COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Sullivan,

2013 BCCA 32

Date: 20130128

Docket: CA038415

Between:

Regina

Respondent

And

Kathleen
Mary Sullivan

Appellant

Before:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hinkson

On
Appeal from the Supreme Court of British Columbia, June 23, 2010

(
R.
v. Sullivan
, Victoria Registry, Docket Number
148943-2.)

Counsel for the Appellant:

D.J. McKay

Counsel for the Respondent:

T. Stokes

Place and Date of Hearing:

Victoria, British
  Columbia

November 27, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2013

Written Reasons by:

The Honourable Mr. Justice Hinkson  (At page 18, paragraph
  37)

Concurred in by:

The Honourable Mr. Justice Donald

Dissenting Reasons by:

The Honourable Madam Justice Newbury

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

Ms. Sullivan was charged with one count of assault under s.
266 of the
Criminal Code
and one count of mischief under s.
430 in connection with an incident alleged to have occurred outside the
University Club on the campus of the University of Victoria on November 19, 2009.
Ms. Sullivan had attended the campus to serve a writ on the University, from
which she had previously been banned.  She was alleged to have thrown some
papers at the complainant, Ms. St. John, knocking off Ms. St. Johns
eyeglasses, and then to have  ground the glasses into the ground with her foot.
 She was tried in Provincial Court on March 1 and 26, 2010, at which time she
was unrepresented.  She appealed her conviction to
the summary conviction
appeal judge below, Mr. Justice Johnston, who dismissed her appeal for
reasons delivered orally on June 23, 2010 in Supreme Court
Docket
148943-2, Victoria Registry.  She was also unrepresented on
that appeal.

[2]

At para. 18 of his reasons, Johnston J. stated that
there were two principle aspects to Ms. Sullivans appeal.  The first was
whether the Provincial Court judge had made a palpable and overriding error in
her findings of fact and credibility.  Johnston J. was not persuaded that such
error had been shown, stating at para. 19:

This of course was not then, that
is at the trial, nor is it now simply a matter of whose story is to be
preferred, because the obligation on the Crown throughout is to prove its case
beyond a reasonable doubt.  There is some difficulty in that the trial judge
did not specifically deal with whether or not, even if she disbelieved Ms.
Sullivans evidence, that evidence had left her with a reasonable doubt, but
having reminded herself that her task was to determine whether or not the Crown
had proved its case beyond a reasonable doubt, it seems to me that absence is
not sufficient for me to overturn the conviction.

[3]

The second aspect of Ms. Sullivans appeal below was described by the
Court as follows:

There is a second element of this
appeal and that is Ms. Sullivans complaints that the judge was rather too
interventionist in the conduct of the trial.  That is largely in preventing Ms.
Sullivan from pursuing lines of cross-examination, particularly of the
complainant, Ms. St. John, with fairly frequent and I should say interruptive
rulings on relevance.  [At para. 20.]

In this regard Johnston J. said he
had looked through the transcript of the trial and noted various conversations
between the trial judge and Ms. Sullivan concerning what was relevant and what
was not.  He noted that the trial judge had been correct in stating that it was
up to her to rule on relevance whether or not there were objections from a
party or counsel.  He continued:

While, as I have said, some of
the rulings might well be questionable in hindsight, rulings made by a trial
judge in the course of a trial ought not to be weighed so finely as they can be
weighed with the luxury of the time one has on a review of transcript and
argument on appeal.  I am not persuaded that those rulings were so clearly
wrong or that any of the rulings that might have approached questionable status
would, if they had gone the other way, have made any difference whatsoever to
the outcome, that that aspect of the matter should lead me to allow the appeal.
[At para. 22.]

In the result, he dismissed the appeal.

On Further Appeal to
This Court

[4]

Ms. Sullivan was represented on her appeal to this court.  On her behalf
Mr. McKay submits that the summary conviction appeal judge erred in his
assessment of whether the trial judge provided adequate assistance at trial to
Ms. Sullivan as an unrepresented accused, such that she was unable to
bring forward her defence or any defence the proceedings might have disclosed,
resulting in an unfair trial.

[5]

The cornerstone of Mr. McKays submission was this courts decision in
R. v. Moghaddam
2006 BCCA 136.
In that case, Levine J.A. for the Court held that a trial judge had failed to
assist an appellant in putting forward his defence and indeed had effectively
precluded the defence by ruling that his evidence of bias on the part of a
police officer was irrelevant.  (Para. 46.)  The Court did not accede to a
further argument that the trial judges failure to make explanatory remarks to
assist the appellant at the opening of the trial had resulted in unfairness.
Citing and adopting the reasons for judgment of Fruman J.A. in
R. v.
Phillips
2003 ABCA 4,
aff'd
2003 SCC 57, Levine J.A. observed:

Whether the trial of an unrepresented accused is fair,
however, is not determined, as a matter of law, by a single failure to provide
explanations at the opening of the trial about the trial process, the elements
of the offences, cross-examination, or any other aspect of the trial. Nor does
the law require that trial judges provide certain explanations at the beginning
of a trial. This is because, as Fruman J.A. commented (at para. 22):

Perhaps some judges are beguiled by the consistency and
simplicity of boiler-plate language. But trials involving unrepresented
accuseds are rarely consistent or simple. Their need for guidance varies
depending on the crime, the facts, the defences raised and the accused's
sophistication.
The judge's advice must be interactive, tailored to the
circumstances of the offence and the offender, with appropriate instruction at
each stage of a trial
.

Madam Justice Fruman reiterated the principles articulated in
Darlyn, B.K.S.
, and
Parton
(at paras. 23 and 25):

How far a trial judge should go in
assisting an accused is therefore a
matter of judicial discretion
:
McGibbon,
supra
, at p. 347.

...

In cases in which the trial judge's guidance is alleged to
have been inadequate, trial fairness is determined by considering whether the
lack of guidance compromised the unrepresented accused's ability to properly
bring out his defence.  [At paras. 50-1; emphasis added.]

In conclusion
,
the Court in
Moghaddam
stated:

In determining whether an
unrepresented accused has had a fair trial, the overriding question is whether
he has received adequate assistance from the trial judge to bring out his
defence "with full force and effect". In this case, the trial judge
placed restrictions on the content of the appellant's cross-examination of
Crown witnesses and his testimony, and those restrictions precluded the
appellant from effectively putting forward his defence. It cannot be said that
if the appellant had testified as to his version of the events, the outcome of
the trial would have been the same.  [At para. 54.]

[6]

Mr. McKay argues that similarly in the case at bar, the trial judge was
not concerned with assisting the appellant in bringing forward her defence but
was concerned about getting the matter over with in a timely manner.  As for
the judgment of the summary conviction appeal judge, counsel submits that he
did not consider that the trial judge had limited Ms. Sullivans right to
cross-examine (including, counsel says, dismissing witnesses before they
testified); decided which witnesses she was allowed to present to the Court by
denying the appellant an opportunity to have them present; denied her an
adjournment in order to obtain photographic evidence that she wanted to use in
her cross-examination of the complainant; denied her access to a transcript of
the proceedings; moved the matter along when insufficient court time was set
aside for the matter to be heard in the one day originally scheduled; and then
forced her to proceed on the continuation date while denying her the
opportunity to obtain further witnesses that she could not obtain on her own.

