COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Crossley,

2006
          BCCA 5

Date: 20060104

Docket: CA033377

Between:

Regina

Respondent

And

Curtis
    James Crossley

Appellant

Before:

The
          Honourable Mr. Justice Smith

(In
          Chambers)

M.
          Jette

Counsel for the Appellant

J.
          Duncan

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

9 December 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

4 January 2006

Reasons for Judgment of the Honourable Mr. Justice Smith:

[1]

On December 9, 2005, I granted the appellants application for judicial
    interim release pending appeal with reasons to follow.  These are my reasons.

[2]

The appellant sought judicial interim release pursuant to s. 679 of
    the
Criminal Code
pending his appeal from his conviction by
    a jury on June 24, 2004 on one count of manslaughter as a lesser included
    offence of a count alleging second degree murder, and on two counts of aggravated
    assault.  On September 6, 2005, the trial judge, Mr. Justice Davies, sentenced
    the appellant to seven years imprisonment for the manslaughter and two years
    concurrent for each of the convictions for aggravated assault.  He gave credit
    of eight months for pre-sentencing custody and, as a result, the actual sentence
    was six years and four months.

[3]

To succeed under s. 679(3) of the
Code
, an applicant
    must establish on a balance of probabilities 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.

[4]

The offences occurred in the home of the deceased, Walter Irving, on
    the night of March 15, 2004, when a gang of at least six persons broke into
    the home and beat Mr. Irving and two others, Ifraz Khan and David Baik.  The
    jury acquitted the appellant of the second degree murder of Mr. Irving and
    convicted him of the included offence of manslaughter.  They also convicted
    him of aggravated assault of Mr. Khan and Mr. Baik.

[5]

Mr. Irvings home was known as a crack shack in which drugs were
    used and sometimes dealt.  Mr. Irving was a known crack cocaine and heroin
    addict and dealer.  The appellant was previously acquainted with him by reason
    of his own addiction to crack cocaine.

[6]

The Crowns theory was that motive for the beatings was retribution
    for a beating suffered earlier that day by the appellant, when he and his
    cousin, Arthur Bouchard, were involved in a fight with two men, one of whom
    was Mr. Khan.  The trial judge found that either the appellant or Mr. Bouchard,
    more likely Mr. Bouchard, threw a rock or a brick through the basement window
    of the Irving home.  Mr. Khan and another man, identified only as Cam, who
    were in the home at the time, chased and caught them.  During the fight, the
    appellants ear was badly cut by a knife wielded by Cam.  He attended a
    hospital, where his head was bandaged, and then went home.  About nine hours
    later, the gang of at least six persons, including the appellant, broke into
    the Irving home and inflicted the beatings that gave rise to these proceedings.
    The man known as Cam was not present in the Irving home at that time.

[7]

The trial judge noted that the evidence of the events inside the home
    was controversial and not particularly reliable.  The key Crown eyewitnesses
    were Mr. Khan and Cynthia Errington, who were both under the influence of
    crack cocaine at the material time.  As might be expected, there were conflicts
    in their testimony.  The trial judge observed that there were many bases upon
    which the jury could have reached their verdicts and that he must therefore
    make the necessary findings of fact concerning the appellants participation.

[8]

Accordingly, the trial judge concluded that the invaders forced their
    way into the Irving residence and that they were carrying several baseball
    bats and at least one machete.  It was established that Mr. Irving died from
    one lethal blow to the head.  He concluded that Mr. Irving was knocked down
    by the attackers and repeatedly beaten or kicked.  He was unable to conclude
    whether the lethal blow was inflicted by a baseball bat, as Ms. Errington
    had testified, but he described the beating as egregious, vicious, violent,
    and protracted.  He found that Mr. Baik was attacked by at least one individual
    and that Mr. Khan was repeatedly attacked by one individual.  He could not
    conclude that the appellant was an active participant in any of these beatings.
    Accordingly, he concluded that the jury must have found the appellant guilty
    as an aider and abettor under s. 21(1) of the
Code
, rather than
    as an actual perpetrator of the beatings.

[9]

The ground of appeal asserted is that the learned trial judge erred
    in his instructions to the jury concerning their use of the prior out of court
    statements of witnesses Arthur Bouchard and Andy Sulin.  Both of these witnesses
    were called by the Crown.

[10]

As I have noted, Arthur Bouchard was with the appellant at the fight
    that occurred earlier in the day.  He was also in the appellants company
    during the period of time immediately prior to the events in the Irving home.
    He was interviewed by the police and made several statements that, if accepted,
    afforded the jury a basis for inferences that would enmesh the appellant in
    the crimes of which they convicted him.  At the trial, he gave evidence that
    contradicted all of these incriminating statements.  The Crown was permitted
    to cross-examine him under s. 9(2) of the
Canada Evidence Act
.
    Following that cross-examination, the Crown applied to cross-examine him at
    large under s. 9(1).  The trial judge granted the application, concluding
    that the evidence he had given was substantially inconsistent with his prior
    statements and potentially positively harmful or damaging evidence to the
    Crowns case and deliberately so.  As the Crown was still unable to obtain
    the evidence it wished from Mr. Bouchard, it applied to introduce his statements
    to the police as substantive evidence pursuant to the principles set out in
R. v. K.G.B.
, [1993] 1 S.C.R. 740.  The trial judge dismissed
    this application.

[11]

Andy Sulin was also interviewed by the police.  He was with the appellant
    in the period of time preceding the fatal events and he told the police that
    the appellant had made statements to him that, if his evidence was accepted,
    could have persuaded the jury to reach the verdicts it delivered.  Like Arthur
    Bouchard, Andy Sulin gave evidence in the witness box that was inconsistent
    with the statements he had made to the police.  With the permission of the
    trial judge, the Crown cross-examined him pursuant to s. 9(2) of the
Canada
    Evidence Act
.

[12]

Both Arthur Bouchard and Andy Sulin testified before the jury that
    the statements they had given to the police were lies.

[13]

Before discussing the ground of appeal alleged, I will mention one
    other notable incident in the trial.  Apparently, after he left the witness
    stand, Arthur Bouchard made a disrespectful gesture toward the jury.  After
    inquiries by the Sheriff at the behest of the trial judge, it was disclosed
    that four jurors had seen the gesture and that one was specifically concerned
    about it.  The trial judge interviewed each of these jurors separately in
    the courtroom and was satisfied that they would abide by their oath despite
    the incident.  Subsequently, in open court, the trial judge inquired of the
    jury as a whole and was advised that all of them were aware of the incident
    and that it would not affect the ability of any of them to render an impartial
    verdict.  Accordingly, he dismissed the appellants application for a mistrial.
    The appellant raised this incident only to suggest that it gives colour to
    the submission that the jury might have been influenced to give weight to
    evidence of what was said by the witnesses Bouchard and Sulin to the police,
    since the trial judge did not, in his view, properly direct them on this issue.

[14]

Counsel agree that neither Arthur Bouchard nor Andy Sulin adopted the
    statements they made to the police incriminating the appellant in the crimes.
    Accordingly, the appellant submits that the trial judge erred when he told
    the jury that it was open to them to find that these witnesses had adopted
    part or parts of their earlier statements and, if they so found, that they
    could use such statements as evidence of the truth of what was said.  As well,
    the appellant notes that the trial judge also reminded the jury that these
    witnesses testified under oath that they told nothing but lies to the police.
    Thus, the appellant says the jury was given conflicting instructions.  In
    the appellants submission, in the particular circumstances of this case,
    the trial judge should have told the jury that these witnesses did not adopt
    any of their prior statements to the police.

[15]

Although the Crown indicated in its written statement that it would
    oppose the applicants release under s. 679(3)(a), Crown counsel did not take
    the position at the hearing that the appeal is frivolous.  In my view, the
    appeal is not frivolous and the appellant has satisfied s. 679(3)(a).

[16]

The Crown did not suggest that the appellant will not surrender himself
    into custody in accordance with the terms of any order for his release, as
    is required by s. 679(3)(b).  That was a reasonable concession.  The appellant
    is twenty years old.  He has no previous criminal record.  He recently married
    his childhood girlfriend.  She has held part-time employment while she has
    been attending college and working toward a college diploma.  She also plans
    to obtain a university degree.  She says that she stands by [the appellant]
    regardless of the outcome of these proceedings.  The appellant is the eldest
    of three children.  His family has provided him a stable and supportive upbringing.
    His parents are both employed, the father full-time and the mother on and
    off as a home support worker.  They stood surety for him on his release pending
    trial on a recognizance in the amount of $50,000.  He was on bail pending
    his trial for fourteen months and complied with all the terms of his release.
     His parents remain supportive of him and agreed to be sureties on the same
    terms in respect of his release pending appeal.  He produced at his sentencing
    many letters from family members, friends, and other associates attesting
    to his good character.  He left school after Grade 12 and was employed part-time
    in his uncles wholesale paint business from July 2004, when he was released
    on bail, until his sentencing.  His uncle expressed his desire to employ him
    on his release.  Accordingly, there is no real concern that he will fail to
    surrender himself in accordance with the terms of his release.

