COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Haynes,

2011 BCCA 39

Date: 20110203

Dockets:  CA037939;
CA038115

Docket:
CA037939

Between:

Regina

Respondent

And

Ian Michael Haynes

Appellant

- and -

Docket:  CA038115

Between:

Regina

Respondent

And

Lee Murray Bonwick

Appellant

Before:

The Honourable Madam Justice Huddart

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Hinkson

On appeal from: the
Provincial Court of British Columbia, December 21, 2009, (
R. v. Haynes and
Bonwick
, Duncan Registry No. 30304-2-C)

Counsel for the Appellant,

Ian Michael Haynes:

K. Bradley

Counsel for the Appellant,

Lee Murray Bonwick:

M. Allen

E. Bates-Smith

Counsel for the Respondent:

K. Madsen

Place and Date of Hearing:

Victoria, British Columbia

October 29, 2010

Place and Date of Judgment:

Vancouver, British
  Columbia

February 3, 2011

Written Reasons by:

The Honourable Mr. Justice Hall

Concurred in by:

The Honourable Madam Justice Huddart

The Honourable Mr. Justice Hinkson

Reasons for Judgment of the Honourable
Mr. Justice Hall:

[1]

The appellants, Haynes and Bonwick, were jointly charged with the
aggravated assault of the complainant, Roy, on December 19, 2007 at Shawnigan
Lake.  After a trial before Wood P.C.J., they were convicted of this offence on
December 21, 2009 and both were sentenced to three years imprisonment.  Haynes
had also been charged with assault of the complainant with a weapon, namely a
board.  Bonwick had been charged with the same type of offence involving a
knife.  Ultimately, convictions were not registered on these two charges.

[2]

The evidence of the complainant was that as he was working at his
Shawnigan Lake workshop in the early morning hours of December 19, 2007, the
two appellants accosted him and committed a violent assault that resulted in
serious injuries.  One injury occasioned the loss of one of his eyes.  The
complainant testified that he knew Haynes as a friend and although he was
acquainted with Bonwick, he did not know him as well as Haynes.  It appears
that the three men had been involved with illegal drugs and there had in the
past been drug transactions between them.

[3]

The complainant said he had helped Haynes out previously when he was in
jail by looking after goods of Haynes that were contained in a locker.  He said
he sold some of these with the consent of Haynes to raise money for him.  He testified
that as the two men approached him on the morning of the assault at the
workshop, Haynes stated that he owed him money on account of goods that were
allegedly stolen from the locker.

[4]

Although in his initial statement to police a couple of days after the
event the complainant had asserted that the wielder of the board, which caused
the eye injury, had been Haynes, by the time of trial, he asserted that Bonwick
had done this.  The complainant testified that a knife wielded by the appellant
Bonwick caused stab wounds to his legs in the course of the assault upon him by
both men.  Given the testimony at trial by the complainant, the trial judge
acquitted Haynes of the offence of assault using the board.  Bonwick had not
been charged with this offence.  The trial judge did not enter a conviction against
Bonwick on the count alleging assault with a knife on the basis of the rule
against multiple convictions arising out of the same delict.  Both appellants
appeal against their conviction for aggravated assault on the basis of errors
of analysis said to have been made by the trial judge as disclosed in his
reasons for judgment.

[5]

It was not clearly apparent from the evidence what the motive for the
attack on Roy was:  the judge adverted to this uncertainty in his reasons.  The
complainant always denied any conduct on his part that could have resulted in
either accused having any animus against him and neither of the appellants
testified.  The only suggestion of a motive arose from the evidence of Roy that
Haynes had expressed a complaint as he approached with Bonwick that Roy had
stolen from him.  However, according to the complainant, he had actively
assisted Haynes while the latter was in jail and had committed no wrong towards
him.  At the conclusion of the evidence, it was by no means clear what precisely
could have motivated Haynes and Bonwick to attack the complainant at his shop
on the morning of December 19, 2007.  Haynes and Bonwick, through counsel,
asserted that they had not in fact attacked the complainant.  It was submitted
by counsel for both appellants at trial that the complainant was falsely
asserting that they were the individuals who had caused the injuries to him.
There was never any issue in the case that the complainant had suffered serious
injury on the date in question; the only live issue was whether the appellants
were the perpetrators of the assault.  Their identification as such depended
entirely on the testimony of the complainant.

[6]

The complainant described an attack wherein initially Haynes was beating
him about the upper body with an iron bar while Bonwick was stabbing him in the
legs with a knife.  The complainant testified that eventually he fell to the
floor inside his shop where he continued to be assaulted by both men.  He
testified that during this phase of the assault, Bonwick picked up a piece of
lumber with which he struck the eye of the complainant.  The complainant says
that eventually he was able to get to his feet and by a ruse that an alarm was
going off, persuade the two appellants to cease the assault and leave the
premises.  Immediately thereafter he was with some difficulty able to drive his
vehicle to his nearby home where his common law partner resided.  This partner
testified to him arriving at the premises in an upset and injured condition in
the early morning hours of December 19, 2007.

[7]

One complicating feature of this case was that in his initial statement
to a police officer while he was in hospital soon after being injured, the
complainant attributed the loss of his eye to the actions of the appellant
Haynes.  However, just prior to trial in an interview with Crown counsel, he
changed his description of the incident to attribute responsibility for his eye
injury to the appellant Bonwick.  His explanation for initially seeking to cast
responsibility for the loss of his eye upon Haynes was that because of what was
said by Haynes as he approached him just prior to the assault, he attributed
greater responsibility for the assault to Haynes.  The complainant was
extensively cross-examined by counsel for both appellants but he did not waver
from what he had told Crown counsel, namely that he was the subject of a
violent assault by both men, but only Bonwick had wielded the piece of lumber
that caused the injury to his eye.  This was the most serious injury inflicted
on the complainant.

[8]

Immediately after the assault, as I noted, the complainant was able to return
to his residence and was then observed by his partner to be in great distress.
His partner, Ms. Richard, gave this evidence:

Q:        And did -- while you were dealing with Mr. Roy
did he indicate whether or not he knew his attackers?

A:         Yes.

Q.        Did he provide you with names?

A.         Yes.

Q:        Did you communicate, do you recall whether or
not he communicated names to the police?