[7]

As can be seen below, I am of the view that in the unusual circumstances
of this case, the trial judge conducted the trial fairly and provided adequate
assistance as to the trial process and that this appeal should therefore be
dismissed. In contrast to the situation in
Moghaddem
, the trial judge
here was dealing with an accused who was flippant, wandering, and paid little
attention to the Courts directions.  As became apparent during the trial, she
has a longstanding grudge against the University of Victoria.  Since the
alleged assault, of a university employee, was alleged to have taken place on
campus, she was using the occasion to investigate the motives and actions of
various University employees with whom she had come in contact at various
times, both before and after November 19, 2009.  Any connection these employees
had with the charges against Ms. Sullivan was tenuous at best.

[8]

This was not a case in which an accused who is unfamiliar with the trial
process was unable to put forward her defence.  Rather, this was case in which
an accused was attempting to run away with the trial process, making various
demands that the Court supply items (transcripts, white boards and photographs)
that the judge was not in a position to supply; and trying to turn the trial of
the assault charge made against her into an inquiry into an alleged conspiracy
on the part of the University.  Clearly, Ms. Sullivan was entitled to question
the credibility of the witnesses called against her or to suggest that a
conspiracy existed.  But finding herself unable to discover evidence of such a
conspiracy, she embarked, or attempted to embark, on an uncontrolled fishing
expedition.  In my view, the trial judge, after giving Ms. Sullivan a
certain amount of leeway, rightly prevented her from pursuing avenues of
inquiry that were clearly leading nowhere and from holding the trial process
hostage to her personal whims.

[9]

I will provide a few examples which I have taken from the transcript.
The first witness at trial was the complainant Ms. St. John, who was
the Director of Ceremonies and Events for the University.  She was examined in
chief by Crown counsel as to the events of November 19, 2009, when she had
noticed Ms. Sullivan outside the entrance to the Club, where the President
of the University, Mr. David Turpin, was expected to attend an event in the
late afternoon.  Ms. St. John testified that she asked Ms. Sullivan
if she could help her, and that Ms. Sullivan said she was waiting for Dick
Turpin to arrive and wanted to serve some papers on him.
Ms. St. John testified that she told Ms. Sullivan that the President
was not coming that evening (in fact he was), and offered to give him a message
for Ms. Sullivan.  Ms. St. John testified that Ms. Sullivan
became angry and began shouting at her, raised a sheaf of papers up in front of
her face, hitting Ms. St. John on the left cheek, knocking off her
glasses.  Ms. Sullivan then stepped on the glasses, breaking them.  Ms. St. John
said she was left with a scratch on her cheek (of which the Crown adduced
photographic evidence).

[10]

Ms. St. John went inside the Club, asked someone in the
managers office to call security, and was told that they had already been
called.  She testified that the glasses cost about $1,000 to replace, which was
paid by the University.

[11]

Ms. Sullivan began her cross-examination of the witness beginning with
Are you familiar with this fabled character, Pinocchio?  The trial judge
interrupted to say that she gathered Ms. Sullivan was not trained as a lawyer.
Ms. Sullivan said that was correct, but that she did watch a lot of television.
The judge told her this was her opportunity to ask specific questions that
relate to the evidence this witness has given, or ... other relevant areas ...
with respect to the charges that she was facing.  Ms. Sullivan responded by
asking the trial judge if it was an appropriate time for the Court to caution
the witness what the penalty is for perjury.  The trial judge replied that
Canadian courts dont do that and the cross-examination resumed.

[12]

Ms. Sullivan asked questions about Ms. St. Johns previous
jobs.  One of these had been with a local art gallery, leading Ms. Sullivan to
ask if most arts organizations receive government grants.
Ms. St. John answered yes, they did from both provincial and federal
governments.  When Crown counsel objected that the witnesss employment history
was not the subject of the matter being tried, Ms. Sullivan replied:

THE ACCUSED:
Oh.  I need to know the back -- her background because
I'm -- I need to figure out why she's making these false allegations,
and not just a false allegation of assault but expounding on it with a
fabrication of a -- of a story.  So I do want to know -- I
want -- and -- and because I have a lawsuit against the
provincial government, I've been in a lot of hot water with a lot of the people
that I've dealt with in the system that are -- have some funding from
government, like hospitals --

THE COURT:  Ms. Sullivan, the --

THE ACCUSED:  -- charities.

THE COURT:  She
has given you her general background and in my view, that's what you're
entitled to know.  You needn't ‑‑ there's no necessity
for what I have to decide for any further probing into this woman's background
as far as her employment goes.

THE ACCUSED:  Okay.

[13]

Ms. Sullivan then returned to question the witness about the job she
held at the University, how she had got it and whether it had been advertised
in the newspaper.  The following exchange then took place:

Q         ...
Now, you say that you saw me -- oh.  I want you to visualize
the --actually, I should have asked for a board where I could draw
the -- the --

THE COURT:  What's your question?

THE ACCUSED:

Q         The question is, I want you to picture the
university when you walk in the door and --

THE COURT:  Of the University Club?

THE ACCUSED:

Q         Of the University Club.

A          Yes.

Q         And I've been there three times, very, very, very
briefly.

THE COURT:  Go ahead.

THE ACCUSED:  I don't feel comfortable with people in the
courtroom.

THE COURT:
Unfortunately, courtrooms are public places and people can be in the courtroom.

THE ACCUSED:
Could we ask them if they would mind leaving and if they don't want to leave
they can stay?  Could we ask that, because I'm very sensitive to UVic people
sitting in on my hearings.

THE COURT:  I'm not going to ask these
people to leave, Ms. Sullivan.  It's a public courtroom.

[14]

After an extended discussion about the physical set-up of the University
Club layout (in the course of which Ms. St. John drew a diagram), Ms.
Sullivan said she was not comfortable at all with ... this set up here and
photographs have to be taken for accuracy ... I cannot agree on the map shes
written according to my memory of it.  The trial judge told her that it was
not necessary for her to agree with anything the witness said and that at the
end of the day she, Ms. Sullivan, would have the opportunity to give evidence
if she chose to do so.

[15]

Ms. Sullivan nevertheless asked for an adjournment.  The judge refused
and Ms. Sullivan objected that the Crown had not supplied photographs, because,
she said, every scene of ... an assault, an alleged assault or a crime, they
take photographs.  I was expecting photographs.  After further discussion and
a short adjournment, Crown counsel suggested that two maps be filed, one drawn
by the witness and one drawn by Ms. Sullivan.  The Court permitted both to be
filed as exhibits, with the accused going on record to say that I dont
understand her map at all.  Id like that to go on the record.

[16]

Ms. Sullivan then questioned the witness about what other people had
been in the Club at the time of the alleged assault, whether invited guests had
arrived for the event, and what Ms. St. John had been doing before
she had gone outside and seen Ms. Sullivan, all in considerable detail.  On
several occasions, she interrupted the witness from giving her answers.  The Court
warned her to wait for an answer to be completed before asking her next
question.  The following exchange took place:

Q         Why didn't you have an umbrella then?

A          Because
I was standing underneath the main canopy, it was protected from the rain.

Q         Actually, it wasn't raining.

A          It was --

Q         It stopped.

A          It was pouring with rain.

THE ACCUSED:  It
stopped.  I remember that.  It had stopped by the time I walked --

THE COURT:  Ms. Sullivan --

THE ACCUSED:  -- from the admin building.

