COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Violette,

2013 BCCA 31

Date: 20130125

Docket: CA037731

Between:

Regina

Respondent

And

Jean Joseph Roland
Violette

Appellant

RESTRICTION
ON PUBLICATION: AN ORDER HAS BEEN MADE PURSUANT TO S. 486.5(1) OF THE
CRIMINAL
CODE
THAT PROHIBITS ANY INFORMATION THAT COULD IDENTIFY A VICTIM OR A
WITNESS FROM BEING PUBLISHED, BROADCAST, OR TRANSMITTED IN ANY MANNER.

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Neilson

On appeal from: Supreme
Court of British Columbia, November 13, 2009
(
R. v. Violette
, 2009 BCSC 1557, Vancouver Docket No. 23500)

Counsel for the Appellant:

K. Beatch
R.P. Thirkell

Counsel for the Respondent:

J. Duncan

Place and Date of Hearing:

Vancouver, British
  Columbia

October 22, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 25, 2013

Written Reasons by:

The Honourable Madam Justice Saunders

Concurred in by:

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Neilson

Reasons for Judgment of the Honourable
Madam Justice Saunders:

[1]

Mr. Violette applies for leave to appeal sentence and, if leave be
granted, appeals from a sentence of six years incarceration imposed by Mr.
Justice Romilly on November 13, 2009, comprising four years for extortion
contrary to s. 346(1.1)(b) of the
Criminal Code
and two years consecutive
for possession of two prohibited handguns, contrary to s. 95(1) of the
Code.
He was convicted on these counts by a jury and acquitted on a third count,
extortion for the benefit of, at the direction of, or in association with a
criminal organization, being the East End Charter of the Hells Angels, contrary
to s. 346(1.1)(b) and s. 467.12.

[2]

The convictions were registered on July 13, 2009, after a lengthy
trial of the appellant and three co-accused, Messrs Punko, Potts and Lising, on
a 28-count indictment.

[3]

The appellant contends the learned judge erred:

1.       in
principle by sentencing him for an offence of which he was acquitted;

2.       in
principle by relying upon evidence not properly before the court on the sentencing
proceedings;

3.       in
principle by giving weight to aggravating factors without first making the
necessary findings of fact;

4.       by
failing to give adequate consideration to his Aboriginal heritage; and

5.       by
imposing a sentence that is unfit.

[4]

To support the fourth ground of appeal, the appellant seeks to adduce
new evidence revealing his Aboriginal heritage, which was not known to him at
the time of sentencing and so was not before the trial judge. It is convenient
to deal with both this application to admit new evidence and the fourth ground
of appeal, before turning to the other grounds of appeal
seriatim
.

[5]

The considerations for admission of new evidence are set out in
Palmer
v. The Queen
, [1980] 1 S.C.R. 759 at 760, 50 C.C.C. (2d) 193:

1.       could the evidence, with
due diligence, have been adduced at trial?

2.       is the
evidence relevant in that it bears upon a decisive or potentially decisive
issue?

3.       is the
evidence credible in the sense of being reasonably capable of belief? and

4.       is the
evidence such that if believed it could reasonably, when taken with the other
evidence adduced at trial, be expected to have affected the result?

[6]

The appellant says he meets all these criteria. That is, he says he did
not know of his Aboriginal heritage and so, with due diligence, could not have
adduced it at the sentencing hearing; the evidence is credible; the evidence is
relevant; and the evidence could be expected to have affected the result
because it bears upon s. 718.2(e), as elucidated in
R. v. Gladue
,
[1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385, and
R. v. Ipeelee
, 2012 SCC 13,
[2012] 1 S.C.R. 433.

[7]

The material presented on the application, strictly speaking, is not
evidence because it is not presented in a sworn form, either in an affidavit or
as an exhibit to an affidavit, as is required. As we said at the hearing of the
appeal, were the form in which the evidence is presented the only bar to its
reception, we would provide the appellant with an opportunity to present it in
proper form. It is not the only bar, however, in my view; it appears to me that
the
Palmer
test is not met. In particular, the fourth requirement, that
the evidence could reasonably be expected to affect the result, is not
established, because it does not meet the reasons that consideration must be
given, under s. 718.2(e) of the
Criminal Code
, to Aboriginal
heritage. Those reasons are explained by Justice LeBel in
Ipeelee
:

[59]      ... Section 718.2(
e)
directs sentencing
judges to pay particular attention to the circumstances of Aboriginal offenders
because those circumstances are unique and different from those of
non-Aboriginal offenders (
Gladue
, at para. 37). When sentencing an
Aboriginal offender, a judge must consider: (a)
the unique systemic or
background factors which may have played a part in bringing the particular
Aboriginal offender before the courts
; and (b)
the types of sentencing
procedures and sanctions which may be appropriate in the circumstances for the
offender because of his or her particular Aboriginal heritage or connection
(
Gladue
, at para. 66).

...

[83]      As the Ontario Court of Appeal goes on to note in
Collins
,
it would be extremely difficult for an Aboriginal offender to ever establish a
direct causal link between his circumstances and his offending. The
interconnections are simply too complex. The Aboriginal Justice Inquiry of
Manitoba describes the issue, at p. 86:

Cultural oppression, social inequality, the loss of
self-government and systemic discrimination, which are the legacy of the
Canadian governments treatment of Aboriginal people, are intertwined and
interdependent factors, and in very few cases is it possible to draw a simple
and direct correlation between any one of them and the events which lead an
individual Aboriginal person to commit a crime or to become incarcerated.

Furthermore, the operation of s. 718.2(
e
) does not
logically require such a connection. Systemic and background factors do not
operate as an excuse or justification for the criminal conduct. Rather, they
provide the necessary context to enable a judge to determine an appropriate
sentence.
This is not to say that those factors need not be tied in some way
to the particular offender and offence. Unless the unique circumstances of the
particular offender bear on his or her culpability for the offence or indicate
which sentencing objectives can and should be actualized, they will not influence
the ultimate sentence
.

