COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Rahimi,

2017 BCCA 33

Date: 20170118

Docket: CA43407

Between:

Regina

Respondent

And

Amir Rahimi

Appellant

Restriction
on publication
:
A publication ban has been mandatorily
imposed under s. 486.4(1) of the
Criminal Code
restricting the
publication, broadcast or transmission in any way of evidence that could
identify the complainant. This publication ban applies indefinitely unless
otherwise ordered.

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Dickson

On appeal from: An
order of the Provincial Court of British Columbia, dated July 30, 2015 (
R.
v. Rahimi
, Vancouver Docket 230968-2-KC).

Oral Reasons for Judgment

Counsel for the Appellant:

L. Rudovica

Counsel for the Respondent:

J.R.W. Caldwell

Place and Date of Hearing:

Vancouver, British
  Columbia

January 18, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 18, 2017

Summary:

Appeal by R. from his
convictions for attempting to procure a person to become a prostitute,
extortion, and threatening to cause death or bodily harm. The offences were
committed by means of text messages and calls to the victims cellular
telephone. The principal issue at the trial was whether the texts and calls
originated from R. In convicting, the trial judge rejected R.s evidence and
accepted that of the victim and a person who had overheard one of the calls.
Held: Appeal dismissed. There was no basis on which to interfere with the
judges credibility and reliability assessments. The judge did not misapprehend
the evidence or render an unreasonable verdict. This was not a circumstantial
evidence case.

[1]

FRANKEL J.A.
: Amir Rahimi was convicted by Judge Galati of the
Provincial Court of British Columbia of attempting to procure a person to
become a prostitute, extortion, and threatening to cause death or bodily harm. In
each case, the victim was a teenage girl who I will refer to as T.R. All of the
offences were committed on April 24, 2014, by means of text messages and calls T.R.
received on her cellular telephone. That T.R. received those texts and calls
was not seriously in dispute at the trial. What was in dispute was whether those
texts and calls came from Mr. Rahimi. He was not the listed subscriber of
the cellular telephone from which those texts and calls originated.

[2]

T.R., who had a history of substance abuse issues, testified to having
been in an intimate relationship with Mr. Rahimi and to having lived with
him at his mothers apartment for three months in 2013. She stated the texts
and calls came from the cellular telephone number she had for Mr. Rahimi;
that number was stored in the directory of T.R.s cellular telephone under a
nickname she used for him. T.R. identified Mr. Rahimis voice as being
that of the person with whom she spoke.

[3]

One of the telephone calls was overheard by T.R.s youth worker when T.R.
put her own cellular telephone on speakerphone. The youth worker testified that
during the speakerphone call T.R. referred to the man with whom she was
speaking as Amir, to which the man replied [d]ont use my real name, or
words to that effect.

[4]

Mr. Rahimi testified. He denied having an intimate relationship with T.R.
and denied sending the texts or making the calls. He also denied that he and
T.R. had lived together at his mothers apartment. Rather, he stated that, with
a view to helping T.R. get off drugs, he paid her rent for three months so she could
live at a townhouse belonging to one of his friends. During that time he
purchased groceries and cigarettes for her, gave her money, and provided her
with a cellular telephone. I note, as did the trial judge, that it was never
suggested to T.R. in cross-examination that Mr. Rahimi had arranged for
her to live at the townhouse.

[5]

In convicting, the trial judge: (a) rejected Mr. Rahimis evidence; (b)
accepted the youth workers evidence with respect to the overheard call; and
(c) accepted T.R.s evidence that the texts and calls came from Mr. Rahimi.
After reviewing the evidence of these witnesses and discussing it various
frailties and inconsistencies, the judge said this:

[27]      On a consideration of all the
evidence, I do not believe Mr. Rahimi with respect to the nature of his
relationship with [T.R.] or with respect to his denial of having made the
threatening calls and sent the threatening texts. It is very unlikely that a
person who worked temporary jobs and was not willing to commit to paying a second
rent for himself would pay that rent for a troubled young girl that, by his own
admission, he did not know very well at all. It is unclear on the evidence how
he could have afforded the arrangement that he described. It is also unlikely
that a person who did not have a cellphone himself would provide one to someone
else.

[28]      I agree with the submission made
by Crown that
Mr. Rahimi
tried in his evidence to
convey the impression that he had no reason to threaten [T.R.] and that he
never became close enough to her for the court to accept her evidence in
relation to the threats that she,
number
one, knew who she was talking to and
who had provided her with a cellphone from which the text messages originated.

[29]      Although lacking in detail,
[T.R.s] evidence has an air of reality to it missing from Mr. Rahimi's very
detailed evidence. I accept that [T.R.] had been involved in an intimate
relationship with Mr. Rahimi, that she received the calls and texts from the
phone number he had given her, and that she was able to recognize his voice as
well as put context to the threats made on the phone and in the texts to
determine who she was speaking to and I note in this regard that she did call
him by what appears to be his real first name during the last phone call.

[30]      I
reject Mr. Rahimi's evidence and, on a consideration of the entirety of the
evidence, I am satisfied beyond a reasonable doubt that he is the person who
made the threatening calls and texts. In the result, I find the Crown has
proven Mr. Rahimi's guilt beyond a reasonable doubt in respect of all three
counts.

[6]

In his factum Mr. Rahimi states his grounds of appeal are as follows:

54.    The appellant respectfully submits that when
considering all of the
evidence
the trial judge erred with respect to:

a.
Reasonable Doubt:

The appellant
respectfully submits that the trial judge erred in his consideration and
application of the doctrine of reasonable doubt, as it related to the
assessment of witness credibility and reliability.

b.
Circumstantial
Evidence
:

The trial judge erred
by misapprehending the law concerning circumstantial evidence and incorrectly
applied the law to the evidence.

c.
Unreasonable & Unsupported
Verdict:

The appellant respectfully submits
that
verdict
of
the
trial judge is unreasonable and
unsupported
by the evidence. The factual
inferences made by the trial judge such as it being unlikely that someone in
Mr. Rahimis position would help someone in [T.R.s] position are not logical
nor supported by the evidence.

55.       The appellant further submits the trial judge erred
by
misapprehending the
evidence
of [the youth worker] in relation to what words or phrases
she had contemporaneous notes of in contrast to what words she recalled from
her own memory almost a year after over-hearing the conversation,
that did not appear in her
notes
, and that she was not sure the man on the phone specifically
said. The appellant submits this significant error amounted to a
misapprehension of evidence and compromised the appellants right to a fair
trial.

[Emphasis in original.]

[7]

In my view, there is no merit to any of these grounds. For the most
part, Mr. Rahimi seeks to have this Court reweigh the evidence and make
findings that the trial judge was not prepared to make. He seeks to dissect and
isolate aspects of the judges reasons in an attempt to show the judge made
findings incompatible with the evidence.

[8]

For example, Mr. Rahimi submits the evidence as a whole should have left
the trial judge with a reasonable doubt as to whether he was the person who
communicated with T.R. In support of that argument Mr. Rahimi points to aspects
of the evidence touching on credibility and reliability assessments made by the
judge with which he disagrees, in particular in relation to T.R. However, the
judge was alive to and considered the inconsistencies and other matters that
bore on credibility and reliability. It was open to him to reach the
conclusions he did. As Mr. Justice Bastarache and Madam Justice Abella noted in
R. v. Gagnon
, 2006 SCC 17 at para. 20, [2016] 1 S.C.R. 621,
[a]ssessing credibility is not a science and [i]t is very difficult for a
trial judge to articulate with precision the complex intermingling of
impressions that emerge after watching and listening to witnesses and
attempting to reconcile the various versions of events. See also:
R. v.
R.E.M.
, 2008 SCC 51 at para. 48

49;
[2008] 3 S.C.R. 3.

[9]

Another example is Mr. Rahimis argument that the trial judge should not
have accepted the youth workers evidence that she overheard T.R. refer to the man
with whom T.R. was speaking as Amir. This argument focuses on the fact that
when the youth worker made notes of what she overheard shortly after the event,
she put some words in quotation marks but did not put quotation marks around
the word Amir. In addition, Mr. Rahimi points to the fact that the judge placed
no weight on the youth workers in-court identification of Mr. Rahimi as
someone she had met once briefly in 2013, and little weight to her testimony
that that mans voice was the same as the voice she overheard in 2014.

[10]

It is well-established, however, that triers of fact are entitled to
accept all, none, or some of a witnesss evidence and are in the best position
to make findings with respect to the credibility and reliability of witnesses:
R.
v. Fran
ç
ois
,
[1994] 2 S.C.R. 827 at 837;
R. v. R.W.B.
(2003), 174 O.A.C. 198 at
para. 9. Here, the trial judge had the benefit of hearing the youth worker
testify, observing her demeanor, and considering her evidence as a whole. Overall,
the judge found the youth worker to be an honest witness: para. 11. It was
open to him to accept her evidence that the name Amir was mentioned during the
conversation she overheard. Mr. Rahimi has failed to demonstrate any basis
on which this Court could interfere with that finding.

[11]

Also in regard to the youth worker, Mr. Rahimi contends the trial judge
misapprehended what was in her notes of the overheard conversation. Those notes
were canvassed in detail during the youth workers cross-examination. Indeed,
at the conclusion of that cross-examination the trial judge asked several
questions to clarify whether the word Amir appears in the notes. The witness
reiterated that it did, although not in quotation marks. It is clear from the judges
reasons that he appreciated the notes were not a verbatim account of the
conversation and that some of the witnesss evidence was based on her
recollection of the gist of what was said.

[12]

Although Mr. Rahimi contends the trial judge misapplied the law with
respect to the assessment of circumstantial evidence, this was not a
circumstantial evidence case. To the contrary, this was a case in which the
Crown relied on direct evidence to establish all of the essential elements of
the offences.