THE COURT:  -- you're not giving evidence.

THE ACCUSED:  Okay.  I -- I'd like a bathroom
break, please.

THE COURT:  Well,
it's time to have the afternoon break, in any event.  Ms. Sullivan, Crown
has three witnesses and a fourth that apparently you have asked to be here.  We
only have until 4:30.

THE ACCUSED:  Well, we've got tomorrow.

THE COURT:  Unfortunately, the courts are all booked, well in
advance.

THE ACCUSED:  Oh well,
we'll -- a little bit of overtime won't hurt anybody.

[17]

When the cross-examination of Ms. St. John resumed, Ms.
Sullivan went into painstaking detail regarding Ms. St. Johns
statement that campus security had already been called by the time she
(Ms. St. John) went inside and asked for them to be called.  The
Court pointed out that the acting manager had to be called to answer the
questions, and told Ms. Sullivan that her questions about what time the President
had arrived, and what time the event ended were not relevant.  The following
exchange is typical of several pages of questions and answers:

Q         And
then you -- I would like to now know because I don't know now, you
were never asked the chain of events when you officially made a complaint.
That --

THE COURT:  It's not relevant.

THE ACCUSED:

Q         -- we've not covered that.

THE COURT:  It's not relevant.

THE ACCUSED:

Q         And who you officially made the complaint to?

THE COURT:  It's not relevant.

THE ACCUSED:

Q         Are you married?

THE COURT:  It's not relevant.

THE ACCUSED:

Q         How much are they paying you to give this false
evidence?

THE COURT:  Not relevant.  It's an improper question.

THE ACCUSED:

Q         So --

THE COURT:  Do not answer --

THE ACCUSED:

Q         -- do you intend to stay in Canada?

THE COURT:  Not
relevant.  Do you have any relevant questions for this witness?

THE ACCUSED:  Well, they're all relevant as far as I'm
concerned.

THE COURT:  I'm the one who makes that decision.

THE ACCUSED:

Q         Do you have a criminal record?

A          No, I don't.

Q         Would you like one?  Because you've
told so many lies here today you're well on the way to perjury --

Eventually the trial judge told Ms. Sullivan she could ask
one more relevant question, which she did, and the witness was stood down.

[18]

Crown counsel advised the Court that since identification did not seem
to be an issue, she did not intend to call two of the witnesses she had
anticipated calling.  In response to Ms. Sullivans question as to who those
witnesses were, the trial judge explained that the prosecutor had decided she
did not require the two witnesses but she is quite prepared to call the
witness you wanted and Im going to allow her to do that.  Mr. Brewer, the bar
manager at the Club, was called and described his dealings with Ms. Sullivan on
November 19.

[19]

In cross-examination, Ms. Sullivan first asked him to tell the Court
how we first met and led him through a description of an incident earlier in
November 2009 when she had taken a poppy and later returned to pay something
for it.  The trial judge found it necessary to interrupt Ms. Sullivans
questioning to remind her that Mr. Brewer was the witness, not Ms. Sullivan,
and that she would have an opportunity at the end of the day should you decide
to give evidence.  Ms. Sullivan said she did not understand my being blocked
from a non-hostile witness who could speak as to the nature of our encounter.
The judge explained that having Mr. Brewer on the stand was not her
opportunity to give evidence.  Again, Ms. Sullivan said she did not
really understand but Ill carry on and if you ... you can object again if
you dont like the line of questioning.  At the end of her cross-examination,
Ms. Sullivan said that all she had wanted to establish was that there was no
anger or hostility in that hallway for the few minutes that you and I
inter-reacted.  The witness agreed.

[20]

Crown counsel advised the Court she did not intend to call further
witnesses, whereupon Ms. Sullivan objected that a Cst. Graham was to have been
called and that she wanted to call him.  When the trial judge asked if she was
going to take the stand herself, Ms. Sullivan said she thought she needed legal
advice and was being railroaded.  After some comments on her part about the
pack of lies she had heard in court, Ms. Sullivan confirmed that she wanted
legal advice and the Court adjourned to permit this to occur.

[21]

The trial resumed more than three weeks later, on March 26.  Early in
the day, scheduling for the day was discussed.  Ms. Sullivan asked if the trial
judge anticipated the trial would end that day and was told it
would
end
that day.  Ms. Sullivan said she wanted to recall Ms. St. John.
After the morning recess, Ms. Sullivan confirmed that she was acting on
her own behalf and requested a transcript of Ms. St. Johns
evidence.  She said she wished to apply for indigent status in order to get the
transcript without paying for it.  Further, she said:

THE ACCUSED:  Yes.  I intend to -- I'm
prepared to go ahead this morning, but I will be adjourning to recall [Ms.] St.
John, and I want the security people from the University of Victoria here, and
I want -- the woman I served the writ to, I want her here and the security
officers that were there at the time I served the writ.  So I've still got a
bit of work to do.  Of course it's restricting for me because I can't go on
campus and deliver.

[22]

The Court asked why she wished to recall Ms. St. John and Ms.
Sullivan replied that Shes perjured herself in this action.  She said she
also wanted to call the security people from the University who were present
when she had served her writ (on a Ms. Wormsley) before she had gone to the
University Club on November 19.  As well, she said, she wished to call a Ms.
Eastman, the university secretary, who had advised Ms. St. John to
report the assault.  Crown counsel said she was having some difficulty with
the relevance with most of the proposed evidence since it had preceded the
assault, and that she did not take issue with the fact that Ms. Sullivan had
served a document on the University on the day of the alleged assault.

[23]

At this point, the trial judge ruled against Ms. Sullivans three
applications.

[24]

Two further witnesses were called ‒ Cst. Graham, whose first
involvement in the case had been on the day after the alleged incident when
Ms. St. John had reported the assault to him, and Cst. Prill, who had
encountered Ms. Sullivan in the university cafeteria after the incident.  He
had been called by staff when Ms. Sullivan refused to leave the cafeteria.
Cst. Prill had had a conversation with her about the incident and recalled what
she had told him.  At one point, Ms. Sullivan interrupted him and said:

Q         Well, unfortunately your memory
is a little vague, so I'm going to have to add your partner's name to the list
of people that I want to talk to on this matter, Birtwistle, because I believe
that if I did discuss anything with you, it would've been the fact that I had
just served a writ on the university and that I tried to serve it on the super
-- president, but was unable to do so, because I wanted to embarrass him at
this conference.

[25]

When Ms. Sullivan asked the witness whether she had at that time
mentioned anything about an assault, the trial judge interrupted to advise her
that it was not in her best interests to ask that question.  The witness was
excused.

[26]

Ms. Sullivan decided to testify.  The Court conducted her examination in
chief, taking her through the events at the University Club on November 19.
Ms. Sullivan testified that she had been trying to serve the President of the University
with a writ that day and had been told by officials at the administration
building that he was not there.  She declined to leave the writ with them.  She
testified that she then went up to the second floor and was approached by a
woman who said she was the Provost and would take the writ.  Ms. Sullivan testified
that she gave it to her and then headed downstairs when she noticed a sign
indicating that the President was giving some kind of function at the
University Club.  Still having a copy of the writ in her handbag, she headed to
the Club and asked two ladies outside if David Turpin was there yet and was
told he was not.  She encountered the bartender, Mr. Brewer, who said the
President had not arrived yet.  She said she decided not to hang around, but went
to use the bathroom before she left.  She then headed outside, where she saw a
woman holding a clipboard.  She asked this woman if she was waiting to greet
Dick Turpin or David Turpin and was told that he was not coming and had
cancelled.  She testified that although she did not believe this, she did not
want to waste any more time at the Club and proceeded to the Cadboro Cafeteria,
where Cst. Prill eventually spoke to her.

