COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Pacific
                Hunter Resources Inc. et al. v. Moss

Management
                Inc.,

2004 BCCA
            40

Date: 20040127

Docket: CA029258

Between:

Pacific
      Hunter Resources Inc., Jane Rome
in her capacity as Executrix under the last
Will and Testament of Bruce Rome (deceased)

Appellants

(
Plaintiffs
)

And

Moss Management
      Inc.

Respondent

(
Defendant
)

Before:

The Honourable
            Madam Justice Southin

The Honourable
            Madam Justice Rowles

The Honourable
            Mr. Justice Smith

A. Winstanley

Counsel for the Appellant

T. Delaney

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

23 September 2003

Place and
            Date of Judgment:

Vancouver, British Columbia

27 January 2004

Written
              Reasons by
:

The Honourable
            Mr. Justice Smith

Concurred
              in by:

The Honourable
            Madam Justice Southin
The Honourable Madam Justice Rowles

Reasons for Judgment of the Honourable Mr. Justice Smith:

[1]

The
        appellants appeal an order of Madam Justice Martinson of the Supreme Court
        pronounced in Chambers on December 10, 2001, dismissing their action for
        want of prosecution pursuant to Rule 2(7) of the
Supreme Court Rules
.  As
        well, they appeal her order that they pay the respondents costs, including
        double costs by way of increased costs from June 25, 2001, the date that
        the respondent delivered a so-called Calderbank letter to the appellant
        offering to waive its costs if the appellants would consent to a dismissal
        of the action.  The judgment of the Chambers judge on costs is reported:
      see 100 B.C.L.R. (3d) 164, 16 C.P.C. (5th) 266, 2002 BCSC 396.

[2]

The
        principles relevant to the application to dismiss the action are not
      in dispute.  In
Irving v. Irving
(1982), 38 B.C.L.R. 318
      (C.A.), Seaton J.A. set them out at 321: it must be shown that there has
      been inordinate
        delay, that the inordinate delay is inexcusable, and that the delay caused
        serious prejudice or is likely to cause serious prejudice to the defendant.  Seaton
      J.A. continued, at 328:

The
        demonstration of inordinate delay, inexcusable delay and serious prejudice
        does not lead necessarily to dismissal.  Those three factors are only the
        primary considerations; all of the circumstances must be considered.  It
        is still for the courts to decide whether or not on balance justice
        demands that the action should be dismissed: Salmon L.J. in
Allen
        v. Sir Alfred McAlpine & Sons Ltd.,
supra.
All of the statements of law are
        subject to the overriding principle that essential justice must be done
.
        (See Freedman J.A. (as he then was) in
Ross. v. Crown Fuel Co.

(1962),
      41 W.W.R. 65 at 88, 37 D.L.R. (2d) 30 (Man. C.A.).)

[Emphasis added]

[3]

The
        conduct of the defendant in the face of unreasonable delay by the plaintiff
        is relevant in the assessment of where the balance of justice falls.  As
        Diplock L.J. said, in
Allen v. Sir Alfred McAlpine & Sons Ltd.
,
      [1968] 2 Q.B. 229, at 260:

Since the power to
        dismiss an action for want of prosecution is only exercisable upon the
        application of the defendant, his previous conduct in the action is always
        relevant.  So far as he himself has been responsible for any unnecessary
        delay, he obviously cannot rely upon it.  But also,
if after the plaintiff
        has been guilty of unreasonable delay the defendant so conducts himself
        as to induce the plaintiff to incur further costs in the reasonable belief
        that the defendant intends to exercise his right to proceed to trial notwithstanding
        the plaintiffs delay, he cannot obtain dismissal of the action unless
        the plaintiff has thereafter been guilty of further unreasonable delay
.
        For the reasons already mentioned, however, mere non-activity on the part
        of the defendant where no procedural step on his part is called for by
        the Rules of Court is not to be regarded as conduct capable of inducing
        the plaintiff reasonably to believe that the defendant intends to exercise
      his right to proceed to trial.

[Emphasis added]

[4]

In
        my view, the defendants conduct is the critical factor here and, for the
      reasons that follow, I would allow the appeal.

[5]

The
        action arises out of a letter signed on May 8, 1991, by Bruce Rome on
      behalf of Pacific Hunter and by Peter Richards on behalf of Moss Management.  Pacific
        Hunters position is that the letter is an enforceable agreement for the
        exploitation of some valuable tailings at an abandoned copper mine.  In
        Pacific Hunters view, it performed its obligations under the agreement
      and became entitled to a 60% interest in the tailings.

[6]

Mr.
        Richards took a different view of the effect of the letter.  As a result
        of a discussion they had in July 1991, Mr. Rome advised Mr. Richards
      that he intended to commence an action.

[7]

Shortly
        thereafter, Moss Management, through Mr. Richards, entered into an agreement
      with an Alberta public company granting it the right to exploit the tailings.

[8]

There
        was sporadic communication between Mr. Rome and Mr. Richards over the
      next two years in regard to their dispute and, in 1993, Mr. Rome hired
      a solicitor,
      Mr. Howell, to deal with the matter.

[9]

Following
        some further preliminary communications, on February 15, 1994, Mr. Howell
        commenced the action that underlies this appeal.  The statement of claim,
        filed on April 24, 1994, pleads the letter agreement and performance by
        Pacific Hunter of its contractual obligations.  It alleges that Moss Management
        repudiated the agreement by selling the right to exploit the tailings to
        the Alberta company.  As well, it alleges that Moss Management wrongfully
        appropriated the plaintiffs camp and equipment left on the site and that
        it wrongfully used the plaintiffs samples and geological data to facilitate
        the sale to the Alberta Company.  It seeks damages for breach of contract
        and reimbursement for expenses incurred in reliance on the alleged agreement,
      or specific performance of the alleged agreement.

[10]

On
        March 31, 1995, some eleven months later, Moss Management filed its statement
        of defence through its solicitor, Mr. Delaney.  The statement of defence
        denies that an enforceable agreement came into being between the parties.  Alternatively,
        it alleges that Pacific Hunter did not perform its obligations under the
        agreement and that performance was a condition precedent to Moss Managements
        liability.  As well, it denies that Moss Management appropriated Pacific
      Hunters property.  It seeks dismissal of the action.

[11]

In
        September and October, 1995, the parties commenced oral and documentary
        discovery processes.  Mr. Howell examined Mr. Wolrige, the president of
        Moss Management, for discovery and Mr. Delaney examined Mr. Rome.  Thereafter,
        by letter of November 7, 1995, to Mr. Howell, Mr. Delaney set out at length
        a number of requests for information and for documents arising out of his
        examination of Mr. Rome.  Mr. Delaney wished to examine Pacific Hunters
        solicitors file and asked, as well, whether privilege would be waived
      or whether he would have to make an application for production.

[12]

The
        next steps in the action occurred on July 29 and July 30, 1996, when
      Mr. Howell filed applications relating to documentary discovery and Mr.
      Delaney
        countered with applications for further documentary discovery and further
        examination of Mr. Rome for discovery.  Within a couple of days, counsel
        agreed to adjourn their respective applications on terms that included
        the provision of further documentary discovery by Pacific Hunter within
      two weeks.

[13]

There
        the matter sat until January 2001, when Mr. Winstanley was hired by Mr.
      Rome to replace Mr. Howell as counsel for the plaintiff.

[14]

The
        status of matters at this point in time was as follows.  Pleadings were
        closed.  Examinations of Mr. Rome and Mr. Wolrige had been conducted.  The
        plaintiffs had delivered a list of documents.  As well, they had agreed
        to produce further documents, to provide certain information requested
        on Mr. Romes examination for discovery, and to deliver certain particulars
        requested, all by August 16, 1996.  As well, the plaintiffs were either
        to deliver their solicitors file or to advise Mr. Delaney that an application
        for production would be required.  Further, Mr. Delaney was to be at liberty
        to examine Mr. Rome further for discovery upon receipt of the information
        and documents agreed upon.  On the other hand, the defendant had not delivered
        a list of documents.  Cross-applications concerning documentary discovery
      stood adjourned generally by agreement of counsel.

[15]

I
        will next canvass the reasons for the hiatus of three and one-half years
      from mid-1996 to the end of 2000.

[16]

In
        1996, Mr Howell developed a painful and debilitating arthritic disease
        that ultimately required two hip replacement surgeries, one in the fall
        of 1996 and the second in October 1997.  For several months while he was
        recovering from these surgeries he was unable to carry on his practice.  As
        a result, his attention to this litigation waned.  Mr. Rome and Mr. Howell
        were good friends, and Mr. Romes evidence was that he awaited Mr. Howells
        recovery during the period from 1996 to 1998.  He deposes that Mr. Howell
        had acted for him in a number of matters and he did not want to sever their
        professional relationship.  He says further that, beginning in the summer
        of 1998 and throughout the next year, he telephoned Mr. Howell from his
        home in Kamloops almost monthly and that Mr. Howell assured him that
        he would get on with this matter.  While the Chambers judge expressed some
        doubt about the frequency with which Mr. Rome communicated with Mr. Howell,
        she accepted that several months of the delay were the result of Mr.
        Howells medical condition.  I take it that she meant that the delay
        from the fall of 1996 until the early part of 1998 was, at least in part,
        as
      a result of Mr. Howells inability to attend to the litigation.

