COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. P.E.L.
,

2017 BCCA 47

Date: 20170202

Docket: CA43206

Between:

Regina

Respondent

And

P.E.L.

Appellant

Restriction on Publication: A publication
ban has been mandatorily imposed under s. 486.4(2) of the
Criminal Code
restricting the publication, broadcasting or transmission in any way of
evidence that could identify complainants or witnesses, referred to in this
judgment by the initials L.J., C.J., and G.T.
This publication ban applies indefinitely unless
otherwise ordered.

Restriction on Publication: A publication ban has been
mandatorily imposed under s. 517 of the
Criminal Code
restricting
the publication, broadcasting or transmission in any way of the evidence taken,
the information given, or the representations made and the reasons, if any,
given or to be given by the justice until the accused is discharged or, if
ordered to stand trial, the trial has ended.

Restriction on Publication
: A publication ban has been automatically imposed
under s. 110(1) of the
Youth Criminal Justice Act
restricting the
publication of information that would identify a young person referred to in
this judgment by initials. This publication ban applies indefinitely, unless
the information is published by that young person under s. 110(3) or the
court has ordered publication.

Before:

The Honourable Madam Justice Newbury

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Savage

On appeal from:  An
order of the Provincial Court of British Columbia, dated March 5, 2015 (
R.
v. P.E.L. and S.C.L.
, 2015 BCPC 42,
Lillooet Registry File 8116-C3).

Counsel for the Appellant:

B.R. Anderson

Counsel for the Respondent:

M.T. Ainslie, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

January 6, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

February 2, 2017

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Savage

Summary:

This case involved
allegations of historical sexual assaults. Appellant and one of his brothers
were convicted following re-trial of sexually assaulting (when they were
teenagers) several younger children in the 1980s. On appeal from two
convictions entered against appellant, it was argued that trial judge erred by
failing to reconcile important discrepancies or inconsistencies in the
evidence provided by complainant L.J. and various other witnesses. Appellant
also argued that judge failed to properly apply the law regarding evidence
given by adults concerning childhood events and that the charges violated the
single transaction rule by collapsing separate transactions into a single
count.

Held: appeal dismissed. The
evidence of the various other witnesses did not contradict L.J.s testimony
or create material inconsistencies therewith. The trial judge considered the
evidence and made findings of credibility and reliability that were open to him
to make. Those findings are entitled to deference. The judge did not err in his
application of the law regarding evidence given by adults concerning childhood
events. The single transaction rule was not violated, since a single
transaction may validly encompass a number of occurrences where, as here, the
alleged conduct spans a period of time and involves multiple instances of
similar conduct.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

In January 1983, five children of the J. family were placed in the
foster home of Mr. and Mrs. L. The J. family included two young girls

C.J., then age 8, and L.J.,
then age 5. Mr. and Mrs. L. had three boys

P.E.L., then age 14; and his brothers D.B.L., age 12, and S.C.L., age 10.
Both families were from the Stlatlimx Band and the L. family lived on the
Titqet Reserve near Lillooet. The J. children were returned to their mothers
home at Bridge River at the end of June, 1983.

[2]

In 2011, an indictment was brought alleging sixteen counts of assault (15
of them sexual assaults) against the three L. brothers. Since the accused had
been juveniles at the time of the alleged offences, the charges were brought
under the
Youth Criminal Justice Act
, S.C. 2002, c. 1. P.E.L., the
appellant herein, was charged with the sexual assault of L.J. and C.J. between
January 13 and June 30, 1983, and with the indecent assault of G.T. between
October 1, 1981 and October 31, 1982. Six charges were brought against S.C.L.
and the rest were brought against D.B.L. After a trial in 2011, this court
ordered a re-trial of certain of the charges. The re-trial of three charges
against P.E.L. and two against S.C.L. took place in the fall of 2014.

[3]

The trial judge delivered reasons on March 5, 2015 in which he convicted
P.E.L. of sexually assaulting L.J. and C.J. but acquitted him of indecently assaulting
G.T. The judge also convicted S.C.L. of sexually assaulting his cousin, T.L.,
between May 1987 and May 1988, but acquitted him of assaulting A.S. between
1985 and the end of 1987.

[4]

Only P.E.L. appeals his convictions.

The Trial Judgment

[5]

The case was highly fact-based and turned almost entirely on the trial
judges findings of credibility. On appeal, P.E.L. challenges those findings
with respect to L.J., who was in kindergarten in 1983, and to a lesser degree C.J.,
then in Grade 3. There was no direct evidence of the alleged assaults from any
person who was an adult at the time, and no medical evidence of what would have
been brutal and traumatic experiences for the complainants.

[6]

P.E.L. did not testify at trial. It is clear he was 14 in 1983, although
C.J. testified that she thought he had been about 18. It is not clear whether
he was in school then; but evidently he worked in some capacity in an office
in the basement of Julianne Hall, located next to an old pre-school building where
much of the alleged abuse occurred.

[7]

In all, L.J. testified that P.E.L. had sexually assaulted her so often
that it pretty much became normal. When pressed to estimate how many
incidents occurred, she said they happened about 65% of the time during her
stay at the L. home.  L.J. described in some detail three specific incidents of
being raped by P.E.L. in the L. residence (see paras. 22

26 of the trial judges
reasons); but also recounted that the appellant, whom she described as the
boss of all of us, would often call her and the other children in from the
playground into the pre-school building. There he would line them up in the
hallway outside the bathroom and call each child separately into a room where
they were abused by him and his brothers.

[8]

On one occasion, L.J. testified, the appellant directed D.B.L. to
assault G.T. On another occasion, he told D.B.L. to have sex with L.J.  D.B.L. tried,
but was unable to maintain an erection. She recalled that C.J., her brothers G.J.
and D.J., S.C., G.T., T.L. and B.L.C. were all present at the time. Five of
these persons testified at trial, but as the appellant points out in his
factum, none of them corroborated the incident.

[9]

L.J. also recalled that C.J. had been present once when L.J. was being
raped by P.E.L.; and that C.J. had reached out to comfort her as the rape was
occurring. Again as noted by the trial judge at para. 46, C.J. did not recall
this incident.

[10]

L.J. was a reluctant witness and was obviously frustrated at being
questioned for the second time on issues that, at least in her mind, were of
little relevance to the issues before the Court. She was cross-examined at
length, for example, on the location and colour of her room in the L. house;
whether she and C.J. had shared a bedroom; and the number of times she had been
abused by any of the defendants. She testified that she thought she had lived
at the L. residence for two to three months, but later said she had no idea
how long I was there for. She acknowledged that she had previously told the
police she had been seven or eight years old when the abuse occurred, but that
she had changed her evidence (in fact she had been five years old) based on
evidence she heard at the first trial. At one point, she was asked if she had
any difficulties with her memory generally or had suffered any head injury.
Her answer was no. When asked whether in her experience her memory got better
over time or got worse, she answered, I dont think mine gets worse.

[11]

L.J. was also cross-examined at length about any discussions she had had
concerning the abuse, especially her disclosure in 2007 to Ms. A. (a probation
officer to whom she is now related by marriage), and then to police. She had told
Ms. A. that
D.B.L. and S.C.L.
had lined up and sexually abused children
at the pre-school, but she did not mention any abuse by
P.E.L.
At trial,
she stated she did not remember if she had mentioned P.E.L. and I do not know
and I do not recall. When pressed about her insistence that she had not
discussed the abuse with anyone, including C.J., she said she had not spoken
in
detail
about her experiences. She had kept her words vague and her
conversations with C.J. had been abrupt, because Its like, I dont want to
talk about it. She continued at p. 283 of the transcript:

What I -- I never -- what I am
saying is, I never ever talked about anything that had happened to me in detail
to anybody, about what I endured in the home, in the residence, or the care of Mrs.
and Mr. L., and alls we said was, We were abused. I was abused. She [C.J.] knew
I was abused. She knew she was abused. We knew things happened. We knew bad
things happened to us, and thats all we ever acknowledge, and thats it. And
when I came forward and did my statements, thats it. I said, I finally put my
word in, and that's it. Thats all. There was nothing else said. Nobody ever talked
about anything.

[12]

C.J.s testimony was considerably shorter. She described one incident in
which P.E.L. had called her into his office in Julianne Hall. When she entered,
she saw L.J. sitting on a couch, fidgeting. She recalled that P.E.L. told L.J. she
could go, and then told her, C.J., to undress. She continued:

He took off his shorts and he
went to this pole and he

he ejaculated himself on this pole. He came towards me, and he took off his
pants and laid on top of me. And he stopped himself, and said he couldnt do it
anymore, so he told me to leave. I quickly got dressed, and I walked out.

She testified that she never told anyone about this
incident because S.C.L. told us if we ever told anyone that he would kill our
 mother, and I didnt want her to die. She had tried to run away a few times,
but was returned to the L. residence. She said that later, when she was about
15, she had told the RCMP about what P.E.L. had done, but they told her
nothing could be done.

[13]

C.J. agreed with the suggestion that the pole incident was the only
incident that had involved
[herself] and P.E.L.
in sexual abuse (my
emphasis) and that he had never approached her again after that. She said she
rarely saw him. She did not say she had seen L.J. or S.C. being assaulted (as L.J.
had suggested); but neither did she deny that had taken place. Indeed, as will
be explained below, she was not directly asked about these incidents at trial.

