COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Bronson
          v. Hewitt,

2008
          BCCA 46

Date: 20080116

Docket: CA035610; CA035611

Between:

Thomas
    E. Bronson, J. Tom Bronson, Lee B. Lewis,

Virginia
    C. Shaffer, H. Davis Lewis, Jr. and Harold D. Lewis, Sr.

Appellants

(
Plaintiffs
)

And

Howard
    H. Hewitt, A. Eugene Lewis, Jennifer Lewis Browning,

Julie
    Anne Lewis, William David Tompkins, Trustee of the Graham River Trust,

Graham
    River Outfitters Ltd., Margaret H. Mason, Bull, Housser & Tupper and

Bull,
    Housser & Tupper LLP

Respondents

(
Defendants
)

Before:

The
          Honourable Chief Justice Finch

(In
          Chambers)

Oral Reasons for Judgment

R.R.E.
          DeFilippi

S.M.
          Manery

Counsel for the Appellants

B.
          Johnston

Counsel for the Respondent, H.H. Hewitt

J.
          Dives

Counsel for the Respondents, E. Lewis, J. Lewis Browning
          & J.A. Lewis

W.G.
          MacLeod

Counsel for the Respondents, M.H. Mason; Bull, Housser
          & Tupper; Bull, Housser & Tupper LLP

Place
          and Date of Hearing:

Vancouver, British Columbia

14 January 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

16 January 2008

[1]

FINCH, C.J.B.C
:  The plaintiffs bring two applications for leave
    to appeal from orders made by Mr. Justice Goepel, the case management judge
    in these proceedings in the Supreme Court of British Columbia.

[2]

The application in CA035610 is for leave
    to appeal the order of 27 November 2007 which required the plaintiffs to prepare
    and deliver a new list of documents in chronological order.  Counsel
    for the plaintiffs contends that the list of documents already delivered complies
    with the requirements of Rule 26(1.3), and that the case management judge
    erred in his interpretation of that rule.  He says the proposed appeal
    raises an important question of law, and that the proceedings should be stayed
    pending the hearing of the appeal.

[3]

Counsel for all defendants oppose the
    application for leave to appeal.  Although the submissions of the three
    defence counsel differ slightly in detail, they all agree that the judge did
    not err in his interpretation of the rule, and that the plaintiffs have failed
    to meet the applicable tests for leave to appeal a discretionary interlocutory
    order.

[4]

Rule 26(1.3) provides:

Documents
    to which there is no objection to production must be enumerated in a convenient
    order and include a short description of each.

[5]

The list of documents, as presented,
    references 4,497 documents containing some 16,430 pages.  The defendants
    objection is, in essence, that the documents are not listed in any convenient
    way, chronological or otherwise, as required by the rule.

[6]

The case management judge set out the
    facts and the parties positions, and then reviewed the authorities, including
    the decision of Mr. Justice Lowry, when he sat in the trial court, in
G.W.L.
    Properties Ltd. v. W.R. Grace & Co. of Canada
(1992), 14 C.P.C.
    (3d) 74 (B.C.S.C.), leave to appeal refd (1993), 19 C.P.C. (3d) 373 (B.C.C.A.).

[7]

In holding that a chronological list
    must be provided the case management judge said:

[37]
    In this case, the defendants, as a starting point, seek a chronological list.
    The plaintiffs submit that the authorities, as cited above, do not require
    documents to be listed chronologically.  I accept that a chronological
    list may not be required if the documents are otherwise listed in a convenient
    order.  What is required, as noted by Lowry J. in
Grace
,
    is that the list of documents provides the party seeking discovery with a
    meaningful, reliable and complete disclosure as well as an effective aid to
    review the documents produced when an inspection is conducted.

[38]
    The List does not achieve that standard.  While the disclosure may well
    be complete, it does not allow for meaningful inspection.  There is neither
    rhyme nor reason to the List.  The documents are listed in the order
    they were received in counsels office.  In the course of submissions,
    one counsel suggested that the organization of the List is no different that
    if plaintiffs counsel had simply thrown all his documents in the air and
    then listed them in the order he picked them up from the floor.  That
    submission, in my view, is not far off the mark.

[39]
    While a party need not always list documents in chronological order, the documents
    must be listed in a convenient order.  As noted by Lowry J. in
Grace
,
    what is required in each case depends on the nature of the documents that
    must be described and the ingenuity of counsel.  In this case, the documents
    are not listed in a convenient order and the List does not comply with Rule
    26(1.3).

[40]
    I was advised during submissions that the manner in which the List has been
    prepared allows plaintiffs counsel to produce a chronological list of documents.
    It simply requires the documents to be sorted by a different field.
    A chronological list, however, does not in itself resolve the difficulties
    of the present production.  The documents must be listed in a way that
    will allow for their orderly inspection.  This will require the individual
    pages to be renumbered and the separate documents retabbed, all in chronological
    order.  Privileged and non-privileged documents must be segregated from
    each other and numbered separately.

[41]
    Within thirty days of the date of these Reasons, the plaintiffs must prepare
    and deliver a list of documents in chronological order (the New List).
    The documents in Part I of the New List must be available for inspection by
    January 15, 2008.

[8]

The test for leave to appeal from a
    discretionary interlocutory order is high.  The burden on the applicant
    is to show an error of principle, a clearly wrong result, or a serious injustice.
    The test is even more stringent when the order is made by a case management
    judge, see:
Robak Industries Ltd. v. Gardner
2006 BCCA
    395 and
Yang v. Yang
2000 BCCA 486.

[9]

A decision closely in point for present
    purposes is the decision of Mr. Justice Wallace in
G.W.L. Properties
(
supra
) refusing leave to appeal the order of Mr. Justice Lowry.
    Mr. Justice Wallace said:

10.
    In
Aylsworth et al. v. Richardson Greenshields of Canada Limited
,
    [1987] B.C.J. No. 3133, (24
th
December 1987) Vancouver Registry
    CA008575 I had occasion to make the following observation:

It has been the general practice of this Court respecting appeals from interlocutory
    orders to not intervene with such order or to substitute its view from that
    of the trial judge, where such order involve the exercise of the chambers
    judges discretion and he has applied appropriate legal principles.

. . .

In my view,
    it would be even less appropriate for this Court to intervene where the discretion
    exercised by the pre-trial judge is concerned with giving directions incidental
    to the case-management of complex litigation.  Without attempting to
    state an exhaustive list of conditions which would justify this Court interfering
    with an order of a pre-trial judge, it is my opinion that unless such direction
    finally disposes of a fundamental issue in the lawsuit or contravenes the
    rules of natural justice this Court would not review the pre-trial judges
    exercise of his discretion.

11.
    I consider these remarks particularly applicable to the present case and I
    would not part from the principles there expressed.

12.
    In my view the appropriate format to be used with respect to the production
    and listing of documents in this action is one that is peculiarly within the
    province of the pre-trial case management judge to decide.  He, with
    the assistance of counsel for both parties, should have complete discretion
    to settle the form which such disclosure should take.  I do not consider
    that any panel of this court would interfere with the exercise of that discretion.
    Accordingly I dismissed the application.

[10]

I do not consider the proposed appeal
    of Mr. Justice Goepels order to be significant to the practice in general.
    What is convenient in a given case must depend on the particular circumstances
    of that case.  The rule gives a judge a broad discretion to determine
    what is convenient in the circumstances, bearing in mind that the purpose
    of discovery of documents is to provide the party seeking discovery with,
    as Mr. Justice Lowry said in
G.W.L. Properties
:

a meaningful, reliable, and complete disclosure as well as an effective aid
    to retrieving the documents produced when an inspection is conducted.
    What is required in each case depends on the nature of the documentation that
    must be described.

[11]

I see no prospect of success in the
    proposed appeal.  Additionally, the proposed appeal would hinder the
    progress of the action and disrupt the schedule for pre-trial proceedings
    set by the case management judge.

