COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

S.J.C. v. S.-J.C.A.,

2010 BCCA 31

Date: 20100126

Dockets: CA036735, CA036816, CA37634

Docket:
CA036735

Between:

S.J.C.

Appellant

(
Plaintiff
)

And

S.-J.C.A.

Respondent

(
Defendant
)

Docket:
CA036816

Between:

S.J.C.

Respondent

(
Plaintiff
)

And

S.-J.C.A.

Appellant

(
Defendant
)

Docket:
CA037634

Between:

S.J.C.

Appellant

(
Plaintiff
)

And

S.-J.C.A.

Respondent

(
Defendant
)

Before:

The Honourable Chief Justice Finch

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Mackenzie

On appeal from the Supreme Court of British Columbia, Victoria
Registry,

Docket
07-1775,
S.J.A. v. S-J.C.A
.

December
3, 2008, 2008 BCSC 1670; April 22, 2009 (unreported); and

October 7, 2009, 2009 BCSC 1377

Counsel for S.J.C.:

W.
  Murphy-Dyson

Counsel for S-J.C.A.:

K.
  Melbye

Place and Date of Hearing:

Vancouver,
  British Columbia

December 7, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

January
  26, 2010

Written Reasons by
:

The Honourable Madam Justice Prowse

Concurred in by:

The Honourable Chief Justice Finch

Written Reasons Concurring in the
  Result:

The Honourable Mr. Justice Mackenzie (page
  26, para. 76)

Reasons for
Judgment of the Honourable Madam Justice Prowse:

INTRODUCTION

[1]

Two of the three appeals before the Court
involve the custody of a four year old girl (J).  The third appeal raises an
issue relating to costs.

[2]

The parties to these appeals, Ms. C and Ms. A,
began living together in 1994 and married in May 2005.  They became parents in
October 2005 when J was born as a result of Ms. Cs impregnation through
artificial insemination from an anonymous sperm donor.  The parties separated
in May 2007 when J was 19 months old.  At that time, the parties listed their
home in Victoria for sale and Ms. C left with J to live with her parents
in Qualicum Beach.  Since then, Ms. C and Ms. A have been engaged in an ongoing
dispute concerning the custody of, and access to, J.

[3]

Prior to the parties separation, Ms. A had
entered into a new relationship which was ongoing at the time of the appeal.
Following the separation, Ms. C gave birth to a son (S) in March 2008, again
by artificial insemination from the same anonymous sperm donor.  S lives with
Ms. C and his custody is not in issue.

[4]

The key aspects of the three orders in issue
may be summarized as follows:

1.

December 3, 2008
 The trial judge
ordered that the parties have joint custody and guardianship of J, structured
so that J would spend equal time with each parent, on the basis of 4 days with
one parent the first week and 3 days with that parent the second week,
alternating on a 4 day/3 day schedule thereafter and with equal holiday time.
That parenting schedule was to begin as of February 1, 2009, if possible.  Ms.
A was awarded costs, with liberty to apply.

2.

January 28, 2009
 The original costs order was modified to award Ms. A costs for her
preparation and conduct of the trial as determined by the Registrar, but not to
include the custody and access report.  Ms. As application for double costs
based on her offer to settle was dismissed.

3.

October 7, 2009
 The order of December
3, 2008 was varied to provide that Ms.  C would have primary care of J, with
specified access to Ms. A and with an effective parenting regime whereby Ms. A
would have access for one 9 or 10 day block of time each month.  Ms. C was
awarded her costs of that application and of a prior application relating to
daycare arrangements.

[5]

There were other orders made in the action to
which I will refer later in these reasons.

ISSUES
ON APPEAL

1.

The December 3, 2008 Order (the first
order)

[6]

Ms. C submits that the trial judge erred in
making an award of joint custody and guardianship with an equal parenting
regime.  She also submits that he erred in awarding Ms. A costs.  Ms. C
acknowledges that the custody and parenting provisions of the first order have
been superseded by the variation order made October 7, 2009, and that the
appeal from the first order is, to that extent, moot.  She submits, however,
that the question of whether the trial judge erred in making an order for equal
shared parenting in the first order is relevant in determining whether, and to
what extent, he erred in continuing the shared parenting regime in his
variation order of October 7, 2009, and in relation to the issue of costs.

2.

The January 28, 2009 Order (the costs
order)

[7]

Ms. A submits that the trial judge erred in
failing to award her double costs of the trial in circumstances where the
results she achieved at trial were better than her offer to settle made prior
to trial. In reply, Ms. C reiterates that the trial judge erred in failing to
order that each party bear her own costs.

3.

The October 7, 2009 Order (the
variation order)

[8]

Both parties submit that the trial judge erred
with respect to the terms of the variation order.  Ms. C submits that, given
Ms. As unexpected move to Victoria, the trial judge should have awarded more
limited access to Ms. A.  Ms. A submits that the trial judge should have
continued the equal parenting regime, with alternate week access.  Both parties
submit that the trial judge erred in failing to make an order which would
continue in effect when J commences kindergarten in September 2010.

[9]

In the event the Court determines that the trial
judge erred in making any of these orders, the parties wish this Court to make
the appropriate order, rather than refer the issues back to the trial court.

[10]

Both parties led further evidence on the appeal
as to what had transpired since the first order was made.  Counsel agree that
the Court should have recourse to that evidence to determine these appeals,
with the exception of two affidavits filed on behalf of Ms. A with respect to
the variation order.  Ms. C successfully objected to the introduction of those
affidavits at the variation hearing.  Counsel for Ms. A did not actively pursue
their admission on appeal.  I am satisfied that the trial judge was correct in
excluding those affidavits which, in any event, do not shed light on the proper
disposition of these appeals.

CONCLUSION

[11]

I would dismiss the appeal from the first order,
except with respect to the issue of costs, since the issues of custody and
access were rendered moot by the variation order.  I would allow the appeal
from the first order with respect to costs by ordering that each party bear her
own costs.  I would dismiss Ms. As appeal from the order refusing her double
costs.  I would allow the appeal from the variation order by setting aside the order
and substituting the provisions set forth in paras. 56-57 of these reasons for
judgment.

[12]

I would grant Ms. C her costs of all three
appeals.

DISCUSSION

1.

The Trial

[13]

The trial took place over 12 days in September
and October 2008.  It is not possible, or necessary, to detail the evidence led
at trial, which is set out in considerable detail in the reasons for judgment
of the trial judge.  I will refer to the evidence of the key witnesses in
summary form.

[14]

Ms. C and Ms. A testified at considerable
length.  Ms. Cs position at trial was that she should be the sole custodial parent
of J with specified access to Ms. A, including alternate weekends, some weekday
access and limited holiday access.  In Ms. Cs submission, Ms. A had a history
of depression and related mental health problems, and lacked the consistency
and stability to be a full-time or equal parent to J.  Ms. C also expressed
reservations about the impact of Ms. As new relationship on J and on the
suitability of Ms. As partner as a potential influence on J.  Evidence in
support of her application for custody was provided by, amongst others, her
parents and her brother.

[15]

Ms. Cs counsel cross-examined Ms. A extensively
about her past mental health and other problems with a view to demonstrating
that she was subject to recurring depressions which, if triggered by adverse
circumstances, could represent a risk to J.  Counsel for Ms. C also
cross-examined Ms. As family doctor and psychiatrist concerning their opinions
that Ms. A did not represent a potential risk to J.  During that
cross-examination, it became apparent that Ms. A had not fully disclosed her
history of emotional and mental health problems, nor a related family history
of mental health problems,
to those doctors
.  Counsel
for Ms. C also demonstrated that Ms. A and her counsel had effectively dictated
the affidavits of those doctors by directing them in a very specific way as to
what should be included.

[16]

The principal argument of Ms. C at trial was
that, as birth mother, she had been the constant and stabilizing force in Js
life both before and after the separation; that she had always put Js
interests first; and that she was able to spend more time with J since she was
on extended maternity leave and could do a lot of her work from home when she
returned to work.  In her submission, Ms. A had chosen her own interests over
those of J in breaking up the family and taking up with her new partner, and
that Ms. As history of mental health problems created the potential for risk
to J if she were placed in Ms. As care for extended periods.  Ms. C also
expressed reservations about Ms. As new partner who, in Ms. Cs view,
represented an uncertain, and potentially negative, influence on J at a time
when the family was in distress.

[17]

Ms. A denied that she currently had mental
health problems or that her past problems had the potential for placing J at
risk.  She relied on the evidence of her doctors in support of her position
that she was fully capable of being an equal parent to J in all respects.  She
stated that Ms. C and her family had made it very difficult for her to exercise
access following the separation, particularly since she had to travel from
Victoria, where the parties had been living until the separation, to Qualicum
Beach in order to exercise access.  She testified that she had taken a teaching
job in the Comox Valley in order to be closer to J and that her priority was to
fully participate in Js upbringing.

[18]

Ms. As new partner, who is also a teacher,
supported Ms. As plan to fully participate in Js life, and contradicted the
suggestion that Ms. A suffered from any mental health or other problems which
would place J at any risk in her care.

[19]

Ms As submission was that there should be joint
custody and access under an equal parenting arrangement.  She expressed serious
reservations about Ms. Cs willingness, and the willingness of Ms. Cs family
members, to support her as a co-parent and to permit her reasonable access if
sole custody were given to Ms. C.

[20]

Expert evidence was provided in the form of a
lengthy custody and access report authored by Dr. Korpach, who was examined on
her report at trial by counsel for both parties.  While that report was
consistent with a shared parenting regime being in Js best interests, it
favoured Ms. A if sole custody were to be granted to one of the parties.

2.

The Decision At Trial

[21]

The trial judge observed that the principal
issue before him was the best interests of J.  He stated, at para. 4, that this
issue was made more complicated by the very strong aversions that the parties
demonstrated during the trial.  Both parties seem very angry.  He attributed
Ms. Cs anger to the fact that Ms. A had chosen to break up their relationship
and their family.  He attributed Ms. As anger to Ms. Cs challenge to her
emotional and mental fitness to parent J. He, nonetheless, concluded, at para.
6, that both parents were qualified and fit to be full-time parents so long as
they can set aside their antipathies and act in the childs best interests.

[22]

The trial judge concluded that it was in Js
best interests to have maximum contact with both parents.  He expressed concern
about whether Ms. C and her parents would encourage, or readily facilitate, maximum
contact between J and Ms. A.  He expressed greater confidence in Ms. As
willingness to facilitate such contact between J and Ms. C.  He also found that
Ms. Cs fears about Ms. As emotional and mental stability if Ms. A were
granted extensive parenting rights were not justified, and that J would not be
at risk of harm in Ms. As care.

