COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Romanchych,

2018 BCCA 26

Date: 20180125

Docket: CA44084

Between:

Regina

And

Colby
Dean Romanchych

Before:

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Savage

On appeal from:  An
order of the Provincial Court of British Columbia, dated September 9, 2016 (
R.
v. Romanchych
, Abbotsford Docket 82309).

Counsel for the Appellant:

R.P. Thirkell

K. Beatch

Counsel for the Respondent:

T. Shaw

Place and Date of Hearing:

Vancouver, British
  Columbia

October 5, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 25, 2018

Written Reasons by:

The Honourable Madam Justice Bennett

Concurred in by:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Savage

Summary:

The appellant was sentenced
to 29.5 months imprisonment for firearms and credit card-related offences. He
received credit for 10.5 months pre-sentence custody on a 1:1 basis through
the operation of s. 719(3.1) of the Criminal Code, due to breach of bail
terms leading to the cancellation of his bail. He appeals that sentence on the
basis of a s. 7 Charter overbreadth challenge to s. 719(3.1). Held:
Appeal allowed. The second part of s. 719(3.1) is overbroad, and thereby in
violation of s. 7 of the Charter. Accused persons who are alleged to have
committed technical bail breaches, or who breach bail conditions with which
they have no real ability to comply, can be statutorily barred from enhanced
credit. Accordingly, there is no rational connection between the laws purpose
 enhancing public safety and security by increasing violent and chronic
offenders access to rehabilitation programs  and some of its impacts. The
overbreadth is not justified by s. 1 of the Charter, so the second part of
s. 719(3.1) is declared of no force or effect under s. 52 of the
Constitution Act.

Reasons
for Judgment of the Honourable Madam Justice Bennett:

[1]

On March 3, 2015, Colby Romanchych was found with loaded guns and stolen
credit cards. He was eventually convicted and received a total sentence of 29.5
months after receiving credit for 10.5 months pre-sentence custody on a 1:1
basis. He appeals that sentence on the issue of whether he is entitled to 1.5
days credit for pre-sentence custody based on a s. 7
Charter
challenge
to s. 719(3.1) of the
Criminal Code
, R.S.C. 1985, c. C-46.

Background

[2]

Mr. Romanchych was convicted on four counts following a trial in
Provincial Court:

i)      Count 2  Possession of a loaded restricted
firearm contrary to s. 95(1);

ii)     Count 3  Occupy a vehicle in which there is a
firearm contrary to s. 94(1);

iii)    Count 4  Possession of a stolen credit card
contrary to s. 342(1); and

iv)    Count 5  Use of anothers identity
documents without lawful excuse contrary to s. 56.1(1).

[3]

The sentencing judge
summarized her findings of fact in her reasons for sentence as follows:

[3]        Referring
briefly to the circumstances of the offence, Mr. Romanchych was under
surveillance as a result of the belief by police that he was driving a stolen
pick-up truck. He was arrested at a gas station in Langley a short time later.
At the time of his arrest, several items were found in the pick-up truck
including a loaded handgun, which is the weapon referred to in Counts 2 and 3
of the Information. A number of credit cards, debit cards and identity
documents were also found in the pickup, including those which are referred to
in Counts 4 and 5 of the Information.

[4]        After
ascertaining that the owners of some of the credit cards alleged that their
cards had been used fraudulently, the police ascertained when and where the
cards had been used for purchases, or attempted purchases, by someone not
authorized to use those cards. Mr. Romanchych was caught on video
recordings at several different gas stations using credit cards and debit cards
that did not belong to him.

Facts relating to Mr. Romanchychs
pre-sentence release status

[4]

Mr. Romanchych
was arrested on March 3, 2015 for the offences before the Court. He applied for
and was granted bail that day but was unable to perfect that bail until April
30, 2015.

[5]

In May 2015, Mr. Romanchych
was twice arrested for further offences:

i)

on May 11, 2015, he
was arrested for credit-card related offences committed in September 2014 (before
the offences at issue in these proceedings) and released on bail that day; and

ii)

on May 22, 2015, he
was arrested for offences committed that day involving flight from the police
using a motor vehicle. He was not released from custody pending a cancellation
(or revocation) hearing.

[6]

On May 29, 2015, Mr. Romanchychs
bail was cancelled pursuant to s. 524 of the
Criminal Code
and he was
ordered detained in custody for failing to show cause why he should be released.

[7]

In September 2015, Mr. Romanchych
pleaded guilty to four offences relating to the matters for which he was
arrested on May 11 and May 22, 2015. He served a total sentence of 84 days on
those four counts. He did not seek to be released pending his trial on the
offences before the court once he had served the sentence on those counts.

[8]

At trial, and on
appeal, the Crown and defence agree that the total pre-sentence time in custody
was 10.5 months.

[9]

At the sentencing
hearing, Mr. Romanchych asked the sentencing judge to decline to follow
the decision in
R. v. Chambers
, 2014 YKCA 13, which found, among other
things, that the second part of s. 719(3.1) is not overbroad. The
sentencing judge concluded that she was virtually bound to follow the
Chambers
decision because two of the justices who decided
Chambers
are also
justices of the Court of Appeal for British Columbia. The sentencing judge also
noted an unrelated decision where this Court referred to a Yukon case as the leading
case in British Columbia:
R. v. Chudley
, 2015 BCCA 391 at para. 9.

[10]

The Crown sought a
five-justice division of this Court to reconsider the decision of the Yukon
Court of Appeal in
Chambers
.
The request
was refused. All justices of the Court of Appeal for
British Columbia are also justices of the Court of Appeal of Yukon. The Chief
Justice of British Columbia is also the Chief Justice of the Court of Appeal of
Yukon. However, Northern judges (Yukon Territory, Northwest Territories and
Nunavut) are also members of the Court of Appeal of Yukon. It is a distinct
court in a different jurisdiction. Its decisions are not binding on any level
of court in British Columbia. Like all appellate courts, the Court of Appeal of
Yukon has persuasive authority on British Columbias courts. See also
R.
v. Joe
, 2017 YKCA 13 at para. 72.

[11]

From time to time, slips have been made that suggests the courts
are the same,
Chudley
being one of those slips. They are not. Thus, neither
the sentencing
judge nor this
Court is bound, in the sense of
stare decisis
, to follow the decision
in
Chambers
.

Position of the Parties

[12]

The positions of the
parties are straightforward: Mr. Romanchych says that the reasoning in
R.
v. Safarzadeh-Markhali
,
2016
SCC 14
, which struck down the
first part of s. 719 (3.1) and was decided after
Chambers
,

applies
equally to the second part of the provision, which limited his pre-sentence
custody credit. The Crown says it does not, and that
Chambers
was
correctly decided.

Discussion

Legislative framework

719

(3)
In determining the sentence to be imposed
on a person convicted of an offence, a court may take into account any time
spent in custody by the person as a result of the offence but the court shall
limit any credit for that time to a maximum of one day for each day spent in
custody.

(3.1)
Despite
subsection (3), if the circumstances justify it, the maximum is one and
one-half days for each day spent in custody unless the reason for detaining the
person in custody was stated in the record under subsection 515(9.1)
or the
person was detained in custody under subsection 524(4) or (8).

[Emphasis added.]

[13]

The
Criminal
Code
section at issue is the underlined portion of s. 719(3.1), above.
That part of the provision restricts a sentencing judges ability to grant
1:1.5 credit where a person was detained in custody under subsection 524(4) or
(8). The limitation found in the first part of s. 719(3.1), referring to
s. 515(9.1), was struck down as overbroad and not justified under s. 1
of the
Charter
in
Safarzadeh-Markhali
. The other part of the
legislative scheme at issue is the mechanism by which an accused person can be
detained in custody under s. 524(4) of the
Code
:

524

(1)
Where a justice is satisfied that there
are reasonable grounds to believe that an accused

(a)
has contravened or is
about to contravene any summons, appearance notice, promise to appear,
undertaking or recognizance that was issued or given to him or entered into by
him, or

(b)
has committed an
indictable offence after any summons, appearance notice, promise to appear,
undertaking or recognizance was issued or given to him or entered into by him,

he may issue a warrant for the arrest of
the accused.

(3)
Where
an accused who has been arrested with a warrant issued under subsection (1), or
who has been arrested under subsection (2), is taken before a justice, the
justice shall

(a)
where the accused was
released from custody pursuant to an order made under subsection 522(3) by a
judge of the superior court of criminal jurisdiction of any province, order
that the accused be taken before a judge of that court; or

(4)
Where
an accused described in paragraph (3)(a) is taken before a judge and the judge
finds

(a)
that the
accused has contravened or had been about to contravene his summons, appearance
notice, promise to appear, undertaking or recognizance, or

(b)
that there are
reasonable grounds to believe that the accused has committed an indictable
offence after any summons, appearance notice,
promise to appear, undertaking or
recognizance was issued or given to him or entered into by him,

he shall
cancel the summons, appearance notice, promise to appear, undertaking or
recognizance and order that the accused be detained in custody unless the accused,
having been given a reasonable opportunity to do so, shows cause why his
detention in custody is not justified within the meaning of subsection 515(10).

(6)
Any
order made under subsection (4) or (5) is not subject to review, except as
provided in section 680.

(8)
Where
an accused described in subsection (3), other than an accused to whom paragraph
(a) of that subsection applies, is taken before the justice and the justice
finds

(a)
that the
accused has contravened or had been about to contravene his summons, appearance
notice, promise to appear, undertaking or recognizance, or

(b)
that
there are reasonable grounds to
believe that the accused has committed an indictable offence after any summons,
appearance notice, promise to appear, undertaking or recognizance was issued or
given to him or entered into by him,

he shall cancel the summons, appearance
notice, promise to appear, undertaking or recognizance and order that the
accused be detained in custody unless the accused, having been given a
reasonable opportunity to do so, shows cause why his detention in custody is
not justified within the meaning of subsection 515(10).

[14]

Section
515(10) of the
Code
is the provision governing when detention is
justified.

