COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Kaban Resources Inc. v. Goldcorp Inc.,

2021 BCCA 6

Date: 20210108

Docket: CA47032

Between:

Kaban Resources
Inc.

Appellant

(Plaintiff)

And

Goldcorp Inc.,
Goldcorp Holdings (Barbados) Ltd., and Guatemala Holdings (Barbados) Limited

Respondent

(Defendants)

Before:

The Honourable Mr. Justice Grauer

(In Chambers)

On appeal from:  An
order of the Supreme Court of British Columbia, dated September 4, 2020 (
Kaban
Resources Inc. v. Goldcorp Inc.
, 2020 BCSC 1307, Vancouver Docket S165822).

Counsel for the Appellant
(via videoconference):

R.D. Gibbens, Q.C.

Counsel for the Respondents
(via videoconference):

A. Cocks

Place and Date of Hearing:

Vancouver, British
  Columbia

December 21, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 8, 2021

Summary:

The respondents apply for
security for costs of the appeal and the proceedings below in the respective
amounts of $16,017.95 and $163,851.14. The respondents seek an order that the
appeal be stayed pending the posting of security for costs and that the respondents
be at liberty to apply to have the appeal dismissed as abandoned should the
appellants fail to post security. Trial costs is this matter have not yet been
assessed. Held: the applications for security for costs of the appeal and trial
are allowed, but not in the amount sought by the respondents.
Security for costs of the appeal are
ordered in the amount of $11,200.
The appellant led no evidence
that would demonstrate that an order for security for costs would prevent it
from pursuing this appeal, and failed to meet its onus of demonstrating that it
would not be in the interests of justice to order security for costs of the
appeal. Security for costs of the trial are also ordered, but in the amount of
$60,000. The manner in which the appellant pursued its claim in the proceedings
below caused the respondent to obtain and deliver a costly expert report on the
question of damages. Now, the parties cannot proceed to assess trial costs
without waiving privilege over the expert report, practically preventing the
respondents from pursuing its remedies from trial. As such, the respondents
have established real prejudice and met the onus of demonstrating that it is in
the interests of justice to order partial security for costs of the trial.
The appeal is stayed for 30 days to permit
the appellants time to post the security. In the event the appellants fail to
post the security ordered, the respondents are at liberty to apply to have the
appeal dismissed as abandoned.

Reasons for Judgment of the
Honourable Mr. Justice Grauer:

Introduction

[1]

The appellant, Kaban Resources Inc, has brought this appeal from the
judgment of Mr. Justice Voith, then of the Supreme Court, dismissing its
claim after a summary trial.  Justice Voiths reasons for judgment are indexed
at 2020 BCSC 1307.

[2]

The respondents, whom I shall describe collectively as Goldcorp, now
apply under sections 24(1) and 10(2)(a) and (b) of the
Court of Appeal Act
,
RSBC 1996, c 77, for an order requiring the appellant to post security both for
the costs of the appeal, and for their costs of the proceedings below.
Goldcorp seeks security in the amount of $16,017.95 for a one-day appeal, and
in the amount of $163,851.14 for its trial costs (in excess of existing
security), and asks that the appeal be stayed pending deposit of the amounts
sought. Goldcorp also seeks the costs of this application payable forthwith.

Background

[3]

The appellants claim against Goldcorp was for damages for the wrongful
repudiation of a contract between the parties.  To summarize matters very
briefly, the parties had signed a letter agreement on February 3, 2016,
providing for the transfer of mining assets of Goldcorp in Guatemala on various
terms and conditions.  On March 14, 2016, the appellant delivered an agreement
to Goldcorp that purported to comply with the terms and conditions of the
letter agreement, but involved a new party, Fortuna Silver Mines Inc., not
mentioned in the letter agreement.  Goldcorp had something to say about this,
responding by letter on March 17, 2016.  On March 21, 2016, Kaban sent an email
to Goldcorp asserting that the March 17 letter constituted a repudiation of the
February 3 letter agreement, and advising that Kaban accepted the repudiation,
and considered the letter agreement to be at an end.

[4]

As I will discuss in more detail below, at a relatively early stage in
the Supreme Court proceedings, the appellant was ordered to post security for
costs in the amount of $60,000.  It did so.  The matter was later set for trial
by jury, and ultimately came before Justice Voith on Goldcorps summary trial
application.

[5]

As Justice Voith noted at para 5, the application raised four issues:

i.

Is this application suitable for disposition under Rule 9-7?

ii.

Did the Letter Agreement contain various implied terms?

iii.

Was there any obligation on Goldcorp to consent to the Fortuna
Agreement? and

iv.

Did
the March 17 Letter constitute a repudiation of the Letter Agreement?

[6]

The parties were agreed as to the first issue: the application was
suitable for disposition by way of summary trial.  As to the rest, Justice
Voith noted at para 6 that each issue was independent.  Goldcorp would succeed
if the answer to question (ii) were yes, or if the answer to either of
questions (iii) or (iv) were no.  The judge concluded that the answer to (ii)
was yes, the answer to (iii) was no, and it was unnecessary to answer
question (iv).

[7]

Accordingly, the judge dismissed the appellants claim with costs.
Goldcorp subsequently applied for double costs under Rule 9-1(5)(b) of the
Supreme Court Civil Rules
.  That application was dismissed in reasons
delivered December 15, 2020, and indexed as 2020 BCSC 1982.

