B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

CRIMINAL 2004

• 2004 BCCA 1 R v. Monk
  Application for the assignment of counsel under s.684 of the Criminal Code. There was sufficient merit in a proposed ground of appeal to warrant the assignment of counsel. That issue is, whether during the appellant’s testimony, the trial judge erred in excluding the appellant’s out-of-court statement following arrest, where there was no explicit suggestion of recent fabrication. Application granted.
• 2004 BCCA 2 R. v. Scott Steel Ltd.
  Application for leave to appeal from the decision of a summary conviction appeal judge dismissed as the proposed ground of appeal did not raise a question of law alone as required by s.124(1) of the Offence Act.
• 2004 BCCA 3 R. v. Van Osselaer
  The appeal from a period of 18 years parole ineligibility for a second degree murder was dismissed. The trial judge did not put too much weight on the jury's recommendation of 25 years. He properly treated the jury's recommendation as a communication of their view of the seriousness of the murder. The cases relied upon for the submission that the sentence was outside the acceptable range for similar offenders committing second degree murders in similar circumstances were all distinguishable in important ways. It was not shown that the period of 18 years parole ineligibility was outside the acceptable range or that it was clearly unreasonable in the circumstances.
• 2004 BCCA 4 R. v. Bastarache
  Appeal of a sentence of 6 years (effectively 9 years and 3 months after taking into account pretrial custody). Leave to appeal granted. Appeal dismissed
• 2004 BCCA 10 R. v. Gooderham
  Application under s.680(1) of the Criminal Code for a direction that an order refusing bail be reviewed by the court. The application was dismissed as an appeal from the refusal of bail was unlikely to succeed. The appellant had a bad record and is a high risk to re-offend.
• 2004 BCCA 11 R. v. D.A.D.
  Appeal from a sentence of four years for sexual assault against one complainant and a one year consecutive sentence for sexual assault against a second complainant dismissed as no error in principle or other foundation shown which would permit this Court to interfere
• 2004 BCCA 16 R. v. Needlay
  A solicitor who files a notice of appeal has an obligation to the Court to respond to a notice of a Rule 13(3) hearing.
• 2004 BCCA 17 R. v. Mayer
• 2004 BCCA 18 R. v. Tammie
  Appeal dismissed from a conviction for first degree murder. The trial judge did not err in refusing a judicial stay of proceedings or in construing the verdict of the jury. There was no error in the trial judge’s rulings with respect to evidentiary issues.
• 2004 BCCA 24 R. v. Yang
  Insufficient evidence of knowledge that counterfeit bills possessed by the appellant were counterfeit. Appeal allowed. Conviction set aside, acquittal entered.
• 2004 BCCA 28 R. v. Scuby
  The Crown appealed from Mr. Scuby's acquittal on a count of criminal harassment under s. 264 of the Criminal Code. Held: Appeal allowed and a new trial ordered. The trial judge erred in law in her analysis of the constituent elements of the offence.
• 2004 BCCA 31 R. v. Samardzich
  Review of detention order dismissed.
• 2004 BCCA 32 R. v. Britz
  Sentence of 18 months for trafficking in cocaine sustained by Court of Appeal on the basis of history of Appellant and circumstances that sentence was result of an agreed submission. Sentence found to be in range of other sentences imposed in similar cases.
• 2004 BCCA 33 R. v. Pires
  Appeal from trial judge's refusal to order a voir dire for purposes of cross-examining a police officer on his affidavit used to obtain intercept order under s. 184.2 of the Criminal Code. Affidavit recounted information provided by unsavoury informant, whom defence counsel also wished to cross-examine. Held per Finch C.J.B.C. and Newbury J.A. the trial judge had not erred, as no "basis" had been shown within the meaning of R. v. Garofoli [1990] 2 S.C.R. 1421. Discussion of meaning of "basis". Southin J.A. was of the opinion that the officer's belief in the informant's truthfulness was irrelevant in context of s. 184.2.
• 2004 BCCA 34 R. v. Erickson
  Sentence of imprisonment for seven months for production of marihuana found to be fit having regard to the appellant’s criminal record.
• 2004 BCCA 36 R. v. Davis
• 2004 BCCA 41 R. v. Thrower
• 2004 BCCA 42 R. v. Zeek
  Application for leave to appeal and appeal from sentence of 12 months imprisonment to be followed by 12 months probation for public mischief and fraud (s. 140(1)(c) and s. 380(1)(a), Criminal Code). While the trial judge erred by treating the appellant's post charge misconduct as an aggravating factor in sentencing, the sentence imposed was not unfit. Leave granted; appeal dismissed.
• 2004 BCCA 43 R. v. Huber
  Appeal from conviction by jury of two counts of trafficking in cocaine.
  A number of grounds were advanced but the main issue was whether the trial judge erred in not permitting counsel to withdraw.
  The trial judge effectively refused to adjourn the trial without giving the appellant an opportunity to make an application for an adjournment to retain other counsel or hear any argument as to such an application. Appeal allowed; new trial ordered.
  Smith J.A. dissenting.
• 2004 BCCA 45 R. v. Jimmie
  Appellant had been convicted of second degree murder and sexual assault, both offences occurring over the course of a morning concerning two female victims. Appellant had lengthy record for violence against women and a longstanding alcohol abuse problem. Sentence of life with no parole eligibility for 16 years and indeterminate sentence consequent upon finding appellant a dangerous sexual offender upheld. Comment on non-availability of long term offender disposition for individual sentenced to life imprisonment.
• 2004BCCA 47 R. v. Essiambre
  As the trial judge did not err as alleged in his charge to the jury relating to the doctrine of recent possession, the appellant’s appeal from his conviction for breaking and entering was dismissed.
• 2004 BCCA 49 R. v. Reischer
  On his appeal from conviction on two counts of assault with a weapon and one count of improper storage of firearms, the appellant was unsuccessful in his argument that the verdicts were unreasonable or unsupported by the evidence. On the assault convictions, the appellant also argued that the trial judge erred in convicting the appellant in circumstances where her findings of fact raised the defence of self-defence under s. 34(1) of the Criminal Code. A review of the evidence did not support the appellant’s argument that the complainant’s conduct could amount to unlawful confinement. Appeal dismissed.
• 2004 BCCA 53 R. v. Fehr
  Appeal from conviction for drug conspiracy and possession of large quantities of drugs for the purpose of trafficking.
  Both appellants alleged that the trial judge erred in not opening the packets for wiretaps preceding the wiretaps that led to the charges and in using the wrong test for investigative necessity. Fehr alleged that police wrongfully seized his car which contained controlled substances. Pugliese alleged he was denied his right to be tried within a reasonable time.
  Held: appeals dismissed. The appellants were not entitled to disclosure of the information supporting the earlier wiretaps; there was no real link between the earlier and later authorizations. The trial judge used the right test at the time but that was before R. v. Araujo, [2000] 2 S.C.R. 992. This Court applied the test in Araujo to the facts and found the test for investigative necessity was satisfied. The seizure of Fehr's car was incidental to his arrest and therefore lawful. The trial judge was not wrong in deciding that in all the circumstances a stay on account of delay was inappropriate.
• 2004 BCCA 56 R. v. Stewart
  Appellant physician convicted of sexual assault of patients. Assaults comprised of inappropriate touching in course of physical exams of breast and pelvic areas of patients and sexual intercourse without consent with one patient, R.D. Appellant argued trial judge erred in (1) failing to properly consider expert evidence adduced on behalf of appellant from physicians (2) failing to find consent or belief in consent relative to patient R.D.
  (3) in considering evidence on other counts as evidence of similar acts concerning individual counts, particularly evidence of intercourse with R.D. which conduct differed from other behaviour (4) in convicting appellant on three counts relating to two complainants because of unsatisfactory nature of evidence of those complainants.
  Appeal dismissed except as to one count relating to one complainant where evidence found unreliable. Judge dealt appropriately with expert evidence. Finding of lack of consent by R.D. or belief in consent was soundly based on the evidence. Similar fact evidence properly admitted and considered by trial judge to rebut possible defences of accident or mistake. Evidence of sexual activity with R.D. was properly admitted as similar fact evidence because the similarity or underlying unity of this evidence consisted in it being other sexual conduct demonstrative of his wish to obtain sexual gratification from his patients.
• 2004 BCCA 57 R. v. Kim
  Appeal from conviction on 27 counts of sexual offences, the complainants all being under age 18. No significant questions of law. The verdict turned on the jury’s assessment of credibility. The case is, however, a cautionary tale on the folly of an accused representing himself in a serious criminal trial.
• 2004 BCCA BCCA 59 R. v. Sidhu
  The appellant was convicted of one count of sexual assault. He appealed on the basis that the trial judge had erred in failing to provide a specific admonishment to the jury at the outset of the trial that they were not to discuss the case until the end of the trial and in failing to conduct an inquiry of the members of the jury following an exchange with a juror who was in ill health. The appellant also claimed the verdict was unreasonable and unsupported by the evidence. Held: Appeal dismissed. There was no absolute requirement as in many American states to provide the admonishment suggested; the opening remarks provided by the trial judge were adequate and in accord with Canadian jurisprudence. Further, there was nothing in the exchange with the ill juror to trigger an inquiry. Finally, the verdict was not unreasonable or unsupported by the evidence.
• 2004 BCCA 61 R. v. Wells
• 2004 BCCA 64 R. v. Pedersen
  Appeal from conviction on six charges arising out of a motor vehicle accident in which one person was killed and two others seriously injured. Appellant claimed the trial judge erred in ruling a blood sample taken pursuant to a telewarrant was admissible and in charging the jury on expert evidence and the offences of criminal negligence and dangerous driving. Held: appeal dismissed.. The appellant’s rights under ss. 7, 8 and 10 of the Charter were not violated by the procedure used to obtain the warrant to take the blood sample, and the trial judge did not err in instructing the jury.
• 2004 BCCA 66 R. v. Faget
  After pleading guilty to possession of child pornography for the purpose of distribution, the appellant, who was 18 years of age at the time of the offence, was sentenced to nine months imprisonment to be followed by two years probation. In view of the large volume of child pornography seized from the appellant and, particularly, the ages of the children and the nature of the acts depicted in the electronically stored material, the sentencing judge did not err in principle in concluding that a non-custodial sentence would be inappropriate. Sentence appeal dismissed.
• 2004 BCCA 67 R. v. Morrison
  Crown appeal from a conditional sentence imposed for three driving prohibition offences is allowed.
• 2004 BCCA 70 R. v. Jordan
  A probation order provided that Mr. Jordan was not to consume alcohol. Constables Brunt and Wu attended at Mr. Jordan’s hotel room. Constable Brunt testified that when Mr. Jordan answered the door he smelled alcohol on his breath. Constable Wu smelled alcohol on Mr. Jordan’s person. Constable Brunt testified that he could see liquor bottles in the room. The trial judge preferred the evidence of Constable Wu on that point. The trial judge found both police officers to be credible witnesses and accepted the testimony of Constable Brunt on that point “without reservation.” Mr. Jordan submitted that this was unreasonable in view of the fact that the trial judge had not accepted Constable Brunt’s testimony regarding bottles in the room.Held: The finding by the trial judge, based on the whole of the evidence, and having seen and heard the witnesses, did not become unreasonable simply because he chose the evidence of another officer on another issue. Further held, pursuant to R. v. Sheppard, that the trial judge’s reasons were adequate. It is not required of a judge to articulate the machinations of his mind in expressing an opinion on credibility.
