B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

CRIMINAL LAW 2001

• 2001 BCCA 749 R. v. Stewart
  Application for release pending conviction appeal on ten (10) counts of sexual offences. In opposing the release, the Crown did not argue that the appeal was frivolous or that the appellant would not surrender himself into custody. Rather, the Crown argued that the grounds of appeal were so weak that the public interest demanded that the appellant not be released. Reasoning with R. v. O'Connor (1988) 123 C.C.C. (3d) 487 applied including observation of Macfarlane, JA, for the Court, that in R. v. Farinacci, Arbour, JA did not decide that weak grounds of appeal, by themselves, was a basis for refusing release. Release on conditions granted.
• 2001 BCCA 745 R. v. Nikkell & Synderek
  Sentences of 15 years and 12 years upheld for offences of manslaughter.  Consideration given to the effect on sentences of actions carried out by racial bigots in pursuit of their racist aims, and to the effect on sentences of actions carried out together by a gang.  Consideration of the limits of applicability of the principles of denunciation and retribution.  
• 2001 BCCA 742 Lopez v. National Parole Board
  Appeal from order in the nature of habeas corpus quashing revocation of appellant’s parole and ordering his release from custody.  Section 135(3)(b) of the Corrections and Conditional Release Act requires that, when a parolee has been arrested and recommitted on a suspension warrant, the person who signed the suspension warrant must "within thirty days after the recommitment ... refer the case" to the National Parole Board for review. The appellant was recommitted on March 27, 2000, and his case was referred to the National Parole Board on April 26, 2000. The Chambers judge held that the day of recommitment must be included in the computation of the thirty days and therefore that the referral took place on the thirty-first day and, consequently, that the National Parole Board had no jurisdiction to revoke his parole.   Held, that the phrase "within thirty days after the recommitment ... refer the case" is "a reference to a number of days ... between two events" within s. 27(2) of the Interpretation Act, and that by operation of that sub-section the day of recommitment must be excluded from the computation of the prescribed time. Therefore, the referral of the appellant’s case to the National Parole Board occurred on the thirtieth day after recommitment and the Board did not lose jurisdiction to revoke the parole. Appeal allowed.
• 2001 BCCA 741 R. v. Reid
• 2001 BCCA 740 R. v. Dumas
  Application for appointment of counsel pursuant to s. 684 of the Criminal Code refused.
• 2001 BCCA 728 R. v. Stone
  Sentence appeal allowed. The trial judge had imposed two years' imprisonment for dangerous driving causing bodily harm in connection with "road rage' incident in which the victim and appellant had exchanged insults and then confronted each other before the appellant knocked the victim down. Per Mackenzie and Low JJ.A. concurring: Trial judge had failed to consider appellant's ability to pay damages for victim's injuries as a reason to favour conditional sentence. Per Newbury J.A. concurring: Sentence of two years' imprisonment over-emphasized general deterrence denunciation which according to Supreme Court of Canada can be achieved by using conditional sentence.
• 2001 BCCA 727 R. v. Berryere
  Appeal against conviction for dangerous driving dismissed.
• 2001 BCCA 721 R. v. Win
  A discussion during an investigation between the investigating constable and Crown counsel irrelevant on sentence.
• 2001 BCCA 723 R. v. Hinde
  Appellant convicted of assaulting former common law spouse. Appellant argued that judge erred in instructions to jury.  Concerning argument that judge erred in failing to give limiting instruction about previous instances of assaultive or threatening behaviour of appellant towards complainant, since strategy of defence had been to lead this evidence to demonstrate animosity on part of complainant and since defence had not suggested any such instruction at trial, this ground of argument could not succeed.   Although judge had erred in instructing jury they might draw adverse inference from alibi if found to be false, there being here, as in R. v. Tessier (1997), 113 C.C.C. (3d) 538, no independent evidence of falsity, the error was not of significance because of strength of Crown case on identity of assailant - R. v. Sidon (1997), 98 B.C.A.C. 109 invoked in applying curative provision and dismissing appeal.
• 2001 BCCA 712 R. v. Martinez
• 2001 BCCA 711 R. v. B.C. Tel
  Application by Crown for leave to appeal decision of summary conviction appeal court judge acquitting B.C. Tel of three counts of offences under the Canada Labour Code in connection with the death of a B.C. Tel employee while he was working near a live power line in 1997. Held: Leave denied on count of failing to ensure employee was aware of known hazards of working near a live power line. Leave granted on counts of failing to appoint a safety watcher.
• 2001 BCCA 710 R. v. Allin
  Mr. Allin's appeal from a sentence of two years for robbery to be served consecutive to the sentence he was then serving is dismissed. The sentence was fit, particularly in light of Mr. Allin's extensive criminal record.
• 2001 BCCA 709 R. v. Q.V.(M.)L.
  Bail denied to young offender on second degree murder appeal.
• 2001 BCCA 703 R. v. Denison
  The court found that the evidence in the case was insufficient to support a verdict of first-degree murder. A conviction for second degree murder was substituted.
• 2001 BCCA 707 R. v. Crockett
  Crown's application for review allowed. It is ordered that the appellant be detained in custody pending the disposition of his appeals against conviction and sentence.
• 2001 BCCA 706 R. v. Clark, Prior, and Cantwell
  Appeals from convictions for criminal contempt dismissed. No basis in law for staying all prosecution of the charges.
• 2001 BCCA 705 R. v. Morton
  Application for leave to appeal dismissal of application for extension of time to file appeal.   Applicant did not appear in Provincial Court on date set for hearing of disputed speeding ticket after notice of hearing was sent to him at address provided on dispute notice; the ticket was therefore treated as undisputed and a fine levied. Section 15 of the Offence Act requiring that a notice of hearing be "sent" (rather than personally served with production of proof of such service), is not contrary to any section of the Charter. There is no merit in the proposed appeal. Application dismissed.
• 2001 BCCA 701 Delaronde v. HMTQ
  Consent order approved.
• 2001 BCCA 700 R. v. Gates
  Directions on Conviction Appeal and Sentence Appeal.
• 2001 BCCA 699 R. v. Bailey
  This case presented unique circumstances in which it was not necessary to charge the jury that post-offence conduct could not be used to determine whether the accused possessed the requisite intent for murder.
• 2001 BCCA 698 R. v. Peterffy
  The appellant killed his common law wife by stabbing her in the chest area while she slept at home. He appealed the fitness of a 15 year period of parole ineligibility the trial judge set as part of a life sentence for second degree murder. Appeal dismissed. Per Huddart J.A. and Esson J.A.: the extension of the parole ineligibility period to 15 years is fit for the appellant in the circumstances of the offence, having regard to R v. Shropshire, [1995] 4 S.C.R. 227. Per Lambert J.A.: the period of parole ineligibility of 15 years should be reduced to 12 years. Shropshire is often misapplied by sentencing judges to obtain greater denunciation of rehabilitated impulsive murders. The sentencing judge failed to recognize the absence of a criminal record as a mitigating circumstance.
• 2001 BCCA 697 R. v. Tayebi
  On this appeal from conviction for sexual assault on 2 boys aged 12 and 13, the principal ground of appeal is that the trial judge, in a trial by judge alone, erred in law by admitting expert evidence tendered by the Crown of the effects of sexual abuse of children, including symptoms of sexual abuse, the significance of delayed or incomplete disclosures, and on human memory generally. The admission of the evidence at trial was not objected to and was in accord with the authorities as they stood at that time. Since then, the Supreme Court of Canada has given judgment in R. v. D.(D.) 2000 SCC 43 and R. v. Ferguson, [2001] 1 S.C.R. 281. D.(D.) establishes that expert evidence is inadmissible on the question of delayed disclosure but does not preclude evidence on other aspects of the evidence. Even if it was an error for the trial judge to admit and, in some degree, rely on the evidence as to delayed disclosure in this case, it was harmless error because the expert evidence was to the same effect as the suggested charge set out in D.(D.). Ferguson does not significantly change the law. In this case, the trial judge, although he referred to the expert evidence, did not abdicate his responsibility to make his own assessment of the evidence. Appeal dismissed.
• 2001 BCCA 696 R. v. Miller
  Application for release pending appeal granted.
