COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Soomel and Mann,

2006
          BCCA 17

Date: 20060113

Docket: CA030938

Between:

Regina

Respondent

And

Ravinder
    Soomel

Appellant

- and -

Docket: CA030956

Between:

Regina

Respondent

And

Gurwinder
    Singh Mann

Appellant

THERE IS A BAN ON PUBLICATION PURSUANT TO SECTION 486(4.1)

OF THE CRIMINAL CODE

Before:

The
          Honourable Madam Justice Southin

The
          Honourable Madam Justice Prowse

The
          Honourable Mr. Justice Thackray

G.D.
          McKinnon, Q.C.

Counsel for the Appellant,

Mann

I.
          Donaldson, Q.C.

Counsel for the Appellant,

Soomel

K.
          Ker, V. Soon

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

December 13 & 14, 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

January 13, 2006

Written
          Reasons by
:

The
          Honourable Madam Justice Prowse

Concurred
          in by:

The
          Honourable Madam Justice Southin

The
          Honourable Mr. Justice Thackray

Reasons for Judgment of the Honourable Madam Justice
    Prowse:

OVERVIEW

[1]

On May 31, 2003, following a 29 day trial, Mr. Mann and Mr. Soomel
    were convicted by a jury of first degree murder with respect to the death
    of Gurpreet Singh Sohi on September 14, 2000.  They are appealing from conviction.

[2]

A third person, U., was originally joined on the indictment with Mr.
    Mann and Mr. Soomel but was severed before trial.  U. was later tried separately
    before a judge alone and was convicted of manslaughter on February 20, 2004.

[3]

The Crown theory at trial was that Mr. Soomel (Soomel), Mr. Mann
    (Mann) and three accomplices, C., G. and U., embarked on a plan to kill
    Mr. Sohi (Sohi) to avenge the non-fatal shooting of Soomels brother approximately
    four days earlier, and in retaliation for Sohis alleged involvement in stealing
    drugs which Soomel and his associates had been attempting to export into Washington
    State.  The Crown alleged that Soomel was the mastermind behind the killing,
    Mann was the shooter, U. was the set-up man, and G. and C. were lookouts.

[4]

C., G. and U. were key Crown witnesses.  C. and G. signed immunity
    agreements with the Crown before testifying.  Their evidence, and that of
    U., was subjected to rigorous and lengthy cross-examination by defence counsel
    with a view to demonstrating that it was tainted in numerous ways and so untrustworthy
    as to be entitled to little, if any, weight.

[5]

Mann testified at trial and admitted to having accidentally shot Sohi
    during the course of a robbery, but denied that there was any plan to kill
    him.

[6]

Soomel did not testify or call evidence.  His position at trial was
    that while he was involved in a robbery of Sohi that went wrong, he was not
    involved in any plan to murder Sohi and that, at most, he was guilty of manslaughter.

GROUNDS OF APPEAL

[7]

Counsel for Mann submits that the trial judge erred in:

(1)
    failing to adequately instruct the jury about the dangers of relying upon
    the tainted evidence of U., C. and G.;

(2)
    failing to instruct the jury that if they found the evidence of U., C. and
    G. was tainted by police interrogation techniques and/or by deliberate collusion,
    or innocent contamination, they could
not
look to other evidence to
    corroborate their evidence, and they must give their evidence little, if any,
    weight in their final determination; and in

(3)
    admitting Manns statements to the police by failing to find that Manns right
    under s. 10(b) of the
Canadian Charter of Rights and Freedoms
(the Charter) was infringed when the police denied him the right to have
    his lawyer present during their interrogation of him on October 13, 2000.

[8]

With respect to the third ground of appeal, counsel for Mann acknowledges
    that the decision of this Court in
R. v. Ekman
(2000), 146 C.C.C.
    (3d) 346 rejecting a similar argument in analogous circumstances is applicable
    and binding on this panel.  He asks for a ruling on the issue, however, for
    the purpose of pursuing an appeal in the event his other arguments are unsuccessful.

[9]

Soomel joins in Manns grounds of appeal and submits that the trial
    judge also erred in:

(4) failing to sever Soomels case from that of Mann once Manns statements
    were admitted into evidence, or, alternatively, failing to adequately caution
    the jury as to the use which could be made of Manns statements.

DISCUSSION OF ISSUES

[10]

The first two issues are inter-related and I will discuss them together.

(1) and (2)
The Charge With Respect to Tainted Evidence

(i)
Submissions of Counsel

[11]

Counsel for the appellants (who were not counsel at trial) submit that
    the trial judge failed to adequately warn the jury about the dangers of relying
    on the tainted evidence of C., G. and U..  Counsel submit that this warning
    should have been in addition to, and separate from, the
Vetrovec
warning given by the trial judge (
R v. Vetrovec
, [1982] 1 S.C.R.
    811), and should have included specific reference to tainting by police interrogation
    techniques, deliberate collusion, and innocent contamination.  (In this case,
    counsel for the appellants describe innocent contamination as a process
    by which the exposure of one witness to the evidence of other witnesses, through
    interrogation, suggestion or otherwise, may cause that witness to subconsciously
    (as opposed to deliberately) modify his/her evidence to accord with the evidence
    of the other witnesses.)  Counsel also submit that the jury should have been
    instructed that if they found the evidence of these witnesses was so tainted,
    they could not look to other evidence to corroborate that evidence, and they
    should give that evidence little, if any, weight.

[12]

Counsel for Soomel also made what he referred to as a complementary
    (and what I would term an alternative) submission.  He argued that, if the
    jury was entitled to look to corroborative evidence with respect to the evidence
    of these three witnesses despite its inherent unreliability, they should have
    been instructed to look for evidence corroborating the element of planning
    and deliberation and not simply for evidence corroborating the witnesses
    evidence in general.

[13]

Counsel for the appellants acknowledge that counsel for Mann and Soomel
    at trial did not raise these objections to the charge.  They also acknowledge
    that there is no direct authority in support of their submission.  Rather,
    they ask this Court to adopt, by analogy, the analysis with respect to the
    admissibility of similar fact evidence tainted by collusion in such cases
    as
R. v. Shearing
, [2002] 3 S.C.R. 33, 2002 SCC 58; and
R
    v. Handy
, [2002] 2 S.C.R. 908; 2002 SCC 56.  Alternatively they ask
    this Court to find that the little, if any weight caution adopted with respect
    to other potentially unreliable evidence in
R. v. Hodgson
, [1998]
    2 S.C.R. 449 (at para. 30) was required in this case.

[14]

Counsel for the Crown submits that the trial judges charge to the
    jury properly and adequately alerted the jury to the dangers of relying on
    the evidence of the three accomplices.  She emphasizes that defence counsel
    took no exception to the charge either in the pre-charge conference, or following
    the charge, and that they were in a better position than either counsel on
    appeal, or this Court, to determine whether the charge was deficient. The
    Crown submits that the jury could not have been in any doubt as to the care
    with which they should approach the evidence of the three accomplices since
    the problems with their evidence were emphasized from the moment counsel for
    Mr. Mann opened to the jury on the first day of trial (following the opening
    of the Crown), through their examination and cross-examination, the addresses
    of counsel and, finally, the charge.

[15]

Counsel for the Crown submits that the law does not, and should not,
    require the additional instruction sought by Mann and Soomel; that the trial
    judge has a discretion as to the nature and extent of the warning required,
    which attracts a deferential standard of review; and that the authorities
    relied upon by the appellants relating to the effect of collusion on the admissibility
    of evidence are not applicable in these circumstances.  Crown counsel also
    submits that Soomels alternative submission concerning the alleged deficiencies
    of the charge on corroboration is inconsistent with the law on corroboration
    referred to in numerous authorities, including
Vetrovec,

supra,
and
R v. Kehler
, [2004] 1 S.C.R. 328, 2004 SCC 11.

(ii)
The Standard of Review

[16]

The standard of review to be applied to the decision of a trial judge
    whether to give a
Vetrovec
warning, and the nature and extent
    of that warning, is referred to in the following passage at para. 32 of the
    reasons for judgment of Mr. Justice MacPherson, speaking for the majority
    in
R. v. Harriott
(2002), 161 C.C.C. (3d) 481 (Ont. C.A.),
    whose reasons were adopted by the majority of the Supreme Court of Canada
    in dismissing the appeal at [2003] 1 S.C.R. 39, 2003 SCC 5:

The decision of a trial judge to give a Vetrovec warning
    is discretionary.  There is also a good deal of discretion with respect to
    the form the warning should take.  The discretion as to whether, and how,
    to give a warning is reviewable, but an appellate court must show deference
    to the trial judge and not lightly interfere with his or her decision:  see
Vetrovec
at 17-18;
R. v. Bevan
(1993), 82 C.C.C. (3d) 310 (S.C.C.)
    at 325-27; and
R. v. Brooks
(2000), 30 C.R. (5
th
) 201 at
    220 and 227, 141 C.C.C. (3d) 321 (S.C.C.).

(iii)
The Charge

[17]

The charge to the jury was lengthy.  I will begin with the portion
    of the charge containing the
Vetrovec
warning.  Since it is
    said to be wanting, I will set it out in full:

Now, let me give you a special warning about the testimony of C., G.,
    and U..
Youll recall
    that I told you earlier about the credibility of witnesses. You should consider
    the things I told you when you decide whether you believe C., G., and U.s
    evidence.

In addition, however, I warn you that you should be extremely cautious
    in accepting their testimony.  It is unsafe for you to rely on their evidence
    alone.
Thats because
    they are alleged to be accomplices in the Sohi homicide, thats because they
    were involved in the illegal drug trade.
As well, in this case, C. and
    G. have agreed to testify on a grant of immunity from prosecution, and, as
    well, after the event, and, in breach of U.s bail condition, they had numerous
    telephone conversations in which they discussed their evidence and the manner
    in which they would testify in this courtroom, leaving open the possibility,
    its up to you to determine, that they colluded together to tell a consistent
    story in court in an effort to have Soomel and Mann convicted of first degree
    murder.