• 2004 BCCA 74 R. v. Laird
  Appeal dismissed from conviction for offence under s.253(b) of the Criminal Code. There was no error of the trial judge in concluding that there was no breach of the appellant's right to counsel in the circumstances.
• 2004 BCCA 77 R. v. Nahar
  On appeal from a conviction for second degree murder, the trial judge is found not to have erred either in his ruling certain expert evidence, which was unnecessary, inadmissible or in his consideration of the objective element of the offence with regard to the cultural background of the accused being taken into account. Appeal dismissed.
• 2004 BCCA 78 R. v. Deacon
  The appellant, a long-term offender, was sentenced to two years (effectively 45 months giving credit for pre-sentencing custody) for a breach of his long-term supervision order. He appealed the sentence on the grounds (1) that the sentencing judge erred in principle by fixing the sentence solely for the purpose of facilitating treatment of his paedophilia and (2) that the sentence was excessive. Held: (1) Protection of society is the dominant purpose in sentencing under Part XXIV of the Criminal Code. Treatment of the appellant is central to the ability to manage his risk of recidivism in the community while subject to long-term supervision. Thus, a sentence that would facilitate his treatment was appropriate and the sentencing judge did not err by focusing on his treatment needs. (2) The sentence was not excessive in all of the circumstances.
• 2004 BCCA 79 R. v. S.S.
  The appellant, a young offender, was convicted of criminal negligence causing death and impaired driving causing death as a result of a street race in West Vancouver. The issue on appeal was that the trial judge had erred in concluding that the appellant was the driver of the vehicle involved. Appeal dismissed. There was ample evidence from which the trial judge could have concluded that the appellant was the driver.
• 2004 BCCA 83 R. v. Soriano
  On the basis of fresh evidence of lesser moral culpability, remorse, and potential for rehabilitation, sentence of 18 months and 3 years’ probation imposed for multiple fraud-like offences varied to time served and 2 year’s probation.
• 2004 BCCA 84 R. v. Swanson
  Mr. Swanson appealed from his designation as a dangerous offender and from his indeterminate sentence on the basis that the trial judge had erred in law by deciding that the long-term offender provisions of the Criminal Code did not apply to him. She made her decision prior to the decisions of this Court in R. v. Johnson, 2001 BCCA 456, which was upheld by the Supreme Court of Canada, 2003 SCC 46. The Crown agreed that a new hearing was appropriate. Held: Appeal allowed and a new hearing ordered.
• 2004 BCCA 91 R. v. Pires
  Appellants granted release on conditions pending their applications for leave to appeal to the Supreme Court of Canada.
• 2004 BCCA 94 R. v. S.S.
  S.S. a young person at the time of the offence, was convicted of criminal negligence causing death and impaired driving causing death. He was sentenced to a one year custody and supervision order under the Youth Criminal Justice Act, to be served in part in open custody, and in part in the community under a supervision order. Appeal against sentence dismissed. Only a custodial sentence could achieve the purpose in the YCJA of holding the person accountable for his offence through the imposition of just sanctions with meaningful consequences.
• 2004 BCCA 98 R. v. N.J.
  The appellant appeals her conviction for dangerous driving arising out of an accident that occurred in April 2001 near Whistler, B.C. HELD: appeal allowed and acquittal entered. The evidence of the expert called by the Crown regarding the speed of the appellant’s vehicle was fatally undermined and was misconstrued by the trial judge. When all of the evidence is considered, a conviction of dangerous driving is unsafe and cannot be supported by the evidence. DISSENTING: Southin J.A.: Even if the judge misapprehended some of the evidence there is here neither a miscarriage of justice nor an unreasonable verdict.
• 2004 BCCA 109 R. v. Ansary
  Second degree murder — two witnesses recanting statements made to authorities immediately after killing of their mother by their father — initial statements said upstairs asleep when killing occurred — subsequent statements and evidence at trial was that two witnesses were eye witnesses to the killing — trial judge admitted two initial statements into evidence as prior inconsistent statements — defence sought to have statement admitted for their truth as a principled exception to hearsay rule — appeal dismissed.
• 2004 BCCA 112 R. v. S.D.
  A young offender was sentenced to 18 months closed custody and supervision followed by a probationary term of one year following his guilty plea to one count of the careless use of a firearm contrary to s. 86 (1) of the Criminal Code. He seriously injured a young man by shooting him in the legs with a handgun during a melee involving several people. As the sentence exceeded two years, it was an illegal sentence by virtue of s. 42 (14) of the Youth Criminal Justice Act. Considering the youth’s positive progress since his incarceration, a sentence of time served (three months) followed by six months in an intensive support and supervision program and a further twelve months of probation was substituted.
• 2004 BCCA 115 R. v. Semeniuk
  Appeal from convictions for fraud and uttering forged documents. Appeal dismissed. The fundamental issue was credibility. The judge’s conclusions on credibility and on questions of fact were not unreasonable. There was no basis for interfering with the verdicts of guilt.
• 2004 BCCA 117 R. v. Clark
• 2004 BCCA 118 R. v. Russell
  Appeal allowed, new sentencing hearing ordered to permit the sentencing judge the opportunity to correctly analyze whether the appellant should be granted long-term offender status under the principles stated in R. v. Johnson (2003), 177 C.C.C. (3d) 97.
• 2004 BCCA 121 R. v. Morris and Olsen
  Two Tsartlip band members entitled to the benefits of the North Saanich Treaty, one of the Douglas treaties, shot at night at a dummy deer rigged by conservation officers. They were charged under the Wildlife Act with hunting during prohibited hours and hunting with a light. They were convicted and the convictions were upheld by the Summary Conviction Appeal Judge. On appeal to this Court the appeal was dismissed, Mr. Justice Lambert dissenting. The significant issue was safety and the interaction between safety practices and treaty rights.
• 2004 BCCA 122 R. v. Purewal
  Crown agrees to an order quashing warrants of committal, issued other than in accordance with the test in R v. Wu 2003 SCC 73.
• 2004 BCCA 123 R. v. Clark
  Appeal from conviction for assault dismissed where very strong corroborative evidence existed supportive of evidence of female complainant.
• 2004 BCCA 135 R. v. Smith
  Illegal sentence. Appeal allowed
• 2004 BCCA 136 R. v. McIntosh
  Appeal from conviction. If any breaches of the Charter to exclude the evidence obtained would bring the administration of justice into disrepute. Appeal dismissed.
• 2004 BCCA 139 R. v. Jordan
  Appeal from summary conviction appeal court allowed. The Crown appeal against acquittal in the Supreme Court ought to have resulted in a new trial rather than a conviction. The appellant had been charged with possession of a prohibited weapon. He was acquitted at trial on an error of law. Summary conviction appeal judge correctly identified the error of law but wrongly entered a conviction. The trial judge had not made sufficient findings for a conviction.
• 2004 BCCA 140 R. v. Bryan
  Leave to appeal from the decision of a summary conviction appeal judge overturning the appellant's acquittal was granted pursuant to s. 839(1) of the Criminal Code. Whether the summary conviction appeal judge re-weighed the evidence and submitted his opinion of the facts for that of the trial judge is a "question of law alone": R. v. Biniaris (2000), 184 D.L.R. (4th) 193, 2000 SCC 15. Further, the issues involved are important and the proposed appeal has a reasonable possibility of succeeding.
• 2004 BCCA 141 R. v. Johnson
  Crown appeal from acquittal of a charge of dangerous driving causing bodily harm. Appeal allowed. Application of modified objective test to undisputed objective facts where no explanation offered.
• 2004 BCCA 143 R. v. Kahan
  S.122(1)(b) and s.127(b) Immigration and Refugee Protection Act and s.57 Criminal Code – global sentence of 23 months – sentence appeal dismissed.
• 2004 BCCA 144 R. v. Curry
  Appellant appealed from 2nd degree murder conviction. He argued error in non-dishonour of potential for testing an exhibit for DNA evidence as well as that conviction was unsafe afforded ground for new trial or acquittal. Court of Appeal finding no substance in either ground of appeal advanced and dismissed appeal from conviction.
• 2004 BCCA 148 R. v. Johnson
  The appellant was found guilty of two counts under the CDSA of producing marihuana and possessing marihuana for the purpose of trafficking. He raised two issues: (1) whether a search warrant was invalid on the grounds that the Information to Obtain was misleading; and (2) whether his right to counsel under s. 10(b) was breached. Appeal dismissed. There is no evidence that the justice of the peace was misled or that the evidence contained in the Information to Obtain was materially misleading. The appellant did not invoke his right to seek counsel. He told the police that he wished to talk to his wife but he did not tell the police that he wanted to talk to his wife in order to arrange for counsel.
• 2004 BCCA 150 R. v. Essiambre
• 2004 BCCA 151 R. v. Sharif
  Upon allowing an appeal from a designation of dangerous offender Court declines to make any recommendation as to the conduct of the new proceedings.
• 2004 BCCA 152 R. v. Hartl
  Appeal from convictions on two counts of sexual assault. Case one of credibility. No reversible error.
• 2004 BCCA 155 R. v. Cai
  The Court set aside an order dismissing an application to extend time to file an appeal from a deemed conviction under the Motor Vehicle Act Regulations, B.C. Reg. 26/58. The Court remitted the application to the Supreme Court so the applicant might present his full submission to that court.
• 2004 BCCA 156 U.S.A. v. Chao
  An extension of time in which to appeal a committal order in an extradition case was refused on the ground that the appeal was bound to fail.
• 2004 BCCA 159 R. v. Johnson
  Appeal allowed. Dangerous offender designation and indeterminate sentence set aside and a new hearing ordered.
• 2004 BCCA 162 U.S.A. v. Graham
  Application by the United States for review of an order releasing the respondent from custody pending his extradition hearing. The respondent is charged in the United States with a murder in 1975 that is said to arise out of activities of the American Indian Movement. He has no criminal record and the broad support of the community. He was released on posting $25,500 cash, providing five individual sureties for $10,000 each, and strict terms and conditions, including residing with one of the sureties and house arrest with supervision by a surety for visits to court, his lawyer, reporting daily to police and medical emergencies. Held: application dismissed. The chambers judge made no error in principle in concluding that the respondent's detention was not necessary on either the primary or tertiary grounds of s. 515(10) of the Criminal Code.
• 2004 BCCA 163 R. v. Calder
  Appeal of conviction of second degree murder dismissed. There was no error in admitting video and audio tapes of conversations with the appellant during a police undercover operation. The trial judge did not err in not leaving the partial defence of provocation with the jury. It was not unreasonable for the jury to reject the intoxication defence and convict of murder rather than manslaughter.
• 2004 BCCA 164 Maydak v. The Attorney General of Canada
  Huddart J.A. adjourned the Crown's application for an order declining jurisdiction to hear two aspects of Mr. Maydak's judicial review application. She also rejected Mr. Maydak's application for judicial release under s. 20(c) of the Extradition Act, holding that he was not entitled to bring a second application that would require a review of an order made by Hall J.A. denying a similar application under s. 20(a) of the Act
• 2004 BCCA 170 R. v. Armstrong
  The Court adjourned the application for an extension of time in which to file an appeal so the applicant’s capacity to conduct a defence might be investigated.
• 2004 BCCA 171 R. v. Grave
  Concurrent sentences of two years less a day for breaking and entering were affirmed.