[17]

On the negative side, the appellant has struggled with drug abuse since
    he began using crystal meth at age fifteen.  He eventually became addicted
    to crack cocaine and disclosed to the probation officer who prepared his pre-sentence
    report that he had resorted to crime to support his habit, including stealing
    and selling some of his parents belongings.  He claimed to have remained
    free of illicit drug use since he was arrested in March 2004 on these charges.
    It should be noted that one of the conditions of his release was that he abstain
    from consumption of non-prescription drugs and that he submit to a urinalysis
    on demand by a peace officer or member of staff of the Corrections Branch.
    There is no suggestion that he breached that condition.

[18]

The appellant consented, through his counsel, to a condition of his
    release that he abstain from consumption of illicit drugs and submit to urinalysis
    on demand.  In addition to that condition, I imposed, among others, conditions
    that he observe a curfew by remaining in his residence every day between 9:00
    pm and 8:00 am, unless he has the written consent of his Bail Supervisor or
    for emergent medical problems; that he have no contact with the complainants
    or any Crown witnesses; and that he remain in the Province of British Columbia.
    Accordingly, I released him upon his entering into a recognizance with two
    sureties (his parents) in the sum of $50,000.

[19]

Turning to s. 679(3)(c) of the
Code
, the definition of
    public interest is elusive.  The particular facts of the case under consideration
    are important, including the strength of the appeal:  see, for example,
R.
    v. Nguyen
(1997), 119 C.C.C. (3d) 269 (Chambers), McEachern C.J.B.C.,
    and
R. v. Mapara
(2001), 158 C.C.C. (3d) 312, 2001 BCCA 508.

[20]

In the end, the question is whether a reasonable member of the public,
    with accurate knowledge of the law, the nature of the risk Parliament anticipated,
    the actual circumstances of the accused, and the facts of the case would
    lose confidence in the administration of justice if the appellant were released
    pending his appeal:
R. v. Nguyen
,
supra
, paras. 25-26.

[21]

Although Crown counsel characterized the alleged error as subtle
    and narrow, I did not understand her to seriously challenge the strength
    of the appeal.  Rather, I took her to focus primarily on the necessity for
    the imposition of strict conditions on the appellants release.

[22]

These were extremely violent crimes.  Although the Crown urged the
    trial judge to conclude that the appellant was the organizer of the home
    invasion and that he was motivated by a desire for revenge, he did not accede
    to that submission.  The jury acquitted the appellant of the murder charge
    and convicted him as an aider and abettor of the other offences, rather than
    as a perpetrator.  Thus, his participation in the crimes was not as egregious
    as that of the persons who inflicted the beatings.  Further, the appellant
    is a young man and he has no previous criminal record.  He has a supportive
    family, including his wife, and solid roots and support in the community.
    As well, he complied with all the conditions of his release pending trial.

[23]

Weighing the circumstances I have described and the grounds of appeal
    alleged, I am satisfied that the appellants release on the strict conditions
    I have imposed will not damage public confidence in the administration of
    justice.

[24]

Accordingly, I granted
    the appellants application for judicial interim release pending appeal.

The Honourable
    Mr. Justice Smith


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Williams
          (Guardian ad litem of) v. Vancouver (City),

2006
          BCCA 6

Date: 20060105

Docket: CA033457

Between:

Lisa
    Williams, Personal Representative of Thomas Evon Stevenson, Deceased, Angelo
    Williams and Ephriam Williams, Infants, by their Guardian Ad Litem, Lisa Williams,
    and the said Lisa Williams

Respondents

(
Plaintiffs
)

And

City
    of Vancouver, Clive Milligan and Darren E. Foster

Appellants

(
Defendants
)

Before:

The
          Honourable Mr. Justice Smith

(In
          Chambers)

B.
          Parkin

Counsel for the Appellant

A.C.
          Ward

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

7 December 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

5 January 2006

Reasons for Judgment of the Honourable Mr. Justice Smith:

[1]

The applicants, the defendants in the action below, seek leave to appeal
    from the first two of the following orders made by Madam Justice Boyd in a
    jury trial of the plaintiffs claims under the
Family Compensation Act
,
    R.S.B.C. 1996, c. 126:

1.

A mistrial be declared;

2.

The Defendants pay the Plaintiffs all of their costs thrown away incurred
    as a result of defence counsels misconduct, forthwith after taxation thereof,
    including:

a)

All of counsels trial preparation;

b)

The application for production of documents;

c)

The case management conference immediately before trial;

d)

The Plaintiffs expenses in travelling to and from Vancouver and their
    costs of accommodation in Vancouver;

3.

The action be remitted to the trial list; and

4.

The action be referred to Davies J. for continued case management.

[2]

Further, the applicants seek a stay of the order for costs pending
    hearing of their appeal.

[3]

The action arises out of the shooting death of Thomas Stevenson at
    the hands of members of the Vancouver Police Department on December 7,
    2002.  The plaintiffs are Mr. Stevensons surviving common-law spouse
    and her children, to whom the plaintiffs say Mr. Stevenson stood
in
    loco parentis
.  The individual defendants are the officers who were involved.
    The City is joined as a defendant because of its statutory liability under
    s. 20 of the
Police Act
, R.S.B.C. 1996, c. 367 for
    the torts of police officers committed in the course of their duties.  The
    defendants deny liability on the basis that the fatal force used by the officers
    was justifiable in the circumstances.  Alternatively, it is their position
    that Mr. Stevenson was in prison for most of the period for which the
    plaintiffs are claiming damages for losses resulting from his death.

[4]

During the examination for discovery of the adult plaintiff, Lisa Williams,
    by Ms. Liang, counsel for the defendants, Ms. Williams testified that
    Mr. Stevenson had resided with her and her children since January 1998
    and had been incarcerated for only about twelve months of that time.  Ms. Liang
    suspected the reliability of that testimony, since it did not appear to her
    to correlate with documents she had received from the Vancouver Police Department
    relating to periods of incarceration of one Steve Evon, whom she believed
    to be Mr. Stevenson, between 1977 and 2002.  Accordingly, she investigated
    the matter and ascertained that a Ms. McLean, Chief of Sentence Management
    for the Correctional Service of Canada, had records relating to the incarceration
    of Steve Evon.  On September 19, 2005, Ms. Liang issued a subpoena
    to Ms. McLean requiring her to produce the records at the trial.

[5]

Ms. McLean prepared a summary of the records of Steve Evons periods
    of incarceration, which apparently totalled approximately forty-one months
    during the relevant period of time.  She delivered the summary to Ms. Liang.
    The trial judge concluded that Ms. McLean delivered it before Ms. Liang
    issued the subpoena but the only evidence on this point was that of Ms. Liang,
    who said she received it after she had issued the subpoena.  In any event,
    on September 23, 2005, after receipt of the summary, Ms. Liang delivered
    a supplementary list of documents to plaintiffs counsel, Mr. Ward, in
    which she identified the summary in Part III of the list, entitled Documents
    for which privilege from production is claimed as either Documents labelled
    F or Documents labelled G.  She took the position that the summary
    was privileged as part of her litigation brief.

[6]

On Monday and Tuesday, September 26 and 27, 2005, Ms. Mclean
    delivered copies of the subpoenaed records to Ms. Liang.  Ms. Liang
    reviewed them and discussed them with Ms. Mclean.  She did not disclose
    to Mr. Ward that she had the copies, nor did she deliver a further supplementary
    document list at that time.

[7]

The trial began on Monday, October 3, 2005.  Jury selection commenced
    but was not completed and the balance of the day was devoted to submissions
    concerning the admissibility of various documents.  The documents delivered
    by Ms. McLean to Ms. Liang were not mentioned.

[8]

The first witness called was the plaintiff Angelo Williams, Lisa Williams
    seventeen-year-old son, who took the stand in the afternoon of Wednesday,
    October 5, 2005.  He testified in his examination in chief that Mr. Stevenson
    moved in with the Williams family in 1998 and resided with them as a husband
    and father in their home in Toronto until he left to go to Vancouver shortly
    before he met his death.

[9]

In cross-examination, Ms. Liang asked him if there was a period
    during that time that Mr. Stevenson did not live with the family and
    he replied that Mr. Stevenson had been in jail for approximately ten
    months in 2000.  He said that was the only time Mr. Stevenson went to
    jail.  Subsequently in her cross-examination, Ms. Liang put to him that,
    contrary to his testimony to that point, Mr. Stevenson had been incarcerated
    for a total of forty-one months during the period December 1997 to March 2002,
    save for periods of parole.  The witness denied that was so, whereupon Ms. Liang
    put specific dates to him during which she suggested Mr. Stevenson had
    been incarcerated.  Ultimately, the witness said he could not remember precisely
    when Mr. Stevenson had been incarcerated.  The trial judge said this
    cross-examination substantially undermined the strength of his evidence and
    his credibility as a witness.

[10]

That evening, Ms. Liang faxed copies of the summary and the Evon
    records to Mr. Ward.  When court opened the following morning, Mr. Ward
    advised the trial judge that he had received the documents and that he sought
    a mistrial on the ground that they had not been previously disclosed.

[11]

During submissions on the mistrial application, Ms. Liang advised
    the trial judge that she had earlier received copies from the Vancouver Police
    Department of the documents delivered to her by Ms. McLean, and that
    she had produced these copies to the plaintiffs long before the trial.  She
    said her purpose in subpoenaing the records from Ms. McLean was to prove
    them as business records if she should decide it was necessary to do so.
    She said she first had notice from Mr. Ward on the second day of trial
    that Angelo Williams would testify and that, since she had not examined him
    for discovery, she did not know what he might say in his testimony.  She said
    that she decided, after hearing Mr. Williams testify and after considering
    that evening his testimony about Mr. Stevensons periods of incarceration,
    that it would be necessary to call Ms. McLean to produce the records
    at the trial in order to prove the actual dates of incarceration.  She said
    she did not disclose Ms. McLeans name to Mr. Ward prior to trial
    because she had not yet decided to call her and because she did not want to
    give the plaintiffs an opportunity to tailor their evidence.

