COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Bains,

2007
          BCCA 13

Date: 20070104

Docket: CA033082

Between:

Regina

Respondent

And

Arvinder
    Bains

Appellant

Ban on Disclosure s. 486 (3) (now 486.4)
C.C.C.

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Newbury

The
          Honourable Mr. Justice Lowry

Oral Reasons for Judgment

R.S.
          Gill

Counsel for the Appellant

M.
          Brundrett

Counsel for the (Crown) Respondent

Place
          and Date:

Vancouver
,
British Columbia

4 January 2007

[1]

NEWBURY, J.A.
:  Mr. Bains appeals his conviction on two
    counts of sexual assault and two of unlawful confinement  one of each relating
    to the complainant Ms. Y.L., and one of each relating to the complainant Ms.
    H.M.

[2]

The reasons for judgment of the trial judge, Mr. Justice Melnick, were
    delivered orally on 17 March 2005 after a trial of eight days.  I do not intend
    to recount the facts of each incident in detail.  With respect to Ms. Y.L.,
    then aged 22, she met a Mr. Nand on the Internet and then in person in September
    2002.  They spent an evening at the home of friends of his and then at a club
    called Heavy Metal, a restaurant and a cinema.  She gave evidence that on
    the way home (at 4 a.m.) Mr. Nand said he had to do something so he would
    drop her off at a friends home in Vancouver
.  This turned out to be the appellants residence on Balkan Street.

[3]

The appellant appeared outside and was introduced as Tony.  She said
    he took her down to the basement; she declined an alcoholic drink; they sat
    on a couch and he began to make sexual advances and tried to force her to
    perform oral sex.  She refused.  She said he took her to an empty room, slammed
    the door shut and pushed her to the floor.  He held her down and slammed her
    head on to the floor.  He had forcible sex with her and then a cell phone
    rang.  He got up.  Hoping she might escape she said she had to use the washroom,
    but it had no window.  When she emerged from the bathroom, he told her Mr.
    Nand was coming to pick her up.  She began to put on her shoes and realized
    she no longer had her phone and that Tony had left.  She followed him outside
    and down the street a block but tripped and decided to return to the house
    to note the address.  Eventually, she said, he returned and gave her her phone
    back.  She called a friend and asked him to pick her up and when he arrived,
    realized her wallet was also missing.  They knocked on the door of the house
    and it was opened by man who was younger than Tony and who said only he
    lived there with his parents.  Ms. Y.L.s friend then took her to the hospital
    and police were called.  Ms. Y.L.s drivers licence was later found by police
    in what appeared to be the appellants bedroom in the house in question, and
    Ms. Y.L. picked the appellant out of a photo line-up.

[4]

Mr. Bains evidence was that he was simply not the person who had confined
    and assaulted Ms. Y.L.  He said he had been holding her drivers licence in
    safekeeping for Mr. Nand, who was being put under some pressure by the police.
    Mr. Nand testified to this effect as well.

[5]

The trial judge recounted the evidence of the defence witnesses as
    follows:

[20]
    Mr. Nand described the events of the evening of December 19 and early morning
    of September 20, 2002.  According to Mr. Nand, he offered to drive Y.L. home,
    but she still wanted to chill.  He is a long-time friend of Shawn Bains,
    Mr. Bains brother, who also lives at 4286 Balkan.  He could not take Y.L.
    home with him, he said, due to his parents.  He intended to change, then return
    to the Bains residence to chill.  The Bains home is about half a block from
    his parents home.

[21]
    When he dropped off Y.L. in front of the Bains residence, someone he knew
    only as Tony was there.  He had played basketball with Tony a couple of times.
    He described Tony as a person other than the accused, who is five-six to five-seven
    tall, 19 to 20 years of age, with short hair.  He said that Tony was sitting
    by the fence in front of 4286 Balkan, smoking something, appearing to be drunk
    or high.  Mr. Nand said that he was only gone five to 10 minutes (not the
    20 or so minutes described by Y.L. as the length of the incident with Tony).
    When he returned, he said Y.L. was across the street.

[22]
    Mr. Bains also gave evidence that during the evening of September 19th through
    to about 7:00 a.m. in the morning of the 20th, 2002, he was with a cousin,
    Ravinder Nagra, at Mr. Nagras parents home.  There they had consumed alcohol
    and played video games.  Mr. Nagra gave evidence, also.  He confirmed the
    alibi, an alibi the Crown had just learned of from the evidence heard in this
    trial.