• 2004 BCCA 173 R. v. Ly
  Appeal by Crown from judicial stay ordered by trial judge. Respondents sought to question informer and a chambers judge had made order permitting counsel to examine witness before trial on undertaking of counsel not to disclose identity of informer. When Crown did not produce informer in interval of 10 days between date of order and commencement of trial, respondents applied for and were granted judicial stay by trial judge. Court of Appeal holding that stay entered in error and setting aside order of trial judge. Court of Appeal concluding no proper basis established to support either order. Observations by Court as to timing of such an application where "innocence at stake" exception to informer privilege rule is basis of application for access to informer. R. v. Leipert, [1997] 1 S.C.R. 281 referred to.
• 2004 BCCA 175 R. v. Turcotte
  The appellant appealed his conviction for second degree murder on the ground that the trial judge erred in charging the jury on post-offence conduct that could lead to an inference of guilt when the conduct in question consisted mainly of the appellant’s silence when questioned by the police. Appeal allowed and new trial ordered.
• 2004 BCCA 176 R. v. Mark
  Crown appeal from acquittals entered by a Summary Conviction Appeal Judge on charges under the Fisheries Act and Regulations of unlawfully fishing during a closed time. The appeal was dismissed as the judge used the correct legal test on review of the trial judge’s convictions, and applied the test correctly. The Respondents’ appeal against forfeiture of the catch was allowed.
• 2004 BCCA 178 R. v. Wheatley
  Appeal from a sentence of 9 months incarceration for touching a person under the age of 14 years for a sexual purpose. Appeal dismissed.
• 2004 BCCA 179 R. v. Gold
  A plea of guilty to a charge of second degree murder was set aside, the appeal from conviction allowed, and a new trial ordered because the guilty plea was neither unequivocal nor informed. The Crown supported this disposition.
• 2004 BCCA 180 R. v. Hadizadeh-Raeisi
  Appellant seeking an appeal to obtain extension of time to file appeal and withdraw plea because of allegation of impaired mental condition at time of entry of plea. Court extending times but not allowing application to withdraw plea. Court finding no error in disposition of matter by trial judge who had refused application to withdraw plea.
• 2004 BCCA 181 R. v. Hadizadeh-Raeisi
  Sentence appeal allowed and probation order terminated where counsel were both in agreement that sentence imposed had been too lengthy.
• 2004 BCCA 185 R. v. Pedersen
  An appeal of a four year concurrent sentence for criminal negligence causing death and impaired driving causing death dismissed. No error in principle was shown and the sentence was not demonstrably unfit.
• 2004 BCCA 191 R. v. Tabor
  Application for leave to appeal and sentence appeal from a lifetime driving suspension for impaired driving and failing to stop a vehicle when pursued by police. Applicant has extensive record of driving convictions. Held: Application allowed. Driving prohibition reduced to the maximum permitted by law, 3 years under s. 259(2)(c) Criminal Code, and a prohibition of 10 years to run concurrently under s. 98(2) of the Motor Vehicle Act.
• 2004 BCCA 193 R. v. Breadmore
  Appeal dismissed from an order terminating a conditional sentence.
• 2004 BCCA 194 R. v. Madrusan
  Application for appointment of counsel under s. 684 of the Criminal Code allowed. The appellant is serving a long sentence after being designated a long-term offender. He should be assisted by counsel to ensure his appeal is presented fully and cogently for consideration by the Court.
• 2004 BCCA 195 R. v. Wong
  Appeal dismissed from the admission of non-conscriptive evidence of drugs seized at the time of the appellant’s unlawful arrest. There were no grounds to disturb the trial judge’s exercise of discretion to admit the evidence under s. 24(2) of the Charter.
• 2004 BCCA 198 R. v. Pozzebon
  Appeal from sentence of one year for theft upheld. No error in declining to impose a conditional sentence
• 2004 BCCA 200 R. v. Hohmann
  The Court allowed an appeal from a conviction for aggravated assault because the trial judge's misapprehension of evidence formed a part of his chain of reasoning leading to a guilty verdict.
• 2004 BCCA 202 R. v. Gilliland
  Application for the appointment of counsel pursuant to s. 684 of the Criminal Code dismissed.
• 2004 BCCA 204 R. v. B.C. Tel
  Dismissal of Crown appeal of confirmation by a Supreme Court Judge of acquittals of B.C. Tel on two counts under the Canada Labour Code, R.S.C. 1985, c. L-2. No error found. The evidence did not establish that the deceased employee of B.C. Tel was performing a job requiring him to work within the prescribed margin of safety from a power line.
• 2004 BCCA 207 R. v. Williams
  THERE IS A BAN ON PUBLICATION OF THE IDENTITY OF ANY VICTIM OR WITNESS PURSUANT TO SECTION 486 (4.1) C.C.C.
  The appellant was convicted of sexual assault that was alleged to have taken place in 1985. The complainant did not report the incident to the police until November 2000. The Crown called two witnesses, the complainant and her husband. The appeal from conviction was allowed and an acquittal entered on the grounds that the verdict could not reasonably be supported by the evidence. There were numerous inconsistencies in the complainant's evidence and there was uncontradicted evidence that the complainant only complained after she was physically abused by her husband who had accused her of having consensual sex with the appellant. The evidence was weak and the conviction could not reasonably be supported by the evidence.
• 2004 BCCA 211 R. v. Kartsonas
• 2004 BCCA 212 R. v. Uppal
• 2004 BCCA 213 R. v. Berg
• 2004 BCCA 214 R. v. Berg
  The trial judge neither misapprehended the evidence in a material way, nor incorrectly assessed the evidence of identification. The appeal is dismissed.
• 2004 BCCA 215 R. v. Couture
  THERE IS A BAN ON PUBLICATION OF THE IDENTITY OF ANY VICTIM OR WITNESS PURSUANT TO SECTION 486(4.1) C.C.C.
  Application for release pending appeal dismissed. The appellant was convicted of two counts of second degree murder for the murders of his girlfriend and her friend in 1986. He confessed the murders to a Christian counsellor, now his wife, in 1989. She gave statements to the police in 1997. His appeal is on the ground that the statements were wrongly admitted into evidence at trial. The appellant was released pending his trial, under 24 hour house arrest with conditions requiring his wife to accompany him on permitted absences from his home. The appellant established that his appeal is not frivolous and that he will surrender himself into custody in accordance with an order, but he has not established that his detention is not necessary in the public interest. The murders involved a degree of premeditation and malevolent violence, it is not appropriate in all of the circumstances that his wife act as his "jailer" and his grounds of appeal are not "very strong".
• 2004 BCCA 216 R. v. Berg
• 2004 BCCA 219 R. v. Cairns
  Crown appeal of a four year sentence for spousal manslaughter allowed, and a sentence of seven years substituted. Rowles J.A. dissenting.
• 2004 BCCA 220 R. v. Elliot
  Trial judge had imposed global sentences of 12 years for manslaughter on two aboriginal offenders who had mistreated and abused two young children placed into their care by step-sister of female accused. The Court of Appeal reduced these sentences to 10 years, holding that the judge had not given sufficient weight to systemic factors in the lives of the appellants that led them to commit the offences of which they were convicted.
• 2004 BCCA 222 R. v. Braun
  Appeal of a custodial sentence of 15 months and two years probation on two counts of theft over $5000. Dismissed.
• 2004 BCCA 226 United States of America v. Gillingham
  Mr. Gillingham’s appeal from the committal order and application for judicial review of the Minister’s order surrendering him to the United States to face revocation of a fifty-year suspended sentence are both dismissed.
  The extradition judge did not err in finding that Mr. Gillingham is a “fugitive alleged to have been convicted of an extradition crime” pursuant to s.18(1)(a) of the Extradition Act. A stay of the committal proceedings is not justified. Improper or bad faith conduct of Canadian officials which compromises the fairness of the extradition process may engage s.7 of the Charter, but in this case the Canadian probation officers did not engage in the type of egregious misconduct that would constitute an abuse of process. Similarly, Montana’s pre-extradition delay caused Mr. Gillingham no prejudice and, in the circumstances, was not oppressively long. There was no breach of s.7 of the Charter or an abuse of process on the appeal from the committal order.
  The standard of review to be applied to the Minister’s decision with respect to constitutional issues is correctness. In this case, the Minister correctly concluded that Mr. Gillingham’s surrender did not violate the Charter.
  The United States has a legitimate interest in seeking Mr. Gillingham’s extradition for his breach of the Montana probation order while in Canada. The need to ensure that court orders are enforced provides a real and substantial link between his conduct in Canada and the extradition request. This link is not severed by the terms of the probation order, or Montana’s deportation of Mr. Gillingham to Canada in 1993, or by any failure to rely on the Prisoner Transfer Treaty.
  The overall delay in the extradition proceedings has not caused Mr. Gillingham prejudice nor, in the circumstances, has it been so long that it is simply unacceptable or shocking to the conscience of Canadians. There is no other basis upon which this court should interfere with the Minister’s decision. The Minister’s reasons are adequate and he made no error with respect to the onus of proof.
• 2004 BCCA 229 R. v. McCrea
  The Crown appealed a judicial stay of proceedings of seventeen counts of breaking and entering, four counts of armed robbery, and four counts of committing an indictable offence while masked. The primary basis for the stay was a police officer’s verbal abuse of the accused during questioning. The questioning was videotaped.. Held: Appeal allowed. While the police officer’s behaviour was improper, this is not one of the “clearest of cases” in which the drastic remedy of a stay is appropriate. The prejudice to the accused is unlikely to be perpetuated or aggravated by the trial, a stay is not the only available means to redress the police misconduct, and the public’s interest in the accused being tried outweighs the prejudice to the accused.
• 2004 BCCA 230 R. v. Vu
  Appeal against convictions for production of cannabis and for unlawful possession for the purpose of trafficking contrary to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act. Whether the refusal of a defence request for a voir dire into the validity of a search warrant was proper and whether the actual search went beyond the scope of the warrant.
  HELD: Appeal allowed, new trial ordered. The warrant authorized the search of the dwelling house, and that language cannot be stretched to include a vehicle. Dissenting judge would not have excluded the evidence under s. 24(2) of the Charter.
• 2004 BCCA 233 R. v. Semeniuk
  Appeal from a restitution order made as part of a sentence on conviction of 13 counts of fraud and uttering forged documents. The appellant was ordered to make restitution in the amount of $131,833 in respect of three transactions. HELD: Appeal allowed. Section 738(1) of the Criminal Code allows restitution where the amount is readily ascertainable; it cannot be said that the amount could be ascertained. The appellant was denied the opportunity to demonstrate that the banks were not entitled to the full amount claimed as a result the process was unfair. The banks could have provided properly documented material in support of the order, but the order relied on scant proof and cannot stand.
• 2004 BCCA 234 R. v. Millar
  Appellants were convicted of dealing in decoding devices contrary to Code s. 327(1). They appealed alleging error by judge in charge to jury regarding "lawful charge" as that term is employed in s. 327 and also alleging a violation of their rights under Bill of Rights and Charter. Court of Appeal finding no merit in any of grounds of appeal and dismissing appeals of the appellants.
