ALBERTA LAW REPORTS Sixth Series Reports of Selected Cases from the Courts of Alberta and Appeals

VOLUME 48 (Cited 48 Alta. L.R. (6th))

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THOMSON REUTERS CANADA, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Support 2075 Kennedy Road 1-416-609-3800 (Toronto & International) Toronto, Ontario 1-800-387-5164 (Toll Free Canada & U.S.) M1T 3V4 Fax 1-416-298-5082 (Toronto) Fax 1-877-750-9041 (Toll Free Canada Only) Email [email protected] R. v. Yakimchuk 207

[Indexed as: R. v. Yakimchuk] Her Majesty the Queen (Respondent) and Neil Lee Yakimchuk (Appellant) Alberta Court of Appeal Docket: Calgary Appeal 1401-0095-A 2017 ABCA 101 Frans Slatter, Patricia Rowbotham, Sheilah Martin JJ.A. Heard: November 9, 2016 Judgment: March 31, 2017* Evidence –––– Confessions — Miscellaneous –––– Deceased, whose body was discovered behind wheel of his car in remote location, had been shot in back of head at close range — Accused testified that he was present at shooting, and that he was in front passenger seat of vehicle, was not shooter, was unaware of any plan to shoot deceased, and did not know that shooter was carrying gun — His testimony contradicted two statements given to undercover police and statement given upon arrest, in which he confirmed that he was in vehicle and was not shooter, but confessed to planning murder — Statements were given at end of “Mr. Big” operation targeting accused — Trial judge admitted statements but excerpted out parts of statements that he considered to be prejudicial, and he also warned jury regarding confessions made as result of Mr. Big operation — Jury convicted accused of first-degree murder — Certain Supreme Court of Canada decision set out new framework for assessing admissibility of Mr. Big confessions — Accused appealed conviction — Appeal dismissed — Applica- tion of framework set out in Supreme Court of Canada case confirmed that trial judge did not err in admitting evidence — Crown established on balance of probabilities that probative value of accused’s statements obtained in course of Mr. Big operation outweighed their prejudicial effect — Accused had not established abuse of process. Cases considered: R. c. Laflamme (2015), 2015 QCCA 1517, EYB 2015-256752, 2015 Carswell- Que 8901, 23 C.R. (7th) 137, 2015 CarswellQue 13771 (C.A. Que.) — referred to R. c. Perreault (2015), 2015 QCCA 694, EYB 2015-251193, 2015 CarswellQue 3643, 19 C.R. (7th) 393, [2015] J.Q. No. 3389, 2015 CarswellQue 13423 (C.A. Que.) — considered

* A corrigendum issued by the court on April 6, 2017 has been incorporated herein. 208 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

R. v. Allgood (2015), 2015 SKCA 88, 2015 CarswellSask 461, [2015] S.J. No. 387, 327 C.C.C. (3d) 196, 23 C.R. (7th) 86, [2015] 12 W.W.R. 364, 465 Sask. R. 120, 649 W.A.C. 120 (Sask. C.A.) — referred to R. v. Campeau (2015), 2015 ABCA 210, 2015 CarswellAlta 1094, [2015] A.J. No. 679, [2015] 8 W.W.R. 666, 325 C.C.C. (3d) 141, 18 Alta. L.R. (6th) 180, 602 A.R. 140, 647 W.A.C. 140 (Alta. C.A.) — considered R. v. Hart (2014), 2014 SCC 52, 2014 CSC 52, 2014 CarswellNfld 215, 2014 CarswellNfld 216, [2014] S.C.J. No. 52, [2014] A.C.S. No. 52, 12 C.R. (7th) 221, 375 D.L.R. (4th) 1, 312 C.C.C. (3d) 250, 461 N.R. 1, 1099 A.P.R. 222, 353 Nfld. & P.E.I.R. 222, [2014] 2 S.C.R. 544, 316 C.R.R. (2d) 317 (S.C.C.) — followed R. v. Johnston (2016), 2016 BCCA 3, 2016 CarswellBC 3, [2016] B.C.J. No. 3, 26 C.R. (7th) 147, 381 B.C.A.C. 1, 659 W.A.C. 1, 333 C.C.C. (3d) 555 (B.C. C.A.) — referred to R. v. Ledesma (2014), 2014 ABQB 788, 2014 CarswellAlta 2613, [2014] A.J. No. 1468, 604 A.R. 68 (Alta. Q.B.) — referred to R. v. M. (M.) (2015), 2015 ABQB 692, 2015 CarswellAlta 2177, [2015] A.J. No. 1289 (Alta. Q.B.) — considered R. v. Mack (2014), 2014 SCC 58, 2014 CSC 58, 2014 CarswellAlta 1701, 2014 CarswellAlta 1702, [2014] S.C.J. No. 58, [2014] A.C.S. No. 58, 13 C.R. (7th) 225, 462 N.R. 380, 377 D.L.R. (4th) 412, 315 C.C.C. (3d) 315, [2014] 3 S.C.R. 3, 580 A.R. 41, 620 W.A.C. 41, 319 C.R.R. (2d) 108, 4 Alta. L.R. (6th) 1 (S.C.C.) — considered R. v. R. (N.R.) (2013), 2013 ABQB 288, 2013 CarswellAlta 654, [2013] A.J. No. 471, 78 Alta. L.R. (5th) 98, 283 C.R.R. (2d) 92, 562 A.R. 199 (Alta. Q.B.) — referred to R. v. Randle (2016), 2016 BCCA 125, 2016 CarswellBC 682, [2016] B.C.J. No. 526, 384 B.C.A.C. 243, 663 W.A.C. 243 (B.C. C.A.) — referred to R. v. Streiling (2015), 2015 BCSC 597, 2015 CarswellBC 2140, [2015] B.C.J. No. 1618 (B.C. S.C.) — referred to R. v. Tingle (2015), 2015 SKQB 184, 2015 CarswellSask 410, [2015] S.J. No. 348, 477 Sask. R. 160 (Sask. Q.B.) — referred to R. v. West (2015), 2015 BCCA 379, 2015 CarswellBC 2594, [2015] B.C.J. No. 1943, 23 C.R. (7th) 107, 376 B.C.A.C. 301, 646 W.A.C. 301, 329 C.C.C. (3d) 97 (B.C. C.A.) — considered R. v. Wruck (2016), 2016 ABQB 370, 2016 CarswellAlta 1350, [2016] A.J. No. 725 (Alta. Q.B.) — considered R. v. Yakimchuk (2015), 2015 SKCA 110, 2015 CarswellSask 643, [2015] S.J. No. 554 (Sask. C.A.) — referred to

