COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

British Columbia/Yukon Association of Drug War
  Survivors v. Abbotsford Police Department,

2015 BCCA 97

Date: 20150128

Docket: CA042419

Between:

British
Columbia/Yukon Association of Drug War Survivors

Appellant

(Plaintiff)

And

Abbotsford Police
Department

Respondent

And

City
of Abbotsford

Respondent

(Defendant)

Before:

The Honourable Madam Justice Garson

(In Chambers)

On appeal from: an
order of the Supreme Court of British Columbia dated
September 29, 2014 (
B.C./Yukon Association of Drug War Survivors v.
Abbotsford (City)
, 2014 BCSC 1817, New Westminster Docket No. S159480

Oral Reasons for Judgment

Counsel for the Appellant:

D.K. Wotherspoon
D.J. Larkin

Counsel for the Respondent:

D.G. Butcher, Q.C.

Counsel for the City of Abbotsford:

J. Yardley

Counsel for the Attorney General of British Columbia

S.E. Lacusta

Place and Date of Hearing:

Vancouver, British
  Columbia

January 27, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2015

Summary:

The applicant sought leave
to appeal an order for costs in any event of the cause flowing from an
application for third-party disclosure in the Supreme Court of British
Columbia.

The applicant is a non-profit organization engaged in public
interest litigation on behalf of drug-addicts. In the court below, the
applicants successfully applied for third-party disclosure from the Abbotsford
Police Department, but were ordered to pay the costs for such disclosure in any
event of the cause. Held: leave granted. The applicant seeks relief pursuant to
actions of the Abbotsford Police Department, but cannot sue the Abbotsford
Police Department as a co-defendant because it is not a legal entity. There is
some merit in the argument that the Abbotsford Police Department should not be
treated the same as a typical third-party in these circumstances. The
applicant may not be able to obtain the necessary disclosure if it is required
to pay the costs in any event of the cause due to its financial status as a
non-profit. Only the possible delay of the underlying action weighs against
granting leave, but this does not outweigh the interest that the applicant and
the legal profession has in resolving this issue.

Overview

[1]

GARSON J.A.
:  This is an application for leave to appeal an order
of the Chief Justice of the Supreme Court of British Columbia in which he
ordered that the British Columbia/Yukon Association of Drug War Survivors,
(the Association), the Plaintiff in the underlying action and appellant on this
appeal, pay the cost of production of certain records of the Abbotsford Police
Department (the APD). The APD is not a party to the litigation in the Supreme
Court. The
Police Act
, R.S.B.C. 1996, c. 367 provides that the City is
jointly and severally liable for a tort committed by a police officer in the
course of his duties. Thus, in this lawsuit, the City of Abbotsford is sued for
its own alleged wrongs and also those of the APD.

[2]

The issue that brings the matter before this Court on an application for
leave to appeal is the costs order associated with the application of the
Association for production of APD documents. Because APD was considered by the
chambers judge to be a third party, he ordered the Association to pay costs for
production of the documents. I am told by counsel on this application for leave
that the costs are as yet not calculated but are expected to be anywhere
between $20,000 and $50,000.

[3]

The Association is represented by counsel on a
pro bono
basis. The
Association cannot afford to pay costs for producing the documents. It argues
that the City of Abbotsford should bear its own costs for producing the
documents in this public interest litigation concerning issues of
homelessness. On the application for leave, the Association argues that the
issues raised on appeal merit the granting of leave.

Background

[4]

The Association, founded in 2009, is made up of
former and current drug users, with a mission to improve the lives of drug
addicts, through the use of peer support, education, and lobbying for policy
and social changes. The Association has most recently been funded primarily
through a $7,000 grant from the Fraser Health Authority.

[5]

In March 2014, the Association commenced this
action against the City of Abbotsford, including the APD, alleging various
Charter
breaches including, for example, that the bylaws of the City of Abbotsford
and certain actions of the APD interfere with,
inter alia
, the s. 7
Charter
rights of the Associations members. In a portion of its Notice of Civil
Claim that is pertinent to the APD, it is alleged:

16.       Abbotsford is, and has been, aware
that homeless people living in Abbotsford, including Abbotsfords Homeless,
face barriers to shelter and housing as particularized above.

17.       Abbotsford has sought and continues
to seek to reduce the number of Abbotsfords Homeless through the use of
policing and bylaw enforcement tactics.

18.       In particular Abbotsford relies on
the:

Parks Bylaw
, 1996
No. 160-96 (the
Parks

Bylaw
);

Consolidated Street and Traffic Bylaw
, 2006, Bylaw No. 1536-2006 (the Street And Traffic Bylaw); and

Good Neighbour Bylaw
, Bylaw No. 1256-2003 (the Good Neighbour Bylaw).

19.       Tactics employed by Abbotsford,
including members of the APD, include but are not limited to (the Displacement
Tactics):

a)

issuing bylaw enforcement notices on Abbot
sfords Homeless requiring them
to vacate the
public spaces (Eviction Notices);

b)

enforcing Eviction Notices by way of court ordered injunctions,
which injunctions include enforcement provisions pursuant to the
Criminal
Code,
R.S.C., 1985, c. C-46;

c)

ordering Abbotsfords Homeless to move and/or disperse from
various public spaces verbally and without the issuance of Eviction Notices;

d)

selective policing practices, often referred to as proactive
policing, in areas known to be frequented by Abbotsfords Homeless;

e)

spraying bear spray by members of the APD into the tents and onto
the belongings of some of Abbotsfords Homeless, destroying their Survival
Shelters, clothing, hygiene items, food and other personal property;

f)

slashing tents and belongings of some of Abbotsfords Homeless by
members of the APD, destroying their Survival Shelters and personal property;

g)

spreading chicken manure on a longstanding homeless camp located
on Gladys Avenue by Abbotsford employees;

h)

otherwise destroying or disposing of the personal property of
Abbotsfords Homeless;

i)

failing to
develop needed housing for people who are homeless or at risk of homelessness.

