COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Hlatky v. Royal Bank of Canada,

2013 BCCA 7

Date: 20130116

Docket:
CA040072

Between:

Kerry Norman
Hlatky, Roberta Phyllis Martin, Angelique May Hlatky,
The Attorney General of Canada, representing the interests of
Her Majesty the Queen in the right of Canada

Appellants

(Plaintiffs)

And

Royal Bank of
Canada and the
Department of Indian and Northern Affairs

Respondents

(Defendants)

Before:

The Honourable Madam Justice Bennett

(In Chambers)

On appeal from:  Supreme
Court of British Columbia, November 30, 2011
(
Hlatky v. Royal Bank of Canada
, Vancouver Registry H090886)

Appellant Appearing in Person:

K.N. Hlatky

Counsel for the Respondent

Royal Bank of Canada:

K.L. Carteri

Counsel for the Respondent Attorney General of Canada:

B. Reilly

Place and Date of Hearing:

Vancouver, British
  Columbia

December 19, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 16, 2013

Reasons
for Judgment of the Honourable

Madam Justice Bennett:

1.       Nature
of the application

[1]

This is an application by Kerry Norman Hlatky, Roberta Phyllis Martin
and Angelique May Hlatky (the Applicants) for an extension of time to bring
an application to review the Order of Madam Justice MacKenzie dated October 25,
2012, pursuant to s. 9(6) of the
Court of Appeal Act,
R.S.B.C. 1996,
c. 77 and Rule 34(1) of the
Court of Appeal Rules,
B.C. Reg. 297/2001.
MacKenzie J.A. dismissed their application for an extension of time to
apply for leave to appeal of the Order of Mr. Justice McEwan made on November 30,
2011.

[2]

In other words, this is an application for an extension of time to file
a review of an Order denying an extension of time to appeal the Order of McEwan J.,
who himself denied an extension of time to appeal the original substantive
order.

[3]

An application for review must be filed within seven days of the
decision.  This application was filed on November 23, 2012, several weeks
out of time.

[4]

The Attorney General of Canada seeks to have the Department of Indian
and Northern Affairs (the Department) removed as a respondent in this
appeal.  The Applicants apparently added the Department as a party unilaterally
at the appeal stage.

2.       Background and procedural history

[5]

These proceedings relate to a foreclosure matter started by the Royal
Bank of Canada (RBC) in 2009.  The Applicants mortgaged the property at issue
to RBC (the Property).  On September 17, 2009, Master Taylor issued an
Order Nisi of Foreclosure against the Property.  On April 8, 2010, Master
Tokarek made an Order granting conduct of sale to RBC.  The Applicants appealed
this Order.  This appeal was dismissed on April 20, 2010 by Mr. Justice
Groves.

[6]

RBC ran into considerable difficulty accessing the Property as the Applicants
refused to vacate it.  When removed by police, the Applicants would return.  RBC
required a number of appearances in the Supreme Court to effect the sale of the
Property, which was sold to a third party by the Order of Master Scarth made September 15,
2011.

[7]

Mr. Hlatky applied on October 26, 2011 for an extension of time to
appeal the original Order Nisi of Foreclosure.  McEwan J. heard and
dismissed that application on November 30, 2011.  On September 18,
2012, the Applicants filed a motion in this Court to extend time to appeal the Order
of McEwan J.

[8]

On October 25, 2012, MacKenzie J.A. delivered oral reasons
dismissing the application to extend time.  In those reasons, she stated the
following:

[1]        I have read the history of this matter. All I can
say on this matter is that in relation to an extension of time to file an appeal
of Mr. Justice McEwans order pronounced November 30, 2011, there is no
merit to the application. The reason for that is the property has been sold.
The appeal is moot. The dispute is over and there is nothing more to argue
about.

[2]        In terms of your claim that the Royal Bank of
Canada could only be the mortgagee for the house and not the land, the dispute
is over. The mortgage contract is over. It has been carried out. Mr. Hlatky
was the mortgagor. He applied for the mortgage, signed a contract and the
mortgage went into default. It was foreclosed upon and then by court order, the
property was sold.

[3]        If you have a claim
that says the mortgage was invalid because it was made on Native or Indian
land, and the contract could only have involved the house, this Court cannot
deal with the matter now. I have no jurisdiction to deal with it. This is a statutory
court that deals with appeals. You will have to make a separate land claim in
another court. It is unlikely that you would be successful with respect to that
piece of property because a mortgage contract is very specific.

[9]

On November 23, 2012, the Applicants filed a motion for extension of time
to vary or discharge the Order of MacKenzie J.A.

[10]

Shortly after the decision of MacKenzie J.A., the Applicants
attempted to file an application for leave to appeal against her Order in the
Supreme Court of Canada.  They were advised by the Registrar of that Court that
they needed to exhaust all remedies in this Court first.  This meant they
needed to seek a review of MacKenzie J.A.s Order by a division of this
Court.

3.       Position
of the parties

[11]

Mr. Hlatky filed one affidavit in support of his application.  It
was not sworn by him, but apparently sworn by a Mr. Steemas who has been
helping the Applicants.  I refused to permit Mr. Steemas to speak on
behalf of the Applicants because I discerned, from my reading of the
transcripts in previous proceedings, he has been disruptive and unhelpful.  I
eventually permitted Mr. Hlatkys friend, Mr. Popois, to sit at
counsel table and assist him.

[12]

The position of the Applicants is that RBC had no ability to sell the
land because the land was not the subject of the mortgage; only the house was
subject to the mortgage.  The Applicants also say that they did not know they
only had seven days to apply for a review of an order of a chambers judge.  Finally,
the Applicants note that they did take steps to appeal the decision to the
Supreme Court of Canada.

[13]

RBC submits that the test to review the decision of a chambers judge
requires the Applicants to show that MacKenzie J.A. made an error of law
or principle, or misconceived the facts.  It argues that she made no such error
in dismissing the Applicants motion for an extension of time to appeal the Order
of McEwan J.  MacKenzie J.A. rightly dismissed an application for an
extension of time on the basis that the appeal lacked any merit.

[14]

In RBCs summary of the litigation, it notes that there have been
several concurrent applications before the Supreme Court, along with two
proceedings before the Federal Court.  They add that there are two
applications, including this one, before the Court of Appeal.  In all of these
proceedings, RBC argues, the Applicants are seeking the same or similar relief
based on the same allegations, which may be summarized as follows:

1.         RBC
had no authority to sell the Property (despite the fact that RBC never owned or
sold the Property);

2.         RBC
and its solicitors failed to produce documents related to the Property; and

3.         the Order Nisi, the Order for
Conduct of the Sale and the Order Approving Sale in the Foreclosure proceedings
were unlawful.

[15]

RBC alleges that in relation to the same foreclosure proceedings,
various courts have dismissed the Applicants applications on at least six
occasions.  Each time they were dismissed because the above-mentioned
allegations were raised without cause.  RBC further alleges that the Applicants
have repeatedly disobeyed court orders, requiring additional submissions and
applications from RBC.

[16]

RBC submits that they are prejudiced by the cost of this protracted litigation.
In addition, it submits that what the Applicants are really seeking is a
resolution by way of a land claim, which has nothing to do with RBC.  It
submits that if the Applicants wish to pursue their claim against the Property,
they should bring a proper action by way of a land claim.

[17]

In sum, RBC seeks (1) an order that the motion for appeal of Madam
Justice MacKenzies Order be dismissed; and (2) costs of this
application.

[18]

RBC also sought an order declaring the applicants vexatious litigants.  I
did not hear any submissions on this issue as there was no motion before the
court seeking such a remedy.

4.       Discussion

a.       Application
to extend time to review a decision of a justice

[19]

Pursuant to s. 9(6) of the
Court of Appeal Act
, a party may
apply for a review of a decision of a justice in chambers.  Rule 34 of the
Court of Appeal Rules
governs applications under this section.  Under
that rule, time has run out for the Applicants to file for a review.  In order
to obtain a review, they must obtain an extension of time to file the proper
forms and supporting documents.  Section 10(1) gives a justice sitting in
chambers the authority to extend time.

[20]

The criteria in an application for an extension
of time were set out in
Davies v. Canadian Imperial Bank of Commerce
(1987),
15 B.C.L.R. (2d) 256 at 259-260 (C.A.), and may be summarized as follows:

1)         Was there a bona fide intention
to appeal?

2)         When were the respondents
informed of the intention?

3)         Would the respondents be unduly
prejudiced by an extension of time?

4)         Is there merit in the appeal?

5)         Is it
in the interest of justice that an extension be granted?

[21]

The fifth question encompasses the other four
questions and states the decisive question (
Davies
at 260).  This
decisiveness has been repeatedly affirmed:
Kedia International Inc. v. Royal
Bank of Canada,

2008 BCCA 305 at para. 8 (Chiasson J.A. in
Chambers).

[22]

The burden is on the applicant to establish that the
criteria are met (see
Kedia
at para. 8
).

[23]

As RBCs primary objections to the extension of time are aimed at the
merit of the case and the interests of justice, I propose only to address these
issues.

[24]

MacKenzie J.A. found no merit in the appeal.  I have reviewed all
of the material that was before her.  I do not differ from her conclusion.  The
Property has been sold to a third party.  The Applicants cannot obtain what
they desire in this litigation.  This litigation is about failure to pay a debt
to RBC, not about a land claim.

[25]

In my respectful view, it would not be in the interests of justice to
grant an extension of time to file for a review, given the lack of merit in the
substance of the appeal.

[26]

I would dismiss the application for an extension of time to file a
review of the Order of MacKenzie J.A.

[27]

The Applicants have seven days from the issuance of these reasons to
apply to review my order.

[28]

RBC sought costs of this application.  This is the first time RBC has
sought costs throughout the litigation.  It is appropriate to order costs in a
fixed amount to avoid further litigation.  I order costs of $1,000 payable to
RBC by the Applicants forthwith.

b.       Order sought
by the Attorney General of Canada

[29]

The Attorney General of Canada was a party in the foreclosure
proceedings as a respondent (along with the Applicants) because it had
registered charges for taxes against Mr. Hlatkys interest in the Property.

[30]

When the appeal was filed, the Applicants unilaterally added the
Department of Indian and Northern Affairs to the style of cause.  The Attorney
General, on behalf of the Department, seeks to remove the latter from the style
of cause as a respondent.  It submits that the Department cannot be sued in
that name in any event pursuant to s. 23(2) of
the Crown Liability and
Proceedings Act
, R.S.C. 1985, c. C-50.