[Emphasis
added.]

[8]

In this case, the appellant does not assert any personal background, or any
systemic factors, that bear upon his appearance as an accused person. There is
no material before the court which would suggest he has suffered deprivation
because of Aboriginal heritage, nor is there connection between this
circumstance and his culpability, or anything to suggest the sentencing
objectives should be influenced by this newly discovered factor. It simply
cannot be said, in my view, that the evidence sought to be adduced could have a
bearing upon the sentence imposed for these offences. Accordingly, I would
dismiss the application to adduce new evidence. I also would not accede to the
fourth ground of appeal.

[9]

I turn now to the other issues, starting with a description of the
offences.

[10]

The incident that gave rise to the extortion offence occurred on
January 20, 2005, but started before that date from information received
by the appellant on January 18, 2005. The judge described the appellant as
a full patch member of the East End Charter and a committed member of the Hells
Angels Motorcycle Club. About a month prior to the incident, the appellant
warned-off Mr. Louie, the complainant in the extortion offence, from using
paraphernalia associated with the Hells Angels Motorcycle Club or the East End
Charter  in the vernacular, the complainant received a verbal tune-up. The
judge found that on January 18, 2005, the appellant was advised that
Mr. Louie was associating himself with the Hells Angels Motorcycle Club
while selling drugs. The trial judge found the appellant addressed
Mr. Louies behaviour by saying he would deal with it, that the
appellant and another male made enquiries and were informed that Mr. Louie
had shown his Hells Angels Motorcycle Club belt to an individual while saying
he was with the chapter, that in intercepted phone conversations the appellant
said that he wanted to take care of [Mr. Louies behaviour] pretty
quickly, that the appellant met with the individual who reportedly had been
shown the appellants Hells Angels Motorcycle Club belt, that after the meeting
the appellant both called and met with associates and planned to meet
Mr. Louie on Burnaby Mountain, and that one associate said words to the
appellant to the effect that Mr. Louie deserves the beating he is about
to get.

[11]

As to the incident, the judge found:

[96]      Horizons Restaurant is at the top of the mountain
with a parking lot in front.  Upon arrival Violette protested about that location
as he felt they didnt wanna be fuckin poundin him out in the parkin lot.
Violette decided they would get Louie to stop half way down the road.

[97]      When Louie arrived, Violette, Plante and Bryce Jr.
got out of Plantes vehicle.  Plante testified they went towards Louies
vehicle which was parked about five feet away.  As soon as Louie got out of his
vehicle, Violette slapped, punched and kicked him.  Plante agreed that Violette
slapped Louie three times.

[98]      At some point Louie unintentionally stumbled
towards Violette; Plante tried pulling Louie back and they both fell down.
Violette kicked Louie and Plante was inadvertently kicked from behind by Bryce
Jr. trying to kick Louie.  Plante got up, but Louie stayed on the ground.
Violette got into Plantes vehicle, Bryce Jr. got in behind him and Plante
stood there, made sure that Louie was getting up.  Plante told him to get rid
of his support belt.  Louie did not have the belt and in fact was not wearing
any
belt at the time.  As a result Louies pants had fallen down.  Plante told
Louie to pull his pants up.

[99]      Plante got back in his
vehicle.  Plante noticed that Louie had blood on his face.  Plante didnt see
Bryce Jr. strike any blows to Louie.

[12]

The judge set out in his reasons on sentencing portions of the
transcript of the intercepted dialogue during the incident. The portions include
multiple notations of thumping sound, smack sound, slapping sound,
protestations by Mr. Louie and multiple notations of crying attributed
to Mr. Louie:

[100]    The beating can be heard in an intercept from
January 20, 2005 at approximately 7:00 p.m.  The following is from the
transcript of that intercept:

JB:       Hey, you comin up the hill?

GL:      ...

JB:       You turn already?

JV:       Okay, lets go, Mike.

(Movement sounds)

(Beeping sounds)

JB:       Okay... bye.

(Movement sounds)

(Thumping sound)

JB:       Oh shit.

(Thumping sound)

...

JB:       Ah, I cant get out. Ah-

(Sound of zipper)

(Thumping sound)

(Pause)

JV:       What I fuckin tell ya about
that huh?

GL:      ... didnt do nothin.

JV:       Huh?  What the fuck ...-

(Smack sound)

GL:      I didnt do nothin.

JV:       Yeah, you fuckin liar
cocksucker-

GL:      Oww, fuck.

JV:       ... you fuckin cocksucker.

GL:      Fuck I didnt say nothin.
... Porno I never said anything.

JV:       Fuck you.

GL:      I never said anything.

(sound of vehicle passing)

GL:      I didnt do it Porno.

JV:       Fuck you, you didnt.

GL:      I didnt oh (crying)

JV:       Fuck you you didnt.

(slapping sound)

GL:      (crying) ... I never said
any...

JV:       Get up.  Get up before I
fuckin (Slap noise)... Get the fuck up.  I aint fuckin done with you.

GL:      (crying) I never said
anything.

JV:       Fuck you you didnt.

GL:      I never (crying) said any ...

JV:       Let me tell you somethin.
Next time you flash your-

GL:      (crying)

JV:       -fuckin clothes around and
your belt-

GL:      (crying)

JV:       -and you send a nigger over
to see Marcus, Ill tell you right now, you take that belt off, you get the
fuck outta town.  Lets get outta here.

MP:      You got the belt on right
now?

GL:      No, I dont.

MP:      Lets see it.  Lets see.

GL:      No.

MP:      ...pull your pants up...

GL:      I dont.

MP:      You got that belt on right
now?

GL:      No, I dont.

(Thumping sound)

GL:      I dont have (Thumping sound)
anything on.

(Thump sound)

MP:      Well, when ya do...throw all
your stuff in a bag...and take it to the house...