You
    should examine all of the other evidence in this case and look for evidence
    that supports or confirms the testimony of C., G., and U..  What you should
    look for is evidence that agrees with the important parts of their evidence
    and makes you more confident that their testimony is true.

Now,
    here are some examples of independent evidence coming from other sources that
    is capable of supporting or confirming the evidence of these men.  Its for
    you to decide whether or not that evidence, and evidence of a similar nature
    does, in fact, support or confirm their evidence.
In the absence of any
    confirming evidence, you should be reluctant to accept the evidence of these
    men, especially to the extent that they suggest that the murder was planned
    and deliberate.

Now,
    here are a few examples.  The evidence of the experts Funk and Basant (phonetic),
    look at that evidence to see if the cell phone locations that were identified
    on the map  and youll have the map in the room with you  to see whether
    those locations track the evidence of U., G., and C. as to when various telephone
    calls were made from U.s cell phone.  And tab 8 deals with U.s cell phone,
    and there are calls you can note at 7:47 to Sohis cell phone, 8:24, 9:34,
    and 10:12, all to Sohis cell phone, and you can look at the locations of
    those calls, and, as well, note the call from the pay phone near the Bargain
    Castle.

Now,
    theres objective evidence, as well, that some or all of the conspirators
    were at Bear Creek Park, that is the fact that the bullets were found there
    in the location G. indicated to the police, and the evidence of Mann which
    confirms aspects of the evidence of C., G., and U. as to events at Bear Creek
    Park.

The
    gun pieces, the mask, and the gloves were found on Highway 91 where C. told
    police they would be, and the evidence of Mann confirms C.s evidence in this
    regard.

The
    evidence of B., you can look at it, as to the movement of persons in and around
    Sohis suite, and compare that with the evidence of the three individuals.

You
    can look to the evidence of the firearms expert, Prendergast as to the firearm
    and the pattern of cartridge ejection.  Thats Exhibit 17.  The location of
    the bullets in the lower part of the trophy case, and the evidence of Sergeant
    Mellis, the blood spatter expert.  This evidence is relevant to the dynamics
    of the actual shooting, and is relevant to your consideration of Manns evidence
    that he panicked when Sohi started to move back and forth and appeared to
    lunge or start to lunge forward out of the couch.

And
    just on that point, perhaps Ill note Prendergasts evidence just on that
    ejection pattern point, and I think its Exhibit 17.  He described the ejection
    pattern for spent cartridges after firing.  He indicated that, if the gun
    was pointing at twelve oclock on an imaginary clock, the casings would eject
    at between 3:30 and four oclock that is to the right and rear of the direction
    of firing.

He
    was asked if, assuming that the cartridges were located as shown on Exhibit
    17, and that they were ejected from the gun, where the approximate location
    of the firearm at the time of firing was, and he indicated that it would be
    between the coffee table and the large sofa approximately.

Look
    at the evidence of the police officers who followed the Soomel vehicle after
    the shooting, to the extent that it confirms the evidence of C., G., and U.
    as to who was in which car, or at least how many people were in which car,
    and the directions they went.

Now,
    look at the evidence concerning the renting by Mr. Soomel of the green Honda
    Civic, and, of course, look at the evidence of the fact that Raj Soomel was,
    indeed, shot.

Now, of course, youve heard the evidence of C., G., and U., themselves.
    These witnesses are looked upon as accomplices, or at least alleged accomplices.
    In the circumstances of this case, the evidence of one accomplice cannot confirm
    or support the evidence of another, so dont consider the evidence of these
    three individuals in looking for confirmation or corroboration of their evidence.

The
    evidence of Mr. Mann, however, can be looked to for confirmation of aspects
    of the evidence of G., C., and U., but the statements of Mr. Mann to the police,
    to the extent that they were not adopted by him in testimony in this courtroom,
    cannot be looked to as confirmatory evidence of Mr. C., Mr. G., and Mr. U.
    in respect of Mr. Soomel.

Now,
    Ive not pointed out all of the evidence that might be capable of supporting
    the testimony of C., G., and U., and of showing it to be true.  Use the examples
    Ive given you as a guide for identifying other evidence that might confirm
    their evidence.

In the end, ask yourself whether enough of the important parts of their
    testimony have been confirmed to persuade you that their stories are true.
    Ask yourself whether this evidence has convinced you that the story of each
    of C., G., and U. confirms that this was a planned and deliberate murder.
    Ask yourself if thats true, and that it is safe for you to rely on it.

I
    must tell you that you arent legally required to find such support before
    you can rely on these witnesses testimony.  You may rely on that testimony
    without finding support, if you are convinced beyond a reasonable doubt that
    it is true.  However,
it is dangerous for you to accept the evidence of
    C., G., and U. unless you find some support for it.

Finally,
    in the case of C. and G., the Crown has filed letters of immunity.  These
    letters contain a declaration that C. and G. will undertake to tell the truth
    at trial.  I should tell you that this promise to tell the truth by C. and
    G. in the letters of immunity must not be used by you to bolster their credibility.

[Emphasis added.]

[18]

The trial judge also instructed the jury that it was up to them whether
    to accept some, none or all of a witnesss evidence; he gave them general
    instructions on how to assess the credibility of witnesses; he warned them
    that a deliberate lie under oath was serious and may well taint the entire
    testimony of a witness; and he provided directions on the use of inconsistent
    statements made by a witness under oath, with a warning that such a statement
    may make it dangerous to accept the evidence of the witness.

[19]

The trial judge carefully reviewed the evidence of these witnesses.
    Prior to giving the
Vetrovec
warning, he made a point of reviewing
    12-14 alleged prior inconsistent statements in C.s evidence, eight alleged
    prior inconsistent statements in G.s evidence, and five lies/prior inconsistent
    statements arising from U.s evidence.

[20]

The trial judge did not specifically warn the jury about the possibility
    of innocent contamination of the evidence of C., G. and U..  Nor did he warn
    the jury that they should consider whether the evidence of these witnesses
    could have been tainted as a result of police interrogation techniques.  In
    that regard, the police showed these witnesses videotapes of extracts from
    the evidence of other witnesses and arguably made it clear to them that the
    police would only be satisfied with a statement which was consistent with
    a planned and deliberate murder implicating Mann and Soomel.  The only reference
    to that subject in the charge is brief, and is contained in the trial judges
    summary of Manns theory that the police introduced the theory of a planned
    and deliberate murder and that the witnesses modified their stories accordingly
    with a view to obtaining a deal from the Crown.

(iv)
The Evidence

[21]

In order to place the appellants submissions in context, it is useful
    to review portions of the evidence (with some editorial comment) in greater
    detail.

[22]

I begin by noting that the central issue at trial was whether the Crown
    had established beyond a reasonable doubt that Mann and Soomel had the intent
    for first degree murder; that is, whether the Crown had proved that the killing
    of Sohi was planned and deliberate.  The defence of Mann and Soomel was essentially
    the same; that the killing occurred in the course of a robbery gone wrong.

[23]

It was not disputed that Mann, Soomel, C., G. and U. had planned to
    visit Sohi the night of the killing.  The question was whether they had gone
    there to rob him (according to Mann and Soomel) or to kill him (according
    to the Crown).  (I do not propose to deal with a side issue raised by Manns
    evidence as to whether there may also have been a plan to kidnap Sohi since
    no counsel pursued this scenario at trial and it was only left to the jury
    by the trial judge out of an abundance of caution.)

[24]

It was also undisputed that four days prior to Sohis killing, Soomels
    brother was injured in a shooting at the Soomel home.  Further, there was
    evidence that Sohi was involved with others in the theft of a large amount
    of marijuana which Soomel and his associates were attempting to export to
    Washington State.  As earlier stated, these events were alleged by the Crown
    to be the motive for Sohis murder.

[25]

I turn, then, to a brief review of some of the other evidence which
    was significant in this case.

[26]

At approximately 10:30 p.m. on September 14, 2000, Mr. Sohis landlord
    heard sounds like a loud firecracker coming from Mr. Sohis suite.  He called
    911 and the police arrived about five minutes later.  They found Mr. Sohi
    slumped on his sofa with his feet under the undisturbed coffee table in front
    of him, a telephone resting against his left arm, and a Sten machine gun with
    silencer in semi-automatic mode (the murder weapon) lying across his body.
    The body had 16 gunshot entrance wounds, 8 of which were in his chest area.
    The expert evidence relating to blood spatter analysis indicated that Sohi
    was seated on the sofa when he was shot.  The ballistics evidence was consistent
    with the shooter being in control of the gun at the time of firing, as indicated
    by the location of the wounds and the absence of a stitch pattern caused by
    muzzle jump (recoil).  The Crown relied on this evidence, in itself, as
    establishing that this was an execution, not an accidental panic-shooting.

[27]

A young friend of Sohi, B., testified that he was out with Sohi just
    prior to the killing.  While they were together, Sohi received two calls on
    his cell phone, after which they returned to Sohis residence.  A third call
    came in at about 9:30 or 9:45 p.m. while they were standing in Sohis driveway.
    Shortly thereafter, U. arrived and he and Sohi were alone together in Sohis
    residence for about 15 minutes.  B., who was then sitting in Sohis car, noticed
    another car parked behind him with an East Indian male in it (later determined
    to be G.) who appeared to be talking on a phone.  B. saw U. walk past Sohis
    car and get into the car with G..  B. then saw somebody crouched in the bushes
    near the property line.  This person ran toward another car parked down the
    street and both cars took off.  B. went back into Sohis residence and found
    Sohis body.

