The Honourable
Madam Justice Huddart

I AGREE: The Honourable
Mr. Justice
Thackray

[1]

Elliott, D.W.

"Cut Throat Tactics:
      The Freedom of an Accused to Prejudice a Co-Accused", [1991]
Crim
. L. Rev.
5.


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Bastarache,

2004 BCCA
            4

Date: 20040105

Docket: CA30228

Between:

Regina

Respondent

And

Francis
      Joseph Bastarache

Appellant

Before:

The Honourable
            Madam Justice Newbury

The Honourable
            Mr. Justice Low

The Honourable
            Mr. Justice Lowry

M.J. Dewitt-Van
            Oosten

Counsel for the Respondent

F.J. Bastarache

Acting In Person

Place and
            Date of Hearing:

Vancouver, British Columbia

1 December 2003

Place and
            Date of Judgment:

Vancouver, British Columbia

5 January 2004

Written
              Reasons by
:

The Honourable
            Mr. Justice Low

Concurred
              in by:

The Honourable
            Madam Justice Newbury
The Honourable Mr. Justice Lowry

Reasons for Judgment of the Honourable Mr. Justice Low:

[1]

After
        hearing oral submissions, we granted leave to appeal sentence but dismissed
      the appeal with these reasons to follow.

[2]

A
        jury convicted the appellant of the following offences: robbery, discharging
        a firearm with intent to wound, maim or disfigure, and aggravated assault.  The
        trial judge applied the rule against multiple convictions and entered a
        judicial stay of proceedings on the second two counts.  He sentenced
      the appellant to imprisonment for six years on the robbery count.

[3]

The
        appellant argues that the sentence was excessive upon comparison with
      the sentences imposed in like cases upon similar offenders.  We determined
        that the sentence was fit and that there was no basis upon which we should
        interfere with it.   The circumstances of the robbery were severe and
      the appellant has a serious criminal record.

[4]

The
        robbery offense occurred in Duncan, B.C. on 14 February 2001, one day
      after the appellant was released from prison on a one-year sentence for
      possession
        of property with a value over $5,000 obtained by crime imposed in Nanaimo
        on 25 June 2000.  The appellant was under the influence of alcohol and
        cocaine.  He attended a nightclub in Duncan with some friends.  One of
        the friends was in an altercation and was chased off the premises after
        being assaulted.  Immediately after that incident, the appellant took a
        taxi to a motel unit rented by his friends.  He retrieved a handgun and
        ammunition.  Before the jury, the appellant testified that he was not previously
        aware that the weapon was in the motel unit.  However, the trial judge
        in the sentencing proceedings, as he was entitled to do, rejected that
      factual assertion.

[5]

The
        appellant returned to the scene of the incident and confronted the individual
        who had assaulted his companion.  He fired the gun over the head of that
        person.  The jury acquitted the appellant of offenses arising out of
      that conduct.

[6]

The
        appellant then got back into the taxi and directed the driver to drive.  The
        driver tried to persuade the appellant to give up the gun but the appellant
        fired the gun, shooting the driver in the ankle.  The appellant again fired
        the gun, this time shooting the victim in the thigh.  The victim drove
        away from the nightclub and the appellant fired the gun toward the nightclub
        from the front passenger seat.  The victim was disabled from driving and
        brought the taxi to a stop.  He got out the driver's side and the appellant
        struck him on the head with the gun.  The appellant drove away in the taxi
        pursued by police vehicles.  The police were unable to apprehend the
      appellant until he had driven all the way to Victoria.

[7]

The
        sentencing judge observed that the victim, Harold Johnson, was left with
        permanent restrictions on his physical movements and was emotionally
        scarred.  He stopped driving taxi and returned to earlier employment
      as a truck driver.

[8]

The
      sentencing judge described the criminal record of the appellant as follows:

The
        offender has a dreadful criminal record dating back to October 1989.  The
        record includes numerous criminal convictions including convictions for
        theft, possession of stolen property, break and enter, assault, and weapons
        offences.  His last conviction was in June of 2000 for which he received
        a sentence of one year for possession of stolen property with a value in
        excess of $5,000.  He had been released but one day when the events took
      place that give rise to this conviction.

[9]

The
        judge took into account the time the appellant had spent in custody on
        this matter prior to sentencing, more than 19 months, and credited him
        with 39 months.  Therefore, the six-year sentence is the equivalent of
        just over nine years.  Because the appellant had made some effort toward
        his rehabilitation, he declined to make an order under s. 743.6 of the
Criminal
        Code of Canada
increasing the appellants parole ineligibility
      period.

[10]

In
        my opinion, the judge was correct in emphasizing the need to imprison
      the appellant to protect society, deterrence of the appellant and denunciation.  He
        properly considered the attempts of the appellant at rehabilitation to
        be of secondary importance to these factors.  He described those attempts
      as follows:

Since
        his incarceration awaiting trial on these matters, the offender has taken
        several courses at Vancouver Lower Island Regional Correctional Centre.  He
        has done this as a volunteer and has fully participated in a life skills
        program five times, a violence prevention program three times, a harm reduction/peer
        education program twice, and once in a substance abuse program.  He currently
        has a grade 10 education, and he has taken steps to upgrade himself in
      that regard.