• 2004 BCCA 235 R. v. Yang
  Mr. Yang was convicted of possession of heroin for the purposes of trafficking. He submitted on appeal that the reasons of the trial judge were inadequate thereby indicating that the trial judge had overlooked evidence. Further, that the trial judge had not fulfilled the test for a finding of guilt based on circumstantial evidence. HELD: Appeal dismissed. Per Sheppard the reasons of a trial judge do not have to be a mirror of the trial. That is a matter for the transcript. The trial judge fulfilled the test for circumstantial evidence even though he did not fully articulate it.
• 2004 BCCA 238 R. v. Dumont
  Leave to appeal dismissed from the applicant’s summary conviction for unlawful possession of tobacco contrary to s. 39(7) of the Tobacco Tax Act. The issues sought to be advanced were not raised in the trial court and there was no adequate foundation to allow their adjudication.
• 2004 BCCA 239 R. v. Gill
  Appeal from a conviction of manslaughter arising from a fatal stabbing. The appellant claimed self-defence. The trial judge did not give instructions to the jury on s. 34(1) of the Criminal Code. The appellant claimed the trial judge did not fairly instruct the jury on s. 34(2). Also, the trial judge gave a negative assessment on a defence witness, and admitted an altered videotape into evidence. HELD: Appeal dismissed. No useful purpose would have been served by charging on s. 34(1) as s. 34(2) was fully adequate to deal with the situation. There was nothing objectionable in the trial judge’s instructions; they put the law correctly in terms the jury could understand. The trial judge’s remarks on the witness did not create any unfairness. The enhancement process did not distort the videotape and was properly given to the jury.
• 2004 BCCA 248 R. v. Gooderham
  The appellant was convicted of fraud arising out of a real estate transaction. The main ground of appeal was that the trial judge did not adequately assist an unrepresented accused. HELD: appeal dismissed. The trial judge extended help that accorded with the principle as set forth in R.v.Darlyn (1946), 88 C.C.C. 269 (B.C.C.A.). A further ground of appeal was that the Crown did not prove an essential element of the charge, being the identity of the company that was defrauded. The Court held, pursuant to its power under s.683(1)(g) of the Criminal Code that the indictment should be amended to accord with the evidence.
• 2004 BCCA 256 R. v. Orozlo-Ovinones
  Appeal from sentence of 14 months for assault causing bodily harm. No error. Appeal dismissed.
• 2004 BCCA 261 R. v. Fife
  Appellant was convicted of kidnapping with intent to confine, aggravated assault, using a weapon while committing an assault and uttering threats. The complainant in each count was his former common-law spouse. Credibility was a central issue at trial. The appellant denied committing the offences. He called witnesses who corroborated his evidence. The trial judge failed to give adequate reasons in convicting the appellant. Appeal allowed. New trial ordered. The trial judge failed to properly assess the evidence and further failed to permit cross-examination of the complainant on prior inconsistent statements.
• 2004 BCCA 263 R. v. Aghabeigi
  Appeal and cross-appeal for sentence of 3 years for importing opium, dismissed.
• 2004 BCCA 264 R. v. Pelletier
  The respondent was convicted of second degree murder of an 81-year-old woman during the course of a home invasion style robbery. He was also convicted of breaking and entering and aggravated assault arising out of the same circumstances. The trial judge in sentencing the respondent to life imprisonment fixed the parole ineligibility period at 10 years. The Crown appealed. Appeal allowed. The parole ineligibility period is fixed at 15 years based on the brutal nature of the crime and the moral blameworthiness of the respondent.
• 2004 BCCA 265 R. v. Gustavson
  Application by a prisoner for a writ of habeas corpus adjourned upon counsel becoming aware of a section of the Criminal Code enacted in July 2002.
• 2004 BCCA 266 R. v. B.V.N.
  Appeal dismissed from a custodial sentence imposed on a young offender for assault causing bodily harm except for the deletion of conditions imposed on the custody portion of a custody and supervision order that exceeded the jurisdiction of the sentencing judge. Observations on general deterrence as a factor in sentencing under the Youth Criminal Justice Act.
• 2004 BCCA 268 R. v. A.J.C.; R. v. Joseph
  The appeals from sentences imposed for convictions on charges of kidnapping, breaking and entering a dwelling place to commit robbery, unlawful confinement, and wearing masks while committing those offences were allowed. The sentencing judge imposed sentences which were demonstrably unfit given the subsequent decisions in R. v. Bernier and other recent “home invasion” type cases. Appropriate sentences were 11 years for A.J.C. and 13 years for Joseph. After giving credit for pre-sentencing custody and guilty pleas, the actual terms of imprisonment from date of sentence are 7 years for A.J.C. and 9 years for Mr. Joseph.
• 2004 BCCA 274 R. v. Dionne
  Inference of guilt of theft drawn by trial judge where accused found in possession of stolen “bait money” a few hours after a bank robbery by masked men. Also persuasive DNA evidence from discarded robbery clothes. HELD (Mr. Justice Oppal dissenting). No error in law and verdict not unreasonable. Appeal dismissed.
• 2004 BCCA 275 R. v. Dionne
  Application by the Crown for leave to appeal a sentence of three years imprisonment for bank robbery. The respondent had an extensive record including 11 robbery convictions. His two co-accused, whose participation in the crime was the same as his, but whose records were much less, received a two year conditional sentence and a one year prison sentence respectively. The sentence was at the bottom of the range but it was not unfit.
• 2004 BCCA 285 R. v. Crawford
  Appeal from conviction for assault with a weapon, assault causing bodily harm and possession of a weapon dangerous to the public peace on the ground that the verdict is unreasonable, dismissed.
• 2004 BCCA 287 R. v. Dowding
  Appeal from a conviction of possession for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. The appellant alleged that the trial judge erred in law by allowing the Crown to reopen its case to call an analyst as a witness. HELD: appeal dismissed. The critical question is whether the accused will be prejudiced in his or her defence. The underlying principle is that the accused should know the case that it has to meet before responding. In this case: the defence was fully informed of the case for the Crown; the evidence called by the Crown in reopening its case was purely formalistic; and there was no possibility of prejudice to the defence in the sense that it was unfair or that the administration of justice was compromised. R. v. G.(S.G.), [1997] 2 S.C.R. 716, referred to.
• 2004 BCCA 291 R. v. Skiffington
  The appeal from conviction for second degree murder after a trial before a judge and jury is dismissed. The trial judge made no errors in the charge to the jury. First, the trial judge did not direct the jury to exclude from its consideration all evidence except that which was accepted as true and therefore did not commit a Miller error. Second, any absence of a distinct warning as to the use of the appellant’s exculpatory out-of-court statements did not amount to misdirection, given the circumstances of this case. Finally, it was not necessary for the judge to provide a Hodgson warning to the jury about the reliability of the appellant’s confession to undercover police officers posing as members of a fictitious criminal organization. The whole thrust of the defence was that the appellant’s confession was inherently unreliable. The trial judge’s review of the evidence and defence’s closing submission made it abundantly clear that this was the central issue before the jury and any further instruction would have been superfluous.
• 2004 BCCA 294 R. v. Gordon
• 2004 BCCA 295 R. v. Lavertu
  Global sentence of 30 months for cocaine trafficking offences reduced to 24 months because of progress towards substance abuse rehabilitation made by appellant in federal prison and because of joint submission by appellant and Crown respondent.
• 2004 BCCA 305 R. v. Morris
  Crown appeal from a suspended sentence and probation order imposed on an aboriginal man in Provincial Court for threatening, assault, pointing a firearm and unlawful confinement. The victims were his common law wife and her boyfriend. Appeal allowed, incarceration for one year ordered and variation of probation conditions. Spousal abuse was epidemic in this community and a suspended sentence was unfit as providing no denunciation or general deterrence. The terms of the probation order were varied because they were unenforceable.
• 2004 BCCA 310 R. v. Mapara
  The applicant applied for judicial interim release pending appeal to the Supreme Court of Canada of his conviction for first degree murder. A prior application for release pending the application for leave to appeal had been dismissed. The applicant argued that the granting of leave by the S.C.C. indicated that there were strong grounds of appeal and also raised grounds which had not been considered by the Court of Appeal when it affirmed the jury’s conviction. The application was refused. There was a risk of flight and the merits of the appeal did not tip the balance in favour of release.
• 2004 BCCA 314 R. v. Skelly
  The application to stay the driving prohibition pending the determination of the application for leave and the appeal, should leave be granted, is allowed.
• 2004 BCCA 315 R. v. Gooderham
• 2004 BCCA 317 R. v. Baal
  Trial judge's charge to jury on identification was adequate in circumstances of this case.
• 2004 BCCA 318 R. v. Evans
  Appeal from direction of trial judge that parole ineligibility period be increased from 10 years to 15 years.
  Given serious circumstances of case where young person bludgeoned to death and body dismembered, Court of Appeal declining to interfere with sentence.
• 2004 BCCA 321 R. v. Autenreith
  S. 731(1)(b) violated when a 12 month consecutive sentence of imprisonment imposed while appellant serving 2 year sentence. Probation order deleted.
• 2004 BCCA 322 R. v. Gervais
  Application for extension of time to apply for leave to appeal sentence dismissed. The appellant was in breach of his parole and probation orders at the time the application was heard.
• 2004 BCCA 324 R. v. Armstrong
  Upon an appellant not opposing, the Court refused to extend the time for appeal thus, in effect, dismissing the appeal.
• 2004 BCCA 332 R. v. Melnichuk
  The appellant alleged that there was a reasonable apprehension of bias on the part of the Provincial Court judge who had presided over his trial. Prior to her appointment to the bench, the judge had been a member of the Kelowna Crown counsel office which had conduct of the prosecution. Appeal dismissed. There was no evidence that the judge when she was counsel had any dealings direct or indirect with the conduct of the prosecution. There is no evidence that she ever had any knowledge of or engaged in any conversation relating to the file. The Kelowna Crown counsel office is a large office with hundreds of files being processed on a monthly basis. Moreover, there had been a 17 month gap in time between the judge's appointment to the bench and the date of trial.
• 2004 BCCA 338 R. v. Dove
  Mr. Dove appealed from his conviction for first degree murder. Held: Appeal allowed and a new trial ordered. The trial judge erred in effectively taking the defence of provocation away from the jury by advising them that it had no merit, and thereby compromising Mr. Dove's right to a fair trial. The trial judge also failed to adequately deal with an error in his recharge with respect to the relationship between credibility and reasonable doubt.
• 2004 BCCA 341 R. v. McCallum
  Sentence appeal: the equivalent of 14 years in prison for attempted murder of a police officer, robbery with the use of a fire arm, discharging a firearm to prevent arrest, and dangerous driving impressed on a participant in a bank robbery upheld.
• 2004 BCCA 342 R. v. J.B.
  Appellant young offender was charged with sexually assaulting three other male youths. Trial process had been greatly delayed in large part because of unavailability of defence counsel. Appellant alleged trial judge failed to give adequate reasons, erred in granting an amendment of the Information and erred in discussing certain issues out of presence of accused.
  Court of Appeal dismissing appeal from convictions for assault of two youths – trial judge had acquitted accused appellant of count involving one complainant. Reasons of trial judge found adequate and no prejudice found either from amendment or discussions which had no bearing on any substantive issue in trial. R. v. Sheppard, [2002] 1 S.C.R. 869 and R. v. Vézina, [1986] 1 S.C.R. 2 referred to.
• 2004 BCCA 345 B.G. v. H.M.T.Q.