[17]

The
        Chambers judge found that the rest of the delay was due to the inaction
        of Mr. Rome.  He did not obtain the documents that he was required to produce.  She
      concluded:

[36]  ...In any event,
        Mr. Rome knew by the summer of 1999 that he needed new counsel.  He knew
        Mr. Winstanley could not act, but did nothing, without explanation, for
        at least another year.  The delay was substantially caused by Mr. Rome.  It
      is inexcusable.

[18]

The
        reference to Mr. Winstanleys initial inability to act for Mr. Rome requires
        comment.  Mr. Rome sought to retain Mr. Winstanley in late 1999 but Mr.
        Winstanley refused on the basis that he had a conflict of interest.  Mr.
        Winstanley was representing Tom Buchan, a former principal of Prospectors
        Airways Consolidated Co. Ltd., concerning a prospective claim in respect
        of the tailings on behalf of Prospectors Airways against Mr. Richards,
        Mr. Wolrige, and Moss Management.  The factual underpinning of that matter
        is outlined in an affidavit sworn by Mr. Buchan in this action in support
        of Pacific Hunters position on the proposed summary trial to the effect
        that Moss Management was a trustee of the tailings in question for Prospectors
        Airways and that Messrs. Richards and Wolrige were trustees, not beneficial
        owners, of their shares in Moss Management.  Mr. Buchan says that he is
        one of four trustee-managers, including Richards and Wolrige, of Prospectors
        Airways assets and that he has a veto over any dealings with those assets.  There
        appears to be documentary support for these allegations.  Mr. Buchan
        deposes further that he understood that Moss Management was dealing with
        Pacific
        Hunter in its capacity as trustee of the tailings; that, in 1995, Mr.
        Richards acquired control of Prospectors Airways and, in effect, squeezed
        him out;
        and that Moss Managements disposition of the tailings to the Alberta
        company was made without his knowledge or consent in violation of the
      trust agreement.

[19]

Mr.
        Romes evidence is that, after he was turned down by Mr. Winstanley,
      he continued to contact Mr. Howell from time to time but that Mr. Howell
      did
        nothing to advance the litigation.  Finally, Mr. Rome says, in September
        2000 he spoke with Mr. Buchan who agreed to instruct Mr. Winstanley to
        take over this litigation for Mr. Rome.  Mr. Winstanley agreed to do so
        in late 2000 and filed a notice of change of solicitor in January 2001.  Since
      then, Mr. Winstanley has pursued the action diligently.

[20]

It
        is noteworthy that when Mr. Winstanley became involved, Mr. Delaney did
        not complain of delay or of prejudice to his client.  Rather, he insisted
        that Mr. Winstanley must file a notice of intention to proceed before taking
        further steps.  Mr. Winstanley acknowledged this suggestion in his letter
      to Mr. Delaney of January 18, 2001, which said:

Enclosed herewith
      for delivery please find filed Notice of Change of Solicitor in this matter.

You mentioned in our
        telephone conversation that a Notice of Intention to Proceed would be
      in order.  From my review of the file, plaintiff prepared and delivered
      a List of Documents dated May 15, 2000, which would be a step taken within
      the last year, and obviate the need for notice.

At present, I am reviewing the file with a view to possibly amending
        the Statement of Claim.  Until that is done, it is probably premature to
        bring to your attention that the Defendant has not provided its List of
        Documents in response to a Demand dated October 25, 1995.  Once the pleadings
        are clarified, I will, however, be expecting your client's prompt compliance
      with this Demand.

[21]

By
      letter of January 22, 2001, Mr. Delaney responded as follows:

We are in receipt
        of your letter of January 18, 2001, together with your Notice of Change
      of Solicitor.

You have stated that
        the Plaintiff prepared and delivered a List of Documents dated May 15,
        2000 in this matter.  We understand that there may have been several different
        pieces of litigation and perhaps you have seen a List of Documents in one
        of the other actions.  We have no record of having received a List of Documents
        anywhere close to May, 2000.  If we are mistaken in that regard and you
        have an acknowledgement of delivery signed by the writer, we would be
      pleased to view it.

Otherwise,
we remain
          of the view that your client must deliver a Notice of Intention to Proceed
        before any further steps may be taken
.

A review of our file
        indicates that the Plaintiff's List of Documents was dated May 17, 1994.  We
        have no record of having received a Demand for Discovery of Documents from
        your client.  Moreover, we made a Demand for Particulars on September 7,
        1995.  Our last note of any correspondence from the Plaintiff in this matter
        is a letter from Mr. Howell to the writer dated August 1, 1996.  At that
        time, we had filed a motion requiring Mr. Rome to attend a further discovery
        and to produce various documents.  The correspondence with Mr. Howell indicates
        that the parties had agreed to adjourn the motion generally.  We have
        received no correspondence from Mr. Howell or your client since that
      time.

[Emphasis
      added]

[22]

Mr.
        Winstanley acceded to Mr. Delaneys position and, on January 29, 2001,
      he wrote:

Enclosed herewith
      for delivery please find the following:

(1)   Notice of Intention
      to Proceed,

(2)   Demand for Discovery
      of Documents, and

(3)   Notice to Produce
      Documents.

As promised, I have
        also enclosed for your review a draft of a proposed Amended Statement
      of Claim.  Once we are outside the 28 days, my clients will be bringing
      on an application both to amend and to add Mr. Richards as a defendant.

In the meantime, my
        office is working on a proper List of Documents.  As you may imagine, we
        are being slowed down by the detail of the documents showing the expenses
        occurred on the Tailings.  Nonetheless, I would expect to have a comprehensive
      List to you by next week.

Awaiting your response to the proposed amendments, I remain...

[23]

The
        amendments proposed by Mr. Winstanley would have added Mr. Richards and
        Mr. Wolrige as defendants and would have made claims against them and Moss
        Management on the basis of fraudulent or negligent misrepresentation concerning
        their right to deal with the tailings and, as well, claims that they benefited
        personally from the sale of the tailings to the Alberta company, presumably
      in breach of trust.

[24]

Mr.
        Delaney responded on February 5, 2001, mentioning the delay for the first
      time.  His letter reads as follows:

We are in receipt
      of your letter of January 29, 2001.

We do not intend
          to provide you with a response to the proposed amendments until we have
          actually seen your motion materials for the application to add Mr. Richards
          and amend the Statement of Claim
.  Presumably
          your motion materials will explain the inordinate delay with respect
          to both the prosecution of this matter, and the reasons for not adding
        these causes of action and Mr. Richards as a party at the outset.

Finally,
it is
          our view of the law that our client need not respond to the demand for
          documents until 49 days have expired
.  In other words, the demand
          does not start to run until the expiration of 28 days from delivery of
          the Notice of Intention to Proceed.  In fact,
strictly speaking, it
          is our position that your client is not entitled to deliver a Demand
          for Discovery of Documents and to otherwise proceed with the litigation
          until after 28 days have expired from delivery of the Notice of Intention
        to Proceed
.

[Emphasis added]

[25]

Thus,
        even at this point Mr. Delaney was not treating delay as dispositive
      but was expecting Mr. Winstanley to account for the delay.  It does not appear
        that Mr. Delaney was contemplating an application to dismiss the action
        for want of prosecution.  By his words and his conduct, he clearly encouraged
      Mr. Winstanley to continue in his attempts to move the action forward.

[26]

On
        March 13, 2001, Mr. Winstanley delivered a notice of motion for orders
        adding Mr. Richards and Mr. Wolrige as defendants and amending the statement
        of claim, his outline of argument on the motions, and a supporting affidavit
      of Mr. Rome sworn in March 2001.

[27]

Mr.
        Delaney responded with a lengthy letter dated April 6, 2001.  The letter
      begins:

We are in receipt of your letter of April 5, 2001.  We have been working
        on a response and, subject to what will be set out below, we could provide
      you with materials next week.

The letter of April 5, 2001, which is referred to in
        this passage, was not marked in evidence and it is not clear what it was
        that Mr. Delaney was working on or what materials he expected to be able
      to provide to Mr. Winstanley.

[28]

Thereafter
        in the letter, Mr. Delaney demanded particulars of the proposed amendments;
        expounded at length on the law governing repudiation of contracts; objected
        that the information supporting the proposed amendments was privileged
        and inadmissible; asked if Mr. Winstanley would consent to his cross-examining
        himself and Mr. Rome on his supporting affidavit in order to avoid an application
        for orders for that purpose; and asked to be advised as to the state of
        progress in providing responses to his demand for discovery of documents
        and to his requests for information at Mr. Romes examination for discovery,
      on which he knew Mr. Winstanley was working.

