COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Wasfi,

2009
          BCCA 4

Date: 20090109

Docket: CA034750

Between:

Regina

Respondent

And

George
    Wasfi

Appellant

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Hall

The
          Honourable Madam Justice Saunders

P.J.
          Wilson, Q.C.
L. Sears

Counsel for the Appellant

C.
          Sweeney, Q.C.

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

21 November 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

9 January 2009

Written
          Reasons by
:

The
          Honourable Chief Justice Finch

Concurred
          in by:

The
          Honourable Mr. Justice Hall
The Honourable Madam Justice Saunders

Reasons
    for Judgment of the Honourable Chief Justice Finch:

I.          INTRODUCTION

[1]

Mr. Wasfi appeals his conviction on one count of first degree murder
    entered on 9 December 2006 following a trial before Madam Justice Morrison
    and a jury.  The appellant raises two grounds of appeal.  He submits that
    the trial judge erred in her instructions to the jury concerning the appellants
    post-offence conduct.  He also submits the trial judge prejudiced his right
    to a fair trial by criticizing a statement made by defence counsel during
    his closing address to the jury.

[2]

In my respectful opinion, the learned trial judge did not err in either
    of the ways alleged.  For the reasons that follow, I would dismiss the appeal.

II.
    FACTS

A.  Procedural History

[3]

The appellant was charged as a party to the shooting death of Vikash
    Chand on 7 October 1998 along with three other accused: Simon Chow, Sameer
    Mapara and Shane Shoemaker.  A trial of all four commenced in the fall of
    2000.  On 18 December 2000 the appellant was granted severance.

[4]

A separate trial of the appellant commenced in 2003.  The learned trial
    judge there held that evidence of intercepted communications between the appellant
    and others was inadmissible.  Faced with that ruling, the Crown elected to
    call no evidence, and the trial judge directed the jury to return a verdict
    of acquittal.  This Court overturned that decision:
R. v. Wasfi
,
    2006 BCCA 55.

[5]

The subject proceedings then commenced on 14 October 2006 before Madam
    Justice Morrison and a jury.  The prosecution called 28 witnesses and entered
    a larger number of exhibits including the intercepted communications and communication
    records.  The critical evidence appears to have been that evidence of intercepted
    communications and the records of same, together with the evidence of Haddi
    Binahmad, who was an accomplice in the killing, and who testified pursuant
    to an immunity agreement.  Wasfi did not testify or call evidence.

B.  Evidence as to the Shooting of Chand

[6]

The evidence of Binahmad and eyewitnesses established that shortly
    after 2:00 p.m. on 7 October 1998 Chand was shot six times by a lone gunman
    at a used-car lot in Burnaby called Rags to Riches.  The car lot, located
    on the north/east corner of Boundary Road and 2
nd
Avenue, was owned
    by Sameer Mapara.

[7]

The lone gunman was Shane Shoemaker.  He was driven to the vicinity
    of the car lot by Binahmad in Binahmads mothers van.  Binahmad waited in
    the car while Shoemaker went to the car lot and shot Chand.  After the shooting,
    Shoemaker ran east on 2
nd
Avenue and was picked up by Binahmad.

[8]

The prosecutions theory was that the appellant, Wasfi, organized and
    arranged Chands murder.  The Crown relied on Binahmads testimony, the testimony
    of others, and the intercepted telephone communications.

[9]

Binahmad testified to a history of illegal activity with and for Wasfi.
    Binahmad admitted he sold and transported drugs.  Wasfi had drug-related dealings
    with Chow and Chand, and other dealings with Mapara, the car lot owner.  Wasfi
    raised the topic of killing Chand in the fall of 1997, and asked Binahmad
    whether he wanted to do it.  Binahmad said it was hard, but could be done.
    He was motivated by money.

[10]

In May or June 1998, Binahmad and a person named Sam Oli accepted guns,
    money and drugs from Wasfi to kill Chand while Wasfi was to be away in Mexico.
    Binahmad and Oli set out twice to do the killing, but were frustrated on both
    occasions.

[11]

Binahmad testified that before the murder, in September or early October
    1998, Wasfi and Shoemaker visited him.  They told him that Shoemaker had agreed
    to shoot Chand.  Binahmad agreed to drive Shoemaker out of town after the
    killing.

[12]

About a week before the murder, Wasfi gave Binahmad the murder weapon.
    Binahmad gave the weapon to Shoemaker.  On 5 October 1998 Binahmad picked
    up $7,000 in one hundred dollar bills from Chow, the payment Wasfi had arranged
    for Shoemaker.  Binahmad gave the money to Shoemaker.  On the same day, Binahmad
    agreed with Shoemaker that he would drive him to the place where the shooting
    was to occur, and then drive him away from the scene.

[13]

Binahmad testified that on 6 October, the day before the shooting,
    Wasfi called Binahmad from Regina to tell him that Chand would be at the Rags
    to Riches parking lot the next day.  Wasfi instructed Binahmad and Shoemaker
    to go to the area of the Rags to Riches car lot and wait.  Binahmad testified
    that Wasfi told him he would page Binahmad when Chand was at the Rags to Riches
    car lot, and that Chand should be shot at that location.

[14]

Binahmad testified that on the day of the shooting he drove Shoemaker
    to the car lot knowing that Shoemaker was to shoot Chand.  He and Shoemaker
    waited in a nearby McDonalds parking lot.  Wasfi phoned, Binahmad drove Shoemaker
    to a place near the Rags to Riches parking lot, and Shoemaker shot Chand.

[15]

A significant part of the prosecutions case against Wasfi was the
    many communications by telephone and pager on 7 October 1998 prior to the
    murder, involving Wasfi and the other participants in the plan to kill Chand,
    principally, Binahmad.

