COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Trans Mountain Pipeline ULC v. Mivasair,

2020 BCCA 8

Date: 20200107

Dockets:
CA45950; CA45953

Between:

Trans Mountain
Pipeline ULC

Plaintiff

And

David Mivasair, Bina
Salimath, Mia Nissen, Corey Skinner (aka Cory Skinner), Uni Urchin (aka Jean
Escueta), Arthur Brociner (aka Artur Brociner), Karl Perrin, Yvon Raoul, Earle
Peach, Sandra Ang, Reuben Garbanzo (aka Robert Arbess), Gordon Cornwall, Thomas
Chan, Laurel Dykstra, Rudi Leibik (aka Ruth Leibik), John Doe, Jane Doe, and
Persons Unknown

Defendants

and

Between:

Regina

Respondent

And

David Anthony
Gooderham and Jennifer Nathan

Appellants

Before:

The Honourable Madam Justice Fenlon

(In Chambers)

On
appeal from:  An order of the Supreme Court of British Columbia, dated
March 11, 2019 (
Trans Mountain Pipeline ULC v. Mivasair,
Vancouver
Docket S183541)
.

Counsel for the Appellants:

L.B. McGrady, Q.C.

Counsel for the Respondent:

L.A. Ruzicka

Counsel for the Proposed Intervenor Ecojustice Canada:

H.J. Wruck

K.J. Pepper-Smith

Counsel for the Proposed Intervenor Greenpeace Canada:

D.W. Klaudt

Place and Date of Hearing:

Vancouver, British
  Columbia

December 18, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 7, 2020

Summary:

The applicants, Ecojustice
Canada and Greenpeace Canada, apply for leave to intervene in the underlying
appeal arising out of criminal contempt convictions in connection with protests
against the expansion of the Trans Mountain Pipeline. Held: applications
dismissed. The proposed intervenors do not have a unique and different
perspective that will assist the Court in the resolution of the issues and
would instead expand the scope of the appeal. The applicants share the
perspective of the appellants that the defense of necessity should be available
to protesters in the context of civil disobedience because of the imminent
perils of climate change. The applicants propose to focus on the expansion of
the defence of necessity as it has been applied in some foreign jurisdictions. That
is not the issue on appeal. The applicants would not assist the Court with the
narrow ground of appeal raised by the appellants relating to the procedure to
be followed on a Vukelich application.

Reasons for Judgment of the
Honourable Madam Justice Fenlon:

[1]

Ecojustice Canada Society and Greenpeace Canada apply for intervenor
status in these appeals under Rule 36(1) of the
Court of Appeal Rules
,
B.C. Reg. 297/2001.

[2]

An applicant seeking intervenor status must show either that it has a
direct interest in the outcome of the proceeding or that it represents a public
interest in a public law issue. Ecojustice and Greenpeace apply under the
latter category. In allowing intervenors on the basis of public interest, the Court
is attempting to ensure that important points of view are not overlooked:
Ahousaht
Indian Band and Nation v. Canada (Attorney General)
, 2012 BCCA 330 at para. 5.

[3]

The following criteria must be considered on this application:

i.        Does the proposed
intervenor have a broad representative base?

ii.        Does
the case legitimately engage the proposed intervenors interests in the public
law issue raised on appeal?

iii.       Does
the proposed intervenor have a unique and different perspective that will
assist the Court in the resolution of the issues?

iv.       Does the proposed intervenor seek to expand the scope of the
appeal by raising issues not raised by the parties?

British Columbia Civil
Liberties Association v. Canada (Attorney General)
, 2018 BCCA 282 at para. 14.

These applications turn on the third and fourth criteria.

Analysis

[4]

The underlying appeal arises out of criminal contempt convictions. David
Anthony Gooderham and Jennifer Nathan were found to have intentionally breached
a court order prohibiting interference with work on the expansion of the Trans
Mountain Pipeline. They did so as part of a larger protest against the
pipeline.

[5]

At trial both appellants sought to rely on the defence of necessity.
That defence is available to an accused who can establish:

i.     An imminent peril or
danger;

ii.    No reasonable legal
alternative to the course of action undertaken, i.e., compliance with the law was
demonstrably impossible; and

iii.   Proportionality between
the harm inflicted and the harm avoided.

Perka v. The Queen
,
[1984] 2 S.C.R. 232 at 259;
R. v. Latimer
, 2001 SCC 1 at para. 28.

[6]

The defence of necessity is not a novel one. It has been considered in
the context of civil disobedience on a number of occasions including logging
protests (
MacMillan Bloedel v. Simpson
(1994), 90 B.C.L.R. (2d) 24
(C.A.)) and abortion protests (
R. v. Watson
(1996), 106 C.C.C. (3d) 445
(B.C.C.A.)). It is a defence that must be strictly controlled and scrupulously
limited:
Perka
at 250, restricted to those rare cases in which true involuntariness
is present:
Latimer
at para. 27. The Supreme Court has recognized
that if the criteria for the defence are loosened or approached purely
subjectively, necessity would very easily become simply a mask for anarchy:
Latimer
at para. 27.

[7]

The judge in the present case heard a number of related contempt of
court trials prior to hearing those of the appellants. In the earlier trials he
had rejected the defence of necessity:
Trans Mountain Pipeline ULC v.

Mivasair
,
2018 BCSC 874. The appellants therefore applied for leave to raise the defence
and to lead evidence relating to that defence. They also sought leave to raise
a s. 7
Charter
breach which characterized the Trans Mountain
Pipeline as imperiling the appellants and all citizens right to life, liberty
and security of the person
.

[8]

The judge conducted a hearing to determine whether the necessity defence
and the s. 7 challenge should be allowed to proceed. He did so in
accordance with
R. v. Vukelich
(1996), 108 C.C.C. (3d) 193 (B.C.C.A.),
as described in
R. v. Cody
, 2017 SCC 31:

[38]       [T]rial judges should use their case management
powers to minimize delay. For example,
before permitting an application to
proceed, a trial judge should consider whether it has a reasonable prospect of
success.
This may entail asking defence counsel to summarize the evidence
it anticipates eliciting in the
voir dire
and,
where that summary
reveals no basis upon which the application could succeed, dismissing the application
summarily
(
R. v. Kutynec
(1992), 7 O.R. (3d) 277 (C.A.), at
pp. 287-89;
R. v. Vukelich
(1996), 108 C.C.C. (3d) 193 (B.C.C.A.)).
And, even where an application is permitted to proceed, a trial judges
screening function subsists: trial judges should not hesitate to summarily
dismiss applications and requests the moment it becomes apparent they are
frivolous (
Jordan
, at para. 63).

[Emphasis added.]

The judge dismissed the applications, finding there was
no prospect of success. His reasons for judgment are indexed at 2019 BCSC 50.

[9]

The within appeal is brought from the judges refusal to allow the
appellants to lead evidence on and assert the defence of necessity. The
appellants raise one narrow ground of appeal which is described in their factum
at para. 58:

In summarily ruling that the
defence of necessity had no reasonable prospect of success, Affleck J. erred in
law in failing to apply the
Vukelich
procedures to the Appellants
application for leave to lead defence evidence [footnotes omitted].

That error in procedure is said to be the judges
failure to assume the truth of the facts the appellants would seek to establish
in support of the defence, which include:

·

That the rapidly advancing warming of the earth and the resulting
impacts on natural systems and human livelihoods constitute an imminent peril;

·

That to have a chance to avoid these dire outcomes the annual
level of global emissions would have to be reduced on a massive scale starting
no later than 2020;

·

That the expansion of Canadas oil sands production will
materially contribute to global oil production and emissions; and

·

That the pipeline will facilitate that increase in oil sands
production.

[10]

The appellants say that instead of assuming the
truth of these facts
in conducting the
Vukelich
assessment of whether the defence of
necessity had an air of reality, the judge drew an inference
unsupported by
the evidence
to conclude that the appellants would not be able to demonstrate
that a clear and imminent peril exists. They point to the following passage in
the judges reasons:

[55]      On the evidence the applicants seek to offer,
rising global temperatures, to a level that is catastrophic to life, is a
process that has been happening over many decades.
Despite a historical lack
of initiative to curb emissions over these same decades, adaptive societal
measures may be taken to prevent such a dire outcome.
Whether government,
private industry, and citizens take these measures is a contingency that takes
these consequences outside of virtual certainty and into the realm of foreseeable
or likely (
Latimer
, at para. 29). Thus, it cannot be said that the
objective element of the modified objective test is satisfied.

[Emphasis added.]

[11]

Ecojustice and Greenpeace wish to intervene to support the extension of
the defence of necessity to cases of civil disobedience, and in particular
environmental protests. At the hearing, they acknowledged that their
applications contained duplication, so they tendered a letter setting out more
precisely the particular areas each would focus on if granted intervenor
status:

Ecojustice will advance the following unique and useful
submissions that:

1.         Judicial and public institution recognition of the
perils caused by climate change, with a focus on international law and foreign
jurisprudence; and

2.         The imminent peril element of the necessity
defence in environmental harm cases as considered in foreign jurisdictions.

Greenpeace will advanced the following unique and useful
submissions that:

1.         Foreign jurisprudence has recognized environmental
necessity defences generally, including how denying defendants the ability to
raise evidence and argument on these defences impacts the right to raise a
defence;

2.         Climate change harms recognized by Canadian and
foreign jurisprudence should be considered when assessing the no reasonable
legal alternatives and proportionality elements of a necessity defence; and

3.         Foreign jurisprudence
has recognized the efficacy of civil disobedience as a consideration in
assessing necessity defences, particularly, when assessing reasonable legal
alternatives.

