COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Peier v. Cressey Whistler Townhomes Limited
  Partnership,

2012 BCCA 28

Date: 20120119

Docket: CA039151

Between:

Michael Peier

Respondent

(Plaintiff)

And

Cressey Whistler
Townhomes Limited Partnership
and 629220 B.C. Ltd.

Appellants

(Defendants)

Before:

The Honourable Madam Justice Levine

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

On appeal from: Supreme
Court of British Columbia, June 14, 2011
(
Peier v. Cressey Whistler Townhomes Limited Partnership
, 2011 BCSC 773)

Counsel for the Appellants:

B. Cramer and A. H.
  Sabur

Counsel for the Respondent:

R. J. Kaardal and B.
  B. Olthuis

Place and Date of Hearing:

Vancouver, British
  Columbia

December 9, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 19, 2012

Written Reasons by:

The Honourable Mr. Justice Lowry

Concurred in by:

The Honourable Madam Justice Levine

The Honourable Mr. Justice Frankel

Reasons for Judgment of the Honourable
Mr. Justice Lowry:

[1]

This appeal raises a question of whether the following clause in an
addendum to a real estate developers standard form purchase agreement relieved
the purchaser of a newly constructed townhouse in Whistler, British Columbia,
from completing the transaction where the subject requirement was not fulfilled
until three weeks after the date on which the vendor had said completion was to
take place:

It is a condition of this
contract that the power/hydro lines on Nancy Greene Drive be buried prior to
completion.  Should the power lines not be able to be buried, the Purchaser may
cancel this contract at their option and have all deposit monies returned
including interest.

[2]

On the date for completion, the purchaser gave notice he was terminating
the agreement.  The vendor gave notice that the completion date was delayed.
Five days later, the purchaser commenced this action for the return of his
deposit.  The vendor ultimately counterclaimed for damages and the action was
tried summarily before Mr. Justice Butler who, for reasons indexed as 2011 BCSC
773, gave judgment in favour of the purchaser.  The vendor appeals on a
question of law, contending, in the main, the delay in the requirement being
fulfilled served only to suspend the parties obligations to complete the
transaction; it did not entitle the purchaser to terminate the purchase
agreement.

The Purchase

[3]

The purchaser was Michael Peier; the vendor was a partnership, Cressey
Whistler Townhomes Limited Partnership and 629220 B.C. Ltd.  Their agreement for
the purchase of the townhouse the vendor was to construct was signed in May
2007.  The purchase price was $2.5 million.  The purchaser paid an initial
deposit and subsequently made two more payments for a total of $375,000.  The
estimated completion date was December 1, 2008.  If the completion date had not
occurred by December 1, 2009, referred to as the Outside Date (which the
vendor could for any reason extend for up to 120 days) the purchase agreement
would be terminated.

[4]

The purchaser raised a concern about BC Hydro overhead power lines along
the road where the townhouse was to be built.  He was told by the vendors
agent they would be buried before completion.  The two of them then agreed on
the wording of the clause in the addendum to the purchase agreement.

[5]

BC Hydro agreed to bury the power lines.  The vendor paid it to do so in
July 2008 and thereafter had no control over when the work would be done.  The
lines were not buried until December 11, 2009.

[6]

The construction of the townhouse was delayed.  It was not until October
2009 that it was ready for the purchasers pre-completion inspection.  The
required municipal certificate of occupancy was issued on October 21.  On
November 4, the vendor gave the purchaser an Official Notice of Completion
fixing November 18, 2009, as the completion date with possession the following
day.  The agreement provides the balance of the purchase price was to be paid
by 2:00 p.m. on the completion date.

[7]

The purchaser inspected the townhouse on two occasions, October 21 and
November 16, accompanied by a representative of the vendor.  He identified over
200 deficiencies that had to be rectified.  He maintains he made no mention of
the overhead power lines on either occasion.  He says he was told to confine
his inspection to the inside of the townhouse.

[8]

On November 18, the purchaser was ready and able to complete the
purchase.  The townhouse may in fact have been unfit for occupancy then because
of the work required to rectify two of the deficiencies in particular: a
hardwood floor had to be lifted and some drywall had to be replaced.  The
purchaser went to the townhouse twice that day.  He photographed the power
lines.  He said nothing to the vendor.  He apparently made no inquiry as to
when BC Hydro would have the lines buried.  Rather, he instructed his
solicitors to give the vendor notice he was terminating the purchase agreement
because the power lines had not been buried.  Counsel for the purchaser wrote the
vendor at 12:36 p.m., notifying it accordingly and asking for a refund of the
purchasers deposit with accumulated interest forthwith.  The vendor responded
at 1:49 p.m.  It extended the Outside Date to March 1, 2010.  It also said the
completion date would be delayed to December 3 because of the work necessary to
rectify the deficiencies.

[9]

The purchase agreement provides the purchaser was required to complete
the purchase despite outstanding deficiencies.  It also provides the vendor
could delay the completion date if the townhouse was not ready to be occupied,
although it would be deemed to be ready to be occupied once the municipality
had given its permission, whether temporary, conditional, or final.

[10]

The purchaser commenced this action on November 23, 2009.  Thereafter
the vendor sought to perform the purchase agreement, giving further notices
delaying the completion date to accommodate the ongoing rectification of the
deficiencies, ultimately to December 21.  The purchaser maintained there was no
longer any agreement.  When the purchaser did not complete on December 21,
2009, the vendor gave notice it would pursue its remedies.  The action
proceeded to trial in January 2011.

[11]

With the onset of recession in 2008, the Whistler real estate market
declined.  The vendor sold the townhouse in the spring of 2011 (while judgment
was reserved).  The sale price was $1.9 million.

The Judgment

[12]

The judge considered the issues to be two: whether the power lines clause
permitted the purchaser to terminate the agreement and whether the vendor had
the contractual ability to extend the completion date.  He began his analysis
by quoting the following from
Kingsway General Insurance Co. v. Lougheed
Enterprises Ltd.
, 2004 BCCA 421 at para. 10, [2004] 11 W.W.R. 427, as the
governing principles:

It will, I hope, suffice to note
that in terms of contractual interpretation, the same principles of
construction applicable to other commercial contracts apply to insurance
contracts ...; that the court must search for an interpretation from the whole
of the contract which promotes the true intent of the parties at the time they
entered into the contract ...; that the plain meaning of the words used should
be given effect unless it would bring about an unrealistic or commercially
unreasonable result ...; that evidence of the factual background or setting of
the contract known to the parties at or prior to the date of the contract may
be considered even in the absence of an ambiguity ...; that at the same time,
the words of the contract must not be overwhelmed by a contextual analysis ...;
and that in cases of true ambiguity or doubt as to the meaning of the words
used, the
contra proferentem
rule of interpretation may be applied ....
[Citations omitted.]

[13]

With respect to the first issue, the vendor contended the applicable
provision of the power lines clause  the first sentence  is not a condition,
as stated, but a warranty that did not entitle the purchaser to terminate the
agreement: the purchaser was required to complete the transaction on November
18 and could then sue for any loss caused by the warranty having been
breached.  The vendor maintained the second sentence of the clause, which
provides for the purchasers termination of the agreement in the event the
power lines could not be buried, would otherwise be redundant.  The focus of
the case as argued in this regard appears then to have been on whether the
first sentence of the clause is a warranty.  The judge decided it is not.

[14]

The judge concluded the purchaser was entitled to terminate the
agreement based on two considerations: the clear language of the power lines
clause and the relationship between the two sentences of the clause.

[15]

Although he recognized the terminology employed in contractual language
is not determinative, he considered the parties having agreed it was to be a
condition of the contract that the power lines be buried prior to completion
was indicative of their intention concerning their obligations if that was not
done.  After quoting from this Courts discussion of what constitutes a
fundamental term of an agreement in
Gulston v. Aldred
, 2011 BCCA 147, he
held the burial of the power lines prior to completion to be a condition of the
agreement because of its importance to the purchaser: it was fundamental to the
agreement.  Further, relying on what was said in dissent in
Jorian
Properties Ltd. v. Zellenrath
(1984), 10 D.L.R. (4th) 458, 46 O.R. (2d) 775
at 780 (C.A.), he added the purchaser would not have entered into the agreement
without assurance of strict performance.  He stated at para. 45 that because
of the significance to the purchaser of the lines being buried, the parties had
agreed:

a)         the power lines had to be buried prior to completion; and

b)         if the power lines were not
able to be buried, he did not have to wait until completion to terminate the
Contract.

He concluded the parties must have intended the failure
to bury the power lines would result in the termination of the agreement if the
completion date could not be extended.

[16]

The judge rejected the vendors contention that the right to terminate
arises only under the second sentence of the clause.  He interpreted the first
sentence and the second sentence as affording the purchaser that right; the
first sentence applying if the power lines were not buried prior to completion,
the second applying if they could not be buried at all.  He first said:

[38]      The issue is whether
the second sentence, which gives Mr. Peier the right to cancel the Contract at
any time in the event that the power lines cannot be buried, should be
interpreted in a way which rebuts the presumption that the obligation to bury
the power lines prior to completion is a condition.  The question is not
straightforward because there are two ways the second sentence can be
interpreted.  As Cressey argues, it may be that the parties intended that Mr.
Peier had the right to terminate only where the power lines could not be buried
at all.  However, the second sentence can also be interpreted as giving an
additional remedy to Mr. Peier; in that alternate interpretation, the first
sentence creates a condition which gives Mr. Peier the right to terminate
if the power lines are not buried prior to completion and the second sentence
grants a right to early termination, meaning termination prior to the
Completion Date, in the event that the power lines cannot be buried.

