COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Bain
          v. Bain,

2008
          BCCA 49

Date: 20080205

Docket: CA034219

Between:

Trudy
    Irene Bain

Respondent

(
Plaintiff
)

And:

David
    Ian Bain

Appellant

(
Defendant
)

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Prowse

The
          Honourable Madam Justice Huddart

J.
          Dubas

Counsel for the Appellant

P.C.M.
          Formby

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

23 November 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

5 February 2008

Written
          Reasons by:

The
          Honourable Madam Justice Huddart

Concurred
          in by:

The
          Honourable Chief Justice Finch
The Honourable Madam Justice Prowse

Reasons
    for Judgment of the Honourable Madam Justice Huddart:

[1]

The primary issue on this appeal is the child care regime put in place
    by orders made after a five-day trial in May 2006 (2006 BCSC 894) and a two-day
    application on 31 August and 1 September for a reconsideration hearing
    (2006 BCSC 1385).  The appellant alleges the misuse of character evidence
    by the trial judge and the psychologist who prepared a report under s. 15
    of the
Family Relations Act
, R.S.B.C. 1996 c. 128, lack of proper
    care in the presentation of his case by his counsel and the trial judges
    concern to complete the trial within the estimated time, resulted in child
    care arrangements not in the best interests of the children of his marriage
    to the respondent.  He asks this Court to set aside the orders, review the
    trial record and the new evidence and make orders that do recognize the childrens
    best interests and the relevant statutory provisions.  Alternatively, he seeks
    a new trial on this issue before a different trial judge.

[2]

The appeal also raises secondary issues concerning the appellants
    income under the
Federal Child Support Guidelines
, S.O.R./97-175,
    a currency/coin collection, the reapportionment of family assets, and a restraining
    order.  The cross-appeal challenges the trial judges finding that debts incurred
    by the appellant on two credit cards before the separation should be paid
    from the proceeds of sale of the family residence by way of reapportionment.
     The appellant makes the same challenge to a debt the respondent incurred
    to her family before and after the separation and before the triggering event.

[3]

In support of the grounds for appeal, the appellant seeks to introduce
    affidavit evidence from himself.  Included in the exhibits to one of his affidavits
    is a letter written on 29 September 2006 by his counsel to his treating psychiatrist,
    Dr. Ancill, and the response dated 1 October 2006 which might be considered
    as new evidence.  The letters were written after the application for reconsideration
    of the same issues raised on this appeal, but, according to Dr. Ancills letter,
    he had been Mr. Bains treating psychiatrist since July 2002 and had last
    seen the appellant on 6 August 2006 i.e. before the application for reconsideration.

Background Facts

[4]

The parties started dating in 1991 having met when they both worked
    for the same collection agency.  The same year the respondent began to work
    in the collection department of ICBC.  She subsequently became a claims adjuster,
    a position she still holds.  They moved in together in early 1992 and enjoyed
    what appear to have been relatively peaceful and light-hearted years for them
    both.  The appellant started to work for ICBC in the collection department
    in 1996 and worked there until 1999, when he left late in the year to take
    up the management of a collection business the couple had started.

[5]

Meanwhile, the parties had married on 11 October 1998, and the respondent
    had moved from full-time to part-time employment.  The parties bought their
    first and only home in Maple Ridge, and they moved into that home in April
    1999 on the same day their first child was born.  The respondent went on maternity
    leave.  To close the purchase, the couple used the respondents RRSP ($15,000)
    acquired before their relationship began and an additional $5,000, the source
    and exact amount of which is unclear from the evidence.

[6]

In the spring of 2000, the respondent returned to her part-time work
    as a claims adjuster, working about half-time.  Around the same time, the
    collection business was moved to the family home.  It appears not to have
    done well and was shut down not long after.  The appellant looked after their
    child while the respondent was at work.  Then in October 2000, the appellant
    suffered what has been diagnosed as a traumatic closed head brain injury from
    which he has not recovered sufficiently to take up full-time work.  Their
    second child was born on 24 February 2002.  After her birth, the respondent
    again took a years maternity leave.

[7]

The appellant did not lead any direct medical evidence as to his current
    mental state, relying instead on his testimony and the report of his condition
    in the s. 15 report, as relayed from Dr. Ancill, his psychiatrist, to Dr. England,
    the psychologist who prepared the report.  He was receiving a monthly Canada
    Pension Disability Pension of about $950.  He was also working about 60 hours
    monthly as a handyman, receiving income the trial judge fixed at $900 monthly
    for a gross monthly income of $1,850 or $22,200 annually.  As well, he had
    the benefit of rent-free accommodation in exchange for work done for his landlord.
     At the time of the trial, the respondent was in the same job-share arrangement
    with ICBC, earning $27,928.27 annually.

[8]

After the second childs birth the parties relationship became difficult.
     The trial judge did not chronicle the many matters canvassed in evidence
    in the context of the breakdown and destruction of the marriage.  Quite properly,
    he concentrated on those matters that had, as he wrote, potential to reflect
    adversely on the best interests of the children.  I will do the same in these
    reasons.

[9]

It will be sufficient to note the parties separated within the family
    home in August 2004, that the respondent obtained an order for exclusive occupancy
    of the family home, accompanied by an order to remove the appellant from the
    home and an interim restraining order in January 2005, and that a divorce
    order was granted on 21 November 2005.  That is the event that triggers the
    determination and division of family assets under Part 5 of the
Family
    Relations Act
.

[10]

The respondent gave birth to another child, with a different father,
    two weeks before the trial in May 2006.  She and her three children were living
    with her parents.  Marriage to the father of the child seemed unlikely, although
    he was helping her financially.

[11]

Because of the over-riding importance of the child care issue, with
    which the restraining order is interwoven, I will consider those two issues
    before embarking on a discussion of the property issues.  I will conclude
    with the child support order.

The Child Care Regime

[12]

The trial judge granted the respondent sole guardianship and sole custody
    of the parties two children.  He ordered specified overnight access on alternate
    weekends, and one week during each of Christmas vacation, Spring break, the
    month of July and the month of August.  Those visits were confined to British
    Columbia within a 50-mile radius of the respondents municipality of residence,
    and the respondent was ordered to have possession of the childrens passports.
     The trial judge ordered that the pick-up and drop off of the children was
    to be supervised by a person approved by the respondent in writing until at
    least September 2006, and gave the appellant liberty to apply to remove that
    provision if the parties had not agreed to do so before the end of that month.
    The trial judge also continued the restraining order, precluding the appellant
    from entering the property where the respondent is residing or communicating
    with her except by specified means for the purpose of facilitating his access
    visits with the children.  Before the order was entered, the trial judge heard
    and rejected the appellants application for reconsideration of the custody
    and access orders.

[13]

The respondent had wanted the court to restrict access to supervised,
    non-overnight visits, the arrangement that had been in place since the orders
    of January 2005.  The appellant had sought joint custody and joint guardianship
    with the childrens time divided equally between their two parents on an alternate
    week basis.  He understood this arrangement would mean he and the respondent
    would have to live in the same neighbourhood.

Character of the Appellant

[14]

The essence of the trial judges reasoning is found in paras. 6-9 and
    24-31 of his reasons.  The trial judge chronicled what the appellants counsel
    calls character evidence in determining whether joint custody and guardianship
    were appropriate.  Included were references to the appellants mood disorder
    and depression, pornographic material, inappropriate language, involvement
    in marijuana grow operations, alleged suicidal behaviour, and unusual fascination
    with the Hells Angels.  The appellant does not suggest there was no evidence
    to support the trial judges findings.  Rather, he says, that evidence was
    inflammatory, highly prejudicial and of little probative value, should not
    have been admitted and should have been excluded from his consideration.