[6]

In December 2014, the Association appeared before
Chief Justice Hinkson, requesting third-party disclosure from the APD pursuant
to r. 7-1(18) of the
Supreme Court Civil Rules
. As already noted, Chief
Justice Hinkson ordered the APD to provide the requested disclosure, but also
included an order for costs for the production of the documents requested from
the [APD] in any event of the cause. The Association seeks leave to appeal this
order for costs in any event of the cause.

Positions of the Parties

[7]

The Association submits that Hinkson C.J. failed
to apply the correct legal test when determining which party should bear the
costs of the disclosure. The Association submits that the correct test for
determining which party should bear the costs is what is just in the
circumstances, and cites
A.L. Sott Financial (Newton) Ltd. v. Bauman
,
[1998] B.C.J. No. 950, for this proposition. The Association argues that
Hinkson C.J. failed to apply this test, and instead made his determination on
the basis that there was a presumption that a litigant should automatically be
required to pay the costs of third-party document disclosure.

[8]

The Association submits that it would not be
just in the circumstances to require it to pay the costs of third-party
disclosure in any event of the cause because of the unique circumstances of
this case. The Association is seeking relief pursuant to s. 24(1) of the
Charter
for various alleged
Charter
breaches, some of which are as a result
of the actions of the APD. I understand, also, that certain tort claims are
advanced against the APD. However, because the APD is not a legal entity, it
cannot be sued directly by the Association and be made a party to the action as
a co-defendant:
Henry v. British Columbia
, 2014 BCSC 1018.

[9]

In
Henry
, also decided by Hinkson C.J., it
was determined that the records of the Vancouver Police Department were not
within the possession, control, or power of the City of Vancouver: at para. 35.
The consequence of
Henry
is that, despite the fact that the Association
is alleging unconstitutional actions on the part of the APD, it cannot obtain
any disclosure from the APD without resorting to the third-party disclosure
process under r. 7-1(18). The Association argues that this is fundamentally
unfair, as it would not be required to pay costs in any event of the cause if
the APD was able to be sued as a co-defendant. In this case, the APD is not in
the same position as an innocent third party, and the same costs
considerations should not apply. The Association argues, and has provided
affidavit evidence in support, that it will be unable to pay these costs.
Implicitly, the disclosure may not occur if the Association must pay the
administrative and legal costs in accordance with Hinkson C.J.s order.

[10]

The APD submits that Hinkson C.J. made no error
in ordering costs be paid by the Association in any event of the cause. The APD
argues that
A.L. Sott
is a decision of a master and is not persuasive
authority for the proposition that there is a just in all the circumstances
test for ordering costs in these circumstances. As a third-party, the APD will
be unable to speak to costs at the conclusion of the trial, and will therefore
not have another opportunity to recoup the necessary expense in providing the
ordered disclosure.

[11]

The co-respondent, City of Abbotsford, does not take
any position on the appeal, and did not take a position before the chambers
judge. The City does argue that leave ought not be granted if doing so would
result in an adjournment of the trial presently set for June 29, 2015.

[12]

The Attorney General takes no position.

The Legal Test for Leave to Appeal

[13]

Leave to appeal is required for all orders
defined as limited appeal orders under the
Court of Appeal Rules
: see
Court
of Appeal Act
, s. 7. and r. 2.1(f), which states that an order
granting or refusing costs is a limited appeal order if the only matter being
appealed is that grant or refusal.

[14]

An award of costs is a discretionary order, and
is subject to limited appellate review:
Neufeld v. Foster
, 2000 BCCA 485
at para. 14 (in chambers). However, where there is a question of legal
principle raised by the application that extends beyond the parameters of the
particular case, leave may be granted:
Yung v. Jade Flower Investments Ltd.
,
2012 BCCA 168 at paras. 20, 23 (in chambers).

[15]

The general test to be applied on an application
for leave to appeal requires the applicant to meet the following criteria:

a)

That the appeal has some merit, that is to say the applicant has to
identify an arguable case of sufficient merit to warrant the scrutiny of a
division of the court;

b)

There must be some important issue involved, both to the parties and
to the public in general;

c)

There must be some practical utility to the appeal; and

d)

That the granting of leave would not cause delay in the proceedings
such as to result in serious prejudice to the party opposing.

[
Yung
at para. 17]

Analysis

Merits of the Appeal

[16]

I turn to consider the first factor, the merits
of the appeal.

[17]

At para. 3 of his reasons, Hinkson C.J. states,
I am not persuaded that the relationship between the Abbotsford Police
Department and the City of Abbotsford [is] such that the police department
should be treated as other than third parties for the purposes of document
production. I take this to mean that Hinkson C.J. found the APD to be in the
same position as what would be considered a typical third party. In my
opinion, there is some merit in the argument that the APDas an organization
allegedly directly involved in the
Charter
breaches or tort claims claimed
by the Association, but one that cannot be sued as a co-defendantshould not be
treated the same as other, typical third parties.