A.         Yes, I did.

[9]

The following excerpts from the cross-examination of the complainant by
respective counsel for the appellants sets out shortly the suggestions made to
the complainant that he was lying about who had been the perpetrators of the
violent attack upon him:

Q:        Sir, I am going to suggest to
you that the reason that your story has changed over time as to who did what on
the night in question was because it was neither Mr. Haynes nor Mr. Bonwick
over there that night.

A:         Well, that is your
suggestion and you are allowed to voice your suggestion.  ...  You are wrong.

Q:        ...[A]nd I suggest to you
that you have been threatened or intimidated by the persons who are actually
responsible for this and as a result you have chose two easy scapegoats.

A:         ... [Y]our suggestions are
completely off-base.

Q:        I am suggesting to you that
you had chosen two easy scapegoats, two persons who owed you  -- money as a
means of --

A:         [You] are very wrong
.

Q:        On December 17, 2009 [
sic
],
you were attacked by a contact from

Vancouver, correct?

A:         No.

Q:        You blamed Ian for being --
for being attacked by those contacts?

A:         No.

Q:        Because Ian was the one that
put you in --

A:         Absolutely false.

Q:         -- in contact with those
contacts?

A:         False.

Q:        And you blamed Ian when the
police came to talk to you because it was

safer than blaming the people on Vancouver Island.

A:         I
am sorry maam, but that is false.

[10]

The complainant denied the suggestions made by counsel and asserted that
he had been assaulted by the appellants in the fashion he had testified to in
chief.  The judge stated that while the lifestyle of the complainant and his
differing versions of events mandated that his evidence be viewed with a
measure of caution, the fact is that, as a whole, I found Mr. Roy to be a
credible witness.  This was obviously a case in which the credibility of the
complainant was a central issue in the case.

[11]

The judge went on to find certain aspects of the evidence in the record
to be positive factors in his evaluation of the credibility of the complainant
and supportive of the Crown case.  On this appeal, the appellants argue that
the judge fell into error by suggesting that these portions of the evidence could
be so utilized.  The judge said this about the evidence quoted
supra
that
had been given by Richard:

[60]        Of particular
significance on the issue of his credibility is the fact that he identified the
two accused as his assailants within minutes of the actual assault.  He did so
as he lay on the floor of his residence, having collapsed there immediately
upon his arrival.  He was in shock due to the severity of his injuries and
though[t] he was going to die.  It seems unlikely in the extreme, given those
circumstances, that he would have had the presence of mind to identify two
innocent individuals for some purpose for which there is no realistic
foundation in the evidence.

[12]

Counsel submit firstly that Richard did not explicitly testify who it
was the complainant identified when he first arrived at his residence in an
injured and distressed state.  Secondly, it is submitted that even if the Crown
can surmount this alleged gap in the evidence, the judges use of the statement
for the purpose of confirming Mr. Roys evidence of the identity of his
assailant is out of accord with general evidentiary principles governing the
limited use of previous consistent statements.

[13]

Counsel for the Crown respondent takes issue with these submissions
concerning this evidence.  Counsel submits the judge was entitled in all the
circumstances to infer from the evidence of Richard that it was the appellants
who the complainant identified to her as his assailants, in the absence of any
suggestion in the cross-examination of the complainant that it was other individuals.
Counsel for the appellants in response to this argument submit that it does not
lie upon counsel for an accused person to repair any deficiencies in the case
for the Crown.

[14]

In the factual circumstances of this case, I consider the submission of counsel
for the Crown respondent to be a viable argument.  In my view, the trial judge
was entitled, on the state of the record before him, to draw the inference that
the persons named by Roy to the witness Richard were the two appellants.  Accordingly,
I would not give effect to the objection about there being a gap in the
evidence as argued for by the appellants.

[15]

The second objection taken to this evidence is one that raises perhaps a
more difficult issue.  This type of evidence may be adduced and relied upon in
certain limited circumstances as an exception to the rule against hearsay
evidence.  Such evidence can be admitted to rebut a suggestion of recent
fabrication of evidence or as a
res gestae
exception to the hearsay
rule.  The trial judge did not specifically advert in his reasons to the basis
upon which he found that the statement to Richard could be utilized to impact
positively on the credibility of the complainant Roy.  Given that the statement
was made at a time near to the event during which the complainant was in great
distress, it might arguably be admissible as a
res gestae
exception to
the hearsay rule:  see
Ratten v. The Queen
, [1972] A.C. 378 (P.C.).  The
respondent, however, does not seek to support the admissibility and use of the
evidence under this category.  Rather, it is submitted that the judge was
properly entitled to consider this statement as a positive factor in evaluating
the credibility of the complainant to rebut any suggestion of recent
invention.  Counsel referred to this language found in
R. v. Stirling
, 2008
SCC 10, [2008] 1 S.C.R. 272:

[11]      Courts and scholars in this country have used a
variety of language to describe the way prior consistent statements may impact
on a witnesss credibility where they refute suggestion of an improper
motive.  ...  This Court has found that the statements can be
admitted
in support of
 the witnesss credibility ([
R. v. Evans
,
[1993] 2 S.C.R. 629] at p. 643).  What is clear from all of these
sources is that credibility is necessarily impacted  in a positive way  where
admission of prior consistent statements removes a motive for
fabrication.  Although it would clearly be flawed reasoning to conclude
that removal of this motive leads to a conclusion that the witness is telling
the truth, it is permissible for this factor to be taken into account as part
of the larger assessment of credibility.

[12]      It is therefore not
entirely accurate to submit, as the appellant contends, that prior consistent
statements cannot be used to bolster or support the credibility of a
witness generally. This argument attempts to insulate the impact of the prior
consistent statements from the remainder of the credibility analysis and
suggests that general credibility can somehow be hived off from the specific
credibility question to which the statements relate.  Such a fine parsing
of the notion of credibility is impractical and artificial.  Further,
while it would clearly be an error to conclude that because someone has been
saying the same thing repeatedly their evidence is more likely to be correct,
there is no error in finding that because there is no evidence that an
individual has a motive to lie, their evidence is more likely to be honest.