[27]

In cross-examination, Ms. Sullivan was asked if the woman with the
clipboard was Ms. St. John.  Ms. Sullivan said she had not recognized her
at all and in fact never saw her full face.  She insisted that she had decided
not to hang around waiting for the President and that in any event she had
had her fun at the administration building.  Although she testified she had
not had a conversation with the complainant, she also testified soon after that
she, Ms. Sullivan, had told the woman with the clipboard that she just
wanted to serve [the President] this but had already served it in admin.
Later in the summary conviction appeal hearing, she described a conversation
very similar to the conversation described by Ms. St. John in her
testimony, but said she had then simply walked away.

[28]

In response to the Crowns questions at trial, Ms. Sullivan absolutely
denied striking Ms. St. John in the face and knocking off her
glasses.  The following exchange then took place:

Q         And then she had a conversation
with you in an attempt to get you away and offered you a cup of tea and gave
you some money for a cup of tea.

A          The woman's a liar, and I want
to know motive.  That's what I'm interested -- that's why I want to investigate
this woman.  There's got -- but I believe the motive is that the campus -- they
wanted me off campus.  I've got notes here where I overheard a conversation
with the security while they were chasing me all over the campus on the 10th of
September, and I stood in an open window and heard them laughing and planning,
"It's been fun and we get paid for it."

THE COURT:  This is what date?

A          The 10th of September.

[29]

In her closing submissions, Ms. Sullivan spoke briefly again about the
incident in September previously adverted to, in which she had overheard a
conversation at 4:00 a.m. between a couple of security men.  There was no
apparent connection between this conversation and the alleged assault.  Crown
counsel then made her submissions before the trial was adjourned.  The trial
judge prepared her reasons, which were delivered orally on the same day.

[30]

It is fair to say that the trial judge was concerned on the first day
with finishing the trial in the time that had been allotted.  As long as the
fairness of the trial did not suffer as a result, a judge should not be
criticized for this.  Judges in the Provincial Court of British Columbia are
under the pressure of very heavy workloads and must necessarily be conscious of
time limitations.  Ms. Sullivan seemed to be under the impression that she
could request an adjournment at any time for any reason and that it would be
granted.  The adjournments Ms. Sullivan requested ‒ one to obtain
photographs of the University Club building and one to obtain a transcript of
Ms. St. Johns evidence ‒ were ones that most trial judges
would not grant at the late stage they were made.  It was far from clear how
the layout of the University Club building was relevant to Ms. Sullivans
claims that there was a conspiracy against her at the University and that
Ms. St. John had fabricated her testimony.  The request for a
transcript and for the recalling of Ms. St. John on March 26 were
simply too late and Ms. Sullivan had been allowed considerable latitude in
cross-examining the complainant.

[31]

Nor do I think the trial judge acted unreasonably in moving the matter
along when insufficient time was set aside for the matter to be heard
originally as Mr. McKay contended.  The trial judge was naturally
reluctant to have to adjourn the trial at the end of the first day, but
ultimately she did so and reconvened on March 26.  Mr. McKay submits in
addition that Ms. Sullivan was forced to proceed on that date and denied
the opportunity to obtain witnesses that she could not obtain on her own.  It
is not, of course, for the court to obtain witnesses.  As will be seen from
some of the quotations above, Ms. Sullivan simply listed off all the University
personnel she could think of and said she wanted to examine them.  She did not
indicate how the evidence of any of them would be relevant to the charges
before the Court, as opposed to her on-going differences with the University
itself.  Again, the trial judge gave her considerable latitude in the
questioning of Mr. Brewer and the two constables, both with respect to events
before and after the alleged assault took place.

[32]

With respect to Mr. McKays submission that the judge dismissed witnesses
before the appellant had finished cross-examining them (and here I understand
from her factum that counsel is referring to the complainant), Ms. Sullivan did
not have an absolute right to cross-examine on irrelevant matters for as long
as she wished.  The relevance of her questions was not apparent, even if one
assumes a conspiracy.  When asked by Johnston J. on the first appeal to explain
their relevancy, Ms. Sullivan replied:

THE ACCUSED:
Well, she kept -- she -- I was digging.  I was digging, and she
kept saying, It's not relevant, but I wanted to dig and dig and find out the
motive for this woman fabricating this incident.  That was the reason why I was
asking her questions.

I wanted to ask her questions,
for example, on the fact that she -- the victim made big, big -- a
big deal about being -- living in Nova Scotia and being given this
wonderful job in Victoria working at the museum, I believe it was.  But she
only stayed at this wonderful job for six months and then she took another
wonderful job and only stayed there a few months and then she -- then she
came to the university, and I wanted to say, "Why would you come all the
way from Nova Scotia to Victoria for this wonderful job and only stay six
months?"  These were the kinds of things I wanted this woman to answer.

[33]

When pressed further, she replied that Ms. St. John and the police had
been suckered into laying charges.  Eventually, after more questions from the
conviction appeal judge, she said she could not remember now exactly what was
on [her] mind when she was asking the questions regarding the complainants
past and whether she intended to stay in Canada.  Her explanation for inquiring
about the complainants chain of command was that the complainant must have been
told something about Ms. Sullivan to have fabricated this little scenario.
In the course of this submission to the Court, she claimed not to have received
disclosure from the Crown of Ms. St. Johns statement to the police, but then
acknowledged she had received the statement, but had expected it to be
handwritten.

[34]

In general terms, it must be said that while a trial judge must ensure a
fair trial, there are limitations on how far a court must go in assisting an
unrepresented accused.  Such an accused cannot expect simply to come to court
on the trial date and expect the court to summon witnesses whose names pop into
her head on that date, or to adjourn the proceedings anytime she requests it.
Considerable time and resources are devoted by the state to trial scheduling
and trials should proceed when scheduled if at all possible.  While it is true
that the trial judge in this case might have realized at an earlier time that
this trial would go into another day, this fact did not make the trial unfair.

[35]

With respect to my colleagues concerns about the trial judges limiting
Ms. Sullivans cross-examination of Cst. Graham, I cannot agree that in
the circumstances of this trial (including what had transpired before this
point) this amounted to a failure to provide the accused with a fair trial.
She was entitled to a fair trial, but not to an unlimited enquiry into each and
every matter that she found to be of interest.  Nor, with respect, do I agree
that had the trial judge not asserted that this witnesss evidence was
irrelevant, there was any realistic possibility the result of the trail would
have been different.

[36]

In all the circumstances, I am not persuaded the appellant did not
receive a fair trial or that the summary conviction appeal judge erred in dismissing
the appeal from the order of the court below.  I would dismiss the appeal.

The Honourable Madam Justice Newbury

Reasons for Judgment of the Honourable
Mr. Justice Hinkson:

[37]

I have had the privilege of reading the draft reasons for judgment of
Madam Justice Newbury in this case. While I agree with much of my colleagues
analysis, I am, with respect, unable to agree with the conclusion that she
reached.

