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Canadian Resort Development Corp. v. Swaneset Resort Ltd.,
2001 BCCA 5
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2001/01/02
Court of Appeal
Costs of trial on Scale 4 for plaintiffs, this court having struck an order for special costs. Yukon Appeals
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R. v. Flores-Escovar,
2001 BCCA 38
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2001/01/02
Court of Appeal
The appellant was convicted of a serious assault on the basis of the credibility of the complainant. Fresh evidence casts serious doubt about the credibility of the complainant. Held, there should be a new trial.
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R. v. McKenna,
2001 BCCA 2
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2001/01/02
Court of Appeal
Appellant appealing conviction for second degree murder. Trial judge in written instructions to jury fell into "Miller error" regarding jury s consideration of evidence. Evidence given by appellant only basis for a finding of guilty of lesser included verdict of manslaughter. Majority of court holding that error could have been significant in jury s consideration of evidence and conclusion as to degree of culpability of appellant for homicide. Dissenting judge would have dismissed appeal by reason of application of curative provision, having regard to strength of Crown case. New trial ordered. YUKON CASES
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R. v. Mitchell,
2001 BCCA 43
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2001/01/02
Court of Appeal
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R. v. Schmidt,
2001 BCCA 3
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2001/01/02
Court of Appeal
The appellant appeals against his convictions on one count of sexual assault and one count of assault causing bodily harm. Held, appeal dismissed. Crown counsel is not under a duty to conduct an investigation to obtain further information from various police forces around the province and elsewhere about matters not involving the accused and the complainant. The Crown counsel in this case, therefore, did not fail to meet his disclosure obligations. The appellant s application for further disclosure is dismissed as he could not demonstrate some legitimate use of the requested material if he had been in possession of it at the time of his trial. There is no inconsistency between the verdicts at trial in that the appellant was convicted and his co-accused was acquitted. There was no common charges brought against the appellant and his co-accused and the acquittal of the appellant s co-accused did not involve any adverse finding of credibility against the complainant.
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Rosvold v. Dunlop,
2001 BCCA 1
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2001/01/02
Court of Appeal
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Cdn. Helicopters Limited v. Interpact Forest Products Ltd.,
2001 BCCA 39
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2001/01/03
Court of Appeal
In a contract for the use of helicopter logging services, the defendant customers agreed to use a minimum of 1700 hours at $2,725 per hour in a one year period. The contract did not specify a maximum permissible downtime in any given period for maintenance or repairs. The defendant contended the contract was void for uncertainty as a result of this omission. The trial judge held that there was a complete contract and awarded the full amount claimed. The Court confirmed the trial judgment on both liability and quantum. An implied term in the contract requiring the plaintiff to make the helicopter available for the defendants' exclusive use was subject to the usual risks, including downtime for maintenance. Minimum downtime could not however be implied. The evidence supported the trial judge's award for the full amount claimed. The award of increased costs was set aside. Although there was a significant discrepancy between party and party costs and the plaintiffs actual costs, there was no other special circumstances which would justify an award of increased costs.
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R. v. Harry,
2001 BCCA 71
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2001/01/04
Court of Appeal
A new trial was ordered when an accused's statements to a police officer were admitted in evidence without a voir dire having been held or waived, and where there was evidence the accused was intoxicated at the time the statements were made.
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Ferguson v. All-Can Express Ltd. et al,
2001 BCCA 57
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2001/01/05
Court of Appeal
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Fraser Park South Estates Ltd. v. Lang Michener Lawrence & Shaw,
2001 BCCA 9
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2001/01/05
Court of Appeal
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Lau v. State of Australia and Tim Stiles,
2001 BCCA 40
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2001/01/05
Court of Appeal
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R. v. Beach,
2001 BCCA 7
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2001/01/05
Court of Appeal
The chambers judge approved a proposal under the Bankruptcy and Insolvency Act that included a clause effectively exempting the debtor from tax liability under s.88 of the federal Income Tax Act. This court sent the matter back for reconsideration because of illegality of the clause. Yukon Judgments
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R. v. Blue,
2001 BCCA 194
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2001/01/05
Court of Appeal
Appeal from conviction for theft dismissed; appellant having failed to show that the judge's verdict was unreasonable.
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R. v. Dennis,
2001 BCCA 30
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2001/01/05
Court of Appeal
Sentence appeal, arising from guilty plea of assault with a weapon, on grounds that sentencing judge erred in not considering and applying provisions in s. 718.3(e) of the Criminal Code when he was sentencing an aboriginal offender and by placing insufficient weight on efforts made towards rehabilitation between date of the offence and date of sentencing. Appeal allowed; sentence reduced to one of time served.
