COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Rothgordt,

2013 BCCA 37

Date: 20130131

Docket: CA039054

Between:

Regina

Respondent

And

Kim Winslow
Rothgordt

Appellant

Before:

The Honourable Chief Justice Finch

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Harris

On
appeal from: Supreme Court of British Columbia,

January 12
th
,
2011 (conviction) and April 26
th
, 2011 (sentence),

(
R.
v. Rothgordt,
Port Alberni Registry File 31391)

Counsel for the Appellant:

R.A. Mulligan, Q.C.

Counsel for the Respondent:

R.C.C. Peck, Q.C.,

A. Cheon-Hayes

Place and Date of Hearing:

Vancouver, British
  Columbia

December 10
th
,
  2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 31
st
,
  2013

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Harris

Reasons for Judgment of the Honourable
Chief Justice Finch:

I.  Introduction

[1]

Mr. Rothgordt appeals his conviction by a jury in Port Alberni on
12 January 2011, on one count of second degree murder for the death
of James Shannon on 13 February 2008.  Counsel for the appellant asserts a
number of errors, including errors related to alleged irregularities in the
trial process, an error in admitting the appellants criminal record, and a
number of errors in the charge to the jury.  The errors alleged in the jury
charge include the instruction on the defence of provocation, and the trial
judges suggestion that a conviction may be based on a lack of evidence.  The
appellant submits that these two errors are the most serious of all the grounds
of appeal.

[2]

Counsel for the Crown says that the judge did not err in any of the ways
alleged, that the defence did not raise any of these issues at trial, and that
if any errors were made they were inconsequential.  Counsel says the appeal
should be dismissed.

[3]

For the reasons that follow I would allow the appeal.  I will focus on
the issues related to provocation and the use of lack of evidence by the
trial judge.

II.
Background

[4]

As I would allow the appeal and order a new trial, I will refrain from reviewing
the evidence in detail.  What is in these reasons is based on the trial
transcripts.  The appellant did not testify.

[5]

It was not disputed at trial that the appellant killed Mr. Shannon.  What
was at issue was whether the appellant acted in self-defence, was too
intoxicated to form the requisite intent for murder, or was provoked.

[6]

The theory of the Crown was that the two men met at the deceaseds home
and had consensual sex.  However, due to a crisis in his sexual identity, the
appellant was prompted to attack and kill the victim.  The Crown said that
after the accused was arrested for being drunk in a public place he faked a
suicide attempt so that he could lay low in the hospital while he considered
his predicament.  He told the hospital staff he had been sexually assaulted and
said the same thing to the RCMP officer who took a statement from him.

[7]

The learned trial judge summarized the Crowns position in the charge to
the jury as follows:

Here the Crown says that while
they don't have any specific motive to advance, there is evidence that Mr.
Rothgordt may have been sexually confused.  Crown points to evidence that this
was the accused's first homosexual experience and that he may have snapped when
actually confronted by it.  In terms of trial testimony tending to point to
self-defence, intoxication and provocation, Crown says you should treat it with
a high degree of scepticism, that it is a self-serving chronicle designed to
avoid criminal responsibility.

You
heard counsel express their views, but I want to refer to them again so that
you have them firmly in your mind when assessing my instructions.  The Crown
says that Mr. Rothgordt, for reasons that we will never know but perhaps
because of confusion over his sexual orientation, attacked Mr. Shannon in his
home with a hammer causing his death.  Crown then says that consumed with anger
or hatred, the accused committed further acts and attacks upon an already deceased
or dying Mr. Shannon...

[8]

The defence theory at trial was that the appellant was the victim of a
violent sexual assault and that he struck Mr. Shannon with a hammer in order to
defend himself from the attack.  Alternatively, the jury was asked to consider
provocation and intoxication in reducing the verdict to manslaughter.  The
learned trial judge summarized the position of the defence as follows:

The
defence says that Mr. Rothgordt engaged in on-line chats with Mr. Shannon out
of curiosity.  He had never had a homosexual encounter, but thought to add it
to his sexual experience.  However, says defence, he did not ever consent to
the violent sexual attack that is described in his statement to police.  Defence
maintains that the blows to Mr. Shannon occurred in an attempt to stop this
attack.  Alternately, if self-defence is rejected, then there is evidence of
intoxication and/or provocation so as to reduce the allegation in the
indictment to manslaughter.

III.
 The Charge to the Jury and Parties Positions on Appeal

[9]

The learned trial judge provided the jury with written copies of both
his preliminary remarks before any evidence was called, and of his charge to
the jury, before addressing them orally.  I will focus on the instructions as
they relate to the defence of provocation and the appropriate use of a lack of
evidence, as these are the two most serious grounds according to the appellant.

Provocation

[10]

The instructions on provocation and intoxication were generally
intertwined.  At two points, these instructions may have given the impression
that provocation worked in a manner similar to intoxication, such that it did
not apply if the intent to commit the murder was found to be present.  First,
when discussing intent, the trial judge stated:

I told you about the Crown's
burden to prove intent for murder beyond a reasonable doubt.  In considering
this burden, you must assess and take into account all of the evidence
respecting intoxication or provocation, about which I will refer further when
discussing the evidence, to determine whether the accused could have formed
this required intent.

[11]

Second, when discussing the possible verdicts, the trial judge stated:

On the evidence before you, there are three possible verdicts
on the count in the Indictment:

...

Not guilty of second degree murder but guilty of
manslaughter [if you find provocation or intoxication through ingestion of drugs/or
alcohol so as to negate the intent required for murder, or you have a
reasonable doubt about that].

[12]

The appellant submits that the judges instructions incorrectly mixed
the defences of intoxication and provocation.  The charge left the jury with
the mistaken impression that provocation only applied if they found that the appellant
did not have the required intent for murder.

[13]

The Crown submits that when read as a whole, the instructions did not
leave the jury with an erroneous impression of how provocation operates.
Rather, it was clear that the instructions directed the jury to consider
whether or not the defence of intoxication prevented the appellant from forming
the requisite intent for murder.  The Crown submits that the instructions
properly provided the jury with the relevant
Criminal Code
sections,
which the appellant concedes indicate that the defence applies even where the
requisite intent for murder is present.

Lack
of Evidence

[14]

The pre-evidence instructions contained numerous references to how the
jury may use a lack of evidence.  Generally, these references involved using
a lack of evidence to support a reasonable doubt.  For example, the trial judge
stated:

It is extremely
important that you appreciate that this doubt must arise from the evidence or
lack thereof. It cannot be a doubt entirely unconnected with the evidence,
which I would call a capricious or fanciful doubt.

[15]

However, at the conclusion of his initial
discussion on reasonable doubt, the trial judge stated that a lack of evidence
may be used to support a conviction:

In short, if,
based upon the evidence before the court, or lack of evidence, you are sure
that the accused committed the offence, you should convict, since this
demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[16]

Following the closing addresses from counsel, in
his final instructions, the trial judge referred the jury back to his
pre-evidence instructions.  He repeated the above statements regarding the use
of lack of evidence, again concluding:

So, in short, if based upon the
evidence before the court, or lack of evidence, you are sure the accused
committed the offence, you should convict, since this demonstrates that you are
satisfied of his guilt beyond a reasonable doubt.

[17]

The appellant submits that the instruction that a lack of evidence can lead
to a conviction is clearly wrong in law.

[18]

Crown submits that the instructions on reasonable doubt were properly
based on the model provided in
R. v. Lifchus
, [1997] 3 SCR 320.  While
it would have been preferable if the suggestions that a conviction may be based
on a lack of evidence were not made, as a whole, the instructions provided the
proper guidance to the jury.  The instructions were clear that a reasonable
doubt may be based on an absence of evidence, that the burden of proof rested
on the Crown, and that the Crown must discharge this burden by presenting
evidence.  Read as a whole, there was no reasonable prospect that the jury
thought they could convict the appellant on an absence of evidence.

IV.  Analysis

Provocation

[19]

I will first consider the assertion that the jury was misdirected on the
defence of provocation, so that they may have been left with the impression
that the defence only applies if the jury found that the appellant did not have
the requisite intent for murder.  As noted above, there are at least two
instances where the instructions give rise to such a concern.

[20]

Where both intoxication and provocation are raised as defences, care
must be taken to ensure that the jurors are aware of the differences in how the
two defences operate.  As was suggested in
R. v. Kent
, 2005 BCCA 238, 196
C.C.C. (3d) 528, paras. 14-15, the preferred approach should be to instruct the
jury on intoxication first, including the logical connection between
intoxication and the requisite intent for murder.  The jury should be
instructed that if intoxication as a defence is accepted, then there is no
intent for murder and provocation need not be considered.  Second, the jury
should be instructed that, if the necessary intent for murder is found beyond a
reasonable doubt, they must then consider provocation.  In explaining
provocation where intoxication is also present, the instruction should explain how
the intoxication may have affected the appellant in relation to the elements of
provocation.  As Low J.A. stated, at para. 15, [e]vidence of intoxication
that falls short of negating intent is still to be considered when discussing
the defence of provocation.

[21]

In this case, as in
Kent
, the jury instruction did not clearly
separate the two defences, potentially leading to confusion concerning how each
defence operates.  In
Kent
, Low J.A. summarized the concern, at para.
18:

The appellant contends that the
learned trial judge, when instructing and re-instructing the jury, did not
sufficiently separate the element of intent and the defence of provocation
thereby creating confusion in the minds of the jurors.  He says the charge
and recharge considered in their entirety give rise to a serious concern that
the jury did not appreciate that the defence of provocation was available to
the appellant even if the Crown proved that he had a murderous intent ...
I am compelled to agree...

[22]

The Crown submits that
Kent
can be distinguished from the present
case on two points.  First, in
Kent
, the jury asked a number of
clarification questions which demonstrated that they were confused on the
question of how provocation operated. In this case, no clarification questions
were asked.  Second, in
Kent
, the jury was not provided with the
relevant sections of the
Criminal Code
.  In his reasons, Low J.A.
suggested that it would have been preferable for the jury instruction in that
case to have included the sections.  In this case, the jury instruction
contained the relevant sections to the
Criminal Code
on the defence of
provocation.