[38]

Like my colleague, I recognize that trial judges face a difficult task
with some self-represented litigants, and in particular some self-represented
accused, in ensuring that such individuals receive sufficient assistance in
bringing out their defences. The Crown in this case properly concedes that the
assistance by the trial judge of an unrepresented accused is part of the
judges larger duty to ensure trial fairness.

[39]

In
R. v. Parton
, 24 W.C.B. (2nd) 642, [1994] B.C.J. No. 2098 at
paras. 7 and 16, Ryan J., as she then was, observed that trials conducted by
lay litigants can often be much longer than those where counsel is present, and
can try the most patient of judges. Madam Justice Ryan also commented that such
litigants must, however, be assisted by the Court to ensure that their defence
is brought out in full force and effect. She referred to the decision of this
Court in
R. v. Darlyn
(1946), 88 C.C.C. 269, [1947] 3 D.L.R. 480
(B.C.C.A.) at 482, where Mr. Justice OHalloran, for the majority, wrote:

... if the accused is without
counsel, the Court shall extend its helping hand to guide him throughout the
trial in such a way that his defence, or any defence the proceedings may
disclose, is brought out to the jury with its full force and effect.

[40]

How far a trial judge should go in assisting an accused is a matter of
judicial discretion, and does not require the judge to become the advocate for
the accused (
R. v. McGibbon
(1988), 31 O.A.C. 10, 45 C.C.C. (3d)
334 (Ont. C.A.) at paras. 32, 37).  While there is a minimum level of
assistance that is required in order to ensure that the accused has a fair
trial (
R. v. Tran
(2001), 55 O.R. (3d) 161(Ont. C.A.) at para.
31), the level of assistance required by the accused will vary with each trial,
depending on factors such as the offence charged, the facts, the defences
raised and the sophistication of the accused (
R. v. Parton
,
supra
at para. 33;
R. v. Phillips
, 2003 ABCA 4, at para. 22).

[41]

In
R. v. Moghaddam
, referred to by Madam Justice Newbury, the
appellant had been charged with dangerous driving and wanted to challenge the
credibility of one of the arresting constables by establishing that the
constable was biased against him.  He was prevented from cross-examining that
witness on events which occurred both before and after the incident leading to
the charges. The trial judge ruled that the appellant could not cross-examine
the constable on the incidents because they were not relevant to whether or not
he was guilty of dangerous driving. On appeal, Levine J.A. allowed the appeal
and ordered a new trial.  At para. 46 she wrote:

In this case, the trial judge not
only did not assist the appellant in putting forward his defence, she
effectively precluded it by ruling irrelevant the appellants evidence of bias
on the part of Constable Siddiqui. For that reason alone, I would allow the
appeal.

[42]

While I agree that the summary conviction appeal judge properly rejected
the appellants submissions that the trial judge erred in dismissing witnesses
before they testified, in denying her adjournment application, in requiring
that she proceed on the continuation date, in rejecting the appellants
submissions that she ought to have been provided with a transcript of the
complainants evidence, in limiting her right to cross-examine, and in refusing
to permit her to recall the complainant on the resumption of the trial, I am of
the view that the summary conviction judge erred in law in failing to find that
the trial judge erred in law by limiting the appellants ability to lead evidence
in her defence.

[43]

My point of departure from the reasoning of my colleague begins with the
conclusions of the summary conviction appeal judge at paras. 19 and 22 of his
reasons, which I repeat for ease of reference:

19        This
of course was not then, that is at the trial, nor is it now simply a matter of
whose story is to be preferred, because the obligation on the Crown throughout
is to prove its case beyond a reasonable doubt. There is some difficulty in
that
the trial judge did not specifically deal with whether or not, even if
she disbelieved Ms. Sullivans evidence, that evidence had left her with a
reasonable doubt
, but having reminded herself that her task was to
determine whether or not the Crown had proved its case beyond a reasonable
doubt, it seems to me that absence is not sufficient for me to overturn the
conviction.

...

22        While, as I have
said,
some of the rulings might well be questionable in hindsight
,
rulings made by a trial judge in the course of a trial ought not to be weighed
so finely as they can be weighed with the luxury of the time one has on a
review of transcript and argument on appeal.
I am not persuaded that those
rulings were so clearly wrong or that any of the rulings that might have
approached questionable status would, if they had gone the other way, have made
any difference whatsoever to the outcome
, that that aspect of the matter
should lead me to allow the appeal.

[Emphasis added.]

[44]

Unlike in
Moghaddam
, there was no improper interference here with
the appellants cross-examination of any of the witnesses called by the Crown.
The issue, as I see it, is whether the trial judge effectively prevented Ms. Sullivan
from putting forward her defence with the full force and effect contemplated
in
Darlyn
.

[45]

The appellants defence at trial was not simply a denial of the
complainants evidence, but was, as described by the summary conviction appeal
judge, that there was or is a conspiracy involving university personnel,
including [the complainant] to cause [the appellant] legal harm ... to achieve
the end of keeping [the appellant] off the University of Victoria campus, and
that the complainant, in the furtherance of that conspiracy, fabricated her
testimony.

[46]

Neither the trial judge nor the summary conviction appeal judge came to
the conclusion that the appellant was sufficiently familiar with the trial
process to be able to put forward her defence without the assistance of the
trial judge, and the interchanges between the appellant and the trial judge, in
my opinion, show that she was not capable of doing so.

[47]

While the she gave Ms. Sullivan some leeway in the presentation of her
case, the trial judge prevented Ms. Sullivan from pursuing avenues that she
considered fruitless. I agree that the trial judge is entitled to prevent the
pursuit of fruitless questioning, but I am unable to agree that that the avenue
of inquiry respecting Ms. Sullivans conspiracy defence was destined to be
fruitless, and am of the opinion that the trial judge did not sufficiently
assist Ms. Sullivan to fully and effectively explore that avenue.

[48]

At the resumption of the trial in this case, after the Crown had closed
its case, the following exchange took place:

THE ACCUSED: Yes.
I intend to -- Im prepared to go ahead this morning, but I will be adjourning
to recall [the complainant], and I want the security people from the University
of Victoria here, and I want -- the woman I served the writ to, I want her here
and the security officers that were there at the time I served the writ. So
Ive still got a bit of work to do. Of course its restricting for me because I
cant go on campus and deliver.

THE COURT: All
right. So I understand you have applications. First of all, youre applying for
a typed transcript of [the complainants] evidence --

THE ACCUSED: Correct.

THE COURT: -- from March 1
st
.

THE ACCUSED: Please, yes.

THE COURT: And youre applying to the court to recall [the
complainant]?

THE ACCUSED: I will.

THE COURT: And is there -- what is your reason for that?

THE ACCUSED:
Well, that is because, you see, she -- shes perjured herself in this action.

THE COURT: And youre going to apply to call --

THE ACCUSED: Indigent state.

THE COURT: -- other--

THE ACCUSED: Oh,
yeah. I want the -- I want the -- I want the security people from the
university that were in attendance when I served the writ on Ms. Wormsley
[phonetic], who I think is the provost at the admin building, which was five
minutes before I went into -- prior to me going into the university.

THE COURT: And --

THE ACCUSED: What that hall is called, the club, the
University Club.

THE COURT: So the security people, and who else?

THE ACCUSED:
Well, I have no way of getting -- oh, Id like to have Julia Eastman here, too,
the university secretary.