[23]

The trial judge observed that Ms. A had not been
fully candid with her personal doctors or with Dr. Korpach with respect to some
of her medical and other history. He was also critical of the extent to which
Ms. As counsel and Ms. A were involved in drafting the doctors affidavits,
and found that this seriously undermined the weight to be given to the doctors
evidence.  At para. 32, he concluded, however, that the doctors did not agree
with Ms. Cs counsel that learning of the [omitted] history required any
change in their opinion as to [Ms. As] current mental health status and the
risk of her falling again into a cyclical depression.  The trial judge also
rejected Ms. Cs suggestion that Ms. As new partner represented any risk to
Js well-being.

[24]

The trial judge reviewed in some detail each of
the parties positions with respect to the parenting arrangement which would be
in Js best interests.  In that regard, Ms. As submission mirrored, to a large
extent, the recommendations of Dr. Korpach.  Included in her submission
was a proposal that, as long as Ms. C was not working, she could have access to
J while Ms. A was working, rather than having J placed in daycare.

[25]

As earlier stated, the trial judge concluded
that the best interests of J would be served by a joint custody and
guardianship regime with J spending approximately equal time with each parent.
He recommended that this regime be put in place as soon as possible, but not
later than June 30, 2009.  His conclusions in that regard are set forth at
paras. 88-91 of his reasons for judgment:

It is in Js best
interests that she have as much contact as possible with each parent.  They are
the two foremost adults in her life. The maximum contact principle set out in
s. 16(10) of the
Divorce Act
requires me to give effect to the principle
that J. should have as much contact with each parent as is consistent with the
best interests of the child.  That is best accomplished here by moving to an
equal shared parenting regime.  I must also consider and am satisfied that [Ms.
A] is willing to facilitate such contact.

Dr. Korpach expressed a concern
that [Ms. C] and her family might not willingly support the relationship
between [Ms. A] and J.  While I do not discount those concerns, I am satisfied
that they apply mainly to [Ms. Cs] father and brother.  So long as she sets
aside her anger over the failed relationship, [Ms. C] will better understand
and act on the need to facilitate contact.

In all the circumstances, I am
persuaded that it is in the best interests of J. that I order joint custody and
joint guardianship.

J.
is now three.  She should move to a shared living arrangement as soon as
possible.  I am satisfied that it is in the best interests of J. that she live
with each parent.  To that extent, I accept [Ms. As] long-term proposal.  The
practical question that arises is: When should the transition occur.

[26]

In the result, the trial judge rejected Ms. As
short-term plan whereby J would live with her five weekends out of six until
June 30, 2009 , but he accepted her long-term equal parenting plan.

[27]

The trial judges initial reasons with respect
to costs are contained at para. 109 of his reasons:

I am satisfied that this is an appropriate case to award costs.
[Ms. A] was largely successful.  Assuming there was no formal Offer to Settle,
she is entitled to her costs calculated on Scale B.  She will have liberty to
apply if the parties cannot agree on the applicability of any formal Offer to
Settle.

3.

The Costs Decision

[28]

Both parties made offers to settle.  Ms. A made
a formal Offer to Settle on September 8, 2008 in terms similar to those
contained in Dr. Korpachs report and tracking the submissions made by counsel
for Ms. A at trial.  Ms. C made an offer to settle by letter dated October 10,
2008, which included joint custody and guardianship, but with conditions
attached, and with specified access to Ms. A until September 2009, at which
time the order would be reviewed.  Neither offer was accepted.

[29]

The parties made further submissions with
respect to costs.  The principal issue was whether the trial judge should award
Ms. A double costs given her success at trial.  A secondary issue involved
adjusting the original order of costs to take into account the fact that
counsel had succeeded in resolving some issues before trial and had agreed to share
the cost of Dr. Korpachs report.

[30]

As to costs generally, the trial judge referred
to the decision of this Court in
Gold v. Gold
(1993), 106 D.L.R. (4
th
)
452, 82 B.C.L.R. (2d) 180 (C.A.) which held that Rule 57(9) of the
Rules

of Court
applies to all civil proceedings, including family law
proceedings.  He referred to the discretion available to the trial judge under
Rule 57(9) and quoted from para. 20 of
Gold
which refers to some of the
factors the court could consider in declining to award costs to a successful
party, including hardship, earning capacity, the purpose of the particular
award, the conduct of the parties to the litigation, and the importance of not
upsetting the balance achieved by the award.

[31]

The trial judge then referred to a division of
opinion in the trial court about the principles governing any departure from
the general rule of costs in custody cases.  He set out the divergent streams
of authority at paras. 9-12 of his reasons for costs:

One line of
authority in this court, referred to as the Special Rules Cases by Judge
Martinson in
S.D.W. v. C.W.W.
, 2006 BCSC 162, at para. 2, holds that
child custody cases are unique in that there are no winners or losers in the
usual sense because the court is only considering the best interests of the
child.  Some of those cases, including two of my previous decisions:
Morrison
v. Morrison
, 2001 BCSC 909, and
P.E.P. v. D.W.P.
, 2004 BCSC 1590,
arose in mobility cases involving opposing parents, each of whom conducted the
litigation solely according to their legitimate and understandable perception
of the best interests of the child.

According to the above
authority, each parent should bear his or her own costs to avoid the
potentially chilling effect of a prospective adverse cost award for a parent
acting under an honestly held belief as to what is best for the child.
[Further citations omitted]

The other line of authority,
referred to by Martinson J. in
S.D.W.
, as the Usual Rule Cases, holds
that the general costs rule applies to child custody cases in the same way that
it applies to all other family law proceedings under
Gold
.  [Further
citations omitted.]

Unfortunately,
this debate continues and likely will do so until the Court of Appeal rules on
the question in an appropriate custody case.  As I stated in
P.E.P.
, at
para. 8, I would prefer the Court of Appeal address the important question of
whether some child custody cases fall outside the general rule regarding costs
or within a recognized exception in
Gold
.  I need not address the
question further here as I am not persuaded that [Ms. C], the unsuccessful
party in the present case, was motivated solely by a genuine consideration of
the childs best interests.

[32]

The trial judge found that Ms. C resisted joint
custody and guardianship and shared custody for reasons that I attribute more
to her unhappiness at the breakdown of the parental relationship than to
legitimate concerns for the best interests of the child.  In the result, he
found no basis to depart from the usual rule that costs follow the event.

[33]

The trial judge then turned to the issue of
double costs.  He noted that the previous rule which had been in effect with
respect to offers to settle
, R. 37(26.1),
had been
repealed effective July 1, 2008 and replaced with R. 37B, effective July 2,
2008.  He observed that the previous rule had been interpreted to limit the
discretion to award double costs, whereas R. 37B, by its express terms,
provided a broad discretion as to whether to award double costs where there was
a successful offer to settle.  He stated that the first decision of the trial
court to apply R. 37B in the context of a custody dispute was
Chera v. Chera
,
2008 BCSC 1640 (upheld on appeal but without reference to costs, 2008 BCCA 374,
298 D.L.R. (4
th
) 462) where Josephson J. held that barring
egregious conduct, costs, including double costs, should not be awarded in
custody cases.  In so doing, Josephson J. made reference to similar language
employed by the trial judge in
P.E.P.
The trial judge expressed doubt
about the wisdom of restricting the awarding of double costs to cases involving
egregious conduct, but concluded that he was bound by the
Chera
decision.  He found that Ms. Cs conduct was not egregious and that, therefore,
Ms. A was not entitled to double costs.  He went on to state that, if he had
not been bound by
Chera
, he would have awarded Ms. A double costs for
preparation and trial.

4.

Further Orders

[34]

Following the release of reasons for judgment,
Ms. C filed a Notice of Appeal and sought an order staying the custody order
and the costs order pending appeal.  The trial judge dismissed the application
by order dated April 22, 2009.  At the request of Ms. C, that order also
provided that, before using third party daycare providers, Ms. A and Ms. C
would ask the other parent if she were available to care for J.  Ms. C
requested this order because Ms. A had registered J in a daycare without Ms.
Cs knowledge or consent and contrary to the recommendation made by the trial
judge in his original reasons for judgment.

[35]

In June 2009, Ms. C learned that Ms. A had
accepted a job in Victoria to commence in September 2009 and that A had enrolled
J in daycare there.  Ms. C had not been consulted or advised of Ms. As plans,
despite the fact that Ms. A had applied for the position in Victoria in
February 2009 and had been accepted in early April 2009.  Ms. A did not advise
the trial judge of these developments at the time of the stay application in
April.

[36]

By Notice of Motion dated July 29, 2009, Ms. C brought an
application to vary the first order based on a material change in circumstances,
namely, Ms. As imminent move to Victoria.  On August 1, 2009, Ms. A moved to
Victoria to take up the teaching position she had accepted in April and to proceed
with her plans for J to attend daycare there.

[37]

The parties were unable to get a date for a
hearing before the trial judge until September 28, 2009.  Pending the parties
return before the trial judge, Madam Justice Dorgan made an order on August 21
requiring Ms. A to produce documents relating to her change in employment and
her enrolment of J in daycare in Victoria, but adjourning the issue of changes
to the parenting regime to the trial judge.  Mr. Justice Metzger made a
further order dated September 14, 2009 suspending Js attendance at the new
daycare pending resolution of these issues by the trial judge.

5.

The Variation Decision

[38]

After hearing further evidence and submissions,
the trial judge made the variation order on October 7, 2009, on the basis of a
material change in circumstances and after taking into account the principles
applicable to parental mobility set forth in
Gordon v. Goertz
, [1996] 2
S.C.R. 27, 134 D.L.R. (4
th
) 321.  He stated that, at the time of his
first order, he had anticipated that Ms. C would be moving to Cumberland,
closer to where Ms. A was living at the time of trial, and he had structured
his first order accordingly.  He found that Ms. As move to Victoria was a
material change in circumstances which made the first order impracticable.
Despite this change, he concluded that J would continue to benefit from
significant contact with both parents, but that equal parenting was not in Js
best interests because of the amount of time she would be in transit if an
equal parenting regime were continued.  As a result, he modified his earlier
order to provide, in effect, that J would spend two thirds of the time each
month with Ms. C and one third of the time with Ms. A.  This significantly
reduced the amount of travel time which would have been required under the
first order.