[16]

It was clear from the course of cross-examination and argument advanced
at trial on behalf of the appellants that it was being suggested that the
complainant had fabricated his evidence about the involvement of the appellants
in the violent assault.  Thus it became material that at a time very close to
the incident and prior to the complainant giving to the police a narrative of
events, the complainant did identify the appellants as his assailants to Ms. Richard.
What he said on arrival at his residence serves to rebut a suggestion, explicit
or implicit, that he was telling tales to the police.  While some of the
language employed in para. 60 of the reasons of the learned trial judge
has about it a flavour of
res gestae
, it is also language consistent
with evidence being allowed to counter a suggestion of invention after
sufficient time for reflection.  This is a permitted use of this species of
evidence.  Accordingly, I would not give effect to the submissions advanced
under this head of argument by counsel for the appellants.

[17]

The second objection taken to the evidentiary analysis of the trial
judge arises from his treatment of the evidence of a defence witness, Francis.
This witness was called by trial counsel for the appellant, Bonwick.  The
witness testified that he knew Roy, Haynes and Bonwick as a result of drug
dealing connected to his addiction.  He also said Roy had done some mechanical
work for him.

[18]

The gist of the evidence of this witness was that he had been asked by some
people to try to get the complainant to shift the blame or to drop the
charges or something like that.  He fixed the time he was asked to do this as
being near the first trial date which would make it late summer or early fall
of 2008.  The exact basis of admissibility of the evidence of this witness might
have been problematic but the evidence was not objected to by the Crown.
Francis said he had numerous communications with Roy over some weeks.
According to Francis, Roy indicated he might be receptive to the blandishments
of Francis if the price were right.  According to Francis, Roy wanted payment
of some drug debts of the appellants aggregating $7,000 plus some additional
money.  Francis testified that those instructing him cavilled at the sums
requested by Roy and so ultimately no deal could be reached.

[19]

It may be that this evidence could have been viewed as admissible as
possibly showing animus or bias on the part of the complainant.  If the
evidence were accepted, it could obviously have a negative impact on the
testimony of Roy, since he would have shown himself willing to interfere with
the course of justice for money.  However, the usual rule is that evidence
going purely to the credibility of a witness should not be allowed on the basis
of the collateral issues rule.  It is however not necessary to further pursue
this interesting question because the evidence was allowed to be placed on the
record without objection.

[20]

In closing argument at trial, Crown counsel seemed to suggest that the
evidence of Francis about trying to persuade Roy to diminish the involvement of
Haynes in any assault could confirm the guilt of the appellants because he had
approached these negotiations in mind that Haynes and Bonwick were involved.
On the face of it, that seems a mildly dubious assertion, since it was also the
evidence of Francis that neither appellant was privy to or had any knowledge of
the alleged negotiations.

[21]

The trial judge, not surprisingly, appeared sceptical of the evidence of
Francis but he did utilize the calling of the evidence to support verdicts of
guilty against both appellants.  He said this at para. 46 of the reasons:

[46]      The
significant feature of Mr. Francis evidence is that, depending on how
much
of it I accept, it has the effect of
confirming the participation of both Mr. Haynes and Mr.
Bonwick
in the assault on Mr. Roy.  Why else would they, or some independent
third
party on their behalf, be prepared to
offer some consideration for a change in Mr. Roys testimony that,
according to Mr. Francis view of life, would ultimately benefit them
both.
In that regard, the reference by Mr. Francis to Mr. Roy
changing his testimony from
what was in his
statement is particularly interesting.  At the time these negotiations
were
allegedly taking place, a month or so before the trial began, both accused
would
have been aware of the contents of Mr. Roys
statement to Constable Lewis.  Any
knowledge
that a third party had of the content of that statement could only have come
from the one or both of the accused.

[22]

He noted at para. 47 of his reasons that the approach to Mr. Roy
was most likely made with the complicity of both accused.

[23]

At a later stage in his reasons, after concluding that Roy was a
credible witness, he went on to say this:

[62]      And
finally, there is the fact that one accused chose to lead evidence, the
essence of which was that his co-accused or someone on his or their
behalf had tried to
get Mr. Roy to
change his evidence, allegedly by shifting blame for the most serious
injury he suffered from one accused to the other.
 Whether that was the actual change suggested, the evidence of Mr. Francis
was quite inconsistent with the innocence of either accused.

[63]      There is never an obligation on any
accused to offer evidence in support of their innocence.  But when evidence is
called which, instead of innocence, leads to an inference of guilt, the law
neither requires nor permits the trier of fact to look the other way.  And when
two accused are charged, and the one gives evidence implicating both in the
crime charged, such evidence becomes probative of the guilt of both.

[24]

Evidence that an accused has sought to influence a witness or to create
a false alibi can lead to an inference of guilt.  The former situation was
commented on by Craig J.A. in the case of
R. v. Pappajohn
, [1979] 1
W.W.R. 562 (B.C.C.A.).  Craig J.A. concurred with Farris C.J.B.C. in
dismissing an appeal from conviction.  In his separate reasons, he addressed
the propriety of permitting counsel for the Crown to cross-examine the accused
on an alleged threat made by the accused to a witness.  He gave approval to the
allowance of the cross-examination and also approved the charge of the judge
who had told the jury that the evidence of a threat, if believed, could indicate
a consciousness of guilt and a desire to evade the pressure of facts tending to
establish it.  At 567, he made reference to
Wills on Circumstantial
Evidence
as supportive of this use of this species of evidence.

[25]

If it can be established in evidence that an accused has fabricated an
alibi, that may also be utilized by the trier of fact to infer a consciousness
of guilt:
R. v. Tessier
(1997), 113 C.C.C. (3d) 538 (B.C.C.A.).
However, there must be a sufficient evidentiary foundation, aside from mere disbelief
of evidence of an accused, to establish the fabrication.  Ryan J.A., in
her concurring judgment in
Tessier
, articulated why mere disbelief in an
alibi testified to by an accused would generally not found an inference of
consciousness of guilt.

[68]      It seems to me that the reason we
look for independent evidence that the accused fabricated his story is
two-fold. In the first place as my colleague Rowles J.A. has pointed out
the reasoning is circular if there is no independent proof:  The weight of the
Crowns evidence admits of no doubt therefore the accused is not telling the
truth.  The accused is not telling the truth therefore the Crowns case admits
of no doubt.  In the second place, because the evidence that the accused has fabricated
a story can be used as part of the Crowns case against him, care must be taken
in finding that the alibi was concocted.  There must be a solid evidentiary
base of fabrication.  It is not unreasonable to demand that this evidence be
found independently of the other evidence of the proof of the crime.