• 2001 BCCA 694 R. v. Le
  Application for leave to appeal dismissed. Lacks any merit.
• 2001 BCCA 690 R. v. Smith
  The Court allowed an appeal from a dangerous offender finding on the basis of R. v. Edgar , 2001 B.C.C.A. 457 and R. v. Johnson, 2001 B.C.C.A. 456, without comment or analyzing the trial judge.
• 2001 BCCA 689 R. v. Poole
  Nine month conditional sentence substituted for nine months incarceration.  Sentence to start on pronouncement of this judgement.  A conditional sentence may have an equal or greater deterrent value than a custodial sentence.
• 2001 BCCA 688 R. v. Mack
  The sentencing judge imposed a 7 year sentence, starting from a fit sentence of 9 years and reducing it by 2 years, the actual length of pre-trial custody. On appeal, the reduction was increased to twice the length of pre-trial custody to recognize the unavailability of services in pre-trial detention and to correct a misapprehension about the reason for pre-trial custody. In the result, the sentence was reduced from 7 to 5 years.
• 2001 BCCA 686 R. v. Barron
  The court was compelled to order a new trial in this sexual assault case because of a serious flaw in the W(D) charge.
• 2001 BCCA 684 U.S.A. v. Fong
  A confession by the appellant fugitive was admitted by the extradition judge who ordered his committal to the U.S.A. The appeal was taken on the argument that as the appellant was not told of his right to counsel and he was under detention the confession ought to have been excluded.   Held: The judge was not wrong in holding that the circumstances did not establish that the appellant had a reasonable belief that he was detained. Appeal dismissed.
• 2001 BCCA 681 R. v. Ku
  This is the dismissal of an appeal from assault convictions by a jury arising out of a confrontation between two groups of young people. There is no merit in two narrow evidentiary issues raised by the appellant.
• 2001 BCCA 680 R. v. Jones
  The appellant has a serious criminal record for drinking and driving offences. The court upholds a sentence of 2.5 years for impaired driving.
• 2001 BCCA 678 R. v. Glowatski
  Murder conviction — Appellant found by trial judge to be co-principal in murder of beaten and drowned victim. Appellant arguing that evidence of prior statements of friends to whom he spoke about homicide wrongly admitted in evidence — Court concluding that in circumstances of this case, trial judge did not err in not proceeding pursuant to s. 9(2) of Canada Evidence Act — No error found in judge treating adoption by witness of parts of earlier statement as past recollection recorded — McInroy v. The Queen (1978), 42 C.C.C. (2d) 481 referred to. Court not accepting submission that conviction unreasonable — Appeal dismissed.
• 2001 BCCA 677 R. v. Trinh
  Appeal of a sentence of nine months incarceration for producing marihuana allowed and a one-year conditional sentence substituted.
• 2001 BCCA 676 R. v. W.A.R.
  The appellant was convicted in Youth Court of robbery and assault causing bodily harm. He argued on appeal that the evidence of identification did not support the conviction. However, this Court found the evidence was sufficient and dismissed the appeal.
• 2001 BCCA 672 R. v. Green
  The Court upholds a seven-year sentence for manslaughter imposed after the appellant had spent 22 months in pre-sentencing custody. The killing was particularly brutal. Notwithstanding mitigating factors the principles of denunciation and deterrence made the sentence fit.
• 2001 BCCA 663 R. v. Edwards
  This is an application for an order to appoint counsel for the appellant pursuant to s. 684 of the Criminal Code. There is also an application "that counsel be retroactively appointed to act on behalf of the appellant for the limited purpose of making this application pursuant to s. 684 of the Criminal Code". Both applications are dismissed.
• 2001 BCCA 661 R. v. Michaels
• 2001 BCCA 658 R. v. Le
  Appeal from conviction for possession of controlled substances for the purposes of trafficking brought on the ground that the trial judge erred in finding that there was no violation of the appellant’s s. 8 Charter rights when he was searched by the police following his arrest at premises where the police were conducting a search pursuant to a warrant. At trial, the appellant argued that the police did not have reasonable grounds to arrest him, the search of him was therefore unreasonable and hence the evidence obtained thereby ought to be excluded under s. 24(2) of the Charter. The trial judge concluded that the appellant’s s. 8 Charter rights had not been violated because the appellant had been properly detained for articulable cause and a search of him for weapons was reasonable in the circumstances. Appeal dismissed on the ground that there were reasonable grounds for the appellant’s arrest and therefore a search incident to his arrest was unobjectionable.
• 2001 BCCA 657 R. v. Scott
  The appellant was convicted of manslaughter as a result of the shooting death of his common law wife. On appeal, he asserted that the trial judge should have left self defence with the jury under s.34(1) and s.37, not just under s.34(2); that the trial judge's charge on s.34(2) might have left the jury with the belief that the section did not apply to unintentional cause of death; and that the W(D) charge was wrong and confusing. The court found no merit in any of these grounds of appeal and dismissed the appeal.
• 2001 BCCA 655 R. v. Fitzmaurice
  The appellant sought leave to appeal a sentence of five years for attempted murder. The sentence was imposed following 19 months of pre-disposition custody. This court granted leave to appeal but found the sentence to be fit and dismissed the appeal.
• 2001 BCCA 653 R. v. Labbe
  The appellant was charged with second degree murder and convicted of manslaughter because he was intoxicated. At trial, he claimed he did not do the killing. He sought to present evidence that a third person possibly was the killer. The trial judge, without adequate enquiry, refused to admit the evidence. The rejected evidence had the potential of connecting the third party to the crime and, subject to a ruling on the admissibility of hearsay portions of the evidence, should have been admitted. A new trial is ordered on the manslaughter charge.
• 2001 BCCA 648 R. v. Williams
  An appeal from a conviction of second degree murder was dismissed. The court found no reversible error in the charge on the intent described in s. 229(a)(ii); no error in omitting any reference to alcohol consumption in a "rolled up" charge which included both provocation and defence of another (s. 37); and no error in omitting an instruction on mistake of fact in relation to the defence under s. 37, and no error in omitting any reference in the charge to post-offense conduct.
• 2001 BCCA 645 R. v. Clay
  Historic sexual assault. Appropriate consideration of the possibility of collusion – Trial judge expressly negatived any risk of collusion. Transcription of the evidence – Changes between verbatim and corrected trial Reasons insubstantial and irrelevant to verdict. Similar fact evidence – Evidence given by two complainants admissible as similar act evidence supportive of respective complainants’ credibility – "Striking" similarity not required in certain circumstances. Burden of proof – Proper approach requires assessing all the evidence together – Trial judge appropriately analysed evidence – Defence evidence did not raise a reasonable doubt as to the assaults alleged
• 2001 BCCA 643 R. v. Gill
  Application for bail pending trial under s. 680 of the Criminal Code – application denied.
• 2001 BCCA 638 R. v. W.J.C.
  Appeal from conviction in Youth Court for breaking and entering, assault with a weapon, and unlawful confinement, on the grounds that the trial judge erred in admitting fingerprints evidence obtained in breach of Appellant's right under s. 56 of the Young Offenders Act and s. 8 of the Charter. The appeal was dismissed. The trial judge did not err in fact or in law in his finding that the evidence was admissible.
• 2001 BCCA 637 R. v. Adelberg
• 2001 BCCA 633 R. v. Caster
  The Court dismissed an appeal from the refusal of the trial judge to grant a remedy to an accused alleging a "dirty trick" by investigating officers. At issue was the holding out to a potential witness of a police officer as the accused’s lawyer.
• 2001 BCCA 632 International Forest Products v. Wolfe
  The appellants apply for assignment of counsel under s. 684 of the Criminal Code to assist them in their appeals of convictions and sentences for criminal contempt of injunctions restraining protests against logging activities in the Elaho Valley north of Squamish. The primary ground of appeal is that the trial judge erred in refusing to order a stay of proceedings. Held: applications granted. Because of the nature of the case, it is in the interests of justice that the appellants should have the assistance of counsel and they do not have sufficient means to obtain that assistance.
• 2001 BCCA 631 R. v. H.M.S.
  Appeal conviction for robbery. Conviction relied upon eyewitness identification of the victim, 11 at the time of the offence. Appeal dismissed, Smith J.A. dissenting.
