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Posted Tuesday, September 17, 2019:
Jerace v. British Columbia (Provincial Court),
2019 BCCA 320
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2019/09/17
Court of Appeal
The appellant appeals an order from the Supreme Court of British Columbia dismissing his certiorari application brought in respect of an order from the Provincial Court of British Columbia dismissing his application for access to youth justice court records under the Youth Criminal Justice Act, S.C. 2002, c. 1. The issue on appeal is whether the youth justice court record of a complainant in a sexual offence can be accessed by an accused when the application for the records is brought for the first time in the course of an appeal. Held: Appeal dismissed. The Mills regime under the Criminal Code does not allow for the release of YCJA records of a complainant in a sexual offence after the trial has been completed.
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Nouhi v. Pourtaghi,
2019 BCCA 324
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2019/09/12
Court of Appeal
Application to dismiss an appeal as moot granted. The appeal involves the validity of certificates of pending litigation cancelled on the basis the plaintiff’s pleadings were not adequate to support a claim to an interest in the properties. The plaintiff subsequently amended his pleading and filed new certifications against those properties.
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R. v. Cooper,
2019 BCCA 325
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2019/09/04
Court of Appeal
The appellant pleaded guilty to driving while prohibited and flight from police. He was sentenced to an effective sentence of nine months’ custody for each offence, to be served consecutively, and one year’s probation. The judge also imposed a five year driving prohibition for each offence, presumed to run concurrently. Crown acknowledged the sentencing judge erred with respect to the allowable length of driving prohibitions under s. 259 of the Criminal Code (now s. 320.24), given that notice of greater punishment by reason of previous convictions had not been provided to the offender under s. 727(1). Held: Appeal allowed to the extent of reducing the driving prohibition for flight from police from five years to three years plus time to be served, and for driving while prohibited from five years to two years plus time to be served, the prohibitions to run consecutively.
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R. v. Ruiz,
2019 BCCA 323
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2019/09/11
Court of Appeal
The appellant appeals from a sentence of 90 days’ imprisonment, to be served intermittently, imposed following a guilty plea to a charge of trafficking methamphetamine. The appellant was the owner and driver of a vehicle used to transport drugs that were being trafficked. The sentencing judge accepted that the appellant’s role in the transaction was a minor one. The appellant argues that the imposition of a custodial sentence was unfit, arguing that his sentence ought to have been suspended. Held: appeal dismissed. The sentence was within the appropriate range for the offence, and the judge did not err in imposing it.
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R. v. Wright,
2019 BCCA 327
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2019/09/13
Court of Appeal
Mr. Wright appeals his convictions for sexual assault and choking to overcome resistance to sexual assault. Held: appeal dismissed. The appellant has not established that the trial judge misapprehended the evidence or erred in his assessment of the complainant’s credibility or reliability.
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Squamish Nation v. British Columbia (Environment),
2019 BCCA 321
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2019/09/17
Court of Appeal
Under the Environmental Assessment Act, S.B.C. 2002, c. 43, British Columbia’s Minister of Environment and Minister of Natural Gas issued an environmental assessment certificate for the Trans Mountain Expansion Project containing 37 conditions. In doing so they relied upon an equivalency agreement made with the National Energy Board by which the Board’s assessment, by reason of ss. 27 and 28 of the Act, could stand in for a provincial assessment, in the interests of efficiency.
Squamish Nation and Chief Campbell (“Squamish”) challenged the British Columbia certificate, contending that British Columbia had failed to consult with them sufficiently prior to the Ministers’ decision. The judicial review judge dismissed the petition, finding the Province had met the standard for consultation, within the limits of its constitutional jurisdiction, that satisfied the honour of the Crown. After that order, the Federal Court of Appeal in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, set aside Canada’s approval of the Project on the basis: 1) the National Energy Board’s report to the Minister was fatally flawed in failing to include Project-related marine shipping within the scope of the “designated project” it was considering, and 2) that Canada had breached its duty to consult with Indigenous groups following the issuance of the Board’s report. Since that decision, the National Energy Board has engaged in further process and issued a reconsideration report, recommending again that the Project proceed. The reconsideration report amended portions of the original report, including some of the 157 conditions proposed, and added 16 recommendations. Canada has engaged in further consultation, and has reapproved the project. Canada’s approval is the subject of further Federal Court of Appeal challenge on the issue of consultation.
Squamish agrees British Columbia cannot refuse a certificate, but dispute the dismissal of their petition for judicial review of the province’s environmental assessment certificate on two grounds. They say that as a result of Tsleil-Waututh, the original report of the National Energy Board could not satisfy the requirements of the Act because it is not now the entire assessment of the National Energy Board. Second, they say the judge erred in finding British Columbia had satisfied its duty to consult.
Held: Appeal allowed to the extent only of remitting the conditions in British Columbia’s certificate to the Ministers for reconsideration in light of the changes to the original report of the National Energy Board as set out in its reconsideration report. Through no fault of the Executive Director of the Environmental Assessment Office or the Ministers, what is now Canada’s assessment – the reconsideration report – was not the assessment used in deciding to issue the certificate. On the question of British Columbia’s consultation with Squamish, British Columbia’s consultation and consideration of Squamish’s interests was reasonable and met legal requirements.
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Vancouver (City) v. British Columbia (Environment),
2019 BCCA 322
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2019/09/17
Court of Appeal
Under the Environmental Assessment Act, S.B.C. 2002, c. 43, British Columbia’s Minister of Environment and Minister of Natural Gas issued an environmental assessment certificate for the Trans Mountain Expansion Project containing 37 conditions, In doing so they relied upon an equivalency agreement made with the National Energy Board by which the Board’s assessment, by reason of ss. 27 and 28 of the Act, could stand in for a provincial assessment, in the interests of efficiency.
