COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. B.S.B.,

2010 BCCA 40

Date: 20100122

Docket:
CA036573

Between:

Regina

Respondent

And

B.S.B.

Appellant

RESTRICTION ON PUBLICATION: A
N ORDER
HAS BEEN MADE IN THIS CASE PURSUANT TO S. 486.5 OF THE C
RIMINAL CODE
THAT PROHIBITS ANY INFORMATION THAT COULD IDENTIFY A VICTIM OR WITNESS BEING
PUBLISHED, BROADCAST OR TRANSMITTED.

SECTION 16(4)
SEX OFFENDER INFORMATION AND REGISTRATION ACT
:
THIS SECTION PROVIDES THAT NO PERSON SHALL DISCLOSE ANY INFORMATION THAT IS
COLLECTED PURSUANT TO AN ORDER UNDER SOIRA OR THE FACT THAT INFORMATION
RELATING TO A PERSON IS COLLECTED UNDER SOIRA.

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Groberman

On
appeal from: Supreme Court of British Columbia, November 7, 2008

(R. v. B.S.B
, 2008 BCSC 1526 New Westminster Registry X070471)

Oral Reasons for Judgment

Counsel for the Appellant:

M.D.
  Sanders

Counsel for the (Crown) Respondent:

W.
  Rubin, Q.C.

Place and Date of Hearing:

Vancouver,
  British Columbia

January
  19, 2010

Place and Date of Judgment:

Vancouver,
  British Columbia

January
  22, 2010

[1]

NEILSON J.A.
: The
appellant appeals his custodial sentence of two years less a day and three
years probation for sexual assault, imposed by a Supreme Court judge on
November 7, 2008. He says that the sentencing judge erred in deciding he was
not a suitable candidate to serve the custodial portion of his sentence in the
community pursuant to s. 742.1 of the
Criminal Code
, R.S.C. 1985,
c. C-46.

[2]

The facts underlying the appellants conviction
were summarized in the reasons for judgment dealing with his conviction appeal,
indexed at 2009 BCCA 520:

[2]        The complainant found herself
naked in the appellants bed one morning with no memory of how she got there or
what had happened the night before. She became increasingly troubled as the day
wore on and phoned the appellant. After some hesitation, he said they had sex
and that he wore a condom at the time. The complainant went to the hospital
where she was checked for sexual assault. The examining nurse found 19 bruises
and two vaginal tears. A vaginal swab and DNA testing revealed the presence of
the appellants semen. Although testing for the date rape drug was negative,
an expert testified that the drug quickly passes through the system and would
not have been detected in the interval between the event and the testing in
this case.

[3]        The complainant testified that
she went out with the appellant on one prior occasion, having made his
acquaintance under the name of Dion on the Internet. On the second occasion,
the evening in question, she accepted his invitation to join him and friends at
his home. The appellant, the complainant and another couple (referred to in the
evidence as Jo. and Me.) had a few drinks, a meal, and then the four of them
prepared to go out to a nightclub. At this point, Me. noticed that the
complainant was behaving strangely and made a lewd advance towards her. The
complainant testified that she was fading in and out. The two couples went to
a nightclub. The complainant has no memory of how she got there, and apart from
a few scattered recollections, no memory of what happened at the club.

[4]        According to Jo. and Me., her
behaviour on the dance floor was bizarre and embarrassing:  she was grinding
her buttocks into groins of both the appellant and Me., and moving her arms up
and down completely out of time with the music.

[5]        The appellant and the complainant
left the club on their own. The complainant could not remember leaving the
club, arriving at the appellants home or how she ended up in his bedroom. Her
only memory was of lying on the sidewalk, feeling unable to get up.

[6]        The
appellant testified that on the way home the complainant had vomited all over
her clothing, which he removed when they got there. He said she went into his
bed after vomiting again, passionately kissed him, fondled his penis and guided
it into her vagina. He explained his hesitancy on the phone with her the next
day because he was surprised that she would ask him if they had sex, given her
seductive behaviour in bed.

[3]

While the circumstances were suspicious, the
judge found there was no proof that the appellant had drugged the complainant. He
found the complainant credible and forthright. He made these findings as to the
appellants credibility:

[45]      I must
say that I have great difficulty believing anything the accused said in his
testimony. He lied when he told Cst. Chahil that he did not know Ka.; he lied
when he said he did not tell Ka. that his name was Dion; he lied when he told
Ka. that he had used protection during sexual intercourse with her; he lied
when he told the complainant that he was half French; and, he lied when he told
the complainant that she had taken off her clothes because she had vomited on
them. In addition to all of this, I find his description of how he was seduced
by Ka. to be simply ludicrous, given the circumstances.

[4]

The appellant was 30 years old at the time of
sentencing and had no criminal record. He had worked as a prison guard with
Corrections Canada since 1999, but lost his job and his hopes of becoming a
police officer as a result of the offence. He filed a large number of letters
that demonstrated strong support from his family and fellow employees. Two
women colleagues testified to his good character.

[5]

The Crown took the position that a four year
custodial sentence would be appropriate. The defence argued that the appellant
was a proper candidate for a conditional sentence order.

THE REASONS FOR JUDGMENT

[6]

The reasons of the sentencing judge set out a
comprehensive review of the principles that govern sentencing, including
conditional sentence orders. He reviewed authorities that dealt with similar
cases, and determined that an appropriate range of sentences for sexual assault
that involved intercourse was two to six years.

[7]

He used the list of fa
ctors from
R. v.
J.-J. L.
, [1998] R.J.Q. 971, 126 C.C.C. (3d) 235 (C.A.)
as
the framework for assessing the circumstances of the offence. He noted the
gravity and pervasiveness of sexual assault generally as a crime. He described
this
sexual assault as particularly heinous. He referred to it as a
rape and found the violence used was an aggravating factor. He observed that
the a
ssault had had a devastating effect on the complainant,
and
that the
appellant had shown no remorse or empathy
for her, although the judge emphasized that he did not consider the lack of
remorse an aggravating factor.

[8]

The sentencing judge stated his conclusion as to an appropriate
term of imprisonment in this way:

[48]      After instructing myself on the
law as enunciated above, I have concluded that the offence committed by this
accused should result in a period of imprisonment of two years less one day. I
conclude the such a sentence would be proportionate to the offence committed by
him and his degree of responsibility for it because of the following factors:

(a)        the
vulnerability of the victim;

(b)        the
insidious nature of the offence;

(c)        the
accuseds high degree of moral responsibility for the offence;

(d)        the requirement for the sentencing
principles of general deterrence and denunciation to be stressed.

[9]

He then turned to consider whether it would be
appropriate for the appellant to serve his sentence in the community, pursuant
to s. 742.1 of the
Code
, and
R. v. Proulx,
2000 SCC 5,
[2000] 1 S.C.R. 61. At the time of the offence, the amendment excluding sexual
assault from s. 742.1 had not been enacted. The sentencing judge focussed
on whether a conditional sentence would satisfy the requirements of deterrence
and denunciation, and whether it would endanger the safety of the community,
particularly women in the community. He concluded that a custodial sentence was
necessary:

[60]
With respect to the prerequisite
involving the safety of the community, the Supreme Court of Canada held at
para. 68 of
Proulx
, that the focus
of the analysis at this point should clearly be on the risk posed by the
individual offender while serving his sentence in the community.  The danger
to the public is evaluated by reference to (1) the risk of re-offence in
light of the conditions attached to the sentence, and (2) the gravity of
the danger in the event of a re-offence.

[61]      B.S.B. has no previous convictions.
This supports the proposition that he does not constitute a danger to the
public, but only in a simplistic manner. The nature of the sexual offence
committed by B.S.B. raises serious concerns for the Court. This was an offence
involving an accused who had non-consensual sex with a female when she was in a
very vulnerable state; this is an offence where the accused inflicted violence
on the complainant when he committed the assault upon her; this is a case where
the accused transmitted gonorrhoea to the complainant because he decided to have
unprotected sex with her. The Court must conclude that B.S.B. committed this
offence solely in order to satisfy his sexual desires. Obviously, B.S.B.s
behaviour raises serious concerns as regards the safety of the community. I
conclude that allowing B.S.B. to serve a period of imprisonment in the
community would result in the safety of women in the community being
endangered.

[62]      With respect to the
prerequisite involving the principles of sentencing, the Supreme Court of
Canada held in
R. v. Wells
, 2000 SCC 10,
[2000] 1 S.C.R. 207 at para. 29, that the court is to undertake a
comprehensive consideration of the principles of sentencing set out in
ss. 718 to 718.2 of the
Criminal Code
.
As in
R.A.R.
, the principles of
denunciation and deterrence are of prime importance in this case. In my view, a
conditional sentence
would fail to reflect the seriousness of
the offence committed by B.S.B. and would fail to satisfy the sentencing
principles of denunciation and general deterrence.

GROUNDS OF APPEAL

[10]

The appellant says the sentencing judge made
four errors in concluding that a conditional sentence would endanger the safety
of the community:

a) he found the appellant had transmitted
gonorrhoea to the complainant and treated this as an aggravating factor when
this was a disputed fact and the Crown had not proved it beyond a reasonable
doubt;

b) he erred in finding that the fact that
the appellant committed the offence to satisfy his sexual desires was an
aggravating factor;

c) he misapprehended the degree of violence
inflicted on the complainant during the offence, and erred in treating this as
an aggravating factor;

d) he rejected
uncontradicted psychological opinions that the appellant was not a danger to
society.

