COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

McLachlan v. Trident Foreshore Lands
  Ltd.,

2010 BCCA 37

Date: 20100126

Docket:
CA036643

Between:

Ian
McLachlan

Appellant

(Petitioner)

And

Trident
Foreshore Lands Ltd., Christopher J. Barratt, Robert Bruce,

William
E. Ireland, Gordon R. Kleaman, James L. Mercier, and

Burrard
Yacht Club

Respondents

(Respondents)

Before:

The Honourable Mr. Justice Hall

(In Chambers)

On appeal from the Supreme Court of British Columbia, November 3,
2008,

(
Brown v. Trident Foreshore Lands Ltd.
, L051651)

Agent for the Appellant:

C.
  McLachlan

Counsel for the Respondent:

M.
  Pontin

Place and Date of Hearing:

Vancouver,
  British Columbia

December
  2, 2009

Place and Date of Judgment:

Vancouver,
  British Columbia

January
  26, 2010

Reasons for
Judgment of the Honourable

Mr. Justice Hall:

[1]

In this case, the applicant seeks an extension
of time to file a factum and appeal books.  Some history of the background of
this matter is set out in a judgment of this Court dated June 25, 2008 (
Struchen
v. Burrard Yacht Club
, 2008 BCCA 271, 46 B.C.L.R. (4th) 228):

[5]        Mr. McLachlan was a
long-standing member of the Yacht Club.  Historically, and while Mr. McLachlan
was a member, the Yacht Club was required to relocate from Coal Harbour to the
North Shore of Burrard Inlet.  As part of that relocation and to protect the
club from future dislocation, Trident Foreshore was incorporated.  It acquired
lands now occupied by the Yacht Club.  In order to finance the acquisition,
existing members purchased shares in the company.  New members of the Yacht
Club were required to purchase a share and an arrangement was made whereby the
shares of retiring members would be repurchased.  Thus, initially, all
shareholders of Trident Foreshore were members of the Yacht Club.

[6]        To supplement the Trident
Foreshore lands, the Yacht Club entered into a lease with a neighbour.  Today,
some docks are on the neighbours water lots and some are on Trident Foreshores
lots.  The terms of the lease with the neighbour have caused Mr. McLachlan,
as a member who experienced the earlier move, to have concerns about the
long-term security of the Yacht Clubs moorage.  This has been a factor in the
dispute which culminated in his expulsion from the Yacht Club.

[7]        In 1989, the rules as to
shareholding in Trident Foreshore were changed so that share ownership in the
company was no longer a condition of membership in the Yacht Club.  At that
time the Yacht Club began to acquire shares of the company.  Ultimately, corporate
governance issues arising from the change in ownership rules resulted in the
proceedings before the Supreme Court of British Columbia.  Reasons for
judgment, indexed as 2004 BCSC 1365 and 2006 BCSC 2036, explain some
of this dispute.  Mr. McLachlan was a party to those proceedings and
orders for costs were made against him.

[8]        It would be fair to say that the
corporate governance issues and the ensuing litigation both resulted from
acrimony and deepened that acrimony between Mr. McLachlan and certain
other members of the Yacht Club, including in particular the then Commodore, Mr. Mercier.

[9]        The dispute over the changes in
ownership of Trident Foreshore, the acrimony caused by the differing views of
the best way to secure the Yacht Clubs future, distrust and resentment
generated on both sides, and intemperate comments made during these events led
eventually to the expulsion of Mr. McLachlan from membership, bringing an
end to his long association with the Yacht Club and resulting in his loss of moorage
at the marina.  Clearly, in addition to his loss of membership, Mr. McLachlan
has lost a right (to moor his boat at the marina) that was an important element
of his social life and his family life.  As well, he was required to divest
himself of his share in Trident Foreshore because membership in the Yacht Club
was a condition of share ownership.

[10]      The process leading to Mr. McLachlans
expulsion started with a petition to the Directors signed by thirty members
asking for disciplinary procedures against members who had initiated the
Trident Foreshore lawsuit, those who signed an information circular in
respect to Trident Foreshore, and those who stood for election as Trident
Foreshore directors at an
ad hoc
Trident Foreshore takeover meeting.  The
Directors struck an investigative committee comprised of three past Yacht Club
Commodores, to decide if members who had contested the Trident Foreshore share
issues had violated the bylaws.

[11]      The investigative committee made
enquires, but did not receive input, oral or written, from any of the three
members ultimately disciplined by the Board.  The committees report detailed
findings in respect to the share dispute and concluded that Mr. McLachlan
and his two co-petitioners had conducted themselves in a manner which most
seriously and injuriously affected the well being of individual members and
threatened the very survival of the Yacht Club.

[12]      The Board of Directors
received the report of the Investigative Committee on May 4, 2005, and resolved
to proceed with charges.

[2]

Mr. McLachlan and another member were
ultimately expelled from membership in May 2005.  On an appeal to the Club Membership
in June 2005, a vote of members disclosed a majority were opposed to
reinstatement of those expelled.  A petition was filed in Supreme Court by Mr. McLachlan
seeking to quash his expulsion and order his reinstatement.  A chambers judge
refused this relief but this Court reversed and made an order quashing the
expulsion and ordered reinstatement on the basis that the petitioner, Mr. McLachlan,
had not been afforded a fair hearing.  Although the petitioner was reinstated,
he apparently did not obtain the moorage position he earlier had possessed.
Further proceedings followed including the present matter which was one of two
decided by Pitfield J.  It appears certain proceedings instituted earlier
had not proceeded to resolution until the petition about expulsion was
resolved.

[3]

Pitfield J. observed at paras. 2 and 3
of his Reasons of November 4, 2008:

[2]        The petitioners Peter Brown, Ian
McLachlan and Alfred Struchen apply for the relief set forth at paragraphs (d)
and (e) in petition L041335, namely, an order that the board of directors
elected at the special meetings of the shareholders of Trident Foreshore Lands
held on April 22, 2004 are the directors of Trident until the next annual
general meeting; and (e), in the alternative, if the board of directors elected
at the special general meeting of shareholders of April 22, 2004 are not the
duly elected board of directors of Trident, that Trident hold a meeting to
elect directors of Trident under the supervision of a court-appointed
representative in accordance with the articles of Trident as at November 6,
2003, and the parties entitled to vote being the shareholders of Trident as at
November 6, 2003.

[3]        By
way of overview, I will say that on July 18, 2006, I dismissed the prayers for
relief set forth in paragraphs (a) through (c) of the petition on the grounds
that the subject matter of those requests for relief had been dealt with by
Madam Justice Ross in a proceeding to which I will make reference in due
course.

[4]

The judgment of Ross J. was delivered on
October 25, 2004 and is indexed as 2004 BCSC 1365.  In this judgment, Ross J.
had granted orders sought by the petitioner, Trident Foreshore Lands Ltd.  I
have had an opportunity to read that judgment.  Pitfield J. concluded his
November 4 reasons as follows:

[34]      At the meeting of April 22, 2004,
as I believe I previously indicated and if not I will state, Messrs. Brown,
Struchen, McLachlan, Ellis and McMahon were elected or purportedly elected as
directors.  I conclude that that election of directors did not proceed at a
meeting which was lawfully convened in the manner contemplated by the
Business
Corporations Act
and the articles of the company.  The resolution was of no
force and effect and those individuals were not lawfully elected as directors
on April 22, 2004, or indeed at any other time.  It follows that the
application for relief in paragraph (d) of the petition is dismissed.