[39]

In his reasons for judgment, the trial judge was
critical of the fact that Ms. A had acted in breach of both the letter and
spirit of his earlier orders, including his order of April 22, 2009 requiring
each parent to give the other parent the opportunity to care for J before
placing J in third party daycare.  It is apparent from his reasons that he felt
he had been misled by Ms. A with respect to where she intended to live at the
time he made the first order.  Based on her conduct since then, he was no
longer persuaded that she was committed to ensuring positive contact between J
and Ms. C.  Despite his misgivings regarding Ms. As conduct, however, he
remained of the view that significant contact with both parents was in Js best
interests.

[40]

It is apparent that the trial judge contemplated
that his variation order would likely require further variation prior to J
commencing kindergarten in September 2010.  Both parties criticize the
short-term nature of his order in that respect as being contrary to Js best
interests.

ANALYSIS
OF THE ISSUES

1.
The
First Order

[41]

As earlier stated, Ms. C concedes that the first
order has been overtaken by the variation order with respect to the issues of
custody and access.  The correctness of the first order remains an issue for
her, however, since it is the basis of the trial judges initial order for
costs, and the foundation for Ms. As appeal relating to double costs.

[42]

The standard of review to be applied by this
Court with respect to the provisions of the first order relating to custody,
guardianship and access, is that set forth by the Supreme Court of Canada in
Van
de Perre v. Edwards
,

2001 SCC 60
,
[2001] 2 S.C.R. 1014, at
para. 11:

In reviewing the
decisions of trial judges in all cases, including family law cases involving
custody it is important that the appellate court remind itself of the narrow
scope of appellate review.  LHeureux-Dubé J. stated in
Hickey v. Hickey
,
[1999] 2 S.C.R. 518, at paras. 10 and 12:

[Trial judges] must
balance the objectives and factors set out in the
Divorce Act
or in
provincial support statutes with an appreciation of the particular facts of the
case.  It is a difficult but important determination, which is critical to the
lives of the parties and to their children.
Because of its fact-based and
discretionary nature, trial judges must be given considerable deference by
appellate courts when such decisions are reviewed.

There are strong
reasons for the significant deference that must be given to trial judges in
relation to support orders.  This standard of appellate review recognizes that
the discretion involved in making a support order is best exercised by the
judge who has heard the parties directly.
It
avoids giving parties an incentive to appeal judgments and incur added expenses
in the hope that the appeal court will have a different appreciation of the relevant
factors and evidence.
This approach promotes finality in family law
litigation and recognizes the importance of the appreciation of the facts by
the trial judge.  Though an appeal court must intervene when there is a
material error, a serious misapprehension of the evidence, or an error in law,
it is not entitled to overturn a support order simply because it would have
made a different decision or balanced the factors differently.
[Emphasis
added in
Van de Perre
.]

Hickey
involved the appellate review of
support orders, but the principles related to appellate review discussed
therein are equally applicable to orders concerning child custody.

[43]

In my view, the trial judge did not err in
ordering joint custody and guardianship of J and an equal parenting regime in
the first order.  He heard a considerable body of evidence in making that
order, including the evidence of an independent expert, Dr. Korpach.  Despite
what appears from the transcript to have been very effective cross-examination
of Ms. As doctors and Dr. Korpach, which revealed that Ms. A had not fully
disclosed her medical and other history to them, the trial judge was not
persuaded that Ms. A presented a risk to J if J should be placed in her care
for extended periods of time.  In other words, although the trial judge was
made aware of Ms. As non-disclosure, he found that her prior mental and
emotional history did not give rise to a significant concern regarding Ms. As
current parenting abilities or her capacity to be a fit and equal parent of J.
In that respect, Ms. Cs concerns that Ms. A lacked the emotional or mental
stability to be a fit parent have not been borne out over time.

[44]

It is important to note that the trial judge
found that Ms. C was driven to a noticeable extent at trial by her anger at Ms.
A for breaking up the family, and that this anger may have clouded her
perception of Js best interests.  There was evidence, including that of Dr.
Korpach, to support that conclusion.  There was also evidence before the trial
judge that both Ms. C and members of her family, particularly her father, may
not assist in ensuring that J had positive and significant contact with Ms. A
if Ms. C were granted sole custody.  The trial judge was entitled to rely on that
evidence in determining the best interests of J.  The fact that this Court may
have accorded different weight to some of the evidence, or drawn different
conclusions from the evidence, is of no moment unless it is established that
the trial judge made errors of the type identified in
Van de Perre
.  I
am not persuaded that such errors have been established with respect to the
parenting aspects of the first order.

[45]

It is evident that there was a power struggle
between these two parents which the trial judge attempted to resolve in the
best interests of J by attempting to ensure a balance between them.  At that
time, he considered it more likely that Ms. A, rather than Ms. C, would
cultivate maximum and positive contact between J and her other parent.  As events
later transpired, he had reason to question his judgment in that regard.  In
the circumstances prevailing at the time of trial, however, I am not persuaded
that he erred in any significant respect in making the first order with respect
to custody, guardianship and access.  As is often the case in contested custody
matters, however, the circumstances giving rise to the first order have been
overtaken by subsequent events leading to the variation order.

[46]

I will address the variation order
before
turning to the issue of costs.

2.
The
Variation Order

[47]

Both parties challenge the variation order.  Ms.
C challenges it on the basis that the deception practised by Ms. A on herself
and on the court demonstrates that she could not, and cannot, be relied on to
act in Js best interests, and that the only reasonable variation in the
circumstances was an award of primary care in her favour with reasonable, but
more limited, access to Ms. A.

[48]

Ms. A submits that the trial judge erred by
reducing her time with J, and that he should have continued his order of equal
parenting, but modified it to provide that J spend alternate weeks with each
parent.  She submits that the variation order does not take proper cognizance
of the trial judges prior findings, including his finding that Ms. C and
members of her family would not facilitate a good relationship between J and
Ms. A.

[49]

Both parties submit that the trial judge erred
in effectively requiring them to return to court by the end of June 2010, with
attendant emotional and financial costs, in order to address custody and access
before J enters kindergarten next September.

[50]

Like the first order, the variation order made
by the trial judge must be approached by this Court with considerable
deference.  This is particularly so, since the trial judge has had the
continuous charge of the custody and access issues involving these parties over
the past two years, with the exception of two interim orders made in his
absence.  He is well-placed to gauge the most effective manner in which to
determine the best interests of J and to protect her relationship with both
parents.  That has been a very difficult task in this case since there is every
appearance that both parents have been constantly manoeuvring for position in
order to protect their own relationship with J.  In that respect, both parents
seem to have difficulty separating their own interests from Js interests,
resulting in an ongoing tug-of-war between them.  There is some indication,
particularly in the new evidence, that J is feeling the effects of this battle,
and she will undoubtedly suffer if her parents to do not find a way to change
their attitudes.  It is a sad commentary on the inability of these parents to
settle their differences that the court has been forced into the role of
referee.

[51]

It is apparent from his reasons for judgment in
the variation proceedings that the trial judge was very concerned about the
manner in which Ms. A had apparently shifted her position from one of promoting
contact between J and Ms. C to one of unilaterally and secretly imposing her
own view of Js best interests.  It is difficult to interpret her actions in
hiding her intended move from the Comox Valley to Victoria from the court and
from Ms. C during the stay application in April 2009, and her action in
unilaterally enrolling J in a daycare facility in Victoria, as anything other
than self-serving.  She took these actions in the face of a court order (in the
case of the daycare registration) and without any regard or respect for Ms. Cs
equal parenting rights.  I see in her actions an unfortunate consistency with
her earlier failure to disclose important information to her doctors and to Dr.
Korpach in order to avoid the possibility of unfavourable opinions from them.
There is an element of bad faith in her actions which the trial judge found
troubling, and which he could not ignore in determining the extent to which she
is willing to act in Js best interests.

[52]

Despite his concerns with respect to Ms. As
conduct, however, the trial judge remained of the view that it was in Js best
interests to continue to have as much contact with each parent as the new
circumstances permitted.  It is again important to emphasize that he had the
benefit at trial of seeing and hearing the parties testify.  He also had the
benefit of Dr. Korpachs report and testimony. It is clear from that evidence
that J had significant bonds with both parents.  In making his variation order,
the trial judge endeavoured to preserve those bonds, but he was legitimately
concerned about the amount of travelling for J which would be required to
maintain an equal parenting arrangement.  For that reason, he rejected Ms. As
suggestion of alternate week parenting.  Instead, he arrived at a compromise
which would still give J large blocks of time with each parent, but which would
cut down on the amount of travel time.  It may not have been an ideal solution,
but the new circumstances were less than ideal for maintaining equally close
ties with both parents.  In my view, the new access regime pending Js entry
into kindergarten was a reasoned compromise between the positions then being
taken by Ms. C and Ms. A.

[53]

I am also satisfied that, in making his
variation order in relation to access, the trial judge had due regard for the
rights of both parents and that he weighed the relevant factors set out in
Gordon v. Goertz
(referred to at para. 11 and following of his reasons).  I
note that one significant factor informing his variation order was the need to
foster the developing relationship between J and her younger sibling, S, who
was in the sole custody of Ms. C.  That factor does not appear to have been
given much weight at trial because of the young age of the children.

[54]

In my view, the variation order made by the
trial judge is sustainable on appeal except in two respects.  Firstly, it is
apparent that the joint custody order has not worked.  The parties have not
been communicating effectively about Js care in many significant respects.  Ms.
As actions in moving to Victoria and registering J in daycare there in the
circumstances I have described are the most significant example of the
inability of the parties to work together in Js best interests.  There was
also a recent incident at Js daycare which caused general consternation due,
in large part, to ineffective communication between the parents.
The
optimism of the trial judge has not been borne out in practice.  (
That is not to say that he erred in ordering joint custody and
encouraging the parties to work through their differences in the first instance
 it was only time that made it clear that these parties were incapable of
cooperating to the extent necessary to maintain a joint custody regime.)

[55]

Secondly, I agree with both parties that the
trial judge should have made an order which would continue during Js entry
into kindergarten in September 2010 to avoid the necessity of the parties
returning to court.  The present order encourages the parents to continue their
search for failings in the other parent with a view to demonstrating that the
primary residence of J in September 2010 should be with one of them, rather
than the other.

[56]

In order to avoid the possible confusion that
may ensue if this Court simply varies the variation order, I would set aside
the variation order and substitute the following order:

(a)

Ms. C shall have sole custody and primary care of J.

