COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Frederickson,

2018 BCCA 2

Date: 20180103

Docket: CA43494

Between:

Regina

Respondent

And

Steven Kenneth
James Frederickson

Appellant

Before:

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Harris

The Honourable Madam Justice Fisher

On appeal from:  Orders
of the Supreme Court of British Columbia, dated
April 3, 2013 and October 11, 2013 (
R. v. Frederickson
, 2013 BCSC
576 and
2013 BCSC 2034, Chilliwack Docket No. 58655).

Counsel for the Appellant:

K. Beatch
R.P. Thirkell

Counsel for the Respondent:

M.K. Levitz, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

November 16,
  2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 3, 2018

Written Reasons by:

The Honourable Madam Justice Fisher

Concurred in by:

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Harris

Summary:

The appellant appealed his
conviction for manslaughter on the basis that (1) the trial judges discretion
to refuse to hold a voir dire to permit him to challenge a search warrant was
not exercised judicially, and (2) the verdict was unreasonable because the
trial judge erred in his assessment of circumstantial evidence. At trial, the
judge held a Vukelich hearing after which he determined that the appellant had
not met the threshold for a voir dire. The verdict of guilty was based on the
trial judges findings that the appellant had assaulted the deceased and that
the assault had caused the injuries that led to his death. The pathologist who
conducted the autopsy found three external bruises on the head as well as
internal bleeding in the skull but was not able to determine whether any of the
external bruises were related to the internal bleeding and was not able to
opine as to how the injuries occurred. The appellant argued that the trial
judge misapprehended this evidence and the verdict was incompatible with it,
contrary to R. v. Beaudry. He also argued that the expert evidence established
other plausible theories or other reasonable possibilities which were
inconsistent with guilt (in this case, accident), such that the Crown was
required to negative them, contrary to R. v. Villaroman.

HELD: Appeal dismissed. In
his ruling following the Vukelich hearing, the judge made several errors, such
that his exercise of discretion was not entitled to deference. However, upon an
independent analysis of the defence submissions, the court concluded that the
trial judge ultimately reached the correct conclusion on the threshold question
and there was no basis to interfere with the refusal to hold a voir dire. The
trial judge did not misapprehend the expert evidence and did not fail to
consider other reasonable possibilities that were inconsistent with guilt. The
judgment, when read as a whole, showed that the trial judge was well aware of
the limitations of the expert evidence and made his findings on the basis of
the evidence as a whole. He considered the possibility of accident to be
speculative despite the fact that the pathologist could not rule it out. Taking
into account the totality of the evidence, the trial judge reasonably drew the
line that separated plausible theory from speculation.

Reasons for Judgment of the Honourable
Madam Justice Fisher:

[1]

Steven Frederickson appeals his conviction for manslaughter on two
bases: (1) the trial judges discretion to refuse to hold a
voir dire
to
permit the defence to challenge a search warrant was not exercised judicially,
and (2) the verdict was unreasonable because the trial judge erred in his
assessment of circumstantial evidence.

Facts

[2]

In December 2010, the deceased, Robert Planje, was living in a mobile
home in Chilliwack that was primarily owned by his brother and his mother. The
previous month, he had taken in the appellant as a tenant. Mr. Planje
occupied the master bedroom at the rear of the home, the appellant occupied a
bedroom at the front of the home, and the two shared the kitchen, dining and
living areas. I will refer to the mobile home as the Residence.

[3]

Mr. Planje was 64 years old, five foot two and a half inches tall,
and weighed 137 pounds. The appellant was 44 years old, approximately six feet
tall and weighed 165 pounds. The appellant is deaf but able to lip read and
make vocal responses.

[4]

On the afternoon of December 12, 2010, police attended at the
Residence after Mr. Planje had called 9-1-1, complaining about the appellants
behaviour. Both Mr. Planje and the appellant were upset due to a dispute
which resulted in Mr. Planje wanting to evict the appellant. The officers
arrested the appellant and took him to the police detachment, but later
released him and drove him home at about 5:30 p.m. Later that day, Mr. Planje
gave the appellant an eviction notice.

[5]

Mr. Planje was last seen by a neighbour, Barbara LaMarsh, at
approximately 2:30 a.m. on December 13, 2010. Looking from her window into
the kitchen of the Residence, she saw a tall man push Mr. Planje, after
which both men left toward the rear of the home out of her view. At about 4:00
a.m., another neighbour, Beverly Zowty, saw the appellant outside the
front door dragging a heavy object down the stairs. Shortly after, she saw Mr. Planjes
car drive away and return some time later. When it returned, Ms. Zowty saw
the appellant, who had been driving, go back inside the Residence and leave
again about 10 minutes later. Other neighbours had also noted unusual activity
in the Residence and at 5:38 a.m. notified the police.

[6]

Two police officers arrived at approximately 8:20 a.m. There was no
answer when they knocked on the door and they noticed a stain that appeared to
be blood on the outside of the front door above the handle. Peering through the
window, one of the officers noticed that the interior appeared dishevelled and
thought that something was not right. A supervising officer arrived at the
scene, and after consulting with another senior officer, decided to enter the Residence
to make sure there was no one inside who needed help. Rather than break down
the door, the officers contacted Mr. Planjes brother, who arrived with a
key, and shortly after 9:00 a.m. the officers briefly entered the Residence. No
one was inside. They observed signs of a struggle. They did not seize anything,
but shortly after they left, one of the officers re-entered and took some
photographs.

[7]

Later that day, police located Mr. Planjes vehicle and the
appellant outside the Social Assistance Office in Chilliwack. The appellant had
spent much of the morning smoking crack cocaine with Michelle Bakstad, who had
observed that the appellants knuckles were beaten up and he had blood on his jeans.
The appellant was arrested for assault and possession of stolen property and
told he was under investigation for murder.

[8]

The following day, December 14, 2010, police obtained a search
warrant and then conducted a thorough search of the Residence. They observed
evidence of a physical disturbance and blood stains, mostly in Mr. Planjes
bedroom and ensuite bathroom. DNA evidence revealed the blood of Mr. Planje
and the appellant localized in that area, as well as trails of the appellants
blood in the kitchen and living room.

[9]

On December 30, 2010, Mr. Planjes body was discovered on a
steep slope below a forestry service road about 12 kilometres north of Hope. A
post-mortem examination revealed that he had died from blunt force head
injuries a considerable time before the body was found.

[10]

After his arrest on December 13, 2010, the appellant was unable to
satisfy the terms of a bail order made December 20, 2010. He remained in
custody until January 17, 2011, when he was re-arrested and charged with
the murder of Mr. Planje. He subsequently gave a statement to police that
was ruled voluntary and admissible.

At trial

The
Vukelich
hearing

[11]

At trial, the appellant sought a
voir dire
for the purpose of
making a sub-facial challenge to the search warrant obtained on December 14,
2010. The trial judge conducted a
Vukelich
hearing after which he
concluded that the appellant had not met the threshold required for a
voir
dire
: see
R. v. Vukelich
(1996), 108 C.C.C. (3d) 193 (B.C.C.A.).

[12]

In his ruling (2013 BCSC 576), the judge considered, in addition to the
primary threshold issue, whether the appellant had a reasonable expectation of
privacy in the Residence sufficient to require the police to obtain a search
warrant. He found that the appellant had a reasonable expectation of privacy
only to the areas he exclusively occupied and the search of the remaining areas
of the home, conducted before the warrant was obtained, was authorized by the
consent of Mr. Planjes brother.

[13]

In addressing the primary threshold issue, the trial judge considered
the question of whether the accused could show a foundation for
cross-examination of the affiant and held that this turned on whether the
accused could put into question sufficient portions of the Information to
Obtain (ITO) to challenge issuance of the warrant (at para. 19). He noted
that there was already a good factual basis for considering the appellants
arguments, referring to evidence given by some of the witnesses in a previous
voir
dire
and during the trial proper, who were also sources in the ITO, and
found that nothing was likely to be added through cross-examination of the
affiant (at para. 22). The judge then assessed the ITO after considering
the paragraphs impugned by the defence and found that the information provided
a reasonable basis to conclude the following (at para. 45):

(1)        On the initial attendance of the
police to the breach of the peace complaint, December 12, 2010, the accused and
the deceased were engaged in a dispute, with the deceased alleging the accused
had destroyed food he had purchased and suspicions of the accused taking his
car keys. Statements made by the deceased indicated he wanted to evict the
accused from the premises. The accused was upset by these allegations and was
arrested and held in custody for a time to calm down.

(2)        The observations of the neighbours
in the early hours of December 13, are suggestive of a physical confrontation,
followed by the accused removing an object resembling a wrapped body from the
scene, and driving away with it in the deceaseds car.

(3)        These
observations resulted in one of the neighbours, concerned for the deceaseds
safety, calling for the police to check on his welfare. The police attendance
included entry into the mobile home and observations of apparent blood stains
and signs of a struggle.

[14]

The judge held that this was sufficient to indicate a viable basis for
the issuance of the search warrant and dismissed the defence application for a
voir
dire
.

The evidence

[15]

The autopsy determined that Mr. Planje died from internal bleeding
in his skull. The pathologist, Dr. Litwin, found subdural hematomas above
each ear and bruising in the soft tissues external to the skull also above each
ear and by the right eye. He could not say whether the three bruises were
related to the internal bleeding and could not opine as to how the injuries
occurred. He described the cause of death as by blunt force injuries either by
blows to the head or the head coming into contact with a stationary object.

[16]

The appellant testified at trial. He gave an account of the events
leading up to his arrest on December 12, 2010 that included acquiring a
ring from Mr. Planje, alleging that he was sexually assaulted by Mr. Planje,
and denying that he committed an assault.

