COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Baldwin v. Baldwin,

2013 BCCA 35

Date: 20130121

Docket: CA039361

Between:

Janet Kelly
Baldwin

Appellant
(Petitioner)

And

Wesley Warren
Baldwin

Respondent

(Respondent)

Before:

The Honourable Mr. Justice Tysoe

The Honourable Madam Justice Neilson

The Honourable Madam Justice Bennett

On appeal from: Supreme
Court of British Columbia, September 12, 2011
(
Baldwin v. Baldwin
, Fort St. John Registry No. 20560)

Oral Reasons for Judgment

Appellant appearing In Person
(via video conference)

Counsel for the Respondent:

S.T.G. Cole

Place and Date of Hearing:

Vancouver, British
  Columbia

January 21, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 21, 2013

[1]

TYSOE J.A.
: Ms. Baldwin appeals the dismissal of her
application for judicial review of the decision of a Provincial Court judge
dismissing her small claims action against her brother, Mr. Baldwin.

[2]

The small claims action relates to a property in Fort St. John owned by
Ms. Baldwins parents. I understand Ms. Baldwin claims that she is
entitled to a lease, or otherwise has a right of occupation, in respect of all
or part of the property. The action alleges that Mr. Baldwin had Ms. Baldwin
unlawfully arrested and removed from the property and that he had the hydro
removed from the property.

[3]

Ms. Baldwin had made the same allegations against her sister in two
previous small claims actions that were dismissed at settlement conferences.
There had also been proceedings before a dispute resolution officer under the
Residential
Tenancy Act
, S.B.C. 2002, c. 78, but they related to the tenancy of
Mr. Paul Williams, who I gather is a friend of Ms. Baldwin. Although
it was noted in the reasons of the officer that Ms. Baldwin had not produced
a lease, the officer found that Ms. Baldwin was not a party to the
application.

[4]

The small claims action against Mr. Baldwin went to a settlement
conference on November 17, 2010. The settlement conference judge adjourned
the matter to trial.

[5]

Mr. Baldwin subsequently made an application to have the action
dismissed on the basis that it was frivolous and vexatious. At the conclusion
of the hearing of the application on December 9, 2010, the Provincial Court
judge dismissed the action because she was satisfied that the action was
vexatious and an abuse of process. In dismissing the action, the judge noted
that the issues in the action were the same as the issues addressed at the
hearing under the
Residential Tenancy Act
.

[6]

On March 10, 2011, Ms. Baldwin filed a petition in Supreme Court
for judicial review of the decision of the Provincial Court judge. The petition
came on for hearing by a chambers judge on September 12, 2011.

[7]

The chambers judge dismissed Ms. Baldwins petition. Her reasoning
was as follows:

[15]      Under the
Small Claims Act
, R.S.B.C. 1996,
c. 430, Ms. Baldwin had 40 days within which to file an appeal to this
Court. She did not. Instead, she file a petition to this Court on March 10,
2011 which is out of time. Apart from the fact that it is out of time, it has
no reasonable prospect of success.

[16]      Ms. Baldwin, on the application before me, urges
that she is not seeking an appeal of the Provincial Court order. In her
material, she says it is a judicial review application, but in substance it is
an appeal of the Provincial Court order.

[17]      The order that was made on December 9, 2010 in the
Provincial Court of British Columbia at the settlement conference, is not
properly the subject of a review under the
Judicial Review Procedure Act
,
R.S.B.C. 1996, c. 241.

[18]      The petitioners
petition is dismissed with costs to the respondent, Wesley Baldwin.

[8]

With respect, it is my view that the chambers judge erred in holding
that the December 9, 2010 order was not properly the subject of judicial review
and that Ms. Baldwin was required to have appealed the order within 40
days.

[9]

Sections 5 and 6 of the
Small Claims Act,
R.S.B.C. 1996,
c. 430, reads as follows:

5    (1)  Any
party to a proceeding under this Act may appeal to the Supreme Court an order
to allow or dismiss a claim if that order was made by a Provincial Court judge
after a trial.

(2)  No appeal
lies from any order of the Provincial Court made in a proceeding under this Act
other than an order referred to in subsection (1).

6    An appeal must be started within
40 days, beginning on the day after the order of the Provincial Court is
made.

[10]

In my opinion, it is clear from the wording of s. 5 that an order
dismissing a claim may only be appealed to the Supreme Court if it was made
after a trial. In the present case, there was no trial, and Ms. Baldwin
had no right of appeal in respect of the dismissal order. I do not agree with
the submission on behalf of Mr. Baldwin that Ms. Baldwin was, in
essence, seeking to appeal the December 9, 2010 order  her petition was
properly framed as a request for judicial review.

[11]

Similarly, the jurisprudence of this Court is clear that litigants may
seek judicial review of decisions made by Provincial Court judges in small claims
actions that may not be appealed under s. 5: see, for example,
Shaughnessy
v. Roth
, 2006 BCCA 547, 61 B.C.L.R. (4th) 268, which involved an order
transferring an action from the Provincial Court to the Supreme Court, and
Hubbard
v. Acheson
, 2009 BCCA 251, 93 B.C.L.R. (4th) 315, which involved an order
dismissing an application to set aside a default judgment. Ms. Baldwin has
also referred us to decisions of the Supreme Court which involved judicial
review of orders made at settlement conferences to grant judgment or to dismiss
claims against certain defendants (
0763486 B.C. Ltd. v. Landmark Realty
Corp.
, 2009 BCSC 810, and
Wood and Lauder v. Siwak
, 2000 BCSC 397).

[12]

Although delay is a factor that may be taken into account in judicial
review proceedings, there is no specific deadline for the bringing of such a
proceeding. The 40 day appeal period in s. 6 of the
Small Claims Act
does not apply to judicial review proceedings in relation to orders made by Provincial
Court judges prior to a trial of a small claims action.

[13]

Counsel for Mr. Baldwin requests that, even if the chambers judge
erred, this Court should exercise its discretion to dismiss the appeal because
the judicial review proceeding would have been dismissed in any event. In the
present context, this Court is a court of review in respect of decisions made
by the Supreme Court. While it is open to this Court to make any order that
could have been made by the Supreme Court, I am not persuaded that this is an
appropriate case for this Court to conduct a judicial review at first instance.
In my view, it is preferable for the judicial review to be conducted by the
Supreme Court.

[14]

I would allow the appeal and remit Ms. Baldwins petition to the
Supreme Court. I would grant Ms. Baldwin costs of the appeal.

[15]

NEILSON J.A.
: I agree.

[16]

BENNETT J.A.
: I agree.

[17]

TYSOE J.A.:
The appeal is allowed. The petition is remitted to
Supreme Court and Ms. Baldwin is granted her costs of this appeal.

The Honourable Mr. Justice Tysoe


COURT OF APPEAL FOR BRITISH
COLUMBIA

Citation:

Jones v. Zimmer GMBH,

2013 BCCA 21

Date: 20130122

Docket:
CA039378

Between:

Dennis Jones and
Susan Wilkinson

Respondents

(Plaintiffs)

And

Zimmer GMBH,
Zimmer, Inc., and Zimmer of Canada Limited

Appellants

(Defendants)

Before:

The Honourable Mr. Justice K. Smith

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Bennett

On appeal from: Supreme
Court of British Columbia, September 2, 2011
(
Jones v. Zimmer GMBH
, 2011 BCSC 1198, Vancouver Docket No. S095493)

Counsel for the Appellants:

A.D. Borrell

P. Pliszka

Counsel for the Respondents:

D.A. Klein

J.Z. Murray

Place and Date of Hearing:

Vancouver, British
  Columbia

May 29-30, 2012

Place and Date of Judgment:

Vancouver, British Columbia

January 22, 2013

Written Reasons by:

The Honourable Mr. Justice K. Smith

Concurred in by:

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Bennett

Reasons
for Judgment of the Honourable Mr. Justice K. Smith:

[1]

This appeal is from an order made by the Honourable Mr. Justice Bowden
of the Supreme Court of British Columbia pursuant to the
Class Proceedings
Act
, R.S.B.C. 1996, c. 50, certifying the underlying product liability
action as a class proceeding and appointing the respondent Susan Wilkinson as
representative plaintiff for [a]ll persons who were implanted with the Durom acetabular
hip implant in Canada.

[2]

The appellants (nothing turns on their separate corporate identities)
manufacture and distribute a hip implant known as the Durom Cup, which is intended
to adhere, without cement, to the surrounding bone as it grows during recovery
from hip implant surgery. The respondents received Durom Cup implants in 2008.
Each subsequently experienced pain and disability and had revision surgery to
have the Durom Cup removed. In each case it appeared during the revision
surgery that the Durom Cups had failed to adhere properly to the surrounding
bone. The respondents claim damages for alleged negligence in the research,
development, testing, manufacture, distribution, and sale of the Durom Cup and,
as well, declaratory and injunctive relief, damages, and statutory compensation
pursuant to the
Business Practices and Consumer Protection Act
, S.B.C.
2004, c. 2 for alleged deceptive acts and practices.

[3]

The appellants contend the certification judge erred in certifying the
following questions for trial as common issues:

(a)      Was the Durom acetabular hip
implant defective and/or unfit for its intended use?

(b)      With respect to British Columbia
residents, did any of the defendants breach a statutory duty under the
Business
Practices and Consumer Protection Act
owed to class members who received
the Durom acetabular hip implant in British Columbia and, if so, when and how?

The judge also certified the questions Did any of the
defendants breach a duty of care owed to class members and, if so, when and
how? and Does the defendants conduct warrant an award of punitive damages,
and, if so, to whom should they be paid and in what amount? as common issues.
It is not disputed that these questions can go forward as common issues if the impugned
questions can properly do so.

