COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Pakozdi v. B & B Heavy Civil Construction Ltd.,

2018 BCCA 23

Date: 20180119

Docket: CA43758

Between:

David Pakozdi

Respondent/
Appellant on Cross Appeal

(Plaintiff)

And

B & B Heavy
Civil Construction Ltd.

Appellant/
Respondent on Cross Appeal

(Defendant)

Before:

The Honourable Madam Justice Stromberg-Stein

The Honourable Mr. Justice Savage

The Honourable Mr. Justice Hunter

On appeal from:  An
order of the Supreme Court of British Columbia, dated June 3, 2016 (
Pakozdi
v. B & B Heavy Civil Construction Ltd.
, 2016 BCSC 992, Vancouver Docket
S151128).

Counsel for the Appellant:

M. Pierce

Counsel for the Respondent:

R.B. Johnson

Place and Date of Hearing:

Vancouver, British
  Columbia

November 7, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 19, 2018

Written Reasons by:

The Honourable Mr. Justice Hunter

Concurred in by:

The Honourable Madam Justice Stromberg-Stein

The Honourable Mr. Justice Savage

Summary:

The employer in a wrongful
dismissal suit appeals the damage award on the basis that the employee suffered
no loss from the termination because he had earned increased consulting income
during the notice period. The employer also appeals the length of the notice
period. The employee cross-appeals on the failure to award any damages for the
loss of a matching program for RRSP payments. Held: Appeal and cross-appeal
allowed in part. The trial judge erred in excluding all post-termination income
from the calculation of damages and erred by awarding damages based on an eight
month notice period for a 12 month employee. The employee is entitled to an
award for the loss of the opportunity to participate in the matching program.

Reasons for Judgment of the Honourable
Mr. Justice Hunter:

[1]

An employee of indefinite duration who is discharged with inadequate
notice is entitled to damages for breach of contract for losses arising from
the breach that were not avoidable through reasonable mitigation and were not actually
avoided through the employees mitigation efforts.

[2]

The respondent David Pakozdi was employed by the appellant for about a
year, during which he also generated independent consulting income with the
knowledge and consent of the appellant. After his termination, Mr. Pakozdi
continued to receive consulting income, but increased his earnings considerably
during the notice period.

[3]

The trial judge held that the post-termination earnings should be
disregarded when calculating damages arising from the inadequate notice Mr. Pakozdi
received. Whether that was an error of law is the central question in this
appeal.

[4]

In addition to the mitigation question, the appellant challenges the
notice period assessed by the trial judge, and Mr. Pakozdi cross-appeals
on one head of damage denied to him.

Background

[5]

Mr. Pakozdi is an experienced bid estimator and construction professional.
As an estimator he prepares competitive tenders and competes for projects on
behalf of construction firms. He worked for various firms until July 2013, when
he decided to set up his own business as a private consultant. At the time of
trial, he was 55 years of age.

[6]

In November 2013, he contacted the appellant, B & B Heavy Civil
Construction Ltd. (B & B) to offer his services at a time when B & B
was looking for a bid estimator to join the firm. At that time Mr. Pakozdi
expressed a preference for working on a contract basis as a consultant and the
parties proceeded on that basis for a month or so.

[7]

In mid-December, B & B again raised the subject of Mr. Pakozdi
joining the firm as an employee and this time Mr. Pakozdi expressed
interest. This culminated in an employment agreement in early January 2014.

[8]

The term of the employment contract was an issue at trial, but the trial
judge concluded that the employment had no fixed term and was a contract of
indefinite duration. That conclusion is not challenged in this appeal.

[9]

When he commenced employment, Mr. Pakozdi advised B & B that he
wished to continue to provide consulting services to some of his clients,
particularly a client named Mainroad. B & B acceded to that request. At the
time, B & B had a policy that employees could pursue outside employment,
including self-employment, provided such employment did not unduly interfere
with the employees regular duties with B & B or create a conflict of
interest.

[10]

During the latter part of 2014, Mr. Pakozdi provided services to
Mainroad without objection by B & B. He also suffered some health setbacks
arising from old injuries but the evidence was that B & B accommodated him
when he needed time off work as a result of these injuries.

[11]

In January 2015, B & B terminated Mr. Pakozdis employment and provided
him with severance of $5,000, which equates to about two weeks notice. No
cause was alleged. Mr. Pakozdi sued for wrongful dismissal.

[12]

At the time of his dismissal, Mr. Pakozdi was earning $130,000 per
year, or $10,833 per month, from his employment with B & B, and had earned
additional revenues from Mainroad in the five months prior to his dismissal.
The earnings from Mainroad varied from month to month. The most productive
month was October 2014, when Mr. Pakozdi worked 96 hours and generated
$9,600 from his consulting work for Mainroad.

The Trial Judgment

[13]

The principal issue for the trial judge was whether the employment
contract was a five-year term contract as Mr. Pakozdi alleged or a contract
of indefinite duration as asserted by B & B. The trial judge concluded that
the evidence did not support a five-year term contract.

[14]

The trial judge then turned to the proper length of notice for
termination. After reviewing the circumstances and authorities, she initially
concluded as follows:

[72]      In my
view, in light of his experience, age and length of employment, the applicable
notice period is five months. However, the plaintiff emphasizes that he was
vulnerable at the time of his firing, and that should be taken into account to
lengthen the reasonable notice

[15]

The trial judge gave effect to this submission. Citing
Ostrow
v. Abacus Management Corporation Mergers and Acquisitions
, 2014 BCSC 938,
the judge increased the period of notice by an additional three months to eight
months in total on the basis that Mr. Pakozdis physical and medical
condition would make it more difficult for him to obtain new employment and
accordingly, he was in a position of vulnerability that was known to his
employer.

[16]

The trial judge then turned to the mitigation issue and the argument of
B & B that Mr. Pakozdi had mitigated his loss to the extent that he
was not entitled to any damages. She summarized the positions of the parties in
this way:

[77]      The defendant alleges that the
plaintiff has mitigated his loss to the extent that he is not entitled to any
damages. The defendant submits Mr. Pakozdi earned more after termination
in three months than he would have at B & B, and therefore he is not
entitled to any compensation, or only a nominal amount:
Strauss v. Albrico
Services (1982) Ltd.
, 2008 BCCA 173;
Davidson v. Tahtsa Timber Ltd.
,
2010 BCCA 528.

[78]      The plaintiff agrees he has a duty to
mitigate, but emphasizes the burden of proof is on the defendant to show he has
not done so:
Szczypiorkowski v. Coast Capital Savings Credit Union
, 2011
BCSC 1376.

[79]      The plaintiff says his physical and
mental condition is a relevant consideration:
Systad v. Ray-Mont Logistics
Canada Inc
., 2011 BCSC 1202. In that case, even though the plaintiff made
only minimal efforts to find employment, it was not found that he failed to
mitigate. The plaintiff was recovering from a knee operation and the court said
it was reasonable to take that and the possibility of future surgeries into account.

[80]      I find
this reasoning applies to Mr. Pakozdi and the difficulty he now faces from
his physical injuries and his medication, which exacerbates his difficulties in
finding other employment.

[17]

She then cited
Redds Roadhouse Restaurants Ltd. v.
Randall
, 2014 BCSC 1464, for the proposition that
where the employer was aware that the employee would be working at two jobs it
was proper to exclude from the calculation of damages the post-termination income
from the second job. Accordingly, she made no deduction for the
post-termination consulting earnings of Mr. Pakozdi.

[18]

The final issue addressed by the trial judge that is relevant to this
appeal was whether Mr. Pakozdi was entitled to 5% of his wages through the
companys RRSP matching program. The trial judge concluded that he was not
entitled to this head of damage because there was no evidence that Mr. Pakozdi
was making RRSP contributions during the notice period.

Issues on Appeal

[19]

There are three issues contested by the parties on this appeal:

(i)       B & B says that the
trial judge erred in awarding Mr. Pakozdi damages based on an eight month
notice period when he was only employed for 12 months;

(ii)      B & B says that the
trial judge erred in not deducting all or part of Mr. Pakozdis
post-termination earnings on the basis that they were replacement earnings and
constituted at law avoided loss; and

(iii)      Mr. Pakozdi says on
cross-appeal that the trial judge erred by not awarding any damages for the
loss of the opportunity to participate in the RRSP matching program during the
notice period.