[35]      The next claim for relief is that
the court order the conduct of a meeting which will be directed to the election
of directors in conformity with the articles as they existed at November 6,
2003.

[36]      In my opinion, that application
cannot proceed and must be dismissed.  Events subsequent to November 6, 2003
have overtaken any deficiencies in the conduct of the vote to elect directors
at November 6, 2003.  Firstly, certain acts of the directors purportedly
elected on that date have been validated first by Madam Justice Ross who
validated the transfer of shares by Burrard Yacht Club to a number of its
members, transfers which were approved by Trident; and secondly, by a meeting
of the shareholders of Trident on November 26, 2004, which was properly
requisitioned by members pursuant to s. 167 of the
Business
Corporations

Act
, the conduct of the meeting on that date, the
adoption of the three resolutions to which I have already made reference, the
fact that McLachlan, Brown and Struchen were in attendance and have taken no
steps in any way, shape or form to challenge that which was done on November
26, 2004, properly convened meetings have lawfully elected directors in
accordance with the amended articles of the company.  No challenge has been
mounted and the resolutions remain valid and binding.

[37]      It
follows that the board now in place, by that I mean the directors other than
Brown, McLachlan, Struchen, McMahon and Ellis, has been lawfully elected by
those entitled to vote in accordance with the articles of the company as
amended, and there is no justification whatsoever for concluding that any of
Brown, McLachlan, Struchen, McMahon or Ellis is now or ever has been a lawfully
elected director of Trident Foreshore Lands Ltd.

[5]

On November 3, 2008, Pitfield J. delivered
Reasons in Docket Number L051651, a petition that had been stayed pending
resolution of other proceedings.  In this proceeding, the petitioner, Mr. McLachlan,
apparently sought relief under various heads, including s. 227 of the
Business
Corporations Act
, S.B.C. 2002, c. 57.  This is sometimes termed the
oppression section of the
Act
.  Those claims for relief were dismissed
by Pitfield J. on the basis that the relief sought could not be granted
under the provisions of the statute.  Also, Mr. McLachlan had sought
relief under provisions of the
Company Act
, S.B.C. 1999, c. 27.  As
to this, Pitfield J. said:

[30]      The
next item is a prayer that the court direct an investigation to be made under
Division 3 of the
Company Act
, S.B.C. 1999, c. 27.  There is no
evidence before me which suggests in any way, shape or form that any
investigation is required.  The sole issue in dispute is a difference of
opinion and philosophy as to the manner in which the affairs of the Yacht Club
and Trident should be conducted.  As I have said in the course of Ms. McLachlans
submissions, there is no claim to be advanced under s. 227 of the
Business
Corporations

Act
, unless it appears that the board has been acting
to the detriment of Mr. McLachlan as a shareholder or member, as opposed
to acting in a manner which he may regard as non-beneficial from the point of
view of all members, unless of course there is some element of self dealing of
which there was no evidence.

[6]

In the present appeal from the dismissal of the
petition ordered by Pitfield J. in his reasons of November 3, 2008, the
appellant seeks the following relief:

136.     An investigation be made under
Division 1 of the Companies Act from 1989 to the present with special emphasis
on the details of compliance with the BC Securities Act on how the take-over
was accomplished by BYC; how the company, Trident Foreshore Lands Ltd., was
made a subsidiary of BYC, a nonprofit society, and how the assets were
transferred from TFL to BYC when BYC, being a society, cannot have a capital
divided into shares.

137.     All costs: legal, personal,
substitute moorage, damages to boat due to being without a shelter, and other
related expenses that would not have been incurred but for the prejudice and
oppression carried out to justify expelling Mr. McLachlan, Mr. Struchen
and Mr. Brown from BYC for the express purpose of ridding the petitioners
of their shares and shareholders rights.

138.     All members of BYC and shareholders
of TFL are to be advised by letter and in the Trident newsletter that the
expelled members of BYC had not committed the acts of which they were accused,
that the Court of Appeal had set aside Justice Edwards order, and Ian
McLachlans membership was reinstated with all privileges, seniority and
moorage.

139.     Damages
for pain and suffering, not just to himself, his wife, (co-owner of the Sunny
Seas), but also his beloved granddaughters, who are both Intermediate members
of BYC and need their grandfathers name to be cleared and the truth known to
all.

[7]

The respondents submit that the application for
extension of time ought not to be granted because the materials should have
been filed in the Spring of 2009 and there has been unjustifiable delay.  They
also submit that the appeal has no prospect of success and that the application
for an extension of time to file material should be dismissed.  As set forth in
Davies v. Canadian Imperial Bank of Commerce
(1987), 15 B.C.L.R. (2d)
256 (C.A.), on an application for extension of time, a judge must consider
whether the extension will prejudice a respondent and whether the appeal has
merit, that is, some possibility of success.

[8]

These factors are to be considered in deciding
whether it is in the interests of justice that an extension of time be granted
to perfect an appeal.

[9]

I may say that if I concluded that this appeal
proceeding had any possibility of success, the delay factor would not militate
against granting an extension of time.  While delay is not to be encouraged,
the delay here of some six or seven months is not what I would view as
inordinate.  As well, in my view, the appellant has in argument set out a
series of events that accounts for much of the delay in preparation of
materials.  Thus, I would not accede to the submission of the respondents that
the application for an extension of time to file necessary material to perfect
the appeal should be refused on the basis of delay on the part of the applicant.

[10]

I have had a full opportunity since the hearing
of this application to review the material and previous decisions in related
proceedings.  The factum of the applicant appellant sets out in considerable
detail a comprehensive history of disputes between the appellant and
respondents.  It is clear to me on reviewing what is sought to be filed that
there is no possibility that a division of this Court could or would grant any
of the relief sought by the appellant on this appeal from the judgment of
Pitfield J.  In such circumstances, it is my considered view that it would
not be in the interests of justice to grant an extension of time to file
material.  As Kirkpatrick J.A. observed in
Westbank Holdings Ltd. v.
Westgate Shopping Centre

Ltd.
, 2009 BCCA 370, If the appeal is
bound to fail, then that is a good reason for refusing an extension of time.
The application for an extension of time to file material is accordingly
dismissed.

The Honourable Mr. Justice Hall


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Dalen,

2010 BCCA 30

Date: 20100126

Docket:
CA035883

Between:

Regina

Respondent

And

Ryan Dalen

Appellant

RESTRICTION ON PUBLICATION:  AN ORDER HAS BEEN MADE
PURSUANT TO SECTION 486.5(1) AND 486.5(9) OF THE
CRIMINAL CODE
PROHIBITING ANY INFORMATION THAT COULD IDENTIFY
THE UNDERCOVER OFFICER INVOLVED IN THESE PROCEEDINGS
BEING PUBLISHED, BROADCAST OR TRANSMITTED

Before:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Chiasson

On
appeal from:  Supreme Court of British Columbia, March 2, 2008
(
R. v. Dalen
, 24001)

Counsel for the Appellant:

J.
  Bahen, Q.C.

Counsel for the Respondent:

F.
  Tischler

Place and Date of Hearing:

Vancouver,
  British Columbia

December 17, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

January
  26, 2010

Written Reasons by
:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Chiasson

Reasons for
Judgment of the Honourable Chief Justice Finch:

I.  Introduction

[1]

The appellant, Ryan Dalen, appeals from his
conviction in the Supreme Court of British Columbia on 2 March 2008 following
his trial by judge and jury on one count of attempting to obstruct the course
of justice, between 9 and 12 August 2005.  The jury could not reach a verdict
on two counts of uttering threats on 10 August 2005, and the Crown entered a
stay of proceedings on those two counts.  The jury found the appellant not
guilty on an amended Count 4, [Using] an imitation firearm while committing or
attempting to commit the indictable offence of obstructing justice, on or
about 10 August 2005.