[15]

The
reviewability of a decision under s. 524(4) of the
Code
is
addressed in s. 680(1):

680

(1)
A
decision made by a judge under section 522 or subsection 524(4) or (5) or a
decision made by a judge of the court of appeal under section 261 or 679 may,
on the direction of the chief justice or acting chief justice of the court of
appeal, be reviewed by that court and that court may, if it does not confirm
the decision,

(a)
vary the decision; or

(b)
substitute such other decision as, in its opinion,
should have been made.

[16]

The relevant provisions of the
Charter
are
ss. 1 and 7:

1.
The
Canadian Charter of Rights and
Freedoms
guarantees the rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and
democratic society.

7.
Everyone has the right to life,
liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice.

The evolution of credit for pre-sentence
custody

[17]

Historically,
offenders were given credit for pre-sentence custody, generally on a 2:1 basis.
The doubling of time was to compensate those detained for the lack of
programming in remand centres, for the fact that that period of detention was
not subject to reduction for remission, either statutory or earned, and a host
of other reasons:
R. v.

Summers
, 2014 SCC 26 at paras. 3, 31.

[18]

Over time, and as
conditions in certain remand centres became public, credit for pre-sentence
custody began to increase. Some judges were granting 3:1 and even 4:1 enhanced credit
depending on the evidence. In
R.
v. Wallace
, [2005]
O.J. No. 1759 (S.C.), the following cases are cited as examples of this
development at para. 38:

[38]      In
R. v. Poirer
,
[2001] O.J. No. 2320 (O.C.J.)
,
the Ontario Court of Justice gave the accused three months credit for one month
pre-sentence custody spent in the Don Jail, emphasizing the deplorable
conditions of the jail. Ormston J. noted that there were three or four people
in cells that were designed for two, inmates were forced to sleep on the floor,
there was no statutory remission of the offenders sentence, no counselling was
available, and there were no education facilities. Justice Bentley held in
R.
v. Dorian
,
[2003] O.J. No. 1415
, that
frequent lock-downs, triple bunking and the cancellation of many programs at
the Don Jail justified an enhanced credit of 3:1 as the circumstances of the
accuseds pre-sentence incarceration were particularly troubling. In truly
exceptional circumstances, such as in
R. v. Critton
,
[2002] O.J. No. 2594
, the Court at paras. 104-106
granted 4:1 credit for an accused due to his loss of privileges and the myriad
of indignities he was forced to endure at the Maplehurst Detention Centre
during a civil service strike.

[19]

In response, the
government introduced the
Truth in Sentencing

Act
, S.C. 2009,
c. 29 (
TISA
), which capped credit at 1:1, except when the
circumstances justify 1:1.5 credit, and completely prohibited enhanced credit
in certain circumstances, including those set out above in s. 719(3.1),
which are at issue in this appeal.

[20]

In
Summers
,
the Supreme Court of Canada interpreted the phrase when the circumstances
justify it in s. 719(3.1). The trial judge in
Summers
granted
1:1.5 enhanced credit to compensate the offender for the loss of eligibility
for early release and parole, finding that was a circumstance that justified
the extra credit.

[21]

Justice
Karakatsanis, for the Supreme Court, confirmed that the loss of access to
parole and early release constitutes a circumstance justifying enhanced 1:1.5
credit:
Summers
at paras. 34, 68. As part of her analysis, Karakatsanis
J. concluded that offenders who are not granted bail and do not receive
enhanced credit will serve longer terms in prison than the same offender who is
released on bail. Enhanced credit addresses that disparity.

Section 7 and Overbreadth

[22]

The only basis for the
challenge to the provision in this appeal is overbreadth as a violation of the
right to life, liberty and security of the person enshrined in s. 7 of the
Charter of Rights and Freedoms
. The Supreme Court closely examined the
principles underlying a constitutional challenge based on overbreadth in
Canada
(Attorney General) v. Bedford
, 2013
SCC 72, which involved
challenges to
Criminal Code
provisions governing activities relating to
prostitution.

[23]

An overly broad law
goes too far and interferes with some conduct that bears no connection to its
objective:
Bedford
at paras. 101, 119. The Court described the
concept of overbreadth at paras. 112-113:

[112]    Overbreadth
deals with a law that is so broad in scope that it includes
some
conduct that bears
no relation to its purpose. In this sense, the law is arbitrary
in part
. At its core,
overbreadth addresses the situation where there is no rational connection
between the purposes of the law and
some
, but not all, of its impacts. For instance, the law
at issue in
Demers
required unfit accused to attend repeated review board hearings. The law was
only disconnected from its purpose insofar as it applied to permanently unfit accused;
for temporarily unfit accused, the effects were related to the purpose.

[113]
Overbreadth allows courts to recognize
that the law is rational in some cases, but that it overreaches in its effect
in others. Despite this recognition of the scope of the law as a whole, the
focus remains on the individual and whether the effect on the individual is
rationally connected to the laws purpose. For example, where a law is drawn
broadly and targets some conduct that bears no relation to its purpose in order
to make enforcement more practical, there is still no connection between the
purpose of the law and its effect on the
specific individual
. Enforcement practicality
may be a justification for an overbroad law, to be analyzed under s. 1 of
the
Charter
.

[24]

In
R. v. Moriarity
,
2015 SCC 55, Justice Cromwell, for the Court, described overbreadth at para. 2:

[2]
In my view, the appellants contention fails because these
provisions are not overbroad. A law is overbroad when there is no rational
connection between the purpose of the law and some of its effects. The
touchstones of the analysis are, therefore, the objective of the law and whether
its effects are connected to that objective. Properly understood, the
challenged provisions have a broader purpose than that identified by the
appellants and they have failed to show that the laws effects are not
rationally connected to that broader purpose. Their claim of overbreadth fails
as a result.

[25]

To succeed in a
s. 7 challenge on this basis, the challenger must show that their liberty
rights are engaged and that the impugned provisions puts their liberty at risk
in a way that is not connected to its purpose (
Moriarity
para. 16).

[26]

The decision in
Moriarity
is particularly helpful as it articulates that, at the outset of the
analysis, a court must identify both the impugned laws purpose and its effects
because the issue of overbreadth depends on a disconnect between the two:
Moriarity
at para. 24. The decision also assists in how to approach the search
for the laws purpose or objective, at paras. 26-27:

[26]      The
objective of the challenged provision may be more difficult to identify and
articulate. The objective is identified by an analysis of the provision in its
full context. An appropriate statement of the objective is critical to a proper
overbreadth analysis. In general, the articulation of the objective should
focus on the ends of the legislation rather than on its means, be at an
appropriate level of generality and capture the main thrust of the law in
precise and succinct terms.

[27]
The overbreadth analysis turns on the
relationship between the objective of the law and the effects flowing from the
means which the law adopts to achieve it -- in other words the relationship
between the laws purpose and what it actually does. It follows that the
statement of the challenged provisions purpose should, to the extent possible,
be kept separate from the means adopted to achieve it. While of course the
means adopted may throw light on the objective, the focus must remain on the
objective: see, in a roughly analogous context,
Ward v. Canada (Attorney General)
, 2002 SCC
17, [2002] 1 S.C.R. 569, at para. 25. If undue weight is given to the
means in articulating the legislative objective in an overbreadth analysis,
there will be nothing left to consider at the rational connection stage of the
analysis
.

[27]

As noted at para. 26,
the statement of purpose must be framed at the appropriate level of generality.
According to Cromwell J., the appropriate level lies between the statement of
an animating social value  which is too general  and a narrow articulation
which can include a virtual repetition of the challenged provision, divorced
from its context  which risks being too specific. The statement need also be precise
and succinct:
Moriarity
at paras. 28-29.

[28]

Justice Cromwell also
outlines the appropriate sources for determining an impugned provisions legislative
purpose at para. 31:

[31]      Courts have used many sources to determine legislative
purpose: see R. Sullivan,
Sullivan on the Construction of Statutes
(6th ed. 2014), at ss.9.41 to 9.66. In some cases, legislation contains
explicit statements of purpose, but there is no such statement here. Courts
also look at the text, context and scheme of the legislation in order to infer
its purpose. For instance, in
Heywood
, the Court
concluded that the purpose of a vagrancy law that prohibited convicted
offenders from loitering in public parks, which was to protect children from
becoming victims of sexual offences, was apparent from the places to which the
prohibition of loitering applies: p. 786; see also
R.
v. Garofoli
, [1990] 2 S.C.R. 1421, at pp. 1470-71. In addition,
courts may also resort to extrinsic evidence such as legislative history and
evolution. But as Prof. Sullivan wisely observes, legislative statements of
purpose may be vague and incomplete and inferences of legislative purpose may
be subjective and prone to error: s.9.90.

[29]

Once legislative
purpose is identified, the next question is whether the law is inherently bad
because there is
no connection,
in whole or in part, between its effects
and its purpose:
Moriarity
at para. 49, citing
Bedford
at para. 119
(emphasis in
Bedford
).

[30]

I will next turn to
the decision in
Safarzadeh-Markhali
, where the Court struck down part of
s. 719(3.1) on the basis of overbreadth.

[31]

The Court quickly
concluded that s. 719(3.1) limits liberty. The effect of the provision is
to require offenders to serve more time in prison than they would have
otherwise. The only issue was whether the provision nonetheless complied with
the principles of fundamental justice:
Safarzadeh-Markhali
at para. 20.

[32]

The Court considered
the purpose of the provision, making the point that the impugned laws purpose
is distinct from the means used to achieve that purpose. The means may be
helpful in determining the purpose or objective, but they are to be treated separately:
Safarzadeh-Markhali
at para. 26.

[33]

The question was framed by McLachlin C.J.C., as formulating a
statement of purpose for s. 719(3.1)s denial of enhanced credit to
persons denied bail primarily because of a prior conviction. The Court reviewed
the
TISA
, and concluded that it contained
no
explicit statements of specific purpose for the legislation as a whole, or for
s. 719(3.1) in particular:
Safarzadeh-Markhali
at para. 32.