[12]

The application for leave to appeal
    the order of 27 November 2007 is dismissed.

[13]

The plaintiffs apply in CA035611 for
    leave to appeal the order of 6 December 2007, which dismissed the plaintiffs
    application for leave to file an Amended Amended Statement of Claim.
    The defendant Hewitt opposed the proposed amendment in respect of the claim
    against him on the basis that it was premature, prejudicial and not necessary
    to determine the real issue in controversy.

[14]

The case management judge agreed with
    Hewitts position and refused leave to amend.

[15]

The case management judge described
    the proposed amendment as follows:

[11]
    The gist of the contested amendment is that Hewitt, without passing his accounts,
    has transferred money to himself from the Beneficiaries share of the BNO
    sale proceeds.  They seek an order that Hewitt pay back such amounts
    with interest.

[12]
    Underlying the application is the Beneficiaries belief that Hewitt is using
    the sale proceeds to pay his legal expenses in this proceeding.  The
    plaintiffs submit that the pre-taking of legal expenses from trust funds constitutes
    a breach of trust.  In support of that allegation, they cite
Kozicki
    Estate v. Kozicki Farms Ltd.,
2004 SKQB 125,
Culbert Estate
    (Re),
2006 SKQB 454, and
Carter v. Blaney
(1989), 34
    E.T.R. 299 (B.C.C.A.).  Each of those cases discusses the entitlement
    of a trustee to be indemnified from trust assets for properly incurred legal
    expenses.  None of them deals specifically with the issue of whether
    the trustee has a right to pre-take litigation costs prior to the passing
    of accounts.

[16]

The substance of the judges reasons
    refusing leave to amend is found in the following paragraphs:

[17]
    The real issue in controversy between the plaintiffs and Hewitt concerns Hewitts
    sale of the BNO shares.  The plaintiffs say Hewitt did not have the authority
    to sell the shares and in any event sold the shares at an improvident price.
    The proposed amendment will not assist in determining those issues.

[18]
    The premise of the proposed amendment is that it is improper to use trust
    funds to pay for legal expenses prior to the passing of account.  Whether
    the taking is improper may be contingent upon the Beneficiaries succeeding
    in their breach of trust suit.  Whether they will do so will not be known
    until the conclusion of the trial.  Further, even if a breach of trust
    is found, it remains open to the court to relieve a trustee in certain circumstances
    of the consequences of that breach:
Linsley v. Kirstiuk
(1986), 28 D.L.R. (4
th
) 495 (B.C.S.C.).

. . .

[20]
    While
Waters
suggests that it is perfectly proper for a trustee
    to make payments from trust property to pay expenses, I am prepared to accept
    for the purpose of this application that the law is not perfectly clear on
    whether a trustee can use trust funds to defend a proceeding alleging a breach
    of trust.  This proceeding, however, is not the proper forum to answer
    that question.  In the context of this trust, the answer to the question
    may turn on findings that I will make in the course of this litigation.
    Until those findings are made, the question is not ripe for determination.
    The proposed amendment is premature.  The question is best answered on
    a passing of accounts.

[21]
    To allow the amendment would be unfairly prejudicial to Hewitt.  If the
    question of his legal fees becomes a live issue in this litigation, his present
    counsel may possibly become a witness and need to withdraw.  Given the
    history of this litigation, that would be most unfair.  Hewitt initially
    retained Bull, Housser & Tupper to defend these proceedings.  The
    plaintiffs subsequently amended their pleadings and added Bull, Housser &
    Tupper as a defendant in regards to actions taken by a lawyer in that office
    in connection with the sale of the trust property.  As a result of being
    joined as a defendant, Bull, Housser & Tupper withdrew and Hewitt had
    to retain new counsel, undoubtedly at considerable expense.  It would
    not be fair or proper that he be again forced to find new counsel because
    the plaintiffs have now decided to yet again

[17]

This is another discretionary interlocutory
    order made by a case management judge.  The plaintiffs have failed to
    persuade me that this discretion was not exercised judicially.  The judge
    referred to the relevant authorities and principles.  He clearly understood
    the plaintiffs position.  He assessed the potential prejudice to the
    parties and he considered the significance of the proposed amendments in the
    context of the proceedings as a whole.

[18]

I see no prospect of success in the
    proposed appeal.  I dismiss the application for leave to appeal from
    the order of 6 December 2007.

The Honourable
    Chief Justice Finch

CORRECTION  20 February 2008

R.R.E. De Fillippi
 Counsel for the Appellants should be R.R.E. DeFilippi


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Brignall,

2008
          BCCA 34

Date: 20080117

Docket: CA035459

Between:

Regina

Respondent

And

Rodney
    Troy Brignall

Appellant

Before:

The
          Honourable Mr. Justice Hall

The
          Honourable Mr. Justice Lowry

The
          Honourable Mr. Justice Frankel

Oral Reasons for Judgment

G.J.
          Barriere

Counsel for the Appellant

W.J.S.
          Bell

Counsel for the Respondent

Place
          and Date:

Vancouver, British Columbia

17 January 2008

[1]

FRANKEL, J.A.
: Rodney Brignall seeks leave to appeal and, if leave
    is granted, appeals a ten-year driving prohibition imposed by Judge De Walle,
    of the Provincial Court of British Columbia, following his conviction on a
    charge of dangerous operation of a motor vehicle, contrary to s. 249(1)(a)
    of the
Criminal Code
, R.S.C. 1985, c. C-46.  The Crown proceeded
    by indictment.  Mr. Brignall contends that the driving prohibition is illegal,
    as it exceeds the three-year maximum permitted under s. 259(2)(c) of the
Code
.
    He asks that the prohibition be reduced to three years.

[2]

The Crowns position is that the prohibition was validly imposed under
    s. 98 of the
Motor Vehicle Act
, R.S.B.C. 1996, c. 318.
    If the prohibition was imposed under the
Criminal Code
, then
    the Crown agrees it should be reduced to three years.

[3]

Mr. Brignall pleaded guilty to two offences:  dangerous driving (s.
    249(1)(a)) and failing to stop for a police officer when being pursued (s.
    249.1(1)).  The facts are straightforward.  In the early morning hours of
    July 26, 2007, the police stopped a vehicle being driven by Mr. Brignall because
    it did not have its lights on.  As the officers approached the vehicle Mr.
    Brignall drove away.  With the police in pursuit, Mr. Brignall, driving without
    any lights on, proceeded through two intersections, travelling in the wrong
    lane for two blocks.  Mr. Brignall and his female passenger, his 14 year old
    daughter, got out of the vehicle while it was still in motion.  The vehicle
    travelled about 30 feet until one of the officers was able to enter it and
    bring it to a stop.  Mr. Brignall was apprehended after a brief foot chase.

[4]

Mr. Brignall has an extensive criminal record, including convictions
    for dangerous driving, and driving while disqualified.  He also has a British
    Columbia driving record that evinces numerous administrative driving prohibitions,
    statutory driving prohibitions and court ordered driving prohibitions.  At
    the time of these offences, Mr. Brignall was subject to an indefinite licence
    suspension imposed pursuant to s. 232(3)(c) of the
Motor Vehicle Act
.

[5]

In speaking to sentence, Crown counsel concluded his submissions as
    follows:

So, as you can see, Your Honour, extremely bad driving,
    with a bad record.  Hes been repeatedly prohibited, as well.  And given his
    record, on top of time served, the Crown is asking for 14 - - Im sorry, 16
    months today.  And the licence suspension, I would suggest, should be, I think,
    as long as you can give him under the
Motor Vehicle Act
.

[6]

Both Mr. Brignall and his counsel addressed the court, but neither
    said anything regarding a licence suspension, or driving prohibition.