[4]

To be a common issue, an issue must be a substantial and necessary
ingredient of the claim of each member of the class:
Hollick

v.
Toronto (City)
, 2001 SCC 68 at para. 18, [2001] 3 S.C.R. 158. It need
not be determinative of liability: rather, it will be sufficient if it is an
issue of fact or law common to all claims and if its resolution will move the litigation
forward:
Campbell v. Flexwatt Corp.
(1997), 44 B.C.L.R. (3d) 343 at
para. 53, 98 B.C.A.C. 22, leave to appeal refd [1998] S.C.C.A. No. 13.

[5]

The proper approach to be taken by the judge hearing a certification
application is summarized in
Pro-Sys Consultants Ltd. v. Infineon
Technologies AG
, 2009 BCCA 503 at paras. 64-65, 312 D.L.R. (4th) 419,
leave to appeal refd [2010] S.C.C.A. 32:

[64]      The provisions of the [
Class Proceedings Act
]
should be construed generously in order to achieve its objects: judicial
economy (by combining similar actions and avoiding unnecessary duplication in
fact-finding and legal analysis); access to justice (by spreading litigation
costs over a large number of plaintiffs, thereby making economical the
prosecution of otherwise unaffordable claims); and behaviour modification (by
deterring wrongdoers and potential wrongdoers through disabusing them of the
assumption that minor but widespread harm will not result in litigation):
Western
Canadian Shopping Centres Inc. v. Dutton
, 2001 SCC 46, [2001] 2 S.C.R. 534
at paras. 26-29 [
Western Canadian Shopping Centres
];
Hollick

v.
Toronto (City)
, 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 15 [
Hollick
].

[65]      The certification hearing does not involve an
assessment of the merits of the claim; rather, it focuses on the form of the
action in order to determine whether the action can appropriately go forward as
a class proceeding:
Hollick
at para. 16.  The burden is on the
plaintiff to show some basis in fact for each of the certification
requirements, other than the requirement that the pleading disclose a cause of
action:
Hollick
, at para. 25.  However, in conformity with
the liberal and purposive approach to certification, the evidentiary burden is
not an onerous one  it requires only a minimum evidentiary basis:
Hollick
,
at paras. 21, 24-25;
Stewart v. General Motors of Canada Ltd.
, [2007]
O.J. No. 2319 (S.C.J.) at para. 19.  As stated in
Cloud v. Canada
(Attorney General)
(2004), 247 D.L.R. (4th) 667 at para. 50, 73 O.R. (3d)
401 (C.A.), leave to appeal refd [2005] S.C.C.A. No. 50 [
Cloud
],

[O]n a certification motion the court is ill equipped to
resolve conflicts in the evidence or to engage in finely calibrated assessments
of evidentiary weight. What it must find is some basis in fact for the
certification requirement in issue.

[6]

The appellants submit the impugned questions are not common issues as
that phrase has been defined, that the certification judge relied on irrelevant
and inadmissible evidence, and that no basis in fact was established to
support these questions as common issues. For the reasons that follow, I would
reject these submissions and dismiss the appeal.

The Respondents Claim

[7]

In their statement of claim, the respondents alleged that the Durom Cup
was defective in that it fails to properly heal or adhere to the surrounding
bone: that it remains loose or separates from the bone causing the patient
pain and necessitating further hip surgery. They pleaded that the appellants
were negligent in the research, development, testing, manufacture, distribution
and sale of the Durom Cup; that they failed to ensure it was effective in
adhering to bone before marketing it; that they failed to monitor its safety
after marketing it; and that they failed to warn the respondents, class
members, their health care providers, and Health Canada (the responsible
federal regulator) of the problems with the Cup. Further, they alleged these acts
and omissions were breaches of the requirements of the
Medical Devices
Regulations
, S.O.R./98-282.

[8]

The respondents also pleaded that they received Durom Cup implants (Mr. Jones
in January 2008 and Ms. Wilkinson in April 2008), that the implants
failed, that Mr. Jones had further surgery in May 2009 in which the Durom
Cup was removed and replaced with a new implant, that Ms. Wilkinson was on
the waiting list for similar surgery, and that both experienced pain and
suffering and other damage as a result of the failures.

[9]

The relevant provisions in respect of the respondents statutory claims are
set out in s. 4 of the
Business Practices and Consumer Protection Act
:

4
(1) In this
Division:

deceptive act or practice
means,
in relation to a consumer transaction,

(a) an
oral, written, visual, descriptive or other representation by a supplier, or

(b) any
conduct by a supplier

that has the capability, tendency or effect of deceiving or
misleading a consumer or guarantor;

representation

includes
any term or form of a contract, notice or other document used or relied on by a
supplier in connection with a consumer transaction.

...

(3) Without limiting subsection
(1), one or more of the following constitutes a deceptive act or practice:

...

(b) a representation by a
supplier

vi)  that uses exaggeration, innuendo or ambiguity about
a material fact or that fails to state a material fact, if the effect is
misleading ....

[10]

The respondents pleaded, and it was not disputed, that the appellants and
respondents were suppliers and consumers respectively and that they were engaged
in consumer transactions. The respondents alleged deceptive and misleading acts
and omissions by the appellants as follows:

27.       The Defendants conduct in their solicitations,
offers, advertisements, promotions, sales and supply of the Product, as
particularized above, had the capability, tendency or effect of deceiving or
misleading consumers regarding the safety and efficacy of the Product. The
Defendants conduct in its solicitations, offers, advertisements, promotions,
sales and supply of the Product were deceptive acts and practices contrary to
s.4 of the BPCPA. The Defendants deceptive acts and practices include the
Defendants failure to properly disclose all material facts regarding the
safety and efficacy of the Product.

28.       Further, in their
marketing brochures, promotional materials, and website directed both to
consumers and their physicians, the Defendants made representations concerning
the efficacy of the Product, including a description of studies that suggested
that the Product had a success rate of up to 99%. In reality, the Products
failure rate is unreasonably high compared to other, available implants. The
Defendants knew or ought to have known that their marketing claims regarding
the Product were inaccurate, incomplete or misleading, and that the Product had
an unreasonably high failure rate. Such marketing claims were deceptive and had
the tendency, capability or effect of misleading consumers and their
physicians.

The Evidence

[11]

The respondents and Gloria McSherry, the proposed representative
plaintiff in a parallel action in Ontario, gave evidence by affidavit that they
received Durom Cup hip implants in January 2008, April 2008, and August 2007
respectively. All said they subsequently suffered debilitating pain in the
region of their replaced hip, and that they had surgery to remove and replace
the Durom Cup in May 2009, October 2009, and June 2010 respectively. Mr. Jones
surgeon said, in his operative note, that the Durom Cup was tapped and easily
removed showing no bony ingrowth in any area. Ms. Wilkinson deposed that
she was awake and aware during her replacement surgery and remembers the Durom
Cup popping out merely with the force of her surgeons hand. Ms. McSherrys
surgeon said, in his operative note, Durom cup appeared to be solid but
following removal there was no bone ingrowth on cup.

[12]

In April 2008, an American orthopaedic surgeon published a letter he
wrote to his colleagues in the American Association of Hip and Knee Surgeons
advising of several Durom Cup failures among his patients.  As a result, the
appellants undertook an investigation and, on July 22, 2008, they issued
an Urgent Device Correction letter to U.S. surgeons to whom they had supplied
Durom Cups. In the letter, they attributed the failures to the surgical
techniques used by the doctors and disclaimed any defect in the Durom Cup. The
letter said their investigation led them to conclude that additional surgical
technique instructions and training are necessary for surgeons in the U.S. and
strongly recommended that U.S. surgeons stop implanting the
Durom
Cup until
receiving such training. The letter announced that the appellants would
suspend marketing and distribution of the Durom Cup in the U.S. while we
update product labeling to provide more detailed surgical technique
instructions and implement a surgical training program for U.S. surgeons. It
added that they had found [n]o evidence of a defect in the materials,
manufacture, or design of the Durom Cup. The letter also stated the appellants
would be developing a comprehensive surgical skills training curriculum,
working with experts in the U.S. and in Europe and that the Cup would be made
available to surgeons as they complete training.

[13]

Also on July 22, 2008, the appellants published a press release
announcing the suspension of marketing and distribution of the Durom Cup in the
U.S. and adding that it would continue to be marketed outside the U.S.,
including in Canada where it had been made available in 2003. The press release
contained this passage:

Data from clinical trials
sponsored by Zimmer and conducted outside the U.S. have demonstrated no
revisions with the
Durom
Cup in 386 cases, after two to seven years of
follow-up. In addition, the Swedish Registry, an independent total joint
registry, reports a 99.5 percent survivorship with the
Durom
Cup (222
patients with three-year follow-up).

[14]

In a letter of October 3, 2008 to Canadian Durom Cup users, the
appellants described their U.S. investigation and stated that because
substantial surgeon training for the
Durom
Cup has been offered in
Canada since the system ... was launched, and because the reported clinical
results for the
Durom
Cup in Canada have been excellent, Zimmer
determined that no suspension of marketing in Canada is required. The letter noted
that, over the next several weeks, they would provide updated Instructions For
Use ... commonly called package inserts or product labeling, as well as updated
surgical techniques that will include more detailed surgical technique
instructions in Canada, as has already been done in the US.

[15]

One year later, in response to reports of Durom Cup implant failures in
Europe, the appellants issued an Urgent Field Safety Notice to surgeons using
the Durom Cup in Europe. The notice, dated October 13, 2009, stated that
the most probable root cause of the failures was the use of incorrect surgical
technique and advised that additional training was required and that the
surgeons would receive updated written surgical techniques, a training DVD,
and knowledge checks to be completed before they could obtain further supply
of the Cup.