THE COURT: And what would that evidence tell the court?

THE ACCUSED: Julia Eastman is the person
who advised [the complainant] to report the assault. That was what I recollect
from the evidence that she gave.

[49]

The trial judge dismissed the appellants various applications, and
directed that the trial proceed. With respect to the appellants application to
call the security people and Ms. Eastman, the trial judge held, at para. 3 of
her ruling on defence applications:

... there is no evidence from
which this court could conclude that either of those classes of people were
present at the alleged incident, and therefore in the view of this court, would
be in a position to provide any relevant evidence ...

[50]

Ms. Eastmans evidence was potentially relevant to the appellants
conspiracy defence, but without any persuasive submission from the appellant as
to what she might have said, and we received no such submission, I am not
persuaded that the failure to ensure that Ms. Eastman was called as a witness
assists the appellant.

[51]

When the trial resumed, the appellant did lead the evidence of Constable
Graham, the police officer who arrested her the day after the complainant
alleged that she was assaulted. She asked him if he had any notes of his
discussion with the complainant on the day after the assault, to which he
responded in the affirmative. The trial judge interrupted the officers
evidence and the following exchange occurred:

THE COURT:  Ms.
Sullivan, I am wondering, given that this officer was not involved until a day
later, what the relevance of his evidence is.

THE ACCUSED: Well, if youll let me get to it, maybe we can
find out.

THE COURT:  No, just tell me. Tell me what the relevance is.

THE ACCUSED:
Well, the relevance is that this whole thing is a lie. The whole scenario is a
lie and its very difficult to ask the questions to uncover a lie or a bunch of
lies. Thats what makes -- thats what makes court so difficult. People dont
come in and tell the truth.

THE COURT: My
concern is what the relevance is of anything that this witness can say. He was
not present at the alleged incident and he was not involved until the following
day. I just want you to tell me what evidence you expect to get from this
witness that is relevant to my decision.

THE ACCUSED: Well, something convinced him that he needed to
arrest me.

THE COURT: Well, perhaps you can
ask him why he arrested you.

[52]

I am not satisfied that counsel, acting reasonably would ask such an
open-ended question, even when questioning a witness in chief, and the
appellant did not. The question as proposed by the trial judge would not have
assisted the appellant in establishing what she was attempting to prove, that
the whole thing is a lie and part of a greater conspiracy against her. The
appellant did, however, resume her questioning of the officer:

THE ACCUSED: So
what did Ms. St. John tell you? Oh, how long did you meet? How long was your
meeting with her?

[53]

The appellant did not receive an answer to her first question in that
series, but before she returned to that question, the following exchange took
place:

THE COURT: ... You were going to ask why he arrested you.

THE ACCUSED: You
see, Im running into the same problem that I ran into before. You interrupt
too much. You -- you dont let me ask what I need to do.

THE COURT: Its
my -- its my duty to control the courtroom and to ensure that relevant
questions are asked and answered because if its not relevant, its not
admissible.

THE ACCUSED: But thats relevant according to what you think.

THE COURT: And Im the one --

THE ACCUSED:  Since its --

THE COURT:  -- in charge.

THE ACCUSED:
Yeah, but the point is whats relevant to me may not be relevant to you.

THE COURT: Thats exactly right, and therefore its not
admissible.

THE ACCUSED: Oh, okay.

[54]

I agree with the summary conviction appeal judge that some of the
rulings [of the trial judge] might well be questionable, but, more importantly,
in my opinion, the appellant was not given sufficient assistance by the trial
judge to enable her to put forward her own defence with full force and effect,
and her articulated defence was not so put forward.

[55]

Although she asked some further questions, the appellant never returned
to the content of Cst. Grahams notes or his discussion with the complainant
the day following the assault.

[56]

In order to provide the appellant with the appropriate helping hand to
guide [her] throughout the trial the trial judge should have provided some
guidance to the appellant to focus her questions on matters relevant to her
conspiracy defence.

[57]

To exacerbate her failure to properly assist the appellant, the trial
judge found that the complainant had no reason to fabricate her allegation of
the assault that she alleged.  The failure on the part of the trial judge to
assist the appellant in putting forward her defence coupled with her comment
that she questioned the relevance of anything that Ms. Eastman or Cst. Graham
might be able to say may well have dissuaded the appellant from pursuing a
basis upon which to cause the trial judge to question whether the complainant
had a reason to fabricate her evidence and thus cause her to question whether
the Crown had proven the charges against the appellant beyond a reasonable
doubt.

[58]

I conclude that the summary conviction appeal judge erred in failing to
recognize that the trial judge did not guide the appellant to bring out her
defence with its full force and effect, and that his conclusion that the
outcome of the trial would not have differed had she done so, cannot be upheld.

[59]

I would therefore allow the appeal and order that there be a new trial
of the charges against the appellant.

The Honourable Mr. Justice Hinkson

The Honourable Mr. Justice
Donald


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Van Dyke,

2013 BCCA 33

Date: 20130128

Docket: CA040305

Between:

Regina

Respondent

And

Bradley
Jay Van Dyke

Appellant

Before:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice A. MacKenzie

On judicial review
from: British Columbia Court of Appeal (Chambers),
November 2, 2012 (
R. v. Van Dyke
, 2012 BCCA 464, Docket CA040305)

Counsel for the Appellant:

R.C.C. Peck, Q.C. and
A. Cheon-Hayes

Counsel for the (Crown) Respondent:

F. Tischler

Place and Date of Hearing:

Vancouver, British
  Columbia

January 14, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2013

Written Reasons by:

The Honourable Madam Justice MacKenzie

Concurred in by:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Chiasson

Reasons for Judgment of the
Honourable Madam Justice MacKenzie:

[1]

Mr. Van Dyke applied for bail pending his appeal from conviction,
pursuant to s. 679 of the
Criminal Code
.  On November 2, 2012,
Madam Justice Saunders, in chambers, dismissed his application.  The Crown
agreed Mr. Van Dykes appeal was not frivolous and that he established his
likely surrender into custody pursuant to a bail order.  However, the
Crown opposed bail on the basis Mr. Van Dyke had not demonstrated his
detention was not necessary in the public interest.  His application
focussed on that issue.  The judge found there was real substance to
Mr. Van Dykes grounds of appeal, but concluded his release would
tend to undermine public confidence in the administration of justice.

[2]

On December 20, 2012, Chief Justice Finch directed a review under
s. 680 of the
Criminal Code
of the order of the chambers judge.

[3]

The issue on the review before this Court is again whether
Mr. Van Dykes detention is necessary in the public interest.
For the following reasons, I would dismiss this application.  In my view,
the chambers judge balanced the relevant criteria and considerations, properly
concluding Mr. Van Dyke had not met the burden of establishing it was
not contrary to the public interest that he be released pending appeal.  I
would not substitute a different opinion for hers.

Background

[4]

Mr. Van Dyke, now 39 years old, and his co-accused, Mr. Gill, were tried
by Mr. Justice Myers and a jury.  On March 23, 2012, they were both
convicted of the following offences:

1.
breaking and entering to commit an indictable offence, namely assault, contrary
to s. 348(1)(b) of the
Criminal Code
;

2.
aggravated assault, contrary to s. 268(2) of the
Criminal Code
;

3.
use of a firearm while committing an indictable offence, contrary to
s. 85(1) of the
Criminal Code
; and

4.
discharge of a firearm with intent to wound, maim, or disfigure, contrary to s.
244(2) of the
Criminal Code
.