[69]      If
evidence of fabrication need be found only in the evidence which proves the
offence then in every case where the accused testifies (alibi or not) there
would be no reason not to permit a jury to use their finding that the accused
has been untruthful as part of the Crowns case against him.  That does not
accord with any articulation of the law that I know of.

[26]

In the case at bar, the judge appears to have
utilized the calling of the evidence of Francis as supportive of the Crown case
generally and, although not clearly articulated in his reasons, apparently as
some support for the credibility of Roy.  Paragraphs 62 and 63 from his reasons
quoted
supra
immediately follow that portion of his reasons where he
finds Roy to be credible.

[27]

Obviously Francis was a less than stellar
witness.  The trial judge was entitled to find that he could not put any
significant weight on his evidence.  It is however difficult to see how either
the calling of or the contents of the evidence of Francis could be used as
supportive of the guilt of the appellants or of the credibility of Roy.  The
evidence in the record in this case does not support what I would term a
linkage between the calling of the evidence of Francis and the appellants.
Absent such linkage, it does not seem to me that this evidence adduced on
behalf of one of the appellants could be utilized either negatively (an
inference of consciousness of guilt) or positively (supportive of the
credibility of Roy).

[28]

In my respectful opinion, there is force in the
submissions of counsel for the appellants that the learned trial judge erred in
his treatment of the evidence of Francis as supportive of the Crown case and probative
of the charges the appellants faced.  The judge was of course perfectly
entitled to reject the evidence of Francis but that should have been the end of
the matter.  Such rejected evidence would then not have been capable of having
any adverse effect on the evidence of Roy.  But the calling of and the content
of the evidence in the circumstances of this case was not probative of anything
relating to the offences faced by the appellants, including the credibility of
the main witness, Roy.  That was so, as I noted, because the record did not
provide any connection between the adducing of this evidence and either accused
person.

[29]

This case substantially depended on the
testimony of Roy.  If the trier of fact accepted the evidence of Roy as
credible, the finding of an assault by the appellants was clearly sustainable.
Had the judge concluded, without more elaboration, that he accepted the
evidence of Roy, these convictions were supportable.  However, the errors in
analysis that I have adverted to above places the sustainability of the
convictions against these individuals in doubt.  I consider that the only
appropriate disposition of this appeal is to allow the appeals from conviction
and order a new trial in the case of both appellants.

The Honourable Mr.
Justice Hall

I agree:

The Honourable Madam Justice
Huddart

I agree:

The Honourable Mr. Justice
Hinkson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Cheng v. Yu,

2011 BCCA 62

Date: 20110204

Docket: CA038422

Between:

Yuan Chu Cheng

Respondent

(Plaintiff)

And

Jun Ying Yu, Xiao
Ping Yu and Rui Pang

Appellants

(Defendants)

And

Gui
Xiong Pang and his estate

Defendants

Before:

The Honourable Madam Justice Newbury

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice Garson

On appeal from: Supreme
Court of British Columbia, August 26, 2010
(
Cheng v. Yu
, Vancouver Registry S103891)

Oral Reasons for Judgment

Counsel for the Appellant:

K.W. Wince

Counsel for the Respondent:

H. Guo

Place and Date of Hearing:

Vancouver, British
  Columbia

February 4, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

February 4, 2011

[1]

KIRKPATRICK J.A.
: The appellants, Jun Ying Yu, Xiao Ping Yu, and
Rui Pang are, respectively, the widow, sister-in-law, and daughter of the
deceased, Gui Xiong Pang, who is alleged to have executed a letter of guarantee
in the Peoples Republic of China on 12 March 2007.

[2]

The letter of guarantee, as translated, reads:

I would like to agree to provide a guarantee
for
Guangdong Zhonggu Sugar Industry Group Co., Ltd
to borrow the sum of
Six Hundred Thousand Yuan
Only (
600,000.00
yuan only) from Mr.
Cheng
Yuanchu
. The manner of guarantee:
guarantee of joint liability
. If I
fail to repay it on time, I agree to pay off the said sum based on all property
of my family. All members of my family have no any dispute for the said action
of guarantee. This is to certify that Letter of Guarantee hereby.

Guaranteed by Pang Guixiong (signature)

March 12, 2007

[3]

The appellants appeal with leave from the 26 August 2010 order of the
Supreme Court that dismissed the appellants application to dismiss the
respondents claim on the guarantee, pursuant to the then Rule 18A of the
Rules
of Court
.

[4]

The chambers judge concluded that due to conflicts in the evidence,
inadequate submissions concerning applicable law and jurisdiction, and the fact
that the case was in its infancy in this jurisdiction, it would be unjust to
give judgment in the case, citing the well-known factors in
Canadian
Imperial Bank of Commerce v. Charbonnages de France International S.A.
,
[1994] 10 W.W.R. 232. The chambers judge dismissed the application and directed
the parties to attend a case management conference.

[5]

In their statement of defence, the appellants pleaded that the Supreme
Court should decline jurisdiction on the basis that the guarantee was made in
the Peoples Republic of China and at the material times the plaintiff and the
defendant Gui Xiong Pang were residents of China.

[6]

At the hearing of the appeal, counsel for the respondent advised that a
court in the Peoples Republic of China heard a trial concerning the validity
of the guarantee in question in this case and reserved judgment on 5 January
2011. That advice is apparently confirmed by the summons dated 10 November 2010
issued by the Intermediate Peoples Court of Zhanjiang City Guandong Province
found in the respondents appeal book. Counsel for the respondent advised that
if the judgment is in her clients favour, she will seek to enforce the
judgment in Canada and execute against the appellants property situate in
Canada.

[7]

In these circumstances, it seems to me that because the Chinese court
has evidently assumed jurisdiction and is poised to deliver judgment on the
very subject matter of the action in British Columbia, comity demands that we
decline jurisdiction.

[8]

Furthermore, it is plain from the guarantee itself that it could not be
enforced in Canada under the Canadian law of guarantee. The guarantee, made in
China, is sought to be enforced against persons who did not sign the guarantee
and in the absence of evidence that they agreed to be bound by the guarantee. There
is no reasonable prospect of success in the respondents prosecution of the
guarantee against the appellants in Canada.

[9]

I would allow the appeal and dismiss the respondents action with costs
to the appellants both of the Rule 18A application and of the appeal.

[10]

NEWBURY J.A.
: I agree.

[11]

GARSON J.A.
: I agree.