[12]

After hearing counsels submissions, the trial judge granted Mr. Wards
    application and made the impugned orders with reasons to follow.

[13]

The trial judge began her reasons by noting that the mistrial declaration
    arose from defence counsels use of certain undisclosed documents to conduct
    the cross-examination of the infant plaintiff, Angelo Williams.  She concluded
    that Ms. Liang had acted improperly in failing, upon receipt of the summary
    from Ms. McLean, to immediately deliver a supplementary document list
    describing the summary in such a fashion that plaintiffs counsel would be
    able to identify the nature of the document.  She found, as well, that Ms. Liang
    ought to have revealed Ms. McLeans name at the outset of the trial and
    included her in the defendants witness list delivered to Mr. Ward pursuant
    to a practice direction published by the Chief Justice on July 10, 2002,
    which provides that all parties must exchange a list of witnessesprior to
    or at the scheduled Pre-Trial Conference unless otherwise ordered.

[14]

The trial judge characterized the nondisclosure of the summary and
    the copies of the Evon records as subterfuge.  She said,

[35]
    I am satisfied that Ms. Liang realized from the outset, on receipt of
    Ms. McLeans summary, that she had access to the key evidence required
    to challenge, if not destroy, the plaintiffs position on damages.  Assuming
    the defence could prove that the deceased Stevenson and Steven Evon were one
    and the same person, the documents effectively destroyed the evidentiary foundation
    of any claim that Stevenson had been a breadwinner or a person in
loco
    parentis
to the infant children during the majority of the relevant four
    year period, prior to his death in December 2002.  The documents are not corollary
    documents.  Rather the documents are highly relevant documents which go to
    the heart of the defence position on damages.

[15]

In her view, the plaintiffs were prejudiced by the misconduct of
    Ms. Liang and the prejudice could not be redressed by ruling the documents
    inadmissible.  She continued,

[50]
    Even if the documents are ruled inadmissible, I have no hesitation in saying
    that there is no jury charge which could erase the effect of this cross-examination.
    The cross-examination left the jury with the impression defence counsel had
    access to documents which clearly proved the infant plaintiff had lied and
    had misled the jury.  Whatever, the Courts instruction, I remain convinced
    that this impression cannot be erased.  The cross-examination at least achieved
    a near retraction of any clear evidence from the infant plaintiff of whatever
    period he insisted he had enjoyed with Mr. Stevenson, as a near father
    and provider in the Williams household.  No jury charge could remedy that
    resigned admission.

[16]

The applicants allege a number of grounds of error by the trial judge.

[17]

First, the applicants wish to argue that the trial judge erred in concluding
    that Ms. Liang used the documents in the cross-examination of Angelo
    Williams.  The trial judge apparently considered this to be a transgression
    of Rule 26(14) of the
Rules of Court
.  She observed that,
    While no document was ever put to the witness, it was clear that counsel
    was referring to notes or documents. as she cross-examined on the specific
    dates of incarceration.  At no time during the cross-examination did Ms. Liang
    put any document in the hands of the witness, nor did she mention any document
    in her questions.  Further, Mr. Ward did not object to the cross-examination,
    nor did he call upon Ms. Liang to tender the notes or documents to which
    she was apparently referring.

[18]

The applicants will submit further that Ms. Liang simply put contradictory
    factual assertions to the witness, as she was obliged to do by the rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L.) if she wished to prove
    them later in the case for the defence.  They propose to argue that the trial
    judge should not have intervened until the evidence was closed, and then only
    if they failed in their case to prove the assertions put to the witness during
    cross-examination.

[19]

The applicants will submit, as well, that the impeachment of Angelo
    Williams through cross-examination is not prejudice that would justify a
    mistrial declaration.

[20]

The applicants also submit that the proposed appeal will raise important
    questions as to the proper description of privileged documents in a document
    list in these particular circumstances; as to whether copies of records delivered
    to counsel in the circumstances presented here are privileged or should be
    disclosed; and as to whether defence counsel must disclose before trial, in
    accordance with the practice direction, the name of a person who may or may
    not be called to produce documents depending upon counsels assessment of
    the evidence given in the plaintiffs case.  A further point arises out of
    the last question, that is, whether a person subpoenaed only to produce documents
    at trial is a testimonial witness.

[21]

As well, the applicants question the propriety of the trial judge declaring
    a mistrial for the failure of counsel to disclose copies of relevant documents
    in her possession before the documents were offered in evidence.  It is their
    position that it was open to them, when the time came to lead evidence in
    defence, to attempt to prove Mr. Stevensons periods of incarceration
    by means other than the records produced by Ms. McLean if the records
    were not admissible.

[22]

Further, they will submit that the trial judge erred in awarding costs
    of pre-trial proceedings in which the court had already exhausted its jurisdiction
    to award costs and, in effect, overruling previous orders of the court.

[23]

Although the mistrial declaration was, technically, a ruling made during
    the course of the trial and this Court will generally not entertain appeals
    from such rulings, this is an exceptional case: the ruling will not be subsumed
    in the final order at the new trial and there will be no avenue available
    to appeal it if leave should be refused.

[24]

It is true, as counsel for the respondents submits, that no matter
    what order this Court might make the trial cannot be resurrected and a new
    trial will have to be held.  Nevertheless, there is practical utility to the
    proposed appeal.  The applicants have been ordered to pay costs thrown away
    forthwith.  This order could not be revisited at the new trial.  The costs
    awarded are substantial.  Counsel advise that the costs have been assessed
    and paid into Mr. Wards trust account pursuant to an order of the Supreme
    Court that they remain in trust pending disposition of this application.
    Thus, if the proposed appeal should succeed, there is an obvious practical
    benefit to the applicants and a corresponding detriment to the respondents.
    The appeal is therefore significant to the parties.

[25]

In my view, the applicants have raised some important questions of
    law and practice that warrant the attention of this Court and they have demonstrated
    an arguable case of sufficient merit to justify granting leave.  Moreover,
    the proposed appeal will not hinder the progress of the action, since the
    new trial can proceed without awaiting the result of the appeal.  The respondents
    will therefore not be prejudiced in the conduct of the action if leave to
    appeal should be granted.

[26]

Accordingly, I grant
    leave to appeal and I order that the Supreme Courts order that the costs
    be held in trust pending disposition of this application be extended until
    disposition of the appeal.

The Honourable
    Mr. Justice Smith


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Gill
          v. Highland Pacific Mortgage Corporation,

2006
          BCCA 15

Date: 20060106

Docket: CA032660

Between:

Charan
    Kaur Gill

Appellant

(
Plaintiff
)

And

Highland
    Pacific Mortgage Corporation

Respondent

(
Defendant
)

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Saunders

The
          Honourable Mr. Justice Smith

Oral Reasons for Judgment

K.E.
          Ducey

Counsel for the Appellant

M.C.
          Baron

Counsel for the Respondent

Place
          and Date:

Vancouver, British Columbia

6 January 2006

[1]

SMITH, J.A.
:  This application is brought pursuant to
    s. 9(6) of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77
    (the "
Act
"), to review a decision made by Mr. Justice
    Lowry in Chambers, in which he refused the appellant an extension of time
    to file the appeal record, transcripts, and appeal books.

[2]

This review is not
    a re-hearing of the original application.  We may not interfere unless we
    are satisfied that the Chambers judge made an error in principle.  The standard
    of review on this application was set out in the decision of this Court in
Frew v. Roberts
(1990), 29 B.C.L.R. (3d) 34, where, at p. 36,
    in the majority judgment, Chief Justice McEachern said the following:

In my view, the determination whether an appeal should
    be dismissed in such circumstances is not truly a matter of discretion.  It
    was a matter of judgment to be applied to the circumstance of the case.  The
    learned Chambers Judge who heard the matter, in his judgment, thought that
    the appeal should be dismissed and that is the order he made.

It is my view that we should not interfere with that
    decision unless we are satisfied that the Chambers Judge was wrong in the
    legal sense and not merely that he exercised a discretion incorrectly.  I
    am not persuaded that he erred in his disposition of the matter. ...

That standard of review has been adopted and elaborated
    in many decisions of this Court, including:
Haldorson v. Coquitlam
    (City)
, 2000 BCCA 672, at paras. 6 and 7; and
East Broadway Residents Association v. Vancouver
    (City)
, 2000 BCCA
    657, at para. 11.

[3]

The appellants action against the respondent was tried in the Supreme
    Court before Mr. Justice Cohen over a period of four days.  On January 12,
    2005, he dismissed the action, delivering lengthy and comprehensive reasons
    for judgment: they are indexed at 2005 BCSC 40.

[4]

The appellant filed a notice of appeal on February 9, 2005, within
    the 30 days required by s. 14(1)(a) of the
Act
.  However,
    she failed to do anything further to move her appeal along until she brought
    her application before Mr. Justice Lowry on October 14, 2005, for
    an extension of time of six months to file the appeal record and the transcripts
    of evidence, and a further extension to file the appeal books.  The appeal
    record and transcripts were required to be filed within 60 days of the
    notice of appeal (Rules 19 and 20), that is, by April 9, 2005, and
    the appeal books were to be filed within a further 30 days (Rule 21),
    that is, by May 9, 2005.