[34]

The Court did not
find much assistance in determining purpose from the context and scheme of the
legislation. It then looked at the extrinsic evidence, and the statements made
by the Minister of Justice, while acknowledging that such statements may be
rhetorical and imprecise:

[37]      In
presenting the
Truth in Sentencing Act
to Parliament and the House of
Commons Standing Committee on Justice and Human Rights, the Minister of Justice
explained that denial of enhanced credit was aimed at promoting public safety
and public confidence in the justice system, by imposing longer sentences on
violent and repeat offenders and increasing their exposure to rehabilitative
programming. He said:

The
practice of awarding generous credit erodes
public confidence in the
integrity of the justice system
. It also undermines the commitment of the
government to
enhance the safety and security of Canadians
by keeping
violent
or repeat offenders
in custody for longer periods. [Emphasis added.]

(
House
of Commons Debates
, vol. 144, No. 41, 2nd Sess., 40th Parl., April 20,
2009 (
Debates
), at p. 2418)

The Ministers
reference to violent or repeat offenders suggests that the challenged
provision is targeted at two groups: (1) dangerous persons, who have committed
crimes of violence or threatened violence; and (2) chronic offenders, whether
convicted of violent crimes or not.

[38]      The
Minister also linked longer periods in custody to rehabilitation:

As
a result of [the challenged provision], a greater number of offenders would now
serve a federal sentence of two or more years, and there will be an increased
number of federal offenders spending in federal custody.

This
time [in] the federal system will present the opportunity for longer-term
programming that may have a positive effect on the offender.
[Emphasis added.]

(Standing
Committee on Justice and Human Rights,
Evidence
, No. 20, 2nd Sess.,
40th Parl., May 6, 2009 (
Evidence
), at pp. 11-12)

[39]
The Minister referred to other goals.
One was the goal of adequate or fit punishment, in a retributive sense. On
this, he said:

Not
only does [enhanced credit] deprive offenders of the prison programs that might
help to keep them out of jail in the future,
it also fails to punish them
adequately for the deeds that led to their convictions in the first place
.
[Emphasis added.]

(
Debates
, at p. 2418)

[35]

After reflecting on
the statements of the Minister noted above, the Court concluded that the animating
social value behind the denial of enhanced credit for pre-sentence custody in
s. 719(3.1) is enhancing public confidence in the justice system. The
Court concluded, at para. 47, that the legislative purpose of the first
part of s. 719(3.1) is as follows:

[47]      Second, the
legislative purpose
of the total denial of enhanced credit for pre-sentence custody to offenders
who are denied bail because of a prior conviction is
to
enhance public safety and security by increasing violent and chronic offenders
access to rehabilitation programs
. To be sure, the Minister referred to
other legislative purposes -- providing adequate punishment, increasing
transparency in the pre-sentence credit system, and reducing manipulation. But
these are peripheral, for the reasons discussed above.

[36]

The Court concluded that
the purpose of preventing accused persons from manipulating the system by
prolonging pre-sentence custody in order to get more credit was resolved by the
1:1.5 cap:
Safarzadeh-Markhali
at para. 44.

[37]

The Court found that
the means for achieving the purpose was the challenged provision itself  the
denial of enhanced credit for pre-sentence custody to persons refused bail on
the basis of an existing criminal record. In addition, the Court found that the
provision imposed longer periods of custody on
all
persons who receive
an endorsement indicating that bail was denied primarily on the basis of a
previous conviction.

[38]

The Court concluded
that the provision was overbroad because it captured people in ways that had
nothing to do with enhancing public safety and security. The Court found, at paras. 53-54:

[53]      First,
the provisions ambit captures people it was not intended to capture: offenders
who do not pose a threat to public safety or security. Section 515(9.1) is
broadly worded. It catches any person denied bail primarily for a criminal
record, without specifying or even broadly identifying the nature or number of
offences that would warrant a s. 515(9.1) endorsement. The section may
therefore ensnare persons whose imprisonment does not advance the purpose of
the law. For example, a person with two or three convictions for failing to
appear in court might be subject to a s. 515(9.1) endorsement, even though
he or she did not pose any real threat to public safety or security. And even
if such a person receives greater access to rehabilitative programming and
benefits from it, the consequence is not necessarily to improve public safety
and security. In short, a s. 515(9.1) endorsement is an inexact proxy for
the danger that an offender poses to public safety and security. The Crown says
the law casts the net broadly because targeting all offenders with a criminal
record is a more practical option than attempting to identify only offenders
who pose a risk to public safety and security. But practicality is no answer to
a charge of overbreadth under s. 7:
Bedford
, at para. 113.

[54]      Second,
regardless of the types of offenders the challenged provision was meant to
capture, the provision suffers from overbreadth because, as the intervener the
Criminal Lawyers Association (Ontario) notes, the limited availability of
judicial review means that persons wrongly tagged with an endorsement will be
without recourse to have the error remedied. There is dispute about precisely
when if ever review for an endorsement is available. But the Crown concedes
that if the reviewing judge finds that the detention order was properly made,
he or she is powerless to vacate an endorsement and that the sentencing judge
has no choice under the challenged provision but to give effect to an
endorsement in computing an offenders sentence. This absence of review and
discretion renders the challenged provision overbroad for at least two
categories of individuals: (1) persons who erroneously received the endorsement
because their detention is not warranted primarily because of their criminal
record, and (2) persons who, during the period between the bail hearing and
sentencing, successfully appeal the conviction that drew the endorsement. In
both cases, the effect of the provision is to strip persons of liberty even
though their detention does not obviously advance public safety and security.

[39]

The Court concluded
that the provision was not saved by s. 1.

[40]

The Court also
resolved an important issue in relation to s. 7, and that is, contrary to
the weight of appellate authority, proportionality in sentencing is not a
principle of fundamental justice:
Safarzadeh-Markhali
at para. 71.

[41]

Before turning to
the analysis in this case, I will briefly refer to two competing appellate
decisions, both which were decided before
Safarzadeh-Markhali
:
Chambers
,
and
R. v. Kovich
, 2016 MBCA 19.

[42]

In
Chambers,
the
Court identified the purpose as follows, at para. 96:

[96]      As
I have outlined, the general purpose of s. 719(3) and (3.1) of the
Code
is to restrict the amount of presentence credit (I do not overlook the
other subsidiary purposes identified in
Summers
as discussed above).
Parliament has chosen to do so by capping that credit at 1.5:1, if
circumstances justify it. But Parliament has also targeted a population which
includes those who find themselves back in custody because of their own
misconduct on bail, who are not entitled to an award of this enhanced credit.

[43]

With respect,
characterizing the purpose of the legislation in this way is not in accordance
with
Moriarity
, where the Supreme Court held that the purpose of an
impugned law must not be drawn too generally or too narrowly. As Cromwell J.
said in
Moriarity
at para. 28:

[28]      The
appropriate level of generality for the articulation of the laws purpose is
also critically important. If the purpose is articulated in too general terms,
it will provide no meaningful check on the means employed to achieve it, almost
any challenged provision will likely be rationally connected to a very broadly
stated purpose: see, e.g.
Carter v. Canada (Attorney
General)
, 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 77. On the
other hand, if the identified purpose is articulated in too specific terms,
then the distinction between ends and means may be lost and the statement of
purpose will effectively foreclose any separate inquiry into the connection
between them. The appropriate level of generality, therefore, resides between
the statement of an animating social value -- which is too general -- and a
narrow articulation, which can include a virtual repetition of the challenged
provision, divorced from its context -- which risks being too specific:
Carter
, at para. 76. An unduly broad statement of
purpose will almost always lead to a finding that the provision is not overbroad,
while an unduly narrow statement of purpose will almost always lead to a
finding of overbreadth.

[44]

In my view, in light
of the decisions in
Moriarity
and
Safarzadeh-Markhali
, the Court
in
Chambers
articulated the purpose of the provision in overly specific
terms, attracting Cromwell J.s warning in
Moriarity
that, in such a
case, the distinction between ends and means may be lost and the statement of
purpose will effectively foreclose any separate inquiry into the connection
between them. As a result, the overbreadth analysis in
Chambers
, which

was decided without the benefit of the Supreme Courts guidance on this
point in
Moriarity
, is no longer persuasive. A similar conclusion was
reached in
R. v. Taylor
, 2017 YKTC 3.

[45]

In
Kovich
,
the court considered whether s. 719(3.1) complies with s. 7 of the
Charter
.
There, the Court found that the purpose of the legislation was to restrict the
amount of credit given for pre-sentence custody, and to end the practice of
granting 2:1 credit, to make the process more transparent, and to limit
pre-sentence custody to 1:1 for certain offenders:
Kovich
at para. 99.

[46]

The Court concluded
that the provision was overbroad because it does not target violent offenders
or wrongful conduct, but targets those who are unable to obtain bail:
Kovich
at para. 106: see also
R. v. Meads
, 2016 ONSC 7156 at paras. 30-35.

[47]

Turning to the
constitutionality of the provisions engaged in this case and whether the
legislation is overbroad, the first question is: does the provision engage
s. 7 and the right to life, liberty and the security of the person? It is
not disputed that it engages liberty rights, as its effect is to require
offenders to whom it applies to serve more time in prison than they otherwise
would: see
Safarzadeh-Markhali
at para. 20.

[48]

Accordingly, the
only issue under s. 7 before this Court is whether this deprivation of
liberty comports with the principles of fundamental justice or whether it is
overbroad, as Mr. Romanchych alleges. The next step in the overbreadth
analysis is to ascertain the purpose of the law.

[49]

Mr. Romanchych
submits that the purpose of the second part of s. 719(3.1) is exactly the
same as the purpose identified in
Safarzadeh-Markhali
at para. 47:
enhancing public safety and security by increasing violent and chronic
offenders access to rehabilitation programs.

[50]

The Crown submits
that the second part of s. 719(3.1) has a different purpose. It says that
unlike the first part of the provision, the part of the section dealing with
credit when there is a bail cancellation and detention order has a long
legislative history, which suggests a different legislative purpose.