[17]

With respect to subsequent events, the appellant admitted that he had
taken Mr. Planjes unresponsive body into the backseat of his car,
intending to drive to a lake north of Hope, dispose of the body and then commit
suicide. After he realized he had taken the wrong road, he stopped the car,
removed all of Mr. Planjes clothing except for his underpants, and left
the body at the side of the road. He also abandoned his suicide plan. After
depositing Mr. Planjes clothing in a dumpster in Hope, he returned to the
Residence to get some money and belongings and left again to find a girl in
Chilliwack who would get him some crack cocaine.

[18]

This evidence was inconsistent with the appellants statements to police
in January 2011, where he provided different accounts. In one, the appellant
was driving Mr. Planje to his sisters residence and stopped somewhere
near Cultus Lake, where Mr. Planje got out of the car and then
disappeared. In another, the appellant admitted exchanging slaps with Mr. Planje
at the Residence but said that he did not mean to kill him, and he did not know
if Mr. Planje was alive when he put him in the car. He admitted driving to
the forestry road but said that when he stopped the car, he and Mr. Planje
got out, Mr. Planje grabbed him and then turned around and fell backwards
down onto the rocks. He said that he climbed down to where Mr. Planje had
fallen, freaked out, removed Mr. Planjes clothing, and returned to
Chilliwack. At trial, the appellant said that he lied to police because he was
panicked by the situation.

[19]

The trial judge did not believe the appellants evidence, and found that
it did not raise a reasonable doubt (2013 BCSC 2034). He found that the
appellants prior statements were patent inventions at the time he thought
would be exculpatory and his exculpatory evidence at trial had no credibility.
He therefore went on to assess the Crowns evidence and found that the appellant
had assaulted Mr. Planje and caused his death. He rejected a defence
argument that the trauma to the head could have occurred accidentally, finding
this to be bare conjecture. However, he had a reasonable doubt whether the
appellant acted with murderous intent within the meaning of s. 229(a)(i)
or (ii) of the
Criminal Code
. Accordingly, he acquitted the appellant of
murder and convicted him of the included offence of manslaughter.

On appeal

[20]

The appellant submitted that the trial judge, in declining to hold a
s. 8
voir dire
, failed to exercise his discretion judicially in
several ways: (1) by relying on evidence from the trial and another
voir
dire
and faulting the defence for failing to cross-examine witnesses about
issues relevant to the s. 8 challenge; (2) by wrongly concluding that the
two prior warrantless searches were authorized by third party consent; and (3)
by applying the wrong test in the
Vukelich
hearing.

[21]

The respondent conceded that the trial judge may have erred in his
reasons for denying the
voir dire
but submitted that it is evident from
the record that he did not err in the result. In considering the challenge to
the search warrant, the respondent contends that the judge properly considered
whether the defence had met the threshold for holding a
voir dire
.

[22]

The appellant also submitted that the verdict was unreasonable because
(1) the trial judges findings of fact about the cause of death were
contradicted by the evidence of the pathologist on which he relied, contrary to
R. v. Beaudry
,

2007 SCC 5; and (2) the trial judge wrongly
imposed an evidentiary burden on the appellant by failing to consider
reasonable possibilities inconsistent with guilt and failing to appreciate that
such inferences did not have to be based on proven facts, contrary to
R. v.
Villaroman
, 2016 SCC 33.

[23]

The respondent submitted that the trial judges findings were based not
only on the evidence of the pathologist but also on the evidence as a whole.
While the pathologist could not opine from the autopsy alone as to how the
injuries occurred, the respondent says that the judge was not constrained from
rejecting accident as a reasonable possibility upon his consideration of all of
the evidence.

Analysis

1.       Did the trial judge
err in declining to hold a
voir dire
to permit the defence to challenge
the search warrant under s. 8 of the
Charter
?

[24]

As the Supreme Court of Canada recently reiterated in
R. v. Cody
,
2017 SCC 31, trial judges play an important role in curtailing unnecessary
delay in criminal proceedings. One of their management tools is the discretion
to decline to embark on an evidentiary hearing where the party requesting it is
unable to show a reasonable likelihood that the hearing can assist in
determining the issues before the court:
Vukelich
;
R. v. Pires
,
2005 SCC 66;
R. v. Montgomery
, 2016 BCCA 379. It is well established, as
this Court noted in
Montgomery
at para. 255, that a trial judges
discretionary decision whether to embark on a
voir dire
will not be
interfered with on appeal unless the discretion is not exercised judicially:
see also
R. v. M.B.
, 2016 BCCA 476 at paras. 45
‒
47.

[25]

I will begin my analysis by reviewing the nature of a
Vukelich
hearing in the context of an application to challenge a search warrant.

The nature of a Vukelich hearing

[26]

There is no absolute right to a
voir dire
.
The
purpose of a
Vukelich
hearing is to filter out proposed pre-trial
applications where the remedy sought could not reasonably be granted, as shown
by submissions of counsel, assuming the allegations could be proven:
M.B.
at para. 45. Whether an appropriate foundation can be laid in any given
case is contextual. Generally, to justify a
voir dire
alleging a breach
of the
Charter
, the applicant must be able to demonstrate a reasonable
basis on which the court could find a breach:
R. v. McDonald
, 2013 BCSC
314 at para. 18;
R. v. Malik
, 2002 BCSC 484 at para. 4.

[27]

The context in an application under s. 8 of the
Charter
to challenge a search warrant is the test set out in
R. v.

Garofoli
,
[1990] 2 S.C.R. 1421 at 1452:

If, based on the
record which was before the authorizing judge as amplified on the review, the
reviewing judge concludes that the authorizing judge could have granted the
authorization, then he or she should not interfere. In this process, the
existence of fraud, non-disclosure, misleading evidence and new evidence are
all relevant, but, rather than being a prerequisite to review, their sole
impact is to determine whether there continues to be any basis for the decision
of the authorizing judge.

[28]

The sufficiency of the grounds for the issuance of a
search warrant may be attacked in two ways: (1) a challenge to the facial
validity of the affidavit; and (2) a sub-facial challenge to the reliability of
the content of the affidavit. Whether the attack is facial, sub-facial or both,
the role of the reviewing judge remains the same:
R. v. Araujo
, 2000 SCC
65;
R. v. McKinnon
, 2013 BCSC 2212 at para. 11.

[29]

One way to attack the reliability of the content of the
affidavit is to cross-examine the affiant. There is no absolute right to do so;
leave is required:
R. v. Wilson
, 2011 BCCA 252 at para. 64
. To obtain leave, it must be shown that the proposed cross-examination
will elicit testimony that could discredit the existence of a pre-condition to
the issuance of the warrant, such as reasonable and probable grounds:
Garofoli
at 1465;
Pires
at para. 10;
World Bank Group v. Wallace
,
2016 SCC 207 at para. 119. Cross-examination that can show only that some
of the information relied on by the affiant is false will not likely be useful
unless an inference can be made that the affiant knew or ought to have known
that the information was false. A sub-facial challenge can still be made if
leave to cross-examine is not granted:
Pires
at para. 32;
R. v.
Sadikov
, 2014 ONCA 72 at paras. 39
‒
41, 44.

[30]

In this case, the appellant sought a sub-facial challenge
of the search warrant and the right to cross-examine the affiant.

[31]

Garofoli
refers to the record
as amplified on review. The record before the reviewing judge is different
than that before the authorizing justice as a result of the submissions of
counsel and, where leave has been granted, cross-examination of the affiant. In
the amplification process, the reviewing judge is to disregard or exclude
erroneous information in an affidavit and, within limits, consider omitted
evidence that should have been included. Amplification evidence may correct
minor, good faith errors of the police, not deliberate attempts to mislead:
Araujo
at paras. 58
‒
59;
Wilson
at para. 68;
Sadikov
at para. 85. A
failure to make full and frank disclosure does not, without more, invalidate a
warrant. The reviewing judge must still assess whether the warrant could have
issued on the basis of information which had not been impugned:
Wilson
at
para. 47;
R. v. Bisson
, [1994] 3 S.C.R. 1097 at 1098.

[32]

While the defence does not have to meet the
Garofoli
test in a
Vukelich
hearing, a trial judge must consider it in order to determine whether the
defence has shown a reasonable basis on which the search warrant can be challenged
and the court could find a breach of s. 8 of the
Charter
.

[33]

To do so, the defence must state, with reasonable particularity, the
grounds upon which the application is made:
Vukelich
, citing
R. v.
Hamill
(1984), 14 C.C.C. (3d) 338 at 366
‒
67
(B.C.C.A.). While the threshold is low, simple assertions that statements in an
affidavit are incorrect will not suffice; the defence must provide the court
with clear submissions and references to materials that support those
submissions. A
Vukelich
hearing should not involve a protracted
examination of the issues but there must be sufficient substance put before the
court to enable the trial judge to properly exercise his or her discretion.

Alleged errors

[34]

The appellant says that the trial judges decision in this case is not
entitled to deference because he failed to act judicially in making the legal
errors outlined above. The respondent acknowledges that the trial judge made
errors but says that ultimately, he properly considered whether the appellant
met the threshold for holding a s. 8
voir dire
to challenge the
search warrant.

[35]

I agree that the trial judge erred by considering the evidence of
witnesses who testified in another
voir dire
or at the trial and by
commenting on defence counsels failure to cross-examine those witnesses on
matters related to the accuracy of the information attributed to them as
sources in the ITO.

[36]

First of all, the evidence of these witnesses was not pertinent to what
the trial judge had to assess. It tended to show that some of the information
in the ITO was inaccurate, but not whether
the affiant knew or
ought to have known this. To assess the issues raised by the defence, the judge
should only have considered the information in the witnesses statements in
relation to the information in the ITO, as that was the information on which
the affiant relied.

[37]

Secondly, to the extent he did so, it was an error for the
trial judge to consider any of this as amplification evidence in the analysis
of the sufficiency of the ITO. Amplification cannot be used to circumvent the
requirement for the information to satisfy the issuing justice that there is a
proper basis on which to issue the warrant:
Araujo
at para. 59,
Wilson
at para. 66.
I say to the extent he did so because it appears
that the trial judge considered this evidence primarily in respect of the
appellants argument regarding cross-examination of the affiant. At para. 22
of his reasons, he stated that the court already has a good factual basis for
consideration of the accuseds arguments and there is no suggestion that
anything is likely to be added through cross-examination of the affiant.