[5]

The Chambers judge referred to the relevant factors to be considered
    on such an application as they are set out in
Davies v. Canadian Imperial
    Bank of Commerce
(1987), 15 B.C.L.R. (2d) 256:

[2]        It is common ground and well settled that the considerations
    on an application of this kind are five:  1)  Was there a
bona
    fide
intention to proceed with an appeal during the 60 day period
    provided by the Rules for filing the Appeal Record and the transcripts?  2)  When
    was that intention made known to the respondent?  3)  Would the
    respondent be unduly prejudiced by an extension?  4)  Is there merit
    in the appeal?  5)  Is it in the interests of justice that the extension
    sought be granted?  See
Davies v. Canadian Imperial Bank of Commerce
(1987), 15 B.C.L.R. (2d) 256 at 259-260 (C.A.).

[6]

He noted that an extension of time would not cause undue prejudice
    to the respondent.  However, he observed that the appellant took no steps
    to order the preparation of the appeal records and transcripts until about
    May 12, more than a month after the time for filing them had expired.
    He remarked that the appellants solicitors advised the respondents solicitors
    by letter of May 12 that they intended to file the transcripts and appeal
    books as soon as possible and that the respondents solicitors replied that
    the appellant would have to apply for an order extending time.  He found that
    the appeal record and transcripts were prepared and were delivered to the
    appellants solicitors on June 29.  He noted that on July 7, although
    they had been advised they would have to apply for an extension, the appellants
    solicitors sent a form of consent order for the extension of time to the solicitors
    for the respondent.  The appellants solicitors received no reply and did
    nothing until they initiated this application near the end of August 2005.

[7]

In the view of the Chambers judge, the application turned on whether
    the appellant had an intention to appeal during the 60 days that elapsed
    after she filed the notice of appeal to the date the appeal record and transcripts
    were due.  The evidence before him consisted of her solicitors affidavit
    in which she deposed that, until April 18, 2005, she had delayed ordering
    the transcripts and appeal books because the appellant was considering her
    options as she was concerned about the costs of proceeding with the appeal.
    The significance of April 18, 2005, was that it was on that day that
    the respondents solicitors delivered a bill of costs for the action in the
    Supreme Court to the appellants solicitors.

[8]

The Chambers judge concluded that the books were not ordered until
    mid-May because the appellant was considering whether to proceed with the
    appeal and was awaiting her solicitors advice.  He continued,

[9]        In
Poirier v. Poirier Estate
(1991), 60 B.C.L.R. (2d)
    332, a panel of this Court reviewed a decision of a justice in a somewhat
    similar application where the same relief was sought.  The relief was ultimately
    granted in what the Court considered to be the unusual and extremely rare
    circumstances of the case which are unlike the circumstances here.  However,
    the following observations that were made by the Court there are germane to
    this case:

[29]
    In all the material before us, there is no evidence from the appellant herself
    as to why she had not given instructions for the transcript to be ordered
    at any earlier time.  She has nowhere pledged her oath that she has always
    had a settled and genuine intention to proceed with this appeal.

* * *

[31]
    By obeying the Rule, an appellant evinces a serious and settled intention
    to proceed with the appeal.  By not obeying, an appellant casts grave doubt
    upon the purpose for which she gave the notice of appeal.

* * *

[33]
    It is important to note that in this case we are not dealing with a delay
    in filing the transcript and appeal book caused by delays on the part of the
    court reporters nor with a failure to file proof nor with any solicitors
    inadvertence.  We are dealing with the failure to order.  To my mind, such
    a failure is almost as grave an omission on the part of an appellant as failing
    to file a notice of appeal within time.

[9]

As a result, he concluded that the appellant had not established an
    intention to proceed with the appeal prior to April 9, when she was required
    to file the books.  He found that she did not decide to proceed until a month
    or more later.

[10]

He said he did not find it necessary to comment on the merits of the
    appeal, although he stated that it was far from clear to him that the trial
    judge had erred, and he found that there was no basis to say that the interests
    of justice warranted granting the application.  Accordingly, he dismissed
    it.

[11]

On this review, counsel for the appellant submits that the Chambers
    judge erred in failing to conclude that the interests of justice required
    that the application be granted.  More specifically, she contends that his
    error was in giving too much weight to the failure to order the books in a
    timely way.  She submits that, by filing the notice of appeal, the appellant
    demonstrated a clear intention to appeal.  She contends that there is merit
    in the appeal, that the delay was not inordinate, that there would be no prejudice
    to the respondent in granting the extension, and that the delay is attributable
    to the appellants solicitors delay in providing the appellant with timely
    advice.

[12]

In support of her submissions, she refers to
Barta v. Canaccord
    Capital Corp.
(1997), 36 B.C.L.R. (3d) 81 (C.A.) and to
Bridger
    v. Bridger Estate
(2005), 19 E.T.R. (3d) 74; 2005 BCCA 412 (Chambers),
    Donald J.A.  She contends that these cases emphasize the overriding importance
    of the interests of justice and stand for the proposition that an extension
    ought to be granted where the delay is short and there is no prejudice to
    the respondent.

[13]

Barta
was a review of a decision of a Chambers
    judge dismissing an application to extend time for filing appeal books and
    transcripts on the basis that there was no merit in the appeal.  The appellant
    had ordered the books promptly, but was advised that the court reporter could
    not prepare them in time.  The appellant applied immediately for an extension.
    The Court allowed the review on the ground that the Chambers judge had erred
    in principle in dismissing the application solely on his view of the merits
    of the appeal, without considering the other
Davies
factors.
    Since the other relevant conditions had been satisfied and the delay was primarily
    the fault of the court reporter, the extension was granted.

[14]

In
Bridger
, the appellants did not file notice of appeal
    because of erroneous advice received from their solicitor that time to appeal
    did not start to run until the order memorializing the trial judgment was
    settled.  They applied to extend the time for appeal.  They could not satisfy
    the first two
Davies
criteria, that is, that they had a
bona
    fide
intention to appeal before the appeal period expired and that they
    communicated that intention to the respondents.  Nevertheless, Mr. Justice
    Donald found it was in the interests of justice to grant the extension since
    the appellants missed the limitation because they relied on their solicitors
    erroneous advice, they acted promptly after the trial judgment was settled,
    there was merit in their appeal, the delay was short, and the matter was a
    family dispute that would not come to an end unless an extension of time to
    appeal should be granted.

[15]

In my view, these cases do not assist the appellant.  The Chambers
    judge here considered all of the relevant factors and did not make the error
    in principle made in
Barta
of relying on one to the exclusion
    of others.  Further, the facts that impelled Mr. Justice Donald to conclude
    that the interests of justice required an extension in the
Bridger
case are very different than the facts of this case.  Whether the interests
    of justice require an extension of time will, of course, depend upon the particular
    facts in each case.

[16]

As I have noted, the appellant says that the error of the Chambers
    judge was in placing too much weight on the failure to order the books.  In
    this regard, the Chambers judge said this:

[6]        It is said that Ms. Gill had an intention to appeal throughout
    and, in particular, during the 60 day period following the filing of
    the notice of appeal on February 9.  But there is no evidence to that
    effect.  Ms. Gill has sworn no affidavit in support of this application.
    Reliance is placed only on her solicitors affidavit that says nothing about
    her ever having given instructions to order the Appeal Record and the transcripts.

[7]        All Ms. Gills solicitor says that is relied upon in this
    regard is as follows:

Up
    to this point [i.e., April], we had delayed ordering the transcripts and appeal
    books as our client was considering her options as she was concerned about
    the costs of proceeding with the appeal.  This delay was also due in part
    to my own delay in providing our client with a detailed opinion as to her
    various options and the costs associated with each of the options.

[8]        Thus, it would appear that the Appeal Record and the transcripts
    were not ordered before mid-May because Ms. Gill was considering whether
    to proceed with the appeal and was awaiting advice from her solicitor in that
    regard.  It was evidently the application for costs in May that prompted Ms. Gill
    to decide to proceed with the appeal, as indicated by her solicitors in what
    they wrote to the solicitors opposite on May 12.  I do not consider it
    could, on this evidence, be said that Ms. Gill had formed the intention
    to pursue an appeal before then, and by then she had no real prospect of being
    able to file the Appeal Record and transcripts before the end of June, almost
    three months out of time.  Even when the mortgagees solicitors made it clear
    that an application to extend time would be required, Ms. Gills solicitors
    took no steps to make such an application until at least the end of August.

[17]

The appellant has placed before us an affidavit she swore after the
    decision of the Chambers judge was handed down.  Counsel advises that it was
    prepared in response to the observation of the Chambers judge that the appellant
    had not sworn an affidavit in support of the application and had chosen to
    rely on her solicitors affidavit.  No explanation was offered for why the
    appellant's evidence contained in this affidavit was not placed before the
    Chambers judge.  The affidavit does not meet the due-diligence criterion for
    the admission of fresh evidence.  However, as Southin J.A. remarked in
Bradbury v. I.C.B.C.
(1989), 42 B.C.L.R. (2d) 397 at 399, justice
    requires that the law should be applied to the true facts of the case.  The
    same principle is alluded to in
Dagneault v. Hatton
(1994),
    99 B.C.L.R. (2d) 109 (C.A.) at para. 14.