[51]

It may be useful to
examine the operation of s. 524, which can lead to bail cancellation that
triggers the operation of the second part of s. 719(3.1). Where there are
grounds for a justice to believe that an accused has either contravened or is
about to contravene their release (which may include an appearance notice or
summons), or has committed an indictable offence while on a form of release, the
justice may issue a warrant for their arrest. All hybrid offences are
indictable until the Crown elects to proceed summarily:
Interpretation Act
,
R.S.C. 1985, c. I-21, s. 34. The exception is if the Crown fails to
make the election at trial, a court may presume the Crown elected to proceed
summarily:
R. v. Dudley
, 2009 SCC 58 at para. 20. Thus, s. 524(1)
can capture relatively minor offences. A peace officer with the same grounds
may arrest an accused without a warrant under s. 524(2).

[52]

The accused is then
brought before a justice who will either remand them to a superior court if
that court has exclusive jurisdiction or will otherwise deal with the accused:
s. 524(3). If the Crown demonstrates the appropriate basis, the judge or
justice will cancel the bail (sometimes referred to as revoking the bail) under
s. 524(4) or s. 524(8), and the onus then shifts to the accused to
show cause why they should be released under s. 515(10). The accused is
detained unless they show cause.

[53]

An accuseds bail
must first be cancelled before s. 719(3.1) can statutorily bar enhanced
credit:
R. v. Vinepal
, 2015 BCCA 349 at paras. 15-20. However, I
agree with Chief Justice Bauman in
Chambers
at para. 51 that, once
the bail is cancelled under s. 524, the accused is detained in custody
unless and until they satisfy a judge or justice that they should be released. Accordingly,
someone who consents to remain in custody after their bail is cancelled is
still detained.

[54]

The Crown submits
that the legislative purpose of the provision is to encourage accused persons
to comply with their bail conditions by imposing sanctions on those who breach
their bail conditions. It says that this differs from the first part of the
provision and therefore the objective of advancing the objective of enhancing
public safety and security by increasing violent and chronic offenders access
to rehabilitation programs is not the purpose. In support of this argument,
the Crown attempts to draw a link between the purpose of the
Bail Reform Act
,
which it says is to ensure compliance with bail conditions, and the impugned
provision.

[55]

The Crown submits
that the legislative context of the second part of s. 719(3.1) (but not
the first part) includes the operation of the
Bail Reform Act
scheme
because it explicitly adopts as its triggering mechanism s. 524, which
was part of the
Bail Reform Act
amendments to the
Criminal Code
.
In my view, there is nothing in any of the sources for determining legislative
purpose as outlined in
Moriarity
and
Safarzadeh-Markhali
that
supports a link between the
Bail Reform Act
and the second part of
s. 719(3.1). This is because I do not agree with the Crowns
characterization of the legislative purpose of the
Bail Reform Act
scheme
in the
Criminal Code
. Those provisions were part of the
Bail Reform
Act
, S.C. 1970-71-72, c. 37, which had a legislative purpose of
releasing
individuals, not detaining them. Martin J.A. reviewed the legislative purpose
of the
Bail Reform Act
in
R. v. Bray
, [1983] O.J. No. 2509
(C.A.), cited with approval on this point in
R. v. Pearson
, [1992] 3
S.C.R. 665 and
R. v. Morales
, [1992] 3 S.C.R 711:

The
Bail Reform Act, 1970-71-72 (Can.), c. 37, introduced a liberal and
enlightened system of pre-trial release. The
object of the legislation
clearly was to reduce pre-trial detention
consistent with securing the
attendance of the accused at his trial and the protection of the public
interest [Emphasis added].

[56]

The incompatibility
of the legislative purpose of the
Bail Reform Act
and the second part of
s. 719(3.1) is also demonstrated by reference to the interaction between
s. 719(3.1) and the offence of breaching a bail condition in s. 145.
If an accused persons bail is cancelled under s. 524, they are
statutorily barred from enhanced credit under s. 719(3.1), resulting in a
longer underlying sentence. If that accused person is then also prosecuted and
sentenced under s. 145, they receive a second punishment for the same
conduct (the breach of the bail condition). In this light, it is difficult to
see how the
Bail Reform Act
s legislative purpose of promoting the
release of individuals can lend any interpretive assistance to the second part
of s. 719(3.1).

[57]

The Minister of
Justices Parliamentary submissions do not distinguish the second part of
s. 719(3.1) from its first part, which was addressed in
Safarzadeh-Markhali
.
The section as a whole is addressed in terms of denying enhanced credit
entirely to lengthen sentences, and ensuring that violent and chronic offenders
receive longer sentences, and access to programs for a longer period of time in
the federal penitentiary system.

[58]

Thus, in my view,
the animating social value and the legislative purpose for the second part of
s. 719(3.1) is the same as the legislative purpose identified in
Safarzadeh-Markhali
at paras. 46-47  to enhance public confidence in the justice system, and
to enhance public safety and security by increasing violent and chronic
offenders access to rehabilitation programs. The means to effect this
legislative purpose is the challenged provision itself  the denial of enhanced
credit for pre-sentence custody to persons whose bail is cancelled as a result
of an alleged breach of a bail condition. The effect of the provision is to
impose longer periods of custody to persons whose bail is cancelled because
they have been charged or suspected of having breached a term of an earlier
release order:
Safarzadeh-Markhali
at paras. 48-49.

[59]

Given the length of
time some cases take to get to trial, the time served in pre-sentence custody
may be significant.

[60]

Once the purpose of
the impugned provision is determined, the next question is whether it is overbroad.
To avoid a finding of overbreadth in violation of s. 7 of the
Charter
,

the law must not go further than reasonably necessary to achieve its legislative
goals:
Safarzadeh-Markhali
at para. 50.

[61]

The Crown submits
that even if the legislative purpose is the same as that found in
Safarzadeh-Markhali
,
the provision is still not overbroad because not every person who is alleged to
have breached their bail ultimately has their bail cancelled under s. 524.

[62]

The Crown argues,
relying on
Chambers
at para. 96, that it is not overbroad to deny
bail to those who are returned to custody as a result of their misconduct on
bail. It cites
R. v. Hussain
, 2015 ONSC 7115, where the Court at para. 93
said:

The Ontario Court of Appeal in
Akintunde
confirms
that Parliament specifically intended that offenders who choose to continue
committing serious criminal offences while released on a recognizance will be treated
differently than other offenders. As a matter of policy, those who re-offend
while on bail will be denied enhanced credit for pretrial custody, while others
remain entitled to seek it. The choice is that of the accused out on bail. He
can abide by the terms of his release and become eligible for enhanced credit
for the time spent in pre-sentence custody. Or he can choose to re-offend and
lose the ability to seek enhanced credit. Rhetorically, one may ask how this is
unfair.

[63]

There is nothing
wrong with the proposition that serious offenders may not be entitled to
enhanced credit, depending on the circumstances. But neither
Chambers
nor
Hussain
address the question of
who
is captured by the
legislation. As seen in
Safarzadeh-Markhali
,
Kovich
and
Meads
,
it is not always the serious, violent, or even chronic offender whose enhanced
credit is statutorily barred by the second part of s. 719(3.1). Like those
who would be denied enhanced credit for a prior record, this provision also
catches individuals in ways that have nothing to do with enhancing public
safety or security.

[64]

A bail breach
leading to cancellation under s. 524 (which then engages the second part
of s. 719(3.1)) could be for failing to attend court, for a minor or
technical breach, or for breaching a restriction that was next to impossible to
comply with  the alcoholic who agrees to a ban on consuming alcohol so they
can be released. While such terms are readily agreed to at a bail hearing, in
reality, the accused may have no real ability to comply. The statutory bar on
enhanced credit at issue here can also apply to a homeless person with a
residency requirement, who is then evicted from those premises because the dwelling
is shut down by health inspectors (a reasonable prospect in some single-room
occupancy hotels). Thus, an accused person may be in breach of a bail term
through no fault of their own, yet they are subject to a statutory bar on
enhanced credit whose legislative purpose is enhance public safety and
security by increasing violent and chronic offenders access to rehabilitation
programs.

[65]

The Crown also
argues that there is a greater power of review accorded to the second part of
s. 719(3.1) than to the first part, which remedies any s. 7
overbreadth-related infirmity. The Crown in
Safarzadeh-Markhali
conceded
that there was no avenue to review an endorsement that a person was detained
because of their prior conviction, and the sentencing judge was bound by that
endorsement. The Crown in this case submits that this was a significant part of
the Courts conclusion that the provision was overbroad. I do not disagree with
that submission. However, that does not mean that the breach of bail part of
s. 719(3.1) is not overbroad.

[66]

In
Safarzadeh-Markhali
the Court concluded that there was no avenue to review the endorsement made in
terms of the purpose of the detention order. However, the detention order
itself may be reviewed, and set aside, pursuant to s. 520 of the
Code
.
I am alive to the fact that the Court in
Safarzadeh-Markhali
at para. 12
did not resolve whether a s. 520 review overturning a detention order
would quash an endorsement. The only avenue for review of a detention order
made under s. 524, which we are concerned with here, is through s. 680
of the
Code
. A reviewing court accords deference to initial decisions under
both s. 520 (
R. v. St. Cloud
, 2015 SCC 27 at paras. 116-21)
and s. 680 (
R. v. Oland
, 2017 SCC 17 at paras. 61-62).

[67]

Thus, while the lack
of review was a relevant feature in
Safarzadeh-Markhali
, the fact that
the provision captured many people who were neither violent nor chronic
offenders, as this provision also does, was, in my view, the primary basis on
which the provision was found to be overbroad. As in
Safarzadeh-Markhali
,
the effect of the provision is to strip persons of liberty even though
detention does not obviously advance public safety and security: at para. 54.

[68]

In my opinion,
s. 719(3.1), as it relates to those who have allegedly breached bail, is
overbroad and thus violates s. 7 of the
Charter
.

[69]

The Crown did not
strongly press justification of the provision pursuant to s. 1 of the
Charter
.
However, it did not concede the argument. For clarity, I adopt the s. 1
analysis in
Safarzadeh-Markhali
at paras. 56-66. The means chosen
to advance the objective of public safety and security are not proportionate to
the objective of the legislation. As stated in
Safarzadeh-Markhali
at para. 65,
the laws overbreadth means that offenders who have neither committed violent
offences nor present a risk to public safety will be unnecessarily deprived of
liberty.

