B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

CRIMINAL 2008

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• 2008 BCCA 7 R. v. Wu
  Police answered a telephone call from an anonymous caller who reported an injured party at a residential address in Burnaby. The appellant was the owner of this house. The police attended at a pay phone location where it was believed the call originated but did not find the caller and could not develop any information as to the bona fides of the call. A short time later two officers attended at the house. They could not get any answer at the front door of the premises but made observations about the property indicative of a possible marijuana grow operation. They heard what they took to be someone exiting from the rear of the premises and when they went to the rear yard of the house they found the appellant. His English was not perfect but they were able to communicate with him and he at one point said that persons inside the home were frightened. They asked him to persuade an occupant (his girlfriend) to open the rear door and they then entered the premises. The appellant had by then been handcuffed. The officers found two women and a child (the son of the appellant and his girlfriend) on the premises but a cursory search upstairs and downstairs at the house disclosed no person in distress.
  A marijuana grow operation of significant dimensions appeared to be in operation in the basement. The appellant said the basement was rented out and that he had installed a padlock found on the interior entrance to the basement. The outside entrance to the basement part of the house was barricaded. The officers obtained a search warrant and their investigation pursuant to this warrant revealed a sophisticated grow operation in the basement. At trial it was argued that the police had wrongfully entered the house without a warrant initially and, therefore, the evidence of the operation found in the basement should be excluded. The trial judge found the entry justifiable on the basis of the information initially in the possession of the officers who attended. She held the evidence admissible and found the appellant guilty of production and possession of marijuana for the purpose of trafficking. The Court of Appeal upheld the convictions. R. v. Godoy (1998), [1999] 1 S.C.R. 311, 131 C.C.C. (3d) 129, applied.
• 2008 BCCA 8 R. v. Leila
  Following his guilty plea to a charge under s. 355(a) of the Criminal Code, the appellant was sentenced to two years imprisonment in addition to the time he had spent in custody awaiting trial. Leave to appeal sentence was sought on the ground that there was a serious and unintended collateral consequence to the sentence imposed by the trial judge in that a custodial sentence of two years or more would result in the automatic termination of the appellant’s right to appeal a deportation order to the Immigration Appeal Division. Appeal allowed.
• 2008 BCCA 9 R. v. Farewell
  The appellant appealed his conviction for possessing and producing marijuana in an amount exceeding three kilograms for the purpose of trafficking. The appellant argued that: (1) the trial judge erred in admitting the evidence obtained from a warrantless and unreasonable search, and in so doing failed to properly apply established legal principles and made unreasonable factual findings; (2) the trial judge erred in refusing to stay the proceedings as a result of the violation of the appellant’s s. 11(b) Charter right to trial within a reasonable time; and (3) the trial judge reached conclusions of fact without any evidentiary basis and took judicial notice of facts which were controversial and in issue.
  HELD: Appeal dismissed. While the search was a violation of the appellant’s s. 8 Charter rights, Thackray J.A. held that the trial judge’s decision to nevertheless admit the evidence under s. 24(2) was reasonable. The evidence obtained was non-conscriptive, the Charter breach was not serious enough to warrant exclusion, and exclusion would bring the administration of justice into greater disrepute than inclusion. Regarding the s. 11(b) Charter application, The Court held that the length of systemic delay was not sufficient to ground a stay of proceedings and the appellant could not support his claim that the delay had caused him significant prejudice.
• 2008 BCCA 11 R. v. Fitzgerald
  Effective eight-year sentence on three counts of arson and one break and enter upheld in case of offender with long record and addicted to cocaine.
• 2008 BCCA 16 R. v. Sharif
• 2008 BCCA 17 R. v. Schwartz
• 2008 BCCA 20 R. v. L'Espinay
  In advance of hearing a conviction appeal on its merits, the Court refused to grant the privilege of audience to a non-lawyer who wished to act on the appellant’s behalf; it would have been inconsistent with a full, fair and effective representation of the appellant. The Court determined that an accused is not entitled to a written transcript of the evidence at trial under any of ss. 530.1, 540(6) or 603 of the Criminal Code, and this does not infringe an accused’s right under either s.11(d) or s.15 of the Charter. An accused is not entitled to an order directing the trial court or the Crown to make a written transcript of the trial available for the purpose of appeal.
• 2008 BCCA 22 R. v. Gunning
  The appellant was convicted of second degree murder. This Court dismissed his appeal but the Supreme Court of Canada ordered a new trial. At the new trial, with the Crown’s consent, the appellant pleaded guilty to manslaughter. The trial judge concluded that 8 years would be a fit sentence. The appellant had served 2½ years of his sentence for murder. The trial judge rejected a submission that he should be given 2½ or 3-for-1 credit for time served because of the long delay between the offence and the imposition of sentence and the resultant adverse effects of his stigmatization as a murderer and of the restrictions on his liberty while he was on bail pending appeal and pending the new trial. Rather, the trial judge gave one-for-one credit on the basis that he had had the benefits of programs while serving the original life sentence and sentenced him to 5 ½ years. On this sentence appeal, the sentence of 5 ½ years was set aside and a sentence of 3 years was substituted. The trial judge erred in overlooking parole eligibility as a relevant factor in the consideration of credit for time served in custody. The time served on the murder sentence did not count for parole eligibility and, as a result, the effect of the 5 ½ year sentence was that the appellant, who was described as a model prisoner, would not achieve parole eligibility until after serving several months longer than he would have if he had been convicted and sentenced for manslaughter at the first trial. The Crown conceded that the sentence should be adjusted to mitigate this result. It was impossible to superpose a fit sentence on an 8-year sentence notionally imposed after the first trial such that parole eligibility and statutory release would coincide perfectly. To do so would require a short provincial sentence with no subsequent parole supervision. A sentence of three years was not demonstrably unfit, would carry with it parole supervision, and would strike a balance in these unusual circumstances between the appellant’s interest in obtaining early parole and society’s interests in his serving a fit and just sentence and in his rehabilitation and reintegration into society as a law-abiding citizen.
• 2008 BCCA 25 Italy v. Seifert
  Extradition: Application for interim release pending a decision on an application for leave to appeal to the Supreme Court of Canada dismissed.
• 2008 BCCA 28 R. v. Newson
  Appeal from sentence of six years imprisonment for conspiracy to traffic in cocaine. Held: appeal dismissed. The offence was part of a sophisticated, extensive and long-lasting enterprise, involved the widespread trafficking of highly addictive drugs, and demonstrated a high degree of criminal organization. The sentence of six years is not demonstrably unfit.
• 2008 BCCA 30 R. v. Lindsay
  Application to discharge an order of a chambers judge refusing leave to appeal pursuant to s. 839(1) of the Criminal Code from the dismissal of a summary conviction appeal dismissed. The chambers judge did not err in concluding that there was no real prospect of success on the question whether certain sections of the Court Rules Act, R.S.B.C. 1996, c. 80 and of the Official Reporters Regulation, B.C. Reg. 224/84, which require an appellant to purchase transcripts from an authorized reporter in order to process a summary conviction appeal, amount to the “selling of justice” contrary to Magna Carta.
• 2008 BCCA 34 R. v. Brignall
  Appeal by an offender from a ten-year driving prohibition imposed following his conviction on a charge of dangerous operation of a motor vehicle. Held: Appeal allowed; prohibition reduced to three years. The ten-year prohibition was illegal, as it exceeded the three-year maximum permitted under s. 259(2)(c) of the Criminal Code. The Crown’s argument that the sentencing judge intended to impose the prohibition under the Motor Vehicle Act was not supported by the record.
• 2008 BCCA 36 R. v. Pieszkor
  Mr. Pieszkor applies for leave to appeal from the order of the British Columbia Supreme Court dismissing his summary conviction appeal from the judgment in British Columbia Provincial Court holding him guilty of criminal harassment contrary to s. 264 of the Criminal Code.
  HELD: The application for leave to appeal is refused, and the conviction affirmed. Many of the grounds asserted by Mr. Pieszkor before the Court of Appeal were not raised on the summary conviction appeal. Those grounds cannot form the basis of an appeal to this Court, because not having been asked to address them, the summary conviction appeal judge could not have made any error, whether of law or otherwise, in respect of them. Crown counsel was able to identify two possible grounds of appeal to this Court from the judgment in the court below. Neither of those matters raises an issue of law alone. Nor is either question one of importance, since they are specific to the circumstances of this case, and do not raise any unsettled question of law requiring further consideration or refinement. Finally, if an appeal on either of these issues were permitted to proceed, it would, in the view of the Chambers judge, be bound to fail.
• 2008 BCCA 37 R. v. Carry
  Sentencing: Application for leave to appeal a sentence of five years imprisonment imposed for 10 convictions which included convictions for criminal negligence causing bodily harm, fleeing from police, and driving while disqualified where the applicant had a horrendous criminal record including a conviction for criminal negligence causing death for which he had been sentenced to five years in prison. The applicant was credited with two years for pre-sentence time in custody. Application allowed; appeal dismissed.
• 2008 BCCA 39 R. v. Bodnarchuk
  Sentence appeal dismissed. The appellant was convicted of 14 counts of theft for being in receipt of money that he fraudulently and contrary to a direction employed for another purpose, contrary to s. 332 of the Criminal Code. He was sentenced to 12 to 18 months in jail, and restitution orders were made in the total amount of $65,000. He claimed the trial judge erred in failing to impose conditional sentences, and in failing to reduce the sentences to take into account the restitution orders. Held: The trial judge took the restitution orders into account in reducing the length of the jail sentences. It was not an error of principle not to expressly consider the restitution orders in determining whether conditional sentences were appropriate. The aggravating factors so overwhelmed the mitigating factors that they mandated imprisonment.
• 2008 BCCA 41 R. v. Sagoo
  Global sentence of eight months for four offences allowed and a sentence of six months imposed, in light of confusion at the sentencing hearing as to maximum allowable sentence for three of the four offences.
• 2008 BCCA 44 R. v. Charlie
  Appeal by the Crown from a conditional sentence imposed following a guilty plea to a charge of possession of cocaine for the purpose of trafficking arising out of a dial-a-dope operation. At the time of the offence the offender was serving a conditional sentence for similar offences. Held: Appeal dismissed. The sentencing judge did not err in considering the fact that the offender’s first conditional sentence had not been terminated. The issue of whether undue weight had been given to the offender’s aboriginal background did not have to be addressed. In the more than two years since his apprehension the offender has been subject to strict conditions, and has taken positive steps with respect to rehabilitation. It would be unjust, and counterproductive, to interfere with his successful efforts by now sentencing him to a period of incarceration.
