COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Charlie,

2008
          BCCA 44

Date: 20080131

Docket: CA035344

Between:

Regina

Appellant

And

Martin
    Patrick Charlie

Respondent

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Saunders

The
          Honourable Mr. Justice Frankel

P.A.
          Eccles

Counsel for the Appellant

L.K.
          Mirsky

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

15 January 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

31 January 2008

Written
          Reasons by
:

The
          Honourable Mr. Justice Frankel

Concurred
          in by:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Saunders

Reasons
    for Judgment of the Honourable Mr. Justice Frankel:

Introduction

[1]

The Crown seeks leave to appeal, and if leave is granted, appeals an
    18-month conditional sentence order imposed on Mr. Charlie by Judge Gulbransen,
    of the Provincial Court of British Columbia, following a plea of guilty to
    a charge of possession of cocaine for the purpose of trafficking.  The sentencing
    judges reasons are indexed as 2007 BCPC 296.

[2]

When Mr. Charlie committed this offence, he was serving a first conditional
    sentence imposed as a result of his conviction on drug-related charges.

[3]

The Crown raises two grounds.  First, it submits that the sentencing
    judge erred in treating the fact that the original conditional sentence was
    reinstated after the commission of the present offence as a matter favourable
    to Mr. Charlie.  Second, it says that in considering the application of s.
    718.2(e) of the
Criminal Code
, R.S.C. 1985, c. C-46, the sentencing
    judge placed undue weight on Mr. Charlies aboriginal background.  Section
    718.2(e) provides:

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

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

Factual Background

[4]

In the early morning hours of October 16, 2005, a member of the Royal
    Canadian Mounted Police stopped a vehicle being driven by Mr. Charlie for
    making a left turn without signalling.  The officer saw a cellular telephone
    on the passenger seat.  Upon checking Mr. Charlies name by means of a police
    computer, the officer discovered that Mr. Charlie was serving a conditional
    sentence with a condition that he not possess a cellular telephone, or be
    in a vehicle with one.  At this point, Mr. Charlie was detained for breaching
    the conditional sentence order.  In searching Mr. Charlies vehicle, the officer
    found 30 packages of rock cocaine (total weight  6.65 grams); 16 packages
    of heroin (total weight  3.55 grams); three packages of methamphetamine (total
    weight  0.75 grams); and two cellular telephones.  Mr. Charlie had $760.00
    in his pocket, and a further $320.00 in his wallet.  The drugs had a value
    of approximately $1,200.00.  Mr. Charlie was released by the police on a promise
    to appear.  Sometime later, an information was sworn charging him with three
    counts of possession of a controlled substance for the purpose of trafficking;
    i.e., a separate count for each drug.

[5]

As the sentencing judge noted in paragraph 1 of his reasons, the facts
    disclosed that Mr. Charlie:

[W]
as part of an operation which is colloquially
    called a dial-a-dope operation; he was the driver who would go places and
    deliver the drugs to people who phoned for them. He was kind of a travelling
    salesman for drugs, certainly not the main operator of the business.

[6]

On the day Mr. Charlie was stopped he was subject to a nine-month conditional
    sentence order imposed on April 8, 2005, in respect of his conviction on three
    drug charges arising out of his involvement in another dial-a-dope operation.
    He spent 14 weeks in custody before this sentence was imposed.  That is his
    only previous conviction.

[7]

The April 8, 2005 order contained a number of conditions in addition
    to the ones prohibiting Mr. Charlie from possessing a cellular telephone or
    being in a motor vehicle in which there is a cellular telephone.  These included
    a house arrest provision requiring Mr. Charlie to remain inside his residence
    24 hours a day except for work or school related purposes, medical appointments,
    etc.  This curfew was in effect for five months.  While subject to this curfew,
    Mr. Charlie was required to present himself at the front door of his residence
    at the request of a police or corrections officer.  This curfew expired approximately
    five weeks before Mr. Charlie was again found trafficking drugs.

[8]

After receiving the police report regarding the events of October 16,
    2005, the Crown obtained a warrant for Mr. Charlies arrest.  Mr. Charlie
    turned himself in on December 8, 2005.  He appeared that day before a judge
    of the Provincial Court who released him on $2,000.00 cash bail, with conditions
    akin to those in the April 8, 2005 conditional sentence order, including a
    curfew.

[9]

On April 25, 2006, Mr. Charlie appeared before a judge of the Provincial
    Court pursuant to s. 742.6 of the
Criminal Code
on the breach
    allegation.  Mr. Charlie admitted to the breach.  The judge reinstated
    the conditional sentence order and extended it to May 30, 2006.  The house
    arrest condition was varied so that it remained in effect throughout the term
    of the extended order.

[10]

The drug charges arising from the events of October 16, 2005, came
    before the Provincial Court on April 18, 2007.  Mr. Charlie entered a plea
    of guilty to possession of cocaine for the purpose of trafficking.  At the
    request of his counsel, sentencing was adjourned for the preparation of a
    pre-sentence report and a technical suitability report with respect to the
    use of electronic monitoring.

[11]

The sentencing hearing took place on July 26, 2007.  The parties agreed
    that, although Mr. Charlie had pleaded guilty only to the cocaine-related
    charge, the other drugs seized from his vehicle were to be considered by the
    sentencing judge in deciding on the appropriate punishment.

[12]

At the time of sentencing, Mr. Charlie was 25 years old.  He is a member
    of the Hesquiaht First Nation, located near Tofino, on Vancouver Island.
    As noted by the sentencing judge, Mr. Charlies background is a sad one.
    He was raised by a single mother who had a drinking problem, and was physically
    abused by his stepfather.  He has never met his father.

[13]

Under the heading Attitude / Understanding Regarding the Offence
    the pre-sentence report states:

Martin
    advised that a former associate introduced him into the drug trade.  He advised
    that for a few years it became part of his lifestyle.  He advised that the
    lure of easy money made it difficult to quit dealing drugs.  Martin advised
    that he has made significant changes in his associates and priorities.  He
    expressed a strong desire to refrain from further criminal activity.

[14]

The report further indicates that Mr. Charlie resides with his partner
    in Cloverdale, where they live in a basement suite with their two-year-old
    daughter.  His partner describes their relationship as positive and supportive,
    and Mr. Charlie as a committed father.

[15]

Mr. Charlie has a Grade 12 education.  At the time the report was prepared
    he had been employed for three months with a construction company.  The owner
    of the company described Mr. Charlie as a reliable worker.  Letters provided
    to the sentencing judge confirm that Mr. Charlie is a member in good standing
    of a trade union, earning approximately $20.00 per hour, plus benefits.

[16]

Under the heading Summary and Proposed Intervention, the report states,
    in part:

Martin
    advised he has made significant changes in his lifestyle and is confident
    he will not return to criminal activities.  He is gainfully employed in the
    construction trade and has the opportunity to continue with a company that
    he enjoys working for.

Martin
    expressed a desire not to be away from his family.  He added that being placed
    on a restrictive curfew for the period of his bail supervision has not been
    problematic for him.  Family members support Martins lifestyle changes and
    would like him to continue attending regular family gatherings and activities.

Although
    Martin has a history of alcohol abuse, significant others relate that he rarely
    consumes the substance and abstains from drug use.  Should Martin receive
    a community disposition he may be directed to complete the CORE Substance
    Abuse Management program offered by community corrections.  The next program
    offered at the Langley Office is scheduled for September, 2007.

The
    report notes that Mr. Charlies residence meets the requirements for electronic
    monitoring, and recommends a number of conditions that would be suitable should
    a non-custodial sentence be imposed.