[8]

I turn next to consider Goldcorps application for security for the
costs of this appeal.  I will then consider its application for security for
its trial costs.

Security for the costs of the appeal

[9]

The relevant considerations have been discussed in many cases.  I will
quote from one, the reasons of Madam Justice D. Smith (in Chambers) in
Arbutus
Bay Estates Ltd v Canada (Attorney General)
, 2017 BCCA 133:

[17]

The appellant against whom security is sought bears the onus of showing
why security should not be required:
Creative Salmon Company Ltd. v.
Staniford
, 2007 BCCA 285 at para. 9. The ultimate question is whether
the order would be in the interests of justice:
Lu v. Mao
, 2006 BCCA 560
at para. 6. The following relevant considerations were set out in
Lu
at
para. 6:

(a) the appellants financial
means;

(b) the merits of the appeal;

(c) the timeliness of the
application; and

(d) whether the costs will be
readily recoverable.

[18]

The appellants financial position is the principal basis on which an
order for some, all, or none of the security for appeal costs is made. See
Zen
v. M.R.S. Trust Company
(1997), 88 B.C.A.C. 198 at para. 18. It is a
discretionary order. Courts have also distinguished between corporate and
individual plaintiffs, generally treating corporate plaintiffs with less
flexibility.

[10]

As Justice Smith observed, the onus is on the appellant to
establish that the interests of justice require that security
not
be
ordered.

[11]

There is no doubt that Goldcorp has brought this application in a timely
manner.  Accordingly, the question really comes down to the appellants
financial position and the merits of its appeal.  These need to be balanced in
order to ensure that the interests of justice are not frustrated by an order
for security of costs inhibiting a meritorious appeal.

[12]

In this case, it is relevant to note that the appellant is a shell
company with no active business.  If it has any exigible assets, or other means
of securing costs, it has declined to adduce any evidence of such, though
repeatedly invited to do so by Goldcorp in order to avoid this application.  It
has been able to raise funds, including $60,000 to post in the court below to
secure Goldcorps costs there, but that is quite a different thing from having
the ability to satisfy a judgment of costs against it.  No one connected with
the appellant has come forward to undertake to cover costs.

[13]

In essence, the appellant rests its opposition to the application on
what it maintains is a meritorious appeal.  It has not, however, led evidence
to indicate that if it is obliged to post security for the costs of the appeal,
it will be unable to proceed.

[14]

I am satisfied that the appellant should be ordered to post security for
Goldcorps costs of this appeal.  The appellant has failed to meet the onus
upon it of demonstrating that it would not be in the interests of justice to make
the order.

[15]

With respect to the merits of the appeal, I would not suggest that the
appeal is bound to fail.  Nevertheless, the grounds it raises attract,
prima
facie
, a deferential standard.  Though they are framed as errors of law,
they raise questions of contractual interpretation.  But even if properly
described as errors of law, the appellant is obliged to charge uphill given the
trial judges findings.  An additional ground of appeal, alleging that the
judge created a reasonable apprehension of bias through  engaging in
ad
hoc
judicial moralism also faces the significant hurdle of a heavy burden,
given the presumptions of impartiality and judicial integrity.

[16]

The question then becomes, how much should the appellant be obliged to
post as security for Goldcorps costs of the one-day appeal?  Goldcorps draft
bill of costs seeks the maximum for the items relating to the preparation of
the factum and preparation for the hearing of the appeal.  Given the nature of
the appeal, I consider that unlikely to be achieved on an assessment.  Its
expected disbursements include the sum of $2,850 for transcripts, which will be
disputed in the context of a summary trial, where the evidence was all in
affidavits.  In the circumstances, I would consider $8,000 for costs and
applicable taxes, and $3,200 for disbursements and taxes, to be a fair estimate
for present purposes.  Accordingly, I order the appellant to post $11,200 to
secure Goldcorps costs of this appeal.

Security for trial costs

[17]

As Justice Smith observed in the
Arbutus Bay Estates
case at para
16, the principles relating to an application for security for the costs of
trial differ from those relating to security for the costs of the appeal.  Most
importantly, the onus flips from the appellant to the respondent.  In para 19,
Justice Smith said this:

[19]      The principles governing the exercise of discretion
in awarding security for trial costs are set out in
Fat Mels Restaurant
Ltd. v. Canadian Northern Shield Insurance Company
(1993), 76 B.C.L.R. (2d)
231 (C.A.); and
Kropp v. Swanaset Bay Golf Course Ltd.
(1997), 29
B.C.L.R. (3d) 252 (C.A). They include:

(a)
The onus is on the applicant to show that it is in the interest of justice to
order posting for security of trial costs;

(b)
The applicant must show prejudice if the order is not made; and

(c)      In determining the
interests of justice the chambers judge should consider the merits of the
appeal and the effect of such an order on the ability of the appellant to
continue the appeal. See
Bronson v. Hewitt,
2012 BCCA 268 at para. 13.