He then concluded:

[50]      Contrary to Cresseys argument, the two sentences
in the Power Lines Condition do not compel a conclusion that the right to
terminate is not available if the power lines are not buried at completion.
Instead, I conclude that the two sentences are intended to cover two different
situations.  The first sentence establishes Cresseys obligation to bury the
power lines prior to completion and creates a condition.  The second sentence
deals with the situation where it is determined that it is not possible to bury
the power lines at all.  However, both give Mr. Peier the right to elect to
terminate the Contract:

1)         If the
power lines are not buried prior to completion, he has the right to elect to
terminate the Contract because of Cresseys breach of a fundamental condition;
and

2)         In the event it is determined
that the power lines are unable to be buried Mr. Peier has the right to elect
to terminate the Contract, prior to the Completion Date.

[17]

With respect to the second issue, the vendor contended that, even if it
was a condition that the power lines be buried prior to completion, the fact
the townhouse was not actually ready to be occupied on November 18 entitled the
vendor to delay the completion date under the terms of the agreement as it
purported to do.  The judge concluded that was not so.  He found it was not
open to the vendor to delay the closing date because, for the purposes of the
vendors right to delay the completion date under the agreement, the townhouse
was deemed to be ready to occupy once the municipal approval had been given as
it was on October 21.

[18]

Thus the judge concluded that, because the power lines were not buried
at the time the vendor had said the purchase was to be completed (November 18
at 2:00 p.m.), the vendor had by then no right under the agreement to delay the
completion date and the purchaser was at no time thereafter required to
complete the purchase.  Accepting that the first sentence of the power lines
clause is a condition as opposed to a warranty, the question becomes whether
the judge was right to conclude the clause entitled the purchaser to terminate
the agreement on November 18.

Discussion

[19]

In my view, the answer to the question lies in considering the nature of
the condition.  It is a condition precedent to the completion of the purchase
of the townhouse but not what in law is a true condition precedent.  A true
condition precedent is a condition that is precedent to the existence of any
contractual obligation.  It is an external condition dependent upon a future
uncertain event, the happening of which depends entirely on the will of a third
party:
Turney v. Zhilka
, [1959] S.C.R. 578, 18 D.L.R. (2d) 447.  A true
condition precedent is to be contrasted with other kinds of conditions
precedent where the condition is only precedent to the performance of certain
contractual obligations.  In his text,
The Law of Contract in Canada
,
5th ed. (Toronto: Carswell, 2006) at 430, G.H.L Fridman distinguishes a true
condition precedent from others as follows:

True conditions precedent, in the
Turney
sense, if they are to be distinguished at all, must be
distinguished because their inclusion in an agreement renders that agreement
ineffective to bind the parties until the event contemplated by the condition.
... In contrast with such true conditions precedent, other conditions precedent
do not affect the validity or binding quality of a contract, but simply suspend
performance of the obligations arising under the contract on the part of one,
or other, of the parties, or both, until the stipulated condition is fulfilled.

[20]

The principles for distinguishing between conditions precedent which are
not true conditions precedent were articulated in
Wiebe v. Bobsien
(1984), 59 B.C.L.R. 183 (S.C.), affd 64 B.C.L.R. 295 (C.A.).  The action arose
out of the sale of a home that was subject to the purchaser selling his home,
which he did, by a certain date.  But before he did, the vendor purported to
cancel the agreement.  The purchaser sued for specific performance.  The issue
was whether the parties had a binding agreement.  On his review of the
authorities, the trial judge said at 189:

A condition precedent may be of a
nature that creates no binding agreement or it may just act as an ingredient
which suspends performance of an otherwise complete contract. It all depends
upon the intention of the parties as expressed in the contract itself and as
shown by surrounding events.

and at 191-92:

From these English,
Canadian and American authorities a general rule is laid down that in a real
estate transaction a condition precedent which must be performed by the
purchaser will not usually prevent the formation of a contract but will simply
suspend the covenant of the vendor to complete until the condition precedent is
met by the purchaser.

[21]

The majority in this Court agreed with the trial judges reasoning and
upheld the decree he granted the purchaser.  While he disagreed in the result
on the basis the subject clause was not sufficiently certain, Mr. Justice Lambert
recognized three kinds of conditions precedent at 298-99:

Each condition precedent case must be
considered on its own facts.  As Bouck J. indicated, some conditions precedent
are so imprecise, or depend so entirely on the subjective state of mind of the
purchaser, that the contract process must still be regarded as at the offer
stage.  An example would be subject to the approval of the president of the
corporate purchaser.  In other cases, the condition precedent is clear,
precise and objective.  In those cases, a contract is completed; neither party
can withdraw, but performance is held in suspense until the parties know
whether the objective condition precedent is fulfilled.  An example would be
subject to John Smith being elected as Mayor in the municipal election on 15
October of this year.

But there is a third
class of condition precedent.  Into that class fall the types of conditions
which are partly subjective and partly objective.  An example would be subject
to planning department approval of the attached plan of subdivision.  This
looks objective, but it differs from a truly objective condition in that
someone has to solicit the approval of the planning department.  Perhaps some
persuasion of the planning department will be required.  Can the purchaser
prevent the condition from being fulfilled by refusing to present the plan of
subdivision to the planning department?  This type of case has been dealt with
by implying a term that the purchaser will take all reasonable steps to cause
the plan to be presented to the planning department, and will, at the proper
time and in the proper way, take all reasonable steps to have the plan approved
by the planning department.

What he said has been recognized as the most helpful
statement of the law on the various kinds of conditions precedent:
Mark 7
Development Ltd. v. Peace Holdings Ltd.
(1991), 53 B.C.L.R. (2d) 217 (C.A.)
at 223-24, leave to appeal refused, [1991] 3 S.C.R. ix.

[22]

I consider the power lines clause to fall squarely within the third kind
of condition precedent.  It was objective to a point.  Burying the lines was
something BC Hydro was to do, but the vendor was required to make arrangements
and to pay to have it done.

[23]

Where there is such a condition precedent, the court will imply a term
whereby the party responsible for having the condition fulfilled promises to
make a
bona fide
effort to have it done.  Until the condition is
fulfilled or waived, the obligations of the parties to complete the transaction
will be suspended.  A condition precedent may be waived under s. 54 of the
Law
and Equity Act
, R.S.B.C. 1996, c. 253, by one party if the condition
benefits that party alone.

[24]

In
Dynamic Transport Ltd. v. O.K. Detailing Ltd.
, [1978] 2 S.C.R.
1072, the Court had to consider an agreement for the purchase of land that was
known by both parties to be subject to subdivision approval.  Which party was
to apply was not stipulated.  The vendor refused to complete on the date provided
for in the agreement.  It maintained there was no agreement.  Writing for the Court,
Mr. Justice Dickson held there was a binding agreement subject to a
condition precedent.  It was for the vendor to seek the necessary approval.  A
promise on its part in that regard was to be implied.  He found the agreement
would be enforceable if the approval was given, but would not if, after the
vendors
bona fide
application was made, the approval was denied.  In
the interim, the parties obligations to complete the transaction were said to
be suspended.  He said at 1082-83:

The parties created a binding agreement.  It is true that the
performance of some of the provisions of that agreement was not due unless and
until the condition was fulfilled, but that in no way negates or dilutes the
force of the obligations imposed by those provisions, in particular, the
obligation of the vendor to sell and the obligation of the purchaser to buy.
These obligations were merely in suspense pending the occurrence of the event
constituting the condition precedent.

The existence of a
condition precedent does not preclude the possibility of some provisions of a
contract being operative before the condition is fulfilled, as for example, a
provision obligating one party to take steps to bring about the event
constituting the condition precedent: see, for example, the recent decision of
the Appellate Division of the Alberta Supreme Court in
Steiner v. E.H.D.
Investments Ltd.
[(1977), 78 D.L.R. (3d) 449] (leave to appeal to this
Court denied December 14, 1977).

[25]

Dynamic
was specifically followed by the majority in this Court
in
Wiebe
stating nothing required any distinction to be drawn.  I regard
what was said in
Dynamic
to be in material respects applicable here.

[26]

Under the purchase agreement, with the power lines clause, the burial of
the lines prior to completion can be said to have been essential to the purchaser
but the time of completion was clearly not.  Indeed, the agreement contained no
more than an estimated completion date (December 1, 2008) with the choice of
the actual date for completion being entirely at the discretion of the vendor.
Though the agreement provided time was of the essence, the date for completion
was by no means of the essence.  The only date on which the purchaser could
rely was the Outside Date (March 1, 2010 as extended) on which the agreement
would be terminated if the completion date had not occurred.

[27]

What can be seen to have been important to someone in the purchasers
position was a condition that he did not have to pay the purchase price until
the lines were buried, such that his leverage in that regard was preserved.  If
they could not be buried, or if they could be buried but were not buried prior
to the Outside Date, the purchase price would never have to be paid and the
deposit would be returned.  There was a condition precedent that suspended the
purchasers obligation to pay the purchase price, but the suspension was not
open-ended.  The Outside Date served to give certainty to the agreement.

[28]

Under the first sentence of the clause, the parties agreed the power
lines would be buried prior to completion or the purchase agreement would
terminate on the Outside Date.  Under the second sentence, they agreed that if
the lines could not be buried the purchaser could, at his option, terminate the
purchase agreement.  What they did not agree is that the purchaser could
terminate the agreement if the lines were not buried until after a date chosen
by the vendor for completion.  In my respectful view, that is simply not what
the clause provides.