[17]

The Crowns position was that a period of actual incarceration in the
    range of 18 months to two years was appropriate.  Crown counsel submitted
    that the fact that Mr. Charlie had become involved in a dial-a-dope operation
    for the second time while under a conditional sentencing order was an aggravating
    factor, and that deterrence should be given precedence over rehabilitation.

[18]

Mr. Charlies counsel submitted that a conditional sentence in the
    range of 18 months to two years less one day was appropriate.  She stressed
    that since October, 2005, Mr. Charlies has been focused on providing
    for his family.  She noted that he has the support of his family, friends,
    and employer.

[19]

While acknowledging that dial-a-dope operations involve serious criminal
    offences, the sentencing judge recognized that it was his responsibility to
    craft a sentence which imposes a just sentence in these particular circumstances:
    para. 4.  In choosing to give rehabilitation primacy, the sentencing judge
    stated:

[10]      I think society has, as a goal, that people raise families and
    raise children and form those units.  It is something that is very important
    for rehabilitation.  Those two factors, a job, a regular job, getting decent
    money, working hard and raising a family, having the support of a spouse are
    ways in which people live normal lives as opposed to the life that perhaps
    Mr. Charlie was living before.  That is a very strong signal to me that this
    man is well on the way to rehabilitation, has a strong potential for rehabilitation.
    So I must, in these circumstances, give significant weight to that rehabilitation.

[20]

With respect to the fact that Mr. Charlie re-offended while subject
    to a conditional sentencing order, the sentencing judge stated:

[11]      Then I have to consider, though, the fact that he was on a conditional
    sentence.  What can I do in relation to that?  I have to consider that because
    my normal practice is, One conditional sentence and that's it, Im not going
    to give another one.  Most judges are fairly strict when people violate their
    conditional sentences.
I note that Mr. Charlies conditional sentence
    wasn't terminated, that must mean something.  It is something favourable to
    him.

[12]      One other thing thats quite important in this case in terms
    of deciding whether a conditional sentence should be imposed is that would
    it endanger the community to release him on a conditional sentence?  Well,
    clearly, in my view, it would not.  For a man for the last 20 months or so,
    21 months, has been working hard, looking after his family, demonstrating
    to all who can see him that he can lead a normal life and not commit any crimes,
    despite the fact that he committed a crime while on a CSO, shows me that he's
    changed his ways considerably and there is little likelihood that hell commit
    an offence in the future.  I can't truly predict the future. Ive made mistakes
    in the past, Ill make them again Im sure. I don't know for sure he wont
    commit another offence, but my judgment is, my assessment is the probabilities
    are, given that hes got a family, hes got work, hes got the support of
    his friends, he's not in the drug lifestyle, it is unlikely hell commit further
    offences.  The only offences on his record are drug offences, so in those
    circumstances, those prerequisites are met.

[Emphasis added]

[21]

With respect to s. 718.2(e) of the
Criminal Code
and
    Mr. Charlies aboriginal background, the sentencing judge said this:

[16]      It seems to me that in looking at the various issues that I
    have to give weight to and sentencing principles in this case, is that Mr. Charlie's
    aboriginal background, unfortunate as it is, has been addressed by him personally
    in many significant ways.  He has a daughter that he wants to care for; hes
    not going to, in any way, make that daughters life like his was.  He has
    a spouse whom he cares for; he's not going to make his spouses life like
    his mothers life was.  Hes got a job.  He is not someone who is likely to
    go in and out of jail.  I think it's important to point out, its not as if
    aboriginal people are all oppressed people or problematic people, there are
    many excellent citizens who have aboriginal backgrounds, whove got good jobs
    and help people and work hard and never get in trouble.  His background is
    similar to the kinds of backgrounds that come up in this court very often
    with aboriginal people.  So its a long way of saying
that I think its
    a very important factor in this sentence, despite his prior conviction, of
    his aboriginal background
.

[Emphasis added]

[22]

In conclusion, the sentencing judge gave the following reason for not
    sentencing Mr. Charlie to a period of actual incarceration:

[17]      Having said all that, in my view the principles of sentencing
    can be met by imposing a conditional sentence, despite the prior conviction,
    given my confidence that Mr. Charlie is pretty well on the way to rehabilitation.
    If I possibly can, I ought not to prevent that from continuing.

[18]      Judges sometimes have to take chances.  This is the kind of
    case where Im comfortable taking a chance.  As I said, I cant predict the
    future very well, I cant predict it, other than taking the probabilities
    into account, and the probabilities here look good.
In my view it would
    be unjust not to impose a conditional sentence, given the fact that the prospect
    of rehabilitation is so great despite the other negative factors
;
so
    for all those reasons I will impose a conditional sentence.

[Emphasis added]

[23]

In the result, the judge sentenced Mr. Charlie to a period of incarceration
    of 18 months to be served in the community.  The order includes an 8:00 p.m.
    to 5:00 a.m. curfew that expired on January 26, 2008.  While the curfew was
    in effect, Mr. Charlie was subject to electronic monitoring.  He was
    required to present himself at the door of his residence when requested by
    a corrections officer, peace officer, or supervisor, to verify compliance
    with the electronic monitoring and curfew.

Analysis

Reinstatement of the Previous Conditional Sentencing
    Order

[24]

The Crown submits that the sentencing judge gave undue weight to the
    fact that Mr. Charlies previous conditional sentence had not been terminated.
    It says it was not afforded an opportunity to address why the previous order
    was reinstated and that there was nothing before the sentencing judge as to
    why this occurred.

[25]

In my view, it cannot be said that the sentencing judge erred in the
    way he dealt with the reinstatement of the original conditional sentence.
    Having regard to the entirety of the reasons for sentence, I take the sentencing
    judges comments as indicating only that he considered the fact that another
    judge had been prepared to permit Mr. Charlie to continue to serve his original
    sentence in the community.  He found this to be an indication of Mr. Charlies
    potential for rehabilitation.  In the end, it was Mr. Charlies actual positive
    efforts with respect to rehabilitation during the 21 months since his second
    apprehension that the sentencing judge considered to be a strong mitigating
    factor.  He was clearly entitled to take those efforts into account.

Mr. Charlies Aboriginal Background

[26]

The Crown submits that the circumstances here are such that rehabilitation
    should not have trumped the principles of deterrence and denunciation.
    While accepting that Mr. Charlies aboriginal background warrants consideration,
    the Crown says that the sentencing judge gave it undue emphasis.  As Mr. Charlie
    chose to re-involve himself in serious criminal activity while serving a conditional
    sentence for similar offences, the Crown says this is a case in which both
    aboriginal and non-aboriginal offenders should be treated alike.  In this
    regard, it points to the following passage from the judgment of Mr. Justice
    Iacobucci in
R. v. Wells
, [2000] 1 S.C.R. 207, 2000 SCC 10:

44
    Let me emphasize that s. 718.2(e) requires a different
methodology
for assessing a fit sentence for an aboriginal offender; it does not mandate,
    necessarily, a different
result
.  Section 718.2(e) does not alter the
    fundamental duty of the sentencing judge to impose a sentence that is fit
    for the offence and the offender.  Furthermore, in
Gladue
, as mentioned
    the Court stressed that the application of s. 718.2(e) does not mean
    that aboriginal offenders must always be sentenced in a manner which gives
    greatest weight to the principles of restorative justice and less weight to
    goals such as deterrence, denunciation, and separation (at para. 78).  As
    a result, it will generally be the case,
as a practical matter
, that
    particularly violent and serious offences will result in imprisonment for
    aboriginal offenders as often as for non-aboriginal offenders (
Gladue
,
    at para. 33).  Accordingly, I conclude that it was open to the trial judge
    to give primacy to the principles of denunciation and deterrence in this case
    on the basis that the crime involved was a serious one.