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R. v. Khan,
2001 BCCA 10
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2001/01/05
Court of Appeal
Application to re-open appeal dismissed.
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R. v. M.A.M.,
2001 BCCA 6
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2001/01/05
Court of Appeal
Appeal from conviction in Youth Court for sexual assault. Issue of whether trial judge erred in permitting five year old complainant to testify upon a promise to tell the truth. Appeal allowed and new trial ordered. Hall J.A. dissenting.
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R. v. Wilson,
2001 BCCA 8
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2001/01/05
Court of Appeal
Conviction Appeal Dangerous Driving Causing Death Impaired Driving Causing Death Appropriate Use of Evidence of Alcohol Consumption Whether Verdict was Reasonable and Supported By the Evidence Appeal against conviction for dangerous driving causing death. The appellant was acquitted on a second count of impaired driving causing death. The charges stemmed from a motor vehicle accident in which a passenger in a vehicle travelling in front of the appellant s vehicle was killed. The evidence showed that the right front corner of the appellant s vehicle collided with the left rear corner of the vehicle in front as the appellant attempted to pass, causing the driver of the front vehicle to lose control and crash. Several witnesses testified that after the accident the appellant appeared to be intoxicated. The appellant alleged that the trial judge improperly took alcohol consumption into account in finding the appellant guilty of dangerous driving and, in the alternative, that the guilty verdict was unreasonable and not supported by the evidence. Held: Appeal dismissed. Neither the reasons for conviction nor the reasons for sentence indicate that the trial judge took alcohol consumption into account when he found the appellant guilty of dangerous driving. It was not unreasonable for the trial judge to find the appellant guilty of dangerous driving causing death in the circumstances of this case.
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Coutlee v. R.,
2001 BCCA 32
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2001/01/08
Court of Appeal
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R. v. Paterson,
2001 BCCA 11
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2001/01/08
Court of Appeal
Paterson was convicted by a judge and jury of second degree murder. He was sentenced to life imprisonment with no parole eligibility for fourteen years. His conviction appeal was dismissed. This was his sentence appeal. It, too, was dismissed, with a dissent. These are observations about the functions of the sentencing judge and of the Court of Appeal in setting periods of parole eligibility.
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R. v. J.W.R.,
2001 BCCA 12
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2001/01/09
Court of Appeal
Appeal from conviction by jury on a number of offences relating to physical and sexual abuse of children. The trial judge did not commit reversible error when he did not summarize to the jury the arguments of the accused on the credibility of the Crown witnesses. He did err in his instruction on reasonable doubt by not contrasting the criminal standard of proof with the civil standard as required by R. v. Lifchus but this was a case in which to apply s. 686(1)(b) (iii). Appeal dismissed. Donald J.A. dissenting.
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R. v. R.B.B.,
2001 BCCA 14
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2001/01/10
Court of Appeal
The accused was convicted of historical sexual assault. After the Crown s closing address to the jury, the defence applied for a mistrial on the basis of alleged improprieties in the address. The mistrial application was refused. On appeal it was argued that the Crown s inflammatory jury address created an unfair trial and that any damage done was not remedied by the trial judge s charge to the jury. Held: Appeal dismissed. The Crown address to the jury did employ rhetorical excesses, intemperate language, stereotyping, and inappropriate speculation on events not in evidence, and thus did not meet the high standard of conduct expected of Crown counsel. However, it did not go so far as to deny the accused a fair trial. The trial judge adequately addressed the improprieties in her charge to the jury.
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R. v. Spanos,
2001 BCCA 34
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2001/01/10
Court of Appeal
Conviction appeal - Trafficking and possession of narcotics - Not criminally responsible on account of mental disorder - Whether verdict is unreasonable and contrary to the evidence. The appellant appeals his trafficking and possession convictions on the grounds that the trial judge failed to find him not criminally responsible on account of mental disorder and that the verdict was unreasonable and contrary to the evidence. Held, appeal dismissed. It is now clear that an accused may satisfy the defence of not criminally responsible pursuant to s. 16 of the Criminal Code if he can prove on a balance of probabilities that by reason of his mental disorder, he was incapable on knowing that his act was morally wrong. ON the whole of the evidence, the trial judge did not err in concluding that the appellant had failed to prove on a balance of probabilities that his delusions made him incapable of appreciating that his conduct was morally wrong according to the standards of reasonable members of society.
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R. v. Wallace,
2001 BCCA 19
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2001/01/10
Court of Appeal
Appeal of conviction for dangerous driving causing bodily harm dismissed as there was evidence from which a properly instructed jury, acting judicially, could reasonably have convicted.