[2]

The main issue at trial was the appellants
identity as one of three young men who entered the home of two brothers,
Mandave and Balkar Heer on 10 August 2005, and by threats and intimidation
attempted to persuade the brothers to make Balkars friend, Mitul Devia, change
his evidence in the pending trial of the appellants father, Roy Dalen, from
what Devia had said in a statement to police.

[3]

Counsel for the appellant on appeal contended
that the guilty verdict on Count 1 and the not guilty verdict on Count 4 were
inconsistent.  He said the verdict on Count 1 was therefore unreasonable and
should be set aside.  Counsel for the appellant also submitted that the learned
trial judge erred in failing adequately to answer questions from the jury
concerning its verdicts on the different counts.  The appellant seeks a new
trial.

[4]

For the reasons that follow, I am of the opinion
that the verdict on Count 1 was not unreasonable, that the trial judge made no
material error in answering the jurys questions, and that the appeal should be
dismissed and the conviction affirmed.

II.  Background

[5]

The appellants father, Roy Dalen, was charged
with first degree murder in the stabbing death of his social worker, John David
Bland, on 19 January 2005.  A potential witness at Roy Dalens trial was Mitul
Devia, a friend of Balkar Heers.  Devia had given a statement to the police in
which he said he had driven Roy Dalen to and from the place where Mr. Bland was
killed.  Devia said he witnessed the murder.

[6]

In August 2005, when the events giving rise to
the present appeal occurred, the preliminary inquiry into the murder charge
against Roy Dalen had not yet occurred.  It was the Crowns theory that Roy
Dalens son, the appellant Ryan Dalen, together with two others, set out to
have Devia change his evidence, by persuading the Heer brothers to intervene on
Roy Dalens behalf with Devia.

[7]

The alleged plan did not succeed.  The police
were notified of the events at the Heer home on 10 August 2005.  Roy Dalen was,
in due course, tried and convicted.  Devia gave evidence in accord with his statement
to the police.  Dalens appeal from conviction to this Court failed:  (See
R.
v. Dalen
(2008), 240 C.C.C. (3d) 557 (B.C.C.A)).

[8]

The trial of Ryan Dalen on the charges of
obstruction and threatening commenced before a judge and jury on 18 February
2008.  The appellant was originally charged jointly with Alexander Radocina,
who is alleged to be one of the three men who entered the Heer home on 10
August 2005.  Radocina, however, pleaded guilty to Counts 1 and 4 before a
different judge.  He did not testify at the appellants trial.

III.
The Case Against Ryan Dalen

[9]

Mandave Heer (Mandave), aged 26 at the time of
trial, is the younger brother of Balkar Heer.  Mandave met Mitul Devia through
his brother in about 2003.  In January 2005, shortly after Mr. Blands murder,
Devia was arrested in connection with that offence in front of the Heer house.

[10]

Mandave next saw Devia at the latters bail
hearing in the courthouse at Richmond, B.C.  That was the occasion on which
Mandave first saw the appellant, Ryan Dalen.  Ryan Dalen was a young white
male, 18 or 19 years old, five-foot nine or ten inches in height, about 150 to
160 pounds, with short dark hair, and no facial hair.

[11]

On 10 August 2005, Mandave got home from work in
the late afternoon and lay down for a nap.  He was awakened between 7:00 and
8:00 p.m. by a knock on the door.  As Mandave walked towards the front door,
three men entered.  Mandave said the appellant was one of the three.  He did
not know the other two.  The three men walked into the house uninvited.

[12]

The shorter of the other two men, Radocina, was
five-foot nine or ten inches tall, about 170 pounds, 23 or 24 years old, and
completely bald.  The third man, later identified as Jason Porter, was six-foot
one or two inches tall, about 225 or 230 pounds, and also completely bald.
Mandaves evidence was that during the course of their stay in the Heer house,
the appellant, Ryan Dalen, said:

You know Roy,
you know hes crazy, and even though hes in jail he has ... hes got his
connections.

[13]

Later the appellant told Mandave to tell Devia
to change his story, not to rat Roy out, and that Roy Dalen is not the guy
youd mess around with.

[14]

Radocina assumed control of the situation in the
Heer house.  He asked Mandave if he knew Devia.  Mandave replied that he did.

[15]

While the appellant and the taller bald male
remained in the living room with Mandave, Radocina went into the dining room
where he sat down and took out a handgun from behind him.  He placed the gun
on the dining room table while still holding it.  As far as Mandave could
recall, Radocina never said anything about using the gun.  One or more of the
three intruders told Mandave to call Devia and tell him to come over.  Mandave
telephoned Devia.  This was about 5 or 10 minutes after the men first arrived.
Mandave spoke first to his brother Balkar, and told him to tell Devia to come
to the house.  The call lasted about one minute.  Mandave could not recall if
the gun was still out at the time he made the phone call.

[16]

The three men said they would wait until Devia
arrived.  Radocina took out a pair of handcuffs and placed them on the coffee
table in front of Mandave.  He said Devia would be coming with them.  Radocina
searched the house and asked Mandave if he had any guns.

[17]

Balkar arrived about 15 minutes after the three
men had first entered the house.  He was upset to see them in the home.  He
wanted to know what they were doing in the house and said, Who do you think
you are?  Radocina became angry and produced the gun for the second time, once
again from behind his back.  He spoke directly to Balkar and said, Who do you
think you are?  Balkar became quiet.  Radocina then patted down Balkars body
to see if he was carrying anything and then directed Balkar to sit down.

[18]

The three men waited a short time longer for
Devia.  While waiting, Radocina said, Id kill Mitul for free, I hate rats.
He also said he would shoot the Heers mother, that he did not care that she
was 40 years old, and that he was not afraid of blasting anybody.

[19]

When it became apparent that Devia was not going
to arrive, Radocina said to the Heers they should tell Devia to change his
story about what happened and that they would come back in a week to tell
Devia to change his story.  They told the Heer brothers to tell Devia that he
should say the Crown told him he would get out of jail if he changed his
story.  They said they had talked to A.J. Chima and that he would not be
showing up in court.  Radocina also told the Heer brothers not to associate
with Devia because it would get them killed.  He told them they were idiots
for hanging out with Devia and that Radocina was not afraid to shoot them.
While Radocina said those things, the appellant and Porter stood in front of
Mandave.  Five or ten minutes after Balkar returned home, the three men left.
Throughout the time in the house the taller man, Porter, just stood there,
basically and on occasion whispered in Radocinas ear.

[20]

Mandave identified the appellant in court.

[21]

Balkar Heer (Balkar) was 28 years old at the
time of trial.  He and Devia were friends.  In January 2005, Devia told Balkar
about Mr. Blands murder, including how he, Devia, had driven Roy Dalen to the
scene.  Balkar attended Devias bail hearing at the Richmond courthouse, and
saw Roy Dalen at that time.  Roy Dalen made a zip your mouth gesture to his
son Ryan, and to another man, Pavan Yadav, with whom Ryan was sitting.

