COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Holdyk v. Adolph,

2012 BCCA 37

Date: 20120126

Docket: CA038534

Between:

William Johannes
Holdyk and Jason Lorraine

Appellants

(Petitioners)

And

Lauretta Adolphina
Adolph and William Marshall Burgess

Respondents

(Respondents)

Before:

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Garson

The Honourable Mr. Justice Hinkson

On appeal from:  Supreme
Court of British Columbia, October 6, 2010
(
Holdyk v. Adolph
, 2010 BCSC 1411, Smithers Docket 15639)

Counsel for the Appellant:

T. R. Buri, Q.C.

Counsel for the Respondent:

A. Aguilar

Place and Date of Hearing:

Vancouver, British
  Columbia

November 23, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January
  26, 2012

Written Reasons by:

The Honourable Mr. Justice Hinkson

Concurred in by:

The Honourable Madam Justice D. Smith
The Honourable Madam Justice Garson

Introduction

[1]

This is an appeal from the dismissal of an application by the appellants
for leave to commence a derivative action in the name of Aurora Peace
Contracting Inc. against the respondents. The reasons for judgment of the
Chambers Judge dismissing the application are indexed as 2010 BCSC 1411.

Background

[2]

Aurora Peace Contracting Inc. (the Company) is involved in the
silviculture and forestry business. The appellants and the respondents were the
sole shareholders and directors of the Company. The Chambers Judge found that
on June 30, 2008, the respondents opened an account in the name of the Company
at the Chetwynd branch of TD Canada Trust. The proposed claim would assert that
the account was opened by the use of documents that were forged to indicate
that all four of the parties authorized its opening and subsequently, the
respondents deposited and then removed approximately $340,000 of Company funds
from the account in the space of approximately two months.

[3]

The appellants contend that they did not authorize the opening of the
account, and were unaware of it until October, 2008. Once aware, they commenced
an oppression action on October 15, 2008 against the respondents and the
Company in the Vernon Registry of the Supreme Court of British Columbia (the
Vernon action).

[4]

In the Vernon action the appellants are seeking, amongst other relief,
an accounting of all profits, income and sales of the Company within Canada,
alleging, amongst other things, that:

In or about the month of May,
2008, the Defendants Adolph and Burgess, opened, without authority and for no
proper purpose, a bank account with the TD Canada Trust Branch in Chetwynd,
British Columbia. The Defendants thereafter wrongfully and without colour of
right, diverted considerable funds due and owing to the Defendant, Aurora, to
their own benefit. The Defendants Adolph and Burgess, deposited the funds in
the approximate amount of $360,000.00 into the account without the knowledge or
authorization of the Plaintiffs. The particulars of the diversion of funds,
including the dates, times, and amounts are within the knowledge of the
Defendants. The Defendants have refused to provide access to the account and to
provide the Plaintiffs with details of the amounts wrongfully diverted from the
Defendant, Aurora.

[5]

The respondents in these proceedings have filed a statement of defence and
counterclaim in the Vernon action on their own behalf and as well on the
Companys behalf. The Vernon action remains unresolved.

[6]

The appellants then brought a petition in the Smithers Registry of the
British Columbia Supreme Court on May 5, 2010, seeking orders for leave to
commence the proceedings that are the subject of this appeal, and for leave to
commence proceedings in the name of the Company against TD Canada Trust,
pursuant to ss. 232 and 233 of the
Business Corporations Act
, S.B.C.
2002, c. 57 [
BCA
] for damage and loss that they allege that the Company
suffered as a result of TD Canada Trusts negligence in allowing the
respondents to open an unauthorized account in the name of the Company. Due to
potential limitation issues, the application for leave to commence proceedings
against TD Canada Trust was heard, and allowed, on June 24, 2010, but the
application for leave to commence proceedings in the name of the Company
against the respondents was not resolved at that time.

[7]

Although the pleadings in the action against TD Canada Trust were not
before us, it is common ground that those proceedings are underway, and that TD
Canada Trust has taken third party proceedings against the respondents for contribution
and indemnity in the event that the action succeeds against it.

[8]

The appellants application for leave to bring a derivative action in
the Companys name against the respondents was heard by a second Chambers Judge
on September 16, 2010, and his decision is the subject of the appeal before us.

[9]

At paras. 2428 of his reasons, that Chambers Judge found:

[24]      In the present matter, it is evident that the
petitioners no longer view the Company as a legitimate going concern. For
example, in the prayer for relief in the statement of claim, the petitioners
have specifically requested an order that "the Defendant, Aurora, be
liquidated and dissolved pursuant to Section 324 of the
Business
Corporations Act
." This is an indication that, unlike the petitioner
in
Primex
, [
Primex Investments Ltd. v. Northwest Sports Enterprises
Ltd.
[1996] 4 W.W.R. 54, (1995), 13 B.C.L.R. (3d) 300, (S.C.); varied,
[1997] 2 W.W.R. 129, 26 B.C.L.R. (3d) 357 (C.A.); leave to appeal refd [1997]
S.C.C.A. No. 4] the petitioners here are not interested in the best interests
of the Company.

[25]      Another indication that the petitioners are
pursuing this action in bad faith is found in the notice of motion of the
Vernon Action. There, the petitioners request security for costs against the
Company based on the argument that the Company does not have the resources to
pay legal costs if unsuccessful in its counterclaim. If the Company succeeds in
the proposed action, the Company may be in a better position to fund its
pursuits in the Vernon Action, which could ultimately benefit the petitioners.
This tends towards a finding that the petitioners are likely pursuing the claim
on their own behalf rather than on behalf of the Company.

[26]      It is apparent that there was a delay in the
bringing of the derivative action. The respondents submit that the petitioners
took no action in the Vernon Action for almost a full year, but have now
revived an application for security for costs to force the respondents to
respond on two separate fronts.

[27]      Delay in bringing this application can be an
indicator of bad faith:
Bennett
[
Bennett v. Rudek
, 2008 BCSC 1278,
51 B.L.R. (4th) 207], at para. 61. The petitioners submit that "no
derivative application was made because the respondents had removed the
petitioners as directors shortly before the Vernon Action commenced."
However, the petitioners were not barred from pursuing a derivative action in
2008. The
BCA
permits "a shareholder or director of the
company" to apply under s. 233 to pursue a derivative action on behalf of
a company. If the petitioners had the best interests of the Company in mind
then a derivative action should have been brought around the time of the Vernon
Action. The primary difference between 2008 and the present is the petitioners'
financial situation. In my opinion, this is an indication that the petitioners'
primary motivation in advancing the claim is their own self-interest.

[28]      In my opinion, the
evidence presented by the petitioners on this hearing is not sufficient to
clearly establish that this application is brought in good faith.

[10]

The Chambers Judge recognized that the matter is essentially a dispute
between the four individual shareholders, and that if the proposed derivative
action were to be successful, the funds that were alleged to have been taken
from the Company by the respondents would be returned to a company that the appellants
intend to see wound up. He also considered that if the funds were returned to
the Company and it were wound up, its secured creditors would take priority
over the shareholders when the Company's assets are distributed.

[11]

The Chambers Judge found the evidence indicates that the appellants have
a vested interest in Backwoods Contracting Ltd. ("Backwoods"). He reasoned
that if the funds in issue were returned to the Company, and if Backwoods is
the Companys single largest creditor, then Backwoods would benefit ahead of
the Company if the funds were returned. He thus concluded that the appellants
hold a personal interest in the success of the proposed action that outweighs
the best interests of the Company.

[12]

Despite his view that the appellants allegations are believable enough
to be arguable and that there is evidence upon which an arguable case for
fraudulent conversion can be shown to exist, he concluded it is not in the best
interests of the Company for the derivative action to proceed.

Issue on Appeal

[13]

The appellants contend that the Chambers Judge drew inferences of fact
that he used as the basis for finding a lack of good faith in the proposal for
the derivative action without an evidentiary basis for those inferences, and
that those inferences led him to err in the exercise of his discretion in refusing
the application.

[14]

In addition, the appellants contend that the Chambers Judge erred in
concluding that the proposed derivative action was not in the best interests of
the Company.

Discussion

[15]

The parties agree that an order denying leave to commence a derivative
action is a final order. In the absence of a palpable or overriding error on
the part of the Chambers Judge, his order cannot be overturned; see
British
Columbia (Minister of Forests) v. Okanagan Indian Band
,

2003 SCC 71,
[2003] 3 S.C.R. 371 at para. 43.

As I observed in
R. v. Regan
,
[2002] 1 S.C.R. 297, 2002 SCC 12, however, discretionary decisions are not
completely insulated from review (para. 118). An appellate court may and should
intervene where it finds that the trial judge has misdirected himself as to the
applicable law or made a palpable error in his assessment of the facts. As this
Court held in
Pelech v. Pelech
, [1987] 1 S.C.R. 801, at p. 814-15, the
criteria for the exercise of a judicial discretion are legal criteria, and
their definition as well as a failure to apply them or a misapplication of them
raise questions of law which are subject to appellate review.

[16]

The relevant parts of ss. 232 and 233 of the
BCA
set out the
criteria for leave to bring a derivative action on behalf of a company and provide:

232(1)  In this section and section 233,

"complainant" means, in relation to a company, a
shareholder or director of the company;

"shareholder" has the same meaning as in section 1
(1) and includes a beneficial owner of a share of the company and any other
person whom the court considers to be an appropriate person to make an
application under this section.

(2)  A complainant may, with leave of the court, prosecute a
legal proceeding in the name and on behalf of a company

(a) to enforce a right, duty or obligation owed to the
company that could be enforced by the company itself, or

(b) to obtain damages for any breach of a right, duty or
obligation referred to in paragraph (a) of this subsection.

