R. v. Alpha Manufacturing Inc. et al., 2009 BCCA 443

• Judge: Frankel, Bennett and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 07, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 443;(2009), 277 B.C.A.C. 17 (CA)

R. v. Alpha Mfg. Inc. (2009), 277 B.C.A.C. 17 (CA);

    469 W.A.C. 17

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. DE.003

Regina (respondent) v. Alpha Manufacturing Inc. and Eleonora J. Anderson (appellant)

(CA033638; 2009 BCCA 443)

Indexed As: R. v. Alpha Manufacturing Inc. et al.

British Columbia Court of Appeal

Frankel, Bennett and Garson, JJ.A.

October 9, 2009.

Summary:

The applicants, Alpha Manufacturing Inc. and Anderson, were convicted of depositing waste in an area not covered by the necessary permit, an offence under the Waste Management Act. Alpha Manufacturing was sentenced to a fine of $640,000. Anderson was sentenced to 21 days' imprisonment and a fine of $75,000. The applicants' conviction appeals were dismissed (see [2005] B.C.T.C. 773). Their sentence appeals were allowed only to the extent of setting aside Anderson's term of imprisonment (see [2005] B.C.T.C. 1644). The applicants applied for leave to appeal pursuant to s. 124(1) of the Offence Act on four grounds.

The British Columbia Court of Appeal, per Tysoe, J.A., granted leave on only one ground related to Anderson's conviction. The applicants applied to vary Tysoe, J.A.'s order, seeking to include grounds on which leave was refused.

The British Columbia Court of Appeal dismissed the application.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction (incl. court of competent jurisdiction) - [See Courts - Topic 2004 ].

Civil Rights - Topic 8504

Canadian Charter of Rights and Freedoms - Enforcement - Jurisdiction - [See Courts - Topic 2004 ].

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - The applicants were convicted of an offence under the Waste Management Act - They were fined and one applicant was sentenced to 21 days' imprisonment - Their conviction appeals were dismissed and their sentence appeals were allowed only to the extent of setting aside the term of imprisonment - The applicants applied for leave to appeal pursuant to s. 124(1) of the Offence Act on four grounds - Ground 1(a) alleged an apprehension of bias on the part of the trial judge based on the fact that the charge against the applicants was approved by Crown counsel at a time when the trial judge was working in the same office - Tysoe, J.A., granted leave on one ground only (ground 2) - The applicants applied to vary Tysoe, J.A.'s order - The applicants argued that Tysoe, J.A., erred when he opined that the issue raised by ground 1(a) was a matter of settled law - The British Columbia Court of Appeal dismissed the application - There was no merit to the applicants' contention that an informed, reasonable, and right-minded person, would conclude that the trial judge could not fairly try this case - The court noted that more than five years had passed from when the trial judge was appointed to the bench to when the charges against the applicants came before him - See paragraphs 1 to 26.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Courts - Topic 686 ].

Courts - Topic 695

Judges - Disqualification - Bias - Where judge and counsel associated - [See Courts - Topic 686 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - The applicants were convicted of an offence under the Waste Management Act - They were fined and one applicant was sentenced to 21 days' imprisonment - Their conviction appeals were dismissed and their sentence appeals were allowed only to the extent of setting aside the term of imprisonment - The applicants applied for leave to appeal pursuant to s. 124(1) of the Offence Act on four grounds - Tysoe, J.A., granted leave on only one ground (ground 2) - The applicants applied to vary Tysoe, J.A.'s order - The applicants argued that Tysoe, J.A., erred when he opined that the issue raised by their proposed ground 1(a) (apprehension of bias on the part of the trial judge) was a matter of settled law - The British Columbia Court of Appeal rejected the applicants' argument and dismissed the application - The court also rejected the applicants' alternative argument, namely that the court had jurisdiction to entertain the issue of apparent impartiality as a forum of original jurisdiction for Charter purposes or as part of its inherent jurisdiction - The court stated that "it is important to keep in mind that 'appeals are solely creatures of statute' and that 'there is no inherent jurisdiction in any appeal court' ... It is also important to keep in mind that an appellate court has no free-standing Charter jurisdiction ... What this means, in the context of a summary conviction appeal brought pursuant to s. 124 of the Offence Act, is that if, as occurred here, a judge exercises his or her authority under s. 7(3) of the Court of Appeal Act to limit the grounds of appeal, then, unless that order is varied, the Court only has jurisdiction to deal with the grounds on which leave was granted" - See paragraphs 27 to 33.