[29]

The vendors Official Notice of Completion setting November 18 as the
completion date that was given on November 4, and its subsequent notices of later
dates for completion because of the rectification of deficiencies, confused the
situation.  I consider those notices to have been of no effect save for the
notice that the completion date would be December 21 after the power lines were
buried.  The vendor was not entitled to be paid the purchase price before the
lines were buried.  Thus, it was not open to it to choose a date for completion
to take place before that could occur.  The notice of the November 18
completion date the vendor gave could not have been effective because the
obligations of both the purchaser and the vendor to complete the purchase were
suspended until the lines were buried.  The vendor was not entitled to choose a
date for completion when completion could not occur.  The condition precedent
required that the power lines be buried prior to any date chosen.  Only then
could there be a completion date.

[30]

Once the construction of the townhouse was finished, I consider the
purchaser was obligated to complete the purchase whenever the power lines were
buried providing that was done prior to the extended Outside Date.  He was
obligated to complete the purchase on the date the vendor chose after that was
done: December 21.  Prior to that, his obligation was suspended, but he was
never entitled to terminate the purchase agreement, obtain the return of his
deposit, and effectively walk away from his commitment to pay for the townhouse
the vendor had constructed for him pursuant to their agreement.

[31]

Nothing more need be said for the disposition of the appeal.  The vendor
does challenge the trial judges conclusions in other respects which pertain
principally to the question of whether the completion date was properly
delayed, but I need not address the submissions made.

Disposition

[32]

I would allow the appeal and dismiss the purchasers action.  I would
remit the question of the remedies available to the vendor to the trial court
to be determined on the existing record.

The Honourable Mr. Justice Lowry

I agree:

The
Honourable Madam Justice Levine

I agree:

The
Honourable Mr. Justice Frankel


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Bader,

2012 BCCA 25

Date: January 19, 2012

Docket:   CA038287

Between:

Regina

Respondent

And

Norman Cecil Bader

Appellant

Before:

The Honourable Mr. Justice Low

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Hinkson

On
appeal from:  Provincial Court of British Columbia, March 25, 2010

(
R.
v. Bader
, 2010 BCPC 168, Dawson Creek Information No. 29334-1)

Counsel for the Appellant:

M.P. Bussanich

Counsel for the Respondent:

W.J.S. Bell

Place and Date of Hearing:

Vancouver, British
  Columbia

November 15, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 19, 2012

Written Reasons by:

The Honourable Mr. Justice Frankel

Concurred in by:

The Honourable Mr. Justice Low
The Honourable Mr. Justice Hinkson

Reasons for Judgment of the Honourable
Mr. Justice Frankel:

Introduction

[1]

On a dark January morning, Norman Cecil Bader was driving his pick-up
truck behind a tractor-trailer unit on a two-lane secondary highway just
outside of Dawson Creek, British Columbia.  He was accompanied by his wife and
daughter and the daughters boyfriend.  Visibility was poor and snow obscured the
lines on the pavement.  As the two vehicles ascended a steep hill, Mr. Bader
pulled into the oncoming lane to pass the tractor-trailer.  When Mr. Bader
crested that hill and began his descent, he noticed the headlights of an oncoming
vehicle.  Mr. Bader turned his truck towards the ditch on his left in an effort
to avoid a collision.  The other vehicle, also a pick-up truck, turned towards
the same ditch.  The two vehicles collided.  Wade Hubley, the driver and sole
occupant of the other vehicle, was killed.

[2]

Mr. Bader was convicted of dangerous driving causing death by Judge
Blaskovits of the Provincial Court of British Columbia.  In appealing that
conviction, Mr. Bader submits that this Court should enter an acquittal because
the trial judge improperly utilized the audio-track of a DVD containing videos
of the route driven by Mr. Bader that was tendered as a defence exhibit.  In
addition, Mr. Bader submits that a new trial should be ordered because the
trial judge misapprehended or, more accurately, failed to consider, his evidence
concerning why he perceived it was safe to pass the tractor-trailer.

[3]

For the reasons that follow, I would allow this appeal and order a new
trial.  I will deal first with the misapprehension of evidence ground and then
the ground relating to the use of the audio-track.  As will be seen, I have
concluded that Mr. Bader is entitled to a new trial on both grounds.

Factual Background

[4]

The following facts were admitted as part of the Crowns case:

(a)      On
January 5, 2008, Mr. Bader left Ft. St. John, travelling south on the Alaska
Highway (Highway 97N) towards Dawson Creek.  Shortly before 8:40 a.m., he
turned to travel westbound on Braden Road, a two-lane secondary highway.  At
about this time, Mr. Hubley was driving eastbound on Braden Road;

(b)      There
is no artificial lighting on Braden Road.  At the time of the collision the
temperature was approximately minus eight degrees centigrade; no snow was
falling.  It was dark, visibility was poor, and the road was covered with
compacted snow.  There was some fresh snow on the ground from the night before;

(c)      The speed limit on Braden Road is 80
kilometres per hour;

(d)      Approximately
two kilometres west of the intersection of the Alaska Highway and Braden Road,
Mr. Bader, while travelling westbound up a steep hill, attempted to pass a slow
moving tractor-trailer.  At this point, the two lanes on Braden Road are
separated by two solid yellow lines.  Those lines were covered by compacted
snow;

(e)      There
is limited visibility for westbound traffic to view eastbound (i.e., oncoming)
traffic approaching the crest of the hill;

(f)       Mr.
Bader was travelling in the eastbound (i.e., oncoming) lane as he attempted to
pass the tractor-trailer.  He crested the hill, still in the eastbound lane,
and began his descent.  He collided head-on with the eastbound vehicle driven
by Mr. Hubley.  The collision occurred in the eastbound lane;

(g)      Both
vehicles had their headlights on at the time of the collision;

(h)      Mr.
Hubley died of blunt trauma injuries to his chest as a result of the collision;
and

(i)       Both
vehicles were examined following the collision and found to be in good working
order.

[5]

No maps, drawings, or measurements of Braden Road were placed in
evidence.  The Crown tendered a series of photographs of the road from the
Alaska Highway turnoff to the site of the collision.  In addition, during
Mr. Baders evidence in-chief a DVD containing videos of that route was
tendered as evidence.  That DVD was made by Mr. and Mrs. Bader in the fall
of 2009.  Mr. Bader drove the route three times with his wife sitting in the
back seat pointing a video camera at the front window of the vehicle they were
in.  Two of the trips were in the dark; one was during daylight hours.  The
daylight video provides a clear view of Braden Roads topography while
travelling westbound from the Alaska Highway:  there is a level stretch leading
to a long steep hill, after that hill the road levels out (plateaus) for a
short distance and starts to climb again, after a short distance it drops off
quickly in a steep descent.  Although there are utility poles and trees
alongside the road that could assist a driver in appreciating the topography ahead,
they were not visible on the morning of the collision due to lighting and
weather conditions.  As well, there were no signs indicating grade changes in
the road.

[6]

Several hours after the collision, Mr. Bader was interviewed by Constable
Jackelynn Passarell of the Royal Canadian Mounted Police.  That interview was
tape-recorded.  What follows are excerpts from the transcript of that
interview:

Officer:
Okay. Okay. And so, when you decided to pass, could you see down the
road?

Bader:      Um, well I, I couldnt see a-around ah, the big load ah,
and, and actually my, h- when I pulled out I, I didnt, hadnt really decided
to pass, I, I was gonna have a look and ah, you know, I could see for a ways
but I, I ah, I honestly couldnt see far enough.

Officer:     Okay.  When you pulled out to have a look, what was,
what could you see in front of you?

Bader:
I could see a, just the road.  And ah, (indiscernible) just the
road.

...

Officer:     Okay.
When you pulled out, could you see any vehicles oncoming?

Bader:      No.

Officer:     Could
you see down the road so that if there were vehicles oncoming, you wouldve
seen them?

Bader:      Well
I thought I could, I didnt realize that ah, that the hill there was, was that
steep or I guess was the problem, like.

...

Officer:     Uh
hm.  Okay.  So when you pull out to take a look, you can see the crest of the
hill?

Bader:
Um, you know I Im ah, its still dark and, and ah, I, I-ah yeah,
I-I I could still see road, I didnt realize we were startin down the hill
like that.

Officer:     Okay.
Could you see headlights?

Bader:      No.

Officer:     Okay.
Did the other vehicle have headlights on?

Bader:      Yes,
he did.

...

Officer:     Okay.  And when you pulled out to look ahead, you could
not see anything coming towards you?

Bader:      No.

Officer:     Okay.  And then once you had committed to try, started
to make that pass was when you first observed the headlights coming.

Bader:      Ah, well ah, well I, yeah I, I had decided to make the
pass and then ah, um, as soon as I had actually started-Im-I'm positive of
this, I had started to slow down before I seen the vehicle, um, because I was,
I was re-actually quite fast, you know and, and driven trucks, like how fast he
accelerated I know, I know they have all kinds of power and everything but, um,
like I could see it wasnt his intention to let us by (indiscernible) it wasnt
my (indiscernible) my family going skiing and, ah.  You know so, so I, I had
made, I-I had made the decision to slow down to, to get back in behind him in
my lane and, and, and, about that time ah, ah, well somewhere in there the, the
vehicles headlights appeared and, the truck was gone like there was lots a
room for him to go out and around, and you know the truck was already by so, so
thats how face [
sic
] he, hed been goin, or picked up his speed,
c-cause the truck was long gone.  He had time to looked like, get up, to get
over into my lane. Y-you know, it was just a move over and, it wasnt as if he
was driving there for a long time, like it, you know, it all happened within
you know, a thousand feet, somein, you know, not very, not very far eh.