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Roxul (West) Inc. v. McCarthy Tetrault,
2001 BCCA 20
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2001/01/10
Court of Appeal
Application for stay of judgment Applicant having contractual right to a fund held in escrow to meet claims arising out of a sale of assets agreement Respondent taking position that claim of applicant is for damages for breach of covenant in purchase sale agreement and asserting that what applicant seeks is pre-judgment security where claim for damages Respondent asserts no irreparable harm in principle Stay granted.
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Ward v.Zackon,
2001 BCCA 58
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2001/01/10
Court of Appeal
Appeal from order of Lowry, J. dismissing an application to set aside a settlement as unconscionable dismissed for reasons given by the trial judge.
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Buschau v. Rogers Communications Inc.,
2001 BCCA 16
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2001/01/11
Court of Appeal
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Collins v. Abrams et al.,
2001 BCCA 22
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2001/01/11
Court of Appeal
The B.C. Human Rights Tribunal has jurisdiction to decide the constitutionality of s.7(1)(b) of its enabling statute as well as issues of institutional bias and lack of independence. The Chambers judge did not err in the exercise of her discretion on a petition for judicial review to remit the case to the Tribunal so that it could complete its task by deciding these questions.
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Motyka v. Motyka,
2001 BCCA 18
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2001/01/11
Court of Appeal
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Murphy v. Mutual of Omaha Insurance Co.,
2001 BCCA 15
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2001/01/11
Court of Appeal
Leave to appeal is not required to appeal a determination the amount of "reasonable fees and disbursements of class counsel", which the insurance company had committed to pay under the terms of the settlement agreement resolving the class action. "Fees and disbursements" are not "costs" within the meaning of s. 7 of the Court of Appeal Act.
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R. v. Courtereille,
2001 BCCA 17
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2001/01/11
Court of Appeal
The court dismissed an appeal from a murder conviction. Errors were alleged in the trial judge s charge in respect of self defence, post-offence conduct, and the common sense inference of intent to murder.
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R. v. Prichard,
2001 BCCA 67
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2001/01/11
Court of Appeal
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Wieler et al. v. Eastman et al.,
2001 BCCA 54
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2001/01/11
Court of Appeal
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CU & C Health Services Society v. Sourdif,
2001 BCCA 51
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2001/01/12
Court of Appeal
Application to review orders refusing leave to appeal dismissed. No merit in the proposed appeals.
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R. v. Bough,
2001 BCCA 23
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2001/01/12
Court of Appeal
Appeal from conviction by a jury on a robbery charge. Sole issue at trial was identification. Appeal allowed on ground that the verdict cannot be supported by the evidence.
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R. v. Pawliuk,
2001 BCCA 13
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2001/01/12
Court of Appeal
The appellants were both convicted of second degree murder and appeal their convictions based on alleged inadequacies in the trial judge s charge to the jury. The appellants also allege an abuse of process by the Crown in attempting to arrive at a plea bargain during the trial. Braidwood J.A. (Newbury J.A. concurring): The appeals are dismissed. The learned trial judge s charge to the jury adequately linked the defence of accident to the requirement of intent. In charging the jury on self-defence, the trial judge was correct in leaving only s.34 (2) and not s.34(1) of the Criminal Code with the jury. Section 34(2) applies whether or not the appellant intended to kill or cause grievous bodily harm to the deceased. The test in R. v. Pintar (1996), 110 C.C.C. (3d) 402 (Ont. C.A.) was met and leaving both ss. 34 (1) and (2) to the jury would have caused unnecessary confusion with no benefit to the appellant. The issue of provocation and how the actions of the deceased could affect the appellant s intent were also adequately addressed in the charge to the jury. Contrary to the submissions of the appellants, the jury charge as a whole does not leave the impression that the trial judge wrongly separated the actus reus and the mens rea. The trial judge s directions with respect to reasonable doubt were also adequate. There was no merit to the submission that the trial judge s charge to the jury was delivered so fast as to make it difficult to understand. There was no merit to the additional submissions that the offer of a plea bargain by the Crown made subject to the condition that it was only available if both accused accepted it constituted an abuse of process. The prosecution in this case did not unfairly renege on expectations that it had generated. There was no abuse of process. Ryan J.A. (concurring) (Newbury J.A. concurring) Ryan J.A. agreed with the disposition of the appeals as proposed by Braidwood J.A. but addressed more fully the submissions made with respect to self-defence. Both sections 34(1) and (2) of the Criminal Code may apply where the accused, in repelling an attack, did not intend to cause death or grievous bodily harm. Lack of intention alone does not require a trial judge to leave both subsections with the jury. What differentiates the sections is whether the accused reasonably apprehended that the attack on him or her was likely to cause his or her own death or grievous bodily harm. If the accused reasonably apprehended his or her own death or grievous bodily harm then he or she is entitled to the more favourable provisions of s. 34(2). This accords with the reasoning in R. v. Pintar (1996), 110 C.C.C. (3d) 402 (Ont. C.A.) which constitutes the law in British Columbia. The trial judge was correct in leaving only s. 34(2) with the jury.