[29]

As
        a result of Mr. Delaneys position in respect of the information supporting
        the application to amend, Mr. Winstanley attempted to persuade the solicitor
        for Prospectors Airways, in whom the privilege allegedly resided, to
      consent to his use of the information.  Failing in that attempt, he filed and delivered,
        on June 21, 2001, a statement of claim amended pursuant to Rule 24(1)(a)
        alleging misrepresentation against Moss Management only.  In this way,
        he hoped to obtain discovery of the allegedly privileged documents through
        Moss Management and to add Mr. Richards and Mr. Wolrige as defendants thereafter.  Accordingly,
        he delivered with the amended statement of claim another demand for discovery
      of documents.

[30]

Mr.
        Delaney responded that Moss Management would not disclose documents relevant
        to the amended claim until his motion to strike out the amendments could
        be heard.  He filed and delivered, on June 27, 2001, notices of applications
        to strike out the amendments, for a summary trial of the action pursuant
        to Rule 18A, and to strike out the action for want of prosecution.  In
      his covering letter, Mr. Delaney said, among other things:

As you will be able
        to see from our motion, we are seeking a dismissal of your clients claim
        or, in the alternative, that the new amendments be struck out.  It is
        our position that our client should not have to produce documents in
        relation
        to the new amendments until our application has been heard, as the amendments
      may not stand.

It is not clear to us, in light of the amendments, whether or not your
        clients intend to proceed with the motion to amend the Statement of Claim.  At
        this point, we would assume that the motion would just be to add the two
        new parties and consequential amendments.  However, should you wish to
        proceed with your motion, we will also take the position that the motion
        should not be allowed in light of Rule 19(7).  In particular, your clients
        have now pleaded that Moss Management made the representations in question
        and thereby induced the Plaintiffs to enter into the contractual arrangements.  It
        is our position that it would be inconsistent to then claim that Richards
      and Wolrige were acting in a personal capacity when they made the representations.

[31]

A
        consideration of the exchanges between Mr. Delaney and Mr. Winstanley to
        this point might suggest that the motion to strike out the action for want
        of prosecution was activated less by any prejudice that might have resulted
        from the plaintiffs delay than by the imminent prospect that Mr. Richards
        and Mr. Wolrige might be joined in the action as personal defendants and
        that allegations of misrepresentation, fraud, and breach of trust might
      be made against them.

[32]

In
        any event, in his response to Mr. Delaneys outline, which he filed on
        July 13, 2001, Mr. Winstanley took the position that he did not oppose
        a summary trial of the liability issues and that he opposed the applications
        to strike out the amendments and to dismiss the action for want of prosecution.  He
        filed the affidavits of Mr. Howell, Mr. Buchan, Mr. Rome, and himself,
        all sworn in July 2001, and excerpts from the examination for discovery
      of Mr. Richards conducted on October 26, 1995, in support of his position.

[33]

The
        applications were heard by the Chambers judge commencing on October 17,
        2001.  In her reasons, pronounced on December 10, 2001, she dealt only
      with the application to dismiss the action for want of prosecution.

[34]

The
        appellants allege a number of errors in the reasoning of the Chambers
      judge.  They
        may be reduced to three questions, in my view.  First, whether the Chambers
        judge erred in the exercise of her discretion to dismiss the action for
        want of prosecution; second, whether she erred in concluding that the
        issues were not suitable for summary trial under Rule 18A; and third,
        whether
      she erred in awarding the respondent double costs as increased costs.

[35]

I
        am satisfied that the learned Chambers judge erred in exercising her
      discretion to dismiss the action for want of prosecution.

[36]

First,
        she erred in considering the relevant period of delay to be ten years,
        measured from the date that the cause of action arose.  An application
        to dismiss an action for want of prosecution relates to the proceeding
        itself, not to the underlying cause of action; its goal is the effective
        and efficient administration of justice, not the dismissal of stale claims:
        see the concurring reasons of Lambert J.A. in
Rhyolite Resources
        Inc. v. CanQuest Resource Corp.
(1999), 64 B.C.L.R. (3d) 80,
      1999 BCCA 36 at ¶ 30.

[37]

Next,
        in presuming prejudice to Moss Management arising out of the delay, she
        overlooked the important fact that Moss Management set the action down
        for summary trial and proffered its evidence and submissions on the merits
        of the claim.  This conduct suggests strongly that the delay did not
      prejudice Moss Management in its defence of the action.

[38]

Finally,
        and most importantly, she failed to take into consideration the conduct
        of Moss Management after Mr. Winstanley was engaged.  She overlooked
        the principle evinced by Lord Diplock in
Allen v. Sir Alfred McAlpine & Sons
      Ltd.
,
supra
, which I will reproduce for convenience:

... if after the plaintiff has been guilty of unreasonable delay the
        defendant so conducts himself as to induce the plaintiff to incur further
        costs in the reasonable belief that the defendant intends to exercise his
        right to proceed to trial notwithstanding the plaintiffs delay, he cannot
        obtain dismissal of the action unless the plaintiff has thereafter been
      guilty of further unreasonable delay.

[39]

If
        there was inordinate and inexcusable delay in this case, it occurred
      before Mr. Winstanley was retained.  As I have observed, he proceeded diligently
        with the action and there can be no suggestion of unreasonable delay
      since he took conduct of the file.

[40]

Further,
        until receipt of Mr. Delaneys letter of June 27, 2001, in which Mr. Delaney
        stated for the first time that he intended to rely on delay as the basis
        for an application to dismiss the action, it was reasonable for Mr. Winstanley
        to believe that antecedent delay was not a concern and that Mr. Delaney
      intended to proceed to trial.

[41]

Moreover,
        the whole tenor of Mr. Delaneys correspondence and conduct after Mr.
      Winstanleys engagement was calculated to and did induce Mr. Winstanley
      to take steps
        to move the action forward.  When Mr. Winstanley went on record as solicitor
        for the appellant, Mr. Delaney insisted that he file a notice of intention
        to proceed.  Thereafter, he encouraged Mr. Winstanley to press on with
        the documentary discovery and he forced Mr. Winstanley to take steps to
        effect amendments to the statement of claim.  Then, on June 27, 2001, he
        served on Mr. Winstanley applications for an order striking out the amendments
        and for a summary trial of the action on the merits.  Mr. Winstanley was
        required to prepare for these applications and he did so.  In particular,
        he prepared and presented his case on the summary trial.  To fail to
        do so could have resulted in his clients case being dismissed on its
      merits.

[42]

The
        Chambers judge overlooked this critical consideration in her assessment
        of the interests of justice.  In effect, she dismissed the action for want
        of prosecution after the parties had led their evidence at trial and made
      their closing submissions.  I think she erred in doing so.

[43]

For
        those reasons, I would allow the appeal, set aside the judgment dismissing
      the action, and remit the matter to the Supreme Court.

[44]

It
      is necessary to say something about the other grounds of appeal.

[45]

The
        appellants assertion as a ground of appeal that the Chambers judge erred
        in concluding that the action was not suitable for summary trial is misconceived.  It
        is true that the Chambers judge made a comment to that effect, but she
        did so in the course of her discussion of prejudice in relation to the
        motion to dismiss the action.  She did not adjudicate the application for
        summary trial and, consequently, she made no order that the action is not
        suitable for summary trial.  No appeal lies from an observation contained
      in her reasons for judgment.

[46]

It
        is unfortunate for the appellants that Mr. Rome is now deceased.  However,
        there is an extensive record of his relevant evidence in his affidavits
        and in his examination for discovery.  Moreover, the appellants case is
        not entirely dependent upon Mr. Romes evidence.  It may be that his death
        is not a barrier to a summary trial of this action or to a conventional
        trial using the record of his evidence.  However, those are matters to
      be considered in the Supreme Court.

[47]

Finally,
        as I would allow the appeal and set aside the judgment below, there is
        no longer any foundation for the order for costs made by the Chambers
      judge.  Thus,
        it is not necessary to consider the question raised on the appeal of
      the order for costs, which is whether the Chambers judge erred in dismissing
        as anomalous or as
obiter dicta
the majority reasoning in
Brown
        v. Lowe
, 2002 BCCA 7 on the question of the effect of a Calderbank
        letter on costs and in purporting to follow the dissenting reasons on that
      point as the proper approach.

[48]

In
        summary, I would allow the appeal, set aside the order dismissing the action
      for want of prosecution, and remit the matter to the Supreme Court.

The Honourable Mr. Justice
      Smith

I agree:

The Honourable Madam Justice Southin

I agree:

The Honourable Madam Justice
      Rowles


COURT OF
APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Amyotte,

2005 BCCA 12

Date: 20050104

Docket: CA032163

Between:

Regina

Respondent

And

Gordon
Brent Amyotte

Appellant

Before:

The Honourable Mr.
  Justice Donald

The Honourable Madam
  Justice Levine

The Honourable Mr.
  Justice Smith

Oral Reasons for Judgment

K.L. Moss

Counsel for the Appellant

J. Duncan

Counsel for the Respondent

Place and Date:

Vancouver, British Columbia

January 4, 2005

[1]

LEVINE J.A.:
The issue on this sentence appeal is the
validity of probation orders.