[18]

A relevant consideration is the fact that, generally, in relation to
collecting its trial costs, the respondent will be in no worse a position by
reason of the appeal than it was before the appeal.  It follows that an important
question is whether the appellants pursuit of the appeal negatively alters
Goldcorps ability to recover sums found by the trial court to be owing to it
(for instance, by the appellant obtaining a stay pending appeal): see, for
instance,
D Bacon Holdings Ltd v Naramata Vines Inc
, 2010 BCCA 427 at
paras 2526;
Agent E v Canada (Attorney General)
, 2018 BCCA 492 at para
17; and
EB v British Columbia (Child, Family and Community Services)
,
2020 BCCA 263 at para 29.

[19]

The appellant contends that Goldcorp has demonstrated no such negative
effect here, and indeed already has the benefit of security for its trial costs
in the amount of $60,000.  Moreover, the appellant points out, Goldcorp has yet
to have its trial costs assessed, a step that is usually expected unless the
interests of justice dictate otherwise:
Arbutus Bay Estates
at para 20.

[20]

Goldcorp maintains that it has demonstrated a negative effect, and real
prejudice.  I agree.  The question is whether it is sufficient to support the
amount of security it requests.

[21]

Goldcorp points to the manner in which the appellant pursued its claim
below.  Initially, it indicated that it would pursue matters in an economical
manner.  When Goldcorp raised the prospect of an application for security for
costs, the appellant sought to sever the questions of liability and quantum.
It was in this context that it was ordered to pay security in the amount of
$60,000.

[22]

But, as Goldcorp notes, that is not what happened.  Instead, the
appellant set the matter down for a six-week jury trial on both liability and
quantum, set for the fall of 2020.  Although Goldcorp set its summary trial
application down for hearing in August 2020, it was obliged, it asserts, to
obtain and deliver a lengthy expert report on the question of damages, given
the pending jury trial.

[23]

The expense related to this expert report comes to a total of just over
$168,000.  This cost was not in contemplation at the time Goldcorp applied for
security for its trial costs, because the trial was then expected to be on liability
alone.

[24]

Now, because of this appeal, Goldcorp is not in a position to disclose
its expert file for the purposes of supporting this expense, because to do so
would waive privilege when the appellant seeks to have the case returned to the
Supreme Court for a trial on damagesthe subject of the expert report.

[25]

In these circumstances, I agree that prejudice arises.  Because of the
appellants change in tactics (which I do not criticize, but which has
consequences), Goldcorp has incurred a hefty expense that was not anticipated
when it first sought to secure its costs.  Now, because of the appeal, it
cannot proceed to assess those costs without waiving privilege. The practical
effect is much like a stay, since the respondent is practically prevented from
pursuing its remedies in the trial court, all in the context of an appellant
who appears to be costs-proof (compare
Chung v Shin
, 2017 BCCA 355 at
paras 3335).

[26]

But the fact remains that the appropriateness of the expert witness fee,
and the reasonableness of incurring it at the time it was incurred, are in
issue.  It is by far the largest component of Goldcorps unassessed bill of
costs for the proceeding below.

[27]

It is, of course, open to me to order full security as requested,
partial security or no security at all.  Given all of the factors I have
discussed, I consider that it is in the interests of justice to require the
appellant to post an additional amount to secure Goldcorps trial costsbut not
the full amount requested by Goldcorp, particularly without an assessment.  I
conclude that requiring the appellant to post the further sum of $60,000 would
be appropriate.

Disposition

[28]

Within 30 days, the appellant shall post the sum of $11,200 as security
for Goldcorps costs of this appeal.

[29]

Within 30 days, the appellant shall post the sum of $60,000 as further
security for Goldcorps costs of the proceedings in the Supreme Court.

[30]

The appeal is stayed pending the posting of security as ordered.

[31]

Goldcorp will be at liberty to apply to have the appeal dismissed as
abandoned in the event the appellant fails to comply with this order.

[32]

Goldcorp seeks the costs of this application payable forthwith, in any
event of the cause.  In the circumstances, given that the appeal may continue,
I award Goldcorp the costs of this application in the cause.  I note, moreover,
that Goldcorps draft bill of costs already includes the costs of preparation
for and attendance at this application.  In the circumstances, an order
requiring the appellant to pay Goldcorp the costs of this application forthwith
in any event of the cause, as Goldcorp requests, would be equivalent to
requiring the appellant to pay the application costs twice: once forthwith, and
a second time when posting the security that has now been ordered.

The
Honourable Mr. Justice Grauer


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Czechowski,

2021 BCCA 19

Date: 20210108

Docket: CA45999

Between:

Regina

Respondent

And

Jeremy Robert
Czechowski

Appellant

Restriction on publication:
A publication ban has been imposed under ss. 486.4(1)
and 486.4(2) of the
Criminal
Code
restricting publication,
broadcasting or
transmission in any way of any information that could identify the complainant
or a
witness. This publication ban applies indefinitely unless otherwise ordered.

Restriction on
publication: Pursuant to s. 16(4) of the
Sex Offender Information
and Registration Act
[
SOIRA
], 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

(In Chambers)

On appeal from:  An
order of the Supreme Court of British Columbia, dated
May 16, 2018 (
R. v. Czechowski
,
2018 BCSC 1646
,
Kelowna Docket 84432-2
).