The Notice Period

[20]

The trial judge determined the proper notice period in two steps. First
she considered Mr. Pakozdis length of service and the other circumstances
of the case and concluded at para. 72 of her judgment that the applicable
notice period is five months. She then added three months for what was
characterized as Mr. Pakozdis vulnerability, making a total of eight
months for a 12 month employee.

[21]

In the absence of an error of law or principle, the standard of review
of an award of damages is reasonableness:
Lau v. Royal Bank of Canada
,
2017 BCCA 253 at para. 36.

[22]

The leading judgment on what constitutes reasonable notice of
termination is Chief Justice McRuers statement of principles in
Bardal v.
Globe & Mail Ltd.
(1960), 24 D.L.R. (2d) 140 at 145 (Ont. H.C.):

There can be no
catalogue laid down as to what is reasonable notice in particular classes of
cases. The reasonableness of the notice must be decided with reference to each
particular case, having regard to the character of the employment, the length
of service of the servant, the age of the servant and the availability of
similar employment, having regard to the experience, training and
qualifications of the servant.

[23]

The trial judge gave consideration to these factors in her initial
decision that the applicable notice period was five months, but then added
three months to the notice period because of what she characterized as Mr. Pakozdis
vulnerability.

[24]

Two issues arise from this approach: whether a notice period of eight
months is within the range of reasonableness for an employee of 12 months in
the circumstances of this case, and whether the approach of adding on an amount
in respect of the respondents medical condition is supportable.

[25]

The appellants position is that for a short-term employee of a year or
less, a notice period of two to three months is the range of reasonableness
that has been established in this jurisdiction. There is support for that
position in the jurisprudence.

[26]

In
Saalfeld v. Absolute Software Corporation
, 2009 BCCA 18, a
nine month employee was awarded damages based on five months notice. This
court reviewed the recent jurisprudence in this province and made the following
comment:

[15]       Absent
inducement, evidence of a specialized or otherwise difficult employment market,
bad faith conduct or some other reason for extending the notice period, the
B.C. precedents suggest a range of two to three months for a nine-month
employee in the shoes of the respondent when adjusted for age, length of
service and job responsibility

[27]

Notwithstanding this comment, the five month notice period was upheld,
primarily as the employee had required nine months to find employment after her
termination. This Court regarded the notice period as on the very high end of
an acceptable range but not unreasonable (at para. 18).

[28]

The two or three month range was applied by this Court in
Hall v.
Quicksilver Resources Canada Inc.
, 2015 BCCA 291, in which a seven month
notice period for a nine month employee was reduced to three months.

[29]

More recently, a 14 month employee who had been awarded damages based on
a six month notice period had the period reduced to four months in
Cabott v.
Urban Systems Ltd.,
2016 YKCA 4. The Court commented that:

[18]       Accepting
the description of the range of notice for specialized employees in short term
positions as two to three months as observed in
Saalfeld
and
Hall,
the
character of this employment would justify an award modestly beyond that range.

[30]

In my view, the initial assessment by the trial judge that the
applicable notice period is five months is within the range of reasonableness
having regard to this jurisprudence, though perhaps on the high side. Adding
three months for the respondents vulnerability takes the notice period outside
the range of reasonableness unless there are very special circumstances that
could support this assessment.

[31]

The trial judge explained the basis for the additional three months
notice period in these terms:

[75]      The
vulnerability comes from the fact that B & B was aware and accommodating of
Mr. Pakozdis condition. When he searches for new employment, he needs to
be candid with employers about his now worsened medical condition, and I agree
with his position that it will make him less attractive as a candidate. In my
view, this justifies lengthening his period of notice.

[32]

I cannot agree that an employees worsened medical condition provides
a basis for increasing the notice period beyond the period assessed by
reference to the
Bardal
factors, particularly in circumstances where the
employee was able to and did in fact work full-time during the notice period
and beyond.

[33]

Justice Goepel dealt with a similar argument in
Waterman v. IBM
Canada Limited
, 2010 BCSC 376, affd on other grounds 2013 SCC 70:

[23]      Mr. Watermans
health is not a factor to increase the notice period. In that regard, I adopt
the comments of McLachlin J. (as she then was) in
Nicholls v. Richmond
(Township)

(1984),
52 B.C.L.R. 302 (S.C.)
at
309-10
in which she held that the employee was not entitled to an
increased notice period due to ill health.

[34]

It may be that in an appropriate case an employees health could be
relevant to the assessment of reasonable notice (as opposed to an independent
factor increasing the notice period), but I can see no basis on which it would be
a relevant consideration in this case. Mr. Pakozdi was working throughout
his notice period and was not required to search for new employment. When Mr. Pakozdi
was hired by B & B, he had a consulting business on the side. He continued
to work in his consulting business while employed with B & B, and after his
dismissal he carried on his consulting business on an accelerated basis.

[35]

In my opinion, Mr. Pakozdis medical condition was not a proper
basis on which to extend the five month notice period to eight months, which is
outside the range of reasonableness for an employee in Mr. Pakozdis
circumstances. I would allow the appeal on this ground to the extent of
reducing the notice period to five months, as the trial judge initially
determined.

The Mitigation Issue

[36]

In the assessment of damages for breach of contract, mitigation can
arise in one of two ways. First, it can be argued that the claimant could have
reduced the loss by taking reasonable steps to replace the lost income through
new employment. This is somewhat awkwardly referred to as the duty to
mitigate but would be more accurately expressed as the principle that the
party not in breach cannot recover for avoidable loss.

[37]

Avoidable loss is not an issue in this case.

[38]

The second way in which principles of mitigation can lead to a reduction
in damages for breach of contract arises when the party not in breach does in
fact reduce the loss by replacing the income with new income that would not
have been earned if the employment relationship had continued. This is termed
avoided loss and is the issue raised by B & B in this appeal.

[39]

B & Bs argument is that after his dismissal, Mr. Pakozdi
ramped up his consulting business and replaced the employment income he would
have earned with B & B during the notice period with consulting income. If Mr. Pakozdi
has effectively avoided the loss, he cannot recover from B & B.

[40]

To support this argument, B & B relies on the evidence of the
increased consulting work Mr. Pakozdi did after termination of his
employment with B & B.

[41]

The evidence was that prior to his dismissal, Mr. Pakozdi worked
the following hours and generated the following income from Mainroad:

Month

Hours worked for Mainroad

Fees billed to Mainroad

August 2014

39.0

$3,900

September 2014

68.5

$6,850

October 2014

96.0

$9,600

November 2014

88.0

$8,800

December 2014

17.5

$1,750

[42]

Following his dismissal, the evidence was that Mr. Pakozdi worked
the following hours and generated the following income from Mainroad:

Month

Hours worked for Mainroad

Fees billed to Mainroad

January 2015

46.0

$4,600

February 2015

156.0

$15,600

March 2015

177.0

$17,700

April 2015

153.0

$15,300

May 2015

196.0

$19,600

June 2015

189.0

$18,900

[43]

The trial judge did not give effect to this argument. She took the view
that the judgment of my colleague Justice Savage in
Redds Roadhouse
Restaurants Ltd. v. Randall
, 2014 BCSC 1464 established the principle that
when an employee had, to the knowledge of the employer, been working at two
jobs prior to the dismissal and continued working at the second job after
dismissal, it was proper to exclude the earnings from the second job from the
calculation of damages for wrongful dismissal from the first job.

[44]

Before us, Mr. Pakozdi supported this approach by reference to the
following passage from a recent Ontario Court of Appeal judgment,
Brake v.
PJ-M2R Restaurant Inc.
, 2017 ONCA 402:

[140]    In a wrongful dismissal action, an
employer is generally entitled to a deduction for income earned by the
dismissed employee from other sources during the common law notice period.
However, as Rand J. explained in
Karas v. Rowlett
,
[1944] S.C.R. 1
, at p. 8
,
for income earned by the plaintiff after a breach of contract to be deductible
from damages, the performance in mitigation and that provided or contemplated
under the original contract must be mutually exclusive, and the mitigation, in
that sense, is a substitute for the other. Therefore, if an employee has
committed herself to full-time employment with one employer, but her employment
contract permits for simultaneous employment with another employer, and the
first employer terminates her without notice, any income from the second
employer
that she could have earned while continuing with the first
is
not deductible from her damages: see S.M. Waddams,
The Law of Damages
,
loose-leaf (Rel. Nov. 2016), 2d ed. (Toronto: Canada Law Book, 1991), at para. 15.780.

[Emphasis added.]