[38]

Finally, each admissibility
voir dire
is a separate inquiry, and
without express incorporation, the evidence adduced on the
voir dire
is
not available for use at trial or in a later
voir dire
:
Sadikov
at paras. 30
‒
31.
In this case, no agreement had been reached between counsel regarding the
treatment of evidence from the earlier
voir dire
in which these
witnesses testified. Thus it was unfair for the trial judge to have expected
defence counsel to cross-examine witnesses on issues other than those pertinent
to the
voir dire
then being conducted.

[39]

Unfortunately, the issues considered by the trial judge were confused by
the manner in which the defence brought its application. The focus of the
Vukelich
hearing should have been on whether the facts set out in the ITO, after
excising misstatements and adding omissions as suggested by the defence
submissions, disclosed a reasonable basis on which the warrant could have been
challenged. While the judge ultimately did consider this, he was diverted by
the defence focus on cross-examining the affiant and his own concern about the
two prior warrantless searches.

[40]

I will address this last point first.

The earlier searches

[41]

Although in the
Vukelich
hearing the defence initially raised
some issues about the earlier two searches, it sought only to attack the ITO,
and in doing so, argued only that the second of the two searches was unlawful.
This is demonstrated by defence counsels answers to inquiries by the trial
judge at the start of the hearing as to the parameters of the search and the
earlier entries by the police, shown in the following exchange:

Those are in issue too, but quite
frankly its the second of the two searches that  the defence is raising as
problematic, as opposed to the first.

[42]

The judge then asked whether defence was saying that the material in the
ITO about the earlier searches should be excluded because of the nature of the
entry. Defence counsel said, yes and after noting that there were two
entries, added this:

Thats not very much in issue,
but there will be questions about that. But the more  problematic entry is
when Morris went back and took photographs, and that found its way into the
ITO.

He did not say what those
questions would be. The judge continued to seek clarification and the exchange
continued:

THE COURT:               its really not the entry or
anything found after the issuance of the warrant, its the process before the
ITO was

MR. BEATCH:             Yes.

THE COURT:              -- submitted.

MR. BEATCH:             Were not  were not alleging
There might be some explanation on the manner in which the warrant was
executed, but that doesnt go to the ITO, thats completely different.

THE COURT:              Yes.

MR. BEATCH:             But
its not  I mean  I must be clear,  were not simply arguing that thats the
only problem with the ITO, the -- the entry by Morris, were arguing that there
are at least nine other problematic -- problematic paragraphs, which dont come
up to the requirement of accuracy and full and complete disclosure.

[43]

Defence counsel then proceeded to make submissions on specific
paragraphs in the ITO. With respect to the first search, the defence submission
focused, not on its legality, but rather on information from the officers
observations inside the home that ought to have been included. Thus, for the
purpose of the
Vukelich
hearing, any issues related to the legality of
that search were not pursued and therefore not relevant. With respect to the
second search, the information in the ITO related to it can be excised for the
purpose of the analysis here, a point conceded by the respondent.

[44]

Thus, it is not necessary in this appeal to assess whether the trial
judge was correct in his ruling that the earlier warrantless searches were
authorized by third party consent. Whether the judge erred in declining to hold
a
voir dire
can be assessed on the basis of the submissions made by the
defence before the trial judge and the concessions made by the respondent.

Cross-examination of the affiant

[45]

In responding to the Crowns submissions that the information in the ITO
was sufficient to support the issuance of the warrant despite the issues
pointed out by the defence, defence counsel submitted to the trial judge that
they were only interested, at that stage of the proceedings, in whether
cross-examination of the affiant would elicit testimony of probative value.
Defence counsel considered the sufficiency of the information after excising
problematic paragraphs to be a matter for final argument, and submitted this to
the judge:

what the defence has to show,
and what I respectfully submit has shown is that there are problematic
paragraphs in this, that cross-examination will elucidate them, and that the
judge  the trier of this issue may well expunge those paragraphs

[46]

The trial judge noted that it would be difficult to say that a specific
piece of information would be expunged. In response, defence counsel said this:

Yes, but that would be what the
defence arguing, it would be  whether it is, thats the ultimate question for
Your Lordship. But at this stage  all the defence has to do is put in front
of  Your Lordship an argument that the evidence to be led is going to assist
you in determining whether this warrant should have been issued or not.

[47]

The judge, however, was alive to the threshold issue, as he said this:

THE COURT:              Well, I
think theres a threshold still in place, and thats indicated in
Wilson
-- and reaches back to
Vukelich
And that, you know, includes
consideration of whether or not, even with the impugned  even if your case at
the strongest is taken here, whether theres enough left in this  ITO to
authorize the warrant.

[48]

On appeal, the appellant submitted that the trial judges decision
denied him the opportunity to build an evidentiary record to attack the
issuance of the search warrant. With respect, this submission ignores the fact
that a party advancing a
Charter
application is not entitled to a
voir
dire
as of right, but must put before the court a factual and legal basis
for the relief sought:
Montgomery
at para. 258, citing
R. v.
Garrick
, 2014 ONCA 757. The appellants submission  both before the trial
judge and before this Court  assumes that he is entitled to cross-examine an
affiant in order to establish the factual and legal basis to justify an
evidentiary hearing. It is only after the initial threshold is met and an
evidentiary hearing proceeds that the defence may seek leave to cross-examine
an affiant. And even then, leave to cross-examine is not granted as of right.
As discussed above, the defence
must show that the proposed
cross-examination will elicit testimony that could discredit the existence of a
pre-condition to the issuance of the warrant.

[49]

I recognize that in a sub-facial challenge, the issues are blended. In
this case, the defence had to first present a factual and legal basis to have a
voir dire
by demonstrating serious inconsistencies between the
statements in the ITO and the source witnesses statements to the police. If he
had done so, he would have met the threshold and could then have sought leave
to cross-examine the affiant.

[50]

Although the trial judge was obviously aware of the threshold issue on a
Vukelich
hearing, it appears that he nonetheless attempted to address
the defence argument on the issue of cross-examining the affiant. He ought not
to have considered this issue unless and until he was satisfied that the
defence had demonstrated serious inconsistencies such that a challenge to the issuance
of the warrant had a reasonable prospect of success. Therefore, his error in
considering evidence from the source witnesses led in an earlier
voir dire
for this purpose is, in my opinion, of no real consequence.

The threshold issue

[51]

Ultimately, the trial judge concluded that the information in the ITO,
despite the defence submissions, was a sufficient basis for the issuance of the
search warrant. Given the errors discussed above, I agree with the appellant
that the trial judges exercise of discretion on this issue should not be given
deference. However, that is not the end of the matter.

[52]

Firstly, the trial judge did not err in considering, as a threshold
issue, whether there was enough information left in the ITO, after considering
the defence submissions at their best, upon which the warrant could have
issued. I disagree with the appellants submission that by doing so, the judge
engaged in a full-blown
Garofoli
analysis. From my review of the record
that was before the trial judge, it is apparent that the defence failed to
demonstrate a reasonable basis on which the court could have found a breach of
s. 8 of the
Charter
.

[53]

Before the trial judge, the defence pointed to information in the ITO
that was either incorrect or incomplete, in that the information was not
supported by or omitted relevant information contained in the source documents,
being witness statements. Before this Court, the appellant contended that all
paragraphs in the ITO which contained any impugned information or omitted any
relevant information must be excised in order to consider whether there was a
reasonable basis for his s. 8 application.

[54]

In my view, this submission conflates the limitations on amplification
for the purpose of correcting minor errors made in good faith with amplification
to address defence submissions regarding information that ought to have been
included  presumably because such information would tend to weaken the factual
basis set out in the ITO. The defence did not assert that there was any
deception or bad faith, and as was confirmed in
Bisson
and
Wilson
,
even where there is
a failure to make full and frank disclosure,
the reviewing judge must still assess whether the warrant could have issued on
the basis of information that had not been impugned
. The best case for
the defence cannot be assessed on the basis of simply expunging every impugned
paragraph in the ITO; it should be assessed on the basis of what is left in the
ITO after excising what is contended to be incorrect information and adding
what is contended ought to be included.

[55]

In brief, the defence pointed to some inaccuracies as to what some of
the neighbours heard or saw in the early morning hours of December 13,
2010. The information from two of the neighbours was contained in reports by
Constable Sandhu. The appellant submitted that the inaccuracies were material,
and that those made by Constable Sandhu were serious enough to justify excising
all paragraphs in the ITO based on her reports, whether or not each paragraph
was specifically challenged. In my view, the inaccuracies pointed out by the
defence, considered on their own or cumulatively, were not sufficiently
material to undermine the basis for the issuance of the warrant, nor were they
sufficient to render unreliable other paragraphs in the ITO based on reports by
Constable Sandhu.