[23]
    Mr. Shawn Bains also gave evidence.  He described hanging out with Tony on
    occasion.  He did not know Tonys last name.  He described Tony as Hispanic,
    short, of small build.  Shawn Bains also confirmed that Mr. Bains was in Surrey
    at the time in question, saying that Mr. Bains had told him on September 19th
    that he would be in Surrey.

[24] Further, he said that when Y.L. and a man knocked on the door of
    the Bains home, he told them that, He and his family lived there, not that
    only he and his parents lived there.  I add that Mr. Ma was adamant that he
    was correct as to what he had been told, presumably by Shawn Bains.

[6]

The trial judge was left in no doubt that Tony was the appellant
    and that Ms. Y.L. had been sexually assaulted by him.  In particular, he noted
    that Ms. Y.L. , although under the influence of alcohol, had known what she
    was about on the night in question; that she had identified Mr. Bains and
    that:

I have no doubt that Mr. Bains had a copy of Y.L.s driver's licence
    because he copied it for his purposes.  It makes no sense that Mr. Nand, a
    friend of Shawn Bains, would give this to Mr. Bains for safekeeping.  That
    evidence was pure fantasy to try to explain away the document being found
    in the possession of Mr. Bains. [at para. 29]

The appellant was therefore convicted of the two charges
    relating to Ms. Y.L.

[7]

The charges relating to Ms. H.M., then 18 years of age, also arose
    from an acquaintanceship that began via the Internet.  Mr. Bains was using
    the name Raj on the Internet.  Eventually, they met in person a few times;
    and in December 2002, they hooked up when she was attending a party with
    a girlfriend.  Ms. H.M. and Raj drove the friend home and then they drove
    to a McDonalds and she ordered a sundae; he a Coke.  He said he had to pick
    up something at his home (the house on Balkan Street) so they entered (quietly,
    at his request) and went downstairs.  She testified she sat 15 minutes on
    a couch in the basement suite, eating her sundae.  The trial judge described
    her testimony as to what then transpired:

[39]
    It was not until cross-examination that she conceded that she had had something
    alcoholic to drink as well, while in the kitchen area.  H.M. said that she
    then indicated to Mr. Bains that she wished to leave because it was getting
    late.  However, while walking back the way she had entered the basement, she
    says Mr. Bains locked a door between the kitchen and the room in which they
    then occupied, one that was vacant except for some clothes in a closet.

[40]
    H.M. said that Mr. Bains then put her onto the floor, stomach-down, and was
    on top of her.  She said that he asked her to perform oral sex on him, that
    he had her by the hair, that he asked her to take off her shirt.  Then, together
    with her, he took it off, as well as her bra.  She still had on her blue jeans
    and boots, she said.  He told her to do a good job or he wouldnt let her
    go, that she could scream as much as she wanted.

[41]
    He then had her perform fellatio for what she said was a long time.  At one
    point, she said, he took a photograph of her performing oral sex.  He warned
    her, she said, there must not be a single stain or drop on the carpet.  He
    subsequently ejaculated into her mouth.  She did not spit it out, she said.

[42]
    When she then went to grab her clothes, he indicated he was not satisfied.
    He then got her pants down to her ankles.  Initially, she had her legs closed
    tight, she said.  Eventually, she took her pants and boots off and she had
    vaginal sex with him, at first with him on top, then he asked her to ride
    him, and she did.

[43]
    She could not tell if he was wearing a condom while having vaginal sex with
    her, she said.  She insisted that she did not consent to any of these acts,
    although questioned several times about it during cross-examination.

[44]
    Afterwards, she said, he insisted that she take a shower.  He turned the shower
    on in the bathroom and stood beside it while she got in.  However, she says,
    she only rinsed out her mouth and gargled and she didnt fully shower.  She
    agreed in cross-examination that she did not scream or yell.  She said she
    did not know why.  When asked in cross-examination if she had ejaculate in
    her hair, she said that she was not sure either way.

[45]
    After she got dressed, she asked for her purse, she said, but Mr. Bains would
    not give it to her.  Then he told her that it was in his vehicle.  In fact,
    she said, he had it all the time.