[45]

I have emphasized the qualification in
Brake
that it is post-termination
income from the second employer that
could have been earned while continuing
with the first employer
that is not deductible from her damages, not simply
all earnings from the second employer.

[46]

In my opinion, the principle as stated by the trial judge is too categorical.
It is not
all
income from the second job that is excluded from the
damage calculation, but rather income from the second job that could have been
earned had the employment from the first job continued. In other words, the
question is whether the new income is replacement income regardless of the
source of the income or a continuation of supplementary income being earned
prior to the dismissal. I do not see the judgment in
Redds Roadhouse
as
inconsistent with this principle.

[47]

The Ontario Court of Appeal in
Brake
was alive to this
distinction, pointing out that:

[145]
Whether Ms. Brakes
Sobeys income exceeded an amount that could reasonably be considered as
supplementary and, therefore, not in substitution for her employment income
was not argued. On the facts of this case, the amounts received from Sobeys do
not rise to such a level that her work at Sobeys can be seen as a substitute
for her work at PJ-M2R. I leave for another day the question as to when
supplementary employment income rises to a level that it (or a portion of it)
should be considered as a substitute for the amounts that would have been
earned under the original contract and, accordingly, be treated as deductible
mitigation income.

[48]

B & B argues that the question left for another day in
Brake
arises squarely in the case at bar. The argument is that because in each of the
months following the month of dismissal, Mr. Pakozdi earned more from his
consulting job than he would have earned with B & B, he has successfully avoided
the loss arising from termination and is not entitled to any damages from B
& B.

[49]

That proposition also is too categorical because it fails to take into
account the fact that at least some of the consulting income earned
post-termination could have been earned if the respondents employment with B
& B had continued, and therefore is not properly characterized as
replacement income.

[50]

Mr. Pakozdi was dismissed in mid-January 2015. His earnings from
his consulting work over the next five months was approximately $80,000. The
task then is to make an assessment of how much of this post-termination income
is to be considered replacement or substitute income, and therefore deductible
from his damage claim, and how much is to be considered supplementary income
that he could have earned if his employment with B & B had continued, and
therefore not deductible from his damage claim.

[51]

I will address this assessment later in my judgment.

The RRSP Matching Program

[52]

The final issue is raised by Mr. Pakozdis cross-appeal concerning
the companys RRSP matching program. Under this program, Mr. Pakozdi was
entitled to join the B & B Group Registered Retirement Savings Plan after
one year of employment, which was approximately the date of his dismissal. The
benefit under the matching program is described in the Employee Guidebook:

Each pay period your employer
will match your contributions by 100% up to a maximum of 5% of your salary.

[53]

The trial judge declined to make any award for the loss of the
opportunity to benefit from this matching program on the following basis:

[88]       The defendants say
there was no evidence that Mr. Pakozdi was making RRSP contributions
during the notice period and therefore it is not compensable:
Matusiak v.
IBM Canada Ltd.
, 2012 BCSC 1784 at para. 118-119. I agree.

[54]

The trial judge was applying the principle from
Wilks v. Moore Dry
Kiln Co. of Canada
(1981), 32 B.C.L.R. 149 (S.C.), to the effect that a
plaintiff cannot recover for fringe benefits that would have been paid by the
employer unless the employee has in fact incurred the expense during the notice
period. This principle has been applied to expenses such as dental expenses but
does not fit well with benefits such as matching expenses to a group plan,
where the employee cannot make the expenditure that would trigger the employer
match once he has been dismissed.

[55]

Justice Prowse made a similar point in
Steven Shinn v. TBC
Teletheatre B.C. et al.
, 2001 BCCA 83 at para. 37:

The decision of
Madam Justice McLachlin (as she then was) in
Wilks v. Moore Dry Kiln Co. of
Canada

(1981),
32
B.C.L.R. 149 (B.C.S.C.)
, applied by this Court in
Sorel v. Tomenson
Saunders Whitehead Ltd.

(1987),
16 C.C.E.L. 223 [B.C.C.A.]
, does not stand for the
proposition that the amount of an employers contributions to an employees
Canada Pension Plan during the notice period can never be recovered as damages.
Rather, damages will be awarded where the employee can show that he or she has
suffered a loss by virtue of the employers failure to pay the benefits during the
notice period.

[56]

In my opinion, the applicable principle is that damages in a wrongful
dismissal action are to be assessed on the basis of the plaintiffs entitlement
to benefits throughout the period of reasonable notice. A plaintiff is entitled
to compensation for the loss of the opportunity to share in whatever pecuniary
benefits would have flowed from being an employee during the notice period:
Hawkes
v. Levelton Holdings Ltd.
, 2012 BCSC 1219 at para. 309, affd 2013
BCCA 306.

[57]

Chief Justice McEachern explained this principle in
John
Iacobucci v. WIC Radio Ltd. et al.
, 1999 BCCA
753 at para. 24:

Applying the
foregoing to the facts of this case, it is my view that the plaintiff was
entitled to recover damages equivalent to the benefits he would have received
if he had remained as an employee until the expiration of a period of
reasonable notice. It makes no difference, in my view, that he cannot require
WIC Western to accept his attempted exercise of future options. The value of
such a right is a part of the measure of the damages he is entitled to recover
from WIC Radio.

[58]

Justice Saunders made a similar observation in
Gillies
v. Goldman Sachs Canada Inc.
, 2001 BCCA 683 at para. 20:

On the basis of
these authorities and the clear principle that Mr. Gillies is entitled to
be treated, for remedial purposes, as if he were an employee throughout the
notice period, the issue here is whether Mr. Gillies would have been
entitled to participate in the IPO had it been issued during the period of
reasonable notice.

[59]

Mr. Pakozdi is therefore entitled to compensation for the loss of
the opportunity to participate in the RRSP matching program during the five
month notice period.

Assessment of Damages

[60]

I have concluded that the trial judge erred in principle in three respects.
First, the notice period on which damages were based was outside the range of
reasonableness for a 12 month employee and should not have been increased from
the five months initially assessed on the basis of Mr. Pakozdis health
issues, which did not prevent him from earning substantial consulting income
during the notice period.

[61]

Second, she erred in failing to deduct any of the post-termination
income received by Mr. Pakozdi, although I do not agree that
all
of
the post-termination income should be deducted, as urged by the appellant. A
determination must be made as to how much of the post-termination consulting
income should be characterized as replacement income and how much is more
properly regarded as a continuation of the supplementary income he was earning
prior to his dismissal.

[62]

Finally, I have concluded that the trial judge erred in not providing
any award for the loss of opportunity to participate in the RRSP Matching Program
of the employer. This head of damage will be modest, but there is a loss that
merits some compensation.

[63]

In the ordinary course, I would remit the matter back to the trial judge
for assessment of damages based on these principles. However, under s. 9
of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77, this Court has
the power to make any order that could have been made by the court appealed
from, including an order assessing damages. In my view, given the extent of
reduction that will accompany this judgment, it would not be in the interests
of justice to require the parties to incur the costs of further proceedings in
the Supreme Court: see
Mainstream Canada v. Staniford
, 2013 BCCA 341 at
paras. 52-54. Accordingly, I propose to assess the damages that result from the
principles set out in this judgment.

Damages for Inadequate Notice

[64]

The reduction in the notice period leads to a reduction in damages for
inadequate notice that can be calculated with precision. Five months notice at
Mr. Pakozdis salary would entitle him to $54,165, subject to the issue of
mitigation.

Reduction for Avoided Loss

[65]

The reduction for avoided loss cannot be calculated with precision.
Drawing the line between that portion of earnings in the notice period that is
properly to be regarded as replacement income and that portion that should be
regarded as a continuation of his supplementary income cannot be done in an
exact way.

[66]

Justice Pitfield described this task more generally in
Wilson v. UBS
Securities Canada Inc.
, 2005 BCSC 563 at para. 63:

The computation of damages in a
wrongful dismissal case is not a mathematical calculation but an assessment of
that which would likely have been earned had the proper period of working
notice been provided to the employee.

[67]

I propose to make an assessment on that basis, having regard to the
evidence that was led concerning Mr. Pakozdis consulting income before
and after dismissal.

[68]

The evidence indicates that Mr. Pakozdi was able to engage in
consulting work for as much as 96 hours in October 2014 without apparently
interfering with his duties at B & B. This work generated $9,600 for that
month, in addition to his earnings with B & B. Thus, it seems reasonable to
assume that in the five month notice period, Mr. Pakozdi could have earned
as much as $50,000 in what can be characterized as supplementary income. The
balance of his earnings can reasonably be regarded as replacement income and
thus deductible from his damage claim.