• 2001 BCCA 630 R. v. Ellard
  Bail Pending Appeal – Second Degree Murder   The appeal was not without merit and there was no flight risk. The public interest could be satisfied by release on strict conditions amounting to have house arrest in the appellant’s parents’ residence.
• 2001 BCCA 627 R. v. J.M.V.
  In a young offender proceeding a defence witness was challenged on cross-examination on prior inconsistent statements. Defence counsel ought to have been permitted to lead evidence that the witness had made earlier statements consistent with his evidence. The error in law of the trial judge, in refusing to admit the evidence required a new trial.
• 2001 BCCA 624 R. v. Nguyen
• 2001 BCCA 618 Interfor et al. v. Nolan et al.
  Appellant applied to extend the term of his judicial interim release pending his appeal. He was financially unable to appear in person. Pursuant to submissions of Crown and defence counsel, appellant was ordered, pursuant to ss 679(5)(b) and 515(2.2.) of the Criminal Code, to appear by telephone to enter into a recognizance. Arrangements were made by defence counsel for the appellant to appear before a justice of the peace in Ontario, who witnessed the recognizance entered into by the appellant by telephone before a justice of the peace in British Columbia
• 2001 BCCA 617 R. v. Larson
  Appellant applied for judicial interim release under s. 679(3) of the Criminal Code pending his appeal from conviction for first degree murder. Held: application denied. The appeal is not frivolous and the appellant established that he will surrender himself into custody in accordance with the terms of an order allowing him to be released. He did not establish, however, that his detention is not necessary in the public interest. There is no concern that he is dangerous or will reoffend, but his grounds of appeal are not "very strong". The interest in enforceability of judgments outweighs the interest in reviewability.
• 2001 BCCA 616 R. v. Mattice
  Application for the appointment of counsel under s. 684 of the Criminal Code. An appeal on the issue of identification appears to be arguable. With the limited education of the appellant, it was would be difficult for him to be able to present his appeal with the assistance of counsel. Application granted.
• 2001 BCCA 615 France v. Campion
  Appellant arrested and brought before the court on a show cause hearing. Bail revoked.
• 2001 BCCA 614 R. v. Longtin
  Five-year sentence for robbery upheld. The meaning of "appropriate range" is discussed.
• 2001 BCCA 613 R. v. Clough
  The sentencing judge erred (1) in requiring acceptance of guilt as a prerequisite for a conditional sentence; (2) in refusing to follow a Court of Appeal decision because he said it was wrongly decided and (3) in misinterpreting s. 10(1) of the Controlled Drugs and Substances Act as requiring a punitive disposition in order to achieve "respect for the law". Held: a conditional sentence of 12 months substituted for a 9-month custodial sentence.
• 2001 BCCA 612 Festing v. Canada (Attorney General)
  The two issues on these appeals are the constitutionality of ss. 487 and 488.1 of the Criminal Code. Section 487 authorizes the issuance of a warrant for the search of places, including law offices, and the seizure of documents therein. Section 488.1 provides a mechanism for solicitor-client privilege to be claimed with respect to documents seized from a law office under warrant.   Held (Newbury J.A. dissenting): Section 488.1 breaches s. 8 of the Charter and cannot be saved under s. 1. The appropriate remedy is to strike s. 488.1 and suspend the remedy until the decision of the Supreme Court of Canada with respect to four outstanding appeals dealing with this issue set for hearing in December 2001. In the absence of legislation protecting solicitor-client privilege, s. 487 also breaches s. 8 of the Charter insofar as it applies to the search of law offices. The common law as described in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, does not adequately protect solicitor client privilege. The appropriate constitutional remedy is to read in the words: "other than a law office" in s. 487(1). This remedy is also suspended pending the decision of the Supreme Court of Canada, with liberty to apply for directions thereafter.
• 2001 BCCA 604 R. v. Win
  Dismissal of appeal from convictions imposed by a Supreme Court judge sitting without a jury on seven counts of trafficking in cocaine. The appellant alleged illegality on the part of an undercover officer in paying small amounts of money to cocaine users in his attempts to deal directly with the appellant to make cocaine purchases. However, there was no illegality on the part of the officer as the users offered to make purchases for him. Also, there was no merit in the appellant’s argument that the undercover officer acted illegally in obtaining certain advice from Crown counsel during the course of the investigation.
• 2001 BCCA 602 R. v. Lin
• 2001 BCCA 601 R. v. Schulz
  An arrest for possession of marihuana and a warrant to search the appellant’s home were justified in the circumstances of the case. The evidence obtained was properly admitted. Appeal from convictions of possession for the purposes of trafficking dismissed.
• 2001 BCCA 599 R. v. Castaneda
• 2001 BCCA 596 R. v. Crabe
• 2001 BCCA 591 R. v. Gomien
  Notice of application for leave to appeal sentence is dismissed as abandoned.
• 2001 BCCA 589 R. v. Wilkinson
  On appeal from a decision that a landlord was not a police agent in trespassing on his tenant’s residential property and accordingly there was no foundation for a s.8 Charter breach. HELD: the evidence could support the findings of the trial judge and the appeal was dismissed.
• 2001 BCCA 588 Pinkney v. William Head Institution et al.
  Appeal dismissed from decision dismissing application for habeas corpus. The appellant had not exhausted his remedies before the National Parole Board and in the Federal court.
• 2001 BCCA 586 R. v. Helfrich
  The appellant applies for judicial interim release pending his appeal from conviction in Provincial Court on five counts of unauthorized use of a credit card and two counts of possession of stolen property. He was sentenced to one year in prison. Held: application dismissed. The appellant’s grounds of appeal are not frivolous and he is not a flight risk, but because there is a risk that he will reoffend and his grounds of appeal are not strong, he has not established that his detention is not necessary in the public interest.
• 2001 BCCA 585 R. v. Mak
  Verdict of guilty set aside, new trial ordered.
• 2001 BCCA 584 R. v. Garbutt
  Verdict of guilty set aside, new trial ordered.
• 2001 BCCA 583 R. v. Gomez
  Verdict of guilty set aside, new trial ordered.
• 2001 BCCA 582 R. v. Hall
  Verdict of guilty set aside, new trial ordered.
• 2001 BCCA 581 R. v. Scarpino
  Verdict of guilty set aside, new trial ordered.
• 2001 BCCA 579 R. v. Harrison
  The trial judge charged the jury on two alternate theories advanced by the Crown on a charge of 1^st degree murder. The first theory was that the appellant acted alone. The second theory was that the appellant was a party to the deceased’s killing, and could be held responsible under either s.21 (1) or (2) of the Criminal Code. On appeal, the court held that there was no evidence to support the appellant’s conviction as a party. A new trial was ordered.
• 2001 BCCA 571 R. v. Parkinson
  Appellant applied for leave to appeal dismissal of his summary conviction appeal from a conviction for common assault. The application is dismissed as no question of law arises and there is no reasonable possibility of success.
• 2001 BCCA 569 R. v. Gill
  Application for leave to appeal a detention order pending trial, pursuant to s.680 of the Criminal Code, granted.
• 2001 BCCA 568 R. v. Rezaei
• 2001 BCCA 567 R. v. Canta
  Issue is whether trial judge erred in refusing to exclude Crown evidence of grow operation on grounds relating to search and seizure. No error found.
• 2001 BCCA 566 R. v. Hannon
  The appeal of the conviction of second-degree murder was allowed and the matter remitted for a new trial. The instructions to the jury did not adequately link the evidence of intoxication to the issue of foreseeability in s. 229(a)(ii) of the Criminal Code. R. v. MacKinlay (1986), 28 C.C.C.306 (Ont. C.A.); R. v. Seymour (1996), 106 C.C.C. (3d) 521 (S.C.C.); R. v. Giroux (1997), 92 B.C.A.C. 305 (BCCA); and R. v. Berrigan (1998), 127 C.C.C. (3d) 120 applied.
• 2001 BCCA 563 R. v. McLeod
  Appeal from conviction by judge alone for attempted murder. Only issues were whether judge misapprehended psychiatric evidence re. mental state of accused and, in preferring evidence of Crown psychiatrist, failed to consider whether defence expert’s evidence gave rise to reasonable doubt. Appeal dismissed.