Oral Reasons for Judgment

Counsel for the Appellant
(via teleconference):

M.A. Nathanson

Counsel for the Respondent
(via teleconference):

M. Vojvodic

Place and Date of Hearing:

Vancouver, British
  Columbia

January 4, 2021

Place and Date of Judgment:

Vancouver, British
  Columbia

January 8, 2021

Summary:

Application for bail
pending disposition of the applicants application for leave to appeal from
conviction to the Supreme Court of Canada. The application is opposed by the
Crown on the basis the applicant has not established that his detention is not
necessary in the public interest (s. 679(3)(c) of the Criminal Code). The
proposed grounds of appeal relate to this courts application of the curative
proviso in s. 686(1(b)(iii) where two serious errors of law have been
identified. Held: Application allowed on terms. The components of the s. 679(3)(c)
criterion are public safety and public confidence in the administration of
justice. The public confidence component balances enforceability versus
reviewability. Given the degree of arguability of the proposed grounds of appeal
and their possible national import, the proposed leave to appeal application has
sufficient potential to weigh in favour of release. That potential, combined
with the ability of strict terms of release to address public safety issues and
the character of the proposed appeal as an initial review of the issues raised,
favours release pending determination of the leave application.

[1]

SAUNDERS J.A.
: Mr. Czechowski applies pursuant to s. 679(1)(c)
of the
Criminal Code
, R.S.C. 1985, c. C‑46 for judicial
interim release (bail) pending his s. 691 application for leave to appeal
his convictions to the Supreme Court of Canada. He was convicted at trial by
judge alone on May 16, 2018 of four offences arising from a sexual
encounter between himself and the complainant in February 2016: sexual
assault causing bodily harm, unlawful confinement, attempting to choke or
suffocate or strangle, and uttering threats. On April 5, 2019, he was
sentenced on these offences to five years incarceration, in total.

[2]

The applicant appealed his convictions to this court. Pending his appeal,
he was given judicial interim release, as he had between the time of his
conviction and sentencing, and indeed time before his conviction. In August 2020,
while this courts decision on his conviction appeals was reserved, the Crown
applied to revoke his bail because he had been charged with uttering threats in
an unrelated incident. Mr. Justice Butler dismissed that application in
reasons indexed at 2020 BCCA 237, but imposed more restrictive terms of
release.

[3]

The applicants conviction appeal was dismissed on October 13, 2020, by
reasons indexed as 2020 BCCA 277.

[4]

The issues at trial related to consent in respect of sexual activity
between the applicant and the complainant. The judge accepted the complainants
testimony that she had not consented to any of the sexual activity and found,
in the alternative, that she had no capacity to consent in any event. In so
finding, the judge relied upon expert evidence from a medical doctor about the
complainants memory and referred to the doctors evidence of a prior
consistent statement made by the complainant at the hospital. The trial record
included a body of evidence of physical injuries sustained by the complainant
in the encounter, and words said by her in communications between the police
and the complainant shortly after she left the residence.

[5]

Before this court, the applicant raised seven grounds of appeal. This
court found that the trial judge had made two serious errors of law, the first
in admitting and relying on expert evidence from a physician that went beyond
the physicians expertise, and the second in considering the complainants
prior consistent statement to the physician. This court then considered the
application of the curative proviso under s. 686(1)(b)(iii) of the
Criminal
Code
in the circumstances of the two errors of law identified. This court
held that evidence of the injuries to the complainant, the doctors assessment
of the injuries, and the complainants interactions with police immediately
after the incident were inconsistent with consensual sex and in conclusion
found that circumstantial evidence against the applicant overwhelmingly
established non‑consent apart from the complainants testimony. It
dismissed the appeal on the basis conviction would be inevitable upon a
retrial.

[6]

In his application for leave to appeal to the Supreme Court of Canada,
the applicant contends that this court has watered down the standard
applicable in application of the curative proviso, contrary to jurisprudence of
the Supreme Court of Canada such as
R. v. Sarrazin
, 2011 SCC 54 and
R. v. Van
, 2009 SCC 22.

[7]

He says that this court selectively looked to evidence that supported
the Crowns case and ignored evidence capable of raising a reasonable doubt,
diminishing the high standard for application of the curative proviso and he refers
to jurisprudence from other provinces that he says has rejected the use of the
proviso in similar circumstances. Further, the applicant contends that this
court reversed the onus of proof, contrary to ss. 7 and 11(d) of the
Charter
and that the results violate his right to a jury trial under s. 11(h) of
the
Charter
.

[8]

Section 679(3) sets out the criteria that must be established by an
applicant to obtain judicial interim release:

(3) In the case of an appeal
referred to in paragraph (1)(a) or (c), the judge of the court of appeal may
order that the appellant be released pending the determination of his appeal if
the appellant establishes that

(a) the appeal or application for leave to appeal is
not frivolous;

(b) he will surrender himself into custody in
accordance with the terms of the order; and

(c) his detention is not necessary in the public interest.

[9]

Each of these three criteria must be met on a balance of probabilities:
R.
v. Oland
, 2017 SCC 17 at para. 17.

[10]

On this application, the applicant says that he has met all three
criteria.

[11]

The Crown agrees that the applicant has met the first two criteria, but
says that the applicant has not established that his detention is not necessary
in the public interest. In particular on the third criterion, the Crown says
that application for leave to appeal is fundamentally flawed because it seeks
to undermine jurisprudence from the Supreme Court of Canada wherein the
curative proviso has been applied to sustain convictions based on a subset of
the evidence adduced at trial, and that the applicant has not raised any issues
of national importance.