[23]

With respect, I do not consider
Kent
as distinguishable on either
of these two points.  The central question both here and in
Kent
is
whether or not the instructions, read as a whole, were likely to produce
confusion on the defence of provocation.  In
Kent
, the source of that
confusion was the recharge.  In this case, the source of the confusion is the
initial charge.  Further, while Low J.A. found that providing the
Criminal
Code
sections to the jury in that case would have been preferable to a
confusing summary of the sections, that does not mean providing the sections
alone is sufficient.  Again, the question is whether or not the charge, read as
a whole, left the jury with the erroneous idea that provocation did not apply
if they found that the accused had the requisite intent for murder.

[24]

Having read the charge as a whole, I conclude that the instructions may
have left the jury with that incorrect understanding of the defence.  The
instructions twice suggested that provocation was to be used in a manner
similar to intoxication.  While the sections of the
Criminal Code
were
provided, this alone was unlikely to have removed the confusion.  Simply
providing
Criminal Code
sections does not discharge a trial judges duty
properly to instruct a jury, particularly where other elements of the charge
contradict the meaning of those sections.  Further, the instruction did not properly
address the individual elements of the defence of provocation, or how
intoxication may be considered in relation to these elements.

[25]

Read as a whole, I do not consider that the instructions sufficiently
explained how the defence of provocation may apply, and had the effect of
depriving the appellant of the full force of this defence.  Accordingly, I
would give effect to this ground of appeal.

Lack of evidence

[26]

A second ground of appeal is the way the judge referred to lack of
evidence in the instructions.  At numerous points, the trial judge said that a
reasonable doubt may be based on either evidence or the absence of evidence.  This
is a correct instruction, and had the references to the lack of evidence
ended there, I would see no merit in this ground of appeal.  However, in both
his opening remarks to the jury and his closing remarks, the trial judge
concluded his discussion of the presumption of innocence and proof beyond a
reasonable doubt with the following statement:

In short if, based upon the evidence before the Court
or
lack of evidence
, you are sure that the accused committed the offence you
should convict since this demonstrates that you are satisfied of his guilt
beyond a reasonable doubt.

[Emphasis added.]

[27]

This language is effectively identical to the language originally proposed
as a model jury instruction on reasonable doubt in
R. v. Lifchus
, as
printed in:  [1997] 216 N.R. 215 (S.C.C.), para. 39.  However, the suggested
language in
Lifchus
was subsequently amended following a rehearing to
remove the statement that a conviction could be based on a lack of evidence.  The
amended wording, as printed in
R. v. Lifchus,
[1997] 3 SCR 320, para.
39, now reads:

In short if, based upon the
evidence before the court, you are sure that the accused committed the offence
you should convict since this demonstrates that you are satisfied of his guilt
beyond a reasonable doubt.

[28]

As was stated in
R. v. G.(G.)
, 2001 BCCA 462, 156 C.C.C. (3d) 497,
para. 23
,
if a trial judge wishes to use the language from
Lifchus
,
it is the more recent version that must be used.  Stating that a conviction may
be based on an absence of evidence is an incorrect instruction:
R. v. G.(G.)
;
R. v. G.(M.)
(2001), 155 C.C.C. (3d) 353, 147 O.A.C. 348 (CA), para. 24.

[29]

Unfortunately, the error is not uncommon, presumably due to the
confusion stemming from different wording existing in different reported
versions of the
Lifchus
decision.  For example, see:
R. v. Benmore
,
2011 CanLII 77762 (NL PC);
R. v. Storey
, 2010 NBQB 86.

[30]

I accept the Crowns submissions that the trial judge correctly
instructed jurors that an absence of evidence may be used to find a reasonable
doubt, that the burden of proof rests on the Crown, and that the burden is to
be discharged by presenting evidence.  I also accept that a jury charge is to
be assessed on whether or not it substantially complied with the principles
laid out in
Lifchus
, and need not be faulted for imprecise language:
R.
v. Avetysan
, 2000 SCC 56, 2 S.C.R. 745, para. 12.

[31]

In this charge, the statements that a conviction may be based on a lack
of evidence cannot be said to substantially comply with the principles in
Lifchus
.
This is not to say that an absence of evidence is never relevant in leading to
a conviction.  For example, where the absence of evidence means there is no air
of reality to a particular defence, the judge may decide not to put a defence
to the jury.  However, to inform a jury that a conviction may be based on a
lack of evidence, without proper guidance or explanation on how to use, and not
misuse, this principle, is an error.  It threatens to contradict the onus that
the Crown proves its case beyond a reasonable doubt.

[32]

This error is particularly prejudicial in a case such as this, where the
appellant did not testify and elected to not call any evidence.  Accordingly, I
would also give effect to this ground of appeal.

[33]

Having identified the two errors above, I do not see it as necessary to
address the other grounds of appeal.

Curative Proviso

[34]

Neither party has provided arguments specifically directed to the
curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
.  The Crown
has suggested that the case against the appellant was overwhelming, which is a
consideration in determining whether or not the proviso should apply.  Accordingly,
I will briefly address the proviso here.

[35]

The curative proviso can apply in two situations.  First, it may apply
where the errors are harmless.  Harmless errors are those that are minor, and
have no prejudicial effect on the accused.  The errors in this case cannot be
said to be harmless.  The misdirection regarding the defence of provocation risked
depriving the appellant of one of his defences.  The instruction that a
conviction may be based on a lack of evidence was prejudicial to the appellant
given, as noted above, that he did not testify and decided against calling
evidence at trial.

[36]

Second, the curative proviso may apply to serious errors where the
evidence against the accused was so overwhelming that no substantial wrong or
miscarriage of justice occurred.  In

R. v. Trochym,
2007
SCC 6, 1 S.C.R. 239, Deschamps J. summarized this higher standard for
serious errors as follows:

[82]  The
instant case is one that falls squarely within the second category of serious
errors that will justify a new trial unless the properly adduced evidence is so
overwhelming that a conviction is inevitable, or would invariably result.
This standard should not be equated with the ordinary standard in a criminal
trial of proof beyond a reasonable doubt. The application of the proviso to
serious errors reflects a higher standard appropriate to appellate review. The
standard applied by an appellate court, namely that the evidence against an
accused is so overwhelming that conviction is inevitable or would invariably
result, is a substantially higher one than the requirement that the Crown prove
its case beyond a reasonable doubt at trial.  This higher standard
reflects the fact that it is difficult for an appellate court, in particular
when considering a jury trial, since no detailed findings of fact will
have been made, to consider retroactively the effect that, for example,
excluding certain evidence could reasonably have had on the outcome.

[37]

Having reviewed the evidence, I cannot conclude that the evidence meets
this higher standard.

[38]

There was no dispute that the appellant killed Mr. Shannon.  However, his
counsel argued that self-defence, intoxication, and provocation each could
apply.  Each of these defences found some support in the evidence.  In
particular, the appellants statement to police provided a version of the
events upon which the defences may have been established, or a reasonable doubt
may have been raised about their applicability.  While the appellants
statement to police was inconsistent with some of the other evidence, whether
to accept it or not was a decision for the jury.  Having been improperly
instructed on one of these defences, as well as on the meaning of proof beyond
a reasonable doubt generally, I cannot say that the jury would have necessarily
reached the same verdict had these errors not been committed.

[39]

For these reasons, I would allow the appeal, set aside the conviction,
and order a new trial.

The Honourable Chief Justice Finch

I Agree:

The Honourable Madam Justice
Neilson

I Agree:

The Honourable Mr. Justice Harris


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Bradshaw v. Stenner,

2013 BCCA 61

Date: 20130201

Docket: CA039779

Between:

Lori Noreen
Bradshaw

Respondent

(Plaintiff)

And

Kimberley Shane
Stenner

Appellant

(Defendant)

And

John Bradshaw

Respondent

(Defendant
by Counterclaim)

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice Garson

On appeal from: Supreme
Court of British Columbia, February 17, 2012
(
Bradshaw v. Stenner
, 2012 BCSC 237, Vancouver Registry No. S072722)

Oral Reasons for Judgment

Counsel for the Appellant:

G.C. Crickmore

Counsel for the Respondent:

A.P. Morrison

Place and Date of Hearing:

Vancouver, British
  Columbia

January 31, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

February 1, 2013

[1]

SAUNDERS J.A.
:
This
is an application by Ms. Stenner to review an order of a single justice,
Mr. Justice Hinkson, sitting in chambers. By the order the learned justice
declared that leave was required to appeal the matter sought to be brought
before the court, and declined leave to appeal.

[2]

The
application is brought pursuant to s. 9(6) of the
Court of Appeal Act
,
R.S.B.C. 1996, c. 77. On such an application this court does not conduct a
rehearing. Rather, as set out in
Haldorson v. Coquitlam (City)
, 2000
BCCA 672 at para. 7, 149 B.C.A.C. 197, we direct our inquiry to the
following questions, all in consideration of the interests of justice:

a)       was the justice wrong in law?

b)       was the justice wrong in principle?

c)       did the justice misconceive the facts?

[3]

The
order sought to be appealed is an order for special costs, assessed summarily
by the judge in the amount of $5,000 per half day, producing an amount of
$465,000.

[4]

In
his reasons for judgment Mr. Justice Hinkson concluded that leave to appeal was
required. In doing so he considered the relevant authorities from this court,
in the context of our constating statute and
Rules
.

[5]

Section
7 of the
Court of Appeal Act
requires leave to appeal a limited appeal
order. Limited appeal orders are relatively new. The
Rules
define
limited appeal orders in R. 2.1, including (f): an order granting or
refusing costs, or granting or refusing security for costs, if the only matter
being appealed is that grant or refusal. That Rule replicated the previous
Rule which also required leave to appeal an order granting or refusing costs,
where such order was the only matter being appealed.

[6]

In
this case there has been an appeal, dismissed, of the substantive judgment in
the case. The order of costs was made as a separate order and is now the only
matter sought to be brought before this court. In these circumstances, in my
view, the justice was entirely correct in determining that leave to appeal is
required.