[18]

Because a police department or its officers
cannot be sued directly, an action against police must instead be taken against
a municipality, or possibly Her Majesty the Queen. The consequence of
Henry
is
that document disclosure from a police department cannot be obtained without
resort to the third-party disclosure rules. This appears to place plaintiffs
pursuing claims against police departments in a somewhat anomalous position, as
document disclosure will not flow automatically from r. 7-1(1), despite the
fact that it is the documents concerning the very conduct that is in issue
which are sought.

[19]

The APD argues that, as a third party, it will
be unable to speak to costs at the conclusion of the trial, and therefore it
must be able to claim its costs in any event of the cause. This will be an
important consideration should the appeal be heard, but in my opinion, it is
not obvious that this possible prejudice outweighs the arguments of the
Association. I am persuaded that there is some merit to this appeal.

[20]

This factor weighs in favour of granting leave.

Importance to the Parties and the
Public in General

[21]

The Association claims that it will be unable to
afford to pay the costs of the document disclosure. The Association does not
adduce affidavit evidence swearing that it will not be able to proceed with the
document disclosure should leave not be granted, but in my opinion that
possible consequence may be inferred. Some of the claims in the Associations
underlying action turn on alleged conduct of the APD. Without proper disclosure
these claims will be more difficult to pursue.

[22]

Further, in my opinion, this issue of disclosure
of a separate legal entity for which the defendant is vicariously or jointly
liable is of some importance to the public in general. This factor weighs in
favour of granting leave.

The Practical Utility of an Appeal

[23]

An appeal would resolve the procedural issue of
whether the Association can continue with its request for document disclosure
from the APD. This could affect the proceedings below, as the matters to be
determined at trial will be affected by any evidence acquired through the
disclosure.

[24]

This factor weight in favour of granting leave.

Will the Appeal Delay the Progress of
the Action Below or Cause Prejudice

[25]

The Association argues that granting leave would
not cause prejudice and would create only minimal delay.

[26]

The co-respondent, City of Abbotsford, argues
that granting leave could delay the start of the proposed trial. The underlying
action is scheduled to be heard in a six-week trial beginning on June 29. The
appeal may interfere with the trial. In addition to this appeal I am told there
is a pending appeal of an earlier order of the Chief Justice granting standing
to the Association (2014 BCSC 1817).

Conclusion

[27]

In my opinion, leave should be granted. There is
a legal principle to be resolved that is of importance to the parties, the public,
and the profession generally, as already explained above.

[28]

In my opinion, only the possible delay of the
underlying trial weighs against granting leave, but this does not outweigh the
other factors. I believe that this factor may be ameliorated by ordering that
this appeal be expedited. The parties should contact the registrar to arrange
an expedited hearing date. The parties are at liberty to use their materials
filed on the leave application on the appeal proper, or some combination of the
leave materials and supplemental materials. The parties may apply to the
Registrar to settle the contents of the appeal books and facta if they are
unable to agree.

[29]

I therefore grant leave to appeal the costs order. I
order that the appeal be expedited.

The Honourable Madam Justice Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Regional District Fraser-Fort George v. Norlander,

2015 BCCA 98

Date:
20150128

Docket:
CA041780

Between:

Regional District
Fraser-Fort George

Respondent

(Plaintiff)

And

Glen Norlander and
Carmen Ottaway

Appellants

(Defendants)

Before:

The Honourable Madam Justice Garson

(In Chambers)

On appeal from:  An
order of the Supreme Court of British Columbia, dated
April 2, 2014 (
Regional District Fraser-Fort George v. Norlander
,
Victoria Docket 132936).

Oral Reasons for Judgment

Counsel for the Appellants:

J.H. Schenk

Counsel for the Respondent:

R.A. Bortolin

Place and Date of Hearing:

Vancouver, British
  Columbia

January 28, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2015

Summary:

The applicant sought leave for
directions as to whether leave is required to appeal a statutory injunction
pursuant to the Community Charter for breaching a property bylaw. The respondent
argued that the order was an interlocutory injunction, and is therefore a
limited appeal order requiring leave. Held: leave is not required. The order
made by the chambers judge was a permanent injunction and a statutory final
order, despite the language used by the chambers judge to the contrary. It was
therefore not a limited appeal order.

[1]

GARSON J.A.
:  This is an application for directions as to whether
leave to appeal is required.

[2]

To quote
A.L. Sott Financial (Newton) Inc. v. Vancouver City Savings
Credit Union
, 2000 BCCA 143, this matter comes before me in somewhat of a
procedural muddle. The plaintiff, Regional District Fraser-Fort George
(Regional District), commenced an action against the defendants and sought declaratory
and injunctive relief on a notice of application before a Supreme Court judge.

[3]

The orders sought in the notice of application included a declaration
that the appellants use of the land, buildings, and structures were being used
in contravention of the Regional Districts Bylaw No. 833. The Regional
District also sought an order restraining the appellants from continuing the
impugned use, namely using two buildings on their property for vacation
rentals.

[4]

The matter came on for hearing and the chambers judge began his reasons
with the statement, The plaintiff seeks a statutory injunction against the
defendants as an interlocutory matter in these proceedings.

[5]

The order from which the appeal is sought provides as follows:

1.         The Defendants use of the land, buildings and
structures on property legally described as Parcel Identifier 008-217-351,
Lot 3, District Lot 5676, Cariboo District Plan 24508 (the Lands) as
vacation home rentals, or for the temporary accommodation of members of the
traveling public or tourists, contravenes the provisions of the Regional
District of Fraser-Fort George Zoning Bylaw No. 833 (the Zoning Bylaw).