[12]

NEWBURY J.A.
: The appeal is allowed. The action is dismissed with
costs.

The Honourable Madam Justice Kirkpatrick


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Keremelevski v. V.W.R. Capital Corp.,

2011 BCCA 59

Date: 20110204

Docket:
CA038121; CA038152

Docket: CA038121

Between:

V.W.R. Capital
Corp.
Canadian Western Trust Company

Respondents

(Petitioners)

And

Bozidar Vujicic
and Svetlana Vujicic
Canadian Western Trust Company
Ivanco Keremelevski

Appellants

(Respondents)

Docket:
CA038152

Between:

V.W.R.
Capital Corp.
Canadian Western Trust Company

Appellants
(Respondents)

And

Bozidar Vujicic
and Svetlana Vujicic
Ivanco Keremelevski

Respondents
(Petitioners)

Corrected
judgment: The spelling of the appellant's name, Ivan Keremelevski, was
corrected on the front cover of the judgment on June 3, 2011.

Before:

The Honourable Madam Justice Rowles

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Hinkson

On appeal from: British
Columbia Court of Appeal, August 5, 2010
(
Keremelevski v. V.W.R. Capital Corporation
, Court of Appeal Nos. CA038121
& CA038152)

Oral Reasons for Judgment

Appellants (CA038121) B. Vujicic and I. Keremelevski
  appearing In Person:

Counsel for the Respondent:

K. Liong

Place and Date of Hearing:

Vancouver, British
  Columbia

February 4, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

February 4, 2011

[1]

LOWRY J.A.
: Applications are made in two actions to set aside the
order made on 5 August 2010 by Mr. Justice Low, who dismissed applications for
leave to appeal, indigent status and the stay of proceedings in the trial
court.

[2]

The two actions arise out of foreclosure proceedings involving
commercial property, which have been completed. An order for the sale of the
property was approved and the purchaser, who is not a party to the actions, is
in possession. The appellants seek to appeal the order that approved the sale.

[3]

In dismissing the applications, Mr. Justice Low said:

[6]        The sale of the
property was completed on 28 May 2010. Title has passed to the purchaser who is
not a party to this appeal and against whom neither appellant makes any
allegations. The purchaser has possession and is lawfully collecting rents.
These facts are fatal to all applications made by the two appellants.

[4]

That led him to conclude:

[11]      In any event, there is
no remedy this Court could give either appellant in the context of appeals of
the two orders. The purchaser has title and is in possession. The transaction
the purchaser entered into for value and approved by the court cannot be rolled
back. The sale cannot be undone.

[5]

I am unable to see any error in Mr. Justice Low's disposition of the applications
made before him. He was, in my view, bound to dismiss them as he did.

[6]

I would dismiss the applications to vary the order of Mr. Justice Low.

[7]

ROWLES J.A.
: I agree.

[8]

HINKSON J.A.
: I agree.

The Honourable Mr. Justice Lowry


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Frank
,

2012 BCCA 2

Date: 20120103

Docket: CA038608

Between:

Regina

Respondent

And

Martin Gene Frank

Appellant

Before:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Bennett

On appeal from the
Supreme Court of British Columbia, April 10, 2010,
(
R. v. Frank
, Williams Lake No. 28121-4)
(Oral Ruling on Defence of Self-Defence pronounced April 9, 2010)

Counsel for the Appellant:

Brock Martland

Matthew Scott

Counsel for the Respondent:

Michael J. Brundrett

Place and Date of Hearing:

Vancouver, British
  Columbia

November 18, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 3, 2012

Written Reasons of the Court

Reasons for Judgment of the Court:

[1]

Mr. Frank appeals his convictions before a judge and jury on one count
of committing mischief in relation to property (
Criminal Code
, R.S.C.
1985, c. C-46, s. 430(4)), one count of possessing a firearm for a
purpose dangerous to the public peace (
Criminal Code
, s. 88), and
one count of using a firearm while committing an indictable offence (
Criminal
Code
, s. 85).  The appellant contends that the trial judge erred in
failing to leave the defence of self-defence with the jury.

Factual Background

[2]

The charges arose out of events which occurred on April 14, 2007.
During the afternoon, the accused was at a party at the residence of a young
man by the name of Dylan Dick, on the Anaham Reserve near Alexis Creek.  A
neighbour, Nathan Sam (who we will refer to as Nathan in order to distinguish
him from his father, Theodore Sam, who we will refer to as Mr. Sam) got into
an altercation with Mr. Dick over a beer.  It appears that during the course of
the ensuing scuffle, Mr. Dick used a stick to hit Nathan.  Nathan fled, having
taken the worst of the battle.  As he ran back to his residence, which was
across the street from Mr. Dicks residence and about 100 metres away, someone
 not Mr. Frank  grabbed a gun and shot at him, but missed.

[3]

A short time later, Nathan returned, accompanied by Mr. Sam and a third
man.  The three caused damage to the Dick residence and smashed up vehicles
parked outside.  At least one of the three had a firearm, and there was
evidence to the effect that he used it to cause damage.

[4]

The people at the Dick residence contacted the police, who eventually
attended and arrested Nathan and Mr. Sam.  Nathan was held by the police, but
Mr. Sam was released on conditions, and was returned to his residence at 9:45
p.m.

[5]

Shortly after Mr. Sams return, Mr. Frank, Mr. Dick and a 13-year-old
girl were standing on the porch of the Dick residence.  Mr. Sam armed himself
with a rifle and took a shot at them.  They ran back into the house in fear.
Once inside, the girl collapsed on the floor, and the others who were present
realized that she had been shot and seriously injured.

[6]

At that point, the scene inside the Dick residence was one of confusion
and panic.  Someone called 9-1-1, but it was quickly decided that waiting for
an ambulance might not be the best plan in view of the girls injury.  Mr. Dick
decided to drive her to the first aid post in Alexis Creek.  There was some
difficulty finding the keys to the only serviceable truck on the property, but
eventually, Mr. Dick succeeded in getting into the vehicle and taking the girl
to the first aid post.  Mr. Frank remained in the Dick residence.