[22]

On 10 August 2005, Balkar was working at his
auto body shop installing a stereo in Devias vehicle when Mandave called and
spoke to Devia.  After the call, Devia said someone was at the Heer house
looking for him (Devia) and that he would not go to the house.  Balkar decided
to go home and see who was looking for Devia.

[23]

Balkar arrived at his home ten minutes later.
As he entered the house, three men, including the appellant, came around the
corner from the dining room.  The shorter bald male patted Balkar down for
weapons, tried to intimidate him and told him to sit down.  When Balkar refused
and asked why they were in his house, Radocina pulled out a handgun from the
back of his pants.  The gun was cocked and looked ready to fire.  Balkar also
saw a pair of handcuffs.  Mandave, who was sitting on a sofa, very frightened,
told Balkar to shut up and sit down.  Balkar realized that the men were
serious and sat down.  Radocina then tucked the gun back in the back of his
pants.  The three men remained standing throughout the time they were in the
house.  Porter did not do much and only whispered in the ear of Radocina a
couple of times.

[24]

Radocina and the appellant repeatedly asked
Balkar where Devia was.  Balkar replied that Devia was not coming to the
house.  The appellant told the Heers that they should not mess with his
father, that Roy had connections out of jail, and that Roy was a person not to
be messed with.

[25]

Balkar testified that the appellant said he
wanted Devia to change his statement and told him to tell Devia to change his
statement so that the both of them could get off.  He said if Devia did not
change his story, Devia would be killed and that he, Balkar, could be shot
while driving with Devia.

[26]

Radocina said that he killed rats for fun and
that he would shoot and kill the Heer brothers and Devia if Devia did not
change his statement.

[27]

The appellant repeatedly told Balkar to tell
Devia to change his statement, and that Roy Dalen was not a person to mess
with.

[28]

After Balkar told the men that Devia was waiting
at a park, the men left.  Radocina wrote down Balkars licence plate number and
told Balkar in a sarcastic tone that he had a nice car and should keep it
polished and enjoy driving it.

[29]

Balkar saw the three men walking towards a
parked white Mustang.  He was unable to record the licence plate number.

[30]

On 11 August, Balkar recognized the men who
entered his house in photos shown to him in a police photograph identification
procedure.

[31]

Sergeant Young, of the Delta Police Department,
told the court that one member of the Dalen family owned a 2002 Mustang
convertible, grey in colour.

[32]

Bruce Funk, an expert on cellular telephone
communication, examined call records, and linked calls from the appellants
telephone to both Radocina and Porter.  Two of those calls linked the appellant
and Porter shortly after 6:00 p.m. on 10 August 2005.

[33]

Officer X acted in an undercover role on 11
August 2005.  Officer X posed as a friend of Devia and persuaded the appellant
to meet with him at a coffee shop in Steveston.  The appellant told Officer X
he did not know who was there last night and that he was not present.  He
later corrected himself to say he did know who was present, but that he was
not.  He told Officer X that Devia knew what to do, that he needed to change
his story, and to tell the police he had lied.

[34]

Admissions at trial established that the
appellants mother owned a 2002 Ford Mustang convertible, and that the car was
seen parked at the appellants place of work on 11 August 2005.  Admissions
were also filed concerning the identity of persons in the photo line-up which
included Jason Porter and Alexander Radocina.  There were no photographs of the
appellant in the photo line-up materials used by the police.

Evidence for the defence

[35]

The appellant testified to an alibi defence
involving his work schedule on 10 August 2005.  He worked at Georges Taverna
Restaurant in Steveston, and finished his shift about 5:00 p.m.

[36]

At around 8:00 p.m. he went to the home of a
friend, Evan Hatsispiru, in Richmond, whose father owned Georges Taverna.  He
spent virtually the whole evening with Hatsispiru until about 1:00 a.m. on the
morning of 11 August 2005.

[37]

Members of Evans family testified to various
aspects of the appellants alibi defence, and the appellants work schedule.

IV.  The Judges Discussions With Counsel, The Charge To The Jury,
and Answers To The Jurys Questions

Pre-charge discussions with counsel

[38]

It was apparent from the course of the trial
that the central issue was whether the Crown had proven that the appellant was
one of the three intruders into the Heer home on 10 August 2005.

[39]

In discussing with counsel the law relating to
parties in cases where identity was the main issue, the judge said:

THE COURT:  -- where, I think, the only live
issue is -- is, has the Crown proved beyond a reasonable doubt the man in the
dock was one of the three culprits.  Okay, it goes like this, our Court of
Appeal recently -- well, recently to me, is three years ago -- confirmed in
the case of Andy Davis, that it is appropriate, in a case such as that, for the
judge to do what the judge has to do, which is to give them the nutshell
version of the elements of the offence, tell them that nothing is decided until
they decide it, but then say to them, I am going to perceive [sic], on the
premise, which may be wrong, that the only issue that youll be actively
considering is identification,  and then go on from there.

So
with respect to s. 21, what they will hear now, and itll go by in about four
seconds, is that with respect to Sections 1, 2, and 3, they are all 21(1)(a)
co-actual committers.  With respect to Section 4, on the face of it, the fellow
with hair, in other words, the second culprit who talked, he is the one with
hair -- we are lucky weve got bald, hair, bald; and weve got bald short, bald
tall -- the second culprit, the one with hair, who also did talking, is caught
on Count 4 by reason of 21(2), because on the face of the evidence, he did
know.  And when I am using 21(2), I knock out the or ought to know --

[40]

In response to a question from Crown counsel
concerning the appellants statements to the undercover police officer on 11
August about the passing of a message to Devia, the judge said:

THE COURT:  No.  This whole case has gone
before them on the basis of the 10th.  The events of the 10th, at the house,
are whats in issue.  Thats the way this whole case has gone, the way -- the
whole way its been fought.  The fact that on the face of it, youve got the
9th to the 12th, doesnt change my understanding, as the trial judge, of whats
been going on in this courtroom, and so the answer is no.  I am going to
instruct them simply, subject to what I heard in the submission --

Well, I didnt ask defence
counsel.  Sorry, let me just break away for a second.  As I say, I see it as a
case where its one issue, really, has the Crown proved beyond a reasonable
doubt, the man in the dock was one of the three culprits.  Is that the way you
see it?

MR. MORRISON:        Yes,
My Lord.

[41]

Neither counsel asked the judge to instruct the
jury that if they acquitted on Count 4 they must also acquit him on Count 1.
Nor did either counsel ask the judge to instruct the jury that if they found
the appellant guilty on Count 1 they must also convict on Count 4.

The charge to the jury

[42]

The trial judge gave the jury standard
instructions on their role as triers of fact and their duty to assess and
interpret the evidence.  No exception is taken to any aspect of this
instruction.  He also instructed the jury correctly on the concept of reasonable
doubt.

[43]

The trial judge clearly identified what he saw
as the issue for the jury:

The
live issue, and youll hear this over and over as I talk, in this case is this,
Has the Crown, upon whom the onus lies, convinced you beyond a reasonable
doubt that the man in the dock, Dalen, was the culprit with hair? Thats the
live issue.