[Underlining in original]

[27]

Dial-a-dope offences clearly fall on the serious end of the spectrum
    Most recently, in
R. v. Tran
, 2007 BCCA 405, 245 B.C.A.C. 171,
    this Court, in allowing a Crown appeal, set aside a conditional sentence of
    two years less one day and substituted a sentence of two-years incarceration.
    In so doing, Madam Justice Saunders stated:

[34]

This case involves a dial-a-dope cocaine marketing
    scheme for profit only.  Mr. Tran is not an addict.  He has a history of
    offences of similar nature.  This Court has discussed dial-a-dope circumstances
    in the past and noted that it is a more aggravated form of the drug business.
    By its nature it has a degree of sophistication and marketing to sustain the
    business, indicating a significant level of committed endeavour, and it poses
    extra difficulty for police investigation.  Mr. Tran was a part of this scheme,
    even if he was not its main player.

[35]

Cocaine, as noted by courts repeatedly, is a highly addictive
    drug.  On a daily basis courts see the negative toll it takes on people who
    use it.  By engaging in the business of dispensing cocaine in an operation
    such as this, Mr. Tran has lent himself to misery in his community. And he
    has done so for profit when he has been earlier warned by the courts, through
    his prior conviction and incarceration, not to do so.

[36]
    In my view, notwithstanding his family circumstances, the sentence must speak
    to deterrence and denunciation.  I do not consider that the sentence, in the
    circumstances, accomplishes that goal.

[28]

However, as each case must be decided on its own facts, it is also
    clear that not all those convicted of drug offences committed while serving
    a conditional sentence need to be incarcerated.
R. v. Bui
,
    2001 BCCA 471, 158 B.C.A.C. 21, is such a case.  Ms. Bui pleaded guilty to
    possession of four flaps (i.e., 1.6 grams) of cocaine for the purpose of trafficking.
    These drugs were found during a search of her residence.  At the time, she
    was nearing the end of a 15-month conditional sentence for possession of heroin
    and cocaine for the purpose of trafficking.  Having been given one-years
    credit for time spent in pre-trial custody, she was sentenced to two years
    in jail.

[29]

On appeal, this Court substituted a conditional sentence of two years
    less one day.  In so doing, Saunders J.A., having determined that the sentencing
    judge had misapprehended the facts with respect to the extent of Ms. Buis
    involvement in trafficking, stated:

[11]
    What then is a fit sentence?  I agree with the sentencing judge that commission
    of an offence while on a conditional sentence is an aggravating factor.  In
    all but the rarest of cases I would not expect a conditional sentence to be
    followed by another conditional sentence.  This is, however, in my view, one
    of those rare cases.

[12]
    Ms. Bui has already endured what the trial judge said was equivalent to a
    years incarceration.  The tripling of the time spent illustrates that it
    was, in other words, hard time indeed.  This time undoubtedly would have
    specific deterrent effect upon Ms. Bui and general deterrent effect so far
    as the circumstances become known in the community.  Recognizing that, the
    efforts made towards rehabilitation by Ms. Bui since August 1999 [when she
    was arrested] and the investment of the community in that process, in my view,
    a second and likely last conditional sentence may be countenanced, in accordance
    with the provisions in the
Criminal Code
that direct the Courts
    to sentence other than to jail if such can be done in accordance with the
    principles of sentencing.

[30]

Whether Mr. Charlies sentence is unfit because too much emphasis
    was placed on his aboriginal background is an arguable point.  However, it
    is not one that I need decide because, even if the sentencing judge erred
    as alleged by the Crown, I would not interfere with the sentence he imposed.

[31]

Before being sentenced, Mr. Charlie spent some 21 months in the community
    following the commission of the present offence.  In light of the positive
    changes Mr. Charlie had made to his life, the sentencing judge was of
    the view that there was little likelihood that hell commit an offence in
    the future.  Another six months has passed since Mr. Charlie was sentenced.
    There is no suggestion that Mr. Charlie has done other than continue to be
    a productive and law-abiding member of the community.

[32]

More than two years has passed since Mr. Charlie re-involved himself
    in drug trafficking.  Why this case has taken this long to reach this point
    is not entirely clear, and I attribute no fault to either party.  However,
    it is a fact that during this period Mr. Charlie has been subject to
    stringent conditions, and is a much different person today than he was in
    October, 2005.

[33]

This Court has been reluctant to allow a Crown sentence appeal and
    substitute a custodial sentence for a non-custodial one when to do so would
    interfere with an offenders positive efforts at rehabilitation.  Such was
    the situation in
R. v. Morphy
(1974), 21 C.C.C. (2d) 62 (B.C.C.A.).
    Mr. Morphy was convicted of possession of marihuana for the purpose of trafficking.
    Having spent three months in pre-trial custody, he was sentenced to pay a
    fine, and placed on probation for three years.  The Crowns appeal came on
    for hearing six months later.  Although of the view that a jail sentence should
    have been imposed, this Court declined to do so.  In this regard, Mr. Justice
    McFarlane stated (at 64):

Having regard to the circumstances outlined and particularly
    the fact that this respondent, with a favourable pre-sentence report, continues
    in steady employment and is not likely to repeat his offence, I think the
    Court should be most reluctant to send him to prison now.

[34]

R. v. Nelson
, [1992] Y.J. No. 171 (C.A.) (QL), is also apposite.
    Mr. Nelson had been sentenced to three months in jail to be followed
    by three-years probation.  The Crowns sentence appeal was not heard until
    six months later.  In dismissing the appeal, Mr. Justice Hinds said:

[37]
    Absent special circumstances, the court is often reluctant to reincarcerate
    a person, particularly if that person is satisfactorily performing terms of
    a probation order and is making progress towards rehabilitation.  In this
    case there was an opportunity for the sentence appeal to have been brought
    on for hearing in June, 1992 when a division of this Court was sitting in
    Whitehorse, or in July or August when a division of this Court was sitting
    for one week in each of those months in Vancouver to deal with urgent matters
    during long vacation.  Unfortunately the Crown, which had the responsibility
    for this appeal, did not apply for it to be heard during the foregoing months.
    It was not heard until October, 1992, several months after the respondent
    had been released from prison.  In my opinion, it would not have been just
    in the circumstances of this case to reincarcerate the respondent.

[35]

The concern expressed in
Morphy
and
Nelson
applies here.  It would be unjust, and counterproductive not only to Mr. Charlies
    interests, but those of society at large, to interfere with his successful
    efforts at rehabilitation by sentencing him a period of incarceration at this
    time.  It is on this basis alone that I would dismiss this appeal.

Conclusion

[36]

I would grant leave to appeal and dismiss the appeal.

The Honourable Mr. Justice Frankel

I AGREE:

The Honourable Madam Justice Rowles

I AGREE:

The
    Honourable Madam Justice Saunders


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Richard
          v. H.M.T.Q. (British Columbia),

2008
          BCCA 53

Date: 20080201

Docket: CA035331

Between:

William
    Joseph Richard

Appellant

(
Plaintiff
)

And

W.H.M.

