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Posted Tuesday, December 7, 2021:
R. v. James,
2021 BCCA 453
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2021/12/06
Court of Appeal
The appellant appealed his sentence alleging that the judge relied on the wrong section of the Criminal Code (s. 650(2)(a)) rather than s. 475 in continuing the hearing in his absence. He also says the sentencing ought not to have continued without a psychiatric assessment. Held: Appeal dismissed. The judge did not err in relying on s. 650(2)(a) of the Code, which deals with an accused’s conduct in court, rather than s. 475, which deals with an accused who has absconded. The accused had misconducted himself when in court. His refusal to return to the video room to be present in court and the likelihood of further misconduct if he were forced to attend justified reliance on s. 650(2)(a). Further, the judge was entitled to proceed in the absence of the assessment. The offender had refused to cooperate with the assessment and the judge had ample information about the offender’s mental state to proceed.
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Posted Monday, December 6, 2021:
Alragheb v. Francis,
2021 BCCA 457
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2021/12/06
Court of Appeal
The appellant suffered injuries in two motor vehicle accidents. His own negligence contributed to the first but not the second. He seeks to set aside a finding at trial that he suffered an indivisible injury as a result of both motor vehicle accidents, and the manner in which liability was apportioned between himself and the tortfeasors. He argues the judge erred by creating a new rule that, in these circumstances, liability should be apportioned by giving equal weight to each accident. Held: Appeal dismissed. The trial judge did not err in finding the injury was indivisible. While the rule described and applied by the trial judge is inconsistent with the Negligence Act and the principles of tort law, which require liability to be apportioned by the degree to which each person was at fault, on the facts of this case, the apportionment was undisturbed after reassessment.
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R. v. Merkel,
2021 BCCA 445
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2021/11/29
Court of Appeal
Crown appeal from a conditional sentence order (CSO) of two years less one day imposed on the respondent following her guilty plea to one count of fraud over $5000. A bookkeeper, the respondent manipulated her employer’s payroll system for about ten months to direct company funds totaling about $109,000 into her own account. Her conduct inflicted substantial harm on the company. She had a substantial and related record. The Crown argues that the sentencing judge: (1) erred in principle by giving mitigating effect to the respondent’s claim that her opioid use and mental health contributed to her offending conduct; (2) erred in principle by concluding the CSO could be terminated if she failed to comply with the restitution order; (3) erred in principle by framing the main issue as the cost to the taxpayer of incarcerating Ms. Merkel; (4) erred by failing to give adequate effect to the principles of specific and general deterrence and denunciation when previous CSOs for similar crimes did not deter her; and (5) erred in law by imposing a CSO when it is precluded by s. 742.1(c) of the Criminal Code.
HELD: Appeal allowed. There was no evidence upon which the trial judge could reasonably conclude Ms. Merkel’s opioid use contributed to her offending conduct. In any event, this was a disputed fact on sentencing and the judge erred in principle by treating it as a mitigating circumstance without finding a link between the respondent’s mental health and her conduct. The trial judge also erred in principle by concluding that the CSO could be terminated if restitution was not paid, and by considering the cost of incarceration to the taxpayer. In any event, the sentence did not reflect the respondent’s high moral culpability or meet the principles of denunciation and deterrence. It is demonstrably unfit. A two-year custodial sentence is the lowest sentence that could reasonably be imposed. It is neither necessary nor appropriate in this case to undertake an analysis of the constitutional validity of s. 742.1(c).
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Posted Friday, December 3, 2021:
Bertolami v. Money Family Projects Ltd.,
2021 BCCA 456
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2021/12/03
Court of Appeal
The appellant appeals an order granting two easements for the benefit of property owned by the respondent as a remedy for an equity established under proprietary estoppel. The appellant contends the trial judge erred in granting a remedy beyond the minimum necessary to satisfy the equity by ignoring the respondent’s obligations to pay for the installation of services in return for the easements. He also appeals the costs award. The respondent contends the appellant should not be permitted to argue a position on appeal that it abandoned in the court below, and in any event, the judge properly applied the correct legal test to the facts he found and made no error warranting appellate intervention. Held: Appeal dismissed. The appellant did not abandon its position but rather maintained at trial that services were an important part of the arrangement. The grant of easements for right of access was proportionate to the respondent’s detriment and his reliance on the appellant’s promises. It would be inconsistent for the easements to include an obligation to pay for services when the easements did not include any rights to services and in light of the judge’s findings. There is no basis to interfere with the trial judge’s order for costs.
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Holzbauer v. British Columbia (Attorney General),
2021 BCCA 458
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2021/12/01
Court of Appeal
Application to quash an appeal brought by the Attorney General of British Columbia. The respondent has been in a protracted dispute with the Regional District of Kitimat-Stikine (“RDKS”) stemming from three convictions for bylaw infractions, one in 2014 and two in 2017. He swore four private informations against various bylaw officials who prosecuted the infractions. Three were stayed by the Crown and a provincial court judge declined to issue process on the fourth. The respondent then filed a free-standing Charter application alleging various Charter breaches by the RDKS, abuse of process in the investigation and prosecution of the bylaw infractions by the RDKS and RCMP, that the Crown was wrong to stay three of the private informations, and that the provincial court judge was wrong to not issue process on the fourth. The Charter application was dismissed. The appeal is from the dismissal of that application.
Held: Application granted. This Court does not have the jurisdiction to hear the respondent’s appeal. A challenge to a stay of a private information requires an application for certiorari in the British Columbia Supreme Court. Likewise, a challenge to a provincial judge’s refusal to issue process requires an application for mandamus and certiorari. Finally, a free-standing Charter application cannot be used to collaterally attack the appellant’s bylaw convictions.
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Posted Thursday, December 2, 2021:
Greig v. Desjardins Financial Security Life Assurance Company,
2021 BCCA 455
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2021/11/18
Court of Appeal
This appeal arises from an award of punitive and aggravated damages for the appellant’s breach of its duty of good faith in terminating the respondent’s long term disability benefits under a plan provided pursuant to a collective agreement. The appellant argues the trial judge erred in finding the British Columbia Supreme Court had jurisdiction and in awarding and assessing punitive damages. The respondent submits the appeal is moot and makes no submissions on the merits of the appeal. Held: Appeal dismissed. There is no present controversy between the parties. The lack of any effective reply to the appellant’s arguments is an unsurmountable obstacle to appropriate consideration of the legal disputes in question.
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Stapleton v. Stapleton,
2021 BCCA 454
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2021/11/16
Court of Appeal
Mr. Stapleton appeals a chambers judgment varying child support and refusing to vary spousal support. Held: Appeal allowed. There was a mathematical error in the calculation of child support. There was a change in circumstances that could be considered on an application to vary spousal support that was not addressed by the chambers judge. Because a further review of spousal support is available to the parties, in any event, the matter of spousal support was remitted for consideration on further review.
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