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Posted Monday, June 24, 2019:
Araya v. Nevsun Resources Ltd.,
2019 BCCA 205
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2019/06/10
Court of Appeal
Appeal from case management judge’s order declaring that the plaintiffs impliedly waived solicitor-client privilege over communications and documents related to their claims up to and including their first meetings with Canadian counsel by virtue of having pled postponement of the running of the limitation period until they accessed legal advice in Canada. Plaintiffs also appeal the order that they disclose the terms of a retainer with a third-party non-lawyer. Held: appeal dismissed. Fairness and consistency require the plaintiffs to disclose all communications and documents related to the pursuit of their claims up to and including the contents of their first meetings with Canadian counsel to allow the defendant to test what knowledge they had or was available to them in respect of their claims. Further, the judge did not err in ordering disclosure of the third party retainer in order to assist in determining whether related communications are protected by litigation privilege.
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British Columbia Civil Liberties Association v. Canada (Attorney General),
2019 BCCA 228
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2019/06/24
Court of Appeal
The Attorney General of Canada appeals from an order declaring ss. 31–33 and 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which pertain to the administrative segregation of inmates in federal penitentiaries, to be of no force and effect to the extent that they violate ss. 7 and 15 of the Charter of Rights and Freedoms. The order declared that the impugned provisions: (1) unjustifiably infringe s. 7 of the Charter and are of no force and effect to the extent that they authorize and effect (a) prolonged, indefinite solitary confinement, (b) the institutional head to be the judge and prosecutor of his own cause, (c) internal review of placements in administrative segregation, and (d) the deprivation of inmates’ right to counsel at segregation review hearings; and (2) unjustifiably infringe s. 15 of the Charter to the extent that they authorize and effect (a) any period of administrative segregation for mentally ill and/or disabled inmates, and (b) a procedure that results in discrimination against Aboriginal inmates. The judge also found that CSC had denied inmates their right under s. 97(2) of the Corrections and Conditional Release Regulations, SOR/92-620, to retain and instruct counsel without delay upon being placed in administrative segregation. He declined, however, to make a declaration in relation to this finding, concluding that such a claim was more properly brought by an individual inmate seeking relief under s. 24(1). On appeal, the Attorney General challenges all aspects of the order except paragraph 1(b). The Attorney General argues that the impugned provisions are constitutionally valid but have been applied by CSC in an unconstitutional manner.
Held: Appeal allowed in part. The judge did not err in finding that the impugned provisions unjustifiably infringe s. 7 and are of no force and effect because they authorize indefinite and prolonged administrative segregation in conditions that constitute solitary confinement, and authorize internal rather than external review of decisions to segregate inmates in solitary confinement. He did err, however, in concluding that it was necessary to strike down the legislation because it does not expressly confer upon inmates the right to counsel at segregation review hearings. The judge also erred in finding that the impugned provisions violate s. 15 in respect of either Indigenous or mentally ill and/or disabled inmates, as the discrimination he found is sourced in maladministration of the Act, not the Act itself. Paragraph 2 of the order is, accordingly, set aside. Instead, it is appropriate to grant declarations that CSC has, in its implementation of the administrative segregation provisions: breached its obligation under the Act to give meaningful consideration to the health care needs of mentally ill and/or disabled inmates before placing or confirming the placement of such inmates in segregation; and breached its obligation under the Act to ensure that inmates placed in administrative segregation are given a reasonable opportunity to retain and instruct counsel without delay and to do so in private. A declaration is also granted that inmates have a constitutional right to be represented by counsel on segregation review hearings.
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Lemieux v. British Columbia (Superintendent of Motor Vehicles),
2019 BCCA 230
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2019/06/24
Court of Appeal
The immediate roadside prohibition scheme under the Motor Vehicle Act, R.S.B.C. 1996, c. 318, permits a peace officer to issue an immediate roadside driving prohibition based on an analysis of a driver’s blood alcohol concentration conducted on an approved screening device or based on a driver’s failure or refusal to provide a breath sample. The scheme permits review of a driving prohibition in which the burden of proof falls on the applicant driver. The appellants brought a petition challenging the constitutional validity of the scheme, which was dismissed by the chambers judge. The appellants appeal, arguing the judge erred in concluding that placing the burden of proof on a driver does not breach s. 8 of the Charter because it presumes the reliability of peace officer evidence and screening results, and thus precludes meaningful review. They further argue the judge erred in interpreting and relying on statistical evidence. The appellants Ms. Swick and Mr. Wyborn also challenge the judge’s dismissals of their respective applications for judicial review of the decisions upholding their driving prohibitions.