[11]

Although
        these efforts by the appellant hold out some hope for his rehabilitation
        and are to be encouraged, they fall short of giving rise to confidence
        that it would serve the interests of public safety to release him into
        the community earlier than the date upon which he will be eligible for
        release under the sentence imposed.  I think the sentencing judge properly
        addressed the appellants efforts at rehabilitation by refusing the order
      under s. 743.6.

[12]

The
        appellant made a number of submissions to us about the length of sentence
        he received.  I have already dealt with some of those submissions and
      I will discuss the others.

[13]

The
        appellant argued that the sentencing judge did not take into account
      the family background of the appellant and should have ordered a pre-sentence
        report because of that background.  The appellant was born in 1970 and
        was thirty years old when he committed the robbery.  Defence counsel advised
        the court during the sentence proceedings that in 1974 (when the appellant
        was three or four years old) his father was murdered and three months later
        his mother committed suicide.  It was said that he never received counseling
        for these events.  After the deaths of his parents, the appellant was
        taken from New Brunswick to Nanaimo where he was raised by an aunt and
        uncle
      whom he holds in high regard.

[14]

I
        was not persuaded that this background required further exploration.  Although
        it is conceivable that it might partially explain the appellants response
        to the assault of his friend in the night club, it does not explain his
        violent treatment of the taxi driver who posed no threat to him at all.  Professional
        exploration of the appellants unfortunate background might be useful
        in dealing with his substance abuse problem and his violent propensities
        but
        his background was not a mitigating factor in determination of an appropriate
      sentence.

[15]

The
        appellant contends that his offence was the product of excitement caused
        by the incident in the night club.  He says that the sentencing judge failed
        to distinguish between pre-meditation and momentary intent while under
        the influence of alcohol and cocaine.  There is no merit in this submission.  The
        judge specifically stated that the shooting of Mr. Johnson was not pre-meditated
        but he did describe it as a willful, violent, criminal act.  He was
        aware of all the surrounding circumstances, properly took them into account
        and
      accurately described the nature of the crime.

[16]

The
        appellant says that, because of the acquittals by the jury on the first
        two counts in the indictment, the judge ought to have considered the
      defence of necessity when imposing sentence.  This is a substantive defence to
        the robbery charge and was relevant only to the trial itself, not to the
      sentencing.  It was not a mitigating factor in the sentencing process.

[17]

The
        appellant argues that he was given the maximum sentence within the range
        for cases of this kind.  He compares his sentence to the sentences imposed
        or upheld by this court in other robbery cases he says are similar to the
        present case.  However, many of the cases the appellant referred us to
        concerned more youthful offenders with less serious criminal records or
        did not involve actual violence.  In addition, the upper end of the range
        is not nine years for more serious robberies.  In
R. v. Klapcic
,
      2001 BCCA 487, I said this:

Although
        it can be said that the more serious robberies attract sentences in the
        range of seven to nine years, nine years is not the upper limit.  In
        cases involving physical injury to the victim where the perpetrator is
        not a
        young adult and has a serious criminal record, the sentences exceed nine
      years.

[18]

In
        that case, we upheld a sentence of ten years given to a 34-year old offender
        with a serious criminal record who committed a robbery at an ATM machine
        that included a physical attack on the 65-year old victim.  That offender
      used a handgun replica to effect his purpose.

[19]

The
        sentence here was fit.  The circumstances of this robbery offence were
        severe.  The appellant twice shot his victim causing permanent injury.  He
        did so only because the victim did not immediately comply with his demands.  In
        addition, he struck the victim with the gun.  These were acts of senseless
        violence committed by a man who has four previous assault convictions,
        one of which was for assault causing bodily harm, and who is no stranger
        to offensive weapons.  He has two prior convictions for possession of a
        prohibited weapon plus one for possession of an unregistered restricted
        weapon.  Despite the appellants post-offence efforts at rehabilitation
        and his expressions of remorse, it was necessary to emphasize the factors
      of denunciation and specific deterrence.

[20]

For
      these reasons, we granted leave to appeal sentence but dismissed the appeal.

The Honourable Mr. Justice
      Low

I agree:

The Honourable Madam Justice Newbury

I agree:

The Honourable Mr. Justice
      Lowry


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Scott Steel Ltd.,

2004 BCCA
            2

Date: 20040105

Docket: CA30639

Between:

Regina

Respondent

And

Scott Steel
      Ltd. and Ron Scott

Appellants

Before:

The Honourable
            Chief Justice Finch

(In Chambers)

F.G. Potts

Counsel for the Appellants

S.I. Macdonald

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

December 12, 2003

Place and
            Date of Judgment:

Vancouver, British Columbia

January 5, 2004

Reasons for Judgment of the Honourable Chief Justice
        Finch:

[1]

The
        appellants apply for leave to appeal the judgment of the Supreme Court
        of British Columbia pronounced 20 February 2003 allowing the Crowns
      appeal from the appellants acquittal in Provincial Court on 17 December
      2001.  The
        appellants were charged under the
Offence Act,
R.S.B.C. 1996,
        c.338 for breaches of the
Workers Compensation Act,
R.S.B.C.
        1996, c.492 and the Industrial Health and Safety Regulation, B.C. Reg.
        585/77, as the result of two fatalities and other workers injuries which
        occurred during a reconstruction project on a railway bridge owned by the
      C.N.R.