[7]

This
brings us to the question of whether a basis is made out to vary his order
denying leave to appeal.

[8]

Two
aspects of the Supreme Court order are sought to be challenged on the appeal,
first the order for special costs, and second the summary assessment of special
costs.

[9]

As
to the first of those issues, it is well known that decisions as to the type of
costs appropriate to a given matter, whether party and party, or special costs,
engages the discretion of the judge making the order. It is that judge, after
all, who sits in the best position to appreciate the relevant factors. In this
case the order for special costs reflected the conduct of the litigants, the
judges view of credibility of the parties, her assessment of the use of court
resources and her view of the honour of the parties in conducting the
litigation. Exercise of discretion that is made reflecting these factors, as
was this order, is most unlikely to be disturbed by a division of this Court.

[10]

The
single justice observed in his para. 37:

[37]      The trial judge
based her award of special costs on these findings, and Ms. Stenners
complaints about the basis for the award are largely, if not entirely, an
attempt to challenge the judges findings of fact and re-argue the basis for the
award. I am not persuaded that Ms. Stenners complaints meet the required test
for merit.

[11]

I
see no misunderstanding or error on the part of the justice in that assessment.
Indeed I entirely agree with it, and there is, accordingly, no basis to
interfere with his order on this proposed ground of appeal.

[12]

Having
decided special costs were appropriate, it was open to the judge to assess them
herself. While I may be puzzled at the judges reference to the issue of
privilege weighing in favour of an immediate summary assessment, because
obviously a person seeking special costs waives, to some extent, matters
between themselves and counsel as are necessary to permit consideration of the
criteria applied under Rule 14 of the
Supreme Court Civil Rules
, it
seems to me from reading the judges reasons on costs, that she decided to
summarily assess special costs in the interests of conservation of judicial
resources, in the context of these protracted, and to some degree wasteful,
proceedings. This court, again, would be most unlikely to interfere with that
exercise of discretion.

[13]

The
second ground of appeal sought to be advanced concerns the summary assessment
itself. Here rise two questions  first the question whether the judge erred in
assessing costs absent evidence before her as to Ms. Bradshaws actual costs,
and second the method chosen by the judge to assess the costs  $5,000 per half
day of trial up to a particular date.

[14]

On
the first matter, it is clear that the judge in this case did not have before
her any evidence as to the legal fees charged to Ms. Bradshaw (although an
affidavit had been filed, it had been filed outside of a time line set by the
court and was disregarded). It is said that there is merit to the argument that
the judge erred in assessing costs absent such evidence and that the single
justice in chambers failed to appreciate that absence of evidence.

[15]

On
the second matter, the method of calculation of the costs awarded, the judge
applied the amount awarded by this court in
Interclaim Holdings Ltd. v. Down
,
2002 BCCA 632, of $5,000 a half day. That amount crops up again in
Buchan v.
Moss Management Inc.
, 2010 BCSC 121, appeal dismissed 2010 BCCA 393. See
also
ICBC v. Eurosport Auto Co. Ltd.
Ms. Stenner contends the judge
erred by applying this amount as if it were a rule or a principle, and that the
single justice in chambers himself erred in failing to appreciate the error of
that methodology.

[16]

Both
the need for evidence and the uncritical application of the half day fee
allowed in
Interclaim
may be issues for resolution by this court in
another case. However, in this case, I do not consider they rise to the level
that warrants leave being granted, for these reasons. First, the transcript of
the costs hearing contains an exchange in which the judge asked counsel for
Ms. Stenner whether she should have evidence on the fees charged, and
inviting an adjournment. This open door was not taken up by then counsel for
Ms. Stenner. Having failed to avail herself of the opportunity given at the
trial level to pursue this issue, I do not consider it in the interests of
justice that leave be given to allow her to do so on appeal. Second, the
reasons for judgment in the order sought to be varied demonstrate Ms. Stenners
position that costs in the amount of $465,000 represented full indemnity. That
submission is at odds with needing to know, through evidence, the amount of
fees that have been charged.

[17]

Nor
does it appear to me that the single justice misunderstood the
Interclaim
rule of thumb issue  he simply considered that in this case it did not
sufficiently support an appeal. Obviously
Interclaim
does not impose a
rule or principle dictating the amount to assess as special costs for a half
day. It could not do so, nor did it purport to do so. An assessment is required
to be case specific and must respond to the language of Rule 14 of the
Supreme
Court Civil Rules
. It seems to me that
Interclaim
is simply a case
in which, in the interests of efficiency, in proceedings that had consumed a
vast amount of court resources with legal accounts that exceeded well over a
million dollars, this court made an assessment. That assessment was made with
appreciation of the nature of the issues and positions taken below, the degree
to which the services were provided in relation to the litigation and for the
party entitled to costs, and the enthusiastic engagement of all the parties in
the full blown extenuated litigation. Not much more can be said about it than
that.

[18]

Here
the single justice in chambers declined to give leave to appeal this issue. In
doing so it does not appear to me that he demonstrated any misunderstanding as
to the import of
Interclaim
. Nor, in the circumstances of this
protracted litigation, does it appear to me that there is sufficient prospect
of a significant reduction in the amount of special costs assessed that it can
be said the interests of justice would be served by giving leave to appeal.

[19]

I
cannot say the single justice misunderstood any aspect of the matter as it was
put to him. I would dismiss the application.

[20]

KIRKPATRICK J.A.
: I agree.

[21]

GARSON J.A.
: I agree.

[22]

SAUNDERS

J.A.
: The application is dismissed.

The
Honourable Madam Justice Saunders


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Cole v. British Columbia Nurses Union,

2014 BCCA 2

Date: 20140107

Docket: CA040829

Between:

Neil Cole
(a.k.a. Norbert Nowik)

Respondent/
Appellant on Cross Appeal

(Petitioner)

And

British Columbia
Nurses Union

Appellant/
Respondent on Cross Appeal

(Respondent)

And

Vancouver Coastal
Health Authority and
Workers Compensation Appeal Tribunal

Respondents

(Respondents)

Before:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Lowry

On appeal from:  An
order of the Supreme Court of British Columbia,
dated March 26, 2013 (
Cole v. Workers Compensation Appeal Tribunal
,
Vancouver Docket S091513).

Counsel for the Appellant:

S. Anderson

Appearing on his own behalf:

N. Cole

Counsel for the Respondent,
Vancouver Coastal Health Authority:

M. N. Peirce

Counsel for the Respondent,
Workers Compensation Appeal Tribunal:

J. T. Lovell and M. Bennett

Place and Date of Hearing:

Vancouver,
  British Columbia
December 4, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 7, 2014

Written Reasons by:

The Honourable Mr. Justice Donald

Concurred in by:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Lowry

Summary:

The chambers judge refused
to grant an order dismissing a petition for judicial review for want of
prosecution.  The decisive factor in her analysis was the petitioners
self-represented status.  Held: Appeal allowed.  It is right and just to
accommodate self-represented litigants in procedural and evidentiary matters.  However,
in this case the delay was not attributable to a misunderstanding of court
rules or a mere slip related to lack of legal counsel.  The delay was tactical
and strategic.  The judge was wrong to consider self-represented status as
determinative.  The petition for judicial review should be dismissed.

Reasons
for Judgment of the Honourable Mr. Justice Donald:

[1]

The motion of the British Columbia Nurses Union (the Union) to strike
out Mr. Coles judicial review petition for want of prosecution was
dismissed by the chambers judge for the sole reason that Mr. Cole was a
self-represented litigant.  The judge found the delay was inordinate,
deliberate and prejudicial, but nevertheless decided that on the balance of
justice criterion of the applicable test, Mr. Coles self-represented
status should permit him one more opportunity to proceed with his case.

[2]

The Union brings this appeal on the ground that since Mr. Coles
self-representation did not cause the delay, the judge acted on an irrelevant
factor in dismissing the motion.  I agree.  I would allow the appeal and grant
the motion to dismiss the petition.

Background

[3]

Mr. Cole, a registered nurse and member of the Union, came into
conflict with his supervisor at Vancouver General Hospital in and around 2003
and 2004.  In May 2004, the conflict escalated and Mr. Cole filed
grievances with the Union, alleging, amongst other things, that harassment by
his supervisor had created a toxic work environment.  He took a medical leave
from work and is now on long-term disability.

[4]

The Union pursued several grievances on behalf of Mr. Cole.  In
December 2004, after mediation and discussions between the parties, the
employer, Vancouver Coastal Health Authority, proposed a settlement agreement.
A significant feature of the agreement was Mr. Coles transfer to a new worksite,
Lions Gate Hospital.  Mr. Cole informed the Union that he did not wish to
accept the proposal; nonetheless, the Union and employer settled as per the
proposed agreement.

[5]

Mr. Cole refused to report to Lions Gate Hospital.  His employer
and the Union informed him that if he did not, he could face termination.

[6]

Mr. Cole complained to WorkSafeBC, the agency that administers the
Workers
Compensation Act
, R.S.B.C. 1996, c. 492, that the actions of his
employer and his Union were discriminatory within the meaning of the
Act
.
Mr. Cole argued that he could not return to work at Vancouver General
Hospital because it was psychologically unsafe and forcing him to change worksites
violated the
Act
s prohibition against discriminatory actions involving
a worker who reports unsafe working conditions.  Why, he reasoned, should he be
reassigned to a distant hospital just because he complained of harassment by
management?

[7]

The complaint was dismissed by a WorkSafeBC adjudicator on May 22,
2007 (Worker Complaint of Discriminatory Action Decision, Reference
2005-D-183). Mr. Cole then filed an appeal with the Workers Compensation
Appeal Tribunal (WCAT).  In an extensive and detailed decision dated December
19, 2008, the Vice Chair of WCAT dismissed the appeal (WCAT-2008-03834).

[8]

On February 27, 2009, Mr. Cole filed a petition for judicial review
of the WCAT decision.  There is a great deal of dispute concerning whether Mr. Cole
also filed an application for reconsideration with the tribunal and, if so,
whether it was in process when the application to dismiss his judicial review
was heard.