[Emphasis added.]

[7]

Rodney Bruce Steiner, the driver of the tractor-trailer, first noticed
Mr. Bader attempting to pass him while on the flat (plateau) portion of Braden
Road just before the steep descent.  Based on his familiarity with Braden Road,
Mr. Steiner described that area as a non-passing spot, because of the steep
descent after the road crests.

[8]

When he first noticed Mr. Baders vehicle, Mr. Steiner was travelling at
50 to 60 kilometres per hour, having slowed from approximately 70 kilometres
per hour at the start of his climb.  He said that while on the plateau one can
see the continuation of the hill ahead but cannot see past the crest.  As Mr.
Steiners vehicle crested the hill its speed began to increase.

[9]

Brady Eugene Busche, one of the passengers in Mr. Baders vehicle, was
familiar with Braden Road.  He said that he was skeptical/nervous when
Mr. Bader pulled out to pass because he was aware of the steep drop-off ahead.
He did not say anything as he initially thought Mr. Bader would be able to pass
the tractor-trailer before reaching the crest of the hill.

[10]

Mr. Bader was the only defence witness.  He confirmed that his statement
to the police was the truth as he knew it.  He had last driven on Braden Road
about eight years before the collision.

[11]

Mr. Bader testified that he decided to pass the tractor-trailer because
it had slowed to 20 to 30 kilometres per hour.  When he pulled out to see if he
could pass he believed he was on a portion of the road that had levelled off.
He did not see the hill rising in front of him and did not feel the ascending
slope of the road.  Mr. Bader believed he could see a long way down the
road and that it was clear ahead.

[12]

When the tractor-trailer picked up speed, Mr. Bader said he decided not
to pass and slowed down intending to move back into the right lane.  As he
crested the top of the hill the road vanished ... and dropped off.  He then
noticed the headlights of an oncoming vehicle.  He tried but failed to avoid
colliding with that vehicle.

[13]

What follows are excerpts from Mr. Baders testimony:

In
Chief

Q         Thank
you.  And could - - when you [pulled out to pass], could you see the hill
rising in front of you.

A          The
hill, no.

Q         Okay.
What could you see in front of you when you pulled out to pass?

A          I
could see down the road I thought was - - was quite a ways.

Q         Why did
you think that?

A          Thats
- - thats just what it looked like.

...

Q         So was
there anything in particular that you think you could see down the road?

A          I
just thought I could see a long way down the road.

Q         So, Mr.
Bader, your - - just going through the - - you - - the time just prior to the
accident.

A          Right.

Q         You had
been going up the hill behind the truck.

A          Right.

Q         You
pulled out to - - to pass, and I think what youd said to Constable Passarell was
that you pulled out, you - - you hadnt committed yourself when you pulled out.

A          No,
thats right.

Q         What
did you mean by that?

A          Well,
I - - I wanted to make sure I had a good look, that nobody was coming and - -
you know, before you speed up you make sure everything is clear and - - and it
was.

Q         Okay.
So you looked and everything was clear.

A          Right.

Q         When
did you make the decision to - - to pass the low-bed?

A          Well, at that time, yeah.

Cross-Examination

Q         At some
time could it have been in - - in - - moments from approaching Mr. Steiners
vehicle or it could have been some time after Mr. Steiners vehicle, you
decided youre going to peek out and pass, youre going to peek out and see if
its safe; is that fair to say at this point?

A          Yes.

...

Q         Okay.
Now, lets talk about what the grade of the slope is.  Youve said its dark.

A          Yes.

Q         So you
cant - - you dont have any landmarks to see.

A          No.

Q         The
vehicle - - Mr. Steiners vehicle has slowed to a fairly slow pace because its
going up a very steep part of the hill; right?  You can feel that hill in your
vehicle, presumably your back is driven into the seat.
You - - you can feel
the slope; right?

A          No.

Q         You
dont feel the slope as youre going up the hill?  You dont recall that.

A          Not
in a pickup.  No.

Q         Can
you see the slope of the hill that youre travelling up?

A          Actually
no, I didnt realize it was that - - that steep.  Like it doesnt look like the
same - - same thing you see in the daylight.

Q         I can
appreciate its dark - -

A          Right.

Q         - - and
you dont have landmarks.  Are you aware that youre going uphill?

A          Yes, I
- - I was aware we were going up a - - a bit of a grade.

Q         And
thats when Mr. Steiners vehicle slows down is when youre going - - when
youre going up this grade; right?  Hes slowing right down to this very slow
speed you recall on the grade, on the uphill grade; right?

A          Yes,
he was slowing down, yeah.

Q         Okay.
Now, it is on this grade that you peek out to look past Mr. Steiners
vehicle to see if its safe?  Are you still going uphill when you peek out?

A          No, I
believe we were on the level on the top.

Q         Now,
you say you believe.  Could you say with certainty as you just - - youre not
sure where you made that decision; right?  You believe it was on top or youre
not certain?

A          You know, it - - its - - Im not certain, no.

Q         I know because its difficult - -

A          Right.

Q         - - because its a long time ago and a traumatic
event at the end.  It ...

A          Thats right.

Q         Assume as what we know; right?

A          Yeah.

Q         Okay.
You peek out and you look ahead.  Now, what I suggest to you is you can see - -
when you look out, youve got your headlights, perhaps one headlights is
looking past the Steiner vehicle at this time; right, its looking past the
low-bed.  You can see up the length of the Steiner vehicle; right?  You can see
up the length of that low-bed; correct?

A          You
know, I cant remember the details like that.  Like its been just about two
years.

Q         And
its dark; right?  Youve testified that its actually quite dark.  We cant
see much in these videos at all; right?

A          Yes,
its quite dark, yes.

Q         So your
- - your vision is limited by the distance of your headlights; correct?

A          Thats
right.

Q         So you
cant see - - I take - - were just looking at the roadway now.  On the roadway
itself, you cant see much past your - - if anything, past your headlights;
right?

A          Past
my headlights?

Q         Yes.

A          Yeah,
I cant say that.  He had his headlights on.

Q         Mr.
Steiner.

A          Thats
right.

Q         So you
may have had - - those lights may have illuminated the view ahead of you a bit
more?

A          Thats
possible, yeah.

Q         But
again its possible, but we - - we dont have - - you dont have a present
recollection of this.

A          I
dont, no.

Q         The
best you recall then is you looked out and you thought you could see far enough
ahead; right?

A          For
- - for the - - for the speed we were travelling, I could see far enough ahead.

[Emphasis added.]

Trial Judges Reasons

(2010 BCPC 168, 99 M.V.R. (5th) 305)

[14]

The trial judge commenced his reasons by setting out the facts that he
found had been established by the evidence.  After describing Braden Road and
the lighting and weather conditions on the morning of the collision, he
continued:

[5]        At about two kilometers west of
the junction with Highway 97, the grade of the roadway rises to a hill, is
level for a short distance and then rises again to a final crest before
beginning to drop suddenly.  There was no measurement offered in evidence of
the overall length of the hill or the length of the short level portion of
roadway.  There was no calculation or estimate of the pitch of the inclination.
 Photographs and videos introduced into evidence suggest that the overall
length of the grade is in excess of one kilometer, that the level portion is
very short and that the pitch of the inclination before and after is relatively
steep.  There are double solid lines marked on the pavement along some extent
of the incline.  Due to snow on the roadway, the lines were not visible on the
morning of January 5, 2008 and there were no signs posted at the time
indicating that passing was not permitted.
The grade itself should be
apparent to a motorist, even in the dark, when a vehicles transmission begins
to labour.  The audio portion of a video introduced into evidence by the
defence demonstrated this.
In the dark however, poles alongside the road
could not be seen in order to assist a motorist in reckoning the distance
remaining of the grade of the roadway ahead or the onset of the sudden
declivity after the final rise.

[6]        The tractor and trailer were
moving slowly and Mr. Bader pulled out on the hill to pass the unit.  According
to Mr. Bader he pulled out on the short level portion of the roadway before the
final ascent.  According to the driver of the tractor and trailer, Mr. Bader pulled
out on the final ascent.  I am prepared to accept Mr. Baders evidence of his
position on the roadway when he began to pass.  It appears that Mr. Bader may
have thought that he reached the crest of the hill when he was on the short
level portion, but he did not say so.
I infer that because he knew he was
on a grade when he caught up to the unit, he must also have known he was on a
grade after he pulled out on the short level stretch and began to climb again.
In either case, it is important to find, and I do, that Mr. Bader had not yet
reached the crest when he pulled out.

[Emphasis
added.]

[15]

The trial judge then went on to discuss what happened from the time Mr. Baders
vehicle crested the hill until it collided with Mr. Hubleys vehicle.

[16]

The judge reviewed the evidence given by various witnesses, which he
said was generally consistent about the circumstances leading up to the
collision.  In the course of that review he set out a number of excerpts from
Mr. Baders statement to the police.  He did not include any excerpts from Mr.
Baders testimony, including those set out in para. 13 above.

[17]

The trial judge summarized Mr. Baders testimony as follows:

[18]      Mr.
Baders evidence at the trial was substantially the same.  The tractor and
trailer were moving slowly and he decided to pass.  The driver of the tractor
did not give him an indication that he could pass.  He said that he pulled out
without committing to pass in order to make sure it was clear to pass.  It was
dark.  He was aware that he was going up a grade but didnt realize how steep
the hill was.  His vehicle and the tractor and trailer were then travelling the
same speed.  Mr. Bader said that he looked at the lowbed trailer and then at
the roadway and the roadway suddenly dropped off.  By then he said he had
decided not to pass and he started to fall back.  The oncoming headlights came
into view.  The headlights moved into the westbound lane and back again.  He
tried to slow down and move behind the tractor and trailer unit but it had speeded
up.  In deciding to pass he said he hadnt considered this happening.  The
collision occurred.