[2]

At
        trial, the learned Provincial Court judge held that the exercise of
      the jurisdiction of the provincial body had been ousted in favour of federal
        jurisdiction.  On the Crowns appeal to the B.C. Supreme Court the learned
        summary conviction appeal judge held that the trial judge erred in his
      conclusion concerning jurisdiction.  Tysoe J. held:

[16]  It was also
        an error for the trial judge to conclude that the jurisdiction of the
      provincial body was ousted in favour of federal jurisdiction because Scott
      Steel was
        working on a railway that formed the core of CNRs federal undertaking.
        This was also the case in
Construction Montcalm
, where a provincial
        construction company was working at the site of a federal undertaking but
        the Supreme Court of Canada nevertheless held that the construction company
        was subject to provincial wage legislation. The test of jurisdiction in
        respect of occupational health and safety is the same as the test in respect
        of labour relations, and it is not determinative whether the activities
        in question take place at a site owned or controlled by the federal or
      provincial enterprise.

[3]

He
      concluded:

[20]  In summary,
        the trial judge should have applied the test set out in
Northern Telecom
        No. 1
to the findings of fact he made and concluded that the provincial
        legislation dealing with occupational health and safety applied to Scott
        Steel. He erred in distinguishing the
Canada Labour Code
case by
        creating an unsupported distinction between legislation dealing with labour
        relations and legislation dealing with occupational health and safety.
      I allow the appeal and order a new trial.

[4]

On
        this application for leave to appeal under s.124(1) of the
Offence
        Act
the appellants must raise a ground of appeal that involves
        a question of law alone, show that the issue of law is important, and
        show further that the appeal has a reasonable prospect of success:
R.
      v. Hildebrand
(2000), 144 B.C.A.C. 156, 2000 BCCA 579 ¶7.

[5]

The
        issue which the appellants seek to raise on appeal is whether the summary
        conviction appeal court judge erred in law when he determined that the
        [Workers Compensation] Act applied to the appellants in the
particular
        circumstances of this case
.  They would seek to argue on appeal
        that it was an error to impose upon a single work site with an integrated
        work
        force including both C.N. and Scott Steel Ltd. employees, two separate
      and conflicting schemes of occupational health and safety.

[6]

The
        Crown opposes the application for leave to appeal on two grounds.  First
        it says such an appeal would be premature because the Provincial Court
        has not yet heard and determined the substance of the charges against the
        appellants.  Second, the Crown says there is no reasonable prospect of
        success on appeal because the ground alleged is dependant upon facts
      not supported by, and contrary to, the findings of the trial judge.

[7]

In
        my opinion, the test for leave to appeal to this court has not been met.  The
        appellants raised the jurisdictional issue at the commencement of the proceedings
        in Provincial Court.  The learned Provincial Court judge was of the view
        that he could not decide that issue without a proper factual foundation.  He
      said:

[3]   Prior to the
        commencement of the trial, objection was raised on behalf of Scott Steel
        that the provincial legislation did not apply to their work at Mile 8.3
        and therefore they could not be prosecuted for an alleged violation of
      that
Act
and its regulations.

[4]   Because counsel
        could not agree on sufficient facts, the Court was unable to make such
        a determination prior to the calling of evidence. The parties agreed
      to commence the trial without prejudicing the right of the applicant to
      renew
        his objection once the court had heard those witnesses
whose evidence
        would enable the court to make the findings of fact necessary to determine
      the jurisdictional issue.

[emphasis
      added]

[8]

His
        review of the evidence and his factual conclusions on the evidence are
      set out from paragraph 9 to 16 of his reasons.

[9]

I
        understand from what the learned Provincial Court judge said that the issue
        of whether the
Workers Compensation Act
and the Industrial
        Health and Safety Regulation apply is a question of mixed fact and law.  His
        legal conclusion depended on his findings of fact.  That is also clear
        from the way in which the issue sought to be raised has been framed by
      the appellants  in the particular circumstances of this case.

[10]

As
        the question raised is not one of law alone, the proposed appeal does not
        satisfy the criteria for leave to appeal set out in s.124(1) of the
Offence
      Act
.

[11]

Counsel
        for the appellants argue that it was unfair for the Crown to have an
      appeal as of right from the decision of the Provincial Court judge, whereas
      the
        appellants must now obtain leave to appeal the decision of the summary
        conviction appeal court judge.  The Crowns appeal arose as of right
        under s.109 of the
Offence Act
, incorporating relevant provisions
        of the
Criminal Code
, and appeal from acquittal.  However,
        if the Crown wished to appeal the decision of a summary conviction appeal
        court, it too would have to raise a ground that involved a question of
        law alone as required by s.124 of the
Offence Act
, again
      incorporating the relevant provisions of the
Criminal Code
.

[12]

The
      application for leave to appeal is dismissed.

The Honourable
Chief
      Justice Finch


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Graham
                Ind.Svcs.Ltd. v. G.V.W.D. et al,

2004 BCCA
            5

Date: 20040107

Docket: CA31386

Between:

Graham
      Industrial Services Ltd.