[16]

On November 9, 2009, the appellants sent a letter to Canadian user surgeons
in which they advised of the reports of revision surgeries in Europe involving
loose Durom Cups. The letter stated that the most probable root cause for the
reported revisions for loose acetabular cups is using a surgical technique
which differs from that prescribed in the surgical technique for the
Durom
Acetabular
cup. They enclosed updated surgical techniques, the training DVD, and the
knowledge-check questionnaire, and said Canadian surgeons would not be
supplied with further Durom Cups until they certified to the appellants that
they had reviewed and understood the updated instructions and the DVD and had
completed the knowledge-check questions.

[17]

Also enclosed with the letter of November 9 was an Urgent Field Safety
Notice to Canadian surgeons, which the appellants delivered concurrently to
Health Canada and which was subsequently published by Health Canada on December 7,
2009. The notice advised that the appellants had concluded that the most
probable root cause of the reported failures in Europe was deficient surgical
technique. This document fell within the definition of a recall in s. 1
of the
Medical Devices Regulations
(enacted pursuant to the
Food and
Drugs Act
, R.S.C. 1985, c. F-27) and as such it was posted on Health Canadas
Medical Device Recall List from October 2009 to December 2009.

[18]

The appellants were required to deliver Medical Devices Problem
Reports to Health Canada in respect of all Canadian revision surgeries. As of September 1,
2010, there had been 33 such reports delivered since March 2008 and others were
in process. Nineteen of these reports described patient pain in the hip and
groin area and eleven referred to Cup loosening and/or absence of bone
ingrowth.

[19]

Also in evidence was an excerpt from a Correction and Removal Report
dated July 31, 2008 submitted by the appellants to the U.S. Food and Drug
Administration. The accompanying letter advised the FDA that the appellants had
received some reports of persistent post-operative pain, dislocation, and
loosening of the acetabular implant leading to revision surgery and said the
purpose of the submission was to report their corrective actions. Included in
the report was a table listing 51 revision surgeries reported in Medical Device
Reports filed between March 16, 2006 and July 15, 2008, of which 45
reported pain, loosening, and/or lack of bone ingrowth as the reason for the
revision.

[20]

The respondents placed in evidence the expert opinion of Dr. Nizar
Mahomed, an orthopaedic surgeon with extensive experience in adult hip and knee
replacement surgeries. His qualifications were not challenged by the
appellants. Dr. Mahomed stated he had reviewed the Urgent Device
Correction sent by the appellants in July 2008 to American orthopaedic
surgeons (described in paragraph 12 above); a published medical article by Long
et al, Failure of the Durom Metasul Acetabular Component, Clin Orthop Relat
Res (2010) 468:400-405; the Urgent Field Safety Notice dated October 13,
2009 sent by the appellants to European orthopaedic surgeons (described in
paragraph 15 above); and the recall listing on Health Canadas website
indicating a recall for the Durom Cup posted December 7, 2009 (described
in paragraph 17 above), copies of all of which he attached to his opinion.

[21]

Dr. Mahomed opined,

Based on the information in these four documents including
the excellent peer reviewed published article by Long et al about the
performance of the Zimmer Durom Cup, there is clear concern about the clinical
performance of this device in the clinical situation. The failure rates
reported by Long et al are quite concerning and clearly not in keeping with
what would be expected for the clinical performance of an average total hip
replacement device.

The revision rates quoted in the
paper, as well as in Zimmers own documents to surgeons in the United States
would quote revisio[n] rates ranging from 1 to 15% at one to two years post
surgery; this failure rate is far in excess of what would be expected in the
performance of an average hip replacement done at this point in time.

[22]

In reference to the respondents emphasis on surgical technique as the
cause of the failures, Dr. Mahomed opined as follows:

The documents provided point toward surgical technique as the
cause of failure for the implants. In the materials provided, including the
materials Zimmer United States to the Zimmer Orthopaedic Surgeons, the
technique described in that document is not significantly different than what
would be described for insertion of a standard uncemented acetabular component.
The articles from Long et al highlights the issues of difficulty in adequate
insertion and fixation of this device, given its unique geometric construct,
particularly the fact that this is not a hemispherical cup but it has multiple
radii of curvature making fixations and insertion technically much more
demanding and challenging. Given this scenario, it would in my opinion, be the
manufacture[rs] responsibility to provide adequate information and training to
surgeons who choose to use this device, in order to obtain optimal clinical
performance. Given the unique geometric design of this implant, it would be the
manufacturers responsibility to highlight changes in surgical technique over
the standard technique most surgeons would employ to insert an uncemented
acetabular component.

Furthermore, as Zimmer in the US
moved towards requiring surgeons to complete adequate training prior to further
distribution of their implant. This strategy should have been implemented by
the manufacturer before allowing clinical use of the device from the outset
given the change in decision philosophy of this device.

[23]

In response, the appellants filed the opinion of Dr. Etienne
Belzile, also a well-qualified orthopaedic surgeon with extensive experience in
hip replacements, including replacements done with the Durom Cup. Dr. Belzile
disagreed with Dr. Mahomeds opinion. In his view, revisions of the Durom
Cup implants would have been dependent on a number of individualized factors
unique to each patient. Further, he said, acetabular cups like the Durom Cup
can become loose for a variety of reasons having nothing to do with the device
itself, including the patients post-operative care and activities. Relying on
information provided by the appellants, he derived a reported revision rate for
Canadian Durom Cup recipients of 0.67% which, in his opinion, was very low
and does not present a cause for concern about the safety and effectiveness of
this device as used in Canada. He opined that no one could state, to a reasonable
degree of medical certainty, that these 33 patients shared a common clinical experience.
On reviewing the affidavit evidence given by the respondents, he concluded it
could not be said to a reasonable degree of medical certainty that they shared
a common clinical experience. He observed that it appeared to him that Dr. Mahomed
has no actual clinical experience with the Durom Cup and that his conclusions
were based on a review of events in the U.S. without reference to the Canadian
clinical experience. Dr. Belzile said it appeared to him the revision
rates in Europe and the U.S. were quite different and not analogous to the
Canadian revision rate. He stated that Dr. Mahomeds opinion ignores the
plethora of reasons that any implantable medical device, including the Durom
Cup, might fail.

[24]

Dr. Mahomed replied. He said personal experience with the Durom Cup
does not have a meaningful bearing on the matter since there are established
clinical standards for implants in the published literature. He acknowledged
there are multiple reasons for requiring hip replacement surgery, but said the
majority of Durom Cup failures

are occurring due to significant
or persistent pain as a result of implantation of this device and this failure
is not the common mode for revision hip surgery in the short post-operative
follow-up period as is the case that has been reported for Durom cup.

He added it was not reasonable to imply that patient outcome
is dependent on post-operative care and activity since established clinical
expectations of performance for such a hip implant would not require specific
special precautions. He said that since the clinical design and recommendations
for use of the Durom Cup are materially the same in all jurisdictions, the
lower Canadian reporting rate of failure may represent under-reporting rather
than a unique clinical performance of the Durom Cup in Canada versus the United
States. He repeated his opinion that the early failure rate is a matter of
clinical concern and added, [e]ven if there were only a relatively small
number of failures in Canada, as is suggested in Dr. Belziles report,
this would still be cause for concern and the failures of the Durom cup
reported in the literature are fundamental to how the device is supposed to
function.

The Certification Decision

[25]

The certification judge correctly noted that the burden on the
respondents to show some basis in fact to support the proposed common issues
was not an onerous one. He concluded the burden had been met. He said the
evidence given by Mr. Jones, Ms. Wilkinson, and Ms. McSherry
raises the question of the cause of the failure of the Durom Cup to attach
itself to the bone or what is described as the lack of ingrowth. He referred
to the evidence of at least 33 failures of Durom Cup implants in Canada and
observed that the appellants evidence of the number of suspected failures in
Canada did not correspond with the experience in the U.S. and Europe even
though the clinical design and recommendations for use of the Durom Cup are
materially the same in all jurisdictions. He mentioned the appellants July
2008 suspension of marketing and distribution of the Cup in the U.S. because of
elevated revision rates and the appellants announced conclusion that
additional instructions and training in surgical technique were necessary. He
referred to the similar events in Europe and the Safety notices issued by the
appellants in Europe and in Canada in the fall of 2009. As well, he noted that
the Urgent Safety Notice sent to Health Canada that identified inappropriate
surgical technique as the most probable root cause of the failures was not
conclusive of the cause and that the appellants notices made it clear that
the surgical techniques in use had to be reviewed as they appear to have been
defective. Further, he found that the appellants warning letter to Canadian
surgeons was a recall of the Durom Cup within the regulatory definition of
that word. He concluded, echoing the opinion of Dr. Mahomed, that there
is a clear concern about the performance of the Durom Cup in clinical
situtations.

[26]

The certification judge rejected the appellants submission that,
because each implant failure was unique with a multitude of possible causes and
because causation must be determined on a patient-by-patient basis, the defect
question was not a common issue for all class members. He quoted
Harrington
v. Dow Corning Corp.
, 2000 BCCA 605 at paras. 42-46, 82 B.C.L.R. (3d)
1, leave to appeal refd [2001] S.C.C.A. No. 21, to point out that the
determination of individual causation and damages is the
last
step in a
product liability action.