  The plaintiffs claimed they were physically and sexually abused by former staff at a juvenile residential facility operated by the defendant Crown until 1977. The trial judge imposed a publication ban preventing disclosure of the identities of the plaintiffs or the similar fact witnesses. The trial judge did not find the plaintiffs or their witnesses to be credible and dismissed the action. The reasons for judgment included the full names of all plaintiffs and most of the witnesses. When counsel questioned the format of the reasons, the trial judge issued an order that the reasons be published with the full names. He provided no reasons for terminating the publication ban. HELD: Appeal allowed and publication ban reinstated. The ban imposed was a permanent ban. The trial judge’s adverse findings on credibility are not a material change in circumstances sufficient to justify the exercise of a discretionary power to terminate the ban. In any event, the trial judge failed to exercise his discretion judicially. It is impossible to say which, if any, of the relevant factors the trial judge took into account, or how he weighed them. Material filed on appeal indicates that the ban should not have been terminated in this case.
  The Crown’s purported cross-appeal on the publication ban relating to former staff at the facility is dismissed. That order was temporary and expired on judgment. The Crown at no time argued that the temporary order was in error, nor did the Crown apply to extend the order. There is no basis on which this court could now intervene to make the order sought.
• 2004 BCCA 355 R. v. Laidlaw
  Appeal sentence of 8 months on three counts of theft and one breach of a conditional sentence order dismissed.
• 2004 BCCA 357 R. v. Krys
  Subsequent sentences brought the total sentence to more than 2 years, rendering the order for probation unlawful.

• 2004 BCCA 362 R. v. Braut
  Appellant applied for the stay of driving prohibitions pending appeal from conviction. A stay was upheld as not in the public interest. The appellant has a record of driving while under suspension, and of speeding. He presented a risk to public safety, and a stay would undermine public confidence in the administration of justice.
• 2004 BCCA 363 R. v. Menton
• 2004 BCCA 365 R. v. Sanchez
  As of the offence dates a firearms prohibition was discretionary, not a mandatory life-time prohibition as ordered. Appeal allowed. The firearms prohibition was deleted.
• 2004 BCCA 367 R. v. Spratt
  Issue as to constitutionality of provision of Access to Abortion Services Act in light of s. 2 of the Charter (freedom of expression rights). Judge finding requisite grounds for granting of leave from decision of summary conviction appeal court judge and ordering that leave to appeal ought to be granted on this issue.
• 2004 BCCA 368 R. v. McAndrew
  Sentence appeal dismissed. The appellant pled guilty to leaving the scene of an accident and was sentenced to six months’ imprisonment and a three year Criminal Code driving prohibition. This was his second conviction for leaving the scene of an accident, a serious aggravating factor. He minimized his responsibility for the accident and his conduct in leaving his dead passenger by the side of the road. A custodial sentence was fit and proper.
• 2004 BCCA 371 R. v. Toth; R. v. Michaels
  Appeal by two accused convicted at joint trial of conspiring to murder and attempted murder.
  Appeals based on alleged errors by trial judge in conduct of trial and charging the jury.
  Appeals dismissed.
• 2004 BCCA 373 R. v. N.A.C.
  Sentence appeals dismissed. Two appellants appealed sentences of the equivalent of 18 months’ custody and supervision under the Youth Criminal Justice Act, S.C. 2002, c. 1 after pleading guilty to three charges arising out attacks with machetes on two victims in the home of one of them. The sentencing judge considered the principle of “least restraint” in determining not only that custodial sentences were appropriate but also in determining the length of the sentences. Considering all of the factors set out in s. 24.1(4) of the Young Offenders Act, R.S.C. 1985, c. Y-1, secure custody was also appropriate.
• 2004 BCCA 374 R. v. Neudorf
  The appellant was convicted of manslaughter and sentenced to seven years imprisonment. The appellant had spent 18 months in custody prior to sentencing. The trial judge refused to give the appellant credit for anything more than 18 months because of the appellant's post-offence conduct. The appeal was allowed on the ground that post-offence conduct is not a relevant factor in giving credit for pre-trial custody under s. 719(3) of the Criminal Code. Sentence reduced from seven to six years.
• 2004 BCCA 375 R. v. Breton
  Accused was originally charged “by indictment” with three offences, two of which were “hybrid” and one a summary conviction offence only. He elected on the third to be tried in Provincial Court, pled guilty, and was sentenced to a term of probation. Held, the error in originally proceeding “by indictment” was an irregularity only, given that accused chose to be tried summarily and was so tried. Conviction was therefore not a nullity; and to avoid any prejudice, reference in probation order to indictment was to be corrected.
• 2004 BCCA 378 R. v. Corbett
  Appellant was convicted of confinement arising out of an incident where he and a male acquaintance had tied up and kept restrained in his residence for several hours his girlfriend who had been engaged in assaulting him. She eventually freed herself from the tape binding her limbs and called the police who attended. The judge at trial had refused to leave the issue of lawful authority with the jury having regard to the circumstances of the case. She further refused a mistrial – accused argued through counsel that there was prejudice because he had assumed that the issue would be left to the jury.
  Court of Appeal finding no error in rulings of trial judge and dismissing appeal from conviction. Court holding no basis in evidence for leaving issue to jury – R. v. Fontaine, 2004 SCC 27 referred to.
• 2004 BCCA 380 R. v. Grams
  In case of robbery in which identification was main issue, trial judge failed to warn jury of limited use they could make of accused's previous robbery and other convictions. Majority allowed appeal and ordered re-trial, with Esson J.A. dissenting.
• 2004 BCCA 381 R. v. Vu
  The appellants were convicted of two drug related offences after the police found a marihuana grow operation in their residence. The main issue related to the legality of the search. The police testified that they had gone to the appellants' residence to return an exhibit and while they were there they fortuitously detected an odour of cannabis marihuana. The appellants' counsel alleged that the Information to Obtain the warrant was unlawful since the police's real intention was not to return the appellants' property but to engage in a fishing expedition to investigate a grow operation. Appellants' counsel alleged that the police did not have reasonable grounds to believe that there was a grow operation on the premises. Appeal dismissed. There is an implied invitation or licence granted to members of the public and to the police by occupiers of private property to enter onto a private property. The trial judge did not err in finding that the real intention of the police was to return the exhibit and their conduct in obtaining evidence that formed the basis of the search warrant was not illegal.
• 2004 BCCA 386 R. v. Carlson
  Bail refused. Order under s. 684 granted.
• 2004 BCCA 388 Fink v. HMTQ
• 2004 BCCA 389 Fink v. HMTQ
• 2004 BCCA 393 R. v. Rode
  The appellant was charged with second degree murder. He was convicted of manslaughter. The circumstances were that the appellant was attacked in his own home by the deceased. The deceased died of multiple stab wounds. The first in time was inflicted to the deceased's chest. Crown agreed he was acting in self-defence. The appellant also stabbed the deceased twice in the back. The Crown argued that he was not acting in self-defence when he stabbed the deceased in the back. The appellant raised the defence of self-defence.
  Appeal allowed. In the unusual circumstances of the case the trial judge ought to have instructed the jury that the appellant may have been acting in self-defence even when he stabbed the deceased in the back if he reasonably believed that he could not preserve himself from death or bodily harm except by inflicting further stab wounds.
• 2004 BCCA 394 R. v. Braut
  Order pronounced June 15, 2004 be reviewed by a division of the court.
• 2004 BCCA 396 R. v. Muhammad
  Appellant used considerable violence in sexual assaults on complainant sex trade worker and also cut her with a knife used to threaten her. Judge finding appropriate sentence 5 years and giving double credit for pre trial custody. Judge referred to lack of remorse as aggravating factor. Court of Appeal finding judge erred in treating lack of remorse as aggravating circumstance but nevertheless find that sentence should not be altered because it was fit. Appeal dismissed.
• 2004 BCCA 401 R. v. Arsenault
  Appellant Crown seeking increase in custodial sentence for respondent found guilty of breaking and entering two residences. 50 year old offender has long history of substance abuse problems. Court of Appeal declining to interfere in view of measure of progress made by respondent in grappling with his addiction problems.
• 2004 BCCA 403 R. v. Hancock
  Bail dismissed with provision for review.
• 2004 BCCA 405 R. v. Dahlnas
  Sentence appeal - 18 years imprisonment on a plea of guilty to break and enter and aggravated sexual assault where the circumstances were particularly egregious upheld. Appeal dismissed.
• 2004 BCCA 411 R. v. Aitkens
  Crown appeal from sentence of 4 months’ imprisonment allowed for possession of cocaine for trafficking. Respondent had lengthy record. Sentence of 15 months substituted.
• 2004 BCCA 416 R. v. Brown
  Appeal from pre-Johnson dangerous offender designation and indeterminate sentence on ground that sentencing judge erred in concluding that she had no discretion to consider sentencing offender as long-term offender once she had found that criteria for dangerous offender were met. Appeal dismissed. The sentencing judge considered the possibility of eventual control of the risk in the community in her analysis of the criteria for designation as a dangerous offender. She concluded that the offender's pattern of repetitive behavour is intractible. There was abundant evidence to support her findings and there was no reasonable possibility that she would have imposed a different sentence but for the error. As a result, there was no need to consider the Crown's submission that the line of decisions in this Court, beginning with R. v. Laboucan (2002), 166 C.C.C. (3d) 280, which hold that the Crown bears the burden of proving beyond a reasonable doubt that there is no reasonable possibility of eventual control of the offender's risk in the community, were wrongly decided.
• 2004 BCCA 417 R. v. Westlake
  Sentence appeal allowed. The sentencing judge erred in principle when he imposed an effective custodial sentence of 28 months, without considering whether all criteria relevant to imposition of a conditional sentence would meet the principles of sentencing. A conditional sentence of 20 months was substituted for the custodial sentence.
• 2004 BCCA 418 R. v. Berg
  Successful sentence appeal in case of impaired driving and failing to remain at accident scene. Appellant had poor record, but few convictions in recent years, and had a steady job and wished to make a change in his life. He would not present a risk to public, having been prohibited to drive, and his alcohol and drug consumption could be monitored in a conditional sentence regime. Ten-month conditional sentence substituted for 10 months’ imprisonment.
• 2004 BCCA 425 R. v. M.W.F.
  An appeal from conviction for sexual assault causing bodily harm based on a confession made without the benefit of legal advice. Dismissed.
  Per Lowry J.A. (Huddart J.A. concurring): The appellant’s expressed desire to contact counsel in relation to a separate offence did not impose a duty on the officer investigating the sexual assault to refrain from questioning the appellant. It is unclear whether the appellant had a reasonable opportunity to contact counsel with respect to the separate offence and, in any event, this did not give rise to obligations on the officer investigating the sexual assault which extended beyond the requirements of the Young Offenders Act. The officer informed the appellant of his right to counsel in a manner that complied with those requirements. The officer made no error in the advice she provided about the possibility of a transfer to adult court. Accordingly, there is no basis to conclude that the appellant did not provide a fully informed and voluntary waiver. The appellant’s statement is therefore admissible under s.56 of the Young Offenders Act.
  Per Finch C.J.B.C., dissenting: The failure to ensure that the appellant had a reasonable opportunity to contact counsel in relation to the separate offence imposed additional informational obligations on the police officer conducting the interview relating to the sexual assault charge less than two hours later. The officer failed to comply with those additional obligations and the trial judge therefore erred in concluding that the Crown satisfied the burden of proving that the appellant was fully informed of and understood his rights.