[13]

Mr. Rahimi also contends the trial judge reversed the burden of proof by
placing an onus on him to show why T.R. would falsely accused him of being the
originator of the texts and calls. This argument focuses on the last sentence
of para. 23 of the judges reasons, wherein he stated:

In a nutshell, Mr. Rahimi
testified to having nothing but an altruistic motive to help [T.R.] partly
because his own father had been a heroin addict and he wanted to assist [T.R.]
because she was a heroin addict or at least was using heroin. Mr, Rahimi was
unable to suggest any reason given the help that he provided to [T.R.] why she
would make these allegations against him several months after their last
contact.

[14]

To put this paragraph into context regard must be had to the fact that
Mr. Rahimi testified he did not have any contact with T.R. after they
parted ways in October 2013. T.R., on the other hand, testified they got back
together approximately two weeks before she received the texts and calls that
are the subject matter of the charges.

[15]

The following exchange took place during Mr. Rahimis cross-examination:

Q         And there was no need for you to threaten her.

A          Why would I need to threaten her? I was sad.

Q         All right. So you didnt threaten her?

A          No, I did not.

Q
And equally, I'm going to suggest to you,
as far as you're aware theres absolutely no reason why Taylor would suggest
that you were threatening her?

A          Well, I don't understand why she would be
saying that.

[Emphasis added.]

No objection was taken to this cross-examination.

[16]

In her closing submissions, Crown counsel, after referring to the fact
that Mr. Rahimi denied being the originator of the texts and calls and
denied having any contact with T.R. since October 2013, said this:

He denies making the threats; the
text, however, on his evidence, he had ceased all contact with this young woman
who he had tried to help in October of 2013. So what could possibly be the
motive for her conjuring up or fingering Mr. Rahimi as the threatener, where
does this animus come from, where does this -- if it is a mistake, it is a
pretty significant one.

[17]

I begin by noting that although Mr. Rahimi does not raise the propriety
of the impugned question as a ground of appeal, it does come perilously close
to asking an accused why a Crown witness would lie. As discussed in
R. v.
Ellard
, 2003 BCCA 68 at para.21, 172 C.C.C. (3d) 28, such questions are
improper. However, unlike
Ellard
, this was a judge-alone trial, and
therefore, the trial judges reasons can be examined to determine what, if any,
impact that question had on the outcome.

[18]

In my view, in the impugned sentence, all the trial judge was doing was
observing that Mr. Rahimis version of events involved T.R. fabricating a very
serious allegation against someone who had been her benefactor and with whom
she had had no contact for a number of months. As a matter of logic and common
sense, this was something the judge was entitled to consider. As Mr. Justice
Doherty stated in
R. v. Batte
(2000), 145 C.C.C. (3d) 449 (Ont. C.A.) at
para. 120, the absence of any reason to make a false allegation is a factor
which juries, using their common sense, will and should consider in assessing a
witness credibility. See also
R. v. Brown
, 2006 BCCA 100 at para. 14,
223 B.C.A.C. 96;
R. v. Jackson
, [1995] O.J. No. 2471 at para. 5 (C.A.). It
is also of significance that the impugned sentence appears in the portion of
the reasons in which the judge is reviewing the evidence. The judges reasons
for rejecting Mr. Rahimis evidence come later, in paras. 27 and 28.

[19]

Mr. Rahimi also contends the trial judge erred by failing to recite and
follow the well-known formula set out in
R. v. W.(D.)
, [1991] 1 S.C.R.
742, in concluding that the Crown had proven its case beyond a reasonable doubt.
However, judges are not required to slavishly follow the steps set out in that
case. As Madam Justice Charron stated in
R. v. Dinardo
, 2008 SCC 24 at
para. 23, [2008] 1 S.C.R. 788:

What matters is that the substance of the
W.(D.)
instruction be respected. In a case that turns on credibility, such as this
one, the trial judge must direct his or her mind to the decisive question of
whether the accuseds evidence, considered in the context of the evidence as a
whole, raises a reasonable doubt as to his guilt.
Put differently, the trial
judge must consider whether the evidence as a whole establishes the accuseds guilt
beyond a reasonable doubt.

[Emphasis added.]

[20]

In this case, it is clear that Mr. Rahimis evidence did not raise a
reasonable doubt in the trial judges mind and that, having considered the
whole of the evidence, the judge was satisfied as to his guilt.

[21]

Finally, I would reject Mr. Rahimis submission that the verdict was
unreasonable. It is enough to say that the verdict is supported by the evidence
the trial judge accepted.

[22]

I would dismiss this appeal.

[23]

SAUNDERS J.A.
: I agree.

[24]

DICKSON J.A.
: I agree.

[25]

SAUNDERS J.A.
: The appeal is dismissed with thanks to counsel.

The
Honourable Mr. Justice Frankel


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

Chow v.
  The Owners, Strata Plan NW 3243,

2017 BCCA
  28

Date: 20170119

Dockets: CA43257; CA43258

Docket: CA43257

Between:

Angela Yick Ying Chow, Kuo Wei Chin,
Tien-Min Chao,
Shu-Chen Lin, Zhe Lu, Yu Huang, Dominic Ching Ming Ng,
Barbara Cheuk Mee Ng, and Alice Sao Kuan Chan

Respondents

(Petitioners)

And

The Owners, Strata Plan NW 3243

Appellant

(Respondent)

-
and -

Docket:
CA43258

Between:

Bryan Co, Li
Chang, Hsiao-Jung Chia, Franklin Chow, Pau Tseng Chu,
Wen Chen Chu, Margaret Mary Forgie, Aurelee Gromada, Pearl Kaushal,
Permod Kaushal, Wu Yeh Kung, Sai Keung Lam, Alicia Waj Yee Lau,
Yin Yi Lau, Kwok Wing Mak, Siu Yee Mui, Woodming Mui, Lori Murakami,
Terry Kit Kwan Ng, Chien-Yu Ou, Annie Sung, Jacqueline Lin Sun,
Kung-Ming Tsui, Richard Xu, Choi Miu Fong Yung, and Wang Zhao

Appellants

(Petitioners)

And

The Owners, Strata
Plan NW 3243

Respondent

(Respondent)

Before:

The
  Honourable Mr. Justice Harris

The
  Honourable Madam Justice Fenlon

The
  Honourable Madam Justice Dickson

On appeal from:  An order of the Supreme Court of British
Columbia,
dated October 23, 2015 (
Chow v. The Owners, Strata Plan NW 3243
,
2015 BCSC 1944, Vancouver Registry Nos. S143231 & S154891).

Counsel for The Owners, Strata Plan NW 3243; and
Bryan
  Co, Li Chang, Hsiao-Jung Chia, Franklin Chow, Pau Tseng Chu, Wen Chen Chu,
  Margaret Mary Forgie, Aurelee Gromada, Pearl Kaushal, Permod Kaushal, Wu Yeh
  Kung, Sai Keung Lam, Alicia Waj Yee Lau, Yin Yi Lau, Kwok Wing Mak, Siu Yee
  Mui, Woodming Mui, Lori Murakami, Terry Kit Kwan Ng, Chien-Yu Ou, Annie Sung,
  Jacqueline Lin Sun, Kung-Ming Tsui, Richard Xu, Choi Miu Fong Yung, and Wang
  Zhao:

P. Dougan

Counsel for
  Angela Yick Ying Chow, Kuo Wei Chin, Tien-Min Chao, Shu-Chen Lin, Zhe Lu, Yu
  Huang, Dominic Ching Ming Ng, Barbara Cheuk Mee Ng, and Alice Sao Kuan Chan:

G.S. Hamilton

Place and Date of Hearing:

Vancouver, British Columbia

December 9, 2016

Place and
  Date of Judgment:

Vancouver, British Columbia

January 19, 2017

Written
  Reasons by:

The
  Honourable Mr. Justice Harris

Concurred
  in by:

The
  Honourable Madam Justice Fenlon

The
  Honourable Madam Justice Dickson

Summary:

The respondents, owners of units in a townhouse complex, petition
to the court for an order enforcing their exclusive use of certain visitor parking
spots adjacent to their units, based on their designation in the registered
strata plan as limited common property (LCP). The appellants, other owners
and the strata corporation, argue that the LCP designation was an error, or alternatively,
it was significantly unfair to not remove the LCP designation. Held: appeal
allowed. New hearing ordered. The chambers judge erred in determining that, in
any event, a finding on whether the LCP designation was an error was irrelevant
given the principle of land title indefeasibility. Section 14.12 of the
Strata Property Regulation provides for the rectification of errors in
registered strata plans, and a definitive finding of whether there was an error
is necessary for the proper disposition of the petitions.

Reasons for Judgment of the Honourable
Mr. Justice Harris:

[1]

These appeals
arise out of two petitions at the core of which is the common question of the legal
status of seven parking spaces in a long-established complex of 37 strata-title
townhouses in Richmond.

[2]

Each townhouse has
a two-car garage, but there is an additional parking space adjacent to each of
seven units. The strata corporation has for many years treated these parking
spaces as guest parking; so too had the owners of the units in the complex,
including the owners of the units adjacent to the extra parking spot. They were
described as visitor parking in the original disclosure statement when the
townhouses were developed. Units, including those with the additional adjacent
parking space, have been bought and sold on the basis that each unit has access
to two parking spots, a fact reflected in the documents of sale. Until
relatively recently, everyone operated on the assumption that each unit came
with two parking spots. It turns out, however, that that assumption may have been
wrong. On the strata plan, these parking spaces are not shown as common
property. They are described rather as limited common property. The strata
plan was deposited and registered in the Land Title Office (LTO) in May 1990.
The effect of describing these lots as limited common property is that the
owners of the adjacent units can assert the exclusive right to use the space
adjacent to that unit. While limited common property is not part of
indefeasible title under s. 23(2) of the
Land Title Act
, R.S.B.C.
1996, c. 250, it is a registered right associated with title constituting
a special category of property over which the unit owner has a substantial
degree of control and something approaching a beneficial interest: see
Moure
v. The Owners
,
Strata Plan NW2099
, 2003 BCSC 1364 at para. 22.