ANALYSIS

[11]

An appellate court must apply a deferential
standard of review in considering whether a sentence is fit. Sentencing judges
are given a broad discretion under the
Code
to determine what is a just
and appropriate sentence. They are uniquely placed to assess the submissions of
counsel, the social and community context for the offences, and the moral
blameworthiness of the offender. Absent an error in principle, failure to
consider a relevant factor, or over-emphasis of proper factors, a court of
appeal will intervene only if a sentence is demonstrably unfit:
R. v. M.
(C.A.)
, [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 at paras. 89-92;
R.
v. L.M.
, 2008 SCC 31, [2008] 2 S.C.R. 163 at paras. 14-16.

1. Did the sentencing judge err in
referring to the transmission of gonorrhoea when this was a disputed fact?

[12]

This issue was raised for the first time in the
complainants Victim Impact Statement entered at sentencing. It stated:

The Sane Kit
that was conducted at Surrey Memorial Hospital brought back positive results
for gonorrhoea after the assault. Prior to September 2004 I had no Sexually
Transmitted Diseases. Dion could have had AIDS. Could you imagine if I was
diagnosed with AIDS for instance?  Then, truly, my life would have been taken
from me. Its such a heinous thought that someone would have not only done this
to me, but would also have the audacity not to use protection.

[13]

During submissions, the Crown raised the
positive test for gonorrhoea in the context of its argument that engaging in
unprotected sex during the crime was an aggravating factor. The defence replied
that it could not be an aggravating factor because there was no evidence that
the appellant had a sexually transmitted disease or was reckless as to that
possibility, or that he had transmitted it to the complainant.

[14]

The appellant says the transmission of
gonorrhoea was thus a disputed fact, and the Crown was obliged to prove it
beyond a reasonable doubt pursuant to s. 724(3) of the
Code
. It did
not do so, and the sentencing judge was therefore precluded from relying on it.
Instead, he improperly treated the transmission of gonorrhoea as an aggravating
feature, and also referred to it as a fact that militated against a conditional
sentence.

[15]

The appellant is incorrect in saying the
sentencing judge used this as an aggravating factor. He did, however, mention
it in his assessment of the gravity of danger to the community if the appellant
received a conditional sentence. Like the Crown, he raised it as a consequence
of having unprotected sex.

[16]

I agree the sentencing judge was wrong in doing
so. While he could consider the danger of unprotected sex in his analysis, the
question of whether the appellant transmitted gonorrhoea to the complainant
during that act was disputed, and had to be established pursuant to s. 724(3).

2. Did the sentencing judge err in
treating satisfaction of sexual desire as an aggravating feature?

[17]

The appellant says that satisfaction of sexual
desire is no more than a definitional element of the offence of sexual assault,
and the sentencing judge erred in treating it as an aggravating factor, or as
something relevant to community safety.

[18]

Taken in context, I do not find the comment
objectionable.
As set out previously, the sentencing judge was not
dealing with aggravating factors at para. 61 of his reasons where this comment
occurs.

[19]

As to the issue of community safety, the sentencing judges
reasons demonstrate that he was j
ustifiably disturbed by the
circumstances of this offence. A previously blameless young man with an
unblemished career in the justice system had committed a serious sexual assault
on a vulnerable victim in unusual circumstances. There was no indication that
substance abuse played a role in his actions.
The appellant and
complainant hardly knew each other, so it could not be explained by some
historical dispute or dynamic in the relationship. The appellant
lied to the complainant and the police. He had shown no remorse or
insight into the offence, and continued to maintain their sexual encounter was
consensual. In the context of assessing danger to the community, the judge was
trying to determine why this assault had occurred, and whether the appellants
behaviour was so unpredictable that he might offend again if he served his
sentence in the community.

[20]

In that context, I view the comment complained
of simply as the sentencing judges observation that there was nothing to
explain the assault other than the obvious  that the appellant wanted to
satisfy his sexual desires.

[21]

I would not accede to this ground of appeal.

3. Did the
sentencing judge misapprehend the evidence as to the degree of violence?

[22]

The appellant argues that the sentencing judge
misapprehended the evidence in concluding that this sexual assault was
heinous, and that the violence was an aggravating factor. The appellant
maintains that the degree of violence inflicted was no greater than the
violence inherent in the offence itself.

[23]

The injuries to the complainant were described
by the judge in his reasons for conviction. Ms. Hildebrand, an expert in
examining complainants of sexual assault, testified that the complainant had 19
recent bruises caused by blunt force on her arms, hands, breast, abdomen,
thighs, foot, back and pubic area. As well, her vagina was tender and had two
small lacerations. Ms. Hildebrand said that some of the injuries were
consistent with sexual assault, and the complainant ranked in the top third
with respect to the number of injuries she had observed in sexual assault
victims.

[24]

The complainants victim impact statement stated
that she was not able to cross her thighs for days due to the injuries.

[25]

The judge found the injuries had been caused by
the appellant, and that they indicated that the complainant had struggled to
resist his assault.

[26]

The appellant argues that Ms. Hildebrand
used an ultraviolet lamp to detect the 19 injuries, and some of them would not
have been visible without that aid. As a result, the severity of the injuries
is overstated. As well, he complains that nothing identified the population to
which Ms. Hildebrand referred in placing the complainant in its top third.
Without that, he says that evidence is meaningless and prejudicial.

[27]

I find no error in the sentencing judges
conclusions that this was a heinous assault and that the violence was an
aggravating factor. The list of 19 injuries includes many that were clearly
visible and painful. The sentencing judge found the complainant credible and
was entitled to accept her account of their impact on her. Their statistical
import was not a necessary component of his conclusion that the violence was
both an aggravating factor and a feature to be considered in the context of
community safety.

4. The trial judges treatment of the
psychologists reports

[28]

The appellant provided two reports from
psychologists at the sentencing proceeding. The first was an extensive
assessment from Dr. Williams, a clinical forensic psychologist. He
concluded that the appellant was not inclined to violence or hostility, and
statistically represented a low risk for sexual or violent recidivism.

[29]

The second was a report from Ms. Cherry, a
counselling psychologist who had seen the appellant for six sessions over the
two months between his conviction and his sentencing. Her report deals
primarily with the appellants personal circumstances and progress in coming to
terms with the changes in his life as a result of the offence. She provides her
view that he appears to pose no threat to anybody.

[30]

The appellant argues that the sentencing judge
erred in principle in implicitly rejecting this uncontradicted evidence.
Further, his failure to provide reasons for doing so precludes meaningful
appellate review.

[31]

The sentencing judges treatment of these
reports is confined to mentioning Dr. Williams conclusions in summarizing
the defence position, and later noting that there were a number of positive and
mitigating circumstances in the appellants circumstances. The judge did not,
however, enlarge on these.

[32]

I agree that it would have been preferable if
his reasons had explicitly dealt with these reports.

5. Was the sentence unfit?

[33]

I have concluded that the sentencing judge erred
in referring to a disputed fact, and I have found that he did not set out his
reasons for rejecting the psychologists reports. Despite those shortcomings,
this Court may only modify the sentence if it finds it was unfit. While the
presence of reasons will assist in that determination, their absence will not
automatically result in a reduction of the sentence. The issue is whether the
sentence was reasonable and fell within the expected range for sentences for
offences of this nature:
R. v. Shropshire
, [1995] 4 S.C.R. 227, 129
D.L.R. (4
th
) 657.

[34]

With respect to the reference to the
transmission of gonorrhoea, I am not persuaded that this played a significant
role in the sentencing judges determination of a fit sentence. As set out
previously, it arose in the context of the appellants unprotected sex with the
complainant. It was that reckless practice that was the prime concern. The
appellant had lied to the complainant about this, telling her he had used a
condom. Ms. Cherry described him as immature, and a long-time participant
in the bar scene, given to frequent one-night stands. In that context, the
trial judge could properly consider unprotected sex a legitimate concern with
respect to community safety. While the transmission of a sexually transmitted
disease as a result of such activity is an acknowledged risk, whether or not it
occurred here was not the primary point.

[35]

With respect to the sentencing judges treatment
of the psychological reports, although they suggested that the appellant was
not at risk to re-offend,
both reports were limited in the assistance
they could provide the judge. Dr. Williams noted that the appellant
continued to deny that he had committed the crime. Dr. Williams could
offer no insight into the reasons or motive for the assault, other than perhaps
the appellants feelings of inadequacy. Ms. Cherrys
report
similarly contains no suggestion that he has admitted responsibility for the
crime, or has any insight into it.

[36]

I am not satisfied that the sentencing judges failure to deal
with these reports in his reasons must lead to a modification in the
appellants sentence. This was an unusual offence. The appellants background
strongly suggested he was not a person who would commit a sexual assault. The
psychologists opinions regarding future risk point to that. Yet the appellant
did commit a serious sexual assault.
They were unable to
explain this. The appellants continuing denial, and the absence of any insight
as to why he committed the offence, significantly diminished their
psychological opinions as to his future risk.

