Citation:

Rorison
v.
Hutt

Date:
20030110

2003 BCCA 10

Docket:

CA027449

COURT OF APPEAL FOR
BRITISH COLUMBIA

BETWEEN:

ROBERT RORISON

APPELLANT/RESPONDENT BY
  CROSS-APPEAL

(PLAINTIFF)

AND:

SHANE MICHAEL HUTT

RESPONDENT

(DEFENDANT)

AND:

INSURANCE CORPORATION OF BRITISH COLUMBIA

RESPONDENT/APPELLANT BY
  CROSS-APPEAL

(THIRD PARTY)

Before:

The
  Honourable Mr. Justice Esson

The
  Honourable Madam Justice Prowse

The
  Honourable Madam Justice Levine

J.E.
  Mitchell

Counsel for the Appellant

R.B.
  Lindsay and T.E. Bean

Counsel for the
  Respondents

Place
  and Date of Hearing:

Vancouver, British Columbia

December
        9, 2002

Place
  and Date of Judgment:

Vancouver, British Columbia

January
        10, 2003

Written Reasons by:

The
Honourable Madam Justice Prowse

Concurred in by:

The Honourable Mr. Justice Esson

The Honourable Madam Justice Levine

Reasons for Judgment of the Honourable Madam Justice
  Prowse:

[1]

Mr.
    Rorison is appealing from the order of a Supreme Court judge, made on July
    14, 2000 following a jury
    trial.

The jury awarded Mr. Rorison
    $30,000 for non-pecuniary damages and dismissed his claims for past wage loss,
    and loss of future income and income-earning capacity.

These claims arose out of injuries Mr.
    Rorison suffered in a motor vehicle accident on June
    16, 1994.

Liability for the accident was admitted; the only issue before the jury
  was the quantum of damages.

[2]

The
    respondent third party, the Insurance Corporation of British Columbia ("ICBC"),
  is cross-appealing from the trial judge's award of costs.

[3]

I will
  deal first with Mr. Rorison's appeal.

[4]

Counsel
    for Mr. Rorison submits that the verdict of the jury with respect to
    non-pecuniary damages is inordinately low and perverse, and that the balance of
    the verdict, relating to past wage loss and loss of future income and
    income-earning capacity, is perverse.

In
    support of her submissions, counsel referred to various extracts from the
    evidence which, in her view, supported a finding that Mr. Rorison was seriously
    injured in the accident and that he suffered both a past loss of income and a
    reduced capacity to earn income in the future.

[5]

Counsel
    for ICBC, in turn, referred the Court to other extracts from the evidence
    which, in his view, supported the verdict of the jury.

In particular, he referred to evidence
    indicating that there was a significant dispute as to whether Mr. Rorison's
    ongoing complaints were causally related to the accident, and to further
    evidence indicating that Mr. Rorison's credibility was in issue, both with
    respect to the extent of the injuries he suffered in the accident, and with
  respect to his income and his income-earning capacity.

[6]

I begin by
    observing that it is not the function of this Court to retry cases, or to
    substitute its view of the evidence for that of the jury, particularly where
    credibility is a significant issue, as here.

Rather, the standard of review to be applied by this Court in reviewing
    the verdict of a jury is set forth in
Cory v. Marsh
(1993), 77 B.C.L.R.
    (2d) 248 (C.A.).

There, Chief Justice
    McEachern, speaking for the majority, referred with approval to
McCannell
    v. McLean
, [1937] S.C.R. 341, where Chief Justice Duff stated "that
    an appellate court ought not to interfere with a jury verdict unless it is
    '... so plainly unreasonable and unjust as to satisfy the Court that no
    jury reviewing the evidence as a whole and acting judicially could have reached
    it.'"

Chief Justice McEachern also
    referred to the oft-cited decision of
Nance v. British Columbia Electric Railway
    Company
, [1951] A.C. 601, where Viscount Simon stated that the
    assessment of damages by a trial judge ought not to be interfered with by
    an appellate court unless the court is: "... satisfied either that the
    judge ... applied a wrong principle of law ... or, short of this, that the
    amount
    awarded is either so inordinately low or so inordinately high that it must
    be a wholly
    erroneous estimate of the damage."

Although the standard of review set forth in
Nance
was in relation to
    the award of a trial judge, it has also been adopted as the standard of review
  in relation to jury awards.

[7]

This case occupied 17 days of trial at which
    41 witnesses were called.

It is apparent
    that there was no consensus amongst the various expert witnesses as to whether
    all of Mr. Rorison's injuries and symptoms were causally connected to the
    accident.

As earlier mentioned, it is
  also apparent that Mr. Rorison's credibility was in issue.

[8]

In my
    view, it is reasonable to infer from the jury verdict that the jury preferred
    the evidence called on behalf of ICBC to that called on behalf of Mr.
    Rorison.

It was open to them to do
    so.

This was also the view of the trial
    judge, who dismissed Mr. Rorison's application to set aside the jury verdict.

In so doing, the trial judge stated (at para.
  1):

I have listened intently to submissions by counsel, and I am
    satisfied after reviewing the law, that although I do not agree with the jury
    verdict, I cannot hold that the verdict should be upset in any way, shape, or
    form or a new trial ordered.

While I
    do not agree with the decision of the jury, it is a decision that they could
    plainly make, and they made it.

The
  application to set aside the jury verdict is dismissed.

[Emphasis added.]

[9]

Given the
    conflict in the evidence with respect to causation, and the fact that Mr.
    Rorison's credibility was a live issue which impacted on all heads of damage, I
    am not persuaded that any aspect of the jury verdict was perverse, or that the
    amount awarded for non-pecuniary damages was inordinately low.

Rather, I am satisfied that there was evidence
    to support the verdict and that there is no basis upon which this Court should
  interfere with it.

[10]

I would, therefore, dismiss the appeal.

[11]

I now turn to the cross-appeal on costs.

[12]

The trial judge's order with respect to costs
  was made July 14, 2000, following the submissions of counsel.

He ordered that:

(a)

Mr. Rorison receive his costs to the
  commencement of trial;

(b)

Mr. Rorison receive one-half of his trial
  costs from ICBC; and

(c)

ICBC receive one-half of its trial costs from
  Mr. Rorison.

[13]

In its notice of motion seeking costs at trial,
    ICBC sought its full costs of the trial pursuant to Rule 37 of the
Rules
    of Court
(B.C. Reg. 221/90) based on an offer to settle it had made
    to Mr. Rorison on May 23, 2000 (six days before the trial began).

In the alternative, ICBC sought an order
    pursuant to Rule 57 of the
Rules of Court
that Mr. Rorison be
    deprived of his costs and disbursements relating to his claims for past and
    future wage loss, and that ICBC be granted its full costs of the action relating
    to those issues, on the basis that ICBC had been fully successful on those
    issues which had consumed a substantial portion of the trial.

It does not appear from its notice of motion
    that ICBC sought to combine its request for relief under Rules 37 and 57 as it
  has done in its request for relief on appeal.

[14]

In my view, ICBC is not entitled to seek
    greater relief on appeal with respect to costs than it sought in the first
    instance before the trial judge.

For
    that reason, I propose to analyze ICBC's claim for costs on the basis of Rule
  37, which was the first alternative posed to the trial judge.

[15]

Rule 37 provides, in part:

(2)

A party to a proceeding may deliver to any
    other party of record a written offer in Form 64 to settle one or more of the
  claims in the proceeding in the terms specified in the offer.

...

(6)

An offer to settle may be delivered at any
  time before the trial commences.

(7)

If an offer is delivered less than 7 days
    before the trial commences, subrules (23) to (29) do not apply but the court
    may, in exercising its discretion as to costs, consider the offer and the date
  that it was delivered.

...

(13)

An offer to settle which has not been withdrawn
  may be accepted at any time
before the trial commences.

...

(24)

If the defendant has made an offer to settle
    a claim for money and the offer has not expired or been withdrawn or been
  accepted,

(a)

if the plaintiff obtains
    judgment for the amount of money specified in the offer or a lesser amount, the
    plaintiff is entitled to costs assessed to the date the offer was delivered and
  the defendant is entitled to costs assessed from that date,
or

(b)

if the plaintiff's claim is
    dismissed, the defendant is entitled to costs assessed to the date the offer
  was delivered and to double costs assessed from that date.

[Emphasis added.]

[16]

In this case, ICBC faxed an offer to settle Mr.
    Rorison's claim to counsel for Mr. Rorison at 10:30
    a.m. on Tuesday,
    May 23, 2000 (the day following Victoria Day).

The trial was set to start the following
    Monday, May 29.

This left Mr. Rorison
  six days to consider the offer.

[17]

The offer to settle was for $62,500 plus costs
    and disbursements.

The offer was not
    accepted.

Had the offer been delivered
    one day earlier, ICBC would have been entitled, under Rule 37(24
)(
a), to its costs from the date the offer was delivered,
    including its full costs of trial.

Because the offer was delivered within seven days of the hearing of the
    trial, however, the trial judge was entitled to exercise his discretion as to
  the amount of costs awarded, in accordance with Rule 37(7).

[18]

In concluding that the costs should be awarded
    as set out at para. 12
,
the trial
  judge stated (at paras. 2-6):

It is clear that it was ICBC, the third party, who decided to take a
    jury notice in this matter.