[16]

Between 7:57 and 9:26 a.m. on the morning of 7 October 1998, the day
    of the shooting, there were four telephone and cell phone communications placed
    from Binahmad to Shoemaker to meet up.  From Regina, Wasfi placed calls to
    Binahmad at 9:32, to Shoemaker at 9:35 and to Binahmad again at 9:36, 9:44
    and 9:55.  Wasfi placed calls to Mapara at 10:02 and 10:07, then to Binahmad
    at 10:15 and again to Mapara at 10:22.  Wasfi received a call from Mapara
    at 10:24 and then placed calls to Binahmad at 10:27 and Mapara at 10:30.
    Wasfi placed calls to Binahmad at 11:12, to Mapara at 11:14 and to Shoemaker
    at 11:16.  Wasfi paged Binahmad at 11:18, and called Shoemaker at 11:19 and
    Mapara at 11:20.  Wasfi paged Binahmad at 11:21 and called Binahmad at 11:22
    and 12:01.  Wasfi placed six calls to Mapara from 12:01 to 12:04.

[17]

At 12:09, Wasfi received an intercepted call from Chow and Mapara.
    During that call, Chand called Mapara on another line.  Maparas words to
    Chand were overheard on the intercepted call and provided Wasfi with knowledge
    that Chand was on his way to meet with Mapara at Rags to Riches.  At 12:15
    Wasfi called Binahmad.  An unknown party placed three calls to Binahmad at
    1:54, 1:58 and 2:00 p.m.  An unknown party called Shoemaker at 2:05 p.m. Shoemaker
    shot Chand at 2:07 or 2:08 p.m.

C.  Evidence of Post-Offence Conduct

[18]

After Shoemaker shot Chand, Binahmad drove him away from the scene
    in the van owned by Binahmads mother.  Someone got the license number of
    the vehicle, and on the evening of 7 October 1998 Binahmads parents were
    arrested.

[19]

The Crown placed emphasis on two post-offence phone calls.  Wasfi called
    Chow at 11:18 a.m. on 8 October 1998 to request that Chow provide $2,000 for
    [Binahmad], who was in trouble and needed to leave (call number 88).  Wasfi
    noted that [Shoemaker] had already left.  Concerning Binahmad, Wasfi said:
    hes the only fucken mistake, okay, and Im going to handle that.  So just
    get him out of there.  Thats all I need you to do.

[20]

Chow called Wasfi on 22 October 1998 (call number 105).  In the course
    of that conversation, Wasfi disclosed that the police had the license plate
    number of the vehicle Binahmad drove and knew who they were looking for, but
    that Wasfi had got them out of the country.  As for the driver (Binahmad),
    everybody knows this dummy works for me.

[21]

With the money Binahmad received from Chow, Binahmad was able to leave
    town.  He met Wasfi in Montreal.  Shoemaker was also there.  Wasfi gave Binahmad
    and Shoemaker each $2,000 to $3,000.

[22]

Those three, together with others, then left Montreal and made their
    way to Las Vega, Nevada.  The group included Wasfis girlfriend, Monica Janousek,
    and Binahmads girlfriend, Theresa Deck.  During this trip, Wasfi paid the
    bills.  The evidence of Janousek and Deck supported Binahmads evidence that
    Wasfi paid for the expenses of all in travelling to Las Vegas, and for hotel
    and living expenses while there.

D.  Binahmads Credibility

[23]

Binahmad was subjected to a long and thorough cross-examination.  His
    criminal record began in 1991.  He had been interviewed several times by the
    R.C.M. Police in Las Vegas.  The police gave Binahmad information they had
    obtained from other witnesses.  The first two interviews in Las Vegas were
    not tape-recorded.

[24]

A third interview was tape-recorded and in that interview the police
    provided Binahmad with additional information obtained from other sources.

[25]

Before the interview on 19 October 1999 the police provided Binahmad
    with a book of transcripts of intercepted calls.  Binahmad, in custody in
    Canada, read these transcripts and decided to cooperate with the police.

[26]

Binahmad testified at trial pursuant to an immunity agreement, which
    was negotiated after his arrest and return to Canada from Las Vegas.  He admitted
    that the police had told him that there was a much better case against him
    and Shoemaker than there was against Wasfi, and that his lawyer told him when
    the immunity agreement was being negotiated that the police wanted evidence
    against Wasfi.

III.        THEORIES OF THE CROWN AND DEFENCE

[27]

The Crowns case was that Wasfi had organized and coordinated Chands
    murder.  It relied on the evidence of Binahmad which it said was supported
    and corroborated by the evidence of others.

[28]

The Crown relied on the evidence of post-offence conduct, which it
    said was consistent with Wasfis dominant role in relation to Binahmad, and
    which also provided circumstantial evidence of Wasfis guilt.  The Crown placed
    special emphasis on the intercepted call number 105, which it characterized
    as a virtual confession.

[29]

The defence attacked Binahmads evidence as inherently unreliable and
    corrupted by his bias, the manner in which the police took statements from
    him, his immunity agreement with the police, and his self-interest in avoiding
    a lengthy prison sentence.

[30]

The defence also questioned the meaning to be given to various of the
    intercepted communications involving the use of code words.  Defence counsel
    asked the jury to consider whether the conversations were about murder, or
    merely about drug dealing, and Wasfis attempts to get money after losses
    at gambling.

[31]

As to Wasfis role in directing and financing Binahmads trip to eastern
    Canada, and then to Las Vegas, defence counsel acknowledged that Wasfi had
    helped Binahmad to escape, but said that fact did not make him a party to
    Chands murder.  He submitted that Wasfis post-offence conduct was consistent
    with his being an accessory after the fact, and that he would not oppose such
    a conclusion.