[27]

As for the sufficiency of the evidence of some basis in fact, he mentioned
the difficulty faced by the respondents in showing a defect at the
certification stage when they had not yet had any discovery from the appellants
of the relevant aspects of the design and intended function of the Durom Cup, which
he described as a highly technical medical device, and observed that it is
difficult to see how the plaintiffs could present any more evidence than they
have done at this Chambers hearing in support of their allegation that the
Durom Cup was defective.

[28]

The certification judge referred to the conflicting expert opinions and
said he did not have to resolve the conflict because the certification decision
was not a decision on the merits. In this regard, he referred to
Chalmers v.
AMO Canada Company
, 2009 BCSC 689 at para. 17, 178 A.C.W.S. (3d) 313,
affd 2010 BCCA 560, 297 B.C.A.C. 186.

[29]

Accordingly, he concluded that whether the Durom Cup was defective or
unfit for its intended use was a question common to the claims of all class
members and that the determination of this question would move the litigation
along.

[30]

Next, the certification judge concluded that whether the appellants breached
a duty of care owed was a question common to all class members and did not
depend on their individual evidence. He observed, as I understand his reasons,
that whether the appellants owed a duty to warn regarding deficiencies in the
surgical technique originally recommended by them as soon as that was
discovered by them would be subsumed in this question.

[31]

As for the statutory claim, the certification judge began by summarizing
the appellants position that there was no evidence of any representation ever
made to the respondents or to any class member and no evidence that any class
member suffered loss or damage as a result of any representation. As well, he
noted the respondents position that the
Business Practices and Consumer
Protection Act
addresses conduct and representations by a supplier to the
world at large in the marketing of its products, rather than to individual
consumers.

[32]

He accepted the respondents submission, adopting a passage from
Wakelam
v. Johnson & Johnson
, 2009 BCSC 839 at para. 39, 179 A.C.W.S. (3d)
809, in which the Court said whether a representation was deceptive or
misleading does not depend on an individual inquiry but can be litigated
without reference to the circumstances of the representative plaintiff or
individual class members.

[33]

He added that the respondents claim was also based on the appellants
failure to state a material fact. In this regard, he noted that the appellants
did not publish the Field Safety Notification in Canada until December 7,
2009, while they had suspended marketing and distribution in the U.S. in July
2008 and had issued an Urgent Safety Notice in Europe in October 2009, and
that it remained to be determined how many failed Durom Cups had been implanted
in Canadian residents during that intervening period of time.

Discussion

[34]

The appellants submit the certification judge failed to appreciate that
whether the Durom Cup was defective and/or unfit for its intended use could not
be certified as a common issue unless there was some evidence that the cause of
the failures in Canada was a defect in the Cup and some evidence that these defects
were common across the class. They note that the respondents pleaded the Cup
was defective because it failed to adhere to the surrounding bone but did not plead
any causal connection between this outcome and any particular defect. In their
submission, it should have been fatal to the certification application that
there was no evidence before the certification judge of any specific defect or
of any causal relationship between such a defect and the Canadian hip implant
revisions identified in the evidence.

[35]

Similarly, the appellants contend there was no evidence of any
particular deficiency in their initially-recommended surgical technique and no
evidence of any causal relationship between any such deficiency and the failed Canadian
implants.

[36]

In order to establish liability in negligence, each class member must
ultimately prove that a specific defect in the Durom Cup or deficiency in the
surgical instructions was a cause of the failure of his or her hip implant.
However, proof of a causal connection between a defect or deficiency and an
individual plaintiffs failed implant is, along with damages, the final step in
a product liability action:
Harrington
at para. 46. Causation and
damages are individual issues, but proof of a defect in the Cup or a deficiency
in the surgical instructions is a substantial and necessary factual link in the
chain of proof leading to liability for every member of the class. One or more
of the respondents allegations of defects and deficiencies must be proven
before the question of individual causation can be reached. It follows that
proof of a defect in the cup or a deficiency in the surgical instructions is an
issue common to all plaintiffs, the resolution of which will move the
litigation along significantly. Accordingly, I would reject the submission that
the chambers judge erred in certifying question (a) as a common issue without
evidence of a specific defect or deficiency and without evidence that specific
defects or deficiencies were common to the failed implants of all class
members.

[37]

Next, the appellants contend the respondents failed to establish some
basis in fact for certification of the common issues.

[38]

First, in the appellants submission, the evidence of events in the U.S.
and Europe and of their responses to these events was irrelevant and the
certification judge erred in relying on it. They say their investigations
established that the problem in both instances was surgical technique rather
than anything to do with the Durom Cup itself. They note that there was no
evidence that any Canadian surgeons were not employing proper surgical
techniques and emphasize their evidence that the updated instructions to
Canadian surgeons were merely precautionary. Thus, they argue, the evidence
of events in the other jurisdictions lacked any nexus to Canada that would make
such evidence relevant on the certification application.

[39]

I am unable to accept this submission.

[40]

To be admissible, evidence must be relevant. In
Anderson v. Maple
Ridge (District)
(1992), 71 B.C.L.R. (2d) 68 at para. 17, [1993] 1
W.W.R. 172 (C.A.), Mr. Justice Wood (as he then was), writing for the
Court, described relevance as follows:

Evidence is relevant if it is
logically probative of either a fact in issue or a fact which itself is
probative of a fact in issue. Evidence which tends to make the existence of a
fact in issue either more or less probable is logically probative of that fact:
see Stephen,
A Digest of the Law of Evidence
, 12th ed. (London:
MacMillan & Co., 1948), art. 1;
Cross on Evidence
, 7th ed. (London:
Butterworths, 1990), p. 51; Thayer,
A Preliminary Treatise on Evidence at
the Common Law
(Boston: Little, Brown & Co.,1898), pp. 264-65.

See also, to the same effect,
R. v. Watson
(1996), 108 C.C.C. (3d) 310 at 323-24, 30 O.R. (3d) 161 (C.A.):

Relevance as explained in these
authorities requires a determination of whether as a matter of human experience
and logic the existence of
Fact
A makes the existence or non-existence of Fact B more
probable than it would be without the existence of
Fact
A. If it does then
Fact
A is relevant to Fact B. As long as Fact B is itself a
material fact in issue or is relevant to a material fact in issue in the
litigation then
Fact
A is
relevant and
prima facie
admissible.

[41]

Here, the fact in issue is that the failure of the Durom Cup implants
received by class members resulted from a defect in the Cup or a deficiency in
the surgical instructions for which the appellants are responsible. It is not
disputed that the Durom Cup was intended to adhere to the surrounding bone
following implant surgery. Therefore, evidence that it failed to do so in a
particular case is, as a matter of human experience and logic, circumstantial
evidence that is probative of the fact in issue.
Where
the implants
failed because the Cup did not adhere to the bone is immaterial.
That
the implants failed because the Cup did not adhere to the bone is relevant
because that fact makes it more probable than it would otherwise be that the
failures were a result of the appellants alleged delicts.

[42]

Similarly, evidence that the clinical design of the Cup and the
recommended surgical technique were materially the same in the U.S., Europe,
and Canada, coupled with the evidence that the appellants suspended marketing
of the Cup in the U.S. because of elevated revision rates and determined that additional
training in surgical technique was necessary in the U.S. and Europe as a result
of the elevated revision rates, also provided relevant circumstantial evidence
in support of the respondents allegations.

[43]

Relevance is not to be confused with weight. The weight to be afforded
relevant evidence is for the trial judge to consider in adjudging the merits of
the case. The certification judge is not to assess the merits. Rather, the
certification judge needs only to be satisfied that there is a minimum
evidentiary basis for the common issue.

[44]

Accordingly, evidence of the events in the U.S. and Europe was relevant
and the certification judge did not err in admitting and considering it.

[45]

The appellants second evidentiary objection is that the certification
judge erred in admitting and relying on the opinion of Dr. Mahomed because
it was based on hearsay statements taken from the article by Long et al and was
therefore inadmissible.

[46]

The appellants rely for this contention on
Ernewein v. General Motors
of Canada Ltd.
, 2005 BCCA 540, 46 B.C.L.R. (4th) 234. Mr. Ernewein
claimed that certain vehicles manufactured by the defendant had been
negligently designed such that they created a risk of harm to consumers in the
event of side-impact collisions. In support of his application to certify the
action as a class proceeding, Mr. Ernewein filed an affidavit of a lawyer to
which was exhibited a report prepared by an agency of the U.S. government
following an investigation of the safety of the vehicles in side-impact
collisions. The report supported Mr. Erneweins case and the certification
judge relied on it in certifying the action. However, the report was offered in
evidence as proof of its contents without any authentication or any attempt to
prove by admissible evidence that the statements in the report were true or the
conclusions were reliable. This Court observed on appeal that information that
does not meet the usual criteria for admissibility of evidence is not admissible
for purposes of a certification hearing (at para. 31). Thus, the report
was adjudged hearsay and inadmissible as evidence of the truth of its contents.

[47]

In this case, however, the evidence on which the respondents relied was
the expert opinion of Dr. Mahomed. The Long article merely provided one of
the bases of Dr. Mahomeds opinion. It was not offered as proof in itself
of the truth of its contents. Accordingly,
Ernewein
is materially
different on its facts and is of no assistance to the appellants.

[48]

The criteria for admissibility of expert opinion evidence are that the
expert must be properly qualified, the opinion must be relevant to a fact in
issue, the opinion must be necessary to assist the trier of fact to draw a
correct inference when the subject matter is likely outside the knowledge and
experience of the trier of fact, and the opinion must not otherwise be excluded
by an exclusionary rule of evidence:
R. v. Mohan
, [1994] 2
S.C.R. 9 at 20-25. Dr. Mahomeds opinion satisfied these criteria and was
therefore admissible.