[28]

C., who described himself as Soomels best friend, testified about
    conversations he had with Soomel concerning the identity of those who had
    shot Soomels brother and what should be done about it.  He stated that he
    and Soomel ran into Sohi on September 14
th
after which Soomel
    was convinced that Sohi was involved in the shooting.  They then went to Queen
    Elizabeth Park to discuss getting a gun and U. joined them.  At that time,
    they discussed a plan to kill Sohi that night.

[29]

C. testified that later that evening, he, U. and G. went to Bear Creek
    Park where they found Soomel and Mann trying to load bullets into a gun clip.
    Soomel stated that U. would be the set-up guy, Mann would go in as shooter
    and the others would stand by.

[30]

C. testified that, after they arrived at Sohis residence, Soomel received
    a radio communication from G. and Mann went into Sohis home.  When Mann came
    out he said that he had done it and had put the gun in Sohis lap.  The group
    then left the area in two cars and Mann threw the bag with the gun clips,
    mask and gloves onto the side of the highway near a Sikh temple.

[31]

In cross-examination, C. admitted to being involved in the transport
    of drugs to Washington State, lying in his sworn statements of October 2,
    2000, and attempting to defraud ICBC.

[32]

G. also testified about the meetings in Queen Elizabeth Park and Bear
    Creek Park in which Soomel made it clear that this is going down tonight
    and assigned roles to each of the participants in the plan.  G.s evidence
    was similar in material respects to that of C..  G. stated that he knew the
    plan was not going to be just a rip-off of Sohis home and that he went to
    Sohis with the others knowing there was going to be a murder.

[33]

G. acknowledged in cross-examination that he had lied under oath numerous
    times when giving statements to the police; that he had lied under oath to
    protect himself and U. at the preliminary inquiry; and that he had also participated
    in the transport of drugs into Washington State.

[34]

U., too, testified about the meetings at Queen Elizabeth Park and Bear
    Creek Park.   His evidence was clear that Soomels plan was to kill Sohi,
    with Mann to be the shooter.  In cross-examination, however, U. testified
    that he warned Sohi about the plan and that he also attempted to call it off
    at the last minute.  He stated that when he left Sohis residence, Sohi was
    on the telephone and that, as he neared the end of Sohis driveway, he heard
    the sound of rapid gunfire and breaking glass.

[35]

U. was arrested the day after the murder and gave a number of statements
    to the police.  He was released on bail with no contact provisions.  He admitted
    that he telephoned C. and G. on 172 occasions contrary to the no contact order.
    He taped all of those calls.  He also admitted his involvement in the transport
    of drugs into Washington State; acknowledged lying to the police with respect
    to several matters and, in one of his taped conversations with G., stated
    that he hoped that if Soomel and Mann were convicted of first degree murder,
    the Crown would not bother wasting $1 million to prosecute him.

[36]

Mann testified that he had met Soomel on 4 or 5 occasions prior to
    the shooting, but that he did not meet C. or G. until the evening of September
    14 in Bear Creek Park.  He testified that he agreed to help the group get
    their drugs back from Sohi because Soomel told him they were short one person
    for their plan.  When he asked Soomel why they needed the gun, Soomel said
    that if Sohi was at home, they may have to hold him up.  Mann said that the
    plan was only to retrieve goods from Sohis home, that U. was to determine
    whether Sohi was at home, G. was to be the lookout and C. was to ransack the
    place.  Mann agreed to carry the gun and obtained a ski mask to cover his
    face.  After they got to Sohis home, G. radioed that U. had come out of the
    house and Mann said U. told him to go in and that the others would be behind
    him.  Mann said that when he went in he pointed the gun at Sohi and told him
    not to move, that Sohi made a motion as if to lunge at Mann, and that Mann
    panicked and pulled the trigger.  He said when the gun stopped firing he threw
    it down and ran out of the house.  He said he was unfamiliar with the gun
    and how it worked.  He said that he had not intended to kill Sohi and that
    there was no discussion of doing so  that it was only meant to be a holdup.
    On the drive back to Vancouver, Mann stated that they stopped beside the highway
    and Mann threw away a bag containing the clips and mask.

[37]

Mann gave a statement to the police when he was arrested on October
    13, 2000.  He began by stating that Soomel had planned the entire incident
    because Soomel believed that Sohi had shot his brother.  He initially stated
    that Soomel was the shooter.  Later in that statement, Mann admitted that
    he was the shooter and that Soomel masterminded the plan which was to kill
    Sohi and get their stuff back.  Mann testified at trial that this statement,
    and others he made to persons in authority, were false in material respects.

(v)
The Police Interrogation Techniques

[38]

It is common ground that at the time C., G. and U. were suspects
    in Sohis murder, the police attempted to elicit statements from them by showing
    them video extracts from the police interviews with B. and the other suspects.
    The interviewing officer said that this was done to convince the suspect that
    he was caught and to avoid mischaracterizing the statement of one witness
    when putting it to another witness.  He agreed with defence counsel that there
    was a progression in the statements of each of the accomplices starting with
    a general denial, to a robbery scenario, to the admission of involvement in
    a planned and deliberate murder orchestrated by Soomel and carried out by
    Mann.

[39]

At trial, counsel for Mann put in issue the legal propriety of the
    police interrogation methods with a view to establishing that Manns statements
    were involuntary and obtained in breach of the Charter.  Following a
voir
    dire
, the trial judge admitted Manns statements and rejected the suggestion
    that the police techniques utilized were either improper or illegal.  That
    finding is not challenged on appeal.  Rather, counsel for Mann and Soomel
    say that the police techniques gave rise to a real risk that the witnesses
    either deliberately, or as a result of innocent contamination, adapted their
    evidence to fit that of the other witnesses.  Counsel also submit that it
    was apparent from the nature of the police interrogation that the police were
    not prepared to settle for anything less than a version of events which supported
    a verdict of first degree murder against Mann and Soomel.  Counsel say that
    it was incumbent on the trial judge in these circumstances to warn the jury
    of the potential for contamination of the evidence (innocent, or otherwise)
    arising from the police interrogation techniques, and that he erred in failing
    to do so.

[40]

This objection to the charge was not raised by defence counsel at trial.
     Nor did counsel seek to have the entire interviews of the accomplices (the
    tapes and transcripts) placed before the jury so that they could assess the
    extent to which there was any real risk that the evidence given by the accomplices
    at trial was tainted (contaminated) by the police interview techniques.  Arguably,
    this was to the benefit of the defence, who were able to selectively tailor
    their cross-examination of the accomplices without having the full interviews
    (which, on the whole, were damning to their clients) placed before the jury.

[41]

Further, it is difficult to accept that innocent contamination of the
    evidence of the accomplices, through police interrogation techniques, or otherwise,
    was a significant factor in this case.  Rather, the case for the defence was
    that the accomplices had deliberately colluded together to fabricate a story
    which would implicate Mann and Soomel in the planned and deliberate murder
    of Sohi in order to obtain leniency.

[42]

Given the manner in which the trial unfolded, and the nature and extent
    of the warning to the jury with respect to the evidence of the accomplices,
    I am not persuaded that the absence of a reference in the charge to potential
    contamination of the evidence of these witnesses as a result of police interrogation
    techniques amounted to reversible error.  Since this is only one aspect of
    the appellants submission as to the contamination of the accomplices evidence,
    however, I will address the issue of collusion before expressing a conclusion
    as to the adequacy of the trial judges overall warning with respect to their
    evidence.

(vi)
Collusion/Corroboration

[43]

Counsel for the appellants submit that the trial judge erred in failing
    to adequately deal with the potential for, and significance of, collusion
    between the accomplices arising from the regular contact between them prior
    to trial despite the fact that Mr. U. was subject to a no contact bail order.
    Counsel submit that the 172 tape-recorded telephone conversations between
    U., C. and G. were clear evidence of collusion and also a potential source
    of innocent contamination of their evidence.  Counsel also referred to U.s
    evidence that he had studied the statements of the other two accomplices,
    and the transcripts of their evidence at the preliminary hearing, and had
    sent notes to them concerning their evidence on several occasions.  Further,
    the three accomplices acknowledged that they had agreed not to let anyone
    know that they had been in contact.

[44]

Counsel for the appellants submit that the trial judge should have
    given a separate warning to the jury with respect to this evidence, in addition
    to the
Vetrovec
warning.  In essence, counsel submit that the
    jury should have been given an instruction to approach the evidence of the
    accomplices by a two-stage analysis.  At the first stage, the jury would determine
    whether there was a real risk that the evidence of the accomplices was tainted,
    either deliberately or innocently, by collusion and/or the effect of the police
    interrogation techniques.  If the jury concluded that there was a real risk
    of contamination, they should have been told that they could not look to other
    evidence to confirm the accomplices evidence and that they must give their
    evidence little, if any, weight.  If the jury was not persuaded that there
    was a real risk of contamination of their evidence, they could go on to the
    second stage, to determine if there was other evidence to support, or confirm,
    the evidence of the accomplices.

[45]

In support of this submission, counsel for the appellants suggest that
    just as a real risk of collusion will render similar fact evidence inadmissible
    (see
Shearing,
supra
,
at paras. 40-41 and
Handy,
supra
,
at paras. 99 and 104-113), so, too, a real risk
    that presumptively admissible evidence has been tainted by collusion should
    render it entitled to little, if any, weight and the jury instructed accordingly.

[46]

Counsel for the appellants also draw an analogy between the evidence
    tainted by oppression in the
Hodgson
decision,
supra
,
    which called for an instruction to the jury that the evidence should be given
    little, if any, weight, and the tainted evidence of C., G. and U. which,
    counsel submit, required a similar instruction.