[12]

I will address the three criteria separately  the first two in short
compass.

[13]

It is accepted that the merits assessment of the first criterion,
whether the application is frivolous, is a low bar. On a leave application the
merits will include consideration of whether the proposed appeal could be of
national importance:
R. v. Pires
, 2004 BCCA 91. This is in the
context, however, of the low bar.

[14]

In light of the low bar and the articulated proposed grounds of appeal,
I am satisfied that the applicant has met this first criterion.

[15]

The second criterion engages the likelihood that the applicant will
surrender himself into custody in accordance with the terms of the order. I
agree that on the materials before us, there is ample evidence to satisfy this
criterion.

[16]

The real question before me is whether the applicant has satisfied the
third criterion: has he established that his detention while he awaits the
decision in his leave application is not necessary in the public interest.

[17]

There are two components to the third criterion, public safety and
public confidence in the administration of justice:
Oland
at para. 23.
The Crown says that the public safety consideration weighs against release
because he has been charged with uttering threats that necessitated a further
tightening of his bail conditions before this court dismissed his conviction
appeal.

[18]

I recognize this concern but note that the charge of uttering threats is
still in early stages of the trial process, and Justice Butler considered the
tightened bail conditions sufficiently met the public safety risk that charge
indicated. There is no evidence of a failure to meet the tightened conditions.
While this feature is troubling, in light of the history in this court on the
prior applications I cannot say, by itself, it is determinative.

[19]

This application therefore comes down to a question of public confidence
in the administration of justice. In
Oland
, the Supreme Court of Canada said,
at para. 47, concerning public confidence:

[47]      ... is to be measured
through the eyes of a reasonable member of the public. This person is someone
who is thoughtful, dispassionate, informed of the circumstances of the case and
respectful of societys fundamental values.

[20]

The question of public confidence
in turn engages two competing interests which must be balanced, the
enforceability interest and the reviewability interest.

[21]

In
R. v. Boima
, unreported,
(5 November 2018), Vancouver CA44501 (B.C.C.A.), Madam Justice
Dickson described enforceability and reviewability in these terms:

[21]      Enforceability relates to the public interest in
the enforcement of judgments and in denying bail to a person convicted of a
serious offence. It captures the gravity of the offence, the circumstances
surrounding the commission of the offence and the potential length of
imprisonment:
Oland
at para. 38. The fact that an appellate court
upheld a guilty verdict means that the pendulum swings towards enforceability
and away from bail pending further review:
R. v. Drabinsky
, 201 1 ONCA
647 at para. 10 (Doherty J.A. in Chambers).

[22]      Reviewability relates
to the public interest in the review and correction of errors in judgments:
R.
v. Mapara
, 2001 BCCA 508 at para. 32. In the appellate context, the
strength of the case factor translates into the strength of the grounds of
appeal and informs reviewability:
Oland
at para. 40. Using their
experience and knowledge, judges should form a preliminary assessment of the
strength of the grounds of appeal to see if they "clearly surpass the not
frivolous standard":
Oland
at paras. 4445.

[22]

In respect of enforceability, the Supreme Court of Canada in
Oland
said:

[37]      In assessing whether public confidence concerns
support a pre-trial detention order under s. 515(10)(c), the seriousness
of the crime plays an important role. The more serious the crime, the greater
the risk that public confidence in the administration of justice will be
undermined if the accused is released on bail pending trial. So too for bail
pending appeal. In considering the public confidence component under s. 679(3)(c),
I see no reason why the seriousness of the crime for which a person has been
convicted should not play an equal role in assessing the enforceability
interest
.

[38]      With that in mind, I return to s. 515(10)(c),
where Parliament has set out three factors by which the seriousness of a crime
may be determined: the gravity of the offence, the circumstances surrounding the
commission of the offence, and the potential length of imprisonment (s.
515(10)(c)(ii), (iii) and (iv)). In my view, these factors are readily
transferable to s. 679(3)(c)  the only difference being that, unlike the
pre-trial context,
an appeal judge will generally have the trial judges
reasons for sentence in which the three factors going to the seriousness of the
crime will have been addressed. As a rule, the appeal judge need not repeat
this exercise
.

[39]      I pause here to note
that while the seriousness of the crime for which the offender has been
convicted will play an important role in assessing the enforceability interest,
other factors should also be taken into account where appropriate. For
example, public safety concerns that fall short of the substantial risk mark
 which would preclude a release order  will remain relevant under the public
confidence component and can, in some cases, tip the scale in favour of
detention:
R. v. Rhyason
, 2006 ABCA 120, 208 C.C.C. (3d) 193, at para. 15;
R. v. Roussin
, 2011 MBCA 103, 275 Man. R. (2d) 46, at para. 34. The
same holds true for lingering flight risks that do not rise to the substantial
risk level under s. 679(3)(b). By the same token, the absence of flight or
public safety risks will attenuate the enforceability interest.

[Emphasis
added.]

[23]

In respect of the reviewability interest, the strength of the appeal or
application for leave to appeal is important, beyond the not frivolous
standard of the first criterion in s. 679(3): see
Oland
at para. 44;
R. v. Porisky
, 2012 BCCA 467;
R. v. Mapara
, 2001 BCCA 508.
Here also the level of the legal proceedings is significant.

