B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

CRIMINAL 2003

• 2003 BCCA 1 R. v. J.G.T.
  Written reasons to follow where appeal from conviction for robbery dismissed. The appellant sought to have his plea of guilty withdrawn on grounds that the trial judge had not ensured that he was pleading guilty to all the elements of the offence and that the appellant had received ineffective assistance of counsel.
  Appeal dismissed as no merit in the grounds advanced.
• 2003 BCCA 13 R. v. Nguyen
  Appellant charged with manslaughter after fatal stabbing of man who appeared to be engaged in a sexual assault of wife of appellant. In answer to question of jury about use of excessive force in case of self defence, judge referring to "fair fight" and "tit-for-tat" as being matters to be considered by jury. Court of Appeal finding misdirection and ordering new trial.
• 2003 BCCA 15 R. v. Homer
  Three year sentence for impaired driving causing death upheld on appeal.
• 2003 BCCA 17 R. v. Bugle
  Extortion - identification based largely on circumstantial evidence – party to offence appealed and asserts unreasonable verdict. Appeal dismissed.
• 2003 BCCA 18 R. v. Larsen
  The appellant appealed his conviction for first degree murder. The victim’s partially-nude body was found in a farmer’s field in 1978 following a late-night party during which she had disappeared. She had been asphyxiated. Semen was found in her mouth and on her sweater and human hairs were found in her hand. A hair and fibre analyst concluded that the human hairs matched neither the victim nor the appellant. The police discontinued their investigation when they were unable to identify and charge the killer. During a reorganization of their laboratories, the police destroyed the hairs. Several years later, they revived the investigation. They obtained DNA samples from most of the young men who were at the party, including the appellant. The appellant’s DNA matched the semen DNA and he was charged. At trial, the Crown relied upon two written autopsy reports of a pathologist who died before trial and upon the observations and opinions of a pathologist who examined the body at the scene of the crime. Both noted signs consistent with a sexual assault and manual strangulation. The Crown also relied upon the testimony of a third pathologist who based his opinion that the victim was manually strangled during the course of a sexual assault primarily upon the observations and opinions of the other two. The appellant submitted that the trial judge erred in admitting the reports of the deceased pathologist and in failing to grant a remedy for the destruction of the human hairs by the police. He also urged that the verdict was unreasonable or unsupported by the evidence. Held: The reports of the deceased pathologist were properly admitted. The first report was admissible under the traditional exception to the hearsay rule for statements made in the course of a duty. Both reports were admissible under the principled hearsay analysis. The trial judge did not err in refusing to grant a remedy for the destruction of the hairs since he concluded that the evidence was not lost as a result of unacceptable negligence or malevolence and that the appellant had not shown any actual prejudice arising from the loss. The evidence against the appellant was overwhelming. Moreover, as he elected not to testify, he did not provide an innocent explanation. Appeal dismissed.
• 2003 BCCA 19 R. v. Lehoux
• 2003 BCCA 20 Earles v. U.S.A. & Canada
  Appeal from the order of an extradition judge committing the appellant into custody to await surrender, and application for judicial review of the Minister’s order surrendering the appellant to the State of Oklahoma for trial. The main issue was the extradition judge’s refusal to permit cross-examination on the affidavits filed on the extradition hearing, and the Minister’s failure to consider relevant matters in the exercise of her discretion.
  Both the appeal and the application were dismissed.
• 2003 BCCA 22 R. v. Mojtahedpour
  Intercepted private communication held to be beyond parameters of authorization because police placed accused and parents in room at police headquarters which had been wired for interception. Authorization permitted interception in places "resorted to" or "used by" targets. Concurring judge finding conversation inadmissible on basis that procedure adopted gave police too broad a discretionary power to intercept – R. v. Thompson, [1990] 2 S.C.R. 1111, referred to. New trial ordered to permit trial judge to address s. 24 issue of admissibility.
• 2003 BCCA 23 Hickey v. Kent Institution
  There is jurisdiction in the Supreme Court of British Columbia to entertain an application for habeas corpus after the authorities in a federal institution have ordered a transfer to a more confined form of incarceration and the transfer has been made. Habeas corpus is discretionary however, and may not be granted where alternative remedies exist.
• 2003 BCCA 24 Bernard v. Kent Institution
  This appeal was determined on the same basis as Hickey v. Kent Institution, 2003 BCCA 23, which is being released at the same time.
• 2003 BCCA 25 R. v. Robinson
  Appeal allowed.
• 2003 BCCA 27 R. v. Hyatt and Pawlak
  The appellants appealed their convictions for offences arising out of an armed robbery on grounds relating to the admission of evidence against them. The trial judge did not err in concluding that the appellants were not arbitrarily detained by the police nor that they had failed to establish an expectation of privacy in the glove box (or its contents – the stolen property) of the vehicle in which they were passengers when the police stopped them shortly after the robbery. Although the appellants were questioned in violation of their right to counsel, there was no connection between that Charter breach and the discovery of the stolen property in the glove box. Accordingly, the real evidence was not “derivative evidence.” The appellants had no standing under s-s. 24(2) of the Charter to rely on breaches of the constitutional rights of the driver of the vehicle as a basis to exclude either the real evidence found inside her vehicle or her testimonial evidence. In any event, although the statement obtained from the driver was taken in violation of her right to legal assistance and would not have been admissible against her, her testimony was given voluntarily. While the trial judge was critical of the police conduct vis a vis the driver, she did not err in concluding that it did not amount to an abuse of process or to a violation of the appellants’ rights under either s.7 or s-s. 11(d) of the Charter.
• 2003 BCCA 28 R. v. Demers
  Dismissal of an appeal challenging the constitutional validity of s. 2(1) of the Access to Abortion Services Act, R.S.B.C. 1996, c. 1.
• 2003 BCCA 33 R. v. Silbernagel
• 2003 BCCA 35 R. v. O'Neill
  Appeal from a custodial sentence of two years less a day, and three years probation for conviction on one count of sexual assault on an 11 year old girl. The appellant has served ten months in pre-trial custody. He had a bad record of offences including assault and sexual assault.
  Leave to appeal was granted, but the appeal was dismissed.
• 2003 BCCA 36 Davies v. Pedersen
  This is an application for leave to appeal an order which dismissed the defendant’s application to have the plaintiff’s solicitor cease to act as counsel or solicitor of record. If leave be granted, a stay of the underlying proceedings that ensued from a landlord – tenant altercation is further sought. Held: Appeal dismissed. Considering the general practice that plaintiffs who sue together are jointly represented and the general restraint on court interference with counsel of choice, the issues failed to satisfy the criteria for granting leave to appeal.
• 2003 BCCA 43 R. v. Forknall
  The failure by the trial judge to give the "Hodgson warning" was not an error in the circumstances of this case.
• 2003 BCCA 44 R. v. Clark
  Application for leave to appeal from the decision of a summary conviction appeal court judge allowed.
• 2003 BCCA 47 R. v. Edwards
  The accused appeals his conviction of one count of sexual exploitation contrary to the s. 153 of the Criminal Code. The accused, then a 27 year old dance instructor, admitted to engaging in consensual sexual conduct with the 14 year old dance class member. The class was conducted under the auspices of the local government, in a secondary school.
  The sole issue argued at trial was whether the accused was in a position of trust towards the victim. Held: Appeal dismissed. The facts found by the trial judge support the finding of a position of trust.
• 2003 BCCA 48 R. v. Q.V.T.M.L.
  The appellant was convicted of second degree murder. He and a number of others recruited by him stormed into a nightclub, chased the customers, and bludgeoned one of them to death. There was no evidence that the appellant participated directly in the killing. His appeal was allowed and a new trial was directed on the ground that, in her initial charge to the jury and in her response to their subsequent questions, the trial judge failed to clearly explain the mens rea required of an aider under s. 21(1)(b) of the Criminal Code and failed to make it clear to the jury that they might convict of manslaughter even if they were satisfied that the unknown perpetrator had committed murder.
• 2003 BCCA 51 R. v. Green
  Appellant drilling supervisor convicted of harassing and assaultive behaviour against complainant female first aid attendant at an oil drilling camp in northern B.C. Sentenced after trial to 30 months in jail. Only after failure of conviction appeal did he acknowledge his guilt of the offences. Court permitting additional evidence to be adduced on appeal from a psychologist who interviewed appellant and wife. Appellant seeking conditional sentence but majority of Court holding incarceration necessary. Having regard to history of proceedings and since appellant spent some time already in custody, some reduction found appropriate. Sentence varied to one year incarceration. Dissenting judge would not have altered sentence, given less than satisfactory attitude of appellant and conduct involving a vulnerable employee.
• 2003 BCCA 60 R. v. Dunbar et al
  Application to review directions given by Chambers judge refused.
• 2003 BCCA 62 R. v. Pangowish; R. v. Walker
  Two appeals, which had common issues, were heard at the same time. Walker appealed his conviction for second degree murder and Pangowish, his conviction for manslaughter. The grounds of appeal were that the trial judge: (1) misdirected the jury on the effect of an intervening act on the issue of causation; (2) failed to incorporate the concept of reasonable doubt in her instructions on an intervening act; (3) failed to instruct the jury to separate the issue of causation as between the two appellants; and (4) misdirected the jury in her instructions on parties to an offence. Walker also argued that under s. 24(2) of the Charter of Rights and Freedoms the trial judge erred in not excluding from evidence some items of clothing that had been seized from him. Appeals dismissed.
• 2003 BCCA 63 R. v. Cai
  Appeal from an order of the Supreme Court of British Columbia refusing leave to extend the time for a summary conviction appeal. Appellant, a self-represented litigant, was granted an adjournment of the appeal as there were possible questions of law which might be raised, which had not been inquired into, and which the appellant should have an opportunity to investigate.
• 2003 BCCA 64 R. v. Jordan
  Sentence appeal dismissed. Appellant was convicted of 2 counts of breach of recognizance prohibiting him from consuming alcohol in a "Red Zone" or in the presence of a female. Sentence was 15 months' imprisonment and 3 years' probation. Appellant had a previous conviction for manslaughter in connection with the death of a woman who had ingested an extraordinary amount of alcohol while in his presence, and there was "similar fact" evidence of 6 other women who had died after consuming alcohol with the appellant. He had not dealt with his alcohol problem. The sentencing judge made no errors in principle and the sentence was not harsh or excessive.