[46]
    Mr. Bains then drove her almost to her home, but she said that she jumped
    out at an intersection near to her home and ran away.  She said that when
    she got home, by then after 3:00 a.m. on December 28, she cried and her two
    older brothers, who were there, called her sister to come over.

[47] H.M.s brother, J. M., gave evidence that when H.M. returned home
    that morning she was upset and crying.  He said he later spoke on the telephone
    with a person who identified himself as Raj.  He described Raj as sounding
    calm and joking.  The police were then contacted.

[8]

Later, Ms. H.M. picked the appellants picture out of a photo line-up.
    Ms. H.M.s girlfriend provided testimony confirming that she had been dropped
    off at 1:00 or 1:30 a.m. by Raj and Ms. H.M., who said she would be gone
    with Raj for about 45 minutes.  Raj said one hour.

[9]

The appellant testified that Ms. H.M. had gone with him on the night
    in question but that she had willingly had oral and vaginal sex with him.
    He said his brother Shawn had been in the basement suite and was on the couch
    with them until Mr. Bains and Ms. H.M. went to the back room to have sex.
    The trial judge described the evidence  of the accused and of his brother
    as follows:

[50]
    Mr. Bains said that, in fact, he had met in person with H.M. eight to 12 times
    before December 28, and that she had indicated that she wanted to be his girlfriend,
    that they would make a good couple.  According to Mr. Bains, the events of
    the early morning of December 28 were quite different than those described
    by H.M.

[51]
    He agreed that he took H.M. to his parents home and that they went into the
    basement suite; however, he said that his brother Shawn was there, watching
    a video movie on the TV.  They all drank alcohol, the three of then sitting
    on the couch.  H.M. had taken her shoes off at the front door, he said.

[52]
    After a few drinks, they headed into the back room, he said, where they made
    out and he then asked her to give him oral sex and she willingly did so.
    He said he then asked her if she wanted to have sex and they had sexual intercourse
    after they both took off her clothes, and he went to the kitchen to get a
    condom.  He never threatened her, he said, and she consented to the sex.
    According to him, after the vaginal sex, she again gave him oral sex.  Because
    he then got ejaculate in her hair, she said she wanted to take a shower.
    So he went upstairs and got shampoo for her to do so.  Mr. Bains insisted
    that if at any time H.M. had wanted to leave, she could have done so.  He
    described her walking to and from the bathroom with a towel around her.

[53]
    He drove her home afterwards.  He said on the way she told him that, as they
    had had sex, he was now her boyfriend, but he denied this, saying they could
    not be boyfriend/girlfriend because she was not Sikh.  She became angry, he
    said.  He agrees she left the vehicle at Joyce Station.  He called her home
    later.  He says he wanted to make sure she had got home all right.

[54]
    Shawn Bains confirmed that he was in the Bains basement suite.  He had been
    expecting them to arrive with a friend.  He said that when H.M. came in, he
    saw her upstairs, he was there.  (That differs, of course, from Mr. Bains
    account; he says he and H.M. first went downstairs, then saw Shawn Bains on
    the couch).

[55]
    According  to Shawn Bains, he saw H.M. come out of the back room in a towel,
    that she then had a shower, after which she came out of the bathroom and asked
    for her clothes, that Mr. Bains told her they were in the back room, that
    she then got dressed and asked for a ride home.  He said H.M. made no complaint
    to him about Mr. Bains behaviour.  He indicated that throughout he was on
    the couch watching a movie; however, he could not recall Mr. Bains walking
    by to get a condom, nor did he see anything in H.M.s hair when she walked
    by him.

[56] I do not believe the evidence of Shawn Bains.  I reject his evidence
    entirely.  I do not accept that he was in the basement apartment in the early
    morning hours of
December
    28, 2002, when H.M. and Mr. Bains were there.  He did not see Mr. Bains go
    for a condom because he was not there to see him.  He did not see H.M. upstairs
    because he was not there to see her.

[10]

The trial judge then referred to some of the weaknesses in Ms. H.M.s
    testimony, including the minimization of her role in the events of December
    2002 and inconsistencies on some points that may be described as minor.  Despite
    these, the trial judge accepted her evidence that she had been forced to have
    oral and vaginal sex with Mr. Bains.  As well, he rejected the defence evidence
    that she had concocted the allegations out of spite or to justify her conduct
    to her family.  The Court convicted Mr. Bains on these charges as well.