• 2008 BCCA 47 R. v. MacArthur
  Appeal from sentence of four months in respect of convictions for criminal negligence, assault and uttering a threat, all involving the offender’s ex-wife.
  Held: Appeal dismissed. The sentencing judge did not err in refusing to make a conditional sentence order on the basis that it was not consistent with the sentencing purpose of rehabilitation. The length of the sentence was not demonstrably unfit.
• 2008 BCCA 48 R. v. Baddock
  Conviction appeal dismissed. The appellant was convicted of one count of possession of cocaine for the purpose of trafficking. The appellant claimed the trial judge erred in failing to exclude the evidence found in his vehicle on the grounds that his rights under ss. 8 and 9 of the Charter of Rights and Freedoms were violated when his vehicle was stopped and searched, and that the verdict was unreasonable and unsupported by the evidence. Held: The trial judge did not err in failing to address the reliability of the evidence of the police officer who testified on a voir dire concerning the detention and arrest of the appellant. The credibility and reliability of the police officer were not in dispute, and the trial judge was entitled to accept his evidence. The trial judge made no legal error in deciding that the police officer was authorized to detain, and had reasonable and probable grounds to subsequently arrest the appellant, and to search his vehicle pursuant to the arrest. The conclusion that the appellant was intending to traffic in the drugs found in his vehicle was supported by the evidence.
• 2008 BCCA 54 R. v. Abel & Corbett
  A. and C. were convicted of offences arising out of their apprehension of H. A. believed H. had recently stolen his rifle; however, he had no information as to where the rifle was located. A. and C. found H. at a townhouse. H. was subdued following an altercation. He then took A. and C to where the rifle was hidden some distance away. At trial, A. and C. submitted that the jury should be instructed to consider whether their actions were justified as a citizen’s arrest under s. 494(1)(a) of the Criminal Code on the basis that, by reason of the concept of constructive possession, H. had been “found committing” the offence of possession of stolen property at the townhouse. The trial judge declined to give this charge. On appeal, A. and C. argued that the judge erred in this regard. In addition, they submitted that the jury should have been instructed to consider whether their actions were justified on the basis that they were arresting H. for assaulting A. Held: Appeal dismissed. (a) An examination of the common law roots and historical usage of the expression “finds committing” reveals that it connotes a situation in which the arresting party comes upon someone in the very act of committing an offence. This interpretation is also supported by the French version of the Code and other federal statutes providing for arrest on the basis of “finds committing.” As A. and C. did not come upon H. in possession of the rifle, the requirements for a citizen’s arrest could not be met. (b) There was nothing to support the contention that H. was arrested for assault and there was, therefore, no reason for the trial judge to charge the jury in this regard.
• 2008 BCCA 55 United States of America v. Walker
  Extradition for murder and assault with a weapon. Prosecution case depends on single eyewitness identification. The Record of the Case fails to provide sufficient information concerning the identification for proper analysis whether the case is sufficient. The appellant is discharged. The United States of America, if it chooses, can present another request on better evidence: s. 4, Extradition Act, S.C. 1999, c. 18.
• 2008 BCCA 56 R. v. Turcotte
  Conviction appeal on three counts of second degree murder dismissed. The trial judge gave adequate reasons for his decision. He reviewed the evidence, made specific finds of fact, and drew inferences from those facts. He addressed the defence submissions with respect to alleged deficiencies in the Crown’s case. Although the evidence was circumstantial, taken as a whole it is capable of supporting the conclusion reached by the trial judge. Accordingly, the verdict is not unreasonable.
• 2008 BCCA 58 R. v. Hopkins
  The Court dismissed an appeal from a 2-year sentence for having care and control of a motor vehicle with a blood alcohol level exceeding .08. Offender’s long record and pre-sentence report precluded varying the 10 year driving prohibition.
• 2008 BCCA 61 R. v. Pech
  Mr. Pech appeals from the Provincial Court of British Columbia from the judgment of the Honourable Judge Jardine pronounced 1 December 2005 at Surrey, British Columbia. The central issue on this appeal is whether the learned trial judge erred in the exercise of his discretion under s. 24(2) of the Charter of Rights and Freedoms, in ruling admissible evidence obtained by the police on a search of residential premises. The police search was conducted in execution of a telewarrant obtained pursuant to s. 487.1(1) of the Criminal Code. The telewarrant was found to be invalid, and the search warrantless.
  HELD: The appeal is dismissed. The decision to admit the evidence was reasonable and reflects a proper balancing of the factors relevant to the s. 24(2) analysis. The learned trial judge did not err in assessing the seriousness of the Charter breach. He misapprehended neither the evidence nor the law. The judge did not err in his application of s. 489 of the Criminal Code. The reference by the trial judge to s. 489 was in the context of his considering the seriousness of the breach of s. 8 of the Charter. He was not, as counsel for the appellant suggests, treating s. 489 as a source of independent authority for the seizures that were made. Lastly, this was not an unreasonable verdict unsupported by the evidence.
• 2008 BCCA 63 R. v. Khan
  Appeal from conviction dismissed. The appellant was not denied a fair trial. Crown counsel’s cross-examination of the defence witnesses did not exceed permissible limits. The trial judge properly analyzed the evidence and did not fail to properly apply the W(D) analysis.
• 2008 BCCA 64 R. v. Wong & Poon
  The appellants appealed sentences imposed following their conviction on charges arising out of a kidnapping for ransom. They were two of several persons who agreed to kidnap someone to make money. The victim was held blindfolded and bound for a week before being released. While being held he was threatened and assaulted. The appellants were 24 at the time of sentencing; neither had a criminal record. P. was sentenced to 12 years; W. to 14 years. The additional two years was imposed on W. because he had suggest the victim’s name to the group. Held: P.’s appeal was dismissed; W.’s appeal was allowed, and his sentenced reduced to 12 years.
  In cases of this nature denunciation and deterrence are the principal factors, and sentences of ten years or more are appropriate. That the appellants received substantially longer sentences than some of their co-accused who had earlier pleaded guilty did not violate the principle of parity as those sentences fall outside the acceptable range. The imposition of an excessively lenient sentence on a co-accused does not require another court to also impose an inadequate sentence. However, given the appellants’ similar backgrounds and the fact that they each played an integral role in the kidnapping scheme, there was no basis on which to draw a distinction between them. As they were equally culpable their sentences should be the same.
• 2008 BCCA 70 R. v. Stromotich
• 2008 BCCA 76 R. v. Orr
  Court sitting as a bench of five considered the issue of the appropriate credit to be afforded an offender when, after a period of pre-sentence custody, the offender is sentenced to a term of incarceration. The Court held that in the two appeals under consideration, sentencing judges had erred in failing to give any or sufficient credit for such custody because of perceived dangerous conduct of appellants and breach by them of previous bail orders (which breaches resulted in their pre-sentence incarceration on remand). Observations by Court that 2 for 1 credit for pre-sentence custody will usually be appropriate, subject to a reduction in some cases to a lesser ratio if the accused person has been held in custody in an institution where programs are available. Usually parole considerations will not be a relevant consideration for a sentencing court. R. v. Mills, 1999 BCCA 159, and R. v. Wust, [2000] 1 S.C.R. 455, followed and discussed. R v. Bernier, 2003 BCCA 134 ref'd to. R. v. Hawkins, 2007 BCCA 487, not followed.
  The sentence appeals of the appellants were allowed and the respective sentences of incarceration were altered to afford credit of 2 for 1 in respect of pre-sentence custody.
• 2008 BCCA 78 R. v. Aburto
  The appellant appealed his conviction on one count of manslaughter and one count of aggravated assault on the basis that the trial judge had misapprehended the evidence of the main Crown witness with respect to identity and had formed a mistaken view of that witness’s credibility as a result. The appellant alleged that police had failed to use a proper photographic lineup and had not followed existing guidelines related to the collection of identification evidence.
  The appeal was dismissed. The appellant’s submissions actually focused on the reliability of the eyewitness evidence and the weight to be given to that evidence, which were questions for the trial judge to determine. There was no basis for interference with the trial judge’s assessment of reliability and weight. The trial judge’s positive comments about the witness’s credibility and demeanour did not amount to a misapprehension of evidence or an unreasonable finding of fact.
• 2008 BCCA 79 U.S.A. v. Graziani
  The appellant appealed from an order for committal on the basis of jurisdictional questions that allegedly arise if the appellant was not found to be in constructive possession of narcotics in the requesting state. The appellant also applied for judicial review of an order for surrender on the basis that the Minister of Justice erred in ordering surrender without seeking assurances from the requesting state that the appellant would have access to physiotherapy to rehabilitate a shoulder injury.
  Both the appeal from committal and the application for judicial review were dismissed. The appeal from committal lacked the requisite factual foundation, as the extradition judge had found that there was some evidence from which a reasonable jury properly instructed could find that the appellant had constructive possession of narcotics in the requesting state. The application for judicial review was dismissed because the Minister’s order for surrender was entitled to substantial deference, and there was nothing plainly unreasonable about his conclusion that surrendering the appellant to the requesting state would not shock the conscience of the community.
• 2008 BCCA 89 R. v. Dreyer
  An officer deliberately went beyond the authority of a search for liquor under the Liquor Control and Licensing Act, conducted a general search of the car in which the appellant was a passenger, and found cocaine for the purposes of trafficking. The appellant was convicted on a finding that the search was reasonable.
  Appeal allowed: the search was unreasonable. The evidence should have been excluded under section 24(2) of the Charter.
• 2008 BCCA 94 R. v. Ford
  The appellant appealed his conviction on drug-related and weapons charges. During the investigation the police obtained two general warrants under s. 487.01 of the Criminal Code, authorizing them to go onto the appellant’s rural property to “verify” the presence on drugs. While on the property the police discovered evidence of a marihuana grow operation. This information was later used to obtain a search warrant. The appellant challenged the general warrants on the basis that they recited that the issuing Provincial Court judges were satisfied that there were reasonable grounds to believe that information concerning the offences under investigation “could be found.” It was argued that this is a lower standard than the “will be obtained” requirement set out in s. 487.01(1)(a). In addition, it was argued that since, from the beginning, the police had reasonable grounds with which to obtain a search warrant, s. 487.01(1)(c) precluded the issuance of the general warrants. HELD: Appeal dismissed. (1) The words “could” and “will” can both be used to express a probability. Having regard to the wording of the general warrants as a whole and the presumption that judges know the law, it was clear the issuing judges were satisfied that there was a credibly-based probability that the execution of the general warrants would assist in advancing the investigation. (2) There is nothing in the language of s. 487.01(c) that precludes the issuance of a general warrant solely because the police have sufficient information to obtain a search warrant. Here, there was no provision in any federal statute under which the police could obtain judicial approval for a covert entry on to private property. Accordingly, a general warrant was available.