Petitioner

(
Respondent
)

And

Greater
      Vancouver Water District

Respondent

(
Appellant
)

And

Commonwealth Construction Canada Ltd. and

Kingston Construction Ltd.

Respondents

(Respondents)

Before:

The Honourable
            Chief Justice Finch

The Honourable
            Mr. Justice Mackenzie

The Honourable
            Mr. Justice Thackray

G. McDannold

Counsel for the Appellant

Greater Vancouver Water District

C.J. OConnor

R.J. Deane

Counsel for the Respondent

Graham Industrial Services Ltd.

M.B. Morgan

Counsel for the Respondent

Commonwealth Construction Canada Ltd.

M.G. Demers

W.S. McLean

Counsel for the Respondent

Kingston Construction Ltd.

Place and
            Date of Hearing:

Vancouver, British Columbia

December 1, 2003

Place and
            Date of Judgment:

Vancouver, British Columbia

January 7, 2004

Written
              Reasons by
:

The Honourable
            Chief Justice Finch

Concurred
              in by:

The Honourable
            Mr. Justice Mackenzie

The Honourable
            Mr. Justice Thackray

Reasons for Judgment of the Honourable Chief Justice
        Finch:

I.  OVERVIEW

[1]

At
        the conclusion of hearing this appeal, the court dismissed the appeal
      with reasons to follow.  These are the reasons.

[2]

The
        appellant Greater Vancouver Water District (the Water District) appeals
        the judgment of the B.C. Supreme Court pronounced in favour of the petitioner
        Graham Industrial Services Ltd. (Graham) on 17 November 2003 in the following
      terms:

1.    A declaration that the tender submitted
        by Graham to the Water District dated 7 October 2003 fails to comply
      with the Instructions to Tenderers and as a consequence no contract was
      formed
        between Graham and the Water District in respect of the performance of
      the Capilano Pump Station Project;

2.    A declaration that Grahams tender dated 7 October 2003 was not
        capable of acceptance by the District for the award of the contract for
      the Capilano Pump Station Project.

[3]

Graham
        launched the petition on 3 November 2003, following the 7 October 2003
        opening of bids which the Water District had received in response to
      its call for tenders for the Capilano Pumping Station, Water Mains and
      69 KV
        Substation at Capilano Regional Park in North Vancouver.  Grahams bid
        of $21,451,881 was about $5,000,000 lower than the other three bidders.  Immediately
        after the bids were opened, Graham advised the Water District that its
        bid contained a $2,000,000 arithmetical error, and sought to withdraw it.  Graham
        subsequently took the position, in a letter to the Water District dated
        14 October 2003, that its bid did not conform to the tender requirements,
      and was therefore incapable of acceptance by the Water District.

[4]

On
        23 October 2003, the Water District advised Graham that it had reviewed
        the bids and considered the Graham bid to be without material defects.  Accordingly,
        the Water District awarded the project to Graham and forwarded the construction
        contract documents for signature.  According to the instructions to tenderers,
        if Graham did not execute and return the construction contract within
        ten days of receipt, it risked the loss of its bid bond (10% of the tender
        price) or an action for the difference between its tender price and the
      next lowest bid.

II.  DECISION OF THE CHAMBERS JUDGE

[5]

The
        learned chambers judge agreed with Graham that its bid was non-conforming
        in material respects.  He concluded that the Water District could not
        accept Grahams tender, and that, according to the Contract A/Contract
        B analysis
        of the tendering process set out in
Ontario v. Ron Engineering & Construction
        (Eastern) Ltd.
, [1981] 1 S.C.R. 111, 119 D.L.R. (3d) 267, 13 B.L.R.
        72 [
Ron Engineering
 cited to S.C.R.], no Contract A was
      concluded.

[6]

The
      instructions to tenderers contained the following terms:

Part 10     Conditions
        of Tender

10.1  If
        a Tender contains a defect or fails in some way to comply with the requirements
        of the Tender Documents, which in the sole discretion of the Corporation
        is not material, the Corporation may waive the defect and accept the
      Tender.

Part 13     Irrevocability
        of Offer

13.1  The Tender submitted by the Tenderer shall be
        irrevocable and remain open for acceptance by the Corporation for a period
        of 60 days from the Tender Closing, whether another Tender has been accepted
        or not. If at any time after 60 days from the Tender Closing, the Tenderer
        has not revoked its Tender in writing, the Corporation may accept the
      Tender.

13.2  If a Tenderer, for any reason whatsoever, purports
        to revoke its Tender within 60 days from the Tender Closing, or if for
        any reason whatsoever a successful Tenderer does not execute and deliver
        the Agreement in accordance with Section 00100, Clause 16.1, the Corporation,
        without limiting any other remedy it may have under the Tender Documents
      or otherwise, shall be entitled to:

(1)   exercise its rights under any Bid Bond and retain
        the amount payable to the Corporation under the Bid Bond as liquidated
      damages; or

(2)   require
        the Tenderer to pay to the Corporation an amount equal to the difference
        between the Tender price of its Tender and any other Tender which is
      accepted by the Corporation, if such other Tender is for a greater price,
      plus the
        total of all costs, expenses and damages, including legal fees on a solicitor
        and own client basis, incurred by the Corporation as a result of or related
      to such revocation or failure by the Tenderer.