[56]

More particularly, after conducting an independent analysis and excising
or correcting the information impugned by the defence, it is my view that the
ITO provided the following basis for the issuance of the warrant:

a)

Mr. Planje
lived in the Residence and was the registered owner of a 1991 Toyota Camry. The
appellant was a tenant of Mr. Planje. On December 12, 2010, the two
were involved in a verbal dispute. Mr. Planje called police requesting
assistance. When police arrived to investigate, the appellant was in an
agitated state and was arrested for breach of the peace. He was held in custody
for three hours and then released at 1730 hours (paras. 17
‒
19, 32).

b)

In an audio
recorded statement, Ms. Lamarsh provided the following information: On
December 13, 2010 at 0230 hours, she woke up with an earache. She heard
thumping and what sounded like people running
between the residences
. She
went into her kitchen and observed lights on in the Residence, which was
unusual for that time. She observed Robert with the tall fellow who lived
with him standing by the kitchen window. She observed the tall fellow push
Robert,
not a hard push but kind of a push out of my way type thing. She had
never spoken to the tall fellow and would not recognize him, and she was not
wearing her glasses
. [The affiant believed she was referring to Mr. Planje
when she spoke of Robert and to the appellant when she spoke of the tall
fellow.] Ms. Lamarsh observed the two walk toward the rear of the trailer.
She then went back to bed and heard nothing further coming from the Residence (para. 24
 excised is a reference to Ms. Lamarsh hearing what sounded like people
running in the residence next door and italicized portions added per defence
submissions).

c)

On
December 13, 2010 at 0618 hours, police received a request from Yolanda Chambers
to check on the welfare of Mr. Planje. Ms. Chambers stated that her
husband, John Chambers, had seen someone leave the Residence in Mr. Planjes
vehicle (para. 20  excised are references to Ms. Chambers hearing
loud banging from the Residence and to her husband describing the person
leaving the Residence as a male).

d)

Constable Sandhu
made a report based on an audio recorded statement from Ms. Chambers,
which provided the following information: Her husband woke her up around 0400
hours as their dog was barking and he could hear thumping noises. Within 30
minutes, she observed Mr. Planjes vehicle depart and arrive back at the
Residence approximately three times but she did not see who was driving it.
[The affiant believed she was referring to a Blue Camry.] Mr. Planjes
welcome mat was
normally
directly in front of the door but that day it
was in the stairway outside. The outside lights to the Residence were usually
turned on but that day they were not. They had not seen Mr. Planje all day
and had not seen his vehicle since approximately 0430 hours. She called the
Residence but there was no ring and the line was busy (para. 22  excised
are references to Mr. Chambers hearing the thumping sounds coming from the
Residence, to Ms. Chambers hearing thumping that sounded like someone
hitting something with their fists, to Ms. Chambers observing Mr. Planje
always being home, and being worried about Mr. Planje; corrected is a
reference to Mr. Planjes welcome mat normally as opposed to always
being directly in front of the door, per defence submissions).

e)

Constable Farlin
made a report based on an audio recorded statement of John Chambers, which
provided the following information: On December 12, 2010 in the
mid-afternoon, two police officers came down to deal with two males having a
fight at the Residence; he referred to one of the males as Robert and the other
as Steven. He did not know how Steven was related to Robert. He referred to the
male named Steven as being brought out in handcuffs. [
This is in reference
to the same incident set out in para. 18.
]

On December 13, 2010 at
approximately 0345 hours, Mr. Chambers heard a noise and commotion coming
from the Residence that sounded like thumping. His dog began to bark and growl
so he got up and looked out his bedroom window. He observed Mr. Planjes
Blue Camry parked in the carport, running with the lights on. He went to the
front window to settle his dog and observed the Blue Camry back out, which
seemed strange because Mr. Planje was one of the guys who locks the back
gate. He said the Blue Camry then turned around and went towards the main gate.
From this he
guessed
that Mr. Planje was not driving the vehicle.
His wife woke up and was concerned about Mr. Planje so she called police
at approximately 0530 hours. The Blue Camry arrived back at the Residence two
times after his wife called police. He observed someone enter the Residence,
turn out the lights and then leave. A while later he noted the Blue Camry back
again (para. 23  italicized words added per defence submissions; excised
is a reference to Mr. Chambers hearing a thumping sound like something
banging on the floor outside on the porch area after the Blue Camry had
returned to the Residence).

f)

Constable
Sandhu made a report based on an audio recorded statement from Ms. Zowty, which
provided the following information: She was a neighbour of Mr. Planje. On
December 13, 2010 at approximately 0400 hours she heard a loud thumping
noise from the Residence. She observed Mr. Planjes vehicle, a blue Camry,
parked in the driveway. She saw Mr. Planjes roommate come out of the
Residence, drag something down the stairs and put it into the trunk of the car.
Whatever was being dragged was long and big enough to roll a body in it. She
saw the roommate drive off in the Blue Camry and return within a few minutes.
It was very dark and she was not able to see who was in the vehicle but she
believed a male got out and looked around and then got back into the vehicle
and drove off. She said that the roommate moved in about a month before and
that Mr. Planje never let him drive his vehicle (para. 21  excised
is a reference to Ms. Zowty seeing the roommate dragging a rolled carpet
down the stairs and putting it into the trunk of the car).

g)

Constable Morris
reported that he and Constable Sandhu arrived at the Residence on
December 13, 2010 at 0818 hours and walked up to the front door in the
garage area. He observed dog food spread around the front of the door and what
appeared to be blood on the outside of the front door just above the dead bolt
door lock. He peered through the glass in the door. It appeared to him that
there may have been a struggle as items appeared disheveled (para. 25(a)
‒
excised is a reference to
what appeared to be a drag mark in the dirt/dust at the bottom of the stairs
leading up to the door).

h)

At 0903 hours
the officers obtained a key to the Residence from Mr. Planjes brother.
Constable Morris, Constable Sandhu and Corporal Parsons entered the Residence
but no one was there. Corporal Parsons observed broken glass in the living
room, miscellaneous items on the floor, a large hole in the drywall of the
living room area, the microwave blinking with a piece of meat inside and
several knives in the kitchen area but none appeared with a blood like
substance.
The disheveled items were consistent with bad housekeeping and
there was no debris near the hole in the drywall
(para. 25(b), 26
italicized items added per defence submissions).

i)

Constable
Sandhu obtained information from Coleen Crook, a friend of Mr. Planje,
that Mr. Planje told her the following: His roommate woke up in a really
bad mood the day before (December 12, 2010) and was acting violent, he
had never acted this bad before, and he had thrown Mr. Planjes food all
over the place and had flushed his food down the toilet. He feared for his
safety, did not know what to do, and was worried that the appellant might do
something to him or his property. He did not want the appellant to live with
him any longer or to have the key to the Residence. The appellant had hidden
his car keys and taken the phone away from him so he could not call anyone for
help but he finally managed to find his car keys in the Residence.

Ms. Crook also told
Constable Sandhu that Mr. Planje attended her residence every day and
walked her dogs, would not leave his dogs unattended for more than a couple
hours, and it was unusual for him not to answer his phone. She also said that
the appellant had a history of using cocaine and was apparently trying to quit
(para. 29(b)  nothing excised, as defence submission that information
from Constable Sandhu was unreliable due to the manner in which she summarized
the evidence of Ms. Chambers and Ms. Zowty is without merit).

j)

Constable
Sandhu also received information from Dawn Shannon, Mr. Planjes
step-daughter: The appellant is her brother and that was how he and Mr. Planje
met. They had known each other for years but just moved in together a few weeks
before. The appellant was known to be violent and had gone to jail in the past.
She spoke to Mr. Planje the night before (December 12, 2010) at 1930
hours. Mr. Planje said that he and the appellant got into a big fight, the
appellant hid this car keys and threw his food in the toilet. He also said that
the appellant had been trying to stop using cocaine that day but he believed he
was still using it. He sounded shook up. It was unusual for Mr. Planje
to leave his Residence for that long and he never left his dogs alone for long.
He did not have to deliver newspapers that day to she did not know where he
could have gone (para. 29(c)  nothing excised, as defence submission that
information from Constable Sandhu was unreliable due to the manner in which she
summarized the evidence of Ms. Chambers and Ms. Zowty is without
merit).

k)

Constable
Morris reported that on December 13, 2010 at 1343 hours he observed the
appellant exit the Blue Camry from a parking lot at the welfare office, and
arrested him. Constable Farlin went inside the office and took Ms. Bakstad
into custody, as she had been seen with the appellant. After the Blue Camry was
secured, officers observed mud splatter on the passenger side of the vehicle, a
lot of mud on the tire, and what
appeared to be
blood on the passenger
side rear door handle (paras. 30
‒
31
 italicized words added per defence submissions).

l)

Constable
Parsons made a report based on an audio recorded statement from Ms. Bakstad,
which provided the following information: On December 13, 2010 at about
0800 hours a deaf man attended at a residence where she was and later, at
approximately 1003 hours, she went for a drive with him out by Ryder Lake. [The
affiant believed she was talking about the appellant.] The man had a gold ring
with a moose head and some initial on it. She took him to a pawn shop where he
got $40 for the ring. The man said he had to be careful because of the cops and
he was looking around a lot; he said the car wasnt his so he had to be
careful. She thought he meant that he had borrowed the car and didnt want to
get caught driving stoned.
She knew the man did not have a licence

and
said it was common for people who have smoked crack to be looking around often.
The man drove her to a dead end road where she thought she saw a body or
something wrapped in a white or cream coloured tarp.
She was smoking crack
cocaine at the time and she thought she could have been hallucinating
(para. 34
 italicized words added per defence submissions).

m)

Ms. Bakstad took
police to the area of the dead end road but nothing was located (para. 35).

[57]

All of this information supported the investigative conclusions set out
in the ITO with some relatively minor changes to reflect the excisions and
corrections noted, all of which, in my view, shows that the ITO was sufficient
on its face such that the issuing justice could have issued the warrant. This
is so, taking into account all defence submissions having any merit. Moreover,
even if the information outlined at para. 56(h) above were excised
(regarding the results of the first police entry into the Residence), the ITO
was sufficient to support the issuance of the warrant.

[58]

The circumstances here are quite different from those in
M.B.,
where this Court ordered a new trial as a result of the trial judges refusal
to hold a
voir dire
to consider a s. 7
Charter
challenge.
There, after conducting its own analysis as to whether the proposed application
had a reasonable prospect of success, the Court concluded that there was a
reasonable likelihood that an evidentiary hearing could assist in determining
the constitutional issues raised. In this case, after conducting a similar
analysis, I have concluded that the appellants proposed attack on the issuance
of the search warrant had no reasonable prospect of success. Thus there is no
reasonable likelihood that an evidentiary hearing could assist in determining
whether the appellants s. 8
Charter
rights were breached.

[59]

Accordingly, there is no basis for this Court to interfere with the
trial judges refusal to hold a s. 8
voir dire
.