[47]

In response to these submissions, counsel for the Crown again emphasizes
    that no objection was taken by counsel to the charge to the jury in this regard.
    Counsel for the Crown also submits that the full transcripts of the telephone
    calls (which were not in evidence) would not support such a conclusion.  The
    Crown also observes that the appellants were able to take full advantage of
    selective extracts from the telephone conversations between the accomplices
    to attempt to persuade the jury that their evidence was tainted and unreliable,
    without having to deal with those aspects of the transcripts which tended
    to bolster the accomplices evidence.

[48]

Crown counsel further submits that similar fact cases such as
Handy
and
Shearing
, are of little assistance in analyzing this issue
    since they dealt with presumptively inadmissible evidence, whereas the evidence
    in this case was presumptively admissible.  The Crown also observes that the
    entire foundation for admitting similar fact evidence falls away where there
    is evidence of collusion between witnesses since evidence of collusion directly
    contradicts the improbability of coincidence on which similar fact evidence
    depends for its probative value.

[49]

Similarly, the Crown submits that
Hodgson
and similar
    decisions are of no assistance in a case such as this where the obvious need
    for caution in approaching the evidence of witnesses whose evidence is suspect
    is covered by the
Vetrovec
warning, modified as necessary to
    meet the facts of the case.  The Crown urges this Court not to require yet
    another warning to add to the burden of trial judges and juries who must already
    grapple with lengthy and complex charges.

[50]

In summary, the Crown submits that the entire purpose of a
Vetrovec
warning is to warn the jury about potential sources of unreliability in the
    evidence of witnesses (including collusion), and to assist them in dealing
    with that evidence.  The Crown submits that the trial judges charge fulfilled
    those functions.

[51]

I agree with the Crown that the
Vetrovec
warning was
    sufficient in this case to alert the jury to the dangers presented by the
    accomplices evidence and the care which should be taken in considering their
    evidence.  In fact, the warning (set forth in full at para. 17,
supra
)
    contained a specific reference to the danger of the accomplices evidence
    being tainted by collusion, as follows:

In addition, however, I warn you that you should be extremely
    cautious in accepting their testimony.  It is unsafe for you to rely on their
    evidence alone. Thats because they are alleged to be accomplices in the Sohi
    homicide, thats because they were involved in the illegal drug trade.  As
    well, in this case, C. and G. have agreed to testify on a grant of immunity
    from prosecution, and, as well, after the event, and, in breach of U.s bail
    condition, they had numerous telephone conversations in which they discussed
    their evidence and the manner in which they would testify in this courtroom,
    leaving open the possibility, its up to you to determine, that they colluded
    together to tell a consistent story in court in an effort to have Soomel and
    Mann convicted of first degree murder.

[52]

Thus, the trial judge specifically linked the concept of collusion
    to the key issue in the case, that is, the element of planning and deliberation
    necessary to found a conviction against Mann and Soomel for first degree murder.

[53]

To assist the jury in assessing the weight, if any, they should attribute
    to the evidence of the accomplices, the trial judge invited the jury to look
    to other evidence to determine whether they could find support or confirmation
    of the evidence of each accomplice.  The trial judge assisted them in this
    regard by referring to examples of evidence which were capable of corroborating
    the accomplices evidence.  Counsel agreed that, in light of the 172 telephone
    calls between the accomplices, the trial judge should also instruct the jury
    that, in this case, they could not rely on the evidence of one accomplice
    to corroborate that of another.  This aspect of the charge was extremely favourable
    to the defence and was clearly designed to take into account the risk of contamination
    through collusion.

[54]

I am unable to agree with counsel for the appellants that the circumstances
    of this case required a two-stage charge to the jury proposed by counsel for
    the appellants.  Rather, I agree with the Crown that it is only by looking
    at the evidence as a whole, including the independent evidence, that the jury
    would be able to determine the extent to which they could rely on the evidence
    of the accomplices and the weight to give to their evidence.  For example,
    the jury might well decide that there was a real risk of collusion between
    the accomplices, but find sufficient confirmation of their evidence in the
    evidence of other witnesses to conclude, nonetheless, that the substance of
    their evidence was true.

[55]

There is no support in the authorities for a two stage approach in
    circumstances such as these; nor am I persuaded that this Court should make
    new law in that regard.

[56]

I also agree with the Crown that the approach taken to similar fact
    evidence and other presumptively inadmissible evidence in the authorities
    referred to by counsel for the appellants is of little assistance in this
    case which is dealing with evidence which is presumptively admissible.  Nor
    am I persuaded that the trial judge was required, as a matter of law, to instruct
    the jury in accordance with the
Hodgson
decision.  The
Vetrovec
warning has withstood the test of time and is widely utilized to deal with
    the evidence of witnesses whose evidence may be suspect for a variety of reasons.
    Further, it is settled law that the decision whether to give such a warning,
    and the nature and extent of that warning, are matters of discretion for the
    trial judge, to be exercised after taking into account the views of counsel,
    and the individual circumstances of each case.

[57]

Finally, I disagree with Soomels alternative submission that the trial
    judge erred in failing to charge the jury that they must look for confirmatory
    evidence that went specifically to the issue of planning and deliberation,
    and that it was insufficient to direct them to look for evidence confirmatory
    of that of the accomplices in a more general sense.  In my view, this submission
    cannot be sustained in the light of
Vetrovec
and cases following
    it, including the recent decision of the Supreme Court of Canada in
Kehler
,
    supra
.  Further, the trial judge did instruct the jury that: In the absence
    of any confirming evidence, you should be reluctant to accept the evidence
    of these men, especially to the extent that they suggest that the murder was
    planned and deliberate.

[58]

In my view, it would have been obvious to the jury from the entire
    tenor of the trial, including the extensive cross-examination of the three
    accomplices, the addresses of counsel, and the charge to the jury that the
    driving force behind the defence was that the accomplices were unmitigated
    liars of unsavoury character who had concocted a story about a planned and
    deliberate murder to save their own skins at the expense of Mann and Soomel.
    Red flags were raised with respect to this evidence by everyone - the defence,
    the Crown and the trial judge.   In the end, it was for the jury to determine
    the extent to which they could rely on this evidence.

[59]

In examining the adequacy of the trial judges charge with respect
    to this evidence, I agree with the Crown that it is instructive, but not determinative,
    that defence counsel at trial did not seek such an instruction or object to
    the instructions given.  In that respect, I find apposite the remarks of Mr.
    Justice MacPherson in
Harriott
,
supra
, at paras. 40-42:

Trial
    counsel play an important role in suggesting whether, and in what form, a
Vetrovec
warning should be given.  That is because a
Vetrovec
warning can be a two-edged sword, drawing attention not only to the disreputable
    character and/or conduct of the accomplice, but also to evidence that might
    confirm the accomplices testimony.  As Dickson J. observed in
Vetrovec
,
    at p. 7: The accused is in the unhappy position of hearing the judge draw
    particular attention to the evidence which tends to confirm the testimony
    the accomplice has given.  Cogent prejudicial testimony is thus repeated and
    highlighted.

The
    clearer and sharper a trial judges warning about the testimony of an accomplice,
    the more likely it is that it will be accompanied by a full and robust review
    of potential confirming evidence.
Thus, although the ultimate responsibility
    for deciding whether, and in what form, to make a
Vetrovec
warning
    rests with the trial judge (
Brooks
,
supra
, at p. 229), trial
    counsel is in a particularly good position to assess whether, from the perspective
    of an accused, the trial judge has given an inadequate warning.  The absence
    of an objection, especially on such a well-known matter, should be regarded
    as a strong sign that the language employed by the trial judge was appropriate,
    at least from the perspective of the accused.

[Emphasis added.]

[60]

In summary on this point, I am satisfied that the jury would have understood
    the need for extreme caution in approaching the evidence of the accomplices
    and that the trial judges warning in that regard was sufficient in all the
    circumstances.  In coming to that conclusion, I adopt the following words
    of Lamer C.J.C., speaking for the majority, in
R. v. Jacquard
(1997), 113 C.C.C. (3d) 1 at para. 32:

I cannot emphasize enough that the right of an accused to a properly
    instructed jury does not equate with the right to a perfectly instructed jury.
    An accused is entitled to a jury that understands how the evidence relates
    to the legal issues. This demands a functional approach to the instructions
    that were given, not an idealized approach to those instructions that might
    have been given.

[61]

Applying a functional analysis in this case, I am unable to find that
    the trial judges charge to the jury with respect to the evidence of the accomplices
    was inadequate or in error when viewed in light of the charge as a whole,
    and in the greater context of the trial as a whole.  I would, therefore, dismiss
    this ground of appeal.

(3)
Admission of Manns Statements

[62]

Counsel for Mann submits that the trial judge erred in admitting into
    evidence Manns statements to the police.  In particular, he submits that
    the trial judge erred in failing to find that Manns statements to the police
    were obtained in breach of his rights under s. 10(b) of the Charter when the
    police denied him the right to have his lawyer present during their interrogation
    of him on October 13, 2000.  As earlier noted, Mann acknowledges that the
    facts with respect to this issue are sufficiently similar to those before
    this Court in
Ekman
,
supra
, that the same result would
    follow.  The Crown agrees.  For that reason, I do not propose to review the
    background giving rise to this submission.  I would dismiss this ground of
    appeal by application of the
Ekman
decision.

(4)
Effect of the Admission of Manns
    Statements on Soomel

[63]

Counsel for Soomel submits that the trial judge erred in failing to
    act on his own motion to sever Mr. Soomel from the indictment after admitting
    Manns statements into evidence.  In the alternative, counsel for Soomel submits
    that the trial judge failed to give an adequate warning with respect to the
    use the jury could make of Manns statements in relation to Soomel.