Respondent

(
Plaintiff
)

And

Her
    Majesty the Queen in Right

of
    the Province of British Columbia

Respondent

(
Defendant
)

Before:

The
          Honourable Madam Justice Levine

The
          Honourable Madam Justice Kirkpatrick

The
          Honourable Mr. Justice Tysoe

Oral Reasons for Judgment

S.
          Tucker

D.
          Klein

Counsel for the Appellants

D.C.
          Prowse, Q.C.

W.
          Branch

K.
          Horsman

Counsel for the Respondent Province of British Columbia

A.
          Murray

Counsel for the Public Guardian and Trustee

R.N.
          McFee, Q.C.

V.
          Allard

Counsel for Poyner Baxter

Place
          and Date:

Vancouver, British Columbia

1 February 2008

[1]

LEVINE, J.A.
: On November 9, 2007, Rowles J.A. granted leave to appeal
    the order of Butler J. made July 23, 2007, removing Poyner Baxter LLP as counsel
    for the class in this class proceeding.  She deferred the question of the
    standing of Poyner Baxter LLP to bring the appeal to the panel that hears
    the appeal.

[2]

The representative plaintiffs, W.H.M. and William Joseph Richard, apply
    pursuant to s. 9(6) of the
Court of Appeal Act
, R.S.B.C. 1996,
    c. 77, to vary the order of Rowles J.A. deferring the question of Poyner Baxter
    LLPs standing to the panel.  They also bring an application to quash the
    appeal on the ground that it is an abuse of the Courts process as there is
    no appellant with standing to bring the appeal.

[3]

The background of this proceeding is outlined in detail in the reasons
    for judgment of Butler J. (2007 BCSC 1170), and of Rowles J.A. on the leave
    application.

[4]

In brief compass, the action was commenced by Poyner Baxter LLP in
    the name of Mr. Richard, as plaintiff, on behalf of himself and all those
    living persons who were sexually, physically, emotionally, and psychologically
    abused while resident at the Woodlands School, a facility operated by the
    Province for the care and control of mentally handicapped persons and persons
    in need of psychiatric care.  Woodlands School operated from 1878 to 1996.
    The action was certified as a class proceeding in March 2005, and W.H.M. was
    appointed representative plaintiff.  Poyner Baxter LLP was appointed as counsel
    for the class, and entered into settlement negotiations.

[5]

In 2005, this Court decided in
Arishenkoff v. British Columbia
,
    2005 BCCA 481, 47 B.C.L.R. (4
th
) 1, that the Crown could not be
    held liable for torts alleged to have been committed by a servant or agent
    of the Crown before August 1, 1974, the date the
Crown Proceedings Act
,
    S.B.C. 1974, c. 24, came into force.

[6]

Arishenkoff
put in question the right of action by former residents
    of Woodlands School who were resident and whose claims of abuse predate August
    1, 1974.  W.H.M. is in that class.  Mr. Richard was resident and claims he
    was abused after August 1, 1974.

[7]

Settlement negotiations continued, and the Province made an offer that
    would compensate only those persons who were abused after August 1, 1974.

[8]

W.H.M. sought advice from Klein Lyons.  He concluded that the settlement
    should be rejected.  Mr. Richard wished to pursue the settlement.

[9]

Poyner Baxter LLP brought an application to create two sub-classes
    of plaintiffs:  those who alleged abuse before August 1, 1974, and those who
    alleged abuse after that date.  That application was refused, and Mr. Richard
    was added as a second representative plaintiff.  The result was that Poyner
    Baxter LLP was now receiving conflicting instructions from the two representative
    plaintiffs.

[10]

In February 2007, Klein Lyons, acting on behalf of W.H.M., filed an
    application for an order removing Poyner Baxter LLP as class counsel, on the
    ground that they acted improperly in attempting to deal with the representative
    plaintiffs conflicting instructions.

[11]

Poyner Baxter LLP opposed the application, and brought an application
    for orders amending the class definition to include only those persons who
    alleged abuse after August 1, 1974, removing W.H.M. as representative plaintiff,
    scheduling a court hearing to consider the proposed settlement, and in the
    alternative, that renewed consideration be given to creating two subclasses:
    a pre Arishenkoff and a post Arishenkoff class.

[12]

Mr. Justice Butler granted the motion removing Poyner Baxter LLP as
    class counsel, dismissed their application to amend the class definition and
    remove W.H.M. as representative plaintiff, and adjourned generally the applications
    to schedule a hearing to consider the proposed settlement or alternatively
    to create two subclasses.

[13]

Poyner Baxter LLP applied for leave to appeal from the order of Butler
    J. removing them as class counsel and dismissing the applications to amend
    the class definition and remove W.H.M. as representative plaintiff.  They
    also applied to be substituted as the appellant for W.H.M. and Mr. Richard.

[14]

In an affidavit filed on the application for leave to appeal, Gregory
    Daniel Schiller deposes that after the decision of Butler J., Mr. Richard
    retained Klein Lyons, and instructed them to move forward with the class proceeding.

[15]

Before the application for leave to appeal was heard, Klein Lyons filed
    a Notice of Change of Solicitor in the class proceeding, and informed Poyner
    Baxter LLP that they had been instructed by W.H.M. and Mr. Richard to proceed
    with the litigation.

[16]

Madam Justice Rowles granted leave to appeal.  She found that the question
    of the role of counsel in a class proceeding was of significance to this proceeding
    and to the practice and should be given consideration by this Court.  She
    did not decide Poyner Baxter LLPs application to be substituted as the appellant,
    but deferred the question of standing to the panel that hears the appeal.
    The appeal is scheduled for hearing on February 11, 2008.

[17]

Section 9(6) of the
Court of Appeal Act
provides:

The
    court may discharge or vary any order made by a justice other than an order
    granting leave to appeal under section 7.

[18]

The test applied by the court on such an application was set out by
    Lambert J.A. in
Haldorson v. Coquitlam (City)
(2000), 149 B.C.A.C.
    at paras. 6-7, 2000 BCCA 672:

It comes to this: that the review hearing is not a hearing
    of the original application as if it were a new application brought to a division
    of the court rather than to a chambers judge, but is instead a review of what
    the chambers judge did against the test encompassed by asking:  was the chambers
    judge wrong in law, or wrong in principle, or did the chambers judge misconceive
    the facts.  If the chambers judge did not commit any of those errors, then
    the division of the court in review should not change the order of the chambers
    judge.

[19]

W.H.M. argues that Rowles J.A. erred in principle in deferring the
    issue of standing to the panel that hears the appeal.  He says that the appeal
    cannot go forward without an appellant, and W.H.M. and Mr. Richard have instructed
    their counsel, Klein Lyons, to abandon the appeal.  Their application to quash
    the appeal as an abuse of process is based on the same submissions; essentially,
    that an appeal where the named appellant does not wish to proceed, and no
    other person has been granted standing, is an abuse of process.

[20]

It is manifest from the entire background of this issue, from the reasons
    of Rowles J.A. on the application for leave to appeal, and from submissions
    of counsel for W.H.M. and Mr. Richard, that the substantive issues on the
    appeal are intertwined with and inseparable from the question of the standing
    of Poyner Baxter LLP to bring the appeal.

[21]

The appeal concerns the obligations and responsibilities of class counsel
    to the representative plaintiffs and to the class as a whole.   Those issues
    include such questions as the obligations surrounding the receipt of instructions,
    decisions concerning the course of the litigation, and how counsel is to proceed
    in the face of conflicting instructions and loyalties.