[12]

Despite the applicants efforts to distinguish their proposed
contributions, it is evident that they would both focus to a considerable
extent on foreign jurisprudence on the defence of necessity in the context of
civil disobedience. Both would also focus on the particular harms inherent in
climate change. At one point counsel for Ecojustice said they would supplement
the record, although he subsequently clarified that they would rely on the existing
record, but would put before the Court further foreign jurisprudence and
secondary sources such as academic articles and U.N. reports on climate change.

[13]

The appellants factum does not rely on foreign jurisprudence. Present
counsel informed the Court that he has not relied on it because in his
assessment that jurisprudence is not persuasive. He also said it was not an
area in which he had particular expertise. Ecojustice and Greenpeace submit
that they would thus be presenting a unique and useful perspective. They
emphasize that they have particular expertise with foreign law and the development
of the defence of necessity and are uniquely qualified to explain that
jurisprudence to the Court. They say this Court has permitted intervenors to
argue foreign jurisprudence in cases such as
Araya v. Nevsun Resources Ltd.,
2017 BCCA 402 (Chambers)

and
Equustek Solutions Inc. v. Google Inc.
,
2014 BCCA 448 (Chambers)
.

[14]

With respect, I am not persuaded by these submissions. The focus of the
proposed intervenors is on the expansion of the defence of necessity as it has
been applied in some foreign jurisdictionsbut whether the defence should be
extended to civil disobedience is not the issue on appeal. The issue is,
rather, whether the judge erred in the
Vukelich
hearing by failing to
assume that the facts asserted by the appellants could be established. If
granted leave to intervene the applicants would therefore expand the scope of
the appeal.

[15]

Further, even if the applicants broader submissions were relevant to an
issue on appeal, they do not have a unique and different perspective. Their
perspective is that the defence of necessity should be available to the
appellants and other protesters because of the perils of climate change and the
imminence of those perils. That perspective is exactly that of the appellants
who, in the
Vukelich
application, described the type of evidence they
would lead in support of the defence of necessity as follows:

[10]

i.          To call evidence concerning the growth of oil
sands production in Canada to 2030 and the projected increase of CO2 and other
greenhouse gas (GHG) emissions accompanying that growth; the significance of
the Trans Mountain Expansion project in facilitating that growth; and related
evidence about whether the resulting increase in oil sands emissions is
consistent with Canada meeting its 2030 reduction target;

ii.         Evidence concerning whether Canadas projected
expansion of oil sands production to 2030 and 2040 is consistent with keeping
global average surface warming below the 2°C threshold;

iii.         Evidence concerning the Trans Mountain Expansion
approval process, including the (i) National Energy Board (NEB) inquiry report
May 19, 2016 recommending approval of the project, (ii) the Trans Mountain
upstream emissions assessment report dated November 25, 2016, and (iii) the
Ministerial Panel report November 1, 2016, showing that prior to the Order in
Council authorizing the project of November 29, 2016, no public inquiry process
addressed or answered questions about whether the growth of oil sands emissions
to 2030 can be consistent with meeting Canadas commitments under the Paris
Agreement or whether the projected expansion of oil sands production to 2040 is
consistent with keeping warming well below the 2°C threshold;

iv.        Evidence concerning
the current level and projected increase of global GHG emissions to 2030, the
rising atmospheric carbon concentration level and the relationship between that
increase and warming, the current rate of warming, and the impacts of warming
and related changes in the earths climate system, the severity of the impacts
that have already occurred and are occurring, and the projected impacts to 2030
and after;

[16]

The appellants further particularized that proposed evidence in 80
paragraphs quoted by the judge at para. 11 of his reasons. It suffices for
the purpose of these intervenor applications to include only the headings under
which the various categories of evidence were organized:

·

Global emissions, atmospheric carbon, and warming

·

Mitigation and the global emissions gap

·

Impacts

·

The National Energy Board (NEB)

·

Upstream emissions review

·

The Ministerial Panel

·

Political activity to avoid the peril

·

Political activity subsequent to November 29, 2016

·

Belief on reasonable grounds

[17]

In my opinion, the applicants have not found the narrow niche to be
occupied by an intervenor:
Squamish Nation v. British Columbia (Environment
),
2019 BCCA 65 at para. 28 (Chambers). Ecojustice and Greenpeace share the
perspective of the appellants on climate change, the need for civil
disobedience given the magnitude and imminence of the perils of climate change,
and the applicability of the defence of necessity to this and other comparable
cases. More importantly, they would not assist the Court with the narrow ground
of appeal raised by the appellants relating to the procedure to be followed on
a
Vukelich
application.

[18]

I would accordingly dismiss the applications for leave to intervene.

The
Honourable Madam Justice Fenlon


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Genworth Financial Mortgage
Insurance Company Canada v. Doan,

2020 BCCA 27

Date: 20200108

Docket: CA46332

Between:

Genworth Financial
Mortgage Insurance Company Canada

Respondent

(Petitioner)

And

Scott Lawson Doan

Appellant

(Respondent)

Before:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Abrioux

On an application to
vary:  An order of the Court of Appeal for British Columbia,
dated October 18, 2019 (
Genworth Financial Mortgage Insurance
Company
of Canada v. Doan
, 2019 BCCA 350, Vancouver Docket CA46332).

Oral Reasons for Judgment

Counsel for the Appellant:

J.E. Shragge

Counsel for the Respondent:

R. Wilson

M. Wilson

Place and Date of Hearing:

Vancouver, British
  Columbia

January 8, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 8, 2020

Summary:

Application to vary an order
made by a single justice in chambers that an order confirming a sale is a
limited appeal order under R. 2.1 of the Court of Appeal Rules.
Held: Application dismissed.  The order was made under R. 21‑7
of the Supreme Court Civil Rules [foreclosure and cancellation] even though an
order absolute had been obtained in the foreclosure proceeding.

[1]

TYSOE J.A.
:  The applicant, Scott Lawson Doan,
applies under s. 9(6) of the
Court of Appeal Act
, R.S.B.C. 1996,
c. 77, to vary an order made by a single justice of this Court in chambers
on October 18, 2019.  The justice held that the order the
applicant wishes to appeal is a limited appeal order under R. 2.1
of the
Court of Appeal Rules
, B.C. Reg. 297/2001, on the
basis that it was granted under R. 21‑7 [foreclosure and cancellation]
of the
Supreme Court Civil Rules
, B.C. Reg. 168/2009.
Mr. Doan therefore required leave of the Court to appeal
the order, and the justice concluded that it was not in the interests of justice
to grant leave.

[2]

The order which Mr. Doan wishes to appeal is an order made
by Master Dick on July 24, 2019, approving a sale of
property owned and occupied by Mr. Doan.  The sale has completed and
the property is now registered in the name of the third‑party purchaser.

[3]

The property was subject to a mortgage granted by Mr. Doan in
favour of the Scotia Mortgage Corporation and insured by the
respondent, Genworth Financial Mortgage Insurance Company Canada
(Genworth Financial).  Default was made under the mortgage in January 2016,
and Scotia Mortgage Corporation commenced a foreclosure proceeding.
On October 28, 2016, Scotia Mortgage Corporation obtained
an order
nisi
, as well as an order for conduct of sale
effective December 5, 2016.  The amount required to redeem the
mortgage at the time was approximately $174,000 plus interest at the
approximate rate of 3%.

[4]

The property was listed for sale at a listing price of
approximately $210,000.  An offer of $170,000 was received, but
it was not accepted.

[5]

In November 2016, Genworth Financial paid the amount owed to
Scotia Mortgage Corporation and took an assignment of the mortgage and the
foreclosure proceeding.  On November 29, 2017, Genworth Financial
was substituted as the petitioner in the foreclosure proceeding, and it
also obtained an order absolute at the same time.  Mr. Doan
appealed the order absolute in the Supreme Court but, before the
appeal was heard, the parties entered into an agreement dealing
with the appeal and listing of the property for sale.

[6]

The agreement was contained in a letter dated July 3, 2018,
from Genworth Financials lawyer to Mr. Doan.  It was agreed that Mr. Doans appeal
would be dismissed, that Mr. Doan would be entitled to list the property for sale
for approximately three months and that, if an offer in an amount sufficient
to pay off the  mortgage was not received by September 30, 2018,
Genworth Financial would proceed with listing the Property for sale under
its conduct of sale order.  The agreement also provided that if Mr. Doan
did not cooperate with Genworth Financials realtor or was in breach of other terms
of the agreement, it would file the order absolute in the land title office.

[7]

No suitable offer was received by Mr. Doan, and Genworth Financial
re‑listed the property for sale.  It accepted an offer in the
amount of $185,000 and applied within the foreclosure proceeding for
court approval of the sale.

[8]

On July 24, 2019, Master Dick approved the sale
at the $185,000 offered price.  She noted that the property had been appraised
to have a value of $205,000 as at April 30, 2019, but given
the marketing history, she concluded that the offer was provident.  Master Dick
also noted that Mr. Doan would have to come up with close to $210,000
to retain the property.  In light of the fact that Genworth Financial
could not have sought to recover any shortfall from Mr. Doan if it had
acted on the order absolute, Master Dick made it a term of the order
approving the sale that Genworth Financial was barred from
pursuing Mr. Doan on his personal covenant for any shortfall on
the mortgage loan.