[69]

This analysis suggests that an amount of approximately $30,000 earned by
Mr. Pakozdi during the five month notice period is properly characterized
as replacement income and must be deducted from the damages otherwise payable.

[70]

The result of this assessment is that Mr. Pakozdi is entitled to
$54,165, representing five months of his employment income, less $30,000
representing the portion of his post-employment income that is designated as
replacement income, for a net damage award of $24,165 in respect of his salary.

Damages for Loss of the RRSP Matching Program

[71]

I have concluded that Mr. Pakozdi is entitled to a modest sum in
respect of the loss of the opportunity to participate in the RRSP Matching
Program. This again is a matter for assessment rather than calculation, as it
is not possible to know whether Mr. Pakozdi would in fact have taken
advantage of the program. I would assess damages for this head of damages at
$2,500.

Disposition

[72]

For these reasons, I would allow the appeal and the cross-appeal in part,
and vary the order under appeal in the following respects:

(a)      the notice period for the
calculation of damages is reduced to five months;

(b)      the damage award for the
salary component of the compensation is reduced to $24,165; and

(c)      the damage award is
increased by $2,500 to account for the loss of the opportunity to participate
in the group RRSP matching program.

[73]

The order of the trial judge is varied in accordance with these reasons.
In light of the divided success and subject to any arrangements as to costs
that have not been brought to our attention, I would order that each party bear
their own costs.

The
Honourable Mr. Justice Hunter

I AGREE:

The Honourable
Madam Justice Stromberg-Stein

I AGREE:

The Honourable
Mr. Justice Savage


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. D.N.,

2018 BCCA 18

Date: 20180119

Docket: CA42614

Between:

Regina

Respondent

And

D.N.

Appellant

Restriction on Publication: A publication ban has been mandatorily
imposed under s. 486.4 of the
Criminal Code
restricting the
publication, broadcasting, or transmission in any way of evidence that could
identify a complainant or witness under the age of 18, referred to in this
judgment by the initials P.S. (also known as P.N.).
This publication ban
applies indefinitely unless otherwise ordered.

Section
16(4)
Sex Offender Information and Registration Act (SOIRA)
:
This section provides that no person shall disclose any information that is
collected pursuant to an order under
SOIRA
or the fact that information
relating to a person is collected under
SOIRA.

Before:

The Honourable Madam Justice D. Smith

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Goepel

On appeal from: An
order of the Supreme Court of British Columbia,
dated June 6, 2017 (
R. v. D.N.
, 2014 BCSC 1144,
New Westminster Docket No. X073863-3).

Counsel for the Appellant:

G. Botting

Counsel for the Respondent:

J. Caldwell

Place and Date of Hearing:

Vancouver, British
  Columbia

November 20, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 19, 2018

Written Reasons by:

The Honourable Madam Justice D. Smith

Concurred in by:

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Goepel

Summary:

The appellant challenges his
convictions for three historical sexual offences committed against his
step-daughter when she was under the age of 14. The appellant was originally
charged with the first count in 1986, but that charge was stayed after he absconded
the jurisdiction. It was re-laid in 2009, along with the other two counts,
after he returned to the jurisdiction. The appellant submits the judge erred by
refusing to stay the first count for unreasonable delay, which he had argued
based on pre-charge delay, contrary to s. 11(b) of the Charter
,
and
as a result of the new framework for s. 11(b) applications since R. v.
Jordan, erred in refusing to stay the other counts for unreasonable delay. The
appellant further submits the judge erred in (i) admitting two inculpatory
statements that he contends were involuntary and insufficiently recorded, (ii) misapprehending
certain evidence, and (iii) admitting what he characterized as highly
prejudicial evidence. Held: appeal dismissed. Jordan

was released after trial
judgment but before the appeal and so the proceeding was still in the system
and Jordan

applied. The judge did not err in dismissing the appellants
s. 11(b) application because the transitional circumstances exception, as set
out in Jordan, applied. The parties reasonably relied on the state of the law
at the time under R. v. Morin. Based on that jurisprudence, the appellant chose
not to advance an application for a stay of proceedings based on post-charge
delay because he could not establish that he had suffered prejudice by reason
of the delay. The trial judge also did not err in admitting the inculpatory
statements, did not misapprehend the evidence, and did not err in admitting
probative evidence that was relevant and not highly prejudicial given the
evidence that had been admitted.

Reasons for Judgment of the Honourable
Madam Justice D. Smith:

A.       Overview

[1]

D.N. appeals his June 6, 2014 convictions on two counts of sexual assault
and one count of sexual interference with his step-daughter, P.S., who was a
person under 14 at the time. The convictions followed an eight-day trial before
a judge sitting alone.

[2]

The charges were laid in an August 5, 2009 information; upon his
committal for trial they were preferred in an April 15, 2013 indictment. The
charges related to historical offences that covered two separate time periods
between 19831986, and 19901993, respectively.

[3]

At the conclusion of the evidence at trial, D.N. applied for a stay of
proceedings based on an alleged violation of his s. 11(b)
Charter
right
to be tried within a reasonable time. The judge dismissed his application and
registered the convictions.

[4]

On appeal, D.N. submits the judge erred in: (1) dismissing his application
for a stay of proceedings as a result of unreasonable delay; (2) admitting
into evidence two inculpatory statements he gave to the police that he submits were
involuntary and unreliable; (3) misapprehending evidence, which he says
resulted in a miscarriage of justice pursuant to s. 686(1)(a)(iii) of the
Criminal
Code
, R.S.C. 1985, c. C-46; and (4) admitting highly prejudicial
and irrelevant evidence. D.N. asks that the appeal be allowed, the convictions
set aside, and a stay of proceedings be granted for unreasonable delay. In the
alternative, he requests that an order of acquittal be substituted.

B.       Background

[5]

The indictment charged D.N. with the following offences:

1.

Sexual
assault of P.S., at or near Surrey, B.C., between May 1, 1983, and
March 31, 1986, contrary to s. 246.1 [now s. 271] of the
Criminal
Code
(Count 1);

2.

Sexual
assault of P.S., at or near Surrey, B.C., between January 1, 1990, and
October 31, 1993, contrary to s. 271 of the
Criminal Code
(Count
2); and

3.

Sexually
touching P.S., being a person under the age of 14 years, at or near Surrey.
B.C., between January 1, 1990, and September 1, 1991, contrary to
s. 151 of the
Criminal Code
(Count 3).

[6]

Both P.S. and D.N. testified at trial. The verdict turned largely on the
judges findings of credibility and reliability.

The Evidence on
Count 1

[7]

P.S. was born in 1978. In 1984, her mother, K.J., and D.N. were married.
At that time, the family lived in an apartment on Grosvenor Road in Surrey,
B.C.

[8]

P.S. testified that while at the Grosvenor Road apartment, D.N., on many
occasions, placed a blanket over her while they watched television alone at
night and touched her sexually under the blanket. She said D.N. told her not to
tell anyone or she would get in trouble. P.S. said she finally told a friend
who lived nearby about these episodes. She did not recall telling her mother. P.S.
also stated that someone came to her school in January 1986 to discuss sexual
touching with the students and that she told this person that D.N. had touched
her in the ways described.

[9]

The Ministry of Children and Family Development (the Ministry) eventually
became involved after receiving a report of the alleged abuse. The report
alleged that while P.S. was watching a television program on sexual abuse, she disclosed
to someone that she had been sexually abused by D.N. in the same manner as
depicted and that he had laid on top of her.

[10]

On January 13, 1986, a social worker with the Ministry interviewed
P.S. in the presence of Cst. Cousins. The evidence of this interview, which
was introduced in order to rebut allegations of recent fabrication, consisted
of a set of contemporaneous handwritten notes and the testimony of Cst. Cousins.
The officer recorded that P.S. recounted events that indicated she had been sexually
abused by D.N., including an instance in which P.S. said that she had laid
naked on top of a naked D.N., and that he had touched her genitals and asked
her to touch his penis.

[11]

On January 14, 1986, D.N. was arrested and given the requisite
Charter
warning. Thereafter, he gave two statements, one to Cst. Cousins and the
other to Cst. (now Inspector) Gosselin.

[12]

At trial, the two police officers testified that recording devices were
not used in their detachment at the time they took D.N.s statements. Instead, his
statements were recorded in the form of written notes made by each of them. The
statements included several inculpatory admissions.