IV.        ISSUES ON APPEAL

A.  The Charge on Post-Offence Conduct

[32]

The appellant says the trial judges charge on post-offence conduct
    is in error for two reasons.  First, the appellant says the charge does not
    set out the alternative inference or inferences which might be drawn from
    the evidence, namely that Wasfi was an accessory after the fact, rather than
    a party to the offence of murder.  Second, Wasfis counsel says the charge
    contains a clear misdirection in the underlined passage of the charge on this
    issue, which is set out in full below:

Im
    going to speak to you for a minute about post-offence conduct.  Youve heard
    evidence concerning Mr. Wasfis conduct and movements following the murder
    of Vik Chand on October 7
th
, 1998.  The murder is alleged to have
    occurred around 2:07 or 2:08 in the afternoon of October 7
th
, 1998.
    At that time Mr. Wasfi, as you know, was in Regina with Monika Janousek.
    Youve heard and read evidence of telephone calls to and from certain parties
    with regard to that time.  Youve heard and seen evidence with regard to a
    car trip from Regina to Montreal, beginning October 7
th
, approximately,
    then a trip to Burlington after that, and finally a trip to Las Vegas via
    Niagara Falls and Buffalo.  Youve heard who accompanied Mr. Wasfi on these
    trips.  Much of this post-offence conduct is circumstantial evidence for you
    to weigh when you determine whether the Crown has proved the accuseds guilt
    beyond a reasonable doubt.  This evidence should not be viewed in a vacuum,
    but should be assessed like all other circumstantial evidence.  To find guilt
    based on such evidence, it must be consistent with the accuseds guilt and
    inconsistent with any other rational conclusion.

The evidence of the accuseds post-offence conduct has only an indirect bearing
    on the issue of guilt.  You should exercise caution in inferring guilt because
    conduct might be explained in an alternative manner.  The defence has suggested
    explanations for post-offence conduct in the questioning of witnesses.  There
    were questions with regard to Mr. Wasfis drug dealings and gambling.  The
    accuseds post-offence conduct can only be used by you to support an inference
    of guilt when you reject any innocent explanation for that conduct.

The indictment charges Mr. Wasfi with first degree murder of Mr. Chand on
    October 7
th
.  The evidence is that the accused was in Regina, as
    Ive said, at the time of the murder.  You may use the post-offence conduct
    evidence of the telephone calls and the trips to Montreal to support an inference
    that despite his absence from the scene of the crime, Mr. Wasfi knew what
    had been done; that he helped to plan and organize the killings, and so had
    the necessary criminal intent to commit the crime of first degree murder.
On the other hand, if the evidence of the telephone calls and the trips
    raises a reasonable doubt in your mind as to whether he committed the crime
    of first degree murder, you may only use the accuseds post-offence conduct
    evidence of telephone calls and flight as circumstantial evidence that he
    committed the crime
.

You should reserve your final judgment about the meaning of the accuseds
    post-offence conduct until you consider all of the evidence in the normal
    course of your deliberations.  At the end of the day you may draw whatever
    permissible inferences you choose from the evidence that youve heard.  You
    may keep in mind that people travel for innocent reasons.  Even if you find
    that the accuseds post-offence conduct was motivated by some feeling of guilt,
    that feeling could be attributable to some other criminal acts apart from
    the offence set out in the indictment.  Those matters might be important to
    you in weighing the evidence.

So there is a difference in opinion, of course, between the Crown and the
    accused as to whether his post-offence conduct relates to the crime charged
    in the indictment or to some other blameworthy act.  If you determine that
    the post-offence conduct relates to the crime charged, then you may weigh
    that evidence when deciding whether the accused is guilty or not guilty of
    the offence charged.  But if you determine it relates to some other blameworthy
    act or innocent act, then you should disregard the evidence and give it no
    weight in your deliberations as to whether the accused is guilty or not guilty.

You may decide that substantial evidence proving the guilt of the accused
    arises from his post-offence conduct, and that that evidence is subject to
    two directly conflicting interpretations, one favouring the accused and one
    not.  Before deciding which theory you believe with respect to this evidence
    you should first consider the evidence as a whole, and at the end, as always,
    if there is a doubt you give the benefit of the doubt to the accused.

[Emphasis added]

[33]

I will address first the underlined passage of the charge containing
    what is said to be the clear misdirection.  Counsel for both Crown and defence
    have listened to the recording of this part of the charge.  Counsel advise
    us they are both satisfied that the transcript is completely accurate.

[34]

Counsel for the Crown concedes that the underlined sentence is an incorrect
    statement of the law, but he says it is a mistake without consequences.  Counsel
    maintains that the charge as a whole on the issue of post-offence conduct
    was correct, and that the Court should apply the provisions of s. 686(1)(b)(iii),
    the
curative proviso
.

[35]

Counsel for Wasfi submitted that the judges clearly erroneous statement
    would have negated a key aspect of Wasfis defence, namely the innocent explanation
    that Wasfi contended should have been inferred from the post-offence conduct
    of his assisting Binahmad to flee.

[36]

Viewed in context, the trial judges misstatement of the law in the
    underlined statement in the charge could have no effect on the jurys assessment
    of the evidence, the issues it had to decide, or the verdict.  Apart from
    that misstatement the charge to the jury correctly instructed it that:

(a)
    the post-offence conduct evidence was circumstantial evidence     to be weighed
    in deciding if the Crown had proven its case        beyond a reasonable doubt;

(b)
    the post-offence conduct had only an indirect bearing on the            issue
    of guilt;

(c)
    caution should be exercised in inferring guilt because the     conduct might
    be explained in an alternative manner;

(d)
    the jury was to reserve final judgment about the meaning of the       post-offence
    conduct until it considered all the evidence; and

(e)
    the jury was to keep in mind that people travel for innocent   reasons and
    even if motivated by guilt, that could be attributed   to some other criminal
    act than that charged.

[37]

Counsel for the defence did not object at trial that the judge erred
    in instructing the jury that it could treat the evidence of Wasfis post-offence
    conduct as circumstantial evidence of his guilt in the killing of Chand.
    Although not determinative (see
R. v. Jacquard
, [1997] 1 S.C.R.
    314, 113 C.C.C. (3d) 1), counsels failure to object to the charge on this
    point is one factor in considering the accuracy and completeness of the charge,
    and the seriousness of the alleged error.