[18]

With that in mind, I have examined the fresh affidavit to determine
    if it contains anything that falsifies the facts found by the Chambers judge
    so that it could be said that if it had been before him it could reasonably
    be expected to have affected the result.  In my view, it does not.  In this
    regard, the appellant deposed:

3.         On February 8, 2005, I instructed Ms. Ducey to file
    a Notice of Appeal on my behalf as it was my intention to pursue an appeal
    of Mr. Justice Cohen's Order if it was financially viable for me to do
    so.  At the time I was awaiting advice from Ms. Ducey on the costs of
    pursuing the appeal as well as what my costs incurred to date were.  In conjunction
    with this, I was concerned about whether the Respondent would be pursuing
    costs of the action as I felt that I needed this information in order to fully
    evaluate my position.

. . .

6.         On May 11, 1005, after learning that the Respondent was
    applying for an order for costs of the action, I confirmed my instructions
    to Ms. Ducey to proceed with the Appeal.  Until them I had not been advised
    that the Respondent was actually pursuing costs against me.

[19]

Thus, the affidavit supports the conclusion of the Chambers judge that
    the appellant did not have a genuine intention to proceed with the appeal
    until after the time for filing the appeal record and transcripts expired.
    According to her affidavit, she did not decide to proceed until she learned
    that the respondent was seeking costs of the action in the Supreme Court.

[20]

As I have already said, the Chambers judge considered all of the relevant
    factors enumerated in
Davies
, including the interests of justice.
    In my view, counsel for the appellant is asking us to re-consider them, to
    weigh them differently than the Chambers judge did, and to come to a different
    conclusion.  In effect, she is asking us to re-hear the application.  We are
    not permitted to do that.

[21]

In my view, it has not been demonstrated that the Chambers judge made
    any error that would warrant our interfering with his order.  I would refuse
    the application for review.

[22]

FINCH, C.J.B.C.
:  I agree.

[23]

SAUNDERS, J.A.
:  I agree and I would add few comments.

[24]

As I understand the phrase the "interests of justice", it
    encompasses but is larger than the four specific factors referred to by Mr. Justice
    Smith and set out in
Davies v. Canadian Imperial Bank of Commerce
.
    In particular, where the length of delay is not great, I consider the merits
    of the case of significance in determining whether the interests of justice
    warrant an extension of time.  Here, the Chambers judge put the merits low,
    but did so in a phrase that was rather polite in saying that the prospect
    of success "appears to me to be far from clear".

[25]

For clarity, I should
    say that on my understanding of the issue sought to be advanced on appeal
    and given the limited ability of this Court to interfere with findings of
    fact of a trial judge as set out by the Supreme Court of Canada in cases such
    as
Housen v. Nikolaisen
, [2002] 2 S.C.R. 235; 2002 SCC 33 and
    predecessor cases, the task that would be faced by the appellant here on appeal
    would be an uphill one indeed.  If the merits of the case appeared stronger,
    it is possible that one would take a different view of the interests of justice.
    But I do not see the merits of the case as being sufficiently strong to weigh
    counter to the failure to form the intention to appeal that has been the substance
    of Mr. Justice Smith's comments today.

[26]

FINCH, C.J.B.C.
:  The application to review the order of
    Mr. Justice Lowry is dismissed.

(discussion with counsel)

[27]

Well, I would think that you could get the costs of the review application
    and I suppose that does bring the appeal to an end, so I cannot see why you
    would not.  I think that is right.  Thank you.

The
    Honourable Chief Justice Finch

The
    Honourable Madam Justice Saunders

The
    Honourable Mr. Justice Smith


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Kenneth
          Cole Trucking Ltd. v. Marene Projects Ltd.,

2006
          BCCA 13

Date: 20060106

Docket: CA032788

Between:

Kenneth
    Cole Trucking Ltd.

Respondent

(
Plaintiff
)

And

Marene
    Projects Ltd., William Dobinson,

Also
    known as Bill Dobinson, and Georgios Kouvousis

Appellants

(
Defendants
)

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Ryan

The
          Honourable Mr. Justice Low

Oral Reasons for Judgment

G.H.
          Dabbs

Counsel for the Appellant

H.
          Wiebach

Counsel for the Respondent

Place
          and Date:

Vancouver, British Columbia

6 January 2006

[1]

LOW, J.A.
:  This is an appeal by two of three defendants
    of an order that 50 shares of Marene Projects Ltd. be transferred to the plaintiff/respondent
    as an assignee from E. Sands & Associates Inc., the trustee in bankruptcy
    of William Dobinson.  The two defendants also appeal an award of one set
    of special costs against all defendants.  The defendants Marene and Georgios
    Kouvousis are the appellants.  The other defendant, Mr. Dobinson, did not
    appeal and has not participated in the appeal.

[2]

The appellants say that the trial judge erred in ordering transfer
    of the shares because that remedy did not arise from the pleadings and the
    action should have been dismissed with costs to them because, as the trial
    judge found, the respondent, Kenneth Cole Trucking Ltd. (KCT) failed to
    prove all elements of the tort of civil conspiracy it alleged.  The appellants
    also say that because they made a formal settlement offer under R. 37 of the
    Rules of Court, they should recover double costs in accordance with that rule.

[3]

The facts can be stated in chronological form.

[4]

On 10 December 1998, in foreclosure proceedings, KCT obtained personal
    judgment against Mr. Dobinson in the amount of $56,996.79.

[5]

Pursuant to a writ of seizure and sale dated 13 July 1999, a bailiff
    acting on behalf of KCT in the foreclosure action seized 50 shares of Marene
    owned by Mr. Dobinson.  Mr. Kouvousis owned the other 50 shares in the company.
    The court bailiff advertised the seized shares for sale but received no offers.

[6]

On 14 July 1999, Mr. Kouvousis and Mr. Dobinson caused Marene to issue
    9,900 shares to Mr. Kouvousis, thereby purporting to reduce Mr. Dobinsons
    interest in the company to a nominal amount.  At trial, they claimed that
    this was done pursuant to an agreement made between them in 1997.  Mr. Kouvousis
    pleaded that he was the beneficial owner of Mr. Dobinsons fifty shares under
    this agreement and testified that allotment of the 9,900 shares was for the
    purpose of realizing on that interest.  However, the trial judge rejected
    this evidence and found that the sole purpose of the defendants in making
    the share allotment was to delay or hinder KCT in its efforts to execute against
    Mr. Dobinsons shares in satisfaction, or partial satisfaction, of KCTs judgment
    against Mr. Dobinson.  The appellants now take no issue with those findings
    or with the characterization of their conduct as being egregious.

[7]

On 12 January 2000 Mr. Dobinson made an assignment in bankruptcy and
    E. Sands & Associates Inc. was appointed trustee.  Mr. Dobinsons sworn
    statement of affairs disclosed the fifty shares, the fact of their seizure,
    and an assertion that they had no value.  Two months later, the bailiff delivered
    the fifty seized shares to the trustee.  The trustee took no steps to realize
    on their value for the benefit of the estate.

[8]

In January 2001, an order was made in the bankruptcy proceedings discharging
    Mr. Dobinson from bankruptcy.  As of the date of trial at least, the trustee
    was not discharged.

[9]

On 17 May 2001 KCT commenced this action against Marene, Mr. Kouvousis
    and Mr. Dobinson claiming,
inter alia
, damages for conspiracy as well
    as interim and permanent injunctive relief restraining Marene from allotting
    and issuing shares.  In a later amendment to its statement of claim, KCT sought
    special costs against all three defendants.

[10]

On 13 September 2001 Marene and Mr. Kouvousis delivered a formal offer
    under R. 37 to settle the action upon payment by them to KCT of $100 plus
    costs.  KCT never accepted the offer.

[11]

A year later, on 6 September 2002, Mr. Kouvousis with the concurrence
    of Mr. Dobinson, caused Marene to unwind the allotment of the 9,000 shares
    to him.  This resulted in the share structure of Marene being restored so
    that each shareholder held fifty shares, Mr. Dobinsons shares still being
    held by the trustee.  This was done because it was discovered that the allotment
    did not meet certain technical requirements of the
Company Act
,
    not on the basis that it was fraudulent.

[12]

On 17 June 2004, KCT obtained an order from a master of the court pursuant
    to s. 38 of the
Bankruptcy and Insolvency Act
permitting it
    to bring the within action.  The order authorized KCT to continue its action
    against the three defendants for damages resulting from a fraudulent share
    issuance by [Marene].

[13]

On 12 August 1994, in compliance with the masters order, the trustee
    executed an assignment of its interest in the action to recover damages arising
    out of the share allotment.

[14]

The trial of the action took place from 8 February to 11 February 2005
    and the trial judge, Mr. Justice Wong, gave oral judgment on 21 February 2005.
    As already noted, he ordered transfer of Mr. Dobinsons shares from the trustee
    to KCT.  He later refused to hear argument that the court was without jurisdiction
    to make that order.