[2]

The appellant, Gordon
Brent Amyotte, was sentenced in Penticton, British Columbia on August 15, 2002
to two years in prison on a conviction for possession of stolen property and 30
days in prison, to run concurrently, for possession of cocaine.  He was also
sentenced to two years of probation following each sentence.

[3]

There is no dispute
about the validity of the probation orders following the Penticton sentences.

[4]

The issue of the
validity of the probation orders arose when the appellant was sentenced in
Kamloops, British Columbia on March 24, 2004 to a further 20 months in prison
on a conviction for theft, to be served concurrently with the time remaining on
the Penticton sentences.

[5]

A probation order is
authorized by s. 731(1)(b) of the
Criminal Code
where an offender
is sentenced "to imprisonment for a term not exceeding two years".

[6]

The
Corrections
and Conditional Release Act
, S.C. 1992, c. 20, provides in s. 139(1):

Where a person who is subject to a sentence that has not expired
receives an additional sentence, the person is, for the purposes of the
Criminal
Code
, the
Prisons and Reformatories Act
and this Act, deemed to have
been sentenced to one sentence commencing at the beginning of the first of
those sentences to be served and ending on the expiration of the last of them
to be served.

[7]

This Court decided in
R.
v. Hackett
(1986), 30 C.C.C. (3d) 159 (B.C.C.A.), that a term of
probation following a sentence of two years less a day was invalid when a
concurrent three year sentence was imposed at the same time.

[8]

In
R. v. Miller
(1987), 36 C.C.C. (3d) 100 (Ont. C.A.), the Ontario Court of Appeal held that a
probation order imposed following a sentence of two years less a day in prison
became invalid when subsequent consecutive sentences were imposed so that the
total sentence was in excess of two years.  This Court, citing s. 731(1)(b) of
the
Code
and
Hackett
, held a probation order to be
invalid on facts similar to
Miller
in
R. v. Shankaran
(1996), 71 B.C.A.C. 239.

[9]

The facts of this case
are different from the other cases, in that the subsequent Kamloops sentence
was made concurrent, not consecutive, to the previous Penticton sentences being
served.  However, the appellant had already served 19 months of the Penticton
sentences when he was sentenced to the additional 20 months to be served
concurrently.  The Penticton and Kamloops sentences would overlap by only five
months (March to August 2004).  Thus, the total sentence exceeds two years.

[10]

This is confirmed by a
calculation made by the Sentence Management Associate of Mountain
Institution, provided by appellants counsel.  According to the calculation,
the appellants sentence is a total of three years, four months and 13 days
(1,232 days) from July 10, 2002 (taking into account sentences imposed before
the Penticton sentences).

[11]

In both
Hackett
and
Miller
, the Courts held that the intention of Parliament was
to limit the imposition of probation orders to circumstances where probation
would commence not more than two years from the time of sentencing.  Where that
cannot occur, because the total of the sentences imposed on the offender exceeds
two years, the provisions of the
Code
cannot be met.

[12]

That is the case here.  Mr.
Amyotte will, at the conclusion of the Kamloops sentence, have been in prison
more than two years.  The effect of that is that the probation orders, which
were valid when imposed in August 2002, became invalid when the Kamloops
sentence was imposed in March 2004.

[13]

The Crown concedes that
the probation orders are invalid and should be quashed.

[14]

I would grant leave to
appeal and allow the appeal by quashing the probation orders imposed in
Penticton on August 15, 2002.

[15]

DONALD J.A.:
I agree.

[16]

SMITH J.A.:
I agree.

[17]

DONALD J.A.:
The appeal is allowed.  The probation order
is set aside.

The Honourable Madam Justice Levine


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

New
                Skeena Forest Products Inc. (Re),

2005 BCCA
            2

Date: 20050105

Docket: CA032484

In the Matter of the
Companies' Creditors Arrangement
        Act
, R.S.C. 1985, c. C-36

and

In the Matter of the
Canada Business Corporations
        Act
,
R.S.C. 1985, c. C-44, as amended

and

In the Matter of the
Company Act
,
R.S.B.C. 1996, c. 62, as amended

and

In the Matter of New Skeena Forest Products Inc.,
Orenda Forest Products Ltd., Orenda Logging Ltd. and
9753 Acquisition Corp.

Respondents

(
Petitioners
)

And

Kitwanga
      Lumber Co. Ltd.

Respondent

(
Respondent
)

Before:

The Honourable
            Mr. Justice Low

(In Chambers)

R.J.M. Janes

Counsel for the Appellant
City of Prince Rupert

P.J. Reardon

Counsel for the Respondent
646325 B.C. Ltd.

D.J. Hatter

Counsel for the Respondent
H.M.T.Q. for B.C.

D. Knowles,
            Q.C.

Counsel for the Respondent
9753 Acquisition Corp.

R. Leong

Counsel for the Respondent
Attorney General of Canada

G.H. Dabbs

Counsel for the Respondent
City of Terrace

R.A. Millar

Counsel for the Respondent
Court Appointed Receiver
Ernst & Young Inc.

Place and
            Date of Hearing:

Vancouver, British Columbia

17 December 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

5 January 2005

Reasons for Judgment of the Honourable Mr. Justice Low:

[1]

As
      a secured creditor of New Skeena Forest Products Ltd., the City of Prince
      Rupert seeks leave to appeal a provision included in an order made by Chief
      Justice Brenner on 1 December 2004 as part of continuing proceedings under
      the
Companies' Creditors Arrangement Act
, R.S.C. 1985, c.
      C-36 (the "
Act
").  Prince Rupert contends that
      the effect of the challenged provision is that Prince Rupert runs a considerable
      risk of having to pay significantly more than its equitable share of Debtor
      in Possession ("DIP") financing and administrative costs (collectively,
      the "CCAA Costs") under what is now known to be a failed attempt
      at corporate reorganization of the Skeena pulp mill in Prince Rupert and
      its sawmill in Terrace begun under the
Act
by an order made
      on  19 November 2003 (the "Initial Order").  As a result of this
      failure, the company is now in a full-blown process of bankruptcy liquidation
      of its assets, a process that requires the ongoing supervision of the court
      of which the order of 1 December 2004 is just one part.

[2]

The
      Province of British Columbia supports Prince Rupert's leave application.  The
      Receiver, Ernst and Young Inc., and several interested parties oppose the
      application.

[3]

The
      cases set out the matters to be considered on an application for leave
      to appeal an interlocutory order.  They are:

(1)   whether the point on appeal is of significance to the practice;

(2)   whether the point raised is of significance to the action itself;

(3)   whether the appeal is
prima facie
meritorious or, on the
      other hand, whether it is frivolous; and

(4)   whether the appeal will unduly hinder the progress of the action.

See
Power Consolidated (China) Pulp Inc. v. B.C.
          Resources Investment Corp.
(1988), 19 C.P.C. (3d) 396 (C.A.);
Chavez
          v. Sundance Cruises Corp.
(1993), 77 B.C.L.R. (2d) 328 (C.A.);
          and
Goldman, Sachs & Co. v. Sessions
, 2000 BCCA 326.

[4]

It
      is important to note that the challenged provision is discretionary and
      that the applicant has a high hurdle to scale.  This was clearly stated
      by Saunders J.A. in
Yang v. Yang
, 2000 BCCA 486 in the following
      terms:

[3] Where, as here, the matter appealed is a matter of the exercise of
      judicial discretion the burden on the applicant is substantial. The reason
      is simple, this Court does not lightly interfere with the exercise of discretion
      of a chambers judge and will only do so when satisfied that the discretion
      was not exercised judicially or was exercised on a wrong principle.

[5]

The
      Initial Order contains a provision giving priority to DIP financing over
      the security of all other creditors.  The Receiver later filed a report
      with the court proposing, among many other things, court approval of certain
      allocations of the CCAA Costs among the creditors.  The chambers judge
      adopted the report in the order of 1 December 2004.

[6]

The
      challenged provision in the order reads as follows:

THIS COURT ORDERS AND DECLARES THAT:

6.    the Receiver's proposal:

(a)   to allocate
      the CCAA Costs (as defined in the Report) on a preliminary basis against
      only those assets consisting of equipment and real property which are identified
      in the illustrative chart attached to Appendix F to the Report (the "Assets")
      pro rata based upon the appraised or assessed value of the Assets at January,
      2004, provided that such preliminary allocation will be subsequently adjusted
      based upon:

(i)   the actual
      sale proceeds realized on the future disposition of the remaining assets
      of the Petitioners which do not have values attributed to them in Appendix
      F as aforesaid; or

(ii)  such other
      value as may be subsequently attributed to such remaining assets by the
      Court...

is hereby approved...

[7]

Prince
      Rupert contends that the asset over which it holds statutory security for
      unpaid property taxes of more than $25M (the pulp mill) has been given
      an unrealistic appraised value of $3.92M in Appendix F to the Receiver's
      Report referenced in the order.  Since the appraisal was done, it has come
      to light that the property requires environmental cleanup that Prince Rupert
      says will cost about $103M.  On the other hand, the Receiver points out
      that the Province has already expended substantial sums on the cleanup
      and the final cost has not yet been determined.