[18]

Under the heading LAW, the trial judge set out the relevant provisions
of the
Criminal Code
, R.S.C. 1985, c. C-46, i.e., ss. 249(1)(a) and (4).
Those were followed by a discussion of
R. v. Hundal
, [1993] 1 S.C.R. 867
and
R. v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49, the leading decisions of
the Supreme Court of Canada on the elements of the offence of dangerous
driving.

[19]

Under the heading ANALYSIS, the judge applied that law to the
questions of whether the Crown had proven both the
actus reus
and
mens
rea
of the offence of dangerous driving.  He concludedand this is not
challenged on appealthat, viewed objectively, Mr. Bader drove his vehicle
in a manner dangerous to the public.  Turning to the mental element of the
offence, the trial judge began his discussion as follows:

[32]      The second question is whether Mr.
Bader had the necessary
mens

rea
for the offence or whether there
is a reasonable doubt that he had the necessary
mens rea
for the offence.
I consider his explanation for his manner of driving.

[33]      There is no suggestion in the
evidence that Mr. Bader was inobservant of the circumstances, as limited as
they were, under which he was driving when he pulled out.
There is also no
suggestion in the evidence that he laboured under a mistake of fact in his
perception of the circumstances
or that he was incapable of perceiving
them.

[Emphasis added.]

[20]

Applying the test set out in
Beatty
, the judge was satisfied
beyond a reasonable doubt that Mr. Baders driving amounted to a marked
departure from the norm.  Although the judge found that Mr. Bader had not
pulled out with the deliberate intention of putting anyone in danger, he found
that, having regard to all the circumstances, Mr. Bader would have been aware of
the risks created by his attempt to pass when and where he did.  In concluding
his analysis, the judge stated:

[40]      Mr. Bader cannot point to the
increase in the speed of the tractor as an excuse for his conduct.  He was
himself a professional driver.  He was already in the opposing lane and when
both vehicles reached the crest of the road, he must have known that the
slower, heavier vehicle on an incline will pick up speed on the level or
decline.  As a professional driver, he must also have known the danger inherent
by the drivers applying the brakes of the tractor and trailer unit on a
decline in winter road conditions.

[41]      A
driver possessed of this information would have been aware of the risks and the
danger of Mr. Baders manner of driving.  The reasonable driver aware of these
risks and with the limited capacity to assess the safety of a passing manoeuvre
would not have deliberately entered and remained in the oncoming lane on this
roadway.  Mr. Baders evidence and the evidence at the trial as a whole do not
raise a reasonable doubt that someone in his position would not have been aware
of the risks created by this manner of driving.

Analysis

Misapprehension of the Evidence

[21]

Mr. Baders primary defence at trial was that when he commenced his passing
manoeuvre he honestly believed, based on his senses, that the road ahead was
level and clear.  In other words, he believed it was safe to pass.  He submits
that the trial judge, in addressing the
mens rea
element of dangerous
driving, failed to consider his evidence with respect to that belief and that,
as a result, the trial was unfair.  I agree with that submission.

[22]

Mr. Bader testified that he pulled out from behind the tractor-trailer
on a level stretch of road and, having done so, did not realize that the roads
grade had started to rise again.  Further, he said that before cresting the
hill he believed he could see far enough down the road to determine that it was
safe to pass.

[23]

A finding of fact important to the trial judges ultimate conclusion was
that Mr. Bader must have known that the roads grade started to rise
again.  The judge expressly made this finding at para. 6 of his reasons.
Although in that paragraph the judge refers to other aspects of Mr. Baders evidence,
no mention is made of the testimony to which I have just referred.  If the
judge rejected Mr. Baders testimony regarding what he believed about the grade
of the road and what lay ahead, then I would have expected the judge to have explained
why he reached that conclusion.  It is noteworthy that when the judge later
came to review Mr. Baders evidence, he again made no mention of how Mr. Bader
said he perceived the circumstances.

[24]

That the trial judge overlooked this aspect of Mr. Baders testimony is further
reflected in that portion of his reasons dealing with the
mens rea
element of the offence.  In para. 32 of those reasons, the judge begins his
consideration of Mr. Baders explanation for his manner of driving.
However, in the following paragraph he states that there is no suggestion in
the evidence that [Mr. Bader] laboured under a mistake of fact in his
perception of the circumstances.  This is a clear indication that the judge
misapprehended, or failed to consider, an important aspect of Mr. Baders
testimony.

[25]

In response to Mr. Baders argument, the Crown points to the fact that it
has never been disputed that part of the passing manoeuvre took place while
Mr. Baders vehicle was proceeding up a hill.  That, however, is not
determinative of the issue of what Mr. Bader perceived the grade to be at the
relevant time.  Neither is the testimony given by other witnesses with respect
to the topography and the road and weather conditions.

[26]

It is clear from
Beatty
that a mistake-of-fact defence is open to
a person charged with dangerous driving.  In that case, Madam Justice Charron
stated that a reasonably held mistake of fact may provide a complete defence
if, based on the accuseds reasonable perception of the facts, the conduct
measured up to the requisite standard of care:  para. 38.  The problem in the
case at bar is that the trial judge did not turn his mind to that question.
Accordingly, it cannot be said, as the Crown submits in its factum, that there
was nothing to suggest that [Mr. Bader] had a reasonably based belief in a
state of facts that would have led him to mistakenly believe he could see far
enough ahead of him to properly assess his ability to pass.

[27]

The threshold for establishing a misapprehension of evidence sufficient
to overturn the decision of a trial judge is a high one.  It was succinctly
stated by Chief Justice Finch in
R. v. Peters
, 2008 BCCA 446, 262
B.C.A.C. 57:

[14]      Material
misapprehension of the evidence can justify appellate intervention.  The
standard is a stringent one:  the misapprehension of the evidence must go to
the substance rather than to the detail; it must be material to the reasoning
of the judge and not peripheral; and the errors must play an essential part not
only in the narrative of the judgment but in the reasoning process itself.  If
this standard is met, appellate intervention is justified, even if the evidence
actually does support the conclusion reached:  [citations omitted].

Also apposite is the judgment of
Madam Justice Bennett in
R. v. Shen
, 2010 BCCA 554:

[29]      The question, then, is
whether the errors, admittedly made by the trial judge, played an essential
part in the reasoning process resulting in a conviction.  The test is
stringent, because it is easy, in a busy trial court or after a long trial, for
a judge to misspeak, even when reading from written reasons.  Misspeaking or misapprehending
evidence is not an error unless the error or errors go to the core of the
reasoning process which resulted in a conviction.

[28]

In my view, that threshold has been met in the case at bar.  Because the
trial judge failed to consider Mr. Baders evidence as to why he perceived that
it was safe to pass, Mr. Bader did not receive a fair trial:
R. v. Lohrer
,
2004 SCC 80, [2004] 3 S.C.R. 732 at para. 1, citing
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 221.  As a result, there must be a new
trial.

Use of the Audio-Track of the DVD

[29]

As previously mentioned, the defence tendered a DVD containing a
video-recording of three trips Mr. and Mrs. Bader made along Braden Road more
than a year after the collision.  That recording has an audio-track.  For the
most part all that can be heard are sounds made by the vehicle Mr. and
Mrs. Bader were in and other vehicles on the road.  There is minimal conversation
between Mr. and Mrs. Bader.  Both the video and audio-tracks are part of
the trial record.

[30]

The DVD was played during Mr. Baders examination-in-chief and
cross-examination and he was questioned about what it depicted.  He was not
questioned about the audio-track.  As the transcript filed on the appeal does
not contain counsels oral submissions, it is not possible to say whether
either of them referred to the audio-track in advancing their respective
positions.  However, the written submissions counsel provided to the trial
judge were filed on the appeal.  Those do not contain any reference to the audio-track.

[31]

It is, however, clear that the trial judge did have regard to the
audio-track.  For ease of reference, I repeat what he said about it in para. 5
of his reasons:

The grade itself
should be apparent to a motorist, even in the dark, when a vehicles
transmission begins to labour.  The audio portion of a video introduced into
evidence by the defence demonstrated this.

In the following paragraph the
judge said:

I infer that
because [Mr. Bader] knew he was on a grade when he caught up to the unit, he
must also have known he was on a grade after he pulled out on the short level
stretch and began to climb again.

[32]

It is not disputed that the audio-track indicates that the transmission
noise of the vehicle Mr. Bader was driving in the 2009 DVD increased as that
vehicle proceeded up the grade to the crest of the hill.  However, there is no
evidence that Mr. Bader was aware of that noise.  More importantly, there
is no evidence that the transmission of the vehicle Mr. Bader was driving on
January 5, 2008, made a similar noise and, even if it did, that such noise
would have been apparent to him.  In this regard, I note that there is a dearth
of evidence with respect to such matters as whether there was music playing in
Mr. Baders vehicle on the morning of the collision, or the level of
conversation inside the vehicle at that time.

[33]

Although it is not entirely clear, it appears that the trial judge may
have taken the transmission noise into account in deciding that, after Mr.
Bader pulled out to pass, he must have known that he was again travelling up a
hill because that noise would have been apparent to him.  If the judge did do so,
then in my opinion, he erred.  However, it may also be, as submitted by the
Crown, that the judge did not use the transmission noise to either bolster the
Crowns case or to negate Mr. Baders evidence, but rather, treated it as
merely confirmatory of a fact that was not in dispute, i.e., that the grade
increased after Mr. Bader pulled out.