• 2004 BCCA 428 R. v. Singh
  Police officers investigating a homicide in which the appellant was a suspect searched pursuant to a warrant a small suite that had been occupied for several years by the appellant, his wife and young children. In a toolbox in the main room a handgun was discovered and in the main room and master bedroom in various receptacles ammunition (not associated with the handgun) was found. Appellant was under a prohibition order to not possess weapons or ammunition. Crown lead evidence at trial f results of search through police witnesses. Defence called no evidence. Trial judge held that circumstantial evidence sufficed to prove possession by appellant of prohibited items. Court of Appeal finding that trial judge did not err in so concluding and dismissing appeal.
• 2004 BCCA 429 R. v. Jubbal
  Sentence appeals were brought by two offenders from short jail sentences imposed on fraud charges. The issue on appeal was whether the trial judge erred in principle in not imposing conditional sentences rather than jail terms on the offenders. One appeal was dismissed, no error in principle having been shown. The other appeal was allowed on the ground that the circumstances of the successful appellant, who had no prior criminal record, employment and good job prospects, ought to have been considered separately from the circumstances of the other offender, in determining whether the pre-conditions for a conditional sentence had been met.
• 2004 BCCA 430 R. v. White
  Crown appealed from acquittal of accused respondent by jury on charges of assault. The only issue in the case was possible application of defence of self-defence. Respondent asserted he inflicted serious injuries with a bar in response to attack by victim wielding a wine bottle. A Crown witness had testified accused told her he "snapped" as a result of an insulting comment and beat the victim with a bar. The juryafter lengthy deliberation sent a note to trial judge asking if respondent could rely on self-defence if angered by comment of victim. Judge, over objection of Crown, did not give jury any further guidance on issues relating to provocation and self-defence but simply told them to reread the written instructions he had initially given to them.
  Held: Response of judge was in these circumstances non-direction amounting to misdirection. Verdict would not necessarily have been the same if a proper response had been made to question from the jury. New trial ordered.
• 2004 BCCA 432 R. v. Smaaslet
  Appeal from a conviction for unlawful confinement and assault on several grounds. Dismissed.
• 2004 BCCA 433 R. v. Irwin
  Appeal of a sentence of three years imprisonment for a particularly egregious aggravated assault. Dismissed.
• 2004 BCCA 434 R. v. Akerman
  Sentence appeal from a dangerous offender designation allowed and the matter emitted to the trial court. Evidence was misstated in the reasons given for rejecting expert evidence supportive of a long-term offender designation
• 2004 BCCA 436 R. v. Roberts
  The sentencing judge imposed sentence and, after a short adjournment, varied the sentence at the request of the appellant. The appellant contends that the varied sentence was illegal because the sentencing judge was functus officio. The sentencing judge retained jurisdiction until he endorsed the sentence on the indictment. As it was not proven that the judge endorsed the indictment before he varied the sentence, the appeal was dismissed.
• 2004 BCCA 439 R. v. Chisholm
  Appeal dismissed as abandoned, the appellant having failed to surrender himself into custody on the date set for the appeal.
• 2004 BCCA 441 R. v. Amyotte
  Appeal from a sentence of 20 months in prison imposed on a plea of guilty to the theft of a truck having a value exceeding $5,000 where the accused had a substantial criminal record. Dismissed.
• 2004 BCCA 442 R. v. Copeland
  Crown appeal of a conditional sentence of 18 months on a plea of guilty to producing marihuana. Allowed. Sentence set aside and a custodial sentence of 18 months in prison substituted.
• 2004 BCCA 445 R. v. Zahorenko
  Sentence appeal on three counts of robbery allowed as the sentence was demonstrably unfit.
• 2004 BCCA 461 R. v. Peters
  Mr. Peters pleaded guilty to manslaughter. He killed a fifteen year old male companion during a session of drinking. He intervened in a fight between the deceased and another person, throwing the deceased to the ground, kicking him and ramming his head into the ground. The next morning Mr. Peters returned to the scene and observed the deceased to be still alive but took no action other than to go home and to ride his bicycle. The trial judge sentenced Mr. Peters to two years less one day incarceration. The appeal was restricted to the submission that the sentence should have been conditional. It was alleged that the judge failed to take properly take into account R. v. Gladue and other factors that would have led to a conditional sentence. Held: The reasons of the judge reveal that he considered the principles regarding aboriginal sentencing including the statement from the mother of the deceased that Mr. Peters should not be treated “differently because he is native.” He also took into account all the sentencing principles set forth in R. v. Proulx.
• 2004 BCCA 462 Reumayr v. Canada (Minister of Justice)
  Bail refused. Applicant continues to present a significant flight risk.
• 2004 BCCA 463 R. v. Wong
• 2004 BCCA 464 R. v. Jeng
  The appellant challenged his conviction for assault on the basis that the trial judge misapprehended the evidence, failed to deal with the evidence properly, did not properly consider credibility and failed to deal with the theory of the defence. The reasons of the trial judge read in conjunction with the evidence disclosed no reversible error. The appeal was dismissed.
• 2004 BCCA 465 R. v. P.E.C.
  Appellant was convicted of six sex-related offences. He argued that the trial judge made a composite finding of credibility and used the evidence from one count to convict him on other counts. He also alleged that the trial judge used a faulty method for assessing credibility. Appeal allowed as to counts 1, 2 and 3 per Oppal J.A., Esson J.A. concurring; new trial ordered. Southin J.A., dissenting, would have dismissed the appeal on all six counts.
  Appeal dismissed as to counts 6, 7 and 8 per Southin J.A., Esson J.A. concurring. Oppal J.A., dissenting on counts 6, 7 and 8, would have allowed the appeal on all six counts and ordered a new trial.
• 2004 BCCA 471 R. v. Wattley
  Application for judicial interim release pending conviction appeal dismissed on the ground that the appellant did not demonstrate that his detention is not necessary in the public interest.
• 2004 BCCA 475 R. v. Miller
• 2004 BCCA 476 R. v. Semenc
  Appeal dismissed. Verdict could not be said to be unreasonable.
• 2004 BCCA 477 R. v. Fontaine
  Sentence appeal allowed to the extant of deleting the term of probation which, in the circumstances, contravened s. 731(1)(b) of the Criminal Code.
• 2004 BCCA 478 Maydak v. United States of America
  The appellant was committed for surrender to the United States by a Supreme Court judge so that he may serve the remainder of a sentence of supervised release imposed on him as a result of a number of convictions for fraud-related offences. Following the committal, the Minister of Justice ordered his surrender. He appealed from the committal and sought a judicial review of the Minister's decision. The appellant also sought an order for judicial interim release. In the appeal and application, he raised 26 substantive and procedural grounds. Appeal from committal order dismissed. The extradition judge did not err in concluding that the requesting state met the requirements of s. 29(1)(b) of the Extradition Act. Application for review of the Minister's surrender order dismissed. The Minister's decision warrants a high degree of deference. There is no basis for the allegations that the applicant's Charter rights were breached by the surrender order.
• 2004 BCCA 479 R. v. Hancock
  On review, after receipt of the Reasons for Judgment on sentencing, the dismissal of an application for interim judicial release pending the appeal is confirmed.
• 2004 BCCA 480 R. v. Robinson
  Sentence of ten months to aggravated assault imprisonment upheld. Sentencing judge did not misapprehend submission as to the intent of the appellant in swinging a baseball bat at the victim. Judge found a sentence of two years to be appropriate and took into account seven months of pre-trial custody.
• 2004 BCCA 481 R. v. Woida
  Appeal from suspended sentence seeking substitution of a conditional discharge. No error on the part of sentencing judge. Leave granted. Appeal dismissed.
• 2004 BCCA 484 R. v. Greaves
  Appeals from convictions relating to two separate incidents of confinement, threatening and robbery. The appellant argued that the evidence linking him to those offences, obtained during the course of an investigative detention for an unrelated assault incident, should have been excluded under s. 24(2) because the police violated his ss. 8, 9, and 10(b) Charter rights. Appeals dismissed.
  The appellant was not arbitrarily detained contrary to s. 9. The police initially had reasonable grounds to detain the appellant for the assault investigation. The scope and duration of the detention were reasonably necessary in the circumstances where the appellant provided a false identity to the police and they had reasonable grounds to detain, rising to reasonable grounds to arrest, the appellant for obstruction in the execution of duty.
  The searches and seizures of the appellant’s cigarette case and cellular telephone address book violated his s. 8 rights. The power to search incidental to investigative detention is limited to protective purposes and does not permit a search for identification purposes.
  The appellant’s s. 10(b) rights to counsel were also violated. Although s. 10(b) will not be triggered on every investigative detention, the appellant’s right to counsel did arise when he was physically restrained.
  Despite the ss. 8 and 10(b) violations, the testimonial evidence establishing the identity of the appellant obtained as a result of the searches should not be excluded under s. 24(2). The impugned evidence was not conscriptive and therefore did not affect the fairness of the trial. Although the appellant had a relatively high expectation of privacy in the items searched, the seriousness of the violations is mitigated by the presence of reasonable grounds to arrest the appellant for obstruction. The police did not act in bad faith, and the link between the violations and the evidence is tenuous. The offences involved are serious and the evidence as to identity was essential to securing convictions. The administration of justice would suffer greater disrepute if the evidence was excluded rather than admitted.
• 2004 BCCA 487 R. v. J.B.
  The sentencing judge sentenced the appellant for sexual assault to a custodial term in a youth facility and a lengthy period of probation. Although he failed to sentence in accordance with the purposes and principles of the Youth Criminal Justice Act, S.C. 2002, c. 1, which came into effect shortly before he imposed sentence, the sentence imposed by the sentencing judge was not unfit. However, circumstances have changed materially. As the appellant is now an adult, the sentence imposed cannot be carried into execution: he will not be accepted in a youth facility and would have to serve his sentence in an adult institution, a harsher environment. Moreover, he has been under strict bail conditions for four years and has for the most part behaved in an exemplary way. In the circumstances, an appropriate sentence is a deferred custody and supervision order followed by a shorter period of probation.
• 2004 BCCA 488 R. v. Le
  Appeal dismissed. Verdict not unreasonable.
• 2004 BCCA 489 R. v. Hoang
  Conviction appeal allowed as the verdicts were unreliable or unsupported by the evidence. The Crown did not oppose.
• 2004 BCCA 502 R. v. R.C.W.M.
  The appellants, young offenders, appealed their sentences of six months' deferred custody and supervision followed by six months' intensive support and supervision imposed following their pleas of guilty to common assault on an indictment charging them, along with another young offender, with assault causing bodily harm. Their co-accused had earlier pleaded guilty to the more serious charge and was sentenced by a different judge to four months' custody and supervision followed by one year of probation. The co-accused punched and kicked the victim, a teenage girl, over a period of twenty to thirty minutes in the presence of a cheering mob of teenagers. The beating caused painful physical and serious psychological harm. As the beating concluded, the male appellant, who was present for part of the beating and filmed some of it on a videocamera, urinated on the victim's legs, and the female appellant, who arrived at or near the end of the incident, poured a drink on the victim's legs. The sentencing judge considered that the appellants were "collectively responsible" for everything that occurred and that they were parties to the offence committed by the co-accused. He erred in treating the appellants as if they had committed assault causing bodily harm and, as a result, did not give proper consideration to the proportionality principle of sentencing. He did not err in imposing a custodial term in the circumstances. However, the length of the total sentence was excessive. A fit sentence would have been one month deferred custody and supervision and five months intensive support and supervision, providing a total of six months under control and supervision. However, since the appellants have already served about four and one-half months of their custodial sentence, the sentence was varied to time served followed by two months' intensive support and supervision.