[31]

It seems the Applicants added the Department in a faint hope to
transform the litigation into a land claim.  Again, this is not the proper
litigation for that issue.  In the circumstances before this Court, it was not
proper to add the Department.

[32]

Although there is no separate application to remove the Department,
there was never an application to add it.  In my view, the Attorney General of Canada
is entitled to its order.  It would be a waste of time and money to require a
separate application to be made in order to obtain a remedy.

[33]

Therefore, I order that the Department of Indian and Northern Affairs be
deleted from the style of cause as a respondent, as it is not properly named as
a respondent in the action.

5.       Summary and disposition

[34]

The application to extend the time to file an application for review
from the decision of MacKenzie J.A. is dismissed.  The request to remove
the Department of Indian and Northern Affairs from the style of cause as a
respondent is granted.  The Applicants will pay costs to RBC in the amount of
$1,000.

The Honourable Madam Justice Bennett


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Lee v. Jarvie,

2013 BCCA 17

Date: 20130116

Docket: CA040327

Between:

Stanley You Won
Lee aka Stanley Lee

Appellant

(Plaintiff)

And

Ruth Eleanor
Jarvie and Rosana Ng

Respondents

(Defendants)

Before:

The Honourable Madam Justice Newbury

(In Chambers)

On appeal from: Supreme
Court of British Columbia, October 16, 2012
(
Lee v. Jarvie
, 2012 BCSC 1521, New Westminster Docket No. M94690)

Counsel for the Appellant:

T. Spraggs
K. Gardner

Counsel for the Respondent:

C. Godwin

Place and Date of Hearing:

Vancouver, British
  Columbia

January 4, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 16, 2013

Reasons for Judgment of the
Honourable

Madam Justice Newbury:

[1]

The plaintiff Mr. Lee seeks leave to appeal a costs judgment
released after the trial of a personal injury action.  The plaintiff had sought
 the following damages at trial:

Non-Pecuniary Damages

$90,000
‒
$130,000

Loss of Past Income

$92,000
‒
$107,000

Loss of Future Earning
  Capacity

$400,000
‒
$650,000

Loss of Housekeeping
  Capacity

$10,000
‒
$12,000

Cost of Future Care

$46,000
‒
$104,150

Special Damages

$1,722

The trial judges award of
$50,200 (see 2010 BCSC 1852) comprised the following:

Non-Pecuniary Damages

$40,000

Loss of Past Income

$1,650

Loss of Future Earning
  Capacity

$0

Loss of Housekeeping
  Capacity

$0

Cost of Future Care

$7,500

Special Damages

$1,050

[2]

Submissions regarding costs were heard on June 30, 2011 and the
Courts reasons were released on October 16, 2012.  Those reasons, indexed as
2012 BCSC 1521, are lengthy and contain a review of the leading cases of this
court and the trial court dealing with the apportionment of costs in cases
where success has been mixed.  The trial judge disagreed with the plaintiffs
argument that he had been substantially successful at trial.  In his analysis:

In my view, the plaintiff was not substantially successful
at trial. The defendants admitted liability. They also agreed with the
plaintiffs claim for his actual past wage losses. The main dispute between the
parties and the principal focus of the 13 days of evidence was on the
plaintiffs claims for loss of past opportunity to earn wages, loss of future
earning capacity, and cost of future care. I found the plaintiffs claim on the
first two of these issues failed completely and there was divided success on
the third.

In my opinion, the trial of the
plaintiffs action resulted in divided success. I agree with the defendants
submission that given the divided success and the clearly distinguishable
issues upon which they were successful, and the fact that the trial was
prolonged by the claimants pursuit of claims that were unsupported by the
evidence, the plaintiffs case is one where an apportionment of costs is worthy
of consideration.  [At paras. 39-40.]

[3]

The trial judge reviewed what had transpired at trial with respect to
each of the heads of claimed damages, noting that the evidence presented on
past wage loss was so weak there was no option for the court but to dismiss
it and that the claim was grossly inflated and contributed to an unnecessary
protraction of the trial; that the claim  for loss of future earning capacity was
exaggerated and unsupported by the evidence; that the claim for costs of
future care was an unrealistically inflated one that unnecessarily prolonged
and complicated this proceeding; and that overall, the protracted nature of
the litigation was mainly attributable to the plaintiff.  Having concluded that
an apportionment of the costs would be in the interests of justice, he noted
the two methods of apportioning costs discussed by Legg J. (as he then was) in
Waterhouse
v. Fedor
[1984] 13 B.C.L.R. (2d) 186:

I also agree that two methods may
be used in determining the degree of success. One method involves the judge
assessing a percentage figure to the relative success of the parties. The other
method involves determining the number of days spent in trial on unsuccessful
issues in proportion to the time spent on successful issues. Either way, the
relative success of the parties is determined and each party is entitled to
that portion of his own costs, which are then set-off against the other, and
the difference, if any, is paid to the party in whose favour the difference
lies.  [At 190]

[4]

The judge calculated that both approaches would yield the same result.
He explained:

In the present case, either approach to the apportionment of
costs articulated in
Waterhouse
will yield the same result. In my
opinion, approximately seven out of the 13 days of trial can be attributed to
the evidence and arguments addressing the plaintiffs claims for loss of past
opportunity to earn wages, loss of future earning capacity and cost of future
care. As I am of the view that success at trial was divided, the fair and just
result would be to apportion costs on a 50/50 basis. That is, the plaintiff
will be entitled to 50% of his costs and the defendants will be entitled to 50%
of their costs, both to be set-off one against the other.

Moreover, I am denying the
plaintiff his disbursements associated with the evidence of Mr. Worthington-White,
Ms. Quastel and Mr. Benning. Although I had significant difficulties
with the evidence of Dr. Lee, Dr. Kokan, and Dr. Hershler,
particularly with respect to the plaintiffs claims for loss of future earning
capacity, their evidence was marginally helpful regarding the plaintiffs claim
for general damages and therefore I will grant him 15% of his disbursements
regarding their evidence.  [At paras. 77-78.]

[5]

The plaintiff seeks leave to appeal what he refers to in his written
argument as points in issue  whether the Court erred in granting the
plaintiff only 50% of his costs and granting the defendants 50% of their costs,
to be set off; whether it erred in denying the plaintiff all of his
disbursements relating to two of the experts; whether it erred in granting the
plaintiff only 15% of his disbursements relating to two other experts; and
whether it erred in granting the defendants their costs of the costs hearing.
The plaintiff contends that the point on appeal is significant to the
practice and to the parties, but with one exception, he does not suggest that any
particular reasoning of the trial judge was erroneous.  It appears his primary
submission is that as a matter of law, the
result
was such that the
trial judges discretion was not exercised judicially and that the plaintiffs
victory may be only a pyrrhic one once the amounts of costs have been
determined.

[6]

The one issue of law advanced by the plaintiff is that there is an
inconsistency in the jurisprudence of the British Columbia Supreme Court as to
whether heads of damages can be considered as discrete issues on which
success or failure may be judged and on which costs may be apportioned.  On
this point, Mr. Spraggs cited
Sutherland v. Canada (Attorney General)
, 2008
BCCA 27 at para. 31, where this Court noted the test for the
apportionment of costs under former Rule 57(15).  With respect, I do not read
Sutherland
as disclosing any particular conflict in the jurisprudence.  The question
of what constitutes a particular issue or part of the proceeding within the
meaning of the former Rule 57(15) was debated some years ago in
British
Columbia v. Worthington (Canada) Inc.
(1988) 32 C.P.C. (2d) 166 (B.C.C.A.),
but in my view, the jurisprudence has for some time considered heads of damages
to be issues or parts of the proceeding within the meaning of former
Supreme Court Rule 57(15), on the basis of which costs could be apportioned in
appropriate cases.

[7]

The new rule, however, uses very different terminology.  Rule 14-1(15) of
the Supreme Court Civil Rules now states:

The court may award costs

(a)  of a proceeding,

(b)  that relate to
some
particular application, step or matter in or related to the proceeding
, or

(c)  except so far as they relate
to some particular application, step or matter in or related to the proceeding

and in awarding those costs the
court may fix the amount of costs, including the amount of disbursements.
[Emphasis added.]

The trial judge stated at
the beginning of his reasons (paras. 8-10) that he saw no meaningful
difference between former Rule 57 and the new Rule 14-1.  It was because of
this that he referred to this courts decision in
Sutherland
and was
guided by the test articulated at para. 31 of that case by Chief Justice
Finch:

The test for the apportionment of costs under Rule 57(15) can
be set out as follows:

(1)        the party seeking
apportionment must establish that there are
separate and discrete issues
upon which the ultimately unsuccessful party succeeded at trial;

(2)        there must be a basis on
which the trial judge can identify the time attributable to the trial of these
separate issues;

(3)        it must be shown that
apportionment would effect a just result.

[Emphasis added.]

[8]

It does not appear that either party before the Court in the costs
hearing in the case at bar argued that Rule 14-1(15) differed in any material
respect from its predecessor, and as has been seen, none of the grounds of
appeal proposed to be argued on appeal refers to the wording or effect of the
new Rule as something distinct from the former one.  I note that  Madame
Justice Dillon  and Mr. Gordon Turriff,  the authors of the
British Columbia
Annual Practice
(2013), say this at the beginning of their annotation of
Rule 14-1(15):

Quaere
whether matter is
intended to include issue, one of the keyswords used in Rule 57(15), the
predecessor to this subrule.  The authors make that assumption.  They also
assume that step is used as a synonym for part, a second keyword in the
predecessor subrule.  If the authors assumptions are incorrect, many of the
annotations included under this subrule may no longer be useful.

[9]

It seems to me that the wording of the new Rule is sufficiently
different from the old as to warrant consideration by this court, even though this
point was not raised by the applicant for leave in this case. Arguably, the
word matter is to be interpreted
ejusdem generis
with application
and step-- in which  case the jurisprudence under the former Rules may no
longer  be correct. This point is of importance to the practice and to the law
generally.  Accordingly, I grant leave to Mr. Lee to appeal on the general
question (which may well be approached as encompassing several sub-questions) of
whether, given the wording of Rule 14-1(15), the trial judge erred in
apportioning and making the order as to costs that he did.