The court entered a conditional stay of proceedings on
count 3 due to its similarity with count 4.

[5]

On October 9, 2012, Mr. Van Dyke was sentenced to five years imprisonment,
less 21 months credited for pre-trial custody.

[6]

The chambers judge described the circumstances of the offences as
follows:

[4]
The charges arose out of the break in of a cabin in 2009, occupied by a person
tending a commercial grow operation on behalf of the cabins owner, and the
beating and shooting of the occupant. The occupant testified that on the night
of the attack the two appellants appeared at the cabin. He said he heard some
noise outside the cabin, opened the front door and was struck in the mouth with
a metal bat. The occupant testified that he stepped back and searched for
something to protect himself with, that the two appellants entered the cabin,
that Mr. Gill had a baseball bat and Mr. Van Dyke had a gun, that Mr.
Gill told the occupant to lay on a mattress on the floor, that he did so and
that Mr. Gill started hitting him with the bat, including to his legs and feet.
The occupant testified he managed to get up and flee to the door at which time
Mr. Gill yelled at Mr. Van Dyke to shoot him and Mr. Van Dyke did so, hitting
him in the abdomen, and again in the arm.

[7]

Before trial, counsel agreed to the admission of evidence of Mr.
Van Dykes and Mr. Gills involvement with grow operations to help explain
the Crowns theory of motive and to establish
animus
between the
parties.  Specifically, the Crown sought to adduce evidence of threats
made by Mr. Gill toward the complainant two years before the incident because
Mr. Gill was suspicious that the complainant had stolen from one of the grow
operations they allegedly ran together.  This evidence was not admitted
for the truth of its contents.

[8]

At trial, it was agreed the evidence of the complainant would be subject
to a
Vetrovec
warning (
R. v. Vetrovec
, [1982] 1 S.C.R. 811),
given his extensive criminal record.  Mr. Gill and Mr. Van Dyke
did not testify or call witnesses at trial.  Their position was there was
no physical evidence to corroborate the complainants version of events and he
should not be believed.

[9]

Mr. Van Dyke appeals from his conviction on the grounds the judge erred:

1.
... by failing to provide the jury with any limiting instruction on the use
they could make of the bad character evidence adduced at trial;

2.
... by taking from the jury issues that were not clearly admitted by the
defence at trial;

3.
... by failing to adequately put the defence theory to the jury;

4.
... by failing to provide the jury with an adequate
Vetrovec
warning.

Order of the Chambers Judge

[10]

On October 30, 2012, the chambers judge heard Mr. Van Dykes application
for judicial interim release pending the appeal.

[11]

Section 679(3) of the
Criminal Code
sets out the relevant factors
on an application for bail pending appeal:

(3)  In the case of an appeal referred to in paragraph
(1)(
a
) or (
c
), the judge of the court of appeal may order that
the appellant be released pending the determination of his appeal if the
appellant establishes that

(
a
)
the appeal or application for leave to appeal is not frivolous;

(
b
)
he will surrender himself into custody in accordance with the terms of the
order; and

(
c
)
his detention is not necessary in the public interest.

[12]

The Crown conceded the appeal is not frivolous and
Mr. Van Dyke had shown he will likely surrender himself into custody
under a bail order.  Thus, the only issue before the chambers judge was
whether Mr. Van Dyke had established his detention was not necessary
in the public interest.

[13]

In support of his application, Mr. Van Dyke submitted his grounds of
appeal are strong, his criminal record in the last five years only consists of
one count of driving while prohibited and one count of production of marihuana,
he was on judicial interim release for a considerable period before trial and
sentencing without breaching his terms of release, he has employment if
released, and he would like to visit his terminally ill father who lives in
Ontario.

[14]

The Crown, in turn, contended the grounds of appeal are not as strong as
Mr. Van Dyke suggests, and the circumstances of the offences are
serious.

[15]

The chambers judge found, in oral reasons given November 2, 2012, on one
hand, there is real substance to the grounds of appeal and noted the
circumstances of Mr. Van Dykes father.  On the other hand, however, the
judge was concerned by the violent nature of the offences, the involvement of a
gun, the surrounding circumstances of the drug trade, and
Mr. Van Dykes prior conviction for production of marihuana.
 The judge concluded Mr. Van Dykes release would undermine
public confidence in the administration of justice and dismissed his
application.

Discussion

Standard of Review

[16]

The standard of review under s. 680 was described by Mr. Justice Cumming
for the Court in
R. v. Wu (B.Q.)
(1998), 117 B.C.A.C. 305:

[6]
A review under s. 680(1) of the
Criminal Code
is in the nature of an
appeal on the record and not a hearing
de novo
.
While the reviewing
court exercises an independent discretion and may substitute its own opinion
for that of the single judge under review, it must base its review on the facts
found by the single judge's evaluation of the evidence. It is not necessary
that a reviewing court, before intervening, come to a conclusion that the
decision of the single judge under review was unreasonable or that an error in
principle was committed
....

[Emphasis
added.]

[17]

This Court confirmed this standard of review in later decisions,
including
R. v. Mapara
, 2001 BCCA 508 at paras. 12-13, 158 C.C.C. (3d)
312, and recently in
R. v. Gingras; R. v. Porisky
, 2012 BCCA 467 at
paras. 48-49.

[18]

The reviewing Court may also disagree with the chambers justices
opinion of the ingredients of the statutory criteria such as the seriousness of
the offence and the strength of the grounds:
Gingras
, at para. 49.

Criteria under Section 679(3)

[19]

As stated, s. 679(3) of the
Criminal Code
requires the appellant
to establish: a) the appeal is not frivolous; b) he will surrender
himself into custody in accordance with the terms of the order; and c) his
detention is not necessary in the public interest.

[20]

In
Mapara
at para. 32, Madam Justice Ryan, for the Court, adopted
the analysis in
R. v. Farinacci
(1993), 86 C.C.C. (3d) 32 (Ont. C.A.),
where Madam Justice Arbour held that the public interest criterion in s.
679(3)(c) of the
Criminal Code
requires a balance between the competing
dictates of enforceability and reviewability.  Madam Justice Ryan said:

[34]      I agree with the analyses
in
Farinacci
and [
R. v.

Baltovich
, 47 O.R. (3d) 761
(C.A.)].  Public confidence in the administration of justice requires that
verdicts, properly rendered, be enforced. Where an appellant establishes that
he or she does not pose a flight risk and is unlikely to re-offend, the public
interest also acknowledges that actual punishment for a crime be avoided if
strong grounds exist for setting aside the verdict.

[35]      In [
R. v. Demyen
(1975), 26 C.C.C. (2d) 324 (Sask. C.A.)] when Culliton C.J.S. speaks of the
necessity for the appellant to show something more than the requirements of
paragraphs (a) and (b) of s. 679(3) to establish that his detention is not
necessary in the public interest, he must be referring to the necessity for the
appellant to show that the principle of enforceability is outweighed by that of
reviewability. In my view the strength of the interest of reviewability must
primarily be measured by examining the likelihood of the success of the appeal.
Very strong grounds will tip the scale in favour of reviewability.