[44]

The trial judges instruction concerning Count 4
was as follows:

On the evidence here, the short
bald culprit waved about what was either a real or imitation gun.  That is to
say a firearm for your purposes.  The fact that it was only the short bald
culprit who held the firearm and revealed it to the Heer brothers, thereby
obviously using it within the meaning of Count 4, is no bar to conviction of
the man in the dock before you, Ryan Dalen, on Count 4, if -- if you are
convinced beyond a reasonable doubt that the accused was that second culprit,
the one with hair.  Because on the evidence before you, the only reasonable
inference to be drawn from the events that occurred in the house is that at the
very least the short bald culprit and the culprit with hair had formed an
intention in common to carry out an unlawful purpose, obstruct justice, or
utter threats, or both, and to assist each other therein.  And the short bald
culprit in carrying out the common purpose committed the offence charged in Count
4.  And as there is no evidence to the contrary, the second culprit, the one
with hair, in these circumstances knew that the commission of the offence
charged in Count 4 would be a probable consequence of carrying out the common
purpose.  In the result, the culprit with hair is, in law, just as guilty of
committing the offence charged in Count 4 as the short bald culprit.

As a matter of law, if you do
not find the accused before you, Dalen, guilty on Count 1 or Count 2 or Count
3, you must find him not guilty on Count 4.

With respect to Counts 1, 2, and
3, on the indictment on the evidence before you, at least the short bald
culprit and the culprit with hair, were what the law calls co-actual committers
of the offence and are therefore guilty.  The Crown alleges that the man in the
dock before you, Ryan Dalen, was the culprit with hair.

Now ladies and gentlemen, in a
trial, in a criminal case by jury, nothing is decided until the jury decides
it.  With respect to whichever of the four counts on the indictment you are
looking at, the Crown must prove beyond a reasonable doubt each element of the
offence, including proof of the specific intent stated on the face of the
count.  Whether the Crown has proved each element of the offence is in your
hands.  But I will proceed on the basis that it is obvious that each element of
each of the four counts on the indictment has been proved by the Crown beyond a
reasonable doubt, and that the live issue with respect to whichever of the four
counts you are looking at is, Has the Crown, on whom the onus lies, proved
beyond a reasonable doubt that the accused before you, Ryan Dalen, was one of the
three culprits who entered the Heer house on August 10th 05?

If you are so convinced beyond a
reasonable doubt, you will find him guilty on whichever count you are looking
at.  If you are not so convinced beyond a reasonable doubt, you must find him
not guilty on whichever count you are looking at.

Now,
for all practical purposes the verdicts you will return, if you are able to
arrive at a verdict, is guilty on all four counts or not guilty on all four
counts.

[45]

Towards the end of his charge, the judge said:

As a matter of law you must
return a separate verdict, if you are able to arrive at one, on each count on
the indictment.  On the other hand, the law recognizes the obvious.  In this
case, obviously if you are not convinced that the Crown has proved beyond a
reasonable doubt that Ryan Dalen, the man in the dock, was one of the three
culprits at the Heer house on August 10th, 05, you must find him not guilty on
all four counts.  If you are convinced beyond a reasonable doubt that he was
one of the three culprits at the Heer house on August 10th, 05, then as a
matter of law the verdict on each count is in your hands with only this
reservation.  If you do not find him guilty on at least one of Counts 1, 2, or
3, you must find him not guilty on Count 4.

And
now, to be practical, because the only live issue at the end of the case is
whether the Crown, on whom the onus lies, has proved beyond a reasonable doubt
that the accused was one of the three culprits at the Heer house on August
10th, 05, you will find him guilty on all four counts on the indictment if you
are so convinced beyond a reasonable doubt, and not guilty on all four counts
if you entertain even so much as a reasonable doubt that the accused was one of
the three culprits who were at the Heer house on August 10th, 2005.

[46]

The charge was completed on 29 February 2008.
Neither counsel took objection to any aspect of the judges charge to the jury.

[47]

The jury asked for a playback of the evidence of
Mandave Heer, Balkar Heer, and Manjit Tatla, the Heers next door neighbour.
The following day, 1 March, was spent playing tape recordings of those three
witnesses.

Questions from the jury

[48]

On the late afternoon of 2 March 2008, the jury
sent this question:

Please review
the law regarding returning a verdict on all four counts.  That is to say, do
they all need to be the same verdict?

[49]

After discussions with counsel, the trial judge
gave the jury this further instruction:

THE COURT:  All right.  Here is my answer as
to the law.

(1)        As
a matter of law, you must return a separate verdict, if you are able to arrive
at a verdict, on each of the four counts on the indictment.

(2)        That
is so, with one qualification.  As a matter of law, if you do not find the
accused guilty on Count 1 or Count 2 or Count 3, you  must find him not guilty
on Count 4.

Next, to be
brief, the verdicts you return do not, as a matter of law, have to be the same
on each and every count on the indictment.

[50]

Shortly thereafter, the jury sent a further
question as follows:

We have a
verdict on Count 1, but we are hung on Counts 2 and 3.  How do we proceed?

[51]

The judge discussed with counsel various
possible responses to this question.  After a short adjournment, Crown counsel
advised that she proposed to enter a stay of proceedings on Counts 2 and 3, and
to request an amendment to Count 4 to delete the references to Counts 2 and 3.

[52]

When the jury was recalled, the judge told them
that the Crown had exercised its power to enter a stay on Counts 2 and 3, and
that Count 4 was amended by deleting the reference to uttering threats, which
was the substance of those two counts.

[53]

The judge then said:

Now what happens now?  The
indictment before you is now simply Count 1, and Count 4 as it now is.  Thats
all youve got.  Forget 2 and 3.

You will proceed to consider
your verdicts on Counts 1 and 4, but you will remember, as Ive told you
before, and what it comes to now because 2 and 3 have disappeared, if you find
the accused not guilty on Count 1, you must find him not guilty on 4.

If
you find him guilty on Count 1, you may return a verdict of guilty or not
guilty on Count 4, whichever is the verdict you return, if you are able to
arrive at a verdict.

[54]

The judge then excused the jury to consider
whether he had answered their question adequately, and if not, to provide a
further question.

[55]

After these events, neither counsel asked the
judge to instruct the jury that if they acquitted the appellant on Count 4 they
must also acquit him on Count 1.  Nor did either counsel ask the judge to
instruct the jury that if they found the appellant guilty on Count 1 they must
also find him guilty on Count 4.

[56]

Shortly after being excused, the jury advised
they had a verdict.  On their return to the courtroom, the following exchange
took place:

THE COURT:  All right.  Now I have to do
this in stages.  Let me talk to the Foreperson for a second.

When last you were in here,
which was a couple of minutes ago, you went out to consider whether anyone had
any further questions arising out of the answer Id given you, is what it
basically came to.

So I just say to you, Madam
Foreperson, does -- do you have any further question you want to give me?

JURY FOREPERSON:           No,
My Lord.

[57]

The jury then reported their verdicts, holding
the appellant guilty on Count 1 and not guilty on Count 4.

V.  Parties Positions on Appeal

For the
Appellant

[58]

Counsel for the appellant submitted that the
verdicts on Counts 1 and 4 were inconsistent, and that the guilty verdict on Count
1 was therefore unreasonable.  The trial judge had emphasized throughout his
instructions to the jury that the appellants identity as one of the three
intruders was the key issue.  The appellant says that no reasonable jury could
have found the appellant not guilty on Count 4 (and must hence have had a
reasonable doubt as to whether he was a person who committed that offence), but
at the same time have found him guilty on Count 1.