(b)

Ms. C and Ms. A shall be joint guardians of Js person and estate on
the following terms:

(i)

In the event of the death of either parent, the
remaining parent will be the sole guardian of the person and the estate of J;

(ii)

Both parents will advise the other of any
significant matters affecting J;

(iii)

Ms. C will consult with Ms. A about all
important decisions concerning J, including health, education, and religious
instruction, with a view to reaching agreement, but, in the event the parties are
unable to agree, Ms. C is entitled to make the relevant decision (except that
Ms. A shall be entitled to make any decisions of an emergency nature while J is
in her care);

(iv)

Both parents shall have the right to request
information concerning J directly from third parties, including teachers,
counsellors, medical professionals, and third-party caregivers.

(v)

Ms. C shall inform Ms. A about all important
kindergarten, school and daycare activities which involve parent participation,
with a view to enabling both parents to participate, or share, in such
activities.

(c)

The parents will continue to have access to J on the basis of the
two thirds/ one third regime established by the trial judge in the variation
order up to June 30, 2010, with the pickups and drop-offs to be as stipulated
in that order.  Thereafter, the parents will share access in July and August in
two week blocks, with J to be with Ms. C for the last two weeks of August and
the first week of September up to and including September 9, 2010 (and to the
end of the first week of September in every year following) so that she can
ensure Js smooth transition into kindergarten or school.  Apart from that
period, Ms. A shall have first choice of summer holiday access in 2010 and the
parents shall alternate choice of summer holiday periods  every summer
thereafter.

(d)

Ms. A shall have access to J every second weekend commencing Friday,
September 10 after kindergarten until Sunday at 5 p.m., with Ms. A to pick J up
at kindergarten at the beginning of the access visit and drop her off at a
mutually agreed location in Nanaimo at the end of the access visit. If either
the Friday and/or Monday of Ms. As access weekend is a statutory holiday or
professional day for both Ms. A and J, Ms. As access shall be extended to
include the extra day or days.

(e)

Commencing as of September 13, 2010, Ms. A shall also be entitled to
exercise access one Sunday per month on a weekend when Ms. A does not have
access to J, from 10 a.m. to 6 p.m., with Ms. A to pick J up and drop J off at
Ms. Cs home.

(f)

The parents shall share equally Js Christmas
holiday period, such half to include Christmas Day in even years commencing
2010 and not to include Christmas Day in odd years, commencing 2011, with Ms. A
to have the first choice of Christmas holiday time in 2010.  Ms. A shall pick
up J at the beginning of the access visit and shall drop her off at a mutually
agreed location in Nanaimo at the end of the access visit.

(g)

The parents shall equally share Js spring break vacation period
with Ms. C to have the first choice of time in 2010 and in alternating years thereafter.
Ms. A shall pick J up at the beginning of the access visit and shall drop her
off at a mutually agreed location in Nanaimo at the end of the access visit.

(h)

Each of the parents shall be entitled to make whatever third party childcare
arrangements they may consider appropriate when J is in that parents care and,
for greater certainty, Ms. A is not required to offer Ms. C the opportunity to
care for J when Ms. A is working.

(i)

Each parent will have reasonable and generous
telephone access to J when she is in the care of the other parent.

(j)

The parents may alter any of these access
arrangements by agreement.

(k)

The parties may agree to a third party or parties doing the pick-ups
and drop offs at the beginning and end of the access periods.  Such third parties
shall include Ms. Cs parent or parents and Ms. As current partner.

(l)

Ms. A will continue to pay child support to Ms. C, to be adjusted
in accordance with the Federal Child Support Guidelines, with liberty to either
party to apply to the Supreme Court for an order in the event the parents are
unable to agree on the appropriate amount.

[57]

In my view, this order gives effect to the trial
judges intention in the variation order that Ms. C should have primary care of
J, albeit with as much contact between Ms. A and J as is reasonable consistent
with Js best interests.  It takes account of the reality that it is not
possible to have both parents play an equal parenting role in light of their
inability to effectively communicate and Ms. As new living arrangements.

[58]

I would encourage the parties to have any
disputes regarding access dealt with in the first instance by a mutually agreed
upon third party, failing which, either of the parties may apply to the Supreme
Court to have the matter determined.

3.
Costs

(i)
Ordinary
Costs

[59]

I have summarized the trial judges decision with
respect to costs at paras. 27-33,
supra.
In summary, in his first order,
the trial judge awarded Ms. A costs of the trial.  In his subsequent costs
order, he clarified his first order by awarding Ms. A costs limited to
preparation for trial and excluding her costs for preparation of Dr. Korpachs
report.  He also stated that he would have ordered double costs except for his
conclusion that he was bound by a previous decision,
Chera
, which held
that double costs in custody and access trials should only be awarded against a
party whose conduct had been egregious.  Since he found that Ms. Cs conduct
had not been egregious, he did not award double costs.

[60]

An award of costs is essentially a discretionary
order and the standard of review to be applied by this Court is strict. One
statement of the standard of review is found in
Hamilton v. Open Window
Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27, which states
that A court should set aside a costs award on appeal only if the trial judge
has made an error in principle or if the costs award is plainly wrong.

[61]

Counsel have suggested that this Court should
take the opportunity to clarify the extent to which the usual rule that costs
follow the event should be applied in custody and access cases.  This has been
the subject of considerable discussion in the B.C. Supreme Court as reflected
in the authorities summarized by the trial judge in this case and by Madam
Justice Martinson in
S.D.W. v. C.W.W.
, 2006 BCSC 162, 55 B.C.L.R. (4
th
)
101.

[62]

While it is apparent there are different
approaches to the issue of costs in matters of custody and access in the B.C.
Supreme Court, this Court has previously stated that the usual rule that costs
follow the event (that is, that the successful party is entitled to costs)
applies in matrimonial proceedings, subject to a discretion to refuse costs to
the successful party in certain circumstances.  The authority for that
proposition is
Gold
, in which this Court sat with five judges in order
to determine that question.  Although
Gold
was decided in the context of
a dispute concerning the division of assets, it has been applied by this Court
in several cases where issues concerning the custody of children were involved,
albeit in the context of costs of the appeal.  See, for example,
Karpodinis
v. Kantas
, 2006 BCCA 400,
Yassin v. Loubani
, 2007 BCCA 102, 67
B.C.L.R. (4
th
), and
Falvai v. Falvai
, 2009 BCCA 387, [2009]
10 W.W.R. 453.  (As noted in
S.D.W.
, the
Gold
approach to costs
in matrimonial matters also appears to be in keeping with the approach in other
provinces, including Alberta

and Manitoba.)  In my view, it is not open
to this division of the Court to re-open the debate and come to a different
conclusion than that expressed in the prior decisions of this Court.

[63]

The first question, therefore, is whether the
trial judge erred in awarding ordinary costs to Ms. A on the basis that she was
substantially successful in the result.  In particular, did the trial judge err
in finding that this case did not fit into any of the exceptions in
Gold
,
which permit a court to exercise its discretion to refuse costs to the
successful party.  As earlier stated, the court may refuse to apply the usual
rule as to costs on the basis of factors including hardship, earning capacity,
the purpose of the particular award, the conduct of the parties to the
litigation, and the importance of not upsetting the balance achieved by the
Court.

[64]

In this case, I find that the conduct of Ms. A,
in particular, and the importance of maintaining the balance achieved by the
court, were relevant factors in determining costs which were not adequately
dealt with by the trial judge.

[65]

In my view, the trial judge failed to appreciate
that the principal reason for the prolongation of the trial in relation to Ms.
As fitness to be an equal parent to J was attributable to Ms. A, rather than
to Ms. C.  It was Ms. A who failed to disclose relevant medical information to
her treating doctor and psychiatrist.  The doctors acknowledged during
cross-examination that the information they had not been provided by Ms. A was
relevant, although it did not affect their ultimate conclusion that she was
capable of equal parenting in relation to J.  As it turned out, because of the
way the doctors affidavits were prepared (which was only revealed through
effective cross-examination by Ms. Cs counsel), their evidence was given
little weight.

[66]

The trial judge was aware that the doctors had
been misled by Ms. As non-disclosure, but he does not appear to have placed
any significance on the fact that the deception practised by Ms. A was not
simply on the doctors, but on the court.  Ms. A was obviously concerned that
her past medical history would prejudice her ability to obtain an equal
parenting arrangement.  She chose to edit the information she made available to
her doctors, much in the same way she later chose to edit the information she
made available to Ms. C and to the trial judge with respect to her plans to
move to Victoria.

[67]

While more recent events have demonstrated a pattern of behaviour
on the part of Ms. A that reflects a lack of candor, not only with Ms. C, but
also with the court, the evidence of Ms. As willingness to obscure relevant
information in order to place herself in the best possible light was there to
be seen at the time of trial.  In the circumstances, I find it difficult to see
how competent counsel had any choice but to bring Ms. As repeated
non-disclosure to the attention of the court so that the decision as to the
care of J could be made on the facts. In my view, Ms. As
lack
of candour with the doctors and, through them, with the court, is relevant
conduct which should have been taken into account by the trial judge in making
his award of costs, in accordance with one of the exceptions to the usual rule
concerning costs discussed in
Gold
.

[68]

I am also satisfied that the trial judge erred
in failing to recognize that an award of costs against Ms. C would have the
likely, and unintended, effect of forcing Ms. C, J and S out of their home in
Cumberland.  In that respect, the Court was advised that the estimated amount
of Ms. As costs is $60,000.  Ms. Cs equity in her home is approximately
$35,000.  Even if she increased her hours at work, it is unlikely she would be
able to retain her home.  Although Ms. A does not own her own home, she is
sharing a home in Victoria with her present partner and is earning a
substantially higher salary than is Ms. C.

[69]

There have been many transitions for J in the
last three years.  The latest is Ms. As move to Victoria.  To the extent that
the award of costs would require her to sell her home and move once again, I am
satisfied that it would unduly upset the balance which the trial judge found
was essential to Js best interests.

[70]

In my view, in the rather unusual circumstances
of this case, the trial judge overlooked, or underestimated, significant
factors in his award of costs.  Taking these factors into account, I find that
the appropriate order in this case would be one requiring each party to bear
her own costs of the trial.

(ii)
Double
Costs

[71]

Because I have concluded that each party should
bear her own costs of the trial, I do not find it necessary to go on to
consider the issue of double costs.  That issue will have to await another day
in this Court.