• 2008 BCCA 95 R. v. Purdy
  Appeal from a conviction for second degree murder. The victim was the wife of the appellant, who was separated from him and in a new relationship with P. at the time of the murder. The victim was stabbed to death as she was walking on her way to work. The case against the appellant was circumstantial and included blood smears identified through DNA as the victim’s blood on the dash of the vehicle driven by the appellant at the time of the murder. The victim had never been in this vehicle, which was owned by the appellant’s girlfriend. The appellant contended that the trial judge erred in admitting the evidence of S, the nine year old daughter of the appellant and the victim, on the ground that the police had compromised her evidence by persuading her that the appellant had killed her mother and using her to make a videotaped plea to him to confess. The police later showed S. a photo of a knife sheath found at the scene of the murder, which prompted her to recall seeing a similar sheath, with a knife in it, in the appellant’s residence some months before the murder.
  The appellant contended, in the alternative, if S.’s evidence was admissible the trial judge failed to adequately warn the jury as to the frailties of her evidence. The appellant also submitted that the judge’s charge unfairly favoured the Crown, particularly with respect to his summaries of the evidence of S. and P. The defence theory was that P. may have been the victim’s assailant and the police failed to investigate him properly, having immediately concluded that the appellant had killed his wife.
  Held, appeal dismissed. The trial judge correctly applied the standard of testimonial competence outlined in R. v. Marquard, [1993] 4 S.C.R. 223 and there was no reviewable error in his decision to admit S.’s evidence. The judge’s charge adequately addressed the frailties of S.’s evidence and he did not misstate the evidence of S. or P. The charge met the standard of fairness outlined in R. v. Richards (2004), 70 O.R. (3d) 737 (C.A.) at para 739.
  An application by the appellant to admit fresh evidence on the issue of continuity of exhibits was refused. The evidence was not material to the continuity and integrity of the trial exhibits.
• 2008 BCCA 99 R. v. Kostantin
  Crown sentence appeal. 30-day sentence upheld for marijuana seed growing offences but one-year probation order added.
• 2008 BCCA 102 R. v. Dove
  The appellant appealed his first degree murder conviction on the basis that the trial judge had (1) erred in permitting certain testimony regarding interrogation techniques used in eliciting confessions to be presented to the jury and (2) erred in failing to charge the jury that they were to ignore inadmissible opinion evidence regarding the tendency of suspects to minimize their own behaviour when confessing to crimes.
  The appeal was dismissed. The majority held that the testimony in question was not inadmissible opinion evidence, but rather an explanation of interrogation techniques that did not comment on the veracity of the confession obtained. Ryan J.A. found that the evidence should not have been admitted but would have dismissed the appeal on the basis that its admission would not have affected the result.
• 2008 BCCA 108 R. v. Schiel
  Acquittals on charges of GST fraud set aside and a new trial ordered on the grounds that the trial judge engaged in speculation, relied on irrelevancies and failed to explain the result in the face of unanswered evidence of a swindle.
• 2008 BCCA 109 R. v. Hein
  The appellant was convicted of common assault of her 14-month-old son. The summary conviction appeal judge dismissed her appeal. Leave to appeal was granted on the question of whether the evidence was reasonably capable of supporting the verdict. Appeal dismissed. The appellant fabricated at least one explanation of her son’s bruises with an intention to deceive. The trial judge was permitted to draw an adverse inference against the appellant from her exculpatory statements.
• 2008 BCCA 111 R. v. F.M.
  The Crown appealed the acquittals of two young persons of second degree murder on the ground that the trial judge erred in law when he concluded they lacked the necessary intent for murder because they were incapable of forming the intent by reason of their young age and lack of life experience. HELD: Appeal dismissed. The trial judge considered their age and lack of life experience as factors in determining whether, as a matter of fact, the youths actually had the necessary mens rea. Since a Crown appeal from acquittal lies only for an error of law, the appeals could not succeed.
• 2008 BCCA 118 R. v. Guilliland
  The Court dismissed an appeal from a seven-year global sentence for criminal negligence causing bodily harm and related offences. It was his third conviction for a grave driving offence, while on probation for one and parole from the other.
• 2008 BCCA 127 R. v. Sinclair
  The appellant appealed his conviction for manslaughter. He submitted that his post-arrest statements to the police should have been excluded by reason of violations of his rights under s. 10(b) of the Charter. The appellant did not challenge the trial judge’s rulings that these statements were voluntary, and had been obtained without violation of his rights under s. 7 of the Charter.
  After being arrested, the appellant was advised of his right to counsel and twice spoke by telephone with a lawyer of his choice. During the interview, he stated on a number of occasions that he did not want to speak to the officer and wished to speak to his lawyer again. However, the officer continued the conversation and, eventually, the appellant implicated himself in the victim’s death. HELD: Appeal dismissed. The police are not obliged to stop questioning a detainee who, having exercised his or her right to counsel, requests to speak with a lawyer again. The officer’s gradual disclosure of information regarding the strength of the case against the appellant did not amount to a change in jeopardy giving rise to a renewed right to obtain legal advice.
• 2008 BCCA 129 R. v. Moore
  Global sentence of six years (after taking into account one year already spent in custody) for various offences committed during a home invasion upheld. Sentence not unfit.
• 2008 BCCA 131 R. v. Kim
  Appeal from indefinite sentence. Dismissed as abandoned.
• 2008 BCCA 132 R. v. Lepage
  Appeals from convictions for conspiracy to import and traffic in cocaine. The Crown case depended on intercepted communications (wiretaps). Appellants argued that an authorization to intercept private communications had been granted on insufficient evidentiary grounds. From intercepts made under this authorization, information was developed that formed the basis for the authorizations that resulted in the evidence probative of the alleged conspiracy. Appellants argued that the trial judge erred in applying a wrong test for the granting of the original authorization and in ruling against cross-examination of affiant. Affiant had been cross-examined in an earlier proceeding.
  Court of Appeal finding that even if judge confused appropriate test for granting of authorization, there was a proper evidentiary basis for the grant of the authorization – R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, referred to. Judge found not to have erred in ruling against further cross-examination of affiant – R. v. Pires; R v. Lising, [2005] 3 S.C.R. 343, 2005 SCC 66, referred to.
  Court of Appeal affirming ruling of trial judge that voice identification evidence obtained by police officers during interchange with appellants in course of normal arrest procedures should be held admissible. Court of Appeal also affirming the ruling of the trial judge that certain wiretap conversations of unindicted co-conspirators and parties not charged could be admitted into evidence under co-conspirator exception to hearsay rule – R. v. Pelletier, 1999 BCCA 678, 130 B.C.A.C. 300, and R v. Simpson, 2007 ONCA 793, distinguished as being cases not involving wiretap evidence. Appeals from conviction dismissed.
• 2008 BCCA 136 R. v. Martinez-Marte
• 2008 BCCA 137 R. v. Bavarsad
• 2008 BCCA 138 United States of America v. Anekwu
  Mr. Anekwu appealed from his committal for extradition and for judicial review of the decision of the Minister ordering his surrender to the USA. The appeal turned primarily on the interpretation and application of s. 32(2) of the Extradition Act, S.C. 1999, c. 18 (dealing with the admission of evidence on an extradition hearing) in light of the provision in s. 33 of the Act for the introduction of evidence through the record of the case. The appellant alleged that the trial judge erred in admitting Canadian gathered hearsay evidence which was included in the record of the case. The trial judge admitted the evidence, relying on the decision of the Ontario Court of Appeal in United States of America v. McDowell (2004), 183 C.C.C. (3d) 149 (Ont. C.A.), leave to appeal to SCC refused. Held: Prowse J.A. (with whom Smith J.A. agreed in separate concurring reasons): Appeal allowed, committal order and surrender order set aside, and a new extradition hearing ordered pursuant to s. 54(a)(ii) of the Act. McDowell not followed. The Canadian gathered evidence is inadmissible hearsay which does not “satisfy the rules of evidence under Canadian law” within the meaning of s. 32(2) of the Act. The fact that the evidence was contained in the record of the case does not make it admissible if it is inadmissible under s. 32(2) of the Act.
  Chiasson J.A. dissenting: holding the Canadian gathered evidence admissible. Like Prowse J.A. he does not adopt the form/substance analysis of the Ontario Court of Appeal in the context of hearsay evidence. Section 33(1) of the Extradition Act requires the Record of the Case to include a summary of the evidence available to the prosecuting state. The summary includes Canadian gathered evidence. Section 32(1)(a) states the contents of the certified Record of the Case shall be admitted at an extradition hearing. Inherently, the summary is likely to be or to contain hearsay evidence. At the hearing the summarized evidence may be subject to a Charter challenge and the Canadian gathered evidence must satisfy the rules of evidence under Canadian law. It is the content of the evidence that is scrutinized. The fact that it is presented to the court in a hearsay summary as required by the legislation is not relevant. To exclude such evidence from the record because it is presented as mandated by s. 33(1), that is, in a hearsay summary, is to defeat the clear objective of the legislation by imposing a traditional analysis in unique circumstances. Contrary to the Supreme Court of Canada in Ferras, such an approach requires an extradition case to be presented in a particular technical form and does not embrace a flexible, non-technical approach.
• 2008 BCCA 140 R. v. Koop; R. v. Stoneman
  The accused pleaded guilty to two counts of robbery and each of them received a prison sentence of two years less a day. The sentencing judge held that the overriding principles of deterrence and denunciation ruled out conditional sentences. Crown counsel conceded that the sentencing judge had erred in undervaluing the steps the accused had taken to separate themselves from their past lifestyles and to integrate themselves into the community.
  Held: appeal allowed and a conditional sentences of two years less a day imposed in place of the prison sentences. The principles of deterrence and denunciation are important principles in sentencing someone who has committed a robbery but they should not be considered to the exclusion of rehabilitation. This was a case where the interests of rehabilitation outweighed the additional deterrence and denunciation accomplished by a prison sentence.
