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Posted Friday, December 20, 2024:
R. v. S.S.M.,
2024 BCCA 417
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2024/12/20
Court of Appeal
The appellant appeals convictions for sexual interference, invitation to sexual touching and sexual assault, all arising from offences he committed against his minor relative over a three-year period. The appellant submits that the trial judge committed multiple errors: misapprehending key features of the evidence; and applying a flawed approach to the assessment of the evidence, including by failing to resolve material conflicts in the evidence, failing to properly apply the W.(D.) framework and reversing the burden of proof, and conducting an improper credibility and reliability analysis.
Held: Appeal dismissed. The trial judge is owed deference regarding her findings of fact, and did not err in her understanding or assessment of the evidence. Read holistically and in context, the trial judge’s reasons demonstrate that she thoroughly engaged with and considered the evidence. She provided detailed explanations for her determinations regarding credibility and reliability, and did not improperly emphasize demeanour in doing so. Further, the trial judge properly applied the W.(D.) framework and did not reverse the burden of proof.
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Posted Thursday, December 19, 2024:
Cuthbert v. British Columbia (Adult Forensic Psychiatric Services),
2024 BCCA 421
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2024/12/17
Court of Appeal
The appellant appeals a decision of the Review Board imposing a custody order. He argues that a conditional discharge is the least onerous and least restrictive disposition. Held: Appeal dismissed. The Review Board’s conclusion that the appellant’s continued detention was necessary was reasonable and supported by the evidence. In arriving at its conclusion, the Board considered all of the appellant’s risk factors, which included, but was not restricted to, the need for an expeditious return to hospital if he discontinued his medications.
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Li v. Lin,
2024 BCCA 419
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2024/12/13
Court of Appeal
Appeal of a judicial review setting aside two orders of the RTB. Held: Appeal dismissed but for reasons different from those of the chambers judge. The RTB hearing involved a breach of procedural fairness. The adjudicator adjourned the hearing stating that the hearing would reconvene and continue. Instead, the adjudicator rendered reasons without hearing further from the parties and before the hearing was completed.
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R. v. Bevan,
2024 BCCA 414
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2024/12/19
Court of Appeal
The appellant challenges his sentence on one narrow ground pertaining to the proper interpretation of s. 161(1)(c) of the Criminal Code. The sentencing judge made an order prohibiting the appellant from “being in the presence” of a person under the age of 16. The appellant argues that this “no presence” condition impermissibly extends the scope of the prohibition contemplated by the Code.
Held: Appeal allowed. While sentencing judges retain broad discretion to craft exceptions to prohibition orders to address the nature and degree of risk posed by an offender, an order under s. 161(1)(c) cannot prohibit a broader range of conduct than what is contemplated by the words used in this provision. A prohibition on “being in the presence of” an underage person is broader than the prohibition on having “any contact”. The order is amended accordingly.
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R. v. S.F.,
2024 BCCA 413
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2024/12/19
Court of Appeal
The appellant S.F. seeks (i) first party disclosure of records said to be in the Crown’s possession, (ii) third party production of records said to be in the Attorney General of Canada’s possession, and (iii) a subpoena for the Minister of Public Safety, all in connection with his appeal from a finding of guilt for the offence of voyeurism. The applications are dismissed. None of the records sought by S.F. are likely to assist in the prosecution of his appeal, and there is no prospect that the Minister of Public Safety would have material evidence to give in connection with S.F.’s appeal.
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Posted Wednesday, December 18, 2024:
1004364 BC Ltd. v. Kelowna (City),
2024 BCCA 418
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2024/12/18
Court of Appeal
The respondent municipality brought proceedings against the appellant corporation, which owns a hotel on Okanagan Lake, seeking injunctive relief. The prior owner of the hotel granted a statutory right of way to the respondent, the terms of which required the owner to maintain a boardwalk on the right of way, and to provide public and City access to it. The respondent brought the underlying proceedings against the appellant to enforce access to the right of way. The appellant counterclaimed, seeking to have the right of way declared invalid because it imposed positive obligations. The trial judge refused to issue the declaration, finding that although parts of the right of way imposed positive obligations that were unenforceable against the appellant, the remainder of the right of way remained valid. The appellant submits that the trial judge erred in his analysis of the right of way instrument. Held: Appeal dismissed. The trial judge did not err in his assessment of the right of way, and the invalidity of the positive covenants contained in the instrument does not preclude the continued enforceability of the remainder of the instrument.
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Posted Tuesday, December 17, 2024:
The Law Society of British Columbia v. Yen,
2024 BCCA 416
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2024/12/17
Court of Appeal
A hearing panel found a lawyer in breach of Law Society Rule 3-60(a)(ii), and guilty of professional misconduct, for failing to record the source and form of funds paid into trust in a book of entry or a compendious record. A review board reversed this finding. The Law Society appeals the decision of the review board. Held: Appeal allowed in part. The review board wrongly interpreted the Rule in concluding that the lawyer did not breach it. She did breach the Rule and, as a result, that part of the citation is restored. This Court has jurisdiction to consider whether the breach rose to the level of professional misconduct (a question of mixed law and fact), and, applying the legal test for professional misconduct correctly, concludes that it did not. Accordingly, that part of the citation is dismissed.
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