[8]

Prince
      Rupert does not argue that it ought not to pay any of the CCAA Costs as
      it stood to benefit from the incurrence of those costs if the reorganization
      attempt had been successful.  But it says that assessment of its share
      of those costs based upon a value ascribed to real property that has no
      value at all is unfair.  It says that this arises because the proceeds
      received from the auction of unappraised assets (such as tree farm licences)
      will determine the pro rata share of the CCAA Costs for some creditors
      while Prince Rupert's share will be determined by an invalid appraisal.  It
      says that the effect of the order might be that secured creditors other
      than Prince Rupert will walk away with money while it will have to write
      a cheque.  Prince Rupert claims that it might have to pay $1M to $1.3M
      of the CCAA Costs now totalling about $4.7M.

[9]

The
      legal issue Prince Rupert wishes to argue on appeal is whether the court
      has jurisdiction under the
Act
to order a secured creditor
      to pay CCAA Costs in excess of the actual value of the creditor's interest
      in the estate of the debtor.  It says that there is no appellate guidance
      as to how CCAA Costs, especially DIP financing, should be allocated.  The
      precedence of the challenged provision is said to be that it would have
      a profound effect on creditors and it is arguable that the approach of
      the court should be more cautious than the approach taken by the chambers
      judge.  Prince Rupert says that therefore the point it wishes to argue
      on appeal is of importance both to the insolvency bar and in these proceedings.

[10]

Prince
      Rupert also contends that the appeal will not delay the ongoing proceedings
      in the trial court.  It says the focus now is on liquidation and there
      is no reason that process cannot continue apace pending determination of
      the appeal, especially if the appeal is expedited.

[11]

The
      Receiver emphasizes both the discretionary nature of the challenged provision
      and the fact that it is forward-looking.  The Receiver also says that Prince
      Rupert overstates the impact on it of the challenged provision and that
      what Prince Rupert fears will not come about without further order.  In
      its written submission, the Receiver says this: "The allocation proposal
      itself is interim in nature and is susceptible to re-allocation or alteration
      depending on how the assets are in fact liquidated.  As such the proposed
      appeal is anticipatory of a set of facts that are not certain to take place."

[12]

The
      recommendations in the Receiver's Report relied upon by the chambers judge
      were carefully considered.  It was imperative that the Receiver recommend
      a plan for liquidation and the sharing of costs.  Much had to be considered
      by the Receiver and by the Chief Justice.  Prince Rupert has not identified
      any basis for this court to conclude that the chambers judge did not exercise
      his discretion judicially or that he acted upon a wrong principle.  The
      challenged provision is but one aspect of lengthy and complex proceedings
      presided over by the Chief Justice who is most familiar with all aspects
      of the case and is in the best position to balance competing interests.

[13]

In
      addition, I am persuaded that the challenged provision is forward-looking
      and that adjustment based upon future events is contemplated.  Borrowing
      from the wording of the Receiver's report, the provision states that the
      CCAA Costs are allocated "on a preliminary basis" and later adjustment
      is anticipated.  Whether the result predicted by Prince Rupert will come
      about and whether such a result would be unfair to it will clearly depend
      upon future events and future orders of the court.  It is not necessary
      to appeal the present order to address the concerns advanced.

[14]

In
      my opinion, granting of leave would risk interference with the orderly
      liquidation of assets to the detriment of the creditors generally and would
      not settle a point of interest to the practice or be of significance in
      the proceedings.

[15]

Leave
      to appeal is denied.

The Honourable Mr. Justice Low


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Alvizuris,

2005 BCCA
            1

Date: 20050105

Docket: CA031876

Between:

Regina

Respondent

And

Vilma Alvizuris

Appellant

Before:

The Honourable
            Mr. Justice Hall

(In Chambers)

V. Alvizuris

Appearing in person
with J. Jacome

W. Rubin

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

23 November 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

5 January 2005

Reasons for Judgment of the Honourable Mr. Justice Hall:

[1]

This
      is an application for the appointment of counsel under s. 684 of the
Criminal
      Code
.  The appellant applicant, Vilma Alvizuris, was convicted
      by a jury in the spring of 2004 of the offences of child abduction and
      obstructing justice.  I understand that consequent upon these convictions
      she was sentenced to an eight month conditional sentence to be followed
      by a period of probation.  The case arose out of a custody dispute involving
      an infant.  The parties to that dispute were the father of the child and
      the mother, a daughter of Ms. Alvizuris.

[2]

In
      the course of her instructions to the jury, the trial judge summarized
      the factual background of the case thus:

It has been admitted that on July 3, 2001, Ms. Alvizuris attended at
      Provincial Court presided over by his Honour Judge Steinberg.  The transcript,
      filed as an exhibit at trial, discloses that Jennie Jacome, Josiah's mother,
      was detained on a charge of abducting Josiah.  Josiah was not with her
      when she was detained.  Judge Steinberg spoke to Ms. Alvizuris about Josiah.  He
      directed her to bring Josiah to the court that afternoon.  Ms. Alvizuris
      requested some time to consult a lawyer or a social worker.  Judge Steinberg
      refused the request.  Ms. Alvizuris left the court house.  She did not
      return that afternoon.

Ms. Alvizuris was employed at the time in the Ministry of Human Resources.  Laura
      Rahn, Ms. Alvizuris' supervisor, testified that Ms. Alvizuris appeared
      in her office on the first day after the long weekend in July, 2001, distraught
      and crying.  She told Ms. Rahn that her daughter was incarcerated and she
      needed some time off to sort matters out.  She said the father of her grandson
      had obtained custody of the child and her daughter was in jail because
      she was refusing to give up custody.  Ms. Rahn helped Ms. Alvizuris look
      up some telephone numbers of lawyers.  Ms. Rahn thought Ms. Alvizuris made
      an appointment to see a lawyer that afternoon.  Ms. Alvizuris obtained
      forms to apply for a leave from work.  She never returned to her job with
      the Ministry.

It is admitted that from July 3, 2001 to October 1, 2001, Josiah was
      mainly in the care of Ms. Alvizuris.  During that time, Ms. Alvizuris and
      Josiah were in various locations in the United States, primarily with relatives.  These
      facts were admitted in Exhibit 20, paragraphs (8), (9) and (10).

In late September, 2001, Ms. Alvizuris received a telephone call from
      a person by the name of Kari Simpson.  As a result of the call, on October
      1, 2001, Ms. Alvizuris arranged to have Josiah brought to a Ministry of
      Family and Child Services office by Kari Simpson.

[3]

The
      applicant complains of the conduct of the trial and submits that she was
      convicted against the weight of the evidence.  In particular she claims
      that the trial judge erred in not leaving with the jury the defence of
      necessity.  Counsel for the Crown noted in argument here that the applicant
      has some legal training in her country of origin in Central America but
      I accept what the applicant says, namely that she has no training in the
      Canadian legal system and could not be considered as in any way equivalent
      in training and experience to a Canadian lawyer.  The applicant has been
      advised by the Legal Services Society that they are not in a position to
      fund an appeal because in their view her financial resources exceed the
      guidelines requisite for the appointment of counsel.  I would observe that
      her financial circumstances are modest and if I was of the opinion that
      this appeal was one where the appointment of counsel was requisite, I would
      not be inclined to the view that her financial circumstances would disentitle
      her to the appointment of counsel.

[4]

The
      trial judge in a ruling given on 24 February 2004 found that the circumstances
      of the case did not afford a factual underpinning to permit her to leave
      with the jury the defence of necessity.  The applicant seeks to argue that
      that finding was legally flawed and that there is an arguable appeal on
      that issue.  The trial judge noted that there were issues in dispute between
      the parents of the young child.  There was a period of time where the father
      did not see the child.  In the spring of 2000 he filed an application for
      access to the child and served notice of the application on the daughter
      of Ms. Alvizuris.  These events coincided with a serious illness of the
      mother of the appellant who was resident in Guatemala.  The daughter (the
      mother of the infant) and the applicant and the young child travelled to
      Guatemala and were there between 18 June and 5 August 2000.  Around this
      time period they changed addresses from Burnaby to Richmond.  Although
      the daughter said that she had called a family court counsellor to advise
      that they were leaving the city to attend to the ill grandmother, there
      was apparently no formal response by her to the pending access application
      brought by the father.  It appears the father had no contact with the mother
      since April of 2000 and that he was unaware of the family's move to Richmond.

[5]

When
      the application of the father came on for hearing in August 2000 in Surrey
      Provincial Court, only the father was present.  At the first attendance
      in court, the presiding judge was troubled that the mother was not there.  He
      instructed the father to make efforts to locate the mother and ordered
      a short adjournment of the case to permit this to be done.  The father
      was not successful and advised the judge of this after the adjournment.  It
      appears that Ms. Alvizuris, her daughter and the young child had again
      left for Guatemala around this time because of the death of the mother
      of the applicant.  Ultimately a warrant was issued for the mother of the
      child because the child was not produced pursuant to a court order.  When
      the mother was located in June of 2001 she was arrested and spent some
      time in jail.