2.         The Defendants, their agents, servants, lessees,
employees, tenants, and anyone else with notice of this Order are prohibited
from using or permitting the use of the Lands as vacation home rentals, or for
temporary accommodation of members of the travelling public or tourists, in
contravention of the Zoning Bylaw.

3.         The Defendants, their agents, servants, lessees,
employees, tenants, contractors and anyone else with notice of this Order are
prohibited from marketing or advertising the Lands as vacation home rentals, or
for temporary accommodation of members of the travelling public or tourists, in
contravention of the Zoning Bylaw.

4.         Costs are in any event
of the cause.

[6]

In seeking directions, the appellants say that leave is not necessary
because the matter was decided as a final order. They says that the Supreme
Courts jurisdiction is spent, and by that they mean that there has been a
declaration and final remedy granted and there is nothing left to go to trial,
and therefore, the order made must be a final order. They also argue that the chambers
judges jurisdiction is derived entirely from the
Community Charter,
S.B.C.
2003, c. 26, and is not a listed limited appeal order in Rule 2.

[7]

They also argue that the first order made is clearly not an
interlocutory order in that it is a declaration. They argue that an
interlocutory injunction pursuant to the
Supreme Court Civil Rules
would
involve the application of the
RJR-MacDonald
test
(
RJR-MacDonald Inc. v. Canada (Attorney General),

[1994]
1 S.C.R. 311) and that that was not the analysis the chambers judge conducted.
The analysis conducted by the chambers judge was the statutory injunctive analysis
for which there is no discretion.

[8]

Finally, he argues that as the appeal from the
declaratory order is an appeal as of right, the orders are sufficiently linked
such that leave ought not to be required for the injunctive part of the order,
and therefore the appeal of the entire order ought to go as of right.

[9]

The Regional District opposes this application and says
that leave is required from the entire order. It points to the opening words of
the judges reasons, in which the judge says that he is hearing the matter on
an interlocutory basis. Counsel advised me that he had advised the chambers
judge in his submissions that the matter was an interlocutory application. On further
questioning by this Court, it is not clear to me whether the Regional District
conceded that all the relief that had been sought has been granted and that
there is nothing further for the Supreme Court to do if the matter were to be
returned to it.

[10]

In my view, leave is not required. In spite of the
opening words that the judge pronounced, the order under appeal was not an
interim order, it was a statutory final order. As well, the declaratory and allegedly
interlocutory orders are linked, and so I would find that leave is not required
on that basis also.

[11]

I therefore order that leave is not required. The
entire appeal may proceed as of right.

[discussion with counsel]

[12]

By consent, there will be an order that appellants appeal books and factum
will be filed by February 4, 2015.

The Honourable Madam Justice Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Flanders,

2015 BCCA 33

Date: 20150129

Docket:
CA041435

Between:

Regina

Appellant

And

Kyriakos
Dimitriouse Flanders

Respondent

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Harris

On appeal from:  An
order of the Supreme Court of British Columbia, dated
November 28, 2013 (
R. v. Flanders
, 2013 BCSC 2397,
Vancouver Docket 26347).

Counsel for the Appellant:

W.P. Riley, Q.C.

Counsel for the Respondent:

K. Merrigan

Place and Date of Hearing:

Vancouver, British
  Columbia

November 6, 2014

Place and Date of Judgment:

Vancouver, British
  Columbia

January 29, 2015

Written Reasons by:

The Honourable Mr. Justice Harris

Concurred in by:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Kirkpatrick

Summary:

Mr. Flanderss $2,000
cash bail deposit was marked for estreatment after he violated the conditions
of his release. Following estreatment proceedings, the presiding Provincial
Court judge declined to order forfeiture of the deposit and instead directed
the monies to Mr. Flanderss counsel, who had taken assignment of the
funds, in order to properly pay and recognize him for the work he had done on
the case. The judge stated that he might be flying in the face of authority
by doing so. The Crown brought an application in the nature of certiorari to
quash the judges decision, which was dismissed in the court below on the basis
that the judge had not acted outside his jurisdiction or breached the
principles of natural justice. Held: Appeal dismissed. Though it was incorrect
for the judge to consider the remuneration of counsel, it cannot be concluded
that he failed or refused to consider the relevant factors. He therefore
applied the wrong test and erred in law, not jurisdictionally. For the same
reason, it cannot be concluded that the judge breached the principles of
natural justice.

Reasons
for Judgment of the Honourable Mr. Justice Harris:

Introduction

[1]

This is an appeal by the Crown from the dismissal of an application in
the nature of
certiorari
to quash an order of a Provincial Court judge.
The Provincial Court judge declined to order forfeiture of a cash deposit of
$2,000 marked for estreatment in proceedings against Mr. Flanders and directed
the return of those bail monies to his counsel, who had taken an assignment of
the funds. The chambers judge dismissed the application because he concluded
that any error made by the Provincial Court judge was an error of law within
jurisdiction and that he had not acted outside his statutory jurisdiction in
making the order.

[2]

The practical effect of the Provincial Court order was that Mr. Flanderss
counsel received the funds to pay his fees. It is clear that the Provincial
Court judge made the order to ensure that counsel was properly paid and recognized
for the work he had done in dealing with the underlying proceedings
effectively. In so doing, the judge commented that he recognized that his order
might be flying in the face of authority.

[3]

On this appeal, the Crown contends that the chambers judge erred:

(a)
in failing to recognize that basing a decision solely on an
improper and legally irrelevant factor constitutes a jurisdictional error
reviewable by way of
certiorari
;

(b)  in failing to recognize that deliberately refusing to consider
the applicable principles governing the exercise of discretion, in the context
of a decision in respect of which there is no appeal or other statutory avenue
of redress, is a breach of the principles of natural justice reviewable by way
of
certiorari
.