[7]

At some point  the evidence as to whether it was immediately or some
hours later is unclear  Mr. Frank took possession of a firearm.  Mr. Frank did
not testify at trial, but his statement to the police was in evidence.
According to that statement, Mr. Frank obtained a 12-gauge shotgun from Mr.
Dick.  Mr. Frank said that he fired two shots into the air while standing near
the fence line of the Dick property.  He described the shots as being [j]ust
to let em know that we had a gun, too  just so he doesnt try and come up to
us.  He told police that he was apprehensive of another attack, and that the
shots were, in effect, warning shots to deter further aggression by Mr. Sam.

[8]

Mr. Frank agreed with the police that he had told others that he had
gone to Mr. Sams residence and shot at the door.  He said, however, that his
statements were untrue (he used a somewhat more vulgar expression), and
intimated that he had merely been bragging.

[9]

As the police continued to question Mr. Frank, he admitted that he had
taken a single shot at the Sam residence, hitting the back corner of it.  He
stated that he had left the Dick residence, and gone into an open field between
Mr. Sams house and the neighbouring house.  From there (a distance of about 95
metres from the Dick residence) he shot towards the rear corner of the Sam
residence.

[10]

The defence called Mr. Franks brother for the purpose of showing that
Mr. Frank had a poor memory and was easily confused.  His mother also testified
to having consumed alcohol during her pregnancy with him.  It was the defence
position that the latter part of Mr. Franks statement was unreliable, and Mr.
Franks counsel invited the jury to accept only the part of Mr. Franks
statement in which he said he had fired two warning shots into the air.

[11]

There was extensive damage to the Sam residence from gunshots.  The
Crown theory was that Mr. Frank had shot at the north side of the residence
(the area furthest from the Dick residence) several times.

[12]

The defence asked the trial judge to leave the defence of self-defence
to the jury.  While it suggested several provisions of the
Criminal Code
that might be left with the jury, it is agreed on this appeal that the relevant
provision is s. 37:

37. (1) Every one is justified in
using force to defend himself or anyone under his protection from assault, if
he uses no more force than is necessary to prevent the assault or the
repetition of it.

[13]

The trial judge ruled that there was no air of reality to such a
defence.  In doing so, he referred to the decisions of the Supreme Court of
Canada in
R. v. Cinous
, [2002] 2 S.C.R. 3, and
R. v. Osolin
,
[1993] 4 S.C.R. 595.  He cited, in particular, paragraphs 53 and 54 of
Cinous
:

[53]      In applying the air of reality test, a trial judge
considers the totality of the evidence, and assumes the evidence relied upon by
the accused to be true. See
Osolin
,
supra
;
Park
[
R. v.
Park
, [1995] 2 S.C.R. 836
]
.  The
evidential foundation can be indicated by evidence emanating from the
examination in chief or cross-examination of the accused, of defence witnesses,
or of Crown witnesses. It can also rest upon the factual circumstances of the
case or from any other evidential source on the record. There is no requirement
that the evidence be adduced by the accused. See
Osolin
,
supra
;
Park
,
supra
;
Davis
[
R. v. Davis
, [1999] 3 S.C.R. 759].

[54]      The threshold
determination by the trial judge is not aimed at deciding the substantive
merits of the defence. That question is reserved for the jury. See
Finta
[
R.
v. Finta
, [1994] 1 S.C.R. 701];
R. v. Ewanchuk
, [1999] 1 S.C.R. 330.
The trial judge does not make determinations about the credibility of
witnesses, weigh the evidence, make findings of fact, or draw determinate
factual inferences. See
R. v. Bulmer
, [1987] 1 S.C.R. 782;
Park
,
supra
.  Nor is the air of reality test intended to assess whether
the defence is likely, unlikely, somewhat likely, or very likely to succeed at
the end of the day.  The question for the trial judge is whether the
evidence discloses a real issue to be decided by the jury, and not how the jury
should ultimately decide the issue.

[14]

The judge differentiated between self-defence
and retaliation where a person is not in danger:

[24]      Self-defence
is a legal justification explaining and excusing the results of a persons
actions.  It is not to be used to cloak a retaliatory strike in circumstances
where the accuseds self-preservation is not in peril.  In other words, acts of
retaliation do not amount to self-defence.  In making this observation, I refer
to the Supreme Court of Canada decision in
Brisson v. The Queen
, [1982]
2 S.C.R. 227.

[15]

He then analyzed the case as follows:

[29]      While there is evidence to support the position
that subjectively Mr. Frank believed he needed to arm himself and fire the
weapon as a means of defending himself and the others in the Dick residence
against another possible attack,
I find the evidence fails to establish that
he held this belief on reasonable grounds
.

[30]      In reaching this decision, it must be kept in mind
the defence of self-defence would only arise in the present circumstances as a
defence to the mischief charge if the jury rejected Mr. Franks denial that he
shot at the Sam residence, and found that he actually did shoot at and strike
the house.  The evidence on that point would have Mr. Frank leaving the
security of the Dick house after the passage of a period of time since the
single shot was fired at the [Dick] residence, going out into the dark of
night, in an isolated area, not knowing where Mr. Sam was, and proceed 95
metres or so across the street to an open area and shoot at Mr. Sams house
multiple times.

[31]      Asking myself whether there is some evidence
reasonably capable of supporting an acquittal on the mischief charge, I find
myself answering in the negative.
On all of the evidence, it would appear
the Crowns submission that Mr. Frank was not objectively as scared as he
claims he was and was not as concerned about his own protection or about the
others in the house whom he abandoned is well-founded.

[32]      I agree with the Crowns submission that Mr.
Franks conduct of arming himself with a shotgun, going over to Mr. Sams
property, raising the firearm towards Mr. Sams house, and discharging the
weapon a number of times, all while not knowing where Mr. Sam was or if he or
others were in or around the residence, can be objectively characterized as a
calculated retaliation, well after the need for self-defence existed, and
therefore eliminates his recourse to ... s. 37 of the
Code
.  I again
make reference to the
Brisson
decision of the Supreme Court of Canada.

[Emphasis added.]

[16]

There are errors in the judges reasoning.  The underlined statements
indicate that the trial judge engaged in weighing the evidence.  It was not his
role to do so in determining whether there was an air of reality to the defence
of self-defence.  He also erred in referring to the evidence as being that Mr.
Frank shot at Mr. Sams house multiple times and a number of times.  The
judge was required, for the purpose of his ruling, to take the evidence at its
most favourable to the accused.  There was evidence, in Mr. Franks statement,
that he had taken only a single shot at the house.  The judges statement that
the accused shot at the house well after the need for self-defence existed
also represents a finding of fact that trenched on the jurys role.