[37]

Both parties have provided the Court with
authorities that deal with sentences in other sexual assault cases. The Crowns
authorities predictably affirm that a custodial sentence is appropriate. The
appellants recount cases in which the complainants were subjected to
devastating sexual assaults, but the offender received a conditional sentence.
While these cases provide some guidance in affirming the appropriate sentencing
range, each has its own unique constellation of circumstances and for that
reason they are of limited assistance. For example, in the five authorities
provided by the appellant, all involved offenders who were seriously
intoxicated at the time of the offence, and took steps to deal with their
substance abuse thereafter; four referred to family financial obligations as a
primary reason for deciding the offender could serve his sentence in the
community; and three had express findings that the offender did not present a
danger to the community. None of those factors is present in this case.

[38]

The appellant argues that his sentence does not
reflect the fact he lost his job and future employment prospects because of the
offence. He says this provided sufficient denunciation and deterrence and
supports his argument that incarceration is unreasonable. However, this
argument addresses individual deterrence. General deterrence remains a
significant consideration.

[39]

The sentencing judge properly found that this
was a serious offence, both in terms of its impact on the complainant and the
moral culpability of the offender. There was a factual foundation for his
concern that the appellant may present a danger to the community. He correctly
emphasized the importance of denunciation and deterrence in sentences for such
offences.
Having considered all of the circumstances, I am not persuaded
that the sentence is unfit.

[40]

I would dismiss the appeal.

[41]

SAUNDERS J.A.
: I agree.

[42]

GROBERMAN J.A.
: I agree.

[43]

SAUNDERS J.A.
: The appeal is dismissed.

The Honourable Madam Justice Neilson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Ashton Mining of Canada Inc. v. Vesuna
,

2010 BCCA 79

Date: 20100125

Docket:
CA035361

Between:

Ashton
Mining of Canada Inc.

Respondent

(Petitioner)

And

Rumi
Vesuna

Appellant

(Respondent)

Before:

The Honourable Mr. Justice K. Smith

(In Chambers)

On
appeal from: British Columbia Supreme Court, August 3, 2007
(
Ashton Mining of Canada Inc. v. Vesuna
, 2007 BCSC 1374 Van. Reg.
S97638)

Oral Reasons for Judgment

Appellant appearing In Person:

Counsel for the Respondent:

C.A.B.
  Ferris

Place and Date of Hearing:

Vancouver,
  British Columbia

January
  25, 2010

Place and Date of Judgment:

Vancouver,
  British Columbia

January
  25, 2010

[1]

K. SMITH J.A.
: Mr.
Vesuna, who is the appellant in this appeal, has conducted this proceeding in
person in this court and below. His appeal was dismissed on June 6, 2008 in
oral reasons given at the conclusion of the hearing: see 2008 BCCA 248. He
applied for leave to appeal to the Supreme Court of Canada but leave was
refused on July 3, 2009.

[2]

He now applies in respect of the costs that have
been assessed against him by the Registrar following the dismissal of his
appeal. His contention is that he did not receive notice of the appointment to
settle the order of this Court, which included an order that he pay costs of
the appeal, and he did not receive notice of the appointment to assess costs. According
to his evidence, he left the country just after the decision in the appeal on
June 6, 2008 and did not return until the end of November 2008, at which time these
matters came to his attention. By then, the order of the Court had been settled
and costs had been assessed against him.

[3]

He brought this application by way of notice of
motion filed on December 31, 2009. He seeks an order varying an order I made in
chambers on February 8, 2008 to include a provision that he recover costs of that
application in any event. He also seeks leave to extend the time for review of
the costs assessed by the Registrar, and he seeks a review of those costs on
the ground that in many respects they are excessive.

[4]

I will deal first with the interlocutory motion.
On February 8, 2008, Mr. Vesuna successfully resisted the respondents application
for an order that he post security for costs of the appeal: see 2008 BCCA 51. I
did not mention costs in my reasons for judgment. The formal order resulting
from my reasons was entered on June 9, 2008.  It contained no provision for
costs of the application. Mr. Vesuna now asks that the order be varied to
insert an order that he be awarded those costs in any event of the cause. It is
Mr. Vesunas position that he should have the costs of the respondents
unsuccessful application and that they should be set off against any costs he
might be ordered to pay to the respondent.

[5]

I have no jurisdiction or power to vary that
order. The power to vary an order is vested in the Court by s. 9(6) of the
Court
of Appeal Act
and, as a single justice sitting in chambers, I do not have
that power. Therefore, that aspect of Mr. Vesunas application cannot succeed.

[6]

I would add that had Mr. Vesuna insisted on a
provision in the order that he recover his costs of that application it was
within the power of the Registrar to insert such a provision in the order. The Registrar
has no jurisdiction to assess costs where the formal order is silent as to
costs, but the Registrar does have authority in settling an order to insert a
provision to give effect to the normal rule that costs follow the event: see
G.W.L.
Properties Ltd. v. W.R. Grace & Co.  Conn.
(1991), 62 B.C.L.R. (2d)
161. However, Mr. Vesuna did not request an order for costs. Rather he endorsed
his approval on the form of order which, as I have noted, made no provision for
costs of the application. In the absence of some circumstance of which I have
not been made aware, the Registrar was entitled to take Mr. Vesunas approval
at face value and to assume that if he wanted his costs of the application he
would make that known to the division hearing the appeal and ask them to take
the costs into account in the order for costs of the appeal.

[7]

As for the costs assessed on the appeal, a party
dissatisfied with an assessment may apply within 7 days to a single justice in
chambers pursuant to Rule 70 of the
Court of Appeal Rules
for a review
of the assessment under s. 10(3) of the
Act
, which confers the power to
vary an assessment.

[8]

The oral reasons for judgment of the Court
dismissing Mr. Vesunas appeal were silent as to costs. The respondent prepared
a form of order which provided that the Respondent be and is hereby granted
its costs of this appeal. On June 9, 2008, counsel for the respondent mailed a
draft order to Mr. Vesuna at the address for delivery he specified in his
notice of appeal and mailed it, as well, to a residential address at which Mr.
Vesuna sometimes resided in Calgary, Alberta. In his covering letter, counsel
asked Mr. Vesuna to endorse his approval of the form of the order and return
it. The letter contains the following paragraph:

I draw your attention to the second
paragraph of the Order, which provides that the Respondent, Ashton Mining of
Canada, Inc. is entitled to its costs. Section 23 of the
Court of Appeal Act
reads;

Unless the court
or a justice otherwise orders, the party who is successful on an appeal is
entitled to costs of the appeal including the costs of all applications made in
the appeal.

Given this
provision, I have included the provision for the payment of costs in the Order.
If you have any questions arising from the Order, please telephone me so that
we may discuss them. If I do not hear from you, I will expect to receive a
signed copy of the Order back from you by Friday, June 20, 2008. If I do not
receive the Order by that time, I will make an application to settle the Order
before the Registrar of the Court of Appeal. In that circumstance, I will seek
additional costs against you for your failure to approve the enclosed order as
to form.

[9]

On July 14, 2008, counsel for the respondent wrote
again to Mr. Vesuna by letter addressed to his address for delivery and to his
Calgary residential address enclosing an appointment to settle the order of the
division made on June 6, and an appointment for an assessment of the bill of
costs, both set for July 22, 2008 at 10:00 a.m. These letters were sent by
registered mail. I am advised that, at the hearing, the Registrar indicated
that the order would have to be settled before the costs could be assessed and,
as a result, the assessment of costs was adjourned to August 7, 2008 at 10:00
a.m. The settlement of the order went ahead that day and it was settled in a
form including the provision that the respondent recover its costs of the
appeal.

[10]

On July 22, 2008, counsel wrote again to Mr.
Vesuna at his address for delivery and at his address in Calgary, enclosing an
appointment to assess the bill of costs, a copy of the requisition adjourning
that assessment to August 7, 2008, and a copy of the proposed bill of costs. These
letters were sent by both regular and registered mail. The registered letter
enclosing these documents was signed for on July 25, 2008, by a person Mr.
Vesuna advises is his friend, who apparently was at one of those residences
when the letter was delivered.

[11]

After reducing some claimed disbursements in
relatively small amounts, the Registrar assessed the respondents costs on
August 7, 2008 at $5,712 for costs and taxes and $4,533.39 for disbursements,
for a total of $10,245.39. The respondent subsequently registered a certificate
of costs in that amount against title to some property owned by the appellant in
Powell River, B.C. Counsel mailed a copy of the certificate by regular mail to
Mr. Vesuna, again at the address for service and the Alberta residential
address.

[12]

Mr. Vesuna says that, while he was out of Canada
from about June 8, 2008 until the end of November 2008, none of his mail was
forwarded to him during his travels and that he did not see any of the
materials sent to him by the respondent and did not learn of the certificate of
costs until December 2008. He says on February 9, 2009 he filed an application
for leave to appeal this Courts judgment and the award of costs to the Supreme
Court of Canada. That application for leave was refused in July 2009.

[13]

As noted, the Rules provide for a review of an
assessment within seven days of the assessment. Thus, the time limit for Mr.
Vesunas application was August 14, 2008. He filed his motion December 31,
2009, more than a year and four months out of time. Although it is a fair
inference from what Mr. Vesuna has told me that he formed an intention to
appeal the assessment when he learned of it, it does not appear that he
notified the respondent of this intention until the past week or so. The
circumstances do not warrant an extension of time.  Nevertheless, I will deal
with Mr. Vesunas submissions.