Courts - Topic 2101

Jurisdiction - Appellate jurisdiction - General - [See Courts - Topic 2004 ].

Trials - Topic 1211

Summary convictions - Appeals - Leave to appeal - General - [See Courts - Topic 2004 ].

Cases Noticed:

R. v. Tri-M Systems Inc., [2000] B.C.A.C. Uned. 39; 71 C.R.R.(2d) 222; 2000 BCCA 97, refd to. [para. 11].

R. v. Winfield (2009), 79 M.V.R.(5th) 19; 2009 YTCA 9, refd to. [para. 13].

Redpath v. Redpath, [2009] B.C.A.C. Uned. 29; 2009 BCCA 168, refd to. [para. 14].

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 16].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 18].

Taylor Ventures Ltd. (Bankrupt) v. Taylor (2005), 214 B.C.A.C. 7; 353 W.A.C. 7; 49 B.C.L.R.(4th) 134; 2005 BCCA 350, refd to. [para. 18].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 151 D.L.R.(4th) 193, refd to. [para. 19].

R. v. Melnichuk (R.M.) (2004), 200 B.C.A.C. 212; 327 W.A.C. 212; 2004 BCCA 332, consd. [para. 21].

Boardwalk Reit LLP v. Edmonton (City) et al., [2008] 8 W.W.R. 251; 437 A.R. 199; 433 W.A.C. 199; 2008 ABCA 176, consd. [para. 25].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201; 2001 SCC 21, dist. [para. 29].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 30].

R. v. Earle (K.M.) et al. (No. 2) (1993), 36 B.C.A.C. 232; 58 W.A.C. 232; 19 C.R.R.(2d) 185 (C.A.), refd to. [para. 30].

R. v. Lin (P.Y.M.) (1997), 95 B.C.A.C. 73; 154 W.A.C. 73; 117 C.C.C.(3d) 438 (C.A.), refd to. [para. 30].

R. v. Vidulich (1989), 37 B.C.L.R.(2d) 391 (C.A.), refd to. [para. 32].

R. v. S.S.C. (2008), 257 B.C.A.C. 57; 432 W.A.C. 57; 234 C.C.C.(3d) 365; 2008 BCCA 262, refd to. [para. 32].

R. v. Olson (D.T.) (1993), 28 B.C.A.C. 288; 47 W.A.C. 288 (C.A.), consd. [para. 34].

R. v. Ubhi (J.S.) (1996), 81 B.C.A.C. 161; 132 W.A.C. 161 (C.A.), consd. [para. 34].

R. v. Olson (D.T.) (1993), 37 B.C.A.C. 155; 60 W.A.C. 155 (C.A.), refd to. [para. 34].

R. v. Ubhi (J.S.) (No. 2)(1996), 77 B.C.A.C. 19; 126 W.A.C. 19; 109 C.C.C.(3d) 379 (C.A.), refd to. [para. 34].

Statutes Noticed:

Offence Act, R.S.B.C. 1996, c. 338, sect. 124(1) [para. 4].

Authors and Works Noticed:

Canadian Judicial Council, Ethical Principles for Judges (1998), generally [para. 16].

Counsel:

W.A. Pearce, Q.C., for the appellant;

J.B. McKinley and J.A. MacAulay, for the respondent.

This application was heard on October 7, 2009, at Vancouver, B.C., before Frankel, Bennett and Garson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered orally by Frankel, J.A., on October 9, 2009.