2.       Was the verdict unreasonable?

[60]

The test for an unreasonable verdict is whether the verdict is
one that a properly instructed jury, acting judicially, could reasonably have
rendered:
R. v. Yebes,
[1987] 2 S.C.R. 168;
R. v. Biniaris
, 2000
SCC 15. A verdict will also be unreasonable
where a trial judge
makes a finding of fact or draws an inference that is plainly contradicted by
the evidence relied on for that purpose or that is demonstrably incompatible
with evidence that is not otherwise contradicted or rejected:
Beaudry
;
R. v. Sinclair
, 2011 SCC 40;
R. v. R.P
., 2012 SCC 22. A verdict
of this latter sort is unreasonable because it has been reached
illogically
or irrationally
, not judicially or in accordance with the rule of law
:
Sinclair
at para. 26.

[61]

As Donald J.A. explained in
R. v. Zadeh
,
2016 BCCA 474 at para. 27, unreasonable verdicts of this kind are
exceedingly rare. An analysis of a
Beaudry
error requires scrutiny of
the logic of the trial judges findings of fact or inferences drawn from the
evidence, and the appellant must show the existence of a fundamental flaw in
the judges reasoning, and establish that the flaw played a central role in the
reasoning that led to conviction: see also
R. v. Scuby
, 2015 BCCA 430
at para. 31
.

[62]

The appellant pointed to two flaws in the trial
judges reasoning: (1) the verdict is incompatible with the expert evidence of
the pathologist; and (2) the judge took an incorrect approach to the
circumstantial evidence and wrongly imposed an evidentiary burden on him.

[63]

This latter argument stems from
Villaroman
,
where
Cromwell J. discussed the principle of reasonable doubt in
circumstantial cases. He explained that
inferences consistent
with innocence do not have to arise from proven facts, as to do otherwise wrongly
puts an obligation on an accused to prove facts and is contrary to the rule
that whether there is a reasonable doubt is assessed by considering all of the
evidence (at para. 35). A reasonable doubt is not rendered speculative by
the mere fact that it arises from a lack of evidence. Consistent with the
well-known case of
R. v. Lifchus
,

[1997] 3 S.C.R. 320, a
reasonable doubt is a doubt based on reason and common sense which must be
logically based upon the evidence or lack of evidence. And while a gap in
the evidence may result in inferences other than guilt, those inferences must
be reasonable given the evidence and the absence of evidence, assessed
logically, and in light of human experience and common sense (
Villaroman
at paras. 35
‒
36).

[64]

Cromwell J. gave the following guidance to triers
of fact, recognizing (at para. 38) that the line between a plausible
theory and speculation is not always easy to draw:

[37]      When assessing circumstantial evidence, the trier
of fact should consider other plausible theor[ies] and other reasonable possibilities
which are inconsistent with guilt:
R. v. Comba
,
1938 CanLII 14 (ON CA),
[1938]
O.R. 200 (C.A.)
, at pp. 205 and 211
,
per Middleton J.A., affd
1938 CanLII 7 (SCC),
[1938] S.C.R. 396
;
R. v. Baigent
,
2013 BCCA 28
(CanLII),
335 B.C.A.C. 11
, at para. 20
;
R. v. Mitchell
, [2008] QCA 394 (AustLII), at para. 35. I agree with
the appellant that the Crown thus may need to negative these
reasonable
possibilities, but certainly does not need to negative every possible
conjecture, no matter how irrational or fanciful, which might be consistent
with the innocence of the accused:
R. v. Bagshaw
,
1971 CanLII 13 (SCC),
[1972]
S.C.R. 2
, at p. 8
. Other
plausible theories or other reasonable possibilities must be based on logic
and experience applied to the evidence or the absence of evidence, not on
speculation.

[65]

All of this must be considered in light of this Courts appellate role.
It is up to the trial judge to draw the line between reasonable doubt
and speculation, and his assessment can be set aside only where it is
unreasonable. In assessing his reasons, they are to be read as a whole, in the
context of the evidence, the issues and the arguments at trial (
Villaroman
at para. 15).

Expert opinion evidence

[66]

As noted above, the autopsy conducted by Dr. Litwin determined that
Mr. Planje died from internal bleeding in his skull. Dr. Litwin found
three bruises on the head, which indicated a minimum of three impacts to the
head. Two of the bruises were in the soft tissues external to the skull above
each ear and one was by the right eye. There was subdural and subarachnoid
bleeding above each ear, a bruise to the brain tissue on the left side of the
brain, but no injury to the skull under either of the two bruises above the
ears. Dr. Litwin could not say whether any of the three bruises was
related to the internal bleeding and could not opine as to how the injuries
occurred. He explained in his testimony in chief:

Often, but not always, the injury -- or the impact which
caused the bleeding within the head will also cause damage to the outside of
the head. That is bruising to the scalp or a skull fracture, for example. Mr. Planje
had three bruises to the outside of his head. I cannot determine which one of
these external markers of head trauma led to or caused the internal bleeding.

It couldve been one of them, that is to say one head impact
led to all the bleeding within the skull, it couldve been all of them in concert
which  each caused some degree of damage to the brain within the head and led
to bleeding. It could also have been neither of them because you can get
subdural bleeding, subarachnoid bleeding from an impact to the head which for
whatever reason, depending on where it occurs, depending on what surface is
contacted, does not leave external head injury.

So I cant state which one of
those three bruises on the outside of the head bear any kind of relationship to
the internal evidence of impact other than to say externally theres evidence
of head impact from a blunt force, internally theres evidence of impact to the
head from blunt force which ultimately caused his death.

[67]

He could not comment on a possible mechanism of the injury other than to
say that it was either a moving head impacting a fixed object  or a moving
object impacting a fixed head. He explained:

If the bruise to the scalp or the blunt force injury to the
external surface of the head occurs at the same location as the blunt force
injury to the brain, that is more in keeping with a scenario in which a moving
object hits a stationary head. If the external blunt force injury to the scalp
is opposite to internal brain injury, so for example the bruise is on the left
side of the scalp and there's a bruise to the brain on the right side of the
brain, that is more in keeping with a scenario in which a moving head impacts a
fixed object.

In this case there were bruises
to both sides of the head, and I believe I forgot to mention during my earlier testimony
regarding injuries to the brain there was a bruise to the brain tissue, to the
left side of the brain. But because there are bruises to both sides of the
scalp and a bruise to the left side of the brain I can't make any comment about
a possible scenario or mechanism with regards to how the head injury occurred.
That is to say a moving head impacting a fixed object versus a fixed object --
or a moving object impacting a fixed head.

[68]

In cross-examination, Dr. Litwin confirmed that there could be an injury
that causes subdural bleeding but no bruising to the skin, and a person may not
lose consciousness or become immediately disabled after such an impact;
unconsciousness could be delayed for more than 36 hours. He agreed that hitting
the head by stumbling into a door frame could cause this type of injury if
sufficiently forceful.

Discussion

[69]

The appellant submitted that the trial judge misapprehended the
pathologists evidence, as shown in para. 78 of his reasons:

[78]      The autopsy of Mr. Planjes body determined he
died from bleeding inside his skull,
likely associated with at least three
blows to his head
. Subdural hematomas were found above each ear. There was
bruising noted in the soft tissues external to the skull at these locations,
with the bruising more extensive on the left side

[Emphasis added.]

[70]

The appellant also submitted that the pathologists evidence established
other plausible theories and other reasonable possibilities which were
inconsistent with guilt, such that the Crown was required to negative them:
Villaroman
at paras. 37
‒
38.
This is so, he contends, even considering the trial judges finding that the
appellant caused the external head injuries, as Dr. Litwins evidence on
the uncertainty of the cause of death was enough to give rise to a reasonable
doubt.

[71]

The respondent submitted that the appellants argument considers the
pathologists evidence in isolation. While Dr. Litwin could not rule out
accident as a possibility from the autopsy alone, the trial judge was not
constrained in doing so upon his consideration of the evidence as a whole.
Moreover, the respondent says that the judges reasons, when read in context,
properly considered the circumstantial evidence; he rejected the appellants
theory of accident as
bare conjecture or speculation and simply pointed out that there was no
evidence to support such an inference.

[72]

In my view, the trial judge did not misapprehend the evidence, nor did
he fail to consider other reasonable possibilities that were inconsistent
with guilt. His comment at para. 78 cannot be read in isolation. Other
passages in the judgment indicate that the judge was well aware of the
limitations of Dr. Litwins evidence. At para. 79, he noted that the
cause of death was described as blunt force injuries either by blows to Mr. Planjes
head or his head coming in contact with a stationary object. At paras. 109
and 110, he begins his analysis of whether the appellant caused the death:

[109]    Counsel for the accused argues the pathologists
evidence does not establish that the bruising to Mr. Planjes head
necessarily caused the subdural hematomas that led to his death, and contends
that there is insufficient evidence that the bruising was the result of an
assault by the accused.

[110]    While it is true that
the pathologists evidence does not, with scientific certainty, rule out the
possibility that some trauma to the head, other than the blows that caused the
bruising, may have caused the bleeding inside the skull. Trauma sufficient to
cause internal bleeding may not always cause external injury. Proof to a
scientific certainty is seldom available in a question like this and the Crown
is not required to meet this standard. Here, the evidence strongly suggests
that the bruising, bilaterally above the ears, coincided with the areas of
subdural hematoma below the skull. Further, the fact that there is a
possibility blows other than the ones that caused the bruising may have caused
the death is not helpful to the accused. The evidence is clear he is
responsible for the violence perpetrated on the relatively defenceless victim.
Which of the blows might be directly responsible is irrelevant.

[73]

The appellant says that he did not ask the Crown to meet a standard of
scientific certainty but only to put the burden on the Crown to prove that some
unlawful act he committed actually caused the death, and that framing the issue
this way ignored the true impact of Dr. Litwins evidence. He also says
that the trial judges approach was flawed because it presupposed that the
appellant was responsible for any and all external head injuries that might
have caused the internal injuries, when Dr. Litwin was unable to link the
cause of death to any particular mechanism.