[14]

The sisters recollections on matters of detail did differ in some
respects: C.J. described P.E.L. as chubby and short, for example, while L.J.
described him as tall and thin; L.J. was unsure whether she and C.J. had
shared a bedroom in the L. house; C.J. said they had. She was not asked about
having helped L.J. move a bed against the door of her (or their) bedroom to
keep P.E.L. out, as L.J. recalled. L.J. and C.J. were obviously not always
together and had different experiences. They attended different schools and it
appears L.J. was exposed to P.E.L. much more frequently than C.J. was.

[15]

On a more important topic  her disclosure of what had happened

C.J. recalled phoning her
sister and talking with her about it, although, she added, they did not discuss
it
in detail
. L.J. said she had never approached her sister to talk
about events [they] had been involved in; in cross, said she did not remember
calling C.J. to discuss the abuse.

Trial Judges Assessment of Credibility

[16]

The trial judge began his reasons by referring to the law concerning the
assessment of the credibility of witnesses generally, and in particular, of adult
witnesses who are being asked to recall events alleged to have occurred when
they were children. He quoted passages from
R. v. W.(R.)
[1992] 2 S.C.R.
122, where McLachlin J., now C.J.C., observed for the Court:

Every person giving testimony in
court, of whatever age, is an individual, whose credibility and evidence must
be assessed by reference to criteria appropriate to her mental development, understanding
and ability to communicate. But I would add this. In general, where an adult is
testifying as to events which occurred when she was a child,
her credibility
should be assessed according to criteria applicable to her as an adult witness
.
Yet with regard to her evidence pertaining to events which occurred in
childhood, the presence of inconsistencies, particularly as to peripheral
matters such as time and location,
should be considered in the context of
the age of the witness at the time of the events to which she is testifying
.
[At p. 134; emphasis added.]

[17]

The trial judge then reviewed the evidence of L.J. and C.J. and said
this about L.J.s inability to recall various matters about which she had been
asked:

L.J. noted with respect to her own experience that the sexual
abuse she described was a regular and normalized feature of her life at the
time and that she could not recall all the abuse she had suffered at the
direction or hands of P.E.L. and others. She said that
it may be that the
events she did recall were those which stood out as being particularly vivid or
horrific
.

In these circumstances, it would
not be surprising if adult witnesses remembering events from childhood would recall
different events. It is quite a different circumstance than that arising where
adult witnesses are unable to recall or corroborate more recent events about
which the same or at least similar recollections would be expected to be brought
forward. [At paras. 47

8;
emphasis added.]

[18]

Generally, the judge found that the discrepancies in the evidence of L.J.
and others concerning how the complaints had come to light and what had been discussed
by whom and with whom, did not credibly support any suggestion that L.J. or other
witnesses at trial had contrived to concoct allegations against the L. brothers.
Nor was he persuaded that any significant discussion had taken place between
them such that their recollections were tainted. With respect to L.J.s
credibility, he concluded:

In spite of the absence of supporting evidence from the other
children, now adults, said to be present at some of the events recalled by L.J.,
I am bound to say that her evidence in regards to the actions of P.E.L. in
these episodes was particularly compelling. I find her evidence is
fundamentally credible and reliable
in respect to the essential events of
her sexual abuse by P.E.L.

To the extent that there were
some gaps in the details of the evidence provided by L.J., Im satisfied that
those
gaps are to be expected from real memories laid down by a child and recalled by
the adult
. L.J.s evidence did not strike me as being at all reflective of
a lack of candour, truthfulness or reliability. [At paras. 51

2; emphasis added.]

In the result, he found with
respect to L.J. that:

The evidence of L.J., which I
accept, establishes beyond a reasonable doubt that P.E.L. played roles as both
principal offender and party to the various episodes of sexual assault related
by L.J. I am satisfied that P.E.L. is guilty of the offence charged in Count 1.
[At para. 53.]

[19]

With respect to C.J., the judge found that
:

C.J. was a credible witness
generally. I am satisfied that her evidence was sufficiently credible and
reliable so as to prove the offence charged against P.E.L. on Count 2 beyond a
reasonable doubt. The events involving C.J. and P.E.L. in the basement office
in the Julianne Hall occurred as she described. On that basis I find P.E.L.
guilty on Count 2. [At para. 79.]

[20]

The judge went on to deal with the remaining charges

the alleged assault by P.E.L.
of G.T. (which he found was not proven beyond a reasonable doubt); and S.C.L.s
alleged assaults of A.S. and T.L. Since these are not the subject of appeal, I
need not rehearse the evidence on those counts or the judges analysis of them here.

Grounds of Appeal

[21]

In this court, P.E.L. advances the following grounds of appeal:

1.         The
trial judge erred in law by drawing an impermissible inference from L.J.s
testimony about her own memory to explain why the memories of five other
witnesses differed on the crucial issue of whether the pre-school abuse
occurred;

2.         The
trial judge erred in law by misapplying
R. v. W.(R.)
to the evidence of
adult witnesses recalling childhood memories;

3.         Separate
transactions were alleged by the Crown within counts 1 and 2 which led the
trial judge to rely upon prejudicial evidence that would have been inadmissible
count to count if the different transactions were charged and tried separately;
and

4.         The trial judge misapprehended
the facts resulting in a miscarriage of justice.

Analysis

[22]

Grounds 1, 2 and 4 all concern the trial judges findings of
credibility. Central to them all is the appellants argument that there were
important discrepancies or inconsistencies, both within L.J.s testimony,
and between her testimony and that of five of the seven persons she said had
seen D.B.L. attempting to have sex with her at P.E.L.s order. It will be
convenient to summarize here the relevant aspects of the evidence of the five
witnesses:

a)

C.J.
described one incident of sexual assault at the hands of P.E.L. As the trial
judge noted at para. 46, she did not relate any incident in which she saw [L.J.]
being sexually assaulted or in which she offered comfort to [L.J.] in those
circumstances. However, she was not asked directly about any sexual abuse of L.J.
by the appellant.

b)

G.T.
, age
seven at the time, testified that she did not recall any incident  where [she
was] sexually abused by the three brothers along with 12 other people. She did
testify that she had seen C.J. being assaulted by D.B.L., and recalled that P.E.L.
had been there watching. (At paras. 71

3.)
However, there were various contradictions between her evidence at the first
and second trials and she was clearly flippant at the second trial, answering
Sure or Whatever to several questions. Ultimately, the trial judge said he
could not be satisfied beyond a reasonable doubt that P.E.L. had been a party
to the assault by D.B.L. that G.T. said she had witnessed.

c)

G.J.
,
then age nine to ten, testified that he had suffered a stroke in recent years.
He could not recall whether the L. brothers had played with him and was not asked
directly about any allegations of sexual abuse.

d)

D.J.
, then
age seven, testified that he had since suffered head trauma. He said he could
not remember the names of the children he had played with inside the abandoned
place. He did remember that they would call us kids in one time but when
asked who they were, he could only guess that it would be P.E.L., S.C.L. and D.B.L.
He was unable to say what happened when the L. brothers called the children
into the abandoned place.

e)

T.L.
,
five years old at the time, testified that he had no memory of ever being
involved with a number of other children being lined up to be abused by the L.
brothers at the pre-school.

[23]

To my mind, the evidence of the four latter witnesses simply cannot be
described as contradicting L.J.s evidence on material points, or as
inconsistent therewith. These witnesses were either not asked about the
incidents recalled by L.J., or were unable to recall them; they did not deny
that those things happened. As far as C.J.s evidence is concerned, she was
questioned only about incidents of abuse involving
herself and P.E.L.
, and
not about the incidents to which L.J. had testified.

[24]

With this clarification in mind, I turn to the first, second and fourth
grounds of appeal. Counsel has clarified that the first two are advanced under
s. 686(1)(a)(ii) of the
Code
 i.e., on the basis of a wrong decision
on a question of law. If such an error is shown, the onus is on the Crown to
satisfy the Court that no substantial miscarriage of justice has occurred, such
that the curative proviso in s. 686(1)(b)(iii) may be invoked.

Impermissible Inference?

[25]

The first ground of appeal focuses on paras. 47

8 of the trial judges reasons, quoted at para. 17
above. The appellant submits that the judge erred in law in using L.J.s
evidence about her own memory to explain why the five other alleged eyewitnesses
to the abuse that took place at the pre-school had memories that (the appellant
says) materially conflicted with L.J.s testimony. It is said the trial judge
engaged in illogical and speculative reasoning to provide such an explanation.
Counsel emphasizes that L.J. was not an expert on childhood memory. Counsel
did not say what should follow from this point, but presumably he was
suggesting that L.J.s testimony that her memory does not get worse with time
should not have been believed (if indeed it was believed).

[26]

I do not agree with the appellants characterization of the judges
reasoning at paras. 47

8.
As I read that passage, he was accepting that adult witnesses are likely to
recall different events from their childhood (as L.J. recalled the three specific
incidents in the L. house), in contrast to their recall of
recent
events,
which would likely be more complete and detailed. The judge considered L.J.s
evidence in the context of her age at the time of the events as
W.(R.)
directs. L.J. was among the youngest of the children who played in the
playground near the L. residence, and one would expect as a matter of common
sense that years later, she would recall the most traumatic of her experiences,
and not the details of her physical surroundings or other routine matters.

[27]

Finding no error of law, I would not accede to this ground of appeal.

Misapplication of R. v. W.(R.)?