[15]

The problem with this submission is that, as the record reveals, when
    the respondent was testifying about some of the most controversial of the
    husbands alleged behaviour, the trial judge questioned its relevance.  He
    allowed the questions after he was persuaded the respondent was explaining
    why she feared what the father might do in a fit of anger, that the father
    was a danger to himself and that he might remove the girls from Canada.  That
    was a legitimate reason for admitting the evidence.

[16]

As for the appellants complaint that the trial judge gave this character
    evidence too much weight, the record and his reasons suggest otherwise.  His
    reasons demonstrate he was alert to the possibility, even likelihood, that
    the respondent was exaggerating and over-reacting.  He said so in his reasons
    (at para. 17).  He rejected some of her evidence (at paras. 19 and 21).
     He saw none of it as decisive.  He had the benefit of Dr. Englands report
    that suggested the respondents personality type was consistent with over-reaction
    and exaggeration.  But he also had Dr. Englands report of the appellants
    uncontradicted history of conflicted familial relationships, and there was
    support for some strange behaviour on his part from other witnesses.  That
    the trial judge did not give much weight to the character evidence is also
    evident from the overnight visits he ordered in the face of the respondents
    testimony, the recommendation for mediation of the need for supervision of
    the exchanges, and the order giving liberty to apply to withdraw that condition
    for access.

[17]

After reviewing all the testimony and exhibits to which the appellant
    referred this Court on the custody and access issue, including Dr. Englands
    report and the affidavits on the fresh evidence motion, I have reached the
    view the trial judges orders were appropriate, given the parents relationship,
    the girls ages, the fact they had not stayed overnight with their father
    for 18 months, and the exchange difficulties.

[18]

The evidence is overwhelming that these two parents could not communicate
    sufficiently to permit them to co-parent two young girls.  That inability
    to communicate, regardless of the reason giving rise to it, precluded an order
    for joint custody at the time of the trial, and made joint guardianship problematic.
     At the ages of 7 and 4, where access had been specified and restricted to
    daytime visits twice a week for 18 months, the staged process for increasing
    access recommended by Dr. England was entirely reasonable.

[19]

The trial judge, like Dr. England, saw that the relationship with their
    father was important to the girls and needed nourishment by the mother and
    to be fostered by the court.  The mother agreed the father had never been
    physically violent with them, and she did not think he would be.  She simply
    worried he might do something inappropriate, given the volatility of his behaviour,
    worse since leaving the home, and the nasty difficulties during some access
    visit exchanges.

[20]

Custody and access orders are not set in stone for all time.  Children
    grow older and more independent.  Parents form new relationships and their
    previous relationship settles down as they come to accept the new reality
    and see that their children continue to love, depend on and need both of them.
     Despite their parents conflicts, both children have enjoyed a good start
    to their new circumstances.  The court-appointed expert, Dr. England, saw
    the children with both parents and was highly complimentary of both of them.
     Somehow these parents, despite their interpersonal conflicts, are doing a
    good job of putting their children first in their lives.

[21]

As both counsel recognized, this Court rarely interferes with a child
    care regime put in place by a trial judge.  It may do so only when there is
    a material error, a serious misapprehension of the evidence or an error in
    law:
Hickey v. Hickey
, [1999] 2 S.C.R. 518,
Van de Perre
    v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014.  The trial judge has
    the advantage this Court can never have.  He has seen and heard the parents
    and in this case members of their extended families and friends.  In this
    case, I could find no basis in the record to set aside the custody and access
    orders, to make a different order or to direct a new trial.  The appellants
    counsel could point to no omission that would give rise to the reasoned belief
    that the trial judge must have forgotten, ignored or misconceived the evidence
    in a way that affected his conclusion:
Van Mol (Guardian ad litem
    of) v. Ashmore
, 1999 BCCA 6, 168 D.L.R. (4th) 637, leave to appeal
    to S.C.C. refused, [2000] 1 S.C.R. vi.

Conduct of Appellants Trial Counsel

[22]

As I reviewed the record, I kept in mind the submissions of counsel
    about the failures of the appellants trial counsel and the trial judge.  I
    am satisfied the appellant received a fair hearing from the trial judge, and
    I am not persuaded  that failures on the part of trial counsel departed significantly
    from objective norms of conduct in family cases and affected the result.  So
    I need not consider whether the principles with regard to conduct of counsel
    in criminal and child protection cases should be extended to cases of child
    custody and access, other than to note that a trial judge who has reasonable
    grounds for believing that one or both parties may not be advancing a childs
    best interests has the inherent jurisdiction as
parens patriae
to ensure
    he can make a proper enquiry into those interests.

[23]

No trial is perfect; resources of time and money are always limited.
     Strategic decisions must be made.  Failures are most easily seen in hindsight.
     Counsel, with the assistance of the court-ordered s. 15 psychological evaluation,
    put before this trial judge a sufficient picture of the childrens circumstances
    to permit a fair decision as to a care regime that would be in their best
    interests among those available at the time of the trial.

Admission of Fresh Evidence

[24]

Before I came to this conclusion, I also read and considered the potential
    effect of the views Dr. Ancill expressed in his letter to the appellants
    counsel of 1 October 2006, had they been expressed at trial without cross-examination.
     Had he testified to the same effect, the trial judge is likely to have been
    reassured that the appellant was of no danger to himself and to have had a
    better understanding of the effect of his brain injury on his ability to care
    for his daughters.  His reasons would have reflected that understanding.  His
    scepticism about some of the respondents testimony might have been reinforced.
     But I am not persuaded the result could reasonably be expected to have been
    different.

[25]

Thus the letter of Dr. Ancill does not meet the test laid down for
    the admission of fresh evidence in
R. v. Palmer
(1979), [1980]
    1 S.C.R. 759 at 775 or
Cory v. Marsh
(1993), 22 B.C.A.C.
    118, 77 B.C.L.R. (2d) 248 at para. 28.

[26]

For these reasons, I would not admit the letter of Dr. Ancill as evidence
    on this appeal and would dismiss the appeal of the custody and access orders.

The
    Restraining Order

[27]

The appellant complains that the restraining order made under s. 37
    of the
Family Relations Act
restricts his liberty and interferes
    with his childrens right to see him in a free and unfettered way like any
    other children would be able to see their father.  The restraining order has
    minimal effect.  It precludes only contact with the respondent and entry on
    property where she is residing.  That means he must wait off the property
    while the children come from the house to meet him and again while they go
    into the house when he returns them.  The order allows certain e-mail and
    telephone communications necessary to facilitate access visits.

[28]

The appellant asks this Court to set the order aside because the respondent
    did not prove the reasonable apprehension of fear necessary to establish he
    was a risk to her safety, in the absence of any physical assault.  The trial
    judge agreed there had been no direct physical assault of the respondent.
     He was, however, satisfied that the appellant had threatened and intimidated
    the respondent and that his conduct on occasions involving access visits
    has been inappropriate.  There was evidence to support that finding.  It
    may be that the risk the judge found to be real has by now diminished such
    that the order is no longer necessary.  If so, the appellant can seek to have
    the order set aside on a new application to the Supreme Court.  As stated
    by Madam Justice Rowles in
C.R.H. v. B.A.H.
, 2005 BCCA 277 at
    para. 27 the proper course for the challenge of the order on the basis of
    events subsequent to the order is a variation application.

I would
    not set the restraining order aside.