[17]

We must ask ourselves whether these errors serve to vitiate the judges
determination that there was no air of reality to the defence of self-defence.  In
our view they do not.

[18]

The Crown took the position that Mr. Frank could only be convicted of
mischief and use of a firearm in the commission of an indictable offence if the
jury found that Mr. Frank went over to the Sam house and shot at it.  The judge
appears to have accepted that Mr. Frank could not be convicted if he had only
taken warning shots into the air from the Dick property.

[19]

The only evidence capable of establishing that Mr. Frank shot at the Sam
residence was evidence that would have required him to take deliberate steps to
leave a place of comparative safety and proceed for some considerable distance
in the darkness towards a place of greater danger.  There was no explanation as
to how such steps would have assisted in preventing a further assault; rather,
the only rational explanation available was the one postulated by the judge:
this could only be characterized as calculated retaliation.

[20]

While they could, perhaps, have been more explicit, the judges instructions
to the jury made it clear that Mr. Frank could not be convicted of mischief in
relation to property unless the jury was satisfied beyond a reasonable doubt
that Mr. Frank had shot at and caused damage to the Sam residence:

Now, there are several ways in
which a person may interfere with another persons property, and they are
listed in s. 430 of the
Code
, and I set that out for you earlier in my
reasons [sic].  But the only way that the Crown is alleging  because there are
a number of ways you can commit mischief  the only way that the Crown is
alleging is that by causing damage, there was damage to the door area on the
north side of the house.

And as I say ..., the Crown says
Mr. Frank caused damage to Mr. Sams house when he shot at it with a firearm
and put holes or marks in the house on the night of April 14th, 2007, and more
particularly, on that north side.

If you are not satisfied beyond
a reasonable doubt that Mr. Frank interfered with Mr. Sams property, that is,
caused damage to Mr. Sams house by discharging a firearm at it, you must find
Mr. Frank not guilty.  Your deliberations on Count number 1 on the indictment
would then be over.  If, however, you are satisfied beyond a reasonable doubt
that Mr. Frank damaged Mr. Sams property there then you must go on to address
the next question: Was Mr. Franks conduct wilful? ...

Crown counsel may prove that Mr.
Franks conduct was wilful in either of two ways.  Mr. Franks conduct was
wilful if he meant to damage Mr. Sams house in the way that I have just
described.  Mr. Franks conduct will also be wilful if he meant to do something
that he knew would probably damage the property in the way that I have
described to you but went ahead and did it anyway; being reckless as to whether
the damage to the property happened as a result.

If you are satisfied beyond a
reasonable doubt that Mr. Frank is guilty of mischief in relation to property,
the offence charged in Count 1 of the indictment, you go on to answer the next
question:  Did Mr. Frank use a firearm?  As I have said to you, a firearm is a
gun, a weapon with a barrel that can discharge a shot, bullet, or other
projectile, and can cause death or serious bodily harm to another person.

In
the present case, the Crown counsel alleges Mr. Frank discharged a firearm
towards Mr. Sams residence, thereby causing damage to that property.

[21]

These instructions made it clear that Mr. Frank could not be convicted of
either mischief or using a firearm while committing an indictable offence unless
the jury was satisfied beyond a reasonable doubt that he had crossed the
street, walked 95 metres toward the Sam house, and shot at and hit it.

[22]

Mr. Frank could not be convicted for taking warning shots into the
air, or, indeed, for taking any shots from the Dick property.  He could only be
convicted for taking the shots that hit the north side of the Sam house, which
could not have been hit from the Dick property.  There is no air of reality in
the suggestion that such shots could have been taken in self-defence.

[23]

The judges instructions on the count of possession of a weapon for a
purpose dangerous to the public peace (Count 3) were less adequate.  The judge
set out the Crowns position as follows:

With respect to count number 2
on the indictment, the Crown position is that Mr. Frank possessed the weapon
for the purpose of shooting at the Sam residence and that such a purpose was
dangerous, not only to anyone in the Sam residence but also to anyone else
around the property.  [Emphasis added.]

[24]

The judges instructions, however, were not in accordance with this
position.  Instead, he said:

Crown counsel does not have to
prove that Mr. Franks purpose in taking possession of the weapon was to do a
specific act or to use it in a particular way.  There is no requirement that
Mr. Frank actually use the weapon, but if he does so, that fact, the fact it
was used, how it was used, and the circumstances in which Mr. Frank used it,
may help you decide Mr. Franks purpose in having the weapon in the first
place.

To
decide what Mr. Franks purpose was, you should consider all of the
circumstances of his possession of the weapon.  You should, once again, take
into account what he did or did not do; what he did or did not [do] to or with
it; and what he said or did not say.

[25]

This instruction left it open to the jury to convict Mr. Frank on Count
3 even if it found that he only fired the gun in the air from his own property.

[26]

On Count 3, the judge should either have instructed the jury in
accordance with the position taken by the Crown or left the defence of
self-defence to the jury.  If Mr. Franks purpose in possessing the weapon was
only to fire warning shots, it could not be said that the defence of
self-defence lacked an air of reality.

[27]

Given that we find the judges instructions with respect to Count 3
erroneous, we must consider whether s. 686(1)(b)(iii) of the
Criminal
Code
applies in respect of that count:

686. (1) On the hearing of an appeal against a conviction or
against a verdict that the appellant is unfit to stand trial or not criminally
responsible on account of mental disorder, the court of appeal

...

(b) may dismiss the appeal where

...

(iii) notwithstanding that the
court is of the opinion that on any ground mentioned in subparagraph (a)(ii)
the appeal might be decided in favour of the appellant, it is of the opinion
that no substantial wrong or miscarriage of justice has occurred, ...

[28]

The jury was instructed that in order to convict Mr. Frank on Count 1 (mischief),
it had to be satisfied beyond a reasonable doubt that he shot at and damaged
Mr. Sams house.  As the jury convicted Mr. Frank of that offence, it is
apparent that it was left in no doubt that Mr. Frank took shots at the Sam
residence.  The jury must have found that the purpose for which Mr. Frank possessed
the weapon was to shoot at the Sam residence.  Given this finding, we are
satisfied that there was no substantial wrong or miscarriage of justice with
respect to the Count 3, and that the verdict would necessarily have been the
same if proper instructions on that count had been given.  We would apply the
curative provision in respect of that count.