[22]

The applicants arguments opposing Rowles J.A.s order deferring the
    issue of standing, and that it is an abuse of this courts process to continue
    an appeal when the standing issue has not been decided, directly confront
    the issues to be addressed on the appeal.  In that case, it is not an error
    of principle to defer the decision on standing to the panel, where it can
    be dealt with in the full factual and legal context.  There is ample precedent
    in the practice and procedure of this court, and in the authorities, for a
    single justice deferring a question arising in chambers to a panel where the
    question is intertwined with substantive questions that will arise on the
    appeal:  see for example,
Re Rewers; Guardian Insurance Company of Canada
    v. Auer et al.
(1989), 38 B.C.L.R. (2d) 34 at 38 (C.A.), and
R.
    v. Lewis
, 2007 BCCA 539 (chambers).  Madam Justice Rowles followed
    this established practice in ruling as she did; indeed, in the circumstances
    it is difficult to see how she could have done otherwise.

[23]

If it is not an error to defer the question of standing to the panel
    hearing the appeal, it cannot be an abuse of the courts process to continue
    the appeal on the ground that Poyner Baxter LLP does not have standing to
    bring it.  All of the arguments concerning the standing of Poyner Baxter LLP,
    and whether it is an abuse of process for an appeal to proceed in these circumstances,
    are open to the applicants on the hearing of the appeal.

[24]

Much has been written by learned judges and scholars on the complexity
    of class proceedings.  This proceeding has raised some unusual and difficult
    legal issues as it has unfolded, and seeking the assistance of the court,
    including the appeal process, is entirely consistent with the jurisprudence,
    not only in the United States, which has been cited by both parties, but of
    the Supreme Court of Canada in
Western Canadian Shopping Centres v.
    Dutton
, [2001] 2 S.C.R. 534 at para. 51, 2001 SCC 46, where McLachlin
    C.J. wrote, with reference to Rule 42 of the Alberta Rules of Court which
    governed class actions:

The diversity of class actions makes it difficult to
    anticipate all of the procedural complexities that may arise.  In the absence
    of comprehensive class-action legislation, courts must address procedural
    complexities on a case-by-case basis.  Courts should approach these issues
    as they do the question of whether a class action should be allowed:  in a
    flexible and liberal manner, seeking a balance between efficiency and fairness.

[25]

In my opinion, where the class action legislation does not address
    the particular procedural complexity that has arisen, the courts have the
    same role  to address the issue on a case-by-case basis.  The corollary of
    that is that those involved in the litigation are entitled to seek the courts
    direction.  It cannot be an abuse of process to do so, or for the court to
    decide to hear all of the relevant submissions before deciding an important
    issue on an appeal.

[26]

I would dismiss both the application to vary the order of Rowles J.A.,
    and the application to quash the appeal as an abuse of process.

[27]

KIRKPATRICK, J.A.
: I agree.

[28]

TYSOE, J.A.
: I agree.

[29]

LEVINE, J.A.
: The applications are dismissed.

The Honourable Madam Justice Levine


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Turcotte,

2008
          BCCA 56

Date: 20080204

Docket: CA034265

Between:

Regina

Respondent

And

Thomas
    Alexander Turcotte

Appellant

Before:

The
          Honourable Madam Justice Prowse

The
          Honourable Mr. Justice Hall

The
          Honourable Mr. Justice Frankel

Oral Reasons for Judgment

C.K.
          Aartsen

Counsel for the Appellant

O.S.
          Kuzma, Q.C.

Counsel for the Respondent

Place
          and Date:

Vancouver, British Columbia

4 February 2008

[1]

FRANKEL, J.A.
:  Thomas Alexander Turcotte appeals his conviction on
    three counts of second degree murder by Mr. Justice Holmes sitting without
    a jury.  The murders occurred at the Erhorn Ranch, located approximately 30
    kilometres from Vanderhoof, British Columbia.  All of the victims died after
    being struck in the head with an axe.  The primary issue at the trial was
    the identity of the person who wielded the axe.

[2]

This was Mr. Turcottes second trial on these charges.  At the first
    trial he was convicted by a jury.  This Court allowed his appeal from that
    conviction and ordered a new trial because the jury had been invited to infer
    guilt when Mr. Turcotte chose not to answer certain questions from the police:
    2004 BCCA 175, 184 C.C.C. (3d) 242.  A further appeal by the Crown was dismissed
    by the Supreme Court of Canada:  [2005] 2 S.C.R. 519, 2005 SCC 50.

[3]

Mr. Turcotte lived in a shack on the ranch.  He was not an employee
    of the ranch, but occasionally did some odd jobs and mechanical work for the
    owner, Robert Erhorn.

[4]

Two of the victims, Terrance Benjamin Price and Kimberley David Martindale,
    worked as ranch hands, but did not live on the property.  The third victim,
    Aaale Heikkila, lived on the ranch in a trailer with a log cabin attachment.
    He did not work at the ranch.

[5]

Robert Erhorn lived in the main ranch house.  He was in hospital the
    day the victims were attacked.

[6]

At approximately 9:30 a.m. on May 4, 2000, Mr. Turcotte arrived at
    the Royal Canadian Mounted Police detachment in Vanderhoof.  He spoke with
    Ruth Stewart, a civilian employee, at the counter.  Ms. Stewart asked what
    she could do for him, and he replied, Better get a car out to Bob Erhorns
    place and arrest me.  She asked him why, and he did not answer.  He repeated
    the same request twice more.  Ms. Stewart asked him his name and he replied,
    Tom.

[7]

Ms. Stewart asked Corporal Wayne Curle to come to the counter.  Constable
    Ross Davidson was nearby and also came to assist.  When they arrived Ms. Stewart
    said, This is Tom.  He would like us to arrest him and send a car to the
    Erhorn Ranch.  Constable Davidson asked Mr. Turcotte, Why?, but Mr. Turcotte
    chose not to answer.

[8]

Mr. Turcotte was taken to an interview room.  He declined to answer
    any questions about why a police car should be sent to the ranch or what was
    happening there.  He did, however, answer questions about officer safety.
    He said that if officers were sent to the ranch, then they would not be in
    danger. He also requested that an ambulance be sent to the ranch, and at some
    point said, Send a car out there and put me in jail.

[9]

Mr. Turcotte told the officers that there was a rifle in the truck
    he had driven to the detachment.  Later the police found a loaded semi-automatic
    rifle between the drivers and passengers seats.  The truck belonged to Mr.
    Heikkila.

[10]

The police seized the clothing Mr. Turcotte was wearing.  On later
    forensic serology and D.N.A. analysis, bloodstains on Mr. Turcottes left
    boot and lower right pant leg were matched to Mr. Price and Mr. Martindale.

[11]

Police officers were dispatched to the ranch, and arrived there shortly
    after 10:00 a.m.  Mr. Martindales body was found on the driveway near the
    main ranch house.  Mr. Prices body was in a nearby woodshed.  Both had
    sustained massive head injuries.

[12]

Mr. Heikkila was found on the driveway area near his trailer.  He also
    had a massive head injury, but was alive.  He was moaning and his head was
    covered with a coat.  Mr. Heikkila never regained consciousness and died on
    May 24, 2000.

[13]

A police investigative forensic team was dispatched to the ranch that
    afternoon.  However, before its members could complete their work, there was
    a sudden storm with rain, hail, and high winds.  The weather conditions may
    have washed away blood and obliterated or compromised evidence.

[14]

A rifle was found leaning against a tractor which was parked near a
    fork in the road leading to Mr. Heikkilas trailer.  A portable radio, still
    playing, belonging to Mr. Heikkila, and an open orange juice container
    were found near the tractor.  Mr. Turcottes fingerprints were found
    on the radio and juice container but there was no evidence as to when he handled
    them.  Mr. Heikkilas refrigerator contained similar orange juice containers.