GL:      Okay.

MP:      You got that?

JV:       I dont wanna see you
hangin around.

(Sound)

(Thump sound)

JV:       Hey, I told ya, dont be
talkin to people like that.

MP:      Call Jonathan.

JV:       I warned you about that.

...

MP:      Throw all your stuff in a bag
and call Jonathan.

JV:       Lets go.

MP:      (sighs)

JV:       And you know what, you
better forget what happened.

MP:      Lets, lets get outa here.

JV:       Lets go.

[13]

The firearms charges arose from the discovery, upon a search of the
appellants home, of a fanny pack containing two firearms. One was fully
loaded and there was ammunition in the fanny pack for the other. The two
firearms were operable. Both firearms are prohibited under the
Criminal Code
,
and they were not registered. Further, the appellant did not have a firearms
licence.

Discussion

[14]

The enquiry on a sentence appeal starts with examination of the reasons
on sentencing to determine if there has been an error of principle, or an error
in the application of relevant factors by failing to consider a factor or over-emphasizing
a factor. Even where there is such an error, however, the ultimate question for
this court is whether the sentence imposed is unfit:
R. v. M. (C.A.)
,
[1996] 1 S.C.R. 500 at 564-5, 105 C.C.C. (3d) 327;
R. v. Johnson
(1996),
112 C.C.C. (3d) 225 at para. 37, 84 B.C.A.C. 261.

[15]

The appellant contends, as his first ground of appeal, that the judge
erred by imposing a sentence on him for an offence of which he was acquitted,
extortion on behalf of a criminal organization.

[16]

In making this submission, the appellant refers to the structure of the
reasons for sentencing, and their content. He complains that most of the first
23 pages are devoted to background, focussed upon the evidence adduced at
trial concerning the history and character of the Hells Angels Motorcycle Club,
its relationship to rival gangs in Canada, the organizational attributes of the
Hells Angels Motorcycle Club including its membership and the role of chapters
such as the East End Charter, the use of Hells Angels Motorcycle Club insignia,
and the background of the appellant with the East End Charter.

[17]

The appellant refers to portions of the reasons on sentencing that
describe the assault of Mr. Louie and its connection to the Hells Angels, and
says the judge found both that the appellant committed the offence on behalf of
the Hells Angels, and that the organization is a criminal organization. This
amounts, he says, to a conclusion at odds with the jurys acquittal on the
offence of extortion for the benefit of or in association with a criminal organization.
The appellant refers in particular to these paragraphs of the reasons on
sentencing:

1.         The Hells Angels
Motorcycle Club

(a)        HAMC:  One
Percenters

[7]        The evidence about the [Hells Angels Motorcycle
Club] came from Lemieux (qualified by me as an expert), Plante and the
intercepted communications of the accused.

[8]        Lemieux defined an Outlaw Motorcycle Gang as a
group of individuals who band together and do not want to abide by societys
laws; these clubs sometimes self-apply the label of one percenters.  The
difference between a regular motorcycle club and a one percenter club is that
a regular club exists to drive motorcycles and enjoy the camaraderie, whereas a
one percenter clubs main purpose is to conduct criminal activity and gain control
over the area in which they are located in order to conduct that activity.

[9]        Lemieux stated that
the Hells Angels is one of these one percenter clubs.

[18]

And from the judges discussion of the appellants background with the
East End Charter:

[74]      From the evidence
adduced at this trial, there could be little doubt that the assault of Louie on
January 20, 2005, resulted from action taken by Violette in order to protect
the [Hells Angels Motorcycle Club] name and reputation. ...

[19]

And further from the judges discussion of aggravating factors:

(h)       Action on Behalf of a Group

[148]    Violette was a full patch member of the [East End
Charter of the Hells Angels] and took this violent action against Louie on
behalf of this group, with the assistance of two junior associates of the group
and under sanction of the groups president.

[149]    Members of a group can cause far greater injury to
society than can individuals acting alone.  Society must protect itself from
such groups actions by demonstrating that the rule of law will prevail.

[150]    Therefore, further
aggravating the sentence for the extortion offence are factors such as the fact
that Violette acted on behalf of a group known as the [East End Charter of the
Hells Angels], ...

[20]

The appellant compares these passages to the judges instructions to the
jury on the meaning of for the benefit of the criminal organization, and
submits that by these passages, the judge found the appellants actions were
to protect the ... name and reputation of the Hells Angels Motorcycle Club,
which he says is the same as saying the appellants actions were for the
benefit of or in association with the Hells Angels. Further, he says the
judge concluded the Hells Angels Motorcycle Club, or the East End Charter, or
both, are criminal organizations. These conclusions combined, he says, cannot
coexist with the jurys acquittal of him on the criminal organization count.

[21]

Responding, the Crown observes that the sentencing judge was required to
make findings of fact for the purposes of sentencing (s. 724(1) of the
Criminal
Code
), and in doing so, was not obliged to give the accused the benefit of
the most favourable view of the evidence:
R. v. Gauthier
(1996), 108
C.C.C. (3d) 231, 78 B.C.A.C. 85. The Crown says the comments as to which the
appellant complains are simply a review of essential background that was
relevant to the appellants motivation to commit the extortion, and do not
represent an end run around the jurys verdicts.

[22]

It is clear that the judge may not hold, as an aggravating fact, the
commission of an offence on which the appellant has been acquitted. The issue
here is whether the judge did so in his reasons on sentencing.

[23]

The charge of which the appellant was acquitted was laid under
ss. 346(1.1)(b) and 467.12 of the
Criminal Code
.

[24]

Section 346(1.1)(b) is the offence of extortion
simpliciter
of
which the appellant was convicted. The extra elements in the charge on which he
was acquitted are found in the other provision referred to in the count,
s. 467.12. That section provides:

467.12 (1) Every person who commits an indictable offence
under this or any other Act of Parliament for the benefit of, at the direction
of, or in association with, a criminal organization is guilty of an indictable
offence and liable to imprisonment for a term not exceeding fourteen years.