[9]

Mr. Doan filed a notice of application for leave to appeal,
and the matter came on before the chambers judge on September 20, 2019.
At the hearing, Mr. Doan took the position that leave to appeal
was not required for three reasons, and if leave to appeal was required,
it was an appropriate case for leave to be granted.

[10]

In reasons for judgment dated October 18, 2019,
and indexed as 2019 BCCA 350, the chambers judge held that leave to appeal
was required and that it was not in the interests of justice to grant leave.
She rejected Mr. Doans arguments that Master Dicks order was
made under R. 13‑5 [sales by the court] of
the
Supreme Court Civil Rules
, rather than R. 21‑7,
because: (a) the foreclosure proceeding had come to an end when the
order absolute was granted; (b) the sale was made pursuant to
the letter agreement dated July 3, 2018; and (c) the
notice of application for the order approving the sale stated
that Genworth Financial was relying on R. 13‑5 as well as R. 21‑7.

[11]

The chambers judge went on to consider the usual factors for
determining whether it was in the interests of justice to grant leave to appeal.
She concluded that it was not in the interests of justice to grant leave
because Mr. Doan had not provided evidence challenging the providence of the sale
and any deficiency in the form of the evidence relied upon could be
remedied upon a further application.  She also considered it to be of
great significance that title to the property had vested in
a
bona fide
purchaser for value before Mr. Doan
filed his notice of application for leave to appeal.

[12]

The standard of review on an application to vary or
discharge an order of a justice under s. 9(6) of the
Court of Appeal Act
is well established.  The division hearing the application will
interfere with the decision of the chambers judge only if the judge was
wrong in law, or wrong in principle, or misconceived the facts:
Haldorson v. Coquitlam (City)
, 2000 BCCA 672 at para. 7.

[13]

On this review application, Mr. Doan reiterates the first
of his arguments that the order approving the sale could not have been made
under R. 21‑7 because the order absolute brought the
foreclosure proceeding to an end and the court was
functus officio.
In that regard, he relies on decisions such as
Federal Business
Development Bank v. F.J.H. Construction Ltd.
(1988), 50 D.L.R. (4th) 105
(B.C.C.A.), and
Harrison v. Harrison
, 2007 BCCA 120.

[14]

Mr. Doan says the chambers judge erred by rejecting this
argument on the basis the proceeding is not at an end upon the
granting of an order absolute because the mortgagor is still
entitled to apply to reopen the foreclosure proceeding for the purpose of
redeeming the mortgage.  He submits that this is an exceptional equitable remedy
which is available only to mortgagors and that Genworth Financial is not
entitled to rely on it for the purpose of requiring leave to appeal
to be obtained.

[15]

In my opinion, the flaw in Mr. Doans argument is that he
conflates the issue of whether the order was made in the foreclosure proceeding
and the issue of whether the court should not have made the order for lack of jurisdiction.
There can be no doubt that the order was made in the foreclosure proceeding.
The application was made by Genworth Financial within the foreclosure proceeding
pursuant to the order for conduct of sale granted in the foreclosure proceeding,
and the order was made by Master Dick pursuant to that application.  It is
clear from Master Dicks reasons (dated July 24, 2019, and indexed
as 2019 BCSC 1521) that she was exercising her power under R. 21‑7(9) to
confirm a sale on an application of a person having conduct of sale
in a foreclosure proceeding.  Whether she erred in exercising that power for lack of jurisdiction
is a different issue.

[16]

There was no proceeding other than the foreclosure proceeding
in which the order could have been made.  Master Dick was not exercising
the power of the court to vest title to the property in the
purchaser under R. 13‑5(7) in another proceeding because conduct of sale
had not been granted in any other proceeding.

[17]

In determining whether the order was a limited appeal order,
the issue is whether the order
was granted
under R. 21‑7.
It is not an issue, as Mr. Doan would have it, of whether the
order
should have been granted
under R. 21‑7.
That latter issue goes to the merits of the appeal, not to
the threshold issue of whether leave is required.

[18]

A somewhat analogous situation occurred in
Mission Creek Mortgage Ltd. v.
Angleland Holdings Inc.
, 2013 BCCA 347.  In that case,
the appellant wished to appeal an order
nisi
on the basis that the
foreclosure proceeding was null and void because notice had not
been given under s. 21 of the
Farm Debt Mediation Act
,
S.C. 1997, c. 21.  This Court held that leave to appeal
was required because the issue of whether the Supreme Court had the
ability to make the order
nisi
was a matter that was determined
under R. 21‑7.  As in the present case, the Court
decided that the issue was whether the order was granted under R. 21‑7,
not whether the appellant had an argument that the Supreme Court did not
have the jurisdiction to grant the order.

[19]

In my view, it is not necessary to address the arguments made by
Genworth Financial that an order absolute is not a final order and
that the letter agreement dated July 3, 2018, altered the effect of
the order absolute.  Nor is it necessary to consider whether leave to appeal
should have been granted because Mr. Doan is not challenging the exercise of discretion
by the chambers judge in refusing to grant leave, presumably
because he is not able to point to any error made by her
in the exercise of the discretion.

[20]

In conclusion, Mr. Doan has not demonstrated that the chambers judge
erred in her conclusion that the order approving the sale was a
limited appeal order within the meaning of R. 2.1.  I would
dismiss his application.

[21]

BAUMAN C.J.B.C.
:  I agree.

[22]

ABRIOUX J.A.
:  I agree.

[23]

BAUMAN C.J.B.C.
:  The application to vary is
dismissed.

[Submissions by
counsel re: stay]

[24]

BAUMAN C.J.B.C.
:  We would extend the stay to 5:00 p.m.
on January 22, 2020.

The
Honourable Mr. Justice Tysoe


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Holland,

2020 BCCA 16

Date: 20200109

Docket: CA46262

Between:

Regina

Respondent

And

Zsuzsanna Holland

Appellant

Before:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Abrioux

On appeal from:  Orders
of the Supreme Court of British Columbia, dated
May 13, 2019; June 3, 2019; September 4, 2019; and September 6, 2019
(
R. v. Holland
, Kamloops Docket 105848).

Oral Reasons for Judgment

The Appellant, appearing in person

(via Teleconference):

Z. Holland

No one appearing on behalf of the Respondent

Place and Date of Hearing:

Vancouver, British
  Columbia

January 9, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 9, 2020

Summary:

The appellant filed four
notices of appeal, which were referred to this Court by the Registrar for
summary determination under s. 685(1) of the Criminal Code
.
Held:
Appeals dismissed. Three of the notices are interlocutory decisions in criminal
proceedings, which this Court lacks jurisdiction to review. The remaining
notice is moot.

[1]

BAUMAN C.J.B.C.
: Ms. Holland has filed four notices of
appeal in the Registry of this Court. The Registrar has referred them to this
division for summary determination under s. 685(1) of the
Criminal
Code
, R.S.C. 1985, c. C‑46.

[2]

Three of the notices of appeal are these:

·

December 4, 2019  in respect of a ruling made by Justice Donegan
in Kamloops, Supreme Court file no. 105848;

·

December 9, 2019  in respect of a ruling made by Justice Donegan
in the same matter; and

·

December 23, 2019  in respect of a ruling made by Justice
Donegan, again, in the same matter.

[3]

These orders are interlocutory within a proceeding charging Ms. Holland
with offences under the
Criminal Code
, for which she is currently
awaiting trial.

[4]

For the reasons of Justice DeWitt-Van Oosten in
R. v. Holland
,
2019 BCCA 417, these putative appeals cannot proceed for want of jurisdiction.
They are quashed.

[5]

Ms. Holland, along with Fanny Stump, also filed a so-called amended
notice of appeal in respect of rulings made on November 21 and 25, 2019 in Kamloops
Supreme Court file no. 105679, which apparently involves an accused named R.
Charles Bryfogle and his appeal from conviction and sentence in provincial
court.

[6]

Ms. Holland and Fanny Stump have no standing in that appeal and
cannot purport to appeal rulings made in that case. In any event, one of the
decisions in the application they seek to appeal involves
habeas corpus
in respect of Mr. Bryfogle. That is moot as Mr. Bryfogle has served
his sentence and is not, to our knowledge, currently in custody. That appeal is
also quashed.

[7]

TYSOE J.A.
: I agree.

[8]

ABRIOUX J.A.
: I agree.

The
Honourable Chief Justice Bauman


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Tallio,

2020 BCCA 14

Date: 20200109

Docket: CA44096

Between:

Regina

Respondent

And

Phillip James
Tallio

Appellant

Restriction
on publication
:
Portions of this file are sealed or subject to
publication bans in orders dated October 24, 2017, November 7, 2017,
November 8, 2017, July 23, 2019, and August 8, 2019. A
publication ban has been
imposed restricting the publication, broadcasting or transmission in any way of
the
name and address of the residence the appellant will reside at during his
judicial
interim release. Further orders or directions may be issued pursuant to the
November 8, 2017 order.

FILE
SEALED IN PART

Before:

The Honourable Madam Justice Bennett

(In Chambers)

On appeal from:  An
order of the Supreme Court of British Columbia, dated
November 1, 1983 (
R. v. Tallio
, Prince Rupert Docket 74/83).

