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Posted Friday, January 27, 2023:
R. v. Dhillon,
2023 BCCA 38
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2023/01/27
Court of Appeal
The appellant appeals his conviction on a number of firearm offences. During a Motor Vehicle Act stop, the police noted that the appellant appeared startled when the police drove past him in a high crime area, his car was registered to an individual much older than him, he drove off rapidly in the opposite direction, and he appeared agitated and nervous when he was pulled over. The police decided to conduct a pat down search because of safety concerns arising from the appellant’s behaviour, and when the officer attempted to do this, she noticed the appellant tried turning one side of his body away from her where he had a bag hanging across his body. The police observed what they believed to be drug paraphernalia and detained the appellant for a drug investigation. The police then advised the appellant of his right to counsel. Upon continuing the pat down search, the police felt a gun in the appellant’s bag and arrested him, and further advised him of his Charter rights. The appellant’s access to counsel was not facilitated until he was transported to the Vancouver jail. On appeal, the appellant alleges that the trial judge erred in finding that his ss. 8 and 10(b) Charter rights were not infringed.
Held: Appeal dismissed. With respect to the s. 8 issue, the trial judge did not err by applying the wrong legal test for justifying the police’s safety search incidental to investigative detention. The law does not require an imminent threat for such a search to be lawful, and doing so would set too high a bar and prevent the police from taking immediate steps to address risks to their safety and that of the public. Rather, the threshold standard is whether the officer had reasonable suspicion to believe that the detainee may pose a threat to the officer or the public.
With respect to the s. 10(b) issue, the trial judge did not err by finding that the failure of police to provide access to counsel at the roadside when the appellant was arrested violated his s. 10(b) rights. The right to have access to counsel “without delay” does not mean the duty to facilitate access must be near immediate. It was reasonable for the police to consider the surrounding circumstances and conclude that it would not be practical or safe to provide the appellant with access to counsel roadside.
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R. v. Mohsenipour,
2023 BCCA 6
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2023/01/10
Court of Appeal
The appellants were jointly tried in the Supreme Court for multiple offences arising out of an “escort” service they operated in Vancouver and Edmonton. They were convicted of all counts in which they were named as an accused, and sentenced to substantial, cumulative periods of imprisonment. They appeal from their convictions on multiple grounds, alleging legal errors and a deprivation of their right to make full answer and defence by the Crown’s non-disclosure of relevant material.
HELD: appeals from conviction allowed, but only for the purpose of entering a conditional stay against four convictions on the basis of the “Kienapple principle”. The appellants have not established unreasonable verdicts; legal error by the trial judge; or a miscarriage of justice. The non-disclosure of information from an unrelated prosecution file does not justify appellate interference. There is no reasonable possibility that with the benefit of this information, the trial judge might have had a reasonable doubt as to guilt. Nor is there a reasonable possibility that the non-disclosure affected the overall fairness of the trial.
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R. v. Zsombor,
2023 BCCA 37
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2023/01/27
Court of Appeal
The appellant was convicted of aggravated assault. He appeals on the basis that the trial judge erred in his application of the self-defence provision under s. 32(1) of the Criminal Code, by conflating the second and third elements of the offence and by concluding that the appellant’s actions were not for a defensive or protective purpose. He also argues that the judge erred in failing to consider the defence of consent, a matter that had not been put in issue at trial. Held: Appeal dismissed. The trial judge did not conflate the elements of self-defence; he properly considered the appellant’s subjective state of mind at the time of the incident and determined that the appellant did not act for a defensive or protective purpose. The appellant’s other arguments regarding self-defence were attempts to have this court reweigh the evidence, which is not its role. Regarding the defence of consent, the trial judge addressed consent as an element of aggravated assault. As consent was not a live issue at trial, the judge sitting without a jury, was under no obligation to address it further.
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Singh v. Grewal,
2023 BCCA 44
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2023/01/20
Court of Appeal
The applicants were not parties to the petition below and seek standing for leave to appeal an order of the Supreme Court of British Columbia that directed the Khalsa Diwan Society of Abbotsford to hold a general election and to use the membership list from April 2018 for its election. The applicants at least implicitly claim to be voting members who were admitted after 2018. The applicants also seek an extension of time to file their notice of appeal. Held: Application dismissed. The applicants have not met the test for standing and leave to appeal because they have not established that they are voting members of the Society. The onus is on the applicants to show they have an interest adversely affected by the decision. There is no basis to grant standing and leave to appeal. As they fail to meet this threshold, their application for an extension of time is also dismissed.