Property
    Issues

Currency/Coin
    Collection

[29]

The appellant alleges the trial judge erred when he found the currency/coin
    collection to be a family asset.  The trial judge did not explain his finding.
    The appellant testified he had been putting the collection together over seven
    years for the children.  The respondent agreed he had told her that.  Neither
    said it was the childrens property.  The intention to keep an asset for the
    children is undoubtedly a family purpose and qualifies the collection as a
    family asset.  The only real issue for the judge was to determine what to
    do with it.  Since the parties could not agree and the only evidence of its
    value was the respondents guess, it is not unremarkable the trial judge made
    the order he did.  The trial judge gave the appellant two weeks from the date
    of judgment to elect to accept the respondents guess as to the value of the
    collection.  Failing that, the collection was to be delivered to the respondents
    solicitor to be sold, and the proceeds were to be divided equally between
    the parties.  On the appellants application for reconsideration, the judge
    extended the time for the appellant to exercise his option and adjourned the
    reconsideration on this issue.  Consequently, the final order provided that
    the appellant has liberty to apply to reconsider this term of the Order and
    to review the disposition of the coin/currency collection.  I would not interfere
    with that order.  The issue remains open for resolution by the trial judge.

Reapportionment

Appellants
    Credit Card debt

[30]

Each party finds error in the trial judges treatment of their debts
    upon separation.  Not surprisingly, their debts were substantial, the appellant
    having been unable to work and contribute to the familys support in any significant
    way for the five years preceding the triggering event.  The trial judge found
    that a CIBC Visa and Home Depot debts (approximately $46,000 in total) were
    incurred for the benefit of the family, and there is no dispute with this
    finding.  However, the trial judge also found that the additional debts to
    Capital One ($25,000) and MBNA Mastercard ($14,387.24), were incurred by the
    appellant for a family purpose and not for his personal purposes.  The respondent
    cross-appeals this finding.

[31]

While the trial judge did not explain precisely why he was persuaded
    the Capital One and MBNA Mastercard debts had been incurred for a family purpose,
    they were incurred before the parties separated and, as the trial judge noted
    at para. 38 of his reasons [t]he parties were heavily in debt due primarily
    to the total lack of earning capacity of the defendant following his accident.
    The respondent testified these cards had consolidated debts from the CIBC
    card.  Additionally, the respondent acknowledged she had bought a Nikon camera
    on the appellants direction using one of the cards, and that one of the cards
    had been used to pay for their last and most expensive trip to Antigua.  In
    these circumstances, I see no reason to interfere with the trial judges finding
    of fact, nor with his order that the parties share the payment of those debts
    equally.  Consequently, I would dismiss the cross-appeal.

Money from Respondents Family

[32]

Beginning in 2004, the respondent turned to her parents and brother
    for help to maintain the family residence and lifestyle.  She testified that
    she borrowed money from her mother in 2004 to help with living expenses, food
    and clothing ($3,940) and for the older daughters school tuition ($2,400).
    In 2005, the amounts were significantly higher totalling $27,968.85.  They
    included $8,000 for tax arrears and $7,628 for mortgage arrears, Telus and
    Rogers bills, the Bay, other cheques and cash.  The respondent testified that
    at least some of the money from her brother was used to pay her half of the
    cost of Dr. Englands s. 15 report.

[33]

The trial judge was entitled to accept the evidence of the respondent
    and her mother that the amounts advanced from the respondents family were
    loans, and not gifts.  He fixed the debt at $34,308.85.  With the exception
    of the funds advanced by the brother to cover the cost of Dr. Englands s.
    15 report, there can be no question the proceeds were used for family purposes.
     As the family had been doing for years, they were living beyond their income
    on borrowed money.  I would not interfere with the trial judges order that
    the loans from the respondents family be shared equally and paid from the
    proceeds being held in trust except that I would deduct one half of the cost
    of Dr. Englands report from the amount that was fixed as the total debt by
    the trial judge.  Dr. Englands report is a court cost.  The appellant should
    not be required to pay any portion of that cost by way of a reapportionment
    of family assets.

Proceeds of sale of family residence

[34]

Fortunately, the parties had sufficient equity in the family residence
    when it was sold in December 2005 to permit payment of their debts and leave
    about $90,000 to be divided between them.  The appellant finds error in the
    trial judges reapportionment of those trust monies 2/3 to the respondent
    and 1/3 to him.  The trial judge explained his reasoning at paras. 51-52 of
    his reasons for judgment:

51
    There will be an unequal re-apportionment of the asset balance held in trust
    that remains from the proceeds of the sale of the matrimonial home in favour
    of the plaintiff to reflect in particular the provisions of Section 65 (1)
    (e) and (f) of the
Family Relations Act
.  There was an unequal contribution
    to the original acquisition of the matrimonial home weighing in favour of
    the plaintiff.  The plaintiff has had the burden of payment of the mortgage
    and taxes since the plaintiff's accident in October 2000.  It falls to the
    plaintiff to assume the burden of finding adequate replacement accommodation
    for the parties' children and to continue their primary care.  The defendant
    has paid no child maintenance nor spousal support since separation.

52
    The $90,530.41 balance of the proceeds remaining in trust from the sale of
    the matrimonial home, net of the payment of family debts I have allowed, will
    be apportioned two-thirds to the plaintiff and one-third to the defendant.

[35]

The appellant considers this to be a veiled means of providing retroactive
    spousal support that he is not and would never have been required to pay because
    of his inability to work and his modest disability income since separation
    in contrast with the respondents greater income-earning capacity.  He raises
    his need to provide a suitable home for the children to meet the conditions
    of the access order.  Further, he submits it was a mistake for the trial judge
    to consider the expenses of maintaining the family residence in 2005 because
    the appellant has contributed to their payment by being required to share
    equally the amount the respondent paid for tax and mortgage arrears (about
    $15,000).  The appellant also argues that the trial judge erred in not considering
    the respondents failure to pay occupation rent for living in the house in
    2005.  Furthermore, he considers there should have been no allowance for the
    respondents contribution of pre-cohabitation savings to the purchase of the
    home given the length of the marriage and the equal nature of their partnership.
     Finally, while the appellant does not mention the possibility of settling
    his ICBC claim, particularly for past income loss, he suggests that the possibility
    of the respondents marriage to the father of her third child should have
    been considered.

[36]

The onus is on the party seeking reapportionment to establish that
    the mandated equal division is unfair at the triggering event which, in this
    case, was the date of the divorce order 21 November 2005.  The ultimate question
    for the trial judge was whether equal ownership of this particular family
    asset was unfair, and if it was, what reapportionment would be necessary to
    make the division fair, having regard to the disparity of contribution and
    the comparable needs to become and remain self-sufficient.  Because the errors
    I identify below may have affected the trial judges determination of both
    those questions, this court must determine whether an equal division would
    be unfair and if so how that unfairness might best be remedied on the facts
    of the case as the trial judge found them.

[37]

The trial judges finding that both parties are and can remain self-sufficient
    does not neutralize s. 65(1)(e), as the appellant would have this Court hold.
    But it does suggest a more comprehensive analysis of the needs of both parties
    is required.  That analysis often begins with the standard of living the parties
    enjoyed during marriage.  These parties lived above their means right up to
    the triggering event, together and separately, borrowing heavily to do so.
    The analysis in this case must begin with their means or their potential means
    to remain self-sufficient while fulfilling their obligations to their children.