[70]

Thus, the challenged
provisions are not saved by s. 1.

[71]

This does not mean
that the sentencing judge cannot take all of these matters (prior conduct, bail
breaches, and so on) into account when crafting a sentence  these are often
factors that will affect the length of a term of sentence. The sentencing judge
may also consider these factors when determining whether circumstances justify
enhanced credit within the meaning of
Summers
. This conclusion means,
however, that the sentencing judge is not constrained from granting 1:1.5
credit where it is justified.

[72]

In my view, this is
a case where enhanced credit should have been granted. There is nothing to
suggest that Mr. Romanchych would not receive remission in the ordinary
course of events.

Conclusion

[73]

I would grant leave
and allow the appeal. I find that the challenged portion of s. 719(3.1)
violates s. 7 of the
Charter
because it is overbroad, and the Crown
has not justified that infringement under s. 1 of the
Charter
. The
impugned provision is declared of no force and effect under s. 52 of the
Constitution
Act
. I would increase Mr. Romanchychs pre-sentence custody credit by
an additional 5.25 months, reducing his sentence from 29.5 months to 24.25
months.

The Honourable Madam Justice Bennett

I AGREE:

The
Honourable Mr. Justice Frankel

I AGREE:

The Honourable Mr. Justice
Savage


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Swaby,

2018 BCCA 35

Date: 20180125

Docket: CA44930

Between:

Regina

Applicant

Appellant

And

Matthew
Christopher Swaby

Respondent

Section
16(4)
Sex Offender Information and Registration Act (SOIRA)
:
This section provides that no person shall disclose any information that is
collected pursuant to an order under
SOIRA
or the fact that information
relating to a person is collected under
SOIRA.

Before:

The Honourable Mr. Justice Hunter

(In Chambers)

On appeal from: an
order of the Supreme Court of British Columbia, dated
November 8, 2017 (
R. v. Swaby
, 2017 BCSC 2020, Vancouver Registry No.
27223)

Oral Reasons for Judgment

Counsel for the Applicant:

L.A. Vizsolyi

Counsel for the Respondent:

L.J. Helps

Place and Date of Hearing:

Vancouver, British
  Columbia

January 23, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2018

Summary:

The Crown applies for leave
to appeal the decision of a summary conviction appeal court that upheld a
Provincial Court of British Columbia judges decision that the mandatory
minimum sentence of 90 days imprisonment then prescribed by s. 163.1(4)(b) of
the Criminal Code infringes s. 12 of the Charter of Rights and Freedoms. The
respondent opposed leave on the basis that the question does not raise an issue
of law alone and that the appeal lacks merit. Held: Application granted. The
constitutional question is a question of law and the matter is one of
considerable significance beyond the immediate case.

[1]

HUNTER J.A.
: The Crown seeks leave to appeal a judgment of a
judge of the Supreme Court of British Columbia, sitting as an appeal judge on a
summary conviction sentence appeal. The sole issue in the appeal is whether the
mandatory minimum sentence provided by s. 163.1(4) of the
Criminal Code
,
R.S.C. 1985, c. C-46, which was in force at the time of the offence, infringes
s. 12 of the
Charter of Rights and Freedoms
.

[2]

Mr. Swaby was charged with and pleaded guilty to a single count of
possession of child pornography contrary to s. 163.1(4) of the
Criminal Code
.
The Crown proceeded by way of summary conviction. At the relevant time, the
minimum sentence for such an offence was imprisonment for 90 days.

[3]

Mr. Swaby sought a declaration before the sentencing judge that s.
163.1(4) prescribed a minimum sentence which is grossly disproportionate to the
offence alleged and thereby amounted to cruel and unusual punishment, contrary
to s. 12 of the
Charter
. The sentencing judge agreed and held that s.
163.1(4) was unconstitutional.

[4]

The Crown appealed this decision to the Supreme Court of British
Columbia, but the appeal was dismissed and the constitutional remedy confirmed.
The Crown seeks leave to appeal this decision to this Court.

Test for leave

[5]

This leave application is brought pursuant to s. 839(1) of the
Criminal
Code
, which restricts appeals to this Court from summary conviction
sentence appeals to grounds that involve a question of law alone for which
leave to appeal has been granted by this Court or a judge of this Court.

[6]

The test for granting leave to appeal under s. 839 was summarized by
Justice Frankel in
R. v. Winfield
, 2009 YKCA 9 as follows:

[13]

T
o obtain leave to
appeal from the decision of a summary conviction appeal court, the applicant
must establish that (a) the ground of appeal involves a question of law alone,
(b) the issue is one of importance, and (c) there is sufficient merit in the
proposed appeal that it has a reasonable possibility of success. The overriding
consideration in the exercise of the discretion to grant or refuse leave is the
interests of justice:
R. v. Cai
, 2008 BCCA 332
,
258 B.C.A.C. 235
at para. 26 (Chambers)
;
R. v. Gill
,
2008 BCCA 259
at para. 3 (Chambers)
.

[14]      In
R.(R.)
, Mr. Justice Doherty
discussed the approach to be taken in deciding whether to grant leave to appeal
the decision of a summary conviction appeal court. In this connection, he
stated:

[27]      The
requirement that the applicant obtain leave to appeal in s. 839 provides
the mechanism whereby this court can control its summary conviction appeal
docket. Access to this court for a second appeal should be limited to those
cases in which the applicant can demonstrate some exceptional circumstance
justifying a further appeal.

...

[37]      In summary, leave to appeal pursuant
to s. 839 should be granted sparingly. There is no single litmus test that can
identify all cases in which leave should be granted. There are, however, two
key variables  the significance of the legal issues raised to the general
administration of criminal justice, and the merits of the proposed grounds of
appeal. On the one hand, if the issues have significance to the administration
of justice beyond the particular case, then leave to appeal may be granted even
if the merits are not particularly strong, though the grounds must at least be
arguable. On the other hand, where the merits appear very strong, leave to
appeal may be granted even if the issues have no general importance, especially
if the convictions in issue are serious and the applicant is facing a
significant deprivation of his or her liberty.

[7]

In
R. v. Klos
, 2015 BCCA 360 (in Chambers),
Justice Frankel summarized the considerations for a leave judge in this way:

[33]       The overriding consideration in
determining whether to grant or refuse leave is the interests of justice:
R. v. Alpha Manufacturing Inc.
, 2009 BCCA 443 at para. 13, 277 B.C.A.C.
17. That leave will be granted sparingly is evinced by the following from
R.
v. Bresnark
, 2013 ONCA 110:

[5]        A second appeal in summary
conviction proceedings is the exception, not the rule.
R. v. R.(R.)
,
2008 ONCA 497, 90 O.R. (3d) 641. First, the matter in issue must raise a
question of law alone. Even if the proposed appeal involves a question of law
alone, there are only two types of cases in which leave to appeal may be
granted. One is when the matter raised has significance to the administration
of justice beyond the particular case and the grounds of appeal are at least
arguable. The other is where the merits appear to be very strong  particularly
if the conviction is serious and the appellant is facing a significant
deprivation of his or her liberty.

Do the grounds involve a question of law alone?

[8]

The first requirement is that the ground of appeal
involves a question of law alone. The question for appeal proposed by the Crown
is as follows:

Does the mandatory
minimum sentence of 90 days jail as provided by s. 163.1(4)(b) of the
Criminal
Code
infringe s. 12 of the
Charter of Rights and Freedoms
?

[9]

In my view, the question whether a mandatory
minimum sentence required by the
Criminal Code
offends s. 12 of the
Charter
is a question of law.

[10]

Mr. Swaby has argued that in this case, the conclusions of the
sentencing judge were inextricably bound to the factual context before the
Court. The fact that the sentencing judge made certain factual findings in
order to reach a decision on this point does not detract from the nature of the
issue. The New Brunswick Court of Appeal considered a similar argument in
R.
v. Dunnett
(1990),
62 CCC (3d) 14 at 18-19 (N.B.C.A.)
and made the following comments in relation to a leave application under s. 839
of the
Criminal Code
:

The legal rights
protected by the
Charter

must always be considered in a factual context. They cannot arise in
the abstract. The facts must be found by the trial Judge. Once the facts have
been established by the trial Judge, an appellate court must consider the
application of the
Charter

to those facts. The application of the facts as found by the trial
Judge to the legal rights protected by the
Charter

involves, in my opinion, questions of law. As
such, subject to leave being given, these questions are reviewable by this
Court.

[11]

I conclude that I have the jurisdiction to grant leave to appeal on the
ground advanced by the Crown.

Is the issue one of importance?

[12]

Striking
down a provision of the
Criminal Code
is a matter of considerable
importance. The respondent does not suggest otherwise.

Does the application meet the merits test?

[13]

The
traditional merits test requires the leave judge to determine whether
there is sufficient merit in the proposed appeal that it has a
reasonable possibility of success. The respondent argues strongly that the
summary conviction appeal judge considered the appropriate tests and that there
is no merit to the proposed appeal.

[14]

I agree with the respondent that the judgment of the
summary
conviction
appeal judge is thoughtful and well reasoned. However, in my
view this application engages the principle set out by Justice Doherty in
R.
v. R.(R.)
, 2008 ONCA 497 adopted by Frankel J.A. in the passage from
Winfield
to which I have referred:

if the issues
have significance to the administration of justice beyond the particular case,
then leave to appeal may be granted even if the merits are not particularly
strong, though the grounds must at least be arguable.

[15]

In
relying on this passage, I do not mean to suggest that the merits of this
appeal are not particularly strong. I take this as an indication that if the
issues are of significance to the administration of justice beyond the specific
case at bar, then as long as the issue is arguable it is not necessary to
assess the merits of the appeal as closely as would be necessary if the legal
issue was not likely to affect other parties not before the Court.

[16]

Here,
the question whether a provision of the
Criminal Code
should be struck
down as contrary to the
Charter
is a matter of considerable significance
beyond the immediate case. If leave is denied, the decision of the
summary conviction
appeal judge will be binding in the
Provincial Court and in the Supreme Court of British Columbia. While the
section under consideration in this appeal has been amended to increase the
mandatory minimum sentence, if the judgment sought to be appealed is correct,
it will of necessity apply to the current provision in the
Criminal Code
.
It may as well have application to other analogous offences with mandatory
minimum sentences. I agree with the Crown that given the importance of the
issue and the impact beyond the immediate parties, it should be a division of
this Court that decides whether the mandatory minimum sentence in s.
163.1(4)(b) contravenes s. 12 of the
Charter
.