[3]

A conflict has
arisen within the strata corporation. The majority of the owners argue that the
description of these parking spaces as limited common property was obviously
a mistake. Six of the seven owners of units adjacent to these parking spaces
assert a right to exclusive use of them because of their description in the
registered strata plan. Efforts to resolve the problem by passing a resolution
to amend the strata plan foundered because such an amendment requires unanimous
approval, which was not obtained.

[4]

The dissenting
owners, identified by the judge as the Chow petitioners, brought a petition
claiming exclusive use of the parking spaces, an order preventing the strata
corporation from interfering with that use, and ancillary orders, including the
cancellation of fines and penalties assessed against them by the strata
corporation.

[5]

The majority of
the owners, identified by the judge as the Co petitioners, brought their own
petition, supported by the strata corporation, alleging that the description of
the parking spaces in the strata plan was in error and the corporation has
acted unfairly in failing to amend it.

[6]

Although
expressing some sympathy for the position the majority found themselves in, the
judge dismissed the Co petition and made the orders sought in the Chow petition.

[7]

The judge reviewed
the evidence about the description of the parking spaces, how units had been
marketed, and what current owners understood they were purchasing when they
bought their townhouses. He noted evidence from a Mr. David Dyck, who is
the British Columbia land surveyor who signed the strata plan that was
subsequently registered. Mr. Dyck deposed that, based on the difference
between the strata plan and the original disclosure statement, he now believes
that he must have made a drafting error on the strata plan in referring to the
seven parking spots as limited common property. The judge dealt with his
evidence and its relevance at paras. 17‑20 of the judgment:

[17]      In
the absence of direct recollection or additional documents, Mr. Dycks
evidence that he made an error is purely speculative. His evidence is at least
as consistent with a change in plans having been made in the year between the
disclosure statement and the strata plan.

[18]      In
any event, neither the disclosure statement nor Mr. Dycks evidence can
affect the status of the registered strata plan. The most fundamental principle
underlying the B.C. land registry system is set out in s. 23(2) of the
Land
Title Act
, R.S.B.C. 1996, c. 250:

23

(2)
An indefeasible title, as long as it remains in force and uncancelled, is
conclusive evidence at law and in equity, as against the Crown and all other
persons, that the person named in the title as registered owner is indefeasibly
entitled to an estate in fee simple to the land described in the indefeasible
title.

[19]      The
Chow petitioners each hold indefeasible title to their respective strata lots.
The limited common property is not part of the indefeasible title, but it is a
registered right associated with that title. In
Moure v. The Owners
,
Strata
Plan NW2099
, 2003 BCSC 1364, Groberman J., as he then was, said at para. 22
that

[L]imited
common property must be seen as a special category of property over which the
unit owner has a substantial degree of control and something approaching a
beneficial interest.

[20]      The
nature of the right is confirmed by s. 257 of the
SPA
and its
requirement that a designation of limited common property in the original
strata plan can only be changed by a unanimous vote, meaning that it must have
the consent of the owner of the affected unit.

[8]

He then turned to
consider the argument that a strata plan can be amended, but that by failing to
amend it, the strata corporation acted unfairly. This argument is based on
s. 164 of the
Strata Property Act
, S.B.C. 1998, c. 43 [
SPA
],
which provides:

164
(1) On
application of an owner or tenant, the Supreme Court may make any interim or
final order it considers necessary to prevent or remedy a significantly unfair

(a)
action or threatened action by, or decision of, the strata corporation,
including the council, in relation to the owner or tenant, or

(b)
exercise of voting rights by a person who holds 50% or more of the votes,
including proxies, at an annual or special general meeting.

(2) For the purposes of subsection (1), the
court may

(a)
direct or prohibit an act of the strata corporation, the council, or the person
who holds 50% or more of the votes,

(b)
vary a transaction or resolution, and

(c)
regulate the conduct of the strata corporations future affairs.

[9]

The judge took the
view, relying on
Dollan v. The Owners, Strata Plan BCS 1589
, 2012 BCCA
44, that this section permits a court to interfere when the conduct of a
majority oppresses a minority. At para. 24 of the reasons he said:

[24]      Section
164 is generally considered to be a provision that is intended to allow the
court to interfere when the conduct of the majority becomes oppressive to a
minority:
Owners of Strata Plan NW 2212 (Re)
, 2010 BCSC 519 at para. 29.
In
Dollan v. The Owners, Strata Plan BCS 1589
, 2012 BCCA 44 the Court of
Appeal said:

[24]      Section 164
is remedial. It addresses that, despite using a fair process and holding a
democratic vote, the outcome of majoritarian decision-making processes may yield
results that are significantly unfair to the interests of minority owners.
Section 164 provides a remedy to an owner who has been treated significantly
unfairly by co-owners or the strata council that represents them.

[10]

The test, from
Dollan,
is twofold (at para. 30):

1.         Examined objectively, does the evidence
support the asserted reasonable expectations of the petitioner?

2.         Does the evidence establish that the
reasonable expectation of the petitioner was violated by action that was
significantly unfair?

[11]

I take it that the
Co petitioners invoked s. 164(1)(a) in support of its argument, since s. 164(1)(b)
is engaged only by the exercise of the voting rights by a person who holds 50%
or more of the votes at an annual or special meeting. Section 164(1)(a) is
engaged by the action or threatened action by, or decision of, the strata
corporation or council. Hence, I take it that the argument must have been that
the strata corporations or councils failure to amend the by-law as it wanted
to do was significantly unfair and that the Chow petitioners are responsible
for that unfairness because of the way they exercised their voting rights. I do
not intend to comment on whether s. 164(1)(a) provides a remedy in these
circumstances or the soundness of the argument advanced, if that indeed was the
theory underlying the Chow petitioners position, given the basis on which the
judge chose to deal with the matter.

[12]

The judge accepted
that the Co petitioners had a reasonable expectation that the parking spaces
were available for visitor parking, but he was not satisfied that the evidence
demonstrated that that reasonable expectation was violated by a significantly
unfair action by the Chow petitioners. He noted that this case involves a
majority alleging unfair treatment arising from a minoritys exercise of a
right derived from the governing legislation. He summarized his conclusion at paras. 33
and 34:

[33]      In
requiring a unanimous vote to remove a limited common property designation, the
SPA
contemplates that the change can be blocked by a single vote from
the affected unit holderan indication of the importance the legislature placed
on the individual rights arising from that designation. I fail to see how
reliance on that express statutory protection can be characterized as
significantly unfair.

[34]      While
I sympathize with the Co Petitioners, who have been faced with an unpleasant
and potentially expensive surprise, that sympathy cannot override the Chow
petitioners reliance on rights that the strata plan and the
SPA
specifically gave them.

[13]

As I would state
the issues on appeal, the Co petitioners and the strata corporation contend
that the chambers judge failed to give proper effect to the surveyors
admission that he had made a mistake. As a result, he did not properly define
the true state of the record before embarking on his analysis under s. 164
of the
SPA
to decide whether the effective exercise of a veto by the
Chow petitioners resulted in action (or failure to act) by the corporation or
council that was significantly unfair. And when he engaged in that analysis,
he failed to give effect to the significant unfairness of permitting the Chow
petitioners to rely on the strata plan when to do so defeated the reasonable
expectations of all owners, imposed costs on the strata corporation to replace
the visitor parking, put the strata corporation in contravention of municipal parking
bylaws, and conferred a significant financial windfall on the Chow petitioners
by increasing the value of their units.

[14]

The Chow
petitioners defend the judgment, arguing that the judge appreciated the factual
circumstance relating to the strata plan finding, in effect, that it had not
been shown that there had been a mistake when it was deposited, but in any
event of that fact, the judge properly applied the law recognizing that it was
not significantly unfair to rely on rights conferred by statute and the
rights derived from registration of the strata plan in the LTO

to resist the proposed amendment.

[15]

Much of the
argument on appeal focused on how the case had been argued before the judge.
There seems to be no dispute that the judge was invited to decide whether the
strata plan identified the parking lots in error as limited common property. It
appears though that the thrust of the Co petitioners argument was to use the
fact of the alleged error as a factor to be taken into consideration in
assessing whether refusing to support the motion to amend the strata plan was
significantly unfair on the basis I have described above. In other words, the
focus was on whether the use of a veto provided by s. 257 led to significant
unfairness given the apparent need to amend the strata plan to deal with the
mistake in the plan. Section 257 provides, insofar as is relevant:

To amend a
strata plan to designate limited common property, or to amend a strata plan to
remove a designation of limited common property made by the owner developer at
the time the strata plan was deposited or by amendment of the strata plan, the
strata plan must be amended as follows:

(a)
a resolution approving the amendment must be passed by a unanimous vote at an
annual or special general meeting;

[16]

In my view, the
issue as it was framed before the judge did not adequately focus on the issues
he had to decide and, as a result, he was led into error given his view of the
status of the registered strata plan. Those errors are the following.

[17]

First, the judge
expressed the view that the only way to amend the strata plan was by way of a
resolution passed under s. 257: at para. 20. Respectfully, I
disagree.

[18]

Second, and linked to the first error, he therefore concluded that neither
the disclosure statement nor Mr. Dycks evidence can affect the status of
the registered strata plan at para. 18. Again, I disagree because there
is another statutory provision to correct an error.

[19]

As a result, he
appears to have proceeded on the basis that it was irrelevant whether the
strata plan contained an error because the statute as a whole contemplated that
the Chow petitioners were entitled to rely on the strata plan as deposited and
registered when it came to exercising rights in connection with a resolution
under s. 257. It may be for this reason that the judge did not make a
definitive finding of fact one way or the other about whether there had been an
error in the drafting of the plan. Rather, the judge focused on Mr. Dycks
evidence, describing it as purely speculative and suggesting that it was at
least as consistent with a change in plans after the disclosure statement of a
year earlier: at para. 17. The judge did not grapple with the totality of
the evidence bearing on the question because he appears to have regarded it as
essentially irrelevant.

[20]

In my opinion, the
first question that needed to be answered definitively was whether the strata
plan contained an error in its description of the parking spots as limited
common property. Such a finding is the foundation for the rest of the analysis.