[13]

On January 14, 1986, D.N. was charged in a provincial court

information
with a single count of sexual assault of P.S., alleged to have occurred between
January 1, 1985, and September 30, 1985, at Surrey, B.C. He was released
on an undertaking to attend court on February 4, 1986. Among other
prohibitions, the undertaking barred D.N. from having any contact with P.S. In
parallel proceedings, P.S. was declared a child in need of protection under
the then
Child and Family Service Act,
S.B.C. 1980, c. 11,

and
placed in foster care. These proceedings also resulted in an order that prohibited
D.N. from entering any premises where P.S. resided.

[14]

D.N. violated all of these prohibitions: he neither made the required court
appearance, nor did he respect the term prohibiting contact with P.S. In March
1986, he moved the whole family  including K.J., P.S., and P.S.s brother  to
Switzerland, where they stayed for several years. A bench warrant was issued
for his arrest when he failed to appear in court.

[15]

The Crown was unaware of D.Ns or P.S.s whereabouts until October 17,
1989, when D.N. suddenly reappeared and surrendered himself to the police on the
outstanding warrant. At that time, Crown counsel had a conversation with K.J.
As a result of that conversation, Crown counsel formed the understanding that
P.S. continued to live in Switzerland with her mother and that K.J. had no
intention of returning her daughter to Canada. Without P.S.s evidence, Crown
counsel was of the view that the matter could not proceed and on January 26,
1990, she stayed the information.

[16]

In fact, P.S. testified that she had returned to Canada in 1988 to live
with her aunt in Kimberley, B.C. and that in or about 1989 she returned to live
with her mother, her brother, and D.N., this time on 125
th
Street in
Surrey. P.S. further testified that D.N. continued to sexually abuse her at
that location. These allegations formed the basis for Counts 2 and 3 of the
indictment.

The Evidence on
Counts 2 and 3

[17]

P.S. testified that while living on 125
th
Street, D.N.
sexually abused her frequently, sometimes multiple times per week, by
performing oral sex on her and by putting his hands on or in her vagina,
particularly while she was sleeping. She said that she often wore jeans to bed
in an attempt to make it more difficult for these assaults to occur. She said
that when she was able to stop his advances, D.N. would berate her, call her
names, and complain that she was ungrateful. She also testified that D.N. would
frequently spy on her by peering up at her from the furnace room through holes
drilled in the bathroom floor, looking into her bedroom through a small space
created by pulling the door jamb away from the wall, and sneaking into her
bedroom closet to watch her undress.

[18]

D.N. and K.J. separated when P.S. was in Grade 9. P.S. said the sexual
assaults and sexual touching ceased at that point in time.

[19]

Years later, in September 2006, she reported these incidents to the police,
which led to D.N. being charged on August 5, 2009. The information sworn
at that time effectively resurrected the sexual assault count that was stayed
in 1990, and included the later allegations of sexual assault and sexual
interference at the 125
th
Street residence. After a preliminary
inquiry in November 2012, D.N. was ordered to stand trial on all three counts.
The committal order was followed by the April 15, 2013 indictment.

C.       The Trial Judgment

[20]

The judge found that while P.S. was not a perfect witness, he accepted
her evidence as credible and reliable. He did not make the same findings with
respect to D.N. He found that D.N.s evidence lacked credibility and he rejected
his evidence wherever it conflicted with that of P.S. He also rejected D.N.s
submission that P.S.s allegations were motivated by an animus toward him that
arose in part from her and K.J.s allegations that he had physically assaulted
them. The judge explained his credibility findings in part as follows:

[61]      D.N. testified that his arrest was a big surprise
when it occurred in 1986. That statement is an odd response and in conflict
with what he said to the police in the statements which he made noted above. He
admitted he had done things that his daughter had forgotten for which he sought
and received help. He responded to a question about sexual assault by asking
for the definition of sexual assault. The logical response of an innocent
parent to a question would have been a strong No or a similar firm rejection
of that suggestion. D.N.s response was not logical. He testified he only said
what popped into his mind.

[62]      In response to the question:

Q.        You
know your daughter has no reason to lie, shes not gaining anything by making
up a story. Do you think at her age she even knows what sex is?

A.         I
know, I know. I dont think that its fair that someone should have to go to
jail for sexually assaulting his own child. The police shouldnt even get
involved. The family can work it out on their own.

[63]      Curiously, D.N.
challenged parts of the statement handwritten by Constable Cousins,
particularly where he agreed he was naked when alone with P.S. in the living
room lying under the striped blanket watching television. He testified that
statement was false and he suggested the police officer created it. It was
simply not something he said, according to him. Before that statement, D.N. had
repeatedly said he did not remember what he said to police. His response
demonstrated internal inconsistency in his evidence.

[21]

Following a
voir dire,
the judge ruled that D.N.s two statements
to police were voluntary:
R. v. D.N.,
2014 BCSC 2588 [
Voir Dire
Reasons
.] The Crown obtained that ruling for the purposes of
cross-examination in the event that D.N. elected to testify. D.N. testified in
the trial and the statements were put to him on cross-examination. The judge
found they amounted to admissions by D.N. of sexual activity with P.S. when she
was a child.

[22]

The judge also rejected D.N.s suggestion that his statements, as recorded
by Csts. Cousins and Gosselin, had been tampered with. The judge found that
there was no evidentiary foundation for what he characterized as an extremely
serious allegation. Furthermore, the allegation was not even put to either
police witness on cross-examination in accordance with the rule in
Browne v.
Dunn
(1893)
,
6 R. 67 (H.L.).

[23]

Ultimately, the judge rejected D.N.s declaration that he did not
sexually assault or sexually touch P.S.

[24]

Applying the test in
R. v. W.(D.),
[1991] 1 S.C.R. 742, the judge
concluded that based on the evidence as a whole, including the evidence of P.S.
which he accepted, the Crown had proved each of the elements of the offences in
all three counts beyond a reasonable doubt.

[25]

Before registering the verdicts, the judge ruled on D.Ns application
for a stay of proceedings on Court 1, which was brought after the close of
evidence. The judge noted that in general such an application should not be
brought at that stage of the proceeding, but he agreed to hear the application
at that time because of the very unusual circumstances of the case.

[26]

D.N. submitted that the
pre-charge delay
between the
staying of the original charge on January 26, 1990, and the laying of the
current charges in the August 5, 2009 information, violated his right to
be tried within a reasonable time with respect to Count 1. He contended that the
almost 20-year delay between the staying of the initial charge for the alleged
1983
‒
1986 offence and
the August 5, 2009 information, and the delay between September 2006, when
P.S. filed her complaint, and the laying of charges on August 5, 2009, were
unreasonable and solely attributable to the Crown. With respect to Counts 2 and
3, D.N.s trial counsel advised the judge that he was not applying for a stay
of proceedings on those counts. He explained that after reviewing the Crowns
argument, he had concluded that he wouldnt be likely to succeed at all based
on the state of the law as it then existed under
R. v. Morin,
[1992] 1
S.C.R. 771, which required D.N. to establish actual prejudice as a result of
the delay. In short, only pre-charge delay was raised as the basis for the stay
application and it was argued under the
Morin
framework. D.N. made no claim
of
post-charge delay
with respect to Count 1.

[27]

The judge determined the application under the
Morin
framework
by considering the factors of: the overall length of delay, the waiver of individual
time periods, the reasons for various periods of delay, and any prejudice to
the accused. While recognizing the almost 20-year delay was significant, he
noted that it was not the only factor to be considered. He also observed that
D.N. put his own case off the rails when he left and took the Crowns key
witness to Switzerland, in breach of his undertaking. The judge recognized that
there was no evidence of pre-trial custody or strict bail conditions and he was
not willing to infer prejudice to D.N. in those circumstances. Lastly, he was
of the view that the balance of societal interests favoured a trial on the
merits. He concluded that given the seriousness of the charges and the lack of
proven prejudice, D.Ns application should be dismissed.