Held: Appeals dismissed. The scheme does not breach drivers’ rights under s. 8 of the Charter. Placing the burden of proof on a driver in a review does not prevent a meaningful review process as it does not create a presumption of reliability of peace officer evidence and the grounds for challenging a driving prohibition are typically within the knowledge of the applicant. The statistical evidence relied on by the judge supported the conclusion that the scheme did not preclude meaningful review and the judge did not place undue weight on it. The adjudicator’s decision to uphold Ms. Swick’s driving prohibition was reasonable. There was no basis to interfere with his adverse assessment of Ms. Swick’s credibility or his conclusion concerning the functioning of the screening devices. On Mr. Wyborn’s review, the adjudicator’s assessment of credibility was reasonable, as was her decision not to consult technical materials in this case.
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R. v. Muir,
2019 BCCA 229
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2019/06/17
Court of Appeal
Appeal from convictions and sentence dismissed for want of prosecution and repudiation of the Court’s jurisdiction.
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Silverhill Homes Ltd. v. Borowski,
2019 BCCA 227
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2019/06/24
Court of Appeal
The corporate plaintiffs sold their interests in a land development company by way of share purchase agreements. They commenced an action seeking to rescind the agreements on the basis that the principals of the plaintiffs signed the agreements under coercion. The trial judge did not accept the evidence of the plaintiffs’ principals, finding they were not credible witnesses, and he dismissed the action. On appeal, the plaintiffs contend the judge committed a palpable and overriding error in finding the principals were not coerced into signing the agreements. Held: Appeal dismissed. The judge gave cogent reasons why he did not find the principals of the plaintiffs to be credible and why there was a rational explanation for them to have voluntarily signed the agreements. The judge’s finding that the plaintiffs’ principals were not coerced into signing the agreements is entitled to considerable deference, and his conclusion was not unreasonable.
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Solid Holdings Ltd. v. Grant Thornton Limited,
2019 BCCA 231
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2019/06/18
Court of Appeal
Solid Holdings appeals the order of the chambers judge finding it bankrupt. Solid Holdings appeals on the basis that the judge made a series of palpable and overriding errors of fact in relation to the interpretation of its agreement with Crystal Wealth, whether Solid Holdings committed an act of bankruptcy, and whether there was a bona fide dispute about the debt owing. Solid Holdings also submits for the first time on appeal that the judge did not have jurisdiction over this matter. Solid Holdings also applies for leave to introduce fresh evidence on appeal. Held: appeal dismissed. All of the findings of fact underlying the judgment were open to the judge on the evidence, and it has not been demonstrated that the judge misapprehended the evidence in any material respect. The fresh evidence is not admitted, as it does not meet several prongs of the Palmer test. The judge had jurisdiction over this matter because the application was properly brought to the Vancouver registry and the bankruptcy application does not depend on the registration in British Columbia of the receivership order.
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Posted Thursday, June 20, 2019:
Adams v. British Columbia (Superintendent of Motor Vehicles),
2019 BCCA 225
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2019/06/20
Court of Appeal
The Superintendent of Motor Vehicles and the Attorney General of British Columbia appeal an order setting aside the decision of an adjudicator to uphold an immediate roadside driving prohibition (“IRP”). A witness called the police after the respondent caused a minor collision while trying to park her vehicle. She gave a breath sample into an approved screening device (“ASD”) which indicated that her blood alcohol content was above the legal limit (a “fail” result). An adjudicator upheld the IRP on review. On a judicial review of that decision, the chambers judge held that the adjudicator erred in failing to assess the threshold reliability of the hearsay evidence of the witness and that the adjudicator’s decision was unreasonable. Held: appeal allowed. The respondent failed to meet her statutory burden of proof to show that she was below the legal blood alcohol limit despite the ASD “fail” result. The chambers judge erred in importing a requirement for a threshold reliability analysis of hearsay evidence into the IRP scheme and in his application of the reasonableness standard of review. The IRP is reinstated.
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R. v. Moazami,
2019 BCCA 226
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2019/06/20
Court of Appeal
Application for release pending appeals from convictions arising from two trials. In one, the appellant was convicted of multiple prostitution-related and sexual offences and sentenced to 17 years’ imprisonment. In the other, he was convicted of attempting to obstruct justice and breaching a court order and sentenced to a further three years’ imprisonment. The appellant seeks release on a recognizance with his mother as surety. His criminal record includes a number of convictions for offences committed in breach of court orders. Held: Application dismissed. The appellant has not established that, if released, he will not engage in criminal activity. His mother previously acted as his surety and was unable to ensure his compliance with court orders. In the absence of a suitable surety, electronic monitoring would not adequately address the appellant’s risk of reoffending.
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Posted Wednesday, June 19, 2019:
R. v. Heltman,
2019 BCCA 224
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2019/05/23
Court of Appeal
Application for leave to appeal the order of a summary conviction appeal judge dismissing appellant’s appeal from conviction and sentence. Held: application granted. The Crown concedes that the summary conviction appeal judge erred in law by mischaracterizing the trial judge’s error as a misapprehension of evidence rather than an error of law. As the appeal concerns the curative proviso in s. 686 of the Criminal Code, which is important to the administration of justice generally, and the appeal is not devoid of merit, it is in the interests of justice to grant leave.