[49]

Dr. Mahomed did not express an opinion on the respondents
contentions that the Durom Cup was defective and that the surgical instructions
were deficient. These contentions go to the merits of the respondents claims
and, at the appropriate time, would call for an expert opinion to the standard
of a reasonable degree of medical certainty or its equivalent, the standard
to which Dr. Belzile adverted. Rather, Dr. Mahomeds opinion was that,
given the information he reviewed, including the Long article, there was reason
to be concerned about the efficacy of the Durom Cup and the surgical
instructions provided with it. Dr. Mahomed did not comment on the truth of
any of the statements made or on the quality of any opinion expressed or
conclusion reached in the Long article. He characterized the article as an
excellent peer reviewed published article and, as such, its publication was a
fact supporting his conclusion that there was reason for concern.

[50]

Moreover, even if Dr. Mahomeds opinion was based in part on
hearsay, that is no objection to its admissibility. Experts must as a matter of
practical necessity rely on second-hand source material for their opinions. Proponents
of expert opinions cannot be expected to prove independently the truth of what
the experts were taught by others during their education, training, and
experience or the truth of second-hand information of a type customarily and reasonably
relied upon by experts in the field. Accordingly, the degree to which an expert
opinion is based on hearsay evidence is a matter to be considered in assessing
the weight to be given the opinion:
R. v. Wilband
, [1967]
S.C.R. 14 at 21, [1967] 2 C.C.C. 6;
R. v. Lavallee
, [1990] 1
S.C.R. 852 at 896, 899-900, 55 C.C.C. (3d) 97.

[51]

Assessing the weight of the evidence was within the province of the
certification judge. This Court will not substitute its view of the weight of
the evidence and will not interfere with the certification judges assessment in
the absence of an error in principle or unless he was clearly wrong. In my
view, neither ground for interference was shown here.

[52]

Accordingly, I would not accede to the appellants submission that the
certification judge erred in admitting and relying upon Dr. Mahomeds
opinion.

[53]

Finally, the appellants submit the certification judge erred in
certifying the statutory common issue since there was no evidence that the
appellants committed any deceptive acts or engaged in any deceptive practices
in British Columbia. Clearly, the
Business Practices and Consumer Protection
Act
, a provincial statute, can have no application to deceptive acts and
practices occurring outside the territorial boundaries of this province.

[54]

The respondents allege the July 22, 2008 press release issued by
the appellants, which claims a 99.5 percent survivorship with the
Durom
Cup (222 patients with three-year follow-up) in Sweden, was deceptive and
misleading because, in Dr. Mahomeds opinion, the published revision rates
quoted in the Long paper and those set out in the appellants documents sent to
U.S. surgeons demonstrated a failure rate [that] is far in excess of what
would be expected in the performance of an average hip replacement done at this
point in time. However, there is nothing in the evidence to suggest that this
representation was published anywhere other than in the United States. The
respondents identify no similar statement made in British Columbia and I
therefore agree with the appellants that the respondents have shown no
deceptive or misleading statement that would be actionable under the statute.

[55]

However, the respondents point out that a representation under s. 4(3)(b)(vi)
includes a failure to state a material fact if the effect is misleading. The
certification judge found there was a basis in fact for the statutory common
issue on this ground. As I have already noted, he said the appellants did not
publish the Field Safety Notification in Canada until December 7, 2009,
while they had suspended marketing and distribution in the U.S. in July 2008
and had issued an Urgent Safety Notice in Europe in October 2009, and that it
remained to be determined how many failed Durom Cups had been implanted in
Canadian residents during that intervening period of time.

[56]

That a failure to state a material fact can ground a claim of deceptive
acts or practices under s. 4 has been confirmed since the hearing of this
appeal: see
Stanway v. Wyeth Canada Inc.
, 2012 BCCA 260 at para. 80,
34 B.C.L.R. (5th) 85.

[57]

The appellants also argue that the statutory common issue could not be
certified in the absence of some basis in fact that the respondents relied on
the alleged deceptive acts and practices. They cite a passage from
Loychuk
v. Cougar Mountain Adventures Ltd.
, 2012 BCCA 122 at paras. 59-60, 31
B.C.L.R. (5th) 23, in support of this argument. However,
Loychuk
was not
an action brought under the statute. Rather, the appellants, who were injured
in an accident on the respondents zip-line, claimed damages for the
respondents negligence and they invoked the statutory provisions in an attempt
to avoid the effect of liability waivers they had signed. In the passage in
question, the Court noted that the appellants could not resist the operation of
the waivers on the basis of allegedly deceptive statements unless they showed
they had relied on the statements. These remarks must be considered in their
particular context and they are of no assistance to the appellants for present
purposes. It may be that class members who claim compensatory damages pursuant
to the
Business Practices and Consumer Protection Act
will have to prove
reliance to recover them. However, that question does not arise at the
certification stage. All that is required at this stage is a common issue the
resolution of which will move the action along. I am satisfied that the
certification judge did not err in certifying the statutory common issue for
trial on that basis.

[58]

For the reasons I have set out, I would dismiss the appeal.

The Honourable Mr. Justice K. Smith

I agree:

The
Honourable Mr. Justice Chiasson

I agree:

The
Honourable Madam Justice Bennett


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Kahnapace,

2013 BCCA 45

Date: 20130122

Docket:
CA039658

Between:

Regina

Respondent

And

Martha May
Kahnapace

Appellant

Before:

The Honourable Mr. Justice Tysoe

The Honourable Madam Justice Neilson

The Honourable Madam Justice Bennett

On appeal from:
Supreme Court of British Columbia, June 17, 2011
(
R. v. Kahnapace
, Vancouver Registry 23674)

Oral Reasons for Judgment

Counsel for the Appellant:

S.J. Rauch

Counsel for the Respondent:

M.T. Ainslie

Place and Date of Hearing:

Vancouver, British
  Columbia

January 22, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 22, 2013

[1]

NEILSON J.A.:

On
June 17, 2011, following a trial before a judge and jury,
Ms. Kahnapace was convicted of the second degree murder of Donald Wall,
her former common law husband. She appeals that conviction arguing, among other
things, that the trial judge erred in his instructions to the jury on the
mental element of the crime and on the impact of intoxication on her mental
state.

[2]

The Crown agrees the trial judge erred in charging the jury in these
areas, and that these errors are cumulatively of such significance that they
cannot be remedied by the curative proviso in s. 686(1)(b)(iii) of the
Criminal
Code
. It therefore concedes the appeal must be allowed and a new trial
ordered.

[3]

For the following reasons, I am satisfied the Crowns concession is
appropriate.

Background

[4]

As there is to be a new trial I will not deal with the facts in detail.
Briefly, on November 29, 2005, following a day of drinking alcohol, taking
cocaine, and arguing in the apartment they had shared, Ms. Kahnapace
stabbed Mr. Wall in the chest with a knife. The knife punctured his heart.
Assistance was summoned promptly, but he died of his wound several days later.

[5]

Ms. Kahnapace was initially tried before a judge and jury in June
2007. The sole issue was whether the Crown had established she had the
requisite intent for second degree murder, or whether she was guilty of the
lesser offence of manslaughter. The jury convicted her of second degree murder.
Ms. Kahnapace successfully appealed that conviction to this Court, and a
new trial was ordered: 2010 BCCA 227, 255 C.C.C. (3d) 342 [
Kahnapace #1
].

[6]

At that trial, which is the basis for this appeal, Ms. Kahnapace
admitted stabbing Mr. Wall and conceded she was guilty of manslaughter.
She again maintained, however, that the Crown had not established the requisite
intent for second degree murder, either because of her alcohol and drug consumption,
or because Mr. Wall had provoked her within the meaning of s. 232 of
the
Criminal Code
and she was acting in the heat of the moment. She was
again convicted of second degree murder.

Discussion

[7]

In conducting review of a trial judges charge an appellate court must
not examine whether the judge recited a particular formula, but instead should
consider the general sense that the judges words conveyed to the jury. It must
look to the charge as a whole in the context of the entire trial and consider
its overall effect:
R. v. Daley
, 2007 SCC 53 at paras. 30-31,
58, [2007] 3 S.C.R. 523.

[8]

The Crowns case against Ms. Kahnapace focussed on the secondary
definition of murder in s. 229(a)(ii) of the
Criminal Code
:

229. Culpable homicide is murder

(a)
where the person who causes the death of a human being

...

(ii)
means to cause him bodily harm that he knows is likely to cause his death, and
is reckless whether death ensues or not ...

[9]

Thus, the Crown had to prove not only that Ms. Kahnapace intended
to cause Mr. Wall bodily harm, but also that she knew that stabbing him
was likely to cause his death, and she was reckless as to whether death would
result from her actions. This is a subjective intent, and the Crown was obliged
to prove that Ms. Kahnapace actually intended to cause bodily harm that
she knew or actually foresaw was likely to cause death:
Kahnapace #1
at paras. 25-26.

[10]

As well, it was undisputed that there was evidence of intoxication
which, if accepted, could have impaired Ms. Kahnapaces ability to foresee
the consequences of her actions, and thus preclude a conviction for second
degree murder.

[11]

The Crown concedes that, in instructing the jury, the trial judge erred
in three respects. Ironically, these errors mirror some of those that led to an
order for a new trial in
Kahnapace #1
.

[12]

First, the Crown concedes the trial judge, in his charge and in his
other communications to the jury, erred in law by repeatedly using an abbreviated
description of the intent for second degree murder required under
s. 229(a)(ii). Instead of setting it out fully, he used the phrase intent
to wound to describe this intent. At no time did he define this term for the
jury, or explain that it was a convenient abbreviation for the more extensive
intent that the Crown must establish. Of particular significance, this error
was evident in both his instructions on intent, and on the impact of
intoxication on Ms. Kahnapaces state of mind.