[29]

In the circumstances, the appeal is dismissed.

The Honourable Mr. Justice Lowry

The Honourable
Mr. Justice Groberman

The Honourable
Madam Justice Bennett


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Schiel,

2012 BCCA 1

Date: 20120104

Docket: CA038797

Between:

Regina

Respondent

And

Endeavour
Developments Ltd.,
Golden Horizon Resort Ltd.,

Adolf Schiel and
Sandy Schiel

Applicants

Before:

The Honourable Madam Justice Bennett

(In Chambers)

On appeal from:
Provincial Court of British Columbia,
June 4, 2010 & February 15, 2011,
(
R. v. Schiel et al
, Vancouver Docket No. 131180)

Adolf Schiel and Sandy Schiel:

In Person

Counsel for the Respondent:

Raymond D. Leong

Place and Date of Hearing:

Vancouver, British
  Columbia

November 25, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 4, 2012

Reasons for Judgment of the
Honourable

Madam Justice Bennett:

[1]

Adolf Schiel and Sandy Schiel were convicted of eight offences contrary
to s. 327(1)(a) and (d) of the
Excise Tax Act
, R.S.C. 1985, c.
E-15.  The charges, simply put, involved allegations of false statements in
relation to Goods and Services Tax (GST) refunds.  They were convicted along
with two of their companies of obtaining over $1.9 million dollars in refunds
from the government to which they had no entitlement.

[2]

Mr. Schiel is Ms. Schiels father.  He was a property developer and she
worked in the family businesses.

[3]

This is the second time this case has come to appeal.  The Schiels were
acquitted at their first trial, but that conviction was overturned on appeal.
They were convicted at the second trial on all eight counts on the Information,
three of which the trial judge stayed pursuant to the principle in
R. v.
Kienapple
, [1975] 1 S.C.R. 729.  The Schiels have been self-represented
through the entire process.

[4]

The Schiels have brought an application pursuant to s. 684 of the
Criminal
Code
for the appointment of counsel for this appeal.  There is no
application on behalf of the companies.  They have filed appeal books and
transcripts; thus, the appointment request concerns the preparation of a factum
and oral argument.

[5]

Section 684(1) of the
Code
reads:

684. (1) A court of appeal or a
judge of that court may, at any time, assign counsel to act on behalf of an
accused who is a party to an appeal or to proceedings preliminary or incidental
to an appeal where, in the opinion of the court or judge, it appears desirable
in the interests of justice that the accused should have legal assistance and
where it appears that the accused has not sufficient means to obtain that
assistance.

[6]

The factors which must be considered are:

i)        the applicants financial
ability to retain counsel on their own behalf;

ii)        whether legal aid would
be granted to the applicants;

iii)       the
level of education of the applicants and their competency to advance their
appeals;

iv)       the complexity of the
case;

v)       whether
the case is one where the assistance of counsel is necessary in order to
marshal the evidence;

vi)       whether
the case is one which may result in a term of imprisonment; and

vii)      whether
there is an arguable ground of appeal.

(See
R. v. Baig
(1990), 58 C.C.C. (3d) 156 (B.C.C.A.
Chambers) at 158;
R. v. Bernardo
(1997), 105 O.A.C. 244, 121 C.C.C. (3d)
123 at para. 22.)

i)        Financial ability to retain counsel

[7]

The Schiels were given two opportunities to file financial information.
They have provided considerable information setting out their personal circumstances
and it appears that they have few assets and little income.

[8]

The difficulty with this application is that the Schiels have filed no
affidavit evidence with supporting documents showing the disbursement of the
substantial amount of money they received in GST tax refunds.  When I asked
during submissions where the money went, the response was vague.

[9]

The onus is on the applicants to establish that they do not have
sufficient means to obtain that assistance.  In my respective view, neither applicant
has met this onus.

(ii)      Legal aid

[10]

Funding from the Legal Services Society has been refused for both applicants
because they did not meet the financial eligibility requirements.

iii)      The level of education of the applicants and their competency
to advance their appeals

[11]

I need to address the circumstances of each applicant individually.  Mr.
Schiel is 75 years old.  He lives in Surrey, B.C. with his wife of 50 years.
Mr. Schiel has serious health issues, including heart disease, Type 2 diabetes,
hypertension and organic brain damage from a heart attack, which has resulted
in a decline in cognitive function.

[12]

Ms. Schiel is 43 years old.  She entered the family business after three
years of university education,  before she finished her degree.

[13]

Ms. Schiel and her brother, Roy Schiel, have made the submissions during
the case management procedures and this application for both applicants.

[14]

Adolf Schiel and Sandy Schiel do not appear to have conflicting
defences.

[15]

Mr. Schiel, on his own, is not capable of mounting his own defence.  Ms.
Schiel has the ability to defend herself, although she has always done so with
the assistance of Roy Schiel.

iv)       The complexity of the case

[16]

The Crown contended that the case was not complex.  I do not agree.
There are approximately 10,000 pages of exhibits.  The trial took 29 days.  The
issues at trial involved assessments of credibility as well as a detailed
analysis of the tax documents filed in the proceedings.

v)       Assistance of
counsel necessary to marshal the evidence

[17]

There is a large volume of evidence.  However, no one is more familiar
with the evidence than the applicants, who generated many of the documents.
They have heard the evidence twice.  While the assistance of counsel would be
helpful, it is not necessary to marshal the evidence.

vi)       Imprisonment

[18]

Sandy Schiel was sentenced to five years in prison and a fine of
$1,959,910.  Adolf Schiel was sentenced to four years in prison and a fine of
$1,959,910.

vii)      An arguable case

[19]

The Crown argued strongly that the case has no merit.  The Schiels were granted
bail pending appeal on March 25, 2011.  One judge of this Court has concluded
that their appeal is not frivolous.  Some of the points raised before me have
little or no merit.  Other grounds, while not strong, are nonetheless arguable.
There is merit to the Schiels sentence appeal.

[20]

Section 684 has two fundamental requirements for the appointment of
appellate counsel: it must be desirable in the interests of justice that the applicant
have legal assistance
and
the applicant must not have sufficient means
to obtain that assistance.

[21]

I have found that the applicants have not satisfied the second criterion,
and therefore I must dismiss the application.

The
Honourable Madam Justice Bennett