(c)  in failing to
recognize that remuneration of counsel who has taken an assignment of bail
money is a legally irrelevant factor in estreatment proceedings under s. 771
of the
Criminal Code
.

The Chambers Judgment

[4]

The chambers judge recognized that the scope of
certiorari
is different from the scope of review on an appeal. In a
certiorari
application, the superior court can only intervene where the inferior tribunal
has acted in excess of its assigned statutory jurisdiction or in breach of the
principles of natural justice: at para. 9, citing
R. v. Earhart
,
[2007] B.C.J. No. 3120 (B.C.C.A.) at para. 23. A mere error of law
falling short of jurisdictional error is not sufficient to quash an order.

[5]

As the chambers judge saw the matter, the
critical issue was whether the judge in apparently focusing exclusively on the
funding of counsel  to deny forfeiture, proceeded on an entirely erroneous
basis in law, thus acting in excess of or without jurisdiction: at para. 24.

[6]

The chambers judge identified conflicting
authority in Alberta on whether payment of counsel or the effectiveness of
their representation of the accused is a factor that may be considered in
estreatment proceedings. In
R. v. Webster
(1994), 94 C.C.C.
(3d) 562 (A.B.Q.B.) at 563 and 565, Veit J. held that funding of counsel
should not be taken into account in determining whether to forfeit bail monies.
A contrary view was taken in
R. v. Aw
, 2008 ABQB 261 at para. 22,
where Sanderman J. declined to order forfeiture of the entire bail deposit
and ordered a portion of it returned to counsel as an assignee, citing among
other considerations the fact that counsel had acted professionally in
responding to, and arguing against, estreatment.

[7]

The chambers judge then turned to the helpful
and thorough analysis of the principles governing the exercise of a judges
discretion to order estreatment of bail funds in
United States v. Le
,
2010 BCSC 1653
, in which Maisonville J. recognized
that [t]he overarching purpose of a forfeiture order is to maintain the
integrity of the bail system because [i]t is the threat of forfeiture that
upholds the effectiveness of bail:
Le
at paras. 14 and 15.
The decision to order forfeiture of all, some, or none of the deposit is within
the discretion of the presiding judge under s. 771 of the
Criminal Code
.
As Maisonville J. observed, the discretion vested in the judge is broad:
Le
at para. 18.

[8]

The chambers judge then observed:

[28]

Neither
Le
nor the cases cited in it involved a situation in which counsel had
been assigned bail deposits in payment or partial payment for services to be
rendered and thus do not deal squarely with the issue of whether counsels
efforts on behalf of the accused and the implications for the legal aid system
constitute factors to be considered in deciding on forfeiture.

...

[36]      In my view, the reasoning in
Dubois
leads to
an opposite result in the present case.  While a cogent argument can be made
that the presiding judge committed an error of law by failing to consider the
factors referred to in various decisions such as
Webster
,
Horvath
,
Le
, and
Balan
, I am unable to conclude that his error was
jurisdictional in nature.  Section 771(2) provides for the exercise of broad
discretion, unlike s. 475(1) which mandates the exercise of specific and
limited authority.  Within the broad discretion conferred by s. 771(2),
there are certain factors which the authorities have identified as important
considerations in its exercise, but the failure to consider or refer to those
factors cannot be equated to anything more than applying the wrong test for
sufficiency in the context of a preliminary hearing judges exercise of
authority under s. 475(1).

[37]      In other words, unless
the judge in the present case did something quite different from the function
assigned to him under s. 771(2), in his discretion to grant or refuse the
application and make any order with respect to the forfeiture of the
recognizance that he considers proper, it cannot be said that he acted without
or in excess of his jurisdiction.

[9]

The chambers judge relied on
Dubois v. The Queen
, [1986] 1 S.C.R.
366, as the decisive authority in distinguishing between an error of law within
jurisdiction and making an order beyond jurisdiction. In that case, a Provincial
Court judge had refused to commit an accused for trial at a preliminary hearing
on the ground that he was not convinced beyond a reasonable doubt on the issue
of identification. The Supreme Court of Canada upheld the decision of the
Manitoba Court of Appeal quashing the Provincial Court decision. The chambers
judge referred to
Dubois
at 380 in which this is said:

In applying the wrong test for
sufficiency, a preliminary inquiry judge does not commit jurisdictional error.
In deciding an issue reserved to another forum, however, he does. That is the
nature of the error in this appeal. Norton Prov. Ct. J.s adoption of the
reasonable doubt test indicates that he was not, as s. 475 requires,
directing his mind to the question whether the evidence was sufficient to
warrant committing the accused to stand trial. Rather, in effect, he arrogated
to himself the decision of the issue reserved by Parliament to another forum,
the trial court.  That jurisdiction was exceeded when, instead of performing
the function assigned to him, he did something quite different. The error in
this proceeding was not that the Provincial Court Judge merely misstated the
test (which would, as was concluded in
Hubbard
, [[1976] 3 W.W.R. 152
(B.C.S.C.)], be an error of law within jurisdiction) but that he dismissed the
information.

[10]

Relying on this reasoning, the chambers judge concluded:

[38]       [I]n
Dubois
,
the Court makes it clear that the Provincial Court judges failure to follow
the
Shephard
test was an error within his jurisdiction.  It was by
purporting to dismiss the charge against the accused that the judge fell into
jurisdictional error because that was not something that was open for him to do
under his statutory authority.  Similarly, in the case at bar, the trial judges
failure to consider the factors established in other decisions from other
jurisdictions may constitute an error of law but it could not be said that he
acted outside of his statutory authority or jurisdiction in making the order
which he did.