[13]

In
R. v. Dove

(#1)
, 2004 BCCA 338, 187 C.C.C. (3d) 506, this
Court commented adversely on the practice of using abbreviations for a critical
element in s. 229(a):

[23]      I
am also sympathetic to the trial judges desire to condense his charge
following such a lengthy trial. In my view, however, the use of abbreviations
for the critical element the jury had to decide was a form of false economy
which had the potential to jeopardize the entire process. While stating and
restating the full intent under s. 229(a) of the
Code
is somewhat
cumbersome, I think the repetition of the elements of the second intent, in
particular, is important in bringing home to the jury the essential elements of
the second intent. Abbreviating this aspect of the charge, where intent is the
most critical issue in the trial, poses a potential danger which can, and
should, be avoided.

[14]

The impact of such unwarranted abbreviation was also dealt with in
Kahnapace #1
,
where a similar error was made:

[34]      The
next issue arises in the trial judges recharge to the jury on the link between
the evidence of intoxication and the intent for murder (see para. 11
above). There, the trial judge erroneously described the secondary intent for
murder under s. 229(a)(ii) in an abbreviated form by stating that murder is
not committed if Martha Kahnapace lacked the required intent, that is that she
intended to kill Donald Wall or that she intended to cause him bodily harm that
was likely to cause death. This instruction erroneously makes no reference to
an essential element of s. 229(a)(ii) being that of the accuseds knowledge or
subjective foreseeability of the likely consequence of death or risk of death.
In the next passage (in para. 11 above) the trial judge then instructed the
jury to consider this intent (referring to the abbreviated version of s.
229(a)(ii)) in deciding what effect, if any, the evidence of intoxication may
have had on [Ms. Kahnapaces] state of mind ... at the time that the unlawful
act occurred, that is the stabbing. This instruction repeats the error by
instructing the jury to consider the evidence of intoxication in reference to
the abbreviated instruction on the secondary intent for murder and failing to
link the evidence of intoxication to the element of knowledge or subjective
foreseeability in s. 229(a)(ii).

[15]

I appreciate the trial judge did give the jury a copy of
s. 229(a)(ii), and occasionally described the required intent in full in
his instructions. I am nevertheless satisfied that, when the charge is
considered as a whole, his pervasive use of the abbreviated description of
intent presents a significant danger that the jury may have collapsed the issue
of intent to the sole question of whether Ms. Kahnapace intended to wound
Mr. Wall, and may not have appreciated that the Crown also had to prove
that she subjectively knew or foresaw that his death was a likely consequence
of her action, and she was reckless as to whether death occurred.

[16]

The second error arises from the trial judges repeated reference to the
common sense inference that a person usually intends the natural consequences
of their acts as a presumption in his charge to the jury, and his failure to
properly instruct them on how to apply that inference, in light of the evidence
concerning Ms. Kahnapaces consumption of alcohol and cocaine.

[17]

While the term presumption was used in this context historically, the
Supreme Court of Canada in
R. v. Robinson,
[1996] 1 S.C.R. 683
at para. 62, 105 C.C.C. (3d) 97, and
R. v. Seymour
,
[1996] 2 S.C.R. 252 at para. 20, 106 C.C.C. (3d) 520, rejected this term,
and found it preferable to refer to a common sense inference that juries may,
but not must, draw. That Court recently affirmed this view in
R. v. Walle
,
2012 SCC 41, 284 C.C.C. (3d) 153:

[63]      In
my view, instructing a jury on the common sense inference serves a useful
purpose. It provides the jury with a marker against which to measure the rather
amorphous concept of intent. A proper instruction also sounds a cautionary note.
The jurors are admonished that the inference is permissive, not presumptive,
and that before acting on it, they must carefully consider the evidence that
points away from it. That is important. Left to its own devices, a jury might
too readily turn to common sense for an answer, especially in cases like the
present one, where common sense might suggest that anyone who fires a gun into
a persons chest at close range would surely be aware of the consequences.

[18]

Furthermore, where there is evidence of intoxication,
Seymour
and
Robinson
hold that the trial judge must provide instructions that draw a
direct link between the effect of intoxication and the common sense inference.
In
Kahnapace #1,
this Court referred to the relevant parts of these
decisions:

[39]      The
trial judge further erred in law in instructing the jury on the link between
the evidence of intoxication and the use of the common sense inference. Where
the defence of intoxication is put to the jury,
Seymour
has stated that
two further instructions are required: (i) that the evidence of intoxication
may rebut the common sense inference, and (ii) if the jury has a reasonable
doubt about the accuseds intention it must not apply the common sense
inference. At para. 23 of
Seymour
the Court described the requirements
as follows:

It
is common knowledge that a significant degree of intoxication may affect a
persons state of mind and thus the ability to foresee the consequences of
actions. It is, therefore, essential for a trial judge to link the instructions
given pertaining to intoxication to those relating to the common sense
inference so that the jury is specifically instructed that evidence of
intoxication may rebut that inference. See
Robinson
, at para. 65.
A
trial judge is obliged to ensure that the jury understands two important
conditions: (1) the reasonable common sense inference may be drawn only after
an assessment of all of the evidence, including the evidence of intoxication;
and (2) the inference cannot be applied if the jury is left with a reasonable
doubt about the accuseds intention
. [Emphasis added.]

...

[41]      Here,
the trial judge did not provide the specific instructions on the direct link
between the effect of intoxication and the common sense inference as outlined
in
Seymour
and reiterated in
Daley
. The failure to do so was said
in
R. v. Robinson
, [1996] 1 S.C.R. 683 to amount to reversible error:

[65]      The
respondent correctly argues, in my view, that where there is some evidence of
intoxication, a trial judge must link his or her instructions on intoxication
with the instruction on the common sense inference
so that the jury is
specifically instructed that evidence of intoxication can rebut the inference
.
In both the model charges set out in
MacKinley
and
Canute
, this
approach is taken.
This instruction is critical since in most cases jurors
are likely to rely on the inference to find intent. Moreover, if no instruction
is given, then a confused jury may see a conflict between the inference and the
defence and resolve that conflict in favour of their own evaluation of common
sense
(see
Korzepa
at p. 505). Therefore, an instruction which does
not link the common sense inference with the evidence of intoxication
constitutes reversible error. In this case, the trial judges failure to make
this linkage constitutes reversible error. [Emphasis added.]

[19]

In
Kahnapace #1
, the Court

concluded the trial judges use
of the word presumption, and her failure to draw the necessary link,
constituted two of the cumulative errors that led to the order for a new trial.

[20]

The trial judges charge in this case contained similar errors. While he
occasionally referred to the common sense inference, he more frequently used
the terms common sense presumption, or provisional presumption. This leads to
a concern that the jury may have erroneously presumed what Ms. Kahnapace
intended when she stabbed Mr. Wall, instead of properly assessing her
actual intent, and then deciding whether they could draw the common sense
inference, a matter that lay in their discretion only after they had assessed
all of the evidence.

[21]

As well, the trial judge failed to instruct the jury at all on the
second element required by
Seymour
, that they could not rely on the
inference if they had a reasonable doubt about Ms. Kahnapaces intention.

[22]

The third error on which there is consensus is the trial judges failure
to properly instruct the jury on how Ms. Kahnapaces consumption of
alcohol could have affected her ability to subjectively appreciate and foresee
the consequences of her actions.

[23]

This was a case in which the evidence established advanced intoxication.
The law is clear that in such circumstances the jury must be told about the
potential effect of intoxication on the accuseds ability to foresee the
natural consequences of her actions, in particular that the bodily harm
inflicted was likely to cause death. The Supreme Court gave guidance on the
appropriate charge to be given in such circumstances in
Daley
at
paras. 51-53. As well, in
Kahnapace #1
this Court affirmed the
importance of instructing the jury on the link between intoxication and each
element of intent under s. 229(a)(ii):

[37]      Although
the trial judge summarized for the jury the Crowns address that did include a
link between the evidence of intoxication and Ms. Kahnapaces ability to
foresee the natural and probable consequences of her actions, this was not
sufficient, in my view, to overcome the trial judges omission in her
instructions to make the link between the evidence of intoxication and Ms.
Kahnapaces knowledge or subjective foreseeability of the likely consequences
of her conduct. I am also not persuaded that this omission is rectified by the
functional approach to jury instructions as suggested by the Crown. While the
language employed to instruct a jury need not follow the exact words of the
relevant case authorities, it must still convey the meaning of the required
directions. That did not occur with this instruction as it did not make the
required link between the evidence of intoxication and each of the elements of
the intent under s. 229(a)(ii), namely that the accused meant to cause bodily
harm, that she knew was likely to cause death, and was reckless whether death
ensued or not.

[24]

Here, the trial judges use of the abbreviated phrase intent to wound
precluded an instruction that complied with that principle. This segment of his
charge exemplifies the difficulty this presented in describing the
interrelationship between the required intent and intoxication:

In
other words, members of the jury,
you must not convict unless you are sure
that the defendant, when she did the act, intended specifically to wound. In
deciding whether she intended, you must take into account the evidence that she
may have been drunk and/or affected by drugs
. If you think that because she
was so intoxicated by drink and drugs that she did not intend or may not have
intended then you must find her not guilty of that specific offence. But if you
are sure that
despite her drunkenness and the effect of the drugs she did
intend to specifically wound
then this part of the offence is proved
against her. As I said earlier, a drunk or drugged intent is still an intent.