[15]

The police conducted an extensive search of the property for the murder
    weapon.  Many axes and hatchets were seized, examined, and rejected.  Two
    months after the murders, friends of Mr. Heikkila found the murder weapon,
    a double-headed axe, on the roof of Mr. Heikkilas trailer.  The axe belonged
    to Mr. Erhorn and was normally kept in the woodshed where Mr. Prices
    body was found.

[16]

At the trial, the Crown call John Mellis, a retired member of the Royal
    Canadian Mounted Police, who was qualified as an expert in bloodstain analysis
    and crime scene investigation.  Mr. Mellis was unable to provide any opinion
    regarding the bloodstains found on Mr. Turcottes boot and pant leg.  He testified
    that one would not necessarily see a pattern of splattering on an assailants
    clothing if a victim was struck from behind with an axe.

[17]

The Crown also led evidence from several friends and acquaintances
    of Mr. Heikkila that Mr. Heikkila did not trust Mr. Turcotte and felt
    uncomfortable around him.  Mr. Heikkila had indicated to some of them that
    he intended to move away from the ranch.

[18]

Mr. Turcotte did not call a defence.

[19]

At the outset of this reason, the trial judge stated:

[2]
    The primary issue and dispute in this matter is the identity of the person
    who caused the death of the three victims.  There is no doubt that the victims
    died of the head wounds inflicted and that the infliction of those wounds
    by blows from an axe was unlawful.  It is obvious from the evidence and circumstances
    that the intentional application of force used was intended to cause the death
    of the victims, and in each case it did.

[3]
    I intend to focus my remarks, therefore, on the issue of whether the Crown
    has, by circumstantial evidence, proven the all important element of whether
    the accused is the person who committed the murder of the three victims.

[20]

The trial judge then proceeded to review and evaluate the evidence
    tendered by the Crown.  Early in his reasons he noted that the Crown had not
    alleged a motive and that lack of motive was a factor to be considered.  As
    to the burden of proof, he said this:

[7]
    The burden on the Crown is to prove beyond a reasonable doubt that the guilt
    of the accused is the only reasonable inference to be drawn from the proven
    facts.  If the facts are consistent with any rational conclusion other than
    the guilt of the accused, the burden of proof beyond a reasonable doubt residing
    upon the Crown in respect of the circumstantial evidence will not have been
    met.

[21]

With respect to the evidence of several witnesses regarding statements
    made to them by Mr. Heikkila concerning his relationship with Mr. Turcotte,
    the trial judge said this:

[34]
    The accused had no reputation for violence and no criminal record.  Erhorn
    heard from Heikkila that he suspected the accused in relation to a camera
    that had gone missing.  The combined evidence from several persons, Bob Erhorn,
    Laurie and Marjetta Valiaho, Boyd Chenoweth and Leonard Kozak support the
    suggestion that Heikkila apparently expressed distrust of the accused, felt
    it odd he never left the ranch and was uncomfortable to the point that he
    expressed an intention to move away.

[35]
    I have concern with this type of evidence, and I limit my consideration of
    it only to the context of the likelihood that Heikkila might have allowed
    the accused to handle his personal possessions like the radio, giving him
    containers of orange juice or giving him the keys and the use of his truck.

[22]

The trial judge rejected the suggestion, advanced by defence counsel,
    that Mr. Turcottes request to be arrested did not relate to what had happened
    at the ranch, but rather related to the loaded rifle in Mr. Heikkilas truck:

[46]
    In my view, however, the accused clearly linked his desire to be arrested,
    when dealing with Mrs. Stewart, with the sending of a car to the ranch and
    not with any firearm in the truck.  The references to the gun and arrest or
    keeping him in jail were later in separate comments.  Someone who had come
    upon the scene of the murders might realize that Mr. Heikkila was alive and,
    therefore, an ambulance needed.  By anyone would need much more information
    to say there was no danger to anyone attending the ranch.  That would require
    knowing who and where the murderer was.  Counsel for the accused argues it
    would just be common sense for someone who had come upon the scene of the
    murders to be asking for a police car and an ambulance and to presume that
    the murderer had gone.

[23]

On the basis of the expert opinion evidence given by Mr. Mellis, the
    trial judge rejected defence counsels suggestion that the murderer would
    have been covered with a great deal of blood.  With respect to the small amount
    of blood on Mr. Turcottes clothing, the trial judge said this:

[50]
    The blood found on the accuseds shoe and pant leg could have come from the
    transfer action by walking through blood-spattered grass.  It could come from
    transferring when making close inspection of the bodies.  It is possible the
    hail and rainstorm could have washed away evidence of blood trails in the
    grass made by blood from the axe dripping while the murderer moved from one
    area to another.

[51]
    A preliminary walk of the area, however, was conducted by the investigative
    team prior to the storm and did not disclose any obvious blood trail evidence.
    The blood spatter pattern on the wall of the Heikkila trailer and blood drops
    at the trailer entrance are indicative of blood transported from the other
    murder sites that had dripped from the axe or been thrown off by centrifugal
    force when it was swung in the proximity to Mr. Heikkila.

[24]

In response to a defence submission regarding the possible involvement
    of other persons, the trial judge stated:

[55]
    In my view, there was no basis to suggest any of these persons was a serious
    suspect, having regard to the circumstances of the murders in issue, and there
    was a complete lack of any real evidence to implicate any of them in the murders.
    I am also of the view that the police did not ignore this aspect of the investigation
    and that appropriate inquiry was made.

[25]

Upon completing his analysis of the evidence and the submissions of
    counsel, the trial judge expressed himself as follows:

[56]
    The evidence, of course, is not to be viewed piecemeal by only considering
    possible explanations of each piece of circumstantial evidence as to do so
    does not address the cumulative effect of that evidence.

[57]
    In conclusion, Mr. Turcotte, I am satisfied beyond a reasonable doubt that
    the only reasonable explanation to be drawn from the proven facts is that
    you are guilty of the three second degree murders that have been charged.

[26]

Mr. Turcotte challenges his conviction on two grounds.  He submits
    that the trial judge failed to give adequate reasons for his decision and,
    further, that, the evidence does not support the inferences drawn by the trial
    judge.

[27]

With respect to his first ground, Mr. Turcotte, citing
R. v.
    Sheppard
, [2002] 1 S.C.R. 869, 2002 SCC 26, says that at the trial
    judge failed to identify and analyse the evidence upon which he based his
    decision.

[28]

I do not accept this contention.  The basis for the conviction is clear
    from the reasons.  The trial judge reviewed the evidence in some detail, made
    specific findings of fact, and drew inferences from those facts.  He summarized
    the theory of the defence and addressed the submissions advanced on Mr. Turcottes
    behalf with respect to alleged deficiencies in the Crowns case.  In the end,
    he was satisfied by the cumulative effect of the evidence that Mr. Turcotte
    had committed the murders.

[29]

Next, Mr. Turcotte submits that, taken as a whole, there is insufficient
    evidence to support the convictions.  In other words, relying on s. 686(1)(a)(i)
    of the
Criminal Code
, R.S.C. 1985, c. C-46, he says that, the
    verdict should be set aside on the ground that it is unreasonable or cannot
    be supported by the evidence.  This argument was advanced on essentially
    the same as basis as the defence case was advanced at trial.