Oral Reasons for Judgment

Counsel for the Appellant:

T.M. Arbogast

R.M. Barsky

K. Kirkpatrick,
  Articled Student

Counsel for the Respondent:

M.T. Ainslie, Q.C.

J.A.M. Dickie

Counsel for the Intervenor, Marion Bolton:

S.J. Rauch

Place and Date of Hearing:

Vancouver, British
  Columbia

January 8, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 9, 2020

Summary:

Mr. Tallio re-applies for
bail pending his appeal. Held: Application granted. The proposed release plan
is sufficient to protect public safety.

[1]

BENNETT J.A.
: Phillip Tallio brings his second application for
judicial interim release pending appeal. For the reasons that follow, I would grant
the application.

[2]

On August 9, 2019, I refused Mr. Tallios first application in
reasons indexed at 2019 BCCA 300. These reasons should be read in conjunction
with those reasons. My main concern when I refused release was that the
facility where he planned to reside could not provide sufficient supervision
for him.

[3]

The Crown opposes his release.

[4]

This application is based on the John Howard Society accepting Mr. Tallio
into one of its facilities. I have a complete affidavit, and heard evidence
regarding the sufficiency of the supervision and programming available. I am
satisfied that the John Howard Society will provide sufficient supervision of Mr. Tallio
to protect the public safety. As a result, I am satisfied that the requirements
for judicial interim release found in s. 679(3) of the
Criminal Code
,
R.S.C. 1985, c. C‑46 have been met. In order to satisfy the public
safety aspect of the public interest component, a number of conditions will be
imposed as terms of his release. The conditions have generally been agreed to by
the parties.

[5]

Thus, I order Mr. Tallios release on a recognizance in the amount
of $10,000 without deposit or surety with the following conditions:

a)

You must keep
the peace and be of good behaviour.

b)

You must report
to a bail supervisor no later than January 10, 2020 at Abbotsford Community
Corrections at 2865 Cruickshank Street, Abbotsford, British Columbia, and
thereafter once per week in person, or otherwise as directed by your bail
supervisor.

c)

You must
reside at [residence name and address redacted], Abbotsford, British Columbia.
You must abide by all of the rules and regulations required by [the residence].
If you are expelled from [the residence], or no longer reside there for any
reason, you will surrender forthwith into police custody.

d)

You are to go
directly to [the residence] upon your release, in the company of your lawyer, a
John Howard Society staff member or a Correctional Service of Canada employee.

e)

You shall not
leave the Province of British Columbia.

f)

You
will notify your bail supervisor and seek their permission before participating
in any volunteer activity or obtaining employment. If you are granted
permission by the bail supervisor to volunteer or work, you will provide a copy
of this release document to a supervisor of the volunteer organization and/or
your employer. You will immediately notify your bail supervisor if you are no longer
volunteering or employed.

g)

You shall have
no contact directly or indirectly, including by social media, with Marion
Bolton or her family known to you, nor with Blair Mack or his family known to
you, except through legal counsel.

h)

You are not to
be in the presence of any person under the age of 16 years, unless accompanied
by or in the presence of an adult at all times. You will not attend any public
swimming area, community centre, daycare centre, school ground or playground
where persons under the age of 16 years are present or can reasonably be
expected to be present, except with the written permission of your bail
supervisor, which you will carry with you.

i)

You
must not go to Bella Coola, Bella Bella or Hagensborg, British Columbia.

j)

You
must not consume alcohol or any illegal substances.

k)

You must
not be in possession of any weapons, including knives, except for the
preparation of or eating food, or for the purposes directly related to your
employment.

l)

You
shall obey the following curfew by being in the residence, which includes the
exterior property of the residence, except for medical emergencies, or with the
bail supervisors written permission which must be carried with you:

i.

between the hours of 12:00 p.m. and 7:00 a.m. for the first thirty days
of your release;

ii.

between the hours of 2:00 p.m. and 7:00 a.m. for the next thirty days of
your release;

iii.

between the hours of 4:00 p.m. and 7:00 a.m. for the next thirty days of
your release; and

iv.

after the first 90 days of your release, between the hours of
9:00 p.m. and 7:00 a.m.

m)

You must present
yourself at the door of the above-noted residence when asked by a bail
supervisor or peace officer.

n)

You must comply
with the reporting requirements of [the residence], and report as and when
directed to them, and by them.

o)

You must carry a
copy of this release document with you at all times when outside your
residence.

p)

You must have meetings
as directed by [the residence] staff to ensure the progress and development of
a Resident Action Plan and counselling program.

q)

Having
consented, you shall continue to receive trauma counselling from Sandra
Dykstra, which is funded through Indian and Northern Affairs Canada, or you
shall work with [the residence] to locate and utilize a different counsellor if
Ms. Dykstra is unable to provide continued counselling services.

r)

You
shall not travel into the City of Vancouver, British Columbia unless
accompanied by a John Howard Society staff member, or other person approved by
your bail supervisor in writing, which you will carry with you, or with your
counsel.

s)

You shall
surrender into custody at 9:00 a.m. on March 30, 2020 to the Sheriffs office
at the Law Courts at 800 Smithe Street, Vancouver, British Columbia.

The
Honourable Madam Justice Bennett


COURT OF APPEAL FOR BRITISH
COLUMBIA

Citation:

R. v. Hall,

2020 BCCA 9

Date: 20200110

Docket: CA45793

Between:

Regina

Respondent

And

Joshawa James Michael Hall

Appellant

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Fenlon

The Honourable Mr. Justice Fitch

On appeal from:  An order of the Supreme Court of British Columbia,
dated
February 10, 2017 (conviction) (
R. v. Hall
,
2017 BCSC 246,
New Westminster Docket X079493).

Counsel for the Appellant:

M. Reinhart

Counsel for the Respondent:

J.A. Dyck

Place and Date of Hearing:

Vancouver, British Columbia

December 9, 2019

Place and Date of Judgment:

Vancouver, British Columbia

January 10, 2020

Written Reasons by:

The Honourable Mr. Justice Fitch

Concurred in by:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Fenlon

Summary:

On
appeal from conviction, the appellant argues that the trial judge: (1) misapprehended
evidence; (2) committed a Beaudry error by unreasonably addressing a
conflict in the evidence; (3) failed to consider whether details
provided by a Vetrovec witness were fed to the witness by police; and (4) erred
in principle in her Vetrovec analysis. Held: Appeal dismissed.
First, the judge did not misapprehend the evidence, but concluded that
inconsistencies in the evidence of the Vetrovec witness did not fatally
undermine her assessment of the witnesss credibility or reliability. In any
event, the alleged errors did not play an essential role in the reasoning
process leading to the convictions. Second, the judges finding that the
appellant was the shooter does not betray a fundamental flaw in her reasoning
process as is required to make out a Beaudry error. The judge recognized
the conflict in the evidence but did not ascribe to it the significance the
appellant would have liked. Third, in the absence of an evidentiary
foundation it cannot be successfully argued for the first time on appeal that
the judge erred in failing to address a speculative theory that the witnesss
evidence was tainted by police procedures. Finally, there was a considerable
body of evidence the judge was entitled to regard as confirmatory of the
testimony of the Vetrovec witness that the appellant was the perpetrator
of the offences.

Reasons
for Judgment of the Honourable Mr. Justice Fitch:

I.   Introduction

[1]

In the early morning hours of
May 19, 2014, a residence on Alderson Avenue in Coquitlam,
British Columbia was targeted in a drive‑by shooting. At least six shots
were fired at the house. No one was injured. Between 6:30 and 7:30 a.m.
on the same day, the window of a ground floor apartment on Brunette Avenue
in Coquitlam was smashed. The resident of that apartment was roused by the
sound of breaking glass and discovered that a rifle had been thrown
through the window and onto her living room floor. The Crown alleged that
the appellant was responsible for offences arising out of these two incidents.

[2]

Identity was the central issue at
trial. Proof of identity turned largely on the judges assessment of the
credibility and reliability of the evidence of Samantha Fenton, an
unsavoury witness to whom the principles in
Vetrovec v. The Queen
,
[1982] 1 S.C.R. 811 applied.

[3]

Ms. Fenton was abusing drugs at
the time of the offences. She worked for the appellant in the drug trade.
She testified that she drove the appellant (and others) to the scene of
both offences in her silver PT Cruiser. Her evidence on this point was
inconsistent with an exculpatory statement she gave to the police that she was
not present when any of the offences were committed and that her vehicle had
been used by the appellant and others that evening without her permission. She
admitted lying to the police about not being present when the offences were
committed. She had an obvious motive to do so.

[4]

With respect to the Alderson Avenue
shooting, Ms. Fenton testified that she drove west on Alderson and
parked her PT Cruiser in front of a residence. It was common ground at
trial that the residence was located on the north side of Alderson Avenue.
On Ms. Fentons account, the passenger side of the vehicle faced the
residence. Ms. Fenton testified that, after she stopped her vehicle, the
appellant discharged a rifle at the residence through the open window of the
front passenger seat. Her account of the drive‑by shooting was
inconsistent with other evidence adduced at trial in two potentially
significant ways.