It seems,
    and I think I could take judicial notice of the fact, that this is a tactic and
    a ploy used by ICBC for most of these trials because it has been found to be
  very successful for them.

Juries are not very sympathetic for these
type
of accidents.

And in a case like this, a
    simple thing like failing to declare income on income tax returns could perhaps
    have caused the jury to have an adverse reaction to a plaintiff.

I have no way of knowing what went through the
  jury's mind.

In this particular case, various offers were made to settle, and
    then subsequently withdrawn.

The
    final offer to settle was made within a few days of trial, less than seven days
    before the trial began and that included a weekend in between.

Counsel for the plaintiff tells me that they
    did not have a proper time or enough time to be able to properly assess this
    offer.

Meanwhile, the trial was set to
    proceed.

There were many expert
    witnesses that were lined up and had to be taken care of, and to be called or
  called off.

I am satisfied that in the particular circumstances of this
    case, the case had gone too far for the plaintiff to realistically consider
    this particular offer of settlement that was not made within the seven days as
    prescribed in the rules.

Five or six
  days with a weekend in between just was not enough.

Having said that, the trial proceeded.

And
I am satisfied, perhaps, that by midway
    through the trial, the plaintiff should have had more than an adequate
    opportunity to discuss the offer with their clients.

I am not satisfied, as I pointed out, that
    the third party in this particular case should get double costs, but I am
    satisfied that at least half of the trial was spent dealing with issues that
  perhaps could have been resolved if the offer for settlement was accepted.

[Emphasis added.]

[19]

Counsel for ICBC acknowledges that the trial
    judge had a discretion with respect to costs under Rule 37(7).

He submits, however, that the discretion must
    be exercised judicially for reasons relevant to costs.

Here, counsel for ICBC submits that the
    reasons of the trial judge on costs reflect several errors in the exercise of
  his discretion.

[20]

Counsel for ICBC submits that the trial judge was influenced in the
    exercise of his discretion by his dissatisfaction with the jury verdict and
    his unfavourable view of ICBC's "tactics" in choosing jury trials.

In that regard, he refers to the passage I
    have quoted at para. 8,
supra,
and to
    his apparently disparaging reference to ICBC taking jury trials as a tactic or
  ploy.

[21]

C
ounsel for Mr. Rorison
    agrees that the trial judge was influenced in his award of costs by his
    disagreement with the jury verdict.

She
    does not cite any authority for the proposition that this is valid basis upon
    which a trial judge may exercise his or her discretion to deny or reduce costs,
    and I know of none.

In my view, the fact
    that ICBC chose to elect trial by jury in this case was irrelevant to the
    question of costs.

Nor was the fact that
    the trial judge disagreed with the jury verdict a relevant consideration.

To the extent the trial judge relied on these
    factors in exercising his discretion under Rule 37(7), I am satisfied that he
  erred.

[22]

Counsel for ICBC also states that the trial
    judge erred in placing any weight on the fact that the time Mr. Rorison had to
    consider the offer included a weekend.

Counsel noted that the minimum seven days referred to in Rule 37 will
    always include a weekend, such that this is an irrelevant factor in determining
  whether a party has had a reasonable time to consider an offer.

[23]

I agree with counsel for ICBC that the fact
    there was a weekend between the offer and the commencement of the trial was an
    irrelevant consideration on the question of costs, although I think the trial
    judge's principal point in referring to that fact was simply that there was not
    enough time for Mr. Rorison to consider the offer before the trial
  commenced.

[24]

It is difficult to ascertain, however, on what
    basis the trial judge came to the conclusion that six days was insufficient
    time for Mr. Rorison to consider and respond to the offer.

Counsel for Mr. Rorison stated that Mr.
    Rorison was prepared for trial at the time the offer was received.

Thus, this is not a case in which taking time
    to consider an offer would have interfered significantly with trial
    preparation.

Further, there was no
    suggestion that counsel could not contact Mr. Rorison, or that he was
    unavailable to discuss the offer.

Finally, this was not the first offer which had been exchanged between
    the parties.

The history of offers
    between the parties included an offer of $82,500 (plus costs and disbursements)
    made by ICBC on May 5, 2000 (and subsequently withdrawn), and an offer
    made by Mr. Rorison on May 15, 2000 to settle for $250,000 (plus interest,
    costs and disbursements).

In other words, less
    than three weeks before receiving the offer of $62,500, Mr. Rorison had
    received an offer from ICBC and had made a counter-offer.

This is some indication that Mr. Rorison had
    a good idea of what his parameters for settlement were well before the
  commencement of the trial.

[25]

The trial judge concluded, nonetheless, that
    it was reasonable to assume that it would have taken Mr. Rorison until "midway through the trial" to
    adequately consider the most recent offer.

This would have been 14-15 days
  from the date the offer was made.

[26]

ICBC submits that in coming to this conclusion,
    the trial judge was labouring under two misconceptions in relation to the
    application of Rule 37, both of which are reflected in the last paragraph of
    the passage from the trial judge's reasons quoted at para. 18,
supra
.

The first misconception was that an offer could be accepted after the
    trial had commenced; the second was that ICBC would be entitled to double costs
    from the date the offer was made.

The
    first misconception is belied by the wording of Rule 37(13), which provides
    that an offer is only open for acceptance to the date the trial commences.

The second misconception is belied by Rule
    37(24)(b) which provides for double costs only where a plaintiff's action has
    been dismissed, which did not occur here.

[27]

In my view, the order of costs cannot be
    sustained, based on the errors I have referred to in the trial judge's
    reasoning.

In summary, the order was
    clearly driven by the trial judge's view that the jury verdict was unfair to
    Mr. Rorison.

Further, the trial judge
    considered irrelevant matters in reaching his decision, and he misinterpreted
  the relevant provisions of Rule 37.

[28]

The question, therefore, is what order of costs
  is appropriate in these circumstances.

[29]

In this case, had ICBC provided its offer to
    settle to Mr. Rorison the previous afternoon (the holiday Monday), it would
    have been entitled to full costs assessed under Rule 37(24).

Given the factual context in which the offer
    was made, I can see no basis for depriving ICBC of those costs.

Mr. Rorison had six days to consider the
    offer; he had had the opportunity to consider and make other offers within the
    previous three weeks; there is no indication that he was unavailable for
    consultation with respect to the offer; and there is nothing unusual about the
    offer, or the circumstances, which would indicate that further time was
    required.

Rather, it appears that these
    parties were so far apart in their perceptions of the value of Mr. Rorison's
    claim, that the offer was simply allowed to lapse.

If Mr. Rorison was unwilling to accept an
    offer of $82,500 on May 5th, and valued his claim at $250,000 on May 15, it is
    unlikely that he would have been willing to seriously consider an offer of
    $62,500 on May 23rd.

There is every
    indication that, by that date, he was ready to go to trial and was determined
  to do so.

[30]

In the result, I would allow
    the cross-appeal, set aside the order of costs made by the trial judge, and
    substitute an order that Mr. Rorison is entitled to his costs assessed to May
    23, 2000, and ICBC is entitled to costs assessed from that date to, and
  including, costs of the application before the trial judge for costs.

[31]

In summary, I would dismiss the
  appeal and allow the cross-appeal as set forth in para. 30.

The Honourable
Madam Justice Prowse

I
  AGREE:

The
    Honourable
Mr.
  Justice Esson

I
  AGREE:

The
    Honourable
Madam
  Justice Levine


Citation:

Sutherland
          v. Vancouver International Airport Authority

Date:
20030110

2003
          BCCA 14

Docket:

CA028817

COURT
          OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

WILFRED SUTHERLAND, SHERRYL SARA STEWART SUTHERLAND,

HILDEGARD ANGLET, ALNOOR AZIZ, AMINA AZIZ, KASHMIR BAINS,

NARINDER KAUR BAINS, H. ELAINE BARNES, ANITA BAYAZIT,

SHABINDER BHOPARAI, MAKHAN BHOPARAI, BJORN BJORNSON,

ELIZABETH BJORNSON, ROBERT BOAL, CHRISTL BOAL, DARRELL

BREMER, GAIL BREMER, CHRISTINE BROWNELL, TAK WAH CHAN, SU-HAW

CHANG, TREVOR CHARLES, SUSAN CHARLES, NORMAN CHENG, NGAI-SIM

CHUI, DOROTHY CHOQUER, TESSA DAGULAR, FRANK DEGIORGIO, MARIA

DEGEORGIO, PAUL DOYLE, WAYNE EKLOF, MARION EKLOF, ABDUL JAMAL

ESMAIL, SHIRIN JAMAL ESMAIL, KEITH GINTER, SHARON GINTER,

BALVINDER GOSAL, PAUL GREWAL, BALJIT GREWAL, YASEEN GREWAL,

ROSS GREYVAL, WALTER HARDER, LAURA HARDER, KEVIN HARRIS,

AUDREY HARRIS, TODD HARRIS, Y. MARIE HASTINGS, HOWARD

HASTINGS, RONALD HERMAN, ANITA HERMAN, STEPHANE HOURIE,

ROBERT HOURIE, JIM IP, ELLEN IP, AXIX JAMAL, FARZANA JAMAL,

EDITH JEROMINSKI, LINDA JOHNSON, HELEN KAETHLER, GURJANT

KANDA, SARITA KANDA, THEA KEMPE, EDUARD KEMPE, PETER KORAC,

DENIS LAFERRIERE, DELIA LAFERRIERE, JOHN LAING, LAURIE LAING,

ANNE LEECH, VICTOR LEECH, MICHAEL LEONG, BETTY LEONG, JAMES

LI, CHRISTINE LI, AMRIK LILLY, TOMMY LIU, CLARA MCFADYEN,

STANLEY MCFADYEN, NEIL MCLEOD, MORTIMER MARTIN, THEODORA

MARTIN, MICK MARTIN, DAVID MARTIN, DAVID MULHOLLAND, PAULINE

MUSGRAVE, NORMAN MUSGRAVE, LOUISE NAKANO, SHINICHI NAKANO,

LUCY NG, SAMMY NGAI, JOHN NGUI-YEN, JOYCELYN NGUI-YEN, SATVIR NIJJAR,
          SUKHVIR NIJJAR, ZELJKA NOVAK, HAZOORI OKAK, KAMALJIT