[7]

After sentencing Mr. Brignall to 12 months for dangerous driving (Count
    1), and four months concurrent for failure to stop (Count 2), the sentencing
    judge said this:

[5]
    With respect to Count 1, there will also be an order prohibiting you from
    operating any motor vehicle on any road, street, highway, or any other public
    place anywhere in Canada for a period of 10 years.  And the victim fine surcharge
    will be waived.

[8]

The Provincial Court Record of Proceedings and Endorsement of Information
    contains the following entry:

√

Driving Prohibition
          Duration
10 yrs
Sec.:
259(2)

[The underlined entries are hand-written.]

[9]

Two documents were prepared by a clerk of the court to give effect
    to the sentence imposed on Mr. Brignall.  The first is headed Warrant of
    Committal Upon Conviction.  It records the sentence on the dangerous driving
    charge as, 12 Month(s); Prohibition Driving  Criminal:  10 Year(s); Victim
    Surcharge Exempt.

[10]

The second document is headed Order of Prohibition Motor Vehicle or
    Others.  It sets out that Mr. Brignall was convicted of dangerous driving
    and states, SENTENCE:  Prohibition Driving  Criminal:  10 Year(s).  Further
    down the page the following appears:

On
    September 12, 2007 an order was made by Judge E.F. De Walle prohibiting the
    offender from operating a motor vehicle on any street, road, highway or other
    public place for a period of ten years.

Mr. Brignall
    signed this form acknowledging his awareness of both the prohibition and the
    fact that he could be prosecuted under s. 259(4) of the
Code
for driving while disqualified.

[11]

Section 259(2) of the
Code
states:

Where an offender is convicted or discharged under section 730 of an offence
    under section 220, 221, 236, 249, 249.1, 250, 251 or 252, subsection 255(2)
    or (3) or this section committed by means of a motor vehicle, vessel or aircraft
    or of railway equipment, the court that sentences the offender may, in addition
    to any other punishment that may be imposed for that offence, make an order
    prohibiting the offender from operating a motor vehicle on any street, road,
    highway or other public place, or from operating a vessel, an aircraft or
    railway equipment, as the case may be

(a) during any period that the court considers proper, if the offender
    is liable to imprisonment for life in respect of that offence;

(b) during any period not exceeding ten years plus any period to which
    the offender is sentenced to imprisonment, if the offender is liable to imprisonment
    for more than five years but less than life in respect of that offence; and

(c) during any period not exceeding three years plus any period to which
    the offender is sentenced to imprisonment, in any other case.

[12]

Section 98(2) of the
Motor Vehicle Act
, on the other
    hand, does not contain any express limitations on the period for which a prohibition
    can be imposed following conviction for a
Criminal

Code
driving offence:

If a court convicts a person of

. . .

(c)
    a motor vehicle related
Criminal Code
offence,

the
    court may

(d)
    consider the persons driving record, and

(e)
    even though the person is or may be subject to another prohibition from driving,
    prohibit the person from driving a motor vehicle for a definite period of
    time if the court considers that the facts of the case or the persons driving
    record or both the facts of the case and his or her driving record when taken
    together justify the prohibition.

[13]

The Crown submits that the sentencing judge misspoke when he purported
    to order a Canada-wide prohibition.  It says that what was in fact imposed
    was a province-wide prohibition under the
Motor Vehicle Act
.
    I do not agree.

[14]

The record as a whole does not support the Crowns contention.  Although
    counsel appearing for the Crown in the Provincial Court sought a licence
    suspension under the
Motor Vehicle Act
, it was open to the
    sentencing judge to impose a
Criminal Code
driving prohibition.
    It is significant that the sentencing judge used language that tracks the
    wording of s. 259(2) of the
Code
.  Further, all of the documents
    from the Provincial Court evince the imposition of a
Criminal Code
prohibition.

[15]

I can come to no conclusion other than that the driving prohibition
    was imposed under s. 259(2) of the
Code
.  The sentencing judge
    likely lost sight of the fact that the maximum punishment for the predicate
    offence, i.e., dangerous driving, is a period of incarceration not exceeding
    five years and, therefore, imposed a prohibition that exceeded the three-year
    maximum provided for in s. 259(2)(c).  Had the maximum punishment for the
    predicate offence been more than five years, then a ten-year prohibition could
    have been imposed under s. 259(2)(b).

[16]

I would grant leave to appeal, allow the appeal, and reduce the driving
    prohibition to three years.

[17]

HALL, J.A.
: I agree.

[18]

LOWRY, J.A.
: I agree.

[19]

HALL, J.A.
: The appeal is allowed in the terms indicated by Mr.
    Justice Frankel in his judgment.  Leave to appeal is granted as well.

The Honourable Mr. Justice Frankel


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Sharif,

2008
          BCCA 16

Date: 20080117

Docket: CA033610

Between:

Regina

Respondent

And

Mohammed
    Yunus Sharif

Appellant

Before:

The
          Honourable Madam Justice Ryan

(In
          Chambers)

M.
          Sharif

S.
          Goldberg

Acting on his own behalf

Counsel for the Appellant

R.
          Holloway

J.
          Gordon, Q.C.

S.
          Martorana

Counsel for Legal Services Society

Counsel for Criminal Justice Branch

Counsel for the Attorney General for British Columbia

Place
          and Date of Hearing:

Vancouver, British Columbia

December 11, 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

January 17, 2008

Reasons
    for Judgment of the Honourable Madam Justice Ryan:

Introduction

[1]

This application began as an application for directions made by the
    Legal Services Society after Mr. Sharif, who obtained an order from the court
    under s. 684 of the
Criminal Code
, R.S.C. 1985, c. C-46 (the
Code
), for a limited appointment of counsel, refused to accept
    anyone but Sheldon Goldberg to act for him.  The Legal Services Society has
    a contractual arrangement with the Province of British Columbia to provide
    counsel for those appellants who are granted assistance under s. 684 of the
Code
.  For reasons I will explain shortly, Legal Services will
    not appoint Mr. Goldberg to act for Mr. Sharif.

[2]

The question has become whether I have the authority under s. 684 of
    the
Code
to appoint a specific lawyer for Mr. Sharif, and, if
    I do, whether I should appoint Mr. Goldberg to act on Mr. Sharifs appeal.

Background

[3]

Mr. Sharif is presently serving an indeterminate sentence after being
    designated a dangerous offender in New Westminster Supreme Court by Madam
    Justice Ross on November 28, 2005.

[4]

On March 26, 2006, Mr. Sharif filed a notice of appeal against the
    finding that he is a dangerous offender.

[5]

The Registry file shows that on April 20, 2006, Mr. Sharif filed an
    application for an extension of time to appeal convictions made against him
    on April 23, 1998 by Mr. Justice Henderson for assault, unlawful confinement
    and break and enter.  As I understand it, some of those convictions comprise
    the predicate offence or offences upon which the dangerous offender designation
    was based.  At the same time as his application for an extension of time,
    Mr. Sharif filed an application for the appointment of counsel under s. 684
    of the
Code.

[6]

The application for appointment of counsel came on before Mr. Justice
    Mackenzie on May 31, 2006.  It was dealt with as an application for appointment
    of counsel on the dangerous offender appeal.  It is common ground that the
    Legal Services Society has denied Mr. Sharifs request for legal aid on the
    dangerous offender appeal on the basis that the grounds of appeal, as set
    out by Mr. Goldberg in correspondence with the Society, are not meritorious.
     The application before Mr. Justice Mackenzie was adjourned as Mr. Sharif
    was not prepared to make his argument that day.

[7]

The application for appointment of counsel returned to chambers on
    June 15, 2006, before Madam Justice Southin.  It was adjourned so that Mr.
    Sharif could determine whether a transcript of his dangerous offender proceedings
    was in the possession of the Correctional Service of Canada.