[59]

Counsel for the appellant supported his
submission with reference to what the trial judge said when giving reasons for
sentence on 9 April 2008:

[5]   Because of the course of the
proceedings and what passed between counsel and me on March 31, I think it meet
that the following be plainly stated:

(a)     Whether the
finding of guilty on Count 1 is bad-in the sense of unreasonable within the
meaning of s. 686(1)(a)(i) - is for the Court of Appeal, not for me.  The case is
a classic of its kind: in law, the jury had to return a separate verdict on
each count; in fact, there was but one live issue in the case and that live
issue was common to all four counts; the jury found the accused guilty on one
count and not guilty on another; inconsistency of verdicts is apparent; whether
the differing verdicts are necessarily and irreconcilably inconsistent and must
result in the conviction on Count 1 being set aside is for the Court of Appeal
(
R. v. Pittiman
, [2006] 1 S.C.R. 381).  But for my part, I must ignore
all of that.  I must proceed to sentence the offender on Count 1 on the premise
that the finding of guilty is good.  I must not let the problem with the jurys
verdict on Count 1 affect in any way, shape, or form what I do in sentencing
the offender.

[60]

Counsel for the appellant also submits that the
trial judges answers to the jurys questions were unduly brief, inadequate,
and may have left the jury confused.  He says this perhaps explains why the
jury returned inconsistent verdicts that are irreconcilable on any rational or
logical basis.

For the
Crown

[61]

Counsel for the Crown submitted that the
verdicts on Counts 1 and 4 were not inconsistent, and that the verdict on Count
1 was not unreasonable.  He points out that Count 4 required proof of an
element not found in Count 1, namely, knowledge that Radocina had a firearm
before it was produced inside the Heer home, and that he intended to use it in
the attempt to obstruct justice.  There was no evidence that the appellant had
such knowledge, or that he at any time exercised possession or control over the
firearm.

[62]

The Crown points out that the learned trial
judge erred in his charge to the jury on Count 4 when he said:

And as there is
no evidence to the contrary, the second culprit, the one with hair [i.e. the
appellant], in these circumstances knew that the commission of the offence
charged in Count 4 would be a probable consequence of carrying out the common
purpose.

[63]

Counsel says that in saying there was no
evidence to the contrary, the trial judge placed an improper reverse onus on
the appellant to disprove knowledge of the weapon.  Counsel says that while the
direct evidence would have permitted the jury to draw the requisite inference
of knowledge on the appellants part, that inference was not one that had to be
drawn.

[64]

Thus, the Crown says the jury correctly applied
the trial judges final instructions following amendment of the indictment that
if they found the appellant guilty on Count 1:

... you may
return a verdict of guilty or not guilty on Count 4, ...

[65]

Finally, the Crown says the judges responses to
the jurys questions were correct, responsive and unobjectionable.  After
giving the jury the answers to their last question, he invited them to advise
him if they were not satisfied.  No further question was asked.

VI.  Discussion

[66]

In
R. v. McShannock
(1980), 55 C.C.C.
(2d) 53 (Ont. C.A.), Mr. Justice Martin, for the Court, said at p.55:

Where an
indictment contains more than one count and the jury convicts on one count and
acquits on another count an inconsistency in the verdicts does not of necessity
require the conviction to be set aside.  The onus is on the appellant to show
that the verdicts are so at odds that no reasonable jury who understood the
evidence could have properly arrived at that verdict.  We think that onus on
the peculiar facts of this case has been discharged.  Where on any realistic
view of the evidence, the verdicts cannot be reconciled on any rational or
logical basis the illogicality of the verdict tends to indicate that the jury
must have been confused as to the evidence or must have reached some sort of
unjustifiable compromise.  We would, on the ground that the verdict is
unreasonable alone, allow the appeal, set aside the verdict, and direct an
acquittal to be entered.

[67]

This passage was cited with approval by the
Supreme Court of Canada in
R. v. Pittiman
, [2006] 1 S.C.R. 381, where
Madam Justice Charron, for the Court, said:

[7]  The onus of establishing that a verdict
is unreasonable on the basis of inconsistency with other verdicts is a
difficult one to meet because the jury, as the sole judge of the facts, has a
very wide latitude in its assessment of the evidence.  The jury is
entitled to accept or reject some, all or none of any witnesss testimony.
Indeed, individual members of the jury need not take the same view of the
evidence so long as the ultimate verdict is unanimous.  Similarly, the
jury is not bound by the theories advanced by either the Crown or the
defence.  The question is whether the verdicts are supportable on any
theory of the evidence consistent with the legal instructions given by the
trial judge. ...

[8]  The search
for a rational or logical basis for the verdicts does not mean that where a
narrative of the events is not readily apparent from the jurys findings that
the impugned verdict must necessarily be set aside as unreasonable.  The
jurys task is not to reconstruct what happened.  Rather, it is to
determine whether the Crown has proven each and every element of the offence
beyond a reasonable doubt.  Therefore, in the case of a single accused
charged with multiple offences, different verdicts may be reconcilable on the
basis that the offences are temporally distinct, or are qualitatively
different, or dependent on the credibility of different complainants or
witnesses. ...

[68]

Where inconsistent verdicts are the foundation
of an appeal, the question is not whether the acquittal is reasonable, but
whether the conviction is reasonable:  See
R. v. Mackenzie
(1997), 97
B.C.A.C. 251,
R. Pittiman
(
supra
),
R. v. Koury
, [1964]
S.C.R. 212.

[69]

In this case, it cannot be said that the
conviction on Count 1 is unreasonable.  There was ample evidence which, if
accepted by the jury, showed that the appellant was guilty of obstruction of
justice.  Apart from the question of the appellants identity, both counsel and
the judge proceeded on the basis that all elements of the offence charged in Count
1 had been proven.  The only live issue was whether the appellant was a
perpetrator, and the jury was satisfied that he was.

[70]

The additional element necessary to a conviction
on Count 4 was use of an imitation firearm while committing or attempting to
commit the offence of obstruction of justice.

[71]

The evidence was that the only person who
possessed a firearm during the offence was the shorter bald man, Radocina.  The
appellants culpability on this count depended upon his being a party to the
use of the firearm within the meaning of s. 21(2).  To prove that charge
against the appellant, the Crown bore the onus of establishing that the
appellant knew in advance that Radocina possessed a weapon, and intended to use
it.

[72]

That is not an inference that the jury was bound
to draw from the evidence.  The gun was not seen when the three men entered the
house.  Radocina first produced it after the obstruction of justice had been
underway for some time, and when he was in the dining room and the appellant
was still in the living room.  The appellant never possessed or had control of
the gun at any time during the intrusion.

[73]

There is no direct evidence that the appellant
knew Radocina was in possession of a gun at any time prior to Radocinas
producing it in the dining room. None of the three men made any statements that
would indicate that the appellant had any prior knowledge of the gun, or of its
possible use, or exercised any control over it.

[74]

The trial judge correctly instructed the jury
that a conviction on Count 1 did not require them also to convict on Count 4.
He left it open to them to do so, but equally left open the possibility of an
acquittal on Count 4.

[75]

In my respectful opinion, the verdicts on Counts
1 and 4 are entirely supportable on the evidence and consistent with the
instructions provided by the trial judge.  The acquittal on Count 4 is not
inconsistent with the conviction on Count 1, and the latter cannot be said to
be unreasonable.

[76]

With respect to the judges answers to the
jurys questions, counsel for the appellant did not point to anything that the
judge said, or that he failed to say, in answering the questions that might
have left the jury confused or uncertain, or that was objectionable or
incomplete.  There is nothing on the record to suggest the jury was confused.
The judge specifically left open the opportunity for the jury to ask further
questions if necessary.  No further question was asked.