D.       Issues on Appeal

[28]

D.N. raises four grounds of appeal. He submits:

1.       The judge erred in dismissing the stay application based on
the new framework for s. 11(b) applications in
R. v. Jordan,
2016
SCC 27;

2.       The judge erred in finding D.N.s two statements to the police
were voluntary and sufficiently recorded;

3.       The judge erred in
misapprehending the evidence; and

4.       The
judge admitted highly prejudicial and irrelevant evidence from D.N. and P.S.s
time in Switzerland.

E.       Unreasonable Delay

[29]

The Crown contends this Court should not hear D.Ns submissions on post-charge
delay as D.N. chose not to raise this issue before the trial judge because he
could not prove actual prejudice. The Crown asserts that
Charter
applications
should not be argued as a matter of first instance on appeal because of the absence
of factual findings relevant to the application:
Bell ExpressVu Limited
Partnership v. Rex
, 2002 SCC 42

at para. 59;
Guindon v.
Canada
, 2015 SCC 41 at paras. 20
‒
23
and 35;
R. v. Winfield
, 2009 YKCA 9 at paras. 17
‒
18.

[30]

In the alternative, the Crown submits that if the Court decides to hear
this application under the new framework established in
Jordan
, as
requested by D.N., the net delay, after subtracting delay attributable to the
defence and discrete events, was in fact only 29 months and 23 days, a period
of time below the presumptive ceiling of 30 months for unreasonable delay. If the
Court finds that the delay does exceed the presumptive ceiling, the Crown
submits the application should still be dismissed pursuant to the transitional circumstances
exception in
Jordan
, given that: (1) the judge found there was no demonstrated
actual or inferred prejudice to D.N. as a result of the delay; (2) the
alleged offences are serious; and (3) the Crown and the judge were not
complacent and acted with a sense of urgency at various stages of the
proceedings after the August 5, 2009 information was sworn.

The
Jordan
framework

[31]

Jordan
established a new framework for determining s. 11(b)
Charter
applications. Delay will be presumptively unreasonable where total delay from
the date of the charge to the actual or anticipated date for the end of trial
(minus defence delay) exceeds 18 months in a provincial court and 30 months in a
superior court. A stay will follow unless the Crown can establish the presence
of exceptional circumstances.

[32]

Exceptional circumstances are those that are beyond the Crowns ability
to control. They include circumstances that are reasonably unforeseen or
reasonably unavoidable, and which the Crown cannot remedy once they arise. They
generally fall into two categories: discrete events and particularly complex
cases. The former will be subtracted from the total period of delay in
determining if the presumptive ceiling has been exceeded; delay in the latter,
if found to be justified, will not be considered unreasonable.

[33]

Significantly,
Jordan
provides that the Crown may no longer rely
on the seriousness or gravity of the offence, inherent time requirements and
chronic institutional delay, or the absence of prejudice to justify delay that
has exceeded the presumptive ceilings. Once the presumptive ceiling is
breached, prejudice is inferred and the delay is unreasonable absent
exceptional circumstances.

[34]

If the period of delay falls below the presumptive ceiling, the burden
is on the defence to establish that: (1) it took meaningful steps that
demonstrated a sustained effort to expedite the proceedings; and (2) the
case took markedly longer than it reasonably should have.
Jordan
also notes
that a stay application for delay that falls below the presumptive ceiling will
only be granted in the clearest of cases.

[35]

The new s. 11(b)
Charter
framework applies to cases in which
charges were brought before the release of
Jordan
and which remain currently
in the system. However, for such cases, the transitional circumstances exception
may arise where the Crown can establish that the delay was justified based on
the parties reasonable reliance on the law as it previously existed.

[36]

The application of the transitional circumstances exception requires a
contextual assessment. The Court described the nature of such an analysis as
follows:

[96]       This requires a
contextual assessment, sensitive to the manner in which the previous framework
was applied, and the fact that the parties behaviour cannot be judged
strictly, against a standard of which they had no notice. For example,
prejudice and the seriousness of the offence often played a decisive role in
whether delay was unreasonable under the previous framework. For cases
currently in the system, these considerations can therefore inform whether the
parties reliance on the previous state of the law was reasonable. Of course,
if the parties have had time following the release of this decision to correct
their behaviour, and the system has had some time to adapt, the trial judge
should take this into account.

[37]

The Court added:

[102]    Ultimately, for most cases that are already in the
system, the release of this decision should not automatically transform what
would previously have been considered a reasonable delay into an unreasonable
one. Change takes time.

[103]     The reasonableness of
a period of time to prosecute a case takes its colour from the surrounding
circumstances. Reliance on the law as it then stood is one such circumstance.

[38]

Subsequently, the Court confirmed the application of the
Jordan
framework
in
R. v. Cody,
2017 SCC 31. In
Cody, Jordan
had been released
while a Crown appeal from the trial judges order granting a stay of
proceedings was under reserve before the Newfoundland and Labrador Court of
Appeal. The net delay of 36.5 months in the case, after deducting defence delay
and discrete events, clearly exceeded the presumptive ceiling. The charges for
drug trafficking and weapons offences were serious, and the entire trial
proceedings pre-dated
Jordan.
However, the Court held those
circumstances were overcome by the trial judges findings of real and
substantial actual prejudice and that the accuseds conduct was not
inconsistent with the desire for a timely trial (at para. 73). Faced
with those findings, the Court held that the presumptively unreasonable delay
could not be justified based on the Crowns reliance on the previous state of the
law, observing:

[74]       Where a balancing of
the factors under the
Morin
analysis, such as seriousness of the offence
and prejudice, would have weighted in favour of a stay, we expect that the
Crown will rarely, if ever, be successful in justifying the delay as a
transitional exceptional circumstance under the
Jordan
framework.

[39]

In the course of its analysis, the Court clarified the assessment of the
transitional exception as being a qualitative exercise, which presum[es] that
the Crown and defence relied on the previous law until
Jordan
was
released (at para. 69). The Court reiterated that the exception should be
considered in those cases that were in the system before
Jordan
,
stating:

[69]       The determination of
whether delay in excess of the presumptive ceiling is justified on the basis of
reliance on the law as it previously existed must be undertaken contextually
and with due sensitiv[ity] to the manner in which the previous framework was
applied (
Jordan,
at paras. 96 and 98). Under the
Morin
framework,
prejudice and seriousness of the offence often played a decisive role in
whether delay was unreasonable (
Jordan,
at para. 96).

Application of
Jordan

[40]

Before the trial judge, counsel for D.N. limited his s. 11(b)
Charter
application to Count 1, accepting that under the
Morin
framework he was
unlikely to be successful on the other counts, given the seriousness of the
charges and D.N.s inability to prove actual prejudice. The focus of his
submissions, however, were on the almost 20-year pre-charge delay, which
included the three years between P.S. filing her complaint in September 2006,
and the swearing of the information on August 5, 2009. Post-charge delay
was never raised as an issue.

[41]

In calculating the length of the delay, the Court in
Morin
confirmed
(at 789) that the relevant period of time is from the date on which charges are
laid  being the date on which an information is sworn or an indictment is
preferred  to the end of the trial; pre-charge delay is not counted in the analysis
under s. 11(b). In this case, the judge dismissed the stay application in
the absence of evidence of prejudice to D.N. caused by the pre-charge delay and
after weighing the societal interests in having these serious charges
determined on their merits.

[42]

Jordan
was released before D.N.s appeal was heard. Therefore, this
case was still in the system and this Court should hear this ground of appeal. If
the delay is found to fall under the presumptive ceiling, then the burden is on
D.N. to establish that the delay is unreasonable by demonstrating that:
(1) he took meaningful steps that demonstrate a sustained effort to
expedite the proceedings; and (2) the case took markedly longer than it
reasonably should have (
Jordan
at para. 48). If the net delay is
found to exceed the 30-month presumptive ceiling, then under the
Jordan
framework,
this Court must consider application of the transitional exceptional
circumstance in determining if the Crown has rebutted the presumption of
unreasonable delay.

[43]

Counsel for the Crown made detailed submissions to demonstrate that the
actual net delay in this case amounted to only 29 months and 23 days, seven
days less than the presumptive ceiling of 30 months
.
The Crown
calculated that period based on excluding: (1) what it described as an
illegitimate and unsuccessful
Rowbotham
application for state-funded
counsel, that consumed a period of time from August 5, 2009 to
January 25, 2011 (about 18 months), involved D.N. failing to make timely
disclosure of his financial circumstances, and resulted in further delay in
setting the preliminary inquiry date; (2) the delay from December 13,
2012 to January 31, 2013, occasioned by D.N.s lack of readiness to fix a
trial date in the Supreme Court, when the Court and Crown counsel, were
available; and (3) the delay from September 6, 2013 to June 6,
2014, caused by the discrete event of the estimated four-day trial extending to
eight days due to the extensive cross-examination of P.S. and D.N. and bringing
his s. 11(b)
Charter
application at the conclusion of the evidence,
albeit with the consent of all parties and the judge.