[5]

First, Ms. Fenton testified that
she drove
west
on Alderson away from the scene
after
the shooting stopped. Alain Boire, who also lived on the north side
of Alderson Avenue near the home targeted in the shooting, testified that
he heard gunshots in the early morning hours, looked out his window
and saw a vehicle resembling a PT Cruiser travelling
east
away
from the scene. If Ms. Fenton drove to and from the scene by travelling east along
Alderson Avenue, the appellant could not have discharged the rifle out of
the front passenger seat as he would have been facing the south side of
Alderson Avenue.

[6]

Second, Ms. Fentons evidence
that the appellant discharged the rifle after she stopped her vehicle was
inconsistent with the evidence of Sgt. Mackenzie, the forensic identification officer
who took photographs of the scene. Sgt. Mackenzie testified that the
bullet trajectories were such that, at some point, the shooter was moving.

[7]

On February 10, 2017, the
appellant was convicted by a judge of the Supreme Court of British
Columbia of four offences arising out of these two incidents:

·

two counts of committing mischief
by wilfully damaging the residences located on Alderson Avenue and
Brunette Avenue, contrary to s. 430 of the
Criminal Code
,
R.S.C. 1985, c. C‑46 [
Code
];

·

one count of intentionally
discharging a firearm into or at a place [the Alderson Avenue residence]
knowing or being reckless as to whether another person was present in that
place, contrary to s. 244.2(3)(b) of the
Code
; and

·

one count of careless use of a
firearm, contrary to s. 86(1) of the
Code
 a count that was
conditionally stayed by the trial judge.

[8]

The appellant appeals his convictions
on four grounds:

1.        That
the judge misapprehended the evidence of Sgt. Mackenzie that at some point
the Alderson Avenue shooter
was moving
. In summarizing Sgt. Mackenzies
evidence, the judge said he testified that the shooter
might have been
moving
 (emphasis added);

2.        That
the judge committed the type of error identified in
R. v. Beaudry
,
2007 SCC 5, by addressing the conflict in the evidence between Ms. Fenton
and Mr. Boire in an unreasonable fashion;

3.        That
the judge erred by failing to consider whether certain details provided by Ms. Fenton
in her testimony which were relied on to confirm her account may have been fed
to her by the police; and

4.        That the judge erred in law in her
Vetrovec
analysis
by failing to confine her consideration of confirmatory evidence to evidence
that restored faith in the salient part of Ms. Fentons account  specifically,
that the appellant was the person who committed the offences. The fourth ground of appeal
was not pressed in oral argument, but neither was it abandoned.

[9]

The common thread linking all four grounds of appeal
is that the judge made errors in finding that the evidence of Ms. Fenton
was an independently confirmed and reliable account of the appellants
responsibility for the offences underlying the two incidents.

[10]

The appellant seeks an order allowing the appeal,
setting aside the conviction and directing a new trial.

[11]

For the reasons that follow, I am
unable to give effect to the appellants grounds of appeal. I would,
therefore, dismiss the appeal from conviction.

II.  Chronology of Events

[12]

I will review only so much of the
evidence as is necessary to address the grounds of appeal.

1.  Alderson Avenue

[13]

Isabella Franco lived with her
mother and other family members in the
upper level
of the Alderson Avenue residence.
She had purchased drugs from the appellant in the past. In a Facebook exchange
with the appellant that occurred in August 2013, the appellant demanded
payment from Ms. Franco for drugs supplied to her. When she said she would not
or could not pay, the appellant said, [I] always get paid. He also
said that if she did not pay, [t]hen ur [
sic
] mom will pay end of
story.

[14]

In the late evening hours of May 18, 2014,
the appellant attended at the apartment of Caleb Sorenson, who occupied
the
lower level
of the Alderson Avenue residence. Mr. Sorenson
knew and recognized the appellant from school. He testified that the
appellant opened his basement suite door and discharged a can of bear
spray in his face. He said the appellants visit was unexpected and that
he could offer no motive for the appellants assaultive conduct.

[15]

Ms. Fenton testified that just
before midnight on the evening of May 18, 2014, the appellant
asked her to give him a ride so he could confront someone who owed him money.
He directed her to a residence in a neighbourhood she was unfamiliar with. She
parked right in front of the house. Ms. Fenton
testified that the appellant and another person walked up the driveway to
a door on the right side of the house. She testified that she believed that
the side door was under a carport. In fact, the door to Mr. Sorensons suite
is located on the front of the right‑hand side of the house,
immediately adjacent to the carport. The door to Mr. Sorensons suite
is not under the carport. I would note, however, that anyone parking directly in front
of the house would likely have their view of the door to the basement
suite obstructed by a clump of bushes located at the front of the house on
the right‑hand side. In any event, Ms. Fenton testified she heard
a knock at the door, saw a light come on and heard the sound of the door being
kicked. The appellant and the other person then returned to the vehicle talking
about what they had just done. Ms. Fenton testified the appellant and the
other person were excited and talking about mace or bear spray.

[16]

The police and ambulance personnel were
dispatched to the scene. The discharge of bear spray affected not
just Mr. Sorenson but occupants of the upper level of the Alderson Avenue residence.

[17]

Before the commencement of the trial,
the appellant pleaded guilty to assault with a weapon arising out of this
incident. The trial judge recognized that the probative value of the
guilty plea was limited to the context it provided in understanding events
that followed. Specifically, this evidence linked the appellant to the Alderson Avenue residence
just hours before the drive‑by shooting occurred. It was capable of
establishing not only the appellants
animus
towards the occupants
of the residence, but that he had acted on that
animus
just a few hours
before the drive‑by shooting. The appellants counsel does not dispute
that the circumstances giving rise to the plea were also capable of being used
as evidence confirming Ms. Fentons implication of the appellant in
the drive‑by shooting committed in relation to the same residence a
few hours later.

[18]

Ms. Fenton testified that shortly
after the bear spray incident, the appellant asked her to drive him
and others back to the same residence on Alderson Avenue. She did so
and parked with the passenger side of the PT Cruiser closest to the house.
On Ms. Fentons evidence she would have parked on the north side
of Alderson Avenue facing west. She said a long gun was passed
by someone in the back of the vehicle to the appellant who was sitting in the
front passenger seat. She saw the appellant fire the gun at the residence.
She testified that she heard the gun being discharged once but believed it was
fired multiple times based on the length of time they sat in her vehicle in
front of the house. Ms. Fenton testified that she was in shock, her
adrenaline was flowing and that with what was going on I couldnt really -- I
was just focused on the area more than what was going on inside my vehicle.
She said she sped away from the scene
after
the shooting by travelling
west
on Alderson Avenue. She said she was sure about this. She said she turned
left at the appellants direction after leaving the scene and travelled
south down a hill and away from Alderson Avenue. That is
the extent of her evidence on the route she took from the scene.

[19]

As noted earlier, her testimony on this
issue was inconsistent with the observations of Mr. Boire. Mr. Boire
lived on the north side of Alderson Avenue about 66 feet east
of the residence targeted in the drive‑by shooting. He
testified that on May 19, 2014, at about 3:00 a.m., he was
awakened by a rapid succession of five or six bangs. Midway through the
succession of bangs he went to a window that looks out on Alderson Avenue.
He did not see anything immediately. He testified that a dormer on his house blocks
his view to the west. Shortly thereafter, he saw a vehicle that was shaped
like a PT Cruiser pass by his house heading east. The vehicle only
came into view when it was directly in front of his house. It stopped briefly
and then sped off.

[20]

Sgt. Mackenzie identified six bullet holes
on the exterior of the Alderson Avenue residence and on a vehicle parked in
the driveway. Although he had not been qualified to give expert opinion evidence,
Sgt. Mackenzie gave evidence in examination in chief and on
cross‑examination on the trajectory of the bullets. He surmised that, at
some point, either the shooter was moving or there was more than one shooter.

[21]

Ms. Fenton testified that the
appellant asked her to drive him back to the same residence on Alderson Avenue
about 30 minutes later to see if  there was any  action
going on. She testified that when they drove past the Alderson Avenue residence
for the third time, she saw ambulance and police vehicles outside.
It was common ground at trial that Ms. Fentons evidence on this
point could not be accurate. The ambulance and police vehicles that
attended the residence after the appellant discharged the bear spray had
cleared the scene by this time.

2.  Brunette Avenue

[22]

Ms. Fenton testified that at about
6:00 a.m. the same morning, she drove the appellant and another
person to an area off Brunette Avenue to buy cigarettes and have breakfast.
She testified the appellant got out of her vehicle, ran up to the lower left
side of an apartment building on Brunette Avenue and smashed a window.
She described the building as derelict and light grey in colour.
She did not see the appellant in possession of a rifle as he ran towards this
building.

[23]

Lyla Mervyn lived in an apartment
on Brunette Avenue in May 2014. She testified that the appellant left
her a drunken voicemail message on May 18, 2014, in which
he threatened to burn down her building. Subsequently, the
appellant and Ms. Mervyn engaged in an exchange of profane and mutually insulting
text messages.

[24]

Ms. Mervyn testified that a window
of her ground floor apartment was broken between 6:30 and 7:00 a.m.
on the morning of May 19, 2014. As noted earlier, when she got up to
investigate she found a rifle on her living room floor.

[25]

The appellants fingerprints were
found on the rifle thrown through the window of Ms. Mervyns apartment.
The appellant was further connected to the rifle by an exchange of text messages
he had with a friend on May 14, 2014. In that exchange, the appellant
complained that he was in possession of a gun with some kind of
brass circle that jammed the barrel. The rifle seized from Ms. Mervyns apartment
had a brass fitting in the barrel which prevented it from being fired.