[28]

The second ground seems to be a variant of the first. The appellant
acknowledges that the trial judge correctly set out the applicable law as
stated in
W.(R.)
, and that a central inconsistency in the testimony of
an adult witness about a childhood event cannot be approached with the same
latitude as a peripheral inconsistency. However, the appellant submits that
because the law no longer requires the corroboration of assertions of sexual
misconduct involving children (see
An

Act to Amend the Criminal Code
in Relation to Sexual

Offences
, etc., S.C. 198081

82

83, c. 125, s. 5), the trial judge was obliged to
scrutinize carefully the alleged inconsistencies in this case, and in
particular, the fact that L.J.s evidence about the abuse in the pre-school
building was not corroborated by the other five witnesses discussed earlier.
Thus the appellant submits in his factum:

The inconsistency between L.J.s evidence and the evidence of
the other five witnesses went to the core of her allegations. The trial judges
analysis on this
central inconsistency overemphasized the fact that all of
these witnesses were recalling childhood events
.

The trial judge also failed to examine this central conflict
in the context of the relative ages of all the witnesses during the relevant
time period as required by
W.(R.).
L.J. was five years old at that time.
Four of the five other witnesses (who either could not recall or denied the
pre-school abuse) were older (between 7 and 10 years old respectively). As a
matter of common sense
those witnesses would presumably have better memories
of that time period because they were significantly older than L.J.

This central discrepancy,
particularly in the context of events that were alleged to have occurred more
than thirty years before the trial,
required rather than excused scrutiny
.
[At paras. 52

4.]

[29]

Although I agree the trial judge was obliged to consider the
complainants evidence carefully, I cannot agree he failed to scrutinize it adequately.
He heard full argument about the so-called inconsistencies complained of in
the appellants factum and his reasons indicate he was fully aware of their
importance in his assessment of credibility. As noted earlier, despite these
inconsistencies, he found L.J.s evidence compelling and credible (see paras.
50

2.) He also found that
C.J. was generally credible.

[30]

The same was not true of G.T., whom the trial judge did not find
sufficiently credible and reliable to satisfy him beyond a reasonable doubt
that P.E.L. had been a party to the sexual assault of C.J. by D.B.L. (para. 78).
As for the remaining four witnesses, their failure to corroborate the events in
question was explained.

[31]

Of course, it is true that another trial judge might have found L.J.s
testimony to be less compelling, might have been more troubled by the absence
of corroboration, or might have been left with a reasonable doubt at the end of
the day. But as is often said, a trial judge is generally in the best position
to assess a witnesses credibility  a
factual
determination  and has
extensive exposure to the entire factual nexus of a case. (
Housen v.
Nikolaisen
2002 SCC 33 at para. 25.) I cannot agree that the judge here misapplied
W.(R.)
or overapplied the Supreme Courts direction to consider the
complainants testimony in the context of their young ages. In this regard, I
note the comments of Wilson J. in
R. v. B.(G.)
[1990] 2 S.C.R. 30, which
were quoted at p. 133 of
W.(R.)
:

it seems to me that [Wakeling
J.A. in the court below] was simply suggesting that the judiciary should take a
common sense approach when dealing with the testimony of young children and not
impose the same exacting standard on them as it does on adults. However, this
is not to say that the courts should not carefully assess the credibility of
child witnesses and I do not read his reasons as suggesting that the standard
of proof must be lowered when dealing with children as the appellants submit.
Rather,
he was expressing concern that a flaw, such as a contradiction, in a childs
testimony should not be given the same effect as a similar flaw in the
testimony of an adult. I think his concern is well founded and his comments
entirely appropriate. While children may not be able to recount precise details
and communicate the when and where of an event with exactitude, this does not
mean that they have misconceived what happened to them and who did it
. In
recent years we have adopted a much more benign attitude to childrens
evidence, lessening the strict standards of oath taking and corroboration, and
I believe that this is a desirable development. The credibility of every
witness who testifies before the courts must, of course, be carefully assessed
but the standard of the reasonable adult is not necessarily appropriate in
assessing the credibility of young children. [At 54

5; emphasis added.]

[32]

I would not accede to this ground of appeal.

Miscarriage of Justice?

[33]

The fourth ground of appeal is advanced under s.

686(1)(a)(iii)
of the
Code

‒
i.e., on the basis that the convictions constituted a miscarriage of justice.
Counsel for the appellant acknowledged that to satisfy s.

686(1)(a)(iii),
he must show an error in law or misapprehension of the evidence that played an
essential part in the trial judges reasoning process leading to conviction:
see
R. v. Lohrer
2004 SCC 80 at paras. 12, 8, citing
R. v. Morrissey
(1995) 97 C.C.C. (3d) 193 (Ont. C.A.). Counsel also emphasized that it was not
necessary for the appellant to show his convictions could not be reasonably
supported by the evidence (in which case s. 686(1)(a)(i) could be invoked):
Morrissey
at pp. 21920.

[34]

As also noted in
Morrissey
, s. 686(1)(a)(iii) is broad in scope
and may include both errors in law and errors in the trial judges
understanding of the evidence, provided a miscarriage of justice is shown to
have resulted. In Doherty J.A.s analysis:

I turn next to s. 686(1)(a)(iii).
This subsection is not
concerned with the characterization of an error as one of law, fact, mixed fact
and law or something else, but rather with the impact of the error on the trial
proceedings. It reaches all errors resulting in a miscarriage of justice and
vindicates the wide jurisdiction vested in this court by s. 675(1).
The
long reach of s. 686(1)(a)(iii) was described by McIntyre J., for a unanimous
court, in
R. v. Fanjoy
(1985), 21 C.C.C. (3d) 312 at pp. 317

18, 21 D.L.R. (4th) 321, [1985]
2 S.C.R. 233: A person charged with the commission of a crime is entitled to a
fair trial according to law. Any error which occurs at trial that deprives the
accused of that entitlement is a miscarriage of justice.

When will a misapprehension of the
evidence render a trial unfair and result in a miscarriage of justice? The
nature and extent of the misapprehension and its significance to the trial
judges verdict must be considered in light of the fundamental requirement that
a verdict must be based exclusively on the evidence adduced at trial.
Where
a trial judge is mistaken as to the substance of material parts of the evidence
and those errors play an essential part in the reasoning process resulting in a
conviction then, in my view, the accuseds conviction is not based exclusively
on the evidence and is not a true verdict
. Convictions resting on a
misapprehension of the substance of the evidence adduced at trial sit on no
firmer foundation than those based on information derived from sources extraneous
to the trial.
If an appellant can demonstrate that the conviction depends on
a misapprehension of the evidence then, in my view, it must follow that the
appellant has not received a fair trial, and was the victim of a miscarriage of
justice.
This is so even if the evidence, as actually adduced at trial, was
capable of supporting a conviction. [At pp. 2201; emphasis added.]

[35]

In
Morrissey
itself, a trial judge was found to have
misapprehended evidence given by adult witnesses concerning sexual assaults
alleged to have occurred when they were children. The Court of Appeal allowed
the appeals from convictions on four counts after finding the trial judge had
treated the evidence of two complainants as if it had been consistent on all
significant points, and had failed to notice various inconsistencies as a
result of his misapprehension of the substance of the evidence. (At p. 221)
The cumulative effect of various mistakes in his analysis was found to be
significant in that it infected the very core of the reasoning process which
culminated in a conviction .

[36]

While counsel for the appellant in the case at bar did not say so
expressly, he seeks to persuade us that similar errors were made in this
instance. In his factum, he returns to the submission that the evidence of four
of the five witnesses (see above at para. 22) materially conflicted with L.J.s
testimony regarding the assaults at the pre-school

as opposed to their simply being unable to
recall or corroborate the events described by L.J. The appellant reviews these
so-called conflicts and inconsistencies at paras. 73

86 of his factum and I have mentioned most of
them in these reasons. Again, most are in my view differences on matters of
detail that one could not expect a five-year old to perceive in the way an
adult would, or to recall with perfect accuracy.

[37]

The appellant contends that the trial judge was obliged to resolve the
inconsistencies asserted by counsel. I cannot agree. Again, these were not
direct conflicts on matters of substance. They were differences in degree, in
experience, in recollection, in expression. The trial judge was bound to assess
the evidence by reference to criteria appropriate to [the witnesses] mental
development, understanding and ability to communicate. (
W.(R.)
at p.
134) He did just that. He concluded at para. 51 that L.J.s evidence was
particularly compelling and both credible and reliable in respect [of] the
essential events of her sexual abuse by P.E.L. This was not a case like
Morrissey,
in which the trial judge clearly misapprehended evidence relating to
substantive
issues in a manner that was
essential to his reasoning
. Rather, this was
a case like
W.(R.),
in which the discrepancies in the evidence were of
the sort to be expected in historical cases. In such cases,
W.(R.)
instructs that courts should not apply too critical an approach to the
evidence or place insufficient weight on the trial judges findings of
credibility or apply stereotypes relating to the normal behavior of victims
of sexual abuse. (At p. 136.)

[38]

The remaining topic of potential concern relates to L.J.s insistence at
trial that she did not talk to anyone about what had happened

when, as she later admitted,
she did tell Ms. A. and the police in 2007 about sexual abuse on the part of S.C.L.
and D.B.L. (but not P.E.L.). As we have seen, C.J. clearly recalled L.J.s
calling her up one night and saying, Hey, sis. Do you remember about when we
were in foster care? Further, she said We talked about what had happened, and
we talked about [how] something should be done about it. C.J. did state that
they did not discuss a lot of detail. L.J. said she could not remember
calling C.J. (L.J. was not asked if
C.J.
had called
her
) in these
terms. She then gave the explanation quoted above at para. 11.