[38]

The significant factor the trial judge identified in reapportioning
    the net proceeds from the sale of the family residence is the respondents
    need to provide the primary home for the children.  What is missing in the
    trial judges analysis is a weighing of the respondents need to provide the
    childrens primary home with the appellants need to acquire accommodation
    better suited to weekend and longer visits with his daughters.  This should
    have been considered not only in light of their respective incomes but also
    in light of their income-earning capacities as best they could be determined
    in November 2005.  When the trial judge came to consider the issue of child
    support, he determined the appellants annual income to be a minimum amount
    of $22,200, an amount he expected would increase.  He had earlier found the
    respondent capable of working full-time, with an earning capacity of about
    $55,000 annually.

[39]

In reapportioning the proceeds of the sale of the family residence,
    the trial judge did not err in considering that the appellant failed to financially
    assist the respondent in 2005.  The appellants failure to pay any child support
    when he was earning income is a factor that affects the respondents ability
    to remain self-sufficient.  Nor did the trial judge err in considering that
    the respondent bore the burden of maintaining the family residence in 2005
    including the payment of mortgage and property taxes in that year.

[40]

However, the trial judge did err in failing to consider that the respondent
    paid these expenses with loans from her family.  The order requiring the appellant
    to bear an equal share of these loans goes a considerable distance toward
    removing the weight to be given to the lack of financial assistance to the
    respondent during that year.  And any remaining weight is fully removed given
    that the respondent had the benefit of living in the family residence without
    paying rent during 2005.

[41]

As well, the trial judge did not err in taking into consideration the
    disparity of contribution to the acquisition of the family residence.  There
    is evidence to support the finding that the respondent contributed more than
    the appellant to the purchase of the family residence in April 1999.  While
    the significance of a difference in contributions made from pre-cohabitation
    savings diminishes as the years of marriage pass, the importance of the respondents
    contribution of the RRSP she had acquired before the parties began cohabiting
    was not totally diminished when they divorced less than seven years later
    after over a years separation.  While that disparity in itself would not
    justify a finding of unfairness and a consequential reapportionment, the trial
    judge did not err in considering it in his overall fairness assessment.

[42]

However, in my view, any benefit the appellant received from the respondents
    greater contribution to the purchase of the family residence in 1999 was offset
    by the benefit the respondent received from the use of the proceeds of the
    family loans in 2005.

[43]

The trial judge found both the appellant and the respondent can support
    themselves.  If the appellant pays the support required to be paid under the
Federal Child Support Guidelines
and the order of the trial
    judge, the respondents needs as the primary caregiver of the children will
    be met.  The appellant need not be deprived of his interest in the major family
    asset to assure the respondent is able to remain self-sufficient and not required
    to deplete her modest capital to support the children on her own. The child
    support order can be secured by the retention of the appellants interest
    in the family residence in trust until such time as the trial court is persuaded
    security is no longer required.

[44]

In summary, in my view, the trial judge erred in his exercise of the
    discretion granted to him by s. 65 by failing to include in his analysis:
    the appellants need to accommodate the children during visits in light of
    his lesser earning capacity; the effect of the order that the appellant be
    equally responsible for the family loan to the respondent; the benefit the
    respondent enjoyed from the rent-free use of the family residence; the benefit
    the respondent received from the use of the proceeds of the family loans in
    2005; and the ability of the child support order to ensure the respondents
    continued self-sufficiency.

[45]

For these reasons, I would set aide the reapportionment order and substitute
    for it an order that the parties are each entitled to one-half the net proceeds
    of the family residence.  Additionally, I would order that the appellant's
    share be held to provide security for the payment of child support.

Child Support

[46]

There is ample evidence to support the trial judges finding that the
    appellant was earning a minimum of $22,200 annually and was capable of continuing
    to earn at least that amount without including the benefit he was receiving
    by way of free rent in exchange for work being done for his landlord.  The
    child support order should reflect the amount required to be paid by the
Federal
    Child Support Guidelines
based on that income.  I can see nothing
    in the evidence to suggest he was entitled at that time to any reduction on
    the basis of hardship.  As circumstances change, both parents are entitled
    to seek a variation of child support.  The new evidence relevant to the hardship
    issue contained in the affidavits the appellant seeks to have admitted may
    be relevant on such applications.

[47]

I would affirm the trial judges order that the appellant pay $350
    per month to the respondent for child support, commencing on 1 June 2006 and
    monthly thereafter on the first day of each month.

Conclusion

[48]

In summary, I would deduct one half of the cost of Dr. Englands report
    from the shared debt to the respondents family, dismiss the fresh evidence
    motion, set aside the order reapportioning the trust funds, order the appellants
    share to be held as security for the payment of future child support and otherwise
    dismiss the appeal.  If counsel cannot agree on an appropriate security order
    that will minimize costs of its implementation, they may address the terms
    and conditions in written submissions.

[49]

In view of the divided success, I would make no order as to costs.

The
    Honourable Madam Justice Huddart

I agree:

The Honourable Chief Justice Finch

I agree:

The Honourable Madam Justice Prowse


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Karas
          v. Canada (Minister of Justice and Attorney General),

2009
          BCCA 1

Date: 20090107

Docket: CA032316

Between:

Michael
    Joseph Charles Karas

Applicant

And

The
    Minister of Justice and the Attorney General of Canada

Respondent

Before:

The
          Honourable Mr. Justice Hall

The
          Honourable Mr. Justice Low

The
          Honourable Mr. Justice Bauman

G.
          Orris, Q.C.
C. Bauman

Counsel for the Applicant

T.
          Beveridge
M. Namazi

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

15 October 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

7 January 2009

Written
          Reasons by
:

The
          Honourable Mr. Justice Hall

Concurred
          in by:

The
          Honourable Mr. Justice Low

The
          Honourable Mr. Justice Bauman

Reasons
    for Judgment of the Honourable Mr. Justice Hall:

[1]

The applicant Michael Karas seeks judicial review of the decision of
    the Minister of Justice that he be surrendered to Thailand to be tried for
    the killing Ms. Suwannee Ratanaprakorn in Thailand on 23 or 24 September 1996.
    Mr. Karas and Ms. Ratanaprakorn were married or in a marriage-like relationship.
    There is evidence that the applicant caused the death of the victim at a hotel
    in Pattaya, Thailand, where they were residing together at that time.  There
    also exists evidence that he cut up her body and disposed of her body parts
    in a swampy area located not far from the area of the hotel.  The torso of
    the victim was never located but her head, arms and legs were recovered by
    police officers on 24 September 1996.  The applicant flew to Canada from Thailand
    on 25 September 1996.  On 27 September 1996, after the recovery of the body
    parts of the victim, Thai authorities issued an arrest warrant alleging that
    the applicant, then using the name of Morgan, had intentionally murdered Ms.
    Ratanaprakorn.  Murder is an offence that can be punishable by death in Thailand.
    Of course the applicant could not be arrested on the warrant because he had
    fled to Canada.  Only if he is extradited from Canada will he be prosecuted
    for the Thailand homicide.

[2]

Canada and Thailand are extradition partners under the
Extradition
    Act
, S.C. 1999, c. 18 (the
Act
), as a result of the
Treaty between the United Kingdom

and Siam Respecting
    the Extradition of Fugitive Criminals
, 4 March 1911, U.K.T.S. 1911
    No. 23 (the
Treaty
).  The
Treaty
was entered
    into force for Canada on 24 November 1911.  The
Treaty
obliges
    the parties, pursuant to Art. 1, to deliver up fugitive criminals for any
    of the offences listed in Art. 2.  This list includes murder and manslaughter.