On Appeal

[11]

As I see the matter, the first and third grounds of
appeal raised by the Crown are related because the third ground, the
irrelevance of counsel remuneration, is a necessary aspect of the first, that making
a decision solely on improper or irrelevant considerations is a jurisdictional
error. I will deal with these grounds before turning to the second ground,
procedural fairness.

[12]

It is helpful to begin by outlining the statutory
provisions governing estreatment, which are set out in Part XXV of the
Criminal
Code
, entitled Effect and Enforcement of Recognizances. These are
conveniently summarized by the Crown in its factum, from which I quote:

16.       Section 770 sets out the procedure for issuance of
a Certificate of Default.  Section 770(1) provides that a court,
justice, or provincial court judge who is satisfied that a person bound by a
recognizance fails to comply with the recognizance may issue a certificate in
Form 33 setting out (a) the nature of the default, (b) the
reason for the default, (c) whether the ends of justice have been
defeated or delayed by reason of the default, and (d) the names and
addresses of the principals and sureties.  Section 770(3) states that the
certificate is evidence of the default to which it relates.  Section 770(4)
provides that money deposited as security for a defaulted recognizance shall be
sent to the clerk of the court to be dealt with in accordance with the law.

17.       The ends of justice may be defeated where the
accused absconds or fails to surrender for trial, or where the accused breaches
the terms of release in a manner which undermines public confidence in the bail
system or results in further criminal activity

18.       The ends of justice may be delayed where the
accused fails to appear in court when required to do so and the criminal
proceedings are hindered or postponed as a result.

19.       Section 771 sets out the procedure for a forfeiture
hearing in connection with a default of recognizance.  As Charbonneau J.
explained in
Canada (Attorney General) v.
[
Nayally
] at
para. 27, [a] forfeiture hearing is an opportunity for the person who was
bound by the recognizance and the sureties to be relieved from forfeiture.
See also
R. v. Howell
, 2008 NLTD 70, 236 C.C.C. (3d) 373 at
para.12.

20.       Section 771(1) provides that upon receipt of a
certificate of default under s.770, the clerk is required to schedule a
forfeiture hearing on request of the parties.

21.       Section 771(2) sets out
the statutory test to be applied by the presiding judge, namely that the judge
may, after giving the parties an opportunity to be heard, in his discretion
grant or refuse the application and may make any order with respect to the
forfeiture of the recognizance that he considers proper.  Section 771(4)
states that where a deposit has been made, the amount of the deposit shall be
transferred to the person who is by law entitled to receive it.

[13]

In the case before us, Mr. Flanders was arrested and charged with
possession of cocaine for the purpose of trafficking. He was then

released on a recognizance in the amount of $2,000, with a $2,000
cash deposit. Before he was sentenced on the trafficking charge, Mr. Flanders
was arrested for possession of a loaded firearm, contrary to the conditions of
his release, and charged with one or more offences. These charges led to a
mandatory minimum three‑year jail term. Later, he pleaded guilty to the
trafficking charge and was sentenced to a further two‑year jail term,
consecutive to the firearms sentence.

[14]

The judge who sentenced Mr. Flanders for trafficking
issued a Certificate of Default under Form 33 of the
Criminal
Code
certifying that Mr. Flanders did not comply with the conditions
of his recognizance and that by reason thereof the ends of justice had been
defeated. The certificate identified the nature of the default, the name and
address of the principal as Mr. Flanders, and the name and address of Mr. Merrigan,
his defence counsel, as a bail assignee.

[15]

The Crown applied for forfeiture of the $2,000 cash
deposit in connection with the default. Mr. Flanders appeared by video
from jail. Mr. Merrigan attended personally. As summarized in the Crown
factum and as reflected in the reasons of the chambers judge:

(a)        Mr. [Flanders] confirmed that Mr. [Merrigan]
had taken an assignment of the $2,000 cash deposit as payment for services
and that Mr. Flanders had no further interest in the funds.

(b)        The Crown briefly outlined its case for forfeiture
of the entire cash deposit, given the nature of the default.  The Crown
submitted (as per the Certificate of Default) that the ends of justice had been
defeated by Mr. Flanders breach of the recognizance. The Crown also
questioned the status or standing of Mr. Merrigan to appear on his own
behalf at the estreatment hearing.

(c)        Mr. Merrigan made submissions (presumably on
behalf of himself and Mr. Flanders). He explained that after Mr. Flanders
was arrested on the gun possession charge, he entered a guilty plea to that
offence and received a three year sentence.  Mr. Flanders then re-elected
trial in Provincial Court on the drug charge, and entered a guilty plea to that
offence before Rideout P.C.J., who imposed a two‑year consecutive jail
term.  Mr. Merrigan submitted that as a result of these events, the
charges against Mr. Flanders had been resolved more quickly than they
otherwise might have.  As Mr. Merrigan put it, everything was dealt with
quickly and properly.

(d)        Rideout P.C.J. expressed the view that the matter
had been dealt with effectively, and noted that its important that counsel
are recognized for their efforts in that regard.  The judge accepted that as a
result of Mr. Merrigans efforts, the charges were dealt with more quickly
than otherwise might have been the case.

(e)        Crown counsel pointed out that this was a case
where  according to the Certificate of Default  the interests of justice had
been defeated, rather than a case where the interests of justice had been
delayed.  The Crown asked for an opportunity to place the leading cases
before the court.  Rideout P.C.J. agreed to receive the Crowns cases, over Mr. Merrigans
objection that the Crown should not be allowed to split its submissions.