[38]

I will now turn to the alleged failure of the trial judge to set out
    the alternative explanations for the post-offence conduct. In
R. v.
    White
, [1998] 2 S.C.R. 72, 125 C.C.C. (3d) 385, Major J. giving the
    judgment of the Court said:

[22]
    It has been recognized, however, that when evidence of post-offence conduct
    is introduced to support an inference of consciousness of guilt it is highly
    ambiguous and susceptible to jury error. As this Court observed in
Arcangioli
,
    the danger exists that a jury may fail to take account of alternative explanations
    for the accused's behaviour, and may mistakenly leap from such evidence to
    a conclusion of guilt. In particular, a jury might impute a guilty conscience
    to an accused who has fled or lied for an entirely innocent reason, such as
    panic, embarrassment or fear of false accusation. Alternatively, the jury
    might determine that the conduct of the accused arose from a feeling of guilt,
    but might fail to consider whether that guilt relates specifically to the
    crime at issue, rather than to some other culpable act.

And
    further:

[57]
     As previously noted, there is a risk that juries might jump too quickly
    from evidence of post-offence conduct to an inference of guilt. However, the
    best way for a trial judge to address that danger is simply to make sure that
    the jury are aware of any other explanations for the accused's actions, and
    that they know they should reserve their final judgment about the meaning
    of the accused's conduct until all the evidence has been considered in the
    normal course of their deliberations. Beyond such a cautionary instruction,
    the members of jury should be left to draw whatever inferences they choose
    from the evidence at the end of the day.

[39]

In
Arcangioli v. The Queen
, [1994] 1 S.C.R. 129, 87 C.C.C.
    (3d) 289, Major J. again speaking for the Court said:

B.
    The Issue of Flight

It
    is well established that an inference of guilt may be drawn from circumstantial
    evidence such as flight from the scene of a crime or the fabrication of lies
    relating to the offence in question. However, in charging a jury, a trial
    judge must take care to ensure that evidence of flight is not misused. The
    danger exists that a jury may erroneously leap from such evidence to a conclusion
    of guilt if not properly instructed, see McCormick on Evidence, supra, vol.
    2, sec. 263, at p. 182:

... in many situations, the inference of consciousness of guilt of the particular
    crime is so uncertain and ambiguous and the evidence so prejudicial that one
    is forced to wonder whether the evidence is not directed to punishing the
    "wicked" generally rather than resolving the issue of guilt of the
    offense charged.

[40]

The Crown submits that the evidence in this case did not support the
    alternate explanation contended for by the defence.  Crown counsel drew our
    attention to two judgments of the Ontario Court of Appeal.  In
R. v.
    Thurston
(2001), 43 C.R. (5
th
) 153, Labrosse J.A. writing
    for the court said:

[9]
    I agree with the Crown's position that this case differs from
Arcangioli
in two further significant ways.

[10]
    Firstly, in
Arcangioli
, the accused testified. In the present case,
    the appellant did not testify, nor did he make any formal admission under
    oath regarding his commission of the offence of being an accessory after the
    fact to murder. The evidence is part of a second statement made to the police
    which is contrary to his first statement. Accordingly, it was open to the
    jury, as instructed by the Trial Judge, to decide that the statement was untrue
    and, therefore, could still itself serve as a basis to infer consciousness
    of guilt.

[41]

And in
R. v. Savojipour
(2006), 207 O.A.C. 202, 205 C.C.C.
    (3d) 533, the court said:

[21]
    As to the second part of the appellant's submission, the trial judge provided
    an adequate summary of the other explanations offered by the appellant with
    respect to the post-offence conduct evidence and specifically instructed the
    jury to assess the explanation given by the appellant. To have referred to
    other explanations not given in evidence by the appellant, could have seriously
    undermined the evidence of the appellant and invited the jury to engage in
    speculation.

[42]

In the case at bar, Wasfi did not testify, and the defence called no
    evidence.  The alternate explanation the jury was invited to accept came only
    from the submissions of defence counsel.  He suggested that the intercepted
    telephone calls related to drug deals.  He said the calls were consistent
    with the fact that Wasfi was a high-level drug dealer who gambled his money
    away, and then phoned others to collect the money owed to him on drug deals.
    And he submitted to the jury that the appellant assisting Binahmad to flee
    supported the concession that Wasfi was an accessory after the fact.

[43]

In his address to the jury, defence counsel said:

You
    know all the stuff about what happened in Montreal.  If you help somebody
    escape you are an accessory after the fact.  I have no opposition to the conclusion
    that Mr. Wasfi was an accessory after the fact to murder.  Theres no doubt
    about it.  Hes helping those guys get out of there.  Binahmad said that he
    would turn to Wasfi for help.  But the fact that you help somebody escape
    doesnt mean youre guilty of the murder.

[44]

Counsel said that failure of the judge to put these alternate explanations
    to the jury was a non-direction amounting to a misdirection.

[45]

There was no evidence that Wasfis post-offence conduct was motivated
    by his knowledge that he was guilty of being an accessory after the fact.
    The Crown did not allege he was an accessory.  Wasfi could not therefore have
    established that fact by making a formal admission.  He chose not to testify.

[46]

In the absence of any evidence, the alternate explanation suggested
    could amount only to speculation.  There was nothing in that to explain why
    Wasfi would be prepared to help Binahmad flee.  The explanation that he was
    an accessory after the fact was, simply, that he was an accessory after the
    fact.  It would have been wrong for the judge to invite the jury to speculate
    in this way.

[47]

The drugs and gambling explanation was apparently not pursued at trial.
    There was no direct evidence to support that interpretation of the intercepted
    communications.  Even if that explanation were consistent with some of the
    conversations, it could not explain away Wasfis assistance in Binahmads
    flight, and it would also have tended to cast Wasfi in an unfavourable light
    with the jury.

[48]

With respect, I would not give effect to this ground of appeal.

B.  Criticism of Defence Counsel

[49]

Counsel for Wasfi submits that one statement in the judges charge
    was a direct criticism of defence counsels address to the jury, and prejudiced
    Wasfis right to a fair trial.  He says the trial judges statement led to
    a miscarriage of justice.

[50]

Counsels closing address ended with these words:

Theres
    more at stake here than George.  His life is important enough, but there are
    more important principles at stake, and they are principles that you have
    to stand up for.  Principles which were designed to prevent the abuse and
    to prevent the risk which the corruption of Mr. Binahmads evidence represents.
    You must not allow those principles to be eroded in this case.  Not only is
    the cost for George Wasfi too high, its more than the rest of us can afford
    to pay.  And thats why I ask you to acquit Mr. Wasfi.