[3]

On 3 October 1996, the applicant was arrested in Vancouver for a matter
    unrelated to the homicide.  He was discovered at this time to be a parole
    violator and he was committed to prison to complete a custodial sentence.
    He has been in custody in Canada since that date, serving time originally
    for Canadian offences and, more recently, as a result of these extradition
    proceedings.  The present proceedings originated in July 1997 when Thailand,
    by diplomatic note, requested the extradition of the applicant from Canada.
    In October 1999, a Canadian extradition arrest warrant was issued for the
    applicant.  It was served on the applicant on 25 October 1999 while he was
    in custody in Canada, serving time for Canadian offences.  Various packages
    of materials related to the requested extradition were forwarded to the Canadian
    authorities by Thai authorities between June 1997 and December 1999.

[4]

An authority to proceed against the applicant was issued by the Minister
    on 9 August 1999, pursuant to s. 15 of the
Act
.  The original
    authority listed only the crime of murder, but this was amended during the
    proceedings before the extradition judge, Mr. Justice Lysyk, to include the
    crime of manslaughter.  On 1 June 2001, in reasons for judgment indexed as
    2001 BCSC 799, Lysyk J. committed the applicant for surrender on the charge
    of manslaughter, as set out in the amended authority to proceed.  He said:

[45]
    I conclude that a properly instructed jury, having regard to the evidence
    as a whole, could not reasonably draw an inference that the evidence establishes
    the requisite mental state for the offence of murder.

[46]
    The requirements of s. 29(1)(a) of the
Act
having been satisfied with
    respect to the offence of manslaughter, an order of committal to await surrender
    will issue.

[5]

Some background of how this matter came to this Court is set forth
    in the earlier reasons in
Karas v. Canada (Minister of Justice and Attorney
    General
), 2007 BCCA 637, 233 C.C.C. (3d) 237:

[4]
    Mr. Karas has applied under s. 57 of the

Act
for judicial
    review of the surrender order of the Minister of Justice dated 2 September
    2005, together with the Ministers subsequent letter dated 20 April 2007,
    which confirmed the Ministers order surrendering him to Thailand.  The surrender
    order which is at issue on the review application permits Thailand to proceed
    with a charge of murder.

[5]
    The judicial review application is prompted by the fact that the Ministers
    order of surrender was without condition as to the charge or penalty when
    the committal order made by Mr. Justice Lysyk was for the non-capital offence
    of manslaughter, and the fact that the Minister issued the surrender order
    without a written assurance from Thailand that if Mr. Karas is prosecuted
    for the offence of murder, the death penalty will not be imposed if he is
    convicted.

[6]
    The points put forward by Mr. Karas on the judicial review application, in
    the order they were advanced in argument, are as follows:

Ground 1:
    That the Minister violated the Applicants rights under s. 7 of the
Charter
    of Rights and Freedoms
by ordering the surrender of the Applicant for
    extradition on the alleged conduct of the Applicant pursuant to s. 58(b)
    of the
Extradition Act
, which form of order allows the requesting state
    to charge, try and convict the Applicant for murder when the requesting state
    could not satisfy the extradition hearing judge that there was evidence capable
    of supporting such a charge.

Ground 2:
    That the Minister acted without jurisdiction in ordering the surrender of
    the Applicant for extradition on the alleged conduct of the Applicant pursuant
    to the
Extradition Act
, which form of order allows the requesting state
    to charge, try and convict the Applicant with murder when the requesting state
    could not satisfy the committal hearing Judge that there was evidence capable
    of supporting such a charge.

Ground 3:
    That the Minister violated the Applicants rights under s. 7 of the
Charter
    of Rights and Freedoms
by ordering him to be surrendered to face a charge
    of murder in Thailand without first obtaining assurances from the requesting
    state that the death penalty will not be imposed or, if imposed will not be
    carried out.

[7]
    It is the respondents position that the three grounds of review put forward
    by Mr. Karas should be restated as follows:

Issues
    1 and 2:  Dual criminality:  Is the surrender order of the Minister supported
    by the committal order of the extradition judge or does surrender with reference
    to the conduct found to be criminal by the extradition judge deprive the applicant
    of the protection of specialty?

Issue
    3:  Is the applicants case a death penalty case, and if it is, does it fall
    within the exception set out by the Supreme Court of Canada in
United States
    of America v. Burns
, [2001] 1 S.C.R. 283, such that surrender of the applicant
    without assurances is constitutionally compliant?

[6]

This Court allowed the application for judicial review on 24 December
    2007, and the matter of the surrender of the applicant was returned for reconsideration
    to the Minister.  The case was thereafter sought to be appealed to the Supreme
    Court of Canada.  On 12 June 2008, the Supreme Court of Canada gave the following
    direction:

The
    application for leave to appeal from the judgment of the Court of Appeal for
    British Columbia (Vancouver), Number CA032316, 2007 BCCA 637, dated December
    24, 2007, is remitted to the Court of Appeal of British Columbia for reconsideration
    in accordance with the standard of judicial review articulated in
Talib
    Steven Lake v. Canada (Minister of Justice)
(31631).

[7]

It therefore now falls to this Court to act on the direction from the
    Supreme Court of Canada.

[8]

In
Lake v. Canada (Minister of Justice)
, 2008 SCC 23,
    [2008] 1 S.C.R. 761, 292 D.L.R. (4th) 193, the Supreme Court held that the
    applicable standard for a court reviewing a ministerial decision concerning
    extradition ought to be reasonableness.  Formerly, a number of decisions in
    this Court, including the earlier decision of this Court in
Karas
,
    had posited a correctness standard for the review of a ministerial decision
    on extradition, including alleged
Charter
violations.  Mr. Justice
    LeBel found this to not be the appropriate standard.  He said this:

[40]      The appellant also pointed
    to several decisions of the British Columbia Court of Appeal in which the
    Ministers assessment of a fugitives
Charter
rights and of whether
    extradition would be unjust or oppressive within the meaning of s. 44(1)(
a
)
    of the
Extradition Act
was reviewed on a correctness standard:
Stewart
    v. Canada (Minister of Justice)
(1998), 131 C.C.C. (3d) 423;
United
    States of America v. Gillingham
(2004), 184 C.C.C. (3d) 97;
United
    States of America v. Maydak
(2004), 190 C.C.C. (3d) 71;
United States
    of America v. Kunze
(2005), 194 C.C.C. (3d) 422;
Hanson v. Canada (Minister
    of Justice)
(2005), 195 C.C.C. (3d) 46;
United States of America v.
    Fordham
(2005), 196 C.C.C. (3d) 39;
Ganis v. Canada (Minister of Justice)
(2006), 216 C.C.C. (3d) 337.  In
Stewart
, the first case in which a
    court held that the appropriate standard was correctness, Donald J.A.
    expressed the concern that [i]f deference were accorded [the Ministers]
    assessment of the constitutional validity of [his] own act then I believe
    that judicial review would be unacceptably attenuated (para. 18).  With respect,
    this concern is misplaced.  It rests on an incorrect understanding of
    the Ministers role in assessing the interests at stake in the extradition
    context.  It is also inconsistent with this Courts jurisprudence on
    the judicial review of extradition decisions.

[9]

He also observed at para. 34 that [r]easonableness is the appropriate
    standard of review for the Ministers decision, regardless of whether the
    fugitive argues that extradition would infringe his or her rights under the
Charter
.  He made reference to the case of
Dunsmuir v. New Brunswick
,
    2008 SCC 9, [2008] 1 S.C.R. 190, 291 D.L.R. (4th) 577, as explanatory of the
    reasonableness standard.