[14]

Mr. Vesuna contends the order awarding the
respondent costs of the appeal should not have been settled because he did not
signify his approval of its form. However, since the order was settled by the
Registrar, his approval was not necessary. Even had Mr. Vesuna appeared on the
application to settle the order, it is highly unlikely that an order granting
costs of the appeal to the successful respondent would not have been inserted
in the order. Costs of the appeal follow the event and as stated in s. 23 of
the
Act
, the successful party on an appeal is entitled to costs of the
appeal including all applications brought in the appeal.

[15]

It is regrettable that Mr. Vesuna did not receive
actual notice of the appointments to settle the order and to assess costs.
However, the respondent proceeded in compliance with the Rules. The requirement
that a party provide an address for service is designed to avoid problems with
proving delivery of documents in an appeal. Delivery to an address for service
is sufficient. That is the very purpose of the rule. If Mr. Vesuna was going to
be away from his address for service for a lengthy period of time, as he says
he was, then it was his responsibility to advise the Registry of a new address
for service or to leave instructions at his address for service to notify him
of the receipt of any documents relating to the appeal. He must have been aware
that the appeal proceedings were not concluded by pronouncement of judgment
orally at the end of the hearing, and that the questions of costs and entry of
the formal order remained to be worked out. As I say, it is regrettable he
received no actual notice, but that is not the fault of the respondent, who has
complied with the Rules.

[16]

The respondents bill of costs as assessed contains
an allowance of five units under Item 3 for preparation for the respondents
unsuccessful application for security of costs. It is not surprising that Mr.
Vesuna is upset that not only did he not receive those costs but that they have
been assessed against him as part of the costs of the appeal. However, s. 23 of
the
Act
is clear. Unless the Court orders otherwise, the successful
party on an appeal is entitled to costs of the appeal including the costs of
all applications made in the appeal. There was no order otherwise in this case.
Had Mr. Vesuna asked the Court when it dismissed his appeal to order that the
costs of the respondents unsuccessful chambers application be excepted from
the costs of the appeal, the Court might have so ordered. However, he did not
do so and, since the Court did not order otherwise, the Registrar had no
power to disallow the costs to which Mr. Vesuna now objects. Rather, the
Registrar was required to assess the costs in accordance with the order. Nor is
it within my power as a single justice sitting in review of the assessment to
disallow those costs.

[17]

Mr. Vesuna has challenged specific items in the
bill of costs on the basis that they were excessive in all of the
circumstances. It is the Registrars responsibility to determine whether a bill
of costs is a reasonable bill of costs. In this case, the Registrar made that
determination. I am not in a position today to say that the Registrar made any
error in principle or that the Registrar was clearly wrong. I do not know what
evidence was before the Registrar and Mr. Vesuna has not presented any evidence
in respect of these items, apart from his oral assertions, that would support
his objections. I am therefore unable to accede to Mr. Vesunas submission that
the Registrars decision should be varied and I reject that aspect of his
application, as well.

[18]

In the result, Mr. Vesunas applications are
dismissed.

The Honourable Mr. Justice K. Smith


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Smith,

2010 BCCA 35

Date: 20100125

Docket: CA034307

Between:

Regina

Respondent

And

Ricky John Smith

Appellant

Before:

The Honourable Madam Justice Rowles

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice Neilson

On appeal from:
Supreme Court of British Columbia, March 22, 2006
(Prince George Docket No. 19616-3)

Counsel for the Appellant:

R. Fowler

Counsel for the Respondent:

O. Kuzma

Place and Date of Hearing:

Vancouver, British
  Columbia

September
  15, 2009

Place and Date of Judgment:

Vancouver, British
  Columbia

January 25, 2010

Written Reasons by
:

The Honourable Madam Justice Neilson

Concurred in by:

The Honourable Madam Justice Rowles

The Honourable Madam Justice Kirkpatrick

Reasons for Judgment of the
Honourable Madam Justice Neilson:

INTRODUCTION

[1]

The appellant appeals his conviction for second degree murder on March
22, 2006, following a trial with his co-accused, Cameron Miller, before a judge
and jury. The jury found Mr. Miller, who was also charged with second degree
murder, guilty of manslaughter.

[2]

The charges arose from an altercation between the appellant, Mr. Miller,
and the victim, Brent Melanson, on March 30, 2004, in which the appellant admitted
using a machete. In the course of the altercation Mr. Melanson suffered six
wounds one of which, an injury to the right side of his neck, was fatal.

[3]

At trial, a central issue was whether the appellant inflicted the fatal
wound with his machete, or whether it was caused by a knife wielded by Mr.
Miller. There was no direct evidence that Mr. Miller had a knife. The evidence
related to that issue came primarily from two pathologists who testified to the
characteristics of Mr. Melansons wounds and their likely cause. Dr.
McNaughton, who performed the autopsy on Mr. Melanson, testified for the Crown and
said that all six injuries could have been caused by a machete. Dr. Rice, who
testified for the appellant, disagreed and opined that several of the injuries,
notably the fatal incision to the neck, were not caused by the appellants
machete.

[4]

The sole issue on the appeal is the fairness of the trial judges
instructions to the jury about the expert evidence of Dr. Rice. The appellant
maintains that the judge unfairly and inaccurately summarized her evidence, and
inappropriately commented on and emphasized the fact that she had not directly
observed Mr. Melansons wounds. He says this demeaned her evidence on a
critical issue and resulted in an unfair trial.

BACKGROUND

[5]

There is no dispute about the facts. In the early morning of October 30,
2004, the appellant and Mr. Miller were at a party at an apartment in Prince George.
The appellant had a machete with him. At one point he sprayed beer on Mr. Melansons
younger sister. She was upset and called her brother to come and pick her up.

[6]

Mr. Melanson arrived at the party in his pickup truck with his fiancée,
Nicole Middlemiss. He became involved in an altercation with some of the
party-goers, including the appellant and Mr. Miller, during which the appellant
struck Mr. Melansons truck with his machete. Mr. Melanson and Ms.
Middlemiss quickly drove away to a nearby pay phone to call the police.

[7]

The appellant and Mr. Miller left the party shortly after this, as
passengers in a vehicle with two girls. When they passed Mr. Melansons truck
at the pay phone, they told the girls to stop and let them out, and ran toward
the truck. The appellant was carrying the machete. No one saw Mr. Miller
carrying a weapon.

[8]

Ms. Middlemiss saw them and warned Mr. Melanson. He ran to his truck,
got in the drivers side, and closed the door. Ms. Middlemiss did not have time
to get to the truck, so ran into the street to flag down help.

[9]

Coincidentally, two police officers were driving by. They stopped just
in time to see the appellant and Mr. Miller fleeing the scene on foot. Less
than a minute transpired between the end of Mr. Melansons 911 call and the
officers first radio communication after they stopped. The police found Mr.
Melanson bleeding heavily from the wound to his neck. He was transported to the
Prince George Regional Hospital, and was in cardiac arrest due to blood loss
when he arrived. Dr. Rowe, an emergency physician, commenced life support
measures and called for Dr. Wankling, a surgeon. Dr. Wankling surgically
extended the neck wound in an attempt to locate the source of bleeding and stop
it, but Mr. Melanson died of hemorrhagic shock before that could be done.

[10]

None of the Crown witnesses saw whether the appellant, Mr. Miller, or
both caused Mr. Melansons injuries. Ms. Middlemiss and another witness could
only say that they saw the appellant on the drivers side of the truck with the
machete at some point.

[11]

The appellant testified that while he was mad at Mr. Melanson and intended
to hurt him, he did not intend to kill him. He denied hitting him in the neck
with the machete. He said he tried unsuccessfully to open the drivers door to
get at Mr. Melanson, and then struck the drivers window with the machete,
breaking it on the second swing. Mr. Melanson then went out the passenger side
of the truck, so the appellant ran to that side where he saw Mr. Melanson
struggling with Mr. Miller, who was holding him in a headlock. The appellant said
he struck Mr. Melanson once in the leg with the machete. He was shocked by what
he had done, threw the machete to the ground, and ran away. He looked back as
he ran and saw Mr. Melanson and Mr. Miller still fighting, and the police
coming.

[12]

Mr. Miller did not testify, but gave a statement to the police which was
entered at trial. He said he did not intend to hurt or kill Mr. Melanson. He
was on the passenger side of the truck when Mr. Melanson came out and almost
knocked him over. They grappled until the appellant struck Mr. Melanson with
the machete, distracting him. Mr. Miller said he then ran away, while the
appellant continued the attack on Mr. Melanson.

[13]

Cpl. Steinhauser, an expert in forensic identification, testified that
there was a trail of blood inside the trucks cab from the drivers side to the
passengers side.

THE
EXPERT EVIDENCE

[14]

Dr. McNaughton testified to his observations of Mr. Melansons wounds at
the autopsy on November 2, 2004. Dr. Rices opinion was based on the autopsy
report, photos of the injuries taken at the autopsy, forensic laboratory
reports, and a short summary of the treatment Mr. Melanson received from Drs.
Rowe and Wankling. She agreed that it is always better to see the material personally.