One
    last thing.
You have to be true to your oath and I know that you will
    be, but if youre with me on this stick to your guns.  Thank you.

[51]

Near the end of her charge the learned trial judge said this to the
    jury:

...
    Because this is a criminal trial you must be unanimous in whatever verdict
    you see fit to return.  Each of you must make your own decision whether the
    accused is guilty or not guilty, but you should do so only after a consideration
    of the evidence with your fellow jurors, and you should not hesitate to change
    your mind when you are convinced that you may be wrong.
Telling you to
    stick to your guns before you begin your deliberations is not an appropriate
    instruction or advice.
Unless you are unanimous in finding the accused
    not guilty you cannot acquit him, nor can you return a verdict of guilty unless
    you unanimously agree that he is guilty.

[52]

Counsel for the appellant says the underlined statement was unfair,
    prejudicial and led to a miscarriage of justice.

[53]

On this ground of appeal, the appellant need not show actual prejudice.
    The question is whether the appellant might reasonably consider that the trial
    was unfair, or whether a reasonable person present throughout the trial would
    consider that the appellant had not had a fair trial (see
R. v. Valley
(1986), 26 C.C.C. (3d) 207 (Ont. C.A.) and
R. v. Ertmoed
,
    2006 BCCA 365, 211 C.C.C. (3d) 49.

[54]

In my respectful opinion, the appellant cannot meet this test in this
    case.  It was both necessary and appropriate for the trial judge to remind
    the jurors of their obligation to keep an open mind in the course of their
    deliberations, and to warn them against adherence to a viewpoint shown to
    be in error.

[55]

The trial judges caution was a single sentence in the charge.  The
    appellant does not point to any other comment by the judge to the jury, or
    to any exchange between her and defence counsel during the course of the trial.

[56]

In the context of the submission and the charge as a whole, I do not
    consider the judges comment to be insulting or demeaning.  I do not consider
    it would undermine the force or credibility of defence counsels other submissions,
    as counsel contends.  I do not consider that a reasonable person, familiar
    with the whole trial, would regard the comment as unfair or prejudicial.

[57]

I would not give effect to this ground of appeal, and with respect
    to the underlined misstatement, I would apply the provisions of s. 686(1)(b)(iii).

V.         CONCLUSION

[58]

For the reasons given I would dismiss the appeal.

The Honourable
    Chief Justice Finch

I
    AGREE:

The Honourable Mr. Justice Hall

I
    AGREE:

The Honourable Madam Justice Saunders


COURT
    OF APPEAL FOR BRITISH COLUBIA

Citation:

Teck
          Cominco Metals Ltd. v. British Columbia (Minister of Revenue),

2009
          BCCA 3

Date: 20090109

Docket: CA036490

Between:

Teck
    Cominco Metals Ltd.

Respondent

(
Petitioner
)

And

Her
    Majesty the Queen in Right of

The
    Province of British Columbia

Appellant

(
Respondent
)

Before:

The
          Honourable Mr. Justice Frankel

(In
          Chambers)

A.H.
          Dalmyn

Counsel for the Appellant

K.L.
          Cook

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

December 10, 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

January 9, 2009

Reasons
    for Judgment of the Honourable Mr. Justice Frankel:

Introduction

[1]

The Crown is applying for leave to appeal the decision of Madam Justice
    Satanove of the Supreme Court of British Columbia, holding that a replacement
    conveyor belt, purchased for a conveyor system at a mine operated by a partnership
    in which Teck Cominco Metals Ltd. has an interest, is not subject to provincial
    sales tax under the
Social Services Tax Act
, R.S.B.C. 1996, c. 431.
    The Crowns position is that the chambers judge, in interpreting the applicable
    tax exemption, adopted too broad a definition of the word parts.

[2]

For the reasons that follow, I have concluded that there is no prospect
    of this appeal succeeding.  Accordingly, leave to appeal is refused.

Factual Background

[3]

Highland Valley Copper Partnership operates a mining and milling business
    for the production of copper and molybdenum concentrates, in Logan Lake, British
    Columbia.  The mining operation uses a number of conveyor-belt systems.

[4]

In August 2000, Highland Valley Copper ordered a new conveyor belt
    for Conveyor #2-2, from B.C. Belt Ltd., in Delta, British Columbia.  That
    belt was ordered to fit the exact specifications of Conveyor #2-2; it was
    3,268 feet long, five feet wide, and weighed 90,000 pounds.  Because
    of the belts size and weight it had to be cut into three pieces to be transported
    to the mine site.  The process of installing the belt is described as follows
    in the affidavit of Highland Valley Coppers mill maintenance general foreman:

11.

The three pre-manufactured segments of the Conveyor Belt are installed
    at the site.  Each of the three segments is laid out next to the Conveyor
    and the segments are then joined together through a splicing process.

12.

The splicing process simply involves separating and fusing the layers
    of one belt segment with the adjoining section of the other belt segment.
    The splicing involves overlapping 10 feet from one layer on the end of one
    segment to approximately 10 feet from the alternate layer on the end of an
    adjoining segment.

13.

Apart from the splicing of the ends, there is no change to the properties
    of the Conveyor Belt.

14.

Once the three segments have been joined, the old belt is cut, and
    the new belt is clipped to the old belt.  The Conveyor is run to pull the
    new belt into the system.  As the new Conveyor Belt is fed into the system,
    the old belt is taken off.  Once the new Conveyor Belt is in place, the ends
    are spliced together to complete the loop.

[5]

In early 2004, Teck Cominco increased its interest in Highland Valley
    Copper by acquiring an additional 33.5% from the other partner.  As, for provincial
    sales tax purposes, the purchase of a partnership interest is treated as the
    purchase of a proportionate interest in the tangible personal property (T.T.P.)
    and other assets of the partnership, Teck Cominco was required to pay sales
    tax on all T.T.P. it acquired, subject to any applicable exemptions.  Being
    of the view that the replacement conveyor belt is tax exempt, Teck Cominco
    did not pay tax with respect to it.