OLAK, POMMY OLAK, MAJOR OLAK, MOHAN OLAK, CAROLE ANN ORTH,

ROBERT ORTH, RICHARD PADVAISKAS, LINDA PADVAISKAS, NARINDER

PAHL, LEHMBER PAHL, GAIL PEARCE, RICHARD C. PEARCE, ROBYN

PURI, EDWIN QUINLAN, SHELLIE RACHEL, MARTIN RACHEL, ARMANDO

REYES, SUSANA REYES, SUSAN SAHOTA, HANS SARGHIE, GLORIA

SCHUNTER, GERHARD SCHUNTER, SUZANNE SEAGRAVE, THOMAS

SEAGRAVE, SUKDEV SETHI, MEHNGA SETHI, SITLA SHARMA, HEMEMDRA

SHARMA, MANGAL SINGH, JIT SINGH, MICHAEL SOLTICE, INGRID

THORSEN, JOHN THORSEN, KITTY TONG, PATRICIA S. TONKS,

TANGERINE TWISS, BIMAL VERMA, ARUN VERMA, DES VERMA, BARRY

WALSH, SYLVIA WELLS, CASEY WICKHAM, MARYANNE WICKHAM, PETER

WOLFF, MARTHA WOLFF, TELMA WOOD, HABIBA YEUNG

RESPONDENTS

(APPELLANTS
          BY CROSS-APPEAL)

(PLAINTIFFS)

AND:

ANDREA JONES, ROBIN JONES, HELEN PAGE, LISA LIVINGSTONE, GLEN

LIVINGSTONE, BRETT LIVINGSTONE, AN INFANT BY HIS GUARDIAN AD

LITEM GLEN LIVINGSTONE, AND LAURA LIVINGSTONE, AN INFANT BY

HER GUARDIAN AD LITEM GLEN LIVINGSTONE

RESPONDENTS

(APPELLANTS
          BY CROSS-APPEAL)

(PLAINTIFFS)

AND:

THE VANCOUVER INTERNATIONAL AIRPORT AUTHORITY

(APPELLANT)

(RESPONDENT
          BY CROSS-APPEAL)

(DEFENDANT)

AND:

THE ATTORNEY GENERAL OF CANADA

RESPONDENT

(RESPONDENT
          BY CROSS-APPEAL)

(APPELLANT
          BY CROSS-APPEAL)

(DEFENDANT)

AND:

CANADIAN AIRPORTS COUNCIL

INTERVENOR

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Prowse

The
          Honourable Mr. Justice Hall

A.P
. Seckel

A.D.
          Borrell

Counsel
          for the Appellant

Vancouver
          International

Airport
          Authority

G.C.
          Carruthers

G.D.
          Rosenfeld

D.W.
          Roberts, Q.C.

J.R.
          Shewfelt

B.
          Morgan

M.
          Jamal

Counsel
          for the Respondent

Attorney
          General of Canada

Counsel
          for the Respondents

Wilfred
          Sutherland et al

Counsel
          for the Intervenor

Canadian
          Airports Council

Place
          and Dates of Hearing:

Vancouver,
          British Columbia

May 14 to 17, 2002

Written
          Submissions Received

Place
          and Date of Judgment:        Vancouver, British Columbia

January 10, 2003

Supplementary
    Reasons of the Court on Costs

Reasons for Judgment of the Court:

[1]

This appeal was allowed by Reasons for Judgment filed on 3 July 2002.
    The defendants, the Vancouver International Airport Authority and the Attorney
    General of Canada succeeded on the basis that the defence of statutory authority
    was a complete defence to the plaintiffs claims.

[2]

The parties have since filed written submissions as to the appropriate
    disposition for costs and disbursements.  Having read and considered those
    submissions, we would direct that the defendants should have their costs of
    the appeal, except that:

1.   One-half of the disbursements incurred for                preparation
    of the appeal books is disallowed;

2.   One-half of the disbursements incurred for                preparation
    of the transcripts is disallowed; and

3.   One-half days costs of the appeal (in respect of the           nuisance
    issues) is disallowed.

[3]

The issue of costs in the Supreme Court of British Columbia is remitted
    to that Court for disposition by the trial judge.

The
    Honourable Chief Justice Finch

The
    Honourable Madam Justice Prowse

The
    Honourable Mr. Justice Hall


Citation:

Wagner
        et al v. Town of Oliver

Date:
20030110

2003 BCCA 38

Docket:

CA029001

Registry:  Vancouver

COURT OF APPEAL
  FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

Before:

The Honourable Madam Justice Huddart

January 10, 2003

The Honourable Mr. Justice Mackenzie

The Honourable Mr. Justice Thackray

Vancouver,
        B.C.

BETWEEN:

DAVID WAGNER and KAREN WAGNER

doing business as CARRIAGE HOUSE WINES

APPELLANTS

(PLAINTIFFS)

AND:

TOWN OF OLIVER

RESPONDENT

(DEFENDANT)

M.F. Welsh

appearing
  for the Appellant

J.M. Poole

appearing
  for the Respondent

[1]

MACKENZIE, J.A.
: This
  is an appeal from a judge in chambers on a special case under Rule 33 answering
  the question:

Does irrigation purpose as defined in s. 1 of
  the
Water Act
, R.S.B.C 1996, c. 483, as amended, include the use
  of water for the purposes of frost protection?

The answer
  of the learned chambers judge was no.

[2]

The special case arises in an action commenced
  by the appellants for damages for frost damage to their grapevines after the
  employees of the respondent allegedly turned off the pump supplying water from
  its irrigation system to overhead sprinklers for frost protection sometime
  during the night of 8-9 May 1999.

[3]

The agreed facts on the special case are as
  follows:

1.   The
  Plaintiffs, David Wagner and Karen Wagner, are partners in a vineyard and
  winery doing business as Carriage House Wines located at 33010  71
st
Street in Oliver, B.C.

2.   The
  Defendant, Town of Oliver, is a
  Municipality under the
Local Government Act
, R.S.B.C. 1996, c. 323, as
  amended.

3.   By
  Letters Patent dated July 10, 1964, the Province of British Columbia incorporated
  a tract of land into an improvement district pursuant to section 53 of the
Water Act
.  Paragraph
  1 of the Letters Patent included the Town of Oliver within the improvement
  district.

4.   Paragraph
  2 of the Letters Patent provided that the improvement district was to be known
  as the Southern Okanagan Land Irrigation District (SOLID).

5.   Paragraph
  3 of the Letters Patent defined the objects of SOLID as follows:

The objects of the
  improvement district shall be the storage, diversion, pumping, conveyance,
  measurement, and distribution of water for irrigation purpose and the acquisition,
  maintenance, and operation of works for such purpose, and all matters
  incidental thereto.

6.   Paragraph
  9 of the Letters Patent provides as follows:

All words and phrases
  given special meaning in section 2 of the
Water Act
 shall, where used
  herein, be ascribed the meaning given them in the said section, unless the
  context otherwise requires.

7.   The
  Water Act defines irrigation purpose as follows:

Irrigation purpose
  means the beneficial use of water on cultivated land and hay meadows to nourish
  crops.

8.   By
  Order in Council No. 1132 dated May 15, 1980, the Letters Patent were amended
  by striking out section 3 in its entirety and substituting the following in
  its place.

The objects of the
  improvement district shall be the storage, diversion, pumping, conveyance,
  measurement, and distribution of water for irrigation purposes and the
  acquisition, maintenance and operation of works for such purpose and the
  provision of dyking and drainage of land and the construction, acquisition,
  maintenance and operation of works for these purposes and all things incidental
  thereto.

9.   By
  Order in Council No. 1870 dated December 15, 1989, the Province of British
  Columbia dissolved SOLID effective from December 31, 1989 and transferred all
  the assets, rights, claims, obligations and liabilities of SOLID to the Town
  of Osoyoos and the Village of Oliver.

10.  The
  supply of water by the Defendant for irrigation purposes involves the supply
  of water to agricultural producers for a fee on a per acre basis.

11.  The
  Defendant has never represented to recipients of water supplied by the
  Defendant for irrigation purposes that irrigation purposes includes the use
  of water for the purposes of frost protection.