• 2003 BCCA 65 R. v. Nguyen
  Both accused were convicted of second degree murder on evidence of a single gunshot from inside a vehicle. The two accused were the only occupants of the vehicle. The appeal of Nguyen as passenger was dismissed. The appeal of Dhak as driver was also dismissed but a verdict of manslaughter was substituted for the verdict of second degree murder. Dhak’s sentencing was remitted to trial court. Madam Justice Ryan dissented in part on Dhak’s appeal and would have ordered a new trial.
• 2003 BCCA 66 R. v. Muir
  The Crown appeals a decision under s. 753.1 of the Criminal Code designating the respondent a long-term offender rather than a dangerous offender following his conviction for sexual assault against a child. Appeal allowed; the long-term offender designation is set aside and a new dangerous offender hearing is directed. A statutory precondition of finding a person is a long-term offender is set out in s. 753.1(1)(c): “there is a reasonable possibility of eventual control of the risk in the community.” Reliance upon the assurances of a fixated paedophile that he is willing to submit to chemical castration without knowing what the side effects will be and without any firm evidentiary basis for concluding that the treatment will work for him does not satisfy the statutory precondition.
• 2003 BCCA 68 R. v. Ellard
• 2003 BCCA 69 R. v. Jebbett
  Appeal from parking violation based on the Magna Carta and Charter dismissed.
• 2003 BCCA 70 R. v. Brain
  Accused was charged with having "intentionally or recklessly" caused property damage by fire, contrary to s.434. At trial the Crown argued that the accused set the fire intentionally. The judge asked for and received written submissions on the issue of recklessness, and convicted on that basis.
  The appeal was dismissed. The accused had adequate notice that guilt might be founded on recklessness, and an opportunity to make full answer and defence. The judge applied the correct legal test for recklessness, and his verdict was not unreasonable.
• 2003 BCCA 78 R. v. Millar
  The Crown’s application to quash the appellant’s application to review the decision of the Chief Justice denying leave to appeal fro the decision of a summary conviction appeal court judge was granted. Based on this Court’s decision in R. v. Stojanowski, (2002) B.C.J. No. 2863, this Court has no jurisdiction to review the order of a single justice in a chambers denying leave to appeal from the decision of a summary conviction appeal court judge.
• 2003 BCCA 80 R. v. Patko
  Application under Section 680 of the Criminal Code for leave to appeal an order for accused’s continued detention pending trial. Granted.
• 2003 BCCA 83 R. v. Ertmoed
  Mr. Ertmoed applied for counsel under s. 684 of the Criminal Code. The Legal Services Society had determined that his conviction appeal should be funded, but it had a non-negotiable cap of $50,000 on the funding available. The costs of transcripts alone was estimated to be over $100,000. Held: Counsel appointed under s. 684 since, in these unusual circumstances, that was the way of ensuring a fair hearing of the appeal
• 2003 BCCA 84 R. v. Ertmoed
  The Crown applied to set aside an order appointing counsel for Mr. Ertmoed under s. 684 of the Criminal Code. Since the last appearance, the Legal Services Society had been promised additional funding from the Ministry of Attorney General to provide full funding for the appeal. Held: Application dismissed. The order under s. 684 had been made in the interests of justice and there was no principled basis for setting it aside. The Ministry should not compel indigent accused who satisfy the merits test set by the Legal Services Society for funding to seek additional funding under s. 684 of the Code. The Court is in no better position to assess the merits of the appeal, the need for full or partial transcripts or the likelihood of obtaining an agreed statement of facts than is the Legal Services Society.
• 2003 BCCA 89 R. v. Petanic
  Application for the appointment of counsel under s.684 of the Criminal Code dismissed on grounds that the proposed appeal against conviction was without merit.
• 2003 BCCA 92 R. v. Taylor
  The appellant appeals her conviction for second degree murder alleging error in the trial judge’s failure to leave the defence of provocation with the jury. The appeal was dismissed. There was no air of reality to the defence of provocation n the evidence.
• 2003 BCCA 103 R. v. Baynham
  Appeal from conviction of break and entry and theft from a computer store. The right to silence and inferences which may be drawn from silence are discussed (R. v. Jenkins and R. v. Noble). If there is a misapprehension of evidence then an appeal must be allowed unless no other conclusion than guilt could have been reached by the trier of fact, acting judicially. But no misapprehension of evidence was shown in this case.
  Appeal dismissed.
• 2003 BCCA 101 R. v. Beggs
  Sentence of four years imprisonment and an order for restitution upheld for nine counts of fraud. The fraud was committed by an employee of Revenue Canada whose high security designation permitted her to access computer records and to manipulate them to obtain phoney tax credits and refunds for herself and friends.
• 2003 BCCA 104 R. v. Taft
  Leave to appeal sentence refused.
• 2003 BCCA 106 R. v. A.D.
  Appeal from conviction for robbery and having face masked with intent Appellant argued that Crown failed to prove use of a firearm and that the charge under s.344 of the Code could not be sustained; that the trial judge admitted inculpatory statements in error; and that the judge erred as to sufficiency of the evidence on identification.
  The appeal was dismissed. The reference to robbery in the charge must be read together with the definition of robbery in s.343. The statements were properly admitted as spontaneous conversations of the accused unintentionally overheard by sheriffs. The trial judge made no error on the issue of identification.
• 2003 BCCA 108 R. v. Swanson
  This appeal from conviction of aggravated sexual assault, based on s. 686(1)(a)(i) of the Criminal Code, addressed the trial judge's conclusion that intent to apply the force that caused the injury could b inferred on the evidence; Held: Appeal dismissed. The evidence was capable of supporting the inference of intent to apply the force in question; as a reasonable person would foresee that the appellant's actions were likely to cause bodily harm, and the force was applied in the course of sexual assault, there was no basis with which to interfere with the verdict.
• 2003 BCCA 111 R. v. Dunbar
  Mr. Dunbar's renewed application for release pending his appeal is dismissed. He has not satisfied the requirement under s. 679(3)(c) of the Criminal Code that his detention is not necessary in the public interest. These reasons should be read together with R. v. Dunbar 2002 BCCA 682, dismissing Mr. Dunbar's earlier application for release.
• 2003 BCCA 116 R. v. Howie
  Appeal by the appellant from conviction of second degree murder. Appellant arguing that judge erred in charge of self-defence and after the fact conduct. Court of Appeal concluding no necessity to charge on s. 35 – reference to R. v. Pintar (1996) 110 C.C.C. (3d) 402 – Court finding no error in method judge dealt with after the fact conduct in charge to jury, R. v. Campbell (1997) 101 B.C.A.C. 217 distinguished. Appeal dismissed.
• 2003 BCCA 120 R. v. Duong
  Concurrent sentences of imprisonment for six months on two counts of trafficking in cocaine upheld.
• 2003 BCCA 124 R.v. Dupras
  Appealed from a conviction for second degree murder.
  The appellant sought a new trial on ground 1: that the trial judge failed to give a limiting instruction regarding a threat uttered against his wife, one of the victims, two weeks before he ran down and killed her and her boyfriend; ground 2 that the trial judge failed to adequately review the defence psychiatric evidence. He sought a substituted verdict of manslaughter on ground 3: the judge’s verdict of manslaughter in relation to the boyfriend’s homicide was inconsistent with the verdict in relation to the wife.
  Held: Appeal dismissed. No limiting instruction was required because the threats went directly to the issues of motive and intent and were not collateral. The trial judge adequately reviewed the psychiatric evidence and related it to the issue of intent. The verdicts were not inconsistent. The appellant hit the wife squarely and stuck the man with a glancing blow. There was other evidence indicating that the wife was the was the target thereby justifying the different verdicts.
• 2003 BCCA 129 R. v. Dizenbachs
  The appellant represented himself in a trial for impaired driving before a judge and jury. He was convicted. It was argued that the trial judge had not sufficiently assisted the accused at his trial. The appeal was dismissed. The standard required from a trial judge as set out in R. v. B.K.S. was applied.
• 2003 BCCA 131 R. v. Mapara; R. v. Chow
  Both accused were convicted of first degree murder. Chow appealed on the basis that the verdict was unreasonable, that he should have been granted severance, and that wiretap evidence implicating him in the murder should have been ruled inadmissible. Mapara appealed on the basis that the verdict was unreasonable, that he should have been granted severance, that a hearsay statement made about his involvement in the murder should have been ruled inadmissible, that wiretap evidence should have been excluded, that the trial judge should have directed a verdict of not guilty and that the cumulative effect of five factors created a miscarriage of justice. Appeal dismissed. Both verdicts were reasonable and supported by the evidence. The wiretap evidence was properly admitted. The trial judge’s refusal to grant severance of both Chow and Mapara did not lead to a miscarriage of justice. The trial judge was correct in ruling that there were circumstantial guarantees of trustworthiness surrounding the hearsay statement implicating Mapara in the murder and that the statement was admissible. This was not a case for a directed verdict. The five factors said to have produced a miscarriage of justice were nothing more than the vicissitudes of criminal litigation.
• 2003 BCCA 134 R. v. Bernier
  Application for leave to appeal and appeal from a sentence essentially of fourteen years on a charge of breaking and entering with intent to commit an indictable offence at a time when the presence of the householder was known to the perpetrators, popularly called a "home invasion". Leave granted; appeal allowed. Sentence reduced to six years. The judgments explain the concept of "range" in sentencing.
• 2003 BCCA 136 R. v. Hunyh
• 2003 BCCA 138 R. v. Bauer
  Appellant was convicted of producing marihuana and possession for the purpose of trafficking based on evidence that he lived in house where grow operation was discovered. Argument advanced on appeal was that evidence not sufficient concerning control and knowledge to properly found convictions. Court of Appeal holding that evidence sufficient and conviction not unsafe, R. v. Hubble 2002 BCCA 561 applied.
• 2003 BCCA 141 R. v. Brown
  An appeal from a conviction on two counts of possession of a controlled substance for the purpose of trafficking was dismissed. The trial judge did not err in concluding that the search of the room in which the drugs were found in plain view following a 911 call was lawful despite the absence of a warrant because the police were acting within the scope of their general duty to protect life when they entered the room. Further, the trial judge did not misdirect himself on reasonable doubt and he did not err in drawing an adverse inference form the unexplained possession by the appellant of a suspiciously large amount of cash.