[17]

I
am satisfied that it is at least arguable that a jail sentence of 90 days is
not a grossly disproportionate penalty for the serious offence of possession of
child pornography. As I am granting leave and the appeal will be heard by a
division of this Court, I do not propose to say anything further about the
merits of the appeal.

[18]

Accordingly,
leave to appeal is granted on the following ground:

Does the mandatory minimum sentence of 90
days jail as provided by s. 163.1(4)(b) of the
Criminal Code
infringe
s. 12 of the
Charter of Rights and Freedoms
?

The
Honourable Mr. Justice Hunter


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Zakreski v. British Columbia Public School Employers
  Association,

2018 BCCA 43

Date: 20180126

Docket: CA44545

Between:

Donna Zakreski

Appellant

(Petitioner)

And

British Columbia
Public School Employers Association,
The Board of School Trustees of School District No. 68 (Nanaimo),

British Columbia
Labour Relations Board

Respondents

(Respondents)

Correction:
The front cover was corrected on March 19, 2018.

Before:

The Honourable Mr. Justice Harris

The Honourable Madam Justice Stromberg-Stein

The Honourable Mr. Justice Willcock

On appeal from: An order
of the Supreme Court of British Columbia, dated
June 8, 2017 (
Zakreski v. British Columbia Public School Employers
Association
,
2017 BCSC 1038, Vancouver Registry S153161).

Oral Reasons for Judgment

K. Zakreski appearing as agent for the appellant D.
  Zakreski

Counsel for the Respondents BC Public School Employers
  Association & The Board of School Trustees of School District No. 68
  (Nanaimo):

P.A. Csiszar

Counsel for the Respondent BC Labour Relations Board:

J. ORourke

Place and Date of Hearing:

Vancouver, British
  Columbia

January 23, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 26, 2018

Summary:

This is an appeal of an order
dismissing a petition for judicial review because it is plain and obvious the
petition is bound to fail. Held: Appeal dismissed. The judge did not err in his
analysis that the petition is bound to fail because, for the most part and in
substance, it attempted to review decisions falling within the exclusive
jurisdiction of the Labour Relations Board. To the extent the petition impugned
decisions subject to judicial review, it is plain and obvious that the relevant
decisions were not patently unreasonable. Applications to admit new evidence
were also dismissed.

[1]

HARRIS J.A.
: This is an appeal of an order dismissing a petition
for judicial review, pursuant to Rule 9‑5(1) (
Supreme Court Civil
Rules
), on the basis that it is plain and obvious that the petition is
bound to fail.

[2]

The context of this appeal can be summarized briefly.

[3]

The appellant was a schoolteacher. Her employer terminated her
employment for cause alleging misconduct and dishonesty relating to her claims
for sick leave.

[4]

The appellant was a member of a union. The union grieved the decision to
terminate her employment. Further to the collective agreement, the grievance
was referred to arbitration. After a 10‑day arbitration, the arbitrator
denied the grievance, concluding that the employer had just cause for
discipline and termination. The arbitrator applied the settled
Wm. Scott
(Wm. Scott & Co. (Re)
, [1976] B.C.L.R.B.D. No. 98) test
in reaching her conclusion. The basis of the arbitrators decision is rooted in
findings of credibility adverse to the appellant.

[5]

The union applied to the B.C. Labour Relations Board (the Board) for a
review of the arbitrators decision. Such a review is provided for by s. 99(1)
of the
Labour Relations Code
, R.S.B.C. 1996, c. 244 [
Code
],
which stipulates the grounds on which the Board may set aside the award or
provide other relief. That section reads:

99 (1) On application by a party affected by the decision or
award of an arbitration board, the board may set aside the award, remit the matters
referred to it back to the arbitration board, stay the proceedings before the
arbitration board or substitute the decision or award of the board for the
decision or award of the arbitration board, on the ground that

(a) a party to the arbitration has
been or is likely to be denied a fair hearing,

or

(b) the decision or award of the arbitration board is
inconsistent with the principles express or implied in this Code or another Act
dealing with labour relations.

[6]

The grounds on which an arbitration decision may be reviewed by the
Board are circumscribed by the section.

[7]

The application for review alleged that the decision denied a fair
hearing to a party and that the decision was inconsistent with the principles
expressed in the
Code
. In support of these arguments, the union
contended that the arbitrator made determinations of the appellants medical
condition appropriately made by a medical professional, the decision was
inconsistent with the
Human Rights Code
, R.S.B.C. 1996, c. 210, the
arbitrator improperly relied on a perceived difference between medical
accommodation and sick leave to the appellants detriment, and she confused two
separate questions, namely, whether the appellant was entitled to medical leave
and whether the appellant was deliberately dishonest. For the most part, the
issues now raised on judicial review were not advanced before the Board on
review.

[8]

The Board dismissed the application for review on December 11,
2014. It concluded that the arbitrators decision was not inconsistent with
express or implied principles in the
Code
including human rights
principles, there was no denial of a fair hearing, nor any palpable and
overriding error in the arbitrators findings of fact. The Board recognized the
extent to which the arbitration decision turned on a credibility assessment
underlying a finding of dishonesty.

[9]

At this point, the union ceased to be involved in the appellants case.
Acting on her own behalf, though now claiming to be an agent of the union, the
appellant applied for leave to apply for a reconsideration of the Boards
review decision as permitted by s. 141(1) of the
Code
. It is
important to note that the application is for leave to reconsider the Boards
review decision. It is not directly an application for a second review of the
arbitration decision. Again, the section circumscribes the grounds on which a
party affected by a decision may apply for leave. It provides:

141 (1) On application by any party affected by a decision of
the board, the board may grant leave to that party to apply for reconsideration
of the decision.

(2) Leave to apply for reconsideration of a decision of the
board may be granted if the party applying for leave satisfies the board that

(a) evidence not available at the
time of the original decision has become available, or

(b) the decision of the board is
inconsistent with the principles expressed or implied in this Code or in any
other Act dealing with labour relations.

(3) Leave to apply for reconsideration of a decision of the
board under this section may be granted only once in respect of that decision.

(4) Subsection (1) does not apply to a decision of the board
to grant or deny leave under subsection (2) or to a decision made by the board
on reconsideration.

(5) An application under
subsection (1) must be made within 15 days of the publication of the reasons
for the decision that is the subject of the application.

[10]

It
is of some moment to note that subsequent to her application, but out of time,
the appellant filed further submissions. The Board, for reasons I will come to,
dismissed the appellants application for leave for a reconsideration on
January 30, 2015. I will refer to this decision as the reconsideration
decision. Subsequently, on February 10, 2015, the appellant filed a
second application with the Board for leave to apply for reconsideration under
s. 141. That application was dismissed on February 19, 2015, on the
basis that the statute provided for only one application for leave for
reconsideration. I will refer to this decision as the final decision.

[11]

On April 20, 2015, the appellant filed a petition seeking judicial
review of the arbitrators decision, the review decision, the reconsideration
decision and the final decision. The petition was amended on September 13,
2016. The orders sought on judicial review are:

a. an order declaring that BCLRB erred in law or exceeded its
jurisdiction by making patently unreasonable decisions, or both, in making the
Review Decision, Reconsideration Decision and Final Decision;

b. an order that the Boards Decisions (i.e., the
Review Decision, Reconsideration Decision and Final Decision) be set aside and
quashed;

c. an order that the Arbitrators Decision be set aside and
quashed, or alternatively, remitting the Unions s. 99 application to the
original panel that made the Review Decision for reconsideration with
directions; and

d. an order granting the
appellant permission to enter and recover all personal property remaining at
her former employers offices.

[12]

The
grounds alleged to support the petition are:

1)         The Board erred in law or exceeded its
jurisdiction by making patently unreasonable decision, or both, when it:

a.   upheld the
Korbin award as consistent with the principles expressed or implied in the
Labour
Relations Code
;

b.   denied an
agent to the grievance to proceed with a grievance under the
Code
;

c.   erred in
recognizing confirmation bias in the
William Scott & Co.
test;

d.   determined
that arbitrators and the Board are competent medical diagnosticians; and

e.   did not recognize
FOIPPA
as
a statute dealing with labour law.

[13]

The
petition was filed outside the 60‑day statutory limitation period to seek
judicial review of the reconsideration decision, but within the limitation
period to apply for judicial review of the final decision. In striking the
petition as disclosing no reasonable claim for judicial review, the judge
elected not to rely on the effluxion of the limitation period as a basis to
dismiss the petition, even though on the record that would have provided a
proper basis to dismiss the petition insofar as it related to the
reconsideration decision. Rather, he chose to strike the petition on what he
characterized as substantive grounds. I will proceed on the same basis.

[14]

The
judge recognized that only the reconsideration decision and final decision were
subject to judicial review. The Court had no jurisdiction directly to review
the arbitration decision or the review decision since these matters by
legislation fall within the exclusive jurisdiction of the Board. He identified
the applicable standard of review as patent unreasonableness, not as the
appellant argued before us, correctness. He then identified the test to apply
on the application; namely, whether it is plain and obvious, assuming the facts
alleged in the petition to be true, that the petition is bound to fail.

[15]

On
the appeal of the order of the chambers judge, our first task is to determine
whether the reviewing judge had chosen the correct standard of review. No
deference is owed to the reviewing judge in relation to whether he selected the
appropriate standard of review nor on the question of the test to be applied on
the application before him. The judge answered each of these questions
correctly (
B.C. Ferry and Marine Workers Union v. B.C. Ferry Services Inc.
,
2012 BCSC 663, affirmed 2013 BCCA 497;
Stark
v. Vancouver School District No. 39
, 2006 BCCA 124
at paras. 4, 6, 7;
Canada
(Attorney General) v. Public Service Alliance of Canada
, [1991] 1 S.C.R.
614;
Gorenshtein v. British Columbia (Employment Standards Tribunal)
,
2016 BCCA 457 at paras. 24‑26;
Hunt v. Carey Canada Inc.
,
[1990] 2 S.C.R. 959;
R. v. Imperial Tobacco Canada Ltd.
, 2011
SCC 42).