[34]

Given that the reasons leave open the possibility that the transmission-noise
evidence was misused, I would give effect to this ground as well.  However, I do
not agree with Mr. Bader that this error entitles him to an acquittal because, otherwise
at a new trial, the Crown might to able to call additionalperhaps
expertevidence with respect to transmission noise.  The use of a particular
piece of evidence to draw an unavailable inference does not lead to an
acquittal on appeal when the balance of the evidence could support a
conviction.  The only available remedy is a new trial.

Conclusion

[35]

I would allow this appeal, set aside the conviction, and order a new
trial.

The Honourable Mr. Justice Frankel

I agree:

The Honourable Mr. Justice Low

I agree:

The Honourable Mr. Justice
Hinkson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Chaffey,

2012 BCCA 33

Date: 20120119

Docket: CA038553

Between:

Regina

Respondent

And

Ryan James Chaffey

Appellant

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Lowry

The Honourable Madam Justice Bennett

On appeal from:
Provincial Court of British Columbia, June 21, 2004
(
R. v. Chaffey
, Port Coquitlam Registry 69116-2-C)

Oral Reasons for Judgment

Counsel for the Appellant:

D.C. King

Counsel for the Respondent:

J. Duncan

Place and Date of Hearing:

Vancouver, British
  Columbia

January 19, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 19, 2012

[1]

SAUNDERS J.A.
: Mr. Chaffey applies for an extension of time to
apply for leave to appeal, if granted, applies for leave to appeal, and if
leave be granted, appeals the sentences imposed upon him on June 21, 2004 on
two of three counts of robbery set out in Information 69916-2-C. The appeal
concerns an illegal sentence, and appropriately, the respondent does not oppose
an extension of time, or leave to appeal, and agrees in the circumstances of
the case, to the appellants proposed disposition. In the circumstances, the
extension of time sought is appropriate, in my view, as is leave to appeal. I
would extend the time to appeal to November 2, 2010, and give leave to appeal.

[2]

I turn to the substance of the appeal. Mr. Chaffey was sentenced to 10
months incarceration on one count of robbery, which was Count 3, and a
conditional sentence of two years less a day each on the other two counts of
robbery.

[3]

Mr. Chaffey has committed further offences since the ones in issue. In
particular on December 7, 2010 he pleaded guilty to five counts of robbery and
one count of theft under $5,000. He was sentenced to three years imprisonment
on each of the robbery charges, and two years imprisonment on the theft under
charge, all sentences to run concurrently. In the course of dealing with
corrections officials in the recent past, the matter of the illegal sentence imposed
in 2004 was drawn to his attention. This accounts for the late filing of his
application for leave to appeal sentence.

[4]

Simply describing the sentences imposed in 2004 reveals the error  the
combination of the sentences, referred to as a blended sentence, results in a
sentence that exceeds two years.

[5]

Section 742.1 permits a conditional sentence to be imposed only where,
in the words of the section, the court imposes a sentence of imprisonment of
less than two years. It is now well accepted that imposition of terms of
imprisonment and conditional sentences in which the aggregate sentence exceeds
two years is illegal as contrary to s. 742. 1. A useful compilation of the
cases on this issue is found in
R. v. Lyver
, 2007 ABCA 369.

[6]

The appellant suggests that the problem be rectified by setting aside
the conditional sentences of two years less a day and substituting a sentence
of imprisonment. Crown counsel, in the circumstances described in which the
problem is of long standing and has been uncorrected until now, agrees.

[7]

In my view, the sentencing solution proposed is appropriate. I would
allow the appeal by setting aside the sentences imposed on Counts 4 and 5 of
Information 69916-2-C and imposing on each of those counts a sentence of 22
months imprisonment, to run concurrent to each other and to the sentence of 10
months imposed on Count 3.

[8]

The parties are at liberty to return on this matter if this disposition
has unintended consequences.

[9]

LOWRY J.A.
: I agree.

[10]

BENNETT J.A.
: I agree.

[11]

SAUNDERS J.A.
: The appeal is allowed in the terms I have
indicated.

[12]

Since these reasons for judgment were delivered orally, I have located
this helpful and clear explanation of the availability of a blended sentence,
provided by Chief Justice Finch in
R. v. Joe
, 2005 YKCA 9:

[30]      I am persuaded that it
is not an error of principle to order both custodial and conditional sentences
for offences arising from the same circumstances, provided that: the global
sentence does not exceed two years less a day; the custodial and conditional
sentences are not ordered to be served concurrently; and the requirements of s.
742(1)(b) are satisfied in respect of one or more of the offences.

The Honourable Madam Justice Saunders


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Jean,

2012 BCCA 29

Date: 20120120

Docket:
CA035452

Between:

Regina

Respondent

And

Remi Claude Jean

Appellant

An
Order has been made directing that the identity of the complainant and any
information that could disclose her identity not be published in any document
or broadcast in any way pursuant to Section 486(3) (now Section 486.4(1)) of
the
Criminal Code
.

Before:

The Honourable Madam Justice Ryan

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice D. Smith

On appeal from the
Supreme Court of British Columbia, July 21, 2005 (
R. v. Jean
, Terrace
Registry, Docket Number 24039-2 & 24039-3)

Counsel for the Appellant:

R.J. Kincaid

Counsel for the Respondent:

E.A. Campbell

S.E.
  Lacusta, A/S

Place and Date of Hearing:

Vancouver, British
  Columbia

February
  10, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 20, 2012

Written Reasons by
:

The Honourable Madam Justice Ryan

Concurred in by:

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice D. Smith

Reasons for Judgment of the
Honourable Madam Justice Ryan

Introduction

[1]

The appellant, Remi Claude Jean, appeals his July 21, 2005 conviction
for indecent assault following a trial in the Supreme Court in Terrace before
Mr. Justice Bauman (as he then was) and a jury.

[2]

The one-count indictment alleged an historical sexual assault.  It read:

Remi Claude JEAN, between the 1
st
day of January,
1972 and the 31
st
of December, 1979, all dates inclusive, at or near
Delta or Surrey, in the Province of British Columbia, did indecently assault a
female person, [Ms. B], contrary to s. 149(1) of the
Criminal Code
.

[3]

The appellant says that the trial judge erred in admitting evidence
which was highly prejudicial to him, and that, having admitted the evidence,
erred in instructing the jury as to its use.  He also says that the trial judge
was wrong in allowing the Crown to call evidence of an assault which occurred
outside the time-frame of the indictment.

Evidence at Trial

The Case for the Crown

[4]

The complainant, Ms. B, was 38 years of age at the time of trial.  She
alleged that Mr. Jean assaulted her over a number of years when she was between
the ages of five and twelve.

[5]

When she was three years old, the complainant, along with her older
sister and younger brother, went to live with Mr. Jeans wifes parents in North
Delta.

[6]

Ms. B testified that Mr. Jean, his wife, and their two children were
regular visitors to the foster home and that when she was six years of age, the
Jean family lived in the basement of the home for about six months.

[7]

Ms. B testified that the appellant began to sexually abuse her when she
was about five years old.  He would pick her up, put her on his lap, put his
hands between her legs, and touch her thighs and rub her vagina.  The touching
started before the Jeans moved into the foster home and continued during their
stay.

[8]

Ms. B testified that, once the Jean family was living in the residence,
the appellant would often go to her bedroom at night.  He would lie down on her
bed, kiss her on the cheek, lift her nightie, and rub her behind and her
vagina.  While he was doing that, the appellant would rub his penis.  Sometimes
Mr. Jean lay beside her; other times he would lie on top of her and rub his
penis against her vagina, ejaculating on her stomach.

[9]

The complainant testified that she was scared by what was happening to
her.  She said that Mr. Jean told her that he loved her, that what was going on
was their secret, that no one would understand, and that she would be separated
from her sister and her brother

if anyone
found out.

[10]

The complainant said that she reported Mr. Jeans behaviour to her
foster mother when she was about five years of age.  She said her foster mother
angrily dismissed the complaint.

[11]

Ms. B testified that she recalled part of an incident where she awoke in
the bathtub.  There was blood in the bathtub and she was crying.  Mr. Jean was
kneeling beside the tub stroking her hair and telling her it would be okay.
She did not go to school the next day because she was sore in her vaginal area.
 The complainant testified that she told her foster mother that she was sore
and could not get out of bed.  Her foster mother made no further investigation
of her illness.

[12]

The complainant testified that when she was eight or nine years of age,
the Jean family had their own home in Surrey.  Ms. B said that she would visit
the home at the request of Mr. Jeans wife.  On such occasions, she would be
asked to help with the cleaning and chores.  She said that the sexual abuse continued
in Surrey at the Jean home.  The appellant would lie with her on the couch to
watch television and Mr. Jean would rub his penis against her behind.  At other
times, Mr. Jean would have her lick his penis and put it in her mouth.

[13]

Ms. B said that she occasionally stayed overnight at the Jeans and when
she did so, she slept in Mr. and Mrs. Jeans bed between them.  While in bed,
Mr. Jean would slip his hand under her nightclothes and rub her chest and
vagina.  The appellant would have her touch his penis before he rolled over and
went to sleep.  Ms. B said that she thought Mrs. Jean was asleep when this
happened.

[14]

Ms. B testified that she did not tell either of her siblings about what
Mr. Jean did to her.  She said that sometimes she would wake up frightened in
the middle of the night.  When that happened, she would awaken her sister and
tell her that she could not breathe.  Her sister would put her head out the
window, tell her to breathe deeply, and hold her until she could breathe again.