(i)
Severance

[64]

In his initial statement to the police, Mann told the police of a plan
    to kill Sohi, but identified Soomel as the shooter.  Later in that interview,
    and in subsequent statements, Mann admitted that he was the shooter and that
    the killing happened in the course of a plan either to steal drugs back from
    Sohi, or to kidnap Sohi and force him to take them to others who had been
    involved in shooting Soomels brother.

[65]

In his evidence at trial, Mann denied that there was any plan to kill
    Sohi and his evidence as a whole did not implicate him, or Soomel, in a planned
    and deliberate killing.

[66]

Counsel for Soomel said that once Manns statements were admitted into
    evidence, there was a significant potential for the first statement, in particular,
    to be used against Soomel such that he could no longer be confident of having
    a fair trial.  While counsel for Soomel acknowledges that persons jointly
    indicted in what is alleged to be a common enterprise will generally be tried
    together, and that the relevant authorities have identified strong policy
    reasons favouring joint trials, he submits that this is one of those relatively
    rare instances in which the trial judge should have granted severance on his
    own motion.

[67]

Counsel for the Crown emphasizes that there was no motion for severance
    and submits that the content of Manns statements did not require the trial
    judge to order severance of his own motion.  Rather, the admission of those
    statements called for a warning to the jury that they could not use Manns
    statements against Soomel, except to the extent that their contents had been
    adopted by Mann in his evidence at trial.  Counsel for the Crown submits that
    the trial judges charge to the jury in this regard was sufficient to offset
    any potential prejudice to Soomel once Manns statements were admitted.

[68]

I have reviewed the authorities referred to by counsel.  In the result,
    I am not persuaded that this is a case in which the requirements of justice
    or a fair trial called upon the trial judge to act of his own motion to sever
    Soomel from the indictment.  While Manns first statement to the police implicated
    Soomel as the shooter, Mann quickly resiled from this position later in this
    statement, in his subsequent statements and in his evidence at trial. There
    was no issue at trial that this was a joint enterprise and that Mann was the
    shooter.  The real issue was whether the murder was planned and deliberate.
    This is evident from the final passages of the closing address of Soomels
    counsel who stated:

Mr. Soomel was involved.  He was outside.  He did assist in putting this together.
    They all did.  They were all trying to get the drugs back and their money,
    so he is responsible.

Hes
    not responsible for murder, second degree or first degree, but he is responsible,
    certainly indirectly, in the death of Mr. Sohi.  When youre responsible in
    this way, for the death of somebody, without an intention that he die  be
    killed, then, its a manslaughter, so at the very most, ladies and gentlemen,
    thats what Mr. Soomel is responsible for in these actions, for manslaughter.
    Thats it.

There is, in my submission, no basis for proof beyond
    a reasonable doubt that he was  intended the death of Mr. Sohi, or worked
    towards that, or planned and deliberated it.  Theres no evidence here of
    a murder.

(ii)
The Warning

[69]

In my view, the more important issue in relation to the effect of Manns
    statements on Soomels right to a fair trial is not whether the trial judge
    should have ordered severance, but whether the warning he gave to the jury
    with respect to those statements made it clear to the jury that they could
    not use those statements against Soomel.  In that regard, the trial judge
    charged the jury as follows (at paras.  18, 20, 35 and 36):

Theres
    a special rule that applies when someone testifies about something that one
    of the persons on trial said outside the courtroom.  You may only use anything
    you find one person charged said outside the courtroom for a limited purpose
    in deciding the case.  Whatever Mr. Soomel or Mr. Mann said to a witness outside
    of the courtroom is only evidence concerning the person who said it, that
    is either Mr. Soomel or Mr. Mann, as the case may be.  Even if the statement
    describes what the other person charged said or did, you must not consider
    it in deciding the case of anyone else on trial.

Unless
    I tell you otherwise, you may consider the testimony of Mr. Mann in this courtroom
    to help you decide the case of both persons who are on trial, that is both
    Mr. Mann and Mr. Soomel, not just the case of Mr. Mann.  But
remember
,
    of course, and I will discuss this in more detail later,
you may use the
    statements made by Mr. Mann to the police authorities only in deciding the
    case against Mr. Mann, except to the extent that Mr. Mann expressly adopted
    those portions of the statements in his testimony in this courtroom.

Now,
    here, of course, there is more than one accused, and our law provides a safeguard
    for the accuseds right to a fair trial when theres more than one accused
    on trial.
That safeguard is that any statements made by Mr. Mann are evidence
    against only him.  Theyre not evidence against Mr. Soomel.
Each accused
    must be treated as if he were tried separately.

As a general rule, each accused is only accountable
    for his own out-of-court statements, and he cannot be found guilty because
    of a statement made to the police by a co-accused,
and thats mostly because the out-of-court
    statements made to the police by Mr. Mann were not made in the presence of
    Mr. Soomel.  He was, therefore, denied the chance to object or comment upon
    what was said or written about him, and I remind you, as well, when Im talking
    about what is evidence in the statements and against whom it is evidence,
    that the questions of the police officers asking  or conducting the interview
    are not evidence against anyone.

[Emphasis added.]

[70]

Counsel for Soomel suggested that these passages were not sufficient
    to bring home to the jury the fact that they could not use Manns statements
    against Soomel.

[71]

The Crown replied that this aspect of the charge was sufficient, but
    that, in any event, the trial judge referred to the limited use which could
    be made of Manns statements in relation to Soomel at various other points
    during the trial and in his charge.  Those further references included:

(a)
    an instruction to the jury that they could only find an accused guilty if,
    after you consider all of the evidence admissible against that accused, you
    are satisfied that the Crown has proved its case beyond a reasonable doubt
    in respect of that person;

(b)
    an instruction that you must consider and decide the case of each person
    on trial separately and individually, and in light of only that evidence admissible
    against that accused.  You do not have to make the same decision for each
    person on trial;

(c)
    an instruction that the statements of Mr. Mann to the police, to the extent
    that they were not adopted by him in testimony in this courtroom, cannot be
    looked to as confirmatory evidence of Mr. C., Mr. G., and Mr. U. in respect
    of Mr. Soomel;

(d)  an instruction to remember that while these men are being tried
    together, their individual guilt must be determined only in respect of the
    evidence led in court which is admissible against them individually.  The
    most important example of this is the fact that Mr. Manns statements to police,
    except to the limited extent that he adopted portions of them in court, is
    evidence only against Mr. Mann, and cannot be used by you in considering the
    guilt of Mr. Soomel;

[72]

At the request of Soomels counsel the trial judge also gave a warning
    to the jury before the officer who interviewed Mann was called to give evidence
    of Manns statements.  That warning included the following passage:

The
    next thing Id like to say about the statements is that Mr. Manns statements,
    those made by Mr. Mann himself, are evidence against Mr. Mann only.  They
    arent evidence against any other person in particular.  Mr. Manns statements
    that youre about to see are not evidence against Mr. Soomel, and Ill talk
    about that more in my final charge to you.

[73]

The trial judge gave a similar warning when another police officer
    gave evidence of Manns statements made during the re-enactment on October
    14
th
.

[74]

In addition to the instructions given to the jury by the trial judge
    with respect to this issue, all counsel, including Crown counsel, warned the
    jury that the evidence of Mann could only be used against Mann and could not
    be used as evidence against Soomel.  Crown counsel submitted that the limitation
    on the use of Manns statements was referred to on 17 occasions during the
    trial.

[75]

I conclude that the jury was properly and adequately instructed by
    the trial judge with respect to the use which could be made of Manns statements
    in relation to Soomel.  I am not persuaded that there was a complexity to
    this case which made it unlikely that the jury would be able to apply this
    instruction to the evidence before them.  In that regard, I note the following
    passage from the judgment of Chief Justice Dickson, speaking for the majority
    on this point in
R. v. Corbett
(1988), 41 C.C.C. (3d) 385 (S.C.C.)
    at pp. 400-401:

In
    my view, it would be quite wrong to make too much of the risk that the jury
might
use the evidence for an improper purpose.  This line of thinking
    could seriously undermine the entire jury system.  The very strength of the
    jury is that the ultimate issue of guilt or innocence is determined by a group
    of ordinary citizens who are not legal specialists and who bring to the legal
    process a healthy measure of common sense.  The jury is, of course, bound
    to follow the law as it is explained by the trial judge.  Jury directions
    are often long and difficult, but the experience of trial judges is that juries
    do perform their duty according to the law.  We should regard with grave suspicion
    arguments which assert that depriving the jury of all relevant information
    is preferable to giving them everything, with a careful explanation as to
    any limitations on the use to which they may put that information.  So long
    as the jury is given a clear instruction as to how it may and how it may not
    use evidence of prior convictions put to an accused on cross-examination [in
    this case, statements of a co-accused], it can be argued that the risk of
    improper use is outweighed by the much more serious risk of error should the
    jury be forced to decide the issue in the dark.

It is of course, entirely possible to construct an argument
    disputing the theory of trial by jury.  Juries are capable of egregious mistakes
    and they may at times seem to be ill-adapted to the exigencies of an increasingly
    complicated and refined criminal law.  But until the paradigm is altered by
    Parliament, the court should not be heard to call into question the capacity
    of juries to do the job assigned to them.  The ramifications of any such statement
    could be enormous.  Moreover, the fundamental
right
to a jury trial
    has recently been underscored by s. 11(f) of the Charter.  If that right is
    so important, it is logically incoherent to hold that juries are incapable
    of following the explicit instructions of a judge.