• 2003 BCCA 142 R. v. Antonius
  The appellant sought a new hearing of the Crown's application that he be declared a dangerous offender and be given an indeterminate sentence. He claimed that the sentencing judge's refusal at a late stage of the proceedings to grant him a further adjournment to seek expert evidence deprived him of the right to make full answer and defence. The sentencing judge applied the proper principles in exercising his discretion on the adjournment application. The appellant did not demonstrate to the sentencing judge or to this court that the appellant reasonably could be expected to provide expert evidence helpful to him on the critical issues of risk and treatment. Appeal dismissed.
• 2003 BCCA 150 R. v. Jimmie
• 2003 BCCA 152 R. v. Howse et al
  The five applicants for leave to appeal, all of whom claim to be Metis, asserted an aboriginal right to hunt in defence of charges laid under the provincial Wildlife Act. The Applicants were acquitted at trial in the provincial court but on summary conviction appeal, the acquittals were set aside and convictions entered. Crown counsel conceded that some of the points the applicants wish to go forward to appeal raise issues of law alone and are of general importance but argued that the appeals have no prospect of success. Regardless of what the outcome may be on an appeal, the issues raised deserve the attention of a panel. Leave granted.
• 2003 BCCA 159 R. v. Brienza
  The appellant was charged with possession of marihuana and possession of cocaine for the purpose of trafficking. He was acquitted of the marihuana count and convicted on the cocaine count.
  There was no direct evidence to show that the appellant had control over the cocaine and/or had knowledge that the cocaine was present in his home.
  Appeal allowed and conviction set aside.
• 2003 BCCA 161 R. v. Lohrer
  Application for release pending conviction appeal refused on the “public interest” ground in s. 679 of the Criminal Code.
• 2003 BCCA 164 R. v. Millar
  Application for leave to appeal the order of a summary conviction appeal judge ordering a new trial. The applicant was charged with failing to file income tax returns. Her application to the trial judge for disclosure of documents over which there was solicitor-client privilege was granted without reference being made to either R. v. McClure, [2001] 1 S.C.R. 445 or R. v. Brown, 2002 SCC 32, 162 C.C.C. (3d) 257.
  Leave refused as none of the proposed grounds of appeal has a reasonable possibility of success.
• 2003 BCCA 165 R. v. Dunbar
  An application under s.680(1) of the Criminal Code for a direction to review the order of a judge refusing release pending appeal was allowed as there was an arguable case to present.
• 2003 BCCA 167 R. v. Lena
  Eight interlocutory appeals in these criminal proceeding quashed.
• 2003 BCCA 183 R. v. McPherson
  Sentence of 18 months for third robbery conviction of youthful offender upheld.
• 2003 BCCA 184 R. v. Mohr
  Sentence of imprisonment of two years for possession of a stolen automobile upheld. Appellant has an extensive criminal record.
• 2003 BCCA 188 R. v. Wong
  It was not demonstrated that the trial judge erred in refusing to exclude from evidence pursuant to s. 24(2) marihuana found in the back of the appellant’s truck after he was stopped for speeding, although the search infringed his s. 8 Charter rights. Further, there was evidence before the trial judge to support the finding that the appellant was in possession of the marihuana. Appeal from conviction of possession for the purpose of trafficking dismissed.
• 2003 BCCA 190 R. v. Whittell
  A sentence of 12 months in custody, with “more credit” than double the 4 ½ months pre-sentencing custody, followed by one year of probation for a fourth conviction for possession of drugs for the purpose of trafficking was not demonstrably unfit in the circumstances.
• 2003 BCCA 196 R. v. Deslisle
  The appellant was convicted of two counts of importing protected species, Birdwing Butterflies, contrary to ss. 6(1) and 6(2) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, S.C. 1992, c. 52. He was sentenced to a fine of $25,000 on each count. He appealed from conviction on the basis that the trial judge should have imposed a conviction on only one count, pursuant to the principle set forth in Kienapple v. The Queen (1974), 15 C.C.C. (2d) 524 (S.C.C.). He appealed from sentence on the basis that the fines imposed were excessive. Held: Appeals dismissed. There was no legal nexus between the counts that would justify the application of the Kienapple principle. Although the fines were substantial, they were fit given the aggravated circumstances of the offences.
• 2003 BCCA 198 R. v. Burgar
  Rule 13(3) application dismissed. Directions given.
• 2003 BCCA 199 R. v. Mooring
  Both appellants were convicted of second-degree murder and other offences arising out of the robbery of a jewellry store and the killing of a store employee. The trial was by judge alone. The appellant Mooring claimed that certain wiretap evidence should not have been admitted as against him. In an earlier appeal, this Court ruled that the wiretap evidence had been obtained by the state in breach of this appellant's rights under s. 8 of the Charter. The Court directed the trial court to determine admissibility under s. 24(1) of the Charter. In complying with that direction, the trial judge made no error in admitting the evidence convicting Mooring. The appellant Woods claimed error in the finding that he had the subjective foresight as a party under s. 21(2) of the Criminal Code in the murder by Mooring of a store employee. There is no merit in this claim.
• 2003 BCCA 206 R. v. Barton
  Appeal from sentence of 11 (effective 14) years for manslaughter dismissed. The sentencing judge made no errors in principle and the sentence is not unfit.
• 2003 BCCA 208 R. v. Gill
  Appeal from sentence of 5 years and 10 months imposed on charge of obstruction of justice. The appellant had an affair with one of the jurors empanelled on his trial with others for murder. Appeal dismissed
• 2003 BCCA 214 R. v. Edwards
  The appellant, a 26 year old dance instructor, was convicted of one count of sexual exploitation under s. 153 of the Criminal Code. The victim was a 14-15 year old girl. The appellant was sentenced to 9 months incarceration. On appeal the Court set aside the 9 months incarceration and sentenced the appellant to a 12 month conditional sentence. The Court concluded that the trial judge erred in failing to consider whether a conditional sentence with restrictive conditions would achieve the goals of denunciation and deterrence.
• 2003 BCCA 215 R. v. Witzke
  Appeal from consecutive sentences of 18 months each imposed for two robberies committed on the same day. No error in imposing consecutive sentences. Appeal dismissed.
• 2003 BCCA 218 R. v. Atchooay
  Appeal from sentence. The trial judge not having given any credit for the time spent in custody, the Crown, in effect, consented to the appropriate reduction of the sentence of imprisonment.
• 2003 BCCA 230 R. v. Franz
  The appellant appealed his conviction for murder on the basis that his confession to undercover police posing as criminals was not reliable, that the trial judge misunderstood the reason for the unreliability and that the trial judge may have used his disbelief of the defence evidence to bolster the case against the appellant. The appeal was dismissed. The reasons for judgment did not disclose the errors alleged by the appellant.
• 2003 BCCA 235 The Attorney General of Canada on behalf of the Repulic of Italy v. Michael Seifert
  No jurisdiction in chambers judge in Court of Appeal to stay extradition hearing pending appeal of ruling that person sought to be extradited is fit to instruct counsel.
• 2003 BCCA 237 R. v. Forsyth
  Leave granted to the appellant to be personally present at his appeal, pursuant to s. 688 of the Criminal Code.
• 2003 BCCA 242 R. v. Wells
  On a retrial, the appellant was convicted by a judge sitting without a jury on two counts of sexual touching of two young complainants. As a result of violence and threats of violence directed toward him by one of the complainant’s parents, the appellant made some inculpatory statements. Following a voir dire, the trial judge found that the parent was not a person in authority and admitted the statements into evidence. The main issue on the conviction appeal was whether the common law confessions rule is the only avenue for excluding from evidence confessions obtained under circumstances of oppression and violence. In the circumstances of this case, it was open to the trial judge to have excluded the evidence either under the common law or under ss. 11(d) or 7 of the Charter. As the trial judge’s reasons show that the statements were not used to support the verdict, s. 686(1)(b)(iii) of the Criminal Code was applied and the appeal was dismissed.
• 2003 BCCA 243 R. v. Poitras
  The condition in a probation order prohibiting the appellant from being in any retail outlet without the written consent of the probation officer, and accompanied by an “approved” person, was deleted as impractical.
• 2003 BCCA 245 R. v. R.J.H
  Appeal from convictions of sexual assaults on minor daughters dismissed. Court finding no error in way in which trial judge dealt with evidence of daughters which to some extent had elements of recovered memory.
• 2003 BCCA 246 R. V. Kerster
  Conviction for attempting to obtain for consideration sexual services of a person under the age of 18 years upheld. The offence was complete, the accused having the necessary intent, and having taken steps beyond mere preparation, even though the “person” with whom he intended to
  have sex, did not exist.
• 2003 BCCA 248 R. v. Chow
  Application to re-open appeal on a first-degree murder conviction.
  Decision released at same time as R. v. Hummel which reviewed the law on re-opening. Based on principles and factors discussed at greater length in Hummel, the court found that the applicant failed to establish a clear and compelling case that a miscarriage would result unless the new point was considered.
• 2003 BCCA 250 United States of America v. Taylor
  The decision of the Minister of Justice to surrender the appellant was set aside and the matter remitted to the Minister because the Minister failed to give responsive reasons for rejecting the appellant’s submission that to surrender him would be “unjust or oppressive having regard to all the relevant circumstances” pursuant to s.44(1)(a) of the Extradition Act, S.C. 1999, c. 18, and thus denied the appellant procedural fairness.
• 2003 BCCA 254 R. v. Wee
  Ms. Wee appealed from a three-year suspended sentence imposed on her for attempted forcible confinement arising in unusual circumstances. She asked this Court to substitute a conditional discharge as had been imposed on one of her co-accused. Held: Appeal dismissed. There was no basis for interfering with the sentence imposed.
• 2003 BCCA 258 R. v. Oakley
  The appellant contended that his conviction by a jury of sexual assault of a former girl friend was unreasonable and not supported by the evidence and that the trial judge erred in instructing the jury on inferences to be drawn from proven facts. The defence called no evidence. It was open to the jury to believe the evidence of the complainant on the issue of consent. It cannot be said that the verdict was unreasonable. A slip by the trial judge in her opening comments to the jury as to inferences of fact was overwhelmed by correct instructions in her final charge as to evidentiary matters, onus of proof and the theory of the defence. Appeal dismissed.