(f)         After receiving the
cases submitted by Crown counsel, Rideout P.C.J. stated that he might be
flying in the face of authority, but wished to ensure that counsel are
properly paid and recognized for the work theyve done.  The judge stated he
was exercising [his] discretion by denying the Crowns application, and
directed that the funds be released to Mr. Merrigan.

[16]

It is common ground that the chambers judge could only intervene if the Provincial
Court judge had acted in excess of his assigned statutory jurisdiction or in
breach of the principles of natural justice. It is not sufficient for the Provincial
Court judge to have committed an error of law within jurisdiction. The Crown
submits the Provincial Court judge did commit jurisdictional error.

[17]

The first jurisdictional error, the Crown contends, was that the judge
based his decision solely on a factor that was completely irrelevant to the
exercise of his statutory function. In doing so, he proceeded on an entirely
erroneous basis in law and thus exceeded his jurisdiction.

[18]

Ultimately, I cannot conclude that the Provincial Court judge made a
jurisdictional error even though there is a powerful argument that he erred in
law by not giving sufficient weight to t
he overarching purpose
of the threat of forfeiture, that being the maintenance of the integrity of the
bail system.

[19]

In
R. v. Russell
, 2001 SCC 53, McLachlin C.J.C.,
for the Court, described the scope of
certiorari
as follows:

[19]      The scope of review on

certiorari
is very limited. While at
certain times in its history the writ of
certiorari
afforded more
extensive review, today

certiorari

runs largely to jurisdictional review or
surveillance by a superior court of statutory tribunals, the term
jurisdiction being given its narrow or technical sense:
Skogman v. The
Queen
, [1984] 2 S.C.R. 93, at p. 99. Thus, review on

certiorari

does not permit a reviewing court to
overturn a decision of the statutory tribunal merely because that tribunal
committed an error of law or reached a conclusion different from that which the
reviewing court would have reached. Rather

certiorari

permits review only where it is alleged
that the tribunal has acted in excess of its assigned statutory jurisdiction or
has acted in breach of the principles of natural justice which, by the
authorities, is taken to be an excess of jurisdiction:
Skogman
,

supra
, at p. 100 (citing

Forsythe v. The Queen
, [1980] 2
S.C.R. 268).

[20]

In
Dubois
, at 377, Estey J. summarized the law as follows:

In summary, it is clear enough
that no jurisdictional error is committed where the justice incorrectly rules
on the admissibility of evidence or incorrectly decides that a particular
question or line of questioning cannot be pursued at the preliminary inquiry.
This is, of course, subject to the important condition that rulings in the
course of a preliminary hearing on evidentiary questions as to the extent of
limitation on the basic right to cross
‑
examine
or to call witnesses, may develop into a violation of natural justice and fall
within the condemnation of
Forsythe
,
supra
, and hence be subject
to judicial review. See also
Re Martin, Simard and Desjardins and The
Queen
, [(1977), 20 O.R. (2d) 455 (C.A.)], at p. 488. Jurisdictional
error is committed where mandatory provisions of the
Criminal Code
are
not followed, and in the context of s. 475 [now s. 548(1)], this
means at least that there must be some basis in the evidence proffered for the
justices decision to commit. There is no jurisdiction to act arbitrarily.
However, where there is some evidence, it is clearly within the justices
jurisdiction to come to a decision as to whether that evidence is of sufficient
weight to commit.

It follows that if a judge refuses or neglects to follow a
mandatory statutory provision, the judge will commit a jurisdictional error
and therefore be amenable to
certiorari
. By contrast, if a judge commits
an error of judgment in following a statutory provision, the judge will have
made a mere error of law and will not be amenable to prerogative relief.

[21]

This is not a case in which a proceeding is started
without jurisdiction. The statutory discretion afforded to the judge is broad.
The statute does not stipulate specific criteria to be applied by the judge or
lay out a specific test to be applied beyond providing in s.
771(2)
that the judge may, after giving the parties an opportunity to be heard, in
his discretion grant or refuse the application and make any order with respect
to the forfeiture of the recognizance that he considers proper.

[22]

It is, of course, evident that even though the judges discretion
is broad, it is properly to be exercised in a manner that is consistent with
the purposes of the statutory scheme
. That purpose is well-described
by Maisonville J., for example, in
Le
and the cases referred to by
her. I agree that the purpose of forfeiture is to maintain the integrity of the
bail system because the threat of forfeiture provides a compelling incentive
for the accused (and any sureties) to fulfil their obligations under the
recognizance. The nature of this incentive was captured in
Attorney General
of Canada v. Nayally et al.
, 2012 NWTSC 56, by Charbonneau J. who said
at para. 31, It must be made clear to anyone offering a cash deposit in
support of an application for release that there will be consequences in the
event that the conditions are not complied with, beyond the possibility of
facing a breach charge. Accordingly, refusing to forfeit funds to reward
counsels efforts is far from obviously consistent with that purpose. It
follows that in exercising the discretion under s. 771(2), a judge should
have regard to the preeminent importance of preserving the moral pressure
of the recognizance in ensuring that the accused complies with the terms of
release and appears in court when required to do so:
Le
at paras. 15‑16,
citing
Canada (Attorney General) v. Horvath
, 2009 ONCA 732

at
paras. 40‑44;
Nayally
at paras. 25‑26, 31. Failing
to weigh properly that objective would permit an accused or surety to avoid the
financial risk inherent in posting security for bail, thereby undermining the
pull of bail as a means of ensuring the accuseds good behaviour on judicial
interim release: see
Le
at paras. 18 and 29;
Horvath
at
para. 27;
Nayally
at para. 27.