[44]

In response, D.N. submits that the length of the delay began to run from
when the Crown entered a stay of proceedings on January 26, 1990, with
respect to the original Count 1 charge. In support of this position, D.N.
relies on
R. v. D.M.,
2012 ONSC 221, and
R. v. Milani,
2012 ONSC
6892, which held that the gap in time between a Crown stay and a later revived
charge should count in calculating the length of the delay.

[45]

However,
Milani
was overturned on appeal, which effectively
overruled
D.M.
as well:
R. v. Milani,
2014 ONCA 536 [
Milani
CA].
In
Milani CA,
the Ontario Court of Appeal held that an accuseds
s. 11(b)
Charter
right is not engaged during the gap between a
Crown stay and a new or revived charge, and therefore that period of time should
not be counted in calculating the length of the delay. In support of that position,
the Court, at paras. 4447, relied on
R. v. Potvin,
[1993] 2 S.C.R.
880, where the Supreme Court held that appellate delay does not apply to
s. 11(b), which requires that active charges be outstanding against the
person. In
Milani CA
, (at para. 50), the Court concluded that for
the purposes of s. 11(b), the delay clock begins to run when the initial charges
are laid, stops during the gap, and begins to run again when the charges are
re-laid. Parenthetically, I would observe that it is unclear whether the Court
is saying that the clock completely restarts, or picks up again from where it
left off. This issue was not raised in this appeal and therefore I find it
unnecessary to decide.

[46]

Similarly, in
R. v. Hunt,
2017 SCC 25, revg 2016 NLCA 61, the Court
allowed the appeal, substantially for the dissenting reasons of Madam Justice
Hoegg, who confirmed that pre-charge delay should be considered under s. 7,
not s. 11(b).

[47]

As discussed further below, it is my view that this issue should be
decided on the basis of the transitional exception under
Jordan
and
therefore it is unnecessary to determine here whether the delay occasioned by the
Crown stay of proceedings should be included in calculating whether the presumptive
ceiling has been exceeded.

[48]

On appeal, D.N. also takes issue with the Crowns exclusion of the
approximate 18-month delay caused by his unsuccessful
Rowbotham
application
and the approximate one-and-a-half-month delay for the assignment of
court-appointed counsel to cross-examine P.S. He also submits the Crown has
overstated the delay attributable to the defence by including a number of court
appearances going back to August 5, 2009. D.N. argues that under the
Morin
framework these appearances would have been characterized as inherent time
requirements (i.e., intake delay) and would not have been attributable to either
party. Under the
Jordan
framework, this aspect of delay is now part of
the 30-month presumptive ceiling.

[49]

During oral submissions, counsel for the Crown acknowledged that even if
the Court accepted that D.N.s conduct in pursuing the trial process was dilatory,
a number of the court appearances following August 5, 2009 could be
characterized as part of the former inherent time requirements, which are now
counted towards the 30-month ceiling under
Jordan
. Therefore, as the
period at issue in this case is a matter of only seven days, the Crown agreed that
it might be better for this Court to conduct its analysis under the
transitional exception. I agree. Therefore, for the purposes of this appeal, I
am assuming, without deciding, that the delay in this case, from the laying of
the charges on August 5, 2009 to the end of trial on June 6, 2014,
does exceed the 30-month presumptive ceiling set out in
Jordan
. As a
result, the Crown bears the burden of establishing that the delay is
nevertheless reasonable due to the transitional circumstances exception.

[50]

It is clear that the parties relied on the state of the law as it
existed before
Jordan
to inform their respective positions before the
judge. This was evident in D.N.s decision to make no s. 11(b)
Charter
application
with respect to post-charge delay, and in limiting his submissions on Count 1 to
pre-charge delay only. However, as alluded to above, the s. 11(b)
Morin
framework does not apply to pre-charge delay although the judge, in
dismissing D.N.s application, relied on that framework. In doing so, he expressly
found no evidence of prejudice and concluded that the seriousness of the
alleged offence weighed in favour of determining its merits at trial,
particularly as much of the pre-charge delay was caused by D.N.s actions in absconding
from the jurisdiction.

[51]

By deciding not to pursue the issue of post-charge delay at trial, D.N.
accepted that the post-charge delay was not unreasonable under the
Morin
framework.
Due to the manner in which D.N. raised the s. 11(b) issue at trial, the
judge never expressly considered whether D.N. suffered any prejudice with
respect to the time period after August 2009. On appeal, D.N. presented no new
evidence, nor pointed to any existing evidence in the record, to demonstrate that
prejudice should have been found or inferred by the trial judge under the
Morin
framework. As a result, it cannot be said the judge erred in dismissing
D.N.s application for a stay of proceedings for unreasonable post-charge delay
as that claim was never advanced because the appellant admittedly could not
establish that he had suffered prejudice, a key aspect of the
Morin
framework
(
Cody
at para. 69).

[52]

The transitional exception has been applied in several pre-
Jordan
cases
that remained in the system on appeal, where the net delay exceeded the
presumptive ceiling of 30 months:
R. v. Gordon
, 2017 ONCA 436 at paras. 2028
(53-month net delay);
R. v. Dieckmann,
2017 ONCA 575 at paras. 1730
(50-month net delay); and
R. v. Baron,
2017 ONCA 772 at paras. 4481
(35-month net delay). In each instance, an application of the transitional
exception resulted in a finding that the delay was not unreasonable. The
circumstances in this appeal are similar and accordingly I would dismiss this
ground of appeal.

[53]

The Crowns submissions also rely on what it describes as its culture
of urgency surrounding the trial of this case. In my view, this claim does not
form a distinct part of any of the s. 11(b) frameworks, whether under
Morin
,
Jordan
, or
Cody
. Rather, the Crown appears to be raising this issue
to dispel any notion that it fell into the culture of complacency or culture
of delay that the Court generally admonished in
Jordan
.

[54]

A sense of urgency on the part of the Crown may come into play in certain
aspects of the
Jordan
framework. If the delay falls below the
presumptive ceiling, the urgency with which the Crown prosecuted the case may
demonstrate that the case did not take longer than it reasonably should have.
If the delay falls above the presumptive ceiling, it may demonstrate that the
Crown has met its burden of establishing exceptional circumstances by showing
that it could not reasonably remedy any delays that arose and took reasonable
available steps to avoid and address the problem before the delay exceeded the
ceiling (
Jordan
at para. 70). The first scenario does not arise on
the facts of this case and I have concluded that the Crown has succeeded under
the transitional exception. Consequently, I do not find it necessary to address
this issue raised by the Crown.

F.       The Admissibility and Completeness of D.N.s Statements

[55]

The judge found that D.N.s statements to Csts. Cousins and Gosselin in
1986 were voluntary and recorded as completely as possible by their handwritten
notes. The judge accepted their evidence that recording devices were not
available in the detachment at the time.

[56]

D.N. contends that the contents of the handwritten statements are
unreliable for a number of reasons, including: the manner in which they were
recorded; the current preferable practice of electronic recording; and the inadequacy
of handwritten statements in general and in this case in particular. He also
seeks to advance new allegations regarding the voluntariness of the statements,
which were not raised at trial, and for which no evidence has been elicited in
a fresh evidence application.

[57]

In the
voir dire,
the police officers testified that, at the
time, the Cloverdale Detachment had no capacity for recording any statement by
an accused electronically. The handwritten statement recorded by Cst. Cousins
included some minor scratch outs that she had D.N. initial in each instance,
in addition to securing D.N.s signature or initials at the bottom of each page
indicating that he had read the document. The judge found that the statement
accurately reflected what D.N. had said to her (
Voir Dire Reasons
at para. 5).
He also found that the second statement taken by Cst. Gosselin, which
contained a detailed handwritten account that was transcribed into typewritten
form after which the handwritten notes were destroyed, was also complete. The
judge noted that the statement even recorded an interest expressed by D.N. at
one point in the interview in calling a lawyer, but when Cst. Cousins took
steps to make that arrangement, D.N. had changed his mind (
Voir Dire Reasons
at para. 7).

[58]

D.N. did not testify in the
voir dire
or tender any evidence to
the contrary
.

