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Posted Friday, July 11, 2025:
Ke v. Zhang,
2025 BCCA 245
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2025/07/11
Court of Appeal
In this family law matter, Mr. Ke appeals each and every aspect of the trial judge’s order, except for the divorce. His principal argument is that his trial counsel took various positions without proper instructions, or contrary to his instructions. He also argues that the trial judge erred in failing to accept his position at trial on certain matters, including property division and child support. Held: Appeal allowed in part. This is not one of the “rarest of cases” where the appeal court will give effect to a claim of ineffective assistance of counsel in a civil matter. This conclusion is dispositive of the bulk of Mr. Ke’s grounds of appeal. With regard to the remaining grounds: (i) the trial judge erred in his determination of Ms. Zhang’s guideline income for the purposes of child support, and the appeal is allowed to the limited extent of increasing the quantum of Ms. Zhang’s retroactive and prospective child support obligations, and (ii) Mr. Ke has failed to show any other error in the trial judge’s decision.
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R. v. Quiqui,
2025 BCCA 244
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2025/07/11
Court of Appeal
The appellant challenges his conviction for sexual assault, alleging that the judge erred in assessing defence alibi evidence in isolation and solely on the basis that he accepted the conflicting evidence of the complainant.
Held: Appeal dismissed. The judge did not assess the evidence in isolation. He considered the evidence as a whole and rejected the defence evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the complainant’s conflicting credible evidence.
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Posted Thursday, July 10, 2025:
College of Physicians and Surgeons of British Columbia v. Madryga,
2025 BCCA 250
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2025/06/25
Court of Appeal
The appellant College of Physicians and Surgeons of British Columbia applies for a sealing order over certain material to be filed on this appeal on the basis that its disclosure may have been contrary to confidentiality provisions in the Health Professions Act. Held: Application dismissed. The applicant did not meet its burden of showing that court openness poses a serious risk to an important public interest in the unique circumstances of this case.
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R. v. Izzard,
2025 BCCA 214
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2025/06/24
Court of Appeal
This is an appeal from a global sentence imposed after a conviction on a guilty plea for aggravated assault, and four offences related to possession of weapons and breach of bail conditions. The appellant is an Indigenous and racialized person, and submits that the sentencing judge failed to fully consider the impact of this background in sentencing him. The Crown concedes that the judge’s discussion of the appellant’s background was brief, but says it was sufficient to withstand appellate scrutiny.
Held: Appeal allowed. Making due allowance for the fact that the reasons were delivered orally by a front-line judge at the end of an afternoon’s argument, they still fall short of the standard of sufficiency required, and a fresh sentence is warranted. Having regard to the aggravating and mitigating factors, and particularly the appellant’s background and the serious challenges he has faced throughout his life, a somewhat shorter sentence is warranted.
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R. v. J.J.K.G.,
2025 BCCA 234
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2025/07/10
Court of Appeal
The appellant was convicted of making and possessing child pornography, as well as two counts of voyeurism. The charges arose from images discovered on an app on the appellant’s phone, which were captured by a camera hidden in a USB charging device placed in a family bathroom. One count in the indictment specified that the appellant made “a video recording” of one of the complainants. In his sentencing reasons, the judge held that the Crown failed to prove that the thumbnail images which constituted child pornography were linked to videos, which reduced the seriousness of the offending.
On appeal, the appellant argues that the particular “a video recording” was an essential element of the charge, and that the judge’s finding at sentencing that the Crown failed to prove it undermined his decision to convict on all counts. The appellant also alleges the judge made palpable and overriding errors in assessing his credibility.
Held: Appeal dismissed. In the context of this case, the specification “a video recording” is a non-essential element of the offence and falls under the surplusage rule. Applying the surplusage rule in this context does not result in any prejudice to the appellant, and therefore the Crown’s failure to prove the particular does not undermine the judge’s verdict. In addition, the judge did not make any palpable and overriding errors in assessing the appellant’s credibility.
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VM Agritech Limited v. Smith,
2025 BCCA 248
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2025/07/04
Court of Appeal
The appellants’ application for an order extending time to serve a notice of appeal is granted. Applying the well-settled test for such an extension to these circumstances, and given the inconsistent decisions on whether an associate judge has jurisdiction to set aside a default judgment, this Court should consider the issue.
As a condition of granting the extension, the full amount of the judgment below and the two outstanding costs orders must be paid into court.