[24]

In
Drabinsky
, Justice Doherty considered an application for
judicial interim release of an applicant sentenced to five years incarceration
on two counts of fraud who had applied to the Supreme Court of Canada for leave
to appeal from conviction. All grounds of appeal had been rejected by the
appellate court. In dismissing the application for judicial interim release,
Justice Doherty gave priority to the enforceability interest in recognition
that the grounds of appeal advanced had already been reviewed and rejected on
appeal and there was no further
right
to an appeal. Last, he considered
that the length of sentence in that case meant that there would still be a
large remainder of the sentence to be served after the leave application was
determined.

[25]

A different result obtained in
Boima
. In
Boima
, Madam
Justice Dickson observed that the applicants application for leave to appeal
amounted to an attempt to push beyond the current boundaries of the law. She
then observed that sometimes boundaries are pushed successfully, and that the
length of sentence imposed in the case before her meant that almost all of the
sentence would have been served before the leave application would be known.
This latter factor weighed strongly in her view that, combined with the absence
of a flight risk and the absence of a concern for public safety, the
reviewability interest outweighed the enforceability interest.

[26]

The case before me is between the circumstances of
Boima
and
those of
Drabinsky
. Unlike
Boima
, the applicant will not have
served all or nearly all of the sentence by the time the leave application is
decided.

And unlike
Drabinsky
, not all of the applicants grounds
of appeal were rejected by this court. Indeed, unlike
Drabinsky,
in this
case two serious errors of law were found before this court applied the
curative proviso. By definition the application of the curative proviso, the
focus of the applicants leave application, has not been the subject of
appellate review.

[27]

I consider that the reviewability interest here has more force in the
circumstances of this application than was the case in
Drabinsky
as this
case is more akin to the situation of an appellant advancing his first appeal.
As to the merits of the application for leave to appeal, there is difficulty
inherent for a justice of this court determining the degree of likelihood that
leave to appeal will be granted from a judgment of this court. What I can say
is that the grounds of appeal appear to have some substance beyond the non-frivolous
standard, and engage issues that the Supreme Court of Canada could consider are
of national importance. While I would not dip my toe into predicting the outcome
of the application for leave, what I know of the application for leave to
appeal suggests it is a real step beyond one doomed to fail.

[28]

I recognize that the offences of which the applicant has been convicted
are ones of serious interference with a person. Yet the seriousness of an
offence does not preclude bail. Indeed
Mapara
is a case in which the
applicant obtained bail although he had been convicted of first degree murder.

[29]

On balance, considering the nature of the challenge to this courts order,
I conclude that the reviewability interest marginally outweighs the
enforceability interest, and that in the circumstances presented, the applicant
has met the requirement of demonstrating that his detention pending
determination of his application to the Supreme Court of Canada is not
necessary in the public interest, provided that the public safety concerns may
be addressed through restrictive terms similar to those imposed by Justice
Butler.

[30]

I would allow the application on terms.

[Discussion
establishing terms (a) through (r).]

The Honourable Madam
Justice Saunders


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Li,

2021 BCCA 3

Date: 20210108

Docket: CA47049

Between:

Regina

Respondent

And

Wei Li

Appellant

Before:

The Honourable Madam Justice Newbury

(In Chambers)

On appeal from:  An
order of the Supreme Court of British Columbia, dated
October 18, 2019 (
R. v. Li
, Victoria Docket 172348‑1).

The Appellant appearing in person
(via teleconference):

Wei Li

Counsel for the Respondent
(via teleconference):

S. Gillespie

Place and Date of Hearing:

Vancouver, British
  Columbia

December 18, 2020

Place and Date of Judgment
with Written Reasons to Follow:

Vancouver, British
  Columbia

December
  18, 2020

Place and Date of Written Reasons

Vancouver, British
  Columbia

January
  8, 2021

Summary:

Application for appointment
of counsel under s. 684 of Criminal Code dismissed. Proposed appeal had
little chance of success and chambers judge was not satisfied that the
appellant, who had been released from prison, was completely unable to work or
earn money. More importantly, it was not in the interests of justice to permit
him to pursue an appeal at public expense in order to present a completely
different version of events from the version he had testified to at trial.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

After hearing Mr. Lis application in chambers for the appointment
of counsel under s. 684 of the
Criminal Code
, I stated that the
application was dismissed, for reasons to follow. These are the reasons.

Evidence at Trial

[2]

Mr. Li was convicted on October 18, 2019 by a judge,
sitting with a jury, of arson contrary to s. 434.1 of the
Code
. The
fire occurred in a duplex located in Esquimalt owned by Mr. Li., who had
lived for many years in Quebec but had stayed in the duplex from when he
purchased it in the fall of 2016 until April 2017. He had then
returned to Quebec. However, due to problems in the condition of the duplex, he
came to Esquimalt again in late September for a visit. At the time of the fire,
the upper suite of the building had been rented to a Mr. Montgomery. The
lower suite was empty, having been vacated by the previous tenant. The other
half of the duplex was owned by a Ms. Brett.