(2) In a prosecution
for an offence under subsection (1), it is not necessary for the prosecutor to
prove that the accused knew the identity of any of the persons who constitute
the criminal organization.

[25]

Criminal organization, referred to in s. 467.12, is defined in
s. 467.1(1):

criminal organization means a group, however organized,
that

(a) is composed of three or more
persons in or outside Canada; and

(b) has as one of its main purposes
or main activities the facilitation or commission of one or more serious
offences that, if committed, would likely result in the direct or indirect
receipt of a material benefit, including a financial benefit, by the group or
by any of the persons who constitute the group.

It does not include a group of persons that forms randomly
for the immediate commission of a single offence.

serious offence means an
indictable offence under this or any other Act of Parliament for which the
maximum punishment is imprisonment for five years or more, or another offence
that is prescribed by regulation.

[26]

The acquittal of the appellant represents the jurys conclusion that the
Crown had not proved beyond a reasonable doubt both that the offence of
extortion (an indictable offence) was for the benefit of or at the direction of
or in association with either or both of the Hells Angels Motorcycle Club or
the East End Charter, and that the Hells Angels Motorcycle Club or the East End
Charter, or both, was a criminal organization.

[27]

I accept the appellants submission that the judge found the appellant
had committed the offence of extortion for either or both of the Hells Angels
Motorcycle Club or the East End Charter. The issue is whether he also found that
either or both of those organizations, in the words of s. 467.1(1), has
as one of its main purposes or main activities the facilitation or commission
of one or more serious offences that, if committed, would likely result in the
... receipt of a material benefit ..., and if so, whether he applied that
conclusion as an aggravating factor.

[28]

The judge started his reasons on sentencing with the observation that
the jury had acquitted on the criminal organization offence:

[6]        Due to the decision of
the jury on the criminal organization offence, it is imperative that I deal
with some of the evidence that was led on this trial about the aspects of the
group known as the EEHA.  In order to deal with the background to the
conviction of Violette on the extortion offence, it is also essential that I
canvass some of the testimony of Plante, Jacques Lemieux (Lemieux) and the
various intercepted communications of the accused relating to the nature and
characteristics of the Hells Angels Motorcycle Club (HAMC) and the EEHA.  This
has already been done in great detail in my charge to the jury (marked as an
exhibit in these proceedings); nevertheless, I intend to refer to a summary of
those characteristics.  In these reasons it is also necessary for me to canvass
Violettes position in the EEHA.

[29]

The judge noted the evidence of Mr. Lemieux that the Hells Angels was
a club whose main purpose is to conduct criminal activity. While some might
see this reference to Mr. Lemieuxs evidence as a finding of fact by the
judge that the main purpose of the Hells Angels Motorcycle Club or the East End
Charter, or both, was to engage in serious offences as is required to meet the
definition of criminal organization in s. 467.1(1), it seems to me the
judges reasons on sentencing stop short of such a finding, both as to the
degree to which he accepted Mr. Lemieuxs evidence and as to finding the
full character of a criminal organization under s. 467.1(1) was proved.
More importantly, one then must travel to the judges explanation for imposing
the sentence and consider the use he made of the characterization of these two
organizations. The judges only discussion on this is in his discussion of
aggravating factors in paras. 148 to 150, replicated above. On my reading
of the reasons on sentencing, particularly those paragraphs, the judge was
influenced by the fact of the two organizations only to the extent he found the
offence of extortion was committed for a group. Such behaviour, he properly
noted in para. 149, is to be abjured because group actions can cause great
injury.

[30]

It is apparent that the judge found the appellants membership in these two
motorcycle organizations distasteful, but that assessment is not equivalent to
imposing sentence for an offence under s. 467.12, as contended by the
appellant. Further, in commenting negatively on the two organizations to the
extent he did, the judge was responding to the submission made for the
appellant that the appellants membership simply demonstrated his enthusiasm
for motorcycles. I would not accede to this ground of appeal.

[31]

In his second ground of appeal, the appellant says the judge erred in
principle by relying upon evidence not properly before the court in the
sentencing proceeding. He contends that the evidence of Mr. Lemieux, who
provided expert evidence at trial on the structure and organization of the
Hells Angels Motorcycle Club, the East End Charter, and gangs generally, ought
not to have been considered in the sentencing proceedings because it was
admitted for the single purpose of proving the count on which Mr. Violette
was acquitted. He complains, further, that there was no suggestion that the
court would rely upon the evidence in passing sentence. He notes that although
he was unrepresented at trial, he was represented at the sentencing hearing,
and says his counsel should have been alerted to the prospect
Mr. Lemieuxs evidence would feature prominently in the sentencing
outcome.

[32]

With respect, it seems to me that the submission that Mr. Lemieuxs
evidence was not available for consideration at the sentencing hearing is
contrary to s. 724(1) of the
Criminal Code
:

724. (1) In determining a sentence, a court may accept as
proved any information disclosed at the trial or at the sentencing proceedings
and any facts agreed on by the prosecutor and the offender.

(2) Where the court is composed of a judge and jury, the
court

(a) shall accept as proven all
facts, express or implied, that are essential to the jurys verdict of guilty;
and

(b) may find any other relevant fact that was disclosed by
evidence at the trial to be proven, or hear evidence presented by either party
with respect to that fact.

[33]

On my reading, s. 724 plainly provides authority for the judge to
consider Mr. Lemieuxs evidence. Further, it was reasonable for the judge
to take note of several aspects of that evidence, including the pre-eminence of
the reputational interest of the two organizations and the role of insignia and
various club accoutrements to them, as that evidence explained the encounter
between the appellant and Mr. Louie on January 20, 2005.