• 2003 BCCA 260 R. v. Preymak
  A sentence of 6 months' incarceration followed by 1 year of probation imposed to inflict a short, sharp shock to the appellant, who was convicted of trafficking in $40 worth of cocaine, was reduced to the 54 days of time served, while the probation order was retained, on the ground that 6 months' imprisonment was outside the range for a non-commercial, haphazard, minor trafficking offence.
• 2003 BCCA 262 R. v. Patko
  Review under Code s. 680 of the refusal by a Supreme Court judge to grant interim release under Code s. 522 on a charge of second degree murder. As provided for in s. 680, the review, by agreement, was heard by a single judge of the Court of Appeal. On the review, the Crown having accepted that there was no longer a factual basis for holding that the detention was necessary for the protection or safety of the public, and having regard to some other changes in the factual situation and to statements in cases of binding authority that it will be “relatively uncommon” for detention to be found necessary to maintain confidence in the administration of justice, interim release was granted.
• 2003 BCCA 263 R. v. Rhodes
  Crown appeal from an acquittal on a charge of second degree murder dismissed. The trial judge found the confession involuntary and procured by Charter breaches. Evidence of what respondent told her children about the fatal event ruled inadmissible as it was derived from Charter violations. No error of law shown. Reasonable basis in the evidence for each contested finding.
• 2003 BCCA 269 R. v. Lister
  Appeal from sentence of 15 months incarceration imposed on 60 year old man with no previous record for PPT $75,000.00 worth of marijuana in Saskatchewan. Charge waived to British Columbia for disposition by guilty plea and joint submission that 18 months appropriate sentence if in Saskatchewan. Counsel arguing on appeal that judge failed to fully consider circumstances of offender and gave undue deference to joint submission. Court of Appeal concluding that sentence a bit high on basis of Saskatchewan authorities. Giving credit of 3 months for time in custody, as had trial judge, sentence reduced from 15 months to 9 months. Court commenting on issues of waiving charges for disposition between provinces and joint submissions.
• 2003 BCCA 271 R. v. Morris
  Mr. Morris appealed from his sentence of 3 years and 10 months' imprisonment for a crime spree including 7 robberies. (The sentence was effectively 5 years' imprisonment after taking into account time in pre-sentencing custody.) He was a young heroin addict who had the support of his family and had set up a stringent program for his own rehabilitation. Held: Appeal dismissed. The sentencing judge had not erred in principle or otherwise in the imposition of sentence and the sentence was not unfit.
• 2003 BCCA 272 R. v. Porter
• 2003 BCCA 273 R. v. Holland
  Appeal from a sentence of five years imprisonment imposed for conviction on one count of sexual assault, involving four incidents of sexual intercourse and one of fellatio, on the 12 year old complainant. Appeal dismissed.
• 2003 BCCA 281 R. v. Eurosport Co. Ltd
  The respondents, Eurosport Auto Co. Ltd. and Frederick Hwang, were convicted of contravening section 42.1(2)(b) of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 by making statements or representations to ICBC that they knew or ought to have known were false or misleading. The respondents appealed their convictions and a judge of the Supreme Court ordered that the appeal be allowed and declared that section 42.1(2)(b) of Insurance (Motor Vehicle) Act is ultra vires the Province of British Columbia and is of no force and effect. The Crown and Attorney General of British Columbia appeal the order and declaration.
  Held: Appeal allowed and the outstanding grounds of appeal advanced in the Supreme Court of British Columbia remitted to that Court for determination. Section 42.1(2)(b) is constitutional as being intra vires the Province of British Columbia. Further, a conviction under s. 42.1(2)(b) based on objective rather than subjective knowledge does not violate section 7 of the Charter.
• 2003 BCCA 282 R. v. Schuck
  Court of Appeal concluding that the trial judge did not err in convicting appellant of aggravated assault despite consequences, (serious injury to face and jaw caused by falling on a cement curb) being more serious than intended by appellant who had assaulted the complainant. Court agreeing with trial judge that there was no substance in alleged defence of self defence. Conviction appeal dismissed.
• 2003 BCCA 282 R. v. Schuck
  Court of Appeal concluding that the trial judge did not err in convicting appellant of aggravated assault despite consequences, (serious injury to face and jaw caused by falling on a cement curb) being more serious than intended by appellant who had assaulted the complainant. Court agreeing with trial judge that there was no substance in alleged defence of self defence. Conviction appeal dismissed.
• 2003 BCCA 284 R. v. Girling
• 2003 BCCA 287 R. v. Deadder
  Appeal of sentence to increase the sentence to one of two years allowed.
• 2003 BCCA 288 Goncalves v. Martins et al
  Appeal from an order for damages in an action for deceit. There was a body of circumstantial evidence to support the trial judge’s findings. Appeal dismissed.
• 2003 BCCA 291 R. v. Nguyen
  Sentence appeal from sentence of two years less a day in custody for possessing heroin and cocaine for the purposes of trafficking. Appeal dismissed. The sentence was not unfit.
• 2003 BCCA 293 R. v. Wong
  Appeal from a three month conditional sentence for possession of marihuana for the purposes of trafficking in an amount less than 3 kilograms dismissed as not unfit.
• 2003 BCCA 294 R. v. Shah, R. v. Kokak
  Conditional sentence of one year substituted for custodial sentences of three months imposed on each of the two appellants.
• 2003 BCCA 301 R. v. M.D.S. (YOA)
  Appeal allowed and a new trial ordered where the trial judge misapprehended critical evidence which affected her reasons for finding the appellant guilty of four counts of sexual assault. The trial judge also erred in using the evidence of one complainant to bolster the evidence of other complainants where the Crown had not relied on similar fact evidence.
• 2003 BCCA 302 R. V. Clark
  The Court dismissed an appeal from a global sentence of 8-1/2 years for 11 offences of robbery, attempted robbery, and firearm offences, all committed while the appellant was serving two consecutive conditional sentences.
• 2003 BCCA 303 R. v. R.E. (YOA)
  Dismissal of a four month open custody sentence plus 18 months probation imposed on a young offender for robbery, assault and breach of probation charges.
• 2003 BCCA 308 R. v. Thompson
• 2003 BCCA 309 R. v. Humenny
  The appellant pled guilty to theft of a wallet, failing to comply with a probation order and failing to report. She was sentenced to six months in jail on each of the two probationary counts and six months in jail on the theft count to run consecutively, such that the overall sentence is one year imprisonment. The appellant appeals against her sentence.
  Held: Leave to appeal sentence granted but appeal from sentence dismissed. The appellant committed the offence only two days after having being released from jail on her last two theft convictions. The circumstances of this theft were similar to other thefts committed by the accused in which she targeted vulnerable people. The appellant failed to demonstrate that the sentence imposed is unfit.
• 2003 BCCA 319 R. v. Omelusik
  Appeal from convictions for possession of marihuana and cocaine for the purpose of trafficking. The substances were discovered during a search incidental to an investigative detention. Assuming the search violated s. 8 the evidence was admissible under s. 24(2) from the reasons of the trial judge.
  There was a brief delay in giving the appellant his Charter rights; and there was no practical means to allow him a private call to his lawyer at the scene of the arrest. He was given the opportunity to call half an hour later at the jail. Ruling that no breach of s. 10(a) (b) occurred upheld. Appeal dismissed.
• 2003 BCCA 321 R. v. Sull
  A driving prohibition imposed pursuant to s. 98 of the Motor Vehicle Act following conviction for a driving offence contrary to the Criminal Code was not a "sentence" and cannot be varied on a sentence appeal because the prohibition was imposed for public safety reasons under the provincial legislation and not as punishment for the criminal offence.
• 2003 BCCA 325 R. v. Bekar
  The appellant's appeal of his conviction for two counts of threatening was dismissed. The appellant demonstrated no error on the part of the trial judge in any of her rulings or charge to the jury.
• 2003 BCCA 326 R. v. Cook
  Appeal from order for 15 year parole ineligibility dismissed. Trial judge did not err in emphasizing need for denunciation.
• 2003 BCCA 332 R. v. P.J.C.
  Conviction set aside on the ground that the reasons of the trial judge failed to comply with the minimum requirements set out in R. v. Sheppard, [2002] 1 S.C.R. 869.
• 2003 BCCA 336 R. v. Holt
• 2003 BCCA 337 R. v. Lau
  The Court of Appeal allowed an appeal holding that evidence obtained by battering down the door at a residence should be excluded under s. 24(2) of the Charter as a breach of s. 8. The decision to use the battering ram was based solely on police policy rather than the dictates of s. 12 of the Controlled Drugs and Substances Act.
• 2003 BCCA 339 R. v. Vu
  The trial judge did not err in rejecting a conditional sentence. A sentence of imprisonment for one year for possession, for the purpose of trafficking, of marihuana found in a large and sophisticated marihuana grow operation is not demonstrably unfit in the circumstances.
• 2003 BCCA 341 R. v. Benham
  A provision in the B.C. Hydro and Power Tariff enacted under regulatory powers in s. 125 of the Utilities Commission Act, R.S.B.C. 1996, c. 473 giving B.C. Hydro employees access to the property of consumers in order, inter alia, to determine if theft of electricity is occurring is not unconstitutional. It is part of a regulatory scheme, involves a minimal invasion of privacy and is for a legitimate commercial purpose. The decision of Neilson J. in R. v. Bourque, [2001] B.C.J. No. 1298 (QL), followed by the trial judge in the present case, was correctly decided.
• 2003 343 H.M.T.Q. v. Ackland
  Appeal from conviction for second degree murder. Appellant said the trial judge erred in his instruction to the jury concerning the credibility and reliability of two witnesses who testified to statements made by the deceased and that the judge should have charged in accordance with the reasons in R .v .A. (S.) (1992), 76 C.C.C. (3d) 522. Appeal dismissed.