[21]

Section 257 is not
the only means by which errors in the designation of property in a strata plan
can be rectified. Errors may be corrected under the
Strata Property Regulation,
B.C. Reg 43/2000 (the
Regulation
).

Section 14.12
of the
Regulation
provides:

Correction of errors

14.12
(1)
In this section:

error
means any erroneous measurement or
error, defect or omission in a registered strata plan;

registered
strata plan
includes
any document, deposited in the land title office, that

(a)
is referred to in section 245(a) or (b) of the Act,

(b)
forms part of a strata plan under the
Condominium Act
, R.S.B.C. 1996,
c. 64 or a former Act, or

(c)
amends or replaces a document referred to in paragraph (a) or (b).

(2)
If it appears to the registrar that there is an error in any registered strata
plan, the registrar may give notice or direct that notice be given to any
person, in the manner and within the time determined by the registrar, and the
registrar, after considering submissions, if any, and examining the evidence,
may correct the error.

[22]

There is clearly a
jurisdiction for the registrar to correct an alleged error such as the one
engaged in this case because what is alleged is an error or defect in a
registered strata plan. The registrar may give notice to any person, examine
the evidence, and consider submissions in reaching a decision about whether
there has been an error, and whether and how to correct it.

[23]

If that procedure had been followed here, there may have been no need to
resort to a resolution under s. 257. Clearly, s. 257 is not the only
way to amend a registered strata plan. Indeed, it may not be the appropriate
section under which to proceed, because, as I read the section, it contemplates
a procedure for amending a strata plan when there is no issue about the
correctness of the plan, but where for other reasons a strata corporation wants
to change the designation of property from one status to another. In light of
the existence of s. 14.12 in the
Regulation
, s. 257 is not the
only means to amend a registered strata plan and,
prima facie
, is not
the relevant provision for correcting errors.

[24]

The registrar was
asked to exercise the jurisdiction under s. 14.12 but declined, apparently
because the issue was before the courts. Whether or not that is all that can be
said about the reason for declining jurisdiction, the rectification issue was
before the court. The Legal Basis portion of the respondents Amended
Response to Petition, filed April 28, 2014, expressly sought rectification
of the mistake as provided for under s. 14.12. I am satisfied that in
these circumstances a court has the jurisdiction to deal with the issue posed
by s. 14.12 and make a declaration determining rights under the section
and, if the court determines there was such an error that should be rectified,
pronounce an order directing the registrar to correct the record. I do not rule
out the possibility that a court might refer the matter back to the registrar
to exercise his or her powers under the
Regulation
and stay proceedings
in the court pending that determination.

[25]

In the result,
there needed to be a definitive finding of fact on whether the strata plan
contained an error that should be corrected. As I read his reasons, the judge
did not make such a finding, and was misdirected into stating that such a
finding was irrelevant. Had that finding been made, the issue of whether the strata
corporation was acting in a significantly unfair manner in failing to pass the
s. 257 resolution may have been irrelevant. Indeed, the judge seemed to
rely on the Chow petitioners exercise of a right arising from the governing
legislation to find that there was no significant unfairness: at paras. 32‑33.
A finding as to any error could affect that right, and in turn, affect the
significant unfairness assessment.

[26]

In any event, I
cannot agree that whether or not there had been an error is irrelevant to the analysis
undertaken by the judge in dealing with the case as it was presented to him. In
my respectful view, the equities of that analysis can only properly be
undertaken if it is known whether the Chow petitioners were relying on a state
of title that reasonably they knew was in error, for example, or that was in
fact, to the surprise of most involved, the true state of title. I do not think
it advisable to go any further in this analysis. Respectfully, I think the
judge erred in treating it as irrelevant.

[27]

I am not persuaded
that the judge was properly invited to decide what I see as the essential first
question in the analysis, although clearly there was much argument about the error
and a mass of evidence before him. However, the issue was properly pleaded and
its relevance to the proper disposition of the petitions is not in doubt.

[28]

Had the issue been
fully addressed, one might expect to have seen an explicit effort to grapple
with the relevant evidence. The issue was whether the strata plan, as deposited,
erroneously described the parking stalls as limited common property. The
disclosure statement filed by the developer a year earlier than the plan
described the stalls as visitor parking. A disclosure statement is a document
required to be filed by statute, and purchasers are entitled to rely on it.
Material changes to a development require an amendment to the disclosure
statement:
Woo v. Onni Ioco Road Five Development Limited Partnership,
2014
BCCA 76. A change to these parking spots from common to limited common property
would, it was accepted, have required the filing of an amended disclosure
statement. There was no such amendment in relation to these stalls, although
there was an amended disclosure statement dealing with other matters. The Chow
petitioners acknowledged that there was no evidence that the developer was not
complying with its regulatory obligations. The amendment that was made would
tend to suggest that it was complying with them. The only evidence of a change
in plan respecting these parking stalls is derived from the plan itself, the
suggestion being that the error would not be repeated within the plan unless it
was a deliberate change. But that does not appear to follow because once the
error was first made, it may simply have been repeated in respect of each
stall. Finally, subsequent conduct may also be probative of whether an error
had been made. All of these issues need to be weighed and assessed to determine
the fundamental question whether the strata plan contained an error.

[29]

For these reasons,
I would allow the appeal in the Co petition and set aside the orders below in
both petitions. I have reluctantly concluded that this Court is not in a
position on the record before us to make the necessary findings to substitute
an order disposing of the petitions. Unfortunately, it is necessary to remit
the petitions to the Supreme Court for new hearings. Although they were
requested, this is not, in my opinion, a case justifying an award of special
costs.

The
Honourable Mr. Justice Harris

I
agree:

The Honourable Madam Justice Fenlon

I
agree:

The
Honourable Madam Justice Dickson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. De Aquino,

2017 BCCA 36

Date: 20170119

Docket: CA43417

Between:

Regina

Respondent

And

Iury Martins De
Aquino

Appellant

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Stromberg-Stein

On appeal from: an
order of the Provincial Court of British Columbia, dated
February 25, 2014 (
R. v. De Aquino
, Colwood Docket No. 160904).

Oral Reasons for Judgment

Counsel for the Appellant:

J.J. Blazina

Counsel for the Respondent:

J. Walker

Place and Date of Hearing:

Vancouver, British
  Columbia

January 19, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 19, 2017

Summary:

Appeal of conviction
for possession of cocaine for the purpose of trafficking
based
on circumstantial evidence. Appeal dismissed.
The trial
judges inferences, based on common sense, could reasonably be drawn from the
evidence. This was a strong and compelling circumstantial case where the judge
was entitled to draw the inferences he did and the verdict is one that a
properly instructed trier of fact, acting judicially, could reasonably have
rendered.

INTRODUCTION

[1]

STROMBERG-STEIN J.A.
:
The appellant, Iury
Martins De Aquino, appeals his conviction in provincial court for possession of
cocaine for the purpose of trafficking. The evidence implicating the appellant
was circumstantial. He argues the verdict is unreasonable; or to the extent the
verdict is reasonable it is still unreasonable because the trial judge came to
conclusions based on irrational or illogical reasons.

FACTS

[2]

Around 12:30 a.m. on July 18, 2013, two constables attended at the scene
of an accident involving a motorcyclist and a skateboarder. When they arrived,
an ambulance was present and the motorcycle had been moved off to the side of
the road. Four or five people were standing on the northeast corner of the
intersection, including two or three with skateboards.

[3]

A bystander, who lived nearby, had come to the accident scene when he
heard the accident. When he heard the lights and sirens, he saw the
motorcyclist stop pacing around, and reach his hand under a hedge at the
northeast corner of the intersection. The bystander could only see the top of
the motorcyclists hand, so he could not see what, if anything was in the hand.
The motorcyclist then continued pacing. The bystander told one of the
constables that just before the police arrived he saw the motorcyclist place
one hand underneath the hedge. He took the constable to the spot. The constable
searched with her flashlight and found the remains of a bag of chips and a
plastic bag stuck in the hedge about three inches off the ground, containing 26
smaller bags of white powder, which was conceded at trial to be cocaine. The
appellant was arrested when he came out of the ambulance.

[4]

The appellant did not testify at trial and did not call any other
evidence. He conceded that if the court found he possessed the cocaine in the
manner it was packaged (.75 grams per package for a total of 19.5 grams) it
would lead to the inference it was for the purpose of trafficking. The value of
the cocaine was in the range of $1,500-$2,000.

TRIAL
JUDGMENT

[5]

The issue at trial was whether the Crown had proven beyond a reasonable
doubt that the appellant was in possession of the cocaine. The trial judge
began by noting the criminal standard of proof and how that applied where the
Crowns case was largely circumstantial. He stated:

[8]        The Crowns case
here is, in large part, circumstantial. In cases of circumstantial evidence,
the standard of proof is often stated in a slightly different way. In a
circumstantial case, it is often said that criminal conviction can only follow
if the evidence satisfies the court that there is no other rational explanation
for the circumstances apart from the guilt of the accused. I emphasize,
however, that the use of that phrasing in not intended to suggest that there is
any difference in the general standard of proof in a circumstantial case as
opposed to any other criminal case.

[6]

The judge noted that beyond a reasonable doubt is a very high standard
indeed, but it does not require proof to a mathematical certainty; and
further, that he must consider all of the evidence in its totality in drawing inferences
and determining whether the guilt of the accused person has been established
beyond a reasonable doubt: at paras. 9-10.

[7]

The judge first considered whether the person the bystander observed
placed the cocaine in the hedge. He found that it was, because:

·

Both the bystander and the
constable identified the same general area in the northeast corner of the
intersection when asked to point out where the hedge was on a photo at trial.
More importantly the bystander had led the constable to the precise location
where he had seen the hand go under the hedge just a few minutes earlier, and
that was the same location where the cocaine was found: paras. 17-18.

·

The substance was valuable, and it
was unlikely a person would put it there unless there was some perceived
urgency and it was unlikely it remained there, unclaimed, for any substantial
period of time: paras. 17, 28. Therefore, it was put there recently by someone
at the scene of the accident: para. 19.