[26]

The rifle seized from Ms. Mervyns residence
was not the rifle used in the drive‑by shooting on Alderson Avenue.

3.  The Appellants
Position at Trial

[27]

The appellant did not testify at trial.

[28]

It was put to Ms. Fenton in cross‑examination
that she was never at the scene of these offences and that the exculpatory version
of events she initially related to the police was true. It was suggested to her
that in implicating the appellant she was parroting back information about
the offences she learned from others.

[29]

In closing submissions made on his
behalf, the appellant suggested that Ms. Fenton was not present when the
offences were committed or, if she was, her evidence implicating the appellant
in the commission of the offences was unconfirmed and could not be relied on as
proof beyond a reasonable doubt that he was the perpetrator.

[30]

With respect to the Alderson Avenue
shooting, defending counsel emphasized Sgt. Mackenzies evidence
that, the shooter may have been moving. He invited the judge to contrast Sgt. Mackenzies evidence
with the evidence of Ms. Fenton that the vehicle was stationary when the
appellant shot at the residence. He also highlighted the discrepancy in the
evidence given by Ms. Fenton and Mr. Boire as to the direction the PT Cruiser
was travelling when it left the scene.

III. Reasons for Judgment

[31]

In oral reasons for judgment
indexed as 2017 BCSC 246, the judge concluded that Ms. Fentons
evidence was the only evidence capable of proving the identity of the accused
as the perpetrator and that her evidence must meet the standard of proof beyond a reasonable doubt.

[32]

In addressing the credibility of Ms. Fenton
and the reliability of her trial testimony, the judge cited
Vetrovec
and
R. v. Khela
, 2009 SCC 4, before coming to the
following conclusions:

[
78]

Ms. Fentons description of the house on Alderson Avenue,
while vague, was not generic. She was correct about the location of the
driveway at the right hand side of the house and the door to the basement suite
situated more or less under a carport.

[79]

Ms. Fentons
description of Ms. Mervyns apartment building was quite specific.
She said it was grey and derelict looking, which is accurate. She also
correctly identified the location of the window that she said she saw the
accused break.

[80]

I
am satisfied that those details and the details about Alderson Avenue were not
lucky guesses, nor were they the product of someone telling her what they had
done rather than her seeing it for herself. There was sufficient detail from
her about the appearance of the two residences to provide some confirmation of
her account.

[81]

I
acknowledge Ms. Fenton mixed up the second and third visits to the house,
as her evidence conflicts with the evidence of Cst. Chiu that when he
attended the house in response to the gunshot complaint he did not recall
ambulance or other emergency personnel.

[82]

Ms. Fentons
evidence of how she drove away from the house after the shooting also conflicts
with the evidence of Mr. Boire, who saw the PT Cruiser‑like vehicle
eastbound, not westbound. The witness said that after the first shot she was
not focussed on what was going on in the car; she was in shock.

[83]

I
am not satisfied these inconsistencies are fatal to reliance on her evidence or
leave me with reasonable doubt, in light of the other confirmatory evidence I
have accepted.

[84]

I
find further confirmation of Ms. Fentons evidence in the rifle seized
from Ms. Mervyns residence. Ms. Fenton did not see the accused
take a rifle out of her car, but she was aware he went up to a building and
smashed a window. I find the rifle that landed in Ms. Mervyns living room
was the same one the accused was lamenting about in his text exchange with [his
friend], the one with the brass circle showing and no hole. His fingerprints
were on it.

[85]

While
I agree with Mr. McMurray that it does not make much sense for the accused
to throw a rifle into Ms. Mervyns house when he knows it likely has
his fingerprints on it, I accept the rifle made its way into the house either
as a projectile to break the window or a blunt instrument to break the window,
following which it was launched into the house.

[86]

Finally,
Ms. Fenton testified that the accused told her he wanted to confront
someone who either owed him money or it had something to do with drugs, he was
referring to the dated drug debt owed him by Ms. Franco, or his
unsatisfactory communications with Ms. Mervyn, or both. I appreciate the
debt owed by Ms. Franco was dated but not, I find, forgotten.

[87]

The
question I must ask myself is whether, to paraphrase the words of Mr. Justice Fish
at para. 15 of
R. v. Khela
, I find the evidence elsewhere
in the dance to provide sufficient comfort that Ms. Fenton was telling the
truth about the accuseds involvement ...
I am satisfied there is
evidence to confirm materials [
sic
] parts of her account and her
evidence satisfies me beyond a reasonable doubt that the accused was the perpetrator of
the acts
...

[Emphasis added.]

IV. Analysis

1.  The
alleged misapprehension of the evidence of Sgt. Mackenzie

[33]

The appellant submits that the judge
misapprehended Sgt. Mackenzies evidence by saying he testified that the
shooter
might
have been moving. Sgt. Mackenzie testified the
Alderson Avenue shooter
would have been moving.
The appellant
argues that this alleged misapprehension is material because Sgt. Mackenzies opinion
contradicted Ms. Fentons testimony that the car was stationary when
the shooting occurred.

[34]

I am not persuaded by the appellants
position on this point.

[35]

The standard an appellant must meet to
obtain relief on misapprehension of evidence grounds is high:
R. v. Lohrer
,
2004 SCC 80 at para. 2;
R. v. Webber
, 2019 BCCA 208
at para. 27. The error must be plainly identified. It must also be
material in the sense that it formed a central element of the trial judges
reasoning process that led to a conviction. One way of determining whether the
misapprehension played an essential role in the reasoning process
resulting in a conviction is to consider whether striking it from the
judgment would leave the reasoning on which the conviction is based on
unsteady ground:
Lohrer
at paras. 69;
R. v. Sinclair
,
2011 SCC 40 at paras. 53, 56.

[36]

With these principles in mind, I begin
by noting that the judges summary of Sgt. Mackenzies evidence
mirrored the summary of that evidence given by defending counsel in his
closing submissions.

[37]

More importantly, I am not persuaded
that the reasons for judgment have been shown to reflect a
misapprehension of Sgt. Mackenzies evidence. After the impugned passage,
the judge turned to consider the reliability of Ms. Fentons account and
whether there existed independent evidence tending to confirm her
identification of the appellant as the Alderson Avenue shooter. In
doing so, she recognized the defence position that [t]he
shot pattern
is consistent with the shooter moving,
whereas Ms. Fenton said the car was stationary (emphasis added).
This passage demonstrates that the judge did not misapprehend the evidence
on this issue. Rather, she concluded that this and other inconsistencies were
not fatal to her reliance on Ms. Fentons evidence in light of the
other evidence that confirmed her account and implicated the appellant in
the commission of the offences. In my view, that is a factual finding
to which deference is owed.

[38]

Further, even assuming that the judge
misapprehended Sgt. Mackenzies evidence, I am not persuaded that the
alleged error has been shown to have played an essential role in the
reasoning process leading to the convictions.

[39]

There was a substantial body of independent evidence
relied on by the judge to confirm Ms. Fentons testimony that the
appellant was the perpetrator of the Alderson Avenue offences. That evidence included
the appellants attendance at the residence earlier in the evening when he
assaulted Mr. Sorenson. The appellants conduct on this occasion was not
only powerful evidence demonstrating his
animus
towards the
residents of the building, but evidence of his preparedness to
act on that
animus
a few hours before the drive‑by shooting.
In addition, the judge found that the drug debt owed by Ms. Franco,
who lived in the Alderson Avenue residence, had not been forgotten. This
evidence supplied the appellant with a motive for the commission of the offences.

[40]

As I would not give effect to this
ground of appeal for the reasons stated, I need not address the
Crowns position that Sgt. Mackenzies evidence respecting the
trajectory of the bullets fired at the residence was inadmissible because
he had not been qualified to give opinion evidence on this point.

[41]

The appellant also suggested in oral argument
that the judge misapprehended Ms. Fentons evidence as to the
location of the door leading to Mr. Sorensons basement suite.
As noted earlier, Ms. Fenton testified that the appellant went to a side door
at the front of the house on the right side. As to the precise
location of the door, she said, I believe [it] was under a
little carport. In fact, the door was adjacent to the carport on the
right side of the front of the house.

[42]

In dealing with this evidence, the
judge said Ms. Fenton was correct about the door to the basement suite
being situated more or less under a carport. I do not regard this as a
misapprehension of Ms. Fentons evidence, let alone a significant
one. Put simply, I do not consider it reasonable to suppose that this alleged
inconsistency had a material bearing on the trial judges reasoning process,
either standing alone or in combination with her alleged misapprehension
of the evidence of Sgt. Mackenzie.

2.  The alleged
Beaudry
error

[43]

With respect to the Alderson Avenue shooting,
the appellant submits that the

judge committed a
Beaudry
error
by failing to address in a reasonable way the contradictory evidence
given by Ms. Fenton and Mr. Boire about the direction the PT Cruiser
was travelling as it left the scene.