[9]

Mr. Cole asserts before this Court that he has now, as he did at the
time of the chambers hearing, an outstanding application for reconsideration
before WCAT and that the reconsideration holds in abeyance the judicial review
process.  The Union asserts that Mr. Cole had done nothing to advance the
reconsideration until the hearing here under appeal had begun.  The record is
confused about various aspects of the reconsideration application.  With
respect, WCATs position on the status of the reconsideration matter lacks
clarity.

[10]

Regardless, central to understanding the prolonged nature of this
dispute is Mr. Coles insistence that Vancouver Coastal Health Authority
and the Union have not disclosed documents necessary for him to make his case.  He
appears to take the view that he is entitled to the kind of document discovery
that pertains to civil actions in the Supreme Court, encompassing anything that
may
be relevant.  He has made this case before WorkSafeBC and WCAT.

[11]

Both tribunals have refused Mr. Coles document demands, insisting
that he demonstrate relevance before entertaining any request for production.
This put Mr. Cole at a standoff with the tribunal: he insisted that he
could not say whether any particular document was relevant until he inspected
it; and the tribunals insisted on relevancy as a pre-condition for ordering
production.

[12]

Mr. Cole dealt with the WCAT ruling against his demand for
discovery of documents by applying to the Office of the Information and Privacy
Commissioner (OIPC) under the
Personal Information Protection Act
,
S.B.C. 2003, c. 63, for copies of his personal records kept by the Union
and Vancouver Coastal Health Authority.

[13]

The OIPC process, at least as it pertains to Vancouver Coastal Health
Authority, is yet to be completed.  It is the single most significant
contributor to the delay in proceeding with the judicial review.  Mr. Cole
has refused to advance the judicial review until he is satisfied he has the
documents he needs.

[14]

It is against years of delay that the Union wrote to Mr. Cole on
September 30, 2011, warning him that if he did not press on with the
reconsideration application or the judicial review within 10 days, it would
move to strike out the petition for judicial review.  The Union filed an
application to dismiss Mr. Coles judicial review for delay and want of
prosecution on January 12, 2012, amended May 9, 2012.  It is that
order that Mr. Cole appeals.

The Decision Under Appeal

[15]

The chambers judge correctly cited this Courts decision in
0690860
Manitoba Ltd. v. Country West Construction Ltd.
, 2009 BCCA 535, as setting
out the test for determining whether to dismiss an action for want of
prosecution.  She described the factors in this way:

[5]         The court must weigh the following four factors
in a want of prosecution application: (1) the length of the delay and whether
it was inordinate; (2) any reasons for the delay; (3) whether the delay has
caused serious prejudice to the defendant in presenting a defence, and if there
is such prejudice, whether it creates a substantial risk that a fair trial is
not possible; and (4) whether, on balance, justice requires dismissal of the
action.

[6]        In
0690860 Manitoba
,
the Court of Appeal held that the final factor was the most important and
decisive question of all (para. 29).

[16]

The judges analysis of the four factors is brief.  In pertinent part,
the reasons say:

Disposition

Length
of the Delay and Whether it was Inordinate

[7]        I find the delay has been both lengthy and
inordinate. Mr. Cole commenced his application for judicial review in
February 27, 2009. Yet, this proceeding arises from events that transpired in
his workplace in 2004. Administrative proceedings in the labour relations
context must be dealt with expeditiously, which Mr. Cole has failed to do.
As support for this proposition, I note that s. 57(1) of the
Administrative
Tribunals Act
, S.B.C. 2004, c. 45 [
Act
] provides that unless
this
Act
or the tribunals enabling legislation provides otherwise, an
application for judicial review of a final decision of a tribunal must be
commenced within 60 days of the date the decision is issued. To date, Mr. Cole
has not proceeded with this judicial review. This is not expeditious conduct.

Reasons
for the Delay

[8]        Mr. Coles delay was strategic and tactical.
It was a means of forcing an order for production of documents, which has
already been denied by WCAT. I note that his application for reconsideration of
that decision was considered withdrawn by WCAT.

Prejudice
to BCNU

[9]        The delay in this proceeding has given rise to
some prejudice toward the applicant. While I am not satisfied this prejudice is
irreparable, I am certain that the delay will impose additional costs upon the
applicant to have its now retired Executive Director return to Vancouver to
provide evidence.

[10]      Of greater significance, the delay is prejudicial
to the applicant by virtue of the impact the passage of time will have upon the
reliability of the evidence. While the respondents in the petition are large
organizations that have the capacity to preserve records, the individuals that
may be called upon to give evidence may find it difficult to recall events that
are important for the determination of the matter.

Balance
of Justice

[11]      All the same, the final factor, on balance of
justice, militates against dismissing the petition for want of prosecution. I
find that for much of the duration of Mr. Coles case, he has acted on his
own behalf. Dismissing his case for want of prosecution would indeed be a
draconian remedy in view of his
self-represented status
.

* * *

[18]      I expect Mr. Cole
will consider his position extremely carefully, because I have come within a
hairs breadth of dismissing his case for want of prosecution. The submissions
of the applicant were compelling, and it is really only
his status
as an
unrepresented litigant that has led me to give him this final opportunity. He
shall move to set down the date for trial immediately.

[Emphasis
added.]

Issue

[17]

The Union alleges three errors:

[i.]        The Chambers Judge erred in the exercise of her
discretion by a) making an error wrong in principle; and b) taking
into account an irrelevant consideration, namely Coles status as a
self-represented litigant.

[ii.]       Further, the Chambers Judge erred in the exercise
of her discretion by according Coles status as a self-represented litigant as
the most important and decisive factor, thereby trumping all relevant
considerations.

[iii.]       The Chambers Judge
must exercise her discretion in accordance with the applicable legal principles
that govern the exercise of judicial discretion.

Discussion

Standard of Review

[18]

The Union acknowledges this is a discretionary decision entitled to a
high degree of deference.  It is well settled that this Court may interfere
with a discretionary decision where the judge failed to give weight to all
relevant considerations or committed an error of principle:
Reza v. Canada
,
[1994] 2 S.C.R. 394 at 404;
Friends of the Oldman River Society v. Canada
(Minister of Transport)
, [1992] 1 S.C.R. 3 at 76-77; and
Harelkin v.
University of Regina
, [1979] 2 S.C.R. 561 at 587-88.

[19]

Here, the Union says that the judge gave weight to an irrelevant factor,
Mr. Coles self-representation, or erred in principle in giving it
dispositive effect when it had no bearing on the substantive factors of delay,
excuse and prejudice.

Cross Appeal

[20]

Mr. Cole has filed a cross appeal with the intention of questioning
the judges findings on the factors of excuse and prejudice.  He did not need
to file a cross appeal to do this; he is entitled to support the dismissal
decision on any ground in the record.  A cross appeal is only required if the
respondent requests a different order, which Mr. Cole does not.

[21]

It is convenient to deal with the arguments for the appeal and cross
appeal together.

Delay

[22]

There is no dispute Mr. Coles delay in prosecuting the judicial
review has been inordinate.  The question is whether he has a reasonable
excuse.  Mr. Cole argues that the clock stopped on the judicial review
while the WCAT reconsideration application was pending and because he must
first exhaust his internal remedies; and, secondly, his case was tied up with
the OIPC which has been slow in dealing with his document requests.  Mr. Cole
submits that in light of this, the judge was wrong to blame him for the delay
and wrong to label the delay as strategic or tactical.

[23]

The record does not support the first contention.  When the hearing of
the motion began, Mr. Coles only activity in the reconsideration process had
been quarrelling with the WCAT over document discovery and disputing the fact
that he had actually made an application for reconsideration.  The Union gave
him fair notice to deal with reconsideration, if that was his intention, and he
did nothing about it.

[24]

The second point must also fail.  The Union submits that the OIPC
application is an abuse of process as it amounts to a collateral attack on the
WCATs decision refusing him document discovery.  Since that was one of the
decisions sought to be reviewed in the petition and could be reconsidered by
the WCAT itself, the Union says that Mr. Cole cannot excuse his inaction
because of the slow pace of the OIPC process.  I prefer not to offer an opinion
about abuse of process but I consider the point well taken that Mr. Cole
should have proceeded expeditiously in the forum he chose rather than to pursue
new proceedings elsewhere.

[25]

In my opinion, the judge reasonably concluded that Mr. Coles delay
was strategic and tactical  in other words, intentional, calculated and not
inadvertent or as a result of unsophistication in legal matters.  Before the
chambers judge, Mr. Cole did not seek to justify his delay by reason of
self-representation as a lay person.  His lack of legal sophistication is not
in issue.  WCATs assessment of his capacity was as follows:

[8]        In this case I have decided not
to grant the workers request for an oral hearing. The worker is unrepresented,
but is highly intelligent and articulate  his extensive written submissions
reflect those qualities. The employer and union are each represented by
lawyers; written submissions provided in these proceedings by the lawyers on
their clients behalf are equally thorough. I have found that the read and
review process of exchanging written submissions did not prejudice any of the
parties in this case in their ability to present their respective cases.

Prejudice

[26]

Mr. Cole submits that the test to dismiss an action for want of
prosecution requires serious prejudice and the judge found only some
prejudice, not irreparable.  He argues that fading memories are not an adequate
basis for dismissal, especially since, to this point, the case has been dealt
with in writing rather than by oral hearings.

[27]

My reading of the judges reasons indicates that she found sufficient
prejudice to support the motion, hence her concluding words that she found
[t]he submissions of the applicant were compelling and only Mr. Coles
status led to the dismissal of the motion.