[10]

A recent judgment of this Court,
Investment Dealers Association
    of Canada v. Dass
, 2008 BCCA 413, made reference to the principles
    set out in
Dunsmuir
.  Smith J.A. said:

[19]
    Reasonableness is a deferential standard reflecting respect for legislative
    choices to leave some matters for the decision of administrative tribunals
    using their processes, and drawing on their particular expertise and experiences
    (para. 49).  Thus,
Dunsmuir
explained at para. 47,

. . . certain questions that come before administrative
    tribunals do not lend themselves to one specific, particular result.  Instead,
    they may give rise to a number of possible, reasonable conclusions.  Tribunals
    have a margin of appreciation within the range of acceptable and rational
    solutions.  A court conducting a review for reasonableness inquires into the
    qualities that make a decision reasonable, referring both to the process of
    articulating the reasons and to outcomes.  In judicial review, reasonableness
    is concerned mostly with the existence of justification, transparency and
    intelligibility within the decision-making process.  But it is also concerned
    with whether the decision falls within a range of possible, acceptable outcomes
    which are defensible in respect of the facts and law.

[20]
    On the other hand, correctness is a more exacting standard of review.  Of
    this standard, the majority in
Dunsmuir
stated at para. 50,

. . . it is . . . without question that the standard
    of correctness must be maintained in respect of jurisdictional and some other
    questions of law.  This promotes just decisions and avoids inconsistent and
    unauthorized application of law.  When applying the correctness standard,
    a reviewing court will not show deference to the decision maker's reasoning
    process; it will rather undertake its own analysis of the question.  The analysis
    will bring the court to decide whether it agrees with the determination of
    the decision maker; if not, the court will substitute its own view and provide
    the correct answer.  From the outset, the court must ask whether the tribunal's
    decision was correct.

[21]
Dunsmuir
also provides guidance for the identification of jurisdictional
    questions.  Jurisdiction is now to be given a narrow interpretation for
    purposes of determining whether a question under review is jurisdictional.
    As explained at para. 59,

Jurisdiction
    is intended in the narrow sense of whether or not the tribunal had the authority
    to make the inquiry.  In other words, true jurisdiction questions arise where
    the tribunal must explicitly determine whether its statutory grant of power
    gives it the authority to decide a particular matter.  The tribunal must interpret
    the grant of authority correctly or its action will be found to be
ultra
    vires
or to constitute a wrongful decline of jurisdiction . . .

[11]

It is first necessary, as observed in para. 62 of
Dunsmuir
,
    for a reviewing court to determine whether the jurisprudence has already
    determined in a satisfactory manner the degree of deference to be accorded
    with regard to a particular category of question.  As noted previously, the
    standard of review of a ministerial decision concerning the surrender of a
    fugitive to an extradition partner is now generally to be a standard of reasonableness
    as was determined by the Supreme Court in
Lake
.  There is no
    need to consider the second step in para. 62 of
Dunsmuir
as
    the jurisprudence has already defined the degree of deference for this category
    of question.

[12]

In its earlier decision concerning this applicant, this Court found,
    at para. 73, that ministerial decisions on issues of law, including alleged
    violations of the
Charter
, should be reviewed on the standard
    of correctness.  The Court observed, at para. 85, that the real issue was
    the Minister's jurisdiction under the
Act
to permit surrender on different
    terms than those supported by the committal order.  As noted previously,
    the order made by Lysyk J., after the committal hearing, was that the applicant
    Karas should to be committed for surrender on the offence of manslaughter
    as set out in the amended authority to proceed.  The Minister, after receiving
    submissions on behalf of the applicant, determined that the applicant should
    be surrendered on the conduct described by Judge Lysyk in his reasons in
    support of committal, dated June 1, 2001.  In the result, he was ordered
    surrendered to face prosecution on the murder charge extant in Thailand, where
    he would be liable to conviction on that offence or some lesser offence.
    The prosecution would be on the facts related to the killing of Ms. Ratanaprakorn.

[13]

The
Act
provides as follows in s. 3(1)(b) and s. 3(2):

3 (1) A person may be
    extradited from Canada in accordance with this Act and a relevant extradition
    agreement on the request of an extradition partner for the purpose of prosecuting
    the person or imposing a sentence on  or enforcing a sentence imposed on
     the person if

(
b
) the conduct
    of the person, had it occurred in Canada, would have constituted an offence
    that is punishable in Canada,

(i)
    in the case of a request based on a specific agreement, by imprisonment for
    a maximum term of five years or more, or by a more severe punishment, and

(ii)
    in any other case, by imprisonment for a maximum term of two years or more,
    or by a more severe punishment, subject to a relevant extradition agreement.

(2) For greater certainty, it is not relevant whether
    the conduct referred to in subsection (1) is named, defined or characterized
    by the extradition partner in the same way as it is in Canada.

[14]

As may be observed from the earlier reasons of this Court (see paras.
    36-57 of
Karas
), there was a certain measure of confusion in
    the communications between Thai officials and Canadian officials as to what
    charge the applicant could face in Thailand for the alleged homicide.  Ultimately,
    the Thai officials advised the Minister that they could not amend the charge
    in Thailand from murder to manslaughter once laid, in the absence of new evidence,
    nor could they fetter the discretion of the Thai court to impose the death
    penalty.  The Court noted:

[49]
    In a letter to counsel for Mr. Karas dated 2 September 2005, the Minister
    set out the additional information which he had obtained as a result of these
    meetings with Thai officials:

·

In the absence of new evidence,
    Thai law does not allow a prosecutor to amend a charge once laid;

·

After a murder trial, a judge
    may convict on the lesser included offence of manslaughter;

·

Thailand has legislation pending
    before the Thai Parliament to allow them to provide a death penalty assurance
    if requested to do so in the context of an extradition request;

·

A Thai sentencing judge can take
    into account a diplomatic request from Canada that the death penalty not be
    imposed;

·

Since 2000, although there have
    been 318 persons charged with murder in the Pattaya region of Thailand, where
    the applicant is charged with murder, no one, neither Thai national nor foreigner,
    has been sentenced to the death penalty; and

·

When a foreign country has provided
    a diplomatic request seeking clemency from the King of Thailand with respect
    to one of their citizens who has been sentenced to death in Thailand, the
    King has granted a pardon in every case.

[50]
    The letter of 2 September 2005 also explained the reasons behind the Ministers
    changes to the Amended Surrender Order.  The Minister stated that by diplomatic
    note dated 1 September 2005, Thailand had confirmed that while it was unable
    to provide a death penalty assurance in advance of trial, a pardon was traditionally
    granted in cases not involving narcotics.

[15]

Based on the information received from the Thai officials, the Minister
    concluded that it would be appropriate to order surrender of the applicant
    for trial in Thailand because it could not reasonably be anticipated that
    the applicant in fact would face the jeopardy of execution in Thailand if
    convicted of the homicide.  The Minister went on to further conclude that
    even if it could be considered the applicant would face the possibility of
    execution upon conviction, the case could be considered as falling within
    the exceptional circumstances alluded to in
United States v. Burns
,
    2001 SCC 7, [2001] 1 S.C.R. 283, 195 D.L.R. (4th) 1.  The Minister gave the
    following reasons for finding that surrender without assurances would not
    be unjust or oppressive:

·

Canada has no jurisdiction to
    prosecute the applicant for a murder that took place on Thai soil;

·

If the applicant is not surrendered
    he will not be prosecuted for the murder and dismemberment of a young Thai
    woman;

·

A decision not to surrender will
    not only ensure that the applicant will not face justice, but may also promote
    lawlessness on the part of Canadians overseas in death penalty jurisdictions;

·

The chance of the applicant being
    sentenced to death is remote, and there is no real risk that the death penalty
    will be carried out even if imposed;

·

Thailand cannot, rather than
    will not, provide a death penalty assurance;

·

While the Thai government cannot
    provide Canada with a death penalty assurance, the fact that Thai officials
    are able to advise that the King has never refused a pardon, when clemency
    was sought by a foreign government, constitutes an informal assurance; and

·

The Supreme Court of Canada in
Burns
did not expressly rule on whether or not it would be unconstitutional
    to surrender a Canadian citizen without a death penalty assurance in situations
    where such an assurance is not possible.