[6]

The
      applicant said that she had received a distraught phone call from her daughter
      who was in custody.  She thus became aware of the outstanding custody order
      that had earlier been made in favour of the father.  The applicant said
      that her daughter asked her to keep the young child safe.  Thereafter the
      applicant took the child to the United States for a time, remaining there
      for three months in different locations.  Eventually in October the applicant
      brought the child back and surrendered him to the authorities.  She was
      then charged with the offences of which she was convicted, namely child
      abduction and obstruction of justice.  In the course of her reasons dealing
      with the application to leave with the jury the defence of necessity, the
      trial judge said this:

[59]  The accused could not articulate precisely what harm she feared
      Josiah would suffer in the care of his father for the couple of days it
      would take to challenge the interim custody order.  It was, in the words
      of her counsel, an "inchoate fear" of Marlon's "messy" life,
      his professed fear of gang members coming after him and his suspected use
      of drugs, and the suspicion that Marlon's father had at some time in the
      past abused his daughter.

[60]  I must emphasize there was no suggestion that Marlon had ever abused
      Josiah or caused him harm in any way, nor was there any suggestion that
      Jorge Amaya had ever caused harm to the boy.

[61]  The imminence of harm was vaguely expressed as a concern about
      Marlon's lifestyle, concerns that were not borne out in any way by the
      investigation of Rachelle Bazunas, the social worker appointed by the court
      to investigate the matter.

[62]  The issue is whether the fears and suspicions of the accused, accepting
      that they were honestly held and viewing the matter from her perspective,
      can amount to imminent harm within s.285 and the requirements of the necessity
      defence.  After much consideration, I have concluded that they cannot.  There
      was no imminence in this situation and likely there was no harm.

[63]  As noted by the Court of Appeal in
C.A.V.
[
R. v. C.A.V.
,
      [2003] O.J. No. 3247], the defence provided by s.285 accords a lawful excuse
      for breaching a court custody order.  As such, it is designed to deal with
      an emergent situation of danger.  In this case, the Provincial Court issued
      a custody order many months after the accused and her daughter received
      notice that the father was seeking access to Josiah.  In the full knowledge
      that Marlon was taking steps to gain access to his son, they relocated
      without telling him.  They never contacted Marlon to determine the outcome
      of his application or to advise him of their new address.  They represented
      to staff of the private school where Josiah was enrolled that Marlon played
      no role in his son's life.

[64]  It undoubtedly came as a shock to the accused and her daughter
      that Marlon was granted custody when he sought only access to Josiah.  The
      learned Provincial Court judge took a very unusual step when she granted
      sole custody to the father in the absence of any evidence as to the best
      interests of the child.  Nevertheless, it was the conduct of the accused
      and her daughter that precipitated the
ex parte
custody order.  It
      was their subsequent conduct that led to the warrant for the mother's arrest.

[65]  The accused and her daughter, having failed to deal with the father's
      access application, were shocked and profoundly unhappy with the resulting
      custody order in his favour.  Only then did they attempt to invoke the
      services of the Ministry of Children and Families.  They had every opportunity
      to seek the assistance of the Ministry from the time Marlon applied for
      access, but did not do so.

[66]  The Provincial Court judge seized with the application for Jennie's
      interim release from custody also took a highly unusual step when he ordered
      the accused to produce Josiah.  In my view, the court had no jurisdiction
      in the context of the bail hearing to issue such an order.  The accused
      was delivered an ultimatum by the court that undoubtedly took her entirely
      by surprise.  Having said that, the crisis the accused faced was one primarily
      of her own making.  As an employee of the Ministry of Human Resources with
      some child protection training, she knew even at that point there were
      steps she could take to ensure the appropriate inquiries were made as to
      Josiah's safety.

[67]  There was, in short, nothing imminent in this situation. Further,
      there was no "harm" that could have befallen this child while
      Jennie applied to have the custody order set aside and arrangements were
      made to put in place the appropriate resources to assess the child's living
      situation with the father.  There was a deadline looming here for the accused,
      but it was a deadline that in the words of the court in
C.A.V.
,
"did
      not create an emergency situation requiring immediate action to rescue
      [the child] from imminent danger."

[68]  There is a vitally important public policy consideration underlying
      the limited nature of the defence afforded by s. 285 of the
Code
.  If
      a parent who is unhappy with a custody order, and has vague fears about
      the parenting ability of the custodial parent, could remove the child from
      the custodial parent on the basis of those fears, the result would, in
      the words of the court in
C.A.V.
(at para. 22):

... invite a regime
      of anarchy and chaos within the family law domain.  Parents unhappy with
      the outcome of custody proceedings would feel entitled to ignore, with
      apparent impunity, unfavourable court orders regarding their children.  Instead,
      what the parents must do is operate within the legal system.

[7]

The
      trial judge went on to find that the appellant applicant had access to
      legal resources and access to the courts.  The trial judge also found that
      the reaction of the applicant was not proportional to the circumstances
      facing her and her grandson.  The trial judge made extensive reference
      to the case of
R. v. C.A.V.
, [2003] O.J. No. 3247, a judgment
      of the Ontario Court of Appeal wherein it was found that the judge had
      erred in leaving the defence of necessity with the jury in a case where
      the mother had failed to return the children from an access visit and had
      taken the children to a foreign country.

[8]

It
      seems to me, having considered the facts in this case and the facts in
      the case of
R. v. C.A.V.
that the reliance placed by the
      trial judge in this case on the case of
R. v. C.A.V.
was
      well founded.  It is difficult to discern any air of reality in the defence
      of necessity sought to be advanced by the applicant in this case.  There
      were clearly other avenues open to the applicant than the precipitate one
      of taking the child across the U.S. border and remaining there for a period
      of months.

[9]

A
      salient consideration in the decision of whether or not an order should
      be made for the appointment of counsel is the question of the likelihood
      of success of a proposed appeal:
R. v. Weismiller
, [1994]
      B.C.J. No. 2656 (C.A.);
R. v. Chan
, 2001 BCCA 138, [2001]
      B.C.J. No. 392.  I am not persuaded of the substance of the grounds sought
      to be advanced on appeal.  In my view, the chances of success of this appeal
      are slim to the vanishing point.  I do not perceive any basis on which
      it could be asserted that the ruling of the trial judge concerning the
      defence of necessity could successfully be attacked.  Because of these
      circumstances, in my opinion this is not an appropriate case in which to
      order the appointment of counsel and I therefore dismiss this application
      for the appointment of counsel.

The Honourable
Mr. Justice Hall


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Richer,

2005 BCCA
            3

Date: 20050106

Docket: CA032133; CA032257

Docket: CA032133

Between:

Regina

Respondent

And

Jason Donald
      Richer

Appellant

- and -

Docket: CA032257

Between:

Regina

Respondent

And

Eric Henderson

Appellant

BAN ON PUBLICATION
SECTIONS 486(4.1) AND 539(1) OF THE CRIMINAL CODE

THE COURT ORDERS A BAN ON AND PROHIBITS THE
        PUBLICATION IN PRINT AND THE BROADCASTING ON TELEVISION, FILM, RADIO
        AND THE INTERNET OF ANY INFORMATION TENDING OR SERVING TO PUBLICLY IDENTIFY
        UNDERCOVER POLICE OFFICERS IN THE INVESTIGATION OF THE CO-ACCUSED IN
        THIS MATTER, INCLUDING BUT NOT LIMITED TO, ANY LIKENESS OF THE OFFICERS,
        THE APPEARANCE OF THEIR ATTIRE AND THEIR PHYSICAL DESCRIPTION

Before:

The Honourable
            Chief Justice Finch

The Honourable
            Mr. Justice Mackenzie

The Honourable
            Madam Justice Levine

D.H. Silverman

Counsel for the Appellant, Jason Donald
            Richer

G. Orris,
            Q.C.

Counsel for the Appellant, Eric Henderson

K. Ker

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

December 1, 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

January 6, 2005

Written
              Reasons by
:

The Honourable
            Madam Justice Levine

Concurred
              in by:

The Honourable
            Chief Justice Finch

The Honourable
            Mr. Justice Mackenzie

Reasons for Judgment of the Honourable Madam Justice
        Levine:

Introduction

[1]

The
      appellants were convicted of manslaughter by a Supreme Court judge and
      jury on April 18, 2004 and sentenced on July 2, 2004 to four-and-a-half
      years in prison, taking into account credit of three-and-a-half years for
      time served. They appeal the sentences, claiming an effective sentence
      of eight years in prison is excessive.

[2]

I
      would not interfere with the sentence in the case of Mr. Henderson and
      would dismiss his appeal. In the case of Mr. Richer, I would allow the
      appeal and reduce his sentence to seven years, less three-and-a-half years
      for pre-trial custody.