[15]

In his autopsy report, Dr. McNaughton numbered and described the six
injuries as follows:

Wound 1 a 4.5 cm incised wound to the
back of the head close to the hairline, caused by a sharp object;

Wound 2  a 5 cm vertical abrasion at the
base of the neck in the shoulder region, caused by blunt force;

Wound 3  a Y-shaped incision on the right
side of the neck, comprised of the original wound and Dr. Wanklings surgical intervention;

Wound 4  a 2.5 cm chop wound to the lower
left shin, extending into the tibia;

Wound 5  two superficial incisions in the
left anterior scalp caused by a sharp instrument;

Wound 6  two abrasions on the
right chest caused by blunt force.

[16]

The characteristics of Wounds 1, 3, and 4 provided the primary basis for
the divergent opinions of the pathologists. As set out previously, Dr.
McNaughton opined that all six injuries could have been inflicted by a machete,
and said he saw nothing to suggest that another weapon may have been involved. Dr.
Rice was of the view that only Wound 4 was clearly from a machete. She
testified that Wounds 1 and 3 could not have been caused by a machete because
they were more sharply incised, indicating that they had been inflicted by a weapon
with a sharper blade, likely a knife. She thus concluded that Mr. Melansons
injuries had been caused by more than one weapon.

[17]

With respect to Wound 4 to the leg, both pathologists agreed this was a
chop wound, caused by a heavier instrument like a machete. Dr. McNaughton
described it as an incised wound with sharp edges and no tearing. Dr. Rice
disagreed, testifying that the margins of the wound showed crushing of the skin
and tissues typical of force from a heavier weapon.

[18]

With respect to Wound 1, near the hairline, both pathologists agreed
this was an incised wound with sharply divided edges, and that the weapon used
had cut the hair in the area as well. Dr. McNaughton testified it could have
been caused by a chopping action that both drew across and penetrated down into
the area. Dr. Rice disagreed, saying that it had none of the characteristics of
a chopping wound. She pointed out that there was no crushing of the wound edges
as in the case of Wound 4, and said Wound 1 had been caused in a very different
manner from a chopping wound. In her view, the appellants machete was
inconsistent with having produced Wound 1 as its cutting edge was rough and
dull and it would not cut the hair and skin as cleanly as shown in the photos
of the wound.

[19]

With respect to Wound 3, the testimony of Dr. Rowe and Dr. Wankling was
important in describing how Dr. Wanklings surgical exploration of the injury changed
its original appearance. He first made a straight vertical incision to the
right of the wound. He then made a bridging incision, which connected that
vertical incision to the original wound, creating a Y-shaped incision in which
the original wound was at the outer end of the left hand branch of the Y. At the
autopsy, Dr. McNaughton measured the vertical incision made by Dr. Wankling as
14.5 cms long, and the branch comprised of the original wound and the bridging
incision as 8.5 cms long.

[20]

Dr. Rowe and Dr. Wankling agreed that they had not made any reliable
assessment of the size of the original neck wound at the time of their
treatment as there was too much blood in the area and they were focussed on
saving Mr. Melansons life. However, on being shown photos of the wound from
the autopsy, each was able to give some indication of the location and size of
the original wound. Dr. Rowe said he could not do this with one hundred per
cent confidence, but he believed the original wound could be seen at the end
of the left arm of the Y covered by four surgical staples with the fifth staple
marking the start of the bridging incision. Referring to a scale in one of the
photos of the wound, he estimated the original injury was 3.5 to 4 cm long. Dr.
Wankling said he thought the original wound was at least 3 cms long and could
have been as long as 6 cms, but acknowledged his estimate could be out a
significant amount. When shown photos of the wound, he pointed out that the
edges of the original wound were more ragged than those of the surgical wound,
and he was able to identify the former by reference to the same four surgical
staples mentioned by Dr. Rowe.

[21]

Dr. McNaughton testified that he could not identify how much of the left
branch of the Y incision was attributable to the original wound and how much
was a surgical incision. He believed Wound 3 had been caused by a machete for
two reasons. First, the sternomastoid muscle was completely severed, and this
would require a very wide blade. Second, the wound was 10 cms deep and extended
through the pharynx. The size of the injuries where the blade penetrated the
two sides of the pharynx indicated a significant widening of the blade over a
short distance, which was compatible with the shape of the appellants machete.
Dr. McNaughton agreed that if Wound 3 was only 4.5 cms long, the machete
could not have caused it. He said he had looked at the machete in a plastic bag
at the inquest, but did not remove it to examine it. He agreed that it did not
have a perfectly straight edge and was duller than what would be expected for
normal use, but said it still had a significant edge to it.

[22]

Dr. Rice testified that she was able to distinguish Wound 3 from the
bridging incision in the photos. Like Drs. Rowe and Wankling, she placed the
original wound at the last four staples of the left branch of the Y-incision.
She said that Dr. Wanklings bridging incision was very straight and had
rolled edges typical of a surgical incision. It met the original wound at a bit
of an angle where there was a gap. She roughly estimated the length of the
original wound at 3.5 to 4 cms, and said that the appellants machete could not
have caused it. It was too large to have caused an incision of that size that
was 10 cms deep. The surface wound would have had to be considerably larger if
caused by the machete. As well, its rough cutting edge would have torn the
tissues rather than sharply dividing them. In her view, Wound 3 was most likely
caused by a knife. She said that the sternomastoid muscle could have been
severed by a knife with a very sharp cutting edge and a blade that was 10cms
long and 4 cms wide at the 10 cm point. While she agreed that Dr. McNaughtons
measurements of the injuries to the pharynx matched the dimensions of the
machete, she said that the machete could not be matched to other aspects of the
wound. As well, she noted that the weapon causing this injury would have had
large quantities of blood on it, but little blood was detected on the
appellants machete.

[23]

The characteristics of Wounds 2, 5, and 6 did not contribute significantly
to the debate between the pathologists. Both agreed that Wounds 2 and 6, which
were caused by blunt force, could have been produced by any number of
instruments, including a machete. Dr. McNaugton described Wound 5 as an incised
wound but said it could be caused by a machete. Dr. Rice said the photographs of
Wound 5 were not clear enough for her to say one way or the other, and so she
could not rule out a machete as the cause of Wound 5. However, she thought this
was highly unlikely based on Dr. McNaughtons description of it and the fact it
appeared superficial.

THE RELEVANT
PROCEEDINGS AT TRIAL

[24]

At the opening of the trial on February 20, 2006, the trial judge gave
the jury oral instructions about their role as judges of the facts. This
included the standard direction that it would be their memory and opinion of
the evidence that would govern their determination, and that they were not
bound by any view or opinion that he expressed.

[25]

Until Dr. Rice testified at the end of the trial, the theory of the Crown
was that the appellant was the principal offender and inflicted all of Mr.
Melansons injuries with his machete, while Mr. Miller aided or abetted him. After
Dr. Rice testified that she believed Mr. Melansons wounds were caused by two
weapons, the Crown expanded its theory and alleged that the appellant and Mr.
Miller may also have been co-principles in committing second degree murder.

[26]

The trial judge charged the jury on March 21, 2006. At the outset, he
gave them binders that contained a copy of his remarks at the beginning of the
trial, two mid-trial instructions, and his written charge. He did not, however,
reiterate his opening instructions during the charge, except for the instruction
on reasonable doubt, and a reminder to the jury to review his earlier direction
on circumstantial evidence.

[27]

The trial judge began his charge with a lengthy review of the evidence
of each witness. Before embarking on this, he told the jury that his summary
may not be complete, and reminded them that they were the judges of the facts.
He told them they should not rely on it as complete or more accurate than their
own recollection of the evidence.

[28]

In summarizing the medical evidence about the size of Wound 3, the trial
judge said Dr. Rowe had not been able to assess this at the time because of the
bleeding, and had agreed with counsels estimate of the original wound as 3.5
to 4 cms. As to Dr. Wankling, the trial judge said he estimated it as 3 or up
to 6 cms in length, he had not measured it, and he agreed that an object with a
dull edge could stretch the skin to some extent due to its elasticity.

[29]

In reviewing Dr. McNaughtons evidence, the trial judge noted it was his
opinion that all of the injuries were consistent with being inflicted by the
machete. He summarized Dr. McNaughtons evidence about the significant
characteristics of Wound 3 in these terms:

The first was the complete
severing of the external mastoid muscle, which suggested a very wide blade was
used, and that where the wound extended right through the pharynx the length of
the incision on the left side of the pharynx was approximately two centimetres,
and on the right side it was 3.5 centimetres. He considered this significant
widening in a relatively short distance suggested an instrument shaped like the
machete, which went from a point to wide quickly. He said that although the
width of the pharynx was 2.5 to three centimetres in the centre, the cut was
towards the back where the distance between the cuts was less than that and
consistent with the 1.3 centimetre distance between the point along the machete
blade where it is two centimetres wide and the point where it is 3.5
centimetres wide.

He also said that Dr. McNaughton
testified he could not distinguish between the surgical incision and the
original wound to determine the length of the latter, and that while an
incision in the skin is usually a good indication of the width of a blade, it
could be smaller due to the elasticity of the skin.