[74]

I disagree. Dr. Litwins evidence was but one piece of
circumstantial evidence, albeit an important one. The trial judges finding
that the internal bleeding was likely associated with at least three blows to
the head cannot be said to be a fundamental flaw that
played a
central role in his reasoning, given the totality of the evidence.
In my
view, the judges remarks at para. 110, when considered in the context of
the reasons as a whole, show that he considered the possibility of accident to
be speculative despite the fact that Dr. Litwin could not rule it out, and
that this was based not only on the evidence but also on the lack of evidence.

[75]

The judge explicitly considered and rejected the appellants submission
that the trauma to the head may have occurred accidentally:

[111]    The defence submission is that the trauma to the
head may well have occurred accidentally, perhaps when Mr. Frederickson
and Mr. Planje wrestled over the stick and both fell to the floor. The
accuseds evidence made no reference to Mr. Planje striking his head
during this supposed incident. The accuseds account was that he fell back and
pulled Mr. Planje onto him, and that Mr. Planje followed him down as
he fell, while they were both holding onto the stick. The accused said that he
got control of the stick and put it outside. At a later point, he said he never
saw Mr. Planje hit his head during this incident.

[112]    The defence submission
in this regard is bare conjecture, and I find no evidence to support the
contention there is a reasonable inference that can be drawn supporting an
accidental cause of death.

[76]

All of these passages show that the trial judge was satisfied that the
appellant assaulted Mr. Planje, at least one or more of the blows he
inflicted caused the death, and the possibility that the death was caused by
accident was
based, not on logic and experience applied to the
evidence or the absence of evidence but on speculation. In my view, the
judges reference to the lack of evidence to support an inference of accident
did not, when read in context, suggest that he put any burden on the appellant
to prove otherwise.

[77]

These findings were amply supported by the evidence as
well as the lack of evidence. The body of circumstantial evidence included the
following:

·

Mr. Planjes body was found on December 30, 2010, on a
steep slope below a forestry service road near Hope, after being missing since
December 13, 2010;

·

Mr. Planje was last seen by a neighbour in the presence of
the appellant through a window in the Residence at approximately 2:30 a.m. on
December 13, 2010. The appellant was seen to be excited and angry and to
have pushed Mr. Planje aside;

·

About two hours later, the appellant was seen by neighbours
dragging a heavy object, determined by the trial judge to be Mr. Planje,
outside the front of the Residence to the driveway where Mr. Planjes car
was parked. The car left and returned, and left again, with the appellant seen
driving after its first return;

·

Later that same day, the appellant pawned a ring belonging to Mr. Planje
and was arrested shortly thereafter;

·

The autopsy showed that Mr. Planje died a considerable time
before his body was discovered, the cause of death being bleeding inside the
skull consistent with his head hitting or being hit by a solid object, and his
body had sustained substantial bruising, many that were consistent with
defensive injuries;

·

When police executed the search warrant and entered the
Residence, they observed disarray and blood stains throughout, but particularly
prevalent in Mr. Planjes bedroom and ensuite bathroom. Many of the blood
stains were later determined to belong to Mr. Planje and to the appellant;
and

·

All of this was preceded by an incident between the appellant and
Mr. Planje on December 12, 2010, where police attended at the
Residence, arrested the appellant in an effort to calm things down, but
released him a few hours later, following which Mr. Planje gave him an
eviction notice.

[78]

The appellant admitted that he dragged Mr. Planjes body from the
Residence and transported it to the forestry road north of Hope, but denied
that he assaulted Mr. Planje in the Residence. The trial judge noted that
this admission about dragging the body was consistent with the observations of
the neighbours in the early morning hours of December 13, 2010, but he
rejected the appellants evidence generally as having no credibility. More
specifically, the judge rejected his evidence denying an assault as being
inconsistent with the blood stain pattern analysis and the DNA evidence:

[96]      I cannot accept this in light of the state of the
inside of the mobile home, the blood stain pattern analysis and the DNA record
associated with the blood stains. The accused said stains of his blood were
from a cut sustained when Mr. Planje hit him with a stick. The accused
demonstrated being hit and indicated a blow to his right hand, as he shielded
his left knee. The right hand showed a number of cuts to the fingers and
bruises to the knuckles, more injury than would be expected from being hit by
one blow from the stick, and more likely injuries resulting from use of his
right fist in the altercation with Mr. Planje. The left hand also showed
knuckle bruising and a cut, features inconsistent with no physical contact with
Mr. Planje.

[102]    The trail of Mr. Planjes
blood drop stains between the bed and the en suite, the presence of Mr. Planjes
blood in the en suite, and the evidence suggesting a clean-up are inconsistent
with Mr. Fredericksons evidence that he never saw any blood coming from Mr. Planje

[79]

By rejecting the appellants evidence on this point, the trial judge did
not give it evidentiary value, or make-weight evidence for the Crown. He was
finding facts based on other, more probative circumstantial evidence, and on
this issue the evidence of the appellant did not raise a reasonable doubt.

[80]

Dr. Litwins evidence was not all that was needed to establish the
possibility of an accidental cause of death. The trial judge did not
misapprehend this evidence, nor did he err in concluding that the possibility
of an accident did not amount to more than pure conjecture. Taking into
account the totality of the evidence, the trial judge reasonably drew the line
that separated plausible theory from speculation. The verdict cannot be said to
be unreasonable.

[81]

For all of these reasons, I would dismiss the appeal.

The
Honourable Madam Justice Fisher

I AGREE:

The Honourable Madam Justice
MacKenzie

I AGREE:

The Honourable Mr. Justice
Harris


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Chang v. Hua,

2018 BCCA 13

Date: 20180105

Docket: CA44562

Between:

Angela An-Chi Chang

Respondent

(Plaintiff)

And

Xing Xiu Hua

Appellant

(Defendant)

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice MacKenzie

On appeal from: an
order of the Supreme Court of British Columbia, dated
June 29, 2017 (
Chang v. Hua
, Vancouver Registry No. S1610493)

Oral Reasons for Judgment

Counsel for the Appellant:

J.W. Ryan

Counsel for the Respondent:

K.G. McKenzie

Place and Date of Hearing:

Vancouver, British
  Columbia

January 4, 2018

Place and Date of Judgment:

Vancouver, British Columbia

January 5, 2018

Summary:

Appeal from
a summary trial order in relation to a failed property purchase. The purchaser
alleged the vendor failed to mitigate her damages. Prior to and on the date of
the summary trial the purchaser sought an adjournment of the trial in order to
obtain allegedly pertinent document discovery and examination for discovery of
the vendor. The judge refused, finding there was sufficient evidence to decide
the issues and that the claimed discovery was, as the purchasers counsel
conceded, speculative. Held: appeal dismissed. The judge properly exercised her
discretion on the evidence before her. The appellant did not meet the test to
overturn a discretionary order and did not establish palpable error needed to
overturn the finding of fact that the vendor made bona fide efforts to sell the
property in mitigation of her damages.

[1]

KIRKPATRICK J.A.
:
This is an appeal from an
order following a summary trial which granted judgment against the appellant.
The appellants argument focuses on errors alleged to have been made by the
trial judge, when, under a separate order, she dismissed the appellants
application to adjourn the summary trial. The appellant contends the judge
erred in refusing the adjournment which, she says, would have permitted her to
obtain documents and discovery relevant to the issue of mitigation of damages.

[2]

It is unnecessary to provide an extensive recitation of
the dispute between the parties. It centred on a failed property purchase. The
respondent was the vendor of a newly-built home in Vancouver. The appellant
purchaser acknowledged that she did not complete the transaction but argued
that it had been voided by mutual agreement. In the alternative, she argued
that the vendor had failed to mitigate her damages.

[3]

The contract of purchase and sale was entered into on
June 12, 2016. The completion date was scheduled for September 28, 2016. It was
extended to October 14, 2016 on the condition that the deposit be increased by
$500,000. The increased deposit was not paid and the sale did not complete on
October 14, 2016. The vendor accepted the purchasers repudiation of the
contract of purchase and sale.

[4]

On November 14, 2016, the vendor filed a notice of
civil claim. The purchaser filed a response on December 30, 2016.

[5]

In her response to civil claim, the purchaser pleaded
that the vendor failed to mitigate her damages by rejecting the offer made by
the purchasers son, Hua Wang, following the repudiation on October 14, 2016.

[6]

The vendor provided the purchaser with her list of
documents on January 5, 2017. On February 17, 2017, the purchaser provided her
list of documents.

[7]

The property was sold to another purchaser on April 7,
2017. The vendor provided an amended list of documents to reflect the
information related to that sale.

[8]

The vendor set down her Rule 9-7 summary trial
application for May 30, 2017. The purchaser filed an application returnable on
May 30 for an order adjourning the summary trial and for an order that the
vendor attend an examination for discovery.

[9]

Mr. Justice Leask adjourned the trial to June 20, 2017.
A condition of the adjournment required the purchaser to execute and register a
$400,000
mortgage in favour of the Plaintiff on one
or more of the Defendants properties satisfactory to the Plaintiff to secure
the Plaintiffs claim. The order did not specify that examinations for
discovery be conducted or for further document production. No further
application for those orders was made by the purchaser prior to June 20, 2017.

[10]

On June 20, 2017, the purchaser applied again for an adjournment on
the basis that she needed further document disclosure and an examination for
discovery of the vendor.

[11]

The judge dismissed the application. In reasons indexed at 2017 BCSC
1096, she concluded that an adjournment was not warranted for these reasons:

[9]

The parties
have different perspectives on what led to the repudiation of the contract,
whether it was mutual or the result of unilateral action. A number of the
documents surrounding the September 28 and October 14 events, as well as
communications between the parties, have been brought to my attention. In light
of these materials, I am satisfied that the further documents sought by counsel
for the defendant and the desire to examine the plaintiff, are not of
sufficient grounding to warrant an adjournment of the summary trial
application.