(iii)
Costs
of the Appeals

[72]

I would award Ms. C costs of all three appeals.
Although the first appeal was effectively moot with respect to the issues of
custody and access, it was necessary to engage in a full analysis of those
issues in relation to the issue of costs.

DISPOSITION

[73]

I would dismiss the appeal from the first order
with respect to custody and access on the basis that it has been rendered moot
by the variation order.  I would allow the appeal from the first order with
respect to costs and substitute an order that each party bear her own costs of
the trial.

[74]

Having concluded that each party should bear her
own costs of the trial, I would dismiss Ms. As appeal from the order refusing
her double costs.

[75]

I would allow Ms. Cs appeal from the variation
order.  I would set aside that order and substitute the provisions set forth in
paras. 56 and 57 of these reasons for judgment.

The Honourable
Madam Justice Prowse

I Agree:

The
Honourable Chief Justice Finch

Reasons for
Judgment of the Honourable Mr. Justice Mackenzie:

[76]

I have had the opportunity to read in draft the
reasons for judgment of Madam Justice Prowse.  I agree with the result and the
reasons, with one qualification on the issue of costs.  My colleague gives two
alternative grounds for overturning the trial judges award of trial costs to
Ms. A and directing that each party bear their own costs of trial.  I would
prefer to limit the reasons for varying the costs order to the second ground as
stated by my colleague.

[77]

The trial judge concluded, at para. 23 of his
supplemental reasons on costs, that the trial was prolonged by Ms. Cs anger
towards Ms. A over the break-up of their relationship.  That anger resulted in
an attack on Ms. As fitness as a parent and her mental stability.  The trial
judge concluded that Ms. Cs accusation that Ms. A was not a fit parent
was unfounded.  As I read his reasons, he attributed the prolonged trial to Ms.
Cs misguided effort to pursue that allegation against the best interests of
the child and he awarded costs of the trial to Ms. A on that ground.  Ms. As
dissembling was apparent to the trial judge and he was in the best position to
judge its importance at the trial in the context of the issues and the trial
dynamics.  I am not persuaded that he made any reviewable error in his
assessment that it was pursued at inordinate length in a failed effort to
undermine Ms. As parental fitness.

[78]

The second ground involves the impact of a costs
order against Ms. C on the best interests of the child.  As my colleague has
noted, a costs order would likely require Ms. C to sell her home and move.  The
resulting disruption and reduced family circumstances would have a negative
effect on the child.  This implication of the costs order has come to the fore
largely as a result of post-trial developments and was not emphasized before
the trial judge.  I therefore agree that the costs order should be varied as
directed by my colleague on the ground that the variation is required in the
best interests of the child.

The
Honourable
Mr. Justice Mackenzie


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

Miller v. British Columbia,

2010 BCCA 39

Date: 20100127

Docket:
CA037166

Between:

Mark Andrew Miller

Respondent

(
Petitioner
)

And

Her
Majesty the Queen in right of British Columbia

(
Respondent
)

And

The Attorney
General of British Columbia

Appellant

(
Respondent
)

Before:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Levine

The Honourable Mr. Justice Lowry

On
appeal from:  Supreme Court of British Columbia, April 30, 2009
(
R. v. Miller
, 2009 BCSC 591, Docket S-082860)

Counsel for the Appellant:

J.
  Penner

Appearing for the Respondent:

No
  one

Place and Date of Hearing:

Vancouver,
  British Columbia

January 13, 2010

Place and Date of Judgment:

Vancouver
, British Columbia

January
  27, 2010

Written Reasons by
:

The Honourable Mr. Justice Lowry

Concurred in by:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Levine

Reasons for
Judgment of the Honourable Mr. Justice Lowry:

[1]

The question is whether a deemed guilty plea for
a motor vehicle regulatory violation constitutes a breach of the
Charter
rights
to the presumption of innocence and a fair public hearing.

The Plea

[2]

Mark Miller has a remarkably bad driving record:
15 convictions within five years resulting in driving prohibitions of four
months in duration in each of 2006 and 2007.  In April 2008, he was given
notice pursuant to s. 93(1) of the
Motor Vehicle Act
, R.S.B.C. 1996, c.
318, that the Superintendent of Motor Vehicles intended to impose a third four-month
prohibition.  Mr. Miller had 34 penalty points on his driving record, recorded
by the Insurance Corporation of British Columbia as required by s. 28.01
of the
Motor Vehicle Act Regulations
, B.C. Reg. 26/58, five points
having been added since the end of his second prohibition.

[3]

From his record, which was attached to the
notice, he determined three of the points pertained to a violation of s. 7A.01
of the
Motor Vehicle Act Regulations
for which he received a ticket on
26 December 2007.  That section prohibits operating a vehicle in a manner that
causes any loud or unnecessary noise from the exhaust system.  The amount of
the fine, which was written by the attending officer on the ticket, was $109.

[4]

Under s. 16(1) of the
Offence Act,
R.S.B.C.
1996, c. 338, Mr. Miller was deemed to have pleaded guilty to the violation on
26 January 2008 because he did not dispute the ticket within 30 days.  The
ticket was in the form prescribed by s. 2 of the
Offence Act Forms Regulation
,
B.C. Reg. 422/90, en. B.C. Reg. 122/2008, Sch. 2, s. 1, and contained
the following statements:

If the
allegations or fines are not disputed (see reverse) within 30 days, this ticket
will be treated as not disputed, you will be deemed to have pleaded guilty to
the alleged offence(s) and to owe the Crown the ticketed amounts.  Your
signature indicates you have received this ticket and is not an admission of
guilt.

* * *

what
happens if I do not pay?

If you do not pay or dispute this ticket
within thirty (30) days of the Date of Service, the ticketed amount shown on
the front will be payable to the Crown.  The described offence(s) will be added
to your record as convictions.  In addition, you will be subject to collection
activity.

[5]

Mr. Miller paid the fine.  He maintains that,
although he had determined the exhaust system on his vehicle complied with the
applicable government standards, he paid the fine because it was not then worth
his time to dispute the ticket.

[6]

In April 2008, when he received notice of the
intended third prohibition, and realized the s. 7A.01 violation added three
points to his driving record, he changed his mind.  However, by virtue of s.
16(2.1) of the
Offence Act,
he was precluded from disputing the ticket
before a Judicial Justice of the Peace because he had no genuine intention to
do so before the 30-day dispute period expired, as required by subsection (2.1)(b).

[7]

Mr. Miller applied by way of judicial review
before the Supreme Court for an order quashing his deemed guilty plea on the
basis that s. 16 of the
Offence Act
was contrary to the right to the
presumption of innocence guaranteed by s. 11(d) of the
Charter.
The
judge who heard the application granted the relief sought but on a much
different basis.  The reasons he gave are indexed as 2009 BCSC 591.

The Judgment

[8]

The judge permitted Mr. Miller to convert his
petition to a writ and statement of claim as being the proper form in which to
challenge the constitutionality of legislation, but he made no determination
that any part of s. 16 of the
Offence Act
was unconstitutional.  Indeed
he concluded otherwise.  However, he determined the deemed guilty plea was,
nonetheless, to be quashed under s. 24(1) of the
Charter
because Mr.
Miller was not sufficiently informed of the consequences of failing to dispute
the ticket when it was given to him or before the 30-day dispute period had
expired.  In particular, he was not informed a deemed guilty plea would result
in three points being added to his driving record.  That was not stated on the
ticket.

[9]

The judge purported to apply what was said in
R.
v. Richard
, [1996] 3 S.C.R. 525, 110 C.C.C. (3d) 385.  There, in
considering a constitutional challenge to New Brunswick legislation that was,
in material respects, comparable to the motor vehicle legislation in this
province, speaking for the court, La Forest J. concluded:

[32]  In my view, in a context in which
litigants cannot be imprisoned for offences of a regulatory nature, it is open
to both the provincial legislatures and Parliament to infer from the
failure
of those litigants
to act
that they have waived their right to be presumed
innocent and their right to a hearing and at the same time to have consented to
a conviction made against them, provided that under the procedural scheme
applicable to them, they are fully informed of the consequences of failing to
act and there are sufficient safeguards to prevent injustices from occurring.

[Emphasis of La
Forest J.]

[10]

The judge quoted that passage emphasizing the
words they are fully informed of the consequences of failing to act.  Indeed,
that phrase is the basis of his judgment.  He reasoned that, while a failure to
dispute a ticket within the time prescribed constitutes a waiver of
constitutional rights, there was no valid waiver attributable to Mr. Miller
because he did not have full knowledge of the consequences of not disputing the
ticket he was given.

[11]

Thus, rather than striking down s. 16 as being
unconstitutional, the judge effectively created a constitutional exemption in
relation to undisputed tickets.  He concluded the deemed guilty plea for which
s. 16(1) provides is constitutionally sound but inapplicable unless the person
receiving the ticket is informed of all the consequences of not disputing the
ticket including, in particular, the addition of any penalty points to the
persons driving record.

Discussion

[12]

In my view, it was not open to the judge to
grant the remedy he did fashioned on a constitutional exemption.  It is a
remedy that was not sought, and the Supreme Court of Canada appears to have
largely foreclosed remedies of that kind in
R. v. Ferguson
, [2008] 1
S.C.R. 96, 87 Alta. L.R. (4th) 203.  Although the case was concerned with
mandatory minimum sentences, it is seen as having a broad application:  Kent Roach,
Constitutional Remedies in Canada
, looseleaf (Aurora, Ont.: Canada Law
Book, 1994) at 14-28‒14-29 and 14-34‒14-35; and Peter W. Hogg,
Constitutional
Law of Canada
, 5th ed., Supp., vol. 2, looseleaf (Toronto: Thomson
Carswell, 2007) at 40-22.  That view was taken by this Court in
Victoria
(City) v. Adams
, 2009 BCCA 563.  While there may remain some place for
constitutional exemptions, the inherent case-by-case uncertainty to which they
can give rise precludes such remedies being granted in other than very limited
circumstances: see paras. 132-145.

[13]

The issue then is whether s. 16 of the
Offence
Act
, which imposes a deemed guilty plea in the absence of a ticket being
disputed within 30 days, impairs the
Charter
rights to the presumption
of innocence and a hearing such that it is constitutionally invalid, mandating
a remedy under s. 52(1) of the
Constitution Act, 1982
.