[77]

Counsel were fully consulted before the judge
answered the jurys questions, and no objection was taken after the answers
were given.

[78]

I would not give effect to this ground of
appeal.

[79]

I would dismiss the appeal.

The Honourable Chief Justice Finch

I Agree:

The
Honourable Mr. Justice Hall

I Agree:

The
Honourable Mr. Justice Chiasson


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Port Chevrolet Oldsmobile Ltd.,

2010 BCCA 47

Date: 20100126

Docket:
CA035360

Between:

Regina

Respondent

And

Port Chevrolet Oldsmobile Ltd. and
Michael Wolfe

Appellants

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Bennett

The Honourable Madam Justice Garson

On
appeal from: Supreme Court of British Columbia, August 27, 2007
(
R. v. Port Chevrolet Oldsmobile Ltd.
, New Westminster Reg. X065157

Oral Reasons for Judgment

[The sentence appeal of Mr. Wolfe was dismissed as abandoned. These
reasons for judgment address the Crowns sentence appeal, although in the style
of cause the Crown is named as respondent]

Counsel for the Appellant:

R. Peck, Q.C.
A.M. Willms

Counsel for the (Crown) Respondent:

J.
  Hyman

Place and Date of Hearing:

Vancouver,
  British Columbia

January 25 ,2010

Place and Date of Judgment:

Vancouver
, British Columbia

January
  26, 2010

[1]

SAUNDERS J.A.
: The
Crown appeals from the sentence imposed August 27, 2007 on Mr. Wolfe for
seven counts of GST offences contrary to ss. 327(1)(c) and (d) of the
Excise
Tax Act
, R.S.C. 1985, c. E-15. Mr. Wolfe was the president of the
co-accused Port Chevrolet Oldsmobile Ltd., also convicted of GST offences.

[2]

The learned sentencing judge, Madam Justice
Gill, sentenced Mr. Wolfe to two years less a day incarceration on each
of seven counts on which he was convicted, to be served concurrently, along
with fines on those counts totalling $6,904,071.06, to be paid by August 31,
2014, with a further eight months incarceration should he be in wilful default
of the fines.

[3]

The charges arise from a scheme created by
Sameer Mapara, owner of Rags to Riches Motorcars. Mr. Wolfe, Mr. Mapara,
Port Chevrolet and two other individuals were charged on a 13 count indictment
for events between May 1995 and November 1998. Following Mr. Maparas
conviction for a murder committed in 1998 on which he was sentenced to a life
sentence, and dismissal of Mr. Maparas appeal, the Crown stayed the
charges against Mr. Mapara relating to these GST offences. The Crown also
stayed the charges against the other two individuals. The trial proceeded,
therefore, against only Mr. Wolfe and Port Chevrolet on 12 counts.

[4]

After a 70-day trial, a jury convicted Mr. Wolfe
on seven counts. In doing so it acquitted him of two counts relating to the
period May 1995 to February 1996, and one count of fraud contrary to s. 380
of the
Criminal Code.

[5]

Mr. Wolfe and Port Chevrolet appealed
unsuccessfully against conviction: 2009 BCCA 357, 246 C.C.C. (3d) 355.

[6]

The charges against Mr. Wolfe and Port
Chevrolet arose out of the purported purchase, sale and export of vehicles from
Canada to Asia between 1995 and 1998. It is accepted the scheme was devised by Mr. Mapara. He
approached Mr. Wolfe, seeking assistance in financing the GST on luxury
vehicles for export to Asia.

[7]

As described in the reasons for judgment of
this Court on the conviction appeal, the
Excise Tax Act
requires
suppliers of goods and services to collect GST from their customers and to
remit it to the taxing authority. Purchasers of goods who subsequently sell the
goods to others are entitled to input tax credits for the amount of the GST
paid on the goods they acquired to sell. That is, there is an application to
the government for a GST rebate. GST is not collected on goods that are
exported. An exporter will pay GST on the goods it acquires and is entitled to
input tax credits, but will not collect GST from its customers.

[8]

The scheme was one in which Mr. Mapara and
his business Rags to Riches purported to sell automobiles to Port Chevrolet. The
vehicles did not exist and false documents and invalid vehicle identification
numbers were used in the paper work. Port Chevrolet paid Rags to Riches the
purchase price plus 7% for GST. Port Chevrolet then purported to sell the
vehicles back to Rags to Riches or its nominee, without imposing GST because
the vehicles were said to be sold to Mr. Mapara and his business for
export. The price of the resale by Port Chevrolet to Rags to Riches was the
initial sale price plus 1.5%. This left a profit in the hands of Rags to Riches
of 5.5% on the original purchase price.

[9]

Port Chevrolet then claimed the input tax credit
on its original purchase, that is 7% of that purchase price. Having originally
paid 107% of the purchase price for the car, and received 101.5% from Rags to
Riches and 7% rebate from the government, Port Chevrolet was ahead by 1.5% and
Rags to Riches by 5.5%.

[10]

The judge held the fraudulent transactions
involved about 1600 non-existent vehicles, over 200 transactions between Mr. Wolfe
and Mr. Mapara and approximately $6.9 million in GST input tax credits
obtained by Port Chevrolet.

[11]

The Crown contends the sentence of two years
less a day imposed by the trial judge was inadequate and unfit, given the size,
sophistication and duration of the offences. The Crown acknowledges that Mr. Wolfe
was not the principal in the fraudulent scheme whereby these GST input tax
credits were refunded to Port Chevrolet and says that had he been the main
proponent of the scheme a sentence of six or seven years would have been
appropriate on the authorities, demonstrating that a sentence of two years
less a day for being a party to such a large scale fraud on the public purse is
an inadequate sentencing response.

[12]

The Crown submits a sentence of two years less
a day departs markedly from the range of sentence normally imposed for
substantial and prolonged involvement in an on-going fraud on the public purse,
urges us to interfere with the sentence on the basis it is demonstrably unfit,
and suggests a sentence of four or five years is the appropriate sentencing
response. In support of its submission the Crown cited several cases of fraud,
tax and otherwise, including
R. v. DiGiuseppe
, 2008 ONCJ 127, [2008] 5
C.T.C. 3;
R. v. Bjellebo
(2003), 177 O.A.C. 378, 2003 D.T.C. 5659;
R.
v. Wilder
, 2008 BCCA 370, [2009] 1 C.T.C. 246;
R. v. Elless
, 2007
BCSC 962;
R. v. Alexander Street Lofts
, 2007 ONCA 309, 86 O.R. (3d) 710;
R. v. Surani
, (10 September 2008), Vancouver  487 (P.C.);
R. v.
Davda
, 2007 BCPC 463, 2008 G.T.C. 1309; and
R. v. Hofbauer
, 2004
BCSC 1810. These cases, says the Crown, establish a range of sentence in this
case of six to seven years for the principle offender in the scheme, and four
to five years for a party.