[6]

On February 2, 2005, the Commissioner of Social Service Tax issued
    a notice assessing Teck Cominco over $260,000.00 for sales tax and interest
    owing with respect to its acquisition of the replacement conveyor belt.  Teck
    Cominco filed an appeal to the Minister of Revenue under s. 118 of the
Social
    Services Tax Act
.  On December 8, 2006, the Minister affirmed the assessment.
    Teck Cominco then appealed to the Supreme Court, pursuant to s. 119 of the
Act
.  That appeal was allowed on September 2, 2008:  2008 BCSC 1131.

Relevant Statutory Provisions

[7]

Social Service Tax Act
:

76
(1)    Subject to
section
92.2 (4),
    the following are exempted from taxes imposed by sections 5 to 25 and 112.3:

(k)    prescribed
    machinery or equipment purchased or leased by a prescribed manufacturer or
    other prescribed person for a prescribed use;

79.1
An exemption provided
    under this Act for tangible personal property does not apply to tangible personal
    property used to make that property.

[8]

Social Service Tax Act Regulations
,
    B.C. Reg. 85/58, as amended:

Division
    13  Exemptions for Production Machinery or Equipment

13.1

manufacture

means

(d)    the
    extraction or processing of minerals, petroleum or natural gas.

13.5
(1)
    For
the
purposes of section 76(1)(k) of the Act and subject to sections 13.9 and 13.10,
    machinery or equipment is exempt from tax if purchased or leased by a person
    who, for commercial purposes, regularly engages in exploration for minerals
    or the development of mines and that machinery or equipment is for use exclusively
    in the exploration for minerals or the development of mines.

13.10.2
(1)
    Parts purchased or leased for use on machinery or equipment that is exempt
    from tax under this Division are exempt from tax if purchased or leased by
    a person who is eligible to purchase or lease machinery or equipment exempt
    from tax under this Division.

Ministers Decision

[9]

In denying Teck Comincos appeal, the Minister, the Hon. Rick Thorpe,
    accepted that Conveyor #2-2 is itself tax-exempt machinery or equipment under
    Regulation 13.5(1).  However, he opined that the conveyor belt supplied by
    B.C. Belt Ltd. was not a tax exempt part under Regulation 13.10.2(1).  With
    respect to whether something is a part, the Minister stated:

Bulletin
    SST 081,
Mining Industry
(February 2003), clearly states that the exemption
    for parts does not extend to materials used to make parts if the materials
    must be modified before use.  The bulletin further states that such materials
    include conveyor belt material that requires fitting and processing.  Ministry
    policy, since the inception of the exemption, has always been that purchases
    of bulk material are not exempt.  A part is a pre-manufactured piece of tangible
    personal property that is designed to replace an integral piece of the machinery
    or equipment that requires replacement.
To qualify as a part under the
    exemption, the part must be capable of installation with minimal adjustments
    such as, screwing on, tightening, or otherwise affixing or fastening together.
Materials used to make parts are excluded from the exemption because, at the
    time of purchase, the materials are not parts which are suitable for use on
    the qualifying machinery and equipment.  The materials must first be modified
    or manufactured into another product before being suitable for such use.

[Emphasis added]

[10]

Turning to conveyor belts in general, and the replacement belt for
    Conveyor #2-2 in particular, the Minister stated:

A conveyor
    belt may be purchased as an exempt part when the conveyor belt does not require
    any modification after purchase and does not have to be processed or fitted
    to be secured to the conveyor system.
Conveyor belts that do not meet these conditions are taxable material, not
    parts.  For example, conveyor belt material purchased in bulk that needs to
    be cut to length or otherwise altered before it is suitable for use as a part
    is taxable.  Conversely, conveyor belt material pre-cut to a specified
    length that does not need to be cut or otherwise altered before it is suitable
    for use as a part, but that requires lacings or adhesive agents to be installed,
    qualifies for the exemption.

During the
    review of the appeal, you provided a description of the belt and the procedure
    for installing it on the #2-2 conveyor.  The belt at issue in this appeal
    was purchased specifically for the #2-2 conveyor and is 3,268 feet long.
    Because of its size, the belt was shipped in three sections which were subsequently
    spliced together at the mine site.  In the splicing process employed by Teck,
    layers of the belt are separated and fused with the layers from the other
    end of the belt.  Teck acknowledges that some cutting was necessary as part
    of the splicing process which produced some excess material as waste.
Therefore,
    the splicing process employed by Teck not only required cutting in order for
    the belt to be installed onto the conveyor, but also required separating and
    fusing the ends of each section of the belt.  The belt therefore required
    fitting and processing and does not qualify for the exemption.

[Emphasis added]

Chambers Judges Decision

[11]

The only issue before the chambers judge was whether the conveyor belt
    in issue is a part, as this word is used in Regulation 13.10.2(1).  Part
    is not defined in either the
Act
or the
Regulations
.

[12]

To resolve this question, the chambers judge had regard to the principles
    applicable to the interpretation of taxing statutes, as discussed in
Ted
    Leroy Trucking Ltd. v. British Columbia (Minister of Revenue)
, 2008 BCCA
    285, 79 B.C.L.R. (4th) 59, i.e., if a contextual analysis of legislation reveals
    an ambiguity, then the context, scheme, and purpose of the legislation must
    be examined to determine its meaning.

[13]

The chambers judge found instructive
330651 B.C. Ltd. v. British
    Columbia
, 2003 BCCA 658, 20 B.C.L.R. (4th) 163, involving the interpretation
    of the exemption in s. 75(b) of the
Social Service Tax Act
, for
    aircraft powered by a turbine and parts for these aircraft.  The issue in
    that case was whether equipment installed on helicopters to make them useable
    for logging, heli-skiing, and aerial photography, qualified as tax-exempt
    parts.