[15]

The complainant testified that the incidents ended after she told her
foster father about Mr. Jeans assaults and threats during a car ride to
Vancouver.  Ms. Bs foster father told her that no one would separate her from
her siblings, drove back home, and confronted the appellant with what Ms. B had
told him.

[16]

Ms. B said that not long after this confrontation, she moved with the
foster family to Quesnel.  Matters became difficult between her and her foster mother,
who often struck her and her siblings.  When Ms. B was 12 years of age, she ran
away with her sister, and they both started living with a different foster
family.

[17]

Ms. B testified that one time after she had moved out, she went to her
former foster home for an Easter egg hunt and dinner at the request of her brother,
who still lived with the foster family.  The appellant and his family attended
the dinner as well, which upset Ms. B.  She decided to leave.  Her former
foster mother said that Mr. Jean would drive her back to her new home.

[18]

Ms. B continued her testimony:

And I said, No, thats okay, Ill
walk.  And where they lived from town where I lived, it was like probably a
two-hour walk, and it was already dark and it was like the country, so it was
-- there was lots of woods.  So she wouldnt let me walk and I agreed to have
them let Remi drive me home.  And on the way home he was trying to put his
hands on my legs and pulling me in to hug him, and I kept swearing at him and
telling him to leave me alone.  And then when we got down to Marlenes house where
I was staying,
he said that hed give me a hundred dollars because thats
how much he gave my sister to sleep with him
.  [Emphasis added.]

[19]

This was the only mention of this last incident in the Crowns case.
Defence counsel left it alone in cross-examination.

[20]

Ms. Bs sister testified.  She confirmed that Mr. Jean and his family
had lived at the foster home for less than a year.  She described herself as
being like Ms. Bs mother.  She recounted how Ms. B would come to her during
the night complaining that she could not breathe.  Ms. Bs sister said that she
would put her head out the window and tell her to breathe.  She would hold and
support Ms. B.

[21]

Ms. Bs sister said that Mr. Jean called her sister names and would
often ask her to sit on his lap and give him a kiss.  She said that she knew
that Mr. Jean made her sister uncomfortable and that she would cry, but back
then she knew nothing of the sexual abuse.  Ms. Bs sister said that she liked
Mr. Jeans wife very much and could not understand back then why her sister did
not want to visit the Jean family home in Surrey.

[22]

Ms. Bs sister recalled an incident when her foster father was angry
with Mr. Jean.  She said that her foster mother was also very angry and
called the two girls homewreckers.  She did not know the reason for this
outburst.

[23]

Ms. Bs sister was not questioned in direct or cross-examination about
whether Mr. Jean had paid her for sex
or
otherwise
directed any inappropriate behaviour toward her.

The Case for the Defence

[24]

Mr. Jeans wife testified on behalf of her husband.  She said
that Ms. B never visited their Surrey home alone.  She did not recall Ms. B
staying overnight and, if she had, she would not have slept in the same bed as
Mrs. Jean and her husband.  Mrs. Jean said that she and her husband lived with
her parents in Vancouver when they were first married, but not afterward.  Mrs.
Jean had undergone recent surgery at the time of trial.  After being unable to
recall the layout of her parents home, or when her mother had died, Mrs. Jean
agreed with Crown counsel that she did not have a good memory.  She said,
Right now Im just ‒ um, confused, sir, cause Im not well.  My
memorys not very good right at this moment.

[25]

Mr. Jean testified.  He too had difficulties with his memory which he
attributed to heart attacks and medication.  He denied any inappropriate
behaviour with Ms. B.  He said that he had no memories of the complainant
beyond the fact that she was a foster child of his in-laws.

[26]

Mr. Jean was asked by defence counsel (not counsel on this appeal) about
each of the incidents to which Ms. B had testified.  He specifically denied
each kind of abuse to which the complainant testified.  Elaborating, he said
that Ms. B only visited his home with her foster parents and never stayed
overnight.  He also said that the incidents alleged to have occurred in his bed
beside his sleeping wife could not have happened because his wife was a light
sleeper.

[27]

When counsel for the defence reached the last incident, these questions
and answers took place:

Q [Defence counsel]   Now, she said lastly sir, that
there was a time when -- after the family moved to Quesnel, when she was -- had
run away from home, I believe she said, with her -- with her sister, or at
least was not living in the [original foster home] in Quesnel and was there at
Easter for an Easter egg hunt and for dinner, and you -- you and [your wife]
were there --

A [Mr. Jean]     Yes.

Q         -- do you recall that?  Do your recall her
being there?

A          Yes.

Q         You remember that?

A          Vaguely, but yes.

Q         All right.  And that you gave her a ride home
--

A          Yes.

Q         -- or back to where she was living, at least?

A          Yes.

Q         And that you -- just be sure of this.  Give me
a moment.

You tried to put your hands on her and she
was swearing at you, and that you said to her that you would give her $100 to
sleep with her; thats how much you gave her sister.

A          Um, I never
touched her.  I did offer her $100, and I never offered her sister anything.

[28]

On cross-examination, Mr. Jean was asked about each of the incidents
(with the exception of the last).  He agreed that he had a bad memory and could
not say whether or not each incident happened.  This exchange occurred between
the prosecutor and Mr. Jean:

Q         ... Do you actually have any memory of her sitting
on your lap at all?

A          Not really.

Q         Not really, actually means no, doesnt it, Mr.
Jean?

A          Well, its not in my mem -- not in my knowledge.

Q         Okay.
Lets start with -- lets try -- Im not trying to be difficult here, but I
dont want to -- I want to be clear and -- and I want to really understand what
youre saying, and the jury really has to understand what youre saying, okay.

When
you say not to your knowledge, does that mean you have no memory of her ever
being on your lap?

A          Thats right.

Q         So you
have -- you couldnt say whether it happened, and you cant say whether it
didnt happen?

A          Thats true.

Q         And,
Mr. Jean, you cant say whether you touched her on her vagina or you didnt
touch her, because you dont know --

A          Thats right.

...

Q         Mr.
Jean, the -- there was the -- what we might call the bathtub incident -- you
know, where [Ms. B] talked about waking up and being in the bathtub and having
her head scrubbed and you helping her clean up.  That whole description that
she gave of something going on there, you dont know whether that happened or
not, is that fair?

A          Well, truthfully, no.

Q         And she
talked about some times when you made her lick your penis; you put your penis
in her mouth.  You dont know whether that happened or not either, do you --

A          No, I dont.

Q         And the
visits at your house after you moved out from [your in-laws] place, there was
a comment -- there was an accusation and she -- [Ms. B] told us about lying on
the couch and about you rubbing your penis on her behind.  You cant say
whether that happened or not, can you?

A          No.

Q         And she
also makes some -- she told us about some things that she said happened when
she slept in the bed between you and your wife.  You cant say whether that happened
or not, can you?

A          I know she wouldnt be sleeping in the bed with me
and my wife.

Q         Why is that?

A          Because she wakes up so easy.

Q         She your wife, wakes up so easy.

A          She wakes up really easy.

Q         Okay.  Has she always?

A          Yes.  As far as I know

Q         Oh.  Because weve got a memory problem there,
right, so if you --

A          Well, as far as I can remember.

Q         Okay.

A          You
know, Im going by [the] last 10 years or so, that I can vaguely remember that
she just -- if I turn over, shes awake, and ...

Q         Okay.  Just one moment, please.

Okay
-- sorry.  Mr. Jean, when you were -- when Mr. Crampton was asking you
questions a few minutes ago and you were telling him, No, that didnt happen,
you werent really sure when you were giving those answers --

A          No, I wasnt sure.  Defensive answers.

Q         Okay.
Can you think of any other defensive answers youve given today?

A          No.

[29]

Ms. Bs foster father testified by video conference.  He was 84 years of
age at the time of trial.  He denied that the Jeans lived with his family after
they were married.  He said that his daughter and her husband would visit the
home about once a week when they lived in Surrey.  He denied being told by Ms.
B that Mr. Jean had assaulted her and confronting Mr. Jean with such an
allegation.  The foster father testified that he had a serious diabetic problem
which affected his memory, but that he felt fine during his testimony.

The Judges Instructions
to the Jury regarding the $100 incident

[30]

No objection was made by the appellants trial counsel when Ms. B
testified that [Mr. Jean] said that hed give me a hundred dollars because
thats how much he gave my sister to sleep with him.  Trial counsel referred
to this as the $100 incident.

[31]

Shortly after counsel for Mr. Jean began his cross-examination of Ms. B,
the court adjourned for the lunch break.  When the trial resumed after the
break, the trial judge spoke to counsel in the absence of the jury.  The trial
judge said that he was concerned that the statement about the $100 incident
might lead the jury to reason from propensity and advised counsel that he proposed
to warn the jury against that.  Both counsel expressed content with this course
of action.  As a result, the trial judge said this to the jury:

Members of the jury, just one
item before we continue.  Ill refer you to this morning to the evidence where
[Ms. B] indicated she was 12 and she says that the accused offered her a
hundred dollars to sleep with him, and indicated that thats what he had paid
her sister.  That was allegedly said.
I just want to warn you that the
fact, if you accept it, that that happened and that the accused might have done
something inappropriate with Ms. [Bs] sister should not be taken as evidence
that he would more likely do something with Ms. [B].  We call that propensity
evidence and it wouldnt be fair to an accused person if we used evidence like
that in another incident to prove the incident before the court.
Thank
you.  [Emphasis added.]