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Posted Thursday, January 26, 2023:
Facebook, Inc. v. Douez,
2023 BCCA 40
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2023/01/26
Court of Appeal
The applicant is the representative plaintiff in a class action commenced against Facebook, Inc. On a summary trial application, the judge found in favour of the certified class on several common issues related to liability but determined that common issues relating to damages required a conventional trial. Facebook has appealed the order with respect to liability issues. The applicant seeks to stay that appeal on the basis that the trial judge has yet to decide the damages issues. Held: Application dismissed. While there is a general aversion to “litigation in slices”, it may be appropriate to permit an appeal to proceed where it would obviate the need for further proceedings in the trial court. Here, if Facebook achieves success on the appeal, then either the need for the damages trial will disappear, or the length, complexity, and cost of that trial will be reduced. The cases the applicant relied on are distinguishable, as here the issues were already bifurcated at the trial level, and a stay would cause a significant delay in the hearing of the appeal. Further, there is no merit to the applicant’s submissions that not staying the appeal would give Facebook two attempts to reargue the same issue, that the division hearing the liability appeal might say something embarrassing to a division hearing a damages appeal, or that the appeal might tie the hands of the trial judge. Finally, there is minimal risk that the liability appeal will not be decided in advance of the damages trial.
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Flynn v. Woodward,
2023 BCCA 45
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2023/01/20
Court of Appeal
The appellant seeks a stay of orders adjourning applications, setting time limits for submissions on an application, and dispensing with her signature on the form of the order. She argues that the orders were made as result of judicial bias, and that she will suffer irreparable harm if the applications proceed. Held: Application dismissed. The provision dispensing with the appellant’s signature on the order was a procedural direction and not an appealable ‘order’ under the Court of Appeal Act. The orders adjourning applications and setting time limits for submissions are limited appeal orders under Rule 11(e) of the Court of Appeal Rules and the appellant has not applied for leave to appeal. Even if leave was not required, the appellant would not satisfy the requirements for a stay.
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R. v. Richardson,
2023 BCCA 29
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2023/01/25
Court of Appeal
The appellant appeals his conviction on charges of possession for the purpose of trafficking. He alleges that the trial judge erred in law in his approach to circumstantial evidence by reversing the burden of proof and failing to consider all reasonable possibilities inconsistent with the appellant’s guilt. Held: Appeal dismissed. The trial judge did not commit the legal errors alleged by the appellant. The trial judge’s verdict is reasonable.
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Raiwal Holdings Ltd. v. Fraser Valley Packers Inc.,
2023 BCCA 46
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2023/01/23
Court of Appeal
The appellant seeks leave to appeal an order made in foreclosure proceedings, and a stay of proceedings. The appellant owed debt to the respondent, and executed a mortgage to secure that pre-existing debt. The appellant failed to pay the amount owing as of the maturity date of the mortgage. The trial judge rejected the appellant’s limitation defence. The appellant argues that the trial judge erred in failing to distinguish between the limitation period applicable to a claim in debt and the limitation period applicable to the enforcement of a mortgage. The respondent agrees that if leave is granted, there should be a stay of proceedings. Held: Leave to appeal and stay of proceedings granted. The appellant has identified an arguable case of sufficient merit that the debt and security obligations were subject to different limitation periods. The point raised is of some importance to practice in respect of mortgages and insolvency. The point raised concerns the final determination of the action, and so is of significance to the parties and the appeal itself. The appeal will not unduly hinder the progress of the action, as the redemption period can be extended.
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Uriarte v. Purewal,
2023 BCCA 42
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2023/01/24
Court of Appeal
By consent, appeal allowed and special costs order set aside.
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Posted Wednesday, January 25, 2023:
Hemminger v. Law Society of British Columbia,
2023 BCCA 36
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2023/01/25
Court of Appeal
Law Society issued citation against petitioner Ms. H, alleging various infractions of the Legal Profession Act and Rules with respect to her handling of trust funds. In course of “facts and determination” phase, panel declined to admit evidence of a psychologist regarding Ms. H’s mental condition on basis it was irrelevant to the findings to be made in the first phase. Just before submissions were to be made in this first phase, Ms. H applied to “re-open” the hearing to adduce evidence of a doctor and two psychologists. Hearing panel denied the application without giving prior notice and without giving her an opportunity to argue the application. Counsel objected strongly and the panel quickly reversed its decision, indicating it would hear her argument. Ms. H declined to continue and sought an order prohibiting the panel from proceeding, arguing panel had ‘lost’ jurisdiction because it was allegedly biased against her. Court below dismissed her application on the basis of “prematurity”, finding that various factors weighed against judicial intervention at this stage.