So I think
this is the reason why I think you should deal with the defence of intoxication
first, because if you accept Ms. Kahnapaces evidence that she did not intend
specifically to wound then that ends the matter
.

[Emphasis
added.]

Conclusion

[25]

I am satisfied the errors of law identified by the parties are
significant and cannot be saved by the curative proviso in
s. 686(1)(b)(iii) of the
Code
:
R. v. Khan
, 2001
SCC 86 at paras. 29-31, [2001] 3 S.C.R. 823. I would therefore set aside Ms. Kahnapaces
conviction and order a new trial. That result renders it unnecessary to deal
with the balance of her grounds of appeal.

[26]

It is most unfortunate that Ms. Kahnapace must face a third trial
due to errors in the charge to the jury that so closely resemble the errors
that led to an order for a new trial in
Kahnapace #1
. This pattern
raises the question of whether trial judges may be relying too heavily on
outdated precedents in preparing their charges, instead of taking advantage of
the contemporary model jury charges available in both
CRIMJI:

Canadian
Criminal Jury Instructions
(4
th
ed. 2005) and Canadian Judicial
Council,
Model Jury Instructions
(2012) (online). Reference to the
suggested instructions in either of those sources may well have avoided these
errors.

[27]

I would allow the appeal from conviction and order a new trial.

[28]

TYSOE J.A.:
I agree.

[29]

BENNETT J.A.:
I agree.

[30]

TYSOE J.A.:
The appeal is allowed and a new trial is ordered.

The Honourable Madam Justice Neilson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Li v. Newson,

2013 BCCA 29

Date: 20130124

Docket: CA039525

Between:

Jiuwen Li

Respondent

(Plaintiff)

And

Jason Robert
Newson

Appellant

(Defendant)

Before:

The Honourable Chief Justice Finch

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Groberman

On appeal from:
Supreme Court of British Columbia, November 5, 2011
(
Li v. Newson
, New Westminster Docket M107521)

Counsel for the Appellant:

M.H. Wright

Counsel for the Respondent:

R. Marcoux

M.J. Neathway

Place and Date of Hearing:

Vancouver, British
  Columbia

January 9
th
,
  2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 24
th
,
  2013

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Groberman

Reasons for Judgment of the Honourable
Chief Justice Finch:

[1]

The defendant appeals from the judgment of the Supreme Court of British
Columbia following a trial by judge and jury, at which the jury held the
defendant liable to the extent of 75% for a motor vehicle accident which
occurred on 16 April 2007, and awarded damages to the plaintiff which
totalled about $640,000, which after reduction for the plaintiffs contributory
negligence of 25%, came to something in excess of $450,000.

[2]

On this appeal, counsel for the defendant contends that the plaintiff
failed to prove any fault on the defendants part, and that holding him 75% to
blame for the accident amounts to a grave injustice, and a perverse verdict.

[3]

The defendant also challenges the damages awarded for loss of future
earning capacity, assessed by the jury at $330,000, and for the cost of future
care, which the jury assessed at $45,000.

[4]

The motor vehicle accident occurred at the intersection of Boundary Road
and Vanness Avenue in Burnaby at about 6:20 p.m. on 16 April 2007.  The
plaintiff was riding a bicycle eastbound on Vanness, crossing the intersection
towards the northeast corner of Vanness and Boundary.  The defendant was
proceeding north on Boundary.

[5]

The intersection is governed by an electric traffic control signal.  As
the defendant approached the intersection, he changed lanes from the centre
northbound lane into the curb lane.  He passed two lanes of stopped or slowing
traffic to his left, just as the light for northbound traffic turned green, and
he proceeded into the intersection at a speed some witnesses estimated to be
about 50 kilometers per hour.

[6]

The defendant struck the plaintiff and his bicycle near the north
crosswalk on Vanness, when the plaintiff was about three-quarters of the way
across Boundary.

[7]

The plaintiff sustained serious injuries as a result of the collision.
As is not uncommon in cases of this nature, there was conflicting evidence as
to exactly when the light changed to green for northbound traffic, and the
positions of the bicycle and the defendants vehicle at relevant times.

[8]

What is clear is that on all the evidence it was open to the jury to
find that the plaintiff was well into the intersection when the defendant
entered on the green light, and that the defendant was passing stopped or
slowing traffic to his left.

[9]

The defendants factum is replete with references to some of the
evidence favourable to the defence case.  However, the issue as to liability
must be decided on the basis of whether there was any evidence on which a
properly instructed jury could make the findings it did.  In my view there is
no doubt that there was such evidence.

[10]

Counsel for the defendant has not identified any error in the charge by
the judge on the issue of liability.  In my respectful view, that part of the
charge fully and fairly explains the applicable principles and legal rules to
be applied.

[11]

There is no basis on which this Court could interfere with the jurys
finding of negligence on the part of the defendant, or on its apportionment of
fault.  The appeal as framed by counsel for the defendant is essentially an
invitation for this Court to retry the facts, which of course we may not do.

[12]

Similarly, the appeal against the award for loss of future earning
capacity is without merit.  The plaintiff suffered many serious injuries in
this accident including compression fractures to two vertebrae, mild traumatic
brain injury with postconcussive symptoms, including headaches, dizziness and
problems with concentration and memory.

[13]

Although the plaintiff appears to have shown a positive attitude
throughout, and returned to work part-time three months after the accident, he
was still not working full-time almost two years later.  His employer has not
considered him for important roles he would otherwise have been eligible for,
because of concerns that he may not be capable of handling longer days and more
stress because of his limitations.

[14]

The plaintiff was 41 years of age at the time of the accident and held a
masters degree in business administration.

[15]

The defendant has not identified any error in the judges charge to the
jury on the assessment of damages for loss of future earning capacity, and
there was evidence on which the jury could properly base its award.

[16]

I would dismiss the appeal against this head of damage.

[17]

As to the award for cost of future care, Mr. Marcoux, counsel for the
plaintiff, said that although there was evidence that the plaintiff would
require care in the future, he candidly conceded that there was really no
evidence as to its cost or duration.

[18]

I do not consider that the award for cost of future care can be
sustained, and I would set it aside.

[19]

Except for the cost of future care issue I would otherwise dismiss the
appeal.  As almost no time was spent on the cost of future care question during
oral argument, and scant attention was given to it in both parties factums, I
would dispose of the appeal, as indicated, with costs to the respondent.

The Honourable Chief Justice Finch

I Agree:

The Honourable Madam Justice
Saunders

I Agree:

The Honourable Mr. Justice Groberman


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Schooner,

2013 BCCA 40

Date: 20130125

Docket:
CA040180

Between:

Regina

Respondent

And

Benjamin Paul
Sheldon Schooner

Appellant

Before:

The Honourable Mr. Justice Donald

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Garson

On appeal from:
Provincial Court of British Columbia, August 7, 2012
(
R. v. Schooner
, Victoria Docket 157147-1)

Oral Reasons for Judgment

Counsel for the Appellant:

J. Blazina

Counsel for the Respondent:

M. Street

Place and Date of Hearing:

Vancouver, British
  Columbia

January 25, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 25, 2013

GARSON
J.A.:

Introduction

[1]

The appellant, Benjamin Paul Schooner, seeks leave to appeal his one
year jail sentence for being unlawfully at large. If leave be granted, he
appeals his sentence on the grounds that it is unfit.

[2]

Mr. Schooner pleaded guilty to being unlawfully at large contrary
to s. 145(1)(b) of the
Criminal Code
, R.S.C. 1985, c. C-46. The
Crown proceeded by way of indictment. The maximum sentence is two years.

[3]

Mr. Schooner argues on appeal that a fit sentence is three to four
months or, alternatively, a sentence concurrent to the sentence he is already
serving. He argues that the sentencing judge also erred in basing his sentence,
in part, on a finding that he was engaged in criminal activity at the time of
his arrest. The Crown contends that the sentence was appropriate given Mr. Schooners
flagrant disregard of the conditions of his parole. The Crown also disputes the
argument that the sentencing judge based his sentence on unproven allegations
of criminal activity.

Circumstances of the
offence

[4]

Mr. Schooner was sentenced to three years in prison on September 30,
2009, arising from his conviction for two counts of robbery and two counts of
attempted robbery. On February 8, 2010, he was sentenced to three months
in jail consecutive to his 2009 sentence on conviction for assaulting a peace
officer, (presumably a prison guard). He was released from jail in December 2011
on parole. On December 22nd his parole was revoked for using drugs. He was re-released
on parole on January 9, 2012, in Victoria. The conditions of his parole
included one that he must reside in Victoria at the Salvation Army, where he
was required to participate in a substance abuse program.

[5]

On January 9, 2012, he met with his parole officer and was advised of
the conditions of his parole. He signed a form indicating his understanding of
the conditions of his parole.

[6]

On January 17, 2012, he failed to return to the Salvation Army
residential facility. A warrant was issued for his apprehension.

[7]

On February 12, 2012, he was arrested in Nanaimo in the company of known
criminals. An unloaded gun was found hidden in the trunk of the vehicle in
which he was arrested. No charges were laid in connection with the gun because
the officers could not prove who had possession of the gun.

[8]

On June 7, 2012, Mr. Schooner was sentenced by a Provincial Court
judge to one year in jail, consecutive to any other sentence he was serving.

Discussion

[9]

Mr. Schooner says that the sentencing judge erred in finding that
he was engaged in criminal activity when he was unlawfully at large, and erred
in imposing a sentence which falls outside the range of sentences for similarly
situated offenders and similar offences.