[14]

I consider s. 16 to be constitutionally sound.
It does not impair any
Charter
rights but provides for a waiver of such which
the recipient of a ticket may choose by not disputing it.  I consider that,
pursuant to s. 16(1) of the
Offence Act
, Mr. Miller chose to waive his
s. 11(d) rights to the presumption of innocence and a hearing when he decided not
to dispute the ticket he received within 30 days time, even though he did not
know three penalty points would be added to his driving record by ICBC.

[15]

There is no suggestion in
Richard
that
knowledge of penalty points being added to a driving record is essential to an
informed waiver.  There was no consideration of the significance of penalty
points in that case and, in my view, such cannot be said to be part of the
consequences, as that term was employed by La Forest J., of which the
recipient of a ticket must be aware before an informed waiver can be made.
What La Forest J. said rendered the New Brunswick legislation sufficient
to defeat the same kind of constitutional challenge made here was that the
legislation required: the recipient be informed that failure to act may result
in conviction; the ticket be delivered to the recipient personally; and the
recipient be made aware of the possibility of, and procedure for, having the
conviction set aside: see paras. 33-34.

[16]

In my view, what is to be taken from
Richard
for present purposes is that, before an informed waiver of the right to be
presumed innocent can be made, the recipient of a ticket must be informed that
if the ticket is not disputed within 30 days he or she will be deemed to have consented
to a conviction or, here, pleaded guilty.  The recipient will have waived the
Charter
rights of presumed innocence and a hearing such that the court will
then have no part in making a determination of guilt or imposing the prescribed
fine.  It is only the deemed guilty plea, and hence the loss of the recipients
s. 11(d) rights, that are the consequences of not disputing a ticket which
are germane to a valid waiver.  It is those consequences of which the recipient
who chooses not to dispute a ticket must be informed.

[17]

The addition of penalty points to a driving
record is an administrative function in which the court takes no part.  Points
do not affect any right a driver has but, rather, may affect what is a drivers
privilege to hold a licence.  Depending on the number of points that a driver
may have previously accrued, or may subsequently have added to his driving
record, the points added as a result of an undisputed ticket being issued may
have no immediate effect and be of no consequence to the exercise of the
privilege.  What may, in a broad sense, be said to be consequences of a
deemed guilty plea will differ from one driver to another depending on the
drivers record.  These cannot, in my view, be consequences contemplated by
what was said in
Richard
.  They are not matters of which any given
recipient of a ticket must be informed before his or her s. 11(d)
Charter
rights
can be waived under s. 16(1) of the
Offence Act
.

[18]

It follows that I consider the judge erred in
concluding Mr. Miller had not made an informed waiver of his s. 11(d)
Charter
rights under s. 16(1) of the
Offence Act
in choosing, as he did, not
to dispute the ticket he received for having contravened s. 7A.01 of the
Motor
Vehicle Regulations
.  By virtue of the statement on the ticket, he was
properly informed of the consequences germane to his choosing not to dispute
the ticket and so waived his right to be presumed innocent and his right to a
hearing by not disputing it within 30 days.

Disposition

[19]

I would allow the appeal, set aside the order
quashing the deemed guilty plea, and dismiss what the judge converted from an
application for judicial review to an action.

The Honourable Mr.
Justice Lowry

I agree:

The Honourable Mr. Justice Donald

I agree:

The Honourable Madam Justice Levine


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

Pearlman v. ICBC,

2010 BCCA 49

Date: 20100128

Docket:
CA037135

Between:

David Pearlman

Appellant

(
Plaintiff
)

And

Insurance Corporation of British
Columbia and
Kelly Winn

Respondents

(
Defendants
)

Before:

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Garson

On
appeal from: Supreme Court of British Columbia, April 24, 2009
(
Pearlman v. ICBC
, Vancouver Registry S064665)

Oral Reasons for Judgment

Appellant appearing In Person:

D.
  Pearlman

Counsel for the Respondent:

V.
  Critchley

Place and Date of Hearing:

Vancouver,
  British Columbia

January 28, 2010

Place and Date of Judgment:

Vancouver
, British Columbia

January
  28, 2010

[1]

GARSON J.A.
: The
appellants application is made pursuant to s. 9(6) of the
Court of Appeal
Act
, R.S.B.C. 1996, c. 77. to discharge or vary the order of a chambers
judge pronounced July 3, 2009, in which the chambers judge, Madam Justice
Kirkpatrick, refused the appellants application for indigent status and
granted the respondents application for an order requiring the appellant to
post security for costs of the appeal in the amount of $5,000. The underlying
litigation concerns the appellants claim against ICBC. He claims loss and
damages incurred as a result of ICBCs alleged wrongful procurement of a
medical report concerning his motor vehicle accident related injuries. The
chambers judges reasons for judgment were pronounced July 3, 2009.

[2]

An appellate court will only interfere with the
exercise of discretion by a chambers judge if the chambers judge misdirects him
or herself, acts on a wrong principle, or acts on irrelevant considerations, or
if the decision is so clearly wrong as to amount to an injustice (
Ward v.
Kostiew
(1989), 42 B.C.L.R. (2d) 121 at 127. See also
Named Person v.
Vancouver Sun
, 2007 SCC 43, [2007] 3 S.C.R. 252,
Dhillon v. Pannu
,
2008 BCCA 514, 263 B.C.A.C. 142).

[3]

For the reasons that follow, I would dismiss the
application to discharge or vary the decision of the chambers judge.

Background

[4]

The chambers judge carefully described the
lengthy procedural history to this application, as well as the related
litigation, in her reasons for judgment. She recounted the history of the
related litigation because it provides the necessary context to the litigation
that underlies the action that is the subject of this appeal. This appeal and
the related litigation all stem from injuries Mr. Pearlman says he sustained in
a motor vehicle accident that occurred on November 24, 2004. I quote at some
length from the reasons for judgment of the chambers judge:

[3]        On 24 November 2004,
Mr. Pearlman was involved in an automobile accident. He says that, in
addition to suffering neck and back injuries, he suffered dental injuries which
ultimately required extensive and costly restorative work.

[4]        Mr. Pearlman brought four
actions following the accident:

(a)        He sued
the owner and operator of the other vehicle (the Atlantic Trading Company Ltd.
and Rebecca Lee Spence), who were insured by ICBC;

(b)        He sued
his own American automobile insurer, the American Commerce Insurance Company
(ACIC);

(c)        He
brought a claim against his former family doctor, Dr. Stan Lubin; and

(d)        He sued
ICBC and Kelly Winn, the adjuster handling his claim.

[5]        Mr. Pearlmans claim against
Atlantic Trading Company Ltd. and Rebecca Spence was tried before a judge and
jury on 17 December 2008. The jury determined that Mr. Pearlman had not
been injured in the automobile accident and declined to assess any damages.

[6]        In the appeal from that decision,
Mr. Pearlman applied on 29 October 2008 for indigent status before
Mr. Justice Chiasson. That application was refused, both on the ground
that Mr. Pearlman had not established that requiring him to pay the fees
would deprive him of the necessaries of life and on the basis that there was no
merit in his appeal. Mr. Justice Chiasson also ordered Mr. Pearlman
to post $5,000 of security for the costs of the appeal on or before 19 December
2008. When that security was not posted, Madam Justice Newbury dismissed his
appeal as abandoned on 18 February 2009.

[7]        In the action against American
Commerce Insurance Company, the insurer applied under Rule 18A to have
Mr. Pearlmans action dismissed, which application was heard in August
2008. Mr. Justice Meiklem dismissed the insurers application but this
Court allowed ACICs appeal in February 2009 and the action has been dismissed.

[8]        The action against Dr. Lubin
relates to a medical report prepared by Dr. Lubin, at ICBCs request, for
the trial of the tort action. In a portion of the report, Dr. Lubin
indicated that he felt the problems Mr. Pearlman was experiencing with his
teeth were not caused by the motor vehicle accident. Mr. Pearlmans
complaint, among many, is that Dr. Lubin was not qualified to opine on
dental issues and his remark led to problems for him in the other actions. He
sued, alleging breach of confidence, defamation and libel, fraud, deceit and
negligence, as well as medical malpractice.

[9]        That action was tried before
Madam Justice Morrison in December 2008. She dismissed the claim. She held that
when ICBC requested the report, Dr. Lubin was obliged to provide it,
pursuant to s. 28 of the
Insurance (Motor Vehicle) Act
, R.S.B.C.
1996, c. 231. She also found Mr. Pearlman had failed to provide proof that
Dr. Lubin, in providing the report to ICBC, caused him to lose his action
against the defendant driver.

[10]      Mr. Pearlman subsequently
filed a notice of appeal, an application for leave to appeal, and sought a
declaration of indigent status. On 17 April 2009, Mr. Justice Bauman ruled
that leave to appeal was not required and declined to grant indigent status to
Mr. Pearlman. Bauman J.A. adjourned Dr. Lubins application that
Mr. Pearlman be required to post security for costs. That application was
heard on 11 May 2009 by Madam Justice Neilson, who ordered that
Mr. Pearlman post $5,000 of security for costs on or before 12 June 2009. She
also ordered the appeal against Dr. Lubin be stayed until the security was
posted. In her reasons for judgment, Neilson J.A. stated:

[18]      Mr. Pearlman
has failed to convince me that there is merit in his appeal. My view is
reinforced by the fact that Mr. Justice Bauman reached a similar conclusion
on Mr. Pearlmans application for indigent status. Moreover, the breadth
of the grounds of appeal that Mr. Pearlman wishes to pursue suggests that
if his appeal proceeds it will be a lengthy and costly process for both
parties.

[11]      The action underlying these
applications concerns Mr. Pearlmans claim against ICBC and Ms. Winn
alleging,
inter alia
, bad faith, fraud, negligence and
misrepresentation.

[12]      On 4 May 2007, Mr. Justice
Cullen dismissed the action against Ms. Winn and dismissed all claims against
ICBC except for an allegation of negligence against ICBC based on the alleged
unauthorized use of an authorization provided by [Mr. Pearlman] dated 1
December 2004.

[13]      On 25 July 2007, Mr. Pearlman
brought an application for indigent status before Mr. Justice Hall. Mr. Justice
Hall dismissed the application for indigent status holding that although Mr.
Pearlmans financial circumstances supported a finding of indigency, there was
no possibility of success of his proposed appeal:
Pearlman v. ICBC
, 2007
BCCA 451.