[44]

The appellants argument rests on the
judgment of Justice Fish in
Beaudry
at paras. 83 and 97.
Justice Fish concluded that an appellate court may find a verdict to
be unreasonable if the trial judge has made a finding of fact essential to
the verdict that is not logically supported by the evidence upon which it
purports to rest, or because the reasons given in support of a verdict are
fundamentally incompatible with evidence that has not been contradicted or
rejected. Justice Fish dissented in the result in
Beaudry
,
but any doubt that his judgment reflected the holding of the Court on this
point was dispelled in
R. v. Sinclair
, 2011 SCC 40.
Although Fish J. also dissented in the result in
Sinclair
,
his articulation in that case of the circumstances in which a
Beaudry
error
is committed is authoritative:

[19]      Illogical or irrational reasoning
can render verdicts unreasonable under s. 686(1)(
a
)(i) of the
Code
, in various ways.
Beaudry
identifies two. First, a verdict is unreasonable where the
judge draws an inference or makes a finding of fact essential to the verdict
that is plainly contradicted by the very evidence from which it was drawn or
upon which it has been made to rest (para. 105). In that case, the
essential finding is illogical or unreasonable in light of the evidence relied
upon in making the finding. Here, the rule of law speaks the language of logic:
From accepted evidence X, a court cannot lawfully infer not X.

[21]      A
verdict is likewise unreasonable where the judge draws an inference or makes a
finding of fact essential to the verdict if that inference or finding of fact
is demonstrably incompatible with evidence that is neither contradicted by
other evidence nor rejected by the trial judge (
Beaudry
, at para. 79,
per
Binnie J.).

(See also
R. v. R.P
., 2012 SCC 22
at para. 9.)

[45]

I understand the appellant to rely on
the second way in which a verdict may be unreasonable pursuant to
Beaudry
.
This route to an unreasonable verdict requires an appellant to demonstrate
that a finding of fact essential to the verdict was demonstrably incompatible
with evidence that was neither contradicted nor rejected by the trial judge.

To succeed on
Beaudry
grounds,
an appellant must do more than show that a particular factual finding or
inference is the product of a flaw in the trial judges reasoning process.
It must be shown that the flaw played a central role in the reasoning process
that led to a conviction:
R. v. Scuby
, 2015 BCCA 430
at para. 31;
R. v. Zadeh
, 2016 BCCA 474 at para. 27.

[46]

Appellate intervention on
Beaudry
grounds will be
rare:
Sinclair
at para. 22;
Zadeh
at paras. 2527,
R. v. Ali
, 2013 BCCA 346 at para. 17. As Justice Bennett
noted in
Ali
, the decisions in
Sinclair
and
Beaudry
are not an invitation to appellate dissection of reasons for judgment.
A similar point was made in
R. v.
Thla
Ceu
,
2018 BCCA 480 at para. 43:

The
Beaudry
/
Sinclair
error is narrow; it captures only findings of fact or inferences essential
to the verdict that are plainly contradicted by the evidence relied on by the
trial judge or incompatible with evidence not otherwise contradicted or
rejected by the judge. ... Evidence is often contradictory, and it is
the trial judges job to make sense of the evidence and to make findings
despite contradictory evidence.

[47]

I am not persuaded that the verdict is
unreasonable in the
Beaudry
sense. While the judge did
not reject the evidence of either Mr. Boire or Sgt. Mackenzie, her
factual finding that the appellant was the shooter was not the product of
a fundamentally flawed reasoning process
that is demonstrably incompatible
with the evidence of these two witnesses.

[48]

The critical question the judge
had to decide was whether the evidence established beyond a reasonable doubt
that the appellant was the shooter. She was obliged to consider evidence
that confirmed and undermined Ms. Fentons testimony that he was,
including the evidence of Mr. Boire. The judge did so and concluded, in
light of the other confirmatory evidence she accepted, that the discrepancies
in Ms. Fentons account did not fatally undermine the
reliability of her evidence or give rise to a reasonable doubt about
whether the appellant committed the shooting.

[49]

In coming to this conclusion, the judge
did not make a finding of fact that Ms. Fenton drove west away
from the scene (contrary to Mr. Boires evidence) nor did she make a
finding of fact that all of the shots were fired from the front
passenger seat (contrary to Sgt. Mackenzies opinion). The judge
accepted that after the first shot was fired, Ms. Fenton was in a
state of shock and not focused on what was going on in the car.
I take from this that the judge accepted Ms. Fenton was in a panicked state
and may have been wrong about the particulars of the shooting,
including how she drove away from the scene.

[50]

In my view, the judges factual finding
that the appellant was the Alderson Avenue shooter does not betray a
fundamental flaw in her reasoning process of the narrow kind
contemplated by
Beaudry.
She was entitled to conclude that Ms. Fenton,
in her panicked state, may have been wrong about some of the events
surrounding the shooting, but accept her evidence that the appellant was the
person who discharged the weapon at the Alderson Avenue residence.

[51]

In sum, the judge did not ignore
the conflicts in the evidence between Ms. Fenton on the one hand and Mr. Boire
and Sgt. Mackenzie on the other. Neither did she make a specific factual finding
inconsistent with evidence she did not reject. She recognized the
discrepancies, but did not ascribe to them the significance the appellant would have liked.
That, in my view, is not a
Beaudry
error. Accordingly, I
would not give effect to this ground of appeal.

3.  The
alleged failure to consider whether Ms. Fenton had been supplied with
confirmatory evidence by the police

[52]

The appellant submits that the judge
erred by failing to consider whether Ms. Fentons generally accurate description
of the Alderson Avenue residence and Brunette Avenue apartment building
was the product of information that had been supplied to her by the police.
The appellant notes that Ms. Fenton acknowledged being shown a photograph
of Ms. Mervyns apartment on Brunette Avenue for the purposes of
identifying the window she said was broken by the appellant. He
submits that it is a reasonable inference Ms. Fenton may also have been
shown photographs of the Alderson Avenue residence that enabled
her to give a generally accurate description of that residence.

[53]

The appellant acknowledges that this evidence
was not developed nor was the point pursued at trial. Ms. Fenton
was never asked whether she had been shown a photograph of the Alderson Avenue residence.

[54]

Despite the gaps in the record
and the fact that the appellants trial counsel did not pursue this
line of inquiry, the appellant now submits that the judge had an independent obligation
to consider whether Ms. Fentons ability to describe the Alderson Avenue residence
targeted in the drive‑by shooting was tainted by police procedures.
The appellant goes further to suggest that the judges failure to consider
the point constitutes a misapprehension of evidence on a material issue.
I do not agree.

[55]

In my view, and in the absence of an evidentiary foundation
permitting assessment of this issue, it cannot successfully be argued that the
judge erred in failing to deal with what amounts to a speculative theory
advanced for the first time on appeal. I would not give effect to this ground
of appeal.

4.  The alleged error
in applying
Vetrovec
to the evidence of Ms. Fenton

[56]

The appellant argues that the evidence
relied upon by the judge to confirm Ms. Fentons account that the
appellant was the perpetrator of the offences was, at most, evidence capable
of confirming only that she was present at the time the offences were committed.
The appellant submits that this evidence was not confirmatory evidence
implicating him in the commission of the offences. In essence, the
appellant submits that the judge erred in her application of
Vetrovec
principles
to this case by failing to consider whether the confirmatory evidence
restored faith in Ms. Fentons testimony
that the appellant
was the perpetrator
.

[57]

The appellants submission on
this point focuses once again on the Alderson Avenue shooting. In my
view, it has little, if any application to the mischief committed in relation
to the apartment on Brunette Avenue. Ms. Fentons evidence
that the appellant committed the offence on Brunette Avenue was
powerfully confirmed by evidence linking him to the rifle thrown through Ms. Mervyns window.

[58]

I would not accede to this ground of appeal.

[59]

First, the appellant argued at trial
that Ms. Fenton lied under oath about being at the scene of
these offences. In this context, it was open to the judge to
consider evidence that confirmed Ms. Fentons testimony that she was
present at the relevant time.

[60]

Second, the judge did not simply focus on evidence
that confirmed aspects of Ms. Fentons testimony in ways unrelated to
the appellants responsibility for the offences. The judge considered a
significant body of evidence that she was entitled to regard as
confirmatory of Ms. Fentons testimony that the appellant was the
perpetrator of the offences committed in relation to the Alderson Avenue residence.
This is confirmed by the trial judges concluding remarks which I
will repeat for convenience:

[87]      The question I must ask
myself is whether, to paraphrase the words of Mr. Justice Fish at para. 15
of
R. v. Khela
, I find the evidence elsewhere in the dance to
provide sufficient comfort that
Ms. Fenton was telling the truth about
the accuseds involvement
I am satisfied there is evidence to
confirm materials [
sic
] parts of her account and
her evidence
satisfies me beyond a reasonable doubt that the accused was the perpetrator of
the acts

[Emphasis added.]

V.  Conclusion

[61]

For the foregoing reasons, and despite
the able advocacy of Ms. Reinhart, I would dismiss the appeal.

The
Honourable Mr. Justice Fitch

I AGREE:

The Honourable Chief Justice Bauman

I AGREE:

The
Honourable Madam Justice Fenlon


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Henderson v. Mawji,

2020 BCCA 43

Date: 20200113

Dockets:
CA46535; CA46536

Docket: CA46535

Between:

Nicole Christine
Henderson

Appellant

(Plaintiff)

And

Gulzar Mawji

Respondent

(Defendant)

- and -

Docket: CA46536

Between:

Nicole Christine
Csurdi

Appellant

(Plaintiff)

And

Katelyn Bannon

Respondent

(Defendant)

Before:

The Honourable Madam Justice Garson

(In Chambers)

On appeal from:  An order
of the Supreme Court of British Columbia, dated October 31, 2019 (
Csurdi
v. Bannon
, 2019 BCSC 2280, New Westminster
Dockets M193837 and M172624).