[11]

On appeal, Mr. Gill on behalf of Mr. Bains advanced three grounds.
    The first was that the trial judge had misapprehended an exchange between
    defence counsel and Ms. H.M. concerning a statement she gave to the police
    on 28 December 2002.  With respect, this exchange was ambiguous at best on
    the face of the transcript, and only the trial judge could, I think, have
    figured out Ms. H.M.s responses with the benefit of actually hearing her
    testify.  She often began her answers before the questions were complete;
    and conversely, counsel often interrupted her answers.  The result was some
    confusion as to what answers were responding to what questions.  In any event,
    the appellants argument regarding this exchange was clearly put to the trial
    judge and he concluded that Ms. H.M. was nevertheless credible.  Although
    the trial judge acknowledged she had tried to minimize her conduct, he did
    not find that she had admitted to lying to the police as counsel contends.
    I would dismiss this ground of appeal.

[12]

The second ground is that the learned trial judge failed to provide
    adequate reasons for rejecting the evidence of the defence witnesses, including
    Mr. Bains, his brother Shawn, Mr. Nand and Mr. Nagra.  In Mr. Gills submission,
    the Reasons leave the appellant with no clear idea as to why these witnesses
    were disbelieved.  Counsel notes the
Sheppard
 line of cases
     i.e.,
R. v. Sheppard
, [2002] 1 S.C.R.  869;
R. v. M.(Y.)
,
    [2004] O.J. No. 2001 (Ont. CA);
R. v. S.J.D.
[2004] O.J. No.
    2142 (Ont. CA);
R. v. Gagnon
, [2006] 1 S.C.R. 621 and this courts
    decision in
R. v. Thomas
, 2006 BCCA 411  for the principle
    that the mere statement of conclusory findings by a trial judge will justify
    appellate interference where the reasons do not permit the appeal court to
    be satisfied that the fundamental principles of reasonable doubt have been
    applied by the trial judge.  Thus in
Sheppard
, Binnie J. for
    the Court noted that in
R. v. R.(D.)
:

The deficiency in the trial reasons precluded the appellate court from
    being satisfied that these fundamental principles had been properly applied.
    It is thus not every case of confused and contradictory evidence that will
    convert deficiency of reasons into an error of law for purposes of s. 686(1)(a)(ii).
    The error of law arises in that context because in the opinion of the appellate
    court, the deficiency precludes meaningful appellate review of the correctness
    of the decision.  That threshold is not confined to cases of bizarre evidence.
    [at para. 43]

[13]

Like the case at bar,
Thomas
was a case of alleged sexual
    assault where the credibility of the two protagonists was the central issue.
    The trial judge said he believed the complainant and that the defendant was
    unclear and vague as to what had occurred, even though this court said his
    testimony had not indicated any apparent forgetfulness and that it was his
    truthfulness that was at issue.  The Court concluded that
even accepting
    the trial judges findings of fact
, it was not possible to be satisfied
    that the proper pathway to conviction had been followed.  As we stated at
    the end of our Reasons:

[31]
    The question in the case at bar, then, is whether the trial judges conclusions
    expressed essentially at paras. 30-32 of his reasons (quoted above) permit
    us to be satisfied whether due consideration was given to the principle that
    even though he may (for reasons not clearly explained) have rejected Mr. Thomas
    evidence, there might nevertheless, given the difficulties with M.H.s evidence,
    be a reasonable doubt as to proof of guilt.  The trial judge said he considered
    Mr. Thomas testimony in the context of the Supreme Courts direction in
W. (D.)
.  He said he did not accept Mr. Thomas evidence as
    to the events of July 10, 2004, and then concluded that Mr. Thomas, having
    consumed too much alcohol, had sexually assaulted M.H.  The trial judge did
    not resolve, at least expressly, the question posed by the defence of why
    Mr. Thomas acted differently towards M.H. than he had minutes earlier towards
    K.H., or why at least a doubt was not raised by his testimony that he had
    only jiggled M.H.s foot to wake her.  Mr. Thomas evidence was not inherently
    implausible or patently incredible, to use the phrase of the Court in
S.J.D.
at para. 26.  Indeed, as mentioned earlier, except for the alleged assault,
    his evidence was largely consistent with that of the complainant and with
    what happened at K.H.s house.
The trial judge did not expressly find
    him to be untruthful.  In these circumstances, the trial judges pathway to
    conviction is unclear:  did he believe that Mr. Thomas was lying, but refrain
    from saying so?  Did he regard M.H.s confusion on the stand and her lie to
    the police as immaterial?  Did he make the error of disbelieving the accused
    because he believed M.H.?  Did he consider whether, even if he disbelieved
    Mr. Thomas, a reasonable doubt still existed in light of the evidence
    he did accept?