[30]

The scope of appellate review under this provision is well defined
    by the authorities.  Given the nature of the evidence in this case the following
    excerpt from the judgment of Mr. Justice Low in
R. v. Dhillon
,
    2001 BCCA 353, 158 C.C.C. (3d) 353 is apposite:

102
    Since the Crowns case is entirely circumstantial, it seems to me that this
    court must determine whether a properly instructed jury, acting judicially,
    could have reasonably concluded that the only rational conclusion to be reached
    from the whole of the evidence is that the appellant murdered the victim.

[31]

As summarized in the Crowns factum, the evidence in the case at bar
    consisted of:

(a)
    The Appellants presence on the ranch at the time of the offences and his
    opportunity to commit the crimes;

(b)
    the location of blood and D.N.A. of Price and Martindale on the Appellants
    left hiking boot and on the mid-shin area of the right leg of the Appellants
    blue jeans;

(c)
    the discovery of the Appellants fingerprints on an orange juice container
    and on a ghettoblaster belonging to Mr. Heikkila which was playing at the
    time of its discovery, beside a tractor, in a location mid-way between Mr.
    Heikkilas cabin and the areas where the bodies of Mr. Price and Mr. Martindale
    were found;

(d)
    the use of an axe belonging to the owner of the ranch which was normally located
    in the woodshed where Mr. Prices body was found and which was later discovered
    on the ranch;

(e)
    the absence of any physical evidence linking any other potential suspects
    to the crime scenes and the circumstance that of all the persons on the ranch
    at the time of the offence, only the Appellants life was spared; and

(f)
    the conduct of the Appellant in attending at the Vanderhoof R.C.M.P. Detachment,
    repeatedly directing the police to send a car to the ranch and to arrest him
    or to put him in jail.

[32]

In my opinion, this evidence, taken as a whole, is capable of supporting
    the conclusion reached by the trial judge and it, therefore, cannot be said
    that his decision is unreasonable.

[33]

In addition, the fact that Mr. Turcotte chose not to testify provides
    further support for the conclusion that the verdict is not unreasonable.
    As Mr. Justice Sopinka indicated in
R. v. Noble
, [1997]
    1 S.C.R. 874, an appellate court may consider the silence of the accused
    as failing to provide an innocent explanation for the existence of otherwise
    convincing inculpatory facts:  para. 104.  This is such a case having regard,
    in particular, to the presence of the blood of two of the victims on Mr. Turcottes
    clothing, and to what Mr. Turcotte said upon his arrival at the police detachment.

[34]

In spite of the arguments presented on Mr. Turcottes behalf, I am
    not persuaded that the trial judge erred in law or in fact.  Accordingly,
    I would dismiss this appeal.

[35]

PROWSE, J.A.
: I agree.

[36]

HALL, J.A.
: I agree.

[37]

PROWSE, J.A.
: The appeal is dismissed.

The Honourable
    Mr. Justice Frankel


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Aksidan
          v. Canada (Attorney General),

2008
          BCCA 43

Date: 20080205

Docket: CA034320

Between:

Francis
    Aksidan, Jacob Aksidan, Harold Barton Jr., Cheyenne Doolan,

Craig Nelson,
    Vernon Stephens, George Stevens, Raymond Stewart Jr.,

Troy Stewart,
    and Trent Watts

Appellants

(
Plaintiffs
)

And

The
    Attorney General of Canada

Respondent

(
Defendant
)

Before:

The
          Honourable Mr. Justice Mackenzie

The
          Honourable Madam Justice Levine

The
          Honourable Mr. Justice Chiasson

I.
          Lawson

Counsel for the Appellants

M.
          Shea and

R.
          Schipizky

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

January 21, 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

February 5, 2008

Written
          Reasons by
:

The
          Honourable Mr. Justice Mackenzie

Concurred
          in by:

The
          Honourable Madam Justice Levine

The
          Honourable Mr. Justice Chiasson

Reasons
    for Judgment of the Honourable Mr. Justice Mackenzie:

[1]

This is an appeal from a judgment dismissing the appellants claims
    against Her Majesty the Queen in Right of Canada (Canada) for damages for
    sexual assault.  The six appellants were sexually assaulted by Michael
Henley,
a teacher at Nathan Barton Elementary School (the School)
    in Kincolith, British Columbia,
between 1979 and 1983, while they were elementary school
    students at the School.  The appellants are all male aboriginal persons and
    Indians as defined by the
Indian Act
,
R.S.C. 1985, c. I-5.  The claims against Canada arise
    out of that status and the duties of Canada under the
Indian Act
.

[2]

The School was located on the Kincolith reserve and at all material
    times it was operated by School District No. 92 (Nisgaa), (SD92), under
    British Columbia legislation.  Kincolith was an isolated community at the
    time, located near the mouth of the Nass River on the north-western coast
    of British Columbia, and the aboriginal residents of Kincolith are members
    of the Nis
g
aa Nation.  The School was never a residential school and
    all of the appellants were day students living at their homes in Kincolith.

[3]

Henley pleaded guilty
    in 1999 to sexually assaulting the six appellants.  He was joined with SD92
    and Canada as defendants in the action now on appeal.  Shortly before trial,
    the claims against Henley and SD92 were settled and the trial proceeded solely
    on the issue of Canadas liability.  Issues of damages were deferred and,
    as the assaults were admitted, none of the appellants were required to testify.

[4]

Henley was hired by SD92 and taught at the School from September 1979
    until May 1983.  He had previously taught aboriginal children at a school
    in Lillooet, and came with a favourable letter of reference.  He did not have
    a criminal record until 1990, and the trial judge found there was nothing
    in the evidence to suggest any adult person in Kincolith, other than Henley,
    knew or even suspected the risk of sexual assault until an unnamed student
    made a complaint about Henley in May 1983.  Henley resigned his position and
    left Kincolith within a week of the complaint, after either the principal
    or the school superintendent advised him that he should resign.  The complaints
    by the appellants (and four other plaintiffs whose claims have been deferred)
    gradually came to light over a period of years thereafter.

[5]

The sexual assaults all occurred in
Henleys apartment in the teacherage associated with the School.  The School
    and the teacherage had been constructed on the reserve in 1978.  Canada paid
    for the cost of construction and maintenance, while SD92 managed the School
    and the teacherage, maintained and repaired the buildings, determined who
    could reside in the teacherage and set and collected the rents.

[6]

SD92 did not have
    any rules that prohibited teachers from allowing children of elementary school
    age to visit or sleep overnight at the teachers residence.  Two of the appellants
    slept over at Henleys apartment.  Henley required written permission from
    a childs parents for sleepovers.

[7]

For many years preceeding the events in question, Canada had operated
    and maintained an elementary school for the education of aboriginal children
    in Kincolith.  In 1969, Canada entered into an omnibus agreement with British
    Columbia (the 1969 Agreement) which provided for the delegation to the Province
    of educational responsibilities for aboriginal children within the jurisdiction
    of Canada under the
Indian Act
.  Under the 1969 Agreement, British
    Columbia established SD92 by Order in Council, effective 1 January 1975.
    This followed a petition to the Province from the Nisgaa Tribal Council for
    its own school district; the Kincolith Band Council asked to join SD92 by
    resolution dated 15 November 1974.  Thereafter, SD92 undertook the education
    of the aboriginal children of Kincolith.

[8]

A new school, Nathan Barton Elementary School, and a new teachers
    residence were constructed on reserve lands in Kincolith in 1978.  As noted
    above, Canada paid for the construction of the buildings, and has continued
    to pay for the buildings maintenance and for a significant portion of the
    operational costs of the School.  The Band Council transferred a parcel of
    land on the reserve to Canada for the teacherage and Canada held title to
    that parcel in trust for that purpose.