The
Honourable Madam Justice Newbury


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

United States v. Ibrahim,

2013 BCCA 165

Date: 20130116

Docket: CA039987

Between:

Attorney General
of Canada
on behalf of the United States of America

Respondent

And

Ali Ibrahim

Appellant

Correction: The front
page of the judgment was corrected on July 17, 2013.

Before:

The Honourable Madam Justice Garson

(In Chambers)

On appeal from: Supreme
Court of British Columbia, June 6, 2012
(
U.S.A. v. Ibrahim
, 2012 BCSC 916, Vancouver Registry No. 24593)

Oral Reasons for Judgment

Counsel for the Appellant:

December 21, 2012 -
  G. Botting

January 11, 2013 - F.
  Arbabi

Counsel for the Respondent:

J.M.L. Gibb-Carsley

Place and Date of Hearing:

Vancouver, British
  Columbia

December 21, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 16, 2013

GARSON J.A.
:

1.         Nature of the application

[1]

Mr. Ibrahim applies for judicial interim release pending appeal,
pursuant to s. 20 of the
Extradition Act
, S.C. 1999, c. 18, and
s. 679 of the
Criminal Code
, R.S.C. 1985, c. C-46. This is Mr. Ibrahims
third application for release in this Court. He submits there has been a
material change in circumstance that warrants this further hearing.

2.         Procedural history

[2]

The original charges brought against Mr. Ibrahim relate to tax
evasion and immigration fraud in the United States. In 1994, Mr. Ibrahim
pleaded guilty to one count of immigration fraud and was sentenced to three
years probation with conditions. In 1996, he breached those conditions and in
1997 his probation was revoked. The USA sought Mr. Ibrahims extradition
for the imposition of a sentence. Mr. Ibrahim was arrested in May 2008 on
a warrant issued under the
Extradition Act
. He was released on bail for
the duration of the Supreme Court proceeding. He breached his curfew once in a
fairly minor way in August 2011.

[3]

The lengthy history of this matter, as well as the charges Mr. Ibrahim
is facing are set out in detail by Justice Ehrcke, in the court below:
U.S.A.
v. Ibrahim
, 2012 BCSC 1213 at paras. 910.

[4]

Mr. Ibrahim appealed the June 6, 2012, decision of Justice Ehrcke,
and applied in this court for judicial interim release. On June 25, 2012, Madam
Justice MacKenzie dismissed his application for bail: 2012 BCCA 278.

[5]

Mr. Ibrahim brought a successive application before MacKenzie J.A.
on August 22, 2012, based on a material change in circumstances. The
material change asserted by Mr. Ibrahim included the availability of an
additional surety and an increased pledge. Mr. Ibrahim also claimed that
he had additional affidavit materials relevant to the merits of his appeal that
had not been before MacKenzie J.A. in June at his first application for
release. She concluded that the material changes alleged by Mr. Ibrahim
were insufficient to meet the threshold required for granting interim judicial
release, and she dismissed the application: 2012 BCCA 363.

[6]

Mr. Ibrahim appealed MacKenzie J.A.s order to Finch C.J.B.C.
sitting in chambers, pursuant to s. 680 of the
Criminal Code
. Chief
Justice Finch dismissed the appeal, stating he had no jurisdiction to give a
direction under s. 680 in an extradition proceeding, per
Thailand v.
Saxena
, 2006 BCCA 147: 2012 BCCA 438.

[7]

Mr. Ibrahim has now re-applied for judicial release, citing a further
material change in circumstances.

[8]

Those asserted changed circumstances relate primarily to his health. In
support of his application, he has attached to his affidavit the medical report
of Dr. Hasham. Dr. Hasham reports that Mr. Ibrahim had a number
of medical conditions prior to his incarceration. They included: major
depression, for which he was treated and was described as stable;
osteoarthritis and rheumatoid arthritis, which had required referral to a specialist,
after which his symptoms had improved; degenerative spinal disc disease that
required referral to a specialist and for which he is said to be waitlisted for
surgery; also urological problems; and sleep apnea, for which he was using a
CPAP machine. Dr. Hasham visited Mr. Ibrahim in the detention
facility. He noted a worsening of all his pre-existing medical conditions.
Dr. Hashams physical examination of Mr. Ibrahim, noted at page 3 of
his report, was essentially normal. But in Dr. Hashams description of his
mental status examination, he found Mr. Ibrahims memory and concentration
to be significantly impaired. His mini-mental status exam was 23 out of 30.
This would fall into the range of mild dementia. Dr. Hasham found Mr. Ibrahim
to be severely depressed according to a Personal Health Questionnaire he
administered to Mr. Ibrahim.

[9]

In summary Dr. Hasham states:

Mr. Ibrahim
is a 56 year old man who has been in detention for the past six months. He is
awaiting extradition to the USA to respond to charges that took place about 20
years ago. While in detention, this man's mental health as well as physical
health has deteriorated significantly. He has become severely depressed which
has affected his mood as well as his cognition. He needs urgent treatment for
this condition as his general wellbeing depends on this. He requires intense
therapy through a Mental Wellness Health Clinic, such as the one provided by
the Burnaby Mental Wellness Program. If this is not provided in a timely
manner, his mental health and therefore his physical health is likely to
deteriorate. He also needs urgent attention to his sleep apnea problem by
providing him with a CPAP machine to reduce apneic spells during his sleep and
therefore reducing the risk of cardiac complications. Other issues that need
attention are include [sic] surgery for disc herniation in the lumbar spine,
treatment of his urological symptoms, corrective lenses to improve his vision
and assessment of his hearing loss. He may also need further investigations to
assess the recurrent abdominal pains and a new tremor which he has recently
developed.

[10]

After the December 21, 2012, hearing of this matter before me, Mr. Ibrahim
sought leave to tender two further affidavits and make further submissions. I
received those affidavits and heard further submissions on January 11,
2013. I advised counsel that I would rule on the question of whether I should
admit the additional evidence at the same time that I ruled on the substance of
the application for release. As one of the affidavits is the affidavit of Mr. Botting,
his counsel on December 21, 2012, Mr. Ibrahim retained new counsel, Mr. Arbibi,
to appear for him on January 11, 2013.

[11]

Those further materials address three issues.

[12]

The first issue is the non-disclosure of the relationship between Mr. Ibrahim
and his potential employer. In the new affidavit, Mr. Botting says that it
was his omission, not his clients, that led to the failure to disclose that
the employment offer was from Mr. Ibrahims sister.

[13]

Second, the new materials address in further detail Mr. Ibrahims
complaints about the prison conditions he is experiencing. He describes a
sexual assault, other physical threats, and the fact that he witnessed other
criminal activity and is now in danger. He has not disclosed any of this to the
prison authorities because he does not wish to be placed in segregated
protective custody.

[14]

Finally, the new material offers some further details about the asserted
lack of medical treatment. Mr. Ibrahim says he suffered a stroke on the
night of December 5, 2012. He was taken to hospital and kept overnight. He
says a CT scan taken that evening was normal, although he has some remaining
residual numbness in the toes of his left foot and in his face. No medical records
of this incident have been provided.

[15]

Mr. Ibrahim also says in his new affidavit that he has requested
access to a Mental Wellness program, but that no such program is available in
the prison. Mr. Ibrahim attaches as exhibits to his latest affidavit a series
of requests by him to the prison authorities for medical services. In each
case, the prison health services confirm that Mr. Ibrahim will be booked
to see the next available doctor. On October 16, 2012, he requested an
appointment with a prison psychiatrist, Dr. Murphy, to discuss his
depression and anxiety. The response was that he would be booked for the next
available appointment with a psychologist, as a medical referral is required to
see a psychiatrist. However, it is apparent from Mr. Ibrahims affidavit
that he has, on at least one occasion, met with Dr. Murphy. Mr. Ibrahims
affidavit is silent on the question of whether he was offered, or attended, an
appointment with a psychologist.

3.         Position
of the parties

[16]

Mr. Ibrahim asserts that his appeal is not frivolous, on the basis
that the issues relating to his 1994 probation have already been dealt with. He
says he has completed his sentence.

[17]

On the question of whether he will surrender himself into custody, Mr. Ibrahim
states that while awaiting his committal hearing he was released on bail.
During that time he generally did not breach conditions and appeared as
required, though he admits to one minor breach. Mr. Ibrahim also notes
that he has strong family and community ties. He says that his mother will
continue to be his surety if he is released. Mr. Ibrahim also says that
his health is a consideration when evaluating his risk of absconding.

[18]

Mr. Ibrahim says that the material changes in circumstances are
such that it is in the public interest he be released.

[19]

The Attorney General contends that there has been no material change in
circumstances. The Attorney General argues that Mr. Ibrahims primary
medical conditions are chronic and date back to at least 2009. Further, there
is no evidence before the Court that the pre-trial detention facility at which Mr. Ibrahim
is detained cannot provide the necessary medical treatment. The Attorney
General also argues that Mr. Ibrahim has failed to demonstrate how his
health issues materially change the specific factors found by Justice MacKenzie
to weigh in favour of the enforceability of the committal order over its
reviewability. The Attorney General says that the offer of employment contained
in a letter placed before the court on this application is not a change in
circumstance and seems to contradict his asserted deteriorating cognitive
condition. Alternatively it is argued that even if a material change threshold
has been demonstrated, Mr. Ibrahim has still failed to discharge the onus
on him under s. 679(3).

4.         Applicable legal test

[20]

Mr. Ibrahim applies for release pending appeal under s. 679(3)
of the
Criminal Code
.

[21]

Section 679(3) provides as follows:

(3)  In the case of an appeal referred to in
paragraph (1)(
a
) or (
c
), the judge of the court of appeal may
order that the appellant be released pending the determination of his appeal if
the appellant establishes that

(
a
) the appeal or
application for leave to appeal is not frivolous;

(
b
) he will surrender
himself into custody in accordance with the terms of the order; and

(
c
) his detention is not necessary in the public
interest.

[22]

This Court has jurisdiction to entertain subsequent applications for
bail pursuant to a purposive interpretation of s. 679, but only on the
basis of a material change in circumstances:
R. v. Wilder
,
2006 BCCA 290, 227 B.C.A.C. 310;
R. v. Daniels
(1997), 35 O.R.
(3d) 737, 119 C.C.C. (3d) 413 (C.A.). A material change is one capable of
leading to a different assessment of one or more of the factors set out in
s. 679(3):
Italy v. Seifert
, 2008 BCCA 25, 250 B.C.A.C. 66. Mr. Ibrahim
does not specify how his change in circumstances is relevant to any particular
factor in s. 679(3). I shall consider each in turn.