[14]

In
330651 B.C. Ltd.
the Minister disallowed the exemption claimed
    by the company.  That decision was affirmed on appeal to the Supreme Court
    of British Columbia.  In reaching his decision, the Supreme Court judge relied
    on several dictionary definitions of the word parts.  On further appeal,
    this Court also held that the company was not entitled to an exemption.  In
    so doing, Mr. Justice Low stated:

[19]
    In my opinion, in ordinary usage of the English language there is a distinction
    to be made between parts for machines and optional attachments or accessories
    to them.  While it might be difficult to determine on which side of the distinction
    particular items fall, the items in question clearly are attachments to the
    helicopters, not essential or standard parts of them.  To apply the
Shorter
    Oxford Dictionary
definition provided by the appellant to the chambers
    judge (¶ 16 of his reasons above), the items when purchased by the appellant
    were not assembled together to make a machine.  Nor were they replacement
    parts of a previously assembled machine.  To apply the
Websters Dictionary
definitions referred to by the chambers judge in ¶ 19 of his reasons above,
    the subject items were not essential to, integral to, or constituent members
    of the helicopters when purchased.  Nor were they components of the helicopters.

[15]

In the case at bar, the chambers judge found that, in light of the
    context in which parts is used and the legislative history of the provision,
    that word should be given its ordinary dictionary meaning.  She opined that
    the intention of the legislation was to exempt equipment and machinery used
    at a mine site from sales tax, and to extend that exemption to parts for
    such equipment and machinery.  In this regard, she referred to the definitions
    of part, cited in
330651 B.C. Ltd.
:

New Shorter Oxford English Dictionary
, 4th ed.:  any of the manufactured objects
    that are assembled together to make a
machine
or instrument, esp. a motor vehicle;
    a component.

Websters New Collegiate Dictionary
, 11th ed.:  an essential portion or integral
    element; a constituent member of a machine or other apparatus also:  a spare
    part.

[16]

The chambers judge rejected the Crowns contention that to qualify
    as an exempt part an item has to be designed and manufactured to the exact
    specifications of a particular machine.  She noted that prior to February
    of 2002, the parts exemption had been more restrictive, in that it had been
    limited to parts designed for use on exempt equipment and machinery.

[17]

She also rejected the Crowns contention that what Highland Valley
    Copper had purchased from B.C. Belt Ltd. was non-exempt material which was
    later used to manufacture a conveyor belt:

[25]      The
    Supreme Court of Canada in
R. v. York Marble, Tile and Terrazzo Limited
,
    [1968] S.C.R. 140, 65 D.L.R. (2d) 449 defined the word manufacture to involve
    an activity that changed the form, quality and properties of the original
    object.

[26]
    I find on the evidence in the affidavits and cross examination transcripts
    before me that the conveyor belt was not used to make something else.  It
    retained its form, qualities and properties as a conveyor belt.  The only
    difference between the conveyor belt at the factory and the conveyor belt
    in the conveyor system was that the three pieces had been joined and installed
    so that the belt fulfilled its proper function in the system.  The method
    of installation of the conveyor should be irrelevant; it is the use of it
    that defines its character as a part for social services tax purposes.

[18]

In conclusion, the chambers judge stated:

[29]
    In my view, a textual, contextual and purposive analysis of the legislation
    leads to the same result:  the conveyor belt fits within the concept of a
    part as that term is used in Regulation 13.10.2.

[30]
    It fits within the ordinary meaning of the word as an essential or integral
    element of the conveyor and it is a manufactured object that is assembled
    together with other objects to make it a conveyor, that is, it is a component
    of it.

Analysis

[19]

Section 119(6) of the
Social Services Tax Act
, provides that
    an appeal lies from a decision of the [Supreme Court of British Columbia]
    to the Court of Appeal with leave of a justice of the Court of Appeal.  The
    test for granting leave is set out in the judgment of Mr. Justice Taggart
    in
Queens Plate Developments Ltd. v. Vancouver Assessor, Area 09
(1987),
    16 B.C.L.R. (2d) 104 (Chambers) at 109, which was adopted in
Omineca Enterprises
    Ltd. v. British Columbia (Minster of Forests)
, 2000 BCCA 591, 91 B.C.L.R.
    (3d) 74 at para. 11.  Recently, in
Ontrea Inc. v. British Columbia
(7 July 2008), No. CA036112 (B.C.C.A. Chambers), Madam Justice Levine
    summarized the factors to be considered in deciding whether leave should be
    granted (at para. 9):

[W]hether
    the proposed appeal raises a question of general importance as to the extent
    of jurisdiction of the tribunal appealed from; whether the appeal is limited
    to questions of law; whether there was a marked difference of opinion in the
    decisions below and sufficient merit in the issue put forward;
whether
    there is some prospect of the appeal succeeding on its merits, that is, are
    there substantial questions to be argued
; whether there is any clear benefit
    to be derived from the appeal; and whether the issue on appeal has been considered
    by a number of appellate bodies.

[Emphasis added]

[20]

In the present case the critical factor is whether the proposed appeal
    raises substantial questions to be argued.  In
Omineca Enterprises
,
    Madam Justice Southin opined that those words require that the grounds on
    which leave is being sought are not wholly devoid of merit:  para. 16.
    More recently, in
Joint Industry Electric Steering Committee v. British
    Columbia (Utilities Commission)
, 2005 BCCA 330, 42 B.C.L.R. (4th) 245,
    both Mr. Justice Hall (at para. 93), and Madam Justice Levine (at para. 99),
    opined that there is no substantial difference between a substantial question
    to be argued and some prospect of the appeal succeeding on its merits.
    Appeals are taken against orders, not reasons for judgment:
Jiwan v. Davis
    & Co.
, 2008 BCCA 494 at para. 38.  Therefore, the question I must
    answer is whether there is some prospect that the Crown will be able to persuade
    a division of this Court to set aside the order of the chambers judge that
    allowed Teck Comincos appeal from the Ministers decision.