[76]

In the result, I am satisfied that this was a proper case for a joint
    trial; that there was not a persuasive basis for severing Soomel from the
    indictment; that the trial judges charge to the jury on the use of Manns
    statements in relation to Soomel were clear and complete; and that it would
    be inappropriate to assume that the jury had not followed those instructions
    in their deliberations.  I would, therefore, dismiss this ground of appeal.

CONCLUSION

[77]

I would dismiss the appeals.

The Honourable
Madam Justice Prowse

I Agree:

The Honourable Madam
Justice Southin

I Agree:

The Honourable
Mr. Justice Thackray


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.(R.)
          v. British Columbia (Director of Child, Family & Community Services),

2006
          BCCA 19

Date: 20060113

Docket: CA032796

Between:

R.(R.)

Appellant

And

British
    Columbia (Director of Child, Family & Community Services)

Respondent

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Levine

Appearing
          on her own behalf

Appellant

D.
          Hart

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

27 September 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

27 September 2005

Written
          Submissions Received:

21 and 30 November 2005

Date
          of Supplementary Judgment

13 January 2006

Supplementary
          Written Reasons by
:

The
          Honourable Madam Justice Rowles

Concurred
          in by:

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Levine

Supplementary Reasons of the Honourable Madam Justice
    Rowles:

[1]

These supplementary reasons concern the entitlement to costs of the
    Public Guardian and Trustee of British Columbia (PGT) against an unsuccessful
    applicant on a review application brought under s. 9(6) of the
Court
    of Appeal Act
where the PGT was not a party to the proceedings in
    the lower court or this Court.

[2]

By way of background, the Director of Child, Family and Community Services
    under the
Child, Family and Community Service Act
, R.S.B.C.
    1996 c. 46 (
CFCSA
), had the child who is the subject of the
    proceedings removed from the mothers care on 5 March 2004, after a murder
    charge had been laid against the mother in respect of her husbands death.
    An interim custody order in favour of the Director was made on 15 April 2004
    pursuant to s. 35 of the
CFCSA
.

[3]

The Director applied for a twelve-month temporary custody order and
    for an order appointing the PGT as guardian of the childs estate under s.
    58 of the
CFCSA
.  Section 58 of the
CFCSA
provides:

58
(1) When a temporary custody order is made
    or at any time during the term of that order, a director may apply to the
    court for an order appointing the Public Guardian and Trustee as guardian
    of the child's estate.

(2) At
    least 10 days before the date set for hearing the application, notice of the
    time, date and place of the hearing must be served on

(a) the
    Public Guardian and Trustee,

(b) the
    child, if 12 years of age or over, and

(c) the persons who under section 39 are entitled to notice.

(3) The
    court may appoint the Public Guardian and Trustee as guardian of the child's
    estate for all or part of the term of the temporary custody order if

(a) a
    financial or legal interest of the child must be dealt with during the term
    of the temporary custody order, and

(b) the interests of a parent conflict or may conflict with the child's
    interests.

(4) The
    director must provide the Public Guardian and Trustee with a copy of any order
    made under this section.

[4]

The hearing of the Directors applications had originally been set
    for 18 January 2005 but had been adjourned when the Director was given to
    understand from the mothers then counsel that she was going to consent to
    the orders being made after a pending matter concerning the administration
    of her late husbands estate had been determined by the Court of Appeal.

[5]

The mother later indicated that she was not going to consent to either
    order and the hearing was ultimately re-scheduled for 18 March 2005.  On that
    date, the mother sought an adjournment but Judge Chaperon refused to grant
    one.  The mother immediately attempted to bring an appeal in the Supreme Court
    of British Columbia from Judge Chaperons refusal to grant an adjournment
    but Mr. Justice Wilson refused to abridge the time for her to bring such an
    appeal.

[6]

On 24 March 2005, the mother filed in this Court a Notice of Application
    for Leave to Appeal from the order of Wilson J. and had it served on the Director
    and the PGT.  However, the mother did not bring an application to stay the
CFCSA
proceedings in the Provincial Court pending the determination
    of the leave application and she did not bring on her leave application in
    a timely way.

[7]

On 18 March 2005, the Directors applications came on for hearing before
    Judge Neal.  The hearing continued on April 5, 7, 12-14, and 21 and submissions
    were made on 26 May 2005.  Other than on the first day, the applicant was
    represented by counsel throughout the proceedings.

[8]

The PGT appeared on three of the hearing days including the day on
    which closing submissions were given.  The PGTs participation was limited
    to supporting the Directors application to have the PGT appointed as the
    guardian of the childs estate.  The childs father died intestate and his
    only beneficiaries are his widow (the mother of the child) and the child.
    The estate consists of interests in real property, including revenue properties,
    and may have a value of between $800,000 and $1,000,000.

[9]

On 26 May 2005 Judge Neal granted the Director a twelve-month temporary
    custody order and made an order appointing the PGT as the guardian of the
    estate of the child.

[10]

The mother has filed a Notice of Appeal from Judge Neals order and
    served the Notice on the Director and the PGT.  The PGT is not participating
    in that appeal as none of the issues raised by the mother concerns the order
    appointing the PGT as the guardian of the childs estate.

[11]

On 28 July 2005, the mother brought an application under Rule 7(3)
    of the Court of Appeal Rules to extend the time to file materials in support
    of her application for leave to appeal the order made by Wilson J. on 18 March
    2005.  The application was opposed by the Director as well as the PGT.  Mr.
    Justice Hall dismissed the mothers application for an extension of time.

[12]

On 27 September 2005, the mother brought an application under s. 9(6)
    of the
Court of Appeal Act
to review the order of Hall J.A.
    dismissing her application.  Counsel for both the Director and the PGT appeared
    on the application.  The review application was without merit and was dismissed.

[13]

The PGT sought costs against the mother on the review application.
    The mother and the PGT have filed written submissions on the issue of costs.

[14]

The main thrust of
    the mothers submissions may be summarized as follows:  (1) no independent
    application had to be made by the PGT to become the guardian of the estate
    of the child, instead, it was the Director who had the statutory authority
    to bring the application for the appointment of the PGT under s. 58 of the
CFCSA
;  (2) there was no necessity for counsel for both the
    Director and the PGT to appear on the application because the Director could
    have made any necessary submissions regarding the appointment of the PGT as
    guardian of the estate of the child, and;  (3) the
Court of Appeal Rules
only allow for costs for parties and the PGT was not a party either in the
    court below or in this Court.

[15]

The PGT's submissions include the following:

15.       On July 28, 2005, the Honourable Mr. Justice
    Hall dismissed an application made by the Appellant to extend the time to
    file materials in support of her application to the Court of Appeal for leave
    to appeal the Order of Mr. Justice Wilson.  The Respondent [Director] and
    the PGT appeared before Mr. Justice Hall via their respective counsel to oppose
    the Appellant's application.  The PGT was particularly concerned about this
    appeal as the remedy the Appellant was seeking was to have the trial decision
    of Judge Neal set aside and a new trial ordered without the Court of Appeal
    having had the opportunity to review or consider what transpired at trial,
    essentially circumventing the Supreme Court's role in reviewing Judge Neal's
    decision on appeal.  If the Appellant were eventually successful on this appeal
    of Mr. Justice Wilson's decision, in the manner she sought, the impact would
    be more quickly and profoundly felt by the PGT because his appointment as
    guardian would be set aside.  Again, the impact on the care of the child,
    and hence the Respondent's role, would not have been as great because [the
    child] would have remained in foster care pursuant to the interim order pending
    a new trial.  In fact, it was due to the PGT's position on the application,
    particularly in light of ongoing events in the litigation over [the fathers]
    estate, that the Respondent decided also to oppose the Appellant's application
    before Mr. Justice Hall.  The Respondent was initially inclined to consent
    to the application and then address this once leave to appeal was sought.

.
    . .

19.       Concerning the Appellant's appeal of Judge
    Neal's decision to the Supreme Court of British Columbia, given that the Appellant's
    grounds for appeal do not touch on the PGT's appointment as guardian of [childs]
    estate and as this appeal will properly consider what transpired at trial,
    the PGT has decided to rely on the submissions of the Respondent to address
    the appeal and, accordingly, will not be appearing at the hearing of the appeal.

[16]

In my opinion, it is doubtful whether the PGT can properly advance
    a claim for costs on the review application when he was not a party in the
    proceedings below or in this Court.  The Provincial Court of British Columbia
    is a statutory court and its jurisdiction is limited to that provided by statute.
     Section 58 of the
CFCSA
allows the Director to apply to have
    the PGT appointed as the guardian of the estate of a child, but nothing in
    the
CFCSA
purports to give the Provincial Court power to make
    orders with respect to real property that may form part of a childs estate.
    In view of s. 96 of the
Constitution Act, 1867
, and the decision
    of the Supreme Court of Canada in
Reference Re. Family Relations Act
    (B.C.)
, [1982] 1 S.C.R. 62, it is questionable whether the provincial
    government could do so in any event.  The
CFCSA
does not provide
    for the PGT to become a party to the proceedings in the Provincial Court and
    it is not clear what purpose would have been served by his becoming a party
    in this case.

[17]

The PGT submitted that, in view of the background to the proceedings
    in the Provincial Court, the controversy and litigation over the administration
    of the fathers estate and the fact that the mother had not been cooperative
    regarding an accounting of rentals received from the revenue properties, he
    was justified in opposing the review application to avoid any interruption
    in the order appointing him as the guardian of the estate of the child.

[18]

Regardless of whether the PGT has the status as a non-party to make
    a claim for costs against the mother in relation to her unsuccessful review
    application in this case, I am of the view that no costs ought to be awarded
    to the PGT.  It is true that the obligations and responsibilities of the guardian
    of the estate of a child differ from those of a guardian of the person of
    a child but it cannot be said that the two roles conflict or that the PGTs
    concerns could not readily have been advanced by the Director.  That is particularly
    so in this case where the review application raised very limited issues.