• 2003 BCCA 349 R. v. Dunbar
  Application for review of a decision of a chambers judge dismissing the appellant's application for release pending his appeal from conviction for first degree murder. Held: application dismissed. The appellant's evidence in support of his grounds of appeal did not, when weighed with conflicting evidence, persuade the Court that he had "very strong" grounds of appeal, as required to meet the onus on him to establish that his detention is not necessary in the public interest.
• 2003 BCCA 351 R. v. Baidwan
• 2003 BCCA 353 R. v. Robinson
  Appeal from conviction of second degree murder. Appeal allowed on the ground that the verdict was unreasonable. The principle evidence against the accused was a small amount of his DNA found beneath the deceased’s fingernails. The evidence in respect of DNA transfer was ambiguous. The DNA transfer could have occurred in incidental and innocent contact in the several hours the two were together prior to the killing. The other circumstantial evidence did not point to the appellant’s guilt over any other person. Order that an acquittal be entered.
• 2003 BCCA 358 R. v. Wesley
  The appeal was dismissed. The verdict was not unreasonable. The trial judge provided sufficient reasons in the circumstances
• 2003 BCCA 364 R. v. Schedel
  The appellants were convicted as operators of a marijuana grow operation on evidence obtained by police officers who executed a search warrant issued under the Criminal Code by entering their residence without prior notice or announcement with guns drawn and by the use of a battering ram. In the years 1996 to 1999, the Vancouver Police Department had a policy of effecting entry in that way, even where they had no reason specific to the location for so doing. That manner of entry was so serious a breach of s.8 of the Charter as to require exclusion of the evidence thereby obtained.
• 2003 BCCA 368 R. v. Brand
  Appeal on basis that verdict unreasonable. Appeal dismissed. The evidence supported the verdict.
• 2003 BCCA 369 R. v. Joseph
• 2003 BCCA 370 R. v. Mattice
  No arguable reason to disturb a 3 year probation order with a curfew. The curfew condition builds in flexibility to deal with employment difficulties which may arise. Protection of public requires retention of the curfew because of applicant’s propensity for housebreaking.
• 2003 BCCA 372 R. v. MacMillan
  The appellant appealed his sentence of eight years' imprisonment following his conviction of the included offence of manslaughter on an indictment charging him with second degree murder. At the time of his sentencing, he was serving a life sentence for first degree murder. Since the sentencing, his first degree murder conviction has been quashed and a new trial has been ordered. He was initially arrested for both offences, was charged the following day with the first degree murder, and was charged several months later with the second degree murder. He has been in custody continuously since his initial arrest. The sentencing judge took into account, as evidence of the appellant's violent character, the circumstances of the killing that resulted in the first degree murder charge. As well, he refused to give any credit for pre-sentence custody. Further, he inadvertently failed to afford the appellant an opportunity to speak before determining his sentence, contrary to s. 726 of the Criminal Code. Held: The appellant's application to adduce fresh evidence of his remorse was dismissed as the proposed evidence did not satisfy the Palmer criteria. The failure to afford the appellant an opportunity to speak was an error but it did not result in a sentence that was demonstrably unfit. However, the quashing of the first degree murder conviction gave rise to a material change in circumstances which permits this Court to consider the sentence afresh. The appellant was eligible for credit for pre-sentence custody, but only from the date of his formal arrest and committal on the second degree murder charge: until that date it could not be said that he was in custody "as a result of" that offence within the meaning of those words in ss. 719(3) of the Code. The circumstances of the killing giving rise to the first degree murder conviction were aggravating facts that had not been proven by the Crown but had simply been recited to the sentencing judge with the tacit agreement of defence counsel. Since the conviction has been quashed, the appellant is entitled to the presumption of innocence in that matter and those circumstances must be ignored. It is apparent that the trial judge would have imposed a lesser sentence had the first degree murder conviction not been before him. Accordingly, while not suggesting that eight years' imprisonment would be a demonstrably unfit sentence absent the first degree murder conviction, the Court substituted a term of imprisonment of seven years.
• 2003 BCCA 373 R. v. Spinder
  The appellant was sentenced to a three year term of incarceration for breaking into and entering a dwelling house. The appellant alleged that this was excessive especially in view of a 30 day sentence that he had received for a previous offence. Held: the sentence was appropriate and demonstrated no error by the trial judge. The “step-up” principle does not confine itself to the most recent offence. Mr. Spinder had received many sentences, one as long as three years. While the trial judge should have made specific mention of the mitigating factors, the Court found that he had been cognizant of them.
• 2003 BCCA 375 U.S.A. v. Reumayr
  Application for judicial review of the order of the Minister of Justice to surrender the applicant for prosecution in the United States allowed in part. The matter was remitted to the Minister to determine that the surrender order conformed to the order of the extradition judge for committal.
• 2003 BCCA 376 R. v. Alexcee
  The appellant having been declared a dangerous offender under s.753 of the Criminal Code and an indeterminate sentence having been imposed, seeks a rehearing on the ground that the sentencing judge erred in law in his consideration of the question whether the appellant should be granted long-term offender status. Appeal dismissed on the ground that, if there was any error, it was of a trivial nature and did not affect the result of the proceedings.
• 2003 BCCA 379 Lawrence v. A.G. (B.C.)
  Application for leave to appeal dismissed.
• 2003 BCCA 386 R. v. Alexander
  Conviction for theft of cedar blocks — six months' incarceration sentence — Forest Practices Code of British Columbia, R.S.B.C. 1996, c. 159, s. 108 — s. 8 Charter — R. v. Jarvis (2002), 169 C.C.C. (3d) 1 (S.C.C.) — regulatory investigation becoming one where predominant purpose is offence with penal consequences — on sentence appeal appellant seeks conditional sentence — conviction affirmed — sentence affirmed on grounds of history of similar conduct and charges.
• 2003 BCCA 391 R. v. Le
  Court of Appeal dismissing appeal from conviction for sexual assault. Court finding no error in judge referring to contents of earlier statement adduced to meet suggestion of recent concoction because contents necessary to give meaning to evidence. Court finding no error in instructions given to jury about how they could use statement. R. v. Hughes (2000), 156 C.C.C. (3d) 206 referred to.
• 2003 BCCA 392 R. v. Leggo
  The appellant was sentenced to 7½ years for break and enter a dwelling place and robbery, and 1 year consecutive for use of an imitation firearm, in addition to the 8 months pre-trial custody. Sentence appeal was dismissed. The sentence for use of a firearm was required to be consecutive. The sentence for the break and enter and robbery was fit, and in imposing a sentence of only 1 year for the firearms offence the sentencing judge had an eye to the global effect of the sentence imposed.
• 2003 BCCA 401 R. v. Meyn
  Appeal from conviction on two counts of sexual assault. Appellant alleges error in the charge to the jury as to: the use to be made of appellant’s prior statement to police; proof beyond reasonable doubt; and relation of the standard to the issue of credibility. Error also alleged in admitting the evidence of a psychologist concerning the continuing relationship between the complainant and the appellant, and the behavioural consequences of sexual abuse. Appeal dismissed. The judge’s charge and recharge did not contain reversible error and the experts’ evidence was admissible and properly limited by the judge’s instruction
• 2003 BCCA 408 R. v. Clark
  Appeal from conviction for performing indecent act contrary to s.173(1)(a) of Criminal Code dismissed. Court finding that even though accused in his own dwelling-house, his exhibitionist behaviour in masturbating in a lighted window in residential neighbourhood indicated intentional conduct that was sufficiently public to fall within parameters of applicable Code section. R. v. Buhay (1980) 30 C.C.C. (3d) 30 referred to as an applicable authority.
• 2003 BCCA 411 R. v. Jim
  Court of appeal allowing appeal in case where significant evidence relating to defence of alibi, important in the circumstances of the case, not investigated and assessed by counsel. New trial ordered.
• 2003 BCCA 412 R.(S.M.) v. B(R.S.)
  Application for leave to appeal an order dismissing an application brought under s. 15 of the Commercial Arbitration Act to stay the court proceedings in respect of periodic maintenance which, by their agreement, the parties had agreed to submit to arbitration. Leave granted and a stay of the proceedings in the trial court ordered, on terms.
• 2003 BCCA 416 R. v. Ziegler
  Leave granted on a sentence appeal. Clause of probation order, overly broad, deleted from order.
• 2003 BCCA 421 R. V. Costello
  The accused appeals his sentence of four years (in addition to one year already spent in pre-trial custody) imposed following a conviction of aggravated assault of a three-year old child; leave to appeal granted, but sentence appeal dismissed. The sentence imposed was not shown to be outside a range of sentences in cases of similar circumstances. The trial judge properly recognized deterrence as one of the objectives of sentencing , and finally, there was no basis to conclude that the trial judge failed to give adequate weight to the accused's prospects of rehabilitation.
• 2003 BCCA 426 R. v. Burgar
  The Supreme Court Justice did not err in converting an application for habeas corpus to a bail review.
• 2003 BCCA 427 R. v. Seabrook
  The Appellant appealed his sentence of two and a half years imprisonment after conviction upon seven counts of fraud. The appellant and one S were partners in a real estate development. Investors, many of whom were elderly, lost a total of $679,000. The appellant had no criminal record. The appellant was 52 years old had no previous criminal record. He argued that the sentence was unfit and that he ought to have received a conditional sentence. The appeal was dismissed as the sentence was fit having regard to the whole of the circumstances and in particular the degree of planning that went into the commission of the offences.
• 2003 BCCA 429 R. v. J.C.Z. (YOA)
  The appellant, a young offender, entered guilty pleas to five counts of various property offences relating to property damage to a residence. The total monetary damage to the home was approximately $50,000. The appellant’s involvement in the incident consisted of the kicking in of a bathroom door. He had no prior history. He received an accumulated sentence of 30 days in open custody. Appeal allowed. The appellant sentenced to a term of probation and 70 hours community service
• 2003 BCCA 430 R. v. Corson
  Sentence of 30 months for sexual assault by adult of teenage girl not unfit
• 2003 BCCA 432 R. v. Porter
  Sentencing judge did not err in failing to impose a conditional discharge.
• 2003 BCCA 433 R. v. Balachanoff
  Sentence of 90 days set aside. Sentence imposed of time served.