• 2001 BCCA 565 R. v. Reid
  Application for appointment of counsel in case involving several convictions for robbery incidents. Application dismissed on basis that proposed conviction appeal lacked merit.
• 2001 BCCA 561 R. v. Dewar
  Appeal from conviction on various sexual offences allowed where trial judge misapprehended or failed to appreciate the substance of some evidence going to the credibility of one of the complainants and erred in taking into account as between counts with different complainants evidence that would not be admissible as similar fact evidence.
• 2001 BCCA 560 R. v. Dawson
• 2001 BCCA 559 R. v. Lisa
  Appellant was sentenced to 3 months imprisonment and 12 months driving license suspension on charge of "failing to remain" at scene of accident in which pedestrian was killed. Only ground of appeal was that trial judge erred in refusing conditional sentence. Appeal dismissed.
• 2001 BCCA 558 R. v. Mahamud
  Application for leave to appeal conditional sentence of 3 months with 3 years probation on charge of obtaining substantial amounts by false pretences. Appellant seeks conditional discharge. Leave refused.
• 2001 BCCA 555 R. v. Dhillon
  The appellant was convicted by a jury of first-degree murder arising out of the 1977 abduction, rape and killing of a 12-year old girl in Port Alberni. He raised seven grounds of appeal – that there should have been a judicial stay of proceedings because of pre-charge delay; that the trial judge should have permitted more extensive questioning of potential jurors during a challenge for cause procedure; that a blood sample of the appellant taken under a DNA warrant and used for DNA testing should have been excluded due to Charter violations; that the trial judge should have instructed the jury that the DNA opinion evidence had no value or, alternatively, limited value unless the Crown proved beyond a reasonable doubt that there was only one male donor to the male DNA in seminal fluid found in the vagina of the victim; that there was error in the jury instruction on direct and circumstantial evidence; that there was inadequate review of the evidence in the jury charge; and that the conviction was unreasonable and unsupported by the evidence.  The Court found no merit in any of these grounds and dismissed the appeal.
• 2001 BCCA 553 R. v. E.M.G.
• 2001 BCCA 549 R. v. Lena
  Appeal of order dismissing application by way of certiorari to quash committal to trial on the ground that the appellant was denied the right given under s. 541 of the Criminal Code to call witnesses at the preliminary inquiry.  Appeal allowed; committal for trial set aside and matter remitted back to Provincial Court judge for a continuation of the preliminary inquiry.
• 2001 BCCA 547 R. v. Kleven
  The Court dismissed an appeal from sentence. At issue was the period of eligibility for parole in a life sentence for second degree murder.
• 2001 BCCA 541 R. v. Bomba
  The trial judge did not err when he concluded that the chief witness for the Crown was telling the truth in his examination in chief and not telling the truth when under cross-examination he recanted.
• 2001 BCCA 536 R. v. S.J.P. and S.A.S.
  Two young offenders appeal their convictions for robbery. The issue was identification. The evidence supported the conviction of S.J.P. and his appeal was dismissed. However, the evidence did not support the conviction of S.A.S. and his appeal was allowed.
• 2001 BCCA 533 R. v. Blackwater
  Appeal from conviction for two counts of rape dismissed. Although the charge to the jury contained the "Miller error", this was an appropriate case in which to apply s. 686(1)(b)(iii) of the Code.
• 2001 BCCA 531 HMTQ v. Bugbusters
  The names and addresses of witnesses as to fact are compellable on examination for discovery under S.C. Rule 27(22) and are not protected by "solicitor's brief" privilege.
• 2001 BCCA 529 R. v. Uppal
  Mr. Uppal's appeal from convictions for attempted murder, sexual assault and threatening dismissed. There was no breach of his right to counsel with respect to a statement he made to the police upon his arrest and the trial judge did not err in the failing to warn this jury with respect to remarks made by Crown counsel.
• 2001 BCCA 528 R. v. Kyllo, Lubkey & Toupin
  The appellants were convicted of robbery, and one of them of second degree murder, on the evidence of a person the trial judge found to be an unsavoury witness. The trial judge instructed the jury that it could use a statement made or adopted by the accused incriminating him in the crime if, having considered all of the evidence, they were content that it was more likely than not that the statement had been made and was true. Held: Appeals allowed and new trials ordered. In this case, where the statements made or adopted by the accused were effectively the only evidence implicating them in the crime, there was a realistic possibility the jury could have been misled by the inclusion of the words "and was true" in the portion of the jury charge dealing with the standard of proof to be used to determine whether the statements had been made, and could have found the accused guilty on a balance of probabilities instead of beyond a reasonable doubt.
• 2001 BCCA 521 R. v. Spence
  There was a miscarriage of justice in the disposition (by a finding of not criminally responsible by reason of mental disorder) of 11 counts contained in 2 informations without the appellant being arraigned, being put to his election properly or being asked to plead. The appropriate disposition was to quash the verdict, order a new trial and enter a stay of proceedings.
• 2001 BCCA 519 R. v. Soluk
  The appellant was acquitted of aggravated assault, the offence with which he was charged, but a conviction was entered for assault causing bodily harm.   On appeal, the appellent contended that assault causing bodily harm is not included in the offence of aggravated assault.   Appeal dismissed.
• 2001 BCCA 514 R. v. Lisi
  Conviction appeal - Failure to remain at the scene of an accident and refusal to provide a breath sample - Appellant asserts verdict unreasonable and unsupported by the evidence - Appeal dismissed.
• 2001 BCCA 512 R. v. Rowell
  Sentence appeal - Robbery - s. 344(b) C.C.C. - Sentence just under 6 years including 11 months pre-sentence custody - aboriginal background - R. v. Gladue - Appeal dismissed.
• 2001 BCCA 511 R. v. Ajak
• 2001 BCCA 510 R. v. Eldon-Gerald:  Warman
  Summary Conviction – Issue as to jurisdiction of Provincial Court Judge and Summary Conviction Appeal Court Judge – Motion for leave to appeal to Court of Appeal dismissed as being without merit
• 2001 BCCA 508 R. v. Mapara
  Section 680, Criminal Code, review of decision of Chambers judge releasing appellant on bail pending appeal. Tests for release on appeal reviewed.
• 2001 BCCA 507 R. v. Castro, Stinchcombe and Ferretti
  An appeal from convictions for drug offenses was allowed and a new trial ordered on the ground that the appellants’ application for a stay of proceedings was not fully considered. The trial judge refused to entertain evidence of legal opinions from the Federal Department of Justice to the RCMP on the legality of reverse sting operations. Project Eye Spy was such an operation found in earlier cases to involve illegal police conduct. The operation led directly to the investigation and prosecution of these appellants.  Other grounds which would have supported a stay or a substituted verdict were rejected.
• 2001 BCCA 506 R. v. Cotnam (Matthews)
  On appeal, a verdict of guilty of second degree murder was set aside and an acquittal entered.
  There was some evidence that the appellant was present when the victim was killed but no evidence of what he did, except for the appellant’s exculpatory police statement which the jury must have rejected. The jury either ignored the trial judge’s strong warning that they should not find guilt on the basis of the evidence of two unreliable witnesses, or they engaged in speculation as to the appellant’s conduct, or they used their rejection of his exculpatory statement as positive proof of guilty. Either way, the verdict was unreasonable.
• 2001 BCCA 505 R. v. Brown
  The appellant asserted that the evidence did not support the conclusion that he was the driver of a stolen vehicle that was driven dangerously. However, this Court concluded that the evidence did support the finding by the Provincial Court judge that the appellant was the driver and the appeal was dismissed.
• 2001 BCCA 504 R. v. Ahmed
• 2001 BCCA 503 R. v. Tran
  Criminal Law – Sentence – Cultivation of marihuana.   On appeal by the Crown from a conditional sentence of two years less a day following a second conviction for cultivation of marihuana as a principal. Held that the appeal should be allowed and a custodial sentence of two years less a day imposed.
• 2001 BCCA 502 R. v. Streichert
  The Court upheld a 4-months custodial sentence for sexual touching of a 14-year-old babysitter as fit in the circumstances.
• 2001 BCCA 500 R. v. Ivan
• 2001 BCCA 495 R. v. Gibson
  Criminal Law – Sentence – Second degree murder – Parole ineligibility.   An appeal from a 20 year period of parole ineligibility imposed on the 20 year old appellant. Held the period of parole ineligibility should be reduced to 12 years.