[8]

Next, the judge considered whether the person the bystander observed was
the accused person. He concluded he was, because:

·

The bystander had no doubt that it was the motorcycle rider at
the accident scene who put his hand under the hedge, because he was the only
person wearing that kind of jacket, which the trial judge took to mean a
motorcycle jacket: para. 21.

·

According to both constables and the bystander, there was only
one motorcycle at the scene of the accident and only one person (the accused)
in motorcycle garb, including a motorcycle jacket and a helmet: paras. 21, 25.

·

The bystander described the person as being in some pain and
seeking some medical assistance by going inside the ambulance. The accused person
was the only one injured, no one else sought medical treatment, and he was
inside the only ambulance. The skateboarder was not injured, and the constable noted
the skateboarder was in regular street clothes:

paras. 22-23.

·

The accused was arrested just as, or just after, he exited from
the ambulance: para. 25.

[9]

The judge found the following facts did not raise a reasonable doubt:

·

The bystander did not see anything actually being stashed away
because he could not see what was in the motorcyclists hand. He saw only the
top of the motorcyclists hand: paras. 14-15.

·

The bystander described the person who placed his hand under the hedge
as being in his twenties or thirties and disagreed that the person was
approaching 40. In fact, the accused person was 38 years old at the time. However,
the judge said he appeared youthful:

paras. 26-27
.

[10]

Further, the judge considered that because the appellant was involved in
the accident he would anticipate dealing with the police and would want to
quickly dispose of the cocaine.

[11]

Having considered the whole of the evidence the trial judge found the
evidence implicates Mr. De Aquino in such a way that it is not possible to say
that there is any other rational conclusion to be drawn apart from his
possession of the cocaine and an attempt on his part to hide it in the hedge
prior to the arrival of the police and ambulance personnel at the accident
scene.: para. 32. He found the appellant guilty of possession of cocaine for
the purpose of trafficking.

ISSUE

[12]

The sole issue on appeal is whether the guilty verdict was unreasonable,
and therefore should be set aside pursuant to s. 686(1)(a)(i) of the
Criminal
Code,
R.S.C. 1985, c. C-46.

[13]

The appellant advances two main arguments.

[14]

First, he argues the judge failed to appreciate that the evidence at
trial did not establish that only the appellant had the opportunity to place
the drugs under the hedge. In other words, the evidence did not support a
finding that the appellant had the
exclusive
opportunity to place the
drugs under the hedge.

[15]

Second, he argues the judge erred in his reasoning process by imputing
a motive to hide drugs. In essence, the appellant argues that he would only
possibly have the motive to hide drugs if he had possessed the drugs to begin
with, and by finding he had that motive, the judges reasoning puts the cart
before the horse and wrongly reversed the burden of proof by imputing a
motive that could only have existed if the appellant were already guilty.

LAW

Unreasonable Verdict

[16]

Section 686(1)(a)(i) of the
Criminal Code
, R.S.C. 1985, c. C-46,
provides, in relevant part:

686 (1) On the hearing of an appeal against a
convictionthe court of appeal

(a) may allow the appeal where
it is of the opinion that

(i) the verdict should be set aside on the ground that
it is unreasonable or cannot be supported by the evidence

[17]

In
R. v. Villaroman,
2016 SCC 33 at para. 55, Cromwell J. for the
Court described the characteristics of a reasonable verdict as follows:

[55]      A verdict is reasonable if it is one
that a properly instructed jury acting judicially could reasonably have
rendered:
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381. Applying
this standard requires the appellate court to re-examine and to some extent
reweigh and consider the effect of the evidence:
R. v. Yebes
, [1987] 2
S.C.R. 168, at p. 186. This limited weighing of the evidence on appeal must be
done in light of the standard of proof in a criminal case. Where the Crowns
case depends on circumstantial evidence, the question becomes whether the trier
of fact, acting judicially, could reasonably be satisfied that the accuseds
guilt was the only reasonable conclusion available on the totality of the
evidence:
Yebes
, at p. 186;
R. v. Mars
(2006), 205 C.C.C.
(3d) 376 (Ont. C.A.), at para. 4;
R. v. Liu
(1989) 95 A.R. 201 (C.A.),
at para. 13;
R. v. S.L.R.
, 2003 ABCA 148 (CanLII);
R. v. Cardinal
(1990), 106 A.R. 91 (C.A.);
R. v. Kaysaywaysemat
(1992), 97 Sask. R. 66
(C.A.), at paras. 28 and 31.

[56]      The
governing principle was nicely summarized by the Alberta Court of Appeal in
Dipnarine
,

at para. 22.

The court noted that [c]ircumstantial evidence does
not have to totally exclude other conceivable inferences and that a verdict is
not unreasonable simply because the alternatives do not raise a doubt in the
jurys mind. Most importantly, [i]t is still fundamentally for the trier of
fact to decide if any proposed alternative way of looking at the case is
reasonable enough to raise a doubt.

[18]

The test to be applied under s. 686(1)(a)(i) in determining whether a
verdict is reasonable is whether the verdict is one that a properly instructed
trier of fact acting judicially could reasonably have rendered. This test is
the same for a judge-alone trial:
R. v. Sinclair
, 2011 SCC 40. The
application of this test involves some element of subjective assessment, as
this Court
re-examines and to some extent reweighs and considers
the effect of the evidence. This Court
is required to bring its judicial
experience to bear:
Biniaris
at paras. 40-42. However, while this Court
may engage in a re-examination and reweighing of the evidence for the limited
purpose of deciding whether the verdict is reasonable, it is not the function
of this Court to substitute its views for those of the trial judge. It is for
the trier of fact to distinguish between reasonable doubt and speculation, and
such an assessment is only set aside if it is unreasonable.

Circumstantial
evidence

[19]

A guilty verdict based on circumstantial
evidence is sound if the trier of fact is satisfied beyond a reasonable doubt
that the guilt of the accused is the only reasonable inference to be drawn from
the proven facts:
R. v. Cooper,
[1987] 1 S.C.R. 860.

[20]

In
Villaroman
,

Cromwell
J. noted that the words rational and reasonable are virtually synonyms
and the reasonable alternatives do not need to be exclusively drawn from proven
facts. In explaining the trier of facts task, he said:

[35]      The issue with respect
to circumstantial evidence is the range of reasonable inferences that
can be drawn from it. If there are reasonable inferences other than guilt, the
Crowns evidence does not meet the standard of proof beyond a reasonable doubt.

[36]      I agree with the respondents position that a
reasonable doubt, or theory alternative to guilt, is not rendered speculative
by the mere fact that it arises from a lack of evidence. As stated by this
Court in
Lifchus
,

a reasonable doubt is a doubt based
on reason and common sense which must be logically based upon the
evidence
or lack of evidence
: para. 30 (emphasis added). A certain
gap in the evidence may result in inferences other than guilt. But those
inferences must be reasonable given the evidence and the absence of evidence,
assessed logically, and in light of human experience and common sense.

[37]      When
assessing circumstantial evidence, the trier of fact should consider
other plausible theor[ies] and other reasonable possibilities which are
inconsistent with guilt:
R. v. Comba
, [1938] O.R. 200 (C.A.),
at pp. 205 and 211, per Middleton J.A., affd [1938] S.C.R. 396;
R. v.
Baigent
, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20;
R. v. Mitchell
,
[2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the
Crown thus may need to negative these
reasonable
possibilities,
but certainly does not need to negative every possible conjecture, no matter
how irrational or fanciful, which might be consistent with the innocence of the
accused:
R. v. Bagshaw
, [1972] S.C.R. 2, at p. 8. Other plausible
theories or other reasonable possibilities must be based on logic and
experience applied to the evidence or the absence of evidence, not on
speculation.

[21]

In explaining the difference between a plausible theory and speculation,
Cromwell J. said:

[38]      Of course, the line between a plausible theory
and speculation is not always easy to draw. But the basic question is whether
the circumstantial evidence, viewed logically and in light of human experience,
is reasonably capable of supporting an inference other than the accused is
guilty.

[39]      I have found two particularly useful statements of
this principle.

[40]      The first is from an old Australian case,
Martin
v. Osborne,
55 C.L.R. 367, at p. 375:

In the inculpation of an accused
person the evidentiary circumstances must bear no other
reasonable explanation
.
This means that,
according to the common course of human affairs, the
degree of probability that the occurrence of the facts proved would be
accompanied by the occurrence of the fact to be proved is so high that the
contrary cannot reasonably be supposed.

[41]      While this language is not appropriate for a jury
instruction, I find the idea expressed in this passage - that to justify a
conviction, the circumstantial evidence, assessed in light of human experience,
should be such that it excludes any other reasonable alternative - a helpful
way of describing the line between plausible theories and speculation.

[42]      The second is from
R. v. Dipnarine,
2014
ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that
[c]ircumstantial evidence does not have to totally exclude other conceivable
inferences; that the trier of fact should not act on alternative
interpretations of the circumstances that it considers to be unreasonable; and
that alternative inferences must be reasonable, not just possible.

[43]      Where the line is to be drawn between speculation
and reasonable inferences in a particular case cannot be described with greater
clarity than it is in these passages.

[Emphasis
by Cromwell J.]

[22]

In this case, on appellate review, this Court must consider whether the
properly instructed trier of fact, acting judicially and considering the
totality of the evidence, could reasonably conclude that the only reasonable
conclusion to be reached is that the appellant possessed the cocaine found
under the hedge for the purpose of trafficking. The assessment of the evidence
is made in light of human experience and common sense.

DISCUSSION

Exclusive
Opportunity

[23]

The appellants first and primary contention is
that the judge did not, and could not, find that the evidence supported a
conclusion that the appellant had the exclusive opportunity to place the
cocaine in the hedge. This submission is based primarily on the evidence that
other people were present in the general area identified by the bystander.

[24]

The Crown argues that the possibility that
someone else placed the drugs there is speculative in light of the totality of
the evidence.

[25]

There is no suggestion that the judge
misapprehended the evidence. He acknowledged that the bystander did not see the
appellant put the cocaine under the hedge and only observed the appellant reach
his hand under a few minutes before the police arrived.