[19]

In the circumstances
    described, I would order that no costs be awarded to the PGT in respect of
    the review application.

The Honourable
    Madam Justice Rowles

I agree:

The Honourable Madam Justice Newbury

I agree:

The Honourable
    Madam Justice Levine


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Ravnyshyn
          v. Drys,

2006
          BCCA 20

Date: 20060113

Docket: CA
032952

Between:

Paraskovia
    V. Ravnyshyn, Maria M. Dzubak, Olen M. Goubchouk, Ivan G. Demediuk,
    Maria G. Nestorouk, Ganna G. Dymydiuk, Vasyl G. Dymydiuk, Yuri G.
    Dymydiuk, Vasylyna V. Kermoshchouk, Vasiliy V. Dymydiuk,
    Oleksi V. Dymydiuk, Petro V. Dymydiuk, Mykola V. Dymydiuk,
    Olena V. Dymydiuk, Maria S. Aksuk, Ganna S. Tymchouk, Yuri S. Shekeryak,
    Mychaylo S. Shekeriak, Mykola S. Shekeriak, Vasylyna S. Storoshchouk,
    Dmytro S. Shekeryak, Nikolay N. Demediuk, Yuri F. Demediuk,
    Ganna Yu Shkoundeuk, Vasylyna Yu Gavrylchouk, Yevdokia Yu Marfiyevych/Mouratshi,
    Mychaylo Yu Doutchak, Yekaterina Yu Slyvinskaya, Mariya Yu Labyuk
    and Paraskoviya Yu Gavrylchouk

Appellants

(
Plaintiffs
)

And

Igor
    Drys and Nataliia Drys

Respondents

(
Defendants
)

Before:

The
          Honourable Madam Justice Saunders

(In
          Chambers)

G.T.
          Rhone

Counsel for the Appellants

H.S.
          Wellman

Counsel for the Respondents

Place
          and Date of Hearing:

Vancouver, British Columbia

November 10, 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

January 13, 2006

Reasons for Judgment of the Honourable Madam Justice
    Saunders:

[1]

Mr. and Mrs. Drys apply for an order discharging a certificate of pending
    litigation filed by the appellants on October 25, 2005 against properties
    they inherited under a will previously contested by the appellants.  Mr. and
    Mrs. Drys also apply for an order finding the appellants in contempt of court
    for filing the certificate of pending litigation, and an order prohibiting
    them from filing further certificates of pending litigation or other charges
    against the properties.

[2]

The reasons for judgment of the learned trial judge are indexed at
    (2005), 15 E.T.R. (3d) 251, 2005 BCSC 561.  Those reasons for judgment dismissed
    the appellants action in which they sought to expunge the clause in a will
    by which Mr. and Mrs. Drys inherited the properties or, alternatively, sought
    to have the entire will declared invalid.  The trial judge resoundingly rejected
    the claims of undue influence and causing the death of the testator advanced
    by the appellants, on findings of credibility favouring Mr. and Mrs. Drys
    and their witnesses.  In dismissing the claim, the trial judge expressly ordered
    the cancellation of all certificates of pending litigation filed against the
    properties.   The detail of the basis for the order, whether a provision of
    the
Land Title Act
,

R.S.B.C. 1996, c. 250, or
    the inherent jurisdiction of the court, is not provided.

[3]

The appellants filed a notice of appeal but failed to file appeal books
    and transcripts in this Court in a timely way.  Mr. and Mrs. Drys brought
    a motion for an order dismissing the appeal for failure to comply with the
    time limits, for an order allowing reinstatement of the appeal upon providing
    security for costs and for an order removing a certificate of pending litigation.
    The appellants cross-applied for an order extending the time for filing the
    appeal books and transcripts and for an order staying execution of the judgment
    against them.

[4]

I heard the cross-motions and by reasons for judgment issued October
    24, 2005, and indexed at 2005 BCCA 505, extended the time for the filings.
    I also ordered the posting of security for costs.  And I dismissed the application
    for an order removing the certificate of pending litigation, saying:

Lastly,
    there is the matter of the certificate of pending litigation.  The trial court
    has ordered the certificate be removed.  In my view, the correct route to
    secure compliance with that order lies in the Supreme Court of British Columbia
    through entry of the order made and such other steps as shall be required.

[5]

What was not divulged to me prior to my order of October 24, 2005,
    or to counsel for Mr. and Mrs. Drys, was that on June 23, 2005 the appellants
    had obtained a document from this Court entitled Certificate of Pending Litigation
    certifying that in this court a claim is made for an estate or interest in
    land .   Counsel on this motion advised that the certificate was obtained
    without the aid of counsel.

[6]

I am advised on this application that the original certificate of pending
    litigation has been discharged, and I know of no proceedings to appeal that
    decision of the Registrar of Land Titles.  I have not been informed of the
    date of that discharge.

[7]

On October 25, 2005, the day following publication of my reasons for
    judgment on the application for extension of time, security for costs and
    dismissing the application to cancel the certificate of pending litigation,
    the appellants filed the fresh certificate of pending litigation they had
    obtained on June 23, 2005, in the Victoria Land Title Office against the properties
    inherited by Mr. and Mrs. Drys.

[8]

As required by the
Land Title Act
,

the Registrar
    of Land Titles gave notice to Mr. and Mrs. Drys that a fresh certificate of
    pending litigation had been filed against the properties.  This prompted the
    applications now before me.

Removal of the Certificate of Pending Litigation

[9]

The authority for filing a certificate of pending litigation is s.
    215(1) of the
Land Title Act
:

215(1)
    A person who has commenced or is a party to a proceeding, and who is

(a) claiming an estate or interest in land, or

(b) given by another enactment a right of action in respect
    of land,

may
    register a certificate of pending litigation against the land in the same
    manner as a charge is registered, and the registrar of the court in which
    the proceeding is commenced must attach to the certificate a copy of the originating
    process, or, in the case of a certificate of pending litigation under Part
    5 of the
Court Order Enforcement Act,
a copy of the notice of motion
    or other document by which the claim is made.

[10]

Mr. and Mrs. Drys contend that the fresh certificate is fatally deficient
    and could not be registered because the appeal is not a proceeding and because
    the notice of appeal is not an originating process within the meaning of
    s. 215(1) of the
Act
.

[11]

The question of a fresh certificate of pending litigation issuing from
    this court has been addressed in
Cleansteel Products Ltd. v. Canada
    Permanent Trust Company, Freedman & Felix Salvage & Exchange Ltd
.
    (1978), 7 B.C.L.R. 231 (C.A.), and
H.K. Floors Ltd. et al. v. Canam
    Western Ventures Ltd
. (1984), 55 B.C.L.R. 69 (C.A.).

[12]

In
Cleansteel
, the original certificate of lis pendens
    (now called a certificate of pending litigation) was released following the
    dismissal of an action for specific performance of an alleged agreement for
    sale, and a fresh certificate of lis pendens was filed relying upon the notice
    of appeal filed.  Craig, J.A., writing for the majority,  referring to then
    s. 181 which was the precursor to present day s. 215, held at 238:

Once the registrar has cancelled the registration of a lis pendens, as
    he did in this case, where is his authority to accept an application to register
    a new lis pendens merely because a notice of appeal has been filed?  In this
    circumstance, s. 181 does not allow the unsuccessful party to, in effect,
    re-register the lis pendens with respect to the action.

[13]

In
H.K. Floors
, Craig, J.A. again discussed the registration
    of a fresh lis pendens

based upon a notice of appeal from a decision
    dismissing the action in which an interest in land was claimed, referring
    to then s. 213 which was the precursor of present day s. 215.  He said at
    pp. 71-72:

In
Cleansteel Products Ltd. v. Can. Permanent Trust
    Co
, (1978), 7 B.C.L.R. 231, this court held that s. 181 [am. 1970, c.
    19, s. 12; now s. 213 [am. 1982, c. 60, s. 57]] and s. 190 [now s. 233] of
    the Land Registry Act, R.S.B.C. 1960, c. 208 [repealed and substituted by
    the Land Titles Act, 1978 (B.C.), c. 25; now the Land Title Act, R.S.B.C.
    1979, c. 219] did not authorize a registrar of land titles to register a lis
    pendens merely because a person had filed a notice of appeal from a decision
    dismissing his action in which he claimed an interest in land.  Apparently,
    the registrar has now adopted the view that s. 213 and s. 233 of the Land
    Title Act, which replaced the Land Registry Act, authorize the registrar to
    issue a certificate of lis pendens

when a notice of appeal has been
    filed from a dismissal of such an action involving a claim of an interest
    in land.

I disagree with this view.

Section 181 referred to an action; s.  213(1) refers
    to a proceeding.  The Act does not define proceeding.  Rule 1 of the Supreme
    Court Rules defines proceeding as meaning several things including action
    and appeal.  Apparently, the registrar of the court, relying on this definition,
    has concluded that the word proceeding in s. 213(1) includes an appeal to
    the Court of Appeal.  I think, however, that the word appeal in the definition
    of proceeding in the Supreme Court Rules must mean an appeal from a tribunal
    to a Supreme Court Judge, not an appeal to the Court of Appeal, and that in
    the context of the relevant sections proceeding refers to the trial level,
    not the appeal level.

[14]

Section 181 of the
Land Registry Act
, R.S.B.C. 1960,
    c. 208 referred to in
Cleansteel
, and s. 213 of the
Land
    Title
Act, S.B.C. 1978, c. 25, referred to in
H.K. Floors
provided,
    respectively:

181.     Any person who has commenced an action or is a party hereto,
    and is making a claim therein in respect of any land, may register a
lis
    pendens
against the land in like manner as a charge is registered, and
    the Registrar of the Court shall embody in his certificate a copy of the endorsement
    upon the writ  or of the pleading whereby such claim in respect of land is
    made, or, in the case of a
lis pendens
under the
Execution Act
,
    a copy of the notice of motion.