• 2004 BCCA 506 R. v. Dennis
  Appeal from a conviction of sexual assault. Appellant alleged 3 errors: (1) basing a finding of fact on a prior consistent statement; (2) using important inconsistencies in the complainant’s evidence as peripheral; and (3) failing to provide adequate reasons for disbelieving the appellant’s testimony.
  Held: appeal dismissed. The trial judge did not misuse the prior consistent statement. The inconsistencies were peripheral. The reasons were adequate.
• 2004 BCCA 511 R. v. Norman
• 2004 BCCA 522 R. v. Williams
  Appeal from conviction for historical sexual assaults on the ground that there was a miscarriage of justice. The appellant did not qualify for legal aid and was refused state funded counsel pursuant to a Rowbotham application. The appellant represented himself at trial before judge and jury.
  Held: appeal allowed. The appellant was incapable of representing himself in this matter and, hence, there was a miscarriage of justice. A new trial was ordered.
• 2004 BCCA 525 R. v. J.B.
  Supplementary reasons for judgment.
• 2004 BCCA 526 R. v. Thurston
  Appeal from a three year eight months sentence for possession of a firearm while prohibited and other related charges, dismissed.
  Appellant had a record of manslaughter in a drug dispute. Still involved in the drug milieu, he was found carrying a loaded 357 Magnum. Sentence high but not unfit.
• 2004 BCCA 528 R. v. Hewett
  Sentence appeal allowed to the extent of correcting an error made in giving credit for pre-sentencing custody. Net sentence reduced to 52 1/2 months for one count of robbery.
• 2004 BCCA 529 R. v. Weir
  Due to operation of s. 139(1) of Corrections and Conditional Release Act, a probation term attached to appellant's sentence, imposed concurrently with two-year sentence already being served, was not permitted by Criminal Code s. 731.1(b). Probation term was therefore illegal, as conceded by Crown. Appeal allowed to extent of deleting probation order.
• 2004 BCCA 530 R. v. Zsiros
  Appeal from conviction under s. 241 of aiding and abetting a person to commit suicide. Appellant argued the trial judge: erred in admitting intercepted telephone conversations because of an alleged "material non-disclosure" in the affidavit to obtain; erred in permitting Crown counsel to replay a portion of an intercepted conversation; erred in excluding evidence to the effect that the witness never heard the appellant encourage the deceased to commit suicide; and erred in expressing surprise the evidence finished sooner than expected, as an implied comment on the appellant's failure to testify. None of the grounds of appeal were successful, and the appeal was dismissed.
• 2004 BCCA 531 R. v. Ashley-Pryce
  Sentence appeal from term of 18-months imprisonment for sexual exploitation of a person with a disability (Code s. 153.1(1)). Appeal dismissed.
• 2004 BCCA 540 R. v. Cooper
  This is an application for an extension of time by Mr. Cooper within which to file a notice of appeal. He was found guilty on 18 July 1997 of second degree murder. He immediately showed interest in appealing but on the advice of his then counsel agreed not to do so. Shortly thereafter he had second thoughts and tried, sporadically, to contact his counsel but did not receive a response. It was not until three years after his conviction that he applied to the Legal Services Society to appeal his conviction. The Society appointed counsel who failed to file a notice of appeal. That delay cannot be attributed to Mr. Cooper. It is the previous three year delay that must be considered. The applicable principles from Flair Construction as repeated in R. v. Smith were considered.
  Held: The application for an extension of time dismissed. Mr. Cooper had an interest in appealing but not a bona fides intention. With regard to the principle that there must be merit in the appeal, a main ground of appeal would be based on the failure of the trial judge to instruct the jury properly on reasonable doubt. He did not fulfil the Lifchus requirement of comparing absolute certainty to the civil standard of probability. The Court held that this would not, in itself, provide the basis for a successful appeal. There were no other errors in the charge thus distinguishing R. v. J.W.R. where there were cumulative errors. The case at bar fell within R. v. Rhee 2001 SCC 71.
  The other main error alleged was that the judge failed to instruct the jury as to how intoxication might affect common sense inferences. The Court held that this oversight was irrelevant in that, based on the evidence, there was no air of reality to either an intoxication defence or to an argument that Mr. Cooper’s mental capacity was affected by alcohol or drugs.
  The delay was inordinate and the Crown had a strong case for second degree murder with little possibility that an appeal would be successful in reducing the conviction to manslaughter.
• 2004 BCCA 543 R. v. Jolliffe
  Appeal dismissed from termination of conditional sentence order for breach. Appeal from second consecutive sentence allowed and sentence varied.
• 2004 BCCA 546 R. v. Nguyen
  The appellant, while on property police knew from a search authorized by a search warrant, to house a marijuana grow operation, was asked for identification. He produced a driver’s license that identified him as a person wanted on an outstanding warrant. He was arrested, given a Charter warning and searched. The search produced keys linking him to the marijuana grow operation. Held, there was neither a detention nor an unreasonable search and seizure. The trial judge did not err in admitting evidence gained from the search. Appeal dismissed.
• 2004 BCCA 547 R. v. Anderson
  The appellant pleaded guilty to impaired driving causing bodily harm and was sentenced to 90 days incarceration, to be served intermittently, and was prohibited from driving for three years. He appealed his sentence, limited to the length of the driving prohibition. No error in principle was shown and the sentence was not demonstrably unfit.
  Appeal dismissed.
• 2004 BCCA 548 R. v. Martin
  Application for leave to appeal convictions under the Wildlife Act. Leave granted.
• 2004 BCCA 550 R. v. Tran
  The appellant, Van Thang Tran, was convicted of possession of cocaine and heroin for the purpose of trafficking. He had been driving a vehicle when stopped by the police. The cell phone in the car kept ringing while the officers were dealing with Mr. Tran. An officer entered the car to shut off the phone and saw a number of lottery paper squares containing the number of the cell phone. He suspected a dial-a-dope operation so answered the phone on several occasions. The calls were for drugs. A search under the vehicle uncovered drugs. Relying on R. v. Iturriaga the defence was that there was no direct evidence that Mr. Tran had knowledge of or possession of the drugs. No defence based upon a warrantless search was put forth. The appeal was on the ground that this was incompetent counsel work. Held: defence counsel must be presumed to be competent. The fact that he did not raise a Charter defence must be taken to have been a deliberate decision. His affidavit evidence did not satisfy the Court that it was otherwise. Mr. Tran received a fair trial and the appeal was dismissed.
• 2004 BCCA 553 R. v. Angers
  Appeal from an order of the BCSC designating the appellant to be a dangerous offender, on the ground that the sentencing judge failed to consider the appellant’s treatability and controllability in the community, and hence the possibility that the appellant should have been declared a long term offender.
  Appeal dismissed. The judge’s reasons demonstrated that he did not err as alleged.
• 2004 BCCA 555 R. v. Turmel
  Appellant was convicted of sexual assault of a 12-year-old girl upon finding by a trial judge that she believed the testimony of complainant and "thus" found appellant guilty. Appeal allowed, as trial judge had erred in equating credibility finding with proof beyond a reasonable doubt. New trial ordered.
• 2004 BCCA 558 R. v. Edwards
  Appeal from a conviction for second degree murder on the ground that the trial judge erred in admitting an inculpatory statement of the appellant as part of the defence of a co-accused, after the appellant had testified in his own defence and given a version of events inconsistent with the statement. The witness to whom the statement was made only came forward after the Crown‘s case was closed and the appellant had testified. Held, appeal dismissed. The statement was admissible for all purposes as an exception to the hearsay rule as part of the defence of the co-accused.
• 2004 BCCA 562 R. v. Longul
  The appellant was sentenced to nine months imprisonment for impaired driving. He had a lengthy criminal record as well as a number of Motor Vehicle Act violations. The criminal record included four drinking and driving offences.
  The appellant's sentence appeal is dismissed. The sentencing judge made no error in principle and the sentence is not unfit.
• 2004 BCCA 566 R. v. Williams
  Application for an order to review a decision refusing the applicant bail pending trial for second degree murder. Held: order granted. Through alleging errors and indicating his intention to adduce fresh evidence on appeal, the applicant met the low threshold of showing “any reasonable prospect of success on a bail review hearing".
• 2004 BCCA 567 R. v. Fleury
  Appeal of a one-year global sentence for a number of offences, including drinking and driving. Appeal Dismissed.
• 2004 BCCA 568 R. v. Kapp
  Application for leave to appeal the disposition of a summary conviction appeal. The applicants were all charged with a Fisheries Act offence. At trial in Provincial Court a judicial stay was entered. Convictions were entered after the summary conviction appeal in Supreme Court. The applicants sought leave to appeal on nine different grounds. The respondent Crown did not oppose leave on grounds 1,2,5,6, and 7. The Crown did oppose leave on grounds 3 and 4 because they are covered in the court’s decision in R. v. Huovinen 2000 BCCA 427. Because of Huovinen, the applicants would need to be successful in applying for a 5 member panel of the court in order to have any chance of success on those grounds. Ground 8 (Canadian Bill of Rights) was opposed on the grounds that it was not argued at trial or on summary conviction appeal. Ground 9 (sentencing) was opposed on the ground that it was not a matter of general importance.
  Held: Leave to appeal is granted on seven of the nine grounds. Leave is not granted on grounds 8 and 9. Leave is granted on grounds 3 and 4 without expressing any opinion on their merits. The applicants will have to apply for a 5 member panel if they are to have any chance of success on those grounds.
• 2004 BCCA 569 R. v. Newhouse
  The Court upheld a sentence of 3 years for each of his convictions for “over .08” to be served consecutively. Protection of the public was the primary goal of sentencing in this case. These were the accused’s 18th and 19th conviction for alcohol-related driving offence. He had committed 34 other offences during the last 40 years.
• 2004 BCCA 571 R. v. Lam
  Application for directions regarding an application for an extension of time to commence an appeal from conviction after a notice of application for leave to appeal a sentence has been filed.
• 2004 BCCA 572 R. v. Motevaselan
• 2004 BCCA 579 R. v. Grinshpun
  The appellant's appeal from the refusal of a Supreme Court justice to mandamus a Provincial Court judge to issue process on a private information was dismissed.
• 2004 BCCA 580 R. v. Reid
  In the first phase of trial the trial judge held that Mr. Reid sold sablefish (Alaska black cod) in 1997 contrary to the provisions of the Fisheries Act. However, Mr. Reid’s “aboriginal” defence was scheduled to be heard at a second phase of the trial. Due to systemic problems and defence delays, and, in spite of trial dates being set, the second phase had still not been heard when the trial judge on 11 September 2002 ordered a judicial stay of the charges on the basis of prejudicial delay. The defence did not contend that the first three and one half years following the laying of the information violated the rights of the accused. The delay that was submitted to be relevant was the one year following the issuance of a disclosure order. The Crown supplied over 8,000 pages of material but did not disclose documents alleged to be protected by solicitor-client privilege. The trial judge refused a request by the Crown to vary the order and held that he had to assume that his order was correct and that the delay in complying formed a foundation for a stay of proceedings.