[26]

The appellant relies on
R. v. Bock
, 2016
BCCA 195. In
Bock
, this Court allowed an appeal from a guilty verdict on
the basis that other rational conclusions were available on the evidence. In
that case, the evidence disclosed specific facts supporting a reasonable
conclusion that, at the time, the accused person actually did not reside at the
apartment where drugs were found, and had perhaps moved. Such evidence included
a signed lease for another residence, moving boxes, and the presence of other
people and personal items belonging to other people in the apartment. Many
people were observed moving in and out of the apartment, and the police
admitted that they had not watched or maintained continuity of the apartment.

[27]

In this case, the appellant essentially relies
on the presence of other people at the accident scene to argue that other
reasonable conclusions were available; namely, that one of the other bystanders
placed the cocaine there.

[28]

In my view, the appellants argument ignores the
bystanders uncontested evidence that he saw the motorcycle rider place his
hand under the hedge in the location where the cocaine was found a short time
after. It is not disputed there were other people at the scene. But it is
similarly not disputed that the appellant was the only motorcyclist present,
and the only person there dressed in motorcycle garb. The judge correctly and
fairly noted the evidence on this point, including the inconsistencies
regarding the material of the jacket, which inconsistencies he concluded were
immaterial.

[29]

Looking at the evidence through the lens of
judicial experience and applying a good dose of common sense
,
(
R. v.
Swales,
2014 BCCA 350 at para. 65) I would not accede to the appellants
argument on this point.
Bock
is distinguishable based on its
substantially different facts. I conclude it was reasonable for the trial judge
to find that the only reasonable conclusion supported on the evidence here is
that the appellant placed the cocaine under the hedge. On an assessment of the
totality of the evidence in this case, the appellants theory was not a
plausible one based on logic and experience and was, at best, speculative:
Villaroman
at paras. 35-36.

Imputing a Motive

[30]

The appellants second argument is that the
judge improperly imputed to him a motive by inferring that, because of the
value of the cocaine, it must have been placed there recently and under some
sense of urgency. He argues that a motive and opportunity to commit the crime,
with nothing more, is insufficient to sustain a conviction absent evidence of
exclusive opportunity. The appellant relies on the following passage from
Yebes
at para. 26:

[26]      This Court, in
considering an appeal where the sole issue raised is the application of s.
613(1)(a)(i) of the Code, must put itself in the place of the Court of Appeal
and, pursuant to the powers given in s. 623(1) of the Code, consider the matter
anew, and if error be found make such order as the Court of Appeal should have
made. In pursuit of that objective, I can say that there was evidence before
the jury from which it could reasonably find that the two boys were dead before
the fire in the mattress was set and that they did not die from natural causes.
There was evidence upon which the jury could reasonably find that the fire in
the mattress was not accidental but was set by a human hand with the aid of a
liquid accelerant. There was evidence upon which they could reasonably find
that the appellant Yebes had a motive for killing the boys and that he had an
opportunity to do so. If there were no further evidence upon which to support
the Crown's case there could be no doubt that the appellant would be entitled
to an acquittal,
for evidence of motive alone would not be sufficient to
base a conviction and coupling opportunity with motive in the absence of other
evidence would not advance the case unless there were evidence of exclusive
opportunity.

[Emphasis added]

[31]

However, later in that same paragraph in
Yebes
, McIntyre J.
reviewed the statement of the same principle in
R. v. MacFarlane
(1981),
61 C.C.C. (2d) 458 (Ont. C.A.), and stated that:

It may then be concluded that
where it is shown that a crime has been committed and the incriminating
evidence against the accused is primarily evidence of opportunity, the guilt of
the accused is not the only rational inference which can be drawn unless the
accused had exclusive opportunity.
In a case, however, where evidence of
opportunity is accompanied by other inculpatory evidence, something less than
exclusive opportunity may suffice.
This was the view expressed by
Lacourcière J.A. in
R. v. Monteleone
(1982), 67 C.C.C. (2d) 489
(Ont. C.A.), at p. 493, where he said:

It is not mandatory for the
prosecution to prove that the respondent had the exclusive opportunity in a
case where other inculpatory circumstances are proved.

It is also supported by further
comments of Martin J.A. in
R. v. Stevens
(1984), 11 C.C.C. (3d)
518, at p. 534
et seq
., and see, as well,
Imrich v. The Queen
,
[1978] 1 S.C.R. 622, per Ritchie J. at p. 627.

[Emphasis added]

[32]

This is not a case of exclusive opportunity
alone. This is a case where the evidence demonstrates opportunity is
accompanied by other inculpatory evidence. In this case, the bystanders
evidence that the person wearing motorcycle clothes reached his hand under the
hedge where the drugs were found shortly after is that other inculpatory
evidence. No explanation was provided as to why the appellant reached under the
hedge. While the appellant was entitled to remain silent, and no adverse
inferences may be drawn in that regard, this Court noted in
R. v. Wu,
2010
BCCA 589, at para. 46, that the fact the appellant did not offer any
explanation in the face of otherwise inculpatory facts is a matter this Court
can consider in assessing the reasonableness of the verdict.

[33]

In my view, the judge did not impute any motive
or reverse any onus. The judge observed that the drugs were valuable. This
finding is uncontested. The judge inferred from this finding that the person
who placed the drugs under the hedge must have done so recently under some
sense of urgency. This was a common sense inference that was open to him to
make. The judge combined this common sense inference with the totality of the
evidence in reaching his verdict. It is fundamentally for the trier of fact to
draw the line in each case between reasonable doubt and speculation, and absent
unreasonableness, it is not for this Court to speculate upon alternative
inferences. In my view it was reasonable for the judge to conclude that the
evidence as a whole excluded all reasonable alternatives to guilt.

[34]

Accordingly, I would not accede to this
argument.

CONCLUSION

[35]

In my view, the judge properly instructed
himself as to the law on the criminal standard of proof in a circumstantial
case. He properly evaluated the strength of the evidence. He recognized where
the evidence may be weak or unpersuasive, and accorded those aspects little or
no weight. His inferences, based on common sense, could reasonably be drawn
from the evidence. This was a strong and compelling circumstantial case where
the judge was entitled to draw the inferences he did and the verdict is one
that a properly instructed trier of fact, acting judicially, could reasonably
have rendered.

[36]

In the result, I would dismiss the appeal.

[37]

SAUNDERS J.A.
: I agree.

[38]

FRANKEL J.A.
: I agree.

[39]

SAUNDERS J.A.
: The appeal is dismissed.

The Honourable Madam Justice Stromberg-Stein


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Nelson v. British Columbia (Adult Forensic Psychiatric
  Services),

2017 BCCA 40

Date: 20170120

Docket:
CA43723

Between:

Eric Konrad
William Nelson

Appellant

And

Director of Adult
Forensic Psychiatric Services

Respondent

And

The Attorney
General of British Columbia

Respondent

Corrected judgment: The
text of the front cover was corrected on January 31, 2017.

Before:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Dickson

On appeal from: An
order of the British Columbia Review Board,
dated April 4, 2016, in the matter of Eric Konrad William Nelson

Oral Reasons for Judgment

Counsel for the Appellant:

M.B. Rankin

M. Putnam (A/S)

Counsel for the Respondent, Director of Adult Forensic
  Psychiatric Services:

D.K. Lovett, Q.C.

Counsel for the Respondent, Attorney General of British
  Columbia

L.D. Hillaby

Place and Date of Hearing:

Vancouver, British
  Columbia

January 13, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 20, 2017

Summary:

Mr. Nelson appeals the Review
Boards disposition finding that he poses a significant threat to public safety
and imposing a conditional discharge. He argues the Board erred in interpreting
the significant threat standard and in misapprehending the expert evidence
and Directors position at the hearing. Held: appeal dismissed. The Boards
decision was reasonable and supported by the evidence. While the Board
misstated the Directors position, this error was inconsequential because it
fully considered the evidence and legal test to determine the appropriate
disposition. The Board did not misinterpret the significant threat standard
or misapprehend the expert evidence, which supported a finding that he poses a
significant threat to public safety.

Introduction

[1]

DICKSON J.A.
: Mr.
Nelson came under the jurisdiction of the British Columbia Review Board after
being found not criminally responsible on account of mental disorder on
December 19, 2014 on eight criminal offences. A few months later, the Board
conducted an initial hearing pursuant to s. 672.47 of the
Criminal Code
,
R.S.C. 1985, c. C-46 and imposed a conditional discharge. Following a review
hearing on April 4, 2016, the Board concluded that Mr. Nelson continues to pose
a significant threat to public safety and ordered another conditional discharge
on the same terms as the previous disposition (the "Order"). He
appeals from the Order, contending the Board's conclusion was unreasonable,
speculative and based on a misapprehension of the evidence.

[2]

On appeal, Mr. Nelson seeks an order from this
Court quashing the Order and remitting the matter back to the Board for a fresh
determination. For the reasons that follow, I would dismiss the appeal.

Background

[3]

Mr. Nelson committed the index offences while in
a prolonged state of acute mania. The index offences include assault, attempted
murder, theft, firearms offences, and mischief, all committed over the course
of several days in May 2013. In summary, Mr. Nelson engaged in a series of rash
and violent acts in which he damaged property and repeatedly fired a shotgun at
a stranger, seriously injuring him. He also harassed employees at an Indian
Band office, stole a truck and drove it erratically, and behaved bizarrely
following his arrest.

[4]

Mr. Nelson is 57 years old. Prior to these
events, he had no criminal record and no formal contact with mental health
professionals. However, he had long experienced mood problems, including
depression and occasional episodes of mania. In October 2014, he was diagnosed as
suffering from Bipolar Disorder Type 1 by Dr. George Wiehahn, the forensic psychiatrist
charged with treating him in connection with the Order.