12.  The
  Defendant supplies water to the Plaintiffs for irrigation purposes.

13.  The
  Plaintiffs, irrigate their vineyard using an overhead irrigation system, with
  sprinklers located at a distance of 40 feet apart from each other.

14.  Each
  sprinkler rotates 360 degrees and distributes water for an approximately 40
  root radius.

15.  The
  Plaintiffs use the water supplied by the Defendant for irrigation purposes
  to:

(a)  Provide water
    to their grape plants to replenish water in the soil necessary for plant
    survival
  and growth and to grow and ripen a crop; and

(b)  Provide water
  for frost protection of the plants in the event of a frost during the growing
  season.

[4]

The chambers judge relied on a passage from
Cameron
  County Water Improvement District No. 1 v. Fly
, 35 S.W.  2d 504 (Texas
  Ct. of Civ. App., 1931) as follows:

that the primary, normal, natural purpose of
  irrigation projects is to furnish water in arid and semi-arid sections with
  which to give a sustenance to crops against the effects of a draught  in
  short, to take the place, as nearly as possible, of timely and reasonable
  rains.

The chambers judge added:

[21]
      Using the available water to prevent frost on grapes is not taking the
      place of a timely and seasonable rain.  To use
the water for frost protection is to put in jeopardy the rights of others who
need the water for normal irrigation purposes of their cultivated land and hay
meadows.

[5]

Fly
involved
an action alleging that the plaintiffs bean crop was frost damaged by the failure
of the defendant water district to supply irrigation water to the
crop before frost came as growing bean crops are less susceptible to injury
from frost when freshly irrigated than at other times.  The Court overturned a
trial judgment for the plaintiff on the ground that the jury should have been
asked to answer whether the defendant could reasonably have anticipated the
coming of a killing frost and whether the furnishing of water before the frost
came would save the crop.  Thus the decision turned on issues of reasonable foreseeability
and causation.  It does not stand for the proposition that water for frost
protection is not irrigation.

[6]

The court in
Fly
made some passing
observations about competing demands by users for scarce water resources but
did not conclude that the water at issue was not irrigation water.  As the
water was intended to stimulate growth of the bean crop through the soil it
could not be seriously contended otherwise.

[7]

These observations in
Fly
may have
prompted the conclusion of the chambers judge, quoted above, that the use of
water for frost protection might jeopardize the rights of other water users who
need
the water for normal irrigation purposes.  The appellant submits that there
was no evidence before the chambers judge which could support that conclusion
and that the judge was required to confine his decision to the facts stated in
the special case.  In my respectful view, that objection is well taken and the
conclusion of the chambers judge on this point must be rejected.

[8]

The chambers judge referred to a number of
dictionary definitions of irrigation and nourish.  In my view, while they
are of some assistance they are not definitive.  The chambers judge stated the
plaintiffs position to be that the purpose of properly irrigating lands is to
render them, in the context of their soils and climate, more productive for
growing of crops appropriate to the locality, which would include the purpose
of protection from frost.  The chambers judge did not accept that position.
In my respectful view, he was wrong.  In this instance, the purpose of the irrigation
sprinkling was to protect the vines from frost during their growing season.  In
the broad sense, it was to make the vineyard more productive by protecting the
growth on the vines from frost in the same way that irrigation water would
protect the vines from drought.  In the event of drought the irrigation would
provide more than food and other nutrients.  It would simply prevent the plants
from drying out and dying for lack of water.  For that reason nourish in the
definition cannot be interpreted as narrowly as the respondent submits.  I
think that the use of water for frost protection of grapevines by sprinkling
during the growing season is within the statutory definition of irrigation
purpose in the
Water Act
.

[9]

In the result, I would allow the appeal and
answer the question Yes.

[10]

HUDDART, J.A.
: I agree.

[11]

THACKRAY, J.A.
: I agree.

[12]

HUDDART, J.A.
: The appeal is allowed.  The
      order of the chambers judge is varied in accordance with the reasons of
      Mr.
Justice Mackenzie.

The Honourable Mr. Justice Mackenzie


Citation:

Earles
          v. U.S.A. & Canada

Date:
20030114

2003
          BCCA 20

Docket:

CA028691

COURT
          OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

UNITED STATES OF AMERICA

RESPONDENT

AND:

WALLE WINSTEL EARLES

APPELLANT

A-N-D

Docket:

CA029250

BETWEEN:

WALLE WINSTEL EARLES

APPLICANT

AND:

MINISTER OF JUSTICE FOR CANADA

RESPONDENT

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Huddart

G.P.
          DelBigio

Counsel
          for the Appellant

C.W.
          Greenwood

D.J.
          Strachan

Counsel
          for the Respondent

United
          States of America

Counsel
          for the Respondent

Minister
          of Justice for Canada

Place
          and Date of Hearing:

Vancouver,
          British Columbia

November 25, 2002

Place
          and Date of Judgment:

Vancouver,
          British Columbia

January 14, 2003

Written
    Reasons by:

The
    Honourable Chief Justice Finch

Concurred
    in by:

The
    Honourable Madam Justice Rowles

The
    Honourable Madam Justice Huddart

Reasons
    for Judgment of the Honourable Chief Justice Finch:

I.

[1]

These are proceedings under the
Extradition Act
, S.C.
    1999, c.18.  On 5 July 2001 a judge of the Supreme Court of British Columbia,
    sitting as a extradition judge, ordered that Walle Winstel Earles (the appellant)
    be committed into custody for the offences of conspiracy to produce marijuana,
    and production of marijuana, in the State of Oklahoma, in the United States
    of America.  On 29 November 2001 the Minister of Justice for Canada ordered
    the surrender of the appellant to the United States of America for those offences.

[2]

Mr. Earles appeals against the committal order, and seeks judicial
    review of the surrender order.  He says the learned extradition judge erred
    in refusing his counsel an opportunity to cross-examine the Oklahoma prosecuting
    attorney, R. T. Raley, whose affidavit was filed in support of the application
    for extradition.  The appellant says such cross-examination may have disclosed
    evidence that the request for the appellants return is based on evidence
    of accomplices that is tainted, suspect and unreliable.  And he says the refusal
    of an opportunity to cross-examine prevented him from putting evidence before
    the Minister of Justice that may have caused her to exercise her discretion
    in his favour.

[3]

On the application for judicial review of the Ministers order for
    surrender, the appellant argues that the Minister failed to give adequate
    weight to humanitarian considerations reflecting his age and other circumstances,
    and the potentially long period of incarceration he faces if convicted in
    Oklahoma.  The appellant also says the Minister erred in failing to find that
    his surrender would be unjust or oppressive, which are grounds for refusing
    extradition under s.44(1)(a) of the
Act
.

[4]

For the reasons which follow I have concluded that the learned extradition
    judge did not err in denying the appellant the opportunity to cross-examine,
    and hence did not err in making the committal order.  The appellant has not
    identified a basis upon which to conduct a review of the Ministers order
    to surrender Mr. Earles to the United States.

II.
    FACTS

[5]

The following statement of facts is substantially adopted from the
    factum of counsel for the United States of America, Mr. Greenwood, which I
    consider a fair and accurate summary.

[6]

On 8 January 1996, members of the Tulsa Police Department obtained
    and executed a search warrant for a warehouse in Tulsa, Oklahoma.  They located
    and seized an extensive hydroponic grow operation consisting of 1,749 plants,
    documents, and equipment related to the cultivation of the plants.  Two of
    the documents located were Citibank credit cards in the name of Walle Earles.

[7]

The warehouse containing the grow operation was leased to an individual
    named Alyce Allardyce, and the appellant was present when the lease was signed.

[8]

In the fall of 1994, the appellant introduced himself to a neighbour
    as the individual who had leased the warehouse.  Between the fall of 1994
    and January 1996, the appellant was seen going inside the warehouse once or
    twice a week.

[9]

Members of the Tulsa Police Department searched the appellants residence
    and seized a small amount of marijuana, a marijuana growing formula, a receipt
    for a supply of PVC pipe, and payment receipts to Jim Rose and Scott White.

[10]

The
    evidence seized from the grow operation was secured in the Tulsa Police Department
    Property Room.  The plant material was later analyzed and found to be marijuana.

[11]

The
    requesting state relied on affidavits sworn by the appellants three accomplices.
     They directly implicated the appellant in the marijuana grow operation located
    by the Police.  The three affiants are James Rose, Stephen Stewart and Scott
    White.

[12]

James
    Rose was a co-accused who agreed to cooperate with the government, pled guilty
    and was sentenced for the marijuana offences.  He subsequently testified before
    a Grand Jury and swore an affidavit which was tendered by the requesting state
    at the appellants extradition hearing.  He had been approached to help Stephen
    Stewart and the appellant with their marijuana grow operation.  The appellant
    taught him about hydroponic marijuana grows and prepared scheduling charts
    to assist him.

[13]

Stephen
    Stewart also agreed to cooperate with the government, pled guilty to the marijuana
    offences and was sentenced.  On the day of his sentencing, he swore two affidavits
    that were tendered at the appellants extradition hearing.  According to Mr.
    Stewart, the appellant financed the marijuana growing operation, invested
    approximately $3,000 for the grow equipment, and had accompanied Mr. Stewart
    to buy growing supplies on three or four occasions.  The appellant gave Mr.
    Stewart between half a pound and one pound of marijuana on six occasions and
    told him to sell half of it and put the proceeds back into the grow operation.