[10]

Indeed, in
his submissions before me, counsel for the defendant indicated that he has no
substantive foundation on which to show that relevant documents other than what
the plaintiff has already produced to him exist, or will shed light on issues
that the Court must determine in assessing the merits of the plaintiffs claim.
He speculates that further documents might exist, but until an order for
production is made or the plaintiff is discovered, he will not know.

[11]

This is not
a sufficient basis on which to grant an adjournment of the summary trial, or
make the other orders that the defendant seeks in her Notice of Application. I
decline to grant her application in its entirety. The defendant has not
persuaded me that the additional steps sought will likely result in information
and/or evidence of probative value to the main issues in dispute between the
parties, including mitigation of the loss alleged to have been sustained by the
plaintiff.

[12]

In making
this ruling, I am also alive to the plaintiffs concerns about decreasing
equity in the property against which the $400,000 mortgage has been registered.
At present, the assessed value of this property stands at approximately
$4,917,000. In addition to the plaintiffs mortgage, the property has two other
mortgages registered against it, in the cumulative value of $6.5 million.
Justice Leask made the order in favour of a $400,000 mortgage, presumably
satisfied that there was sufficient equity in the property to ensure that the charge
had meaning. The evidence before me is that since then, the defendant has
continued to borrow against her various properties, including this one. As
such, I am satisfied that the summary trial should continue on track, as
planned, with a view to a determination on the merits.

[12]

The judge proceeded to hear the summary trial. She
concluded that she was able to find the facts necessary to decide the relevant
issues. She stated:

[49]
There are very few material
facts in dispute. The parties agree there was a contract for purchase and sale;
they agree that the first closing date came and went without completion; and,
they agree that both parties executed an addendum to the contract extending the
closing date to October 14, 2016.

[51]

The
Application Record contains all of the documents that were executed by, and
exchanged between the parties for both the September 28 and October 14
completion dates. In my view, these documents provide a sufficient evidentiary
basis from which to assess and determine any credibility issues that may arise
on the parties competing versions of events. The documents speak for
themselves.

[52]

The further
documents sought by the defendant, either through a production order or
examination of the plaintiff, do not speak to the dealings between the parties;
rather, they relate to alleged conversations and/or dealings that the plaintiff
may have had with third parties during this same time-frame.

[53]

I dismissed
the defendants adjournment application because counsel for the defendant was
not able to satisfy me that these documents, if they exist, would shed light on
the issues to be decided. The defendant argued that if the plaintiff was
considering other (and potentially better) offers to purchase her home on
September 28 or October 14, this speaks volumes about whether she was, in fact,
ready, willing and able to complete. However, he acknowledged that he was only
speculating on whether materials to this effect would be found.

[56]

I did not
consider speculation a sufficient basis on which to grant the defendants
adjournment request; similarly, I do not consider it a sufficient basis on
which to refrain from deciding this matter by way of summary trial.

[57]

Although
there is a substantial amount of money at stake, the issues are relatively
straightforward; the governing legal principles for resolution of the dispute
are settled; and, there is a comprehensive documentary foundation available for
the purpose of the Courts fact-finding. Proceeding with a summary trial in
these circumstances is consistent with the object of the
Rules.

[13]

In the result, the judge found that the defendant breached the
contract by failing to complete. She awarded the plaintiff $583,671.33 in
damages, consisting of the difference between the original purchase price and
the ultimate sale price; property taxes; insurance; and mortgage interest.

[14]

As I have noted, in her factum and at the hearing of the appeal, the
purchaser insisted that she had been deprived of her opportunity to establish
that the vendor had failed to mitigate her damages. Specifically, the purchaser
contends that the vendor failed to provide the documents demanded in a letter,
dated May 15, 2017:

We
require you to provide us with all correspondence including We-chat, emails,
faxes, letters, Whats-up and any other communication to and from the Realtor
for the Plaintiff, and her Attorney and the Plaintiff, and the Realtor for the
Plaintiff and the Realtor for the Defendant and the Realtor for the Plaintiff
and the Attorney pursuant to Rule 7-1-10 and 11.

We
require all offers either by contract of purchase and sale or other written
means and whether or accepted or not and including counter offers and all
correspondence relating to any offer or counter offer received by the Realtor
for the Plaintiff and all communications relating to those offers and counter
offers between the Realtor and the Plaintiff, the Realtor and the Attorney and
the Attorney and the Plaintiff from June 1, 2016.

We
require these documents to determine whether there was any acceptance by the
Vendor of the addendum dated September 28, 2016 which was relayed to the
Defendant or her Realtor.

We
require the documents to determine what offers were received from June 1, 2016
to the present.

We
require the documents to determine whether the offer of Wang Hua was forwarded
to the Plaintiff by her realtor and the response to determine as why the
Plaintiff failed to consider that offer in order to mitigate her damages.

[15]

The
vendors position was that all relevant documents had been produced and the
requested documents were, if they existed, irrelevant or were third party
documents outside the possession or control of the vendor and available to the
purchaser on demand to the third party realtor.

[16]

In my opinion, the purchaser has on
appeal attempted to broaden the ambit of her defence of mitigation beyond that
pleaded and argued before the trial judge. The trial judge had before her all
of the evidence brought to our attention. She gave thorough and considered
reasons on the basis of the evidence. She concluded:

[96]
Furthermore,
while a plaintiff must prove damages and their quantum, the burden of proof
moves to the defendant if he alleges that the plaintiff could have and should
have mitigated his loss:
Hargreaves,
at para. 2, referencing
Janiak v. Ippolito,
[1985] 1 S.C.R.
146 at 162.

[97]      The defendant does not take issue
with the plaintiffs calculation of her alleged damages. Rather, she argues
that the plaintiff failed to mitigate. In particular, she says the plaintiff
should have accepted the offers to purchase that were put forward by the
defendants son in October and November 2016.

[98]      On the evidence, there is no
indication that the plaintiff did anything other than make
bona fides
efforts to sell the property for a reasonable price after the defendant
repudiated the contract. The only thing the defendant points to as evidence to
the contrary is the plaintiffs refusal to accept the two offers put forward by
her son in October and November 2016, respectively.

[99]      I do not consider the plaintiffs
refusal to accept these offers unreasonable. The proposed new purchaser and the
defendant were closely connected. Two completion dates had already come and
gone without follow- through on the part of the defendant. Plus, she failed to
pay the $500,000 increase in deposit after the September 28 extension.

[100]    Within
this context, it is not surprising that the plaintiff declined to reengage
with the same family unit. I also note that as a term of his offers, the
defendants son demanded that the $190,000 deposit paid by his mother be
released and applied to the new contract for purchase and sale. This would
require that the plaintiff forfeit her right to claim the
deposit, which she was entitled to as a result of the defendants repudiation
and based on the clear wording of the agreement. This was not a precondition
that the plaintiff had any obligation to accept.

[17]

In my opinion, the purchaser has failed to demonstrate that the
judge erred in refusing the application to adjourn or to require the vender to
produce documents and attend discovery. This was a straightforward case. The
judges refusal was essentially grounded in her conclusion that the purchasers
request was based on speculation and, if granted, would amount to a fishing
expedition.

[18]

The judges decision to refuse the adjournment involved an exercise
of judicial discretion. Bound up in that decision was the judges apprehension
that the documents said by the purchaser to be vital to the question of
mitigation were unnecessary in order to decide the case. Similarly, as a case
that rested on documentary evidence, the examination for discovery of the
vendor would not aid the purchaser. In my opinion, the purchaser has not
satisfied the test she must meet in order to overturn a discretionary order  misdirection,
acting on wrong principle or irrelevant considerations, or so clearly wrong as
to amount to an injustice. (See
Tyson Creek Hydro Corporation v. Kerr Wood Leidal Associates
Limited,
2014 BCCA 17 at para. 4).

[19]

Further, the purchaser asks us to overturn the judges
finding of fact that, on the evidence, there was no indication that the vendor
did anything
other than make
bona fide
efforts to sell the property for a reasonable price after
the purchasers repudiation.

[20]

In my opinion, that finding was available on the evidence before the
judge. Absent palpable error, of which none has been demonstrated, we cannot
overturn such a finding of fact.

[21]

I would dismiss the appeal with costs to the vendor.

[22]

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

[23]

MACKENZIE
J.A.
: I agree.

[24]

BAUMAN C.J.B.C.
: The appeal is dismissed in accordance with the
reasons of Madam Justice Kirkpatrick.

The Honourable Madam
Justice Kirkpatrick


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Molberg v. British Columbia (Superintendent of Motor
  Vehicles),

2018 BCCA 12

Date: 20180105

Docket: CA44499

Between:

David Edward Knud
Molberg

Respondent

(Petitioner)

And

The Superintendent
of Motor Vehicles

Appellant

(Respondent)

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Newbury

The Honourable Madam Justice Kirkpatrick

On appeal from:  An
order of the Supreme Court of British Columbia, dated
May 16, 2017 (
Molberg v. British Columbia (Superintendent of Motor Vehicles)
,
2017 BCSC 807, Vancouver Registry S156815).

Oral Reasons for Judgment

Counsel for the Appellant:

A.K. Harlingten

Counsel for the Respondent:

K. Lee

Place and Date of Hearing:

Vancouver, British Columbia

January 5, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 5, 2018

Summary:

A driver was issued an
immediate roadside driving prohibition, which was confirmed in a review hearing
before a delegate of the Superintendent of Motor Vehicles. Subsequent to the
hearing, the driver discovered fresh evidence undermining the reliability of
the approved screening device used to issue the prohibition. On judicial review
the chambers judge ordered that the Superintendent reopen the review hearing to
consider the fresh evidence. The Superintendent appealed. Held: Appeal allowed.
The chambers judge had no jurisdiction to grant an order in the nature of
mandamus when the Superintendent was not under a legal duty to reopen the
hearing.