[59]

The judge concluded that based on the legal test from
R. v. Oickle
,
2000 SCC 38,

and the evidentiary record on the
voir dire,
the two
warned statements were voluntary and therefore admissible. As to their
completeness, he held that the contents of the statements would go to their
weight in the trial proper (
Voir Dire Reasons
at para. 9), while
noting:

[3]         At that time in Cloverdale there was no capacity
for recording electronically any statements given by an accused person. But it
is important to note that the document that was produced contains the following
statement made by D.N.:

I have been cautioned by Constable Cousins that it is her
duty to warn me. I am not obliged to say anything but that anything I say may
be given in evidence. I understand the meaning of the foregoing and state as
follows

[60]

Moreover, while the practice of recording an interview by audiotape or
videotape is the preferable procedure where that is available, the absence of
such a recording does not, by itself, render any statement made by the accused
inadmissible. As was noted in
Oickle
:

[46]       This is not to suggest
that non-recorded interrogations are inherently suspect; it is simply to make
the obvious point that when a recording is made, it can greatly assist the
trier of fact in assessing the confession.

[61]

Similarly, this Court has stated that while it is recommended, if not highly
desirable, for an interview or interrogation of a suspect to be
contemporaneously recorded, it is not a legal requirement or a condition
precedent to a finding of voluntariness. In short, the failure or inability to
record a statement will go to its weight, not its admissibility. See
R. v.
Quinn,
2009 BCCA 267 at para. 96;
R. v. Narwal,
2009 BCCA 410
at para. 37; and
R. v. Tan,
2014 BCCA 9 at para. 104.

[62]

On appeal, D.N. also raises new allegations, including that of police
impropriety in the manner in which the police conducted themselves during their
interview of him, and police trickery in the manner in which they interviewed
him. He alleges that Cst. Gosselin did in fact have a tape recorder in his
possession that he chose not to use. There is no evidentiary foundation to
support these allegations. D.N
.
did not testify in the
voir dire,
he
did not cross-examine the police witnesses on these allegations, and the judge accepted
their evidence. In short, D.N. simply seeks to re-litigate the submissions he
made before the judge while inviting us to make different findings of fact. Absent
a material error, which D.N. has not demonstrated, the judges findings of fact
must be accorded deference on appeal:
Oickle
at para. 71;
R. v.
Spencer,
2007 SCC 11 at para. 17. Accordingly, I find no merit in this
ground of appeal.

[63]

In the trial proper, D.N. did testify. He alleged that both Csts. Cousins
and Gosselin tampered with the statements each had recorded. However, he
tendered no evidence in support of these allegations and did not cross-examine either
of the officers on them. In accordance with the rule in
Browne v. Dunn
, the
judge gave no weight to his allegations and, in any event, rejected D.N.s
evidence overall as lacking any credibility. I find no merit to this ground of
appeal.

G.      Misapprehension of Evidence

[64]

D.N. submits the judge misapprehended the evidence in two critical
areas. First, he says the judge erred in finding that P.S., on
cross-examination, recalled mutual genital fondling between her and D.N. D.N.
contends that the record does not support that finding. He says the judge took that
information from Crown materials tendered to explain the 1990 stay decision,
which were not admitted for the truth of their content. Second, he submits the
judge erred in accepting P.S.s evidence that D.N. frequently spied on her in
various ways. He argues that the judge accepted her evidence uncritically
while rejecting his evidence.

[65]

The classic statement of the test for misapprehension of evidence may be
found in
R. v. Lohrer,
2004 SCC 80 at para. 2: the misapprehension
must go to the substance rather than the detail; it must be material rather
than peripheral to the judges reasoning; and it must play an essential part in
the reasoning process for a conviction. See also
R. v. Swales,
2014 BCCA
350, where this Court stated:

[49]      It is not enough for
the appellant to merely suggest a different interpretation of the evidence, or
merely point to some evidence which arguable weighs against the trial judges
finding. Mere differences in interpretation on factual matters are not
misapprehensions of evidence but simple disagreements with the judges
differing view of the evidence.

[66]

In sum, the test for overturning a verdict based on a misapprehension of
the evidence is a stringent one. The scope of appellate review of factual
findings and factual inferences is limited to demonstrating that such findings were
clearly wrong, unsupported by the evidence, or otherwise unreasonable:
R. v.
Clark,
2005 SCC 2 at para. 9. I find no merit in this submission.

Evidence on P.S.s cross-examination

[67]

There was a clear evidentiary basis for the judges finding that D.N.
had sexually assaulted P.S. through mutual fondling at his demand. P.S. had not
recalled this evidence in direct examination. However, a question on cross-examination
triggered a strong emotional response with her recollection of this allegation,
which she had not previously remembered. This is evident in the following extract
from her cross-examination:

Q         Okay.
Do you recall telling them that he would then have you lie on top of him,
fondle his penis as he fondled your genital area.

A          That
happened. That really did happen, and I totally forgot about that. I dont
remember what I told those people. But I did not lie to them; I was telling the
truth. Im not a liar. Im not here for my own personal gain. I just want the
truth to be out. This is so terrible.

Q         Do you
need a moment?

A          No.

MR. SHORE:  My
Lord, obviously if she needs a moment, Im --

A          I
dont want a moment. I just want to get this over with.

THE COURT:  Lets press ahead.

[68]

The judge accepted P.S.s evidence in its entirety, finding her a
credible and reliable witness. He accepted this evidence, which provided a clear
evidentiary basis for finding that D.N. had engaged in this activity with P.S.

Spying on P.S.

[69]

The judge further found that D.N. had spied on P.S. when she was in her
bedroom and in the bathroom. P.S. testified that she caught D.N. red-handed on
several occasions, peering through the crack in her bedroom door jam, lying on
the far side of her bed in her bedroom, hiding in her closet, looking through
the bathroom window at her from the roof of the house, and inside the bathroom
when she got out of the shower. She testified to discovering peepholes in the
bathroom floor, since patched up, from which the occupant could be seen from
the furnace room below, and of catching him in the act of spying through those
holes when a friend of hers was using the bathroom. She also testified about finding
holes in her bedroom floor through which she said D.N. spied on her from the
garage below.

[70]

Photographic evidence of the patched-up holes in the furnace room was
admitted into evidence. In addition, the current owner of the house testified
to patching the holes and to the condition of the bedroom door frame when she moved
in. Both pieces of evidence provided some corroboration of P.S.s evidence.

[71]

D.N. submits the judge misapprehended the evidence on this issue because:
(1) he considered P.S.s evidence uncritically; (2) there was no
expert evidence to establish that she could have been observed in the
bathroom through the holes in the floor; and (3) there was no corroborative
evidence of holes in her bedroom floor.

[72]

Again, D.N. simply re-litigates his submissions before the judge. He
takes issue with details in P.S.s evidence about the size of the holes, their
sight lines, where she saw D.N. standing, the content of the excuses he made
when she caught him in the act, and other details of this nature. However, these
engage challenges to the factual findings of the trial judge, which in
accepting P.S.s evidence, were open to him to make.

[73]

In sum, D.N. is unable to identify any material error in the judges
treatment of the evidence that could be said to have played an essential role
in his reasoning process for conviction. D.N.s submissions amount to little
more than a disagreement with the judges assessment of the evidence and the
weight that he gave to it. This was a trial in which the central issue was the
credibility of P.S. and D.N. The judge found P.S. was credible and accepted her
evidence; he found that D.N. was not credible and rejected his evidence.

H.       The Evidence of Sexual Abuse in Switzerland

[74]

D.N. submits the judge erred in admitting highly prejudicial evidence
from P.S. that D.N. continued to sexually assault her when they lived in
Switzerland. He contends that this evidence was not material to the charges in
the indictment, that it coloured the entirety of the evidence upon which the
judge convicted him, and therefore this Court should order a new trial. I cannot
agree.

[75]

No objection was taken to this evidence at trial, which was admitted to
provide context of D.N. and P.S.s relationship, and to further the Crowns
case regarding D.N. viewing P.S. in a sexual way as a child. The evidence was also
relevant to demonstrate D.N.s ongoing sexual interest in P.S., from before
leaving for Switzerland to after their return to Canada. In my opinion, this
evidence was admissible on the basis that its probative value, in that it
related to the same misconduct, with the same victim, during the same
relationship as alleged in all three counts of the indictment, clearly
outweighed any prejudicial effect. I find no error in the admission of this
evidence.

I.        Disposition

[76]

In the result, I would dismiss the appeal.

The
Honourable Madam Justice D. Smith

I AGREE:

The Honourable Mr. Justice Willcock

I AGREE:

The Honourable Mr. Justice
Goepel