The
    Minister's surrender order was based on the conduct that supported the applicant's
    committal for surrender on the charge of manslaughter as set forth in the
    amended authority to proceed.  This surrender order resulted in the judicial
    review application before this Court and the Supreme Court of Canada.

[16]

It was noted in the case of
United States of America. v. Ferras;
    United States of America v. Latty
, 2006 SCC 33, [2006] 2 S.C.R. 77,
    268 D.L.R. (4th) 1, that:

[38]
    The inquiry into sufficiency of the evidence to commit for extradition involves
    an evaluation of whether the conduct described by the admissible evidence
    would justify committal for trial in Canada: s. 29(1).  Evidence
    that would justify committal in Canada requires at least some evidence on
    every element of the parallel Canadian crimethe double criminality requirement.
    The judges inquiry is focused on conductwhether the acts disclosed in
    the admissible evidence are criminal in Canada (see
McVey (Re)
, [1992]
    3 S.C.R. 475, at p. 526).

[17]

The task of an extradition judge on a committal hearing is to determine
    whether the conduct involved would constitute a crime in Canada (the so-called
    double criminality requirement).  Goudge J.A. noted in
Canada (Attorney
    General) v. Gorcyca
, 2007 ONCA 76, 216 C.C.C. (3d) 403, that s. 15(3)
    of the
Act
requires that the named Canadian offences [set out
    in the authority to proceed] correspond to the alleged conduct of the person
    sought, not the foreign offences (para. 39) and: the alleged conduct of
    the person sought, had it occurred in Canada, would warrant committal for
    an offence named in the Authority to Proceed (para. 45).

[18]

In
Canada (Minister of Justice) v. Reumayer
, 2005 BCCA
    391 at para. 150, leave to appeal to S.C.C. refused 31072 (December 8, 2005),
    199 C.C.C. (3d) 1, Ryan J.A., after referring to s. 3(1)(b) of the
Act
,
    observed that, as long as the conduct supports a Canadian offence, it does
    not matter what the offence might be or how the constituent elements are described
    in Canada.  The person is liable to extradition.

[19]

In my opinion, it is clear from applicable authorities that it is for
    the extradition judge to decide whether the conduct of the person sought by
    an extradition partner would have constituted an offence under domestic law,
    had the conduct occurred in Canada.  If committal for surrender is ordered
    by the judge, it then devolves upon the Minister to decide whether it would
    be appropriate to surrender the person for trial to the extradition partner.
    Under s. 58(b) of the
Act
, an order of surrender can refer either
    to the offence in respect of which the extradition is requested, the offence
    for which the committal was ordered or the conduct on which the person is
    to be surrendered.  Under s. 40(3) of the
Act
, the Minister
    may seek assurances considered appropriate from the extradition partner, including
    a condition that the person not be prosecuted for any other matter than that
    for which the person is surrendered.

[20]

The reason why one of the three methodologies set forth in s. 58(b)
    should be used arises from the rule of specialty, a key rule in extradition
    matters.  As La Forest J. noted in
R. v. Parisien
, [1988] 1
    S.C.R. 950 at 957, 41 C.C.C. (3d) 223, a fugitive surrendered to a requesting
    state in respect of a particular crime is not to be tried for any other crime
    previously committed without permission of the surrendering state.  To do
    so would violate the contractual nature of the arrangement between states
    that underpins the extradition process.

[21]

Article 6 of the
Treaty
provides:

A person surrendered
    can in no case be detained or tried in the State to which the surrender has
    been made, for any other crime or on account of any other matters than those
    for which the extradition shall have taken place, until he has been restored
    or had an opportunity of returning to the State by which he has been surrendered.

[22]

Section 18(1)(b) of the former
Extradition Act
, R.S.C.
    1985, c. E-23, was as follows:

18(1)  The
    judge shall issue a warrant for the committal of the fugitive to the nearest
    convenient prison, there to remain until surrendered to the foreign state,
    or discharged according to law,

(b)  in the
    case of a fugitive accused of an extradition crime, if such evidence is produced
    as would, according to the law of Canada, subject to this Part, justify the
    committal of the fugitive for trial, if the crime had been committed in Canada.

[23]

Section 25 of that statute was as follows:

Subject
    to this Part, the Minister of Justice, on the requisition of the foreign state,
    may, under his hand and seal, order a fugitive who has been committed for
    surrender to be surrendered to the person or persons who are, in the Minister's
    opinion, duly authorized to receive the fugitive in the name and on behalf
    of the foreign state, and the fugitive shall be so surrendered accordingly.

[24]

The present
Act
has somewhat different provisions.  Under
    s. 29 of the current legislation, an extradition judge makes a decision as
    to whether there is evidence of conduct that, had it occurred in Canada, would
    justify committal for trial in Canada on the offence set out in the authority
    to proceed.  If an order of committal for surrender is made, the Minister
    must then decide whether surrender to the extradition partner with or without
    assurances is appropriate.  The salient provisions are s. 58(b) and (f) which
    provide that an order for surrender must:

58(b)  describe
    the offence in respect of which the extradition is requested, the offence
    for which the committal was ordered or the conduct for which the person is
    to be surrendered; [and]

(f)
     set out any assurances or conditions to which the surrender is subject;

[25]

The present
Act
makes explicit the ability of the Minister
    to surrender an individual on the basis of conduct, which is what was done
    in the instant case.  This appears to accord with the approach in recent years
    of courts in the United Kingdom.  See
In re Nielsen
, [1984]
    A.C. 606, [1984] 2 All E.R. 81(H.L.);
United States Government and others
    v. McCaffery
, [1984] 2 All E.R. 570, [1984] 1 W.L.R. 867 (H.L.).
    The House of Lords in the recent decision of
Norris v. Government of
    the United States of America and others
, [2008] UKHL 16, [2008] 2
    All E.R. 1103, [2008] 2 W.L.R. 673, has come down in favour of the conduct
    test as being the appropriate test under the United Kingdom's statutory regime,
    placing reliance upon the Canadian cases of
McVey (Re)
;
McVey
    v. United States of America
, [1992] 3 S.C.R. 475, 97 D.L.R. (4th)
    193, and
In re Collins
(1905), 11 B.C.R. 436, 10 C.C.C. 80 (S.C.).
    The English legislation contains language similar to our
Act
.