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Vista Village Trailer Park v. District of Kitimat,
2001 BCCA 50
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2001/01/12
Court of Appeal
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Bartucci v. Jormanainen,
2001 BCCA 64
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2001/01/15
Court of Appeal
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R. v. Benji,
2001 BCCA 25
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2001/01/15
Court of Appeal
The two accused were jointly charged. One with murder and kidnapping, the other with manslaughter and kidnapping. Only the first accused was committed for trial on a preliminary inquiry as counsel for the other accused was not available. The Attorney General then preferred a Direct Indictment against both accused alleging against the first accused the precise offences on which he had already been committed for trial. Held: there is no authority to prefer a Direct Indictment for an offence on which an accused has already been committed for trial and the Direct Indictment against that accused was accordingly quashed. Appeal allowed with Reasons to follow.
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Dunbar v. Dunbar,
2001 BCCA 63
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2001/01/16
Court of Appeal
Appeal from the decision of a chambers judge dismissing the plaintiff's action under Rule 18A of the Rules of Court allowed and the action remitted to the Supreme Court. The chambers judge overlooked documentary evidence which was relevant to the plaintiff's claim.
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Korkut v R.,
2001 BCCA 61
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2001/01/16
Court of Appeal
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I.C.B.C. v. Allianz Insurance,
2001 BCCA 28
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2001/01/17
Court of Appeal
The insureds, using a rented vehicle, had public liability coverage under three policies, a fleet policy, a rental vehicle policy and a composite mercantile policy with motor vehicle coverage. The decision confirms the trial judgment that the fleet policy was first loss insurance, the composite mercantile policy responded next and there was no coverage for this loss under the rental policy.
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Klonarakis v. Gregg,
2001 BCCA 69
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2001/01/17
Court of Appeal
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Morgan v. Edwards,
2001 BCCA 29
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2001/01/17
Court of Appeal
Claim for expenses on passing of accounts by former administrator. Registrar refusing to recommend any award and Chambers Judge confirming recommendation. Appeal Court ordering award of a portion of sums expended on basis of benefit of some expenditures accruing to estate. Appeal allowed, in part.
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R. v. Charlish,
2001 BCCA 27
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2001/01/17
Court of Appeal
Application for leave to appeal sentence and appeal from sentence of six months incarceration (with recommendation by Provincial Court judge that the term be served on the electronic monitoring program), imposed on conviction for trafficking in marihuana, arising from a visit by the appellant to a friend at Matsqui Institution. Southin J.A.: Trial judge gave too much weight to general deterrence without evidence to warrant that weight. Appeal allowed; conditional sentence ordered.
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R. v. Scott,
2001 BCCA 24
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2001/01/17
Court of Appeal
The appellant was convicted by a Supreme Court judge sitting alone of several sexual offences. He alleged errors in a Charter delay issue, an issue relating to loss of an old R.C.M.P. file, analysis of the evidence and the onus of proof. The appeal is dismissed.
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R. v .Singh,
2001 BCCA 79
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2001/01/18
Court of Appeal
The appellant was acquitted of parking in a no-parking commercial zone contrary to a by-law passed pursuant to the Vancouver Charter. He argued that there were no notices that parking was prohibited and that he was unaware of the by-law. Held: Acquittal upheld, but not for the reasons given by the justice of the peace as upheld by the Supreme Court judge on appeal. Ignorance of the by-law was not a defence and the by-law was not one requiring that notices be posted.
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R. v. Davidson,
2001 BCCA 47
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2001/01/18
Court of Appeal
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R. v. Geary,
2001 BCCA 52
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2001/01/18
Court of Appeal
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R. v. Lane,
2001 BCCA 59
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2001/01/18
Court of Appeal
Crown appeal from acquittal of respondent on charges of dangerous driving causing death and injury. Appellant arguing that trial judge erred in adopting incorrect legal text for proof of offence. Court of Appeal dismissing appeal on basis that judge did not err in approach to requisite elements of offence.
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Callow v. British Columbia (Labour Relations Board) et al,
2001 BCCA 72
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2001/01/19
Court of Appeal
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