[36]
Depending on the demonstrated strength of the grounds, other factors, such as
the circumstances of the offence  for example, pre-meditated violence  and,
inordinate delay will be matters to weigh in the balance. The essential
question, however, will be whether the appellant has been able to establish
that enforceability is outweighed by reviewability.

[21]

In
Gingras
(decided after the chambers judge made her order), a
five-judge division of this Court addressed an inconsistency in our
jurisprudence as to whether the weakness of an appeal is a proper consideration
in the balancing of reviewability and enforceability.  Mr. Justice Donald,
for the Court, said:

[31]
In any event, the controversy, such as it is, can now be laid to rest.
The strength of the grounds of appeal can work both ways.  The merits are
in opposition to the seriousness of the offence; the greater the seriousness of
the offence, the stronger the grounds required to shift the balance from
enforceability to reviewability.  Since the strength of the grounds and
seriousness of the offence are two sides of the same coin, it does not make
sense to say that weak grounds cannot negatively affect a bail application.

[22]

Mr. Van Dyke submits the chambers judge erred by over-emphasizing the
seriousness of the offence, effectively treating it as determinative.
 Mr. Van Dyke says the judge failed to expressly weigh the
seriousness of the offences against the factors that favoured his release,
including the considerable period he spent on judicial interim release without
breaching the terms of his release, his wish to see his terminally ill father,
his employment opportunity, and most importantly, the judges favourable
finding with respect to the strength of the grounds of appeal.  Mr. Van Dyke
characterizes the chambers judges approach as a categorical approach, where
the type of offence trumped all other factors.

[23]

Mr. Van Dyke argues the public interest analysis under s. 679(3)(c)
favours reviewability over enforceability in this case.

[24]

As to the merits of the appeal, Mr. Van Dyke says the grounds of appeal
are strong, as found by the judge.  He also points to his limited criminal
record and the fact he has not been in trouble with the law in the three years
since the convictions under appeal.  Mr. Van Dyke further notes the
extenuating personal circumstance of his dying father whom he wishes to see if
released and permitted to do so by this Court.

[25]

As to the seriousness of the offences, Mr. Van Dyke admits they were
very serious, but says they were not at the most serious end as this is not a
case of murder or attempted murder.  Mr. Van Dyke also takes issue with
the judges concern that the offences occurred in the context of the drug
trade.  He says he was specifically involved in the marihuana industry,
which has been recognized by British Columbia courts as less serious than drug
offences involving more addictive and harmful substances.  Mr. Van Dyke
further notes this Court has recognized that the aggravating factor of a home
invasion covers a wide range of circumstances and the sentencing judge in this
case acknowledged that this factor was attenuated because the complainant was
running a commercial grow operation inside the cabin.  Thus, Mr. Van Dyke
says the nature of the offences in this case does not outweigh the strong
factors in favour of his release.

[26]

The Crowns position is that although the appeal meets the not
frivolous threshold, the impugned jury charge is adequate when viewed in its
entirety and in context.  While the chambers judge found the grounds of
appeal had real substance (para. 17), she did not find they were strong.
 In doing so, the Crown contends the judge made a carefully measured and
nuanced, yet clear, assessment of the strength of the grounds of appeal.
 I agree with the Crown.

[27]

The Crown is also correct, in my view, that the chambers judge did not
apply a categorical approach to the public interest criterion in which the
type of offence trumped any other consideration.  Instead, the judge
properly balanced all the public interest considerations, including the
seriously aggravated circumstances of the offences.  She recognized the
difficult task of a single judge on an application for appeal bail where only a
limited assessment of the merits is either appropriate or possible, based on an
incomplete record and limited submissions.  But her reasons clearly
reflect she considered the reasonably full description of the grounds and counsel
provided her with the jury charge itself.  The following passage
demonstrates her careful and balanced analysis:

[16]      It is always a difficult
task for a single judge who ought not to say too much about the merits of a
case that will be heard by a division of at least three judges, to assess the
merits of an appeal based upon an incomplete record and less than complete
submissions on the merits. However, something needs to be said. I have been
assisted by the reasonably full description of the grounds of appeal provided
by counsel for Mr. Van Dyke and been provided with the jury charge, all
sufficient to be able to appreciate, at least on a cursory level, the substance
of the submissions intended to be made at the hearing of the appeal.

[17]      I am satisfied that there
is real substance to the grounds of appeal, and that they go beyond the modest
description of not frivolous, a consideration that makes the issue of
reviewability somewhat more urgent. I also have in mind the circumstances of
Mr. Van Dykes father.

[18]
On the other side, this is a case involving firearms and personal injury. I am
troubled in this case that the offences were violent, that they involved the
carrying of a gun to the cabin and the discharge, twice, of the gun, that the
surrounding circumstances were involved with the drug trade, and that the
appellant has another conviction in relation to production of marihuana. Given
these considerations, I cannot say that Mr. Van Dykes detention is not
necessary in the public interest. Considering the standard of the ordinary,
reasonable, fair-minded citizen informed of the circumstances of this case, it
seems to me that Mr. Van Dykes release would tend to undermine public
confidence in the administration of justice.

[28]

In my view, the chambers judge properly balanced the competing factors
of reviewability and enforceability, pursuant to
Mapara
as confirmed in
Gingras
.

[29]

I would not substitute a different opinion for that of the chambers
judge.  I have considered all the thorough submissions before this
Court on the strength of the grounds of appeal.  I am not persuaded the
grounds of appeal are strong, although they are not merely not frivolous.

[30]

I disagree with Mr. Van Dykes complaint about the judges concern that
the offences occurred in the context of the drug trade and, given these violent
circumstances, with his submission that the marihuana industry is less serious
than drug offences involving more addictive and harmful substances.  This
case did not involve possession or trafficking in small amounts of marihuana.
 On the contrary, these offences demonstrate the seriously violent culture
of the marihuana production industry, of which the use of firearms is a
ubiquitous aspect.

[31]

Nor, with respect, do I view the home invasion feature of this case as
attenuated by the fact the complainant was running a commercial grow operation
inside the cabin.  This shooting could easily have been fatal.

[32]

In weighing the seriousness of the offences against the strength of the
appeal and Mr. Van Dykes personal circumstances, I must respectfully disagree
with Mr. Van Dyke that the factors in favour of his release outweigh
the nature of the offences in this case.  As the Crown put it, Mr. Van
Dyke shot a fleeing man in the context of the drug trade and in a clearly
premeditated offence.  He also has a recent conviction for production of
marihuana.

Disposition

[33]

This is a serious case of personal injury caused by firearms.  The
offences were violent and connected to the drug trade.  Mr. Van Dyke has a
conviction for production of marihuana.  As in
Gingras
,
enforceability requires strong grounds of appeal (para 60).  As to
reviewability, Mr. Van Dykes personal circumstances, apart from the noted
conviction, include 22 months of complying with terms of bail, which the Crown
at the sentencing characterized as exemplary.  Further, Mr. Van Dykes
father in Ontario has a terminal illness and Mr. Van Dyke wishes to visit him.
 Mr. Van Dyke also has employment if released.  However, in
my judgment, the grounds are not strong enough, even considered with his
personal circumstances, to favour reviewability.

[34]

In the result, I would dismiss this application for review.

The Honourable Madam Justice MacKenzie

I agree:

The Honourable Chief Justice
Finch

I agree:

The Honourable Mr. Justice Chiasson