[3]

Relations between Mr. Li and Mr. Montgomery had become very
fraught by the last few days of September. Mr. Li had served Mr. Montgomery
with an eviction notice for non‑payment of rent but the tenant was
appealing the notice  a process Mr. Li rightly expected would take a
great deal of time. The property  especially the electrical and water systems
had been the subject of many complaints and investigations by local authorities.
According to Mr. Li, Mr. Montgomery refused to allow workmen into the
premises to effect necessary repairs. Mr. Li testified that police had
been present on site at his request concerning the condition of the building and
the theft of furniture from the bottom suite. He also testified that shortly
before the fire, Mr. Montgomery had threatened to burn the house down. Mr.
Li had not mentioned this to police, he said, because they already knew about
the animosity between them. However, he had told Ms. Brett about the
threat in a text on September 30.

[4]

Before the fire broke out at 10:02 a.m. on
October 3, 2017, Mr. Li had arrived at the duplex and gone into
the basement suite. Mr. Montgomery had been present in the upper part of
the house with two overnight guests, Ms. Watson and Mr. Daley. Mr. Montgomery
was angry that Mr. Li had shown up unannounced, and yelled at him, perhaps
with racial epithets, through the floor and basement door. The trial judge
found that eventually, Mr. Montgomery and his two guests departed, leaving
Mr. Li alone on the property.

[5]

At trial, Mr. Li testified that he had not
seen
anyone but
heard
sounds like people walking or running in the suite inside, so he had walked
directly into the suite and opened the door. He found that the window close to
the kitchen was open and he leaned out of it to see if he could see anyone. He saw
no one. He proceeded to check the other rooms until, he testified, he heard a
very loud noise outside the suite. He then ran out of the suite into the
hallway towards the door leading to the loft, or mezzanine, which door was
half open. At that point he said he switched on the light with his left hand,
pushed the door open and there was an explosion. He was unable to get out of
the main entrance door so ran into the suite and jumped out of the window. He
sustained burns to his face, neck and hands as a result of the fire.

[6]

Although he testified he could not look around due to star[s] in front
of my eyes, Mr. Li immediately left the property and drove himself to the
airport in order to catch a (pre‑booked) flight to eastern Canada. He
made no effort to call the Fire Department or police, who had headquarters not
far from the duplex. He acknowledged that he had discarded a jacket and a bag
of tools at or en route to the airport. After checking in, he asked for
medical help for his burns and told airport personnel about the fire. He
appeared scattered and traumatized. Police were called, and he was eventually
arrested.

[7]

Mr. Li was not asked directly at trial why he had fled the scene
without calling the Fire Department, but did say, I ran away. I did not have
the chance to call the police. In cross‑examination, he insisted that he
had chosen not to board the flight and that he had been open in telling
airport personnel about the fire. He told them he was lucky to be alive.

[8]

The trial judge found that the fire had damaged the garage and the
duplex structure itself and had posed a serious risk of injury to persons and
property in the area. It was only because of the prompt attendance of
firefighters at the scene that more serious damage was avoided. Mr. Li
says in his material on this application that the insurer denied coverage and it
appears his bank ended up with all the proceeds of sale of the duplex.

[9]

The issue at trial was how the fire had started. The Crown submitted
that Mr. Li had deliberately started the fire out of frustration with Mr. Montgomery
and that he had then attempted to flee the jurisdiction to evade capture. Mr. Li,
who was represented at trial, testified in his own defence. He contended that
the fire had started accidentally when he had attempted to turn on the light
switch. The suggestion was that the electrical wiring to the light was faulty.
As the Crown observed in its memorandum of argument, the expert evidence was
inconclusive as to the mechanism of ignition. Investigators did not find any
accelerant at the scene, although first responders had noticed a strong smell
of gasoline. The location of the start of the fire could not be determined
conclusively, but the fire was most intense in the loft area. The defence
relied on the absence of physical evidence of accelerants, together with
various inconsistencies in the evidence of Crown witnesses and the apparent
unlikelihood that Mr. Li would have burned down his own property.

[10]

On the other hand, there was evidence that the day before the fire, Mr. Li
had done an Internet search of whether it was safe to use a plastic bottle for
gas and on the location of the local police and Fire Department. A firefighter
testified that he had found a half‑filled open gas can with a nozzle and
some wood or kindling in the lower suite. Soot patterns on a log which was
allegedly used by Mr. Li to climb out of a window after starting the fire,
suggested that the log had been placed there before the fire to enable him to
escape.

Sentence

[11]

In his sentencing reasons, reported at 2020 BCSC 113, the
trial judge, Mr. Justice Baird, stated:

... Quite clearly, the jury rejected the
accuseds evidence that the fire must have been ignited by an electrical spark
when the accused attempted to turn on the garage light. The jury decided that
the accused intentionally set the fire.

I am persuaded
beyond a reasonable doubt, furthermore, that on all of the evidence, his doing
this was a premeditated act and that he used gasoline as an accelerant. In this
latter connection, I note, in particular, the online inquiries from the preceding
day about the safe transportation of gasoline in plastic containers; his text
message to his neighbour Irene Brett, that someone had threatened to burn the
house down; the unexplained presence of a jerrycan containing gasoline in the
basement suite; and the fact that the firefighter primarily responsible for
extinguishing the fire reeked of gasoline afterwards. [At paras. 56.]

[12]

Mr. Li was age 49 at the time of sentencing and had no
previous criminal history. He had immigrated to Canada from China in 2003
and had lived, and now lives, in Quebec. He had a long history of useful and
gainful employment as an electronics engineer and has a wife and two children
who are now also in Quebec.