• 2008 BCCA 141 R. v. Andrew
  The accused was found guilty of manslaughter. The sentencing judge held that a sentence of three years was appropriate but, after crediting the accused in respect of his pre-trial custody, sentenced the accused to a conditional sentence of two years less a day.
  Held: appeal allowed. A conditional sentence was not available as a result of the decision in R. v. Fice, 2005 SCC 32. A sentence of three years, but not less than three years, was a fit sentence before taking into account any credits. The accused was given a prison sentence of two years, five months, after crediting his pre-trial custody and the potential that he will not be given credit for the purpose of statutory remission in respect of the portion of the conditional sentence served by him prior to the appeal.
• 2008 BCCA 143 R. v. Manuel
  The appellants, two members of the Secwepemc Nation, participated in a roadblock and were charged with intimidation. Their defence was mistake of fact, i.e., that they honestly believed they had title to the land and the right to block the road. The trial and summary conviction appeal judges rejected the defence. The appellants argued that the judges erred in failing recognize the place of the “aboriginal perspective” on land in their analyses of the defence and in characterizing the appellants’ beliefs as beliefs in “moral” and not “legal” rights. Held: appeal dismissed. The appellants’ beliefs that their people held legal title to the land were not beliefs in moral rights. Their beliefs that they had the legal right to block the road were, however, not honest. The appellants knew that the rights they claimed were uncertain and were in conflict with established common law property rights, and they were aware of the processes for reconciliation of aboriginal and common law perspectives on land ownership.
• 2008 BCCA 145 R. v. Breeden
  Application for leave to appeal convictions for trespass stemming from displaying signs containing disparaging remarks concerning some public authorities. Leave granted on proposed grounds raising issues of freedom of expression under s. 2(b) of the Charter.
• 2008 BCCA 146 R. v. Dolan
  Sentence appeals dismissed. In light of the appellant’s lengthy record a 20-month conditional sentence for property-related crimes could not be said to be excessive. The later termination of the conditional sentence was appropriate, given the appellant’s commission of a number of further crimes.
• 2008 BCCA 147 R. v. Ali
  Mr. Ali was convicted of trafficking and possession for the purpose of trafficking and was sentenced to six months incarceration. He filed a Notice of Appeal from conviction and Notice of Leave for Appeal from conviction and sentencing and sought judicial interim release pending the hearing of his appeals. The application was governed by s. 679(1)(a) and (3) of the Criminal Code. Pursuant to that section, there is no need for the applicant to obtain leave to appeal to be released pending the hearing of his sentence appeal as is required by s. 679(4). In the circumstances of this case, the Court was unable to conclude whether the conviction appeal is frivolous. In an application under s. 679(1)(a), where the Court does determine a conviction appeal is frivolous it is likely this conclusion would be a factor in considering release pursuant to a sentence appeal. Although the Court can treat the application as one under s. 679(4), in the absence of sentencing reasons the Court should not normally do so. Where the Court is unable to determine whether the conviction appeal is frivolous, when considering release on the basis of the sentence appeal the facts concerning the nature of the offence on which the applicant was convicted are relevant to the public interest consideration. Applicant released.
• 2008 BCCA 149 R. v. Johnson
  The Crown appealed the dismissal of its application to have the respondent sentenced to an indeterminate period of incarceration as a dangerous offender pursuant to s. 753(1) of the Criminal Code. The sentencing judge had found that the respondent fit both the dangerous offender criteria and the long-term offender criteria in the Criminal Code. He exercised his discretion to sentence the respondent as a long-term offender.
  The appeal was allowed. The sentencing judge erred in law in failing to consider whether there was a reasonable possibility that the risk posed by the offender could be eventually managed in the community within the parameters of a long-term offender sentence. Moreover, there was no evidence before the court that the respondent’s risk was likely to be controlled within the parameters of a long-term offender sentence. The respondent’s determinate sentence and supervision order were set aside, and he was declared a dangerous offender.
• 2008 BCCA 157 R. v. Sidhu
• 2008 BCCA 158 R. v. Sutherland
• 2008 BCCA 159 R. v. Wolsey
  Crown appeal from the acquittal of Mr. Wolsey, a pharmacist, on the charge of fraud in excess of $5,000. The charge arose from Mr. Wolsey’s use of the incorrect code to bill Pharmacare for methadone prescriptions.
  Appeal dismissed: Although the trial judge did err in the actus reus of fraud, the verdict would have necessarily been the same based on the facts as found by the trial judge; therefore, no new trial can be ordered.
  Chiasson J.A. dissented. The trial judge failed to identify the actus reus and conflated his analysis of actus reus and mens rea. It is not possible to know whether the judge asked himself the correct knowledge question (mens rea) because he did not identify what act he concluded was dishonest. The verdict in this case would not necessarily have been the same in the absence of the errors of law by the trial judge.
• 2008 BCCA 160 R. v. Otto
  Appeal dismissed from assault conviction. There was ample evidence aside from the evidence of the complainant, whose credibility was attacked, to sustain the conviction.
• 2008 BCCA 163 R. v. Eshghabadi
  Appeal in a drug importing case. Appeal allowed and a new trial ordered because of improper questionings of appellant who testified. The line of questioning ought not to have been permitted by trial judge and failure to caution jury to ignore this questioning resulted in an unfair trial.
• 2008 BCCA 168 R. v. Kokotailo
  The appellant’s appeal of his conviction of first degree murder of his wife was allowed and a new trial ordered. The appellant denied planning and premeditation and argued provocation and self defence. His credibility was a central issue. His testimony conflicted in some important respects with the testimony of his two step-daughters, who were with him in the two days preceding the killing and were eyewitnesses to the event. Prior consistent and inconsistent statements of these witnesses were led. However, the trial judge failed to instruct the jury on the permissible and impermissible uses of such statements. In the circumstances, the danger that the jury might have used the prior consistent statements to bolster the credibility of the witnesses and thus to correspondingly diminish the credibility of the appellant was such that it could not be said that a conviction of first degree murder would have been inevitable had the trial judge not so erred.
• 2008 BCCA 169 R. v. Sam
  The trial judge did not err in charge to jury on intoxication as it affected second intent in murder. Appeal of first degree murder conviction dismissed.
• 2008 BCCA 170 R. v. Hehn
  Crown appeal from an acquittal on a charge of possessing cocaine for the purpose of trafficking. Appeal dismissed. The trial judge did not acquit based on conjecture or speculation unsupported by the evidence, rather he found reason in the respondent’s testimony to doubt his knowledge of the cocaine. The focus of an appeal cannot be on a colloquy during submissions between the court and counsel as the court is entitled to probe submissions to test the viability of various avenues of decision.
• 2008 BCCA 174 R. v. Whitaker
  The appellant appealed his conviction on a charge of possession of marihuana for the purpose of trafficking. The drugs were discovered when the police executed a search warrant at his property. The warrant was issued to investigate production and trafficking in marihuana, and possession of the proceeds of crime. The police arrested the appellant and eight other people who were on the property. When the appellant was advised of his right to counsel he indicated he wished to speak to a lawyer. However, he was not permitted to use a telephone until some time after he had been taken to the police station. In dismissing a Charter challenge to the admissibility of the drugs and other items seized by the police, the trial judge upheld the warrant and the appellant’s arrest. The trial judge found a breach of s. 10(b) of the Charter, because, even though the police had the situation at the property under control approximately one hour after the warrant was executed, they did not give the appellant an opportunity to contact a lawyer for a further one and one-half hours. However, given the lack of a temporal connection between the s. 10(b) breach and the discovery of the physical evidence, the trial judge declined to exclude the evidence under s. 24(2) of the Charter. Held: Appeal dismissed. (1) The warrant was valid, and the search did not violate s. 8 of the Charter. Reasonable grounds existed with respect to the entire property and not just a basement suite occupied by a tenant. Although the grounds with respect to there being a marihuana grow operation on the property were deficient, this aspect of the warrant was severable. (2) The appellant’s arrest was unlawful, and amounted to an arbitrary detention in violation of s. 9 of the Charter. The police did not have reasonable grounds to arrest everyone on the property. Further, they did not know that the appellant was one of the persons they were investigating before taking him into custody. (3) Notwithstanding the breaches of ss. 9 and 10(b) of the Charter, the admission of the evidence would not bring the administration of justice into disrepute.
• 2008 BCCA 175 R. v. Washington
  The applicants were convicted in the Provincial Court of possession of a controlled substance, methamphetamine, for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, a hybrid offence. Their appeals from conviction were dismissed on 8 November 2007, Rowles J.A. dissenting: 2007 BCCA 540. After the applicants had filed appeals as of right to the Supreme Court of Canada based on the dissent on a point of law, counsel ascertained that the Crown had proceeded summarily in the Provincial Court and that the conviction appeal should not have been brought in this Court. The case authorities support the conclusion that if an appeal has been determined on its merits and the order has been entered, a court is functus officio. The applicants’ motion to set aside the orders dismissing their appeals from conviction on the ground that this Court was without jurisdiction to make them was dismissed.
• 2008 BCCA 181 R. v. Alexander
  Sentence appeal dismissed.
  Sentence of eight years for a breaking and entering offence by a 40 year old offender upheld on the basis of a long and persistent record, and failure of appellant to desist from such activity despite previous substantial sentences. The appellant had a poor history of compliance with parole conditions and committed current offence days after his release from prison and while on parole.
• 2008 BCCA 185 R. v. Catania
• 2008 BCCA 188 R. v. J.B.L. (YCJA)
• 2008 BCCA 189 R. v. Wight
  Appeals from conviction for production of marihuana and possession for the purpose of trafficking on the ground that the convictions were unreasonable and unsupported by the evidence. Appeal dismissed. There was evidence to support the convictions and no grounds to disturb them.
• 2008 BCCA 193 R. v. Readhead
  Criminal law: Appeal raising a question of whether there was non-disclosure in the information used to obtain a search warrant that was so material it precluded a finding there were reasonable and probable grounds upon which the warrant could have been issued. Appeal dismissed.
• 2008 BCCA 194 Jolivet Mountain Institution
  Application for the appointment of counsel pursuant to 684 of the Criminal Code granted.