[34]

Insofar as the appellant complains that his counsel was not advised that
this evidence may bear upon the sentence, I observe that the evidence had been
tested at trial, and the transcript of the proceedings was available. The
Criminal
Code
makes clear the material that may be used by the judge on sentencing,
and it includes the evidence said by the appellant to be beyond the judges
notice. In my view, there was no lack of procedural fairness.

[35]

It seems to me it would have been highly artificial for the sentencing
to proceed without reference by the judge to this evidence. I would not accede
to this ground of appeal.

[36]

The third ground of appeal challenges the judges characterization of
the attack on Mr. Louie as vicious and brutal. The appellant says this
characterization must mean the judge accepted that Mr. Louie was injured,
in spite of the appellants challenge to that conclusion. Because he challenged
that allegation, he says s. 724(3)(e) of the
Criminal Code
required
the judge to determine whether an injury was inflicted beyond a reasonable
doubt. The appellant says the judge failed to decide the issue of injury, and
so was precluded from characterizing the assault as brutal and vicious when
discussing aggravating factors.

[37]

I do not agree the judge erred in this fashion. The judge had before him
some evidence of injury, and he was correct in his summary of that evidence. The
judge demonstrated an understanding that police surveillance reported no
visible external injuries on Mr. Louie the following day, and contrary to
the submission of the appellant, the judge did not expressly find Mr. Louie
suffered an injury. Further, he was not required to do so before commenting on
the nature of the attack. He had before him both the transcript and audio
recording of the assault, demonstrating multiple sounds of thumping and
smacking. He knew that Mr. Louie had been lured to a somewhat isolated
location, and that it was dark when the incident occurred. In other words, he
understood Mr. Louie had been ambushed, and been set upon. It was for the
judge, having heard all the evidence, to assess the seriousness of the incident.
In my view, it is not open to this court to interfere with his characterization
of the encounter between the appellant, his associate, and Mr. Louie.

[38]

Under the same ground of appeal, the appellant challenges the judges
findings of aggravated facts with respect to the firearms offence. He refers to
the comment of the judge that there is an indication that these handguns were
not in Violettes possession for an innocent purpose, and contends the judge
erred in failing to decide whether that was so beyond a reasonable doubt, and
thus erred in finding that the purpose for which the appellant possessed the guns
was an aggravating factor. He points to an exchange with the court wherein it
was posited that the bulletproof vest could be useful in paintball. This
complaint addresses this passage of the reasons on sentencing in respect to the
firearms offence:

[162]    As in Lising, there is
an aggravating factor in this case.  During the search of Violettes home, the
police found body armour in the same room as the handguns.  As suggested by the
Crown, this is an indication that these handguns were not in Violettes
possession for an innocent purpose.

[39]

In the context of the entire reasons, I read this as a conclusion that
there was not an innocent purpose for possession of the firearms. This is a
reasonable finding, given not only the presence of the body armour, but also the
prohibited status of the firearms, the manner in which they were packed, and
the appellants lack of a firearms licence. There was also no suggestion in the
evidence

that the intended use was benign. I see no error in this
reference to an aggravating factor in relation to the firearms offence.

[40]

As his last ground of appeal, the appellant says the sentence imposed is
unfit, and asks us to substitute a sentence in the range of 18 months on the
extortion offence and 12 months on the firearms offence, for a global sentence
of 30 months in place of the global sentence of six years. He refers to his
strong letters of reference, his successful business career and his prospects
for continued successful employment, and urges this court to substitute time
served in lieu of a further period of incarceration.

[41]

We have been referred to several sentencing cases for the offence of
extortion:
R. v. Cromwell
, 2007 BCSC 601;
R. v. Bohoychuk
, [2005]
M.J. No. 92 (Q.B.);
R. v. McAninch
(1994), 53 B.C.A.C. 149;
R. v. Garfield
,
2007 BCCA 300; and
R. v. Saumier
, 2008 BCCA 473. This collection involves
cases ranging from nine months incarceration (
Cromwell
) to three years
incarceration (
McAninch, Saumier
). In
Garfield
, this court upheld
a sentence of two years incarceration and 14 months incarceration for two
counts of extortion (to be served consecutively) involving discipline activity
of a crack ring that was more violent than the activity here, but committed
by a youthful first offender with cognitive and intellectual difficulties. In
McAninch,
this court upheld a three-year sentence imposed on each of one
count of assault with a weapon and one count of extortion, to run concurrently.
The assault, which caused serious injury, was to further private collection of
a debt.

[42]

In
Saumier
, the judge imposed a sentence of three years for
extortion, two years consecutive for possession of a loaded firearm, and six
months concurrent on a second firearms offence, for a global sentence of five
years, which was then adjusted down to take account of pre-trial custody. The
extortion was of a customer who had purchased cocaine from Saumier in the past
and was known by Saumier to have recently purchased a vehicle. Saumier
intimidated the customer into signing papers transferring the vehicle to him. Madam
Justice Newbury, for the court, made these observations:

[13]      Mr. Garson on behalf of the Crown notes that the
crime of extortion has become the subject of increased societal concern in
recent years, as reflected by the fact that the maximum sentence is now life
imprisonment. I agree that this fact does make some of the older cases to which
we were referred less helpful than more recent ones. The Crown submits as well
that a dichotomy between extortion cases involving violence and those not
involving violence does not properly reflect the broader set of factors that
the court is required to consider in sentencing, and that McKinnon J. in this
instance implicitly considered those principles - denunciation, deterrence, the
separation of offenders from society, rehabilitation, reparation and a
promotion of a sense of responsibility in offenders. He found that denunciation
and deterrence were most important in this instance, given Mr. Saumier's
record, his past convictions for disobeying court orders and other undertakings
given to the court, and what Mr. Garson described as his attitude to
convictions - as simply a cost of doing business. As for rehabilitation, I have
already noted the sentencing judge's skepticism that Mr. Saumier had any interest
in that direction. As I read his reasons, it was because of these factors that
McKinnon J. arrived at a sentence that was in the upper range of extortion
cases in which violence or organized crime have not featured.