Part 15     Acceptance
        and Rejection of Tenders

15.1  Notwithstanding any other provision in the Tender
        Documents, any practice or custom in the construction industry, or the
        procedures and guidelines recommended for use on publicly funded construction
        projects, the Corporation, in its sole discretion, shall have the unfettered
      right to:

(1)   accept any Tender;

(2)   reject any Tender;

(3)   reject all Tenders;

(4)   accept a Tender which is not the lowest Tender;

(5)   reject a Tender even if it is the only Tender
      received by the Corporation;

(6)   accept all or any part of a Tender; and

(7)   award all or a portion of the Work to any Tenderer.

15.2  Awards
        shall be made on Tenders that in the Corporations sole discretion give
      the greatest value based on quality, service and price.

[7]

I
        will adopt the chambers judges conventions and refer to section 10.1 as
        the Discretion Clause and sections 15.1 and 15.2 as the Privilege Clause
      throughout these reasons.

[8]

The
        learned chambers judge held that the Discretion Clause must be read to
        mean that the sole discretion of the Corporation to determine whether a
      defect or non-compliance was material was subject to objective scrutiny.

[9]

The
        provisions of the instructions to tenderers which the chambers judge held
      that Graham failed to comply with were Schedule 8, sections .6 and .7:

SCHEDULE
        8  TENDERERS TECHNICAL SUBMISSION                  continued

.6    With respect to the haul trucks that will be operating
        on Capilano Watershed Mainline Road, the Tenderer shall provide a three
        (3) page discussion covering the management of the hauling operation
      and mitigation of impacts to the residents of Nancy Greene Way with respect
      to noise, air emissions and road safety. Refer to Section 01130 and 01550.

(1)   Identify number, size and type(s) of haul vehicles,
      including model year;

(2)   Discuss factory installed or after-market noise
        and emission abatement equipment currently installed on vehicles and
      expected sound level in their current condition; additional noise and emission
      abatement
      control devices that will be added to meet the Specifications;

(3)   Radio control between all vehicles operating on
      the road;

(4)   Control of speed;

(5)   Any special vehicle parking required on the Work
      Site; and

(6)   Maintenance
      of all roads used exclusively by the Contractor for hauling in the watershed.

.7    Tenderer
        shall include a five (5) page outline of its intended Environmental Protection
        Plan (EPP), which is described in Section 01561  Environmental Requirements.
        This outline shall include plans for the protection of the environment,
        including procedures for surface water quality protection, waste management,
        spill contingency and response, the intended design and operational procedures
        for the containment, treatment and discharge of water and other requirements
        listed in that section. The outline shall also indicate any proposed
      water collection, pumping, conveyance, holding, treatment, and release
      systems
        and equipment proposed. The Tenderer shall indicate the size and location
      of any water treatment pond/facility.

[10]

Grahams
      response to the Schedule 8, section .6 tender requirements was as follows:

.6    With respect to using haul trucks within the Capilano
        Watershed Mainline we will comply with the specifications as prescribed
      in sections 01130 and 01550.

(1)   If we use off-road haul trucks we could use up
        to 5  VOLVO A35 articulated all wheel drive units, 1995 or newer models,
      with a rated payload capacity of 30 tonnes.

(2)   The trucks would be equipped with mufflers and
        tested before they were brought on site to ensure they met the noise
      restrictions as specified. They would also be equipped with catalyzed particulate
      traps
        as specified, or an approved equal, to those listed in section 01130
      paragraph 1.8.10.

(3)   All operators of the haul trucks will be equipped
        with radios and trained with their use to comply with the GVWDs operating
        procedures within the watershed as detailed in Section 01550 Appendix
      A.

(4)   For off-road trucks not equipped with standard
        speedometers we will provide our operators with calibrated charts that
      give the road speed vs rpm for a particular gear.

(5)   We will provide space within the construction
      limit for parking any off-road machinery while not in use.

(6)   We
        will maintain the roads we use for hauling. We intend to survey the road
        condition prior to our hauling activities and ensure it is returned to
      its original state, or better, on the completion of our activities.

[11]

Grahams
      response to the Schedule 8, section .7 tender requirement was as follows:

.7    For
        an outline of our Environmental Protection Plan please refer to Schedule
        L in the Stage 1 document. We will prepare a project specific plan in
      compliance with the specification sections 01561 following award of the
      contract.

The Schedule L referred to was a single page in a
        document filed during the prequalification stage of the tendering process.  It
        sets out examples of some of the environmental protection plans that Graham
        produced for other projects.  However, the trial judge found Schedule
      L to be unresponsive to the express requirements of section .7.

[12]

With
      respect to those responses, the learned chambers judge concluded:

[43]  I find that
        Grahams responses to Sections .6 and .7 of Schedule 8 of the Tender
        Form were so patently deficient they could not on an objective reading
      be said to conform in all material respects to the Invitation to Tender.

[44]  The Districts
        authority under the privilege and discretion clauses to determine non-compliance
        with Tender Form requirements is not material and must be exercised both
        in good faith and in [a] manner which can withstand objective scrutiny.
        Otherwise those clauses could be used to deem a non-compliant tender to
        be a compliant tender.  That would undermine the fairness of the tendering
        process.  Preservation of that fairness is the underlying rationale for
      the requirement for substantial or material compliance.