[26]

The reference to conduct in s. 58(b) of the
Act
seems
    entirely consistent with the terminology adopted by Parliament in other sections,
    namely in s. 3(1)(b) and s. 3(2), which also speak of conduct.  As observed
    by the House of Lords in
Norris
at para. 89, the conduct-based
    approach should simplify and expedite extradition proceedings since it avoids
    the need always to investigate the legal ingredients of the foreign offence.
    What has occurred in the instant case may illustrate a lack of simplicity
    and expedition given that the proceedings in Canada have lasted some 11 years
    in duration.  A process that takes so long does not appear to me to be satisfactory.
    Canada and other extradition partners should be able to do better.  The comments
    of La Forest J. in
Canada v. Schmidt
, [1987] 1 S.C.R. 500 at
    524, 39 D.L.R. (4th) 18, appear to me to be apposite:

I
    would add that the lessons of history should not be overlooked.  Sir Edward
    Clarke instructs us that in the early 19th century the English judges, by
    strict and narrow interpretation, almost completely nullified the operation
    of the few extradition treaties then in existence: see
A Treatise Upon
    the Law of Extradition
(4th ed. 1903), c. V.  Following the enactment
    of the British
Extradition Act, 1870
(U.K.), 33 & 34 Vict., c.
    52, upon which ours is modelled, this approach was reversed.  The present
    system of extradition works because courts give the treaties a fair and liberal
    interpretation with a view to fulfilling Canada's obligations, reducing the
    technicalities of criminal law to a minimum and trusting the courts in the
    foreign country to give the fugitive a fair trial, including such matters
    as giving proper weight to the evidence and adequate consideration of available
    defences and the dictates of due process generally.

[27]

Having reached a decision to surrender a person committed by an extradition
    judge, the Minister must then sufficiently define what the person is being
    surrendered for to the extradition partner in order that the rule of specialty
    will be observed by the requesting state.  In the present case, that requirement
    is met by surrender on the basis of conduct, namely the killing of Ms. Ratanaprakorn
    in September 1996, for which the applicant was ordered to be committed for
    extradition.  There can be no doubt that the applicant may only be tried in
    Thailand for the killing of Ms. Ratanaprakorn.  The fact that the offence
    may be differently described by the requesting state or may attract a different
    penalty appears to me to be not a relevant consideration.  Neither the committing
    court nor the Minister ought to be required to inquire into details of the
    foreign law, save only in one respect which I will deal with presently  namely,
    if prosecution for the foreign crime could involve the imposition of the death
    penalty.  Of course, if the conduct for which a fugitive is sought would not
    amount to an extradition crime in Canada, then neither committal nor surrender
    would be appropriate.  For an example, see
Washington (State of) v.
    Johnson
, [1988] 1 S.C.R. 327, 40 C.C.C. (3d) 546, as explained in
McVey
.

[28]

Applying here the standard enunciated by the Supreme Court of Canada
    in
Lake
to the decision of the Minister to surrender this applicant
    to Thailand, on the basis of the conduct underlying the foreign crime and
    the committal order made by Lysyk J., namely reasonableness as explained in
Dunsmuir
, I consider the decision of the Minister to be supportable.
    The killing of Ms. Ratanaprakorn was a serious crime and the reasons given
    by the Minister in his decision to surrender the applicant appear to me to
    be intelligible, justifiable and within the jurisdiction of the Minister to
    decide.

[29]

The applicant made reference to the case of
Canada (Attorney
    General) v. Fischbacher
, 2008 ONCA 571, a case decided after
Lake
.
    There appears to be a distinction between the case of
Fischbacher
and the instant case, in that it appears that in
Fischbacher
the surrender decision referred to the foreign charge of first degree murder,
    whereas the surrender decision in the present case was on the basis of conduct.
    I would not necessarily want to be taken as agreeing with the case of
Fischbacher
but I need not reach any concluded decision about this because in my view
    that case is distinguishable from the present case as the basis for surrender
    here was different.

[30]

The applicant submits the Minister violated his rights under s. 7 of
    the
Charter of Rights and Freedoms
, by ordering his surrender
    for trial in Thailand without receiving assurances that the death penalty
    would not be imposed upon conviction or, if imposed, would not be carried
    out.  In the earlier decision of this Court, 2007 BCCA 637, it was held that
    the Minister erred in law by ordering surrender without assurances.  While
    it was not explicitly stated which standard was being applied, correctness
    or reasonableness, it appears to me that the previous decision concerning
    assurances was based on a correctness analysis.  The Court said this in the
    course of its reasons:

[139]    On
    appeal, the Supreme Court of Canada held that examination of the death penalty
    issue was most appropriate under s. 7 of the
Charter
.  The extradition
    order, if implemented, would have deprived Burns and Rafay of their rights
    of liberty and security of the person because [t]heir lives [were] potentially
    at risk. (at para. 59)  The issue before the court was whether this threatened
    deprivation was in accordance with the principles of fundamental justice.

[148]
    In my opinion, the standard of review to be applied is correctness.  In this
    case, the Ministers decision to surrender Mr. Karas to Thailand without assurances
    that the death penalty will not be imposed or, if imposed, will not be carried
    out, is one that engages Mr. Karas' rights under s. 7 of the
Charter
.
    In this case, the Minister has made a decision to surrender without assurances.
    Executive decisions that engage the rights and freedoms guaranteed by the
Charter
are reviewed on a standard of correctness (
United States
    of America v. Kwok
, 2001 SCC18, [2001] 1 S.C.R. 532;
United States
    of America v. Gillingham
, 2004 BCCA 226, 239 D.L.R. (4th) 320;
Ganis
    v. Canada (Minister of Justice),
2006 BCCA 543, 216 C.C.C. (3d) 337, leave
    to appeal to S.C.C. refused, [2007] S.C.C.A. No. 111).

[31]

This approach to alleged
Charter
violations by the Minister
    in the extradition context is no longer the applicable standard, as was made
    clear by LeBel J. in
Lake
at para. 40.  LeBel J. went on to
    observe:

[40]      Reasonableness
    does not require blind submission to the Ministers assessment; however, the
    standard does entail more than one possible conclusion.  The reviewing courts
    role is not to re-assess the relevant factors and substitute its own view.
     Rather, the court must determine whether the Ministers decision falls within
    a range of reasonable outcomes.  To apply this standard in the extradition
    context, a court must ask whether the Minister considered the relevant facts
    and reached a defensible conclusion based on those facts.  I agree with Laskin
    J.A. that the Minister must, in reaching his decision, apply the correct legal
    test.  The Ministers conclusion will not be rational or defensible if he
    has failed to carry out the proper analysis.  If, however, the Minister has
    identified the proper test, the conclusion he has reached in applying that
    test should be upheld by a reviewing court unless it is unreasonable.
This
    approach does not minimize the protection afforded by the
Charter
.
     It merely reflects the fact that in the extradition context, the proper assessments
    under ss. 6(1) and 7 involve primarily fact-based balancing tests.  Given
    the Ministers expertise and his obligation to ensure that Canada complies
    with its international commitments, he is in the best position to determine
    whether the factors weigh in favour of or against extradition.

[Emphasis added.]

[32]

As I observed earlier, it appears to me that the Minister was empowered
    by the
Act
with the jurisdiction to decide whether assurances
    were required.  The Minister decided that it would not be unjust or oppressive
    (s. 44 of the
Act
) to order surrender without assurances in
    the circumstances of this case because he concluded that the applicant faced
    no realistic jeopardy of execution should he be found guilty of murder.  In
    my view, this was a reasonable, fact-based conclusion in the circumstances
    of this case.  Since, in my judgment, the order made by the Minister was not
    unreasonable, I would not accede to the argument that the Minister erred in
    making the impugned order for surrender of the applicant to Thailand.

[33]

In view of this conclusion, I do not find it necessary to consider
    whether the Minister was entitled to take the view that this was a case of
    exceptional circumstances of the sort referred to in
Burns
.
    That issue can be dealt with in some future case where it may be necessary
    to do so, but it is not necessary to explore this in the present case.  I
    would dismiss the application for review of the decision of the Minister.

The Honourable Mr. Justice Hall

I
    agree:

The
    Honourable Mr. Justice Low

I
    agree:

The
    Honourable Mr. Justice Bauman