5.         Discussion

(a)       Merits
of appeal

[23]

On a subsequent bail application, the first justices evaluation of the merits
should be respected by a justice hearing further applications in chambers: see,
for example,
Sekhon v. Armstrong
, 2003 BCCA 318 at paras. 2728,
183 B.C.A.C. 137, and
J.(J.) v. Coquitlam School District No. 43
,
2010 BCCA 182 at para. 4, 318 D.L.R. (4th) 495.

[24]

Justice MacKenzie noted in her reasons on the first bail hearing that
while Mr. Ibrahims grounds of appeal were not frivolous, the appeal was
weak at best on all grounds. The material change in circumstances alleged here
relates to Mr. Ibrahims health and could not be construed as a material
change that would form the basis of a different conclusion regarding the
strength of the appeal.

(b)       Risk
to abscond

[25]

Regarding Mr. Ibrahims assurances that he will surrender himself
when required, MacKenzie J.A. expressed serious concerns that led her to
conclude Mr. Ibrahim could not be relied upon to meet the conditions of
bail.

[26]

Mr. Ibrahims history documented in earlier proceedings includes
the following points of concern. In the original extradition matter (2009 BCSC
1090), Halfyard J. commented that during his probation in the late 90s, Mr. Ibrahim
travelled to India and then did not return to the United States as was required
by the terms of his probation. At para. 8 of his reasons, Halfyard J.
commented:

In late August 1996, Mr. Ibrahim
left the United States and travelled to India, with the permission of his
probation officer. He was required to return to the United States not later
than October 31, 1996, and to report to the probation officer on
November 1, 1996. He did not return to the United States, or report
to the probation officer, as required. He changed his name. It appears that Mr. Ibrahim
was in India from the fall of 1996 until about late1997, when he moved to
Australia. He deposes that he moved from Australia to Canada in June 2005.

[27]

Justice Halfyard also noted Mr. Ibrahims explanation for changing
his name, and his reasons for holding multiple passports, at para. 12:

Mr. Ibrahims explanation
for changing his name was, in substance, to enable him to work in India. He
said that he had been born in India, but had lived with his parents in
Pakistan, and had been issued a Pakistani passport which mistakenly stated that
he was born in Pakistan, which made him ineligible to work in India. His
Canadian passport also stated that he was born in Pakistan, and so he applied
for an Indian passport using a different name, but one which was connected with
his family.

[28]

In Justice MacKenzies June 25 reasons, she commented on Justice
Halfyards observations regarding Mr. Ibrahims use of false identities.
In her discussion of Mr. Ibrahims willingness to surrender into custody,
at para. 31 of her judgment, she stated:

Mr. Justice Halfyard  observed
that under cross-examination, the applicant admitted that he had not only used
three aliases at various times, and had used a false name in applying for an
Indian passport issued in August 2000, but had also changed the names and dates
of birth of his wife and children. The applicant used the same false name in
his application for an Australian passport issued in June 2004. Although he provided
his correct name in applying for a Canadian passport issued in February 2005,
he admitted to making the false statement that he had been born in Karachi,
Pakistan.

[29]

In Justice MacKenzies August 31 reasons, following Mr. Ibrahims
change in circumstances application, she again commented on Mr. Ibrahims
familiarity with aliases at para. 22:

To address my concern about his
extensive familiarity with using aliases for himself and his family, Mr. Ibrahim
deposes that he gave his real name and address to American authorities when his
wife abducted his children to the USA and has lived under his own name in
Canada. However, this evidence does not address or materially change the
evidence of Mr. Ibrahims prior use of aliases. Mr. Ibrahim lived
under false identities for years. Aspects of this conduct are also described in
the transcript of the bail hearing before Mr. Justice Halfyard on May 21,
2008, provided by Mr. Ibrahim on this application.

[30]

MacKenzie J.A. concluded (at paras. 40 and 41, 2012 BCCA 278):

[40]      I recognize that most of the instances of deceit
related by the AG occurred prior to the four-year period that the applicant was
on bail, which passed largely without incident. However, the cumulative effect
of the following circumstances leaves me in a state of doubt regarding the
applicant's willingness to abide by an order of the Court requiring his
surrender into custody: the applicant's failure to return to the USA as
required after his trip to India; the fact that his extradition is sought, in part,
to impose sentence for a crime for which he has already pleaded guilty and been
convicted; his extensive familiarity with the use of aliases for himself and
his family, employed at his convenience; the finding by Halfyard J. that he was
not a credible witness; and the investigation into his failure to declare any
income earned as required for receipt of income assistance benefits, which I
agree provides further evidence of a pattern of dishonesty.

[41]      I further view the
enhanced risk of flight in the aftermath of the extradition order, together
with Canada's international obligations in extradition proceedings that require
the Court to limit the assumption of risk of non-appearance more severely than
might otherwise be acceptable in domestic proceedings, to be significant
considerations in the circumstances of this case. In so commenting, I am aware
that the escalation of risk is not an insurmountable obstacle to securing bail:
Seifert v. Italy,
2003 BCCA 690, 200 B.C.A.C. 4 at para. 13
(Chambers), Esson J.A. However, given the cumulative effect of the
circumstances listed above, I simply cannot conclude that the applicant's word
is sufficiently reliable for the Court to assume the risk that he will
surrender into custody as required.

[31]

The material change in circumstance alleged on this application is Mr. Ibrahims
deteriorating health, as outlined in Dr. Hashams report, and his concerns
for his safety within the prison system.

[32]

Although, health
may
be a consideration in determining an
individuals risk of absconding:
Italy v. Seifert
, 2007 BCCA 420, 246
B.C.A.C. 69, here, Mr. Ibrahims health issues are not, in my view,
relevant to the assessment of his reliability to surrender, one way or the
other.

[33]

On this application Mr. Ibrahim also presented evidence of a new
offer of employment available to him, if he is released from custody. He states
in his first affidavit on this application that he has secured part-time
employment commencing within a week of his release. He produced a letter from
the proposed employer. He did not reveal that the proposed employer was his
sister. This fact was drawn to the courts attention by counsel for the
Attorney General. (I note as an aside that the responsibilities required of him
in this prospective employment as an information technology recruitment
consultant seem somewhat inconsistent with his complaints of deteriorating
mental faculties.)

[34]

The omission to disclose that the employment offer was made by his
sister could be relevant to questions of his truthfulness. That in turn may be
relevant to the assessment of the risk to abscond. Mr. Bottings
explanation provided in his affidavit filed on January 11, 2013, is that
the failure to disclose the familial relationship with the potential employer
was his own error. Mr. Ibrahim argues that this should not be a factor
assessed against him. It is a troubling omission but as I decide this
application on other grounds it is unnecessary to comment further on this
aspect of the evidence.

[35]

I conclude generally that there is no material change in circumstances
that is relevant to the assessment of his risk to abscond as assessed by Madam
Justice MacKenzie.

[36]

As Mr. Ibrahims health concerns are not ones that would lead to a
different assessment of his assurance that he will surrender himself into
custody as required, or his willingness to comply with the conditions of his
bail than the assessment made by MacKenzie J.A., I turn next to the third
factor.

(c)       Detention
not necessary in the public interest

[37]

In
Wilder
at paras. 810, Justice Donald stated that health
concerns may be of relevance to the public interest factor, although he did not
accept that that was so in the
Wilder
case. (See, however:
R. v. Michel
(1996), 72 B.C.A.C. 237 (Proudfoot J.A. in chambers);
R. v. Clouden
,
2011 ABCA 262 (in chambers).)

[38]

In a very general way, I would characterize Mr. Ibrahims
submissions as one asserting hardship owing to the ill effects of imprisonment
on his health.

[39]

The question in this case is whether Mr. Ibrahims health is a
material change in his circumstances and if so, whether it would alter the
reviewability/enforceability assessment of MacKenzie J.A.

[40]

The Attorney General drew to the courts attention a medical report from
2009 in which Mr. Ibrahim complained of the same or similar symptoms now
exhibited, including dementia. Thus, it would seem that his most significant
health complaint of severe depression/dementia is one of long duration.

[41]

Other than Dr. Hashams statement that he does not believe the
treatment he recommends is available in the correctional facility, there is no
evidence that Mr. Ibrahim is unable to access appropriate medical
treatment.

[42]

In summary, it is my view that the circumstances alleged by Mr. Ibrahim
do not address the concerns that led Justice MacKenzie to initially deny him interim
release. Further, although the medical conditions alleged by Mr. Ibrahim
could be serious if left untreated, Mr. Ibrahim has not provided evidence other
than Dr. Hashams unsupported opinion that appropriate treatment is
unavailable to him while he is incarcerated. To the contrary, his new affidavit
would indicate that he is receiving necessary medical care including an
emergency admission to hospital, and referral to a psychologist.

[43]

Mr. Ibrahims concerns about his safety and well being within the
prison system are questions that are within the control of the prison system
and not properly before this court on an application for release. The evidence concerning
the conditions in prison do not demonstrate hardship that is sufficient to lead
to the conclusion that it is in the public interest that Mr. Ibrahim be
released.

6.         Disposition

[44]

I would grant leave to introduce the new evidence tendered on January 11,
2013, and dismiss this application.

The Honourable Madam Justice Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Boyd,

2013 BCCA 19

Date: 20130117

Docket:
CA039172

Between:

Regina

Appellant

And

Craig Thomas Boyd

Respondent

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hall

The Honourable Madam Justice D. Smith

On appeal from:
Provincial Court of British Columbia, June 13, 2011
(
R. v. Boyd
, 2011 BCPC 137, Duncan Registry 32132)

Counsel for the Appellant:

W.P. Riley

Counsel for the Respondent:

R.L. Neary

Place and Date of Hearing:

Victoria, British
  Columbia

October 24, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 17, 2013

Written Reasons by:

The Honourable Mr. Justice Hall

Concurred in by:

The Honourable Madam Justice Newbury

The Honourable Madam Justice D. Smith

Reasons
for Judgment of the Honourable Mr. Justice Hall:

[1]

The Crown appellant appeals from a decision of the Honourable Judge Wood
pronounced June 13, 2011.  In that decision, the learned judge ruled
inadmissible as evidence a plastic bag containing four smaller plastic baggies
of cocaine.  The bag had been seized by a police officer from the respondent,
Craig Boyd, on December 31, 2009.  The drugs had been discovered following
a search of Mr. Boyds person incidental to his arrest.  Mr. Boyd was
charged with possession of cocaine for the purpose of trafficking.  The ruling of
the judge resulted in Mr. Boyds acquittal.