213.     (1)        A person who has commenced or is a party to a proceeding,
    and who is

(a)        claiming an estate of interest in land, or

(b)        given by another enactment a right of action
    in respect of land,

may register a certificate of
lis pendens
against the land in the
    same manner as a charge is registered, and the registrar of the court in which
    the proceeding is commenced shall attach to his certificate a copy of the
    originating process, or, in the case of a lis pendens under the
Execution
    Act
, a copy of the notice of motion or other document by which the claim
    is made.

[15]

The appellants say that
H.K. Floors
is no longer binding
    authority on the issue because the
Court of Appeal Rules
, which did
    not define proceeding when those cases were decided, now defines proceeding
    in s. 1 to mean an appeal or application for leave to appeal, an appeal or
    a cross-appeal.  They say that this definition should be imported into the
Land Title Act
to expand the meaning of the word proceeding
    discussed in
H.K. Floors
.  They refer me to
Canada Trustco
    Mortgage Co. v. Canada
(2005), 340 N.R. 1, 2005 SCC 54 restating at
    para. 10 the well known principle that the words of an Act are to be read
    in their entire context and in their grammatical and ordinary sense harmoniously
    with the scheme of the Act, the object of the Act, and the intention of Parliament.
    The appellants say that the entire context here includes the provisions of
    the
Court of Appeal Rules
.  They refer me as well to
Canadian
    Pacific Limited v. Canadian Transport Commission
(1985), 60 N.R. 298,
    [1985] 2 F.C. 136 (F.C.A.) wherein one statute was used to interpret a word
    in another statute.

[16]

On my canvas of authorities, the issue of the interpretation of proceeding
    in s. 215, has not been considered since the definition of proceeding was
    included in the
Court of Appeal Rules
by Reg. 297/2001.

[17]

While provisions in one statute may define a term used in another statute,
    or be used as an aid in interpreting a provision in another statute, the same
    influence is not exerted by a regulation under one statute on a provision
    in another statute.  That is, I think it is inevitable that a new definition
    in our
Rules
(which have the character of a regulation) will have little
    impact upon the meaning of a term in the
Land Title Act
that
    has long existed and that has been the subject of this Courts interpretation.

[18]

I am not persuaded that the definition of proceeding in s. 1 of the
Court of Appeal Rules
has the effect of extending the meaning of the
    word proceeding in s. 215 of the
Land Title Act
beyond that
    described by Craig, J.A. in
H.K. Floors
, and I think the draftsman
    of the new definition included in the general revision of our
Rules
would be surprised indeed to discover that the meaning of a provision in the
Land Title Act
had changed from that previously stated simply
    because this Courts
Rules
have been refreshed.

[19]

Not discussed in
H.K. Floors
is s. 39 of the
Interpretation
    Act
, R.S.B.C. 1996, c. 238

(then s. 35), which provides:

39.
    The definition section of the
Supreme Court Act
, so far as the terms
    defined can be applied, extends to all enactments relating to legal proceedings.

[20]

Section 1 of the
Supreme Court Act
, R.S.B.C. 1996 c.
    443

defines proceeding in the same fashion as the Supreme Court
Rules
    of Court
:

proceeding
    means an action, suit, cause, matter, appeal or originating application.

[21]

While it may have been arguable that the s. 1 definition includes an
    appeal in this Court, this section of the
Interpretation Act
and
    the definition of proceeding in the
Supreme Court Act
have
    not changed since
H.K. Floors
.  I am bound, in my view, by the
    conclusion in
H.K. Floors
.  Further, the view expressed in
H.K.
    Floors
that the reference to "appeal" in the
Supreme
    Court

Rules
definition of "proceeding" referred to an
    appeal to that court is equally persuasive applied to the same definition
    found in the
Supreme Court Act
.  Reading that definition in
    the
Supreme Court Act
, one would wonder why the term appeal
    would refer to any process other than a process in the Supreme Court of British
    Columbia.

[22]

The appellants also advance the
    wording of s. 254 as a basis upon which I may decline to follow
H.K.
    Floors
.
Section
    254 of the
Land Title Act
provides for cancellation of a certificate
    of pending litigation following dismissal of an action, is these terms:

254.     If an action in respect of which a certificate of pending litigation
    is registered has been dismissed, the registrar must cancel the registration
    as provided in the regulations, or, on

(a)        application, and

(b)        production of a certificate of the registrar
    of the court that issued the certificate of pending litigation, endorsed by
    the registrar of the Court of Appeal, certifying that

(i)
    the action has been dismissed and that the time limited for appeal has expired
    and no notice of an appeal has been filed with the registrar of the Court
    of Appeal, or

(ii)
    a notice of appeal has been filed and has been finally disposed of, and the
    dismissal of the action has not been set aside by the Court of Appeal or the
    Supreme Court of Canada.

[23]

Section 254 is, except for the replacement of the term lis pendens
    with certificate of pending litigation, the same as the
former
    s. 23
3 in effect when
H.K. Floors
was decided.
      On the effect of s. 233 upon the ability to file a fresh lis pendens based
    upon the fact of an appeal, Craig, J.A. said:

Notwithstanding this conclusion, I do not think that upon the dismissal of
    an action a defendant can require a registrar of title to remove a lis pendens
    as he could have done in the case of s. 190 of the Land Registry Act.  The
    purport of s. 233 seems to be that the lis pendens should remain registered
    against the property until either of the conditions in subs.
(b)(i)
or
(ii)
has been established, that is, that there has been no appeal
    from the dismissal of the action filed within the time limited for filing
    an appeal or that the appeal has been finally disposed of" and that
    the dismissal of the action has not been set aside by the Court of Appeal
    or the Supreme Court of Canada, or unless, in the meantime, the registrar
    has cancelled the registration as provided in the Regulations.

Section 25 of the Land Title regulations, B.C. Reg. 334/79,
    provides:

25.
    Where a person applies to cancel a
certificate of lis pendens
following
    a dismissal of the preceding [sic] in respect of which it was filed, the Registrar
    may cancel the lis pendens

(a)
    on production of a consent to cancellation signed by the party who filed the
    lis pendens, or

(b)
    giving notice of the owner of the lis pendens.

Normally, I think that a registrar of Land Title would
    not cancel a lis pendens under the provisions of s. 25 of the regulations
    unless he were satisfied that either subs.
(b)(i)
or
(ii)
applied,
    but he could do so.

[24]

In my view those observations are equally apt in relation to the present
    s. 254 where the order of the British Columbia Supreme Court is simply dismissal
    of an action.  Here, of course, the trial judge expressly ordered the discharge
    of the certificate of pending litigation, and that discharge appears to have
    occurred without challenge.

[25]

I am confirmed in my view that a fresh certificate of pending litigation
    may not be obtained based on an appeal in this court by the requirement in
    s. 215 that the registrar attach to the certificate a copy of the originating
    process.  Originating process is not a term defined in the
Court
    of Appeal Act
or
Rules
.  It is, however, defined in the Supreme
    Courts
Rules of Court
as a writ of summons, petition, third party
    notice or any document which commences a proceeding or adds a new party to
    a proceeding.  Harkening to the reasoning in
H.K. Floors,
it
    can be fairly said that a notice of appeal is not an originating process
    within the meaning of s. 215.

[26]

It follows that I do not consider that a fresh certificate of pending
    litigation should have been issued from this Court, as the appeal is not a
    proceeding and the notice of appeal is not an "originating process
    as required.

[27]

Given the earlier application to this Court, the unavailability to
    the appellants of a fresh certificate of pending litigation from the Court,
    and the appellants' failure to forthrightly advise me of the fresh certificate
    when the issue of the certificate was first raised (I note that counsel on
    this application, by reason of injuries he suffered in an accident, did not
    appear on that occasion), I have no hesitation in declaring, pursuant to s.
    10 of the
Court of Appeal Act,
that that the certificate of
    pending litigation now registered is a nullity.   On that conclusion I would
    expect the registration to be cancelled.  Given my
conclusion, I consider there is no need for an order
    prohibiting the fresh filing of further certificates premised on this appeal.

Contempt of Court

[28]

Mr. and Mrs. Drys also seek an order that the appellants are in contempt
    of court.  This application must be dismissed as there was no order prohibiting
    the fresh filing of a certificate of pending litigation.  While I have concluded
    that the
Act
does not provide for a fresh certificate of pending
    litigation consequent on the filing of a notice of appeal, I do not consider
    that presenting a document issued by this Court can be considered contempt
    of court, as contended.

Summary

[29]

In conclusion, the application for an order that the appellants are
    in contempt of court is dismissed.  I declare the certificate of pending litigation
    filed on October 25, 2005 a nullity and order its cancellation.

The Honourable Madam Justice Saunders

Corrigendum
    to the reasons of

The Honourable Madam Justice Saunders  03 February 2006

I
n
    the corrigendum to reasons for judgment dated January 25, 2006, paragraph
    3 should read as follows:

The
    opening sentence in paragraph 27 should read:  "Given the earlier application
    to this Court, the unavailability to the appellants .

Corrigendum
    to the reasons of

The Honourable Madam Justice Saunders  25 January 2006

In
    reasons for judgment dated January 13, 2006, the last two words in paragraph
    3, "for costs", should be deleted.

In
    the last sentence of paragraph 24, the words  " and without application
    to this Court for a stay of execution" should be deleted.

The first sentence in paragraph 27 should read:  "Given
    the earlier application to this Court".