(3) Subsection (2) applies whether
the right, duty or obligation arises under this Act or otherwise.

...

233(1) The court may grant leave under section 232(2) or (4),
on terms it considers appropriate, if

(a) the complainant has made reasonable efforts to cause the
directors of the company to prosecute or defend the legal proceeding,

(b) notice of the application for leave has been given to
the company and to any other person the court may order,

(c) the complainant is acting in good faith, and

(d) it appears to the court that it is in the best interests
of the company for the legal proceeding to be prosecuted or defended.

[17]

It is apparent that the respondents did not raise the criterion in s. 233(1)(a)
of the
BCA
as a basis for the dismissal of the appellants application.
Understandably, with the directors split into two opposing camps, they were
deadlocked and the respondents could not be expected to approve the prosecution
of a claim against themselves.

[18]

No issue was taken with regard to the notice of the application. It is
unclear from the material before us whether the Company was served with the
appellants applications as required by s. 233(1)(b) of the
BCA
, but no
issue was taken that it was not, and in any event, as all directors and
shareholders were parties to the applications, the Company can be taken to have
been given notice of the applications.

[19]

It was upon the requirements in s. 233(1)(c) and (d) that the
application failed before the Chambers Judge. The applicable legal principles
and authorities relied upon are not disputed by the appellants. The Chambers
Judge referred, among others, to the following authorities listed at paras. 9
and 15 of his reasons:

[9]        In
Bennett
, Smith J. summarizes the law
regarding the good faith requirement under s. 233(1)(c) of the BCA:

[45]      The applicant for derivative leave bears the onus
to show positively that the application is brought in good faith:
Primex
Investments Ltd. v. Northwest Sports Enterprises Ltd.
, [1996] 4 W.W.R. 54,
13 B.C.L.R. (3d) 300 (S.C.) at para. 32, varied, [1997] 2 W.W.R. 129, 26
B.C.L.R. (3d) 357 (C.A.);
Tkatch v. Heide
(1996), 29 B.L.R. (2d) 266,
[1996] B.C.W.L.D. 1481 (S.C.) at para. 24. Good faith is ultimately a question
of fact to be determined on all of the evidence and with attention to the
particular circumstances of the case.

[46]      The test for good faith is whether the action is
primarily for the purposes of pursuing a claim on the company's behalf, and
factors to be considered in applying this test include the applicant's belief
in the merits of the proposed claim, existing disputes between the parties, and
alleged ulterior motives:
Discovery Enterprises Inc. v. Ebco Industries Ltd.
(1998), 50 B.C.L.R. (3d) 195 (C.A.), 177 W.A.C. 255 at para. 5;
Gartenberg
v. Raymond
, 2005 BCCA 462, 8 B.L.R. (4th) 227 at para. 25.

...

[15]      Tysoe J. (as he then was) enunciated the interests
of the company test in
Primex
. At para. 39, he referred to an extract
from
Re Marc-Jay Investments Inc. and Levy
(1974), 50 D.L.R. (3d) 45 at
47 (Ont. H.C.):

It is obvious that a Judge hearing an application for leave
to commence an action, cannot try the action. I believe it is my function to
deny the application if it appears that the intended action is frivolous or
vexatious or is bound to be unsuccessful. Where the applicant is acting in good
faith and otherwise has the status to commence the action, and where the
intended action does not appear frivolous or vexatious and could reasonably
succeed; and where such action is in the interest of the shareholders, then
leave to bring the action should be given.

Tysoe J. continued at para. 41:

[T]he Court should not attempt to try the case when deciding
whether the requirement in s. 225(3)(c) has been satisfied. The Court should
determine whether the proposed action has a reasonable prospect of success or
is bound to fail. If it is asserted that the proposed defendants in the
derivative action have a defence to the claim, the Court must decide whether
such a defence is bound to be accepted by a trial judge following the
completion of the trial of the derivative action. It is not necessary for the
applicant to show that the action will be more likely to succeed than not. As
noted in the Dickerson Report, the Court should also be satisfied that the
potential relief in the proposed action is sufficient to justify the
inconvenience to the company of being involved in the action.

[20]

The chartered accountant and
chartered business evaluator retained on behalf of all of the Companys
shareholders to consider issues of concern between them reported his
conclusions in a letter dated February 20, 2010. The conclusions included:

a)       That the account
in question was opened based upon a directors resolution that purported to be
signed by all four directors as the result of a meeting of June 19, 2008 that
the appellants and the respondent Ms. Adolph deny attending;

b)       That handwriting
experts who have examined the directors resolution have concluded that the
appellants did not sign the document;

c)       That total funds
of $340,115.42 were deposited into the account;

d)       That at least
$302,396.98 of the funds deposited were withdrawn to the accounts of the
respondents, but not for the day-to-day requirements of the Company;

e)       That the
Companys cash flow was significantly impaired as a result of the diversion of
funds to the account; and

f)        That as a result
of the significant and negative effect of the diversion of funds from the
Companys cash flow, Backwoods has paid out some $249,322 to cover the
Companys bills to enable it to continue as a going concern.

[21]

The same consultant also recognized
that the respondents raised a concern that perhaps excess profits were unduly
transferred from the Company to Backwoods during the years 20042008, but
concluded that the Company, not Backwoods, received excess profits of
$28,766.

[22]

In light of these conclusions, it is
not surprising that the Chambers Judge found that there is evidence upon which
an arguable case for fraudulent conversion can be shown to exist, and that the
petitioner's allegations are believable enough to be arguable. On this basis,
it is difficult to contend that the applicants did not believe in the merits of
the proposed claim. Thus, that factor in the test for good faith can be taken
to have been met.

[23]

There was, of course, an existing
dispute between the parties, but the Chambers Judge accepted that the proposed
claim was capable of standing alone from the other proceedings.

[24]

The first
indicium
upon which the
Chambers Judge drew an inference of bad faith was the fact that the appellants,
in the pleadings in the Vernon action, seek to have the Company liquidated and
dissolved.

[25]

With respect, I am unable to accept
that such an inference can reasonably be drawn from the mere fact that the
liquidation and dissolution of the Company was sought. Such an ultimate goal is
not inconsistent with also wanting to advance the interests of the Company
before it is wound up.

[26]

It is abundantly clear from the
pleadings in the Vernon action that the Company can no longer operate in any
effective manner. It is therefore in the interests of all of its shareholders
that the Companys interests be maximized and that it then be liquidated and
dissolved, to avoid any further operating expenses, and to provide its
shareholders with the highest possible return on their investment.

[27]

The second
indicium
of bad
faith identified by the Chambers Judge was the appellants request in the
Vernon action, for the Company to pay security for costs. The Chambers Judge described
this request as tending to show that the petitioners are likely pursuing the
claim on their own behalf rather than on behalf of the Company.

[28]

The appellants contend that the
Chambers Judge erred in considering this issue at all, as there was no evidence
of the application before him, and his source of this information could only
have come from the submissions of counsel for the respondents. I see no
difficulty with the reliance on the statements of counsel on this fact by the
Chambers Judge. The application was a matter of record. Reliance on the
statements of counsel for a matter of this nature is permitted; see, for
example,
Nichols v. Gray
(1978), 9 B.C.L.R. 5 (C.A.) at para. 11 and
Astels
v. Canada Life Insurance Co.,
2006 BCCA 110, 223 B.C.A.C. 138 at para. 27
.

[29]

I am unable to find that the reliance
of the Chambers Judge on the application in the Vernon action for the Company
to pay security for costs was incorrect, or that it could not be regarded, as
he found, as some attempt by the appellants to prefer the interests of a
creditor of the Company, in which they had a vested interest, over the interests
of the Company.

[30]

With respect, however, I am unable to
understand how the Company cannot be better off with more resources than less
if it is already embroiled in another stand alone action, and thus I do not
consider that the second
indicium
of bad faith identified by the
Chambers Judge can reasonably be so construed.

[31]

The third
indicium
of bad
faith identified by the Chambers Judge is the delay in seeking leave to bring
the proposed action. He concluded that, as no derivative action was pursued
when the applicants were removed as directors of the Company, this is an
indication that the petitioners' primary motivation in advancing the claim is
their own self-interest.

[32]

The Chambers Judge addressed this
matter in paras. 2627 of his reasons for judgment, as set out above.

[33]

With respect, it does not appear to me
that the Chambers Judge considered the reason offered by the appellants for the
delay. Their explanation was that it was not until they received the report of
the chartered accountant and chartered business evaluator that they were in a
position to responsibly seek leave to commence the derivative action that they
wished to pursue on the Companys behalf against the respondents. As I have
already said, the report was dated February 20, 2010 and the petition seeking
leave to commence the proposed proceedings was brought May 5, 2010.

[34]

It is my view that, had the Chambers
Judge considered this explanation, he would not have found that the delay in
bringing the application for leave to bring the derivative action indicated bad
faith on the part of the appellants.

[35]

The failure of the Chambers Judge to
consider relevant evidence is justification for appellate intervention; see
Housen
v. Nikolaisen,
[2002] 2 S.C.R. 235; 2002 SCC 33. I would therefore accede
to the appellants first ground of appeal.

[36]

That, however, is not dispositive of
the appeal itself. To succeed on the appeal the appellants must also overcome
the finding of the Chambers Judge
at para. 30 of his reasons that ... it
is not in the best interests of the Company for the derivative action to
proceed.

[37]

Regrettably, the Chambers Judge did not explain the basis upon which he
arrived at that finding.