[45]  In light of
        my finding that Grahams tender did not conform in all material respects
        with Sections .6 and .7 of Schedule 8 of the Tender Form requirements,
      I need not consider the other alleged shortcomings of the Graham tender.

[46]  In light of the material non-compliance I have found, it follows
        that the District could not accept Grahams tendered offer and no Contract
      A was concluded.

The learned chambers
      judge therefore granted the declarations that Graham sought in its petition.

III.  PARTIES
        POSITIONS ON APPEAL

[13]

The
        Water District contends that the learned chambers judge erred in making
        and substituting his own analysis as to the adequacy of Grahams bid
      for that of the owner.  It contends that it was not open to the court to substitute
        its discretion for, or objectively scrutinize, the owners exercise of
        its sole discretion under the Discretion or Privilege Clauses.  It contends
        that the chambers judges conclusion is contrary to the express terms
        and conditions in the instructions to tenderers, contrary to the relevant
        authorities,
        and cannot be sustained in the absence of any allegation, evidence or
      finding of bad faith.

[14]

Graham
        submits that the decision of the learned chambers judge properly employed
        an objective test to scrutinize the Water Districts exercise of discretion
        and that such objective scrutiny discloses a material defect in its bid,
        rendering it incapable of acceptance.  The other bidders who were named
        as respondents in the original petition, Commonwealth Construction Canada
        Ltd. (Commonwealth) and Kingston Construction Ltd. (Kingston), support
        Graham in these submissions.  All three bidders submit that to construe
        the Discretion and Privilege Clauses as granting the Water District an
        unfettered discretion to determine which bids are compliant would undermine
      the integrity of the tendering process.

IV.  ANALYSIS

[15]

In
        my opinion, the learned chambers judge was correct to apply an objective
        test to the question of whether Grahams bid was non-compliant in a material
        sense.  Having found that the trial judge arrived at the correct test,
        I would not interfere with his application of that test and conclusion
        that, according to an objective analysis, Grahams bid was materially
      non-compliant.

(i)  Owners discretion subject to objective scrutiny

[16]

In
        my view, the Discretion Clause in the instructions to tenderers cannot
        permit the Water District to determine subjectively whether a defect
      is material.  This is not a matter of interpretation of the Discretion Clause.  Rather,
        the very Discretion Clause which the Water District seeks to rely on does
        not operate until a valid Contract A is formed.  The Discretion Clause
        can not, therefore, give the owner the power to reach back before the
        clauses operative existence and deem compliant a bid that is, on an
      objective analysis, materially non-compliant.

[17]

In
Ron
            Engineering,
supra
at 121-25
,
the Supreme Court
            of Canada introduced the now familiar Contract A/Contract B analysis
            for the tendering process.  Estey J. held that an owners invitation
            to tender constitutes an offer to all potential bidders.  A contract
            (Contract A) comes into existence when a contractor submits a tender
            in response to that offer.  The terms and conditions of Contract A
            are governed by the terms and conditions in the call for tenders, which
            usually include that if the owner accepts the contractors bid, the
            contractor will be obliged to enter the substantive construction contract
            (Contract B).  Contract A will also usually include a term that
            bids are irrevocable once submitted and provide for forfeiture of
            the bid
          deposit in the event a contractor attempts to withdraw its tender.

[18]

In
        his reasons, Estey J. noted that the rights of the parties, as set out
        in the terms and conditions of the tender documents, crystallize at the
        time a tender that is capable of acceptance is submitted.  He explained
      at 121-2:

If the tenderer has committed an error in
        the calculation leading to the tender submitted with the tender deposit,
at
        least in those circumstances where at that moment the tender is capable
        of acceptance in law
, the rights of the parties under contract A
        have thereupon crystallized.  The tender deposit, designed to ensure
        the performance of the obligations of the tenderer under contract A,
        must therefore stand
        exposed to the risk of forfeiture upon the breach of these obligations
      by the tenderer.

(emphasis added)

Estey J. continued at 122:

The significance of the bid in law is that
        it at once becomes irrevocable
if filed in conformity with the terms
        and conditions under which the call for tenders was made and if such terms
      so provide
.

(emphasis added)

[19]

It
        follows from this reasoning that if a bid is not filed in conformity
      with the terms and conditions under which the call for tenders was made,
      the
        rights of the owner under Contract A, such as the irrevocability clause,
        do not arise.  Indeed, Estey J. suggested at 121 that Contract A, and
        the parties rights under the terms of Contract A, would not come into
        existence
      where the bid fails materially to comply with the tender specifications:

I share the view expressed by the Court of Appeal that the integrity
        of the bidding system must be protected where under the law of contracts
        it is possible so to do.  I further share the view expressed by that Court
        that there may be circumstances where a tender may not be accepted as for
        example where in law it does not constitute a tender, and hence the bid
        deposit might not be forfeited.  That is so in my view, however, simply
        because contract A cannot come into being.  It puts it another way to
        say that the purported tender does not in law amount to an acceptance
        of the
        call for tenders and hence the unilateral contract does not come into
      existence.