[2]

Some background facts of the case are conveniently set forth in the
reasons of the judge:

[3]        On December 31, 2009, officers of the local RCMP
detachment were conducting a road block screening for impaired drivers on King
George Road at the intersection of South Shore Road in Lake Cowichan.  At 19:10 hrs.
Const. Cranmer stopped a car driven by Mr. Boyd who was the lone occupant
of the vehicle.

[4]        Const. Cranmer approached and stood next to the
open drivers door window.  He asked Mr. Boyd if he had had anything to drink
that evening.  The officer was, to use his words, looking for the possible
odour of liquor.  With what he described as the first breath he took in he
noted the smell of freshly burnt marihuana.  He immediately advised Mr. Boyd
that he was under arrest for possession of marihuana.

[5]        The officer testified
that at that time he had had several occasions to smell burnt marihuana which
he described as a very distinctive smell, different from vegetative marihuana.  He
characterized the odour on this occasion as strong, leading him to believe it
had been smoked within 15 minutes prior to the stop.

[3]

The police officer also stated in his evidence that he had conducted at
least 30 investigations where the odour of burnt or burning marihuana was
detected by myself and Id made many drug seizures, finding marihuana and
contaminated paraphernalia incidental to arrest at those traffic stops.

[4]

At a trial held over a series of dates in the winter and spring of 2011,
a
voir

dire
was conducted to determine whether the search of
Mr. Boyd was unreasonable and in violation of his rights under s. 8
of the
Canadian

Charter of Rights and Freedoms
.  The judge noted
in his reasons that the Crown relies only on the decision of Const. Cranmer
to arrest Mr. Boyd based upon that officers conclusion that he smelled
burnt marihuana when standing at the open window of the latters car.

[5]

Mr. Boyd had been arrested for possession of marihuana.  Having
regard to the circumstances of the case (smell only emanating from the vehicle),
it is common ground that the offence, if any, could only amount to an offence
punishable on summary conviction.  This makes applicable the following
provision of the
Criminal Code,
R.S.C. 1985, c. C-47, which defines
the powers of a peace officer to arrest:

495. (1) A peace officer may
arrest without warrant

...

(b)  a
person whom he finds committing a criminal offence;

...

[6]

As the Crown notes in its factum, there may be some debate in the cases
as to whether the power to arrest exists only when an officer sees an offence
being committed or observes facts from which an inference may be drawn that an
offence is being committed.  It would be well to avoid undue casuistry in this
area and it seems to me that a peace officer could legitimately arrest a person
if it is
apparent
that an offence is being committed by such person.  This
requirement has both subjective and objective components.  A peace officer exercising
the arrest power must provide some sensible reason for believing an offence was
being committed by the person arrested.

[7]

In the case of
R. v. Biron
, [1976] 2 S.C.R. 56, 23
C.C.C. (2d) 513, Martland J. observed at 75, the power to arrest without
a warrant is given where the peace officer himself finds a situation in which a
person is apparently committing an offence.  I take the word apparent to
require an objectively sensible apprehension by the arresting officer that an
offence is being perpetrated by the person arrested.

[8]

That appears to be consistent with what Lamer J. (as he then was)
said in
R. v. Roberge
, [1983] 1 S.C.R. 312, 4 C.C.C. (3d) 304,
at 324:

... I do not read the test laid
down by Martland J. as suggesting that it is sufficient that it be apparent
to the police officer even though it would be unreasonable for the police
officer to come to that conclusion. Surely it must be apparent to a
reasonable person placed in the circumstances of the arresting officer at the
time.

[9]

The question posed by the circumstances of this case is whether what was
apparent to the nose of the officer during his interaction with Mr. Boyd
on the date of the arrest sufficed to render the arrest of Mr. Boyd a
lawful one.  The officer testified that he had previously encountered what he
described as the burnt odour of marihuana and he described the odour emanating
from the respondents vehicle as strong, leading him to believe that marihuana
had been smoked within 15 minutes prior to the stop.

[10]

The judge said this about the arrest:

[57]      As was the case in
Janvier
,
the decision to arrest Boyd in this case was made by Const. Cranmer on his
observation of the smell of burnt marihuana alone, without any other
observation apparent to him from which it could properly be concluded that Mr. Boyd
was then in possession of marihuana.  At no time prior to the arrest did Const. Cranmer
see any marihuana in Mr. Boyds possession, nor did the officer see Mr. Boyd
engaged in any act from which actual possession could properly be inferred.  There
was no evidence of any ongoing criminal activity taking place in the presence
of Const. Cranmer when he stood beside Mr. Boyds car and sniffed the
smell of burnt marihuana.  The best that could be said is that Const. Cranmer
suspected, on what he believed were reasonable grounds, namely his past
experience, that Mr. Boyd was in possession of marihuana.  Indeed, as the
officer himself testified, he arrested Mr. Boyd in the hope that he would
find some evidence of a drug related criminal offence.

[11]

The judge expressed his conclusion about the lawfulness of the arrest
thus:

[56]      ... The law requires
that inferences drawn from proven facts must be reasonable.  The reasonable
inference to be drawn from the smell of burnt marihuana, whether one estimates
the burning to have taken place in the immediate past or hours previously, is
that the marihuana which was the source of that smell no longer exists.  It has
been consumed by fire.  In my view, it would be unreasonable, as a matter of
both law and logic, to draw an inference of present possession from nothing
more than evidence of past possession.

[12]

The trial judge placed reliance upon the decision of the Saskatchewan
Court of Appeal in
R. v. Janvier
, 2007 SKCA 147, 227 C.C.C.
(3d) 294.
Janvier
, somewhat like the instant case, was a case where a
peace officer had stopped a person for a motor vehicle infraction and detected
a smell of burnt marihuana emanating from the vehicle.  The accused was
arrested for possession of marihuana and a search of the vehicle turned up
drugs and other items that resulted in the accused being charged with
possession of marihuana for the purpose of trafficking.  A trial judge found
the arrest and consequent search unlawful, and acquitted the accused.  The
Saskatchewan Court of Appeal sustained the acquittal.

[13]

In the course of her reasons, Jackson J.A. said this:

[30]      When one examines the
decisions where courts have sustained an arrest based on the smell of burned
marihuana, and no other sensory perception, they rely, in addition to the smell
of burned marihuana, upon an inference that more marihuana will be discovered.
In
Biron
, however, Martland J. makes it clear that the Court
interprets the phrase finds [a person] committing a criminal offence as
implying that the officers belief an offence is being committed is based on
his or her observation of that offence being committed (or apparently being
committed) and not merely an inference from some other observation
. [Emphasis
added.] That is why Martland J. went on to say there is no reason to
refer to a belief based upon reasonable and probable grounds.

27
Thus, s. 495(1)(b) does not permit the officer to say based on my
experience, I believed I would find other marihuana present because I smelled
recently burned marihuana. Observation (i.e., the smell) of recently smoked
marihuana is not an observation of current possession of additional unsmoked
marihuana. One might
infer
the presence of more marihuana, but one is
not
observing or smelling
it and one is therefore
not finding
the
person committing the offence of possession of additional, unsmoked, marihuana
within the meaning of s. 495(1)(b). [Emphasis in original.]
Section 495(1)(b)
does not permit an arrest made on inference derived from the smell of burned
marihuana alone
.  [Emphasis added.]

[14]

Jackson J.A. appears to be saying that an inference drawn by the
peace officer from observed facts may not be sufficient grounds to render
lawful an arrest made under s. 495(1)(b) of the
Code
.  She went on
to say:

[31]      As I have indicated, s. 495(1)(b)
does not permit an arrest based on inference, at least in these circumstances,
but if I am wrong on this, I will address the Crowns alternative argument,
which is that an officer is entitled to infer from the presence of the smell of
burned marihuana alone that there will be more, unsmoked marihuana present. My
view, formed by a review of the case law, is that the inference suggested by
the Crown is not objectively reasonable.

[15]

In my view, the judgment in
Janvier
seems to differ from what was
said by this Court in
R. v. Webster
, 2008 BCCA 458, 238 C.C.C.
(3d) 270, a case decided a year after
Janvier
.  That case was however a
situation, at least initially, of investigative detention.  Frankel J.A. said
this at para. 31 of
Webster
:

In my view, the odour of
freshly-smoked marihuana emanating from a vehicle objectively supports, at a
minimum, a reasonable suspicion that the driver and/or passenger are then
engaged in criminal activity, namely, possession of marihuana.  It is
reasonable to suspect that persons who have just used marihuana will have more
of that drug in their possession. ...

[16]

This Court, in the earlier case of
R. v. Dubois
, 2004
BCCA 589, 205 B.C.A.C. 156, had found an arrest legal where police officers
smelled an odour of burning marihuana coming from a vehicle and upon stopping
the vehicle observed what appeared to be marihuana leaves on a passenger and in
the vehicle.  Huddart J.A. said at para. 9:

[9]        ... It cannot be said
that the evidence of odour alone is insufficient in all circumstances to found
an objective belief that a crime has been or is about to be committed.  As this
Court noted in
R. v. Schulz
, 2001 BCCA 601, at para. 5,
each case turns on its own facts and whether the odour of marihuana will
suffice to justify an arrest will depend on the surrounding circumstances.  The
testimony of Constable Pineo supports the trial judges finding she had a
subjective belief that she had reasonable and probable grounds for an arrest.  Her
inference that there would probably be marihuana in the car was reasonable.

[17]

In
R. v. Schulz
, 2001 BCCA 601, 159 B.C.A.C. 146, a
police officer attended a residence, rather ironically as it turned out, to
return to a person some exhibits from an earlier drug investigation that had
not resulted in charges.  The following passage from the reasons of
Donald J.A. encapsulates the facts of the case:

[6]        ...

[4]        Constable Meyer attended the Schulz residence and
knocked on the door. A voice from within stated come-in, upon which Constable
Meyer opened the door and observed an individual, later determined to be the
accused, Mr. Schulz, seated at the table. Mrs. Schulz immediately
arose and quickly came to the door and closed it behind him. Constable Meyer
stated that he was able to smell burning marihuana emanating from within the
residence. Constable Meyer advised the accused that he had smelled the
marihuana and as a result the residence would be searched. He then arrested the
accused for possession of a controlled substance. ...