[39]

It will be recalled that in
W.(R.),
the Supreme Court stated that
courts must consider the evidence of adult witnesses about childhood events in
the context of the age of the witness. In my respectful opinion, context
may also include ingrained ways of thinking or reacting to events such as those
to which the complainants and their communities have been subject as Aboriginal
people. It may be that L.J.s reluctance to have, or admit having, detailed conversations
with anyone about her experiences stems from the feeling that her suffering
was something that simply had to be quietly endured in the same way that many
of the adults in her community had endured suffering.  L.J. was asked at trial how
she could have been serially abused regularly, dozens of times by three boys,
along with several other children and nobody observed any of this behaviour,
except for you? At p. 303 of the transcript she replied:

No, it wasnt just except for me, because my sister went
through it, my brothers went through it, these other people went through. We
werent the only ones. It was like a -- its the historical impact from
residential school. My mom was the mother that she was because the things that
she went through. She never ever talked about the things that she went through,
but obviously she struggled because there were parent -- parenting problems,
sibling problems.

You are judging me and questioning me, based on my upbringing
and the things I went through. I went through all that shit because all the
shit that went through residential school and the things that happened to my
mom or even to Mr. and Mrs. L. and them, the learned behaviour, and look whos
here.

You wonder why so many people dont
come forward? Its because of all the stuff that we have got to go through. Be
victimized -- not by them physically anymore, but now because of this system, I
didnt even want to be here. I didnt want to come forward to this anymore.

This is how L.J. resolved her reluctance to speak
about the assaults in detail, even to C.J. Looking at the matter through the
lens of judicial experience, I believe her words ring true.

[40]

It seems to me that at the end of the day, the appellants real
objection is not to the trial judges assessment of credibility, but with the
result he reached  in other words, that in the appellants opinion, the
convictions are unsafe because they rest largely on the evidence of an adult (albeit
an articulate and educated one) who was five years old at the time and whose
evidence is uncorroborated (in the modern sense of that term). Although appellate
courts in the United Kingdom and Australia evidently have the authority to set
aside a verdict on the basis that it is unsafe or that there is a lurking
doubt about the verdict, the Supreme Court of Canada has interpreted s. 686 as
precluding any such authority in this country: see
R. v. Biniaris
2000
SCC 15 at paras. 36

8;
R.
v. Braich
2002 SCC 27 at para. 39;
R. v. Gagnon
2006 SCC 17 at para.
14; see also

R. v.
Irani
(1996) 81
B.C.A.C. 203 at paras. 8890,
lve. to app. refd
. [1996] S.C.C.A. No.
575, and

R. v. Guyatt
(1997) 97 B.C.A.C. 106,
lve. to app.
refd.
[1997] S.C.C.A. No. 601 at paras. 58
72.

In particular, the majority in
Guyatt
stated that s. 686(1)(a)(iii)
is concerned

not with the trial itself, but with the fairness of the
process which produced the verdict. (
Per
Ryan J.A. at para. 70, citing
Morrissey
.)

[41]

I would dismiss the fourth ground of appeal.

The Single Transaction Rule

[42]

The remaining ground of appeal rests on the single transaction rule,
as codified by s. 581(1) of the
Code
:

Each count in an
indictment shall in general apply to a single transaction and shall contain in
substance a statement that the accused or defendant committed an offence
therein specified.

The appellant contends that separate
transactions were alleged by the Crown against P.E.L. in each of Counts 1 and
2 of the indictment and that the trial judge was led to rely on prejudicial
evidence that would have been inadmissible as between counts if the
transactions had been charged and tried separately. Counts 1 and 2 were framed
thus:

Count 1

P.E.L., from the 13th day of January, 1983 to the 30th day of
June, 1983, inclusive at or near Lillooet, Province of British Columbia, did
sexually assault L.J. contrary to Section 246.1 of the
Criminal Code
.

Count 2

P.E.L., from the 13th day of
January, 1983 to the 30th day of June, 1983, inclusive, at or near Lillooet,
Province of British Columbia, did sexually assault C.J., contrary to Section
246.1 of the
Criminal Code
.

[43]

No objection was taken at trial by defence counsel on this point; nor
was objection taken to the admission of any evidence on the basis that it was
prejudicial given the counts as framed against the appellant. Indeed as the
Crown points out, the appellant at trial urged the trial judge to admit
evidence that was considerably wider than necessary to prove the charges,
because this afforded counsel a greater opportunity to challenge L.J.s
credibility and reliability.

[44]

The law is clear that s. 581(1) states a
general
rule that may
not apply in all cases. Exceptions are often made in cases of historical sexual
assault. Thus in
R. v. Hulan
[1970] 1 C.C.C. 36 (Ont. C.A.), a sexual
assault case, the Court stated:

In a case such as this, several
factors combine to make difficult close adherence to the usual procedure in
framing a count in an indictment. The long period over which the incidents occurred,
the practical impossibility of a complainant of this age being able to recall
the specific dates of the incidents, the position of influence of the prisoner,
the undesirable effect on the mind of the complainant of forcing a too-detailed
recall of individual incidents, all point to the necessity of a not-too-rigid
application of the procedural requirements unless possible prejudice to the
prisoner demands otherwise.
The framers of the
Criminal Code
by
referring to the general practice to be followed, have left some latitude for
exceptional cases
: and if there are to be exceptions to the general
practice I would be strongly of the opinion that a case such as the one now
before us is one of those to which the room for exception contained in this
section was directed. As I will discuss later, no prejudice to the appellant is
present in this case; if the procedural exactness were to be required the ends
of justice would be frustrated not promoted. [At p. 46; emphasis added.]

[45]

Hulan
was adopted by this court in
R. v. G.L.M.
1999 BCCA
467, where Ryan J.A. stated for the majority:

A single transaction may validly encompass a number of
occurrences, each in themselves capable of constituting an offence, where the
acts relate to a similar activity or involve a similar course of conduct.
Thus,
an indictment will not necessarily offend the single transaction rule
even where it spans a lengthy period of time and involves a number of separate
incidents in a variety of locations.
The classic analysis of the rule
was made by Kelly J.A. in
R. v. Hulan
, [1970] 1 C.C.C. 36 (Ont. C.A.).

In the case at bar the Crown alleged a number of acts
perpetrated by the appellant against his nephew, a young boy over whom he had a
position of power and influence.  It could be said the evidence revealed
that the appellant had a continuing sexual interest in his nephew upon which he
acted when given the opportunity.
The acts were successive and
cumulative.
It was not wrong to treat this series of events as a
single transaction. (See also
R. v. Selles
(1997), 116 C.C.C. (3d) 435
(Ont. C.A.);
R. v. D.A.L.
(1996), 76 B.C.A.C. 65 (C.A.).)

Although it is not improper to charge a continuing offence as
one count in an indictment, it is open to the Court to divide the count where
the ends of justice require it.  Section 590(3) of the Code provides:

The court may, where it is
satisfied that the ends of justice require it, order that a count be amended or
divided into two or more counts, and thereupon a formal commencement may be
inserted before each of the counts into which it is divided.

The interests of justice would
require such an amendment where the count so framed would embarrass the accused
in his defence, for example where he has different defences for different
incidents (eg.
R. v. Lilly
, [1983] 1 S.C.R. 794).  In the case at
bar the appellant did not allege that he was hampered in his defence by the
manner in which the indictment was framed.  He says only that two of the
incidents were not proved against him.
Nothing has been placed before
this Court to demonstrate that the accused suffered any prejudice in defending
one charge rather than four.
I would dismiss this ground of appeal.
[At paras. 11

4; emphasis
added.]

[46]

In my opinion, similar considerations apply in this case. For reasons
similar to those expressed in
G.L.M.
, I would reject this ground of
appeal.

Disposition

[47]

In the result, I would dismiss the appeal.

The Honourable Madam
Justice Newbury

I AGREE:

The Honourable Madam Justice Kirkpatrick

I AGREE:

The Honourable Mr. Justice Savage


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Seipp,

2017 BCCA 54

Date: 20170202

Docket: CA42998

Between:

Regina

Respondent

And

Jeffery Thomas
Raymond Seipp

Appellant

Before:

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Bennett

The Honourable Madam Justice MacKenzie

On appeal from: An
order of the Provincial Court of British Columbia, dated July 7, 2016 (
R. v.
Seipp
, Surrey Docket 207914-2C).

Counsel for the Appellant:

N.J. Preovolos

Counsel for the Respondent:

M.A. Street

Place and Date of Hearing:

Vancouver, British
  Columbia

September 13, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

February 2, 2017

Written Reasons by:

The Honourable Madam Justice Bennett

Concurred in by:

The Honourable Madam Justice D. Smith

The Honourable Madam Justice MacKenzie

Summary:

The
appellant was charged with eight Criminal Code offences related to a home
break-in in which a car was stolen. The appellant was convicted at trial of
four offences, including fleeing the scene of an accident without leaving his
name and address. His counsel conceded his guilt on this count during final
submissions. Mr. Seipp appeals this conviction on the basis that the concession
amounted to ineffective assistance of counsel that caused him prejudice. He
contends that the mens rea of the offence was not proved. Held: Appeal
dismissed. A decision by counsel to acknowledge an accuseds guilt after all
the evidence has been presented is a legal decision that does not require
instructions. And in this case, it caused the appellant no prejudice. Section
252 of the Criminal Code presumes that an accused who fled the scene of an
accident did so with an intent to avoid civil or criminal liability unless the
accused presents evidence to the contrary. Mr. Seipps evidence that he left
the scene to avoid being arrested for driving a stolen vehicle does not amount
to evidence to the contrary. It is sufficiently connected to the accident to be
captured by the legislative intent of the provision.