• 2001 BCCA 494 R. v. Kaiser
  The Court upheld sentences of four years to be served concurrently on three counts of common assault and one of assault causing bodily harm. The victim was living with the accused in an intimate relationship. The accused had a record for assault of persons with whom he was in a similar relationship.
• 2001 BCCA 492 R. v. Carle
  The Court allowed an appeal from a 12-month custodial sentence for criminal negligence causing bodily harm. An inexperienced remorseful 20-year old father had shaken his 3 month old son on one occasion. The Court reduced the sentence to time served and varied the conditions of the probation order. It refused to delete a no contact order.
• 2001 BCCA 491 R. v. Wong
  The Court refused to interfere with a conditional sentence imposed for trafficking in cocaine. At issue was a "dial-a-dope" scheme with sales at a wholesale level.
• 2001 BCCA 490 Lee v. HMTQ
  Application to review a decision refusing judicial interim release - Applicant charged with importing 93 kilos of heroin - Application refused.  The Chambers judge made no error in denying judicial interim release on the tertiary ground set out in s. 515(1) (c) of the Criminal Code.
• 2001 BCCA 489 R. v. Haines
  Sentence appeal - Aboriginal offender - Impaired driving causing death and driving while disqualified - Sentences of 3 years and 1 year. consecutive upheld.  The sentences imposed were not unfit having regard to the appellant's record, including numerous convictions for driving while disqualified, and that circumstances of the offence.
• 2001 BCCA 487 R. v. Klapcic
  The court upholds a ten-year sentence for a violent robbery committed by the appellant who has three previous robbery convictions.
• 2001 BCCA 478 R. v. Innes
  Sentence appeal from refusal of trial judge to impose a conditional sentence to urban grow operation. Trial judge did not err in principle, nor was sentence outside range for similar offences. Leave granted, appeal dismissed.
• 2001 BCCA 477 R. v. Federici and Barton
  Reasons for judgment appointing counsel under s. 684 of the Criminal Code. Appellants unable to properly put forth case or appeal without assistance.
• 2001 BCCA 476 R. v. Lafleur
  The sentence of 9 months incarceration for assault causing bodily harm was reduced to one of 3 months consequent on the judgment of the court allowing the conviction appeal and substituting a conviction for assault simplicites.
• 2001 BCCA 475 R. v. Lafleur
  The appellant's conviction for assault causing bodily harm was allowed. A conviction for simple assault was substituted therefore. The evidence tended to show that the bodily harm alleged by the Crown occurred before the appellant assaulted the complainant.
• 2001 BCCA 474 R. v. F.L.J.
  The appellant appealed his sentence of two years imprisonment on one charge of incest involving his daughter between 1960 and 1964. He asked for a reduction in sentence or a conditional sentence. Held: appeal dismissed. A jail sentence was the only appropriate sentence to denounce this serious and reprehensible crime. The two year sentence took into account the mitigating factors of the appellant's age, health, guilty plea, partial expression of remorse and the age of the allegations.
• 2001 BCCA 473 R. v. Cooper
  The sentence appeal by this aboriginal offender from a sentence equivalent to four and a half years for armed robbery of a bank was dismissed.  
• 2001 BCCA 471 R. v. Bui
  This sentence appeal from a sentence equivalent to three years for possession of cocaine for the purpose of trafficking was allowed. The offender was on conditional sentence of 15 months at the time of the second offence, for a similar offence. She had moved to a new community with her children and participated in language and skills training since the offence. She had served four months "dead time" for which the sentencing judge recognized as one year for sentencing purposes indicating the hard nature of that jail time. The offence was a single charge of PPT of $110 worth of cocaine, not the high volume suggested by the sentencing judge. The appeal was allowed and a conditional sentence of two years less a day, on terms including search without notice during day time hours of her residence.
• 2001 BCCA 472 R. v. Lahn
  Appeal from sentences of four years’ imprisonment on one count of robbery (a home invasion) and one count of kidnapping, to be served consecutively. Held: Appeal dismissed. The sentencing judge carefully reviewed all the relevant factors. The sentence imposed was within the range of sentences for similar offences and similarly situated offenders. Although Mr. Lahn's co-accused received shorter sentences, the disparity principle was not breached as there were significant differences between their circumstances and those of Mr. Lahn.
• 2001 BCCA 465 R. v. Owens
  The appellant appealed his sentence of 18 months imprisonment for one count of robbery, seeking a conditional sentence. He and a companion robbed a gas station in West Vancouver, during which the young attendant was hit over the head with a starter pistol. Held: Leave to appeal granted and appeal dismissed. The sentencing judge considered all of the circumstances of the appellant's rehabilitation following the offence and correctly applied the applicable legal principles in deciding that a conditional sentence was not appropriate.
• 2001 BCCA 463 R. v. Germain
  Crown sentence appeal allowed. Two concurrent terms of 12 months on 2 counts of robbery were increased to 2 years less a day. Normally, the new sentence would also have been below the applicable range; however it was felt that the respondent, who has been a model prisoner and has a supportive family, should not be transferred at this late date into the Federal corrections system.
• 2001 BCCA 462 R. v. G.G.
  The appellant appealed his conviction by a jury of six counts of various sexual offences, which took place over three separate decades against three teenage boys. The grounds of appeal focused on the jury charge, the behaviour of one of the complainants in seeking to obtain money from the appellant, and the reasonableness of the verdict in light of the evidence. The Crown also drew the Court's attention to two additional issues: a possible "Miller error" and an error with respect to the instructions on reasonable doubt. Held: The appeal is allowed on all six counts. On count 4, an acquittal is substituted. On the remaining five counts, the verdicts are set aside and a new trial is ordered.
• 2001 BCCA 461 R. v. Nguyen
• 2001 BCCA 460 R. v. Abernathy
  Application for bail pending appeal dismissed. The Court was not satisfied that Mr. Abernathy's detention was "not necessary in the public interest" within the meaning of s. 679(3)(c) of the Criminal Code.
• 2001 BCCA 457 R. v. Edgar
  This case is a companion case to R. v. Johnson, 2001 BCCA 456.
• 2001 BCCA 456 R. v. Johnson
  The central issue in this case was whether the appellant, who was sentenced as a dangerous offender was entitled to seek long-term offender status as an alternative to the dangerous offender designation. The appellant had committed the predicate offence before the amendments to Part XXIV which created long-term offender status, but sentenced after they came into force. The court held, Madam Justice Saunders dissenting, that the long-term offender provisions were a mitigated punishment and therefore available to the appellant by operation of s. 11(i) of the Charter and s. 44(e) of the Interpretation Act.   In the process of making this determination the court reached other related conclusions:
  1. Section 753 of the former provisions or under the new provisions does not leave to the court a residual discretion for a court to refuse to designate an offender as a long-term offender once the statutory criteria have been met. The court declined to follow the Alberta Court of Appeal in R. v. Neve (1999), 137 C.C.C. (3d) 97, and held that its decision in R. v. Dow (1999), 134 C.C.C. (3d) 323, was rightly decided.
  2. The amendments to s. 753, which provide that after a court designates an offender to be a dangerous offender it "shall" sentence the offender to an indeterminate sentence, eliminates the ability of the court to consider treatment prospects in choosing between a determinate and indeterminate sentence. Treatment prospects must now be considered in determining whether an offender meets the dangerous offender criteria. The court followed R. v. Lyons, [1987] 2 S.C.R. 309, and the court's previous decision in R. v. Poole (2000), 142 B.C.A.C. 151.
  3. What distinguishes the long-term offender provisions from the dangerous offender provisions is the absence, in the long-term offender provisions, of the requirement that the pattern or conduct of the offender be substantially or pathologically intractable, and that if the offender has any treatable condition it will be of such a kind that it must be if not curable, at least eventually controllable in the community.
  4. The appellant ought to have been dealt with under the new provisions of the Criminal Code, but if found to be a dangerous offender, he should, by virtue of s. 11(i) of the Charter, retain the benefit of parole eligibility three years after the imposition of sentence.