[32]
    With all due respect to the learned trial judge, and accepting the findings
    of fact and credibility he did make, I am unable to answer these questions
    on the reasons as they stand, and in my opinion a review of the evidence itself
    does not supply the deficiency.  I am unable to say with confidence whether
    the principles in
W. (D.)
were properly applied to the very
    ordinary circumstances of this case.  It follows that in my view, the curative
    proviso in s. 686(1)(b)(iii) cannot be applied and that the appeal must be
    allowed and a new trial ordered.

[emphasis added]

[14]

Mr. Gill submits that the same is true in this instance  that there
    remain various questions unanswered by the trial judge that preclude the appellants
    knowing why his evidence was disbelieved.  More to the point, of course, is
    whether the Court of Appeal can review the case in a proper way.

[15]

With respect, I think this case is quite different from
Thomas
.
    Here there
were
clear findings of credibility adverse to the appellant,
    some of which I have already quoted.  The defence witnesses testimony was
    expressly found to be untruthful, and ran contrary not only to the complainants
    evidence but also to the objective evidence regarding the drivers licence
    of Ms. Y.L. and the photo IDs.  The trial judge was not required to go into
    great detail as to demeanour and so on for the benefit of the defence.  He
was
required to consider all the evidence and to make credibility findings,
    having the obvious advantage of seeing the witnesses on the stand.  Then,
    he was required to state his findings in a way that made the pathway to conviction
    clear.  I am satisfied that he did so in this case and that therefore no error
    of law or unreasonable verdict has been shown on this ground.

[16]

The appellants final ground of appeal was that the trial judge erred
    in law in accepting Ms. Y.L.s photo identification evidence as being reasonable
    and supported by the evidence.  Mr. Gill notes that her original description
    of Tony given to police was not at all detailed and that when asked to identify
    him in court, she hesitated. (She said she had done so because she thought
    the question was silly.)  I do not regard these facts as somehow invalidating
    Ms. Y.L.s earlier identification of Mr. Bains in the photo line-up, and I
    would therefore dismiss this ground of appeal as well.

[17]

In the result, I would grant leave to appeal but dismiss the appeal.

[18]

ROWLES, J.A.
: I agree.

[19]

LOWRY, J.A.
: I agree.

[20]

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

The Honourable Madam Justice Newbury


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Steele,

2007
          BCCA 12

Date: 20070104

Docket: CA032810

Between:

Regina

Respondent

And

Andre
    Steele

Appellant

Before:

The
          Honourable Madam Justice Prowse

The
          Honourable Mr. Justice Mackenzie

The
          Honourable Madam Justice Kirkpatrick

Oral Reasons for Judgment

P.
          Rankin

Counsel for the Appellant

M.
          Ainslie

Counsel for the (Crown) Respondent

Place
          and Date:

Vancouver
,
British Columbia

4 January 2007

[1]

MACKENZIE, J.A.
: This is an application for leave to appeal
    sentence and, if leave be granted, an appeal from an effective sentence of
    three years imprisonment for breaking and entering a dwelling house contrary
    to s. 348(1)(a) of the
Criminal Code
.

[2]

The trial judge imposed the five year sentence for that offence before
    allowing a credit of two years for time spent in pre-trial custody.  The appellant
    received an additional one year consecutive sentence for use of a firearm
    contrary to s. 85(1) of the
Code
.  The s. 85(1) conviction is
    the subject of an appeal to the Supreme Court of Canada and it is not an issue
    on this appeal.  Three sentences of one year imprisonment for possession of
    prohibited weapons and attempted break and enter concurrent with the five
    year sentence are also not in issue.