[38]

While it is doubtless the case that the appellants
hope and intend to benefit from any derivative action, one must not lose sight
of whether such an action is truly in the best interests of the Company.
Clearly the Company stands to gain considerably if it succeeds in showing that
the respondents fraudulently converted some $340,000 to their own use and so
recovers those funds.
Even if these monies are used to pay creditors or
to fund the Companys defence in the Vernon action, the Company will be better
off with more resources than less.

[39]

In the Vernon action, the Company is a co-defendant along with the
respondents. The Companys defence in that action is being directed by the
respondents, and the Company has no claim against them.

[40]

In the derivative action by the Company presently against only TD Canada
Trust, the respondents are third parties, but the Company has no direct means,
through that action, of recovery against the respondents, if indeed they have
wrongfully diverted funds belonging to the Company.

[41]

At paras. 1819 of his reasons for judgment, the Chambers Judge found:

[18]      The respondents submit that this application seeks
to litigate the same issues as the Vernon Action, but without the counterclaim
for the wrongful conversion of funds. In the Vernon Action, the Company is
named as a defendant in the action and the petitioners do not seek to recover
any funds on behalf of the Company. In the present matter, the Company seeks
the return of $340,000 fraudulently converted by the respondents for their own
use; damages and loss suffered as a result of the wrongful conversion of funds;
and, costs and all other ancillary relief.

[19]      In my opinion, these
are not the same issues and the Company's claim for fraudulent conversion as
against the respondents could be determined as a stand-alone from the Vernon
Action.

[42]

In
Johnston v. West Fraser Timber Co
. (1982), 37 B.C.L.R. 360
(C.A.), leave to appeal refd (1982), 45 N.R. 538 n; 40 B.C.L.R. xxx, as it was
the Company that was wronged, the Court concluded that a derivative action was
best suited to resolve the issue (as opposed to an oppression remedy). Writing
for the Court, Bull J.A. found:

[77]      In my opinion, like that of the trial judge, any
wrong done, if it was done, would not be the proper subject of relief under
sec. 224 [an oppression claim] ... the real complaint here is not for
oppression or unfair dealing of a shareholder but for West Fraser to recover
any excessive commissions or brokerage paid over a four year period to the
associated or allied United States corporation Dimension Lumber Co. Inc.

[78]      I think that any relief
to be granted, if relief be justified, would be to and for West Fraser. Should
the Company refuse to pursue the matter to recover that to which it may be
entitled, a derivative action or proceedings under sec. 225 of the Company Act
would appear available.

[43]

In
Furry Creek Timber Corp. v. Laad Ventures Ltd
. (1992), 75
B.C.L.R. (2d) 246 (S.C.) at p. 254, Newbury J. (as she then was) found breach
of a duty owed to the corporation can give rise to both a derivative action and
an oppression claim if the breach results in the unfair treatment of a
shareholder. Newbury J. concluded that, in addition to a derivative action, an
oppression action could also be brought on the same breach:

... provided the complaining
shareholder has been affected by the breach in a manner different from or in
addition to the indirect effect on the value of all shareholders shares
generally.

(See also
Discovery Enterprises Inc. v. Ebco
Industries Ltd.
(1998), 50 B.C.L.R. (3d) 195 at para. 21 and
Pasnak v.
Chura
, 2004 BCCA 221 at para. 33, 27 B.C.L.R. (4th) 50.)

[44]

In the oppression action the appellants ask for an accounting of all
profits, income and sales within Canada and damages based on the business
affairs of the Company having been conducted in a way oppressive to them or
unfairly prejudicial as a result of the alleged fraudulent conversion, and seek
to recover as shareholders
qua
individuals in that action.

[45]

The reasoning in
Furry Creek
is consonant with that of Mr.
Justice LaForest in
Hercules Managements Ltd. v. Ernst & Young
,
[1997] 2 S.C.R. 165 at para. 62 where he concluded:

62        One final point should be made here.  Referring to
the case of
Goldex Mines Ltd. v. Revill
(1974), 7 O.R. (2d) 216 (C.A.),
the appellants submit that where a shareholder has been directly and
individually harmed, that shareholder may have a personal cause of action even
though the corporation may also have a separate and distinct cause of action.
Nothing in the foregoing paragraphs should be understood to detract from this
principle.  In finding that claims in respect of losses stemming from an
alleged inability to oversee or supervise management are really derivative and
not personal in nature, I have found only that shareholders cannot raise
individual claims in respect of a wrong done
to the corporation
.
Indeed, this is the limit of the rule in
Foss v. Harbottle
.  Where,
however, a separate and distinct claim (say, in tort) can be raised with
respect to a wrong done to a shareholder qua individual, a personal action may
well lie, assuming that all the requisite elements of a cause of action can be
made out.

[Emphasis in original.]

[46]

A derivative action for what the Chambers Judge described as the stand
alone issue of the Companys claim for fraudulent conversion can thus be
viewed as the most appropriate remedy as, taken in isolation it does not appear
that the alleged conversion has affected the appellants in a manner different
from or in addition to the indirect effect on the value of all the
shareholders shares generally:
Furry Creek
, at p. 254.

Conclusion

[47]

I would allow the appeal, set aside the order of the Chambers Judge and
substitute therefore an order granting leave to prosecute the proposed derivative
action in the name of and on behalf of the Company against the respondents.

[48]

I would therefore grant leave to the appellants to apply to the Supreme
Court of British Columbia under 233(3)(b) of the
BCA
to have the interim
costs in the derivative action paid for by the Company. After the final
disposition of the action, further orders for costs may be made by the Supreme
Court under 233(4) of the
BCA
as and if appropriate.

The Honourable Mr. Justice Hinkson

I agree:

The
Honourable Madam Justice D. Smith

I agree:

The Honourable Madam Justice
Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Cocks,

2012 BCCA 39

Date: 20120126

Docket:
CA039593

Between:

Regina

Respondent

And

Norman Robert
Cocks

Applicant

Direction
of the Chief Justice on an Application for Review
Pursuant to Section 680 of the
Criminal Code

Counsel for the Applicant:

Joseph J. Blazina

Counsel for the Respondent:

Joseph C. Bellows,
  Q.C.

Written Submissions of the Applicant  filed:

December
  28
th
, 2011

Written Submissions of the Respondent filed:

January
  19
th
, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 26
th
,
  2012

Reasons for Judgment of the
Honourable

Chief Justice Finch:

[1]

This is an application under s. 680(1) of the
Criminal Code
for a
direction that a division of this Court review the decision of the Supreme
Court of British Columbia to deny bail to the applicant under s. 515(10) of the
Code
. The learned chambers judge held that the applicant had failed to
show that his continued detention was not necessary under the secondary and
tertiary grounds of s. 515: namely, the protection or safety of the
public, and the maintenance of public confidence in the administration of
justice.

[2]

The applicant is charged with the second degree murder of Dain Phillips
on or about 12 June 2011. The Crowns case is that the applicant was one of
seven men who swarmed the deceased in broad daylight and beat him to death with
various weapons.

[3]

The chambers judge reviewed the evidence adduced by the Crown as to the
circumstances of the offence and the alleged offenders. They are described in
paras. 4 through 15 of his reasons, and it is not necessary here to repeat the
detail. In short, there was a simmering dispute between the deceased and his
family on the one hand, and the applicant and his friends on the other. The
deceased, together with his sons and friends, met by arrangement with the
applicant and his co-accused at a predetermined location.

[4]

The evidence was that the deceased was swarmed in an unprovoked attack
by three assailants, including the applicant, wielding baseball bats, a hammer
and other weapons, knocked to the ground and beaten to death. The applicant
later bragged about his role in the attack in an intercepted telephone call. Police
had been carrying out surveillance on the applicant, and intercepting his phone
calls, in connection with other offences.

[5]

The applicant has no criminal record, and at the bail hearing two
sureties were presented, each willing to provide security in the sum of
$100,000 to supervise the applicants compliance if released on bail.

[6]

The judge held that the applicant had failed to show that his detention
was not necessary on the secondary ground. In his reasons he said in part:

[25]      ... I conclude that the Crown case is strong. There
are eyewitnesses to what occurred, but most telling is the intercepted message
which provides a chilling account of what happened. The motivation for the
attack was to dissuade the Phillips from passing themselves off as members of
the Hells Angels and to send a message that it was an organization not to be
meddled with. That message was delivered with dispatch and efficiency.

[26]      Mr. Cocks has no criminal record. He has been
steadily employed. He has the support of his employer and his family. That
stands in his favour.

[27]      However, Mr. Cocks knew
that he was being watched and that he was the subject of a telephone intercept.
In spite of those constraints, he was part of a group that intended to send a
message to other members of the community. That message was designed to be
delivered through violent means with little, if any, regard for the
consequences.

[7]

And further:

[36]      I have concluded that
there are no release provisions that will reduce to an acceptable level the
risk that Mr. Cocks poses. There is a substantial likelihood, particularly in
light of the open and brazen attack on Mr. Phillips, that Mr. Cocks has little,
if any, regard for the law. It would be a genuine concern that the
administration of justice would be interfered with.

[8]

The judge also held the applicants detention was justified on the
tertiary ground. He found that the prosecution case was strong, the offence was
serious, and the attack was planned, it was deliberate, and it was ruthlessly
efficient.

[9]

It appears to me that all of those conclusions are fully justified on
the evidence. The judge was satisfied that the public would lose confidence in
the justice system if bail were granted.

[10]

The threshold for a direction under s. 680 is low. The test is whether
there is any reasonable prospect of success on a review of the order refusing
bail.

[11]

In my opinion, there is no possibility that a division of this Court
would conclude that the order for the applicants continued detention was made
in error. The judge directed himself correctly on the law, applied the correct
principles, and reached his conclusions on an ample evidentiary base.

