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Posted Tuesday, July 16, 2019:
R. v. Edwardsen,
2019 BCCA 259
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2019/07/16
Court of Appeal
Mr. Edwardsen appeals his conviction for various firearms and drug offences on the basis that his waiver of his right to be present for the tendering of certain evidence on a voir dire did not extend to the tendering of that evidence directly at the trial proper. Accordingly, he submits his trial should be declared a nullity. He also appeals on the basis that the judge erred in his exercise of discretion regarding two matters at a Vukelich hearing. Held: appeal dismissed. Mr. Edwardsen waived his right to be present for the tendering of Constable Fulcher’s evidence at trial. While the parties expected the admissibility of that evidence might be tested in a voir dire, they always contemplated that a voir dire might not be necessary. The judge did not commit an error in principle in his exercise of judicial discretion in determining whether to hold a voir dire. The judge exercised his discretion judicially in very difficult circumstances.
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R. v. Gill,
2019 BCCA 260
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2019/07/16
Court of Appeal
The appellant appeals his conviction of possession of cocaine for the purpose of trafficking. When being arrested on a warrant to take an impression of his fingerprints, an envelope fell from him. After moving the envelope, propping it upright on the police vehicle’s front passenger seat, an officer saw inside it and recognized it as likely a brick of cocaine, and seized it without a warrant. When testifying about the chain of custody of the exhibit, the officer changed his evidence about some of the details of movement of the exhibits, after considering his evidence overnight. Held: Appeal dismissed. The trial judge found the officer to be credible and reliable. There is no appealable error in the judge’s conclusion that the officer was entitled to seize the cocaine brick without a warrant under the plain view doctrine. The judge also made no error in finding the officer to have simply made an honest mistake in his evidence regarding the movement of exhibits. The judge was entitled to conclude that the Crown proved beyond a reasonable doubt that the substance that tested positive for cocaine was the object in the envelope.
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R. v. Shanoss,
2019 BCCA 249
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2019/07/16
Court of Appeal
Mr. Shanoss was designated a dangerous offender and sentenced to an indeterminate sentence. On appeal, he seeks an order that the indeterminate sentence is set aside and a new hearing is ordered on the basis that the judge erred in refusing him an adjournment to obtain a stand-alone Gladue report and the sentence was imposed without sufficient Gladue-related evidence before the court. Held: appeal dismissed. The judge took steps, without the need for an adjournment, to ensure she had the necessary information and to rectify the record in light of its deficiencies that counsel identified. What matters is that a judge has an adequate record; the Gladue information in that record does not need to be from a stand-alone Gladue report: R. v. Lawson, 2012 BCCA 508 at para. 27. Mr. Shanoss has not indicated what evidence was available to him that should or could have been before the judge. The judge did not fail to ensure that Mr. Shanoss’s Aboriginal circumstances were considered as required by s. 718.2(e) of the Code.
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Posted Monday, July 15, 2019:
Colwill v. Workers’ Compensation Board,
2019 BCCA 261
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2019/07/03
Court of Appeal
By the order appealed, one policy and a portion of another policy of the Workers Compensation Board addressing the calculation of periodic compensation payments, were set aside. The Workers Compensation Board applied for a stay of the order pending appeal.
The respondent consented to the order on the basis of arrangements made between the parties. Held: the criteria for a stay of the order are satisfied.
On the issue of irreparable harm, the comments of Justice Harris in British Columbia Teachers’ Federation v. British Columbia 2014 BCCA 75 of presumption of irreparable harm if the judgment, setting aside legislation, is not stayed, are applied.
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Posted Friday, July 12, 2019:
R. v. Louie,
2019 BCCA 257
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2019/06/25
Court of Appeal
Mr. Louie was convicted of aggravated sexual assault and sentenced to seven years’ incarceration. He applies for bail pending appeal. Held: application dismissed. Although the appeal has merit, and Gladue factors are relevant to bail pending appeal, Mr. Louie lacks a solid release plan. There is insufficient information to show how the proposed release plan would be acceptable to a reasonable member of the public. Therefore, the public interest in the enforceability of his conviction outweighs the interest in its reviewability.
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