[3]

The appellant accepts that a four year sentence was not unfit but he
    contends that the trial judge erred in determining the credit he should have
    been given against the sentence for time spent in pre-trial custody.  He contends
    that while the trial judge intended to give the appellant double time credit
    for the time served in pre-trial custody the sentence actually imposed does
    not reflect the full double time credit.  The appellant spent 486 days in
    pre-trial custody.  He argues that the trial judge failed to reflect her intention
    to give him a two-for-one credit by fixing the credit at two years or 730
    days.

[4]

At the time of his arrest on these charges the appellant was on parole
    for an earlier sentence of robbery.  His parole was revoked with 101 days
    remaining on that sentence.  The appellant submits that the trial judge failed
    to give him any credit for the fact that those 101 days were spent in a remand
    centre rather than a penitentiary where programs are available.  After deducting
    the 101 days the pre-trial custody was 385 days.  Doubling that number is
    770 days or 40 days more than the 730 days allowed by the two year credit.
    Crown counsel at sentencing submitted that the appellant should be given a
    770 day credit.

[5]

The appellant submits that the credit allowed for pre-trial custody
    should have been increased by a total of 141 days and the trial judge erred
    in failing to reflect that additional credit in the sentence imposed.

[6]

Time spent in pre-trial custody is dead time, usually recognized through
    a two-for-one credit at sentencing, although the formula is not rigid and
    the sentencing judge retains the discretion to vary the credit in particular
    circumstances:
R. v. Wust
[2001] 1 S.C.R. 455, paras. 44
    45.  Rounding down the 385 days of pre-trial custody, after deducting 101
    days for the earlier offence, to 365 days for the purpose of pre-trial credit
    would not have been outside the range of the trial judges discretion if that
    is what she intended.  Her reasons are not entirely clear as to her intention
    in this respect and the submission of the appellants counsel may have contributed
    to some confusion.  However, as I read the reasons, I think that the trial
    judge did intend a full two-for-one credit and she simply did not appreciate
    at that point in her reasons that the two year credit she allowed would not
    give effect to her intention, resulting in the 40 day shortfall.

[7]

The second issue involving the 101 days attributable to the revoked
    parole on the earlier sentence was not advanced before the sentencing judge
    as it is framed here.  Counsel at sentencing argued that the appellant should
    receive a triple time credit because of harsh conditions in the remand centre.
    The trial judge rejected that submission and stated that the credit should
    be less the time spent serving the balance of your sentence for robbery.
    In my view, that decision was within her sentencing discretion.

[8]

The Crown submits that no credit should be given for the 101 days because
    s. 719(3)
of Criminal Code
limits credit to time spent in custody
    as a result of the offence and the 101 days related to a different offence.
    The distinction has been recognized and applied in several cases, most recently
    in
R. v. Rupchand
(2006), 220 B.C.A.C. 285, 2006 BCCA 11 at
    paras. 10  11.  The appellant submits that when his parole was revoked on
    the earlier sentence he was required to serve that time in the remand centre
    rather than a penitentiary because he was awaiting trial for the present offence.

[9]

I think it is questionable whether the interconnection between the
    earlier and later offences in terms of the effect on the appellants place
    of incarceration is sufficient to permit crediting remand centre custody on
    the 101 day remnant as resulting from the present offence.  In any event,
    the trial judge rejected any credit for the time spent serving the balance
    of the earlier sentence.  She did so in the exercise of her discretion and
    I do not think we can disturb her decision, even if we were to assume that
    credit for the time could be allowed under s. 719(3) in the circumstances
    of this case.

[10]

In the result, I would grant leave to appeal and allow the appeal to
    the extent of reducing the sentence imposed on the appellant for breaking
    and entering by 40 days.

[11]

PROWSE, J.A.
: I agree.

[12]

KIRKPATRICK, J.A.
: I agree.

[13]

PROWSE, J.A.
: Leave to appeal is granted and the appeal
    is allowed to the extent of reducing the sentence on the breaking and entering
    count by 40 days.

The Honourable Mr. Justice Mackenzie


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Do,

2007
          BCCA 18

Date: 20070105

Docket: CA033985

Between:

Regina

Respondent

And

Lai
    Xuan Do

Appellant

Before:

The
          Honourable Madam Justice Newbury

The
          Honourable Mr. Justice Lowry

The
          Honourable Madam Justice Kirkpatrick

Oral Reasons for Judgment

G.D.
          McKinnon, Q.C.