[14]      Mr. Pearlman sought a review
of Mr. Justice Halls order refusing him indigent status. On 20 September
2007, this Court dismissed his application stating that:

[11]      Mr. Pearlman
was unable to persuade Mr. Justice Hall that there was arguable error on
the part of Mr. Justice Cullen. This panel can review the chambers order
only on the ground that the chambers judge committed a legal error. We cannot
substitute our discretion for that of the chambers judge.

[
Pearlman v. ICBC
, 2007 BCCA 464]

[15]      The current application concerns
the remaining claim in the ICBC action as to Mr. Pearlmans allegation of
wrongful conduct by ICBC in obtaining the medical report from Dr. Lubin. The
report was obtained after Mr. Pearlman withdrew an authorization he had
previously given ICBC to obtain such information.

[16]      The application was brought before
Mr. Justice Smith, sitting with a jury, beginning on 20 April 2009. Facts
relevant to the action include the following.

[17]      For more than a year following the
accident, Mr. Pearlman was seen on several occasions by Dr. Lubin or
other doctors in Dr. Lubins office. He also met with Ms. Winn, who
obtained his signed authorization to obtain medical information. That
authorization was dated 1 December 2004. The authorization states that
Mr. Pearlman was authorizing any medical practitioner to prepare a report
or certificate including, but not limited to, the diagnosis, treatment, current
condition and prognosis, in any format specified by ICBC, relating to issues raised
by his claim for injuries in the accident. The ICBC form states that the
information is collected in accordance with both the Freedom of Information and
Protection of Privacy Act, R.S.B.C. 1996, c. 165 and the Insurance Corporation
Act, R.S.B.C. 1996, c. 228.

[18]      Approximately one year later,
Mr. Pearlman retained counsel, who advised Ms. Winn that any previous
authorizations had been revoked. However, on 4 April 2006, Ms. Winn wrote
to Dr. Lubin seeking a narrative medical report and enclosed the
authorization of 1 December 2004 which had been revoked.

[19]      The letter to Dr. Lubin and
the authorization do not state in what capacity ICBC was requesting the report.
Mr. Justice Smith noted that it is well established that in matters of
this kind, ICBC may act in two different capacities: as the plaintiffs own
insurer for the purpose of benefits payable under Part 7 of the
Insurance
(Motor Vehicle) Regulation
, B.C. Reg. 447/83, pursuant to the
Insurance
(Motor Vehicle) Act
, R.S.B.C. 1996, c. 231, and as the insurer of other
drivers or vehicle owners who may be liable to the plaintiff in tort for
injuries suffered in the accident. Mr. Justice Smith concluded that, in
this case, the request could only have been as the insurer for the defendants
in an anticipated tort action because Mr. Pearlman had been driving a
vehicle registered in Washington State and was insured by an American insurer. ICBC
did not accept Mr. Pearlmans claim for benefits under Part 7 of the
Regulation
and said that he must look to his American insurer.

[20]      Dr. Lubin prepared a report
which briefly discussed Mr. Pearlmans medical history prior to the date
of the accident, including the results of a physical examination that occurred
the day before the accident on 24 November 2004. The report described 12
occasions between 27 November 2004 and 4 April 2006 at which either
Dr. Lubin or one of his colleagues dealt with matters related to the
accident.

[21]      Dr. Lubins report stated that
Mr. Pearlman suffered:

... whiplash
associated disorder grade 2 of the cervical and lumbar spine. I again
recommended neck exercise and physiotherapy. Mr. Pearlman also complained
of a problem with his upper teeth, which he attributed to the motor vehicle
accident. On examination, there was some looseness of the upper front tooth. I
felt his dental problem was not likely connected to the motor vehicle accident.

Mr. Pearlman asserts that by stating an
opinion on the cause of his dental injuries, Dr. Lubin sabotaged his
tort claim. At the trial of the tort action, Dr. Lubins report to
Ms. Winn was not put into evidence and no evidence from Dr. Lubin was
put before the jury in any form by either party. Mr. Pearlman did not call
dentists or dental specialists who had treated him because Mr. Pearlman
says he could not afford to pay the fees those dentists would have charged for
attending in court.

[22]      At the close of
Mr. Pearlmans case on 24 April 2009, ICBC made application under Rule
40(8) for the dismissal of the action on the grounds there was no evidence to
support Mr. Pearlmans case.

[23]      In his reasons for granting the no
evidence motion, Mr. Justice Smith noted that it was not, as a matter of
law, open to the jury to reconsider whether Dr. Lubin was obliged to
provide the report when Ms. Winn requested it because in the trial against
Dr. Lubin Madam Justice Morrison found that he was. He also concluded that it
was not open to the jury to decide whether or not Dr. Lubin honestly
believed what he wrote in his report because Madam Justice Morrison found that
he did. Mr. Justice Smith also observed that it was not an issue whether
Dr. Lubin was right or wrong in his opinion about the dental injuries. The
question of what injuries, if any, Mr. Pearlman suffered in the accident
was the very issue before the previous jury, which clearly decided on the basis
of the evidence before it that there were no such injuries.

[24]      Mr. Justice Smith framed the
issues and his conclusions as follows:

[27]      The
question is whether there is any evidence on which this jury could reasonably
conclude that ICBCs requesting the report caused the plaintiff to lose either
his accident case or his case against the American insurer. In the accident
case, the plaintiff had to prove a causal link between the accident and both
his orthopaedic and his dental conditions. Dr. Lubin was a necessary
witness on the orthopaedic injuries. His opinion on that issue would clearly
have been helpful to the plaintiff, and his evidence was in fact the best
evidence available on the nature of those injuries and their causal link to the
accident. No evidence from Dr. Lubin was put before the jury in the
accident case; that was because of the plaintiffs belief that Dr. Lubins
passing comment about his dental injuries destroyed his case on that issue.

[28]      The
plaintiff must prove that but for ICBC obtaining the report from Dr. Lubin
the result of his accident case would have been different. If ICBC had not
obtained that report, the plaintiff could have and indeed would have had to
obtain a medical report from Dr. Lubin for use in that trial. There is no
evidence before this jury that such a report would have been any different from
the one that was produced. Indeed, the only evidence is from Dr. Lubin,
who says he would have written the same report and expressed the same opinions
no matter who requested it.

[29]      Even if
the plaintiff could have somehow persuaded Dr. Lubin to omit his comment
on the cause of the dental injuries from his report, the same comment appeared
in his clinical records written long before ICBC requested a report. Such
clinical records are subject to orders for production and are routinely entered
into evidence in personal injury cases. There is no evidence in this case from
which this jury could conclude that the plaintiff could have proven his neck
and back injuries without Dr. Lubins views on the dental injuries also
coming before the jury in the accident case.

[30]      As for
Dr. Lubins view regarding the dental injuries, that was never put before
the jury in the accident case and could not in any way have led to that jurys
negative conclusion on that issue. That conclusion flowed from the plaintiffs
failure to call dental experts who could have supported him on that point. The
plaintiff says he could not afford to call those witnesses. While I sympathize
with the financial predicament in which the plaintiff found himself, that does
not lessen the legal burden on him to prove his case. In any event, there is no
evidence that his failure to call the dental experts was the result of ICBC
obtaining a report from Dr. Lubin.

[25]      Mr. Justice Smith also noted that
Mr. Pearlman had failed to prove that if an offer of $25,000, consistent
with a reserve of $25,000, had been made to him that he would have accepted
that offer. Similarly, the trial judge rejected, for lack of evidence, the
notion that Mr. Pearlman lost his case against his American insurer by
reason of ICBCs request for Dr. Lubins report citing this Courts reasons
at para. 33:

[34]      Similarly,
there is no evidence that ICBC requesting a report from Dr. Lubin caused
the plaintiff to lose his case against the American insurer. It appears
Dr. Lubins report did come to the attention of ACIC and that may indeed
have been improper, but there is nothing to suggest it played any role in the
outcome of his claim. The Court of Appeal in dealing with that case said at
para. 33:

[33]      In the proceeding by the
plaintiff against ACIC, the latter obtained an independent medical examination
of the plaintiff, and a report of 15 July 2008, from Dr. Burton H.
Goldstein, a certified oral and maxillofacial surgeon. This report, which was
also before the judge, contains an extensive review of the plaintiffs
dentition prior to the accident of 25 November 2004, and of the many and
various treatments the plaintiff received for his dental problems both before
and after the accident. Dr. Goldstein concludes that most, if not all, of
the various dental expenses which the plaintiff claimed from the defendant and
the defendant paid in full, were not required because of any injury or
injuries suffered by Mr. Pearlman in the accident of November 4, 2004, and
were related to the patients pre-existing dental status.

Indigent Status Application

[5]

The chambers judge set out the two
well-established criteria determining whether indigent status should be
granted. Those two criteria are: 1) the likelihood of success of the appeal;
and 2) the financial position of the appellant (
Duszynska v. Duszynski
,
2001 BCCA 155, 149 B.C.A.C. 153).

[6]

The chambers judge noted that on November 21,
2008, and on April 17, 2009, two justices of this Court found that Mr. Pearlman
did not meet the financial criteria for indigent status. The chambers judge
observed that she had before her substantially the same financial information
as was before the other two justices.     In Mr. Pearlmans affidavit in
support of his application for indigent (at page 47 of his motion book on this
application), and sworn on June 22, 2009, he deposed that he does not have
funds with which pay court fees, to swear affidavits, or to pay photo copying
expenses. In an earlier Affidavit sworn on May 20, 2009 (both before the
chambers judge), he itemized his income and expenses as follows:

Estimated net monthly income from all sources

Employment

Nil

Pension OLD AGE, CPP AND GIS

$1,338.48

Dividends

Nil

Interest

Nil

Other

Nil

Total

$1,338.48

ESTIMATED MONTHLY EXPENSES

Estimated monthly expenses related to housing RENT

$250.00

Estimated monthly
  expenses related to transportation

350.00

Estimated monthly
  expenses related to household expenses

350.00

Estimated monthly
  expenses related to medical and dental

143.48

Expenses

----

Estimated monthly
  expenses, not included in above, related to dependent children

N/A

Estimated monthly
  debt payments (specify) ICBC ($100.00),
CABLE ($60.00), PHOTOCOPYING ($245.00), HYDRO ($25.00), Parking ($60.00)

TOTAL (Estimated
  monthly expenses)

$1,338.48

[7]

He says he has no assets of any value. He
estimates his debts at $33,000.