[14]

Scott
    White, the third accomplice, testified before the Grand Jury in relation to
    the leadership role of the appellant in the marijuana grow operation, and
    later swore an affidavit relied on by the requesting state at the appellants
    extradition hearing.  He helped Mr. Stewart, Mr. Rose, and the appellant construct
    the interior of the warehouse for the marijuana growing operation.  He also
    assisted them in topping, watering and moving the plants.

[15]

In
    Oklahoma, the offence of manufacturing 1,000 or more marijuana plants carries
    a sentence of not less than 10 years imprisonment, and not more than life,
    and a fine of up to $4,000,000.  The offence of maintaining a place for the
    purpose of manufacturing marijuana carries a sentence of not more than 20
    years imprisonment, and a fine of not more than $500,000.

[16]

The
    statute which provides the penalty for the manufacture of marijuana also permits
    an offender to be sentenced to both imprisonment and fined, and provides that
    a judge shall impose a term of supervised release of at least five years in
    addition to the other terms of sentence imposed.  A person sentenced in accordance
    with this provision is not eligible for parole.

[17]

The
    materials filed in support of the request for extradition do not contain any
    information concerning the circumstances under which Mr. Stewart, Mr. Rose
    or Mr. White agreed to cooperate with the government, the terms of the cooperation
    agreement, the sentences imposed, or the details of any criminal record that
    any of them might have had.

[18]

In
    the course of the extradition hearing the appellant applied to cross-examine
    Robert Raley upon issues including the criminal records, cooperation agreements
    and sentences imposed upon those persons that provided affidavit evidence
    against the appellant.  The application was made for two purposes.  First,
    it was made in order to lead evidence in support of a s.7
Charter
application on the grounds that the United States authorities used improper
    means to obtain evidence used in support of the extradition of the appellant.
    Secondly, the application was made in order to gather information which may
    then have been considered by the Minister of Justice at the second stage of
    the extradition proceedings.

III.
    THE EXTRADITION JUDGES REFUSAL OF CROSS-EXAMINATION

[19]

The
    learned extradition judge refused the appellant the opportunity to cross-examine
    any of the affiants on their affidavits.  He said:

This
    hearing and the cross-examination of affidavits relating to the subject under
    consideration goes to the matter of weight to be attached to the evidence
    submitted, and cross-examination of the affidavits in that respect, in my
    view, is of no utility in this hearing. The weight to be attached to the evidence
    and circumstances surrounding the manner in which the evidence was obtained,
    unless it falls in the class of evidence touched on in
Dynar
,
    is evidence for the tribunal of fact to consider. This court should not embark
    upon a process of allowing cross-examination merely on the suggestion that
    something might be obtained, which might be of assistance, which might arguably
    be a basis for a s.7 challenge. The evidentiary burden, in my respectful view,
    is on the fugitive to establish a foundation for the exercise of a limited
    discretion touched on by the Supreme Court of Canada. No such evidentiary
    burden has been met in the case at bar.

[20]

With
    respect to the argument that cross-examination could provide useful information
    on the application to surrender, the extradition judge said:

As to
    the second branch of argument that the material, which could be of assistance
    to the Minister at the second stage if these proceedings gets to that stage,
    a short answer is that it is open to the person sought to introduce whatever
    evidence or material he or she thinks fit at the ministerial stage. The discretion
    referred to in the authorities, which indicate that it may be convenient to
    introduce such evidence at an extradition hearing, although not relevant to
    the decision of the extradition judge, in my view, should be exercised very,
    very sparingly. I will only make a quick reference; I will not quote the
Kwok
decision of the Supreme Court of Canada that in relation to the indication
    that the exercise of discretion is a sparing one at best. Consequently, the
    applications on behalf of the person sought to order cross-examination on
    affidavits is dismissed.

IV.
    THE MINISTERS DECISION TO SURRENDER MR. EARLES

[21]

The
    Minister held the opinion that humanitarian considerations did not preclude
    the appellants surrender.  In her letter rejecting counsels submissions
    opposing surrender she said:

The
    argument has been made that Mr. Earles should not be surrendered based on
    his personal circumstances. In my opinion, the circumstances of this case
    do not justify a refusal of surrender on humanitarian grounds. The Supreme
    Court of Canada has held that to arrive at a conclusion that the surrender
    of a person sought would violate the principles of fundamental justice and
    contravene the
Charter
, it would be necessary to establish that
    the person sought would face a situation which is simply unacceptable or
    shockingly and fundamentally unacceptable in our society. In my view, it
    has not been established that Mr. Earles would face such a situation. I am
    further of the view that the circumstances of this case do not justify refusal
    for humanitarian considerations on the basis on my general discretion.

[22]

She
    declined to review the reliability of the requesting states evidence:

You
    submit that surrender should be denied basis [sic] of the unreliability of
    the prosecution evidence in the United States. You indicate that a substantial
    amount of evidence comes from co-accused who were cooperating state witnesses.
    In this case, the extradition judge considered the evidence and concluded
    that the United States met the requirements of Section 29(1)(a) of the
Extradition
    Act
and that there was sufficient evidence to commit Mr. Earles for
    extradition on the Canadian offences set out in the Authority to Proceed.
    As this is a matter for the judicial phase of the extradition process, it
    would be inappropriate for me to revisit this issue. Further, the issue of
    the overall sufficiency of the evidence to support a conviction rests with
    the trier of fact in the United States.

[23]

And
    she held that surrendering the appellant to face the applicable penalties
    in Oklahoma would not infringe the appellants rights under s.7 of the
Charter
:

You
    further submit that surrender should be denied on the basis that if convicted
    in the United States, Mr. Earles faces a jail sentence that would likely mean
    he would die in jail. Apart from death penalty cases, nothing in the
Treaty
or the
Extradition Act
allows for refusal to surrender because
    of penalties applicable in the requesting State. It remains for me, however,
    to consider whether section 7 of the
Charter
prohibits Mr. Earles
    surrender.

In the
    language of the Supreme Court of Canada in
United States v. Burns
(2001), 151 C.C.C. (3d) 97, the issue is whether a particular treatment or
    punishment may sufficiently violate our sense of fundamental justice. In my
    view, a decision to surrender Mr. Earles would not violate Section 7 of the
Charter
on the basis of the penalty he would face. In this case,
    even if the American sentence is harsher than the sentence Mr. Earles would
    be subject to in Canada, it cannot be said that the extradition of Mr. Earles
    would be contrary to the principles of fundamental justice.

[24]

She
    concluded that there was no reason not to recognize Canadas obligation under
    the
Extradition Treaty
with the United States of America, and
    therefore ordered the appellants surrender to the United States of America.

V.
    THE
EXTRADITION TREATY
AND THE
EXTRADITION ACT

[25]

The
    following provisions of the
Extradition Treaty
and
Extradition
    Act
are relevant:

Treaty
    on Extradition between Canada and the United States of America

ARTICLE
    10

(1)
    Extradition shall be granted only if the evidence be found sufficient according
    to the laws of the place where the person sought shall be found, either to
    justify his committal for trial if the offense of which he is accused had
    been committed in its territory or to prove that he is the identical person
    convicted by the courts of the requesting State.

(2)
    The documentary evidence in support of a request for extradition or copies
    of these documents shall be admitted in evidence in the examination of the
    request for extradition when, in the case of a request emanating from Canada,
    they are authenticated by an officer of the Department of Justice of Canada
    and are certified by the principal diplomatic or consular officer of the United
    States in Canada, or when, in the case of a request emanating from the United
    States, they are authenticated by an officer of the Department of State of
    the United States and are certified by the principal diplomatic or consular
    officer of Canada in the United States.

Extradition
    Act
, S.C. 1999, c.18

29
.(1)
    A judge shall order the committal of the person into custody to await surrender
    if

(a)  in the case of a person sought for         prosecution, there is evidence
    admissible under    this Act of conduct that, had it occurred in Canada, would
    justify committal for trial in      Canada on the offence set out in the authority
    to proceed and the judge is satisfied that the   person is the person sought
    by the extradition    partner;

32
.(1)
    Subject to subsection (2), evidence that would otherwise be admissible under
    Canadian law shall be admitted as evidence at an extradition hearing. The
    following shall also be admitted as evidence, even if it would not otherwise
    be admissible under Canadian law:

(a)  the contents of the documents contained in the record of the case certified
    under subsection 33(3);

(b)  the contents of the documents that are     submitted in conformity with
    the terms of an   extradition agreement; and

(c)  evidence adduced by the person sought for extradition that is relevant.

40
.(1)
    The Minister may, within a period of 90 days after the date of a persons
    committal to await surrender, personally order that the person be surrendered
    to the extradition partner.

(3)
    The Minister may seek any assurances that the Minister considers appropriate
    from the extradition partner, or may subject the surrender to any conditions
    that the Minister considers appropriate, including a condition that the person
    not be prosecuted, nor that a sentence be imposed on or enforced against the
    person, in respect of any offence or conduct other than that referred to in
    the order of surrender.