[30]

This is the entirety of the trial judges summary of Dr. Rices evidence.
I have underlined those aspects that are the basis of the appellants
complaints:

The final witness of the trial was Dr. Jennifer Rice, who was
qualified to give opinion evidence as a forensic pathologist. She rendered
opinions in disagreement with those of Dr. McNaughton on several points.
She
testified that in her view the injury shown in photograph T72 to the back of
the head
is not consistent with it having been inflicted by the machete. In
her view the machete edge is very rough and quite dull and probably capable of
cutting tissue but not of cutting hair.
I note that she was not asked if
hair could be cut by chopping, in light of Dr. McNaughtons opinion that that
wound was partly incised, and partly chopped.
Looking at photograph T50,
the neck wound, she demonstrated where she believed the surgical incision ended
and the original wound began.
From the photograph she estimated the length
of the original wound at 3.5 to four centimetres, although she acknowledged
that the photograph showed a flat ruler and rounded neck
.

Dr. Rice said that it was impossible to cause a smaller wound
than the instrument cutting it.
Asked about elasticity of skin, she seemed
to agree skin had elasticity, but suggested a cutting instrument can only cut
or tear tissue.
She testified that she did not think a person could inflict
the neck wound without getting blood on them. Dr. Rice disagreed with Dr.
McNaughtons view that the machete was consistent with the neck wound. She
expressed the opinion that the neck wound was caused by a single edged knife,
approximately four centimetres wide and with a very sharp cutting edge.

Cross-examined by Mr. Kaun, Dr. Rice agreed that the
doctor actually attending at the autopsy would be in a better position to make
observations.
She said that from the photographs she disagrees that the
wound at the back of the head could also have been partly from chopping. She
agreed that the neck wound would not necessarily bleed on the perpetrator if he
was far enough away or behind the victim at the time of the stabbing.

Looking at the photographs of the wound number 5, namely the
front of the scalp wound, she said the photograph was not good enough to enable
her to rule the machete in or out, but she thought it was highly unlikely to
have been used to cause that wound.

In cross-examination by Mr.
Swanson she said that the machete was not sharp enough to be capable of
inflicting sharply incised wounds and, in her opinion, Brent Melansons wounds
were caused by two or more different instruments.

[31]

The trial judge next embarked on a discussion of the elements of the
offences of second degree murder and manslaughter, and the law with respect to parties.
He described the question of who stabbed Mr. Melanson in the neck as one of
the key factual issues in this trial, and noted that since no one saw who
inflicted that wound, the Crowns case depended on circumstantial evidence. In
reviewing the evidence on this issue he said:

Other evidence that you will consider on the question of the
relative involvement of each of the accused is the physical and medical
evidence of the nature of the neck wound itself in relation to the dimensions
of the machete.

The evidence on this question includes the rough estimates of
Drs. Rowe and Wankling as to the length of the original wound and the latters
evidence about the elasticity of human skin as well as the evidence of the
pathologists Dr. James McNaughton and Dr. Jennifer Rice. Dr. McNaughtons
opinion, which I have already summarized, is that the characteristics of the
neck wound are consistent with an instrument shaped like the machete in
evidence as Exhibit 6, and inconsistent with a narrow knife being moved back
and forth as suggested by Mr. Jones, which he said would have created a longer
wound in the skin.
You will also consider Dr. Rices evidence that two or
more different weapons were used to inflict the various wounds and that the
neck wound as it appears in the photographs is inconsistent with being caused
by the machete, because the wound is too small and does not show tearing.

Bear
in mind that Dr. Rice did not view the body herself and is using the
photographs and the ruler included in photograph T50 to make conclusions about
size. Her conclusions as to the point where the incision started are based on
the photograph, and Dr. McNaughton testified it was not possible to determine
exactly where the surgical incision ended and the wound began.

It is of course open to you to reject or doubt expert opinion
evidence as you may do with any evidence, but you should not do so lightly in
view of the expertise and stated reasons for the expert opinions. I will say
more in general about expert evidence later.

There is no other evidence of any
weapon other than the machete being in the possession of either of the accused
at the material time, and there is no evidence that the machete was in Mr.
Millers hands, but it is Dr. Rices testimony that two different weapons were
used and the possibility that you might accept that as reasonably possible that
requires the Crown to advance the alternative theories that it does in this
case. If you conclude that the machete was not the weapon that inflicted the
fatal wound, or have a reasonable doubt about that, there is not much evidence
to support inferences as to which of the two accused had possession of another
weapon. You may well infer that it could only have been one or the other of
them from all the circumstances and the extremely short window of time during
which Mr. Melanson was wounded.

[32]

Later on the issue of co-perpetrators he said:

If you are satisfied beyond a
reasonable doubt that the two accused acted in concert as a joint endeavour in
a chain of events from start to finish to hurt Mr. Melanson, with a shared
intention, knowledge of dangerousness and recklessness, then it is not necessary
to decide which of them inflicted the fatal wound. They are both
co-perpetrators and they are both responsible for the death of Mr. Melanson.
This is probably not something that you would consider unless you accepted Dr.
Rices evidence of there being two knives used by both accused to inflict the
injuries.

[33]

In dealing with aiding and abetting, he reminded the jury that either
accused might have personally committed the murder, and the other accused could
have aided or abetted him depending on your view of the evidence after you
have resolved the conflicting evidence of the two pathologists.

[34]

The trial judge instructed the jury about the nature of opinion evidence
from experts, essentially using the standard instructions from
CRIMJI:
Canadian Criminal Jury Instructions
, 4th ed. (Vancouver: Continuing Legal
Education Society of British Columbia, 2005). He told them they should assess
expert evidence in the same way as that of other witnesses, and that they were
not obliged to accept any experts opinion. He suggested they use a three step
process of first, examining the experts qualifications and impartiality,
second, considering whether their assumptions were supported by the evidence,
and third, examining the opinion and the process used to reach it. On the
second point, he said this:

Second, you should examine the facts or assumptions or
observations that each expert relied upon to form their opinions. The more an
expert relies on facts not proved in evidence, the less weight you should give
to his or her testimony. If, for example, there is no evidence of any facts or
assumptions upon which the expert relied to form his or her opinion, then you
would attach no weight to the opinion.

One point of difference that
you will have noted between the experts who testified in this trial is that Dr.
McNaughton conducted the autopsy and directed the taking of the pictures that
were taken there, whereas Dr. Rices opinions on matters such as length and
margins of wounds and sharpness of wound edges were formed from viewing the
photographs. It is for you to decide whether that is or is not significant
.

ANALYSIS

[35]

The appellant says that Dr. Rices testimony was the foundation of his
defence. It went to the critical issues of whether two weapons were used to
inflict Mr. Melansons wounds, and whether the appellant struck the fatal
blow with his machete. It also assisted in bolstering his credibility in the
face of conflicting accounts of the events. If accepted, it minimized his role
to the extent that there was a reasonable doubt as to his culpability for second
degree murder, and he would have been acquitted or convicted of manslaughter.
The appellant argues that the trial judges treatment of Dr. Rices evidence in
his charge unfairly demeaned it both explicitly and implicitly in a manner that
invited the jury to discount it. He raises three particular complaints:

1.       the
trial judges summary of Dr. Rices evidence on the pivotal issue of whether
the machete could have caused Wound 3 was inaccurate and incomplete;

2.       the
trial judge unfairly emphasized Dr. McNaughtons opportunity to observe Mr.
Melansons wounds at the autopsy;

3.       the
trial judge improperly expressed his own view that Dr. Rices evidence was
limited because she had not seen the wounds herself.

[36]

The appellant says this resulted in an unfair trial, and his conviction
must be set aside and a new trial ordered.

[37]

When considering the fairness of a trial judges instructions to a jury,
an appellate court must adopt a functional approach, and take care not to
divorce the charge from the trial as a whole. While an accused is entitled to a
properly instructed jury, a trial judge is not required to meet a standard of
perfection:
R. v. Jacquard
, [1997] 1 S.C.R. 314, 113 C.C.C. (3d) 1 at
paras. 32-33.

[38]

In
R. v. Cooper
, [1993] 1 S.C.R. 146 at 163, 78 C.C.C. (3d) 289, Cory
J., writing for the majority, set out these guidelines for assessing the adequacy
of a charge, which have been affirmed many times subsequently:

... Directions to the jury need
not, as a general rule, be endlessly dissected and subjected to minute scrutiny
and criticism. Rather the charge must be read as a whole. The directions to the
jury must, of course, set out the position of the Crown and defence, the legal
issues involved and the evidence that may be applied in resolving the legal
issues and ultimately in determining the guilt or innocence of the accused. At
the end of the day, the question must be whether an appellate court is
satisfied that the jurors would adequately understand the issues involved, the
law relating to the charge the accused is facing, and the evidence they should
consider in resolving the issues.

[39]

It is therefore necessary to provide some context for the appellants
complaints. This was a four week trial with two accused, many witnesses, and
multiple theories of culpability. The charge was necessarily lengthy and
complex. The Crown correctly points out that the appellants complaints relate to
a relatively small segment of the evidence in that overall picture. I am nevertheless
satisfied that Dr. Rices evidence bore on issues that were pivotal to the
appellants defence, and the jurys view of the respective culpability of the
two accused. The issues of whether Mr. Melanson had been attacked with one or
two weapons, and who struck the fatal blow, were clearly before the jury. The
trial judge was obliged to ensure that his instructions on those issues, and on
the divergent views of the pathologists that provided the basis for them, were
fair to both accused.