[15]

As I have mentioned, the trial judge did not accept the evidence of
    the personal defendants as to the reason for the share allotment.  He found
    that there was no agreement between them for Mr. Dobinson to relinquish his
    equity in Marene to Mr. Kouvousis.  He also found that the share allotment
    was a contrivance to delay or hinder KCTs realization on the shares of Mr.
    Dobinson in Marene.  He stated the applicable law with respect to civil conspiracy
    as follows:

[31]
    The elements of conspiracy are discussed in the case of
Can-Dive Services
    Ltd. v. Pacific Coast Energy Corp.
(1993) B.C.J. No. 2958 (B.C.C.A.)
    where the court held at paragraph 5:

Accordingly,
    the following elements must be proved:

1.
    an agreement between two or more persons;

2.
    concerned action taken pursuant to the agreement;

3.
    (i) if the action is lawful, there must be evidence that the conspirators
    intended to cause damage to the plaintiff;

(ii) if the action is unlawful, there must at least be evidence that the conspirators
    knew or ought to have known that their action would injure the plaintiff (i.e.
    constructive intent);

(4)
    actual damage suffered by the plaintiff.

[16]

The trial judge found that elements of 1 to 3(1) of the tort were established
    by KCT but he was unable to find that KCT suffered damage as a consequence.
    He did not discuss the evidence with respect to the value of Marene but the
    evidence did disclose that the company owns real property in Fort St. John.
    It is said that charges against the property and perhaps other corporate debt
    total more than the value of the property.  It appears from his reasons that
    the trial judge concluded that the shares in Marene were of negligible value,
    more on the basis of the fact that the shares did not sell while in the hands
    of the bailiff.  But he did not find that the shares were worthless.  He merely
    found that sufficient value was not shown to give rise to an assessment of
    damages.

[17]

This action, however, was not just about damages arising out of share
    manipulation.  It was also about protecting the integrity of the Dobinson
    shares in case of a future increase in the value of the company.  Reversal
    of the share allotment by the defendants did not prevent future manipulation
    by them of the share structure to the detriment of the bankrupt estate and
    to KCT, the only creditor of the estate willing to pursue the matter.  Therefore,
    it made some sense for KCT to pursue the action in order to obtain the injunctive
    relief it claimed from all three defendants.  That relief became unnecessary
    because of the decision of the trial judge to order transfer of the shares
    to KCT but, in my opinion, it was relief to which KCT had established entitlement.
    It was relief that ought to have been granted if the share transfer had not
    been ordered.

[18]

There is some merit in the argument of the appellants that the order
    transferring the shares from the trustee to KCT did not arise from the pleadings.
    KCT, on the other hand, says it was open to the trial judge to make the order
    on the basis of such further and other relief [the court] may deem meet and
    just in its prayer for relief.  I do not think it is advisable for us to
    resolve the issue because the parties affected by the order are not before
    us.  The trustee was not made a party on the appeal and Mr. Dobinson, the
    original owner of the shares, did not appeal with respect to their disposition.
    We are told that the trustee has complied with the order by transferring the
    shares to KCT.  The appellants who are before us have no status with respect
    to disposition of the shares just as they would have no basis for interfering
    if the trustee had decided to sell the shares to KCT.  Therefore, the order
    as to transfer of the shares must stand.

[19]

On the issue of costs, the trial judge simply said:  This is a case
    for special costs.  There was reprehensible conduct by way of fraudulent conveyance
    giving rise to the litigation as well as misconduct within the litigated by
    way of the concocted contribution agreement defence.  One set of special costs
    are therefore awarded to the plaintiff against all defendants.

[20]

The appellants contend that under R. 37 they were entitled to double
    costs from the appropriate date under the rule.  They say that their offer
    exceeded recovery by KCT of valueless shares.  I disagree.  The offer was
    nominal and did not address what the litigation was really about.  The offer
    did not include consent to an order that the share allotment be reversed.
    When the share allotment was reversed a year later, it was done only for technical
    reasons under corporate law and KCT continued to have a legitimate concern
    to prevent, by way of injunctive relief, further attempts by the defendants
    to water down the value of the Dobinson shares.  The willingness of the personal
    defendants to continue to practice their deception during trial, and the finding
    of the trial judge with respect to their credibility and their intent, make
    the decision of KCT to continue to pursue the action reasonable.  Establishment
    at trial by KCT of the basis for injunctive relief by itself exceeded the
    nominal offer made by Mr. Kouvousis and Marene under R. 37, regardless of
    whether the order transferring the shares was properly made.  I would not
    disturb the costs order made by the trial judge.

[21]

I would dismiss the appeal.

[22]

ROWLES, J.A.
: I agree.

[23]

RYAN, J.A.
: I agree.

[24]

ROWLES, J.A.
: The appeal I dismissed.

The Honourable Mr. Justice Low


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Rupchand,

2006
          BCCA 11

Date: 20060106

Docket: CA033392

Between:

Regina

Appellant

And

Piers
    Rupchand

Respondent

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Saunders

The
          Honourable Mr. Justice Smith

Oral Reasons for Judgment

P.
          Riley

Counsel for the (Crown) Appellant

Respondent appearing In Person

Place
          and Date:

Vancouver, British Columbia

6 January 2006

[1]

SMITH, J.A.
: The Crown seeks leave to appeal and, if
    leave be granted, appeals against the sentence imposed on the respondent by
    Mr. Justice Williams on 9 September 2005 following his trial and conviction
    on a charge of possession of cocaine for the purpose of trafficking contrary
    to s. 5(2) of the
Controlled Drugs and Substances Act
.

[2]

Mr. Justice Williams concluded that a fit sentence would be eight months
    imprisonment.  He gave the respondent credit for five and one-half months
    for time spent in custody before sentencing and imposed a sentence of 75 days
    to be serve concurrently to a sentence of three months imposed on the respondent
    earlier the same day by Mr. Justice Wilson for one count of possession of
    cocaine for the purpose of trafficking and one count of possession of heroin
    for the purpose of trafficking, both on 11 April 2003.  These offences all
    arose out of what are known as dial-a-dope transactions.

[3]

The Crown submits that the sentence is unfit for two reasons.  First,
    it contends that Mr. Justice Williams incorrectly gave credit of five months
    for two and one-half months pre-sentencing custody when credit for that time
    had already been given by Mr. Justice Wilson in the sentence imposed earlier
    that day.  Secondly, the Crown submits that the effect of ordering the sentence
    to be served concurrently to the sentence imposed by Mr. Justice Wilson had
    the effect that it amounted to no punishment at all.  In the Crown submission
    the sentence should have been made consecutive to the earlier sentence.

[4]

The chronology of relevant events is as follows.  On 23 November 2002
    the respondent was arrested and charged with possession of cocaine for the
    purposes of trafficking.  I will refer to this as the first offence.  After
    a few days he was released on bail on the first offence.  On 11 April 2003
    he was arrested and charged with possession of cocaine and possession of heroin,
    both for the purposes of trafficking.  I will refer to this as the second
    offence.  After a short period he was released on bail on the second offence.
    On 24 November 2004 he was convicted by Mr. Justice Wilson on the second offence.
    On 30 March 2005 he was convicted by Mr. Justice Williams on the first offence.
    On 3 June 2005 he failed to appear for sentencing by Mr. Justice Wilson on
    the second offence.  As a result he was arrested and he spent two-and-half
    months in pre-sentencing custody until the time he was ultimately sentenced.
    On the morning of 9 September 2005 Mr. Justice Wilson sentenced him on the
    second offence.  On the afternoon of 9 September 2005 Mr. Justice Williams
    sentenced him on the first offence.

[5]

Before Mr. Justice Wilson the Crown suggested a fit sentence on the
    second offence would be 10 months imprisonment and that credit of five months
    should be given for the two and one-half months the respondent had spent in
    custody after his arrest for failure to appear for his sentencing on the second
    offence in June 2005.  The respondent submitted that a fit sentence would
    be six months and sought an order that the balance after credit of five months
    for pre-sentencing custody should be served in the community on a conditional
    sentence.  Mr. Justice Wilson rejected a conditional sentence as an option.
    He concluded that a fit sentence would be eight months imprisonment, gave
    the respondent credit for five months pre-sentencing custody and sentenced
    him to a custodial term of three months.

[6]

In sentencing him that afternoon for the first offence, Mr. Justice
    Williams considered that the relevant range of sentences was four to twelve
    months and concluded that in the circumstances a proper sentence would be
    eight months.  Although Crown counsel advised him that Mr. Justice Wilson
    had given credit for two and one-half months for pre-sentencing custody and
    that counsel were agreed that the respondent should not receive credit twice,
    Mr. Justice Williams, nevertheless, gave five months credit for the two and
    one-half months spent in custody and a further 15 days credit for a total
    of eight days served following the respondents arrest before his release
    on bail on each of the two offences.  Thus he sentenced the appellant to 75
    days to be served concurrently with the sentence imposed by Mr. Justice Wilson.
    He said that he directed the sentence to be served concurrently because of
    the application of the totality principle.

[7]

The Crown argues that Mr. Justice Williams erred by giving credit for
    time in custody for which credit had already been given by Mr. Justice Wilson.
    Crown counsel says that this was a failure to exercise his discretion judicially.

[8]

I agree that Mr. Justice Williams erred, but not for the reason urged
    by the Crown.

[9]

Section 719(3) of the
Criminal Code
provides:

719(3)
    In determining the sentence to be imposed on a person convicted of an offence,
    a court may take into account any time spent in custody by the person as a
    result of the offence.