• 2003 BCCA 434 R. v. Hunt
  The appellant was found guilty of robbery by a jury. Shortly after the robbery, the appellant was detained by the police who conducted a search of his person and found 30 $100 bills which corresponded to the sum that was taken from the bank. The appellant argued that the search was illegal and that there was no articulable cause for the detention to justify the search and seizure of the money. Appeal dismissed, the Crown having shown that the police had reasonable grounds and in so doing satisfied the reasonable necessity test. The court found that the police had articulable cause to search him for an investigative purpose.
• 2003 BCCA 435 R. v. Turmel
  The applicant seeks leave to appeal from the decision of a summary conviction appeal court judge upholding, after a trial de novo, his conviction in provincial court on a charge of sexual assault. Leave granted.
• 2003 BCCA 439 R. v. Seyed-Fatemi
  The manager of a Starbuck’s Coffee Shop was killed by Mr. Seyed-Fatemi who had gone to the shop to confront his wife. He was found guilty by a jury of second degree murder. The appeal was dismissed. On appeal it was submitted that the trial judge erred in permitting cross-examination on Islamic religious doctrine. Held: while this subject “could have been left unasked”, and would be unacceptable in most cases, in the circumstances it did not render the trial unfair.Another alleged error was in the trial judge ruling that the jury could not find as a fact that the appellant had been struck by a fire extinguisher. Held: the trial judge was correct in holding that for the jury to consider this would have led them into being entirely speculative. Failure to instruct the jury on provocation, intoxication and automatism were further grounds of appeal. Held: there was no air of reality to the suggestion of provocation; there was no foundation in the evidence for a defence of automatism; and there was no evidentiary foundation for the proposition that the appellant’s state of mind was such that he could not foresee the consequences of stabbing Mr. McNaughton with a butcher knife. It was further held that the trial judge’s instructions regarding the “common sense inference” were not faulty. Finally, it was submitted that the trial judge erred in informing the jury that neither automatism or intoxication were defences that it should consider. The Court held that while such instructions should seldom be given, in the circumstances of this case where the majority of the evidence centred on these issues, it was proper for the trial judge to give such an instruction.
• 2003 BCCA 441 R. v. Grewall; R. v. Grewall; R. v. Toor
  Appeals of Ajit Singh Grewall and Sukhjit Singh Grewall from convictions of first degree murder and conspiracy to commit murder of the wife and stepmother, respectively, of them, and appeal of Sandeep Singh Toor from conviction of second degree murder. No issues of consequence raised. Appeals dismissed.
• 2003 BCCA 442 R. v. Waldron
  Appeal from conviction of unlawfully producing marijuana, and possessing marijuana for the purposes of trafficking following a trial by judge alone. Appeal dismissed. Trial judge did not err in upholding the validity of a search warrant, and did not err in refusing a stay of proceedings, which the appellant sought at trial because the police destroyed evidence they had seized, a few days after the seizure.
• 2003 BCCA 444 R. v. Stapleton
  Issue as to admissibility of telephone call to police operator – Trial judge admitting call on basis that it was indicative of state of mind of complainant victims of alleged robbery and as being relevant for trier of fact to consider in view of suggestion in cross-examination of recent fabrication. Trial judge giving limiting instruction as to use. Court of Appeal dismissing appeal on basis that no error in admission of evidence or instructions to jury on this issue.
• 2003 BCCA 446 R. v. Hoang
  An application under s. 680 for leave to appeal an Order refusing bail pending appeal was dismissed because the appeal had no prospect of success.
• 2003 BCCA 447 Purdy v. A.G. (Canada)
  Appeal from an order in Stinchcombe form directing R.C.M.P. to disclose its file of an investigation of Purdy in Canada leading to a money laundering prosecution in U.S. Purdy is Canadian. R.C.M.P. lured him to U.S. to effect his arrest, by-passing extradition. Disclosure, not practically available in U.S. court, necessary to defences of entrapment and innocent intent. Held: order properly made as a Charter remedy. Section 7 right to disclosure as an incident of making full answer and defence available to Purdy on these facts despite absence of any legal proceedings against him in Canada.
• 2003 BCCA 450 R. v. Quintanilla
  Sentence appeal - no principle of law to require a sentencing judge to literally double "dead time" - appeal dismissed.
• 2003 BCCA 456 R. v. Ruckman
  Application for leave to appeal sentence of three years in prison on conviction for one count of robbery. Appellant profoundly deaf. Criminal record including one count of assault. Appellant spent 92 days in prison prior to sentencing. Held: Leave granted and appeal allowed. Sentencing judge made an example of the appellant and did not adequately take into account his personal circumstances. Sentence reduced to 18 months in prison.
• 2003 BCCA 457 R. v. Lohrer
  Appellant convicted of aggravated assault and uttering threats. Majority dismissing appeal and rejecting argument that trial judge misapprehended evidence. Dissenting judge would allow appeal on basis that trial judge misapprehended evidence.
• 2003 BCCA 458 U.S.A. et al v. Chao
  Judicial review of decision of the Minister of Justice to order the appellant be surrendered for extradition to the United States. The appellant claimed the Minister erred in not considering the transcript of the extradition hearing and the oral ruling of the extradition judge on a voir dire and not ordering the surrender conditional on the United States not receiving or not using at his trial his evidence on the voir dire; and the delay in making the surrender order violated his rights under the Charter. Held: Application for judicial review dismissed. If the Minister failed to review the transcript and ruling, his order was not vitiated. No submissions were made to the Minister or the Court about anything in the transcript or ruling that could have affected the decision. The Minister did not err in leaving to the trial judge in the U.S. the decision concerning the use of the voir dire evidence. Two years of the delay was caused by postponements of the Minister’s decision to await the decision of the Supreme Court of Canada in U.S.A.. v. Burns (2001), 151 C.C.C. (3d) 97, which could not be attributed to the Canadian authorities
• 2003 BCCA 460 R. v. Pham
  Cocaine and heroin found in the possession of the appellant during a reasonable search incident to a lawful arrest. Appeal dismissed.
• 2003 BCCA 465 R. v. Dunbar, Pollard & Leiding
  Application for order that certain proposed fresh evidence is inadmissible was dismissed, but direction given that Crown should be given reasonable opportunity to respond if the division hearing the appeals should decide that the proposed evidence is potentially relevant and admissible.
• 2003 BCCA 475 R. v. Thomas
  Application for appointment of counsel in case where appellant had pleaded guilty to homicides and attempted homicides and trial judge acceded to joint sentence submissions. Application dismissed on basis of lack of merit in proposed appeals.
• 2003 BCCA 476 R. v. Henry
  Appeals from convictions for first degree murder arising from confinement of deceased during a theft from a grow house operation. Court not acceding to arguments that judge erred in charge to jury concerning aiding and abetting or in instructions about individual verdicts and basis of culpability of respective appellants. No error found in admission of evidence of conversations of one of accused persons, who was more suggestible, with undercover officers – R. v. Evans (1996), 63 C.C.C. (3d) 289 (S.C.C.) distinguished. No error found in decision of judge to furnish only a portion of his instructions in writing to jury since the written portion provided contained exposition of salient legal issues and references to evidence relating to these issues. Majority concluding that no error demonstrated by permitting cross-examination of appellants on evidence they gave at first trial. Recent Supreme Court of Canada cases of R. v. Noel and R. v. Allen distinguished. Minority judge finding error in scope of cross-examination and would have ordered a new trial. Appeal dismissed.
• 2003 BCCA 477 R. v. Gunning
  The court dismissed an appeal from a conviction for second degree murder. The primary issue was whether the trial judge's instructions to the jury permitted a fair hearing of the defence of lack of intention to kill.
• 2003 BCCA 480 R. v. Mapara
  Application for judicial interim release pending appeal from conviction on a charge of first degree murder to the Supreme Court of Canada under s. 679(1)(c) of the Criminal Code. The application, although not frivolous, was dismissed. In addition to a 25 year custodial sentence, the applicant faced very substantial claims in respect of tax evasion and fraud. On balance, the interest of enforcing the custodial sentence outweighed the interest of reviewability.
• 2003 BCCA 481 R. v. Kravit et al
  On an application to compel disclosure of documents passing between the Law Society of B.C. and the appellants' defence counsel at trial relating to his reinstatement as a member of the bar on the basis that they may contain evidence relevant to the ground of appeal that the appellants were not provided with effective legal assistance at trial by reason of the incompetence of their counsel, it was directed that the Law Society place copies of all such documents in a sealed envelope and file it with the Registry so that the documents may be placed before the judges comprising the panel hearing the appeals and inspected by them for possible relevance and disclosure.
• 2003 BCCA 485 R. v. Ekman
  Mr. Ekman and two others planned to steal a car from Ms. B. and sell it. Part of the plan was to kill Ms. B. In an interview with the police Mr. Ekman said that with one of the other conspirators present he hit Ms. B. twice and thought she was dead. The pathologist gave evidence of three lacerations to the deceased. Defence counsel therefore presented the argument that while Mr. Ekman thought that Ms. B. was dead, she was not and one of the other two conspirators had finished the job. The trial judge declined to charge the jury on Mr. Ekman’s potential guilt as a party to the killing. Mr. Ekman was found guilty by a jury of attempted murder.
  HELD: The Crown appeal allowed and a new trial ordered. The party provisions of the Code should have been charged. The instruction that Mr. Ekman either himself caused the death by the blows he delivered and was therefore guilty of murder or alternatively was guilty of attempted murder missed the intermediate grounds of guilty of murder as a party. Mr. Ekman appealed on the grounds that while he had been informed before the interview that he was being investigated for murder, he was not told that it was first degree murder. Mr. Ekman’s appeal was dismissed. Mr. Ekman was well aware of the “extremely grave situation” that he faced: see R. v. Latimer.
• 2003 BCCA 486 R. v. Smillie
• 2003 BCCA 488 R. v. Davis
  Application for appointment of counsel s. 684 Criminal Code. Circumstantial case of identity. No reasonable chance of success on reviewing principles in R. v. Biniaris, [2000] 1 S.C.R. 381. Application refused.
• 2003 BCCA 490 R. v. Hamilton
  On his appeal from conviction for second degree murder, the appellant argued that evidence relevant to his defence of self-defence was wrongly held to be inadmissible. The evidence in issue went to the disposition of the deceased and the probability of the deceased being the aggressor in the incident. The evidence was also relevant to the issue of the appellant’s credibility. The probative value of evidence relevant to those issues exceeded its prejudicial effect and ought to have been admitted. Appeal allowed and new trial ordered.