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Weaver v. Ball,
2019 BCCA 223
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2019/05/21
Court of Appeal
Application to remove appeal from inactive list. Held: application granted. The delay was not inordinate, and resulted from counsel’s inadvertence and not the appellant’s. Further, the respondent is not prejudiced by the delay, and the appeal is not devoid of merit.
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Posted Tuesday, June 18, 2019:
R. v. Christhurajah,
2019 BCCA 210
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2019/06/18
Court of Appeal
The appellant was convicted of human smuggling under s. 117 of the Immigration and Refugee Protection Act. In the summer of 2010, the MV Sun Sea sailed across the Pacific Ocean and arrived in Canadian territorial waters. It carried 492 Tamil migrants fleeing the aftermath of war, all of whom claimed refugee status upon arrival. The Crown’s theory at trial was that the appellant was part of a human smuggling operation linked to organized crime. At the end of the appellant’s first trial, the judge declared a mistrial. The appellant was convicted at a retrial 60.5 months after he was charged. The trial judge instructed the jury that it was a defence to a charge under s. 117 for an accused to have been engaged in mutual aid with other asylum seekers. She instructed the jury that the appellant’s sole motivation must have been to aid the other asylum seekers and that the defence required “reciprocity of assistance”. She refused to charge the jury on a humanitarian aid defence. On appeal, the appellant argues that the charge must be stayed due to unreasonable delay in bringing him to trial. He alternatively argues that he is entitled to a new trial because the judge’s jury charge unduly narrowed the mutual aid defence and should have contained the humanitarian aid defence.
Held: appeal allowed in part; new trial ordered. The delay was predominantly caused by a mutual decision to await the outcome of a case that reached the Supreme Court of Canada. Pursuant to the analysis mandated by R. v. Jordan, 2016 SCC 27, this constituted defence delay and an exceptional circumstance and a stay cannot issue. The conclusions reached in the companion case R. v. Rajaratnam, 2019 BCCA 209, are applicable to this appeal. The humanitarian aid defence did not have an air of reality because no reasonable jury could conclude the appellant’s conduct conformed to humanitarian principles. However, the mutual aid defence has neither sole purpose nor reciprocal assistance requirements. The appellant is entitled to a new trial on that basis.
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R. v. Rajaratnam,
2019 BCCA 209
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2019/06/18
Court of Appeal
The respondents were acquitted of human smuggling charges laid under s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. In the summer of 2010, the MV Sun Sea sailed across the Pacific Ocean and arrived in Canadian territorial waters. It carried 492 Tamil migrants fleeing the aftermath of war, all of whom claimed refugee status upon arrival. The Crown’s theory was that the respondents were part of a human smuggling operation linked to organized crime. E was the captain of the ship. He testified that he boarded the ship as a passenger, then reluctantly took charge of the ship to avert disaster for all those aboard. R and M were not aboard the ship. The Crown’s theory was that they were involved in provisioning the vessel and organizing the transfer of the migrants. R and M’s defences focused on identification. On appeal, the Crown submits that the judge erred in charging the jury that the accused were entitled to acquittals if it concluded that they were involved in humanitarian aid or mutual aid, because humanitarian and mutual aid were defences without an air of reality. The Crown also submits that the judge erred in finding s. 36 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) [MLACMA], to be unconstitutional.
Held: appeals dismissed; MLACMA, s. 36, declared unconstitutional with respect to Crown evidence tendered in criminal trials.
The constitutional exceptions to s. 117 are defences rather than elements of the offence of human smuggling. The humanitarian aid defence has four elements: (i) the accused must act for the purpose of providing humanitarian aid, and not for the purpose of obtaining a financial or other material benefit in the context of transnational organized crime; (ii) the accused must provide aid in order to save the life or alleviate the suffering of an asylum seeker, which is a person from another state who intends to seek refuge in Canada from persecution or physical harm; (iii) the aid must be humanitarian, a question to be determined by the trier of fact in accordance with the principles of impartiality, neutrality, and independence; and (iv) the accused must reasonably believe that the person assisted is an asylum seeker. The mutual aid defence also has four elements: (i) the accused must act for the purpose of providing aid to a fellow asylum seeker, and not for the purpose of obtaining a financial or other material benefit in the context of transnational organized crime; (ii) the accused must be an asylum seeker; (iii) the accused must reasonably believe that the person assisted is an asylum seeker; (iv) the accused and the person they are assisting must have the common purpose of seeking refuge. There is no requirement of mutuality of effort. The family member aid defence is not a subset of mutual aid and can be raised by an accused who is not an asylum seeker.
Section 36 of the MLACMA fundamentally alters the rules governing the admissibility of hearsay and is inconsistent with an accused’s right to a fair trial. The declaration of unconstitutionality should be limited to Crown evidence in criminal proceedings.
The Crown has not demonstrated that there is a reasonable possibility that errors committed by the trial judge affected the verdicts. E was likely acquitted because his testimony raised a reasonable doubt about the mutual aid defence. R and M were likely acquitted because of the frailties in the Crown’s identification evidence.
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