• 2008 BCCA 198 R. v. Abbott
  The appellant installed a replacement septic tank and drainage field on his property without first obtaining the required permit. His septic system did not meet the standards prescribed by the regulation then in force under the Health Act. An environmental health officer ordered the appellant to remove his system. The appellant did not comply. He was charged with contravening the Sewage Disposal Regulation and contravening the order of a public health inspector. The appellant was sentenced in Provincial Court under the Health Act, and ordered to pay a fine and remove the septic system. The summary conviction appeal judge affirmed the sentence. Appealing his sentence, and in particular the removal order, to this Court, the appellant contended the issue of removal should be left to the administrative authority under the Health Act, and should not be dealt with by the court pursuant to its sentencing power under the Act. The appellant also contended his septic system did not cause actual harm to the environment. Held: appeal dismissed. The purpose of the Health Act is to protect public health. The sentencing principles applicable to public welfare offences are denunciation, deterrence and remediation. The sanctions available to the sentencing judge under s. 104.1 of the Health Act are broad and discretionary. In this case, an important consideration was the circumstances of the offence; they were serious and involved proximity of a sewage system to a public drinking water source. Moreover, proof of actual harm is not a pre-requisite to a removal order; under s. 104.1(b) a removal order can be made to “avoid any harm to the environment”. The appellant’s objection to concurrent penal and administrative schemes for ensuring enforcement of the Act is difficult to understand in a situation where the penal order affirms the administrative order. The leading cases on the rule against collateral attack had no application.
• 2008 BCCA 199 R. v. Smith
  Appeal allowed from probation period ordered at end of three-year term of imprisonment. Probation not permitted by s. 731(1)(b) of the Criminal Code.
• 2008 BCCA 200 R. v. Chan
  A sentence appeal abandoned by consent was reinstated on fresh evidence which could, if admitted, affect the applicant’s degree of moral culpability in a kidnapping. The appeal was abandoned because the applicant was unable to assemble neuropsychological evidence of cognitive malfunctions following a car accident. That evidence is now available. The Crown’s argument that the evidence could not meet the Palmer test was rejected. But it will be for the division hearing the appeal to decide on ultimate admissibility.
• 2008 BCCA 211 R. v. McKinney
  Appeal dismissed from an order dismissing the summary conviction appeal from convictions on 27 counts of failing to comply with notices to file income tax returns. The appellant claimed that both the trial and appeal judges’ reasons for judgment were insufficient, and the trial judge reversed the onus of proof with respect to whether the notice period of 150 days was reasonable. Held: The trial judge did not reverse the onus of proof. The path to her conclusions is clear from her reasons. It is not an error for an appellate judge to adopt the reasons of the trial judge in dismissing an appeal, as the appeal judge effectively did in this case.
• 2008 BCCA 212 R. v. Choi; R. v. Huynh
  Criminal law: Appeals from convictions for marihuana grow operation offences on grounds of reliance having been placed on inadmissible evidence. Appeal allowed. An inculpatory statement was wrongly admitted in the absence of a voir dire and a determination the statement was voluntarily made. Further, certain telephone records were wrongly relied on as proof of their contents.
• 2008 BCCA 215 R. v. Fawcett
  Criminal Law: Appeal from a conviction of sexual assault with a weapon raising an issue about the adequacy of the reasons for judgment. Dismissed.
• 2008 BCCA 219 R. v. Wong
• 2008 BCCA 227 R. v. McCrea
  Appellant robbed a convenience store and, in his attempt to escape, led the police on a high-speed, dangerous chase on a highway, city streets , and a busy box store parking lot, first in an automobile which he crashed and then in a truck which he stole, throwing the female occupant from the driver’s seat to the ground. When he crashed the truck, he fled on foot and when stopped, he resisted arrest. The trial judge convicted him of eight related offences, staying two of them on the Kineapple principle. He considered the two robberies, the dangerous driving, and the resisting arrest to be separate events warranting consecutive sentences. He arrived at a global sentence of eight years which he reduced to four years and one month after credit for pre-trial custody. On this sentence appeal the Court held that the trial judge did not err in failing to make the dangerous driving sentence concurrent with the other sentences or in violating the “step” principle. The appellant’s lengthy criminal record and his poor past rehabilitation performance demonstrated that protection of the public was the primary sentencing factor. The sentence was not unfit.
• 2008 BCCA 228 R. v. Dalen
  Application for judicial interim release pending appeal.
  Application allowed.
• 2008 BCCA 230 R. v. Hein
  Crown appeal from sentence of 15 months and two years probation imposed on a courier of a large amount of cocaine. Appeal allowed and sentence of 3 years and 8 months substituted. The respondent was entitled to some discount from the usual range for his cooperation with the police but the weight given to this factor was excessive in the circumstances.
• 2008 BCCA 233 R. v. Weintz
  The respondent driver was stopped by police after he was observed driving in a somewhat erratic manner. The police officer, noting a smell of alcohol coming from the vehicle, asked the respondent if he had been drinking. Before he could answer, the passenger of the vehicle said he had been drinking and that any smell of liquor was coming from him. The officer asked the respondent to get out of the vehicle and then asked him to “blow in his face". The respondent complied with the request and the officer detected an odour of alcohol on his breath. As a result of this observation, an ASD demand was made. The reading obtained was a “fail” and a breathalyzer demand was made. The respondent was ultimately charged with impaired driving and driving “over .08". A provincial court judge convicted the respondent of driving “over .08". On appeal, an acquittal on the “over .08” charge was directed on the basis that the request to blow in the officer’s face constituted an unreasonable search and seizure as per R. v. Stillman, [1997] 1 S.C.R. 607. The Crown appealed from the decision of the summary appeal conviction judge.
  HELD: Appeal allowed.
  The request to blow in the officer’s face was a permissible roadside screening process as per the reasoning in R. v. Bonin (1989), 47 C.C.C. (3d) 230 (B.C.C.A.), R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.), and R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3. There is little distinction between the evidence that flows from investigative techniques such as physical sobriety tests and questions regarding alcohol consumption, and that of a request to blow breath in the face of an investigating officer. All are simply different roadside screening methodologies utilized to detect the presence of alcohol in the body of a driver. In the instant case, such a request was reasonable because of the factual circumstances of this case. When the officer asked the respondent about drinking there was an immediate response from the adult passenger that he had been drinking, and that presumably any odour of alcohol in the vehicle was attributable to him. It then became requisite for the officer to determine the source of the odour of liquor. An effective and speedy methodology of doing such an assessment was to make the request the officer did. Such a procedure is minimally intrusive and can be speedily performed at the side of the road. It thus accords with the parameters enunciated in Smith and approved in Orbanski. The reliance placed on Stillman was misplaced as the results of roadside screening techniques are not to be utilized as evidence to incriminate a driver. [Note: The reasoning in R. v. Bishop, 2003 NSSC 213 was rejected.]
• 2008 BCCA 238 R. v. Whitaker
  Application for bail pending a sentence appeal. After the applicant’s conviction appeal was dismissed he filed what purported to be an “Amended Notice of Appeal or Application for Leave to Appeal” but which was, in fact, a stand-alone sentence appeal. Held: Application dismissed for want of jurisdiction. The new notice was filed well out of time. Absent an order extending the time for filing this notice the bail application was not properly before the Court.
• 2008 BCCA 240 R. v. Lee
  Lee, See Chun (Lee) and Tao, Chuk Fong (Tao) appeal their convictions in the Supreme Court of British Columbia on 31 July 2003 following a trial by judge and jury, on charges of importing, conspiracy to import, and possession of heroin for the purposes of trafficking. Tao and Lee were arrested following the seizure of heroin. The seizure of the heroin, and the charges which followed, were the culmination of police investigations that commenced in 1998. During the course of the investigations, the police applied for, and obtained, 18 wiretap authorizations. At issue on this appeal are five rulings by the learned trial judge on the validity of certain contested authorizations, and the admissibility of evidence obtained pursuant to the wiretaps so authorized. Both Lee and Tao also apply for leave to adduce fresh evidence.
  HELD: The appeal should be dismissed, and the convictions of Lee and Tao affirmed. The contested authorizations were validly issued, and the evidence obtained as a result was properly admitted. The fresh evidence tendered by the appellants does not meet the test for admissibility, and should be excluded.
• 2008 BCCA 242 R. v. Rastgoei
  A Crown appeal from a conditional sentence in a cocaine dial-a-dope trafficking case was allowed and a sentence of 12 months incarceration was imposed.
• 2008 BCCA 243 R. v. Dawydiuk
  The applicant was convicted of criminal negligence, assault with a weapon – a motor vehicle – and leaving the scene of an accident and sentenced to 12 months on each of the first two matters, with the sentence for assault to run concurrently and to six months for leaving the scene of the accident. He appealed his conviction for assault and his sentence on all three counts and now applies for judicial interim release. The Crown asserts that the appeal from his sentences for criminal negligence and leaving the scene must be considered separate from his conviction appeal because they are appeals from sentences alone pursuant to s. 679(1)(b) of the Criminal Code. It contends that even if the applicant met the requirement for release in s. 679(3) – conviction and sentence combined – he would be obliged to satisfy the higher merits threshold for release in s. 679(4). Both parties referred to R. v. Ali as an example of the court applying the higher merits threshold in s. 679(4).
  Held: the application for release is allowed. The sentence appeals were not to be treated separately. Ali did not apply s. 679(4). It proceeded under s. 679(3). The appeal in this case is not an appeal against sentence alone. On a plain reading of s. 679, in the circumstances of this case and as a matter of policy, the application should be considered under s. 679(3). The Crown conceded the applicant did not pose a flight risk. It cannot be said his conviction appeal is without merit. The public interest does not require his incarceration.
• 2008 BCCA 252 R. v. Nguyen
  Crown sentence appeal. The offender was convicted in Youth Court on charges of aggravated assault and possession of a weapon for a purpose dangerous to the public peace, arising out of a “swarming” incident. The offender punched the victim. Another attacker struck the victim with a hatchet, leaving him a quadriplegic. The Youth Court judge ordered the offender, who was 17 at the time of the incident, sentenced as an adult, and imposed a 20-month conditional sentence, followed by two years’ probation.
  Held: Appeal allowed; sentence varied to a conventional term of imprisonment, followed by two year’s probation. Swarming cases require the courts to send a strong and unequivocal message about the consequences of participating in group violence. The emphasis must be on deterrence and denunciation.