[8]

The respondent on this appeal filed an affidavit
of Tina Robbins, defence counsels paralegal. Ms. Robbins deposed at para. 14
of her affidavit as follows:

I have been
informed by Mr. Critchley and verily believe that the Appellant has suggested
in this Appeal that he is indigent. I do know, however, that he was able to
come up with sufficient funds to pay the initial Jury fees in the Action as
well as the Jury fees for the 5 days of trial as requested by the Sheriffs
office.

[9]

As to the merits of the appeal, the chambers
judge said at para. 30:

Having read the
reasons for judgment, the materials filed on this application, as well as
Mr. Pearlmans submissions, I do not consider it at all likely that a
division of this Court could be persuaded to reverse the findings of the trial
judge.

[10]

Mr. Pearlman argues before this Court that Mr.
Justice N. Smith usurped the jurys function by granting the defendants
no-evidence motion at the conclusion of his case. Mr. Pearlman made the same
arguments before the chambers judge.

[11]

I am unable to apprehend any error on the part
of the chambers judge in concluding that there was no likelihood that a
division of this Court would be persuaded to reverse the findings of the trial
judge.

[12]

As to Mr. Pearlmans financial status, the
chambers judge examined his financial circumstances and reached the same
conclusion as the ones reached earlier by two other justices of this court. I
see no error in her conclusion that Mr. Pearlmans financial circumstances,
although constrained, are not such that he cannot pay the necessary filing fees
as indeed he has done on other occasions. In any event, the first ground, that
is the question of merits, is dispositive of this application.

[13]

In my view Mr. Pearlmans application for
indigent status fails on both grounds.

Security for
Costs

[14]

The issue before the chambers judge was whether
the appellant had established that the interests of justice require security
for costs not be posted (
Southeast Toyota Distributors, Inc. v. Branch
(1997), 45 B.C.L.R. (3d) 163, 99 B.C.A.C. 12). The chambers judge concluded
that the appeal had no reasonable prospect of success, that there was a serious
risk that the respondents would not be able to recover their costs if they were
successful on appeal, and finally, that the appellant had not satisfied the
onus upon him to establish that the interests of justice requires security for
costs not be posted.

[15]

In my opinion the chambers judge did not err in
her disposition of the respondents application.

[16]

Accordingly, I would dismiss the appellants
application.

[17]

HALL J.A.
: I
agree.

[18]

CHIASSON J.A.
: I
agree.

[19]

HALL J.A.
: The
application for review is dismissed.

The Honourable Madam Justice Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Dhaliwal,

2010 BCCA 50

Date: 20100128

Docket:
CA037223

Between:

Regina

Respondent

And

Jasvir
Singh Dhaliwal

Appellant

Before:

The Honourable Madam Justice Newbury

The Honourable Madam Justice Saunders

The Honourable Madam Justice Bennett

On
appeal from: Provincial Court of British Columbia, May 22, 2009
(
R. v. Dhaliwal
, New Westminster Registry 70160

Oral Reasons for Judgment

Counsel for the Appellant:

P.
  McMurray

Counsel for the (Crown) Respondent:

U.
  Botz

Place and Date of Hearing:

Vancouver,
  British Columbia

January
  26, 2010

Place and Date of Judgment:

Vancouver,
  British Columbia

January
  28, 2010

[1]

NEWBURY J.A.
: On
July 30, 2008, Mr. Dhaliwal pleaded guilty to the attempted murder of his wife
Parmjit Deol. The attempted murder was the climax to years of abuse he had
inflicted on her since their marriage (an arranged one) in 1999 had made it
possible for him to immigrate to Canada from India. With one exception (on
which occasion police did not arrive until after Mr. Dhaliwal had fled) Ms.
Deol did not report the escalating violence to the police out of consideration
to her familys honour and their children.

[2]

On the evening of January 18, 2007, Mr. Dhaliwal
was angry with his wife and apparently jealous of her paying attention to the
children and to the fact a movie was being made across the street. According to
an agreed statement of facts put before the court below, Mr. Dhaliwal came up
behind her and began beating her, then got a knife and pushed her down, telling
her I will kill you today. I dont care. I am not afraid of the police. They
can deport me back. I might get jailed. I dont care if I dont get
citizenship and Im going to stab you so many times that no one would be able
to recognize you and I would bury you in the garage. Ms. Deol was cut twice,
though only superficially, and Mr. Dhaliwal sexually assaulted her. While he
was in the bathroom cleaning up, Ms. Deol phoned her mother and asked her to
come over right away, which she did. Mr. Dhaliwal locked himself in the master
bedroom after her arrival. Ms. Deols sister-in-law was also asked to come over
to try and speak with Mr. Dhaliwal but Mr. Dhaliwal was unresponsive.

[3]

The three women then decided to gather up the
children so that Ms. Deol and the children could sleep at the sister-in-laws
house. Mr. Dhaliwal then came out of the bedroom and told them they were not
taking the children and that he would kill Ms. Deol wherever she goes. He
returned to the kitchen, grabbed a knife and went after his wife, who ran
downstairs and over to her mothers house nearby. She locked the door but Mr.
Dhaliwal kicked through the glass in the door, saying he wanted to kill her. He
then stabbed her in the side and was screaming at her as the mother and
sister-in-law arrived.

[4]

Fortunately, there were police officers in the
neighbourhood that night, in connection with the making of the movie. They
heard the commotion and saw Mr. Dhaliwal trying to get into the house and
holding a knife. One of the police officers told him to step away from the door
and Mr. Dhaliwal dropped the knife onto the ground. Once his wife came out of
the front door, however, he lunged at her, and grabbed her around the throat
with both hands. Eventually the police forced him to the ground and handcuffed
him and other police arrived on the scene.

[5]

Ms. Deol was taken to the hospital by ambulance.
She was treated for a stab wound to the rear left side of her abdominal cavity
which had cut her lower left lung and diaphragm, and punctured her spleen. She
required emergency surgery to repair the cuts and stop the internal bleeding.
Her injuries were described as life- threatening.

[6]

Mr. Dhaliwal was sentenced on May 22, 2009, and
had been in custody since his arrest in January 2007, a total of 27 months. The
Crown took the position that the appropriate range was between six and eight
years, i.e., another two to three years after doubling the time in custody to five
years. Defence counsel said he did not generally quarrel with the range
proposed by the Crown or the calculation of credit at five years. In his
argument, defence counsel stressed that Mr. Dhaliwal had no criminal record,
had good prospects of returning to his job as a trucker, and had been trying to
address his alcohol abuse problem. A psychiatric report prepared by Dr.
Lohrasbe opined that if Mr. Dhaliwal abstains from alcohol, his risk for future
acts of violence is low. In more general terms, the defence argued that the
objectives of denunciation and deterrence could be satisfied by a sentence of
two years less a day, as opposed to three years. As well, he emphasized that
Mr. Dhaliwal did not have a history of violence outside the home and that he
had made efforts to rehabilitate himself during his time in custody.

[7]

Defence counsel submitted, however, that the
real question before the Court was that of additional punishment. He placed
before the sentencing judge a letter of opinion from an immigration lawyer
dealing with loss of appeal rights ... on the grounds of serious criminality
under s. 64(2) of the
Immigration and Refugee Protection Act
. The
bottom line of the opinion was that if a sentence does not
refer
to
time served, then time served will not be taken into account for the purpose of
ss. 64(2). Defence counsel therefore suggested to the sentencing judge that in
order to try to preserve Mr. Dhaliwals right of appeal under the
Act
,
she refrain from mentioning the double credit for time served and simply impose
two years less a day in hopes such a sentence would pass muster with the
immigration authorities.

[8]

After taking time to consider the matter, Judge
Alexander gave her reasons for sentence. She set out the facts surrounding the
attempted murder, counsels position and the aggravating and mitigating
factors, and stated that she agreed with the range of sentence set out by the
Crown. She concluded that two years less a day did not meet the criteria in s.
718 of the
Code
. In her words:

[21]      I agree with the range of sentence
set out by the Crown, and the court must therefore balance the s. 718 factors.
At the end of the day, any sentence imposed must be a fit and proper sentence.
Two years less a day does not meet the criteria. I am alive to the potential
immigration consequences and, as I have said, as to the wishes of the family
that the defendant return to them.

[22] The defence concedes that this offence
is at the most serious end of the range of this type of offence, and submitted
that, but for the intervention of the police, the result could have been
tragically different.

[23) The sentence, as I have indicated, must
reflect the gravity of the offence and societys denunciation for domestic
violence, as well as general and specific deterrence. The sentence proposed by
the defence does not achieve those goals and would send the wrong message to
the community at large.

[24] I impose a
further sentence of three years in custody in addition to time served.

The sentencing judge also noted for the
record that she had given Mr. Dhaliwal credit for time served at five years
added to the additional three years, this resulted in an
effective
eight-year sentence.

[9]

On appeal, the basic argument of defence counsel
was that although he could not say that a sentence of three years was not fit,
a sentence two years less a day would also have been fit and would have
accomplished the goals of denunciation and deterrence just as effectively as
the sentence actually imposed. As well, he submitted that the sentencing judge
had erred in failing to consider what I will call the
Kanthasamy
line of
authorities (
R. v. Kanthasamy
2005, BCCA 517,
R. v. Q.A.N
. [2005]
B.C.J. No. 2700, and
R. v. Leila
, 2008 B.C.J. No. 30, all decisions of
this court). In each of these, the sentencing judge had been unaware of the
offenders possible loss of appeal rights for immigration purposes and the
Court of Appeal reduced a sentence of two years down to two years less a day in
order to avoid an unintended consequence of great significance. Obviously,
this case does not involve an immigration consequence that was unintended or
unforeseen by the sentencing judge.

[10]

As this court made clear in
R. v.
Martinez-Marte
, 2008 BCCA 136, the question before this Court whether the
sentence
was
that imposed is a fit one. In my view, it has not been
shown that it was not fit and no error has been shown in the sentencing judges
reasons. Defence counsel acknowledged that the offence here was a very serious
one. It was certainly open to the sentencing judge to conclude that the
circumstances warranted an effective sentence of eight years and I know of no
authority for the proposition that an appellate court should intervene and
change what is otherwise an appropriate sentence in order to avoid the
consequences of a statutory provision of which the sentencing judge was fully
aware.

[11]

In my view, leave should be given to appeal, but
the appeal should be dismissed.

[12]

SAUNDERS J.A.:
I
agree.

[13]

BENNETT J.A.:
I
agree.

[14]

NEWBURY J.A.
:
Leave is granted but the appeal is dismissed.

The Honourable Madam Justice Newbury