  5. The court declined to overrule R. v. Turley (1999), 136 C.C.C. (3d) 426, insofar that it held that a person in Johnson's position is entitled to the benefit of the long-term offender provisions
• 2001 BCCA 455 R. v. Blair et al.
  The appellant and his company were convicted of failure to comply with demands to file tax returns. The summary convictions were upheld on appeal to the Supreme court. Held: Leave to appeal dismissed. The first ground of appeal did not raise a question of law alone and the second was without merit.
• 2001 BCCA 447 R. v. Bush
  Two issues were raised in this appeal: the first related to the trial judge's instructions to the jury on the use to be made of similar fact evidence; the second, whether the judge ought to have provided the jury with a cautionary warning about the failure of the accused to testify. The court held that the instructions were adequate. On the second ground, the court held that s. 4(6) of the Canada Evidence Act precludes a cautionary warning.
• 2001 BCCA 441 R. v. Blair
  Appellant convicted by a jury of a violent sexual assault. Appellant arguing on appeal that conviction unsafe because of inconsistencies in testimony of complainant. Appellant also arguing that he was not given competent representation by trial counsel and that trial judge erred in intervening unduly in conduct of trial, demonstrating bias and failed to properly leave defence of self-defence with the jury. Court of Appeal dismissing appeal, finding that conduct of trial by judge was appropriate and that the appellant had been competently represented by counsel. Court finding that in this difficult case, counsel took the appropriate line of defence and afforded a proper defence to the appellant. Court of Appeal finding no air of reality to alleged defence of self-defence and accordingly trial judge not required to put this defence to the jury. Court further finding that testimony of complainant generally consistent throughout and counsel took wise course in not suggesting witness was dishonest.
• 2001 BCCA 439 R. v. Martin
  CRIMINAL LAW UNREASONABLE DELAY   Held that there was no decision in the trial court on the issue of unreasonable delay and therefore no foundation for an appeal.
• 2001 BCCA 438 R. v. Gibson
  CRIMINAL LAW - AGGRAVATED ASSAULT -- CHARGE TO JURY   An appeal from conviction on the ground of incorrect instructions to the jury; held the appeal should be dismissed.
• 2001 BCCA 436 R. v. Johal
  Appeal from conviction for armed robbery. The accused demonstrated and communicated a need for an interpreter during his testimony. He was dissuaded from asserting his right to interpretive assistance. Held: Appeal allowed. The accused’s rights under s. 14 of the Charter, as explained in R. v. Tran, [1994] 2 S.C.R. 951, were breached. It was not necessary to establish that prejudice resulted from the breach. A new trial ordered.
• 2001 BCCA 431 R. v. Garcia-Garcia
  Appellant appealing conviction for sexual assault. Complainant drunk at time of assault. Appellant alleging judge erred in treatment of evidence of Crown and defence and that he placed onus improperly on defence. Court of Appeal finding no error in approach of trial judge and dismissing the appeal.
• 2001 BCCA 430 R. v. Nelson
  Sentence of 2 years reduced to conditional sentence of 2 years less one day for sexual assault. Unusual circumstances leading to significant steps to rehabilitate before trial.
• 2001 BCCA 427 R. v. Belrose
  The Court affirmed a conditional sentence for an aboriginal offender whose community's attitude had been misunderstood by the trial judge because, although it was perhaps not appropriate when pronounced, it was working.
• 2001 BCCA 424 R. v. Hughes
  Appeal against conviction for sexual assault dismissed. Held: Prior consistent statements of complainant properly admitted into evidence under the narrative exception and also to rebut allegations of recent fabrication.
• 2001 BCCA 423 R. v. Dobbie
• 2001 BCCA 422 R. v. Conrad
• 2001 BCCA 421 R. v. Clay
• 2001 BCCA 420 R. v. Carle
• 2001 BCCA 417 R. v. M.V. "Glenshiel"
  The Crown appealed the acquittal of the ship "Glenshiel" on the charge of discharging a pollutant, oil, a "strict liability offence" under the Canada Shipping Act. The trial judge, upheld on the summary conviction appeal, held that the Crown had not met the onus on it to prove that an act or omission of some person on board the ship caused the discharge. The summary conviction appeal court judge awarded costs of that appeal to the ship. Held: Appeal allowed, case remitted to hear the ship's defence and order for costs reversed. It was admitted on behalf of the ship at trial that the oil came from the ship. That established the actus reas of the offence, the discharge of a pollutant. The onus then shifted to the ship to show that it had exercised reasonable care to prevent the discharge. There were no exceptional grounds to justify an order for costs in this criminal case.
• 2001 BCCA 414 R. v. Whyte
• 2001 BCCA 412 R. v. McMordie
  Application for leave to appeal convictions entered by summary conviction appeal judge, reversing acquittals entered by Provincial Court Judge. Application for leave dismissed. The appeal has no prospect of success.
• 2001 BCCA 407 R. v. Carter
  The appellant appealed his conviction for conspiring to murder his wife on a number of grounds relating to the sufficiency of the charge to the jury. The court held that the charge was sufficient. If it was not, the court would have applied the proviso in s. 686(1)(b)(iii). Even with the alleged deficiencies the verdict would have been the same.
• 2001 BCCA 406 R. v. Tataryn
• 2001 BCCA 405 R. v. Marven John Wilson
  Appellant charged with two counts, being impaired and dangerous driving causing death. Convicted of dangerous driving only. Sentence of four years reduced to three years on grounds that sentencing judge appeared to place substantial weight on consumption of alcohol in face of acquittal on impairment count. See R. v. Brannan (1999) 140 C.C.C. (3d) 394 (B.C.C.A.).
• 2001 BCCA 396 R. v. Leopold
  The Court allowed a Crown appeal seeking to have the respondent designated a dangerous offender. At issue was the interpretation of s. 753(a)(iii). The Court imposed an indeterminate sentence.
• 2001 BCCA 395 R. v. Steen
• 2001 BCCA 394 HMTQ v. Bernier et al.
  The trial judge convicted the appellant as a party to two offences involving the use of weapons. The evidence did not support the conclusion that the appellant knew or ought to have known that the perpetrators of the crime would be using a weapon in the home invasion that gave rise to the charges. The appeal was allowed to the extent of reducing the conviction for robbery with a weapon to robbery simpliciter and reducing the conviction for assault with a weapon to assault.
• 2001 BCCA 391 R. v. Wilson
  MURDER – ADMISSIBILITY OF STATEMENTS OF ACCUSED – ADMISSIBILITY OF VIDEOTAPED STATEMENTS (RELIABILITY AND NECESSITY) – TESTIMONY OF CHILD WITNESS - JURY CHARGE ON INTENT AND INTOXICATION   Appeal from conviction of second degree murder. The appellant argued that the trial judge erred in admitting statements he made to a police officer, in admitting videotaped statements of two witnesses, and in allowing a child witness to testify. The appellant also submitted that the trial judge misdirected the jury on intent and intoxication. Held: Appeal dismissed (Donald J.A. dissenting). The trial judge did not err in admitting the appellant’s statements to the police officer because they were spontaneous utterances admissible under the exception provided in s. 56(3) of the Young Offenders Act. While the videotaped statements did not meet the requirement of necessity for the admission of hearsay evidence, the other evidence that the appellant participated in the crime was overwhelming therefore the verdict would have been the same without the videotaped statements. The appellant failed to show that the trial judge was wrong in finding that the videotaped statements did not meet the requirement of reliability. The trial judge did not err in allowing the child witness to testify. He twice explored the child’s capacity to give evidence and was satisfied that the child knew truth from falsehood. Finally, the charge to the jury adequately linked the evidence regarding the appellant’s intoxication and the application of the presumption of intent. Donald J.A., dissenting with regard to this final issue, found that the trial judge misdirected the jury regarding intent and intoxication.
• 2001 BCCA 385 R. v. Brown
  Interim release is denied pending appeal.
• 2001 BCCA 379 R. v. Kinde
  Charges of sexual assault causing bodily harm and sexual assault -  (1) Appellant arguing judge erred in concluding complainant suffered bodily harm - Court of Appeal, applying R. v. Dixon (1988), 42 C.C.C. (3d) 318, dismissing appeal on this issue.   (2) Appellant arguing late disclosure of a victim impact statement should result in a new trial - Court of Appeal concluding statement very similar to evidence previously disclosed and testimony at trial - appeal dismissed because no prejudice shown.