  By reason of the manner in which credit is given for time spent on a conditional sentence the period of the conventional sentence was adjusted downward, to take into account the offender’s potential release date. It was also ordered that the sentence be served in an open custody youth facility.
• 2008 BCCA 253 R. v. Roe
  Bail refused on weak grounds of appeal where the outcome sought by the appellant below and here (manslaughter rather than second degree murder) would inevitably lead to a sentence longer than the time required to complete the appeal. The violence of the offence – six stab wounds inflicted by a knife, with a motive – also weighed in the public interest factor.
• 2008 BCCA 255 R. v. Nduwayo
  Mr. Nduwayo appeals his convictions on 13 December 2005 in the Supreme Court of British Columbia, following a trial by judge and jury, on five counts of aggravated sexual assault, one count of attempted aggravated sexual assault, and one count of sexual assault. There was a different complainant in each of the seven counts. The charges of aggravated sexual assault and attempted aggravated sexual assault were based on allegations that the appellant, who is HIV positive, engaged in unprotected sexual intercourse with each complainant, thereby endangering their lives. Count seven did not involve sexual intercourse or endangerment. In addition to the seven complainants, the Crown led evidence from K.N., and another woman, S.S., who had engaged in sexual conduct with the appellant. The Crown also led evidence from a medical doctor, Dr. Patrick, and a nurse, Linda Knowles.
  HELD: Appeal allowed and a new trial ordered. The charge in this case, read as a whole, does not adequately caution the jury against the risk of improperly using evidence of a complainant on one count in their consideration of the appellant’s guilt on any other count. The appeal must be allowed on this ground alone. There is also merit in the appellant’s contention that the charge does not adequately warn the jury not to rely on evidence of other counts or of uncharged conduct as proof that the appellant had a propensity to commit the offences with which he was charged. The problems with this charge were compounded by the submissions of Crown counsel. For a variety of reasons, the fairness of this trial was compromised. The errors identified cannot be overcome by the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.
• 2008 BCCA 256 R. v. Olsen
• 2008 BCCA 257 R. v. Daley
  Appeal from a conviction for sexual assault on the ground the verdict was unreasonable as being unsupported by the evidence. Appeal dismissed.
• 2008 BCCA 259 R. v. Gill
  Leave to appeal from an order dismissing summary conviction appeal, dismissed.
• 2008 BCCA 261 R. v. Vankoughnett
  Appeal from a conviction on a four-count indictment arising out of a break-in at a commercial establishment, theft, and possession of stolen property on the ground the judge erred in the instructions he gave to the jury concerning reasonable doubt and the provisions of the Criminal Code governing parties to criminal offences. Appeal dismissed.
• 2008 BCCA 262 R. v. S.S.C.
  The appellant pled guilty to five counts of sexual touching involving five different girls from seven to twelve years old over a period of three years and four months. On May 22, 2003, he was sentenced to six months to be served in the community and put on two years probation. On or about December 15, 2004, amendments to the Criminal Code dealing with the Sex Offender Information Registration Act came into force. Because the appellant was still under sentence, the Attorney General of British Columbia, as authorized by the legislation, served a notice on the appellant, informing him of his obligation pursuant to ss. 490.019 and 490.022(3)(d) of the Criminal Code to register under SOIRA unless he obtained an exemption under s. 490.023. As the appellant was convicted of more than one offence, his SOIRA reporting obligations are for life (s. 490.022(3)(d)). The appellant’s application to the Provincial Court for an exemption was refused. He appealed asserting the retrospective obligation to register offends his liberty interests under s. 7 of the Charter and the requirement to register is overbroad and arbitrary. Alternatively, the obligation for him to register was grossly disproportionately to the public interest. Held: appeal dismissed.
  Although the appellant disavowed a constitutional challenge in the Provincial Court and the usual practice of this Court is not to deal with such matters for the first time (R. v. Vidulich), in the circumstances of this case, the Court exercised its discretion to grant leave to allow the appellant to advance his constitutional challenge. Registration does affect the liberty interests of offenders to a minimum degree, but the obligation to register is not punitive. In the context of SOIRA, notice is not required as a principle of fundamental justice. The obligation to register does not offend s. 7 of the Charter. Registration aligns with the stated purpose of the legislation. The legislation is neither overbroad.nor disproportionate.
  With regard to the exemption application, registration is required of all offenders in the public interest. The public interest side of the equation is not affected by the subjective circumstances of an offender. Insofar as the burden on a low risk offender is disproportionate to the public interest, that can be a factor in the court’s consideration whether to grant an exemption or to terminate the obligation to register.
  The following four points for guidance arise from an analysis of the legislation and the cases:
  1. the public interest requires all sex offenders to register, not just those with the profile of predatory strangers or those with a heightened risk to re-offend;
  2. the public interest is fixed; Parliament has declared that registration is in the public interest;
  3. an offender seeking exemption is obliged to establish that his or her registration would be grossly disproportionate to the public interest; that is, it is a given that registration has a potential minimum or threshold effect on all offenders;
  4. relevant to the consideration of the offender’s circumstances is the nature of the offence, the risk to re-offend, the offender’s criminal record, and other similar matters personal to the circumstances of the offender.
  Although the Provincial Court judge erred by apparently adopting the predatory offender model, this did not prejudice the appellant. The judge otherwise proceeded correctly in his consideration whether to exempt the appellant from registration.
• 2008 BCCA 264 R. v. Hooites-Meursing
  The trial judge was premature in entering a judicial stay of proceedings on a murder indictment. Until defence evidence was presented it could not be known if certain conduct by the Crown had rendered the trial irreparably unfair to the accused in breach of his Charter rights. Stay set aside. New trial ordered.
• 2008 BCCA 266 R. v. Lewis
  The appellant died after filing notice of appeal. The respondent’s application dismissing the appeal as abated granted. Counsel for the appellant’s application to continue the appeal refused on the ground that the issue, reasonableness of notice of drug certificate of analysis, did not transcend the death of the appellant.
• 2008 BCCA 268 R. v. S.E.D.
• 2008 BCCA 269 R. v. Toodlican
  Appeal dismissed. Conviction of offence of impaired driving confirmed.
• 2008 BCCA 270 R. v. Ispanovic
  Sentence equivalent to eight years incarceration for manslaughter reduced to the equivalent of six years incarceration, considering the appellant’s early guilty plea and cooperation with police, his lack of prior criminal record for violent offences, his age (70 years) and the erroneous characterization of a neutral factor as an aggravating factor.
• 2008 BCCA 272 R. v. Pham
• 2008 BCCA 273 R. v. R.I.R.M.-M.
  Sentence of young person adjusted to rectify legal error not adding a period of community supervision to a custodial sentence.
• 2008 BCCA 274 R. v. Longo
  Appeal allowed. Trial judge misunderstood the defence position and convicted prior to any argument on the merits of the case. Problems discussed about trial judge deciding admissibility of evidence after the Crown closes its case.
• 2008 BCCA 277 R. v. Falkner
  Appellant was convicted of second degree murder after a trial by jury. He testified he had no involvement in the death of his partner, the murder victim. The conviction for murder rested in part on evidence of a bloodstain expert indicating considerable force had been used during the homicide. On appeal, the appellant sought to adduce fresh evidence from another bloodstain expert to cast doubt on the evidence of bloodstain expert who had testified at trial. In effect, he was seeking to advance a different line of defence from the primary defence he had proffered at trial. Court of Appeal dismissing appeal. New evidence found not to be of sufficient cogency to create doubt concerning correctness of original verdict. Comments of Doherty J.A. in R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, referred to.
• 2008 BCCA 280 Canada (Minister of Justice) v. Narayan
  Dismissal of an application for judicial review of an order by the Minister of Justice surrendering the applicant for extradition.
• 2008 BCCA 281 R. v. Bains
  The applicant applies pursuant to s. 680(1) of the Criminal Code for directions that the order of the British Columbia Supreme Court pronounced 30 October 2007 denying his application for judicial interim release be reviewed by a Division of this Court.
  HELD: The test to be met on an application for directions under s. 680(1) is a low threshold. In this case, that low threshold has been met. A review of the order of 30 October 2007 refusing the applicant bail is directed.
• 2008 BCCA 286 R. v. R.A.M.
  Appeal from a conviction of sexual offences.
  Held: appeal dismissed. The trial judge did not misapprehend the manners in which the complainant and the appellant gave their testimony or the nature of the inconsistencies in the complainant’s evidence. The judge did not misapply the burden of proof or fail to give effect to the presumption of innocence.
  The trial judge gave adequate reasons to explain why the complainant’s inconsistencies did not raise a reasonable doubt about the appellant’s guilt and why he rejected the appellant’s evidence. The reasons for judgment explain the result and reveal the pathway to conviction. They are adequate to permit meaningful appellate review.
• 2008 BCCA 287 R. v. Godkin
  Effective sentence of nine years, two months’ incarceration on two counts of bank robbery and one count of possession of a dangerous weapon upheld in the case of an offender with a lamentable record, including six previous convictions for robbery.
• 2008 BCCA 288 R. v. Teskey
  The appellant appealed his conviction of aggravated assault arising out of the stabbing of another man during a fight. Appeal dismissed. The trial judge did not err in using the appellant’s flight from the scene as circumstantial evidence of guilt. Nor did he use his disbelief of the appellant as positive evidence of his guilt and, even if he did, the curative proviso should be applied. A ground of appeal relating to the effect of a misapprehension of evidence on the defence of self-defence was rejected since the appellant’s evidence was that the stabbing was an accident so self-defence was not a live issue.
• 2008 BCCA 297 R. v. Virk, Basi and Basi
  The Crown appealed from an order that defence counsel would be present at a pre-trial in camera hearing to determine whether informer privilege exists. The defence were provided with documents that had been redacted, and applied for disclosure of the redacted portions. The Crown asserted informer privilege and said that it would be necessary for the judge to hear viva voce evidence of a police officer. The Crown argued that the hearing should be ex parte. The judge determined that defence counsel should be present at the hearing. The Crown filed a certificate, under s. 37(1) of the Canada Evidence Act, certifying that it objected to the disclosure of certain information to defence counsel on the grounds that the information was subject to informer privilege. The judge ruled that the hearing would occur with defence counsel present; that defence counsel would be bound by an order that they not disclose anything heard in the hearing to anyone, including the accused; and that they were to file undertakings to that effect.
  Held (Ryan J.A. dissenting): The appeal should be dismissed.