[8]

The matter came on again before me on July 13, 2006.  On that date
    Mr. Sharif had learned that the Correctional Service of Canada did have a
    copy of the dangerous offender proceedings.  Mr. Sharif had obtained access
    to some of the transcripts but had not yet had an opportunity to read them.
    He requested two months to do so.  I adjourned the matter to September 20,
    2006.

[9]

The matter came on before Madam Justice Kirkpatrick on September 20,
    2006.  At the conclusion of that hearing, Madam Justice Kirkpatrick made a
    limited appointment for counsel to assist Mr. Sharif in determining whether
    grounds existed for the bringing of an appeal against his dangerous offender
    designation.  Madam Justice Kirkpatrick said at paras. 7 and 8 of her reasons:

[7]
     Accordingly, I will grant the application for a limited appointment.  Mr.
    Sharif has indicated that he wishes to have Sheldon Goldberg appointed.  He
    apparently has had discussions with Mr. Goldberg in this regard and he has
    indicated that Mr. Goldberg is prepared to take on such an appointment.

[8]
     Lastly, I should note that Mr. Sharif has asked the Court to hold in safekeeping
    a box [of] documents that he has brought to Court with him this morning.
    Mr. Registrar has indicated that although the Court of Appeal does not have
    a secure area in which to hold such things, he says that he can find an area
    in which to keep the box of documents locked.  Mr. Sharif has agreed that
    upon the appointment of Mr. Goldberg as counsel, the box can be released to
    Mr. Goldberg without further communication between the Court and Mr. Sharif.
    I will ask the Registrar to ensure that the box is locked in as safe a place
    as can be located in the Court of Appeal Registry.

[10]

The essential part of Madam Justice Kirkpatricks entered order reads:

It
    is ordered that the application aforesaid be and the same is hereby granted
    to the extent only that counsel be appointed for the limited purpose of preparing
    and arguing the application under s. 684 itself on behalf of the appellant.

[11]

On August 10, 2007 a letter was received by the Court of Appeal Registry
    addressed to the attention of Madam Justice Kirkpatrick.  In that letter Mr.
    Sharif expressed his understanding that Mr. Goldberg had been appointed as
    counsel for him.  He said that instead the Legal Services Society had appointed
    other counsels for him.  He asked that he be brought in from prison to the
    court so that he could seek to amend Justice Kirkpatricks order to specifically
    provide that Mr. Goldberg be appointed as counsel.

[12]

The matter was not placed before Madam Justice Kirkpatrick.  It may
    be that Justice Kirkpatrick was unavailable in August.  In the meantime however,
    Legal Services, by letter dated September 25, 2007 requested that Mr. Sharifs
    case be placed before a Justice in Chambers for directions to resolve its
    impasse with Mr. Sharif.  I heard the matter on October 9 and adjourned it
    to November 14, 2007 so that Mr. Goldberg might attend.  On that date Mr.
    Goldberg appeared and spoke to the matter.  He submitted that if he had not
    been appointed to act for Mr. Sharif by Madam Justice Kirkpatrick, he should
    have been.  The matter was adjourned once again to December 11, so that counsel
    for the Attorney General could be present to articulate the position of the
    Attorney General.

Positions of the Parties

[13]

I should say at the outset that it is my view that the reasons for
    judgment of Madam Justice Kirkpatrick demonstrate that Mr. Goldberg was not
    appointed as counsel for Mr. Sharif.  As I read her reasons, Madam Justice
    Kirkpatrick did not appoint Mr. Goldberg, but proceeded on the premise that
    he would be assigned as counsel by the Legal Services Society.  In the usual
    course, as will be explained later in these reasons, Mr. Goldberg would have
    been appointed.  In this case he was not.  The order, signed by Madam Justice
    Kirkpatrick, does not appoint Mr. Goldberg as counsel.  Thus, the matter proceeded
    as an application before me to make the specific order that Mr. Goldberg be
    appointed to act for Mr. Sharif.

[14]

Counsel for the Attorney General, Ms. Martorana, conceded that I have
    the power to appoint a particular lawyer for an appellant under s. 684 of
    the
Code
.  She submitted however, that I should not exercise
    my discretion to do so.

[15]

As I mentioned earlier, it is Mr. Sharifs position that in the circumstances
    of his case I should appoint Mr. Goldberg to act for him.  Mr. Sharif says
    that Mr. Goldberg has acted for him over the last ten years.  Mr. Sharif knows
    and trusts Mr. Goldberg.  He has had some success in the courts when Mr. Goldberg
    has acted for him.  As well, Mr. Goldberg is familiar with the intricacies
    of Mr. Sharifs case.  It would take a very long time for another lawyer to
    study and understand the issues Mr. Sharifs case raises.

Discussion

[16]

Section 684 of the
Code
provides:
(1)
     A court of appeal or a judge of that court may, at any time, assign counsel
    to act on behalf of an accused who is a party to an appeal or to proceedings
    preliminary or incidental to an appeal where, in the opinion of the court
    or judge, it appears desirable in the interests of justice that the accused
    should have legal assistance and where it appears that the accused has not
    sufficient means to obtain that assistance.
(2)
     Where counsel is assigned pursuant to subsection (1) and legal aid is not
    granted to the accused pursuant to a provincial legal aid program, the fees
    and disbursements of counsel shall be paid by the Attorney General who is
    the appellant or respondent, as the case may be, in the appeal.
(3)
     Where subsection (2) applies and counsel and the Attorney General cannot
    agree on fees or disbursements of counsel, the Attorney General or the counsel
    may apply to the registrar of the court of appeal and the registrar may tax
    the disputed fees and disbursements.
[17]

As can be seen, s. 684(2) provides that where counsel is appointed
    by the court and legal aid has been refused the fees and disbursements of
    counsel appointed shall be paid by the Attorney General.
[18]

An examination of the case law indicates that while this court has,
    on occasion, appointed a particular lawyer to act for an appellant or respondent,
    the usual order is a general one, naming no particular lawyer.  There are
    practical reasons for this.  Applicants do not often come to the court with
    a specific lawyer in mind.  If they do, that lawyer may not be available in
    a timely way, and since it is the public purse that pays for the provision
    of a lawyers services, it is understood that the applicant is entitled to
    a competent lawyer, not necessarily the lawyer of his or her choice.
[19]

In these cases, where the general order is made, it falls to the Attorney
    General to find counsel for the successful applicant.  In turn the Attorney
    General looks to the Legal Services Society to provide counsel.
[20]

By virtue of s. 92(14) of the
Constitution Act
,
1867
,
    the provinces are responsible for the administration of justice in the province.
    The Ministry of the Attorney General is impressed with executing those duties
    which include, under the
Legal Services Society Act
, negotiating
    with the Society for the funding of legal aid.  Ms. Martorana provided the
    court with the affidavit of Mr. George Faddis, the Director of the Legal Access
    Policy Division of the Ministry of the Attorney General.  Mr. Faddis deposed
    that under s. 21 of the
Legal Services Society Act,
S.B.C. 2002,
    c.30, the Ministry and the Legal Services Society negotiate a Memorandum of
    Understanding every three years.  That memorandum includes the requirement
    that the Legal Services Society assist the Ministry of the Attorney General
    with respect to a number of exceptional matters which fall outside the Legal
    Services Societys legal aid program.  The list of exceptional matters for
    which the Legal Services Society receives funding includes criminal proceedings
    where the court appoints counsel under s. 684 of the
Code
.
[21]

Mr. Faddis deposed that the Legal Services Society administers the
    appointment of counsel under s. 684 in the same way it administers its legal
    aid program.
[22]

Mr. Holloway, who appeared on this application on behalf of the Legal
    Services Society, advised me that in the normal course if the applicant indicates
    to the Society that he or she prefers the appointment of a particular lawyer,
    the Society will appoint that lawyer as counsel, if that lawyer is willing
    to take on the work.
[23]