[12]

The applicant submits that five of his co-accused have already been
released on bail, suggesting that the circumstances of the offence were less
egregious than alleged. This argument ignores evidence that the applicant
played a substantially more serious role in the attack than did the five
accused who were granted bail. Indeed, the Crown conceded that none of these
five numbered among the principal people that were involved in the murder of
Mr. Phillips.  The applicant, conversely, is alleged to have played a central
role in the incident.

[13]

The applicant also argues that the chambers judge disregarded a number
of decisions where bail was granted, including two which he argued contained
strikingly similar facts to the present case:
R. v. Brotherston
, 2009
BCCA 431, [2009] B.C.J. No. 2294 and
R v. Patko
,

2003 BCCA 262,
[2003] B.C.J. No. 1012.

[14]

Both
Brotherston
and
Patko
are distinguishable from the
present case in important respects. The judge in this case placed considerable
weight on the evidence that the applicant acted in order to send a terrifying
message to the community. He also emphasized evidence as to the significance of
the applicants decision to attack Mr. Phillips, and to boast about the
incident over the telephone, when he was aware that the police had him under
surveillance and were monitoring his phone lines. The reasons in
Brotherston
and
Patko
do not disclose any such aggravating factors; indeed, the
two accused in
Brotherston
actually turned themselves in to the police. There
is nothing to show that the judges decision in the present case was
inconsistent with prior jurisprudence on applications for bail.

[15]

The application for a direction under s. 680 is dismissed.

The Honourable Chief
Justice Finch


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Tymiak,

2012 BCCA 40

Date: 20120126

Docket: CA033573

Between:

Regina

Respondent

And

Gregory Glen
Tymiak

Appellant

Before:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Hinkson

On appeal from:  Supreme
Court of British Columbia, 24 November 2005 (
R. v. Tymiak
, Penticton
Docket No. 31330)

The Appellant appeared in person

Counsel for the Respondent:

M.J. Brundrett

Counsel for the Intervenor, Attorney General of Canada:

K. J. Elvin-Jensen

Place and Date of Hearing:

Vancouver, British
  Columbia

January 12
th
and 13
th
, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 26
th
,
  2012

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Hinkson

Reasons for Judgment of the Honourable
Chief Justice Finch:

I.

[1]

Mr. Tymiak applies to reopen his sentence appeal which was dismissed as
abandoned by a division of this Court on 14 July 2009.  If the application is
granted, he seeks additional orders for the appointment of counsel and other
relief.  Mr. Tymiak was self-represented on this application, appearing by
videoconference from his place of detention.

[2]

The principal ground put forward for reopening the appeal is that the
sentencing judge did not consider, or consider adequately, Mr. Tymiaks
Aboriginal heritage as required by s. 718.2(e) of the
Criminal Code
.  In
his oral submissions, Mr. Tymiak advanced other grounds as well.  The Crown
opposes the application to reopen.

[3]

The applicant was convicted in British Columbia Supreme Court on
3 December 2004, of a number of offences committed in January 2003,
relating to the home invasion of a residence in Penticton, involving an
assault on one of its occupants.  An appeal from conviction was dismissed by
this Court in reasons pronounced 5 March 2009 (
R. v. Tymiak
, 2009 BCCA
98, [2009] B.C.J. No. 465).

[4]

Following Mr. Tymiaks conviction, the Crown applied for an order
declaring him to be a long-term offender.  In written reasons pronounced
24 November 2005, the sentencing judge made that declaration.  The
judge then imposed a custodial sentence of 12 years, to run concurrently with a
sentence of ten years which the applicant was already serving for offences
committed in Alberta, of which he was convicted on 24 April 2003.

[5]

In addition to the 12-year custodial sentence, the Supreme Court also
imposed a ten year term of supervision in the community, in accordance with
s. 753.2 of the
Corrections and Conditional Release Act
.

[6]

Counsel, on behalf of the applicant, filed a notice of appeal against
sentence.  On 11 June 2009, Mr. Tymiak filed a Notice of Abandonment of the
sentence appeal, and on 14 July 2009, this Court dismissed the sentence appeal
as abandoned.

[7]

As indicated, the basis of this application is that the sentencing judge
did not consider, or consider adequately, the applicants Aboriginal heritage.

II.

[8]

Mr. Tymiak was born on 30 November 1981, and he was 23 years old at the
time the B.C. sentence was imposed.

[9]

There is nothing in the sentencing judges reasons of 24 November 2005,
to suggest that the question of Aboriginal heritage was raised in the hearing
of the long-term offender application.  Mr. Tymiak testified on that hearing,
and it does not appear that he was asked to answer any questions concerning his
Aboriginal heritage.  There is nothing in the transcript of counsels
submissions on that hearing which addresses the matter.

[10]

The Crown points out that Mr. Tymiak has filed no material explaining
why the matter of his Aboriginal heritage was not relied on either at the
sentencing hearing or as a basis of a sentence appeal.

[11]

Mr. Tymiak has now filed an affidavit of his mother, Judith Mary
Beaudry, in which she deposes that her father was part Saulteau, her mother was
part Cree, that she considers herself Métis, and that (as of 3 October 2011)
she was in the process of applying for her Métis status card.

[12]

Appended to Mr. Tymiaks affidavit of 19 July 2011 is a Program
Performance Report on his completion of a program for persons of Aboriginal
descent who are in custody (In Search of Your Warrior Program (ISOYWP)), in
which there are references to the applicants childhood, his experiences as a
victim of bullying, and conflicts with his family.

[13]

Mr. Tymiak draws attention to this passage in the report:

Mr. TYMIAK explored racism and
its impact on violence, and wrote in his journal; This was a good session, I
looked back at racism as an adolescent and how this affected the way I felt
about my ethnic identity.  I knew I could hide behind the colour of my skin,
and did not want to get picked on so I hid part of my identity.  I was ashamed
then, and this played a role at lashing out on other ethnic groups.  I
addressed the issue before coming in (jail) because I respect all ethnic
cultures.

[14]

In his submissions to us, Mr. Tymiak said that the references to his
ethnic identity and to knowledge that he could hide behind the colour of my
skin, meant that he knew as a teenager he had Aboriginal ancestry, but that
that was not apparent from his skin colour, and he kept that ancestry hidden to
avoid being bullied.

[15]

Mr. Tymiak was interviewed prior to his admission into the ISOYWP
program, and the report says this concerning the interview:

Gregory, at the time, was limited
in his knowledge of culture, tradition and Aboriginal Spirituality.  He has
been following the teachings of the sweat at Mission.  He wants to continue to
learn about the teachings and of the ceremonies.  He also wants to research his
Aboriginal background, this is one of the teachings Elders speak about in our
longhouse, identity.  Knowing who you are, your roots, this is part of healing
and change.

[16]

During his time in custody, Mr. Tymiak has also participated in and
completed a program for Aboriginal Offender Substance Abuse.  It records that
he began to use drugs at age 13, and began to consume alcohol at age 11.

[17]

However, as was the case before the sentencing judge, there is nothing
before us as to what effect, if any, the applicants claimed Aboriginal heritage
had on his education, development, antisocial behaviour, or life experience in
general.

III.

[18]

This Court has jurisdiction to set aside an order dismissing an appeal
that has not been decided on its merits.  The test is whether, in all the
circumstances, it is in the interests of justice that the order be set aside or
varied:  see
R. v. Henry
, 2009 BCCA 12, [2009] B.C.J. No. 46 and
R.
v. Clymore
, 1999 BCCA 225, [1999] B.C.J. No. 800.

[19]

Section 718.2(e) of the
Code
is in mandatory terms.  It reads:

A Court that imposes a sentence shall also take into
consideration the following principles:

....

(e)  all available sanctions
other than imprisonment that are reasonable in the circumstances should be
considered for all offenders, with particular attention to the circumstances of
aboriginal offenders.

[20]

It seems clear from the sentencing judges reasons at paras. 32-34,
where he refers in part to ss. 718.1 and 718.2, that the applicants Aboriginal
heritage was not brought to his attention, because s. 718.2(e) is not
mentioned.

[21]

The leading case on the application of s. 718.2(e) is
R. v. Gladue
,
[1999] 1 S.C.R. 688, 133 CCC (3d) 385.  Passages relevant for the purposes of
this appeal include the following:

[69]      ... While background and systemic factors will also
be of importance for a judge in sentencing a non-aboriginal offender, the judge
who is called upon to sentence an aboriginal offender must give attention to
the
unique background and systemic factors which may have played a part in bringing
the particular offender before the courts
. ...

....

[75]      ... Section 718.2(e) requires that sentencing
determinations take into account the
unique circumstances
of aboriginal
peoples.

...

[79]      ... Generally, the more violent and serious the
offence the more likely it is as a practical reality that the terms of
imprisonment for aboriginals and non-aboriginals will be close to each other or
the same, even taking into account their different concepts of sentencing.

[80]      As with all sentencing decisions,
the sentencing
of aboriginal offenders must proceed on an individual (or a case-by-case) basis
:
for
this
offence, committed by
this
offender, harming
this
victim, in
this
community, what is the appropriate sanction under the
Criminal
Code
?

...

[83]      ... for each particular offence and offender it may
be that some evidence will be required in order to assist the sentencing judge
in arriving at a fit sentence. ....

[84]      However, even where counsel do not adduce this
evidence, where for example the offender is unrepresented, it is incumbent upon
the sentencing judge to attempt to acquire information regarding the
circumstances of the offender as an aboriginal person.
Whether the offender
resides in a rural area, on a reserve or in an urban centre, the sentencing
judge must be made aware of alternatives to incarceration
that exist
whether inside or outside the aboriginal community of the particular offender.
...