[16]

The
next question is whether the judge applied the standard of review correctly,
and correctly answered the question whether it is plain and obvious the
petition for judicial review is bound to fail. In my opinion, he did.

[17]

The
judge concluded that the petition is bound to fail because the arguments
advanced were, for the most part, properly understood to be in substance an
attack on the arbitration or review decisions, not on those decisions the court
has a jurisdiction to review. Those arguments in a variety of ways all call
into question the fairness of the arbitration decision or the review decision.
That is true in respect of the suggestion that the test applied by the
arbitrator is inherently contaminated by confirmation bias, that privacy
principles were not properly recognized in the arbitration, that there was no
evidence in support of the arbitrators findings in relation to malingering,
and that the appellant could resile from an agreement made by the union and the
employer to call one witness to give medical evidence. I see no error in the
judges conclusion and share the view that the petition seeks to impugn the
arbitration and review decisions, both of which fall within the exclusive
jurisdiction of the Board. As a result, the judge correctly concluded that it is
plain and obvious the petition is bound to fail to the extent in substance it
sought to impugn those decisions and, in effect, to attempt to reargue the case
before the arbitrator.

[18]

Beyond
this I propose to make only a few additional comments in respect of the reconsideration
and final decision and the issue of new evidence. The grounds on which the
Board may grant leave to apply for a reconsideration are either that evidence
not available through reasonable diligence at the time of the original decision
has become available, or that the decision of the Board is inconsistent with
the principles expressed or implied in the
Code
or any other
Act
dealing with labour relations. In denying the appellants application, the
Board recognized, at para. 11 of its reasons, that the onus is on an
applicant to establish a good, arguable case of sufficient merit that may
succeed on one of the established grounds for reconsideration.

[19]

The
reconsideration Board dismissed the arguments advanced after the initial
application on the basis that they were advanced out of time. Having reviewed
the record, it is apparent that the Board was correct. That conclusion disposes
of several of the arguments the appellant advanced and attempts to support her
series of new evidence applications, including the
Freedom of Information
and Protection of Privacy Act
, R.S.B.C. 1996, c. 165 [
FOIPPA
],
argument, the confirmation bias argument, and the agency argument. Confirmation
bias was not raised before the review Board. The paragraph in the union
submission the appellant refers to suggesting it was in substance raised offers
no support for her argument. Similarly, the
FOIPPA
argument was not
raised, even if the union expressed its concern about the use made of social
media evidence by the arbitrator in support of her credibility findings. The
reconsideration Board expressed its view that these arguments were, in any
event, without merit. I am satisfied that it is plain and obvious that a
judicial review impugning those conclusions, either that the submissions were
out of time or were unmeritorious, is bound to fail.

[20]

The
reconsideration Board examined whether the appellant could resile from the
agreement entered into by the union. It concluded she could not. The Board did
not prevent the appellant carrying on the grievance. Whether she did so as an
agent would not, in any event, affect the Boards reasoning that the appellant
could not resile from the agreement made by the union. The Boards reasoning is
cogent and rooted in the purposes and objectives of the statutory scheme. It is
not patently unreasonable. It is plain and obvious that the judicial review is
bound to fail.

[21]

The
reconsideration Board also denied leave in respect of the proposed new evidence
on the basis that the appellant could not meet the test for its admission
because it was available by the exercise of reasonable diligence at the time of
the arbitration and, in any event, was not sufficiently material to the issue
before the arbitrator, given that the material issues related to adverse
credibility findings. The reasoning in the decision is not patently
unreasonable. It is plain and obvious that the petition is bound to fail. The
same conclusion applies in respect of the final decision based on the
application of s. 141(3) which dictates that there may be only one
application for leave to reconsider the review decision.

[22]

To
the extent that the petition for judicial review can be characterized as
impugning the reconsideration or final decision, there is no arguable case that
either is patently unreasonable in any relevant respect. It is plain and
obvious that the petition is bound to fail. The chambers judge did not err in
striking the petition.

[23]

I
turn now to the various applications to introduce new evidence relating to such
issues as alleged confirmation bias, perceived political influence with the
Board, the assertion that the appellant acted as the unions agent, as well as additional
medical evidence bearing on the appellants medical condition and the perceived
benefits of quilting. None of this evidence meets the test for admitting new
evidence. All of it could have been tendered to the arbitrator or the review
board, if it were admissible. An attempt to put the thrust of the new evidence
before the reconsideration Board was rejected. No error in that conclusion has
been demonstrated. Much of the evidence is in the nature of expert opinion
evidence and has not, in any event, been tendered in admissible form. The
proposed evidence fails the
Palmer
(
Palmer v. The Queen
,
[1980] 1 S.C.R. 759)

test in a
number of ways: it is not new evidence, it was available at the material time,
it is not sufficiently material to the matters in dispute before the arbitrator
so as to have likely affected the outcome, and it could not affect the outcome
of the judicial review application. In any event, and quite apart from all of
these deficiencies in the proffered evidence, I would decline in the
circumstances of this case to exercise my discretion to admit any of the
evidence on a judicial review, which generally is based on the record before
the tribunal.

[24]

The
appellant expresses frustration about the scheme for resolving disputes of the
kind she became involved in. She contends that there is no adequate forum to
raise the issues that concern her, particularly as they relate to a perceived
unfairness or some kind of inherent or institutional bias. She considers the labour
relations scheme to be unfair. But there are opportunities to raise valid
concerns about procedural fairness, the test that should be applied in
determining whether termination is for just cause, or to raise new issues if
genuinely new evidence emerges. Those fora are before the arbitrator and then
the review board with a limited right of reconsideration if leave is granted. If
the appellant considered the test the arbitrator applied to be intrinsically
flawed, the time to raise that issue was before the arbitrator. If a test was
applied in a procedurally unfair manner, then the issue could be canvassed
before the Board on a review. The union, in its representational capacity,
chose the grounds it considered had sufficient merit to advance on review. It
did not take the points the appellant wishes now to advance. The appellants
complaint is either with the way the union represented her at the arbitration or
on review or with the legislative scheme which confers exclusive jurisdiction
to review arbitration awards on the board. The appellant did not challenge the
constitutionality of the legislative scheme in a timely manner. The issue came
up in reply: far too late and without proper notice.

[25]

For
the foregoing reasons, no reviewable error has been demonstrated to underlie
the judges order. It is plain and obvious that the judicial review is bound to
fail. I would dismiss the appeal.

[26]

Costs
ordinarily follow the event as a result of s. 23 of the
Court of Appeal
Act
, R.S.B.C. 1996, c. 77. Typically, therefore, this Court does not
comment on costs in its reasons for judgment. Here, the issue of costs was
raised before us. I see no reason to depart from the ordinary rule.

[27]

The applications to admit new evidence are dismissed. The appeal is
dismissed. The ordinary rule as to costs applies.

[28]

STROMBERG-STEIN J.A.
: I agree.

[29]

WILLCOCK
J.A.
: I agree.

The Honourable Mr. Justice Harris


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Johnson v. Law Society of British Columbia,

2018 BCCA 40

Date: 20180129

Docket: CA43750

Between:

Martin Drew
Johnson

Appellant

And

The Law Society of
British Columbia

Respondent

Before:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Savage

The Honourable Mr. Justice Hunter

On appeal from:  A
decision of the Benchers on Review, dated May 31, 2016
(
Law Society of British Columbia v. Johnson
, 2016 LSBC 20).

Oral Reasons for Judgment

Counsel for the Appellant:

T.C. Paisana

Counsel for the Respondent:

G.B. Gomery, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

January 29, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 29, 2018

Summary:

Appeal by J from a decision
of a Law Society review board upholding a finding by a hearing panel that using
profanity in a courthouse hallway in a heated conversation with a police
officer constituted professional misconduct. J contends the board did not
properly apply its internal correctness standard of review to the facts found
by the panel and that, in any event, the boards decision was unreasonable. Held:
Appeal dismissed. The review board reviewed the facts found by the panel and
independently determined Js conduct was a marked departure from the conduct
the Law Society expects of its members. That determination was a reasonable
one.

[1]

FRANKEL J.A
:  The appellant, Martin Drew Johnson, is a lawyer who
was disciplined by the Law Society of British Columbia for using profanity in a
courthouse hallway. A hearing panel found Mr. Johnson guilty of professional
misconduct and a review board dismissed his appeal. Mr. Johnson now appeals to
this Court.

[2]

The incident in question involved an interaction between Mr. Johnson and
a police officer, Constable B, at the Kelowna courthouse. At that time, Mr.
Johnson acted for a client who was being tried in Provincial Court on an
assault charge. The complainant was the clients estranged wife; Constable B
was a potential Crown witness.

[3]

After the complainant completed her testimony, the trial adjourned for
the afternoon break. Mr. Johnson and Crown counsel then had a discussion in
which they agreed the appropriate disposition of the charge was for
Mr. Johnsons client to enter into a peace bond. As Crown counsel wished
to speak with Constable B, he and Mr. Johnson met with the officer in the
hallway outside the courtroom. No one else was in the immediate area.

[4]

What happened next can be stated as follows:

(a)    Mr. Johnson asked Constable B to
attend the former matrimonial home with his client while the client picked up a
few of his belongings;

(b)    Constable B refused;

(c)     the situation between Constable
B and Mr. Johnson became heated and volatile;

(d)    Crown counsel intervened and
suggested a solution that seemed workable to both sides;

(e)    when Mr. Johnson asked Constable
B if he could smell the marihuana in the house, Constable B replied, Dont for
a minute think that I dont know who you are or what you are about;

(f)     Mr. Johnson said fuck you to
Constable B;

(g)    at this point Mr. Johnson and
Constable B came very close together, almost nose to nose. Their chests or
stomachs were touching;

(h)    Constable B said, You dont
scare me, you big shot lawyer, and he pointed out that their chests were
touching. Constable B then said, Thats assaulting a police officer;

(i)      Mr. Johnson said, You are
assaulting me, to which Constable B replied, You havent seen anything until
youve seen an RCMP assaulted; and

(j)      Constable
B then spun Mr. Johnson around, arrested him and, with the assistance of one of
the sheriffs officers, handcuffed Mr. Johnson.