[21]

The Crown, in its memorandum, says that it has been able to identify
    the following errors of law in the chambers judges reasons:

a)
    it was wrong to pick one of several inconsistent dictionary meanings of the
    word parts; it was necessary instead to find the plain language meaning,
    in common commercial use;

b)
    it was wrong to read the word parts of [
sic
] out of the context of
    parts purchased or leased for use on exempt machinery.  The word parts has
    a clear meaning when used in a section which refers to parts for machinery.

c)
    it was wrong to expand the exemption to all expenses incurred to purchase
    TTP for use in repairing and maintaining exempt machinery by reading parts
    as TTP used to make components of a machine in the course of repairing a machine;

d)
    it was wrong:

i)
    to consider that the distinction between an exempt part and bulk material
    was whether an item had been manufactured to as finished a state as it could
    be for transportation purposes; and

ii)
    to consider that any manufactured item that could be made into a part was
    a part in the context of Division 13.

e)
    it was wrong to consider the Minister of Finances explanation for the amendment
    of Paragraph 77(c) of the
SSTA
or the introduction of s. 13.10.2(1)
    of the Regulation in 2002 as evidence that the Regulation was intended to
    exempt expenses to purchase bulk material to be used in the repair and maintenance
    of machinery from [provincial sales tax];

f)
    it was wrong to interpret s. 79.1 of the
SSTA
as not restricting the
    scope of the [production machinery and equipment] exemption.

[22]

The essence of the Crowns submission, as developed both in its memorandum
    and in oral submissions, is that an item is an exempt part only if it is
    capable of being used as a spare part without being modified.  The Crown says
    that even if the replacement belt for Conveyor #2-2 had been shipped to the
    mine site in one piece, it would still not be a part because of what had
    to be done to install it.  In the Crowns view what occurred here is that
    Highland Valley Copper purchased bulk material and used it to make what became
    a part, in the sense a component.  By reason of s. 79.1 of the
Act
,
    such bulk material is not tax exempt.

[23]

The Crown also takes the position that to be a tax-exempt part an
    item must, prior to being purchased, have been manufactured and available
    in the market place, ready for installation  what I would call an off-the-shelf
    purchase.  It says any item that is custom ordered for use on tax-exempt equipment
    or machinery is taxable.  The Crown draws a distinction between the replacement
    conveyor belt in this case, and, for example, a generic fan belt purchased
    from existing stock, and installed in a tax-exempt truck.

[24]

The Crown submits that by interpreting parts to include bulk material,
    the chambers judge has expanded the scope of the parts exemption, and that
    this will have a significant impact on government revenues.  In this regard,
    the Crown filed an affidavit by the Director of the Appeals and Litigation
    Branch of the Ministry of Small Business and Revenue, which refers to exemptions
    that are currently being claimed for a wide variety of items including steel
    pipe and fittings, air and oil filters, bearings and bushings, explosives,
    saw teeth, tires, hoses, and roller chains.  In some cases, refund claims
    in the hundreds of thousands of dollars have been submitted.

[25]

Teck Comincos position is that there is no possibility that this appeal
    will succeed.  It says that the chambers judges decision is well reasoned,
    and consistent with the authorities.  It further says that this case is restricted
    to its own facts, and that no single decision can resolve the question of
    what is, or is not, a tax-exempt part.

[26]

In considering whether leave sought be granted, I have found instructive
    the following statements by Lord Halsbury, L.C.:

[The
    requirement of leave to appeal] is intended as a check to unnecessary or frivolous
    appeals.

Lane
    v. Esdaile
, [1891] A.C. 210 (H.L.)
    at 212

[E]very judgment must be read as applicable to the particular
    facts proved, or assumed to be proved, since the generality of the expressions
    which may be found there are not intended to be expositions of the whole law,
    but governed and qualified by the particular facts of the case in which such
    expressions are to be found.  a case is only an authority for what it actually
    decides.

Quinn v. Leathem
, [1901] A.C. 495 (H.L.) at 506

[27]

A judge hearing a leave application serves a gatekeeper function; his
    or her task is to ensure that judicial resources are not expended on matters
    that do not merit the attention of a division of the Court.  One situation
    in which leave is not warranted is when there is no prospect that the order
    being challenged will be reversed on appeal.  This is such a case.

[28]

For ease of reference I will repeat paragraph 26 of the chambers judges
    reasons, which I take as being the crux of her decision:

[26]
    I find on the evidence in the affidavits and cross examination transcripts
    before me that the conveyor belt was not used to make something else.  It
    retained its form, qualities and properties as a conveyor belt.  The only
    difference between the conveyor belt at the factory and the conveyor belt
    in the conveyor system was that the three pieces had been joined and installed
    so that the belt fulfilled its proper function in the system.  The method
    of installation of the conveyor should be irrelevant; it is the use of it
    that defines its character as a part for social services tax purposes.

[29]

In my view, there is no prospect that a division of this Court will
    disagree with those findings of fact, and the legal conclusion that this particular
    replacement conveyor belt is a part for the purpose of Regulation 13.10.2(1).
    I see no merit in the Crowns submission that Highland Valley Copper purchased
    taxable bulk material (i.e., supplies) that it then used to make a component
    for Conveyor Belt #2-2.

[30]

Further, I do not accept the Crowns submission that this appeal should
    be allowed to go forward on a question of principle, i.e., on the basis that
    the chambers judge has interpreted the exemption in Regulation 13.10.2(1)
    to mean that anything that goes into a tax-exempt piece of equipment or machinery
    will be considered a tax-exempt part.  In light of the facts, that is not
    what the chambers judge decided.

[31]

I accept that the Crown has legitimate concerns regarding the interpretation
    and application of Regulation 13.10.2(1).  However, those concerns will have
    to be addressed having regard to the particular facts on which an exemption
    claim is based.  It would be unfair to require Teck Cominco to bear any costs
    relating to an appeal when there is no prospect that a decision by this Court
    would affect the exemption it has successfully claimed on one particular item.

Conclusion

[32]

Leave to appeal is refused.

The Honourable
    Mr. Justice Frankel

Correction - January 12, 2009: the word "Hyland"
    was replaced with the word "Highland", throughout.  The correction
    has been incorporated into this replacement judgment."