[13]

Counsel for Mr. Wolfe also refers to a
number of cases including cases of fraud under the
Criminal Code
. These
cases, it is said, demonstrate that the range of sentence for like offences is
not as high as the Crown submits:
R. v. Biller
, 2005 BCSC 1278;
R.
v. Bortolussi
(1997), [1998] 1 C.T.C. 145, 36 O.T.C. 189 (Ont. Gen. Div.);
R.
v. Ellis
, 2008 ABQB 40, 428 A.R. 334;
R. v. Gray
(1995), 76 O.A.C.
387, 95 D.T.C. 5262 (C.A.);
R. v. Khan
, 2002 BCCA 703, 183 B.C.A.C. 3;
R.
v. Minnie
, 2007 BCSC 433;
R. v. Prokofiew
(No. 2), [2004] O.J. No. 5133
(S.C.J.) and
R. v. Tulloch
, [2002] O.J. No. 5446 (S.C.J.). We are
also referred to cases involving the
Excise Tax Act:

R. v. Brown
,
2003 BCPC 537, and
R. v. Lempen
, 2006 NBQB 246, 302 N.B.R. (2d) 29.

[14]

It is well known that this Court may not
interfere with a sentence where there is no error in principle alleged, unless
the sentence is demonstrably unfit:
R. v. Fraser
, 2009 BCCA 179, 269
B.C.A.C. 200;
R. v. Johnson
(1996), 112 C.C.C. (3d) 225, 84 B.C.A.C.
261;
R. v. C.A.M.,
[1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327.

[15]

In determining whether a sentence is
demonstrably unfit, the question is whether the sentence imposed by the trial
judge is a substantial and marked departure from the sentences customarily
imposed for similar offenders committing similar crimes:
R. v. C.A.M.

[16]

Given the nature of the offences in this case,
it bears mentioning that the principle of general deterrence and denunciation
must play a significant role in the sentence imposed. No doubt it is that
principle that caused the judge to impose a period of incarceration even though
the length of sentence is one which could attract a conditional sentence. Yet
at the same time, the sentence must be nuanced to reflect the degree of
culpability of the offender, reflect the particular circumstances of the
offender and the offence including considerations specific to the offender,
have a degree of parity to cases involving like offenders and like offences,
and
fit within the sentencing provisions of the governing statute
.

[17]

The sentence was imposed under the
Excise
Tax Act.
The maximum sentence for an offence under s. 327 is five
years, in contrast to the maximum sentence for fraud under the
Criminal Code
of 14 years. However, the
Excise Tax Act
requires the court to
impose a fine in an amount between 100% and 200% of the amount involved in the
fraud. This provision produced the fines totaling just over $6.9 million. As
each sentence was comprised of two distinct portions, and there are seven
offences, totality of sentence is a proper consideration, such that in total,
the sentences imposed fully but not excessively respond to the offences.

[18]

A key aspect of any sentencing decision is
determination of the culpability of the offender. Where, as here, the person is
not the principle offender, the degree of participation of the offender in the
scheme and the state of mind of the offender is important. In this case the
judge started her reasons for sentence addressing Mr. Wolfes state of
mind

[1]        ...Counsel
are agreed that the verdict of the jury reflects a finding that Mr. Wolfe
was wilfully blind to the non-existence of the vehicles which were the subject
matter of the transactions. There were acquittals on counts 1 and 2  It is
agreed that the jury must have concluded that at some point in 1996, Mr. Wolfe
had the requisite mental element but it is simply not possible to be more
specific as to when in that year. For present purposes, I therefore proceed on
the basis that the offences occurred over a period of approximately two years.

[19]

The judge first discussed certain submissions
made with respect to the mandatory fine, and then focused on the sentence to be
imposed. Mr. Wolfe was then 58 years old (now 60). She said Mr. Wolfe
has been a respected member of the community, has no criminal record,
continues to be supported by his family, by his friends, and by his business
associates, and had advanced letters that are a testament to his character. As
to Mr. Wolfes participation in the offences, the effect of the events
upon Mr. Wolfe, and the absence of any direct personal benefit she said:

[16]      The amounts in question were
received by the company not Mr. Wolfe and as has been noted, Port
Chevrolet could not continue to carry on business after it was reassessed. I
would emphasize that there is no evidence that Mr. Wolfe received any
personal benefit beyond that benefit associated with his affiliation to the
company. The reassessment and these charges have been financially consequential
to the family as a whole. The family has paid both a large personal and
financial price. As his counsel said during submissions, Mr. Wolfe has
been visibly humbled and emotionally devastated and is no doubt remorseful.

[17]      What is not apparent from the
evidence is the nature of the scheme, the players involved, the role of each,
and the benefits each received. Given the verdict on Counts 1 and 2,
however, one can say that Mr. Wolfe was not involved at the outset and in
respect of his involvement, it was not premeditated. It is, in my view,
unfortunate that it would appear that those who are responsible for the
planning of this scheme or who benefited most directly and most significantly
will not or cannot be prosecuted. Nor is Mr. Wolfes motivation for
turning a blind eye clear from the evidence. Although the Crown led evidence to
support the suggestion that Port Chevrolet would otherwise have been out of
business and that was Mr. Wolfes motivation, I have difficulty accepting
that. Defence counsel characterized the role of the accused using the word
facilitation. On the evidence, I must agree with that description and I
proceed on that basis.

[18]      In determining what sentence is
appropriate, regard must be had to the mandatory minimum fine. Although Mr. Wolfe
and Port Chevrolet are jointly and severally liable for the amounts, in reality
Mr. Wolfe will be solely responsible and it is a fiction to suggest that
there is any impact at all on Port Chevrolet.

. . .

[20]      In all
of the circumstances, including consideration of the fine for which Mr. Wolfe
will be solely responsible and his personal circumstances as set out in the
presentence report and the evidence of Mr. Wolfe and his family members,
it is my view that a sentence of two years less a day on each of Counts 3
through 9 to be served concurrently is appropriate.

[20]

Crown counsels observation is correct that had
the principal offender in this scheme been convicted, he could have expected a
sentence much greater than was imposed upon Mr. Wolfe, commensurate with
pre-meditation, the scope of the fraud, the duration of the fraud, and his role
in involving others in this illegal activity.
Crown counsel is also
correct to observe that the scale of the fraudulent activity and the duration
of the scheme are factors that bear as well upon the sentence of a facilitator
of a scheme.

[21]

Notwithstanding the forceful submissions of the
Crown, I am unable to conclude, on the facts as found by the judge,
the
sentence imposed
is demonstrably unfit.
In this case,
in my view, the sentencing judge properly considered the mental element of Mr. Wolfe
implicit in the convictions, the fact he did not derive direct personal benefit
from the crime, the fact he had no criminal record, his remorse and shame, and
the burden of the fine he carries which bears upon the totality of the
sentence, as influencing the length of sentence.

[22]

I do not propose to review each of the cases
presented to us, but I would observe they demonstrate a broad range of sentence
reflecting the many ways cases of fraud, particularly tax fraud, may present. One
theme that emerges is that such an offence committed by the principal fraudster
often attracts a period of penitentiary incarceration. Yet while it may be said
the jail sentence imposed, in this case, is towards the lower end of the
spectrum, I do not consider the cases demonstrate that this sentence, for this
offender and these offences, considering the very large fine that has been
imposed upon Mr. Wolfe and the potential for his further incarceration,
is, in the words of
R. v.
C
.A.M.
a
substantial and marked
departure from the sentences customarily imposed for similar offenders
committing similar crimes
.

[23]

I conclude there is no proper basis to interfere
with the sentence imposed. I would dismiss the appeal.

[24]

BENNETT J.A.
: I
agree.

[25]

GARSON J.A.
: I
agree.

[26]

SAUNDERS J.A.
:
This sentence appeal is dismissed.

The
Honourable Madam Justice Saunders