Circumstances of the Offence

[3]

The
      trial judge summarized the circumstances of the offence in his reasons
      for sentencing (2004 BCSC 965 at paras. 2-7):

Henderson
      and Richer were employed at a crack cocaine house in Sechelt.  They became
      enraged with Baptiste over the course of January the 14 and 15, 2002, because
      Baptiste was causing trouble at the crack house, demanding more and free
      drugs and attacking the door of the crack house with a hammer, large stone
      and machete.  At one point, during the afternoon of January the 14, there
      was a standoff between Henderson and Baptiste outside the back door of
      the crack house, Baptiste, holding a hammer, and Henderson, a metal pipe.  However,
      neither man assaulted the other at that time.

Shortly
      after midnight of January the 15, Baptiste returned to the crack house
      and was again demanding drugs and beating on the door.  He was given some
      crack cocaine by John Varady, the employer dealer in the house, and was
      leaving the property.  Henderson, with Richer following, accosted Baptiste
      in the parking lot of the crack house.  Baptiste was walking away and had
      no weapons on his person.  Henderson kicked Baptiste in the chest and then
      punched and kicked him in the head while he was down on the paved surface.  Richer
      then stomped on Baptiste's head.

After
      the assault, Baptiste was left lying unconscious in the parking lot.  Henderson
      and Richer returned to the crack house.  Baptiste continued to lie unconscious
      in the parking lot.  Some other customers came to the crack house and asked
      about Baptiste, whom they knew.  Varady told them, through a closed door,
      that an ambulance had been called.

At
      one point, Richer was sent out by either Varady or Henderson, out to the
      parking lot with a bowl of water to throw on Baptiste to wake him up.  Baptiste
      appeared to be snoring and was not revived by the water poured on his head.

Subsequent
      autopsy results revealed that Baptiste was in a coma with fatal injuries
      to his brain from the blows inflicted by Henderson and Richer.

Baptiste was finally found about two hours after the
      assault by a security guard who was doing his rounds.  That security guard
      knew Baptiste and called Emergency Services, 911.  The Royal Canadian Mounted
      Police and ambulance arrived a few minutes later.  Baptiste was taken to
      the local hospital in Sechelt, then airlifted to the Vancouver General
      Hospital a few hours later, and from there to the intensive care unit at
      Victoria General Hospital where he died from his head injuries a week later,
      on January 22, 2002.

[4]

The
      trial judge found (at paras. 13-15) that Mr. Henderson had instigated the
      fight with the victim, and "succeeded in putting him to the ground".
      Mr. Richer, a "follower", "decided to participate by stomping
      on [the victim's] head." He found both accused "are equally culpable
      in causing [the victim's] death."

Circumstances of the Offenders

Mr. Henderson

[5]

At
      the date of the offence, Mr. Henderson was 30 years old. He was raised
      primarily by his mother, who continued to support him through the criminal
      proceedings. Mr. Henderson has a son from a common-law relationship from
      whom he is involuntarily estranged. His criminal record, until his conviction
      for robbery in 2001, involved minor matters. He has a grade 10 education
      and has held a series of jobs, none for more than two years. He has a black
      belt in tae-kwon do. He had some anger management counselling while on
      probation for the robbery, but did not avail himself of any programs or
      courses while in custody awaiting trial for this offence. Mr. Henderson
      has used alcohol to excess; both he and Mr. Richer had been drinking the
      day of this offence.

[6]

Mr.
      Henderson was on probation following his conviction for robbery when this
      offence was committed. His co-accused in the robbery was convicted of manslaughter.
      The robbery involved an attempt to break-in and steal from a marijuana
      grow operation. He and his co-accused did not expect the house to be occupied.
      They left when they became aware that there was someone in the house. The
      co-accused fired shots from outside which the trial judge found resulted
      in the death of the victim. The trial judge concluded that: "The defendants
      came armed, in a planned endeavour, fully willing to participate with deadly
      force." Mr. Henderson was sentenced to four years in prison, reduced
      to five months after allowing credit for 43 months spent in custody before
      sentencing, and one year probation "to promote efforts towards rehabilitation".

[7]

After
      his release from prison following the robbery, Mr. Henderson took a job
      with the drug house in Sechelt as an enforcer, to make some money and buy
      a car. In the pre-sentence report, the probation officer points out that
      in both the robbery and in taking the job with the drug house, Mr. Henderson
      made a conscious decision to participate in matters centering on the drug
      trade, knowing of the potential for violence in these enterprises.

[8]

The
      sentencing judge noted that Mr. Henderson has been described by corrections
      officers as respectful and courteous, and that he has plans to complete
      his education, restore access to his son and stabilize his life.

Mr. Richer

[9]

Mr.
      Richer was 24 years old at the date of this offence. He lived with his
      mother from the age of 12 until 2000. He maintains supportive relationships
      with his father, his siblings and a woman with whom he lived for three
      years before this offence and who is a positive influence on him. Mr. Richer
      has limited cognitive ability. He finished grade seven after repeating
      some grades several times. Despite his limited education, he has maintained
      steady employment. He had no criminal record before this offence. He has
      an alcohol abuse problem, for which he sought counselling and completed
      courses while in prison awaiting trial. He applied to a treatment centre,
      hoping to attend on his release from custody.

[10]

Mr.
      Richer's relationship with Mr. Henderson involved training in tae-kwon
      do and drinking beer together. The trial judge commented (at para. 12)
      that: "He looked to Henderson as an older brother and mentor." Although
      the trial judge said (in para. 2) that both Mr. Henderson and Mr. Richer
      were employed at the drug house, he noted that both Mr. Henderson and Mr.
      Richer had stated that Mr. Richer only went there to keep Mr. Henderson
      company.

Counsel's Positions at Sentencing

[11]

Crown
      counsel sought an effective sentence of 16 years in custody for Mr. Henderson
      and 13 years for Mr. Richer.

[12]

Both
      defence counsel argued that the appropriate range of sentence was four
      to six years before credit for pre-sentence custody. Counsel for Mr. Henderson
      suggested a sentence of less than two years and probation (taking into
      account pre-sentence custody). Counsel for Mr. Richer suggested that an
      appropriate sentence would be time served or a conditional sentence if
      further time in prison was necessary.

Grounds of Appeal

Description of Offence as "Near Murder"

[13]

Both
      appellants claimed that the trial judge erred in principle by describing
      the offence as equivalent to murder as defined in s. 229(a)(ii) of the
Criminal
      Code
:

229.  Culpable homicide is murder

(a)   where the person who causes the death of a human
      being

. . .

(ii)  means to cause
      him bodily harm that he knows is likely to cause his death, and is reckless
      whether death ensues or not;

[14]

The
      appellants object to the following passages of the trial judge's reasons
      for sentencing (at paras. 18 and 32):

[18]  . . .

1.    The beating was brutal. While it is unclear which
      of the two offenders directly caused the victim's death, both ought to
      have known that the force of their attacks may well cause death. In other
      words, there was reckless indifference as to the consequences.

. . .

[32]  [after referring
      to manslaughter cases "approaching the very serious offence category
      of near murder"] This case comes close to the "very serious" category.

[15]

The
      appellants suggest that by describing this offence in terms of murder,
      the trial judge gave excessive weight to the aggravating factors.

[16]

I
      agree with Crown counsel that it cannot be said, considering the trial
      judge's reasons as a whole in the context of his experience as a trial
      judge and having heard the evidence in this particular case, that the trial
      judge did not understand the nature of the offence of which the appellants
      had been convicted.

[17]

As
      pointed out by Crown counsel, the trial judge was articulating the objective
      standard for "unlawful act manslaughter".

[18]

In
R.
          v. Creighton
, [1993] 3 S.C.R. 3 at 42, McLachlin J. (as she
          then was) stated that manslaughter consists of (1) conduct causing
          the death of another person, and (2) fault short of intention to kill.
          The fault may consist of committing another unlawful act, in this case
          the assault of the victim. She continued at 42-43:

The cases establish that in addition to the
actus reas
and
mens
        rea
associated with the underlying act, all that is required to support
        a manslaughter conviction is reasonable foreseeability of the risk of
        bodily harm. While s. 222(5)(a) [the definition of culpable homicide
        by means of an unlawful act] does not expressly require foreseeable bodily
        harm, it has been so interpreted: see
R. v. DeSousa
, [[1992] 2
        S.C.R. 944]. The unlawful act must be objectively dangerous, that is,
        likely to injure another person. The law of unlawful act manslaughter
        has not, however, gone so far as to require foreseeability of death.

[19]

After
      reviewing the history of the development of the test of objective foreseeability,
      McLachlin J. summarized the test at 44-45:

So the test for the
mens rea
of unlawful act manslaughter
      in Canada, as in the United Kingdom, is (in addition to the
mens rea
of
      the underlying offence) objective foreseeability of the risk of bodily
      harm which is neither trivial nor transitory, in the context of a dangerous
      act.

[20]

The
      appellants were charged with second degree murder. Provocation and intoxication
      were factors for the jury to consider in determining their intent. The
      jury found the appellants did not have the specific intent for murder,
      but the trial judge's description of the offence as being "very close
      to the "very serious" category" of "near murder" does
      not indicate any confusion on his part. Rather, it reflects the well-established
      spectrum of culpability in manslaughter cases ranging from "near accident" to "near
      murder": see
R. v. Billings
, 2004 BCSC 653 at para.
      50, where Romilly J. cites
R. v. Pettigrew
(1990), 56 C.C.C.
      (3d) 390 (B.C.C.A.) and
R. v. Vaudreuil
(1995), 98 C.C.C.
      (3d) 316 (B.C.C.A.). The location of this offence on the spectrum is a
      factual matter. This Court will not interfere with the trial judge's findings
      of fact unless it is shown that he misapprehended the evidence. That has
      not been shown in this case.