Oral Reasons for Judgment

Counsel for the Appellant:

T.P. Harding

Counsel for the Respondents:

D.J. Sinnott

Place and Date of Hearing:

Vancouver, British
  Columbia

January 8, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 13, 2020

Summary:

The appellant applies to
extend time to serve notices of appeal in two related actions. Held:
Applications dismissed. The appellant concedes that the only point of the
appeal is to argue that an evidentiary ruling from the trial below should not
bind a new trial. However, previous evidentiary rulings do not bind new trials.
As a result, the proposed appeal lacks merit.

[1]

GARSON J.A.
: These are applications before a single justice in
chambers to extend time to serve notices of appeal in two related actions. The
notices of appeal were served four days late.

[2]

The appellant in both actions is the same person. She now uses the name
Nicole Christine Henderson.

[3]

The criteria that govern this application to extend time pursuant to
s. 10(2)(d) of the
Court of Appeal Act,
R.S.B.C. 1996, c. 77, are
set out in
Davies v. Canadian Imperial Bank of Commerce
(1987),
15 B.C.L.R. (2d) 256
at 259260 (C.A.)
:

1.

Was there a
bona fide
intention to appeal?

2.

When were the respondents informed of the intention?

3.

Would the respondents be unduly prejudiced by an extension of time?

4.

Is there merit in the appeal?

5.

Is it in
the interest of justice that an extension be granted?

[4]

The merits threshold asks whether the appeal is doomed to fail, or,
alternatively, whether it can be said with confidence that the appeal has no
merit:
Stewart v. Postnikoff
, 2014 BCCA 292
at
paras. 5
6
(Chambers)
.

[5]

The final factor encompasses the other four questions and states the
decisive question:
Davies
at 260. As a
result, the merit of an appeal is also considered at that stage. In
A
Solicitor v. The Law Society of British Columbia
, 2018 BCCA 163 at para. 37,
Bennett J.A. held that it is not in the interests of justice to permit a meritless
appeal to go forward.

[6]

It is only the fourth and fifth criteria that are of concern in this
application.

[7]

The underlying appeal is from an order in two personal injury actions.
The trial judge pronounced a mistrial. As a result of the mistrial, the jury
was discharged, and the judge ordered a new trial. The question that arises on
these facts is whether there is any utility to the appeals.

[8]

The appellant contends that in the trial the judge ruled that certain
evidence concerning the plaintiffs history of childhood abuse was irrelevant,
prejudicial, and therefore inadmissible. The appellant says the point of the
appeal is to argue that the judge erred in his ruling and, importantly, that
the ruling should not bind or carry forward to the new trial.

[9]

Apart from the appellants concern about the implications of the
evidentiary ruling on the new trial, the appellant concedes there is no point
to the appeal.

[10]

The other criteria in
Davies
, as to the appellants intention to
appeal, notice to the respondents, and lack of prejudice to the respondents,
are all satisfied. As I said, the extension is only for four days. Counsel for
the applicant concedes that on appeal his only claim for relief is a new trial,
and that Justice Mayer has already ordered a new trial. But he says underlying
that order for a new trial is an erroneous evidentiary ruling. He is concerned
that the judge hearing the new trial will be bound by the evidentiary rulings
made at the trial that ended in a mistrial. The respondents say there is no
utility to this appeal and the extension ought not to be granted. Because an appeal
is from an order and not reasons, I conclude, and agree with the respondents, there
is no utility and, hence no merit, to the appeal.

[11]

The appeal is also ill‑conceived because the underlying
evidentiary rulings do not bind the new trial judge.

[12]

In
Coulter v. Ball
, 2007 BCSC 720,

Goepel J. (as he then was)
explained the law as it pertains to a new trial following a
successful
appeal
:

[
19
]      Where a new trial is ordered, the
judge presiding at the new trial is not bound by findings made at the first
trial. A new trial is wholly independent of the first:
Bobolas &
another v. Economist Newspaper Ltd.
, [1987] 3 All E.R. 121 (C.A.).

[
20
]      At a
new trial, all questions of fact in regards to the issues retried are at large
and are to be considered afresh:
Lewis v. Cook and Akenhead
,
[1950] 4 D.L.R. 136 (B.C.C.A.). The issues are considered
tabula rasa
. The
parties may raise any issue pled regardless of the position taken at the first
trial:
Confederation Life Insurance Co. v. Woo
(1994), 123 Sask.
R. 150 (C.A.).

[13]

Lewis v. Cook and Akenhead
, [1950] 4 D.L.R. 136 (B.C.C.A.), mentioned
by Goepel J. in
Coulter
and followed in
Confederation Life Insurance
Co. v. Woo
(1994), 48 A.C.W.S. (3d) 1019 (Sask. C.A.), provides the
following guidance on the effect of a new trial:

[11]      We are all of the opinion that the only order we
can make is that there should be a new trial. We are of the opinion that the learned
Judge who may take the second trial is, and should be, absolutely untrammelled
by any decision of the learned Judge who took the first trial, and on that I
wish to refer to two cases. The first case is
Roe v. Naylor
(1918), 87
L.J.K.B. 958, 119 LT 259. The Master of the Rolls said at p. 963:

Counsel for the appellants sought to rely upon some finding
of the Judge in the first trial of the action. In my opinion, he is not
entitled to do that. This action was sent for a new trial, and the second trial
superseded the first, and any finding in the first action was got rid of when
the action was sent for a new trial.

[12]      Now that refers apparently to a finding of fact.
The next case I am about to state refers to a question of law
Venn v.
Tedesco
, [1926] 2 K.B. 227, 95 L.J.K.B. 866. McCardie J. said at p. 237:

Such is the view I must take of the main point of law argued
before me, but I ought, ere concluding this judgment, to refer briefly to
another point raised on the plaintiff's behalfnamely, that, inasmuch as the
defendants' counsel, at the first trial of this action before the Lord Chief
Justice and a special jury, stated that he did not seek to rely on the
Public
Authorities Protection Act, 1893
, he was therefore precluded from raising
the point before me on the second trial of the action. I am unable to agree
with that contention. The point was one of law only. It involved no evidence,
and the facts on the point were not only admitted, but were actually pleaded in
the statement of claim itself. There is, I think, no estoppel in the matter.
The trial before me was a
de novo
hearing, and the defendants were
entitled to raise before me the point pleaded in their statement of defence. My
recollection is that this question has been decided by the Court of Appeal as I
now decide it, though I am unable to find a reported decision on the matter.
The cases quoted in the
Annual Practice
, 1926 ed., p. 1154, tend, I
think, to support the view I now express.

[14]

I agree with Goepel J. in
Coulter
and can see no reason why these
same principles would not apply equally in respect of an evidentiary ruling at a
new trial following a mistrial (as opposed to an appeal).

[15]

Similarly, although not binding, in a criminal context guidance may be
found in
R. v. Hilson
, [1958] O.R. 665 (C.A.). The court allowed an
appeal from a murder conviction on the basis of errors in the jury charge and
remitted the matter for a new trial. In so doing, it noted that it found no
error in the trial judges decision to admit a confession. Nevertheless, it
cautioned that this ruling was not binding on the retrial: at paras. 34.

[16]

That principle was endorsed in
R. v. Duhamel
, 1981 ABCA 295 at para. 23,
affd, [1984] 2 S.C.R. 555. In
R. c. Cliche
, 2010 QCCA 408,
Beauregard J.A. considered whether
Hilson
and
Duhamel
applied in
respect of a retrial following a mistrial, as opposed to an appeal. He found no
principled reason for distinguishing between the two situations, at paras. 1317.

[17]

Edwards J. also appears to have reached the same conclusion in
H.M.T.Q.
v. Dempsey
, 2001 BCSC 371 at para. 7, where he applied
Hilson
in
relation to a retrial following a mistrial.

[18]

Parenthetically, I recognize that in relation to criminal matters,
Cliche
and
Dempsey
have been overtaken by legislative developments.
In 2011, the
Criminal Code
, R.S.C. 1985, c. C‑46

was
amended to include s. 653.1:

Mistrial  rulings binding at new trial

653.1
In
the case of a mistrial, unless the court is satisfied that it would not be in
the interests of justice, rulings relating to the disclosure or admissibility
of evidence or the
Canadian
Charter of Rights and Freedoms
that were made during the trial
are binding on the parties in any new trial if the rulings are made  or could
have been made  before the stage at which the evidence on the merits is
presented.

[19]

Parties to a retrial are entitled to reframe their case. They may choose
to adduce different evidence and advance different legal arguments, subject
only to the limitations imposed by their pleadings and the doctrine of abuse of
process. In those circumstances, the analysis of relevance, materiality, and
probative value of a given piece of evidence may be fundamentally different
than in the previous trial. The reasoning in the criminal authorities to which
I have referred, while not directly applicable, is persuasive.

[20]

It follows that I would, in these circumstances, dismiss the applications
for the extension of time on the grounds that there is no merit or utility in
the appeals and, consequently, it is not in the interests of justice that
either of these applications for extensions of time be granted.

Disposition

[21]

The applications in both appeals to extend time to serve notices of
appeal are dismissed. Both appeals stand dismissed.

The Honourable Madam Justice Garson