[28]

As the Union argues, the labour relations context informs the evaluation
of prejudice.  Problems in that field get much worse with delay, to everyones
detriment.  The words of Cory J. in
Dayco (Canada) Ltd. v. CAW-Canada
,
[1993] 2 S.C.R. 230 at 306-07 are apposite:

Unresolved disputes
fester and spread the infection of discontent.  They cry out for resolution.
Disputes in the field of labour relations are particularly sensitive.  Work is
an essential ingredient in the lives of most Canadians.  Labour disputes deal with
a wide variety of work related problems.  They pertain to wages and benefits,
to working conditions, hours of work, overtime, job classification and
seniority.  Many of the issues are emotional and volatile.  If these disputes
are not resolved quickly and finally they can lead to frustration, hostility
and violence.  Both the members of the work force and management have every
right to expect that their differences will be, as they should, settled
expeditiously.  Further, the provision of goods and services in our complex
society can be seriously disrupted by long running labour disputes and
strikes.  Thus society as a whole, as well as the parties, has an interest in
their prompt resolution.

[29]

This passage was cited by the Ontario Divisional Court which dismissed
an application for judicial review of an Ontario Labour Relations Board
decision after a two-year delay:
International Union of Bricklayers and
Allied Craftworkers v. Ontario Provincial Conference of the International Union
of Bricklayers and Allied Craftworkers
(2000), 132 O.A.C. 87 at paras. 16
and 18.

[30]

I am persuaded the judge found that the Union satisfied the test of
prejudice and did not err in doing so.

Balance of Justice

[31]

In my opinion, the imperative of expedition in labour disputes bears on
both the last and general factor, the balance of justice, and prejudice.  Delay
can disturb the balance and impede a satisfactory outcome for all concerned.
The parties need to know, within a reasonable time, where they stand on the
dispute so they can get on with their affairs.  The judge recognized this
element at para. 7 of her reasons.

[32]

In his cross appeal, Mr. Cole submits that two other features of
the case should be considered under balance of justice:  the importance of the
case to workers generally and an allegation that the Union seeks a
discretionary remedy without clean hands.

[33]

In brief, the first point is related to the argument Mr. Cole
proposes to make on judicial review.  He intends to argue that WorkSafeBC and
WCAT imported a fault element into the
Acts
discrimination provision,
that is, an intention to discriminate, whereas he says that analysis leaves out
injurious effect discrimination, which is open to him in the present case.
Without delving into statutory interpretation at this stage, wherever he is
importing human rights theory into workers safety legislation I can only say
that the point is of doubtful merit and I fail to see how his complex set of
facts is likely to have any general impact on the workforce at large.

[34]

The second point accuses the Union and employer of wrongfully
withholding documents and hence having unclean hands.  As such, they are, Mr. Cole
submits, not entitled to the favourable exercise of the Courts discretion in
dismissing the petition.  In my view, this cannot be entertained as it is
unsupported by any determination by the WorkSafeBC adjudicator or WCAT, having
exclusive jurisdiction in the matter, that either the Union or employer
defaulted in producing relevant documents.

[35]

Finally, I turn to the self-representation issue.  As I earlier stated,
I think the judge erred in dismissing the motion on the ground of Mr. Coles
status in the absence of any nexus between his status and the delay.

[36]

It is right and just to accommodate self-represented litigants on
procedural matters, recognizing their relative disadvantage in an unfamiliar
setting.  In 2006, the Canadian Judicial Council adopted a Statement of
Principles on Self-represented Litigants and Accused Persons.  It contains
advice to participants in the justice system, including this admonition to the
judiciary:  Judges should ensure that procedural and evidentiary rules are not
used to unjustly hinder the legal interests of self-represented persons (at 7).

[37]

The Statement also includes the following commentary under the heading
Promoting Equal Justice (at 5):

2.         Judges
must exercise diligence in ensuring that the law is applied in an even-handed
way to all, regardless of representation. The Councils statement of
Ethical
Principles for Judges
(1998) has already established the principle of
equality in principles governing judicial conduct. That document states that,
Judges should conduct themselves and proceedings before them so as to ensure
equality according to law.

* * *

4.         Self-represented persons, like
all other litigants, are subject to the provisions whereby courts maintain
control of their proceedings and procedures. In the same manner as with other
litigants, self-represented persons may be treated as vexatious or abusive
litigants where the administration of justice requires it. The ability of
judges to promote access may be affected by the actions of self-represented
litigants themselves.

[38]

The delay in the present case is not a mere slip or misunderstanding of
time requirements brought about by Mr. Coles unfamiliarity with court
practice.  Courts routinely extend some latitude to self-represented litigants
on time limits, as they should, while trying to maintain a balance of interests
and an orderly process.  The test for dismissal for want of prosecution
requires
inordinate
delay.  Even making a generous allowance for Mr. Cole
as a layperson, the Court must take into account the delay he created by his
stubborn preoccupation with document discovery, which was inordinate, as the
judge found.  The Union gave Mr. Cole full notice of its intention to move
to strike out his petition if he did nothing.  His decision to do nothing is
not related to being self-represented.  It was, in my respectful opinion, wrong
for the judge to use his bare status as a basis for dismissing the Unions
motion.

[39]

I would allow the appeal and dismiss the petition.

The Honourable Mr. Justice Donald

I agree:

The
Honourable Madam Justice Newbury

I agree:

The
Honourable Mr. Justice Lowry


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Geissah v. British Columbia (Medical Services
  Commission),

2014 BCCA 4

Date: 20140108

Docket:  CA040888

Between:

Sayed Geissah and
Souad Khalaf

Appellants

(Petitioners)

And

British Columbia Medical
Services Commission

Respondent

(Respondent)

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Garson

On appeal from:  An
  order of the Supreme Court of British Columbia, dated
April 18, 2013 (
Geissah v. British Columbia (Health)
,

Vancouver Registry No. S131812
).

Acting on behalf of the Appellants:

S. Geissah

Counsel for the Respondent:

R. Butler

Place and Date of Hearing:

Vancouver, British
    Columbia

December 10, 2013

Place and Date of Judgment:

Vancouver, British
    Columbia

January 8, 2014

Written Reasons by:

The Honourable Mr. Justice Frankel

Concurred in by:

The Honourable Madam Justice Newbury

The Honourable Madam Justice Garson

Summary:

Appeal by G. and K. from the
dismissal of their application for judicial review of a decision of a delegate
of the Medical Services Commission finding them ineligible for medical coverage
for a period of several years because they did not meet the residency
requirements of the Medicare Protection Act (B.C.).  Held:  Appeal dismissed.

On the evidence, the delegate
could reasonably have found that G. and K. failed to establish their respective
eligibility on a balance of probabilities.

Reasons for Judgment of the
Honourable Mr. Justice Frankel:

[1]

This is an appeal from the order of Mr. Justice Willcock, then a
judge of the Supreme Court of British Columbia, dismissing a petition for
judicial review of a decision by Robert F. Cronin, a delegate of the Medical
Services Commission.  That decision held that Sayed Geissah and Souad Khalaf,
who are husband and wife, were ineligible for benefits under the provincial
Medical Services Plan (MSP) for approximately eight years.  It was based on a
finding that they failed to establish that they met the residency requirements
of the
Medicare Protection Act
, R.S.B.C. 1996, c. 286, for the
period in issue.  To be entitled to MSP benefits a person must be a resident
as defined in s. 1 of the
Act
; that is, he or she must:  (a) be a
citizen of Canada or lawfully admitted to Canada for permanent residence; (b)
make his or her home in British Columbia; and (c) be physically present in
British Columbia for at least six months in a calendar year, subject to certain
exceptions that are not relevant to this appeal.

[2]

In 2009, the Ministry of Health received a request for information which
prompted an investigation into Mr. Geissahs and Ms. Khalafs
entitlement to MSP coverage.  The investigation included requesting information
from them.

[3]

On October 17, 2011, a Ministry investigator sent them a letter advising
that she would be recommending their coverage be retroactively cancelled as of
December 31, 2001, and re-instated as of July 1, 2010, based on a residency
date of April 4, 2010.  That letter further advised them that if they disputed
the cancellation of their coverage, then they could request a hearing before
the Medical Services Commission.  On October 27, 2011, Mr. Geissah and Ms. Khalaf,
by letter, requested such a hearing.  The delegate conducted the hearing in
July of 2012, by way of written submissions.

[4]

Pursuant to s. 5(1)(f) of the
Medicare Protection Act
, the
Commission is empowered to:

investigate and determine
whether a person is a resident and, for this purpose, require the person to
provide the commission with evidence, satisfactory to the commission, that
residency has been established;

By virtue of s. 7.4(1)(b) of the
Act
, the
Commission has the power to cancel retroactively the coverage of a person it
believes has ceased to be a resident.

[5]

In a decision rendered on November 2, 2012, the delegate noted that:  (a) Mr. Geissah
and Ms. Khalaf immigrated to British Columbia in September of 1994 with
their three sons; (b) the family received MSP coverage effective December 1,
1994; (c) around 2002 the sons moved, and now work and live in Egypt, Dubai, and
Qatar; and (d) Mr. Geissah and Ms. Khalaf claimed to spend six months
each year visiting their sons and grandchildren and the remainder of each year
in British Columbia.  The delegate also noted Mr. Geissah and Ms. Khalaf
had refused to give the Medical Services Commission access to their travel
records.  Based, in part, on the timing of their MSP claimsthere were no
claims in 2004 and 2005, and infrequent claims in 2002, 2003, 2006, 2007, 2008,
2009, and 2010the delegate was not satisfied they had established, on a
balance of probabilities, that they had made their home in British Columbia
between 2002 and April 2010, or had been physically present in British Columbia
for six months out of every calendar year between 2002 and 2010.

[6]

In his decision, the delegate rejected submissions made by Mr. Geissah
and Ms. Khalaf that:  (a) there was no contract between them and the
Commission or the MSP because their original enrollment form has been
destroyed; (b) they had no knowledge of the residency requirement; (c) on
the evidence it would be unreasonable to assume they had been out of the country;
(d) their travel information was irrelevant; (e) they must be residents because
they receive federal Old Age Security; (f) they are deemed residents under the
applicable regulations because they are neither tourists nor visitors; and (g)
it is not lawful to force them to live in British Columbia for more than six
months each year as they cannot afford to do so.