• 2001 BCCA 378 R. v. Moore
  Appeal allowed, a new trial ordered on a charge of assault causing bodily harm. The summary conviction appeal judge found that the trial judge erred in restricting the relevance of evidence but applied the curative proviso in dismissing the appeal. Held by a majority, the verdict may not have been the same if the evidence of prior animosity had been considered in self-defence. Per Hall, J.A. dissenting, there was no air of reality to the self-defence plea.
• 2001 BCCA 377 R. v. Shawdover
• 2001 BCCA 374 R. v. Arnold
• 2001 BCCA 371 R. v. Neubert
• 2001 BCCA 372 R. v. Creek
• 2001 BCCA 366 R. v. Sneve
• 2001 BCCA 365 R. v. Heward
• 2001 BCCA 364 R. v. Vallee
• 2001 BCCA 361 R. v. Lucas
• 2001 BCCA 358 R. v. Gregory
  Appeal dismissed from conviction for assault and extortion of complainant, a prostitute whose evidence had to be, and was, carefully assessed.
• 2001 BCCA 357 R. v. Kaiser
  Application for adjournment of sentence appeal granted to give counsel more time to assemble fresh evidence on mitigation
• 2001 BCCA 356 R. v. Birchall
  This appeal is by the Crown from a sentence granting a constitutional exemption from the minimum sentence for manslaughter involving the use of a firearm, namely four years imprisonment, and imposing instead a conditional sentence of one year, to be served in the community. Appeal allowed and minimum sentence substituted. The time spent serving a conditional custodial sentence in the community counts as part of the substituted sentence. Chief Justice McEachern dissents.
• 2001 BCCA 354 R. v. Nolan
• 2001 BCCA 352 R. v. McNarland
  Sentencing – Global 16 years.  Count 1 – Manslaughter (20 less 4)   Count 2 – Robbery - -using a firearm (6-4)  Count 3 – Kidnapping (10-4)  (Concurrent)
• 2001 BCCA 351 R. v. Nelson
  Prowse J.A. (for the majority):: Appeal from a conviction for sexual assault. On an application brought under s.276.1 of the Code, the trial judge ruled that evidence of prior sexual activity between the complainant and the accused was not admissible. The complainant testified in direct examination that, in repelling the accused's sexual advances, one of the things she told him is that she would not have sex with him that afternoon because it was too early in their relationship. Counsel for the accused did not seek to challenge this evidence on cross-examination, nor was he precluded from doing so. Held: Appeal dismissed. The trial judge did not err in her ruling on the s.276.1 application. There was no likelihood the trial judge was misled by this aspect of the complainant’s evidence. This case was distinguishable from R. v. Harris (1997), 118 C.C.C. (3d) 498 (Ont. C.A.) and R. v. Crosby, [1995] 2 S.C.R. 912, in which the complainants directly placed the nature of their relationship with the accused in issue and thereby opened the door to cross-examination. Further, the verdict in this case was not unreasonable.  Braidwood J.A. (dissenting): The trial judge did not err in dismissing the s.276.1 application on the basis that there was no air of reality on the evidence to support mistaken belief in consent. However, by making the statement that she did not want to have sex with the appellant as it was too early in the relationship, the complainant put the issue of the nature of the relationship squarely before the court. The effect of the s.276.1 ruling in this case was to preclude clarification of what the complainant meant by this statement in cross-examination. I am of the opinion that the accused did not have the opportunity to make full answer in defence as the complainant’s credibility on the crucial issue of consent was left unchallenged in this regard. I would allow the appeal and order a new trial.
• 2001 BCCA 349 R. v. Budai
  This appeal involved a juror entering into a personal relationship with one of a number of accused during the trial. All five judges agreed in the result that the appeal should be allowed and a new trial ordered. On the first ground of appeal, three judges agreed that the trial judge erred in law by failing to hold a proper inquiry into the ability of the juror to discharge her duties. On the second ground of appeal, four judges agreed that the fresh evidence established a real likelihood or probability of bias on the part of the juror raising an issue of law alone and allowing an appeal from an acquittal.
• 2001 BCCA 347 R. v. Dvorak
  Appeal from conviction for sexual assault with a weapon. At trial, the Crown led evidence of the accused's bad character through the direct examination of Crown witnesses. Held: Appeal allowed and a new trial ordered. Although the admission of the evidence of bad character was not, in itself, fatal to a fair trial, the failure of the trial judge to warn the jury that they could not use this evidence as evidence of propensity to commit the offences charged was non-direction amounting to mis-direction.
• 2001 BCCA 342 R. v. Walcot
  This appeal is by the Crown from a sentence granting a constitutional exemption from the minimum sentence for manslaughter involving the use of a firearm, namely four years imprisonment. Appeal allowed and minimum sentence substituted. The time spent serving a conditional custodial sentence in the community counts as part of the substituted sentence. Chief Justice McEachern dissents and would dismiss the Crown appeal.
• 2001 BCCA 340 R. v. Grandin
  Appellant was convicted of aggravated assault on a trial by judge and jury. The only defence raised was self defence. The trial judge refused to charge the jury on s.34(1) of the Criminal Code, and charged instead only on the defence provided by s.37.    The appeal against conviction was dismissed. The trial judge did not err in charging the jury only on the self defence provisions of s.37, as they provided a broader defence in the circumstance than did s.34(1). The judge did not err in his instructions on s.37 as to the evidentiary use to which the complainant’s criminal record could be put or the circumstances relevant to the defence. Nor did he err in refusing to charge on honest but mistaken belief.
• 2001 BCCA 341 R. v. Perry   
  Sentence Appeal- Appeal allowed in part. The appellant was sentenced to 5 years for aggravated assault, 5 years for assault with a weapon and 6 months for escaping lawful custody, all to be served concurrently. The sentencing judge did not err in sentencing the appellant to 5 years for aggravated assault, nor did he err with regard to the consideration of the rehabilitative efforts of the appellant while in pre-sentence custody. However, the sentencing judge erred in sentencing the appellant to 5 five years for assault with a weapon. The sentence was reduced to 4 years. The sentencing judge also erred in failing to credit the appellant for the 9 months he spent in pre-sentence custody. Due to the fact that the appellant had the benefit of some programs while in pre-sentence custody, he was accorded 12 months’ credit. The sentencing judge also erred in making the sentences under appeal consecutive to an earlier sentence, as the appellant was no longer subject to the earlier sentence at the time of sentencing.
• 2001 BCCA 336 R. v. Rindero
  Charter issues not pursued by the appellant at trial could not be raised in the Court of Appeal because of the state of the record.
• 2001 BCCA 335 R. v. Seabrook
• 2001 BCCA 324 R. v. Linton
  The court dismissed an appeal from conviction of offences arising out of the accused’s management of elderly complainants’ property. It found no error by the Crown or trial judge that justified a stay of proceeding or a new trial.
• 2001 BCCA 323 R. v. Price
• 2001 BCCA 322 R. v. Yim
  Appeal against conviction for attempted murder. The appellant argued that an example used by the trial judge to illustrated the difference between direct and circumstantial evidence may have confused the jury into believing that evidence of limited value was more significant than it really was. Held: Appeal dismissed, the judge’s charge did not mislead the jury.
• 2001 BCCA 320 R. v. S.G.F.
  Prowse J.A. (for the majority): Appeal from a conviction for sexual assault. The child complainant initially adopted what she had said in a videotaped interview. During her testimony, she retracted much of what she had said on the videotape. Held: Appeal dismissed. The trial judge reviewed the evidence in detail and properly approached the complainant’s evidence with caution. There was evidence to support his conclusion. The verdict was not unreasonable. Saunders J.A. dissenting: The appeal should be allowed.
• 2001 BCCA 315 R. v. Seymour
  After some drinking and ingestion of drugs, the appellant shot and killed a friend about whom he had made death threats on a number of recent occasions. In several statements made at the time of his arrest immediately after the shooting the appellant admitted the offence, and he made up a false story that the deceased had raped his daughter. The defence was drunkenness on which there was conflicting evidence. The jury found the appellant guilty of second degree murder.  There being no other defence, the grounds of appeal all alleged misdirection on questions of evidence and on the defence of drunkenness.  Held: The appeal was dismissed. None of the grounds alleged, either individually or collectively, justified appellate interference.