  Per Finch C.J.B.C.: This Court has no jurisdiction to entertain the appeal. There is no right of appeal under s. 37, as the judge’s ruling was not an order for disclosure of confidential information. If it was an order for disclosure of confidential information, it was well within the discretion granted by s. 37.
  Per Donald J.A.: The judge’s order contemplated disclosure of confidential information. The appeal should be dismissed on the basis that the order was within the discretion of the judge. The court-ordered undertaking prevents a breach of the duty not to disclose, while providing the accused the right to full answer and defence.
  Per Ryan J.A. (dissenting): The trial judge made a disclosure order under s. 37(4.1) of the Canada Evidence Act. The appeal was properly taken under s. 37.1(1)(b) of the Act. The appeal should be allowed. Defence counsel were not entitled to be present at the first stage of the hearing to determine whether there is an informer whose identity must be protected. It is only after the privilege has been established that an accused acquires an interest in balancing his or her rights to a fair trial against those of protecting the identity of the informer. It does not exist before that time. The Canada Evidence Act does not expand the common law to give the trial judge a discretion to permit defence counsel to be present at a hearing to learn the identity of an informer. The Act must be read in the context of the common law rules applying to informer privilege. The principles articulated by the Supreme Court of Canada in Named Person v. the Vancouver Sun, 2007 SCC 43
  apply to this case. The order of the trial judge should be set aside as it violates the duty of the court to protect the identity of a confidential informer.
• 2008 BCCA 300 R. v. Nicolaou
  The appellant was charged with eight counts on a nine count indictment. He was found guilty on counts one through six. Convictions were entered, with the exception of count three, which was conditionally stayed, pursuant to R. v. Kienapple. His co-accused was acquitted. He appeals his “convictions” on counts three to six: count three – living on the avails of prostitution; count four - controlling or directing the complainant's movements for the purpose of compelling her to engage in prostitution; count five – extortion; count six – sexual assault. Appeal dismissed on counts five and six; new trial ordered on counts three and four.
  The following analytical framework is relevant to a consideration of sexual assault: a motive of sexual gratification is not essential; the anatomy involved is relevant; the exercise of power and control over the victim and his or her humiliation or subservience can engage his or her sexual integrity. The appellant directed other women to search the complainant’s vagina for alleged stolen drugs. The assault was sexual in nature. The humiliation and exercise of power and control violated the sexual integrity of the complainant.
  By obliging the complainant to provide sexual favours to his friends, the appellant committed extortion. It was not necessary that he benefit directly. He obtained something for his friends by inducing the complainant to act as a result of his threats and violence.
  Technically, the appellant was not convicted on count three (R. v. Provo). He may not have a right of appeal on that count (R. v. Foti). There should not have been a conditional stay on count three: the delict of living on the avails of prostitution is not the same as that of controlling or directing for the purpose of compelling prostitution. The provision of services or goods paid for from the proceeds of prostitution does not constitute living on the avails. There must be some nexus between the supply and the prostitution (Shaw v. D.P.P., as quoted by this Court in R. v. Celebrity Enterprises Ltd. et al). The judge conflated his analysis of counts three and four and, in part, misapprehended the evidence as it related to one or both of those counts.
• 2008 BCCA 301 R. v. Reyat
  Court releases reasons for judgment in bail review.
• 2008 BCCA 304 R. v. Blackler
• 2008 BCCA 307 R. v. Scott
  Sentence of 42 months’ imprisonment upheld on convictions for dangerous driving causing death, and causing bodily harm.
• 2008 BCCA 309 R. v. Francis
  Sentence imposed on appellant of possession of methamphetamine for the purpose of trafficking, 30 months, was intended by sentencing judge to denounce the offence which was on the increase in her community. Sentence not unfit in the circumstances.
• 2008 BCCA 310 R. v. Blind
  Sentence appeal allowed to the extent of increasing credit for time spent in pre-trial custody from one-to-one to two-to-one.
• 2008 BCCA 316 R. v. Donald
  Application under s. 684(1) of the Criminal Code as to the appellant’s conviction appeal.
• 2008 BCCA 322 R. v. Pauls
  Sentence appeal allowed, to the extent of setting aside an illegal probation order.
• 2008 BCCA 324 R. v. Kuypers
  Appeal from sentence of eight months incarceration dismissed. The prerequisites for a conditional sentence order were not met.
• 2008 BCCA 325 R. v. T.J.F.
  Effective five year sentence on a charge of breaking and entering into a place and committing an assault therein upheld. Eighteen year old offender and two others broke into apartment of a 97-year-old woman and assaulted her. Offender had youth convictions, and was then on bail for serious youth offences. Notwithstanding that prior to entering the apartment the offender did not know the premises was a dwelling-house, his conduct deserves considerable disapprobation.
• 2008 BCCA 326 R. v. Malakpour
  The appellant was convicted of harassment of his former wife, charged under s. 264 of the Criminal Code. On his appeal from a sentence of 27 months for the offence, the appellant argued that the trial judge had erred in not giving two-for-one credit for the time he had spent in pre-trial custody and erred in imposing a sentence which was not similar to sentences imposed for similar offences and offenders. Appeal allowed. The length of the sentence the trial judge considered appropriate was not unfit but the appellant ought to have received two-for-one credit for pre-trial custody. Sentence reduced accordingly.
• 2008 BCCA 330 R. v. Ling
  The appellant’s application for release pending determination of his conviction appeal was dismissed on public safety grounds. As a result of his failure to adhere to a weapons prohibition order made under s. 109 of the Criminal Code and his repeated criminal misconduct in marihuana production and possession for the purpose of trafficking, the appellant failed to meet the onus of showing that his detention was not necessary under s. 679(3) of the Criminal Code.
• 2008 BCCA 332 R. v. Cai
  An application for leave to appeal an order dismissing a summary conviction appeal is dismissed. While the court has jurisdiction to entertain the appeal, the appeal is without merit.
• 2008 BCCA 338 R. v. Basran
  Sentence appeal dismissed. It was reasonable for the sentencing judge to have included a “limited contacted” condition in a probation order imposed following the appellant’s conviction for wilfully damaging the property of his former domestic partner. If circumstances have changed, then the appellant can apply to the sentencing judge to vary this condition, or even terminate the order.
• 2008 BCCA 339 R. v. R.D.
  Crown appeal from an order staying proceedings against accused on charges of sexual assault, because of unreasonable delay in breach of the accused’s s. 11(b) Charter rights.
  Appeal dismissed. The total delay of 28 and a half months was partly due to institutional causes and partly due to the conduct of the Crown. There was significant prejudice to the accused. The judge did not err in entering a stay.
  Chiasson J.A. concurring: The Crown’s ground of appeal that the respondent was not ready for trial was not advanced before the trial judge. There being no exceptional circumstances, this Court will not entertain it. There was some relevance to the fact the case would not have gone to trial before November 2006 in any event, but this appears not to have been considered. The delay of the preliminary hearing from February to July 2006 was attributable to the Crown, but was not relevant because there was nothing to suggest that the case would not have gone to trial in November 2006 had the preliminary hearing taken place in July 2006. It is questionable whether an accused can assert prejudice after having taken no steps to alleviate that prejudice in circumstances where its impact is known and inevitable, but there being neither evidence nor argument on the point, it is left to another day.
• 2008 BCCA 340 R. v. Spratt
  The appellants were convicted in August of 2000 of violations under sections 2(1)(a) and 2(1)(b) of the Access to Abortion Services Act. The appellants stood outside the Everywoman’s Health Centre within a zone prohibited by the Access to Abortion Act either carrying signs or religious symbols and attempted to speak against abortion with people entering and leaving the clinic. Their summary conviction appeals to the Supreme Court of British Columbia were dismissed in May of 2002. In June of 2004 the appellants were granted leave to appeal their convictions to the Court of Appeal on the ground that the sections of the Act in question violated their right of freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. In May of 2006 the right to intervene in the appeal was granted to a number of applicants.
  The Court dismissed the appeals of the two appellants on the basis that while the impugned sections violated the appellants’ right to freedom of expression, the sections were a reasonable limit on that freedom demonstrably justified in a free and democratic society. R. v. Lewis (1996), 24 B.C.L.R. (3d) 247, approved.
  The appeals were dismissed accordingly.
• 2008 BCCA 341 R. v. Ellard
  The appellant appealed her conviction on a charge of second degree murder. She sought an acquittal on the basis that the verdict is unreasonable, or cannot be supported by the evidence. In the alternative, she sought a new trial on the basis that the trial judge erred in: (a) failing to give the jury a special caution with respect to the possibility of collusion between various Crown witnesses, and (b) permitting the Crown to re-examine a particular witness to show that she had made prior statements under oath consistent with her evidence at trial. Held: appeal allowed, and a new trial ordered. There was a body of evidence which, if accepted by the jury, supported its finding that the appellant had participated in killing the victim. In light of the manner in which the trial had been conducted there was no need for a special caution, as the jurors would have been well aware of the need to consider the potential for collusion between witnesses. However, the trial judge erred by failing to give the jury a limiting instruction with respect to the use that can properly be made of prior consistent statements. Low J.A. dissented on the basis that there was no need for such a limiting instruction.
• 2008 BCCA 342 R. v. DiPalma
  The appellant appealed from his conviction of producing marihuana and possessing same for the purpose of trafficking on the ground the trial judge erred in finding police good faith in a warrantless search conducted on the roof of his commercial strata unit in violation of his s. 8 Charter right to privacy and in admitting the police officer’s evidence pursuant to s. 24(2). Appeal dismissed. The trial judge found that the police officer climbed on the roof with the honest and reasonably held belief that he had been given valid consent to do so by a member of the strata council. The trial judge made no palpable and overriding error and no extricable error in principle was shown. Accordingly, his decision was entitled to appellate deference.
• 2008 BCCA 344 R. v. Bonisteel
  The appellant appealed his conviction for the first-degree murder of two 14-year-old girls in 1975. He claimed the trial judge erred in admitting his confession resulting from a “Mr. Big” undercover sting operation in 2002 because it included prejudicial evidence, was unreliable, and the undercover operation would “shock the community”.
  Held: Appeal dismissed. The appellant did not identify any legal error in any of the trial judge’s rulings or in his instructions to the jury, nor any way in which the trial proceeded that leads to the conclusion that the trial was unfair or that the entire process would shock the community.