[13]

He received a sentence of two years in a federal penitentiary. He was released
in September 2019. He wishes to appeal his conviction and sentence.

Section 684 Application

[14]

In his affidavit filed in support of his application for an order under
s. 684, Mr. Li stated that his income is zero and that he has not had
a job since his release from prison. He says his debts total some $120,000 and
that he still owes some $8,000 to his defence lawyer at trial. He feels his
English (not his first language) is not good enough for a court appeal. He
provided a long supporting document in which he contends that the trial judge
misunderstood the evidence and gave wrong instructions to the jury, although he
did not supply specifics of such misstatements. In Mr. Lis submission,
the Crown relied heavily at trial on the three key witnesses who had [stayed]
inside the house for a dozen of hours until the fire. Mr. Li now says
that a gang was directly involved in the arson. (Indeed he testified that Mr. Montgomery
was a member of Hells Angels.) Mr. Li says he believes that part of the
team was on site when the fire broke out; that he met two persons who jumped
out of the basement; and that they drove away immediately after starting the
fire.

[15]

Mr. Li points out inconsistencies in the evidence of Mr. Montgomery
concerning where he went after shouting at Mr. Li, and says it is clear
that Mr. Montgomery and his friends colluded a lot. He argues that the
trial judge should have given the jury a
Vetrovec
warning at least about
Mr. Montgomerys credibility; and that his, Mr. Montgomerys, criminal
record and those of other witnesses should have been disclosed to the jury.
Perhaps most importantly, he contends that he did not receive effective
assistance from his lawyer at trial.

Analysis

[16]

Obviously, in approaching an application under s. 684, a court must
consider the applicants ability or inability to pay for counsel on the appeal.
The remaining factors are well‑known and include the merits of the
proposed appeal, the complexity of the case, the penalty at stake, whether the
appeal is of any general importance, and the need for counsel to present
argument or carry out research. Some of these factors may be dealt with fairly
easily in this case: here the appeal is fact‑intensive and not of general
significance to the law or the public. Mr. Li has already served his time,
assuming good behaviour in future, so that the penalty is a neutral factor.
Further, although English is not Mr. Lis first language, his testimony at
trial indicates in my view that he understands the language well and has a
subtle mind.

[17]

As far as Mr. Lis financial means are concerned, it is difficult
to draw conclusions. He swears that he is unemployed and has no income, but has
not provided tax returns, banking documents, or evidence of being on social
assistance or efforts to find a job. He does have a degree in engineering and
was employed as a computer engineer between the time of his immigration to
Canada and the date of his arrest. He testified that between April 2017
and April 2019, he had earned $120,000 per year, and had also become a
certified investor. The Crown points out that he had owned a house in
Montreal. Although he lacks resources at this time (as he would after being in
prison), I am not confident that he will be unable to find employment or other
opportunities.

[18]

The more important issue is whether, given the merits of the proposed
appeal, it would be in the interests of justice to appoint counsel for Mr. Li
under s. 684. In my view it would not, primarily because of the difference
between his testimony at trial and the version of events he now asserts. This
difference portends that the merits of an appeal are low. As the Crown submits,
since Mr. Li argued at trial that the fire must have been started
accidentally
by him
when he switched on a light, the presence or absence of Mr. Montgomery
and his friends was not highly relevant. The failure to give a
Vetrovec
warning would not have been significant in the circumstances. The Crown in fact
acknowledged at trial that Mr. Montgomerys credibility was doubtful; its
case did not depend upon his credibility.

If a new trial were to take
place, Mr. Lis new testimony (if he gave evidence) or his new position at
trial would obviously be suspect given its inconsistency with his sworn statements
at trial. Simply put, why would he have testified that
he started the fire
accidentally
if it had in fact been started by a gang?

[19]

I have perused the transcript of the trial proceedings on October 16,
2019 when Mr. Li testified. Of course, I am not aware of what decisions
were made by trial counsel, but as the Crown points out, the defence capitalized
at trial on the inconclusive expert evidence as to how the fire had started. On
its face, the transcript suggests no ineffectiveness on counsels part, and Mr. Li
does not contend that counsel acted against his instructions at trial or that
the overall approach of the defence was undertaken without his approval.

[20]

The Crown filed a copy of a letter from Legal Aid BC confirming
that it had refused Mr. Lis application for legal aid for his appeals
against conviction and sentence. The refusal was not for financial reasons. The
issues considered by Legal Aid included whether the absence of the criminal
records of some of the Crown witnesses, which were not in evidence, would
support an appeal; and whether Mr. Li had received ineffective assistance
from counsel.

[21]

At the end of the day, I do not find that the factual assertions and arguments
Mr. Li now seeks to advance could or should have been advanced at trial,
given the defence of accidental ignition of the fire by Mr. Li himself. I
agree with the Crown that the whereabouts and conduct of Mr. Montgomery
and his friends were essentially background information and that the evidence
regarding gasoline, a gasoline can and Mr. Lis strange flight from the
scene were likely what led to his conviction. In my opinion, it is not in the
interests of justice to require that counsel be appointed at public expense to
permit Mr. Li now to change his story completely and seek another trial,
blaming his lawyer. Such an appeal has little likelihood of success.

[22]

For the foregoing reasons, I dismissed Mr. Lis application.

The Honourable
Madam Justice Newbury