[32]

After the jury addresses, in which both counsel had made references to
the $100 incident and the judges warning about it, counsel made submissions to
the trial judge as to what he should include in his jury charge.  By this time,
counsel for Mr. Jean was suggesting that the statement about the $100 incident ought
to have been the subject of a
voir dire
to determine its admissibility
because it amounted to similar fact evidence.  Defence counsel agreed that the
judges propensity warning had been appropriate.  That said, defence counsel
ventured the opinion that the evidence probably should have been excluded
because its prejudicial value outweighed its probative value.  Counsel for the
Crown took the position that the statement was an inextricable part of the
indecent assault narrative and admissible on that basis.

[33]

In the end, the trial judge told the jury this:

Now let me say something about what we are calling the
hundred dollar incident, just to clarify my instruction to you on that.

The reference to Mr. Jean offering
a hundred dollars to [Ms. Bs] sister, which was also part of [Ms. Bs]
evidence, should not be used by you to decide that because of that, because he
might have done something with respect to [Ms. Bs] sister, that Mr. Jean
is more likely to have done these things to [Ms. B].  But you can of
course consider this incident, and the fact that Mr. Jean admits it took
place, although he was not totally clear on the purpose of it, in assessing [Ms.
Bs] credibility.  You may view it as a bit of corroboration.  In itself,
simply offering $100 in those circumstances in itself, although it may be
distasteful, is not an indecent assault, but it is a piece of evidence for you
to consider.

The Grounds of Appeal

[34]

The appellants position was that the trial judge erred:

a)

in admitting,
without a
voir dire
, the complainants testimony about the $100 incident;

b)

in failing to
tell the jury that they could not use the statement as proof that the
complainants sister had sex with the appellant;

c)

in failing
to advise the jury that they could make no use of the statement that the
appellant had sex with the complainants sister; and

d)

in incorrectly
charging the jury with respect to corroboration.

[35]

At the hearing of the appeal, counsel for the appellant also took the
position that the evidence of the last assault (the $100 incident) was inadmissible
as it occurred beyond the date set out in the indictment.

Discussion

The Grounds of Appeal Relating to the Charge to the Jury

[36]

The first step in the analysis must be whether the evidence of the $100
incident was admissible at all.

[37]

When defence counsel questioned its admissibility prior to the jury
charge, Crown counsel took the position that the evidence was admissible
because it was part of the
res gestae
, and [spoke] to the intention in
his mind ... the sexual intention.  It seems Ms. Bs comment about her sister
had surprised Crown counsel.  He said to the trial judge: I was concerned and
tried to be so careful after my witness mentioned about the sister business,
and thats why I stayed very carefully away from that.

[38]

It was the sister business that concerned the defence.  Defence
counsel described it as similar fact evidence or evidence of propensity and
expressed doubt that it should have been admitted.

[39]

Crown counsel on this appeal (who was not counsel at trial) accepts that
the statement was not admissible to prove that Mr. Jean offered $100 to Ms. Bs
sister for sex.  Nor was Mr. Jeans interest in Ms. Bs sister, if he was ever
interested, a part of the Crowns theory.

[40]

The Crowns position on appeal is that had the issue been aired at trial,
the statement would inevitably have been admitted in its entirety.  Ms.
Campbell, counsel for the Crown on this appeal, argues, correctly in my view, that
Ms. Bs testimony about what Mr. Jean said to her was an integral part of the
last instance of indecent assault.  It was powerful evidence of Mr. Jeans
indecent intent in touching the complainant and showed the lengths to which he
would go to overcome her resistance.  As Ms. Campbell puts it in her factum:

[Ms. B] testified that the abuse
escalated and continued for years but she remained silent because of the
Appellants threats.  He frequently told her that it was their secret, and that
if she told anyone then her brother and sister would be taken away.  By the time
of the last incident, when [Ms. B] was twelve years old, the family had
separated and she was in a different foster home.  When the Appellant drove her
home that time and tried to touch her legs and pull her towards him, his prior
means of control no longer had any effect because the family had separated.
Rather than allowing the abuse to continue out of fear, [Ms. B] said she told
him to leave her alone and swore at him.  The Appellant tried a different
approach to gain her compliance  he offered her money and, to make it appear
more palatable, he said that her older sister had accepted the same offer
previously.  Accordingly, the statement demonstrated the Appellants intent at
the time of the alleged touching in the vehicle and was an integral part of the
incident.  The statement was triggered by [Ms. Bs] resistance and was a means
to overcome that resistance.

[41]

The Crown suggests other bases for admissibility, but it is unnecessary
to discuss them here.  It is enough to say, for purposes of this appeal, that
the evidence was admissible.  In my view, it was properly admitted at trial.
The probative value was high, and the prejudicial value could be overcome with
a proper warning to the jury.

[42]

The question becomes whether the trial judge erred in his instructions
to the jury as to the use they could make of the statement.  To repeat, the
trial judge told the jury:

[t]he reference to Mr. Jean offering a
hundred dollars to [Ms. Bs] sister, which was also part of [Ms. Bs]
evidence, should not be used by you to decide that because of that, because he
might have done something with respect to [Ms. Bs] sister, that Mr. Jean
is more likely to have done these things to [Ms. B].

[43]

Mr. Kincaid, counsel for Mr. Jean on this appeal, argues on behalf of
the appellant that the trial judge should have warned the jury that they could
not use the statement as proof that the complainants sister had sex with the
appellant, and that they could make no use at all of the statement that the
appellant had sex with the complainants sister.  I agree with Mr. Kincaid that
it would have been better if the trial judge had told the jury that the
complainants recitation of what the appellant said to her was not evidence
that the appellant had, in fact, offered her sister money for sex.  But I also
agree with Ms. Campbell that this failure made no impact on the essential
instruction which was that the jury must not use the statement to infer that,
because Mr. Jean had had sex with the complainants sister, he likely had sex
with the complainant as well.  Whether sex with the sister was proven or not,
it was not probative as to whether he had sex with the complainant.  In my view,
the trial judge correctly conveyed to the jury the essential point: that it could
not use this evidence for propensity reasoning.

[44]

The trial judge also instructed the jury that they could use the fact
that Mr. Jean had admitted to offering the complainant money in assessing
Ms. Bs credibility, as a bit of corroboration.  Again, to repeat, the
trial judge said:

[b]ut you can of course
consider this incident, and the fact that Mr. Jean admits it took place,
although he was not totally clear on the purpose of it, in assessing [Ms. Bs]
credibility.  You may view it as a bit of corroboration.  In itself, simply
offering $100 in those circumstances in itself, although it may be distasteful,
is not an indecent assault, but it is a piece of evidence for you to consider.

[45]

The appellants counsel argues that this instruction fails to clearly
indicate to what part of the statement the trial judge was referring as
evidence the jury could use as corroboration.  I disagree.  It is clear from
the instruction that the trial judge is referring here to Mr. Jeans admission
that he offered the complainant money when he was driving her home.

[46]

Next, counsel for the appellant submits that the trial judge should have
avoided the use of the term corroboration altogether.  However, if he was
going to talk about corroboration, he should have referred to evidence that tended
to corroborate the appellants testimony.

[47]

I agree with counsel for the appellant that the trial judge should have
avoided the use of the word corroboration, which has become a term of art.  I
agree that, without further instruction, the term can be confusing.  However,
in the context of this case, I am of the view that no harm was done by using
that term.

[48]

As counsel for the Crown points out, it was Mr. Jeans trial counsel who
first referred to the concept of corroboration in his address to the jury.  He
began by telling the jury that before the law was changed, cases such as this
required corroboration, whereas now they do not.  He suggested that, in
searching for the truth, the jury might nonetheless look for corroboration when
it came to assessing the complainants evidence.  Crown counsel followed suit,
arguing that if the jury was to look for corroboration, there was much evidence
supporting the complainants version of events.

[49]

It was in this context that the trial judge made the impugned remarks.
I cannot say that he was wrong to do so.

[50]

I am also of the view that no unfairness to the appellant
resulted from the trial judges omission to instruct the jury on the pieces of
evidence that might corroborate Mr. Jeans version of events.  It is hard to
say what they could be.  Mr. Jeans credibility had been so badly damaged during
the course of his testimony that his counsels address to the jury focussed on
the weaknesses of the evidence of the complainant, rather than the strengths of
the appellants testimony.

[51]

I would not accede to the grounds of appeal related to the admissibility
of the $100 incident or the trial judges instructions to the jury with respect
to it.

The Dates on the Indictment

[52]

The indictment alleged a continuing assault from January 1, 1972 to December
31, 1979.  Ms. B testified that the last incident occurred when she was 12
years old.  Her birth date was in May of 1967.  If the incident she spoke of
occurred at Easter when Ms. B was 12, then the incident occurred in 1980,
shortly before the complainants 13
th
birthday.

[53]

Counsel for the defence submitted that, as the incident occurred outside
the dates of the indictment, it should not have been admitted at trial as part
of the continuing assault.  However, the date of the last incident was not raised
as an issue by the defence at trial.  It was first raised in this Court.  Time
was not an essential element of the offence, nor was the appellant prejudiced
by this mistake.  This ground of appeal should be dismissed.  (See
R. v. S.D
.,
2011 SCC 14, [2011] 1 S.C.R. 527.)

Conclusion

[54]

Although every accused is entitled to a fair trial, no trial is perfect.
Examining Mr. Jeans trial as a whole, I conclude that it was fair.

[55]

I would not accede to any of Mr. Jeans grounds of appeal.  In the
result, I would dismiss the appeal.

The Honourable Madam Justice Ryan

I Agree:

The
Honourable Mr. Justice Chiasson

I Agree:

The Honourable Madam Justice
D. Smith