The difficulty in the case at bar is that in September 2004, after
    conducting a review, the Society made the decision to terminate Mr. Goldbergs
    vendor number for appeals.  Put simply, the Legal Services Society will not
    refer cases to Mr. Goldberg, and Mr. Goldberg is unable to bill the Society
    for work done on appeals.
[24]

Ms. Martorana provided me with a number of cases dealing with the appointment
    of counsel.  These principles emerge from the cases:
1. The court will not appoint counsel where legal aid
    has been granted. (
R. v. Johal
(1998), 127 C.C.C. (3d) 273.)
2.  It is not open to an applicant to turn down counsel
    provided by legal aid in favour of a specific appointment under s. 684.  (
R.
    v. Gagnon
, 2006 YKCA 12;
R. v. Martin
, 2007 SKCA 69).
3.
    The right to counsel, where taxpayers bear the burden of the expense, entitles
    an accused person to competent counsel, not necessarily counsel of choice.
    (
R. v. Ho
, 2003 BCCA 663).
[25]

Ms. Martorana says that it follows from these principles that Mr. Sharif
    should not be permitted to refuse the assistance of counsel provided by legal
    aid and seek the appointment of Mr. Goldberg under s. 684.
[26]

The difficulty with this argument is that Mr. Sharif has not been provided
    counsel under the provincial legal aid program.  Counsel has been appointed
    by the court under s. 684.  The Legal Services Society has not changed its
    decision to deny Mr. Sharif counsel.  Thus the provisions of s. 684(2) are
    engaged and the Legal Services Society is only involved in finding a lawyer
    for Mr. Sharif on account of the Memorandum of Understanding.  A plain reading
    of s. 684(2) is that where the court appoints counsel and legal aid denies
    funding the Attorney General must foot the bill.
[1]
That is what happened in this case.  The question is reduced to whether I
    should appoint Mr. Goldberg.
[27]

Ms. Martorana submitted that there is good reason not to appoint Mr.
    Goldberg.  The reason can be found in the findings of the hearing panel of
    the Law Society
In Law Society of BC v. Goldberg
, 2007 LSBC
    03.  The panel found that Mr. Goldberg had incompetently conducted four appeals
    taken to this Court in which the main ground of appeal was the incompetence
    of counsel.  As a result, Mr. Goldberg has been ordered to serve a 90-day
    suspension that is set to begin in April 1, 2008.
[28]

Ms. Martorana submits that this Courts comments in the reasons for
    judgment in the four cases referred to by the hearing panel of the Law Society
    are reason enough not to appoint Mr. Goldberg.  She notes that in any event
    his suspension may cause delays that would work to the prejudice of Mr. Sharif.
[29]

On the other hand, Mr. Sharif is adamant that he have the services
    of Mr. Goldberg.  He points out that Mr. Goldberg is intimately familiar with
    his files and has been his lawyer for over ten years.  Mr. Goldberg was counsel
    on the trials of the predicate offences, on the dangerous offender hearing
    and appeared for him on two appeals connected with those proceedings.
[30]

Mr. Goldbergs relationship to Mr. Sharif and his cases persuades me
    that I should appoint Mr. Goldberg as counsel on the s. 684(2) application.
    When this matter was last before me I advised counsel and Mr. Sharif that
    if I made the order appointing Mr. Goldberg, it would be to represent him
    on the appeal, and not as a limited appointment as ordered by Madam Justice
    Kirkpatrick.  I have re-considered that proposition.  I have not been directed
    to anything in the material so far which suggests that Mr. Sharif has any
    meritorious ground of appeal.  That aspect of this application should be canvassed.
[31]

In the result, I would appoint Mr. Goldberg to assist Mr. Sharif in
    developing an argument that counsel should be appointed to act for Mr. Sharif
    on the full appeal.  Since Mr. Goldberg is familiar with the dangerous offender
    proceedings, he should be able to put together submissions dealing with the
    merits of the grounds of appeal.  I would also order that this application
    be heard before the end of March 2008.  I am not seized of the application.
The Honourable
Madam Justice Ryan

[1]
I am aware of the
dicta
in
R. v. Johal
,
supra,
stating that the Attorney General
may
be required to pay.  The comments
    in my view were
obiter
as the Chief Justice was not asked to address
    that question directly.


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Lombardo
          v. Lombardo,

2008
          BCCA 21

Date: 20080118

Dockets: CA034889, CA034888, CA035365

CA034890, CA035364

Docket: CA034889

Between:

Lombardos
    Ristorante & Pizzeria Ltd.

Respondent

(
Plaintiff
)

And

Marcello
    Lombardo

Express
    Realty Ltd.

581787
    B.C. Ltd.

Appellants

(
Defendants)

-and-

Docket: CA034890

Between:

Marcello
    Lombardo

Appellant

(
Plaintiff
)

And

Patricia
    Anne Lombardo

Respondent

(
Defendant)

-and-

Docket: CA035365

Between:

Lombardos
    Ristorante & Pizzeria Ltd.

Respondent

(
Plaintiff
)

And

Marcello
    Lombardo

Express
    Realty Ltd.

581787
    B.C. Ltd.

Appellants

(
Defendants)

-and-

Docket: CA034888

Between:

Patricia
    Anne Lombardo

Respondent

(
Plaintiff
)

And

Marcello
    Lombardo

Appellant

(
Defendant)

-and-

Docket: CA035364

Between:

Patricia
    Anne Lombardo

Respondent

(
Plaintiff
)

And

Marcello
    Lombardo

Respondent

(
Plaintiff)

Before:

The
          Honourable Madam Justice Prowse

(In
          Chambers)

J.
          Grieve

V.
          Stewart

Counsel for M. Lombardo, Express Realty Ltd. and 581787
          B.C. Ltd.

F.G.
          Potts

T.
          Goepel

Counsel for P.A. Lombardo and

Lombardos Ristorante & Pizzeria Ltd.

Place
          and Date of Hearing:

Vancouver, British Columbia

January 11, 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

January 18, 2008

Reasons
    for Judgment of the Honourable Madam Justice Prowse:

Nature of Applications

[1]

Ms. Lombardo is applying for an order requiring Mr. Lombardo to post
    security for costs of the appeal, security for costs of the trial and security
    for the judgment at trial, including costs of a subsequent reconsideration
    hearing.  The total amount of security sought at the outset of the hearing
    was in the range of two million dollars.  (It is difficult to be more precise
    as to the amount since the orders have not been settled and costs have not
    been assessed.)

Background

[2]

These applications have their genesis in three actions in the Supreme
    Court which were ordered to be heard at the same time.  All three actions
    arose from the breakdown of the marriage between Mr. and Ms. Lombardo.  The
    family action included issues of child support (Ms. Lombardo had custody
    of the three children of the marriage), imputation of income to Mr. Lombardo
    and financial non-disclosure; the corporate action involved financial issues
    between companies controlled by Mr. and Ms. Lombardo, respectively; and the
    defamation action involved allegations by Mr. Lombardo that Ms. Lombardo
    had defamed him by placing posters in the area of their restaurant businesses
    stating that he was a deadbeat dad.

Decisions of the Trial Judge

[3]

After a 55 day trial that extended over 18 months, the trial judge
    issued lengthy  reasons for judgment (192 pages, excluding attachments) on
    February 28, 2007.  These reasons may be found at 2007 BCSC 284.  In those
    reasons, the trial judge granted leave to Mr. Lombardo to make further submissions
    with respect to his income and the quantum of child support for 2006 and 2007.
    At the ensuing hearing, Mr. Lombardo sought a reconsideration of many of the
    issues at trial, with particular emphasis on the determination of his income
    for the purposes of child support.  The trial judge dismissed Mr. Lombardos
    application for reconsideration and, effectively, reaffirmed his earlier decision.
    His reasons for judgment on the reconsideration hearing were issued on July
    31, 2007, and may be found at 2007 BCSC 1167.