[7]

In seeking judicial review, Mr. Geissah and Ms. Khalaf relied
on many of the submissions they made to the delegate.  The chambers judge
rejected all of their submissions.  Applying the reasonableness standard of
review discussed in
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1
S.C.R. 190, the judge held the decision that Mr. Geissah and Ms. Khalaf
had not established an entitlement to benefits was one the delegate could
reasonably make on the record before him.

[8]

In their factum, Mr. Geissah and Ms. Khalaf advance a number
of the same arguments they made before the delegate and the chambers judge,
some of which overlap.  In this Court, their submissions include:

(a)      On the evidentiary record it was unreasonable
to conclude they did not meet the residency requirements;

(b)      The residency requirements are
not binding because they were not aware of them;

(c)      It is unreasonable to expect them
to retain useful evidence;

(d)      The residency requirements did
not exist before April 1, 2005;

(e)      The
Medicare Protection Act
is no longer in force;

(f)       The Commission has no authority
to ask them to prove residency;

(g)      There is no contract between them
and the Commission or the MSP;

(h)      The chambers judge did not
consider an affidavit filed by Mr. Geissah;

(i)       It is illegal to force them to
reside in Canada when they cannot afford to do so;

(j)       Their citizenship ceremony granted
them the right to live anywhere;

(k)      The receipt of Old Age Security
is determinative of residence; and

(l)       The
government is wasting taxpayer money by investigating this matter.

[9]

In terms of relief, Mr. Geissah and Ms. Khalaf seek:  (a) an
order setting aside the decision finding them ineligible for benefits; (b)
unspecified damages flowing from the effects of the decision; and (c) costs.

[10]

I find no merit in any of the arguments advanced by Mr. Geissah and
Ms. Khalaf.  The critical question is whether the delegate could properly come
to the conclusion that entitlement (i.e., residency) had not been established
on a balance of probabilities.  As the chambers judge stated correctly, the
reasonableness standard applies to that question, i.e., was there some evidence
before the delegate on which he could reasonably make the findings he did:  see
Nagra v. British Columbia (Superintendent of Motor Vehicles)
, 2010 BCCA
154 at para. 27, 3 B.C.L.R. (5th) 231.  In my view, the answer to that question
is yes.  Accordingly, I would dismiss this appeal.

[11]

There are two additional matters on which I wish to comment.  The first
relates to the concerns expressed by Mr. Geissah that an adverse decision
in this matter will affect his and Ms. Khalafs entitlement to benefits
under federal programs such as Old Age Security.  He had earlier expressed those
concerns to the chambers judge.  I agree with the chambers judge that this case
decides only that the delegate could reasonably have found, on the record
before him, that Mr. Geissah and Ms. Khalaf did not meet the residency
requirements for MSP coverage for the period in issue:  see paras. 20, 21.

[12]

The second relates to whether the MSP will seek to recover from
Mr. Geissah and Ms. Khalaf the costs of the medical services it paid
for during the ineligibility period.  Counsel for the Commission,
Mr. Butler, advised the Court that his client has taken the decision not
to seek recovery.

[13]

As the Commission does not seek costs, I would make no order in that regard.
I would also dispense with the need for Mr. Geissah and Ms. Khalaf to
approve the form of the formal order in this matter.

The
Honourable Mr. Justice Frankel

I AGREE:

The Honourable Madam Justice
Newbury

I AGREE:

The Honourable Madam Justice
Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Fontaine,

2014 BCCA 1

Date: 20140108

Docket: CA36443

Between:

Regina

Respondent

And

Trevor James
Fontaine

Appellant

Before:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

The Honourable Madam Justice Kirkpatrick

On appeal from:  An
order of the Supreme Court of British Columbia,
dated August 13, 2008 (
R. v. Fontaine
, Prince George Docket 16206-4).

Counsel for the Appellant:

C. Darnay

Counsel for the Respondent:

F.G. Tischler

Place and Date of Hearing:

Vancouver, British
  Columbia

December 3, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 8, 2014

Written Reasons by:

The Honourable Madam Justice Kirkpatrick

Concurred in by:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

Summary:

Mr. Fontaine
appealed his dangerous offender designation on the grounds that the sentencing
judge failed to adequately consider his Aboriginal background in accordance
with s. 718.2(e) of the Criminal Code and the Supreme Court of Canadas
decision in R. v. Gladue.

Held:
Sentence appeal dismissed. Evidence of Mr. Fontaines Aboriginal
background was before the court. Although the judge did not explicitly refer to
the sentencing principles set out in Gladue, the sentence was nevertheless not
unfit. The offenders risk could not be managed in the community; there was no
option other than a dangerous offender designation.

Reasons
for Judgment of the Honourable Madam Justice Kirkpatrick:

[1]

The only issue in this sentence appeal is whether the sentencing judge,
in designating Mr. Fontaine as a dangerous offender, erred in law in failing
to adequately consider the principles of sentencing applicable to Aboriginal
offenders as required by s. 718.2(
e
) of the
Criminal Code
.
He seeks a new hearing.

[2]

For many years, the sentencing of Aboriginal offenders under s. 718.2(
e
)
has been guided by the Supreme Court of Canadas decision in
R. v. Gladue
,
[1999] 1 S.C.R. 688. Paragraph 33 has often been applied:

In our view, s. 718.2(
e
)
is
more
than simply a re-affirmation of existing sentencing principles.
The remedial component of the provision consists not only in the fact that it
codifies a principle of sentencing, but, far more importantly, in its direction
to sentencing judges to undertake the process of sentencing aboriginal
offenders differently, in order to endeavour to achieve a truly fit and proper
sentence in the particular case. It should be said that the words of s. 718.2(
e
)
do not alter the fundamental duty of the sentencing judge to impose a sentence
that is fit for the offence and the offender. For example, as we will discuss
below, it will generally be the case as a practical matter that particularly
violent and serious offences will result in imprisonment for aboriginal
offenders as often as for non-aboriginal offenders. What s. 718.2(
e
)
does alter is the method of analysis which each sentencing judge must use in
determining the nature of a fit sentence for an aboriginal offender. In our
view, the scheme of Part XXIII of the
Criminal Code
, the context underlying
the enactment of s. 718.2(
e
), and the legislative history of the
provision all support an interpretation of s. 718.2(
e
) as having
this important remedial purpose.

[3]

More recently, in
R. v. Ipeelee
, 2012 SCC 13, the Supreme Court
had the opportunity to consider the application of
Gladue
in the
intervening years and the academic commentary that criticized the application
of the passage that [g]enerally, the more violent and serious the offence the
more likely it is as a practical reality that the terms of imprisonment for
aboriginals and non-aboriginals will be close to each other or the same (
Gladue
,
at para. 79).

[4]

In
Ipeelee
, LeBel J. speaking for the majority, held:

[85]      Whatever criticisms may be directed at the decision
of this Court for any ambiguity in this respect, the judgment ultimately makes
it clear that sentencing judges have a
duty
to apply s. 718.2(
e
):
There is no discretion as to whether to consider the unique situation of the aboriginal
offender; the only discretion concerns the determination of a just and
appropriate sentence (
Gladue
, at para. 82). Similarly, in
Wells
,
Iacobucci J. reiterated, at para. 50, that

[t]he generalization drawn in
Gladue
to the effect that the more violent and serious the offence, the more likely as
a practical matter for similar terms of imprisonment to be imposed on
aboriginal and non-aboriginal offenders, was not meant to be a principle of
universal application. In each case, the sentencing judge must look to the
circumstances of the aboriginal offender.

This element of duty has not completely escaped the attention
of Canadian appellate courts (see, e.g.,
R. v. Kakekagamick
(2006), 214
O.A.C. 127;
R. v. Jensen
(2005), 196 O.A.C. 119;
R. v. Abraham
,
2000 ABCA 159, 261 A.R. 192).

[87]      The sentencing judge
has a statutory duty, imposed by s. 718.2(
e
) of the
Criminal
Code
, to consider the unique circumstances of Aboriginal offenders. Failure
to apply
Gladue
in any case involving an Aboriginal offender runs afoul
of this statutory obligation. As these reasons have explained, such a failure
would also result in a sentence that was not fit and was not consistent with
the fundamental principle of proportionality. Therefore, application of the
Gladue
principles is required in every case involving an Aboriginal offender,
including breach of an LTSO, and a failure to do so constitutes an error
justifying appellate intervention.

[5]

The question then in the case before us is whether the sentencing judge
failed to consider the unique Aboriginal circumstances of Mr. Fontaine
and, if so, whether the error justifies our intervention. The analysis to be
undertaken by sentencing judges was expressed in
Ipeelee
, at para. 72:

The methodology set out by this
Court in
Gladue
is designed to focus on those unique circumstances of an
Aboriginal offender which could reasonably and justifiably impact on the
sentence imposed.
Gladue
directs sentencing judges to consider: (1) the
unique systemic and background factors which may have played a part in bringing
the particular Aboriginal offender before the courts; and (2) the types of
sentencing procedures and sanctions which may be appropriate in the
circumstances for the offender because of his or her particular Aboriginal
heritage or connection. Both sets of circumstances bear on the ultimate
question of what is a fit and proper sentence.

[6]

The background to this appeal is as follows.

[7]

Mr. Fontaine was convicted by a jury on June 22, 2006 of the
following offences committed near Vanderhoof on December 18, 2003: aggravated
assault and assault with a weapon, and four counts each of unlawful confinement
and uttering threats. The aggravated assault was inflicted on his girlfriend,
Misty Franklin, who was then 23 years old. Mr. Fontaine and Ms. Franklin
were staying at the home of Ms. Franklins cousin, Lydia Thomas. At Ms. Thomas
home were her two children aged 10 and 5 and a friend from next door, aged 10. Ms. Thomas
and the children were the victims of the offences of unlawful confinement and
uttering threats.

[8]

In the early hours of December 18, 2003, following an argument with Ms. Franklin,
Mr. Fontaine stabbed her in the neck near the base of her skull, severing
her spinal cord. She was tragically rendered quadriplegic, paralyzed from the
neck down and reliant on a ventilator for breathing.