Reasons
for Judgment of the Honourable Madam Justice Bennett:

[1]

In the early morning on December 29, 2013, someone broke into Mr. and
Mrs. Davidsons home. Jeffery Seipp was charged with eight
Criminal
Code,
R.S.C. 1985, c. C-46 [
Code
] offences related to the break-in:
fraud under $5,000 for the use of Mrs. Davidsons debit card (count 1);
break and enter and theft at the Davidsons home (count 2); theft of Mrs. Davidsons
car (count 3); use of Mrs. Davidsons stolen debit card (count 4);
possession of Mrs. Davidsons stolen car (count 5); possession of Mrs. Davidsons
stolen cellphone (count 6); possession of the Davidsons stolen television and Mrs. Davidsons
stolen wallet (count 7); and failure to stop and provide his name and address at
the scene of an accident (count 8).

[2]

Mr. Seipp was convicted of four of the eight offences: fraud, use
of a stolen debit card, possession of stolen property (a motor vehicle), and
leaving the scene of an accident. He appeals only the conviction for leaving
the scene of an accident.

[3]

At the conclusion of the evidence, during final submissions, the trial
judge asked Mr. Seipps trial counsel (who is not counsel on the appeal),
if she could narrow the issues by acknowledging Mr. Seipps guilt on any
of the charges. Counsel acknowledged that the elements of possessing the stolen
motor vehicle and leaving the scene of the accident had been proved by the
Crown. The trial judge relied on this admission to convict Mr. Seipp.

[4]

The issues on appeal are whether counsels admission was an error that amounted
to ineffective assistance of counsel, and if so, whether this error prejudiced Mr. Seipp,
entitling him to a new trial on that charge.

Fresh Evidence Application

[5]

Mr. Seipps trial counsel filed an affidavit where she deposed the
following:

7.   After
sentencing, it occurred to me that I should not have admitted that Count 8 had
been proven. When I read Count 8 and advised the court that the offence had
been proven, I did not realize that an essential element of the offence of
failing to stop ones vehicle contrary to s. 252(1)(b) of the Criminal
Code includes proof of intent to escape criminal or civil liability.

8.   In
retrospect, I believe I conflated the
Criminal Code
offence of failing
to stop contrary to s. 252(1)(b) with the
Motor Vehicle Act
offence
of failing to stop contrary to s. 68(1). The latter does not require proof
of intent to escape civil or criminal liability. I think I was also led astray
by the wording of Count 8, which does not mention the element of failing to
stop with the intent to escape criminal or civil liability.

9.   In any event, it was a mistake to
admit Count 8, and the mistake was entirely my own. I did not seek the
appellants instructions because I thought his guilt on Count 8 was a foregone
conclusion.

[6]

No argument was made on appeal with respect to the wording of the
information and the failure to specify an essential ingredient of the offence.
I have therefore not addressed that issue.

Background

[7]

Someone broke into Lisa and Timothy Davidsons home on December 29, 2013.
The Davidsons television, Mrs. Davidsons wallet and debit card, her
cellphone, and her 2009 Chevrolet Equinox were stolen. Later that morning, Mrs. Davidsons
debit card was used to purchase gasoline and make several withdrawals from her
chequing account. Mr. Davidson decided to drive around the neighbourhood in
search of the car on the chance it had been abandoned. His daughter, Laura, accompanied
him. Mr. Davidson saw Mr. Seipp driving his wifes car on Old Yale Road.
He caught up with the car and tried to overtake it in a roundabout. This
manoeuvre resulted in a collision between the vehicles. Mr. Seipp fled
without providing either his name or address. The accident disturbed a
corrective steel rod implanted in Lauras back, ultimately necessitating
surgery.

[8]

Surveillance footage showed Mr. Seipp using Mrs. Davidsons
debit card, and Mr. Davidson identified him in a photo pack line-up. The
central issue in the two-day trial before Rounthwaite P.C.J. was
identification. The Crowns theory was that Mr. Seipp committed the
break-and-enter of, and thefts from, the Davidsons home.

[9]

Mr. Seipp testified in his defence. He admitted driving Mrs. Davidsons
car and using her debit card under suspicion that both were stolen. He claimed
that his friend Alyssa unexpectedly stopped by his house around four or five
in the morning on December 29, 2013, and invited him to drive around in a car
she had acquired. He denied breaking into and stealing from the Davidsons
home. At some point he dropped Alyssa off and continued joyriding until the
collision with Mr. Davidsons car. In his direct examination, Mr. Seipp
testified that he fled from the collision because he suspected the car was
stolen and therefore did not want to be present when the police arrived. He was
not asked in direct or cross-examination if he had another reason for fleeing
the scene of the accident.

[10]

At the end of the defences case, the trial judge asked defence counsel
if she was in a position to admit that the evidence established guilt on any of
the counts charged. Defence counsel submitted that counts 5 (possession of Mrs. Davidsons
stolen car) and 8 (failure to provide a name and address at the scene of an
accident) had been proved. Rounthwaite P.C.J. convicted Mr. Seipp of
counts 5 and 8 at the conclusion of submissions, and adjourned the trial for a
short period to deliberate on the six outstanding counts. Upon her return to
the courtroom, she convicted Mr. Seipp of counts 1 (defrauding the credit
union where the debit card was used) and 4 (using Mrs. Davidsons stolen
debit card). Having concluded that Mr. Seipps explanation for possessing Mrs. Davidsons
car and debit card might reasonably be true, the trial judge did not draw the
inference sought by the Crown that Mr. Seipp had committed the
break-and-enter of, and theft from, the Davidsons home. She thus acquitted Mr. Seipp
of the remaining four counts.

Issues

[11]

There are two related issues on appeal. The first is whether trial
counsels conduct in conceding Mr. Seipps guilt on count 8 (failing to
provide his name and address at the scene of the accident) amounted to
ineffective assistance of counsel. In order to answer this question, the
mens
rea
for that offence must be ascertained, as that will determine whether Mr. Seipp
suffered any prejudice as a result of counsels concession at trial.

Position of the Parties

Ineffective Assistance of Counsel

[12]

Mr. Seipp submits that counsels misapprehension of the essential
elements of the offence was a serious error. Counsel admitted in her affidavit
that she conflated the elements of the offence in the
Motor Vehicle Act
,
R.S.B.C. 1996, c. 318 [
MVA BC
] with the elements in s. 252(1)(b)
of the
Code
. This deprived Mr. Seipp of an opportunity to have the
offence tried on the merits. He submits that there was a reasonable probability
the trial judge would have acquitted. He has brought a motion to adduce trial
counsels affidavit as fresh evidence. He also submits that counsel did not
seek instructions before conceding the offence had been proved.

[13]

The Crown submits that while there could be a concern arising from the
fact that defence counsel did not address the essential elements of the
offence, it says that this failure caused Mr. Seipp no prejudice because he
is guilty of the offence. The Crown says that counsel is not obliged to seek
specific instructions at the end of the evidence. It is not the same as
entering a guilty plea at the outset. In addition, the Crown notes that Mr. Seipp
incriminated himself at trial to the point that his guilt on this count was
established.

Mens Rea Under s. 252(1)(b)

[14]

Mr. Seipp submits that the authorities suggest that the proper
interpretation of escape civil or criminal liability under s. 252(1) is
that the intent must relate to avoiding liability in connection with the cause
of an accident rather than any liability arising from the general operation of
a motor vehicle. He argues that there are two distinct lines of authority
interpreting this provision, and that the correct interpretation is limited to
consequences arising from the accident itself. Alternatively, the meaning of civil
or criminal liability is ambiguous, and therefore the principle of strict construction
in interpreting a penal statute must be applied. Mr. Seipp testified he
fled because he did not want to be found with a stolen vehicle. The Crown did
not cross-examine on any other liability he may have intended to escape, and
the trial judge found that Mr. Seipps driving was not the cause of the
accident. Mr. Seipp submits that if the more limited interpretation is
applied, then his evidence would amount to evidence to the contrary
sufficient to rebut the presumption of intent.

[15]

The Crown submits that there are similar interpretations in most of the cases
rather than two distinct lines of authority. It submits that the decisions
generally find that the intention to escape civil or criminal liability must be
related to or substantially connected to the accident. The Crown submits that Mr. Seipp
fled to evade liability for driving Mrs. Davidsons stolen car at the time
of the accident. Although his manner of driving did not cause the accident such
that he could be held liable for Laura Davidsons injuries, his use of the
stolen car was a factual cause of the accident. The Crown submits that this provides
a sufficient link between the liability he sought to avoid and the collision to
establish the
mens rea
. Thus, even absent defence counsels concession
of the appellants guilt, the verdict would have been the same because the
appellants evidence was insufficient to rebut the presumption of
mens rea
codified
in s. 252(2) of the
Code
. The bottom line is that even if defence
counsels confusion as to the
mens rea
constituted incompetence, it did
not prejudice the appellant.

Discussion

Ineffective Assistance of Counsel

[16]

The right of an accused person to effective assistance of counsel is a
principle of fundamental justice:
R. v. G.D.B.
, 2000 SCC 22 at para. 24.

[17]

A Court of Appeal has jurisdiction to set aside a conviction and order a
new trial on the basis of ineffective assistance of counsel where there has
been a miscarriage of justice. See s. 686(1)(a)(iii) of the
Code
and
G.D.B.
at para. 5. The issue has both a performance component and
a prejudice component:
G.D.B.
at para. 26.