43
.(1)
    The person may, at any time before the expiry of 30 days after the date of
    the committal, make submissions to the Minister in respect of any ground that
    would be relevant to the Minister in making a decision in respect of the surrender
    of the person.

44
.(1)
    The Minister shall refuse to make a surrender order if the Minister is satisfied
    that

(a)  the surrender would be unjust or oppressive having regard to all the
    relevant   circumstances; or ...

(2)
    The Minister may refuse to make surrender order if the Minister is satisfied
    that the conduct in respect of which the request for extradition is made is
    punishable by death under the laws that apply to the extradition partner.

57
.(1)
    Despite the
Federal Court Act
, the court of appeal of the province
    in which the committal of the person was ordered has exclusive original jurisdiction
    to hear and determine applications for judicial review under this Act, made
    in respect of the decision of the Minister under section 40.

(6)
    On an application for judicial review, the court of appeal may

(a)  order the Minister to do any act or thing that the Minister has unlawfully
    failed or     refused to do or has unreasonably delayed in      doing; or

(b)  declare invalid or unlawful, quash, set    aside, set aside and refer
    back for     determination in accordance with any directions    that it considers
    appropriate, prohibit or      restrain the decision of the Minister referred
    to in subsection (1).

(7)
    The court of appeal may grant relief under this section on any of the grounds
    on which the Trial Division of the Federal Court of Canada may grant relief
    under subsection 18.1(4) of the
Federal Court Act
.

[26]

The
    provisions of the
Federal Court Act
, R.S.C. 1985, c.F-7 referred
    to in s.57(7) are:

18
.1(4)
    The Trial Division may grant relief under subsection (3) if it is satisfied
    that the federal board, commission or other tribunal

(a)  acted without jurisdiction, acted beyond   its jurisdiction or refused
    to exercise its         jurisdiction;

(b)  failed to observe a principle of natural   justice, procedural fairness
    or other procedure     that it was required by law to observe;

(c)  erred in law in making a decision or an    order, whether or not the
    error appears on the    face of the record;

(d)  based its decision or order on an     erroneous finding of fact that
    it made in a    perverse or capricious manner or without regard     for the
    material before it;

(e)  acted, or failed to act, by reason of fraud or perjured evidence; or

(f)  acted in any other way that was contrary   to law.

VI.
    THE APPEAL AGAINST THE COMMITTAL ORDER

[27]

The
    appellant says that the order refusing cross-examination was a breach of his
    rights under s.7 of the
Charter
.  He says the requesting states
    reliance on evidence obtained in an abusive way, untested by cross-examination,
    rendered the hearing unfair.  He argued that his counsel should be entitled
    to cross-examine on the affidavits filed in support of extradition because
    the evidence provided by alleged accomplices during a plea bargaining process,
    and in the face of draconian sentencing provisions, is inherently unreliable.
    The material filed does not disclose the penalties imposed on the accomplices
    in exchange for their cooperation with the authorities.  The appellant contends
    that the potentially harsh sentences would inevitably have led the accomplices
    to shade the truth, or to be dishonest.  He says cross-examination of the
    affiants would demonstrate whether the plea bargaining process was fair or
    unfair.

[28]

He
    says the circumstances in which the affidavits were obtained erode their reliability,
    and give rise to the concern that there has been an abuse of process.  The
    appellant says that discrediting the accomplices evidence is not simply a
    matter affecting its weight for the purposes of trial.  He says cross-examination
    in the extradition process would have provided the opportunity to show that
    due process was not followed, and that the process was abusive, unfair and
    not in accord with the principles of fundamental justice.

[29]

Counsel
    for the requesting state emphasizes the fundamental nature and purpose of
    an extradition hearing, and relies upon the provisions of the
Extradition
    Treaty
and
Extradition Act
quoted above.  In particular,
    he referred to s.10(1) and (2) of the
Treaty
, and s.32(1)(b)
    of the
Act
.

[30]

Counsel
    points out that neither the
Treaty
nor the
Act
contemplates cross-examination of foreign witnesses.  And he relies upon what
    LaForest J. said in
U.S.A. v. McVey
(1992), 77 C.C.C. (3d) 1
    (S.C.C.) at 17:

To expedite
    the procedure and minimize expense, however, depositions are to be admitted
    in evidence in lieu of witnesses at the hearing when properly certified and
    authenticated (art.10(2)). For their validity, we thus rely on the fairness
    and good faith of judicial and political authorities of the requesting state.

[31]

Counsel
    for the requesting state stressed that the purpose of an extradition hearing
    is to determine whether there is sufficient evidence to warrant committal,
    not to determine the appellants guilt or innocence.  He says the authorities
    show that refusal of cross-examination on an extradition hearing does not
    constitute a breach of the appellants s.7 rights citing:
U.S.A. v.
    Smith
(1984), 10 C.C.C. (3d) 540 (Ont.C.A.);
U.S.A. v. Davenport
(1986), 32 C.C.C. (3d) 209 (B.C.C.A.);
Schmidt and the Queen
(1984), 10 C.C.C. (3d) 564 (Ont.C.A.) affd (1987), 33 C.C.C. (3d) 193 (S.C.C.);
    and
Re: State of Wisconsin v. Armstrong
(1973), 10 C.C.C. (2d)
    271 (F.C.A.) leave to appeal refused (1973), 10 C.C.C. (2d) 271n.

[32]

Counsel
    for the requesting state also relies on
Argentina v. Mellino
(1997), 33 C.C.C. (3d) 334 (S.C.C.) at 349, where LaForest J. said:

Responsibilities
    for the conduct of our foreign relations, including the performance of Canadas
    obligations under extradition treaties, is, of course, vested in the executive.
    I repeat: the role of the extradition judge is a modest one; absent express
    statutory treaty authorization, the sole purpose of an extradition hearing
    is to ensure that the evidence establishes a prima facie case that the extradition
    crime has been committed.

[33]

In
    my respectful view, the learned extradition judge did not err in refusing
    the appellant the opportunity to cross-examine on the affidavits filed by
    the requesting state.

[34]

U.S.A. v. Dynar
(1997), 115 C.C.C. (3d) 481 (S.C.C.) holds that foreign law enforcement
    authorities are not subject to the
Charter
and, an argument
    against admissibility pursuant to s.24(2) must necessarily fail.  The Supreme
    Court did not say that there may never be circumstances in which an extradition
    hearing would be rendered unfair by the conduct of the requesting state in
    gathering evidence, but said that would be a rare and exceptional case.  The
    Court held that before a fugitive will be allowed to embark on a
Charter
inquiry, there must be some air of reality to a contention that the extradition
    hearing risks being unfair.

[35]

The
    material before the extradition judge did not provide an air of reality
    to the contention that the extradition hearing would be so unfair as to violate
    s.7.

[36]

Counsel
    for the appellant suggested during the hearing of the appeal that the obligation
    to adduce evidence of improper conduct in order to be permitted to cross-examine
    Mr. Raley  put the appellant in a Catch 22 situation: he could only obtain
    evidence of improper conduct of the requesting state if he was permitted to
    cross-examine; but he could not cross-examine unless he could show improper
    conduct on the part of the requesting state.

[37]

With
    respect, I do not think this is sound.  The authorities do not impose an absolute
    bar on cross-examination in all circumstances in the extradition process:
United States v. Kwok
(2001), 152 C.C.C. (3d) 225 (S.C.C.).  But before cross-examination may be
    permitted, there must be some evidentiary foundation for the request, or an
    air of reality to the allegation that the extradition hearing was unfair or
    an abuse of process.  The fact that some of the affiants were accomplices,
    who made plea bargains, does not provide the basis of a s.7
Charter
violation.  In my view, the extradition judge properly concluded on the evidence
    before him, that cross-examination would only go to weight, and not to admissibility.
    The weight of the evidence is a matter for the trial judge in the requesting
    state.

[38]

I
    would not give effect to this ground of appeal.

[39]

The
    appellant advanced a second argument based on s.7 of the
Charter
.
    He contended that the learned extradition judge erred in refusing cross-examination,
    because it prevented him from making a record of evidence for the Minister
    when she came to decide whether the appellant should be surrendered to the
    U.S.A.

[40]

The
    appellant says the learned extradition judge erred in holding that his discretion
    to permit cross-examination for that purpose should be exercised very very
    sparingly.  He says the discretion acknowledged by the Supreme Court of Canada
    in
Kwok v. U.S.A.
,

supra,
is not so limited:
    see paras.74 and 75.

[41]

The
    appellant relies on s.44(1) of the
Extradition Act
, quoted above,
    which provides in part:

44
.(1)
    The Minister shall refuse to make a surrender order if the Minister is satisfied
    that

(a)  the surrender would be unjust or oppressive having regard to all the
    relevant   circumstances; or

[42]

He
    emphasizes that these provisions are mandatory and that therefore the discretion
    to adduce evidence of injustice or oppression should not be limited in the
    way suggested by the extradition judge.  Any evidence of fraud, perjury or
    lack of natural justice would be sufficient to put the Minister on her inquiry,
    so that the appellant should have a proper opportunity to cross-examine to
    explore such areas.