[9]

After the attack, Ms. Thomas came out of an adjacent bedroom to
check on her cousin who was lying immobile on the floor. Mr. Fontaine
yelled at Ms. Thomas and the children to stay in the bedroom or he would
kill them all and threatened to hurt the children if they attempted to escape
from the bedroom window. Mr. Fontaine refused Ms. Thomas repeated
entreaties to call an ambulance, but ultimately relented and let her call
9-1-1.

[10]

Following Mr. Fontaines conviction the Crown applied for an
assessment under s. 752.1 of the
Criminal Code
in anticipation of
an application under s. 753 to determine whether Mr. Fontaine was a
dangerous offender.

[11]

The dangerous offender hearing was heard over 32 days in July, September
and November 2007 with two days of submissions in June 2008. More than 40
witnesses testified including Dr. Elisabeth Zoffmann, a psychiatrist
tendered by the Crown, and Dr. Terry Nicholaichuk, a psychologist tendered
by the defence. The record consists of 12 volumes of transcripts and 31
exhibits. No
Gladue
report was prepared to assist the Court in
sentencing Mr. Fontaine.

[12]

Both Dr. Zoffmann and Dr. Nicholaichuk agreed that Mr. Fontaine
currently poses a high level of risk that he will commit a crime of violence if
released into the community. That evidence was the foundation of the judges
findings relevant to s. 753(1)(a):

[14]      So that there is no
doubt, however, I will make the following findings of fact: first, that Mr. Fontaine
committed a serious personal injury offence in the aggravated assault on Ms. Franklin
and the use of a weapon in that assault; further, that at this time Mr. Fontaine
constitutes a threat to the life, safety, or physical well-being of other
persons based on both his pattern of repetitive behaviour, of which the current
convictions are a part, that shows a failure to restrain his behaviour and a
likelihood of causing death or injury to others, which is the test under the
first subsection of 753.1(a) [now 753(1)(a)] of the
Code
; and further,
that Mr. Fontaine has shown persistent and aggressive behaviour that shows
a substantial degree of indifference on his part respecting reasonably
foreseeable consequences to others of his behaviours, which is the test under
s. 753.1 (a)(ii) [now 753(1)(a)(ii)].

[13]

Defence counsel conceded that the statutory criteria for a dangerous
offender designation were met in this case.

[14]

The judge reviewed Mr. Fontaines extensive criminal record: 27
offences between 1990 and 1999, nine of which involved violence or threats of
violence and ten convictions for offences relating to breaches of court orders.
As the judge noted, when Mr. Fontaine was not in jail between 1991 and
December 2003, he was under some sort of supervision − bail, probation or
parole.

[15]

Mr. Fontaines last offence before the predicate offence was the
1999 sexual assault conviction involving a 24-year-old woman with whom he was
not in a relationship. He gained access to her home, choked her into submission
and then sexually assaulted her. He was sentenced to five years imprisonment
and was released on September 19, 2003, three months before the aggravated
assault on Ms. Franklin.

[16]

The judge reviewed the various programs Mr. Fontaine undertook from
the time he entered prison. The judge also heard testimony from Mr. Fontaines
parole officer at Bowden Federal Institution in Alberta. She described Mr. Fontaines
participation in a program called In Search of Your Warrior, which focussed
on general and family violence and was tailored for Aboriginal offenders. As
well, a facilitator of the Aboriginal healing program at Bowden Institution
described the program for Aboriginal sex offenders in which Mr. Fontaine
participated.

[17]

In addition, Mr. Fontaine participated in the Native Brotherhood
Program in 2000−2001 while he was at the Regional Psychiatric Centre (RPC)
in Saskatoon. Dr. Nicholaichuk, the psychologist who testified for the
defence, reported as follows:

He was also active in the Native
Brotherhood Program at the RPC and believed that spiritual and traditional practices
would be a support to him when he was released. ...

In 2003/07/29 Mr. Fontaine
received another successful completion for his participation in the In Search
Of Your Warrior Program while at Bowden institution. Again his difficulties
with reading and writing were identified and an educational upgrading was
recommended in addition to other correctional programs. The program report
indicated that Mr. Fontaines risk level may have been reduced to the
moderate category and (sic) but this was contingent upon his abstaining from
intoxicants and not being released to high-risk situation (sic). Based upon his
lengthy history of violent offences the national parole board detained Mr. Fontaine
until his warrant expiry. Based upon his successful completion of the In Search
Of Your Warrior Program as well as his regular participation in the sex
offender maintenance sessions, Mr. Fontaine was considered to have developed
further insight into his offense cycle and had significantly improved in the
areas of empathy, self worth, taking responsibility, and developing more
positive relationships.

[18]

Dr. Nicholaichuks testimony was heard over two days, during which Mr. Fontaines
circumstances as an Aboriginal offender were explored in some depth. Dr. Nicholaichuk
stated in his written report that he believed Mr. Fontaine would benefit
from input and guidance from Aboriginal elders and Aboriginal programs. He
testified that he believed that to be the case because in his experience there
are a fair number of men who actually discover that source of pro-social
community support in the traditional cultural community.

[19]

When Mr. Fontaine was released in September 2003, his parole was
supervised by Lynne Hyatt. She described the halfway house where Mr. Fontaine
resided, Ketso Yoh, as follows:

A:         Ketso Yoh is located in
the downtown core of Prince George. Its an aboriginal focussed halfway house.
They do take non-aboriginal offenders to reside there but their main goal is to
work with the aboriginal population and offering various aboriginal focus
activities onsite at the facility. And an example would be elder - - elders
would come and on occasion be available to talk to. Healing circle, or they
call it the talking circle, some mornings where they get together and talk
about whats gone on in their day and thats an example, those are some
examples.

Q:    The people who work at this
Ketso Yoh, are they employed by Correctional Service of Canada?

A:    No. Its a non-profit
organization. Correctional Service Canada holds a contract with the Native
friendship centre and the Native friendship centre in Prince George oversees
the halfway house, which is also the term CRF, community residential facility.

[20]

As the respondent Crown has noted in its factum, Ms. Hyatt
testified that the staff at Ketso Yoh rated the appellants performance at the
halfway house as poor, at two to three out of ten:

They talked about him getting
frustrated easily over small things lately and agitated when female staff talk
to him, he gets agitated and contradictory in his behaviour, regarding female
staff versus male staff. They had noticed his attitude to be considerably
different towards female staff. And they said he was the type of person that
knows what to say and when to say it. In other words, how to manipulate people
to what he feels they want to know. And they - - he would have small blow-ups
with staff, like, regarding his girlfriend at the time and they noted a slightward
downward, downhill trend.

[21]

The judge acknowledged Mr. Fontaines Aboriginal circumstances and
his chaotic childhood by reference to Dr. Nicholaichuks written opinion:

Mr. Fontaine Is a 36 year old Aboriginal male. Although
he was born in Fort St. John British Columbia, he is a member of the Fort
Alexander First Nation just North of Winnipeg Manitoba. He was raised in North
end Winnipeg. His parents separated when he was approximately 1 year of age and
he subsequently relocated to Winnipeg with his mother. Both his mother and his
stepfather are now deceased. His biological father passed away when he was 13. Mr. Fontaine
is the youngest of a sibline (sic) of 10. He has five brothers and four sisters
and is the youngest of the boys. According to the record as well as his own
report, Mr. Fontaine suffered an exceptionally chaotic and deprived
childhood. Prior to the age of four he was subjected to physical and sexual
abuse and was also introduced [to] substance abuse at that age. For example, he
can recall sniffing solvents with his mother when he was very young. As a
result of parental alcohol abuse, neglect and violence, he was apprehended by
the Childrens Aid Society of Winnipeg at about the age of four or five. He
remained under the care of the Ministry until the age of 18.

Prior to being taken into the
care of the Childrens Aid Society, Mr. Fontaine was constantly exposed to
models for violence and substance abuse. He said that his mother and stepfather
drank and fought almost daily. In addition, he was sexually abused both by this
mother and an older stepbrother. He told me that the physical abuse he suffered
reached a point where he was sometimes knocked unconscious. His parents threatened
the children to not say anything because the welfare will take us away. As a
child Mr. Fontaine did not develop any close relationships with anyone as
he never had any consistent caregivers. It can be fairly said that he never
received any appropriate socialization as a child. He apparently started
attending school regularly at about the age of seven or eight but immediately
had difficulty both behaviourally and academically.

[22]

The judge then reproduced those portions of Dr. Nicholaichuks opinion
dealing with Mr. Fontaines learning disability, reasoning ability and
other intellectual deficits which have negatively impacted his social
relationships (at para. 67):

Individuals with language delays
such as those suffered by Mr. Fontaine experience a great deal of
frustration in their attempts to learn and interact appropriately with others.
Although they may have some degree of understanding of their social situations
they are unable to put their understanding into words. In social situations
they are unable to express themselves adequately and this leads to a great deal
of difficulty in negotiating social relationships, particularly under
conditions of stress and conflict. Historically he has had difficulty negotiating
his relationships with virtually every woman he has been involved with. This
frustration coupled with his use of alcohol would raise the potential for
violence immeasurably. This pattern is exemplified by his assault upon the
victim of the predicate offense.

[23]

As I have noted, Dr. Zoffmann and Dr. Nicholaichuk agreed that
Mr. Fontaine currently poses a high level of risk of re-offending if
released into the community.

[24]

As to the future, Dr. Zoffmanns opinion was that Mr. Fontaines
prognosis for treatment is not good. Any future release would have to be
monitored very carefully and would need to include conditions that he abstain
from all intoxicants, all domestic or intimate relationships, and have no
access to weapons or potential victims.

[25]

Dr. Nicholaichuk was, in the judges view, somewhat more
optimistic as he was of the opinion that Mr. Fontaine could be
successfully managed in the community if a number of conditions were met,
including treatment for his significant learning disability and release into a
community where his older brother and sister could provide support. Their
ability to provide this support would have to be confirmed by a community
assessment.