[4]

The trial judges conclusions in the three actions, including the reconsideration
    hearing, may be summarized as follows:

(1)
    Mr. Lombardos defamation action was dismissed on the basis that he had not
    established that Ms. Lombardo had put up the posters and that, in any event,
    the defence that the statement was true, or substantially true, applied as
    Mr. Lombardo could fairly be described as a deadbeat dad.

(2)
    In the family action, Mr. Lombardo was ordered to pay child support arrears
    of $702,804, plus interest, to the end of 2005 and $178,404 from January 1,
    2006 to February 2007.  He was also ordered to pay $14,368 per month from
    March 1, 2007 until further order, based on an imputed income to Mr. Lombardo
    of $900,087.51.  As a result of the reconsideration hearing, the total amount
    of the arrears and interest as of February 28, 2007 was $980,570.18.

(3)
    In the corporate action, Mr. Lombardo was ordered to pay $290,000 to Ms. Lombardos
    company.  Mr. Lombardo and one of his companies were held jointly and severally
    liable to Ms. Lombardos company to the extent of $200,000 of that amount,
    plus interest.  The total amount owing by Mr. Lombardo, inclusive of interest,
    was approximately $370,539.55.

(4)
    Mr. Lombardo was ordered to pay special costs of the entire proceedings.

(5)
    The trial judge seized himself of any consequential applications, including
    Ms. Lombardos applications for security for child support.

[5]

The total pecuniary award against Mr. Lombardo and his companies, exclusive
    of special costs, was approximately $1,171.208.  Counsel for Ms. Lombardo
    has estimated special costs at approximately $805,000.  As earlier noted,
    those costs have not yet been assessed.

[6]

In March 2007, the trial judge heard Ms. Lombardos applications for
    security for retroactive child support.  By order dated March 16, 2007, he
    provided that two properties in which Mr. Lombardo had an interest on Commercial
    Drive in Vancouver stand as security for the full amount of retroactive child
    support and for prospective child support and that Ms. Lombardo be at liberty
    to file the order against title to those properties.  He also made an order
    precluding Mr. Lombardo from dealing with shares or securities in four named
    companies in which he held an interest absent written agreement of the parties
    or order of the court.  Ms. Lombardo subsequently registered the order against
    the Commercial Drive properties.

[7]

Mr. Lombardos counsel advised during the hearing of the applications
    for security that the combined equity in the two Commercial Drive properties
    is not less than $1.2 million dollars.

The Appeals

[8]

Mr. Lombardo issued five notices of appeal with respect to the decisions
    of the trial judge; one for each of the family, corporate and defamation actions,
    and one each for the dismissal of his applications in the reconsideration
    hearing relating to the family and corporate actions.  There is no appeal
    from the order of March 16, 2007 providing that the two Commercial Drive properties
    stand as security.  The orders in these actions have not been settled, but
    I was advised that none of the disagreements between counsel in that regard
    have any bearing on these applications for security for costs.

[9]

During the course of the hearing before me, I took the liberty of advising
    counsel that, in my view, there should be only three orders entered in these
    matters (one for each of the family, corporate and defamation actions) and
    that the results of the decision on the reconsideration hearing should be
    incorporated in those orders.  Thus, I treated the applications for security
    for appeal costs as relating to three appeals, rather than five, with a consequent
    reduction in the amount sought as security for costs of the appeals.  Counsel
    indicated that they were in agreement with this view and that they would take
    steps to settle the orders and regularize the notices of appeal accordingly.

[10]

At the time of this hearing, the Appeal Record and Transcripts had
    been filed, the Appeal Books were in the process of being prepared for filing,
    and the only step which remained was the preparation and filing of the factums.
    Assuming that Mr. Lombardo would comply with any order for security fixed
    by this Court, three dates were reserved for the hearing of this appeal, June
    16, 17 and 18, 2008.  Counsel for Mr. Lombardo also agreed that Mr. Lombardo
    would be in a position to file his factum by mid-March.

[11]

The grounds of appeal which Mr. Lombardo proposes to pursue on appeal
    are set out in the affidavit of one of Mr. Lombardos counsel as follows:

(a)
    The learned trial judge erred in failing to reasonably impute income to
    Mr. Lombardo on both the evidence that was before him at trial and the evidence
    tendered during Mr. Lombardos subsequent application including the report
    of Mr. Michael Bowie of KPMG;

(b)
    The learned trial judge was unduly influenced by his views of the behaviour
    of Mr. Lombardo which affected the way in which the learned trial judge imputed
    income and his refusal to consider evidence and documents tendered during
    Mr. Lombardos subsequent application which demonstrated that the initial
    judgment was flawed;

(c)
    The learned trial judge erred in imputing income to Mr. Lombardo at the level
    he did as a result of his [a] misapprehension of the Squirrel records system;

(d)
    The learned trial judge erred in punishing Mr. Lombardo by way of special
    costs and by unreasonably imputing income, and by refusing to reconsider the
    evidence and/or admit evidence to demonstrate that the trial reasoning was
    flawed;

(e)
    There are obvious errors relating to amortization and double counting of the
    loan payments in the judgment that were brought to the attention of the learned
    trial judge that he refused to consider;

(f)
    The lengthy delay in the first reasons, together with the learned trial judges
    refusal to hear and appropriately consider current evidence as to the circumstances
    of the children, has taken away from Mr. Lombardo any ability to adjust child
    support in accordance with his current income and to seek a variation based
    on a material change such as a change in income or one or more children ceasing
    to be a child of the marriage.

(g)
    The learned trial judge erred in law in failing to properly apply the law
    relating to child support for adult children and the law relating to incomes
    over $150,000 and erred in fact in failing [to] apply the law to the facts
    and circumstances before him including failing to take into account the monies
    earned by the adult child and her actual expenses.

(h)
    The learned trial judge erred in failing to vary, reconsider or in the alternative
    reopen the trial to adjust child support, Mr. Lombardos income including
    current income and to determine the amount due to the Plaintiff in action
    S032754, including to admit new evidence.

(i)
    The learned trial judge erred in law in failing to consider the changed circumstances
    of the parties and their children with respect to ongoing child support following
    the trial.

Applications for Security

1)
Security for
    Costs of the Appeals

[12]

The principles governing applications for security for costs of an
    appeal are set forth by Mr. Justice Lowry in
Creative Salmon Company
    Ltd. v. Staniford
, 2007 BCCA 285, at para. 9, as follows:

The jurisdiction to order security for costs of an appeal
    is found in s. 24 of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77.
    The appellant against which such an order is sought bears the onus of showing
    why security should not be required:
Kedia v. Shandro Dixon Edgson
,
    2007 BCCA 57 at para. 4 (C.A. Chambers), Smith J.A.  Generally, the considerations
    are the appellants ability to post security and the likelihood of costs awarded
    being recovered from it, as well as the merits and the timeliness of the application:
    [citations omitted].

[13]

Mr. Lombardo does not oppose an order that he post security for costs
    of the appeals.  He suggests an amount of $31,000, while counsel for Ms. Lombardo
    suggests $45,000.  After adjusting Ms. Lombardos proposed figures to reflect
    my view that there will be only three appeals and a 2-3 day hearing, and adjusting
    further for overlap in some of the amounts claimed, I would order that Mr.
    Lombardo post $40,000 as security for costs of the appeals.  (I suggest that
    there be only one factum to deal with all three appeals, with each party having
    liberty to apply to file a factum in excess of 30 pages.  At this point, I
    see no need for each factum to exceed 45 pages.)