[18]

The conclusion of the Court as to the legality of the arrest is set
forth in para. 12 of the reasons:

[12]      Much of the appellants
argument relied on cases which dealt with the smell of burnt marihuana or
marihuana in a raw or some other form. However, in the instant case the trial
judge found that Constable Meyer smelled
burning
marihuana in a room
occupied only by the appellant. Having examined the transcript of Constable
Meyers testimony, and having considered the evidence as a whole, I think the
trial judges finding was reasonable and cannot be interfered with. The odour
that the officer detected, together with the behaviour of the appellant in
quickly moving to exclude the officer once the appellant saw who was at the
door, combined to provide a sufficient basis for the belief founding the
arrest.  [Emphasis in original.]

I note the phraseology belief founding the arrest.  This
language seems to me to lend some support to the proposition that an arresting
officer can rely on inferences arising from observed facts.

[19]

The trial judge appeared to place considerable reliance upon the
decision of this Court in
R. v. Abel and Corbett
, 2008 BCCA
54, 229 C.C.C. (3d) 465.  That case raised an issue concerning the power of a
citizen to arrest someone believed to have committed a crime.  The appellant
and a companion, one C, had attended at a residence where one H was believed to
be.  The appellant believed H could be in possession of a rifle stolen from the
premises of the appellant about a week earlier.  The appellant had learned that
H had offered to sell the rifle to a third party.  The appellant had
information as to the whereabouts of H but no knowledge as to where the rifle
might be.  He decided to seek out and confront H with a view to recovering the
missing rifle.  He was accompanied on this mission by C who took a tire iron.
An altercation occurred when they came upon H in the premises of a friend:

[13]      There are also
conflicting accounts as to what happened inside the townhouse.  There is,
however, no dispute that a physical altercation occurred between Mr. Holl
and Mr. Abel, and that Mr. Corbett hit Mr. Holl with the tire
iron.  It is also not disputed that Mr. Holl was overpowered and
restrained using zap straps Mr. Abel had brought with him for this
purpose.

[20]

The appellant was convicted of assaulting H, and C was convicted of
possession of a weapon for a dangerous purpose.  At trial, the two accused
persons had unsuccessfully sought a direction to the jury from the trial judge
that when the affray had occurred, their actions were justified because they
were engaged in a citizens arrest.  This Court found the judge was correct
to refuse to give such an instruction.  Frankel J.A. said at
para. 64:

In this case, although Mr. Abel
and Mr. Corbett reasonably believed Mr. Holl had stolen Mr. Abels
rifle, they had no information as to where the rifle might be.  They certainly
did not come upon Mr. Holl in possession of it.  As a result, it was not
open to them to seek to justify their actions on the basis that Mr. Holl
was found committing the offence of possession of stolen property at the
Corlett Street townhouse.

[21]

I am not of the view that
Abel
is a particularly apposite
authority to consider on the issue arising in the case at bar.  The law has
always sought to circumscribe within very narrow limits the powers of a citizen
to effect an arrest.  It is a species of self help and as the
Abel
case
amply demonstrates, a fertile source of breaches of the peace.  The case of
Abel
contains a useful discussion of cases such as
Biron
and
Roberge
but throws up considerations somewhat different from those pertinent to arrests
made by a peace officer.

[22]

In his reasons, the judge made reference to cases such as
R. v. Ashby
,
2011 BCSC 513, where a smell of vegetative marihuana emanating from a vehicle
was found to afford a proper basis for an arrest for possession of marihuana.  I
think it reasonable to observe that this factual situation could afford a
stronger foundation for an arrest under s. 495(1)(b).  That is so because
the actual drug substance is being detected by olfactory means.  The question
in the case at bar is whether a burnt smell supports an arrest under this
section.

[23]

I agree with the trial judge in the instant case that the smell of burnt
marihuana is an indication that some marihuana has been consumed by fire.  It
is clearly the situation that that particular portion of marihuana no longer
exists.  In the terminology of
Roberge
, what may be reasonably
apparent
from such an observation?  I advert again to what was said by Frankel J.A.
in
Webster
:

[31]      In my view, the odour
of freshly-smoked marihuana emanating from a vehicle objectively supports, at a
minimum, a reasonable suspicion that the driver and/or passenger are then
engaged in criminal activity, namely, possession of marihuana.  It is
reasonable to suspect that persons who have just used marihuana will have more
of that drug in their possession. ...

[24]

I should note that the facts in
Webster
were more supportive of affording
grounds for arrest after the stopping of the vehicle than the facts in the
present case.  In that case, the arresting officer had observed a vehicle and
followed it.  As he proceeded he detected a smell of burning marihuana and
stopped the vehicle.  As he stood by the vehicle, he continued to smell the
burnt odour.  He noted what appeared to be a joint of marihuana behind the ear
of a passenger in the vehicle and in response to a question of the officer
about marihuana, the passenger handed the joint to the officer.  The driver and
passenger were forthwith arrested for possession of a controlled substance.  In
a search of the vehicle, the officer discovered a plastic bag containing a
considerable quantity of marihuana, a scale, zip lock baggies and a score
sheet.  The men were charged with possession of the marihuana for the purpose
of trafficking.  After a
voir

dire
, the judge found the arrest
and search lawful and a conviction resulted.  This Court sustained the
conviction.

[25]

Among the many cases cited to us, a case that demonstrates similarity to
the present one is
R. v. Polashek
(1999), 45 O.R. (3d) 434, 134
C.C.C. (3d) 187 (C.A.).  In that case, a police officer at a traffic stop
detected a strong odour of marihuana emanating from a vehicle.  The officer
could not determine whether the odour was of burnt or unburned marihuana.  In
response to a question, the driver asserted that there was no such smell in the
vehicle.  The officer said that the use of drugs was fairly predominant in
the area and he had made many seizures of marihuana in the area.  A trial judge
concluded that the officer had reasonable and probable grounds to arrest the
accused for the possession of a narcotic upon smelling the strong odour of
marihuana inside the vehicle.

[26]

In a search incidental to the arrest of the appellant, a sufficient
amount of marihuana was found in the trunk of the vehicle to support a charge
of possession for the purpose of trafficking and a small amount of LSD was also
found.  The appellant was convicted of the offences of possession for the
purpose of trafficking of marihuana and possession of LSD.

[27]

The Ontario Court of Appeal allowed an appeal from conviction on the
basis of a denial of the right to counsel but sustained the finding of the
trial judge about the legality of the arrest.  However, since the Court in its
discussion used the terminology of reasonable and probable grounds for
arrest, it seems the arrest may have been considered to have been made under
s. 495(1)(a) as opposed to s. 495(1)(b).

[28]

The Court did opine that such smell coupled with other circumstances could
afford a proper basis for arrest.  The only other relevant inculpatory circumstance
I can deduce from the report was the opinion of the officer about drug usage in
the area and the many previous seizures he had made.  That seems generally to
track what the arresting officer testified to in the present case.  A possible
lack of similarity of the cases is the fact that the officer in
Polashek
may have been, as he said, detecting an odour of burnt or unburned marihuana.  If
the latter, the circumstances would be analogous to those found to be the
situation in
Ashby
.

[29]

On the face of matters, there does seem to be some divergence of
approach between the
Janvier
and
Webster
cases concerning what inferences
may be drawn from the smell of burnt marihuana.  Indeed, in
Janvier
,
Jackson J.A. appears to suggest it is impermissible for an officer to rely
on inference at all when making an arrest relying on s. 495(1)(b).  The
reasoning of the Ontario Court of Appeal in
Polashek,
however, appears
to suggest that it may be possible to infer from the smell of marihuana and an
officers experience of drug seizures that a vehicle will be found to contain
drugs.

[30]

Ultimately, I venture to suggest that a court faced with such an issue
cannot be too categorical in determining when an arrest under s. 495(1)(b)
will or will not be supportable.  The jurisprudence in this province seems to
support the thesis that a full consideration of all relevant circumstances
needs to be made by the trier of fact.  Such also seems to be the case in Nova
Scotia.  In the case of
S.T.P v. Canada (Director of Public
Prosecutions Service)
, 2009 NSCA 86, 281 N.S.R. (2d) 1, the Nova Scotia
Court of Appeal upheld the legality of an arrest based on a smell of burnt
marihuana, previous involvement of the vehicle in a drug case, and somewhat
apprehensive behaviour by an occupant of the vehicle.  M. MacDonald C.J.N.S.
put it this way:

29        Therefore, consider this context. The officers see
three young men in a vehicle and one of them appears nervous upon seeing the
police vehicle. Their car then immediately turns off the road into the
McDonalds parking lot. Then a computer check of the vehicle reveals bail
violations including references to cannabis. This would have given the
officers strong reason to believe that something illicit was occurring. Then
upon smelling burnt marijuana, it became apparent that the illicit activity
involved the possession of marijuana. At that point, the test for a summary
conviction arrest was met. Specifically, applying the three criteria noted
above: (a) the officer was present when the apparent offence was taking
place, (b) he detected the smell of burnt marijuana, and (c) the
commission of this offence would have been apparent to a reasonable person
placed in the circumstances of the arresting officer at the time.

30        Considering the entire
context therefore, the judge did not err in finding the arrest to be lawful.

[31]

If
Janvier
is taken to stand for the proposition that a police
officer cannot rely on inference from observed circumstances to afford proper
grounds for arrest under s. 495(1)(b), that seems not to accord with the
jurisprudence in this province.  The inference of course must be one that is
objectively supportable to accord with what was said in cases like
Biron
and
Roberge
.  If circumstances objectively support an inference that
criminal activity is occurring, a court will be entitled to find justifiable an
arrest made pursuant to s. 495(1)(b).

[32]

Ultimately, these cases are going to be very much fact driven.  While I
think the learned trial judge might have expressly considered what the
arresting officer said about his previous experience, I doubt that this very
experienced judge overlooked this evidence.  I believe the factual findings he
made that the situation in the case at bar fell short of furnishing adequate
grounds for an arrest under s. 495(1)(b) are ones to which this Court should
give due deference.  I observe that I might not be inclined to adopt the
phraseology used by the trial judge about law and logic, but would prefer to
use phraseology such as in all the circumstances.  That approach seems
consistent with the jurisprudence in this province.