[14]      In my view, given the deference to which the
sentencing judge is entitled, it cannot be said that the court below erred in
imposing an unfit sentence on the extortion charge.

...

[16]      As for the totality
principle, given that the three years imposed on the extortion count was a fit
sentence, and that, as the defence conceded, two years was also a fit sentence
on the firearm charge under s. 95(1) of the
Criminal Code
, I am not
persuaded that the sentence in its totality was excessive.

[43]

The circumstances of the offence of extortion can vary greatly, and thus
so can the range of sentences. None of the cases just referred to bear the same
mix of factors as is present here. In this case, the judge considered the
following to be aggravating factors: the offence involved infliction of violence;
there was evidence of some injury; the extortion was planned and premeditated,
engaged the conscription of others to help, and involved luring the victim to
the location; the location was a dark, remote place where assistance would
purposefully be harder to obtain; the beating would have been worse but for
the chance passing of a vehicle; the victim did not resist, which is a measure
of the intimidation factor; the extortion was done on behalf of the East End Charter
of the Hells Angels; there was a businesslike impersonal attitude to the
crime; and the appellant was the leader in the extortion. Of particular concern
in this list of aggravating factors is the group purpose aspect of the offence,
the factor at the centre of the first ground of appeal. The judges observations
on this are entirely correct. Criminal behaviour undertaken to advance a collectives
pride, reputation, or business is opposite to order in a civilized community,
and fully justifies moving the sentence here to a somewhat higher level than has
been applied in the cases mentioned earlier. Even considering the mitigating
factors referred to by counsel for the appellant, it does not appear to me that
a sentence of four years is unfit in this case.

[44]

Nor, in my view, is a sentence of two years on the firearms offence
outside the appropriate range: see
Saumier
and
R. v. Jarsch
, 2007
BCCA 189.

[45]

In conclusion, there is no proper basis, in my view, on which to
interfere with the sentence imposed. I would give leave to appeal sentence, but
dismiss the appeal.

The Honourable Madam Justice Saunders

I AGREE:

The
Honourable Mr. Justice Chiasson

I AGREE:

The Honourable Madam Justice
Neilson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Morrison v. Van Den Tillaart,

2013 BCCA 48

Date: 20130128

Docket: CA039687

Between:

Merle Thomas Morrison

Appellant

(Plaintiff)

And

Tony Van Den Tillaart,
Susan Van Den Tillaart, William E. Maddox, and
Andrea Brace as Registrar of the Kamloops and Nelson Land Title Districts

Respondents

(Defendants)

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Harris

On appeal from:
Supreme Court of British Columbia, February 10, 2012
(
Morrison v. Van Den Tillaart
, Kamloops Registry S44495)

Oral Reasons for Judgment

Counsel for the Appellant:

J.G. Frame

Counsel for the Respondents Tony and Susan Van Den Tillaart:

K.G. Burnham

Place and Date of Hearing:

Vancouver, British
  Columbia

January 28, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2013

[1]

HARRIS J.A.:
This appeal arises out of a dispute about the
correct location of the boundary between two adjacent lots located alongside
the shore of Shuswap Lake. A little background is required to set the issue on
appeal in context.

[2]

The lots were created as Lots B and C by subdivision in 1951. In
rough terms, Lot C lies to the north of Lot B. The lake lies to the
west of the lots. An easement runs across Lot B to the lakeshore and turns
north to reach Lot C, thereby providing access to Lot C.

[3]

There is a cabin on what has generally been understood to be Lot C.
The original cabin predates the subdivision. After subdivision the boundary of
the lots was generally understood to run close by the cabin to its south. The
cabin has been subsequently renovated and enlarged, but not in a way that would
have encroached on Lot B.

[4]

Mr. Morrison bought Lot B in 1993. In 2007, he commissioned
survey work from a surveyor, Mr. Sansom. Mr. Sansom produced a
posting plan based principally on calculations derived from the original
Reference Plan (5558) that had been deposited in the Land Registry Office in
connection with the subdivision (the Lewall Plan). The result of the posting
plan was startling. It concluded that the historical property line, which
previous owners had accepted, was inaccurate and Lot B actually extended 100
feet further to the north, taking in the house and part of the garage of the current
owners of Lot C, the Van Den Tillaarts.

[5]

In response, the Van Den Tillaarts retained a different land
surveyor, Mr. Maddox, to review the Sansom Plan. Mr. Maddox made
extensive investigations, including arranging an on-site meeting with previous
owners. In the course of this meeting, Mr. Maddox was told where the
previous owners believed a surveyors pin had been located. Mr. Maddox was
directed to a specific area very near and south of the cabin. After probing, he
found a square hole the size of a survey pin. He found nearby what he
considered to be an old (certainly pre-1959) survey pin leaning against a tree.
Mr. Maddox found that the pin fitted inside the hole and was satisfied
that the hole was a monument establishing the boundary, even though it was
found where one would not ordinarily expect to find a survey pin.

[6]

Mr. Maddox also concluded that the original Reference Plan contained
glaring errors and was demonstrably inaccurate in many respects.

[7]

As a result of his investigations, Mr. Maddox prepared a new plan
(the Maddox Plan), which, in effect, located the boundary where it has always
been understood to be before the matter was thrown in doubt by the Sansom Plan.
The Maddox Plan was submitted for registration with the Land Title Office. Mr. Sansom,
upon review of the Maddox Plan, declined to defend his own plan and confirmed
that he supported the Maddox Plan. It has not yet been registered, the Surveyor
General concluding the matter should be settled by the court.

[8]

Mr. Morrison refused to accept the Maddox Plan and started the
current action. Mr. and Mrs. Van Den Tillaart filed a
counterclaim alleging that Mr. Morrison had blocked the easement.