[5]

Mr. Nelson's bipolar disorder presents in an
unusual manner. Most individuals with the diagnosis experience a manic episode
about once every 18 months, but Mr. Nelson experiences them only once
every 10 years or so. However, the exact periodicity of his manic episodes is
unknown, and, when they occur, they may be accompanied by psychosis. None of
his prior episodes involved violence and all subsided spontaneously, without
medical intervention.

[6]

Because of the long intervals between his manic episodes,
Mr. Nelson does not take medication to help control his bipolar disorder. Dr. Wiehahn
recommends this treatment approach. Since being diagnosed, he has regained his mental
stability and suffered no further mania or psychosis. He has also demonstrated good
insight into his illness and cooperated with his treatment team by attending
appointments and abiding by their recommendations. His likely response to
symptom development and intervention is unknown because he has not experienced
a manic episode since his illness was diagnosed.

Review Board Hearing

[7]

As is common at its hearings, the Board received
a large volume of written and oral evidence for its review and consideration.
This included several medical-legal reports, community case management reports,
and documents concerning the index offences. The Board also heard
viva voce
testimony
from three witnesses: Dr. Wiehahn, Mr. Nelson's case worker, Lisa Daily, and
Mr. Nelson. The Director of Adult Forensic Psychiatric Services, the Crown and
Mr. Nelson were represented by counsel at the hearing.

[8]

Mr. Nelson described his current circumstances
and future plans in his
viva voce
testimony. He explained that he has a
supportive new partner who hopes to move with him to Grand Forks, where he
plans to take up a new job and rebuild his life. Although he had not contacted
mental health professionals in the area, he told the Board that he has their contact
information and does not believe he would ever go without a meaningful
relationship with a counsellor. He expressed uncertainty as to what pushed him
to violence in 2013, but noted that he was subject to a myriad of stressors at
the time.

[9]

Mr. Nelson also acknowledged that, due to his
illness, he is not the best judge of when he is in a manic state.

[10]

Dr. Wiehahn testified regarding his opinion on
Mr. Nelson's condition and responded to the Board's questions. He confirmed that
Mr. Nelson suffers from Bipolar Disorder Type I which presents with infrequent
manic episodes of unknown periodicity, although they seem to occur only once
every 10 years or so. Dr. Wiehahn also noted that more collateral information
from family and friends might help determine the periodicity of Mr. Nelson's
manic episodes, but said he had not yet made any such inquiries. He
characterized the present lack of information in Mr. Nelson's case as "the
strongest fact here".

[11]

Given the infrequency of his manic episodes, Dr.
Wiehahn explained that psychiatric medications are inappropriate for treating Mr.
Nelson. This is so despite the fact that medication is typically prescribed to
disrupt the natural course of bipolar disorder for most individuals who suffer
from the disease. If Mr. Nelson had more frequent manic episodes, Dr. Wiehahn
said, the cornerstone for treatment would have been mood stabilizing medication.
However, in the unusual circumstances of his case, the "sovereign treatment"
for risk management purposes over the long term is psychiatric supervision and
monitoring.

[12]

Dr. Wiehahn told the Board that his treatment
focus is longitudinal tracking to help understand Mr. Nelson's baseline
functioning so that any mood changes can be detected early. However, it is not
presently possible to predict how effectively Mr. Nelson could handle a
manic episode without professional supervision and strong community ties. According
to Dr. Wiehahn, had Mr. Nelson experienced manic symptoms since committing the
index offences, it would have tested whether his enhanced knowledge and the
treatment teams assessment of his baseline would enable early detection and mitigating
interventions. As matters have transpired, that has not yet occurred.

[13]

Based on a risk management assessment tool
called the HCR20, Dr. Wiehahn told the Board that Mr. Nelsons likelihood
for engaging in violent behaviour in the next year was low. He also explained
that the HCR20 does not assist in predicting Mr. Nelson's long-term risk given
the infrequency of his manic episodes. He went on to say there is a risk Mr.
Nelson could cause serious harm if his mental state deteriorates and he suffers
another severe manic episode: a prospect he described as "very possible"
but not necessarily "probable". He said further that people suffering
from mania may act impulsively and violently, and those who suffer psychosis
during a manic episode, like Mr. Nelson, represent a heightened risk for
violence.

[14]

Given the potential severity of Mr. Nelson's
manic response, Dr. Wiehahn highly recommended that he remain under the
supervision of a professional treatment team "probably for the rest of his
life". He went on to say "I will not describe exactly how that team
must look" and had the following exchange with the Board Chair:

Q.        . And in terms of preparing Mr.
Nelson for reintegration into the community, an essential component of that
would be hooking him up with a non-forensic treatment team. Now, all we know
about Mr. Nelson's plans are that they involve the Kootenays or Boundary area. We
don't know that he has any friends there. We don't know that he has any
employment lined up there. We don't know that he's made any effort to be
referred to a treatment team or that any steps are underway currently to hook
him up with a community-based treatment team or, indeed even if there is one
available - -

A:         I agree with all of that.

Q         - - as opposed to a forensic team.

A          Yes.

Q          So then the crucial aspect  is
the introduction of  Mr. Nelson to some kind of community-based professional
treatment team?

A.         Correct.

Q.        And then secondarily  so as to
minimize stressors, determining what employment is available, because  you've
indicated that employment is a significant protective factor for him?

A.         Yes.

Q.        Okay. So  all of those things not
having occurred, would it be fair for me to say that you're probably tilting
towards not having an absolute discharge without those things being in place?

A.         Purely
as Mr. Nelson's  treating psychiatrist, I would prefer to have some of those
professional ties before I bid my goodbyes.

[15]

At the conclusion of the hearing, Mr. Nelson
sought an absolute discharge. The Director took no position. The Crown sought a
conditional discharge.

Reasons for Disposition

[16]

The Board began its reasons by reviewing Mr. Nelsons
personal circumstances, the index offences, and his diagnosis. After
summarizing the procedural history of the case, it outlined the evidence, the
statutory framework and the relevant principles to be applied. In describing
Mr. Nelson's experience with mania, the Board stated:

[11]      When
manic, Mr. Nelsons occupational, interpersonal and social functioning are all
severely impaired. His most recent episode of mania involved bizarre ideation,
bizarre behaviour, paranoia, dangerous attitudes, grandiose and unusual
thinking and possible suicidal ideation. When he is manic, he can become
psychotic and then is quite capable of extremely dangerous and life-threatening
behaviour. It would appear that these symptoms have become worse over time and
that the index offences represent his most serious episode to date.

[17]

The Board described its understanding of Dr. Wiehahns
evidence regarding Mr. Nelson's risk of committing significant harm in the
future and appropriate risk management. At paras. 29 and 32, the Board stated:

[29]      In cross-examination, Dr. Wiehahn
stressed that any risk analysis based on HCR 20 V3 protocols is in general
considered valid only for a period of approximately one year. The prime factor
in Mr. Nelsons presentation is the paucity of manic episodes over his life. It
is therefore difficult to project his risk over a lengthy period of time using
this assessment tool. The unusual nature of his presentation suggests that risk
management must be long term. The only effective treatment, in view of his
unusual presentation, is supervision and observation.

[32]      In
summary, Dr. Wiehahn agreed that he would describe Mr. Nelson'[s] risk of
committing significant harm in the future as significant, even though when that
risk would eventuate is unknown due to the lack of information respecting
periodicity and the manner in which Mr. Nelson might handle such an episode.

[18]

The Board
concluded that
Mr. Nelson represents a significant threat to public safety despite his good insight,
cooperative attitude, lack of symptoms, and social support, and notwithstanding
Dr. Wiehahns testimony that he presents a low risk of committing serious harm
in the next year. In explaining its conclusion, the Board stated:

[46]       The onset and periodicity of Mr.
Nelsons episodes of mania, with or without psychosis, are unpredictable and
unknown. They cannot be controlled by long term administration of medication
because of the lengthy periods between episodes. In Dr. Wiehahns opinion,
prescribing medications during the lengthy periods between manic episodes would
not be responsible. Because there have been no further episodes since the index
offence[s], it is not possible to predict how a manic episode will eventuate or
whether Mr. Nelson, his community supporters, if any, or his treatment team
will be able to recognize the onset of his symptoms and deal with them
appropriately. As he himself stated candidly in his testimony, he is not the
best person to recognize mania when it occurs.

[47]      There
is little doubt that Mr. Nelson will experience further manic episodes. The
only form of mitigation of risk that is available is supervision and support on
a consistent and ongoing basis. This would be provided generally in the first
instance by professional counsellors and psychiatrists; and in the second
instance by knowledgeable members of family and knowledgeable friends who can
assist Mr. Nelson in monitoring his own state of mind and mood. His ability to
apply the strategies and insight he has learned and gained to mitigate his own
risk can only be tested when such an episode occurs.

[19]

The Board also expressed concern that Mr.
Nelson's discharge plan was not sufficiently detailed to justify a conclusion
that he would receive the support and supervision necessary to mitigate the
risk he would otherwise pose and thus to protect the public. It referred to
various unknown factors, including where he would live, any psychiatric support
and follow-up in that location, and the ability of his new partner to cope and
assist with his mental disorder. The Board acknowledged counsels submission
that this conclusion might lead to long-term supervision despite Mr. Nelson's
mental stability, and cause him financial hardship. However, it found these submissions
were not relevant to the question of risk, stating:

[49]       Neither
of these points address the question of risk that we must consider in
determining the threshold question of jurisdiction. Neither point renders the
risk he poses insignificant and in any event, we are mandated to firstly consider
the safety of the public

[20]

Having found that Mr. Nelson represents a
significant threat, the Board turned to the question of an appropriate disposition.
It concluded that a conditional discharge was needed to protect the public and
made an order in the same terms as the previous disposition. These include a
term that Mr. Nelson reside and report as directed, remain at the Forensic
Psychiatric Hospital when his mental condition requires assessment, and not
possess firearms or have any contact with the victims. The Order is reviewable
within 12 months.

On Appeal

[21]

Mr. Nelson appeals to this Court pursuant to s.
672.72 of the
Code
, which provides that a Review Board disposition may
be appealed on a question of law, fact or mixed fact and law. Pursuant to s.
672.78(1),

this Court may allow such an appeal if: the disposition is
unreasonable or cannot be supported by the evidence; the disposition is based
on a wrong decision on a question of law; or there was a miscarriage of
justice.