[26]

Dr. Nicholaichuks recommendations included the following:

Mr. Fontaine will have to
receive treatment which takes into account his language deficiencies. It is
also likely that he would benefit from input and guidance from Aboriginal
Elders and should continue to receive Aboriginal programs. The [sic] if he can
be successful in treatment and remain stable, he may be a good candidate for a
transfer to one of the Aboriginal Healing Lodges located in the Prairie region.
For example, there is such an institution located in the Interlake in Manitoba.
This would also serve to place him closer to potential sources of support.

[27]

Dr. Nicholaichuk was questioned by defence counsel as to whether Mr. Fontaine
would qualify for placement in the Aboriginal Healing Lodge if he were under a
long-term offender designation order. Dr. Nicholaichuk testified that Mr. Fontaine
would first have to be designated a minimum security inmate. It is clear,
however, that as Dr. Zoffmann and Dr. Nicholaichuk agreed, Mr. Fontaine
would not currently qualify for designation as a minimum security inmate
because he poses a high risk of re-offending.

[28]

The judge reviewed the opinion of both experts and ultimately concluded
that Dr. Nicholaichuks optimism was unwarranted:

[85]      I am not satisfied that the programs that Dr. Nicholaichuk
hopes will successfully address Mr. Fontaines learning disabilities will
have the necessary salutary effect so as to reduce the risk to an acceptable
level.

[86]      I am not satisfied that a way can be found for Mr. Fontaine
to practise safely the tools and mechanisms the programs are designed to teach
him, and it seems to me from what I have heard that given his verbal deficits,
the ability to practise, to in effect drill himself or to be drilled on these
mechanisms, is essential if Mr. Fontaine
is to
internalize them, at least sufficiently that he can avoid the deterioration and
eventual breakdown such as occurred on his release in Prince George.

[87]

I am not satisfied that any realistic level of
community supervision will permit monitoring of Mr. Fontaines close
relationships. In this context, I am concerned that while the focus so far has
been on Mr. Fontaines relationships with women, the explosive anger Dr. Nicholaichuk
describes can be triggered by any social interaction where Mr. Fontaines
verbal disadvantages lead to frustration and stress.

[91]
I am not satisfied that the
relationship between any ameliorative effects of aging and reduction of Mr. Fontaines
explosive reaction to frustration can be said to be clear enough that I should
be guided by the statistical averages as they relate to reduction of violence
in average offenders reaching a certain age. I must be concerned with this
offender, and I must, given the tools available to me, engage in some form of
prediction, and I am not satisfied that the risks posed can be successfully
managed or controlled in the community.

[92]      I note again that Dr. Zoffmann
has said that past behaviour is the best predictor of future conduct and that Dr. Nicholaichuk
agreed, with the caveat I have already recited, and here the most pointed
indication from past behaviour is that it was just two and one-half months into
a one-shot release that Mr. Fontaines ability to put into practice what
he had been taught in various programs over the previous three years started to
unravel.

[94]      To be amenable to community
supervision in a way that would make the risk of violence acceptable, Mr. Fontaine
would require a fundamental change in the way he has dealt with other people
all of his life. I accept what Dr. Zoffmann has said in that regard and
view her evidence as saying that Mr. Fontaine would have to learn from
further programs and counselling what he has not been able to learn so far, that
he would have to learn how to apply what he is taught to his own circumstances
and his own environment in perhaps less than ideal conditions of life in the
community, and that he would need a structured environment outside the
institution and sufficient supervision resources available to him.

[95]

I view the combined evidence of Drs. Zoffmann
and Nicholaichuk to the effect that, statistically, there will come a time when
Mr. Fontaine is in his mid to late fifties that he could be managed in the
community as a statement of hope based on statistical averages, and that does
not go far enough to persuade me that the possibility of eventual control in
the community is reasonable.

[29]

Mr. Fontaines fundamental argument on appeal is that the
sentencing judge did not adequately analyze Mr. Fontaines Aboriginal
circumstances when he found him to be a dangerous offender. As I have noted, a
Gladue
report was not prepared in this case. However, it is apparent from the
testimony of Dr. Nicholaichuk that the judge was aware of Mr. Fontaines
Aboriginal background and his wretched childhood which sadly reflects the
circumstances of many Aboriginal offenders. This point was made by defence
counsel at the dangerous offender hearing:

MR. DIENO: Youll see that the criminal record
starts in 1984 as a youth where he was convicted of a break and enter and
theft; 1987 as a youth of break and enter and committing an indictable offence.
And this is in the context, My Lord, I just want to put this as an aside to the
fact that Mr. Fontaine, its clear, is an aboriginal and there are
aboriginal issues that impact on treatment, impact on consideration of sentence
 And in my respectful submission the evidence you heard about Mr. Fontaines
background is -- this is an effect of that process in that Mr. Fontaine
was raised by a family, his mother
essentially, and then who
suffered the effects of being in residential school. The drinking, the abuse
was transferred over to Mr. Fontaine. As a result of that he lived in many
foster homes. He had, obviously, learning disabilities that impacted on his
ability to continue in school and he began --

THE COURT: Mr. Dieno, let me
interrupt you there. Is there some evidence that Mr. Fontaines mother was
a residential school victim? Are you asking me to infer that simply on the
basis of her age and her aboriginal status?

MR. DIENO:    Right.
That is an inference, because it didnt come out in evidence, its not
something that Mr. Fontaine readily shared with his supervisors or -- and
his Corrections staff, if I can put it that way. But given her age, and youre
right, and the extreme chaos that Mr. Fontaine -- and the drinking that
began at a very young age is indicative of what we see in the second generation
of people that have lived through the residential school treatment.

[30]

Mr. Fontaines objection that the judges analysis did not go far
enough is essentially a complaint that the judge did not adequately discuss Mr. Fontaines
Aboriginal status and failed to undertake the analysis mandated by
Gladue
and s. 718.2(
e
) of the
Criminal Code
.

[31]

The Crown acknowledges that the judges reasons do not make express
reference to s. 718.2(
e
) or
Gladue
. However, in the Crowns
submission, a review of the entirety of the sentencing record, including the
evidence tendered, the submissions of counsel, and the reasons for judgment,
demonstrate that the judge gave proper consideration to Mr. Fontaines
Aboriginal background. The Crowns position rests on the decision of the Yukon
Court of Appeal in
R. v. Good
, 2012 YKCA 2 (decided before
Ipeelee
):

[25]      It is true the reasons of the sentencing judge do
not expressly address Ms. Goods Aboriginal status, or the statutory and
common law requirements associated with sentencing an Aboriginal offender. I
note, however, that at para. 85 of
Gladue
the Supreme Court stated
that s. 718.2(e) does not impose a statutory duty on a sentencing judge to
provide reasons, although the Court endorsed the usefulness of reasons in the
context of appellate review. As well, several decisions of this Court
subsequent to
Gladue
have held that the failure to expressly mention
s. 718.2(e) or the two-stage
Gladue
analysis in sentencing an
Aboriginal person is not necessarily reversible error. Nevertheless, these
authorities affirm that it must be apparent from the record and the reasons of
the sentencing judge that his or her analysis included consideration of the
offenders Aboriginal circumstances:
R.
v.
Sutherland
,

2009
BCCA 534 at para. 16, 281 B.C.A.C. 33;
R. v. Napesis
, 2010 BCCA 499
at para. 17, 294 B.C.A.C. 255;
R. v. Mack
, 2008 BCCA 520 at paras. 10
and 12, 263 B.C.A.C. 138; and
R. v. Awasis
, 2010 BCCA 213 at paras. 13-14,
287 B.C.A.C. 39. Most recently, in
R. v. Ladue
, 2011 BCCA 101, 271
C.C.C. (3d) 90, a decision which is presently under reserve with the Supreme
Court of Canada,
Madam Justice Bennett, writing for the
majority, reviewed many of these authorities and, at para. 59 of her
reasons, affirmed the importance of applying the analysis mandated by
Gladue
when sentencing Aboriginal offenders.

[26]      Thus,
the question is whether the record before the sentencing judge, and his reasons
for judgment, reveal that he gave proper consideration to Ms. Goods
Aboriginal heritage in determining a fit sentence. In answering that question,
it is important to recognize that the sufficiency of the judges reasons is not
assessed by their contents alone, but also in the context of the record before
him, the issues, and the submissions of counsel:
R. v. R.E.M.
, 2008 SCC
51, [2008] 3 S.C.R. 3 at paras. 15-20, 37-41.

[32]

Ipeelee
did not refer to
R. v. Good
or any of the cases it
cited in paras. 25 and 26 which stand for the principle that failure to
expressly mention s. 718.2(
e
) will not necessarily constitute
reversible error, as long as it is apparent from the record and the reasons
that the offenders Aboriginal circumstances were considered.

[33]

Nevertheless, as
Ipeelee
makes clear, where, as in Mr. Fontaines
case, systemic background factors may bear on the culpability of the offender,
it is incumbent upon the sentencing judge to consider those factors in crafting
the appropriate sentence. The failure to do so in this case constitutes error.

[34]

The judge did not have the benefit of
Ipeelee
. However, it is
clear that he had an abundance of evidence before him that focussed on Mr. Fontaines
risk to society, which was of course the purpose of the dangerous offender
hearing. In hindsight, it would have been preferable for either counsel or the
judge to request a
Gladue
report to assist the Court in addressing Mr. Fontaines
Aboriginal circumstances.

[35]

It appears from
Ipeelee
that, in the future, it is required, and
not just preferable, that a sentencing judge explicitly address an offenders unique
Aboriginal circumstances in determining the just and appropriate sentence. Notwithstanding
the error to do so in this case, the stark fact is that Mr. Fontaines
risk of future violence cannot be controlled in the community. His Aboriginal
circumstances were undoubtedly instrumental in creating that risk. Because Mr. Fontaine
poses such a high risk, and the Aboriginal and other programs he has taken in
the past have not ameliorated that risk, the appropriate sentence in the
circumstances was to designate him a dangerous offender.

[36]

I would accordingly dismiss the appeal.

The Honourable Madam Justice Kirkpatrick

I agree:

The
Honourable Mr. Justice Donald

I agree:

The Honourable Madam Justice Newbury