[85]      Similarly, where a sentencing judge at the trial
level has not engaged in the duty imposed by s. 718.2(e) as fully as required,
it is incumbent upon a court of appeal in considering an appeal against
sentence on this basis to consider any fresh evidence which is relevant and
admissible on sentencing. ...

[Emphasis added.]

[22]

In its summary, the Court stated:

[93]  11.  Section
718.2(e) applies to all aboriginal persons wherever they reside, whether on- or
off-reserve, in a large city or a rural area.  In defining the relevant
aboriginal community for the purpose of achieving an effective sentence, the
term community must be defined broadly so as to include any network of
support and interaction that might be available, including in an urban centre.
At the same time,
the residence of the aboriginal offender in an urban
centre that lacks any network of support does not relieve the sentencing judge
of the obligation to try to find an alternative to imprisonment.

[Emphasis added.]

[23]

What is clear from this discussion is that while the terms of s.
718.2(e) are mandatory, the purpose of the provision is to direct sentencing
courts to find alternatives to imprisonment, where possible, especially in
cases where the offender is of Aboriginal heritage.

[24]

On the record in this case, in the circumstances of this offender, and
these offences, it is very difficult to see any real alternative to
imprisonment.  As noted at para. 79 of
Gladue
, Generally, the more
violent and serious the offence the more likely it is as a practical reality
that the terms of imprisonment for aboriginals and non-aboriginals will be
close to each other or the same, even taking into account their different
concepts of sentencing.

[25]

The question on this application, therefore, is whether, in all the
circumstances, it is in the interests of justice to reopen the sentence appeal
so that consideration might be given to the appellants asserted Aboriginal
history.  I will assume for this purpose that the appellants mother is Métis,
and that the appellant is similarly entitled to be considered as a person of
Aboriginal heritage.

[26]

On the evidence before us on this application, we are left to speculate
as to what effects, if any, that heritage may have had on the applicant, which
might differentiate him from the non-Aboriginal population.  We do not know
whether any such effects would require the Court to reconsider the long-term
offender declaration, and to impose a custodial sentence of lesser duration.

[27]

There is nothing before us to show that unique background and systemic
factors ... may have played a part in bringing [Mr. Tymiak] before the courts.
What does emerge from this record, and from the reports on Mr. Tymiaks
participation in the prison programs, is that the factors that may have led Mr.
Tymiak into a criminal lifestyle are common to many offenders, both Aboriginal
and non-Aboriginal.  Those factors include family discord and eventual
separation of his parents, early abuse of drugs and alcohol, disinterest in and
difficulty at school, early association with other young people engaged in an
anti-social lifestyle, a tendency to be easily led, and impulsive behaviour
without regard for consequences.

[28]

Section 718.2(e) is directed to reducing the incarceration of Aboriginal
persons, by finding other appropriate sentences.  It is difficult at this point
to consider that any sentence other than significant jail time would have been
appropriate.  While it is conceivable that there are circumstances in Mr.
Tymiaks past that could serve to mitigate this sentence, there is presently no
evidence of what they might be.

[29]

Mr. Tymiak put forward a number of other grounds of appeal which, in his
submission, might be arguable if his sentence appeal were reopened.  He
referred to the 10 programs he has completed while in custody, to his relative
youth, and to the emphasis that the sentencing judge placed on his prospects
for rehabilitation.  He also referred to indicia suggesting that he is a
substantially reformed person, and that it would be useless for him to continue
wasting his life in prison when he could be out and doing something useful.

[30]

There appear to be some reasons to believe that Mr. Tymiak has made
considerable progress towards his ultimate rehabilitation, and that he is
developing a more mature and responsible understanding of himself in relation
to others.  However, these are matters that are properly left to the
consideration of the correctional authorities.  They may be factors in determining
the timing of his ultimate release from custody, and any conditions that may
apply upon that release.  They are not matters that this Court could properly
consider on an appeal from sentence:  see
R. v. Jimmie
, 2009 BCCA 215,
[2009] B.C.J. No. 969 and
R. v. K.R.H.,
2002 BCCA 575, [2002]
B.C.J. No. 2364.

[31]

Mr. Tymiak also suggested that he was not fully advised when he
abandoned his sentence appeal, and that he did not understand the legal
consequences of taking that step.  His former counsel has filed an affidavit,
upon Mr. Tymiak having waived solicitor-client privilege, as to the
circumstances in which Mr. Tymiak instructed her to abandon the sentence
appeal.  I am not satisfied that Mr. Tymiak was not properly advised, or that
the assistance of his then counsel was ineffective.

[32]

Mr. Tymiak directed the Court to consider the Ontario Court of Appeal decision
of
R. v. Kakekagamick
, 214 O.A.C. 127, 211 C.C.C. (3d) 289.  Given the
particular circumstances of Mr. Tymiaks application, this judgment does not
assist him.

[33]

I am therefore of the view that it would not be in the interests of
justice to reopen the sentence appeal.  I would not foreclose that possibility
in the future, if the sort of evidence referred to in
Gladue
became
available.  At this time, however, the possibility of a variation in the
sentence imposed is only hypothetical.

[34]

I would dismiss the application to reopen the appeal against sentence.

The
Honourable Chief Justice Finch

I AGREE:

The Honourable Mr. Justice Hall

I AGREE:

The Honourable Mr. Justice Hinkson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Baldwin v. Baldwin,

2012 BCCA 116

Date: 20120127

Docket: CA39361

Between:

Janet Kelly
Baldwin

Appellant

(Petitioner)

And

Wesley Warren
Baldwin

Respondent

(Respondent)

Before:

The Honourable Madam Justice Bennett

(In Chambers)

On appeal from: Supreme
Court of British Columbia, September 12, 2011
(
Baldwin v. Baldwin
, Fort St. John Registry 20560)

Oral Reasons for Judgment

Appellant appearing In Person via teleconference:

No One appearing on behalf of the Respondent:

Place and Date of Hearing:

Vancouver, British
  Columbia

January 27, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 27, 2012

[1]

BENNETT J.A.
: The applicant, Janet Baldwin, applies for an
extension of time to file the appeal record. She anticipates that Wesley
Baldwin, the respondent, does not oppose the application. It appears that
counsel for Mr. Baldwin was served with the application but has not appeared.
The Court of Appeal Registry left a message with his office and the matter was
stood down until 2:30. It is now 2:30 and counsel has not appeared.

[2]

The underlying appeal is from Madam Justice Loos judgment, pronounced
on September 12, 2011, dismissing the applicants petition for judicial review.

BACKGROUND FACTS AND PROCEEDINGS BELOW

[3]

Janet and Wesley Baldwin are siblings. Their parents, Jerry and Doris
Baldwin, own real property with a bus and a trailer on-site. Janet and her
partner, Paul Williams, resided on her parents property as tenants at one
time. Janet and Paul developed an acrimonious relationship with the respondent
Wesley and his family, their sister Lorrie and her family, and Jerry and Doris,
all of whom obtained a restraining order in April 2008 in the Alberta Court of
Queens Bench against Janet and Paul. (I should add I am using first names not
out of any disrespect for the parties or the people involved, but because
everyone with the exception of Mr. Williams is a Baldwin.)

[4]

Jerry Baldwin sought to evict Janet Baldwin and Paul Williams from his
property. On April 15, 2008, a dispute resolution hearing was held under the
Residential
Tenancy Act
, S.B.C. 2002, c. 78. The dispute resolution officer found that
the tenancy was contingent upon an employment contract between Doris and Paul
that had terminated on January 1, 2008. There was no signed tenancy agreement
and no rent was ever paid. Paul Williams agreed to vacate with two months
notice. Accordingly, the officer ordered Mr. Williams to deliver full and
vacant possession of the rental unit on the property to Doris and Jerry Baldwin
no later than 1:00 p.m. on June 30, 2008. The officer also found that Janet
Baldwin was not a party to the application as she was not a signatory to the
employment contract. Her submission that she had signed a greater-than-20-year
lease with her mother was rejected.

[5]

Janet then brought three proceedings in Provincial Court. The first was
initiated on March 18, 2009 and dismissed by the judge. In dismissing the
second proceeding at a settlement conference on March 29, 2010, the judge
identified the subject matter as identical to that of the previous litigation.
In dismissing the third Provincial Court action at a settlement conference on
December 9, 2010, the judge noted that Janet Baldwin was raising issues
addressed in the April 15, 2008 dispute resolution hearing, but now against a
different party. The judge also noted that Janet Baldwin had yet to produce the
lease she claimed to have signed with her mother. Her claim was dismissed as
frivolous and an abuse of process.

[6]

Next, Janet filed a petition for judicial review under the
Judicial
Review Procedure Act
, R.S.BC. 1996, c. 241. Madam Justice Loo dismissed the
petition, noting that it was out of time and, in any event, an appeal in
substance. She noted that Janet Baldwin did not produce any written lease.

[7]

Justice Loo awarded costs of $1,200 to Wesley Baldwin. She discussed s.
18 of the
Supreme Court Act
, R.S.B.C. 1996, c. 443, which authorizes a
Supreme Court judge to make a vexatious litigant order. She was inclined to
make the order but did not do so as no s. 18 application was before her.

[8]

Janet Baldwin is late in filing her appeal record because she did not
receive the Reasons for Judgment from the Supreme Court in a timely way,
although she apparently ordered them promptly. It appears that through no fault
of her own, Ms. Baldwin was unable to file her appeal record.

LEGAL TEST  EXTENSION OF TIME

[9]

The five criteria to be considered in an application for an extension of
time to take a necessary step in the prosecution of an appeal were set out in
Davies
v. C.l.B.C.
(1987), 15 B.C.L.R. (2d) 256 (C.A.) at 259-260:

1) Was there a
bona fide
intention to appeal?