[21]

I
      would dismiss this ground of appeal.

Mr. Henderson's Grounds of Appeal

[22]

Mr.
      Henderson raises three additional grounds of appeal.

[23]

Mr.
      Henderson claims that the trial judge erred in considering as aggravating
      factors Mr. Henderson's participation in the drug trade as an employee
      of the drug house and his involvement in the robbery of the marijuana grow
      operation in which a man died.

[24]

In
      my opinion, these were important matters relating to Mr. Henderson's background
      that the trial judge had to take into account as aggravating factors. They
      reflect on Mr. Henderson's character and his willingness to be involved
      in illegal and potentially serious, violent activities. The circumstances
      of the robbery conviction attain greater relevance because Mr. Henderson
      was on probation from that offence when this offence was committed.

[25]

I
      would not accede to these two grounds of appeal.

[26]

Mr.
      Henderson claims that the trial judge erred in finding that the victim
      was impaired by drugs or drug withdrawal and likely unable to defend himself
      and characterizing that as an aggravating factor. He does not challenge,
      however, the trial judge's description of the victim's activities and condition
      during the day preceding the beating. He was a drug addict who kept returning
      to the house, acting erratically and violently until he was given more
      drugs. There is no error in drawing the inference from those facts that
      at the time of the beating the victim was impaired by drugs or drug withdrawal.

[27]

I
      would not accede to this ground of appeal.

Mr. Richer's Grounds of Appeal

[28]

Mr.
      Richer argues that the trial judge failed to give sufficient weight to
      the mitigating factors in his case and therefore placed insufficient emphasis
      on the principle of rehabilitation. He also claims that the trial judge
      failed to consider a conditional sentence.

[29]

I
      will deal with the first ground after the discussion of the range of sentence,
      below.

[30]

The
      trial judge did not discuss a conditional sentence in his reasons for sentence,
      but during submissions of counsel, he made it clear that he did not consider
      this case appropriate for a sentence of imprisonment of less than two years,
      stating: "In my view, this case calls for an additional term of imprisonment
      amounting to federal penitentiary time."

[31]

I
      would not accede to this ground of appeal.

Range of Sentence

[32]

Both
      appellants say that the effective sentence of eight years is outside the
      range of sentences for this type of manslaughter. They cite
R. v.
      Gillies
, [1998] B.C.J. No. 1153 (C.A.)(QL) as establishing a range
      of four to six years.

[33]

This
      Court dealt with the applicability of a "range" of sentences
      in
R. v. Bernier
(2003), 177 C.C.C. (3d) 137 (B.C.C.A.).
      All of the justices who decided that case agreed that when this Court refers
      to a "range" of sentences for a particular offence, it reflects
      the sentences the Court has approved or determined in previous appeals
      involving similar offenders and similar offences. A "range" is
      meant to serve as a guideline for trial judges, not a rule that imposes
      a minimum or maximum for a particular offence. As Prowse J.A. pointed out
      at para. 75:

I
      agree with my colleagues that references to ranges of sentence should not
      distract the court from giving appropriate weight to the other principles
      of sentencing set forth in the
Code
, or from adjusting each sentence
      to the specific circumstances of the offence and the offender.  The goal
      of the Court in each case will be the same  to determine whether the sentence
      is fit for this offender committing this crime.

[34]

Thus,
      the four to six year range suggested in
R. v. Gillies
is
      just that, a suggestion. The question is whether, in determining the sentences
      imposed on these offenders for this offence, the trial judge considered
      the relevant principles of sentencing, gave appropriate emphasis to the
      aggravating and mitigating factors, and took into account the particular
      circumstances of each of Mr. Henderson and Mr. Richer and of the offence.

[35]

Mr.
      Henderson's counsel cited
R. v. Gillies
(seven years; youthful
      offender "fueled by alcohol and drugs" stabbed the victim during
      a fight) and
R. v. R.E.A.
, 2003 BCSC 925 (five years 10 months;
      offender stabbed victim during a fight; both using cocaine) in support
      of his submissions that Mr. Henderson should receive an effective sentence
      of six years. Taking into account credit for pre-sentence custody, the
      sentence would be 24 to 30 months in prison.

[36]

Mr.
      Richer's counsel's position is that Mr. Richer's sentence should be lower
      than that of Mr. Henderson. He suggests a sentence of time served plus
      a year of probation, or a conditional sentence of up to 18 months. The
      effective sentence would be four to five years. He cites in support of
      his submissions
R. v. Gillies
,
R. v. Hancock
,
      2001 BCSC 871 (18 months prison plus two years probation for manslaughter
      involving torture of a masochist);
R. v. Chao
, 2003 BCSC
      879 (conditional sentence of two years less a day; youthful first offenders
      part of a group assault at a Karaoke club);
R. v. Aldridge
(11
      December 2002), North Vancouver 13503-C2 (B.C.P.C.) (five years; young
      first offender kicked victim at a New Year's party).

[37]

Crown
      counsel provided cases where offenders were sentenced to seven to ten years.
      Of particular note are:
R. v. Henderson and Kieler
(22 June
      2001), New Westminster CWC X040473 (B.C.S.C.) (44 months (effective eight
      years) following guilty plea to manslaughter; this was Mr. Henderson's
      co-accused in the robbery);
R. v. Glover
, 2002 BCCA 271 (seven
      (effective 10) years; youthful offender struck victim from behind with
      a hammer; co-accused stabbed the victim);
R. v. Nowacki
,
      [1998] B.C.J. No 481 (C.A.)(QL) (ten years; 32-year-old offender put victim
      in a sleeper hold; co-accused beat victim);
R. v. Dasilva
,
      [1988] B.C.J. No. 1744 (C.A.)(QL) (eight years; 22-year-old offender beat
      victim). (The trial judge cited
Gillies
,
Glover
and
Nowacki
in
      his reasons for sentence.)

[38]

Each
      of these cases may be distinguished from each other and from this case.
      Every case cited involves unthinking, horrific violence with the worst
      ultimate consequences. It is not the role of this Court to examine the
      facts of each authority to precisely calibrate the degrees of violence
      of each incident. The role of this Court is to determine whether the trial
      judge imposed a sentence that is demonstrably unfit in the circumstances
      of the particular case he had to decide, considering the principles of
      sentencing, the aggravating and mitigating factors, and the relevant authorities.

[39]

In
      the case of Mr. Henderson, I find no basis to conclude that a sentence
      of eight years is, in all of the circumstances, demonstrably unfit.

[40]

In
      the case of Mr. Richer, however, in my opinion the trial judge placed too
      much emphasis on denunciation and too little on his greater prospects of
      rehabilitation.

[41]

The
      trial judge considered as an aggravating factor in Mr. Richer's case that
      his role in the beating was particularly brutal, but found both appellants
      equally culpable in the beating death of the victim. Given that finding,
      the trial judge failed to give sufficient emphasis to the mitigating differences,
      from Mr. Richer's point of view, between his background and that of Mr.
      Henderson.

[42]

Mr.
      Richer has no criminal record; no proclivity to violence; has been regularly
      employed despite learning difficulties that have resulted in bare literacy
      and a grade seven education; and made efforts at rehabilitation while in
      prison awaiting trial. Mr. Henderson has a criminal record, including a
      conviction in 2001 for robbery in which his co-accused was convicted of
      manslaughter. Mr. Henderson committed this offence while he was on probation
      relating to the robbery conviction. Both of the convictions involved the
      drug trade.

[43]

The
      trial judge correctly considered that denunciation and general deterrence
      were the main principles of sentencing applicable in this case. He found
      that specific deterrence was not a concern because neither appellant is
      likely to commit another homicide. He should have considered, in addition,
      the likelihood of each of the appellants being involved in further criminal
      activity and the relative effect of rehabilitative measures. Had he done
      so, in my opinion he would have concluded that Mr. Richer is less likely
      than Mr. Henderson to be involved in criminal activity following his release
      from prison and more likely to benefit from rehabilitation programs while
      he is there.

[44]

For
      these reasons, I would reduce the sentence imposed on Mr. Richer to an
      effective seven years. Allowing credit for pre-sentence custody, his sentence
      would be three-and-a-half years in prison.

Conclusion

[45]

I
      would grant Mr. Henderson an extension of time in which to bring his sentence
      appeal, grant leave to appeal, and dismiss his appeal.

[46]

I
      would grant Mr. Richer leave to appeal, allow the appeal, and vary his
      sentence by reducing it by one year to three-and-a-half years in prison.

The Honourable
Madam Justice Levine

I Agree:

The Honourable
Chief Justice Finch

I Agree:

The Honourable
Mr. Justice Mackenzie