[43]

He
    also says that s.44 of the
Extradition Act
must be read in light
    of s.40(3) which provides in part:

40
.(3)
    The Minister may seek any assurances that the Minister considers appropriate
    from the extradition partner, or may subject to the surrender to any conditions
    that the Minister considers appropriate, including a condition that the person
    not be prosecuted, nor that a sentence be imposed on or enforced against the
    person, in respect of any offence or conduct other than that referred to in
    the order of surrender.

[44]

The
    appellant says he was entitled to present evidence to the Minister and therefore
    to obtain it on the extradition hearing in respect of conditions that might
    be imposed upon a surrender, or in respect of assurances which might be sought
    from the requesting state.

[45]

Finally,
    the appellant says the Supreme Court of Canada in
Dynar
,
    supra
, recognized that the Ministers discretion may attract
Charter
scrutiny.  He therefore contends that he may present evidence and make submissions
    on potential
Charter
violations at the surrender hearing.

[46]

In
Kwok
, supra
, the Supreme Court of Canada held (para.74)
    that the decision to hear evidence that is premature at the committal stage
    is entirely within the discretion of the extradition judge.  It said the
    judge should bear in mind the need for an expeditious decision on whether
    there is enough evidence to commit the person sought for surrender.  Accordingly,
    the extradition judge is not bound to hear evidence relevant only at the Ministerial
    phase of the extradition process.

[47]

In
    my view, therefore, the refusal of the extradition judge to exercise his discretion
    in favour of the appellant, for the purposes of creating a record for the
    Minister is not a reviewable error in this court.

[48]

I
    would not give effect to this ground of appeal.

[49]

It
    follows that I would dismiss the appellants appeal of the committal order.

VII.
    JUDICIAL REVIEW OF THE MINISTERS DECISION TO SURRENDER

[50]

The
    appellant seeks judicial review of the Ministers decision to surrender Mr.
    Earles.  The appellant says the Minister failed to take into account relevant
    factors, and fettered her discretion, by deferring to the trial judge on
    the issue of the reliability of the requesting states evidence.  In other
    words, the Minister, in the proper exercise of her jurisdiction, had an obligation
    to consider, independent of the extradition judge, the appellants contention
    that the United States authorities conduct amounted to an abuse of process,
    and that the accomplices affidavits were inherently unreliable.

[51]

The
    appellant says the unreliability of the prosecution evidence in the United
    States is a relevant factor which would render the surrender unjust or oppressive.
    Under s.44(1)(a) of the
Extradition Act
, the Minister is obliged
    to refuse to make a surrender order where the surrender would be unjust or
    oppressive having regard to all the relevant circumstances.

[52]

The
    role of the Minister in the surrender process is to consider Canadas good
    faith and honour in its relations with other states, the constitutional rights
    of the person sought, and the political ramifications of the extradition decision:
    see
Ibziak v. Canada (Minister of Justice)
(1992), 77 C.C.C.
    (3d) 65 (S.C.C.) and
U.S.A. v. Whitely
(1994), 94 C.C.C. (3d)
    99 (Ont.C.A.) affd (1996), 104 C.C.C. (3d) 447 S.C.C.

[53]

As
    the executive branch of government has expertise in political matters, the
    Minister is responsible for ensuring compliance with the conditions for extradition
    described in the
Extradition Act
.  The functions performed by
    the Minister and the extradition judge are separate and distinct, and do not
    overlap.  The Minister and the extradition judge do not review each others
    decisions; those decisions are reviewed by the Court of Appeal.

[54]

There
    is nothing in the record to suggest that the evidence presented to the Minister
    in this case was manufactured or motivated by malice on the part of the witnesses
    or the prosecution authorities.  The appellants argument is simply that the
    accomplices evidence in this case is inherently unreliable.  While there
    may be circumstances under which the reliability of the requesting states
    evidence is such that to surrender the fugitive would sufficiently shock
    the conscience, thereby engaging s.7 of the
Charter
or s.44(1)(a)
    of the
Extradition Act
, the facts of this case do not, in my
    view, rise to this level.

[55]

With
    respect, the reliability of the evidence is not otherwise a relevant consideration
    for the Minister.  In due course, it will be for the trier of fact in the
    United States to assess the credibility and reliability of the evidence and
    the sufficiency of the case for the prosecution according to the law of Oklahoma.

[56]

I
    do not consider that the Minister took the wrong approach to the sufficiency
    of the evidence, and I would not give effect to this ground of review.

[57]

The
    appellants other issues on the application for judicial review merge the
    Ministers consideration of the humanitarian issues affecting the appellants
    case, with a consideration of the potential penalties facing the appellant
    if convicted in the United States, and the appellants rights under s.7 of
    the
Charter
.  Counsel says the Minister erred in her treatment
    of the potential penalties because of the significant disparity between the
    penalties the appellant faces in the requesting state, as compared with the
    potential sentences for similar offences if committed in Canada.  He says
    the United States penalties shock the conscience and are fundamentally unacceptable.

[58]

Counsel
    for the appellant then says the Minister erred in failing to consider adequately
    the specific effect the United States penalties would have on the appellant
    having regard for his age of 59 years, and the fact that he is married, gainfully
    employed and has no criminal record.  The appellant says those are grounds
    on which surrender should have been refused, and the Minister erred in failing
    to do so.

[59]

Finally,
    counsel says that given these humanitarian considerations, the order for surrender
    amounts to a breach of the appellants rights guaranteed by s.7 of the
Charter
.

[60]

A
    Ministers decision on the issue of surrender attracts a high degree of deference
    from the court: see
Gervasoni v.
Canada (Minister of Justice)
(1996), 72 B.C.A.C. 141 (B.C.C.A.), leave refused [1996] 2 S.C.R.
    viii, per Cumming J.A. at para.24;
U.S.A. v.
    Kwok
, supra
, at paras.32, 94 and 95; and
U.S.A. v. Burns
(2001),
    151 C.C.C. (3d) 97 (S.C.C.) at 117.

[61]

The
    potential penalties applicable in the United States do not meet the standard
    of shocking the conscience, or being completely unacceptable.  While the penalties
    are substantially greater than those that apply in Canada for similar offences,
    the disparity is no greater than in cases where the standard for refusing
    surrender was not met: see
Ross v. U.S.A.
(1994), 93 C.C.C.
    (3d) 500 (B.C.C.A.) affd (1996), 104 C.C.C. (3d) 446 (S.C.C.);
U.S.A.
    v. Whitely
, supra
; and
Re: Jamieson and United States
    of America et al
(1994), 93 C.C.C. (3d) 265 (Que.C.A.) revd (1996),
    104 C.C.C. (3d) 575 (S.C.C.).

[62]

Nor,
    in my view, do the appellants age and other personal circumstances considered
    in conjunction with the potential penalties provide any basis for concluding
    that the Ministers discretion was wrongly exercised or that her decision
    amounts to a breach of the appellants s.7 rights.

[63]

The
    principles of fundamental justice require that a fugitive not be surrendered
    where, to do so, would sufficiently shock the conscience (see:
Schmidt
    and the Queen
,
supra
).  In her decision, the Minister reached
    the conclusion that Mr. Earles had not established that he would face a situation
    if surrendered which is simply unacceptable or shockingly and fundamentally
    unacceptable in our society.  The Ministers approach was correct at law.
    The appellant has failed to  advance any basis for the Court of Appeal to
    review her decision.  I do not consider that the appellants age and other
    personal circumstances, give rise to a situation which would sufficiently
    shock the conscience.  Accordingly, the Ministers decision to surrender
    Mr. Earles does not amount to a breach of his s.7
Charter
rights.

[64]

I
    would dismiss the application for judicial review of the Ministers decision.

VIII.
    DISPOSITION

[65]

I
    would dismiss the appellants appeal against the extradition judges order
    for committal.  I would dismiss the appellants application for judicial review
    of the Ministers decision for surrender.

The
    Honourable Chief Justice Finch

I AGREE:

The Honourable Madam
    Justice Rowles

I AGREE:

The Honourable Madam
    Justice Huddart


Citation:

Murphy v. Wynne
  et al

Date:
20030114

2003 BCCA 26

Docket:

CA030305

Registry:  Vancouver

COURT OF APPEAL
  FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

BEFORE THE HONOURABLE

Madam Justice Prowse

January 14, 2003

Vancouver,
        B.C.

BETWEEN:

JOHN MURPHY

APPELLANT

(PLAINTIFF)

AND:

JOHN WYNNE, WILLIAM HOLMES, WILLIAM KINLOCK, JAMES DOUGAN,

BARRY CLARK, RICHARD O'BRIEN, RUSSELL ST. ELOI, TOM MILLER, TOM
  TOMKO, ANNE ST. ELOI, ALEXANDER MCDONALD, JAMES BRADY,

AL PHILLIPS, RAY CALLARD, LOCAL 170 OF THE UNITED ASSOCIATION

OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING

INDUSTRY OF THE UNITED STATES AND CANADA, and the UNITED ASSOCIATION
          OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY
          OF THE UNITED STATES AND CANADA AND NELDSON, BARKMAN & TANAKA,
        Chartered Accountants

RESPONDENTS

(DEFENDANTS)

J. Murphy

Appellant
  appearing on his own behalf

D. Bobert

appearing
  for the (Canadian) Respondent

L. Terai

appearing
  for the (U.S.A.) Respondents

[1]

PROWSE, J.A.
: Mr.
Murphy is applying in this Court for indigent status with respect to two orders
made by Mr. Justice Edwards on October 18, 2002, with respect to two separate
proceedings.