2) When were the respondents informed of the intention?

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

4) Is there merit in the appeal?

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

See also
Sekhon v. Armstrong
,
2003 BCCA 318 at para. 17;
Dadashzadeh v. British Columbia (Motor Carrier
Commission)
, 2003 BCCA 463 (Chambers) at para. 7.

[10]

The first four criteria inform and serve as guides for determination of
the fifth and decisive interests of justice factor (
Davies
at 260;
Perren
v. Lalari
, 2009 BCCA 564 at para. 33;
Haldorson v. Coquitlam (City)
,
2000 BCCA 672 at para. 9).

[11]

There is a question as to whether a single justice in chambers has
jurisdiction to deny an extension of time for further prosecutorial steps
solely on the basis of lack of merit.

[12]

In
Barta v. Canaccord Capital Corp
(1997), 36 B.C.L.R. (3d) 81,
90 B.C.A.C. 282 (C.A.) McEachern C.J.B.C. referred to the anomaly in practice
at paras. 6-7 (B.C.L.R.):

[6]        ...There is an obvious anomaly in the practice
since an application to dismiss an appeal on the ground that it is bound to
fail must be heard by the Court whereas an application to extend time may be
refused by a single judge on the ground that the appeal is bound to fail.

[7]        I do not say that a
judge can never determine that an appeal is absolutely bound to fail without an
examination of the transcript which was not available at the time of the
application in this case, but the practice has certainly been not to do so upon
such an application in these circumstances.

[13]

Esson J.A., concurring, held at para. 12:

[12]      ...That anomaly, I
suggest, is more apparent [than] real in that it is one thing to take the lack
of merit into account as one circumstance, it is another to refuse the
extension of time on the sole ground that the case lacked merit. I would hold
that, as a general matter, an extension of time should not be refused simply on
the basis of lack of merit.

[14]

In
Dadashzadeh
, Rowles J.A. stated at para. 10:

[10]      In my opinion, when an
appeal is brought within the time limited for bringing an appeal, a single
justice has no jurisdiction to refuse an extension of time to take a step in
the prosecution of the appeal if the sole ground for refusing the extension is
that the appeal has no merit.

[15]

See also
Sekhon
, in which Rowles J.A., for the majority, stated:

[28]      It is my respectful
view that the refusal to extend the time for filing the Appeal Record, Appeal
Book and factum on the ground that the appeal had no hope of success was wrong
in principle and must be set aside. The effect of the order dismissing the
application to extend the time is, of course, to bring the appeal to an end
without the appeal having been determined by a panel on its merits.

[16]

However, in
Carstensen v. Arbutus Management Ltd.
, 2003 BCCA 88
(Chambers) and
G. Avtar Plaster & Stucco Ltd. v. J.M.J. Developments
Ltd.
, 2011 BCCA 456 (Chambers), single justices dismissed applications to
extend time for taking prosecutorial steps based solely on the absence of
merit, without mentioning the above-noted authorities.

[17]

Single justices sitting in chambers apparently retain discretion to
refuse an extension of time to take prosecutorial steps if the absence of merit
renders the continuation of the appeal contrary to the interests of justice. In
Seiler v. Mutual Fire Insurance Co. of B.C
., 2003 BCCA 696 (Chambers), Chief
Justice Finch held that an extension of time for service was not in the
interests of justice since the appeal was doomed to fail:

[18]      While refusal to extend
the time for service in these circumstances may seem like a harsh result, the
fact is that there is no prospect of the plaintiffs succeeding on their appeal.
Extending the time for service of notice for an appeal that is doomed to fail would
put all parties to unnecessary expense, and clearly would not be in the
interests of justice.

[18]

Similarly, in
Rotzetter v. Rotzetter
, 2003 BCCA 12 (Chambers),
Southin J.A. refused an application for extension of time to file a factum and
transcript extracts, stating:

[7]        But, on all applications to extend time, the
overriding consideration must be the interests of justice. Justice is not a
concept which lends itself to scientific analysis. Among the considerations is
the effect on the parties of litigation. The applicant, an intelligent man, is
enjoying representing himself in this appeal. What the respondent thinks of it
all, I do not know, but it was plain to me that Ms. Hyslop, her counsel,
considers this appeal an exercise in irritating futility.

...

[11]      It is in the interests
of the parties to this appeal and their children that this litigation should
end. In so remarking, I appreciate that the applicant may well consider that
what is in his best interests is for him to say and not for me. It is also, however,
in the best interests of society that a pointless appeal shall not further take
up the time of this Court which has many litigants knocking at its doors with
appeals of merit.

PROPOSED DISPOSITION

[19]

Ms. Baldwin has met the first three
Davies
criteria. The only
outstanding issue is merit. This is not a case where I should weigh in on whether
an application to extend time to file an appeal record can be dismissed solely
for want of merit. In the unusual circumstances of this case, I will grant the
extension of time despite the fact that there is little merit to the appeal. The
interests of justice so require, given that it was through no fault of Ms.
Baldwin that she was unable to comply with the time limit.

[20]

Ms. Baldwin has until February 3, 2012, to file and serve her appeal
record.

(discussion
with appellant)

The
Honourable Madam Justice Bennett


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Gichuru v. Law Society of BC,

2012 BCCA 159

Date: 20120127

Docket: CA039613

Between:

Mokua Gichuru

Appellant

(Petitioner)

And

Law Society of
British Columbia and

The BC Human
Rights Tribunal

Respondents

(Respondents)

Before:

The Honourable Madam Justice Bennett

(In Chambers)

On appeal from: Supreme
Court of British Columbia, December 12, 2011
(
Gichuru v. Law Society of British Columbia
, Vancouver Registry S116065)

Oral Reasons for Judgment

Appellant appearing In Person

Counsel for the Respondent, Law Society of British
  Columbia:

G.B. Gomery, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

January 27, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 27, 2012

[1]

BENNETT J.A.
: The applicant, Mr. Gichuru, seeks leave to appeal
the order of a case planning conference judge, although Mr. Gichuru does not
characterize the judge in this way for reasons I will explain in a moment. The
order under appeal, pronounced by Mr. Justice Harris on December 12, 2011:

1.

reduced the time set aside for the
hearing from eight days to five days,

2.

established a schedule for the
delivery of the parties written materials in advance of the hearing, and

3.

provided that another case planning conference will be
held following the exchange of the materials to re-evaluate the estimate of
five days required for hearing

[2]

The Law Society of British Columbia (the Law Society) opposes the
application for leave to appeal. The BC Human Rights Tribunal (the Tribunal)
did not appear and takes no position on the application.

BACKGROUND FACTS AND PROCEEDINGS BELOW

[3]

Relatively little of the extensive factual and procedural background of
the underlying action is material to this application. Mr. Gichuru has succinctly
set out the relevant procedural history in his leave application materials.

[4]

In 2004, Mr. Gichuru filed a complaint alleging that the Law Society
discriminated against him on the basis of mental disability or perceived mental
disability, contrary to s. 14 of the
Human Rights Code
, R.S.B.C. 1996,
c. 210. The Tribunal determined that Mr. Gichurus claim was well-founded,
releasing separate reasons for liability and remedy on October 30, 2009 and
July 15, 2011. Mr. Gichuru has petitioned for judicial review of the remedy
decision. His amended petition discloses 18 grounds of review.

[5]

On September 19, 2011, Mr. Gichuru scheduled eight days for hearing of
the petition between April 16 and April 25, 2012. On September 22, 2011, the
Law Society filed an application to, among other things, reduce the length of
hearing to three days. Mr. Justice Abrioux adjourned that aspect of the
application to a case planning conference which was subsequently scheduled for
December 12, 2011 at 11:30 a.m. No judge was available until 12:00 p.m., at
which time Mr. Justice Harris heard the application. After hearing submissions
first from the Law Society and then from Mr. Gichuru, the case planning
conference judge made the order under appeal, fixing the length of hearing at
five days, subject to re-evaluation closer to the hearing dates.

[6]

Mr. Gichuru points out that Mr. Justice Harris had only received the
material just before the application, and he advised counsel and Mr. Gichuru
that he had not had an opportunity to read the material. Therefore, Mr. Gichuru
submits, Mr. Justice Harris was not a case planning conference judge in the
true sense of the word as he had just become acquainted with the material.

[7]

Between December 14, 2011 and December 15, 2011, Mr. Gichuru and counsel
for the Law Society exchanged emails in which Mr. Gichuru expressed his desire
to adjourn the April hearing dates generally on account of his health problems.
The Law Society consented to an adjournment to a fixed date in October 2012,
and Mr. Gichuru booked dates in October 2012. Mr. Gichuru mentioned the
possibility that continued health problems might necessitate the need for
further adjournment past October 2012; counsel for the Law Society responded
that his client would be opposed to further adjournments.

ERRORS ALLEGED

[8]

Mr. Gichuru argues that the case planning conference judge did not have
jurisdiction to decide the application before him as it was supported by
affidavit evidence. He relies on Rule 5-3(2)(a) of the
Supreme Court Civil
Rules
, BC Reg 168/2009 [the
Rules
] for this proposition.

[9]

Mr. Gichuru further argues that the case planning conference judge erred
in considering neither affidavit material he submitted nor his written response
to the Law Societys application. He had filed his materials for the conference
with Abrioux J., and he discovered partway through the conference with Harris J.
that the Law Society had not re-filed his materials.