[33]

Since this case can be seen as one near the line where different triers
of fact could reach different conclusions, I am not persuaded that this appeal
should succeed and accordingly I would dismiss the appeal.

The Honourable Mr.
Justice Hall

I agree:

The Honourable Madam Justice
Newbury

I agree:

The Honourable Madam Justice
D. Smith


COURT OF APPEAL FOR
BRITISH COLUMBIA

Citation:

R. v. Baigent,

2013 BCCA 28

Date: 20130118

Docket: CA039876

Between:

Regina

Appellant

And

Lee Parker Baigent

Respondent

Before:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice A. MacKenzie

On appeal from:
Provincial Court of British Columbia, March 26, 2012
(
R. v. Baigent
, Dawson Creek Registry No. 29816-2-C)

Oral Reasons for Judgment

Counsel for the Appellant:

O.S. Kuzum, Q.C.

Counsel for the Respondent:

C. Bauman

Place and Date of Hearing:

Vancouver, British
  Columbia

January 18, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 18, 2013

[1]

MACKENZIE J.A.
:
The
Crown appeals the acquittal of Lee Parker Baigent on March 26, 2012, by Judge
Bowry of the Provincial Court of British Columbia of the aggravated assault of
Timothy Pilkey.

[2]

The charge arose as a
result of an altercation between the two men at a house party in Tumbler Ridge
on November 8, 2009, during which Mr. Pilkey sustained serious injuries to his
left eye and cuts to his neck and cheek. At trial, Mr. Pilkey and several other
young people present at the party testified, as did two police officers called
to the scene. Mr. Pilkey testified that he had a conversation with Mr. Baigent,
he made a joke, and then he saw the shadow of Mr. Baigents arm coming towards
him before he felt an object, a bottle or a glass, strike his face. Although in
his initial statements to the police, Mr. Pilkey said Mr. Baigent bottled him
in the face, he testified he did not see what the object was; he assumed it was
a bottle or a glass because that is what he was told when he asked what had
happened. Mr. Pilkey also said he did not strike Mr. Baigent. There was
evidence Mr. Pilkey was intoxicated on the night of the altercation.

[3]

Although Mr. Baigent
did not testify, a statement he gave the police was admitted into evidence. Mr.
Baigent was arrested for aggravated assault at about 4:30 a.m., after he had
returned to his motel. In the statement he provided at the detachment, Mr.
Baigent said he was hit from behind or the side, he turned around, and swung at
the person, hitting someones face. Mr. Baigent also said he had an empty hand
when he swung.

[4]

The police officers who
were called to the scene testified they did not obtain a statement from Mr.
Pilkey that evening because of his high level of intoxication. No formal
statements were taken at that time from anyone else present at the party, as
everyone had been drinking and no one could clearly tell the officers what had
happened.

[5]

The Crowns case was
based entirely on circumstantial evidence. None of the witnesses, including Mr.
Pilkey himself, saw Mr. Baigent hit Mr. Pilkey with broken glass. However, it
is common ground, as the trial judge
found,
the
injuries were caused by broken glass or a broken mug. Witnesses heard glass
smashing and there was broken glass covering the floor where the two men were
when the altercation was stopped. Mr. Pilkey bled significantly. Mr. Baigent
was later found to have deep cuts on the back of his right thumb and on his
index finger, caused by broken glass.

[6]

The judge noted
credibility was an important issue in this case, and summarized the rule of
reasonable doubt as follows:

[6]
As I have summarized previously in other cases,
R. v. W. (D.)
, [1991]
S.C.R. 741, Justice Cory at Paragraph 28 suggests an explanation on the issue
of credibility as follows: First, if you believe the evidence of the accused,
obviously you must acquit; second, if you do not believe the testimony of the
accused but you are left in reasonable doubt, you must acquit; third, even if
you are not left in doubt by the evidence of the accused, you must ask yourself
whether on the basis of the evidence which you do accept you are convinced
beyond a reasonable doubt of the evidence of the guilt of the accused.

[7]
A fourth test has been added in
R. v. H. (C.W.)
, [1991] 68 C.C.C. (3d)
at 146 where Justice Wood suggested:

I would add
one more instruction in such cases, which logically ought to be second in the
order, namely, if, after a careful consideration of all of the evidence, you
are unable to decide whom to believe, you must acquit.

[7]

After considering the
whole of the evidence, the judge concluded she did not know whom to believe and
thus there was a reasonable doubt as to how the altercation started and whether
the force applied by Mr. Baigent caused Mr. Pilkeys injuries. In accordance
with the
W. (D.)
analysis, the judge acquitted Mr. Baigent.

[8]

The Crown appeals the
acquittal under s. 676(1)(a) of the
Criminal Code
, asserting a question
of law alone on the basis the trial judge erred in failing to consider the
totality of the circumstantial evidence in relation to the ultimate issue of
guilt or innocence. The Crown contends that had the trial judge properly
considered the entire body of evidence, the verdict would not necessarily have
been the same, and seeks a new trial.

[9]

Under s. 676(1
)(
a), the Attorney General has the right to appeal against
an acquittal on any ground of appeal that involves a question of law alone.
Thus, the Crowns right to appeal is limited to matters of law. Further, the
Crown must also demonstrate, with a reasonable degree of certainty, that the
verdict would not necessarily have been the same had the error not been made:
R.
v. Morin
, [1988] 2 S.C.R. 345 at 374, 44 C.C.C. (3d) 193.

[10]

In
R. v. J.M.H
, 2011 SCC 45,
[2011] 3 S.C.R. 197 at paras. 25-32, the Court identified a non-exhaustive list
of four situations under which a trial judges assessment of the evidence gives
rise to an error of law alone:

1.

It is an error of law to make
a finding of fact for which there is no evidence - however, a conclusion that
the trier of fact has a reasonable doubt is not a finding of fact for the
purpose of this rule;

2.

The legal effect of findings
of fact or of undisputed facts raises a question of law;

3.

An assessment of evidence
based on a wrong legal principle is an error of law; and

4.

The trial judges failure to
consider all of the evidence in relation to the ultimate issue of guilt or
innocence is an error of law.

[11]

With respect to the fourth error of
law, the Court in
J.M.H.
, at para.
31,
said the
underlying legal principle is that it is an error of law to subject individual
pieces of evidence to the standard of proof beyond a reasonable doubt; the
evidence must be looked at as a whole. The Court went on, at para. 32, to
confirm that while a trial judge must consider all the evidence in relation to
the ultimate issue of guilt, he or she is not required to refer to every item
of evidence considered; the reasons are sufficient if they are responsive to
the cases live issues and the parties key arguments.

[12]

The Crowns position is the trial
judge made the fourth error of law described in
J.M.H
.

Specifically
, the Crown says the trial judge engaged in a
W.
(D.)
analysis of the evidence without a proper consideration of the
totality of the evidence in relation to the ultimate issue of guilt or
innocence.

[13]

In support of its
position, the Crown appears to track the reasoning in
R. v. Rudge
, 2011
ONCA 791, 108 O.R. (3d) 161.
In
Rudge
, the Ontario Court of
Appeal allowed the Crowns appeal from an acquittal and ordered a new trial on
the grounds the trial judge considered each part of the Crowns case
separately, rather than considering the evidence as a whole. As the Crowns
case was built on the
totality
of the evidence, the result was the
persuasive effect of the totality of the evidence  the strength of the Crowns
case  was taken out of play (para. 66). The Court concluded this fell under
the fourth category of legal error described by Cromwell J. in
J.M.H
,
the failure to consider all of the evidence in relation to the ultimate issue
of guilt. The Court also found the judge erred by failing to take into account
several key individual pieces of evidence.

[14]

The Crown submits the trial judge in this case committed similar legal
errors as the judge in
Rudge
. First, the Crown says the judge failed to
consider the combined effect or totality of the evidence. The Crown argues that
considering the direct evidence from Mr. Pilkey that he was hit with an object
to his face after seeing Mr. Baigents arm coming toward him, combined with the
circumstantial evidence of broken glass and the trail of blood that followed
Mr. Baigent, the only reasonable inference was Mr. Baigent struck Mr. Pilkey in
the face with a glass bottle. The Crown acknowledges the judge was entitled to
weigh the evidence of Mr. Pilkeys state of intoxication, but says she was
required to do so within the context of all the evidence that confirmed Mr.
Pilkeys testimony.

[15]

Second, the Crown says although the judge extensively reviewed the
evidence, there were a number of errors and omissions as there were in
Rudge
.
In particular, the Crown submits the judge did not refer to the details of the
testimony of Jeff Lang, one of the partygoers, and failed to consider Mr.
Baigents state of intoxication at the time of the altercation and the passage
of time before Mr. Baigent provided his statement to the police. As in
Rudge
,
the Crown says the judges approach to the evidence amounted to an error in
law.

[16]

I respectfully disagree
with the Crowns submission that the judge in the present case made the same
errors as in
Rudge
. In contrast to
Rudge
,
the trial judge
considered the Crowns case as a whole. She referred to the totality of the
circumstances, including the statements of Mr. Baigent, Mr. Pilkeys testimony,
Mr. Pilkeys injuries, and the evidence of broken glass on the floor.
Ultimately, the judge was left with a reasonable doubt about what happened, as
no one observed Mr. Baigent striking Mr. Pilkey with a bottle, there was no
evidence as to whether Mr. Pilkey had a bottle in his hand (and therefore no
one could say with certainty who was holding the glass), there was no evidence
as to the source of the object that hit Mr. Pilkey, and there was evidence Mr.
Pilkey was intoxicated at the time of the altercation. The judge concluded, at
para. 61,
On the whole of the evidence
I do not know whom to believe
(emphasis added).

[17]

As
in
J.M.H.
, there is no basis in the judges reasons to conclude she
looked at individual pieces of evidence out of context, rather than considering
the evidence in its totality.

[18]

Also unlike
Rudge
, the judge did not fail to take into account
key pieces of evidence. The judge did refer to the fact Mr. Baigent provided his
statement to the police at 5:31 a.m. on November 8, 2009, five and a half hours
after the altercation. Although the judge did not expressly mention or discuss
Mr. Baigents level of intoxication at the time the altercation occurred, one
can infer from the record she was clearly aware of the evidence of Mr.
Baigents intoxication, as Mr. Baigent himself said in his statement to the
police he was likely intoxicated and one of the witnesses testified he had too
many drinks to be driving.