[40]

Dealing first with the trial judges summary of Dr. Rices evidence, in
R.
v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523 at paras. 54-57, Justice
Bastarache, writing for the majority, affirmed this classic statement from
R.
v. Azoulay
, [1952] 2 S.C.R. 495 at 497-498, 104 C.C.C. 97, about a trial
judges duty to review the evidence in a charge to the jury:

... The rule which has been laid
down, and consistently followed is that in a jury trial the presiding judge
must, except in rare cases where it would be needless to do so, review the
substantial parts of the evidence, and give the jury the theory of the defence,
so that they may appreciate the value and effect of that evidence, and how the
law is to be applied to the facts as they find them. ... The pivotal questions upon
which the defence stands must be clearly presented to the jury's mind.

[41]

Justice Bastarache went on to say that trial judges are not required to
undertake an exhaustive review of the evidence in their charges. Non-direction
on a matter of evidence will be a reversible error only when the item of
evidence in question is the foundation of the defence. The extent to which the
evidence must be reviewed comes down to a test of fairness to the accused in
each case. In some cases, the addresses by counsel may fill gaps in the charge.

[42]

I have set out the trial judges summary of Dr. Rices testimony at
para. 30 of these reasons. The appellant argues it was inaccurate and unfair in
several respects. First, the trial judge mistakenly referred to photo 72, which
depicted Wound 4 to the leg, as a head wound inconsistent with infliction by a
machete, thereby conflating Wounds 1 and 4 and confusing the jury on an
integral part of Dr. Rices evidence.  Second, he unfairly discounted Dr.
Rices opinion by remarking that she was not asked whether hair could be cut by
chopping. This was a hypothetical question that bore no relevance to her
testimony since her opinion was Wound 1 showed no evidence of chopping. Third,
his summary of the most critical aspect of her opinion  that Wound 3 was not
caused by the machete  was so incomplete that it rendered her opinion
virtually worthless. The size of the original wound was critical to the
opposing views of the pathologists as to what weapon caused it. Dr. McNaughton
was unable to say where the original neck wound intersected with the surgical
incision, whereas Dr. Rice could discern this in the photographs, as could Dr.
Rowe and Dr. Wankling. Instead of relating this evidence, the trial judge inaccurately
implied that Dr. Rices estimate of the wounds length was qualified by using a
flat ruler to measure a round neck, and by her opinion on the elasticity of
skin. Further, the summary did not mention Dr. Rices response to the points made
by Dr. McNaughton in support of his view that the machete caused Wound 3.

[43]

In my view, the trial judges error in confusing Wounds 1 and 4 was inconsequential.
The jury had the photos and would not be confused by this.

[44]

I agree that the reference to a question not asked was an unnecessary
editorial comment by the trial judge, and tended to denigrate Dr. Rices
evidence by wrongly suggesting that she failed to address some significant
point. However, I am not persuaded that this comment, by itself, created
unfairness.

[45]

The appellants more significant complaint relates to omissions and
inaccuracies in the trial judges summary of Dr. Rices evidence about the
likely cause of Wound 3. Her view that the wound was smaller than the machete
was key to her opinion. Yet the trial judge did not fully deal with her
evidence on this point. Instead, he suggested that her measurement of the wound
at 3.5 to 4 cms was inaccurate because she relied on a flat ruler to measure
the round neck. That comment ignored Dr. Rices evidence that she had adjusted
for that factor in estimating the wound size. As well, the trial judge weakened
her evidence about whether the elasticity of the skin affects the size of a
wound by misquoting it. Dr. Rices evidence on this point was clear that
elasticity of the skin did not affect wound size, which is governed by the
width of the instrument that caused it. Further, the trial judges review of
the  medical evidence failed to mention that Dr. Rice, Dr. Rowe, and Dr.
Wankling were each able to identify the original wound by its characteristics
in the photographs and were consistent in describing its location and size.
Finally, the trial judge did not mention Dr. Rices response to Dr. McNaughtons
opinion that the severance of the sternomastoid muscle demonstrated Wound 3 had
been caused by the machete.

[46]

I recognize that a trial judge is not obliged to mention all of the
evidence in his charge, particularly after a trial of this length. In deciding
whether the shortcomings in his account of Dr. Rices evidence resulted in an
unfair trial, it is necessary to examine them in the context of the trial as a
whole, the addresses of counsel, and the balance of the charge.

[47]

Dr. Rice was the last witness to testify, and gave her evidence just
four days before the judge charged the jury. Her evidence was therefore fresh
in the jurys mind. The appellants counsel included a comprehensive review of
her evidence and a critique of Dr. McNaughtons differing views in his address
to the jury. He also drew the jurys attention to the consistencies between the
evidence of Drs. Rice, Rowe and Wankling as to the location and size of Wound
3. As well, the trial judge told the jury at the outset of his charge that his
summary of the evidence may not be complete or accurate, and it was their view
of it that governed.

[48]

Given this context, if the deficiencies in the judges summary of Dr.
Rices evidence were the only basis for complaint, I would not be persuaded
that the trial was unfair. However, the appellant raises two further complaints.
He says that the trial judge also demeaned Dr. Rices evidence by unfairly
emphasizing Dr. McNaughtons opportunity to personally observe Mr.
Melansons wounds at the autopsy, and by improperly expressing his own view on
that point.

[49]

It is apparent that the trial judge formed the view that there was a
significant distinction between the medical evidence based solely on the
autopsy photographs and Dr. McNaughtons evidence based on his personal
observations at the autopsy. During Dr. Rices evidence, an issue arose as to
whether Dr. Wankling had been able to identify the original incision in the
photographs, which led to this exchange:

THE COURT:  I dont know. I
mean in fairness, I might be able to clarify some of the  the problem that Dr.
Rice is having with the question. Dr. Wankling was  was  youre referring to
Dr. Wanklings evidence relating to the photograph?

MR. KAUN:     Thats right.
No. I had asked him.  I had asked him a series of questions that had to do
with he was busy saving a life

THE COURT:  Okay. So there is
a distinction. I mean, Dr. Wankling was  was referred to photographs, asked to
 if he could tell us from the photographs where one started and one ended and
he couldnt.

MR. KAUN:     Right.

THE COURT:  But Dr. McNaughton wasnt doing that about
photographs. He  he was  he was the  he was at the autopsy, a very  a very
significant distinction there.

[50]

As an aside, the trial judge was in error in his recollection that Dr.
Wankling could not identify the original wound in the photographs. The main
point, however, is that the trial judge was clearly of the view that Dr.
McNaughtons evidence was enhanced by the fact it was based on personal
observations.

[51]

During his charge, the trial judge reiterated that view three times in dealing
with Dr. Rices evidence. Those comments are set out at paras. 30, 31, and 34
of these reasons.

[52]

I see nothing objectionable in his first comment on this topic, made in
summarizing Dr. Rices evidence. He simply repeated her concession on
cross-examination that the doctor doing the autopsy is in a better position to
observe the wounds. I am persuaded, however, that his subsequent emphasis of
this point unfairly denigrated Dr. Rices evidence for the following reasons.

[53]

First, while Dr. Rice conceded the obvious ‒ that personal
observation was preferable ‒ there was nothing to suggest that in this
case her inability to personally see the wounds had any bearing on the validity
of her opinion. That was not explored with her, and the evidence suggested the
contrary. As noted earlier, she, Dr. Rowe and Dr. Wankling were all able to
identify the size and location of Wound 3 in the autopsy photos, and their
evidence about this was consistent. Oddly, Dr. McNaughton was the only
medical witness who could not do so, despite his advantage of having personally
seen it. Given this evidence, it would have been a reasonable inference that
the opportunity to personally examine Wound 3 was irrelevant to identifying its
original size. I am persuaded that in these circumstances it was unfair for the
trial judge to emphasize Dr. Rices failure to see the wounds in contrasting
her opinion with that of Dr. McNaughton.

[54]

Moreover, an uneven opportunity to personally observe relevant material
is only one factor to consider in deciding how to deal with conflicting expert
testimony.
R. v. Parnell
(1983), 9 C.C.C. (3d) 353 at 362-64, 1 O.A.C.
161, leave to appeal refd [1984] S.C.C.A. No. 331, is a case with some
similarities to this one. There, the Court allowed an appeal in part because
the trial judge had undermined the theory of the defence by the instructions he
gave the jury about the conflicting evidence of two pathologists. The judge
pointed out that the pathologist called by the defence was at some disadvantage
because he had not been at the autopsy, and then said this:

Now there is nothing miraculous
about the opinion of an expert and you may throw out that evidence entirely if
you see fit. You are not bound to accept the evidence of an expert, any one or
any of them. Medicine is not an exact science and experts quite often disagree.
I would think, however, that you would give serious consideration to the
evidence of experts. They operate in the field in which you and I are not too
familiar and when there is a conflict, perhaps it would not be out of place for
you to ask yourselves, well, which expert really had the best opportunity to
examine the evidence about which he spoke and from which he drew his
conclusions. Which based his opinion on his own observations and which had to
depend on the observations of others. Now I leave the resolution of the
apparent conflict of the medical opinions to you and I just ask you to use your
own common sense and good judgment in resolving that particular problem.

The Court held that while the Crowns pathologist, who did
the autopsy, had a better chance to make direct observations, the trial judge
should have told the jury that this was only one factor to consider in weighing
the experts opinions. Instead, his emphasis on that point unnecessarily and
inappropriately denigrated the defence theory.