[23]

Saying all of this only goes so far as to confirm the
cogency of the argument that rewarding counsels efforts is not a relevant
factor in the exercise of discretion and relying on them is an error of law. It
does not, standing alone, support more than a conclusion that the judge applied
the wrong test within his jurisdiction.

[24]

The question is whether the judge proceeded on an
entirely erroneous basis in law in the sense described by Estey J. in
Dubois
at 378‑79, namely, that in discharging his statutory role, the judge
acted in violation of his statutory jurisdiction by exceeding it or by
declining to exercise it: see
Dubois
at 370‑71, or that
instead of performing the function assigned to him, he did something quite
different.

[25]

The Crown argues that the judge acted outside his jurisdiction by refusing
to consider any relevant factors and taking into account only an irrelevant
consideration (remunerating the efforts of counsel). He thereby proceeded on a
wholly erroneous basis and failed to perform his statutory function.

[26]

I acknowledge that, in this instance, the certificate of default stated
that the ends of justice were defeated, rather than delayed. I also accept that
counsel, as an assignee of the bail monies, does not stand in a better position
with respect to forfeiture than the accused. Indeed, counsel has no independent
standing on a forfeiture application and as a result has no independent
interest to be taken into consideration:
Purves v. Canada
(Attorney General)
(1990), 54 C.C.C. (3d) 355
(B.C.C.A.)
.

[27]

Nonetheless, I am not persuaded that the judge committed a
jurisdictional error. With respect, it seems to me that the judge merely committed
an error of law. I start from the proposition that the judge is presumed
to know the law. I assume, therefore, that he would have appreciated the
importance of the need to maintain the integrity of the bail system.
Submissions on this point were made to him. I see no reason to assume that
he did not take them into account. Further, there was some non‑binding
authority before him suggesting that counsels efforts might be relevant to
forfeiture and no binding authority decisively rejecting that proposition on
similar facts to those he was considering. The judge acknowledged that he
might be flying in the face of authority but did not say that he was refusing
to follow binding authority. Rather, I interpret the comment as recognizing
that the weight of authority was likely against his intended exercise of
discretion. This suggests that he was alive to the arguments about maintaining
the integrity of the bail system. His comment goes no further than
acknowledging that he might be exercising his discretion by applying the wrong
test, but not that he was failing or refusing to follow a mandatory statutory
provision.

[28]

In short, I agree with the chambers judges observation that the Provincial
Court judge applied the wrong test. He may well have relied on an irrelevant
principle, but I am not persuaded that he can be said to have refused to
consider relevant principles or simply ignored them and thereby committed
jurisdictional error in his exercise of discretion. I do not think it can be
said that instead of performing the function assigned to him, he did something
quite different.

[29]

The second jurisdictional error, the Crown contends, is that the
judge breached the principles of natural justice by expressly declining to
consider those principles that ought to have governed the exercise of his
discretion. He did so in proceedings where there is an absence of a right of
appeal and the offenders breach had defeated the ends of justice. In those
circumstances, so the Crown argues, natural justice required, at a minimum,
that the judge
consider both the statutory test for
estreatment and the legal principles guiding the exercise of his statutory
discretion. Despite the judges broad discretion, he was required to exercise it
judicially, and failed to do so when he expressed an intention to disregard the
principles to be taken into account in exercising that discretion, and
proceeded to decide the matter on the basis of a legally extraneous
consideration.

[30]

In short, the Crown acknowledges that a failure to consider a relevant
principle or the consideration of an irrelevant principle may be an error of
law, but argues that
the
refusal
to consider the
applicable principles is both a failure to act judicially and a breach of
natural justice. To hold otherwise, it argues, would mean that a Provincial
Court judge responsible for determining whether estreatment is in the interests
of justice within the meaning of s. 771 of the
Criminal Code
could
deliberately disregard the relevant principles and proceed to make a final
ruling based solely on legally irrelevant or improper considerations, under a
process that is not subject to appeal and provides no other statutory avenue of
redress.

[31]

To deal with this latter point first, I do not agree
that the determination of whether a ruling involves jurisdictional error turns
in any way on the lack of a right of appeal or other avenues of redress. The
existence of jurisdictional error has to be determined by reference to the inherent
characteristics of the ruling. The concept of jurisdictional error cannot be
expanded in order to provide review because there is not otherwise a right of
appeal. Further, the lack of an appeal right under the
Criminal Code
reflects a legislative choice. Expanding the notion of jurisdictional error in
order to facilitate review would undermine the legislative scheme.

[32]

In any event, I do not think that the judge can be said to have breached
the principles of natural justice. He heard from the parties, and was provided
with and obviously reviewed relevant authorities. At most, one can say that he
accepted that he was exercising his discretion in a manner that was contrary to
the balance of the authorities. I have already expressed the view that the
judge is presumed to know the law. I would not assume that he refused to
consider the authorities that he had been given. The record falls far short of
demonstrating any such thing. With respect, it seems to me that the issues
raised by the Crown give rise to an issue about the merits of his decision,
rather than a concern about natural justice.

[33]

I would not accede to the various grounds of appeal advanced by the
Crown and would dismiss the appeal.

The
Honourable Mr. Justice Harris

I
agree:

The Honourable Chief Justice Bauman

I
agree:

The
Honourable Madam Justice Kirkpatrick