[19]

Although the judge did not refer to every piece of evidence, the judges
reasons responded to the live issues of how the altercation started and how the
glass came into contact with Mr. Pilkeys face.

[20]

The judge extensively reviewed the circumstantial evidence and
considered whether she was satisfied, beyond a reasonable doubt, that the guilt
of the accused was the only reasonable inference to be drawn from the proven
facts:
R. v. Cooper
, [1978] 1 S.C.R. 860, 34 C.C.C. (2d) 18;
R. v.
Griffin
, 2009 SCC 28, [2009] 2 S.C.R. 42. The judge concluded she did not
know whom to believe and described other reasonable possibilities as to the
cause of Mr. Pilkeys injuries. Specifically, the judge suggested Mr. Pilkey
may have been cut by his own glass or both men may have been cut by glass while
they were on the floor. I find no error in the judges approach to the
evidence; the fact that a different judge may have reached a different
conclusion does not mean she was wrong in law.

[21]

In the result, I would dismiss the
appeal as an attempt by the Crown to appeal from an unreasonable acquittal
that cannot be supported by the evidence. Such an appeal is not open to the
Crown under s. 676(1
)(
a) as it does not arise from a
question of law alone, and exceeds the scope of appellate review.

[22]

FINCH C.J.B.C.
: I agree.

[23]

CHIASSON J.A.
: I agree.

[24]

FINCH C.J.B.C.
: The appeal is dismissed.

The
Honourable Madam Justice A. MacKenzie


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Vincent v. Roche-Vincent,

2013 BCCA 136

Date: 20130118

Docket: CA040246

Between:

Michael Sean
Vincent

Respondent

(Claimant)

And

Grainne
Roche-Vincent

Appellant

(Respondent)

Before:

The Honourable Madam Justice Neilson

(In Chambers)

On appeal from: Supreme
Court of British Columbia, August 16, 2012
(
Vincent v. Roche-Vincent,
2012 BCSC 1233, Vancouver Registry No.
E093215)

Oral Reasons for Judgment

Counsel for the Appellant:

M.J. Cochrane

Counsel for the Respondent:

C. Linde

Counsel for the Proposed Intervenor,
West Coast Womens Legal Education and Action Fund

K. Govender

Place and Date of Hearing:

Vancouver, British
  Columbia

January 17, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 18, 2013

[1]

NEILSON J.A.
:
The applicant, the West Coast Legal Education and Action
Fund (LEAF), applies for leave to intervene in this appeal brought by the
mother of a 4-year-old boy from an order of a Supreme Court judge awarding the
father custody of the child and granting the mother access every other weekend:
2012 BCSC 1233. The appellant mother supports the application, and the
respondent father opposes it.

[2]

LEAF is a non-profit society whose mission is to achieve equality and
relieve historic patterns of systemic discrimination against women through
equality rights litigation, among other activities. It has been granted
intervenor status and advanced such arguments as an intervenor in a number of
cases in this Court and in the Supreme Court of Canada.

[3]

If it is granted intervenor status in this case, LEAF says it will
advance arguments on two issues. First, it will argue the trial judge erred in
law by introducing stereotypes about womens behaviour in family law matters to
determine this custody dispute, without appropriate consideration for the best
interests of the child, and contrary to the equality values enshrined in s. 15
of the
Charter of Rights and Freedoms
. Second, it will argue the judge
erred in law by relying on the mothers unproven allegations of abuse by the
father to find she had a distorted view of him, without requiring the father to
establish these allegations were made in bad faith. It says this approach is
based on the myth that women make false allegations of abuse in order to
obtain custody or seek revenge on an ex-spouse, and contends the trial judge
inappropriately relied on the allegations to make findings against the mother,
instead of focussing on the best interests of the child. LEAF expresses the
concern that such an approach will have a chilling effect on reporting valid
allegations of abuse.

[4]

The principles guiding applications for intervention were recently
summarized by this Court in
Friedmann v. MacGarvie
, 2012 BCCA 109 at
paras. 12-19, 318 B.C.A.C. 119. Intervention may be permitted where the
applicant has a direct interest in the litigation, or if the appeal raises
public law issues that legitimately engage the applicants interests, and the
applicant brings a different and useful perspective to those issues that will
be of assistance to the Court. In the latter situation, the Court is guided by
the factors listed by Madam Justice Newbury in
R. v. Watson and
Spratt
, 2006 BCCA 234 at para. 3:

... where the applicant does not
have a direct interest in the litigation, the court must consider the nature
of the issue before the court (particularly whether it is a public law
issue); whether the case has a dimension that legitimately engages the
interests of the would-be intervenor; the representativeness of the applicant
of a particular point of view or perspective that may be of assistance to the
court; and whether that viewpoint will assist the court in the resolution of
the issues or whether, as noted in
Ward v. Clark
[2001 BCCA 264],
the proposed intervenor is likely to take the litigation away from those
directly affected by it. ...

[5]

LEAF concedes it does not have a direct interest in this matter. I
therefore turn to those factors.

[6]

As to the nature of the issue before the Court, this is private
litigation between two parents over the custody of their son. There are no
public or constitutional issues, nor issues that may change the face of family
law. The trial judge acknowledged the focal issue was the best interests of the
child and, to my mind, addressed that by making findings of fact and
credibility based primarily on the evidence of both parties, and the expert
evidence of a psychologist who provided a report under s. 15 of the
Family
Relations Act
, R.S.B.C. 1996, c. 128, and testified at trial. He
concluded it was in the best interests of the child to switch from a custodial
regimen that gave equal time to each parent to one in which the father had
custody of the boy and provided his primary residence, while the mothers time
with her son was significantly reduced.

[7]

While LEAF contends there are systemic issues raised by the trial
judges approach, in my view these are not readily apparent in his reasons for
judgment. Nor are they raised by the appellant in her grounds of appeal, the
relevant parts of which read:

51.       The learned trial judge failed to
properly consider all relevant factors and evidence and to exercise his
discretion in accordance with Section 16 of the
Divorce Act
,
Section 24 of the
Family Relations Act
, the Supreme Court of
Canadas decision in
Gordon v. Goertz

[1996] S.C.J. No.
52, [1996] 2 S.C.R. 27 (
Gordon v. Goertz

)
, and other
authorities including
Robinson v. Filyk
(1996), 28 B.C.L.R. (3d)
21 (C.A.). More particularly,

a)

the learned trial judge erred in failing to
consider the existing shared parenting arrangement, and the disruptive impact
on Aedhan of changing from a 50-50 parenting regime that had been in place for
two and one-half years to one wherein he would be apart from his mother for 12
consecutive days in every 14-day period;

b)

the learned trial judge erred in law by failing
to consider and give effect to the principle of maximum contact;

c)

the learned trial judge erred in adopting an
8-factor hypothetical test for determining custody that is informed by
principles inconsistent with the best interests analysis;

d)

the learned trial judge erred by applying a
presumption or principle of consistent parenting or consistent discipline;

e)

the learned trial judge erred in granting to the
Appellant less parenting time than had been proposed even by the Respondent,
thereby failing to show great respect to the views of
either
interim
custodial parent in making the order;

f)

the learned trial judge erred in placing
inordinate weight on the Childs behavior toward the Appellant in 2009 and
earlier, and in failing to properly consider evidence of the childs
relationship with both parents at the time of trial; and

g)

the learned trial judge erred in ordering that
the Respondent was entitled to enrol Aedhan at Saltwater School due to
convenience, without considering other factors.

52.       The learned trial judge erred in
considering conduct by the Appellant that is unrelated to the Appellants
ability to act as a parent to Aedhan.

53.       The learned trial judge seriously
misapprehended the evidence in finding that the abuse counseling attended by
Aedhan was unnecessary and damaging.

54.       The
learned trial judge seriously misapprehended the evidence in relation to the
Respondents alleged claustrophobia, which evidence was material to His
Lordships finding that the Respondent was not an angry person or prone to
violence.

[8]

It is not clear to me that the mothers s. 15 equality rights are
engaged by these issues. Nor is it apparent that introducing this topic will
assist the Court in determining whether the trial judge ultimately resolved the
issue of custody in a manner that serves the best interests of the child.

[9]

As for the argument based on the role of unproven allegations, it is an
unfortunate reality that parents of both genders sometimes make unproven
allegations about each other in the heat of a hard-fought custody dispute, and
trial judges routinely weigh such evidence, and consider its veracity, in reaching
their decisions. I am not aware of any legal authority that places an onus on
the subject of such allegations to prove they are made in bad faith before a
trial judge may consider their import in a custody dispute. LEAF refers to
limited portions of two academic articles about allegations by mothers of
sexual abuse of a child by fathers to support its position on this point:
Nicholas Bala & John Schuman, Allegations of Sexual Abuse When Parents
Have Separated (1999-2000) 17 Can. Fam. L.Q. 191 at 193-194; Susan B. Boyd,
W(h)ither Feminism? The Department of Justice Public Discussion Paper on
Custody and Access (1994-1995) 12 Can. Fam. L.Q. 331 at 353-354. There were no
such allegations in this case, and I am not persuaded these isolated references
create the onus LEAF describes, or that this argument would be of assistance to
the Court on this appeal.

[10]

In my view, this is a case in which there is a legitimate concern that
granting intervenor status to LEAF to make its proposed arguments would
inappropriately widen the scope of the litigation and take the litigation away
from the parties, particularly the child who is the focus of the dispute. The
appellant is represented by counsel who could raise these issues if he wished
to do so, but has evidently chosen not to.

[11]

This Court has advocated caution in granting intervention in private law
matters:
Richmond (Township) v. Dha
(1991), 47 C.P.C. (2d) 23 at 29
(B.C.C.A. Chambers). In my view, that approach has particular application in a
custody dispute, given the sensitive and personal nature of the issues that
arise in such cases. I find support for this view in
Klachefsky v. Brown
,
[1988] 1 W.W.R. 755, 11 R.F.L. (3d) 249 (Man. C.A. Chambers), the only similar
decision the parties have provided. There, as here, a trial judge granted the
father custody of the children of the marriage, the mother appealed, and LEAF
sought to intervene to make submissions based on the mothers equality rights.
The application was denied for reasons similar to those I have expressed. While
LEAF points out this decision is dated, it concedes it knows of no more recent
authority that has taken a different view.

[12]

The application to intervene is dismissed.

The Honourable Madam Justice
Neilson