[10]

Thus Mr. Justice Williams was entitled in sentencing the respondent
    on the first offence to take into account time spent in custody by the respondent
    as a result of the first offence.  The only time the respondent spent in custody
    as a result of the first offence was the short period of time following his
    arrest on that offence before his release on bail.  The two and one-half months
    for which Mr. Justice Williams gave the respondent credit was time spent in
    custody as a result of the second offence because it arose out of his failure
    to appear for sentencing on the second offence.  Similarly, the time that
    the respondent spent in custody following his arrest in April 2003 was as
    a result of the second offence.

[11]

In my view, Mr. Justice Williams erred in giving credit in sentencing
    on the first offence for time spent in custody as a result of the second offence.
    In that regard see
R. v. Austin
(1996) 78 B.C.A.C. 249 at paras.
    6, 7 and
R. v. MacMillan
, 2003 BCAC 372 at paras. 30-33.  The
    respondent was entitled to have the time following his arrest on the first
    offence and before his release on bail considered and he would have been entitled
    to credit for that against the eight month sentence that Mr. Justice Williams
    concluded was a proper sentence in all the circumstances.

[12]

It follows that the 75 day sentence was not a fit and proper sentence
    for this offence and this offender.   The Crown submits that a sentence of
    eight months would be a fit and proper sentence and I turn now to the merits
    of that submission.

[13]

Mr. Justice Williams summarized the circumstances of the offence and
    the offender succinctly, stating:

[2]
    The offence involved Mr. Rupchand being observed by the police in the course
    of a drug surveillance.  The observations caused the officers to believe that
    he was participating in a dial-a-dope operation, specifically that he was
    making a drug delivery.  There was an arrest and a search and he was found
    to be in possession of money, cocaine and other paraphernalia consistent with
    drug trafficking.  I conclude that this is a situation of so-called dial-a-dope
    dealing.

[3]
     With respect to his circumstances, I have the benefit of a pre-sentence report
    and heard extensive submissions from counsel yesterday.

[4]
    Mr. Rupchand is a 25-year-old male.  He is married and has one child.  He
    was born in Vancouver and was raised in the Greater Vancouver area.  As best
    I can discern, his was a conventional upbringing.  He completed the bulk of
    his high school and has near Grade 12 education, although not entirely completed.

[5]
    When he was 18 years of age, he went to Georgia, where he was involved in
    the operation of a hotel which was owned by a relative.  While there, he met
    and married the woman who is now his wife.

[6]
    I am not going to delve into the pre-sentence report other than to say that
    two features emerge from that report.  First of all, this is a young man who
    has had more than his share of turmoil and instability in his relations with
    others.  Secondly, in my view it is significant that he has a very dubious
    employment record.  In fact, there is no meaningful record of legitimate employment
    other than his time in Georgia.

[7]
    In the course of the preparation of the pre-sentence report, it is fair to
    say that he has been less than entirely forthright with the officer preparing
    that report.  It appears to be part of a larger pattern of a certain duplicitness.
    As best I can tell, those tendencies extend to his relations with others,
    including his parents.

[8]
    There is to be seen here a disconcerting pattern of non-compliance with community
    supervision, particularly in respect of his bail and a term of probation in
    the United States.  It leads to the conclusion that he is a man who demonstrates
    a certain immaturity and irresponsibility.

[14]

In concluding that the relevant range of sentence was four to 12 months,
    he said:

[9]
    The offence of which he stands convicted is serious.  It entails the distribution
    of hard drugs.  The social evil of the so-called dial-a-dope operation was
    discussed in a very enlightening way by Mr. Justice Henderson in
R.
    v. Franklin
, 2001 BCSC 706 a case to which I have been referred.

[10]
    On my review of the authorities, it is fair to say that the usual sentence
    that the court will consider will be a term of incarceration.  I have been
    provided with a number of authorities in this matter and on my review of those
    authorities, I conclude that a sentence of incarceration in the range of four
    to 12 months is the fit sentence in such cases.

[15]

Mr. Justice Williams rejected the submission that the sentence should
    be a conditional sentence of imprisonment because, in his view, such a sentence
    would not serve the ends of denunciation and deterrence and, as well, because
    of the respondents poor record of compliance with community supervision in
    the past.

[16]

In concluding that a proper sentence would be eight months imprisonment,
    Mr. Justice Williams said,

[14]
    In determining what sentence is appropriate, I have to consider his individual
    circumstances.  I also have to look at factors that go in mitigation, as well
    as those that might stand in aggravation.  In this case, Mr. Rupchand has
    no criminal record.  He has family responsibilities.  He has family support.
    Indeed, his parents both addressed the court yesterday.  Surprisingly, both
    of them apologized for his conduct.  As well, letters have been filed here
    which attest to support that he has.  Based upon what he had to say yesterday,
    I conclude that he is remorseful and I must recognize that in part he had
    a dependency upon cocaine and that was a factor operating at the time of the
    commission of the offence.

[15]
    I am also required to consider aggravating circumstances.  In my view it is
    an aggravating factor that in this case, not long after this event whilst
    released to bail, he was involved in a not-dissimilar event which has resulted
    in a conviction.  To my mind, that demonstrates a persistence in his activity
    in the drug trade.  As noted, I also consider it a factor that he has demonstrated
    a poor compliance with terms of community release and supervision.

[16]
    As I have indicated, in my review of authorities, the appropriate range of
    sentence here is four to 12 months.  In the circumstances of this case, I
    have determined that the proper sentence for this offender on these facts
    is a term of incarceration of eight months.

[17]

In submitting that eight months would be a fit sentence for the first
    offence, the Crown refers to
R. v. To
, [1998] B.C.J. No. 1413
    (B.C.C.A.);
R. v. Vu
(1998), 103 B.C.A.C. 252;
R. v.
    Martinez
(2001), 161 B.C.A.C. 174;
R. v. Le
(2002),
    163 B.C.A.C. 263;
R. v. Nguyen
(2002), 192 B.C.A.C. 191; and
R. v. Edgar
(2000), 143 B.C.A.C. 149, and
R. v. Franklin
[2001] B.C.J. No. 1048, 2001 BCSC 706.

[18]

In my view, subject to credit for pre-sentencing custody on the first
    offence and subject to what I am about to say, a sentence in the order of
    eight months would be a fit and proper sentence for the first offence.

[19]

The Crown argued that Mr. Justice Williams committed a second error
    when he ordered the sentence on the first offence to be served concurrently
    with the offence imposed by Mr. Justice Wilson in respect of the second offence.
    The effect, in the Crowns submission, is that the respondent received no
    punishment at all for the first offence, since the time spent in respect of
    that offence would have been subsumed in the time spent on the sentence for
    the second offence.  Accordingly, the Crown submits, Mr. Justice Williams
    erred in failing to order that the sentences be served consecutively.

[20]

The Crown relies on
R. v. Bernard
, [1986] B.C.J. No.
    271 (B.C.C.A.) (Q.L.) at p. 2 and
R. v. Stanley
, [1986] B.C.J.
    No. 695 (B.C.C.A.) (Q.L.).  Those cases presented similar circumstances in
    which a sentence imposed concurrently with an earlier sentence was subsumed
    within the custodial time ordered on the first sentence.  The point is well-illustrated
    by the observation of Lambert J.A. in
R. v. Stanley
, at p. 2,
    where he said, If these sentences were made concurrent there would be, in
    effect, no sentence at all for the second assault, an assault that was committed
    at a time when the applicant was on probation and on judicial release.  Accordingly,
    in my view, Mr. Justice Williams erred in directing the sentence of 75 days
    to be served concurrently with the sentence of three months imposed by Mr.
    Justice Wilson.

[21]

However, since I have concluded that the sentence of 75 days was unfit,
    the questions are what sentence should be substituted for that sentence and
    should the substituted sentence be ordered to be served concurrently with
    or consecutively to the sentence imposed by Mr. Justice Wilson.

[22]

Mr. Rupchand appears before us to day without counsel.  He is on parole
    from his sentence on the second offence, which I understand expires next week.
    He tells us that he found the custodial time he has served to be very unpleasant
    and does not want to return to it.  He has a wife and a young baby.  He says
    he has a job.  He attributes his offences to a period of turmoil in his life
    when he turned to drugs and alcohol but says he has now been clean and sober
    for a lengthy period of time.  He says, in effect, he has learned his lesson
    and he wants to get on with his life as a husband and father and to stay away
    from a life of crime.

[23]

The Crown concedes that Mr. Rupchaud should be given credit for the
    time spent in custody on the first offence prior to his sentencing.  Crown
    counsel urges us to treat the sentence on the first offence as one that should
    be served consecutively to the sentence on the second offence.  He submits
    that, if we consider it necessary, we can adjust the sentence on the first
    offence to reflect the totality principle.

[24]

The first and second offences were discrete offences separated by a
    significant length of time.  In most cases, this pattern would give rise to
    consecutive sentences.

[25]

However, to impose a sentence in the order of eight months in addition
    to the three months sentence already served would be excessive and harsh
    in the circumstances of this case, in my view.  Mr. Rupchand is a young man
    and he shows positive signs that he can be rehabilitated.  I think that to
    order him returned to custody now for a lengthy period of time might tend
    to crush his optimism about his eventual re-integration into the community.
    Nevertheless, his crime cannot go unpunished.

[26]

I think the totality principle should be applied in these circumstances
    to cap the global sentence for these two offences.  We could do that, as the
    Crown suggests, by artificially reducing the duration of the sentence for
    the first offence so that, when grouped consecutively with the sentence for
    the second offence, they add up to the appropriate global sentence.  However,
    I think that the sentence imposed on the first offence should be appropriate
    for the offence, its circumstances, and the circumstances of the offender.
    Accordingly, I would not direct that the sentence on the first offence be
    served consecutively.