[55]

I find those comments apposite here. In my view, it was unnecessary and
inappropriate to emphasize the pathologists respective opportunities to
observe in this case.

[56]

Finally, the appellant argues that the trial judges repeated comments
on this point were compounded by suggesting to the jury that it was his personal
view that Dr. Rices evidence should be discounted.

[57]

In
R. v. Dove
, 2004 BCCA 338, 187 C.C.C. (3d) 506 at paras. 35-47
this Court observed that while trial judges may voice personal opinions on the
evidence or a witnesss credibility during a charge to the jury, they should do
so with caution. The judge occupies an authoritative position in the jurys
eyes, and such comments may interfere with the fairness of the trial if they
are made without advising the jury that they are not bound by the judges
opinion, or if they are expressed so strongly that they usurp the function of
the jury. A general instruction about the division of responsibility between a
judge and jury may not overcome the prejudice arising from a judges strongly
stated view of the evidence.

[58]

In
Daley
at paras. 59-62, Bastarache J. dealt with these
principles in the context of expert evidence, and affirmed that it is the role
of the jury to decide what inferences should be drawn from such evidence. The
trial judge should not encroach on that role by offering a view as to how the
jury should interpret the expert testimony. If the judge does so, he or she
must take great care to impress upon the jury that they need not accept that
view.

[59]

Here, the trial judges comments about the pathologists comparative
opportunities of observation were not overtly directive, in the sense that he did
not tell the jury they must ignore Dr. Rices evidence. His repeated comments
nevertheless strongly suggested that they should draw the inference that
Dr. McNaughtons evidence should be accepted, thereby inappropriately
discounting Dr. Rices opinions.

[60]

I appreciate that at the outset of the charge, and again when he
referred to the importance of personal observation for the third time, the
trial judge told the jury it was their opinion of the evidence that mattered,
but these were passing comments. While he had given them the more extensive
standard direction that it was their opinion and memory that mattered in his
opening comments, that had been a month before and, while the jury had a copy
of those comments, he did not direct them to review them during his charge. In
the context of this trial, and the pivotal nature of Dr. Rices testimony, I am
not satisfied that those comments were sufficient to restore her opinions to
the same stature as Dr. McNaughtons.

[61]

I also recognize that the appellants counsel did not object to the
trial judges treatment of Dr. Rices evidence at trial, and these issues are
raised for the first time on appeal. While that is a factor to be considered,
it does not foreclose their consideration by this Court:
Jacquard
at
paras. 35-8,
Daley
at para. 58.

[62]

I am satisfied that the cumulative effect of the errors and omissions in
the charge to the jury related to Dr. Rices evidence unfairly demeaned her
opinions on the pivotal issues of whether more than one weapon was used in
assaulting Mr. Melanson, and whether the appellant struck the fatal blow
to his neck. I would therefore allow the appeal, set aside his conviction, and
order a new trial.

The Honourable Madam Justice Neilson

I Agree:

The Honourable
Madam Justice Rowles

I Agree:

The Honourable Madam Justice Kirkpatrick


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

The Owners, Strata Plan LMS3259 v. Sze
  Hang Holding Inc.
,

2010 BCCA 80

Date: 20100125

Docket:
CA037092

Between:

The
Owners, Strata Plan LMS3259

Respondent

(Plaintiff)

And

Sze
Hang Holding Inc. and Leon Lam

Appellants

(Defendants)

Before:

The Honourable Mr. Justice K. Smith

(In Chambers)

On
appeal from: Supreme Court of British Columbia, April 27, 2009
(
The Owners, Strata Plan LMS3259 v. Sze Hang Holding Inc.
, 2009 BCSC
473,
Vancouver Registry L050030/L052756)

Oral Reasons for Judgment

Counsel for the Appellant:

R.P.
  Hamilton

Counsel for the Respondent:

P.G.
  Mendes

Place and Date of Hearing:

Vancouver,
  British Columbia

January
  25, 2010

Place and Date of Judgment:

Vancouver,
  British Columbia

January
  25, 2010

[1]

K. SMITH J.A.
: The
respondent applies for three things. First, they ask me to order, as a
condition of the appellants being able to pursue this appeal, that the
appellants first pay judgments extant against them in other proceedings in the
trial court and in another appeal on the basis that those judgments are related
to the matters in issue in this appeal. The relationship is said to arise out
of the facts that they involve, at least to some extent, the same parties, the
appellants being the same parties all proceedings, the respondent being either
a party or represented by parties in the other proceedings, and that they all
arise out of a dispute that has been ongoing between the appellants and the
Strata corporation in which the appellants own two units. Remarkably, the
dispute between these parties has been going on for many years and has
generated, if I am not mistaken, seven lawsuits, at least one of which has gone
to appeal other than this one.

[2]

Counsel cited no authority for the proposition
that as a single justice in chambers I could make the order sought but refers
to s. 10 of the
Court of Appeal Act
, which allows a single justice in
chambers to make any order required by the interests of justice. In my view,
there is nothing in the
Court of Appeal Act
that would confer authority
on me sitting here today to order as a condition of continuing with this appeal
that judgments in favour of the respondents in other matters be paid.

[3]

The second order the respondent seeks is an
order for security for costs of this appeal. It is not contested that there are
orders for costs outstanding on both sides in other proceedings between these
two parties. It appears that the total owing to the respondent in costs by far exceeds
what might be claimed by the appellants in costs in the proceedings in which
they have been successful. Nevertheless, there are judgments against the appellants
for costs and on substantive matters that have been outstanding and that have
not been paid despite, in one case, an order made by the Registrar that
judgment be paid in instalments. Nothing has been paid on that order.

[4]

The burden on the application for security for
costs of the appeal rests on the appellants to show why security should not be
required.  The relevant considerations are the financial means of the appellants,
the merits of the appeal, the timeliness of the application, and whether costs
will be readily recoverable. No objection has been made to the timeliness of
the application here. The appeal has been extant since June of 2009. The appeal
record was filed in July and it appears the matter has not progressed beyond
that stage. So timeliness in the sense that the appellants would be unduly
prejudiced by an order for security is not a factor.

[5]

Counsel have spent a lot of time on the merits
of the appeal. The order under appeal was made in chambers under Rule 19(24) of
the
Supreme Court Rules
, and it ordered that the appellants statements
of defence and counterclaims be struck out in their entirety on the ground that
they were an abuse of process. They were described as prolix and confusing and
that description is accepted by both counsel on this application.

[6]

However, counsel for the appellants says that
the chambers judge erred in that, while she quite justifiably should have
struck out the greatest portion of the statements of defence and the
counterclaims, she failed to examine those documents to see if any parts of
them could stand as valid defences and claims. He identifies certain
paragraphs, particularly in the statement of defence, that meet the allegations
in the statement of claim directly. For purposes of this application, the
merits showing only has to meet a low threshold and I am satisfied that has
been established here.

[7]

The next question is the appellants financial
means and, together with that, whether the costs will be readily recoverable.
The submissions on this point have turned around the fact that the appellants
own these two units and that together they have an assessed value in the order
of some $200,000. It is common ground that they are encumbered by mortgages
that in total amount to about $10,000. So there is, at least on the face of it,
some $190,000 in equity available.

[8]

The respondents have registered certificates of
judgment in the Land Title Office against the titles to these two properties
and they have pending, at the moment, an application in the Supreme Court for
leave to sell those properties and that they have conduct of sale. The
properties are listed for sale by the appellants at prices that appear to be
substantially above their assessed values. The respondents position is that
although there is equity in the properties that may ultimately be sufficient to
cover at least the bulk of the costs and the judgments outstanding, that they
will not be readily recoverable.

[9]

After considering the submissions in the context
of the overarching principle that the order must be one made in the interests of
justice, I am satisfied that an order for security for costs of the appeal
should be made. Counsel for the respondents has not submitted a draft bill of
costs suggesting any amount. In the circumstances, I am going to set the amount
at $5,000. It will be a term that there be no further proceedings in the appeal
until the security for costs is posted.  The respondents also ask for liberty
to apply to dismiss the appeal as abandoned if the security is not posted by a
stipulated date. I would not make that order. If the appellants do not post the
security and proceed with the appeal then it will be open to the respondent to
take that step if and when it considers it appropriate to do so.

[10]

The final order sought is one for security for
the costs of the judgment below. The costs below are special costs and are in
the amount of some $43,000. The judgment below is in respect of fines levied by
the corporation against the appellants which total some $157,000. These amounts
are hotly in dispute on this appeal. The burden on this application is on the
respondent to satisfy me that the interests of justice require the posting of
security for the trial judgment costs and prejudice if the order is not made,
and I am required to consider the merits of the appeal, which I have already
discussed.

[11]

The prejudice, if such an order is not made, is
that respondent may be delayed in recovering the judgments, but I do not
understand there to be any serious dispute over the proposition that the
judgments are secured by the equity in the two properties in question.

[12]

In all of the circumstances, I am not satisfied
that the applicant respondent has made out a case for security for the costs of
the trial judgment and the trial costs. I would not grant that application.
There has been mixed success here and, in view of that fact, I would not make
any order for costs on this application.

The Honourable Mr. Justice K. Smith