[9]

The trial judge dismissed the appellants action.   He found that the
    risk a teacher would sexually assault a student at the School or the teacherage
    was not reasonably foreseeable by Canada when responsibility for the School
    was delegated, and there was no evidence that any adult in Kincolith (apart
    from Henley) actually knew or suspected the risk existed during the material
    time period.  The appellants submit that the trial judges conclusion was
    in error and the risk was reasonably foreseeable.  In my view, it is not necessary
    to decide this issue as the appeal must fail on other grounds.

[10]

SD92 administered the School under the umbrella authority delegated
    by Canada to British Columbia in the 1969 Agreement.  The
Indian Act
,
    s. 113(1) [now s. 114(1)] authorized the Government of Canada to make such
    agreements.  The 1969 Agreement purports to delegate an exclusive jurisdiction
    over the education of Indian children to the Province in schools subject to
    the 1969 Agreement, including jurisdiction over the employment and supervision
    of teaching personnel.  Clause 2 reads:

2.
    The PROVINCE shall have complete and exclusive jurisdiction over the administration,
    control and operation of all schools in which Indian children are enrolled
    under the terms of this Agreement, including the employment and supervision
    of teaching personnel and all matters relating to the curriculum, methods
    of instruction and materials used for instruction in such schools, it being
    understood and agreed that the exercise of such jurisdiction by any Board
    of School Trustees established pursuant to the Public School Act of British
    Columbia in respect of any such school shall, as between the parties hereto,
    be deemed to be the exercise of jurisdiction by the PROVINCE.

The
    delegation of jurisdiction is on its face comprehensive and exclusive, and
    leaves no residuary supervisory jurisdiction with Canada.

[11]

Canadas authority to delegate jurisdiction over the education of Indian
    children in schools under s. 113(1) was considered by the Supreme Court of
    Canada in
Blackwater v. Plint
, 2005 SCC 58, [2005] 3 S.C.R.
    3 [
Blackwater

cited to SCC].  Agreements made under s.
    113(1) do not necessarily leave Canada with a residual non-delegable duty
    to ensure the safety and welfare of Indian children in schools:
Blackwater
at para. 50.  The facts of
Blackwater
involved a residential
    school where Canada exercised sufficient control over the school to be held
    vicariously liable (together with its co-defendant the United Church of Canada)
    for the sexual assaults of children committed by a school employee.  In the
    case at bar there is no suggestion that Canada is vicariously liable for the
    assaults of Henley.  He was an employee of SD92 who hired him and supervised
    all aspects of the employment relationship and school administration, including
    Henleys residence in the teacherage.

[12]

The appellants accept
Blackwater
stands for the proposition
    that there is no non-delegable duty on Canada inherent in the exercise of
    the power to make agreements under s. 113(1).  The appellants submission
    is that Canada did not delegate all of its supervisory responsibilities for
    Indian children at the School to the Province and its agency, SD92, under
    the terms of the 1969 Agreement, and that Canada retained a residuary duty
    of care for the safety and welfare of Indian children at the School that was
    breached in this case.

[13]

The appellants contend that the broad delegation in clause 2 is subject
    to two qualifications.  First, they contend that Canada funded the construction
    of the School and the teacherage, and the teacherage (where the assaults occurred)
    was located on reserve lands granted by the band to the federal Crown for
    that purpose.  Second, they contend that clause 7 of the 1969 Agreement contemplated
    lease agreements between Canada and provincial school boards for school buildings
    administered, operated and maintained by school boards, and there was no lease
    to SD92 of the School or teacherage.

[14]

In my view, these factors do not qualify the terms of clause 2 to the
    extent that Canada retained a school-related duty of care for Indian children
    that has any application in the circumstances of this case.  There is no suggestion
    that any lack of funding by Canada was a contributing factor to Henleys assaults.
    Canada retained title to the reserve land on which the teacherage was located,
    in trust, but it exercised no control over the building.  Control over all
    aspects of the School and teacherage administration and supervision was exercised
    by SD92.  While there was no formal lease under clause 7, SD92 exercised exclusive
    control of the premises consistent with that of a lessee.  SD92, and not Canada,
    was the occupier for the purposes of the
Occupiers Liability Act
,
    now R.S.B.C. 1996, c. 337.  I do not think that the fact that Canada held
    title to the land in trust and there was no formal lease to SD92 imposes any
    greater duty of care on Canada.

[15]

The appellants contend that Canada should have imposed a regulation
    that teachers be prohibited from allowing elementary school students to visit
    them in their residence at the teacherage.  In my view, the duty to have considered
    such a regulation was a matter within the parameters of school administration
    exercised by SD92 under the 1969 Agreement and cannot be regarded as a matter
    of such importance and urgency that Canada was duty-bound to require it, notwithstanding
    SD92s jurisdiction.  Such an obligation would involve an oversight role indistinguishable
    from the non-delegable duty rejected in
Blackwater
.

[16]

Following
Blackwater
, a duty of care depends on the degree
    of control and there is no duty of care in the absence of any control.  In
    the instant case, control of all aspects of education at the School was delegated
    by Canada to the Province to be exercised by school boards established under
    the
Public School Act
.  There is no suggestion that this delegation
    was unreasonable and that Canada breached its duty to Indian children by making
    the 1969 Agreement or by including the terms of clause 2.  In my view, the
    complete delegation of control of all aspects of education precludes any residual
    degree of control in Canada that could support a duty of care applicable to
    the circumstances of this case.

[17]

The appellants advance alternative claims for breach of fiduciary duty.
    Chief Justice McLachlin in
Blackwater
, at para. 57, outlined
    fiduciary duty as a trust-like duty, involving duties of loyalty and an obligation
    to act in a disinterested manner that puts the recipients interest ahead
    of all other interests.  The appellants rely on
Nocton v. Lord Ashburton
,
    [1914] A.C. 932, [1914-15] All E.R. 45 (H.L.) at 51-53, for the proposition
    that fault is not an essential element of constructive fraud, which the appellants
    allege as the basis of the cause of action.  Irrespective of the soundness
    of that proposition, the facts of this case do not support a claim for constructive
    fraud.  Here there is no basis for any imputation that Canada failed to act
    disinterestedly in the interests of Indian children in making the 1969 Agreement
    with the Province.  The Province under clause 3 was committed to providing
    education for Indian children on the same terms and conditions as non-Indian
    children under provincial legislation.  Canada has continued funding related
    to their education generally and specifically with respect to the School in
    Kincolith.  The School is a community school without the overtones of residential
    schools where abuse was regrettably widespread.  In my view, the delegation
    of control of education to the Province under the 1969 Agreement, together
    with the funding provisions, fulfilled Canadas fiduciary duty generally and
    there was no dishonesty or disloyalty by Canada that could engage a residual
    fiduciary duty on the facts of this case.

[18]

Henley was employed by SD92 and any vicarious liability for his assaults
    rests with SD92 together with any liability for breach of a supervisory duty
    of care.  There are no policy reasons why Canada should be implicated where
    control of all aspects of education has been reasonably delegated to provincial
    authorities.  The duty of care connected to the education of Indian children
    accepted by the Province should not be obscured by claims of vague residual
    responsibilities of Canada.

[19]

In my view, the delegation of exclusive control by Canada to the Province
    under the 1969 Agreement is a complete answer to the claims of the appellants
    and I would dismiss the appeal on that ground.

The Honourable Mr. Justice Mackenzie

I AGREE:

The Honourable Madam Justice Levine

I AGREE:

The
    Honourable Mr. Justice Chiasson