[20]

He
      elaborated on this point at 125:

There may well be, as I have indicated, a situation in the contemplation
        of the law where a form of tender was so lacking as not to amount in law
        to a tender in the sense of the terms and conditions established in the
        call for tenders, and it may well be that such a form of tender could not
        be snapped up by the owner, as some cases have put it, and therefore
      it would not operate to trigger the birth of contract A.

See also Mr. Justice Major, The Law of Tendering: A
        View from the Supreme Court of Canada, (Paper presented to the Canadian
      Bar Association National Construction Law Conference, 2002) at 6.

[21]

The
        foregoing analysis prevents the Water District from relying on the Discretion
        Clause to render compliant a bid that is otherwise incapable of acceptance
        at law because of material non-compliance.  In this respect, the operation
        of the Discretion Clause is no different than the operation of the irrevocability
        provisions to which Estey J. makes reference.  The Water Districts right
        to rely on the Discretion Clause as a term of Contract A only arises if
        a valid Contract A is formed.  Contract A is only formed if a bid is, in
        Estey J.s words, capable of acceptance in law.  It is the submission
        of a compliant tender which establishes the legal relationship, Contract
        A, between the parties:
Sound Contracting Ltd. v. Nanaimo (City)
(2000),
        74 B.C.L.R. (3d) 239 (C.A.) ¶18.  Since the Discretion Clause does not
        operate before Contract A is formed, the determination of whether a bid
      is capable of acceptance in law must be based on an objective standard.

[22]

In
        my opinion, nothing in the Supreme Courts decisions in
M.J.B. Enterprises
        v. Defence Construction (1951) Ltd.,
[1999] 1 S.C.R. 619, 170 D.L.R.
        (4th) 577, 49 B.L.R. (2d) 1, 44 C.L.R. (2d) 163 [
M.J.B. Enterprises
]

and
R.
        v. Martel Building Ltd.
,
[2000] 2 S.C.R. 860, 193 D.L.R. (4th)
        1, 5 C.L.R. (3d) 161, 36 R.P.R. (3d) 175 [
Martel Building
]

alters
        the analysis of when Contract A will arise, and when the terms of the tender
        call become rights of the parties under Contract A, as established in
Ron
        Engineering
.  Although the court examined the effect of the privilege
        clauses at issue in
M.J.B. Enterprises
and
Martel Building
as
        matters of interpretation, in both of those cases the clauses related to
        the owners exercise of discretion
after Contract A arose
.  In
        neither case did the court address the ability of the owner to dictate
        subjectively
        when Contract A would arise through a discretionary term in the tender
      documents.

[23]

In
Kinetic
            Construction Ltd. v. Comox Strathcona (Regional District)
,
            2003 BCSC 1673 [
Kinetic Construction
] ¶41, a case relied
            on by the Water District, Preston J. recognized that a materially non-compliant
            bid is, in essence, merely a counter-offer.  It does not bring Contract
            A into existence, even where there is a clause that allows the owner
            to consider non-compliant bids.  This court reached a similar conclusion
            in
Midwest Management (1987) Ltd. v. B.C. Gas Facility Ltd.
(2000),
            82 B.C.L.R. (3d) 79, 5 C.L.R. (3d) 140, 2000 BCCA 589 (C.A.) ¶7-9,
            where it held that a bid that included a price structure which did
            not conform with the tender requirements was a counter-offer such
          that its submission did not give rise to Contract A.

[24]

In
Kinetic
            Construction,
supra
, the non-compliant bidder did
            not withdraw its counter-offer before the owner accepted it.  The litigation
            resulted when one of the unsuccessful bidders alleged that the owner
            breached Contract A by awarding Contract B to a non-compliant bidder.  However,
            in the case at bar, Graham revoked its counter-offer prior to the Water
            Districts purported acceptance of its bid; no legal contract could
            have possibly resulted.  Accordingly, I need not consider whether
Kinetic
            Construction
is correct to the extent that Preston J. found
            the discretion clause permitted the owner to accept a non-compliant
          bid without breaching its duty to treat other bidders fairly and equally.

[25]

The
        principles underlying the law of tendering articulated by the Supreme
      Court of Canada support the view that the Discretion Clause cannot be used
      to
        effect the creation of Contract A.  Since
Ron Engineering,
supra,
the
        focus of the Supreme Courts jurisprudence in this area has been protection
        of the integrity of the tendering process and ensuring that owners observe
        their duty to treat bidders fairly and equally:  see
Ron Engineering,
supra
at
        121;
M.J.B. Enterprises,
supra
¶41, 44;
Martel
        Building
, supra
¶88-89, 92, 100;
Derby Holdings Ltd.
        v. Wright Construction Western Inc.,
2002 SKQB 247, [2002] 9 W.W.R.
        126, 17 C.L.R. (3d) 64 [
Derby Holdings
], affd 2003 SKCA
      87; Major, The Law of Tendering,
supra
at 10-14, 18-19.