Vancouver challenged the British Columbia certificate, contending that the use of the equivalency agreement in the provincial process was non-compliant with the Act, and that the Province’s process breached procedural fairness. The judicial review judge dismissed the petition. He found that the equivalency agreement, combined with the provisions of the Environmental Assessment Act, allowed for the use to which the original report of the National Energy Board had been put, and he found that there was no breach of procedural fairness. After that order, the Federal Court of Appeal in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, set aside Canada’s approval of the Project on the basis: 1) the National Energy Board’s report to the Minister was fatally flawed in failing to include Project-related marine shipping within the scope of the “designated project” it was considering, and 2) that Canada had breached its duty to consult with Indigenous groups following the issuance of the Board’s report. Since that decision, the National Energy Board has engaged in further process and issued a reconsideration report, recommending again that the Project proceed. The reconsideration report amended portions of the original report, including some of the 157 conditions proposed, and added 16 recommendations. Canada has engaged in further consultation, and has reapproved the Project. Canada’s approval is the subject of further Federal Court of Appeal challenge on the issue of consultation.
Vancouver appeals from the dismissal of its petition on three grounds. It says, as in the companion appeal, Squamish Nation v. British Columbia (Environment), 2019 BCCA 321, that as a result of Tsleil-Waututh, the original report of the National Energy Board could not satisfy the requirements of the Act for an assessment because it is not now the entire assessment of the National Energy Board. Second, it says the judge misinterpreted the Act. Third, it says the judge erred in his conclusions on procedural fairness.
Held: Appeal allowed to the extent only of remitting the conditions in British Columbia’s certificate to the Ministers for reconsideration in light of the changes to the original report of the National Energy Board as set out in its reconsideration report. Through no fault of the Executive Director of the Environmental Assessment Office or the Ministers, what is now Canada’s assessment – the reconsideration report – was not the assessment used in deciding to issue the certificate.
On the issues of interpretation of the Act in respect to use of the equivalency agreement and of procedural fairness, no error is demonstrated. Further, the complaint of breach of procedural fairness should be dismissed on the basis of unreasonable delay, that being a one-year lapse of time between the appellant being advised, with an invitation to comment, of the procedure that would be (and was) followed, and the appellant filing its petition for judicial review, in circumstances in which it had not commented on the procedure as it was invited to do.
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Posted Thursday, September 12, 2019:
Santelli v. Trinetti,
2019 BCCA 319
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2019/09/12
Court of Appeal
The appellant husband advances numerous grounds of appeal from orders made following a contentious family trial. He challenges the judge’s findings as to the parties’ incomes, the value of certain assets, and the extent of his failure to disclose financial information. He seeks to adduce further evidence regarding his income and financial matters. He seeks to set aside the division of property, the judge’s interpretation of the marriage agreement, and the refusal of the judge to consider his claim for repayment of spousal support under an interim order. The respondent cross-appeals asking this Court to order lump sum child support. Held: Application to adduce further evidence dismissed. Appeal allowed in part. Cross-appeal allowed. The judge erred in reapportioning the matrimonial home to the respondent under s. 65(1) of the Family Relations Act. The matrimonial home is the separate property of the appellant pursuant to the terms of the marriage agreement. The economic consequences of the marriage breakdown are not unfair to the respondent if that agreement is upheld. The respondent’s pension benefits earned during the marriage are a family asset pursuant to the FRA and the marriage agreement does not alter the statutory scheme. The judge erred in failing to retroactively reduce the appellant’s spousal support payments. The respondent’s income for support purposes should include the rental income attributed to her from her family holdings. In light of the order on appeal regarding the matrimonial home and the other circumstances found by the judge, this is an appropriate case in which to order payment of lump sum child support.
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Posted Wednesday, September 11, 2019:
Evans v. New Westminster (Police Department),
2019 BCCA 317
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2019/09/11
Court of Appeal
Cst. Malcolm, Badge Number 315, served Mr. Evans with notice of a 24-hour driving prohibition pursuant to s. 215(3) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, at the police station. Cst. Malcolm had witnessed Mr. Evans’s showing signs of impairment at the roadside. The chambers judge set aside the prohibition because the notice was not served “on a highway or industrial road.” Held: appeal allowed; 24-hour driving prohibition reinstated. Although the text of the provision suggests that a notice of 24-hour driving prohibition can only be served at the roadside, it was reasonable for Cst. Malcolm to interpret the provision contextually and purposively to allow for service at the police station.
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Pacific Centre for Reproductive Medicine v. Medical Services Commission,
2019 BCCA 315
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2019/09/11
Court of Appeal
The appellant, the Pacific Centre for Reproductive Medicine (“PCRM”), applied to the Medical Services Commission for approval as a diagnostic facility pursuant to s. 33 of the Medicare Protection Act, R.S.B.C. 1996, c. 286. The Commission denied its application. PCRM’s petition for judicial review was dismissed. On appeal, PCRM says that the Commission’s decision was unreasonable primarily because the evidence showed there was medical need for its services, and because the Commission failed to proportionately balance its statutory objectives with the s. 7 Charter rights of its prospective patients. Held: appeal dismissed. The Commission’s decision was reasonable on the basis of the evidence before it. The Commission was not required to consider s. 7 of the Charter because PCRM did not establish a limitation of the Charter’s protections on the record before the Commission.
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