[22]

Counsel for Mr. Nelson contends that the Board
erred in two separate, but related, ways: (i) concluding that he presents a
significant threat to the safety of the public; and (ii) misapprehending Dr.
Wiehahn's evidence as to his risk to public safety and the position of the
Director at the hearing. In consequence, he submits, the Order should set aside
and the matter remitted for a fresh determination by the Board.

Discussion

Standard of Review

[23]

The standard of review on appeal from a decision
of the Review Board is reasonableness. Mr. Justice Harris described the applicable
standard in
Calles v. British Columbia (Adult Forensic Psychiatric Services)
,
2016 BCCA 318:

[14]      The
standard of review for this appeal is reasonableness:
R. v. Owen
, 2003
SCC 33, [2003] 1 S.C.R. 779 at para. 33. Courts recognize that the
assessment of whether the mental condition of an NCR accused renders him a
significant threat to public safety calls for significant expertise:
Owen,
at para. 30
.
As stated in
Winko v. British Columbia
(Forensic Psychiatric Institute),
[1999] 2 S.C.R. 625 at para. 61,
[a]ppellate courts reviewing the dispositions made by a court or Review Board
should bear in mind the broad range of these inquiries, the familiarity with the
situation of the specific NCR accused that the lower tribunals possess, and the
difficulty of assessing whether a given individual poses a significant threat
to public safety.

[24]

This Court does not make its own judgment on the
significant threat issue when evaluating whether a Review Board decision under
review was reasonable. Rather, it considers the Board's reasoning and
substantive decision to determine whether an acceptable and defensible outcome
was reached:
Carrick (Re)
, 2015 ONCA 866 at paras. 24-26

Significant Threat to Public Safety

[25]

Where a verdict of NCRMD has been rendered, the
Board must grant an absolute discharge if, in its opinion, the accused does not
pose a significant threat to public safety:

s. 672.54(a) of the Code. A
"significant threat to public safety" is defined in s. 672.5401 of
the
Code
. Its meaning was explained in
Calles
:

[15]      A
significant threat to public safety is defined in s. 672.5401 of the
Criminal
Code
to mean a risk of serious physical or psychological harm to members
of the public  including any victim of or witness to the offence, or any
person under the age of 18 years  resulting from conduct that is criminal in
nature but not necessarily violent. The threat posed must be more than
speculative and be supported by the evidence. It must be significant both in
the sense that there must be a real risk of physical or psychological harm
occurring to individuals in the community and in the sense that this potential
harm must be serious. A minuscule risk of grave harm will not suffice, nor
will a high risk of trivial harm:
Winko
, at para. 57.

[26]

There is no legal or evidentiary burden on an accused
to establish that he or she does not pose a significant threat to public safety.
Nor is there any presumption that such an individual is dangerous. Rather, there
must be
evidence
of a significant risk to the public before the Board may
restrict an accused's liberty:
Winko v. British Columbia (Forensic
Psychiatric Institute)
, [1999] 2 S.C.R. 625 at paras. 46, 49, 54. If the
Board concludes that he or she poses a significant threat, it must fashion a disposition
which is necessary and appropriate, meaning the least onerous and least
restrictive available in the circumstances:
Carrick (Re)
at para. 15; s.
672.54 of the
Code
.

[27]

The Board has expert members and broad
inquisitorial powers to assist in making these difficult assessments:
R. v.
Owen
, 2003 SCC 33 at para. 29. In assessing the nature and gravity of risk,
it may accept some, all or none of the evidence, including the expert evidence,
provided that it explains and justifies its decision:
Carrick (Re)
at
para. 38. However, the Board may not engage in speculation or impose a
conditional discharge out of an abundance of caution based merely on a desire
to "wait and see" what might happen when an accused moves into an untested
environment. Its decision must be based on the accepted evidence, considered in
light of the legal test that applies:
Marzec (Re)
, 2015 ONCA 658 at
paras. 27-33.

[28]

The Board may have recourse to a broad range of
evidence in determining the significant threat issue. This includes the past
and expected course of treatment, the accused's present condition, future plans
and community supports, and the expert assessments. A past offence committed by
the accused while suffering from mental illness is not,
by itself
,
evidence of a continued significant threat to public safety, but it may be
considered together with the other circumstances where it is relevant to
identifying a behavioural pattern and thus to the issue of significant threat:
Winko
at paras. 61-62.

[29]

In
Marzec (Re)
, the Ontario Review Board
imposed a conditional discharge despite the uncontroverted expert evidence that
the index offence was likely an isolated event, it was speculative to suspect
the accused might act out in a harmful manner, and the significant threat
threshold was no longer met in the opinion of the expert. The Ontario Court of
Appeal set the Board's disposition aside and substituted an absolute discharge.
In doing so, the Court noted the Board's apparent concern that the accused was
untested in the community since his post-index offence hospitalization and
stated:

[30]      Such an approach, however, would
erroneously place the onus on the appellant to prove that he is not a risk
before he is entitled to an absolute discharge.

[31]      The current disposition allows the
appellant to resume living in his home, next to the same neighbours with whom
he had the initial conflict. The only restrictive measures in place are the
requirement that he have no contact with his neighbours and that he report to
the hospital on a weekly basis.

[32]      If the appellant poses a serious
risk of harm to the public, it is difficult to see how it could be safe to
return him to his home on these conditions. The Board would essentially be
leaving the appellant's neighbours to protect themselves. The Board's
disposition is at odds with its reasoning.

[33]      The
only reasonable conclusion -- one that is supported by the totality of the
evidence -- is that the appellant does not pose a significant risk of harm. The
Board appears to have ordered a conditional discharge out of an abundance of
caution. That is not the legal test. As per
Winko
, if the appellant does
not pose a significant risk to the public, the Board must order an absolute
discharge.

Was the Board's decision unreasonable
or unsupported by the evidence?

[30]

Mr. Nelson contends that, as in
Marzec (Re)
,
the Board ordered a conditional discharge out of an abundance of caution where
the evidence did not support a finding that he poses a significant threat to public
safety. On the contrary, he says, the evidence unequivocally indicated that he poses
a low present risk of violence and there was no evidence of a future risk of
violence if and when he has another manic episode. Accordingly, he says, the Board's
conclusion on the significant threat issue was speculative and based on a misapprehension
of Dr. Wiehahn's evidence and the Director's position. It was also based on a
misinterpretation of the significant threat standard, which does not permit a
conditional discharge where, as here, the potential risk to public safety is
unknown or unclear.

[31]

In support of his submission, Mr. Nelson
emphasizes the fact that he has no history of violence other than the index
offences, which occurred in highly unusual circumstances that no longer prevail
and are unlikely to be repeated. He also emphasizes his good insight into his
illness, cooperative attitude and strong coping skills. He characterizes any
risk of future violence as minuscule and says the Board is not entitled to
adopt a "wait and see approach without evidence of a legitimate concern
for public safety. In addition, he challenges the Board's statements in its
reasons that Dr. Wiehahn agreed he posed a significant threat to public safety in
the future (para. 32) and that the Director argued in favour of a conditional
discharge (para. 42). In his submission, both statements are inaccurate, misapprehend
the record and go to the root of the Board's decision.

[32]

Given all of the foregoing, Mr. Nelson submits
that the Board's decision is unreasonable and unsupported by the evidence. In
consequence, he says, the Order should be quashed and the matter remitted back
to the Board for a fresh determination.

[33]

I would not accede to these submissions.

[34]

The Board did misstate the Director's position
at the hearing in its reasons. The Director did not advocate in favour of a
conditional discharge, as stated by the Board. Rather, the Director took no
position on the appropriate disposition. However, in my view, the error was
inconsequential as the Board went on fully to consider the evidence and applied
the proper legal test in reaching its own conclusion on an appropriate disposition.

[35]

Importantly, the Board did not misapprehend Dr. Wiehahns
evidence on the significant threat issue, or any other, in undertaking this
exercise. The impugned statement at para. 32 of the reasons was not a purported,
but erroneous, quote from his testimony. It was a summary of its overall
import, as reasonably interpreted by the Board, expressed in the language of
the applicable legal test.

[36]

A "significant threat to public safety"
is a real risk of serious harm to others resulting from criminal conduct. Dr. Wiehahn
testified that it is "very possible", though not necessarily
"probable", that Mr. Nelson could suffer another severe manic episode
and discussed the relationship between mania, impulsivity and violence. He also
noted that psychosis, which Mr. Nelson experienced during his most recent manic
episode, represents a heightened risk for violence and that his unusual
presentation means that standard risk mitigation through medication is
unavailable. Although he testified that Mr. Nelson presents a low risk of
acting violently in the short term, he also opined that psychiatric supervision
and monitoring are required for long-term risk management and noted the current
absence of an informed community-based treatment team to fulfill this important
role.

[37]

Dr. Wiehahns testimony, considered as a whole,
may be reasonably interpreted to mean that Mr. Nelson poses a real, not minuscule,
risk of causing serious harm to others in the future. The Board did not misapprehend
his evidence by interpreting and describing it in this way. Nor did it
misinterpret the significant threat standard as mandating a conditional
discharge where the potential risk to public safety is unknown or, as in
Marzec
(Re)
, speculative and ungrounded in the evidence. As the Board concluded, although
it is presently unknown
when
another manic episode will eventuate, it is
likely that such an episode will occur and there is a real possibility that it
will involve serious violence.

[38]

Given the foregoing, in my view the Board's
decision is reasonable, supported by the evidence and entitled to deference. Its
conclusion is fully explained and the outcome is defensible on the evidence and
the law. Accordingly, I would dismiss the appeal.

[39]

BAUMAN C.J.B.C.
:
I agree.

[40]

FRANKEL J.A.
: I
agree.

[41]

BAUMAN C.J.B.C.
:
The appeal is dismissed.

The
Honourable Madam Justice Dickson