• 2008 BCCA 345 Canada (Minister of Justice) v. Narayan
  The applicant sought an order for judicial interim release pending the determination of his application for leave to appeal to the Supreme Court of Canada from this Court’s dismissal of his application for judicial review of the decision of the Minister ordering his surrender to the USA where he is wanted to stand trial on drug-related offences. The leave application advances one ground, that is, whether the Minister committed a reversible error in declining to engage in an assessment of the strength of the committal evidence.
  The question of whether evidence is sufficiently strong to permit extradition is a judicial determination for the extradition judge to make and appellate level courts to review as part of committal proceedings. The Minister does not revisit the strength of the evidence judged sufficient to justify committal in deciding whether to order surrender. The approach of the Minister, as stated in his letter to the applicant’s counsel, and the analysis contained in this Court’s decision affirming the Minister’s decision, are entirely consistent with the law as stated by the Supreme Court of Canada. The application for release was denied on the ground that the applicant failed to meet the onus of demonstrating that his application for leave to appeal is not frivolous.
• 2008 BCCA 347 R. v. Bowering
  Conviction appeal on a charge of breaking and entering into the complainant’s bedroom allowed on the basis of fresh evidence. The appellant had been acquitted on a related charge of sexual assault. Crown counsel did not become aware of the fact that the complainant had a somewhat dated criminal record until after the trial. At the preliminary inquiry the complainant had denied having a record. Credibility was a critical issue at trial. Although the trial judge found the complainant to be manifestly unreliable he accepted her evidence with respect to the breaking and entering charge because the appellant’s fingerprint had been found on a window screen. Had the trial judge been aware of the fact that the complainant had been untruthful at the preliminary inquiry, it is probable that he would have had even greater reservations about her evidence, and been left with a reasonable doubt as to the appellant’s guilt.
• 2008 BCCA 350 R. v. Thompson
  Following his guilty plea to 11 counts of robbery committed over a 3-to-4 month period, the appellant was sentenced to 7 ½ years imprisonment on each count, with the sentences to be served concurrently. He was 31 years of age at the time of sentencing and had a minor unrelated criminal record. The sentencing judge accepted that there were prospects for his rehabilitation. The judge referred to the length of the sentence in R. v. Stauffer to demonstrate "how seriously the courts consider robberies, generally; robberies of financial institutions particularly, and instances of multiple robberies". There is no doubt that the robbery offences of financial institutions which were committed by the appellant were serious but the circumstances of the offences ought not to have eclipsed consideration of the circumstances of the offender. The prospects for the offender’s rehabilitation ought to have had a modifying effect on the length of sentence, as the reasoning of this Court in R. v. Furness confirms. Held: Leave granted, appeal allowed, sentence reduced to six years.
• 2008 BCCA 351 R. v. Katsiris
  Crown appeal allowed in part. The trial judge acquitted the respondent of aggravated assault because she a reasonable doubt whether the respondent slashed the victim with a broken glass. But since she found that the respondent struck the victim four times with something (the judge could not tell what it was), she should have found her guilty of the lesser offence of assault.
  On the count of charging assault with a weapon, particularized as a broken glass, the failure to prove the nature of the object as described was fatal to the charge.
• 2008 BCCA 359 U.S.A. v. Pal
• 2008 BCCA 363 R. v. Luscombe
  Fresh evidence admitted, appeal allowed, and new trial ordered.
• 2008 BCCA 365 R. v. B.C.M.
  The appellant appealed his effective global sentence of six years on charges of sexual touching, possession of child pornography, and making child pornography. The victims were his two step-daughters, who were between the ages of six and ten at the time of the offences.
  The appeal is dismissed. The sentencing judge did not misapprehend the facts. Nor did she err in finding that the mandatory minimum sentence of one year for making child pornography under s. 163.1(2) of the Criminal Code acted as an inflationary floor, resulting in a proportional increase in sentences within the statutory range. The sentence of three years on that charge, and the global sentence of six years, were not demonstrably unfit.
• 2008 BCCA 370 R. v. Wilder
  Appeal from sentence dismissed. The appellant was sentenced to nine years in jail and ordered to pay restitution to the Receiver General of Canada of $5,000,000 after being convicted by a Supreme Court judge without a jury of seven counts of fraud and one count of possessing the proceeds derived from those frauds. The frauds arose within a scheme carried out in 1984 and 1985 using the Scientific and Research Tax Credit provisions of the Income Tax Act of Canada. The appellant was found to have defrauded the Government of Canada of $38,000,000. The appellant claimed, on various grounds, that the sentence, including the restitution order, was harsh and excessive. Held: None of the appellant’s grounds of appeal has any merit. The trial judge made no errors of law or principle in determining the sentence, and the sentence is not demonstrably unfit.
• 2008 BCCA 371 R. v. Webber
  The sentencing judge imposed an 18 month conditional sentence order on Mr. Webber for one count of robbery of a Subway outlet in Vernon during the course of which he made death threats to the young employee. In addition to credit for time spent in pre-sentencing custody, this resulted in an effective sentence of 32 months. The parties agreed that this sentence was contrary to the decision of the Supreme Court of Canada in R. v. Fice, 2005 SCC 32, 1 S.C.R. 742 and not in accordance with the conditional sentencing regime set out in the Criminal Code. Mr. Webber appealed, seeking to have this Court substitute a conditional sentence order of 10 months, plus probation. The Crown served notice of its intention to seek a sentence of incarceration in accordance with R. v. Hill, 1977 1 S.C.R. 827, and asked that a custodial sentence of 10 months imprisonment plus probation be imposed.
  Held: Appeal allowed and a sentence of 10 months less a day imprisonment plus two years probation substituted. In addition to imposing a sentence which was not in accord with the conditional sentencing regime, the sentencing judge wrongly held that he was bound to impose a conditional sentence as a result of this Court’s decision in R. v. Koop, 2008 BCCA 140, despite the fact that he did not believe a conditional sentence was fit. The Koop decision was clearly distinguishable. The circumstances of the robbery were serious, Mr. Webber had a criminal record and the fact that he had already breached the conditional sentence order on one occasion, and had been arrested and detained for a further alleged breach did not bode well for Mr. Webber’s ability to be at large in the community.
• 2008 BCCA 373 R. v. I.J.W.C.
  Effective sentence of six years on charges of possession of stolen property, dangerous operation of a motor vehicle, failure to stop while being pursued by the police, and assault with a weapon (i.e., a stolen SUV) upheld. Eighteen-year-old offender driving stolen SUV involved in high-speed police chase. He twice drove the SUV into a police vehicle blocking his path, ignoring instructions to stop. Shots fired by an officer killing a passenger in the SUV. Offender had a lengthy youth record for similar offences, and had been released from custody nine days before this incident. Sentencing judge did not err in placing emphasis on protection of the public, and the need to promote respect for the law.
• 2008 BCCA 375 R. v. Lebedin
  Appeal from a conviction on a charge of attempting to obstruct the course of justice by trying to have a witness change her evidence. Appeal dismissed.
  There was no error on the judge’s charge and cross-examination of a witness was properly curtailed.
• 2008 BCCA 378 R. v. Fryer
  The Crown appeals from sentence which did not include a DNA sampling order. The accused is content to have appeal allowed. Appeal allowed.
• 2008 BCCA 380 R. v. Schoenhals
  Appeal from sentence of three years (before credit in respect of pre-sentencing custody) for the offences of possession of cocaine for the purpose of trafficking and trafficking cocaine.
  Held: appeal dismissed. The two sentences of 18 months each were not outside the ranges for similar offenders committing similar offences. The sentencing judge did give effect to the totality principle and the total sentence is not demonstrably unfit.
• 2008 BCCA 381 R. v. Fester
  The accused appeals from a sentence of nine years on a charge of discharging a firearm with intent to wound and other charges. Appeal dismissed.
• 2008 BCCA 389 R. v. Blais
  An appeal from an order quashing the issuance of a subpoena in criminal proceedings was dismissed. The Court discusses considerations touching the compellability of an expert to give evidence in a proceeding to which that person has no ties and in which he or she is otherwise a stranger.
• 2008 BCCA 390 R. v. Smith
• 2008 BCCA 393 R. v. Young
  Appeal of conviction for second degree murder allowed and new trial ordered. The trial judge’s charge focussed the jury’s assessment on the actions of the deceased husband immediately before the appellant wife shot him and thus effectively removed self-defence based on the “battered woman syndrome” from their consideration.
• 2008 BCCA 397 R. v. C.S.M.
  The appellant was convicted in Youth Justice Court in February of 2007 of two counts of aggravated assault and appealed on the basis that (1) the trial judge interfered in the trial by conducting his own examination of Crown witnesses thus rendering the trial unfair and (2) the verdicts were unreasonable and could not be supported by the evidence.
  The appeal was dismissed. The judge’s interventions did not go beyond an attempt to understand the evidence called before him and did not as a whole leave the impression that he had become an advocate for the Crown. In addition, there was evidence to support the verdicts. It was for the trial judge, who had the advantage of seeing and hearing the witnesses, to assess each witness’s evidence and determine its weight.
• 2008 BCCA 401 R. v. J.Z.S.
  J.Z.S. appeals from an order dismissing his summary conviction appeal on convictions for the sexual assault of his two children. Leave to appeal granted on the issue of the constitutional validity of s. 486.2 of the Criminal Code and s. 16.1 of the Canada Evidence Act. Both sections held to be constitutionally valid.
  

Yukon Judgments:

• 2008 YKCA 1 R. v. Taylor
  A sentence of eight months for driving while disqualified was not unfit for an offender with a bad drinking and driving record and a prior offence of driving while disqualified for which he received a one year sentence.
• 2008 YKCA 5 R. v. Rodrigue
  Bail review. The accused is facing a re-trial ordered by Court of Appeal after the allowing of her appeal in the summer of 2007 from conviction for second degree murder. Bail was denied by the chambers judge in September 2007 substantially on a tertiary ground. A new trial is set to convene in early June 2008. The Court of Appeal concluded that there are concerns about release having regard to both secondary and tertiary grounds and agreeing with the conclusion of the chambers judge that bail ought to be denied.
• 2008 YKCA 7 Cunningham v. Lilles
  Court of Appeal holds that Re Leask v. Cronin applies in Yukon, and allows appeal from order denying certiorari in respect of court’s refusal to allow defence counsel in criminal case to withdraw from the case. General supervision of lawyers’ conduct is the province of the Law Society, not the court.