| |
Posted Friday, August 22, 2025:
R. v. Lee,
2025 BCCA 292
–
2025/08/22
Court of Appeal
The Crown seeks to appeal from a sentence of two years less a day, served under a Conditional Sentence Order (CSO), imposed for the offences of aggravated assault and possession of a dangerous weapon. The respondent stabbed the victim twice without provocation, relentlessly pursuing him and causing serious injuries. The respondent is a permanent resident of Canada but not a citizen. Imposition of a CSO avoided the respondent’s collateral immigration consequences, preserving his right of review for inadmissibility to Canada. The Crown appeals on the ground that the judge below placed excessive weight on collateral immigration consequences and imposed a sentence that was demonstrably unfit.
Held: appeal allowed. While collateral consequences can be considered when crafting a sentence, they cannot be used to reduce a sentence to the point that it is disproportionate to the gravity of the offence and the moral blameworthiness of the offender. In the context of the gravity of the offence and the absence of significant mitigating factors, a sentence of two years less a day served in the community was an unjustified departure from the principle of proportionality. Here, the gravity of the offence and the respondent’s blameworthiness required a significant penitentiary sentence. Further, the judge failed to consider properly the availability of a CSO in light of the dangers posed by the respondent serving his sentence in the community. A fit sentence for the respondent is 42 months’ imprisonment, less credit for time served.
more ...
|
R. v. Moshfeghi Zadeh,
2025 BCCA 293
–
2025/08/22
Court of Appeal
The Crown appeals from a decision acquitting the respondent, Mr. Moshfeghi Zadeh, on charges of dangerous driving causing death and dangerous driving causing bodily harm. The charges arose from an incident in which the respondent drove into an intersection on a red light and was struck by another vehicle, causing the respondent’s vehicle to flip onto the sidewalk, seriously injuring one pedestrian (a father) and killing another (his infant child). The trial judge took into account that the respondent’s manner of driving prior to failing to slow and stop at the red light was unremarkable, and found that his conduct was indicative of a “momentary lapse” in attention lasting somewhere between three and five seconds prior to his entering the intersection on a red light. The judge held that the respondent’s manner of driving was dangerous (establishing the actus reus for the offences), but was not a marked departure from the standard of care expected of a reasonable person in the circumstances (as required to establish the mens rea for the offences). The Crown argues on appeal that the trial judge erred in law in multiple respects.
HELD: Appeal dismissed, Justice Willcock dissenting.
Majority (per Justice Riley; Chief Justice Marchand concurring): Although at one point in the reasons the trial judge misstated the law, the error was isolated and not reflective of a misapprehension of the legal test for proof of the objective fault element for dangerous driving. The trial judge’s conclusion that the respondent’s conduct was not a marked departure from the standard of care expected of a reasonable person in all the circumstances was a question of mixed fact and law that was not tainted by any extricable legal error.
Dissent (per Justice Willcock): The trial judge erred in holding that a momentary lapse of judgment without more cannot establish the mens rea of the offence of dangerous driving. Her assessment of the evidence was founded upon that error in principle and the judgment was tainted by the error. The judge’s engagement with the evidence focused on establishing the duration of the lapse in attention and evidence relating to the circumstances of the offence was discounted. The acquittal should be set aside and a new trial ordered pursuant to s. 686(4) of the Criminal Code.
more ...
|
Posted Thursday, August 21, 2025:
Airbnb Inc. v. Ware,
2025 BCCA 298
–
2025/07/31
Court of Appeal
The appellants apply for a stay of proceedings pending their appeal of the decision below certifying the action as a class proceeding and dismissing the jurisdictional challenge of two of the appellants. Held: Application dismissed. The appellants did not demonstrate that irreparable harm would result from the refusal of a stay, and the balance of convenience favours the respondent. The prejudice to the respondent, and class members, in delaying their presumptive entitlement to proceed with the class action outweighs any inconvenience to the appellants in having to engage in limited discovery steps before their appeal is determined.
more ...
|
Posted Monday, August 18, 2025:
Anderson Square Holdings Ltd. v. Zhang,
2025 BCCA 288
–
2025/08/18
Court of Appeal
This appeal concerns the interpretation of a termination clause in the contract between the appellant developer and the respondent presale purchasers. The appellant submits the judge erred in interpreting the clause as providing for the automatic extension of the contract beyond the Outside Completion Date in the event of delay beyond the reasonable control of the developer. In the alternative, it submits the judge erred in finding no duty on the respondents to mitigate and in assessing damages.
Held: Appeal allowed. The judge erred in his interpretation of the termination clause. The appellant was entitled to terminate the contract when construction could not complete by the Outside Completion Date. There was no breach of contract, and it is therefore unnecessary to consider the other grounds of appeal.
more ...
|
Email page
Print page