[18]

The analysis with respect to ineffective assistance of counsel generally
commences with the question of whether there is prejudice. Major J. described
the process in
G.D.B.
at para. 29:

In those cases
where it is apparent that no prejudice has occurred, it will usually be
undesirable for appellate courts to consider the performance component of the
analysis. The object of an ineffectiveness claim is not to grade counsels
performance or professional conduct. The latter is left to the professions
self-governing body. If it is appropriate to dispose of an ineffectiveness
claim on the ground of no prejudice having occurred, that is the course to
follow (
Strickland
,
supra
,

at p. 697).

[19]

The issue raised in this case is whether counsels admission that the
elements of the offence had been proved was correct in law. Mr. Seipp says
it was not, and therefore he suffered prejudice. The Crown says that it was,
and that therefore no prejudice occurred.

The Mens Rea Requirement

[20]

Mr. Seipp was charged pursuant to s. 252(1)(b) of the
Code
.
I set out the entire section, as it is relevant to the interpretation of the individual
provisions:

252
(1) Every
person commits an offence who has the care, charge or control of a vehicle,
vessel or aircraft that is involved in an accident with

(a)
another person,

(b)
a vehicle, vessel or aircraft, or

(c)
in the case of a vehicle, cattle in the charge of another person,

and with intent to escape civil or criminal
liability fails to stop the vehicle, vessel or, if possible, the aircraft, give
his or her name and address and, where any person has been injured or appears
to require assistance, offer assistance.

(1.1)
Every person
who commits an offence under subsection (1) in a case not referred to in
subsection (1.2) or (1.3) is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years or is guilty of an offence
punishable on summary conviction.

(1.2)
Every person
who commits an offence under subsection (1) knowing that bodily harm has been
caused to another person involved in the accident is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten years.

(1.3)
Every person
who commits an offence under subsection (1) is guilty of an indictable offence
and liable to imprisonment for life if

(a)
the person knows that another person involved in the accident is
dead; or

(b)
the person knows that bodily harm has been caused to another
person involved in the accident and is reckless as to whether the death of the
other person results from that bodily harm, and the death of that other person
so results.

(2)
In proceedings under subsection (1), evidence that an accused
failed to stop his vehicle, vessel or, where possible, his aircraft, as the
case may be, offer assistance where any person has been injured or appears to
require assistance and give his name and address is, in the absence of evidence
to the contrary, proof of an intent to escape civil or criminal liability.

[21]

The French language provision is slightly
different, and I have reproduced the relevant offence section:

252
(1) Commet
une infraction quiconque, ayant la garde, la charge ou le contrôle dun
véhicule, dun bateau ou dun aéronef, omet dans lintention déchapper
à
toute
responsabilité civile ou criminelle darrêter son véhicule, son
bateau ou, si cest possible, son aéronef, de donner ses nom et adresse, et
lorsquune personne a été blessée ou semble avoir besoin daide, doffrir de laide,
dans le cas où ce véhicule, bateau, ou aéronef est impliqué dans un accident :

a)
soit avec une autre personne;

b)
soit avec un véhicule, un bateau ou un aéronef;

c)
soit avec du bétail sous la responsabilité dune autre personne,
dans le cas dun véhicule impliqué dans un accident.

[Emphasis added.]

[22]

The French language version of the offence refers to
à
toute
 or any liability. If the phrase
à toute

broadens the meaning, then the English version is preferred. See
Schreiber
v. Canada (Attorney General)
, 2002 SCC 62 at para. 56.

[23]

The
MVA

BC
equivalent is s. 68:

68
(1) The driver or operator or any other
person in charge of a vehicle that is, directly or indirectly, involved in an
accident on a highway must do all of the following:

(a) remain at or immediately return to the scene of the
accident;

(b) render all reasonable assistance;

(c) produce in writing to any other driver involved in the
accident and to anyone sustaining loss or injury, and, on request, to a witness

(i) his or her name and address,

(ii) the name and address of the
registered owner of the vehicle,

(iii) the licence number of the
vehicle, and

(iv) particulars of the motor
vehicle liability insurance card or financial responsibility card for that
vehicle,

or such of that information as is
requested.

[24]

The main difference between the
Code
provision and the British Columbia
legislation is the intent, specified in the
Code
provision as with
intent to escape civil or criminal liability. The British Columbia legislation
creates a strict liability offence, which is also typical of other provinces.
See, for example, the
Traffic Safety Act
, R.S.A. 2000, c. T-6,
s. 69(1), the
Highway Traffic Act
, R.S.O. 1990, c. H. 8,
s. 200, the
Highway Safety Code
, C.Q.L.R, c. C-24.2, ss. 168-170
and the
Motor Vehicle Act
, R.S.N.S. 1989, c. 293, s. 97.

[25]

A key question on appeal is what is the meaning and breadth of the phrase
with intent to escape civil or criminal liability? In order to answer this
question, I commence with the basic principles of statutory interpretation. It
is long accepted that the governing principle was stated by Elmer Driedger and
noted in
Rizzo v. Rizzo Shoes Ltd. (Re)
,

[1998] 1 S.C.R. 27 at para. 21:

Although much has been written about the interpretation of
legislation  Elmer Driedger in
Construction of Statutes
(2nd ed. 1983)
best encapsulates the approach upon which I prefer to rely. He recognizes that
statutory interpretation cannot be founded on the wording of the legislation
alone. At p. 87 he states:

Today there is only one principle or approach, namely, the
words of an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament.

[26]

Iacobucci J. noted in
Rizzo
at para. 22 that reliance should
also be placed on the interpretive principle that all acts are remedial. Section
12 of the
Interpretation Act
, R.S.C., 1985, c. I-21
provides
:

Every enactment is
deemed remedial, and shall be given such fair, large and liberal construction
and interpretation as best ensures the attainment of its objects.

[27]

The
Code
provision was first enacted in 1910
(S.C. 1910, c. 13, s. 2). The Bill was introduced as Injuries Due to
Motor Vehicles, and was debated as follows:

Mr. R.L. BORDEN. As I understand the object of the
legislation it is this. When an accident has occurred on the highway owing to the
presence of a motor car,
whether there has been negligence on the part of
the persons driving the motor car or
not,
absolutely
irrespective of that consideration
, the motor car must stop and the driver
must tender assistance and give his name and address. If he fails to do that,
then he is liable, on summary conviction, to a fine not exceeding $50 in costs.

Mr. CARVELL. That is correct.

Mr. R.L. BORDEN. That would be
irrespective of
whether he is in fault or not
. If the accident occurs, and he drives on
without tendering assistance or without giving his name and address, then he is
liable. I think, perhaps, the wording of it might be improved a little in the
last line, but apart from that it would seem to me to have that meaning.
[Emphasis added.]

(
House of Commons Debates
,
11th Parl., 2nd Sess., Vol. 5 (2 May 1910) at 8730.)

[28]

Thus, initially, the offence focused on rendering
assistance to the injured and providing a name and address, regardless of
whether the driver was at fault for the accident.

[29]

The legislative history of the provision was set
out in
R. v. McColl
, 2008 ABCA 287 at paras. 19-24:

[19]      A review of the enactments history
is useful for this purpose. When first enacted (by S.C. 1910, c. 13,
s. 2), subsection 285(2) (section 252s predecessor) read:

Whenever, owing to
the presence of a motor vehicle on the highway,
an accident has occurred to
any
person or to any horse or vehicle in charge of any person, any person
driving the motor vehicle is guilty of an offence ... if, with intent to escape
liability either civil or criminal, he fails to stop his vehicle, tender
assistance, and give his name and address. Such failure shall be prima facie
evidence of an intent as aforesaid.

[20]      The parts of the provision relevant
to this appeal remained essentially unchanged until
Criminal Code
,
1953-54, c. 51 when a general consolidation resulted in subsection 221(2)
(later 233(2)), which stated:

(2) Every one who,
having the care, charge or control of
a vehicle that is involved in an
accident with a person
, vehicle or cattle in the charge of a person, with
intent to escape civil or criminal liability fails to stop his vehicle, give
his name and address and, where any person has been injured, offer assistance, is
guilty of ...

[21]      In 1985, the
Criminal Law
Amendment Act
, R.S.C. 1985, c. 27 (1st supp.), s. 36 replaced
that provision with what is now essentially subsection (1), excepting some
changes that made the provision gender neutral. In 1999 an amendment added
subsections 1.1, 1.2 and 1.3, discussed below.

[22]      The original enactment makes it plain
that Parliaments intention was to punish drivers leaving an accident scene
without tendering assistance to an injured person. Although the common law
presumes amendments are intended to change the substance of an enactment, the
presumption may be rebutted when the changes result from a general
consolidation, in which case the revised statute is said to be a reformulation
of the pre-existing law, see generally Pierre
-
André Côté,
The
Interpretation of Legislation in Canada
3rd ed., (Scarborough: Thomson
Canada Limited, 2000) at 422. That approach arguably applies to subsection
1(a): the provision was initially enacted to create an offence when an accident
has occurred and the driver of a vehicle involved leaves without assisting
those injured. Such intention has not been altered by reformulations and
clarifications of the provisions meaning.

[23]      In contrast, true amendments,
including the addition of subsection 1.2, must be considered on a different footing.
Recourse to the Hansard may be used to glean Parliamentary intention:
Reference
re Firearms Act (Can.)
, 2000 SCC 31, [2000] 1 S.C.R. 783 at para. 17.
In introducing Bill C-82 (which was given its third reading and passed that
day), the Parliamentary Secretary to Minister of Justice and Attorney General
of Canada explained the amendments adding subsection 1.2 thus:

Among its penalty
changes Bill C
-
82 includes changes for two crimes which are sometimes directly related
to impaired driving. The first is the offence of leaving the scene of an
accident to escape civil or criminal liability. Bill C-82 would amend this
provision to add the elements of bodily harm and death, which would increase
the gravity of the offence. That in turn should signal to the courts that more
severe sentences are required.