2)
Security for
    the Judgment and for Trial Costs

[14]

The principles governing applications for security for a judgment and
    for costs awarded at trial are set out in
Creative Salmon
,
supra
,
    at paras. 10-12, as follows:

The jurisdiction to order security for a judgment and
    for the costs awarded by the trial court, as recognized in
Cadinha v. Chemar
    Corporation Inc.
(1995), 17 B.C.L.R. [(3d)] 347 (C.A. Chambers), Lambert
    J.A., and
Paz v. Hardouin (c.o.b. Fiesta Travel and Fiesta Wayfarer)
(1995), 10 B.C.L.R. (3d) 232 (C.A. Chambers), Lambert J.A., respectively,
    can be found under s. 10 of the
Act
:

10(2) In
    an appeal or other matter before the court, a justice may do one or more of
    the following:

***

(b) make
    an interim order to prevent prejudice to any person; ...

From the several authorities of this Court cited, which
    include [citations omitted], the principles that govern the exercise of discretion
    in ordering that security be posted under s. 10(2)(b) can be said to be as
    recently stated in
Kedia v. Shandro Dixon Edgson, supra,
at para.
    14, quoting from
Aikenhead v. Jenkins
, 2002 BCCA 234, 166 B.C.A.C.
    293 at para. 30 (Chambers) Ryan J.A.:

1.  The onus is on the applicant to show that it is in
    the interest of justice to order posting for security of a trial judgment
    and/or of trial costs.

2.  The applicant must show prejudice if the order is
    not made.

3.  In determining the interests of justice the chambers
    judge should consider the merits of the appeal and the effect of such an order
    on the ability of the appellant to continue the appeal.

An appellant which is without the financial ability to
    post security will not for that reason alone be precluded from pursuing a
    meritorious appeal.  But adverse financial circumstances will generally not
    defeat an application for security where an appeal is virtually without any
    merit.  A successful plaintiff should not be required to respond to an unmeritorious
    appeal when there is  no real prospect of recovery:
Richland Construction
    Inc. v. Manningwa Developments Inc.
(1996), 71 B.C.A.C. 311 at paras.
    12-13 (C.A. Chambers), Finch J.A. (as he then was).

[15]

The amount sought as security for the judgment is approximately $1,426,747.73.
    In addition, counsel for Ms. Lombardo submits that the estimate of special
    costs of the trial is $805,000.

[16]

In determining whether it is in the interests of justice to order posting
    security for the trial judgment and/or trial costs, and whether Ms. Lombardo
    would be prejudiced if an order is not made, some of the factors I have considered
    are as follows:

(1)
    Mr. Lombardo has not applied for a stay of the trial judgment and Ms. Lombardo
    has taken no steps in execution of her judgment.  It is open to her to take
    execution proceedings should she choose to do so.

(2)
    Ms. Lombardo already has an order for partial security for the judgment registered
    against the Commercial Drive properties in which Mr. Lombardo has an interest
    by virtue of the trial judges order of March 16, 2007.

(3)
    There is $100,000 held in the Supreme Court as security for costs of the trial
    and counsel for Mr. Lombardo has stated that Mr. Lombardo has consented to
    an unconditional payment out of that amount to Ms. Lombardo.

(4)
    Mr. Lombardo has agreed to take a mortgage on one of his Commercial Drive
    properties in the amount of $300,000 and to use the proceeds in partial payment
    of the trial judgment, subject to Ms. Lombardo agreeing to lift her security
    on that property to the extent necessary to permit him to do so.   Counsel
    are satisfied they can make arrangements for that to occur within the next
    couple of weeks.

(5)
    Ms. Lombardo has already realized approximately $90,000 on the trial judgment
    from monies garnished into court during trial.

(6)
    Mr. Lombardo is current in making child support payments since the trial in
    the amount of $14,368 per month, and has paid $158,048 in that regard.

(7)
    Ms. Lombardo has not sought to have her special costs at trial assessed.
    Her counsel advises she has chosen not to do so to avoid having to waive confidentiality
    over her file pending the determination of these appeals.

(8)
    Mr. Lombardo continues to operate a restaurant out of one of the Commercial
    Drive properties where he is earning a good living.  During the reconsideration
    hearing, he admitted to income in 2006 of approximately $470,000 (as compared
    with the income of almost $900,000 imputed to him by the trial judge).

(9)
    There is no evidence that Mr. Lombardo owns other properties.

(10)
    The appeals can be heard in mid-June.

[17]

Another relevant factor on an application for security for the trial
    judgment and for costs of the trial is the merits of the appeals.  Mr. Lombardo
    faces significant hurdles in that regard.  He has substantial findings of
    fact against him in all three appeals and, more importantly, he is the subject
    of the most negative comments concerning credibility that I have ever seen
    in a judgment.  An example of those comments can be found at paras. 29-30
    of the trial judges reasons on the reconsideration hearing:

...
    It must be clearly borne in mind that Mr. Lombardo was no mild or occasional
    prevaricator.  He was not someone who occasionally lied out of fear or desperation.
    His entire approach to the case was an assault upon the trial process itself.
    Its fundamental premises, that witnesses who are sworn to tell the truth will
    do so; that documents put before the court are what they purport to be; and
    that orders intended to preserve evidence will be obeyed, among others, were
    assiduously undermined by Mr. Lombardo.  He is in a position where he has
    so often and so brazenly lied that
nothing
he says can be taken at
    face value by this court.

Mr. Lombardo now seeks to reopen the case he attempted
    to frustrate because he is unhappy with the outcome.  His new solicitors have
    repeatedly insinuated that part of what has happened is that somehow the court
    has taken such a dim view of Mr. Lombardos conduct that it has in various
    ways lost sight of its responsibilities, and is punishing Mr. Lombardo.
    Although this was a sustained theme of the submissions, I will deal with it
    once, and once only.  It is a serious misreading of my reasons to equate attempts
    to
describe
manifestly outrageous conduct as expressions of judicial
    outrage.  My task, as I made clear in my reasons, was to attempt to do justice
    to both parties despite behaviour, which ranged, on Mr. Lombardos part, from
    lack of assistance, to active resistance.  [Emphasis in original.]

[18]

Counsel for Mr. Lombardo concedes that the adverse findings of fact
    and credibility present formidable obstacles to a successful appeal or appeals.
    He submits, however, that even in the face of these findings, he has a basis
    for establishing that the trial judge erred in several respects, including
    the manner in which he imputed income to Mr. Lombardo and in his application
    of the child support guidelines.

[19]

Given the length of this trial and the number of issues raised, it
    is not possible (or useful) to comment to any significant extent on the merits
    except to say that Mr. Lombardos challenges to the trial judges findings
    in the defamation action and the order with respect to special costs appear
    weak, at best, but that he appears to have tenable arguments worthy of hearing
    with respect to the issue of his income and the application of the child support
    guidelines.  In other words, I do not agree with counsel for Ms. Lombardo
    that Mr. Lombardos appeals should be classified as hopeless.

[20]

After taking into account all of these factors, and the submissions
    of counsel, I am satisfied that it is appropriate to make a further order
    for security for the judgment and for trial costs in the amount of $260,000.
    Thus, the total amount of security to be posted, inclusive of security for
    costs of the appeal, is $300,000.  (This amount is in addition to the payments
    totalling $400,000 to be made to Ms. Lombardo as set forth at paras. 16(3)
    and (4) of these reasons.)  In making this order, I contemplate that Ms. Lombardo
    may be required to lift her security on one of the Commercial Drive properties
    in order to permit Mr. Lombardo to use the equity in the property to secure
    part of this order.  I appreciate that the effect of allowing him to do so
    is, to some extent, to allow Mr. Lombardo to substitute one form of security
    for another, but given the indications that execution on the judgment will
    prove difficult, expensive and time-consuming, I am satisfied that such an
    order is appropriate.