Held: Appeal dismissed. Chambers judge had not exercised her discretion on a wrong principle or failed to consider relevant factors. “Exceptional circumstances” that would justify mid proceeding intervention had not been shown. Panel did not “lose” jurisdiction merely by reason of its mis step, which it had quickly reversed.
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Li v. Chao Yin Canada Group Inc.,
2023 BCCA 39
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2023/01/25
Court of Appeal
The respondent applies to dismiss as abandoned the appellant’s appeal of a trial judgment in which she was found liable in fraud to the respondent. The appellant notified respondent’s counsel of her intent to appeal shortly after the trial decision was rendered, but a full year passed before she filed a notice of appeal and an application for an extension of time. Instead of pursuing the appeal, the appellant made an assignment in bankruptcy. She never made the application for an extension of time. Held: The application is granted and the appeal is dismissed as abandoned.
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R. v. Clayton,
2023 BCCA 33
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2023/01/25
Court of Appeal
The appellant was designated a dangerous offender and was sentenced to an indeterminate sentence pursuant to Part XXIV of the Criminal Code. He appeals the designation and sentence on the ground the sentencing judge erred in law by placing weight upon his failure to participate in an interview conducted as part of a court ordered assessment by a psychiatrist, and a psychological assessment conducted for Crown Counsel. Held: Appeal dismissed. It was an error to consider the appellant’s refusal to answer questions on the assessments to be evidence of mistrust of persons in authority. However, the error did not result in a miscarriage of justice because there was ample evidence in the record of the appellant’s anti authority attitudes.
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Save-A-Lot Holdings Corp. v. Christensen,
2023 BCCA 35
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2023/01/25
Court of Appeal
The appellant appeals an order cancelling certificates of pending litigation (CPLs) under s. 256 of the Land Title Act [LTA] and setting the amount of security to be posted at $20,000. It also appeals orders dismissing applications to adjourn the s. 256 application to permit cross-examination on affidavits or further examinations for discovery. The appellant alleges that the chambers judge erred by (1) finding that hardship had been established on the evidence; (2) considering its claim to an interest in land only to the extent it was particularized rather than as pleaded; (3) failing to properly assess whether damages would provide an adequate remedy under s. 257(1)(a)(i) of the LTA; and (4) dismissing its applications to adjourn, being a consequence of the first three errors. Held: Appeal allowed with respect to the order cancelling the CPLs; appeal dismissed with respect to the orders dismissing the adjournment applications. The chambers judge erred by (1) giving no weight to relevant considerations on the question of hardship, resulting in a palpable and overriding error in his finding of hardship; and (2) failing to conduct any assessment of the probability of the appellant’s success and the possible range of damages in its claim to land as pleaded and relying only on the particulars provided to limit that claim to $20,000. The order cancelling the CPLs is set aside. There was no need to cancel the first CPL, as it had already been cancelled under a previous order. Given the inadequacy of the evidence of hardship, the application to cancel the second CPL is dismissed. There is no basis to intervene in the orders dismissing the adjournment applications despite the judge’s errors.
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Posted Monday, January 23, 2023:
Tietz v. Affinor Growers Inc.,
2023 BCCA 32
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2023/01/23
Court of Appeal
The parties sought clarification of reasons indexed at Tietz v. Affinor Growers Inc., 2022 BCCA 307, which address multiple appeals arising out of interlocutory orders made on applications to introduce or strike evidence filed in support of a petition for leave to bring secondary market claims pursuant to s. 140.8 of the Securities Act, and the substantive order made on the hearing of the petition. Held: The order dismissing the application to file Chan Affidavit #5 and the Hung Affidavit is set aside. No order nor admissibility ruling is made in relation to the Brusatore or Costin Affidavits in support of the outstanding petitions. The order in relation to the leave applications is amended to provide that leave is granted to advance the claim for secondary market misrepresentation under s. 140.3 of the Securities Act against Mr. Chaudry described in the amended notice of civil claim, other than claims arising out of the March 5, 2018 Affinor news release.
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