[...]

The new formulation
in Bill C
-
82 preserves the intent of the committee. Three levels of leaving the
scene are created. Each contains different essential elements. ...

Under subsection
(1.2), where the person knows that bodily harm has been caused to another
person involved in the accident the offence is indictable and punishable by a
maximum of 10 years imprisonment.

[...]

The maximum penalty
under Bill C
-
82 is life imprisonment. To the extent that penalties can discourage
those who might leave an accident in order to evade getting caught for impaired
driving, the changes to the offence of leaving the scene will send the message
that running away from a collision where someone is injured or killed is egregious
behaviour that carries a serious penalty.

House of Commons
Debates
, No. 241 (June 9, 1999) at 1835ff (Eleni
Bakopanos)

[24]      Subsection 1 and 1.2 must be read
together. As the Court stated in
Roche
(referring to the two provisions
set out in para. 12 above): [i]t might be said that s. 233(3) read
in isolation is clear. But this is not the type of section that should be
treated in that way, as it is ancillary to s. 233(2). The Court confirmed
that the two subsections, when read together, clarified each other.

[Emphasis added in
McColl
.]

[30]

Section 252(2) requires a driver who is involved in an accident to: (i)
stop, (ii) give their name and address, and (iii) offer assistance if a person
appears injured or in need of assistance. A driver is required to complete all three
steps. Proof of failure to perform any one of these three acts will trigger a
rebuttable presumption with respect to the drivers intent. See
R. v. Roche
,
[1983] 1 S.C.R. 491 at paras. 496-97. The evidence need only raise a
reasonable doubt that the driver did not have the requisite intent. See
R.
v. Proudlock
, [1979] 1 S.C.R. 525 at 551.

[31]

Therefore, failure to perform any of the three requirements is
sufficient to form the
actus reus
of the offence and trigger the
presumption of intent to escape criminal or civil liability. The
mens rea
may be proved by the presumption of intent in the absence of evidence to the
contrary.

[32]

There are two approaches in the jurisprudence for what is meant by intent
to escape civil or criminal liability and what amounts to evidence to the
contrary. One approach limits the intent required to the intent to avoid the
legal consequences of the accident itself; the other includes the course of
conduct leading up to the accident. Neither approach includes the evasion of
criminal conduct at large as meeting the intent requirement.

[33]

In
Fournier c. R
, (1979), 8 C.R. (3d) 248 (Q.C.C.A), the
court considered the intent requirement in s. 233 [now s. 252], and
said, at 254 (translated):

I would add, that in my opinion,
the civil or criminal responsibility that one must intend to escape by leaving
the scene of an accident must be related to the accident, and not refer to all
civil or criminal responsibility previously or otherwise incurred, e.g. risk of
arrest: for armed robbery.

[34]

The case did not involve an armed robbery. By using this offence as an
example, the court appears to exclude the intent to avoid liability for an act
quite separate from the accident. The court found that the intent must be to
escape responsibility
related
to the accident.

[35]

In
R. v. Hofer
, (1982), 2 C.C.C. (3d) 236 (Sask.C.A.), the court specifically
considered the
mens rea
for the offence. The issue was whether the
intent to escape civil or criminal liability only included liability arising
from the accident itself. The court generally agreed with the above passage
in
Fournier
. It added that an accused can have more than one intent

for example, the intent to avoid liability unconnected to the
accident as well as the intent required for the offence (at 239). Furthermore,
the court found that the intent was not limited solely to the accident itself,
but could include, for example, avoiding a charge of impaired driving, which does
not technically arise out of the accident itself but arises out of the course
of conduct leading up to the accident (at 240).

[36]

In
R. v. Benson
, (1987), 50 M.V.R. 131 (Ont. Dist. Ct.), Borins
D.C.J. (as he then was), considered whether the presumption of intent was
rebutted when the driver fled from the accident scene because his license was
suspended due to unpaid fines and a bail condition and he did not want to be
caught driving under suspension. Borins D.C.J. did not agree that this
explanation amounted to evidence to the contrary. In his view, at 135, civil
or criminal liability should be broadly interpreted to include any liability,
civil or criminal, which might properly arise from the operation of a motor
vehicle by the defendant at the time that an accident takes place. Borins
D.C.J. clarified one of his findings from an earlier decision in
R. v.
Riopka
(1986), [1987] 45 M.V.R. 145 at 149-150, wherein he found that leaving
an accident scene to avoid being caught for theft of property from an employer
was evidence to the contrary. He clarified in
Benson
at 136 that the
intention to avoid liability for a number of driving offences, including
criminal negligence, failing to provide a breath sample, or driving while ones
licence was suspended did not amount to evidence to the contrary.

[37]

In
R. v. MacLean
(1982), [1983] 18 M.V.R. 275 (P.E.I. Sup. Ct.),
McQuaid J., at 277 defined the liability more narrowly. He concluded that the
liability must be incidental to and arising out of the accident in question. In
his view, leaving a scene because ones drivers licence was suspended did not
give rise to the accident nor was consequent upon it (at 277-278).

[38]

More recently, Hill J. considered the intent requirement in
R. v.
Sanford
, 2014 ONSC 3164. Mr. Sanford struck a cyclist at night. He stopped
at the scene, but left, he said, to obtain water and blankets for the injured
cyclist. A number of others had stopped to assist, and police, firefighters,
and paramedics were on route. The trial judge rejected Mr. Sandfords explanation
that he had left to obtain aid for the victim. Instead, he concluded that he
left the scene to avoid detection as a suspended driver. Hill J. at para. 73
noted the correlation between accidents and suspended drivers as well
recognized, citing
R. v. Ladouceur
, [1990] 1 S.C.R. 1257 at 1280-81, where
the majority upheld random police road stops. He adopted the reasoning of
Borins J., and concluded that a person who left an accident scene because his
licence was suspended was attempting to avoid liability as a suspended driver,
which fell within the ambit of the section.

[39]

In
R. v. K.J.F.
, 2009 BCCA 344 at para. 14, Saunders J.A. in
discussing the presumption in s. 252 said:

[14]      Section 252(2), as
counsel for the appellant submits, does not establish a positive obligation on
the part of the driver to fulfill the three behaviours of stopping, providing a
name and address and rendering assistance. Those obligations are the subject of
a provision in the
Motor Vehicle Act
, noncompliance with which is an
offence under the
Offence Act
. Rather, s. 252 prohibits a failure
to fulfill these three actions with the intent of avoiding civil or criminal
liability, and I say parenthetically, in connection with the accident.

[40]

I note that the issue of whether the liability was in connection with
the accident was not an issue before the court in
K.J.F.
, and thus the
parenthetical observation is, in my view,
obiter
.

[41]

If the provision is capable of more than one meaning, then the strict
construction of penal statutes must be invoked. In
Bell ExpressVu Limited
Partnership v. Rex
, 2002 SCC 42 at paras. 28-30, the application of
the principle was stated as follows:

[28]      Other principles of interpretation  such as the
strict construction of penal statutes and the
Charter
values
presumption  only receive application where there is ambiguity as to the
meaning of a provision. (On strict construction, see:
Marcotte v. Deputy
Attorney General for Canada
, [1976] 1 S.C.R. 108, at p. 115,
per
Dickson J. (as he then was);
R. v. Goulis,
(1981), 33 O.R. (2d) 55
(C.A.), at pp. 59-60;
R. v. Hasselwander
, [1993] 2 S.C.R. 398, at
p. 413;
R. v. Russell
, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 46.
I shall discuss the
Charter
values principle later in these reasons.)

[29]      What, then, in law is an ambiguity? To answer, an
ambiguity must be real (
Marcotte
,
supra
, at p. 115). The
words of the provision must be reasonably capable of more than one meaning (
Westminster
Bank Ltd. v. Zang
, [1966] A.C. 182 (H.L.), at p. 222,
per
Lord
Reid). By necessity, however, one must consider the entire context of a
provision before one can determine if it is reasonably capable of multiple
interpretations. In this regard, Major J.s statement in
CanadianOxy
Chemicals Ltd. v. Canada (Attorney General)
, [1999] 1 S.C.R. 743, at para. 14,
is apposite: It is only when genuine ambiguity arises between two or more
plausible readings,
each equally in accordance with the intentions of the
statute
, that the courts need to resort to external interpretive aids
(emphasis added), to which I would add, including other principles of
interpretation.

[30]      For this reason,
ambiguity cannot reside in the mere fact that several courts -- or, for that
matter, several doctrinal writers -- have come to differing conclusions on the
interpretation of a given provision. Just as it would be improper for one to
engage in a preliminary tallying of the number of decisions supporting
competing interpretations and then apply that which receives the higher score,
it is not appropriate to take as ones starting point the premise that
differing interpretations reveal an ambiguity. It is necessary, in every case,
for the court charged with interpreting a provision to undertake the contextual
and purposive approach set out by Driedger, and
thereafter
to determine
if the words are ambiguous enough to induce two people to spend good money in
backing two opposing views as to their meaning (Willis,
supra
, at
pp. 4-5). [Emphasis added in
Bell ExpressVu
.]

[42]

In my view, there is no true ambiguity when one considers the context
and object of the legislation.
The
Code
holds people
responsible for intentionally committing prohibited acts or omissions, or for
acting in a way that is objectively worthy of criminal censure. The case law
generally finds that acts that are connected or related to the driving will be
caught by the provision. In my view,
there is no need to invoke the
strict construction of penal statutes principle. The fact that the section has
been interpreted in different ways by different judges does not mean there is a
true ambiguity.