[10]

Mr. Gichuru also submits that a breach of the principles of natural
justice ensued from the abbreviation of time he was given to make oral
submissions. He says that, prior to the conference, he confirmed with counsel
for the Law Society their joint time estimate was one hour for the application.
At the beginning of the Law Societys submissions, Harris J. asked whether the
application might be heard in 30 minutes, and counsel for the Law Society
agreed that it could. When Mr. Gichuru began his submissions, he was instructed
to condense them and focus on the essential points. As a result of this and of
interjections from the case planning conference judge, Mr. Gichuru says his
submissions were disjointed and scattered.

[11]

He also submits that the applicable legal test and upon whom the burden
rests to satisfy that test, in the context of an application to reduce time for
the hearing of a petition, are important questions requiring consideration of
this Court.

[12]

Mr. Gichuru argues that the term of Harris J.s order providing for
reassessment of the five-day time estimate unfairly places the onus on him to
prove that five days will be insufficient to hear the petition. Furthermore,
because the reassessment case planning conference is to take place less than
four weeks before the scheduled hearing dates, the parties will incur delay in
booking any additional hearing days that might be ordered because the court
requires months of advance notice to book lengthy hearing dates. This delay
will be prejudicial to Mr. Gichurus health problems, which take the form of
insomnia, fatigue, and concentration issues. These are exacerbated by his
belief that the respondents are trying to avoid a hearing of his petition for
judicial review on its merits.

[13]

Mr. Gichuru also states there was an inadequate evidentiary foundation
for the order under appeal in the absence of the record of proceedings before
the Tribunal and the latest amendments to the pleadings.

LEGAL TEST  LEAVE TO APPEAL

[14]

Rule 5-3(1)(q) gives a case planning conference judge discretion to make
the order under appeal. Section 7(1)(b) of the
Court of Appeal Act
,
R.S.B.C. 1996, c. 77 (the
Act
) renders this order interlocutory, and
leave to appeal is required by s. 7(2)(a) of the
Act
.

[15]

In
Barker v. Hayes
, 2007 BCCA 51 (Chambers), Mr. Justice Smith
stated at para. 14 that the purpose of requiring leave to appeal is to weed
out cases that do not warrant the time and attention of the Court (see also
Johal
v. Virdi
, 2011 BCCA 412 (Chambers) at para. 5).

[16]

The onus is on the applicant to satisfy the following four criteria:

1. the point on appeal is of
significance to the practice;

2. the point on appeal is of
significance to the action itself;

3. the appeal is
prima
facie
meritorious and not frivolous; and

4.
the appeal will not unduly hinder the progress of the action.

(See
Power Consolidated
(China) Pulp Inc. v. B.C. Resources Investment Corp.
(1988), 19 C.P.C. (3d)
396 (C.A. Chambers);
Goldman, Sachs & Co. v. Sessions
, 2000 BCCA 326
(Chambers);
Smith v. Global Plastics
, 2001 BCCA 152 (Chambers);
Hanlon
v. Nanaimo (Regional District)
, 2007 BCCA 538 (Chambers);
Vancouver
(City) v. Zhang
, 2007 BCCA 280 (Chambers);
Right Business Ltd. v.
Affluent Public Ltd.
, 2011 BCCA 496 (Chambers),
Johal v. Virdi
, 2011
BCCA 412 (Chambers).`)

[17]

In
V.F. v. E.B.
, 2011 BCCA 238 (Chambers), the chambers judge
noted that leave to appeal is much less readily granted from discretionary
orders:

[22]      Leave to appeal will rarely be granted from discretionary
orders:
Silver Standard Resources Inc. v. Joint Stock Co. Geolog
, [1998]
B.C.J. No. 2298 (C.A.), per Rowles J.A. (in chambers), quoting McLachlin J.A.
(as she then was) in
British Columbia Teachers Federation v. British
Columbia (Attorney General)
(1986), 4 B.C.L.R. (2d) 8 (C.A.) at 11:

Generally speaking, barring error in the decision below, a
justice will be reluctant to grant leave where the decision constitutes the
exercise of a discretion conferred on the chambers judge. The party seeking leave
to appeal bears the onus of establishing that the conditions for leave have
been met.

[23]      Leave to appeal a discretionary order will only be
granted where the order is clearly wrong or serious injustice will occur, or
where discretion was not exercised judiciously or was exercised on a wrong
principle:
Strata Plan LMS 2019 v. Green
, 2001 BCCA 286, 152 B.C.A.C.
174, per Proudfoot J.A. (in chambers):

[6] ... This court is slow to grant leave from a
discretionary order unless the order is clearly wrong or a serious injustice
will occur:
Watson v. Imperial Financial Services Ltd.
(1992), 65
B.C.L.R. (2d) 281 (C.A. [in chambers]).

[18]

The onus on a leave applicant is even heavier when the judgment he or
she seeks to appeal arises from case management (
Robak Industries Ltd. v.
Gardner
, 2006 BCCA 395 (Chambers) at paras. 11-12;
Bronson v. Hewitt
,
2008 BCCA 46 (Chambers) at para. 8;
Luu v. Wang
, 2009 BCCA 414
(Chambers) at para. 17).

[19]

However, there are, of course, cases where leave to appeal has been
granted from case management orders. Although this Court is less likely to
grant leave, this does not mean leave is never granted.

i         Significance
to the practice

[20]

This element requires consideration of whether the practice could use
clarification or instruction on the point on appeal or whether, by contrast, it
is well-settled. Orders that are very specific to the action will not generally
suffice. (
Re Canadian Petcetera Limited Partnership
, 2009 BCCA 255
(Chambers);
Lougheed v. Wilson
, 2009 BCCA 399 (Chambers);
Gulamani v.
Chandra
, 2009 BCCA 206 (Chambers).)

ii         Importance
of the appeal to the parties

[21]

While the significance of the appeal to the proposed parties is a
consideration (see
West Bay SonShip Yachts Ltd. (Re)
, 2007 BCCA 419
(Chambers) at para. 12), a point significant to a party but not of significance
in the action might not satisfy this criterion (
Columbia National
Investments Ltd. v. Abbotsford (City)
, 2007 BCCA 368 (Chambers) at para.
24).

iii        Merits
of the proposed appeal

[22]

An arguable case with some prospect of success will satisfy this branch.
A vexatious, frivolous, or unnecessary case or one with no reasonable chance of
success will not meet the requisite threshold under this branch (
Teck
Cominco Metals Ltd. v. British Columbia
, 2009 BCCA 3 (Chambers) at paras.
19-20).

iv        Undue
hindrance of the action

[23]

Under this branch, a chambers judge might consider whether an appeal
could interfere with upcoming trial dates, settlement negotiations, or
time-sensitive aspects of the litigation (
Smith v. Global Plastics Ltd.
,
2001 BCCA 152 (Chambers)).

PROPOSED DISPOSITION

[24]

In my opinion, the application fails on every branch of the test for
leave to appeal. None of the errors Mr. Gichuru propounds raises a point of
significance to the practice. All of these issues are well-settled. As I stated
earlier, Rule 5- 3(1)(q) gives the case planning conference judge jurisdiction
to make the order he did, and it is trite to say that justices of the Supreme
Court have a broad discretion to regulate practice and procedure in their own
court.

[25]

I accept that the grounds of complaint Mr. Gichuru raises are of
significance to him, but they are of significance neither to the other parties
nor to the action itself. If leave were granted, little would turn on whether
the appeal is allowed or dismissed.

[26]

The proposed appeal is bound to fail. The jurisprudence of this Court
clearly indicates that Mr. Gichuru faces a very heavy burden in showing that
the decision under appeal perpetuates injustice, or is clearly wrong or based
upon an error in principle. Given that Rule 5-3(1)(q) specifically confers
jurisdiction on the case planning conference judge to make the impugned order,
no division of this Court would find that he exceeded his jurisdiction in doing
so. Mr. Gichurus argument that Harris J. erred in failing to consider his
affidavit material is belied by his other submission that Rule 5-3(2)(a)
prohibits a case planning conference judge from determining an application
supported by affidavit evidence. Mr. Gichurus contention that Harris J.
offended natural justice in limiting the submissions on the application to 30
minutes instead of one hour is without merit. It is commonplace for a judge
hearing submissions to limit the time parties have to make them; in these
particular circumstances, Rule 5-3(1)(n) conferred jurisdiction upon Harris J.
to determine the appropriate amount of time for submissions on the application.
Mr. Gichuru submits that this Court should formulate a test for applications to
reduce the length of time set for trial, but to do so would be inimical to the
discretion underlying these kinds of decisions. As long as the case planning
conference judge exercises his or her discretion judiciously and not
arbitrarily, and no clear wrong or serious injustice results, this Court should
not and will not interfere.

[27]

As mentioned above, Mr. Gichuru contends that any further adjournment
past October 2012 necessary to schedule additional hearing dates the parties
might obtain would have adverse consequences for his health. This is the converse
position Mr. Gichuru takes in his December 2011 emails advising the Law Society
that his ill health might necessitate adjournments past October 2012. I do not
give weight to this aspect of Mr. Gichurus argument. I do not think a division
of this Court would see the matter differently.

[28]

In short, Mr. Gichuru cannot establish any reasonable possibility that a
division of this Court will accede to any of his arguments.

[29]

In addition, Harris J.s order requires the parties to hold another case
planning conference to reassess the five-day time estimate after exchanging
written materials. If Mr. Gichurus present concerns are still material at that
time, he can raise them then. Any relief the proposed appeal could offer Mr.
Gichuru is already available to him in the trial court. Accordingly, the
proposed appeal would unduly delay the progress of the underlying petition for
judicial review. The respondents seem eager to get on with the underlying
petition. The prospect that Mr. Gichurus health could worsen also favours a
speedy resolution.

[30]

The application is dismissed.

[31]

The costs will be in the cause.