[2]

The first order was based on an application by
Mr. Murphy to register in British Columbia, for enforcement purposes, a judgment
of the U.S. District Court
for the District of Columbia.  Mr. Justice Edwards found that the requirements
of Rule 54 and the
Court
Order Enforcement Act
had not been met in that regard and he dismissed
that application.

[3]

There was a second action, which has been
referred to as the C action, which resulted in a separate order being made
relating to various applications or notices of motion by Mr. Murphy in Action
No. C946213 in the Supreme Court.  The notices of motion related in part to
relief sought against some of the defendants in this action represented by Mr.
Boberts firm.

[4]

Mr. Justice Edwards found that since the
substantive action under C946213 had been dismissed by Mr. Justice Williamson,
the notices of motion filed by Mr. Murphy with respect to these particular
defendants could not succeed, and he dismissed those motions.

[5]

At the outset of this application for indigency
status, Mr. Murphy asked for an adjournment with the request that this Court
order that the full transcripts for the full proceedings before Mr. Justice
Edwards be made available to the Court.  In Mr. Murphys view, the transcripts
were necessary in order to pursue his application for indigency status.  During
the course of his submissions in that regard, he referred to information he
said he made available to Mr. Justice Edwards with respect to the propriety of
Mr. Boberts firm participating in this proceeding and, I gather, in other
proceedings on the basis, in part, that other actions had been taken against
them in separate proceedings by Mr. Murphy.  Mr. Murphy says that there is
information in the transcripts that would assist this Court, in some way,
assessing the merits of the proposed appeals.

[6]

I have read the material that has been made
available to me including, of course, the reasons for judgment of Mr. Justice
Edwards.  In my view, there is no need for this Court to order that further
materials be prepared in order to deal with the application for indigency
status.  It is clear that Mr. Murphy meets the financial requirements for
indigency.  In other words, he has an extremely limited income and expenses
which more than consume that income.  The real question on this application is
whether Mr. Murphy has any prospect of success with respect to his proposed
appeal against the orders of Mr. Justice Edwards.

[7]

Having reviewed the materials before me, and not
being persuaded that any further materials will assist me in assessing the
merits, I am not persuaded that there is any prospect of success with respect
to these appeal from these orders.

[8]

I would therefore dismiss the application for
indigency status.  The application is dismissed.

(discussion)

[9]

PROWSE, J.A.
:
Mr. Murphy, an application has been made that you not be required to sign the
order I have just made before I sign it.  I can tell you that, in the usual
course, the order will be sent up to me.  I will review it to ensure that it
reflects what I have said today, and a copy of that entered order will be
provided to you as long the respondents have an address for service for you.

The Honourable Madam Justice Prowse


Citation:

R. v. Cai

Date:
20030115

2003 BCCA 63

Docket:

CA029467

Registry:  Vancouver

COURT OF APPEAL
  FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

Before:

The Honourable Chief Justice Finch

January 15, 2003

The Honourable Mr. Justice Lambert

The Honourable Mr. Justice Thackray

Vancouver,
        B.C.

BETWEEN:

REGINA

RESPONDENT

AND:

JIAN CAI

APPELLANT

Appellant
  appearing in person with M. Tu, interpreter

A. Budlovsky

appearing
  for the (Crown) Respondent

[1]

FINCH, C.J.B.C.
:
  We have before us an appeal from the order of a Supreme Court judge refusing
  leave to extend the time on a summary conviction appeal.  Mr. Cai, the
  appellant, on the opening of the hearing has asked that this appeal be
  adjourned.  We are prepared to grant that adjournment.

[2]

There are, as it seems to us, a number of
  matters that require some further investigation.  Mr. Cai ought to have an
  opportunity to determine whether there was a ticket issued to Mrs. Cai at the
  time she was stopped for not having operating tail lights on her vehicle.  He
  should also have an opportunity to inquire that if there was no ticket, was
  there an oral direction from a police officer to repair the tail light and
  to report the repair of the tail light to the police under s. 25.15(3) of the
Motor
  Vehicle Act
regulations, and the substance of that direction, if one
  was given.  He should also have an opportunity to inquire, if such an oral
  order was given, whether the making of that direction was within the provisions
  of s. 25.15(3) of the
Motor Vehicle Act
regulations.

[3]

If the order to Mrs. Cai did not require the
  repair or the reporting of the repair to the tail light, does that failure
  or omission invalidate the ticket that was subsequently issued to Mr. Cai?

[4]

Finally, if there was an oral order to Mrs. Cai
  to repair and report the repair, does it apply to Mr. Cai?

[5]

The hearing of this appeal is adjourned for that
  purpose.

[6]

LAMBERT, J.A.
:
  I agree with the disposition of this matter by adjournment as proposed by Chief
  Justice Finch.  I only wish to add that Chief Justice Finchs statement of
  the issues of law alone that may be raised in this appeal is not intended,
  as I
  understand it, to be a complete list of what may be issues of law alone that
  are before the Court in this matter when the appeal comes to be heard.

[7]

FINCH, C.J.B.C.
:
  I agree with the observations of Mr. Justice Lambert.

[8]

THACKRAY, J.A.
: I
  agree with my colleagues.

[9]

FINCH, C.J.B.C.
:
  The appeal is adjourned.

The Honourable Chief Justice Finch

The Honourable Mr. Justice Lambert


Citation:

R. v. Millar

Date:
20030115

2003 BCCA 78

Docket:

CA029658

Registry:  Vancouver

COURT OF APPEAL
  FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

BEFORE THE HONOURABLE

Madam Justice Prowse

January 15, 2003

Vancouver,
        B.C.

BETWEEN:

REGINA

RESPONDENT

AND:

MICHAEL SPENCER MILLAR

APPELLANT

Appellant
  appearing in person

J. Hyman

appearing
  for the (Crown) Respondent

[1]

PROWSE, J.A.
:
  This is an application on behalf of the federal Crown seeking to have Mr.
  Millars motion for an extension of time to review the order of the Chief
  Justice quashed on the basis that a panel of three members of this Court does
  not have jurisdiction to review the decision.

[2]

The manner in which this application arose is
  that Mr. Millar was initially acquitted of charges under the
Income Tax
  Act
by a Provincial Court judge.  The Crown appealed that decision to the Supreme Court, and
  the Supreme Court justice substituted convictions on the four counts.  Mr.
  Millar then sought leave to appeal the decision of the Summary
    Conviction Appeal Court to this Court.  That application
  was heard by Chief Justice Finch.  In reasons for judgment dated November 5,
  2002, Chief Justice Finch dismissed
  Mr. Millars application for leave to appeal from the Summary
    Conviction Appeal Court.  He dismissed the
  application primarily on the basis that Mr. Millar had not identified a
  question of law alone on the appeal, but rather that the issue Mr. Millar
  raised involved questions of mixed fact and law.

[3]

On December 13
th
, Mr. Millar brought
  on an application seeking an extension of time in which to seek a variation
  of the order of the Chief Justice.  It was that motion which triggered the
  Crowns motion which is before me today.

[4]

The question of whether or not there is
  jurisdiction in a panel of this Court to review the decision of a single justice
  on an application for leave to appeal in a summary conviction matter has now
  been resolved definitively by the decision of this Court in
R. v. Stojanovski
,
  (2002) B.C.J. No. 2863.  The Court in that case held that there is no
  jurisdiction in this Court to review the decision of a single justice in that
  regard.  That decision followed upon earlier decisions which, as Mr. Millar
  noted, might have cast some doubt on whether or not this Court had such
  jurisdiction.  As I say, the matter has been laid to rest by the
Stojanovski
decision.

[5]

Mr. Millar sought to raise arguments before me
  that he had not been granted a fair hearing or fair process before Chief
  Justice Finch.  He indicates that he was told something by a justice in
  chambers on a 13(3) reference which led him to believe that he would have to
  come prepared on his application for leave to appeal to argue the appeal as a
  whole.  He says that when he appeared before Chief Justice Finch he was advised
  that that was not the case.  Mr. Millar says he does not feel that he was given
  sufficient guidance by the Chief Justice to indicate how he should proceed.  He
  said there was an unfairness in the process which, in his view, should be the
  subject of review.  He reads the cases decided by this and other courts as
  leaving a doorway open for special circumstances in order to seek a review.  He
  also says that his circumstances amount to special circumstances.

[6]

Apart from the fact that this Court has no
  jurisdiction to review, as already stated, I note that the Chief Justice stated
  in his reasons that:

Mr. Millar ably argued his application in
  person.  At the hearing he was unable to identify for me a question of law
  alone which he would seek to raise on the appeal.  Having given the matter
  further consideration, I have been unable to detect any such question of law
  alone myself.

[7]

The Chief Justice then went on to make the
  finding that the question which Mr. Millar was seeking to raise was a question
  of mixed law and fact.

[8]

In the circumstances, I am satisfied that the
  application by the Crown should be granted, and that Mr. Millars application
  for an extension of time to vary the order should be quashed.

The Honourable Madam Justice Prowse