[26]

In
M.J.B.
            Enterprises,
supra
, these principles led the court
            to imply a term in Contract A that the owner would only accept compliant
            bids.  Iacobucci J., speaking for the court, emphasized the need to
            ensure that owners did not abuse their greater bargaining position
          to undermine the competitive nature of the tendering process, at ¶41:

The rationale for the tendering process, as can be seen from these documents,
        is to replace negotiation with competition.  This competition entails certain
        risks for the appellant.  The appellant must expend effort and incur expense
        in preparing its tender in accordance with strict specifications and may
        nonetheless not be awarded Contract B.  It must submit its bid security
        which, although it is returned if the tender is not accepted, is a significant
        amount of money to raise and have tied up for the period of time between
        the submission of the tender and the decision regarding Contract B.  As
        Bingham L.J. stated in
Blackpool and Fylde Aero Club Ltd., supra
at
        p.30, with respect to a similar tendering process, this procedure is
        heavily weighted in favour of the invitor.  It appears obvious to me
        that exposing oneself to such risks makes little sense if the respondent
        is allowed,
      in effect, to circumscribe this process and accept a non-compliant bid.

Major J. similarly notes in The Law of Tendering,
supra
at
      12:

In order to maintain the integrity of the tendering process, bidders
        must have some confidence that their efforts in preparing bids in conformity
        with the detailed tender specifications will not be thwarted by the acceptance
      of a bid that does not conform to those specifications.

[27]

In
        my view, giving the Discretion Clause the effect for which the Water
      District contends would allow the Water District and other owners to circumscribe
        the tendering process.  The mandatory requirements of the instructions
        to the tenderers would be completely negated if the Water District had
        the right to exercise its discretion to waive any defect or non-compliance
      by deeming material omissions to be non-material.

[28]

As
        Iacobucci and Major JJ. suggest, no bidder would participate in a tendering
        process in which the owner had the unreviewable, subjective right to
      deem patently non-compliant bids to be compliant bids.  The effect of such
      a provision would return the construction industry to the pre-
Ron Engineering
days
        where negotiation on undisclosed terms, rather than competition on specified
      terms, governed the tendering process.

[29]

The
        conclusion that the Discretion Clause cannot operate to bring a non-compliant
        bid into existence and thereby create Contract A does not introduce uncertainty
        into the tendering process.  Rather, it enhances certainty.  It ensures
        that the owner will only exercise its decision-making discretion in respect
        of bids that are materially compliant.  It also ensures that all contractors
        can be confident that their bids will receive fair consideration and be
        neither accepted nor rejected for arbitrary reasons.  In these respects,
        I consider that my conclusion protects the integrity of the tendering
      process.

[30]

What
        meaning, then, is to be given to the Discretion Clause?  In my view, the
        clause simply recognizes that the test for determining whether a tender
        is valid is one of substantial compliance rather than strict compliance.  The
        clause allows the Water District to accept tenders with minor irregularities
        or non-material defects.  This substantial compliance test is consistent
        with an objective analysis of whether Contract A has arisen:  see
Derby
      Holdings,
supra
¶34.

(ii)  Deficiencies in Grahams bid amounted
          to material non-compliance when assessed objectively

[31]

I
        would not interfere with the trial judges finding that the deficiencies
        in Grahams bid constituted material non-compliance with the terms of the
      instructions to tenderers.

[32]

Material
        is defined in the Concise Oxford Dictionary to be important, essential,
        relevant...concerned with the matter not the form of reasoning....  Blacks
        Law Dictionary, 7th ed. (West Group:  St. Paul, 1999) includes in the
        definition for material: of such a nature that knowledge of the item
        would affect
      a persons decision-making process; significant, essential.

[33]

This
        Court also considered the definition of materiality recently in
Inmet
        Mining Corp. v. Homestake Canada Inc.
, 2003 BCCA 610, [2003]
        B.C.J. No. 2588 ¶27.  In the context of determining disclosure obligations
        of a seller under a contract for purchase and sale of a gold mine, Levine
      J.A. held that a material fact is one where there is

...a substantial likelihood that disclosure of the omitted fact would
        have assumed actual significance in the deliberations of the reasonable
        purchaser, or would have been viewed by the reasonable purchaser as having
      significantly altered the total mix of information made available.

[34]

According
        to these definitions, in the context of the present case, material non-compliance
        will result where there is a failure to address an important or essential
        requirement of the tender documents, and where there is a substantial likelihood
        that the omission would have been significant in the deliberations of the
      owner in deciding which bid to select.

[35]

Grahams
        responses to requests for details of its proposed management of the hauling
        operation and mitigation of impact, and environmental protection plan,
        were not merely a matter of non-compliance in form.  They amounted to a
        perfunctory we will comply response to questions seeking detailed plans
        on substantive and important matters.  Among other deficiencies, Grahams
        response said nothing about the mitigation of impact to the residents of
        Nancy Greene Way with respect to noise, air emissions and road safety.  In
        addition, it includes absolutely no site specific information regarding
        an environmental protection plan, let alone the detailed five page outline
        as stipulated in the tender documents.  The other contractors expended
        considerable resources on meeting these requirements.  In these circumstances,
        I agree with the learned chambers judge that there was material non-compliance.  Grahams
        responses could not reasonably be said to conform in any material way
      to the requirements in Schedule 8.

V.  DISPOSITION

[36]

The
        learned chambers judge applied the correct test and properly concluded
        that the deficiencies in Grahams bid were material and therefore rendered
        it incapable of acceptance.  These are my reasons for dismissing this
      appeal.

The Honourable
Chief
      Justice Finch

I Agree:

The Honourable
Mr. Justice Mackenzie

I Agree:

The Honourable
Mr. Justice Thackray