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Posted Thursday, September 17, 2020:
A.H.B. v. C.L.B.,
2020 BCCA 257
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2020/09/09
Court of Appeal
An appeal of interlocutory orders made by a judge in contested family law proceedings is dismissed as lacking utility given events unfolding in the trial court since the orders were made.
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R. v. Alfred,
2020 BCCA 256
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2020/09/10
Court of Appeal
The appellant was convicted and sentenced for sexual interference involving a 13 year old complainant. He was 12 or 13 years older than the complainant at the time of the offence. The appellant admitted to sexual activity, as well as knowing the complainant’s age. At trial, he brought a constitutional challenge to s. 150.1 of the Criminal Code, which denied him a defence of consent because of the complainant’s age. The challenge was dismissed. The appellant appealed from his conviction on the ground that the trial judge erred in his constitutional determination. Held: appeal dismissed. The constitutional challenge has no merit in light of jurisprudence from the Supreme Court of Canada holding that children under the age of 16 do not have the capacity to consent to sexual activity with adults and that sexual activity between adults and children is inherently exploitive.
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R. v. Edwards,
2020 BCCA 253
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2020/09/17
Court of Appeal
The appellant was convicted of having the control of the vehicle involved in the collision and, knowing bodily harm had been caused and being reckless with respect to whether death resulted, failing to stop his vehicle and give his name and offer assistance, with intent to escape civil liability, contrary to s. 252(1.3) of the Criminal Code, R.S.C. 1985, c. C-46. He says the trial judge erred in law in finding he was wilfully blind about whether bodily harm had resulted from the collision and reckless about whether death resulted from that bodily harm. He contends the judge failed to recognize the requirement of “heightened suspicion” to find wilful blindness, lost sight of the “person” requirement contained in s. 252 of the Criminal Code; and failed to recognize the necessary temporal connection between the actus reus and mens rea of s. 252 of the Criminal Code. Held: Appeal dismissed. There was no doubt the appellant’s vehicle struck the victim and caused his death, and that the appellant did not stop at the scene, identify himself and offer assistance. The sole issues, as identified by the trial judge, were whether he could draw the necessary inferences with respect to the appellants’ subjective appreciation of the need to make an inquiry, and whether there was evidence to counter the inference that he fled to avoid civil responsibility. There was no error in the analysis of those questions.
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Posted Tuesday, September 15, 2020:
Quinton v. Kehler,
2020 BCCA 254
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2020/09/15
Court of Appeal
On this appeal from numerous orders made by a chambers judge in a family matter there is one principal dispute: whether the judge erred in assessing the income of the payor spouse (the respondent) for the purpose of determining the amount of child support payable pursuant to the Federal Child Support Guidelines. The chambers judge held the respondent’s Guidelines income for support purposes was that described by s. 16: the “total income” at line 150 of his T1 form. The appellant argued that amount does not fairly reflect all the money available to the respondent for the payment of child support, and the court should determine his annual income, pursuant to s. 18, to include all of the pre-tax income of the corporation. Held: appeal allowed in part. The Guidelines set an amount of child support as a variable percentage of pre-tax income. The choice between s. 16 and s. 18 analyses is a choice of measuring rods where the objective is to select the most accurate measure of the payor’s pre-tax income. The Guidelines treat pre-tax income as an amount available to pay child support despite the fact that some portion of that amount will not be cash available after tax is paid. In this case, determining Guidelines income in accordance with s. 18 will fairly reflect all the money available to the spouse for the payment of child support.
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R. v. Pawar,
2020 BCCA 251
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2020/09/15
Court of Appeal
After arresting the appellant on drug-related charges, police officers conducted a warrantless search of his residence to clear its occupants in order to preserve evidence. A substantial quantity of drugs was later seized upon the execution of a warrant. The trial judge found that there were no exigent circumstances justifying the initial warrantless search. In assessing the seriousness of the Charter breach under s. 24(2), the judge found that the officer who authorized the warrantless entry acted in good faith. She also found that the presence of the appellant’s family members in the residence gave rise to a reasonable concern that evidence might be moved or destroyed. The judge admitted the evidence obtained during the warranted search and convicted the appellant of four counts of possession for the purpose of trafficking. The appellant challenges those convictions on the basis that the trial judge erred in her s. 24(2) analysis. Held: Appeal allowed and acquittals entered on all counts. The judge’s ruling reflects error in principle and an unreasonable factual finding on issues material to her assessment of the seriousness of the breach. Having concluded that there were no exigent circumstances justifying the warrantless search, it was not open to the judge to then rely on the officer’s ‘good faith’ as an extenuating circumstance that mitigated the seriousness of the breach. Nor was it consistent for the judge to conclude that the presence of the appellant’s family members in the residence gave rise to a reasonable concern that evidence might be moved or destroyed. Conducting the s. 24(2) analysis afresh, both the breach and its impact were serious. In all the circumstances, it is necessary for the Court to disassociate itself from the breach to preserve the repute of the administration of justice.
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