Counsel for the Appellant

P.
          Eccles

Counsel for the (Crown) Respondent

Place
          and Date:

Vancouver, British Columbia

5 January 2007

[1]

KIRKPATRICK, J.A.
: On 7 February 2006 the appellant was convicted
    in Supreme Court on two counts contrary to s. 5(2) of the
Controlled
    Drugs and Substances Act
:
Count 1 concerned the unlawful possession
    of cocaine for the purpose of trafficking; and Count 2 concerned the unlawful
    possession of marihuana for the purpose of trafficking.

[2]

The appellant was sentenced on 27 April 2006 to eight months imprisonment
    on Count 1 and eight months imprisonment on Count 2, to be served concurrently.

[3]

The appellants conviction appeal was dismissed on 30 October 2006,
    at which time he was granted leave to appeal his sentence: 2006 BCCA 492.

[4]

The circumstances of the offence may be briefly stated.  The appellant
    and Thi Su Bui lived in Ms. Buis residence in Nanaimo.  They both used her
    cars.  While the police conducted surveillance of a known drug house they
    happened also to see Mr. Do and, over two days, observed him to drive to various
    locations and have suspicious meetings.  An expert testified that the meetings
    were consistent with dial-a-dope drug transactions.  The police also observed
    Ms. Bui driving the car on at least two occasions.

[5]

The police executed a search warrant of Ms. Buis home and cars, at
    which time they located 21 spit balls of cocaine in a jacket in a hallway
    closet; one spit ball in a womans lingerie drawer; one spit ball in the console
    of one car; and six packages of marihuana in the refrigerator freezer.
    The value of the cocaine was between $500 and $960.  The wholesale value of
    the marihuana was $1,530; the street value was $3,150.

[6]

Ms. Bui pleaded guilty on 29 June 2005 in Provincial Court to one count
    of possession for the purpose of trafficking in cocaine.  Her sentencing hearing
    was adjourned to 29 January 2006 to await the outcome of Mr. Dos trial.
    She was ultimately sentenced on 22 February 2006 to a 15 month conditional
    sentence to be served in the community.  That sentence was the product of
    a joint submission by Crown counsel and Ms. Buis counsel.

[7]

At the appellants sentencing hearing, the Crown sought a sentence
    of 12 months imprisonment.  Central to the Crowns position was the fact
    that Mr. Do is not addicted to drugs and was thus purely motivated by greed
    in committing these offences.  The Crown also emphasized Mr. Dos previous
    conviction in 1994 for trafficking in narcotics as an indication that he has
    not been deterred from criminal activity by his earlier sentence of two months
    in jail.

[8]

Counsel for Mr. Do urged the sentencing judge to impose a conditional
    sentence of 18 months (evidently in the mistaken belief that Ms. Bui had been
    sentenced to an 18 month conditional sentence).  His counsel emphasized that
    the proposed conditional sentence would accomplish the principles of sentencing
    if appropriate conditions were imposed and would achieve parity with Ms. Buis
    disposition on sentence.  He noted that Mr. Do had not committed any offences
    in the 12 years since his 1994 conviction.  Apart from a minor breach of his
    bail terms, he had abided by the bail order and thus, it was submitted, he
    posed no threat to society.  Further, his counsel submitted that a conditional
    sentence order would permit Mr. Do to continue to work and pay $400 per month
    child support for his three children.

[9]

In his reasons, the sentencing judge noted Mr Dos birth in 1962; his
    Vietnamese background; and the 1994 conviction.  He then stated:

[6]
    The allegation of the Crown was that Mr. Do was involved in what is commonly
    referred to in the jargon of the street, the Dial-A-Dope enterprise.  I
    found that that was the case and now I must sentence Mr. Do for the two offences
    that he has committed.

[7]
    I agree with the pre-sentence officer as to the devastating impact drug addiction
    has on individuals and on the community generally in that it is notorious
    that persons using drugs generally are irresponsible and commit offences to
    obtain the funds to pay such people as Mr. Do to obtain these drugs.  This
    is an insidious form of harm that is being perpetrated throughout not just
    Nanaimo, but other communities in Canada.