• 2001 BCCA 316 R. v. Wright
• 2001 BCCA 312 R. v. MacDougal
  Crown Sentence Appeal: Crown appeals a sentence of 2 years to be served in the community and a 3 year probation period for the respondent who as a person in authority in a provincial jail sexually abused frightened young boys by giving assurance of protection if they submitted to his sexual demands. Appeal allowed. Sentence increased to four with 3 months credit for time served.
• 2001 BCCA 310 R. v. Casimir
  Sentence Appeal: appellant an aboriginal person was sentenced to 3 ½ years for the offence of impaired driving causing death. The question, was such sentence was a fit one having regard to the provisions of Code S. 718.2 (e).  Held: the sentence was fit having regard to the review of the appellant for criminal offences and the very aggravated circumstances of the case.
• 2001 BCCA 308 R. v. Hulshof
  Sentence appeal on counts of aggravated assault and robbery. Sentence of 5 years for assault (with allowance of 6 months for time served) and one year concurrent for the robbery. Sentence of 5 years reduced to 4 years because of range established by authorities and because accused shows good signs for rehabilitation
• 2001 BCCA 306 R. v. Haber
  Sentence of 9 months for possession of a prohibited weapon upheld.
• 2001 BCCA 302 R. v. Kovacevic
• 2001 BCCA 301 R. v. Moghaddam
• 2001 BCCA 300 R. v. Jacques
• 2001 BCCA 299 R. v. Munro et al.
  Sentences of imprisonment for growing marijuana converted to conditional sentences of imprisonment.
• 2001 BCCA 287 R. v. Siokas
• 2001 BCCA 297 R. v. Gibson
  The appellant was convicted of second degree murder. He submitted that the trial judge erred in permitting evidence of bad character to go before the jury and in refusing to charge the jury on the defence of provocation as found in s. 232 of the Criminal Code. Held: The appeal was dismissed. The trial judge properly instructed the jury on the limited use of the character evidence. There was no evidence to go to the jury on the statutory defence of provocation.
• 2001 BCCA 295 R. v. Cachine
  A Provincial Court Judge has jurisdiction to impose bail conditions on a person against whom an information has been sworn for a peace bond under s.810.2 of the Criminal Code.
• 2001 BCCA 293 R. v. Ballony-Reeder
  Appellant convicted by a jury of being a party to trafficking in cocaine — arguing that judge erred in allowing police officer to go beyond proper scope in giving opinion evidence, in charge given concerning evidence, (circumstantial or direct?), and in failing to correct inflammatory comments made by Crown counsel. Crown arguing judge did not err and in the event error found court, should apply curative provision.   Held: 1. Although officer arguably permitted to go too far in expression of opinion of observed events, core testimony of officer admissible as opinion evidence.  2. Comments of Crown counsel not acceptable but trial judge did caution jury concerning same. Perhaps caution should have been more emphatic.  3. Instructions on evidence sufficed having regard to the authorities, even assuming for sake of argument that evidence was circumstantial in nature. Evidence probably more correctly classified as direct.  In any event, despite some error in proceedings as noted in (1) and (2), because of strength of case, this is an appropriate case to apply curative provision. Appeal dismissed.
• 2001 BCCA 289 R. v. Labbe
  Application for release pending determination of appeal dismissed. The appellant did not establish that his detention was not necessary in the public interest.
• 2001 BCCA 277 R. v. Tri-M Systems
  The court dismissed this appeal challenging the constitutional validity under s.11(d) of the Charter of the photo-radar provisions of the Motor Vehicle Act. The provisions do not infringe s.11(d).
• 2001 BCCA 273 R. v. Bagri
  The Court confirmed a detention order under s. 515(10)(b) and (c) of the Criminal Code. The applicant is charged with attempted murder of Tara Singh Hayer in August 1998 and offences including murder and conspiracy to murder arising from the Air India and Narita Airport explosions in June 1985.
• 2001 BCCA 272 R. v. Harrison
  Appellant appealed from his conviction for first degree murder. Appellant argued judge erred in admitting and in giving instructions concerning hearsay statements of deceased, erred in instructions concerning post-offence conduct and treatment of statements of deceased and erred as well by falling into Miller error in course of instructions. Court holding that errors found concerning admissibility and instructions relative to hearsay statements in R. v. Starr (2000) 147 C.C.C. (3d) at 49 (S.C.C.) not existing in this case because here no live issue as to presence of appellant and deceased together at time of homicide and no issue as to reliability of statements. No errors found in instructions relative to post-offence conduct or how jury to consider exculpatory and inculpatory portions of statements - R. v. Ryznar (1986), M.J. No. 443 approved. Because of overwhelming strength of case against appellant, court concluding it would be appropriate to apply curative provision despite existence in jury instructions of Miller error. Appeal dismissed.
• 2001 BCCA 266 R. v. Miclash
• 2001 BCCA 265 R. v. Miguel
  Appeal from convictions from one count of robbery and one count of sexual assault dismissed. The trial judge did not misapprehend the identification evidence in any significant way and the verdicts were reasonable and supported by the evidence.
• 2001 BCCA 260 R. v. Richardson
  Appeal against conviction for possession of cannibis resin found in a warrantless search of the trunk of the appellant's vehicle. Upon stopping the appellant's car in a traffic roadblock a strong smell of marijuana was noted. Appellant produced a small quantity of marijuana bud and some hashish oil from his person. Officers then searched the trunk of the vehicle on objection from appellant and found a large quantity of marijuana. The trial judge applied Charter s. 24(2) and admitted the evidence. Held: Hall J.A. dissenting; the appeal was dismissed on the ground that the circumstances did not justify disagreement with the decision of the trial judge to admit the evidence notwithstanding the absence of a warrant.
• 2001 BCCA 254 R. v. Courtereille
  Sentence appeal: Parole ineligibility period reduced from 14 to 12 years because of aboriginal status of offender.
• 2001 BCCA 249 R. v. Scott
  A global sentence of four and one-half years imprisonment was not unfit for conviction on two counts of robbery having regard for all relevant factors.
• 2001 BCCA 247 R. v. MacDonald
  Appeal from sentences of 2 years less a day imprisonment and 3 years probation with respect to two counts of gross indecency and two counts of sexual assault dismissed, except to the extent of deleting an order of prohibition under s. 161(1)(b) of the Code.
• 2001 BCCA 238 R. v. Schizgal
  The appellant was convicted of two counts of break and enter and committing mischief contrary to section 348(1)(b) of the Criminal Code. Damage caused to the doorframes of the residences during the process of breaking and entering was held to be mischief, constituting the indictable offence referred to in s. 348(1)(b). The appeal concerns whether the trial judge erred in determining that the elements of the offence outlined in s. 348(1)(b) were proven on these facts. Braidwood J.A. (for the Court): The appeal is allowed. Breaking and entering, in itself, does not constitute an offence as contemplated by s. 348(1)(b). The evidence disclosed that Mr. Schizgal’s intent in breaking into the apartments was to escape his pursuers, not to commit an indictable offence therein. Therefore, the appellant did not break and enter and commit an indictable offence.
• 2001 BCCA 236 R. v. G.E.B.
• 2001 BCCA 234 R. v. Mapara
  Application for release pending hearing of appeal of conviction for first degree murder. Parliament has not excluded persons convicted of first degree murder from s. 679 of the Criminal Code. Counsel to be heard on issue of upon what terms the appellant shall be admitted to bail.
• 2001 BCCA 233 R. v. Garcha
  A global sentence of seven years imprisonment was held to be fit for convictions on multiple counts of robbery and unlawful confinement arising from three separate robberies at commercial premises. The trial judge did not misapprehend the appellant’s degree of involvement in each of the robberies, and did not err in imposing consecutive sentences.
• 2001 BCCA 231 R. v. Scott
  Sentence appeal - Historical sexual assaults on young children by person coaching sports activities - Court upholding custodial sentence but reducing it to provincial time from three year sentence.
• 2001 BCCA 230 R. v. W.G.B.
• 2001 BCCA 228 R. v. Zagar
  At conviction appeal against "grow operation" finding based on alleged "confusion" in duplicate certifi