[27]

Rather, I would substitute a sentence of seven months on the first
    offence and direct that it be served concurrently to the sentence imposed
    by Mr. Justice Wilson on the second offence.  In the result, Mr. Rupchand
    will have to serve a further four months.

[28]

It is regrettable that this case has taken so long to reach its conclusion.
    There is, though, a positive aspect to that, Mr. Rupchand, in that you have
    had the chance to change your direction in life and to work towards building
    a family and responsibly caring for them.  That has not gone unnoticed, and
    is reflected in the sentence I would impose which, as I have just said, is
    effectively four additional months and is therefore at the low end of the
    range of four to 12 months identified by Mr. Justice Williams for the crime
    that you committed.  I fully expect and hope that, upon completion of this
    additional sentence, you will continue as you have explained to us today your
    efforts to build your family and rebuild your life as a responsible citizen.
    I hope that you will treat this setback as only a brief detour on your positive
    path.

[29]

For those reasons, I would grant leave to appeal and I would allow
    the appeal by setting aside the sentence of 75 days and substituting a sentence
    of seven months imprisonment on the first offence.  I would direct that the
    sentence be served concurrently to the sentence of three months imposed by
    Mr. Justice Wilson on 9 September 2005, which the respondent is currently
    serving.

[30]

FINCH, C.J.B.C.
:  I agree.

[31]

SAUNDERS, J.A.
:  I agree.

[32]

FINCH, C.J.B.C.
:  Leave to appeal is granted and the sentence
    of seven months imprisonment is substituted for the sentence of 75 days to
    be served concurrently with the earlier sentence.

The Honourable Mr. Justice Smith


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Lehoux,

2006
          BCCA 18

Date: 20060110

Docket: CA033309

Between:

Regina

Respondent

And

Raymond
    Michel Lehoux

Appellant

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Donald

The
          Honourable Mr. Justice Hall

Oral Reasons for Judgment

T.
          Zanetti

Appearing as Agent for the Appellant

K.J.
          Gillett

Counsel for the (Crown) Respondent

Place
          and Date:

Vancouver, British Columbia

10 January 2006

[1]

HALL, J.A.
:  This is a purported appeal in an interlocutory
    matter where the applicant appellant is currently involved in an ongoing trial
    in the Supreme Court of British Columbia.  Counsel, on behalf of the Crown
    respondent, has brought before us an application to quash the appeal on the
    basis that this Court is without jurisdiction.  The grounds of appeal advanced
    are many, including grounds relating to the effect of a stay of proceedings,
    an allegation that the judge was biased and that he was treating the appellant
    in a differential fashion.

[2]

Counsel for the Crown has cited to us a number of cases.  I think I
    need only refer to two of them.  Those are previous cases in this Court of
R. v. Hammerbeck
(1992), 40 R.F.L. (3d) 145 (B.C.C.A.) and
R.
    v. Lena
, [2003] B.C.J. No. 640 (B.C.C.A.) (QL).  In those two
    cases this Court made plain that, based on Supreme Court of Canada authority,
    the Court was without jurisdiction to hear appeals in interlocutory criminal
    matters.  I want to just refer, at this point, to what was said in the case
    of
Hammerbeck
:

5
    The Crown has cited a number of cases in its motion, including
R. v. Kerzner
(1991), 3 O.R. (3d) 272, 5 C.R.R. (2d) 369, (sub nom.
R. v. Adamson
)
    65 C.C.C. (3d) 159 49 O.A.C. 26 (C.A.);
R. v. Lawrence et al.
, [1992]
    B.C.J. No. 4 (3 January 1992) Vancouver Registry CA014724 (B.C.C.A.);
R.
    v. M.T.
, [1991] B.C.J. No. 3471 (14 November 1991) Vancouver Registry
    CA014526 (B.C.C.A.);
R. v. Mills
(1986), 26 C.C.C. (3d); and
R.
    v. Meltzer
(1989), 49 C.C.C. 452.  In my opinion, it is clear
    from these authorities that this Court has no jurisdiction to hear this appeal
    from the order of the trial judge refusing a judicial stay.  The
Meltzer
decision makes this abundantly clear and I quote:

The
    question facing the court then is:  Does the Charter, because of the importance
    of the interests it protects, provide an appeal against a refusal of a
Wilson
application for review despite the fact that neither the
Criminal Code
nor any other legislative enactment so provides?  I assume - but
    do not decide - for the purposes of dealing with this question, that s. 8
    of the Charter is engaged by the interception of private communications.

The
    Court went on to say:

I
    would say at the outset that in my view the Charter does not provide such
    an appeal.  In argument, the appellant referred to what I said in
Mills v. The Queen
(1986), 26 C.C.C. (3d) 481, at p. 496, 29 D.L.R.
    (4th) 161, [1986] 1 S.C.R. 863 (S.C.C.):

Again,
    it must be observed that the Charter is silent on the question of appeals
    and the conclusion must therefore be that the existing appeal structure must
    be employed in the resolution of s. 24(1) claims.  Since the Charter
    has conferred a right to seek a remedy under the provisions of s. 24(1)
    and since claims for remedy will involve claims alleging the infringement
    of basic rights and fundamental freedoms, it is essential that an appellate
    procedure exist.  There is no provision in the
Code
which provides
    a specific right to appeal against the granting, or the refusal, of a Charter
    remedy under s. 24(1), but appeals are provided for which involve questions
    of law and fact.  The Charter, forming part of the fundamental law
    of Canada, is therefore covered and the refusal of a claim for Charter relief
    will be appealable by a person aggrieved as a question of law, as will be
    the granting of such relief by the Crown.  The appeal will follow the normal,
    established procedure.
When the trial is completed, the appeal may be
    taken against the decision or verdict reached and the alleged error in respect
    of the claim for Charter relief will be a ground of appeal
.

(Emphasis added.)

I
    would, however, add that with the approval of two more of the seven judges
    sitting upon the appeal, I went on to say in
Mills v. The Queen
, at
    p. 496:

The
    question has been raised as to whether there can be something in the nature
    of an interlocutory appeal in which a claimant for relief under s. 24(1)
    of the Charter may appeal immediately upon a refusal of his claim and before
    the trial is completed.  It has long been a settled principle that
    all criminal appeals are statutory and that there should be no interlocutory
    appeals in criminal matters.  This principle has been reinforced
    in our
Criminal Code
(s. 602) prohibiting procedures on appeal
    beyond those authorized in the
Code
).

The
    refusal of an application for a remedy or relief based on the Charter may
    well raise a question of law which could be the basis of an appeal under the
Criminal Code
against conviction or acquittal.  Accepting this principle,
    however, will not assist the appellants in this case.  They do not
    seek to appeal against a conviction under the
Criminal Code
appeal
    provisions.
They seek to launch an interlocutory appeal concerning
    the admissibility of evidence which may be adduced at a future trial.  There
    is no statutory basis for such an appeal and the law, as expressed in
Mills
    v. The Queen, supra
, and s. 602 of the
Criminal Code
, does
    not permit interlocutory appeals in criminal cases.  I am, accordingly,
    satisfied that the Court of Appeal was correct in holding that it had no jurisdiction
    to entertain this interlocutory appeal
.

[Emphasis added.]

[3]

As I said, the case of
Hammerbeck
placed reliance on
    two Supreme Court of Canada cases, holding there was no jurisdiction for this
    Court to hear an appeal in an interlocutory matter in criminal cases.  The
    citations of those cases are:
R. v. Mills
, [1986] 1 S.C.R.
    863; and
R. v. Meltzer,
[1989] 1 S.C.R. 1764.  In the result,
    in
Hammerbeck
the Court held it was without jurisdiction to
    hear the case.  A similar result followed in the more recent case of
R.
    v. Lena
in 2003.  Here reference should be made to the following passage
    from that judgment:

7
    As can be readily seen, each of the eight appeals is interlocutory.  The appellant
    seems to be seeking some sort of prerogative relief with respect to the issues
    raised in the notices of appeal.
This court lacks jurisdiction to hear
    interlocutory appeals in criminal matters and has no power to grant prerogative
    relief with respect to any aspect of proceedings in the Supreme Court of British
    Columbia
.

8
    It should be pointed out, however, that it remains open to the appellant to
    include any or all of the subject matters of the eight appeals as issues in
    the conviction appeal or, with respect to the eight appeal, in the intended
    sentence appeal.

9
    Since we do not have jurisdiction to entertain these appeals, I would grant
    the Crowns application and quash all of them.

[Emphasis added.}

[4]

In that case, as Mr. Justice Esson observed, because the proceeding
    sought to be appealed was an interlocutory one, no appeal lay to this Court
    at that stage of matters.  The Court was without jurisdiction and, accordingly,
    the appeal had to be quashed.  That, as I see it, is exactly the situation
    that is before this Court today in this case at bar.  Based on previous authority,
    it seems clear to me that this appeal has to be quashed and I would so order.

[5]

FINCH, C.J.B.C.
: I agree.

[6]

DONALD, J.A.
:  I agree.

[7]

FINCH, C.J.B.C.
:  The appeal is quashed for lack of jurisdiction.

The Honourable Mr. Justice Hall