[9]

Mr. Justice Dley found as a fact that the Maddox Plan accurately
identified the boundary and dismissed Mr. Morrisons claim. He further
found that Mr. Morrison had blocked the easement and ordered him to clear
it and not interfere with access to Lot C.

[10]

Mr. Morrison appeals against both of these conclusions. He alleges three
errors. First, that the trial judge made a palpable and overriding error in
finding that Mr. Maddox found an original survey monument. Second, in
failing to give effect to the intentions of the original parties to the
subdivision. Third, in placing the onus on Mr. Morrison to show that he
was not blocking the access easement to Lot C.

[11]

Mr. Morrison submits that this case is about whether in British
Columbia the location of a property boundary can be established by longstanding
reputation.  He contends that the trial judge made a palpable and overriding error
in finding that Mr. Maddox had found an original survey monument. He
submits, moreover, that the boundary could not be established by Mr. Maddox
without relying on the Lewall Plan for dimensions and measurements.

[12]

The appellant puts his position that the trial judge made a palpable and
overriding error in finding that Mr. Maddox found the original survey
pinhole near but south of the cabin in paragraphs 59-61 of his factum:

1.

At paragraph 53, the trial judge concluded that:

The critical evidence was the monument,
being the original survey pinhole found near the south-east corner of the cabin.
The location of that pinhole was confirmed by the prior owners. The evidence of
Mr. Fuller is particularly compelling, since he worked on the construction
of the cabin within a year or two of the subdivision being created. He saw the
survey pins which were in the same area as the pinhole found by Mr. Maddox.
Those same pins were seen by Mr. Schmidt.

2.

In the above cited passage, the trial judge conflates three distinct
distances from the cabin to the boundary: a) 2 feet according to Fuller; b)
between 3 and 5 feet according to Schmidt; and c) 5.18 feet according to Maddox.
It is possible that Fuller and Schmidt are referring to the same location when
Schmidt puts the distance at around 3 feet. It is clear that Schmidt and Maddox
are referring to the same distance when Schmidt agrees the Maddoxs placement
of the post (at 5.18 feet) during the onsite meeting. It is however, not
possible that what Fuller saw at 2 feet is the same location as the pinhole
found by Maddox at 5.18 feet. The original post cannot be at two different
locations. It cannot be at both 2 feet and 5.18 feet south of the cabin.

3.

Having accepted Fullers testimony, the only
conclusion open to the trial judge was that the pinhole found by Maddox was not
the original survey pinhole. The trial judges conclusion that the object seen
by Fuller was at the same location as the pinhole found by Maddox is an obvious
(palpable) error.

[13]

I am unable to accept these submissions. The fact that the trial judge
found the evidence of Mr. Fuller to be compelling does not mean that he
must accept every last scintilla of it. The trial judge was well aware of the
inconsistencies in his evidence and dealt with them. At paragraphs 19 and
20 of his reasons, he accepted that Mr. Fuller had seen the survey stakes
(and I emphasize that he saw more than one stake) separating the lots in 1951
and had worked on a renovation of the cabin in 1951 or a very short time later
with his father (who had subdivided the property) and care was taken in the
renovation not to cross the boundary. The judge found that Mr. Fuller was
fully cognizant of the boundary. After noting the inconsistency in his
evidence about whether the boundary was 6 feet or 22 inches from the cabin he
said: While that evidence is not consistent, it is beyond any doubt that the
cabin was clearly within the boundary of Lot C. Whether it was within 22
inches or six feet is not fatal to Mr. Fuller's evidence. There was only
one cabin on Lot C and while it was close to the boundary line, it most
certainly was not some 100 feet onto Lot B.

[14]

In my view, that finding is unassailable on appeal. Standing alone it is
sufficient to support the dismissal of the action. If it were the only evidence
of where the boundary line was, the trial judge would have been entitled to
accept it. Whatever uncertainty may remain about the direction or location of
the boundary, the boundary did not take in 100 feet of Lot C.

[15]

Moreover, I do not think that the judge made any error in finding that
the hole found by Mr. Maddox was an original survey pinhole and,
accordingly, a monument on which he was entitled to rely to locate the
boundary. The trial judge is entitled to weigh the evidence. It is apparent
that he was aware of the different estimates given by various previous owners
of where they thought the survey pin near the cabin should be found. The
discrepancies in the various estimates are, in the scheme of things, trivial. The
previous owners present were able to direct Mr. Maddox to an area about a
metre square. There he found a hole the size of a survey pin. Nearby, he found
an old survey pin of a type used before 1959. The pin fit in the hole. Mr. Maddox
concluded that he had found a monument setting out the location of the boundary
near the corner of the cabin.

[16]

The trial judge accepted Mr. Maddoxs opinion, as he was entitled
to do. The trial judge accepted that Mr. Maddox had provided the only
reliable evidence of the boundarys location. He found that Mr. Maddox had
conducted a thorough investigation using the hierarchy of evidence generally
recognized by surveyors, that his conclusions were supported by Mr. Sansom
who had reviewed his work, and that there was no evidence to the contrary. It
is unnecessary to detail the deficiencies in the Lewall Plan that were
catalogued by the trial judge. He was entitled to reject it as unreliable and
inaccurate, as Mr. Maddox had done. The evidence demonstrates it was rife
with errors. I am satisfied that among the many errors are ones that are
material to the specific issues before the trial judge.

[17]

I do not accept the characterization of this case as being about whether
a boundary can be established by long standing reputation. The critical
findings were that the pinhole was a survey monument marking the boundary. Other
evidence supported that conclusion. That evidence included the evidence of
previous owners who had seen the survey pins marking a boundary to the south of
the cabin. The finding that the pinhole found by Mr. Maddox was in the
same area as the pins seen by Mr. Fuller and prior owners is unassailable.
This is not a matter of reputation, it is a finding based on historic evidence
about the location of survey pins that was later corroborated by findings in
the field.