Conclusion

[21]

I would order Mr. Lombardo to post security for costs of the appeals
    in the amount of $40,000 and security for the trial judgment and costs of
    the trial in the amount of $260,000, for a total of $300,000.  This order
    contemplates that Ms. Lombardo will cooperate in lifting her security on one
    of the Commercial Drive properties for the sole purpose of enabling Mr. Lombardo
    to use no more than $200,000 of the equity therein (in addition to the $300,000
    he has already agreed to pay) to enable him to post security pursuant to this
    order.  I leave the details of how that is to be accomplished to counsel.
    Mr. Lombardo will have to raise the other $100,000 required as security through
    other means at his disposal.

[22]

I would also order that Mr. Lombardo post security on or before February
    15, 2008 and that his appeals be stayed until such time as security is posted.
    Since his properties are tied up in the meantime, and since he is paying child
    support based on an imputed income which he suggests is almost twice as much
    as his actual income, he has an incentive both to post security and to get
    on with his appeals.

[23]

Assuming Mr. Lombardo posts the security in a timely fashion, counsel
    should agree on a schedule for filing factums and any other materials necessary
    to ensure that the appeals can be heard on the dates reserved.  Counsel may
    request a pre-hearing conference if they require assistance in that regard.

The Honourable Madam Justice Prowse


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Carry,

2008
          BCCA 37

Date: 20080118

Docket: CA035068

Between:

Regina

Respondent

And

Daryl Daniel Carry

Appellant

Before:

The
          Honourable Mr. Justice Hall

The
          Honourable Mr. Justice Lowry

The
          Honourable Mr. Justice Frankel

Oral Reasons for Judgment

M.F.
          Allen

Counsel for the Appellant

K.
          Madsen

Counsel for the Respondent (Crown)

Place
          and Date:

Vancouver, British Columbia

18 January, 2008

[1]

LOWRY J.A.:
In December 2006, for various offences committed
    between July and November 2005, most of which related to the operation of
    a motor vehicle, the applicant was sentenced to be imprisoned for five years
    and prohibited from driving for 10 years.  He seeks to have his sentence
    reduced to between two and three years on the sole ground that it is excessive
    and unfit.

[2]

The applicant is now 38 years of age.
    He has suffered from drug addiction.  His criminal record begins in 1987.
    It includes a litany of property offences throughout, for which the applicant
    was sentenced to periods of incarceration.  It also includes convictions
    for driving offences, the most serious of which is a conviction for criminal
    negligence causing the death of two people in 1992, for which he was sentenced
    to five years in prison, and the dangerous operation of a motor vehicle in
    1996, for which he was sentenced to six months in prison.  The applicant
    was in both instances also convicted of driving while disqualified, as he
    was in one other instance.

[3]

On the first of November 2005, the applicant
    was arrested after fleeing from police in a stolen vehicle at high speed on
    city streets while under the influence of drugs.  He collided with another
    vehicle, badly injuring its occupant.  In December 2006, he pleaded guilty
    to criminal negligence causing bodily harm, fleeing from police, driving while
    disqualified, and theft under $5,000 (the car he was driving).  At the
    same time, he pleaded guilty to five counts of driving while disqualified
    between July and November 2005 and one count of possession of stolen property
    under $5,000 that occurred in that period.  He was sentenced to three
    years on the convictions for criminal negligence and fleeing from police,
    and one year on each of the eight other convictions.  He had been incarcerated
    for a year awaiting sentence, for which he was credited on the customary two-for-one
    basis.  All of the sentences are to be served concurrently, save for
    the three year sentence for criminal negligence and the sentence for driving
    while disqualified when that sentence was committed which are to be served
    consecutively.  In the result, a global sentence of five years was imposed,
    which is an effective sentence of seven years.

[4]

In passing sentence, the judge noted
    the maximum sentences for which the
Criminal Code
provides for
    two of the offences are 10 and 14 years.  He saw the nature of the applicants
    extensive criminal record, the circumstances of the injury caused by the applicant,
    the seriousness with which the community regards the kind of conduct in which
    the applicant engaged, and the lack of any excuse for the applicants behaviour
    as the aggravating factors.  He viewed the applicants guilty pleas and
    the measure of family support the applicant has as mitigating factors.
    The judge then said, in reasons for sentence (14 December 2006) Nanaimo Registry
    60275-1, 60479-1, 60792-2-C, 60928-1, 60929-1, 60977-1, 60978-1 (B.C. Prov.
    Ct.):

[11]
    In passing sentence, I consider not only deterrence to you, but to others
    who might be inclined to act as you did.  I also consider protection
    of society, as well as your rehabilitation.  But in light of what I see
    as a horrendous driving record, I place particular emphasis on protection
    of the public and denunciation, and with respect to protection of the public
    it is my view that the past driving prohibitions have been completely ineffective
    in preventing you from operating a motor vehicle.  A lengthy period of
    incarceration, unfortunately, is the only way to keep you from continuing
    to commit such offences and to protect the public.

[5]

The applicant now cites decisions of
    this Court where sentences of less than seven years have been imposed in what
    are said to be comparable circumstances of both offence and offender:
R.
    v. Sweeney
(1992), 11 C.R. (4
th
) 1, 33 M.V.R. (2d) 33 (B.C.C.A.);
R. v. Haines
, 2001 BCCA 489, 158 B.C.A.C. 26;
R. v. Jackson
(1982), 14 M.V.R. 311 (B.C.C.A.); and specifically
R. v. Vandervalk
,
    2006 BCCA 431, 231 B.C.A.C. 63.  But there are distinguishing features
    in each and, more particularly, I do not consider what was said in those cases
    renders the global sentence of five years in prison imposed on the applicant
    excessive or unfit.

[6]

Here the applicant was being sentenced
    for ten offences committed between July and November 2005.  In addition
    to the three-year sentences imposed for criminal negligence and fleeing from
    the police, he was sentenced to one year for each of five convictions for
    driving while disqualified as well as one year each for convictions of theft
    and possession of stolen property.  Consecutive sentences can be justified
    where an accused is sentenced for offences that are committed separately but,
    having regard for the totality of the sentences here, the judge exercised
    his discretion in ordering all but two of the sentences he imposed be served
    concurrently.

[7]

Further, the applicant has already been
    sentenced to a term of imprisonment of five years on a conviction for criminal
    negligence causing death and it is apparent neither that sentence nor any
    of the sentences imposed upon him have served to cause him to take responsibility
    for his conduct and put an end to his criminal behaviour.

[8]

The applicant has persisted in criminal
    conduct that represents a serious danger to public safety.  He has, in
    particular, repeatedly driven when he has been disqualified from so doing
    and he is now convicted of a second serious crime caused by his criminal negligence
    for which he bears a high degree of moral blameworthiness.  The applicant
    stands convicted nine times of driving while disqualified and accordingly
    has shown no willingness to abide by the courts orders.  As the judge
    said, the only way to insure he will not continue to endanger the public as
    he has, is to incarcerate him for an extended period of time.  In my
    view, this, coupled with meeting the sentencing objectives of denunciation
    and deterrence, justifies the sentence imposed.  I see little reason
    to consider whatever prospect of rehabilitation there may be should serve
    to offset the grave concern for protecting the public that has to be the dominant
    factor in sentencing the applicant.

[9]

It follows I do not consider the judge
    erred in imposing the sentence he did and, while I would grant the applicant
    leave to appeal, I would dismiss the appeal.

[10]

HALL, J.A.
:

I agree.

[11]

FRANKEL, J.A.
: I agree.

[12]

HALL, J.A.
: The extension of time for appeal is allowed.
    Leave to appeal is granted and the appeal is dismissed.

The Honourable
    Mr. Justice Lowry

CORRECTION
     6 February 2008

In
    Para. [3], the third sentence beginning In December 2006, he pleaded guilty
    to dangerous driving causing bodily injury should be In December 2006,
    he pleaded guilty to criminal negligence causing bodily harm