• 2003 BCCA 493 Dadashzadeh v. HMTQ et al
  Application to dismiss an appeal as completely without merit. Allowed.
• 2003 BCCA 494 Bhullar v. A.G. (B.C.)
• 2003 BCCA 495 R. v. Dunbar et al
• 2003 BCCA 496 R. v. Kravit
• 2003 BCCA 498 R. v. Pedden
  Physical evidence that convicted the appellant of serious sexual and other offences was not obtained in breach of the appellant's Charter rights. Appeal dismissed.
• 2003 BCCA 499 R. v. Sharma
  Appeal allowed from sentence of six months in prison for possession of cocaine and heroin for the pupose of trafficking. After sentence was imposed counsel learned that the appellant was a drug user who had taken positive steps toward rehabilitation. The Crown agreed that substitution of a conditional sentence of 12 months was appropriate.
• 2003 BCCA 500 R. v. Niebergall
  Appellant had pleaded guilty to charge of second degree murder on basis that Crown would not seek any increase in time of parole eligibility and would stay proceedings against co-accused. Soon after plea and sentence, information came to attention of counsel about charges of drug dealing and possession of weapons by co-accused prior to the time of the homicide. Information also included some evidence of association in drug venture by main Crown witness who had testified to confession by appellant concerning the homicide. Appellant arguing that if this information known before plea, it might have influenced jury or decision of counsel to advise appellant to plead guilty. Court of Appeal holding that information of no particular significance in homicide case and dismissing appeal.
• 2003 BCCA 508 R. v. Chan
  The two accused were members of a gang that committed home robberies. The modus operandi was distinctive and the trial judge allowed evidence, with respect to one accused, of a robbery not charged in the case to be used by the jury as similar fact evidence of identification. HELD: How similar fact evidence is used cannot be analyzed in isolation from other evidence. Here the jury was instructed as to the use it could make of similar fact evidence and that it had to consider all the evidence when determining the weight of the similar fact evidence. In dissent, Ryan J.A. found misdirection. She found, in that not every robbery employed the same gang members, that the similar fact evidence went only to identifying the gang and not the individuals in the charged robberies.
• 2003 BCCA 509 R. v. Cardinal
• 2003 BCCA 512 R. v. Gilliland
  Mr. Gilliland applied for interim judicial release. His notice of appeal was filed out of time thus requiring him to apply for leave to file the notice of appeal. The bail application was therefore thwarted. However, the chambers judge went on to express the opinion that Mr. Gilliland had a weak case for release pending appeal.
• 2003 BCCA 516 R. v. P.V.
• 2003 BCCA 521 R. v. Autenrieth
  Where fraud has been committed by persons of good standing in the community, a conditional sentence is not generally appropriate to meet the ends of denunciation, deterrence of others and promotion in the offender of a sense of responsibility for the harm done
• 2003 BCCA 522 R. v. Pettit & Pranic
  This is a Crown appeal from the acquittal of the respondents on a charge of producing marihuana. The respondents were not home when the police conducted a search pursuant to a warrant. After the search was completed, the respondents returned and were arrested. The respondent Pettit demanded to see a warrant and call a lawyer. He was handcuffed and placed in a police car. An officer held the warrant against the Plexiglas shield in the car, a distance of two feet from the respondent Pettit. The police ignored the respondent Pranic’s request to see the warrant. Neither respondent was given an opportunity to contact a lawyer until they were at the police station.
  Held: The appeal is allowed; verdicts of acquittal are set aside and a new trial is ordered.
  Per Donald J.A. and Levine J.A.: The connection between the police conduct said to be in breach of the Charter and the evidence in question is insufficient to warrant exclusion of the evidence. There is no real temporal link because the default came after the evidence was lawfully obtained. Nor can any causal link be found because of the sequence of events. Furthermore, the trial judge did not err in his review of the evidence and in finding the evidence sufficient to support the warrant.
  Per Esson J.A.: In obiter dicta, there is merit in the Crown’s submission that the production of the search warrant in this case satisfied s. 29(1) of the Code, given an absence of any request by the accused to read the warrant more closely and the circumstances surrounding the case.
• 2003 BCCA 524 R. v. D.A.D.
  Appellant seeking appointment of counsel under Code s. 684. Appellant convicted of sexual assault of two female children of women with whom he lived with at different times. Trial judge made adverse credibility findings against appellant, found complainants believable and found a measure of corroboration in what appellant said to other witnesses concerning the complaints. Application refused on basis that proposed appeal had no possibility of success.
• 2003 BCCA 525 R. v. Blake
  The appellant was convicted of sexual assault against his former wife and her daughters by a previous marriage, and for engaging in anal intercourse with one of the daughters when she was less than 18 years of age, contrary to s. 159 of the Criminal Code. The appellant appealed to this Court on the sufficiency of the evidence to support that either of the two daughters were under 14 at the time of the sexual contact, the constitutionality of s. 159 of the Code, and the failure of the trial judge to adequately instruct the jury on burden of proof regarding the age requirement
  Held: The appeal is allowed in relation to the count contrary to s. 159 of the Code; the appeal is dismissed on all other counts.
  Per Donald J.A. and Esson, Levine JJ.: There was sufficient evidence offered at trial that a jury properly instructed and acting reasonably could find that either complainant was under 14 when the sexual activity began. Therefore, the trial judge was not improper in leaving the question of s. 150.1(1) to the jury.
  It was an error on the part of the trial judge not to tell the jury that the element of age had, for the purposes of s. 150.1(1), to be proved beyond a reasonable doubt. Thus, it is not safe to infer that the jury understood that the Crown had to prove the age requirement beyond a reasonable doubt. The curative proviso in s. 686(1)(b)(iii) of the Criminal Code should apply in this case. This Court finds the omission in the charge could not have affected the result.
  In addressing the constitutionality of s. 159, the Crown concedes that the provision discriminates on the basis of age contrary to s. 1. This concession is made light of case authority on the subject with which, without exception, holds the provision to be unconstitutional. Accordingly, the conviction is set aside on this count.
• 2003 BCCA 535 Sigurdson v. HMTQ et al
  Dismissal of appeal of judicial review order not interfering with cancellation of driver’s licence by Superintendent of Motor Vehicles. The Charter is not applicable. No basis for finding that Superintendent acted unreasonably.
• 2003 BCCA 536 May v. Ferndale Institution
  Appeals from orders dismissing application for habeas corpus. The appeals are dismissed. No reason to interfere with conclusion of Chambers judge. In any event, no material placed before Chambers judge for failing to pursue remedies in Federal Court. Chambers judge ought to have dismissed applications.
• 2003 BCCA 538 R. v. S.S. (YOA)
  Application for bail arising from conviction for criminal negligence causing death and sentence imposed. Bail granted.
• 2003 BCCA 539 R. v. Woods
  The Court of Appeal reduced the parole ineligibility period imposed on an accused on compassionate grounds. He is afflicted with A.L.S. (Lou Gehrig’s disease).
• 2003 BCCA 541 R. v. C.B.G.
  Appeal dismissed from a conviction for incest. The trial judge did not fail to apply the standard of proof beyond a reasonable doubt in assessing the credibility of the evidence of the complainant.
• 2003 BCCA 542 R. v. P.W.
  The Court dismissed an appeal from a conviction of sexual assault finding no error in the trial judge’s ultimate conclusion on credibility. The train of reasoning recorded in the trial judge’s reasons is criticized.
• 2003 BCCA 544 R. v. Gordon
• 2003 BCCA 545 R. v. Le
  The appellant's appeal from a sentence of 3 1/2 years imprisonment for one count of sexual assault was dismissed. The sentencing judge did not error in principle or otherwise, and the sentence imposed was not demonstrably unfit
• 2003 BCCA 547 R. v. Cooper
  Applicants sought leave to appeal challenging constitutionality of practice of having peace officer act as both prosecutor and witness in traffic ticket cases. Summary Conviction Appeal Court had found practice constitutionally acceptable as being a justifiable infringement of potential breach of s. 11 right to a fair trial. Leave to appeal granted
• 2003 BCCA 548 R. v. Fahey
  The Court set aside an order acquitting the accused because the Provincial Court judge erred
  in refusing the Crown's application for an adjournment.
• 2003 BCCA 550 R. v. Dhanda
  Mr. Dhanda was convicted by jury of manslaughter in the shooting death of Kamalbir Jawanda and acquitted of attempted murder of Indebir Jawanda. Kamalbir and Indebir Jawanda and Amrit Bains attended at Mr. Dhanda’s home and vandalized automobiles parked in the driveway. They also broke the windows and doors of Mr. Dhanda’s home. Mr. Dhanda discharged four shots from inside the threshold of his home, killing Kamalbir Jawanda and injuring Indebir Jawanda. Mr. Dhanda appeals his conviction of manslaughter on the basis that the jury verdicts are inconsistent. He applied to this Court for judicial interim release pending appeal under s. 679(3) of the Criminal Code.
  HELD: The application is dismissed. Interim release may be granted where the accused’s surrender into custody is assured, the appeal is on grounds that are not frivolous and detention is not necessary in the public interest. Mr. Dhanda satisfied the Court that he would surrender into custody and that his main ground of appeal is not frivolous. However, interim release is not in the public interest. The applicant must satisfy the Court that detention is unnecessary to maintain public confidence in the administration of justice. Strong grounds of appeal may suggest interim release is in the public interest. The strength of Mr. Dhanda’s grounds of appeal was not apparent on this application. The background facts of the offence and Mr. Dhanda’s criminal record are factors suggesting the public interest is not served by interim release. Mr. Dhanda feared retaliation by friends of the victim; the public interest is not served by releasing into the community a person who is a continuing target of violence.
• 2003 BCCA 552 R. v. Moghaddam
  Application for appointment of counsel pursuant to s. 684 of the Criminal Code in an appeal from the dismissal of a summary conviction appeal against the applicant’s conviction for dangerous driving. The applicant has difficulty communicating in English and is also on a disability pension for a head injury. Legal aid was refused.