Overview

[1]

BAUMAN C.J.B.C.
:
The Superintendent of
Motor Vehicles challenges the order of Justice MacNaughton, pronounced 16 May
2017, requiring the Superintendent to reopen the application of Mr. Molberg
to review his driving prohibition, and to consider the fresh evidence Mr. Molberg
seeks to adduce in support of his application. The Superintendent alleges that
the chambers judge erred by (1) failing to consider evidence tendered by the
Superintendent regarding the credibility and likely impact of Mr. Molbergs
fresh evidence, and (2) failing to subject Mr. Molbergs evidence to the
same standard applied to the Superintendents evidence thereby placing the
burden of proof on the Superintendent to show that the evidence presented by
Mr. Molberg did not require reopening his application.

Facts

[2]

On 16 July 2015, Mr. Molberg failed a test
for impaired driving on an approved screening device (ASD) and was issued an
immediate roadside driving prohibition (IRP) pursuant to s. 215.41 of
the
Motor Vehicle Act
, R.S.B.C. 1996, c. 318.

[3]

Mr. Molberg then brought an application to the
Superintendent for review of the IRP which was heard orally on 27 July 2015. As
part of the review, the peace officer who issued the IRP provided the
Superintendent with a calibration certificate for the ASD used on Mr. Molberg.
The certificate indicated that the dry gas alcohol standard canister used to
calibrate the ASD was manufactured by Airgas, and part of lot number AG429301
with an expiry date of 20 October 2016.

[4]

On 6 August 2015, a delegate of the
Superintendent confirmed the IRP. On that same date, Mr. Molberg applied
for judicial review of the decision, which was later granted.

Decision under appeal

[5]

Mr. Molbergs petition set out several
grounds for review, however the sole issue put to the chambers judge was for an
order that the Superintendent reopen the review of Mr. Molbergs
application on the basis of fresh evidence.

[6]

Mr. Molberg sought to introduce three
calibration certificates that were used in other IRP cases which list three
different expiry dates for dry gas alcohol standard canisters from lot
AG429301: 12 September 2015, 17 September 2015, and 20 October 2015. None of
these dates matched the expiry date of the canister used to calibrate the ASD
used on Mr. Molberg. The purpose of the fresh evidence was to call into
question the accuracy of the ASD result in Mr. Molbergs case.

[7]

After reviewing the factual and legal background
of the petition, the chambers judge then discussed the appropriate test to be
applied when making an order for the Superintendent to reopen the review of an
IRP to consider fresh evidence. The chambers judge held that such an order
should be made when the interests of justice require it and be informed by
the criteria set out in
Palmer v. The Queen
, [1980] 1 S.C.R. 759.
Moreover, given the proximity of the IRP regime to criminal law, the
Palmer
criteria should not be applied strictly in the context of the Mr. Molbergs
petition.

[8]

The chambers judge then addressed the four
criteria from
Palmer
. She found that the fresh evidence was not
available at the time of the review through due diligence given that an access
to information request for the three other certificates could not have been
processed in time. The chambers judge also found that the evidence was relevant
since it spoke to the accuracy of the ASD result, which is a decisive issue in Mr. Molbergs
challenge to the imposition of the IRP. The fresh evidence was also credible in
that the certificates were intended to be relied on by peace officers and the
Superintendent.

[9]

The central point of disagreement between the
parties was on whether the fresh evidence could reasonably be expected to
affect the result.

[10]

In response to Mr. Molbergs petition, the Superintendent filed
two affidavits which sought to show that the expiry date of 20 October 2016 for
the dry gas alcohol standard used in Mr. Molbergs case was the correct
expiry date for the canisters from lot AG429301.

[11]

The affidavit of Ms. Fritz, a Ministry of Justice paralegal,
detailed steps taken by her to inquire into the correct expiry date of the
canisters from lot AG429301. Her affidavit included a photo of a canister with
that lot number listing the expiry date as 20 October 2016. Her affidavit also
attached a certificate of analysis produced by the manufacturer and available
through a website which lists the same expiry date for canisters from that lot
number.

[12]

The affidavit of Mr. Roberts, the Deputy Superintendent of
Motor Vehicles, discussed how a partial review of IRP files involving canisters
from lot AG429301 all indicated the correct expiry date was 20 October 2016.

[13]

The Superintendent took the position that this evidence impacted the
credibility of Mr. Molbergs fresh evidence to address the issue of ASD
reliability, or demonstrated that the fresh evidence would be unlikely to
impact the outcome of a subsequent review.

[14]

The chambers judge held that she should not consider the
Superintendents evidence when weighing the credibility or likely impact of Mr. Molbergs
fresh evidence, as the statutory scheme strictly limits the evidence that may
be considered by the Superintendent on a review, and the Superintendents
evidence would not actually be admissible in that context. To consider the
Superintendents evidence would improperly shift the adjudication of the
credibility and weight of Mr. Molbergs evidence from the Superintendent
to the courts.

[15]

As well, the chambers judge found specific problems with the
affidavits tendered by the Superintendent. The attachments from a website
included with Ms. Fritzs affidavit were hearsay and her affidavit does
not indicate that she conducted the actual search for them. The chambers judge
also wrote that she could not assess whether the partial review discussed by Mr. Roberts
was truly a random sample or affected by a result-oriented bias given that he
appeared to form an opinion as to the likely outcome of the search in advance.

[16]

As a result, the chambers judge ordered the Superintendent to reopen
the review of Mr. Molbergs IRP to consider the fresh evidence.

Submissions

[17]

The Superintendent initially raised two issues
on appeal:

1.   Did the chambers judge err by relaxing the
Palmer
test
and not considering the evidence tendered by the Superintendent that addressed
the credibility and likely impact of Mr. Molbergs fresh evidence?

2.
Did the chambers judge err by failing
to subject Mr. Molbergs fresh evidence to the same standard as she
applied to the Superintendents evidence thereby placing the burden of proof on
the Superintendent to show why Mr. Molbergs evidence should not justify
reopening the hearing?

[18]

Before
the hearing of the appeal, the division asked counsel by memorandum through the
scheduling administrator to consider whether the relief sought by Mr. Molberg
was essentially in the nature of an order for
mandamus
directing the
Superintendent to reopen the hearing before him, and whether the chambers judge
had the authority to grant such an order.

[19]

The
division said this:

Please provide counsel with a copy of this memorandum.

The division of the Court that is to hear this appeal would
like the parties to consider whether the relief sought by the respondent was
for an order in the nature of
mandamus
, and whether the chambers judge
had the authority to grant such an order.

In particular, the division would
like the parties to consider whether the order sought by the respondent
requires the Superintendent to act
ultra vires
, and how the decision in
Stenner
v. British Columbia (Superintendent of Motor Vehicles)
, 2016 BCSC 1690, and
the Superintendents decision that the
Motor Vehicle Act
, R.S.B.C. 1996,
c. 318, does not authorize the Superintendent to re-open a hearing, limit
the availability of a
mandamus
order. In
Berg v. British Columbia
,
2006 BCCA 146 at para. 15, this Court held that
mandamus
was not
available where a decision-maker was not under a public legal duty to take the
action ordered, citing
Apotex Inc. v. Canada (Attorney General)
(1993),
[1994] 1 F.C. 742 (Fed. C.A.).

[20]

We
have received further submissions from counsel on this point. The
Superintendent adopts the position, based on the issues raised in our
memorandum, that the chambers judge had no authority to order the
Superintendent to reopen the hearing. The relief granted was an order in the
nature of
mandamus
which could not be issued in the circumstances as the
Superintendent was under no legal duty to reopen the hearing. Mr. Molberg
demurs.

[21]

I
am of the view that the Superintendent is correct. As the law now stands (on
the basis of
Stenner v. British Columbia (Superintendent of Motor Vehicles)
,
2016 BCSC 1690), the Superintendent has reasonably concluded that he does not
have the jurisdiction to reopen a concluded hearing. We take that to be the law
as
Stenner
was not appealed and its correctness is not now before us.

[22]

Mr. Molberg
in his application asked the court for an order reopening the Petitioners
hearing. The order granted was in these terms:

1.         the Superintendent of
Motor Vehilces [
sic
] must reopen the application of the petitioner to
review the driving prohibition issued pursuant to Section 215.41 of the
Motor
Vehicle Act
on July 16, 2015, to consider the fresh evidence the petitioner
seeks to adduce.

[23]

This
is clearly an order in the nature of
mandamus
purporting to compel the
performance of a public legal duty (the very essence of
mandamus
).

[24]

Mr. Molberg
had also sought in his petition an order setting aside the decision of the
delegate of the Superintendent and remitting the matter back for a rehearing,
but that relief was abandoned and the chambers judge expressly did not deal
with it. So all that was before the chambers judge was the request for relief
in the nature of
mandamus
to the effect I have described. In oral
submissions Ms. Lee suggested that what was implicitly before the chambers
judge was an application to quash the Superintendents decision on its merits
with a direction that he rehear the matter. I cannot accede to that
characterization of the proceedings or the order of the chambers judge.

[25]

To
grant the orders actually sought would be to purport to direct the
Superintendent to act outside his jurisdiction at law. That cannot be directed;
the Superintendent is not under a public duty to take the action ordered;
mandamus
cannot lie:
Berg v. British Columbia
, 2006 BCCA 146 at para. 15.
Ms. Lee submits that there is indeed a legal duty on the Superintendent that
could found an order in the nature of
mandamus
and that is a duty of
fairness. It is more accurate to say that fairness is in the context of the
statutory process. It is not the basis for orders in the nature of
mandamus
.
It is the basis for potential orders in the nature of
certiorari
quashing
administrative action.

[26]

For
these reasons, I would allow the appeal. In the circumstances, it is not
necessary to deal with the other submissions of the parties.

[27]

NEWBURY
J.A.
: I agree.

[28]

KIRKPATRICK
J.A.
: I agree.

[29]

BAUMAN
C.J.B.C.
: The appeal is allowed for the reasons indicated.

[30]

We thank counsel for their very excellent submissions as we have come to
expect as usual from them.

The
Honourable Chief Justice Bauman