[9]        On Count 1, I sentence you to eight months imprisonment.
    On Count 2, I sentence you to eight months imprisonment, each to be served
    concurrently.

[10]

The appellant submits that the sentencing judge erred in failing to
    give effect to the principle of parity codified in s. 718.2(b) of the
Criminal
    Code
.  The appellant contends that the eight months sentence of incarceration
    imposed on Mr. Do is extremely disparate to the 15 month conditional sentence
    imposed on Ms. Bui.

[11]

The appellant submits that the position of the Crown throughout was
    that Mr. Do and Ms. Bui were equal participants in a joint venture.  The appellant
    contends that the Crown, having taken the position that Ms. Bui was a favourable
    candidate for a conditional sentence, cannot go before a different court and
    contend for a jail sentence for Mr. Do.  The sentencing judge did not express
    any view as to the propriety of Ms. Buis sentence and did not expressly remark
    on the parity of the sentences or the availability of a conditional sentence.

[12]

The appellant contends that the disparity in sentence is bound to create
    a sense of injustice, especially when, in the appellants submission, the
    only distinguishing feature between the circumstances of the appellant and
    Ms. Bui is that Ms. Bui pleaded guilty whereas Mr. Do insisted on his constitutional
    right to a trial.

[13]

The respondent Crown argues that the parity principle has no application
    in this case because there is no true parity between Mr. Do and Ms. Bui.

[14]

I think an examination of the circumstances of the offence and the
    offenders in this case supports the Crowns position.

[15]

Mr. Do was convicted on two drug related counts, the narcotics in question
    having a maximum value of $4,110.  Ms. Bui pleaded guilty to one drug related
    count in which the maximum value of the cocaine was $960.

[16]

Mr. Do is 42 years of age.  He came to Canada in 1991.  He is the father
    of three children who reside with his former wife in Surrey.  Ms. Bui is 35
    years of age.  She is a single mother with two children whose father abandoned
    them.  She came to Canada in 1991.  There is no indication as to who would
    care for Ms. Buis children if she were to be incarcerated.  That was evidently
    the motivating factor in Ms. Buis guilty plea and the subsequent joint submission.

[17]

Mr. Dos previous criminal record was for two counts of trafficking
    in heroin in 1994 for which he was sentenced to two months in jail.  Ms. Buis
    previous criminal record consists of two convictions for theft under $2,000
    in 2000 and 2001 and a conviction for simple possession of a narcotic, suggesting
    that Ms. Bui suffers from a drug addiction, unlike Mr. Do.  All convictions
    resulted in fines.

[18]

There was some confusion at Mr. Dos sentencing hearing as to the defence
    position at Ms. Buis sentencing hearing as to Mr. Dos role in the offences.
    Nevertheless, the Crown position at Mr. Dos sentencing was that, notwithstanding
    the joint nature of the offences, Mr. Dos role in the offences demonstrated
    higher moral culpability.

[19]

The sentencing judge was fully informed of all these circumstances.
    Although he did not expressly say so, it is evident that the individual circumstances
    of the offenders and their respective roles in the joint enterprise (if it
    was such) warranted different treatment.  It cannot be said that the relevant
    circumstances of each offender are equal, thus necessitating equality of treatment:
    see
R. v. Chisholm
(1985), 18 C.C.C. (3d) 518 (N.S.S.C. Appeal
    Division).

[20]

It is clear from the sentencing judges remarks that he considered
    that only a jail sentence would adequately address the insidious harm inflicted
    by drug trafficking, especially by those offenders motivated purely by profit.

[21]

The sentencing judge was referred to the decisions in
R. v. Franklin
,
    2001 BCSC 706;
R. v. Martinez
,
2001 BCCA 712; and
R.
    v. Nguyen & Bui
, 2003 BCCA 686, all of which supported the sentence
    imposed on Mr. Do.

[22]

Notwithstanding Mr. McKinnons able submissions on behalf of the appellant,
    I am not persuaded that the sentencing judge made any error of law or principle.
    I would dismiss the appeal.

[23]

NEWBURY, J.A.
: I agree

[24]

LOWRY, J.A.
: I agree.

[25]

NEWBURY, J.A.
: Leave to appeal is granted but the appeal
    is dismissed.

The
    Honourable Madam Justice Kirkpatrick