  Application allowed. Applicant needs a lawyer to present his case and cannot afford one. This case may provide an opportunity to examine the duty to assist a self-represented accused in the circumstances of an indigent immigrant with language difficulties who cannot obtain legal aid. The merits of the case are sufficiently arguable that they should be assessed at the leave stage.
• 2003 BCCA 553 R. v. Goodliffe
  Bail hearing. Appellant released on bail pending appeal.
• 2003 BCCA 556 R. v. Nguyen & Bui
  Appeal from convictions for possession of narcotics for the purpose of trafficking in a “dial-a-dope” operation, on the ground that the trial judge improperly admitted into evidence calls ordering drugs on cellular phones seized from the appellants. Held, appeal dismissed. The phone calls were not tendered for a hearsay purpose and they were properly admitted. The evidence supported the conclusion of the trial judge that the appellants were in joint possession of the drugs seized.
• 2003 BCCA 558 R. v. McBurnie
• 2003 BCCA 561 R. v. S.A.M. (YOA)
  The Court considered afresh an application for a DNA order and affirmed the trial judge’s order in circumstances where the record was not established to be incomplete. The trial judge had erred in not giving reasons required by s. 487.051(3) of the Criminal Code.
• 2003 BCCA 562 R. v. Gustavson
• 2003 BCCA 563 R. v. S.L.
  Appeal from sentence of six months custody under the Youth Criminal Justice Act, S.C. 2002, c. 1. Held: appeal allowed; sentence varied to time served. The trial judge erred in principle in failing to properly consider the policy and principles of sentencing set out in the YCJA, in particular the directions to consider all available alternatives to custody. Sentencing provisions of the YCJA reviewed.
• 2003 BCCA 565 R. v. Myre
  Appeal from an effective sentence of 20 months imprisonment (after giving credit for four month pre-sentence custody) on charges of possessing stolen property (a motor vehicle), and possessing instruments suitable for breaking into vehicles, dismissed. Appellant had a significant criminal record and was subject to a driving prohibition at the time of these offences.
• 2003 BCCA 566 R. v. Kambo
  Appealed from a conditional sentence allowed, to the extent of varying the condition for “house arrest” to permit appellant to purchase food and other necessities.
• 2003 BCCA 567 R. v. Douglas
  Appeal from an effective sentence of 10 ½ months imprisonment (giving credit for pre-sentence custody) on conviction for assault causing bodily harm, with one month concurrent for theft. Appeal dismissed as not unfit, having regard for circumstances of the offence, and appellant’s significant criminal record.
• 2003 BCCA 568 R. v. Peters
  Appeal against dangerous offender designation made before decision of this Court in Johnson and Edgar. Some consideration given to long term offender designation by sentencing judge but Crown concedes there was error of law as settled by S.C.C. in Johnson. New hearing ordered. Court could not find that, but for the error of law, there was not possibility of different result.
• 2003 BCCA 571 R v. Uppal
  Application under s.680(1) of the Criminal Code for a direction from the Chief Justice that the decision of a trial judge refusing bail be reviewed by the Court of Appeal.
  The application was dismissed. The judge found flagrant and continuing disregard of a “no contact” condition in an earlier bail order. Continued detention was justified on the basis of a substantial risk that the appellant will attempt to interfere with the administration of justice, if released.
  There was no possibility that the Court of Appeal would interfere with the judge's decision.
• 2003 BCCA 572 R. v. Smith
  Appellant charged with offences of cultivation and possession of marihuana. Issue at trial concerned validity of search warrant. Trial judge finding evidence of main witness who swore information generally credible and reliable and finding warrant valid. Fresh evidence application made to adduce evidence of witness given in another related trial indicative of inconsistency in testimony of witness about events related to case. Court of Appeal concluding new evidence would be relevant at trial for consideration of reliability and accuracy of evidence of witness. Application to adduce fresh evidence allowed and new trial ordered.
• 2003 BCCA 573 R. v. Aghabeigi
  A number of points were argued, as discussed in the judgment. The jury’s decision was upheld and the appeal dismissed.
• 2003 BCCA 575 R. v. Forsyth
  The appellant appealed his conviction on the ground that the impartiality of the jury may have been compromised. Before deliberations began, one of the jurors saw a car that was of a similar make and model to the appellant’s car drive past her home. The trial judge simply instructed the jury that there was no reason for concern. The trial judge erred by failing to conduct an inquiry into whether the juror’s impartiality was effected by the incident. The decision to conduct such an inquiry is within the discretion of the trial judge and is one with which an appellate court will not readily interfere. In this case, however, the circumstances were such that the juror’s concerns raised a question as to whether her impartiality and that of other jurors might have been compromised. These circumstances required that inquiries of the juror be made; in the absence of an inquiry, the record discloses a reasonable possibility that the appellant’s right to a fair trial was compromised. A new trial was ordered.
• 2003 BCCA 576 R. v. Davis
• 2003 BCCA 577 R. v. Ruiz-Tagle
  Appeal from conviction on a trial by judge alone for second degree murder. The judge rejected the evidence of the accused as not credible. No foundation in the evidence for the application of s. 232 of the Criminal Code.
• 2003 BCCA 578 R. v. Perrier
  Appeal from convictions for robbery and confining. Court of Appeal sustaining convictions, holding that no error in admission of identification evidence and convictions not unsafe. R. v. McCarnan [1998] O.J. No. 4153 and R. v. Tat (1997) 117 C.C.C. (3d) 481 referred to and commented upon.
• 2003 BCCA 582 R. v. M.A.G.
  The appellant was declared to be a dangerous offender and received an indeterminate sentence. The sentencing took place prior to 1 August 1997 when Part XXIV of the Criminal Code was amended and also prior to the Supreme Court of Canada decisions in R. v. Johnson (2001), 158 C.C.C. (3d) 155 and R. v. Edgar (2001), 158 C.C.C. (3d) 212 [2003] S.C.C. 46. The Crown argued that the curative provision of the Criminal Code section 759(3)(b) ought to be applied and the appeal dismissed. Appeal allowed. The curative provisions of the Criminal Code ought to be applied only in the rarest of cases. In the case at bar, the sentencing judge ought to have considered the feasibility of long-term provisions prior to classifying the appellant as a dangerous offender.
• 2003 BCCA 585 R. v. Wormell
  On an appeal from conviction for six sexual offences against two young complainants, the appellant argued that the trial judge erred by failing to edit a videotape of one of the complainants to exclude prejudicial remarks about the appellant's character and by failing to caution the jury that in assessing the evidence of the complainants on the videotapes, they must ignore the police officers’ opinions, express or implied, as to the credibility of the two complainants. The trial judge did not err in principle in the exercise of her discretion in editing the videotape nor did she err in law in the instructions she gave to the jury on assessing the credibility of the complainants. Appeal dismissed.
• 2003 BCCA 590 R. v. Matias-Pedro
  The appellant was found trafficking in cocaine on three successive days in March 2003. He was charged in an Information with one count of trafficking on March 25, and in another Information with two counts of trafficking, one on March 26 and the other on March 27. The appellant was taken in custody on the charges on May 1, 2003. On August 20 the appellant was sentenced to time served, his pre-trial custody having been taken into account. On August 27, before a different judge, the appellant was given six-month concurrent sentences for the March 26 and 27 offences to be followed by 18 months probation. On his appeal from the six-month sentence, the appellant argued that as all of the offences had taken place on successive days, they ought to have been treated as one continuous course of conduct and a sentence of time served ought to have been given in relation to all the offences.
  Appeal allowed. The sentence of six months was reduced to three months. The trial judge erred by not taking a global approach and giving credit for the pre-trial custody when sentencing for the offences committed on March 26 and 27.
• 2003 BCCA 591 R. v. P.P.H.
  The appellant, convicted of sexual abuse of his wife’s daughters, appealed his sentences of seven years consecutive on each count. He submitted that the sentence was out of proportion to the sentence given to his wife who participated in the offences and that the totality of the sentence was excessive, unduly harsh and unfit in the circumstances. HELD: Appeal dismissed. On a sentence appeal the real issue is the appropriateness of the totality of the sentences, not whether they are concurrent or consecutive. The submission that the total sentence was “outside of the proper range” was found to be of little weight: R. v. Bernier 2003 BCCA 134. As to the disparity between the sentences, the trial judge determined that the crimes committed by the husband were much more significant than the wife’s crimes.
• 2003 BCCA 593 R. v. Lam
  Appeal against conviction for unlawful possession of a controlled substance for the purposes of trafficking. A police officer on routine patrol entered into his onboard computer the license number of a van he saw parked in a light industrial area. The computer showed that the vehicle was owned by the appellant, who was awaiting disposition on drug-related charges. The officer parked behind the vehicle and put his lights on. He approached the driver’s door and saw three black duffel-type bags in the van. The officer asked the appellant to show him the contents of the bags. The bags contained marihuana. At trial, the officer testified that even if the appellant did not consent to the search, the officer would have searched anyway and made a “no-case seizure”. HELD: Appeal allowed, and a verdict of not guilty entered. The search was contrary to s.8 of the Charter. There was no articulable cause to require the appellant to show the contents of the bags. In these circumstances, it could not be reasonably said that the officer was motivated by a concern about weapons or personal safety. The evidence of the bags ought to be excluded under s.24(2) of the Charter. In this case, the conduct of the officer reflected bad faith. In light of such conduct, it would be unreasonable to admit the evidence. Without the evidence, the Crown had no case.
• 2003 BCCA 604 R. v. Small
  The Court dismissed an appeal from an order that a long-term offender serve a determinate sentence of five years to be followed by supervision for a further seven years. The appellant sought a reduction of the determinate sentence to two years. The error alleged was that the trial judge had failed to consider the period of pre-sentencing custody. He did not dispute the long-term offender finding or the period of supervision.
• 2003 BCCA 606 Seifer v. A.G. of Canada on behalf of the Republic of Italy
  Mr. Seifert applied to the Chief Justice pursuant to s.680 of the Criminal Code for an order directing a review of the decision of a chambers judge denying Mr. Seifert judicial interim release pending his appeal of a committal order made under s. 29 of the Extradition Act. The application was dismissed, but without prejudice to the applicant’s rights to make a fresh application for bail pending appeal under s. 679. Although a reviewing co