[18]

It is worthwhile to stress too that other evidence supported the
location of the boundary where Mr. Maddox placed it. Other survey pins had
existed and been seen by previous owners. They had been lost likely because of
road building as the trial judge found, or as a result of flooding and work at
the lake shore. For example, Mr. Schmidt bought Lot C in 1980. His
evidence was that when he bought the lot there were two survey pins marking the
boundary, one close to the cabin and one by the lake. Mr. Schmidt built a
retaining wall at the lake to line up with the lakeshore pin (which was
subsequently lost). Mr. Warren, who next owned the property, replaced the
retaining wall built by Mr. Schmidt with the wall that currently exists. In
doing so he relied on the end of Mr. Schmidts wall and eye-balled the
boundary. In my view, this evidence establishes features that are probative of
the location of the boundary, likely constitute the best evidence available in
the circumstances, and do not turn on reputation because the retaining wall
ended where the survey pin had been. This evidence also explains why it was not
necessary for Mr. Maddox to rely on anything that was inherently
unreliable in the Lewall Plan.

[19]

I am satisfied that the trial judge did not make any palpable and
overriding error in his findings of fact. To the contrary, his findings are
amply supported by the evidence.

[20]

The trial judge accepted that Mr. Maddox had relied on the
hierarchy of evidence used by surveyors and endorsed by the courts to locate
boundaries. That hierarchy is 1) natural boundaries; 2) original
monuments; 3) fences or possession that can reasonably be related back to the
time of the original survey; and 4) measurements. In this case there is no
helpful evidence of natural boundaries. There is evidence of original monuments
upon which both Mr. Maddox and the trial judge were entitled to rely. Similarly,
there is evidence of fences and possession that can reasonably be related back
to the time of the original survey. This evidence includes retaining walls and
the price at which the lots were transferred shortly after subdivision.

[21]

The appellant argues the trial judge should have relied on the
measurements in the Lewall Plan as the best evidence of where the boundaries
lie, and made a palpable and overriding error in not doing so. I disagree. Not
only do measurements rank behind the other categories of evidence relied on by
Mr. Maddox and the court, the trial judge went further and found as a fact
that the measurements in the Lewall Plan were incorrect. I accept the
respondents submission that to rely on the measurements in the Lewall Plan
would be to implicitly overturn a finding of fact that is in my view amply
supported by the evidence.

[22]

Similarly, I am unable to give effect to the argument that the trial
judge failed to give effect to the intentions of the parties. This argument is
based on the proposition that the parties must have intended what could be
derived from the Lewall Plan since the original parties to the subdivision
signed it. But it was demonstrated beyond any doubt at trial that the Lewall
Plan was riddled with error. There was no evidence of what the original owner
who received Lot B intended (beyond signing the Plan), except that the
subdivision helped resolve the consequences of his failing to purchase the
entire parcel. He sold Lot B almost immediately and never visited it. So
far as I can see the only reliable evidence of intention is that Mr. Fullers
father, who subdivided the property, intended to keep Lot C with the cabin
on it, so his family could live there, as they did later.

[23]

Finally, I am unable to detect any error in the order made by the trial
judge requiring Mr. Morrison to clear the blocked access to Lot C.

[24]

Mr. Morrison argues that the road used to access Lot C along
the lakeshore is not within the easement shown on the Sansom Plan which is
derived in turn from the Lewall Plan. It followed he said that the obstructions
he placed on the road to block access do not fall within the easement. He
argues that the trial judge placed the onus on him to show that he was not
blocking the easement, but, in any event, the evidence shows that the roadway
strays from the registered easement. The explanation offered for how this came
about is that the shoreline likely eroded as a result of flooding and the
easement runs on the shore of the lake itself or in the water.

[25]

The trial judge found that Mr. Morrison had blocked access along
the road. That fact is beyond dispute. The relevant easement was modified in
2005 when time restrictions on the then existing easement were removed. There
is nothing to suggest any intention to change the location of the easement. The
easement is shown on Plan 5558 (the measurements on which the trial judge found
to be incorrect). As the trial judge noted, the easement is shown as a line
running from the railway crossing, though Lot B, to the lakeshore and then
turning on a right angle to Lot C. It is described as All that portion of
the transferors land which is 20 feet wide more or less as shown outlined in
green on Plan 5558.

[26]

The trial judge must be taken to have approached his conclusions on the
basis that he could not rely on the Lewall Plan to locate the easement. It will
be recalled that even Mr. Sansom did not defend his own plan. Quite apart
from the problem with its measurements, the easement as shown on the Lewall Plan
does not line up with the private crossing of the railway tracks.

[27]

The trial judge found that there was no reliable evidence that the
lakeshore had eroded alongside the easement since 2005. It appears that the
evidence would also support the conclusion that the shoreline was not eroded as
a result of earlier flooding, because steps were taken to build up the land to
protect it from erosion. Both Mr. Fuller and Mr. Schmidt gave
evidence to that effect. In my opinion there is no reliable basis in the
evidence to conclude that the easement now lies partially on the beach or in
the lake.

[28]

I accept the respondents submission that the intention of the owners
was to create an easement entering Lot B from the private crossing,
running to the lakeshore and turning along the lakeshore towards Lot C. In
the absence of any reliable evidence that the land area had shrunk by erosion,
the best evidence of the location of the easement is the road which has always
been used to reach Lot C. Within the hierarchy of evidence, the course
travelled by the owners from the time of the subdivision is evidence of fences
or possession reasonably related to the time of the original survey. Certainly,
measurements, in this case, are of little or no probative value.

[29]

In my view, the trial judge was entitled to find that there was a lawful
easement in place, to locate it as he did, and to conclude that Mr. Morrison
had blocked it.

[30]

I would not accede any of the grounds advanced on appeal. I would
dismiss the appeal.

[31]

NEWBURY J.A.:
I agree.

[32]

LOWRY J.A.:
I agree.

[33]

NEWBURY J.A.:
The appeal is dismissed.

The Honourable Mr. Justice Harris