  On appeal, a judge of the Supreme Court found the disclosure order as to solicitor-client documents to have been improper and he vacated that order. As the order for a stay was based upon the disclosure order, it likewise had to be vacated.
  Mr. Reid sought leave to appeal, arguing the importance of issues such as delay, flaunting court orders and disclosure.
  Held: The Crown took immediate steps upon the disclosure order being entered to have it varied and this could not be looked upon as “flouting” the order. The trial judge failed to follow procedures laid down by the Supreme Court of Canada in Leipert and ignored the request for a “Cresswell order” (R. v. Cresswell) in coming to a decision as to the compellability of privileged documents. There was no reasonable prospect of success in an appeal and the application for leave was dismissed.
• 2004 BCCA 581 R. v. Potter
  Appeal of 15 month sentence assault causing bodily harm of an infant dismissed.
• 2004 BCCA 583 R. v. Dowding
  Appellant who had been convicted of threatening and harassing his female companion argued that error had occurred in trial when trial judge permitted Crown to adduce evidence of discussions by companion about appellant with doctor and transition house worker. Contents of these discussions were not before jury. Appellant also alleged error in address of Crown counsel suggesting discussions supportive of credibility of complainant at trial and in failure of judge to give limiting instruction to jury on use of such evidence.
  Held: No error in admission of evidence but address to jury by Crown went beyond appropriate bounds and judge should have corrected this by a limiting charge on use of evidence. R. v. Ay (1994), 93 C.C.C. (3d) 456, referred to. In view of this error which had capacity to render trial unfair, new trial ordered.
• 2004 BCCA 587 R. v. Braut
  Application for leave to appeal dismissed.
• 2004 BCCA 589 R. v. Dubois
  The court dismissed the appeal from conviction for possession of cocaine. The appellant claimed that a dog search breached his right to be free from unreasonable search and seizure. The issue was whether the police officers had reasonable and probable cause to arrest the appellant when the dog search began.
• 2004 BCCA 591 R. v. Anderson
  Sentence of 18 months for dangerous operation of a motor vehicle sustained.
• 2004 BCCA 592 R. v. Dvorak
  Appeal from conviction on the ground that the judge erred in instructions given to the jury with respect to the testimony of the only defence witness whose evidence from a previous trial was read in. Appeal dismissed.
• 2004 BCCA 593 R. v. Goosehead
  Leave granted to appeal sentence of 81/2 years for robbery. Appeal dismissed.
• 2004 BCCA 594 R. v. Cerra
  Appeal from a determination of 20 year ineligibility for parole on a second degree murder conviction. The jury made no recommendation.
  Appellant alleged error in (1) ignoring the jury's decision not to recommend and
  (2) exceeding the range in all the circumstances.
  Appeal dismissed. No error found on either ground. The significance of no recommendation discussed. Ryan J.A. in separate reasons expressed the view that it carries no significance. The majority identified two broad ranges: 12 to 15 years and 15 to 20 years, distinguished by degrees of moral culpability and dangerousness. Ryan J.A. would put the upper end at 25 years as the Code provides.
• 2004 BCCA 595 R. v. Palosaari
  The trial judge conducted a cross-examination of a crown witness which, to a reasonable observer would give the impression that she had entered the arena in favour of the prosecution. This constituted a miscarriage of justice and necessitated a new trial.
• 2004 BCCA 596 R. v. J.S.M.
  Young offender seeks release pending determination of his appeal from conviction and sentence. Appellant convicted in the Youth Justice Court of aggravated assault, assault causing bodily harm, and possession of a weapon for a purpose dangerous to the public peace. Crown opposes release on the grounds of public interest. Held: Application allowed. Appeal against conviction and sentence are not frivolous and appellant may be eligible for a community sentence. The appellant has no criminal record and is not a flight risk. R. v. Nguyen (1997), 119 C.C.C. (3d) 269, referred to.
• 2004 BCCA 598 R. v. Mishra
  The appellant argued that the trial judge erred in admitting a statement made by him to police officers following his arrest and before he had the opportunity to exercise his right to counsel. Held: Appeal dismissed. The "trick" engaged in by the police officer did not amount to elicitation within the meaning of the relevant authorities, including R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.) and R. v. Broyles (1991), 68 C.C.C. (3d) 308 (S.C.C.).
• 2004 BCCA 602 R. v. Wucherer
  Appellant applied for release pending appeal from a conviction for manslaughter. The Crown opposed the release on the grounds that he had a criminal record and it would be against the public interest to grant release.
  Held: The appellant is released on conditions on the grounds that he is steadily employed, will live with his parents, and will report to a bail supervisor.
• 2004 BCCA 604 R. v. Lemay
  Appeal from conviction for fraud-related charges arising from a ruling that copies of cheques made from microfiche for a bank were admissible under s. 29 and s. 31 of the Canada Evidence Act. Dismissed. The prints were not admissible under either section of the Act but were admissible on the principled approach to the admission of hearsay evidence.
• 2004 BCCA 607 R. v. Willier
  On a sentence appeal, an application was made for legal assistance under s. 684 of the Criminal Code. The applicant is financially unable to pay for legal counsel and his application for legal aid has been turned down. There are arguable grounds of appeal that would require some research to develop and skill to present. While the applicant is not without ability, it is unrealistic to expect that he can act on his own behalf on his appeal. Order granted.
• 2004 BCCA 616 R. v. A.D.H.
  Crown appeal from sentence. YCJA appears to have a gap in that in certain circumstances a youth who escapes cannot be sentenced to a consecutive sentence for the escape. Court of Appeal finding an anomaly in the statute but holding that if a remedy is required, it must be done by Legislature as it would be an improper intervention by Court to construe legislation as argued by Crown. Appeal dismissed.
• 2004 BCCA 617 R. v. Ramalho
  The appeal is from a sentence of two years less ten days which, after giving double credit for time in custody, is equivalent to 38 months. The issue is whether a conditional sentence, as proposed by the appellant, should have been imposed. In the unusual circumstances arising from the appellant’s particular problems caused by fetal alcohol spectrum disorder and the willingness of her adoptive parents to supervise her, it was error to refuse the conditional sentence. Appeal allowed, Ryan J.A. dissenting.
• 2004 BCCA 624 R. v. Elliott
  Appeal from a Conditional Sentence of 16 months for trafficking two lumps of crack cocaine, in exchange for $40.00.
  Appeal allowed. Given the appellant’s life style a conditional sentence was not appropriate. It was a virtual certainty the appellant would be unable to comply with it conditions.
  A fit sentence of 10 months in custody was substituted.
• 2004 BCCA 628 R. v. Morgan
  Appeal against a sentence of 5 years imprisonment, reduced to 40 months and 15 days for time served, on one count of sexual assault.
  Appeal dismissed. The sentence was fit.
• 2004 BCCA 629 R. v. A.J.N.
  Appeal from convictions for dangerous driving causing death.
  Appeal dismissed. No error of fact or law was shown in the reasons of the trial judge.
• 2004 BCCA 631 R. v. Farrell
  Appeal from a custodial sentence of 60 days intermittent, to be served on weekends, for one count of breaking and entering. Appeal dismissed. Sentencing judge properly refused a conditional sentence. The sentence imposed was fit.
• 2004 BCCA 633 R. v. Titmus
  Appeal of convictions on two counts sexual assault contrary to s. 271 of the Criminal Code, one count sexual touching contrary to s. 153(1)(a), and one count commission of an indecent act (masturbation) contrary to s. 173(1)(b) in relation to two different complainants. Appellant submitted the trial judge erred in admitting similar fact evidence and erred by rendering unreasonable verdicts.
  HELD: The similar fact evidence was properly admitted. The trial judge exercised the high degree of care called for in assessing the connecting factors in the evidence, and appropriately considered the potential for tainting, the level of detail, and the potential weaknesses of the evidence.
  HELD: The verdict could not be said to be unreasonable. The trial judge correctly instructed herself on the law; she applied that law; she analyzed the evidence and the witness’ credibility; and she explained why she accepted some but not all of the evidence. Applying the test for an unreasonable verdict laid down in R. v. Biniaris (2000), 143 C.C.C. (3d) 1 (S.C.C.), the verdicts cannot be said to be unreasonable.
• 2004 BCCA 635 R. v. Kim
  On his appeal from conviction for sexual assault, the appellant argued that the trial judge had misapprehended evidence material to her verdict and had failed to follow the principles underpinning the instruction in R. v. W.(D.). The appeal was allowed and a new trial ordered, the majority holding that the trial judge’s misapprehension of the evidence resulted in an unfair trial.
• 2004 BCCA 638 R. v. Kennedy
  Appellant convicted at trial before Provincial Court judge of filing false returns showing "nil" income when he was aware of having taxable income. Appellant asserted that he did this because he believed Income Tax Act unconstitutional. Trial judge acquitted appellant of income tax evasion because he could not find beyond a reasonable doubt that mens rea proved on this offence. Appellant and Crown filed summary conviction appeals. Summary Conviction Appeal Court judge dismissing both appeals, finding case against appellant concerning false returns amply proven. He dismissed Crown appeal on basis that trial judge had not committed a palpable and overriding error nor was trial judge clearly wrong. Both parties appealed with leave to Court of Appeal. Court of Appeal dismissing appeal of appellant taxpayer but allowing appeal of Crown. Court of Appeal holding that Summary Conviction Appeal Court judge applied wrong test – he ought to have asked himself whether decision of trial judge was legally correct. Given clear findings of trial judge, those findings should inevitably lead to a finding of guilt on tax evasion count in Information and Summary Conviction Appeal Court judge should have allowed appeal. R. v. Klundert (2004), 190 O.A.C. 36 referred to and adopted.
• 2004 BCCA 639 R. v. Goertzen
  Sentences of 48 and 66 months, respectively, received by two appellants who had perpetrated two elaborate fraud schemes, were upheld.
• 2004 BCCA 641 Taylor v. Superintendent of Motor Vehicles
  Adjudicator reviewing notice of driving prohibition had evidence that police officer read breath demand from her card, but adjudicator did not have direct evidence of the words used in making the demand. She concluded demand had been properly made pursuant to s. 245 of the Criminal Code and therefore upheld driving prohibition pursuant to s. 94.6 of the Motor Vehicle Act.
  Chambers judge below set aside adjudicator’s decision on the basis she was not entitled to draw the inference she had. On appeal, held, Chambers judge had erred.
  Adjudicator is held to less formal rules of evidence, makes decision on balance of probabilities, and her decision may be interfered with only if patently unreasonable. Adjudicator was entitled to infer from the evidence before her that a demand pursuant to s. 254 of the Criminal Code had been made, and her decision was not patently unreasonable.
• 2004 BCCA 643 R. v. Shoker
  Appeal from sentence of 12 months custody and two probation conditions imposed for breaking and entering a dwelling house with intent to commit sexual assault. The custodial sentence is upheld. The condition requiring the appellant to attend treatment is deleted as it was not authorized in the absence of the appellant’s consent. The condition requiring the appellant to submit to a urinalysis, blood test or breathalyzer test upon demand/request of a Peace Officer or Probation Officer is deleted as it violates s. 8 of the Charter of Rights and Freedoms. Hall J.A. dissenting in part.
• 2004 BCCA 646 R. v. Boyd
  After reviewing trial judge’s reasons for conviction of 2nd degree murder, this appeal was dismissed for want of prosecution.
• 2004 BCCA 654 R. v. Fischer
  Court refusing order for return