[5]

Constable B sought to have Mr. Johnson charged with assault. The matter
was referred to the Crown counsel office in Prince George, which declined to
approve any charges.

[6]

A three-member hearing panel unanimously found Mr. Johnsons use of the F
word constituted professional misconduct, i.e., his conduct was a marked
departure from the conduct the Law Society expects of its members: see
The
Law Society of British Columbia v. Martin
, 2005 LSBC 16 at para. 171. The panel
members, however, were not unanimous in their reasoning.

[7]

What divided the panel members was the concept of provocation. The
majority, which found Mr. Johnson had acted in anger and meant to insult
Constable B, stated provocation can never be used as a defence to uttering
profanities in anger in a courthouse, as lawyers are expected to rise above
the fray. The minority, on the other hand, stated the use of profanities can,
in some circumstances, be excused. However, that panel member was of the view
Constable Bs conduct did not excuse Mr. Johnsons conduct.

[8]

Mr. Johnson appealed the finding of professional misconduct. Before the
review board he argued the hearing panel erred in:

(a)       concluding that
provocation is irrelevant to a determination of professional misconduct;

(b)       concluding that
provocation should not be a defence or excuse to professional misconduct; and

(c)        finding his actions constituted professional
misconduct.

[9]

In reasons indexed as 2016 LSBC 20, a review board (6:1) dismissed that
appeal. Both the majority and dissenting board members stated they were
applying the correctness standard of review to the facts found by the hearing
panel. I will return to the standard of review as it is one of Mr. Johnsons
grounds of appeal.

[10]

The majority of the review board held that provocation could not be used
as a defence to an allegation of professional misconduct. Rather, it opined
that provocation was only one of many possible factors to be considered on a
case-by-case basis in determining whether professional misconduct had occurred.
Turning to what transpired between Mr. Johnson and Constable B, the majority
stated:

[24]      Each
case will have its own unique facts, and we will not set out here a test for
what amount or quality of provocation is required to prevent what would
otherwise be a finding of professional misconduct. Provocative words are so
enmeshed in the context of what was said, who said it, how it was said, timing,
intent, demeanour, who heard the words, who was intended to hear the words,
cultural understandings and so forth, that it is impossible to lay down a rule
here. Even using the qualifier by the minority that the provocation must be
extreme is difficult to define. Again, this is best left with future hearing
panels to determine should the issue arise again.

[25]      In any
event the words spoken by the officer (Don't for a minute think I don't know
who you are and what you're all about) were found by the hearing panel to be
insufficiently provocative. The hearing panel was in the best position to
observe and determine this issue. There is nothing in the evidence to suggest
any error in this conclusion.

[26]      [Mr. Johnson] argued that such
words were intended to impugn his character. This might be so, but many lawyers
at some point in time have had an opposing party or hostile witness call into
question their character. No doubt such comments sting, but to excuse [Mr. Johnsons]
reply to these provocative words in the circumstances of this case would send a
message that it is permissible for counsel to trade an insult for an insult.  This
cannot be countenanced.

[11]

In addition, at para. 30 of its reasons, the majority quoted with
approval the following from the minority reasons of the hearing panel:

[48]      I
conclude that, while the remarks of [Mr. Johnson] are understandable, they are
not excusable and constitute a marked departure from what the Law Society
expects of its membership. I find that [Mr. Johnsons] words constitute
professional misconduct. I feel that a reasonable and proper response from [Mr.
Johnson] was to say nothing further. He should have bitten his lip and walked
away.

[49]      The
publics confidence in their public institutions, such as the courts, and the
integrity of the legal profession, are but a few of the underpinnings in
safeguarding a free and democratic society. The use of profanity by [Mr.
Johnson], a member of the legal profession and an officer of the court, towards
a potential witness in a case within the confines of the courthouse and within
the presence of others could have the effect of eroding public confidence in
these bodies and constitutes behaviour that I believe must be rebuked.

[51]      Even if litigation can
occasionally be hostile, aggressive and even fierce, that does not, in our
view, excuse the conduct of [Mr. Johnson]. If indeed the practice of litigation
has become aggressive and fierce, then it becomes even more important that the
Law Society, to the extent it can, control and limit the type of behaviour that
constitutes a marked departure from the conduct it expects from its members.

[12]

The
dissenting review board member found the hearing panel had erred in
disregarding Constable Bs conduct and that, under the circumstances,
Mr. Johnsons conduct, although wrongful, was excusable.

[13]

Mr. Johnson now advances two grounds of appeal. These are stated as
follows in his factum:

i.       The
Majority of the Review Board erred in applying an incorrect standard of review;
and

ii.       The Decision of the
Majority of the Review Board was unreasonable.

[14]

The first ground relates to what is sometimes referred to as the
internal standard of review. At the outset of its reasons the majority said
this with respect to that standard:

[4]        It was agreed by both parties that
the standard of review is correctness.  This applies to both the finding of
professional misconduct and the penalty imposed. Although this Review Panel is
bound by the findings of fact made by the hearing panel, if the hearing panel
applied the law in error and reached the wrong conclusion or determination, the
Review Panel may correct this with its own determination (see
Law Society
of BC v. Foo
, 2015 LSBC. 34 at paragraph 9;
Law Society of BC v. Harding
,
2015 LSBC 45 at paragraph 23).

[15]

As discussed in
Harding v. Law Society of British Columbia
, 2017
BCCA 171, 98 B.C.L.R. (5th) 275, Law Society review boards have with rare
exceptions, applied what has come to be known as the
Hordal/Berge
standard, named after the decisions in
Law Society of British Columbia v.
Hordal
, 2004 LSBC 36, and
Law Society of British Columbia v. Berge
,
2007 LSBC 7. In
Harding
, Justice Kirkpatrick described that standard as
follows (at para 6):

[T]he standard is correctness,
except where the hearing panel has heard
viva voce
testimony and had the opportunity to assess witnesses credibility, in which
case the review board should show deference to the hearing panels findings of
fact.

[16]

Mr.
Johnson does not challenge the
Hordal/Berge
standard. His complaint is
that the review boards reference to that standard was nothing more than boilerplate.
Mr. Johnson says the majority of the board did not conduct its own correctness assessment
of the facts but, rather, limited its consideration to whether the hearing
panels finding of professional misconduct was reasonable. In support of this
submission, Mr. Johnson places emphasis on certain passages from the majority
reasons.

[17]

I
am unable to accept this argument. When the majority reasons are read as a
whole, it is apparent that it based its decision on an independent assessment
of the facts found by the hearing panel. In other words, the majority applied
the correctness standard required by
Hordal/Berge
.

[18]

Mr.
Johnson next says that even if the majority applied the proper standard of
review, its decision is unreasonable. It is settled law that the reasonableness
standard of review applies on an appeal to this Court from a disciplinary
decision:
Harding
at para. 5.

[19]

Recently, in
Foo v. Law Society of British Columbia
, 2017 BCCA
151, 97 B.C.L.R. (5th) 148, this Court upheld a review boards finding of
professional misconduct against a lawyer who, in a courthouse hallway, told a
social worker whom he did not know, that he should shoot her, because she
takes away too many kids. In discussing the deference owed to the boards
decision (at para. 48), I quoted the following from the judgment of Justice D.
Smith in
Salway v. Association of Professional Engineers and Geoscientists
of British Columbia
, 2010 BCCA 94, 3 B.C.L.R. (5th) 213, leave to appeal
refd [2010] 2 S.C.R. vii:

[32]      The reasonableness
standard of review acknowledges that there is a range of possible, acceptable
outcomes which are defensible in respect of the facts and law. Reasonableness
requires courts to give deference to a professional bodys interpretation of
its own professional standards so long as it is justified, transparent and
intelligible.  [I]t is the disciplinary body of the professional organization
that sets the professional standards for that organization. So long as its
decision is within the range of reasonable outcomesi.e., it is justified,
transparent and intelligibleit is not for courts to substitute their view of
whether a members conduct amounts to professional misconduct.

[20]

With respect to law societies in particular, it has long been accepted
that benchers are in the best position to determine issues of misconduct and
incompetence:
Pearlman v. The Manitoba Law Society Judicial Committee
,
[1991] 2 S.C.R. 869 at 880 (
per
Iacobbuci J.). As Justice MacFarlane
stated in
Wilson v. Law Society of British Columbia
(1986), 33 D.L.R.
(4th) 572 at 575

576
(B.C.C.A):

What is and what is not
professional misconduct is a matter for the benchers to determine, and the
court must be very careful not to interfere with the decision of the benchers
for their decision is, in theory, based on a professional standard which only
they, being members of the profession, can properly apply.

[21]

I
do not accept Mr. Johnsons argument that the review board took what he
describes as a categorical approach, namely that any lawyer who swears in
anger in a courthouse will automatically be guilty of professional misconduct. It
is clear from the majoritys reasons that it proceeded on the basis that each
case is to be decided on its particular facts.

[22]

In
this case, the board took all of the circumstances into account. Those circumstances
include Constable Bs inappropriate behaviour and its effect on Mr. Johnson,
that Constable B was a potential witness in the trial in which Mr. Johnson
was then engaged, and that the incident occurred in the hallway of a courthouse.
Having done so, the majority concluded Mr. Johnsons use of profanity constituted
a marked departure from the conduct the Law Society expects from its members. With
reference to the language used in
Salway
to describe the application of the
reasonableness standard in the context of a professional discipline body, I am
unable to say the majoritys decision falls outside the range of acceptable and
defensible results.

[23]

I
would dismiss this appeal.

[24]

SAVAGE
J.A.
: I agree.

[25]

HUNTER
J.A.
: I agree.

[26]

FRANKEL J.A.
: The appeal is dismissed.

The
Honourable Mr. Justice Frankel