[10]

The Crown focuses its argument in its factum on the question of whether
a sentencing judge may consider on sentencing, as an aggravating circumstance,
the surrounding criminal behaviour that was not the subject of the charge. The Crown
says that it is permissible for a judge to do so. For the reasons I explain in
a moment, I do not think the Crowns argument on that point is dispositive of
this appeal. On this appeal, the question of whether a judge may properly
consider criminal activity not charged is beside the point. The error alleged
by Mr. Schooner is that the judge erred in considering the extraneous
criminal activity in the face of Mr. Schooners denial of that activity or
at least the extent of it.

[11]

On sentencing the Crown argued that: Mr. Schooner was found in a
car that was a known crime vehicle; he was with individuals who are
criminals; there was a handgun hidden in the trunk with ammunition available;
and that Nanaimo police believed Mr. Schooner was involved in gang
activity. The Crown read into evidence at the sentencing hearing a police
report which stated that, [Mr.] Schooner has gang ties to both Nanaimo and
Vancouver and is believed to be involved in gang hits and drug rips in both
cities.

[12]

Mr. Schooner did not agree with some of the facts alleged by the Crown
on sentencing. He contended that he had travelled to Campbell River to see his
parents. He admitted that he was using drugs at the time he was arrested in
Nanaimo. He admitted that he joined those individuals (with whom he was found
at the time of his arrest) for the purpose of obtaining drugs. He denied
knowledge of the gun. Importantly, he denied that he was tied to these
individuals for any other nefarious purpose.

[13]

As to his parole breach, he argued on sentencing that he had no prior
record of administration of justice type offences and that this was the first
offence of its kind on his record. At sentencing his counsel said hes a young
man, struggling to reintegrate after serving a sentence, and struggling with a
parole system that was new to him.

[14]

The judge was skeptical about Mr. Schooners explanation for his
presence in the car. At para. 6 the judge said:

[6]
It is
said that he wanted to go see his parents. I do not have anything that
corroborates that, and even accepting that, it must be taken into account the
circumstances in which he was found. He was found in a vehicle with individuals
who clearly were of interest to the police for their involvement in criminal
activity. It is hard to accept that all of that was just fortuitous and just
happening to get into the wrong motor vehicle. The Crown is generous in
describing it as not innocent activity. So the circumstances of the offence are
very significant and they are very serious.

[15]

Despite Mr. Schooners young age and substance abuse issues, the
judge described his criminal behaviour as unrelenting:

[7]        I
will deal with the totality principle as argued by Mr. Russell in dealing
with the offenders background. The offenders background starts in 2003 in
which he received a time served sentence and probation for 15 months. Two
months later, a mischief offence and probation for just over a year later till
the beginning of 2005. In 2006, break and enter with intent, four months, and
two months under supervision in the community and probation for 12 months. Then
in April 2008, robbery times three, 14 months, and seven months under
supervision in the community on each charge. Less than two months later,
possession for the purposes of trafficking, carrying a concealed weapon, 80
days, and 40 days under supervision in the community. Then we have him coming
into the adult world and the criminal record that he has amassed I

have already referred to. So here is an
individual whose criminal behaviour is unrelenting.

[16]

The judge clearly considered that a sharp punishment was necessary to
deter Mr. Schooner from continuing on his criminal path. The judge
concluded it was necessary to separate Mr. Schooner from society for one
year:

[8]        I
take into account the totality principle. I take into account that there comes
a time, however, in which individuals must be separated from society because
their ability to abide by the rules and the laws of our society simply do not
exist. He does not wish to abide by them. There are consequences to everyone's
actions and everyone's decisions. Consequences for Mr. Schooner in the
circumstances of this situation, taking into account everything, is a sentence
of incarceration for one year consecutive to any sentence which he is serving.

[17]

The first issue on appeal is whether the judge erred in finding Mr. Schooner
was involved in criminal activity and whether the judge did in fact find that
Mr. Schooner was involved in criminal activity, when the facts surrounding
the scope of that involvement were in dispute on sentencing. No evidence was
called on the sentencing. In the absence of a formal hearing, it is an error in
principle for a judge to resolve a conflict on the facts alleged at sentencing
to the detriment of the offender without an evidentiary basis for doing so: see
s. 723(1) of the
Criminal

Code
;
R. v. Gardiner
,
[1982] 2 S.C.R. 368, 68 C.C.C. (2d) 477;
R. v. St.-Coeur
(1991), 43 Q.A.C. 141 at para. 38;
R. v. Cardinal
, 2007
ABCA 46 at para. 8, 404 A.R. 3. The Crown does not dispute this
proposition.

[18]

It is my view of the judges comments in paragraph 6 that he did accept
much of what was alleged by the Crown and sentenced Mr. Schooner on the
basis of his conclusion that the offence was very serious.  It is true that Mr. Schooner
admitted that his presence in the vehicle was to purchase drugs but I
understand the sentencing judge to have accepted the broader facts alleged by
the Crown concerning gang associations. I acknowledge as the Crown says that
there is some ambiguity in paragraph 6 of the reasons for judgment. But taken
in the context of the Crowns unproven submissions of criminal activity I would
have to conclude the judge did take those aggravating circumstances into
account. As I have said, the burden of proof is on the Crown to establish those
very significant and very serious facts referred to by the judge at
paragraph 6. It was not the burden of the accused to disprove those facts.

[19]

Thus, in conclusion, I agree with Mr. Schooner that the judge erred
in relying on unproven and controversial facts in imposing sentence. As I have
already said, in the absence of findings as to the conflicting facts, the
factual dispute must and ought to have been resolved in favour of the accused.

[20]

Once the facts are resolved in favour of Mr. Schooner, the second
issue that arises on this appeal is whether, despite the error in principle,
the one year sentence is nevertheless fit:
R. v. Johnson
(1996), 112 C.C.C. (3d) 225, 84 B.C.A.C. 261.

[21]

Mr. Schooner relies on the following cases in support of his
argument that the sentence was excessive. Of the cases cited, I briefly summarized
those I find helpful:

R. v. Addley
,
2008 BCCA 460, 262 B.C.A.C. 82: prison
break, accused was 27 had a criminal record of 40 convictions including 18
offences for non-compliance with the justice system. On appeal sentence reduced
to 30 months.

R. v. Gartner
,
2010 BCCA 600: charged with unlawfully at
large for failure to appear to serve the balance of her intermittent sentence
on which two days remained. Sentence reduced from six months to 30 days.
Numerous prior breaches.

R. v. Kelly
,
[1983] B.C.J. No. 692: accused was
arrested on the street but ran away from the officer. Very long record
including four similar convictions. Even in 1983 the court of appeal observed
that a one year sentence for an escape of this kind is an unusually long
sentence. The court upheld the sentence because of the special circumstances.

R. v. Jackson
,
2010 BCCA 330, 289 B.C.A.C. 157: three
months for resisting arrest and three months for escaping custody to be served
concurrently with each other.

R. v. Shackleton
,
[1978] B.C.J. No. 199: two months for
being unlawfully at large from jail.

R. v. Hodson
,
[1978] B.C.J. No. 196: nine months for
being unlawfully at large. Prior record of similar offences.

R. v. Pelly
(1996),
113 Man. R. (2d) 209: nine months
for a prison break without weapons. (I note prison break is punishable by a
maximum sentence of 10 years.)

R. v. Abraham
,
2008 MBPC 14, 226 Man. R. (2d) 314: Unlawfully
at large - and in that time committed 15 armed robberies. One year consecutive
with a series of other more serious charges with lengthy sentences of 18 years.

[22]

The Crown relies on several cases for the proposition
that the applicable range is one month to one year. The majority of the cases
relied upon by the Crown, and also some by the defence, date to the 1970s and
early 1980s. In my view these cases are not particularly helpful. In any event,
they do not support the Crowns assertion that an appropriate sentence is one
year: see
R. v. Akerman
, [1977] B.C.J. No. 62 (C.A.);
R. v. Allan
,
1983 CarswellBC 1897 (C.A.);
R. v. Blain
, [1979] B.C.J. No. 592
(C.A.);
R. v. Johnson
, [1979] B.C.J. No. 671 (C.A.);
R. v. W.R.C.
,
[1976] B.C.J. No. 696 (C.A.).

[23]

Mr. Schooner was 22 at the time of his sentence. Aside from his
lengthy juvenile record, followed by several adult convictions, we are told
nothing of his background. Neither was the sentencing judge. None of the cases
cited by either the accused or the Crown bear great similarity to this case,
but I do conclude from those cases that a one year sentence for being
unlawfully at large, in circumstances similar to this offender, is outside the
range for this type of non-compliance with the justice system type offence. There
are no special circumstances that would compel a judge to sentence the accused
in this case to one year. Moreover, the judge did not take into account the
youth of the accused and the sentencing principle of rehabilitation.

[24]

As I said, the sentencing judge erred in principle by basing the
sentence (in part) on unproven controversial facts. In my view, this error
resulted in the imposition of a demonstrably unfit and overly long sentence. Thus
notwithstanding the deferential standard of review afforded decisions of
sentencing judges (
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R.
206), I am of the view that this sentence ought not to be upheld on appeal. In
considering a fit sentence, I do note the fact that Mr. Schooner was given
two opportunities on parole, and breached his parole conditions both times. I
also consider his record of previous but not similar offences. In my view, four
months is sufficient to reflect the necessary deterrent purpose of his
sentence.

Disposition

[25]

I would grant leave and impose a sentence of four months consecutive to
any sentence Mr. Schooner is otherwise serving.

[26]

DONALD J.A.:
I agree.

[27]

CHIASSON J.A.:
I agree.

[28]

DONALD J.A.:
Leave to appeal is granted. The appeal is allowed. The
sentence is reduced to four months consecutive.

The Honourable Madam Justice Garson