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Posted Wednesday, July 9, 2025:
R. v. Farac,
2025 BCCA 238
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2025/07/09
Court of Appeal
The appellant appeals from convictions of unlicenced possession of a loaded firearm and overcapacity magazine, and careless storage of a firearm. The police found the weapon and magazine in garbage containers inside the appellant’s residence. The police search arose after he threatened his former intimate partner who was moving out, and she called 9-1-1. At trial, the appellant submitted that a reasonable inference was that the gun belonged to someone else. On appeal, the appellant submits that the judge approached the circumstantial evidence improperly and while he now accepts it can be inferred that he owned the gun, the judge should have considered the reasonable inference that he may have abandoned the gun and magazine. Held: Appeal dismissed. The judge applied the proper approach to the circumstantial evidence, asking herself whether the evidence as a whole, including any lack of evidence, raised a reasonable inference other than guilt. There was a proper foundation for her conclusion that the appellant was in constructive possession of these items and the judge did not fail to consider a reasonable alternative inference inconsistent with guilt.
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R. v. Sharafi,
2025 BCCA 237
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2025/07/09
Court of Appeal
The appellant was convicted of one count of breaking and entering a dwelling house and committing an indictable offence and one count of sexual assault contrary to s. 271 of the Criminal Code. On appeal he contends the trial judge misapprehended the evidence in one respect and forgave inconsistencies in Crown evidence due to the passage of time but used the same kind and quality of inconsistency to reject the appellant’s evidence. He says the judge scrutinized the evidence unevenly. HELD: Appeal dismissed. The judge’s credibility assessment was not founded upon misapprehension of the evidence or tainted by an error in principle.
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The Friends of Fairy Creek Society v. Canada (Attorney General),
2025 BCCA 243
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2025/07/09
Court of Appeal
The appellant challenges a Supreme Court order striking its petition for declaratory relief relevant to the authorization of timber harvesting rights in TFL 46, a block of land on southern Vancouver Island. The appellant argues: (a) the judge asked the wrong question in deciding whether the petition advanced a reasonable claim; (b) underestimated the practical utility of the proposed declaration; and (c) mistakenly concluded that the petition sought a finding that Teal Cedar Products Ltd. has acted in contravention of federal legislation. HELD: Appeal dismissed. The appellant has not established reversible error that would allow for appellate interference. The judge asked the correct question under R. 9-5(1)(a) of the Supreme Court Civil Rules; did not err in concluding that the proposed declaration would not settle a live issue between the parties; and it was reasonably open to him to view the petition as an attempt to challenge the lawfulness of Teal Cedar’s conduct.
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Posted Tuesday, July 8, 2025:
Gierc Jr. v. Wescon Cedar Products Ltd.,
2025 BCCA 239
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2025/07/08
Court of Appeal
The court ordered the respondents to purchase the shares of the appellants as the remedy for the appellants’ successful oppression claim. The appellants challenge the judge’s dismissal of other remedies they sought and submit that the judge erred in valuing the shares.
Held: Appeal dismissed. The judge made no reviewable error in exercising her discretion not to make the other compensatory orders the appellants sought. Her valuation of the shares was based on the evidence before her and discloses no reviewable error.
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Nova-BioRubber Green Technologies Inc. v. Canada (National Research Council),
2025 BCCA 240
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2025/07/08
Court of Appeal
Appeal from an order striking the appellant’s petition for judicial review without leave to amend. The appellant is a business developing technology to manufacture hypoallergenic bio-latex from plants. It submitted unsolicited applications for funding to each of the respondents, which were denied. The appellant filed a petition for judicial review of those decisions, and the respondents filed applications to strike the petition. The chambers judge struck the petition without leave to amend. The appellant appeals that decision.
Held: Appeal dismissed. The chambers judge did not err in finding that all but one of the appellant’s claims fell outside of the scope of judicial review. The judge was correct that the Federal Court has exclusive jurisdiction to judicially review the decisions of the respondent National Research Council Canada. There was no basis for the appellant’s claim that its applications had to be reviewed by independent external experts in its field. The appellant’s arguments that the chambers judge and decisionmakers were biased are without merit.
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R. v. Abbas,
2025 BCCA 236
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2025/07/08
Court of Appeal
The appellant, Mr. Abbas, was sentenced on nine offences in connection with a series of property crimes. The sentence was 24 months in jail (consisting entirely of credit for time spent in pre-sentence custody), together with a 24-month probation order. Mr. Abbas submits that the sentencing judge erred in principle by failing to adequately account for his personal circumstances — more specifically, the impact of racial and cultural marginalization and his subsequent development of a substance use disorder on his offending conduct — when determining the sentence. Mr. Abbas also applies to adduce fresh evidence.
Held: Leave to appeal granted but appeal dismissed. Application to adduce fresh evidence dismissed. A contextual review of the reasons for sentence shows that the sentencing judge gave due consideration to Mr. Abbas’s personal circumstances. The reasons reflect the sentencing judge’s understanding that the social pressures Mr. Abbas faced in his youth and early adulthood contributed to his development of a substance use disorder, which in turn became a key driver of his offending behaviour. The judge took all of this into account in determining a fit sentence. As there was no error in principle affording a basis for revisiting the sentence, the fresh evidence application is dismissed.
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