The
Honourable Madam Justice Bennett


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Harding,

2012 BCCA 52

Date: 20120127

Docket: CA034706

Between:

Regina

Respondent

And

Mark Anthony
Harding

Appellant

Before:

The Honourable Mr. Justice
  Lowry

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Groberman

On appeal from: Supreme
Court of British Columbia, July 26, 2006
(
R. v. Harding et al
, 2006 BCSC 1309, Powell River Registry No. 13359-4)

Oral Reasons for Judgment

Counsel for the Appellant:

M.G. Scott

Counsel for the (Crown) Respondent:

A. Budlovsky, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

January 27, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 27, 2012

[1]

LOWRY J.A.
: The appellant was convicted of second degree murder
before Mr. Justice Barrow: 2006 BCSC 1309. He has been sentenced to life in
prison and, for reasons indexed as 2006 BCSC 1971, will not be eligible for
parole for 12 years. He seeks leave and if granted appeals his ineligibility
for parole contending that to be fit it should be 10 years.

[2]

James Moss was beaten to death by the appellant late at night in his
rundown home in a somewhat remote location. He was 52 years of age, living on a
disability pension, and was not in good health. He was alone. The appellant,
who was in his early twenties, and another young man, Richard Peers, went there
to get some marihuana, which Moss was selling to supplement his income. A
confrontation developed between Moss and the appellant which became physical. Moss
struck the appellant with the butt end of a shotgun on his head perhaps twice. The
appellant then overpowered Moss. He proceeded to beat Mosss head and virtually
every part of his body severely and ultimately left him to die. Moss was not
found for several days. When he was, his face was unrecognizable.

[3]

The appellant and Peers were tried together. The appellant was convicted
of murder with his defence of self-defence being rejected. Peers was convicted
of manslaughter.

[4]

At the sentence hearing, with respect to the appellant the Crown
contended for a period of ineligibility at what was said to be the upper end of
the range: 12 to 15 years. The defence conceded there were some features of the
offence that would warrant an increase in the parole ineligibility period but
said any increase should be minimal: 11 or 12 years.

[5]

After reviewing the circumstances and considering the authority to which
he was referred, the judge concluded as follows:

[44]      I am satisfied, based
on the criteria set out in s. 745 and the authorities noted, that it is
appropriate to increase the period of parole ineligibility. In particular, Mr.
Harding's criminal record; the circumstances of the killing, that is, a
prolonged and vicious beating; and the fact that it occurred in Mr. Mosss own
home are matters which warrant this conclusion. I am not persuaded, however,
that a period of parole ineligibility at the upper end of the range identified
by the Crown is appropriate. I reach that conclusion based on the distinctions
between the cases to which counsel have referred and the circumstances of this
case. I conclude that a period of parole ineligibility of 12 years is
appropriate, and that is the period I impose.

[6]

Thus, the judge identified three aspects of Mosss murder that warranted
increasing the period of ineligibility, although he did not accept it ought to
be increased to the extent the Crown sought. The first was the appellants
criminal record, the second was the way he had killed Moss, and the third was
the fact Moss had been killed in the privacy of his own home. The appellants
criminal record is extensive. The judge summarized it as follows:

[20]      Mr. Harding has a
criminal record which, while lengthy, contains no convictions for violence. As
a youth, he was convicted of break and enter in November 1998; possession of
stolen property and drugs in May of 2003; and possession of stolen property in
August of 2000. For all of these offences, he received periods of probation. In
May of 2003, while still a youth, he was convicted of break and enter. He was
sentenced to four months of open custody to be followed by two years probation.
As an adult, he was convicted of break and enter in January 2002 and sentenced
to 30 days in jail. In April of that year, he was convicted of break and enter,
possession of stolen property, and failing to stop for a police officer. He was
given a 12-month conditional sentence. Finally, in December of 2003, he was
convicted of dangerous driving causing death. The deceased in that matter was a
passenger in a stolen vehicle that Mr. Harding was operating and was a good
friend of Mr. Harding's. For that offence, Mr. Harding was sentenced to a year
in jail. He was released from jail in August 2004. From then until his arrest
on the offence before the court, he supported himself largely through selling
cocaine and other drugs.

[7]

The question now is whether the sentence imposed with the increased
period of parole ineligibility is demonstrably unfit:
R. v. Shropshire
,
[1995] 4 S.C.R. 227 at 46.

[8]

The appellant contends the judge erred in principle because he based his
determination of the ineligibility period on three factual errors, although
none of them are reflected in the three aspects of the murder the judge
identified as warranting the 12 year period. The errors are said to have led
the judge to take a more aggravated view of the appellants culpability than
was warranted and the deference to be accorded to the judges view of what he
considered to be a fit sentence is not what it otherwise would have been:
R.
v. Johnson
(1996), 112 C.C.C. (3d) 225, paras. 36  37).

[9]

The appellant first says he was sentenced on the basis he went to Mosss
house to rob him, using overwhelming violence if necessary when he should
have been sentenced as someone who went there to buy marihuana with no
intention to commit robbery. This appears to be so, although the judge did not
say anything about using overwhelming violence. The point is the judge
concluded the appellant and Peers planned to rob Moss, employing violence if
necessary, but on their conviction appeals this Court found there was no
evidence to support the judges finding of any plan to rob Moss:
R. v. Peers
,

2009 BCCA 74, and
R. v. Harding
, 2011 BCCA 282. Peerss conviction
for manslaughter was for that reason set aside. The appellant says he should
have been sentenced on the basis he and Peers had gone to Mosss home to buy marihuana,
not to rob Moss.

[10]

The appellant next says he was sentenced on the basis he attacked Moss
who, in resisting him, obtained a shotgun. With respect to Moss having struck
the appellant with the butt end of the gun, the judge said he was satisfied
that occurred at sometime during the altercation but it was not clear when or
under what circumstances. He said he was not prepared to assume those blows or
that blow had started the altercation. He said I am satisfied that [the
blows] were delivered by Mr. Moss in an unsuccessful effort to defend himself.
The appellant says this is at odds with what the judge said in convicting him
when the judge stated he was satisfied Moss struck the appellant with the
shotgun and that may have been the event which precipitated the altercation
that followed. Later he said I have not overlooked the fact that Harding was
assaulted by Moss. The appellant says he should have been sentenced on the
basis that he was attacked by a shotgun-wielding Moss such that he was to a
point entitled to defend himself.

[11]

Finally the appellant says he was sentenced as someone who denied
responsibility for his actions maintaining he had never intended to kill Moss,
although in open court he had apologized to the victims family and the judge
accepted his apology as genuine. What the appellant maintained was taken from a
pre-sentence report that recorded the appellant as saying he never intended to
kill anybody and might be guilty of manslaughter at worst; he tried to knock
Moss out; he wanted to get away; he did not go to Mosss home intending what
happened. He says he should have been sentenced as someone who had taken
responsibility for having caused Mosss death.

[12]

I consider that, in view of this Courts conclusions, the judges
statement to the effect the appellant and Peers had formed the intention to go
to Mosss home and employ violence as necessary to rob him had no place in the
reasons for the sentence imposed on the appellant which the judge gave. It is,
however, significant that the appellant and Peers were sentenced together and,
while planning to employ violence to rob Moss was essential to Peerss
conviction for manslaughter, the judge did not suggest it was in any way the
basis of the appellants conviction for murder.

[13]

While there may be some inconsistency in what the judge said with
respect to the appellant being struck with the shotgun initiating the
altercation, I do not consider the judge can be said to have sentenced the
appellant on the basis that he attacked Moss, at least not before Moss had
struck the appellant with the butt of the shotgun. It is not clear what it was
that prompted Moss to retrieve the shotgun and strike the appellant as he did,
but it cannot be said that he committed an unprovoked attack on the appellant. He
was after all faced with two uninvited young men who had come to his rural home
where he was alone late at night looking for marihuana.

[14]

Further, I see little in the contention the judge was wrong in the view
he took of the appellant accepting the culpability of his actions. The
appellant was convicted of either meaning to kill Moss or meaning to cause him
harm that he knew would likely cause his death and was reckless as to whether
death ensued (
Criminal Code
s. 229). The judge did not find it necessary
to say which. The appellants culpability is essentially the same in any event:
R. v. Nygaard,
[1989] 2 S.C.R. 1074 at para. 58. The judge properly took
the view that on what was recorded in the pre-sentence report the appellant did
not accept the full measure of what he had done in murdering Moss despite the
apology he expressed.

[15]

The judge undertook a comprehensive review of the authorities. Allowing
for his error in finding the appellant and Peers had planned to rob Moss using
such force as necessary, I do not consider that, on the authorities he reviewed,
his increasing the period of parole eligibility to 12 years can be said to
render the appellants sentence for murdering Moss as he did demonstrably unfit.
The judge quoted the following from
R. v. Cerra,
2004 BCCA 594 at para.
17:

I have discerned a pattern from
decisions of this Court suggesting, in broad terms, the following: parole
eligibility greater than 10 years is justified when there is some particularly
aggravating feature; for a penalty of greater than 15 years, egregious
circumstances of a higher order of moral culpability are present.

[16]

The judge identified three factors which he regarded as particularly
aggravating features quite apart from any plan to rob Moss. Perhaps the most
significant was the way the appellant killed Moss. He suffered a prolonged
vicious beating and was then left to die. The judge imposed a sentence that was
not inconsistent with what the defence appeared to accept could be warranted.

[17]

I would grant leave but dismiss the appeal.

[18]

NEILSON J.A.
: I agree.

[19]

GROBERMAN J.A.
: I agree.

[20]

LOWRY J.A.
: The appeal is dismissed.

The
Honourable Mr. Justice Lowry