[43]

It is clear from the debate on Bill C-82 (noted above), when the
legislation was amended in 1999, that the legislature intended to capture
impaired driving in this provision, conduct which may not necessarily be
connected to or be causally related to the accident. The 1999 amendments
support the broader interpretation given to the legislation in, for example,
the decisions in
Hofer
and
Benson
. In my view, the course of
conduct leading up to the accident must be included in order to capture
impaired driving, which is clearly one of the purposes of the legislation.

[44]

The object of the
Code
offence is to provide a penal incentive for
a driver who is involved in an accident, regardless of whether they are at
fault, to remain at the scene, provide their name and address, and offer
assistance if another person appears to be injured or in need of assistance. The
liability a driver seeks to evade is not narrowly construed as solely arising
from the consequences of the accident itself, but must also encompass offences
connected to the driving, such as impaired driving, driving while suspended,
criminal negligence, and dangerous driving.

[45]

The next question is where does flight to avoid criminal liability for
driving a vehicle knowing it was stolen fit into the scale of liability
connected to the accident?

[46]

The legislation was clearly intended to provide penal consequences for
those who avoid an investigation for impaired driving by fleeing the scene. It
also intended to provide penal consequences to persons who remain at the scene
but do not offer to assist injured persons, and to provide penal consequences
for those who attempt to hide their identities by failing to leave a name and
address. A driver who commits these acts to escape civil or criminal liability
arising from their driving has the requisite
mens rea
. The liability
contemplated in the section cannot be solely in relation to the cause of the accident,
as the driver may not be at fault, but the driver is still required to comply
with the legislation. I would adopt the test, as stated by Borins J. in
Benson
at 136 that civil or criminal liability should be broadly interpreted to
include any liability, civil or criminal, which
might properly arise from
the operation of the motor vehicle by the defendant at the time the accident
takes place
 (emphasis added).

[47]

As noted, the
actus reus
of the offence can be committed in three
ways. The broader
mens rea
easily applies to the first two: both failing
to stop a vehicle and failing to provide a name and address provide penal
consequences to those who hide their identity as the driver to escape, for
example, investigation for offences relating to driving, including impaired
driving. The
mens rea
does not as easily fit with a failure to offer
assistance with the intent to escape civil or criminal liability. However, there
are potentially hypothetical situations (although no cases that I have found),
where a driver could desire the death of the only witness to the accident, and
thereby not offer assistance and have the requisite intent for not doing so. It
is an awkward test, and as defence counsel pointed out, it would benefit from
an amendment. However, Mr. Seipp is charged with the
actus reus
of
failing to give his name and address, and while the test I propose must work
with all three acts underlying the offence, it does not need to be honed to
perfection with the act of failing to offer assistance, as that does not arise
on these facts.

[48]

Mr. Seipp did not want to be identified as the driver of the car,
as he was knowingly in possession of a stolen automobile, and was driving it at
the time he was involved in the accident. His flight from the scene was
to
avoid criminal liability in connection with a vehicle he was driving at the
time of the accident
.

[49]

It seems to me that, applying the
Benson
test, being involved in
an accident and fleeing to evade liability for driving a stolen motor vehicle,
like driving while ones licence is suspended, or driving while impaired, is
conduct and intent that is intended to be included in this legislation. Being
the driver of a stolen car when involved in an accident, and fleeing to avoid
detection as the driver, is, in my view, sufficiently related to the event to
be captured by the intent of the legislation. Fleeing to avoid arrest as the
driver of a stolen vehicle after an accident is therefore not evidence to the
contrary, but falls within the criminal liability contemplated by the section.

[50]

Thus, the explanation offered by Mr. Seipp, even if accepted by the
trial judge, would not have rebutted the presumption of intent. His counsel therefore
did not commit an error in admitting that the elements of the s. 252 offence
were proved beyond a reasonable doubt, and the trial judge committed no error
in convicting him.

[51]

Finally, Mr. Seipp submits that counsel failed to obtain his
instructions before admitting the elements of the offence. In these
circumstances, conceding an offence has been proved after hearing the evidence
is within the ambit of counsel; it is a legal decision. It is not on the same
footing as entering a guilty plea to an offence, which would require
instructions. I would not give effect to this argument.Therefore, there is no
need to admit the fresh evidence, as it would not affect the outcome of the
case.

[52]

I would dismiss the appeal.

The Honourable Madam Justice Bennett

I AGREE:

The
Honourable Madam Justice D. Smith

I AGREE:

The Honourable Madam Justice
MacKenzie


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Liu v. Zhang,

2018 BCCA 10

Date: 20180103

Docket: CA44332

Between:

Jun Liu

Appellant

(Petitioner)

And

Wei Zhang

Respondent

(Respondent)

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Newbury

The Honourable Madam Justice Kirkpatrick

On appeal from: an
order of the Supreme Court of British Columbia, dated
February 24, 2017 (
Liu v. Zhang
, Vancouver Registry No. S1510327)

Oral Reasons for Judgment

Counsel for the Appellant:

M. Lithwick
J. Goosen

Counsel for the Respondent:

B.T. Martyniuk
M. Szepes

Place and Date of Hearing:

Vancouver, British
  Columbia

January 3, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 3, 2018

Summary:

The appellant brought an
application seeking declarations regarding certain company expenses in the
context of an oppression petition pursuant to s. 227 of the Business
Corporations Act, S.B.C. 2002, c. 57. The respondent also brought an
application seeking declarations which was heard at the same time. Some
declarations were made in favour of the respondent. The appellant argued that
the chambers judge committed errors in making the declarations in favour of the
respondent. The respondent argued on appeal that the chambers judge lacked
jurisdiction to make the declarations. Held: Appeal allowed. The chambers judge
did not have jurisdiction to make declarations that amounted to a final
disposition of certain issues between the parties before the full hearing of
the oppression petition.

[1]

BAUMAN C.J.B.C.
: This is an appeal from an order of a chambers
judge making declarations that expenses related to a certain vehicle and a
management salary were proper company expenses for the benefit of the
respondent, Mr. Zhang.

[2]

The order was made in the context of oppression proceedings brought by
each of the parties in respect of the pizza business in which they were the
only shareholders (Mr. Liu as to 49% of the shares and Mr. Zhang as to 51% of
the shares).

[3]

The application within which the order was made was in the Liu petition
proceeding. This was essentially an interlocutory application as the petition
itself, seeking a final declaration that the affairs of the respondent company
had been conducted in a manner that is oppressive and unfairly prejudicial to
Mr. Liu, has not been heard or set for hearing.

[4]

The petition seeks an order winding up the respondent company and an
accounting to determine amounts owing to Mr. Liu and Mr. Zhang by the
company and by Mr. Zhang to the company. The petition seeks sundry other
relief.

[5]

Mr. Zhang, when represented by previous counsel, initially agreed
with the appellant that the evidence before the chambers judge was insufficient
to support his findings, but the parties then disagreed on the appropriate
remedy. The appellant sought (and still seeks) an order from this Court
declaring that the respondent is not entitled to be paid either the vehicle
expense or a management salary. The respondent, Mr. Zhang, sought an order for
a trial of these issues. Mr. Zhang is now represented by new counsel who
has filed a fresh factum by consent. Mr. Zhang now takes the position that
the chambers judge has effectively granted interlocutory declaratory relief and
that he lacked jurisdiction to do so.

[6]

In the alternative, Mr. Zhang now argues that there was a
sufficient evidentiary basis for the order made and seeks to uphold it in this
Court.

[7]

In my view, the respondent is essentially correct in his principal
submission, although I would not characterize the order as one making interlocutory
declarations. On the contrary, it purports to be a final disposition of these
aspects of the oppression proceeding made on the basis of an interlocutory
application in that proceeding. Such an application is wholly inappropriate.
The application was misconceived. It sought relief under s. 227 of the
Business
Corporations Act
, S.B.C. 2002, c. 57, consequent on a principal
finding of oppression before the petition considering that principal relief has
been heard.

[8]

To the extent the issue of jurisdiction was not raised before the
chambers judge, I would grant leave for it to be raised now. It is in the
interests of the administration of justice that we determine this issue at this
time.

[9]

While certain parts of the order made by the chambers judge might
represent appropriate interim relief under the oppression provisions of the
Business
Corporations Act
, those parts are so closely tied to other forms of relief
that should only be considered after a finding of oppression that they cannot
be disentangled from the jurisdictional error. Accordingly, I would allow the
appeal, and vacate the order in its entirety. The substantive issues addressed
in the application, particularly the declarations as to apportionment of
expenses, should be determined at the hearing of the main oppression petition
in the Supreme Court of British Columbia. Whether the petition should go to the
trial list is a matter for consideration by that court. For greater clarity, I
do not mean to preclude the parties from seeking appropriate interim relief in
that court.

[10]

I
would dispose of the matter in this manner.

[11]

NEWBURY
J.A.
: I agree.

[12]

KIRKPATRICK
J.A.
: I agree.

[13]

BAUMAN
C.J.B.C.
: The application is disposed of as indicated in these reasons.

[14]

I
would add, though, a postscript and it is further to the submission we just
heard on the viability of portions of the Registrars work most valuably done
in August 2017. We are sure the parties can salvage and use findings from the
work of the learned Registrars that is clearly within jurisdiction and advance
the litigation with that work already at hand.

[15]

We
encourage the parties to undertake that analysis and move forward on that basis.

[16]

Thank you for your submissions.

The Honourable Chief Justice Bauman