APPEAL by accused from conviction for first-degree murder.

A. Sanders, for Appellant R. v. Yakimchuk Per curiam 209

B.R. Graff, for Respondent

Per curiam: I. Introduction 1 A jury convicted the appellant of first–degree murder. On December 14, 2008, the body of 22–year old Juan Carlos Dequina was discovered behind the wheel of his car in a remote location on the outskirts of Cal- gary. He had been shot in the back of the head at close range. 2 The appellant testified that he was present at the shooting. He was in the front passenger seat of the vehicle, was not the shooter, was unaware of any plan to shoot Dequina, and did not know that the shooter was carrying a gun. His testimony contradicted two statements given to undercover police and a statement given upon arrest. In those statements he confirmed that he was in the vehicle and was not the shooter, but confessed to planning the murder. The statements were given at the end of a “Mr Big” operation targeting the appellant. 3 The trial judge admitted the statements but excerpted out parts of the statements that he considered to be prejudicial. He also warned the jury regarding confessions made as a result of a Mr Big operation. The trial judge did not have the benefit of the Supreme Court’s decision in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544 (S.C.C.), which had been argued but was under reserve at the time of the trial. Hart decided that statements obtained during a Mr Big operation are presumptively unreliable. The presumption can be overcome if the probative value of the statements outweighs their prejudicial effect. The court established a new test to assess the threshold reliability of this type of evidence. The appellant submits that an analysis of the statements using the Hart framework would result in their exclusion. 4 Our application of the Hart framework confirms that the trial judge did not err in admitting the evidence. We dismiss the appeal.

II. Background 5 The appellant became a suspect early on in the investigation of De- quina’s death. Dequina’s girlfriend was the appellant’s sister–in–law. The police investigation revealed that Dequina had recently obtained a $20,000 loan which he then loaned to the appellant. There was evidence of a bank transfer to the appellant’s bank account. When interviewed by the police, the appellant admitted borrowing money from Dequina but said he had paid part of it back. The bank records did not substantiate 210 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

this repayment. As a result of the loan, the police were initially interested in the appellant but wiretap investigation of the appellant did not result in any further evidence. The police decided to target the appellant in a Mr Big operation.

The Mr Big Operation 6 The police began Operation Copperhead Road in September 2010, approximately 21 months after Dequina’s death. There were 66 so–called ‘scenarios’ between then and January 2011. A scenario could range from a telephone or text message to a fake criminal act. Officer A was selected to make the contact with the appellant. The appellant is of slight build and wiry. Officer A is only slightly taller and not heavy. Officer A was selected to reduce any possible intimidation factor. He was chosen because it was thought he could develop a bond with the appellant which he ultimately did. 7 The first scenario “placed the hook”. The police staged a judicially authorized break–in of the appellant’s vehicle at a mall parking lot. Of- ficer A’s vehicle was parked next to the appellant’s. The windows of both vehicles were smashed and items taken. The appellant got in a car with Officer A to pursue the “thief” and recover the appellant’s stolen property. After a staged traffic stop, Officer A and the appellant caught up to another undercover officer who said he had caught the thief but the thief escaped by spraying him with pepper spray. The other officer gave the appellant back his stolen property. Officer A and the other officer began to discuss a job they were about to do involving gift card fraud at a department store. Because the other officer was covered in pepper spray, he could no longer carry out the job. They suggested that the appellant go in his place. The appellant agreed and was paid $150.00 later that night when he met up with Officer A. The appellant gave Officer A a small bag of cocaine and told him to call if he needed more cocaine or if he had more work. And so, the appellant was recruited. 8 At the time, the appellant was employed at a construction company, but sold drugs on the side to pay his living expenses and support his wife and young daughter. He continued to work for the Mr Big organization, and was paid $150 per job. In November 2011, he began to receive $1000 per week. He socialized regularly with Officer A and the two became friends. In total, the appellant was paid $14,000 over the course of the investigation. R. v. Yakimchuk Per curiam 211

9 The appellant’s work for the Mr Big organization started with more gift card fraud and other similar crimes. The bond between the appellant and Officer A grew. Some of the scenarios were purely social. On the eighteenth scenario, which involved meeting with a fake airline employee who was actually an undercover officer, the appellant took his four–year old daughter with him. 10 As the appellant became more involved in the organization, the scenarios grew in intensity and the assignments grew in complexity. Ini- tially, the tasks involved testing gift cards, photographing and sketching banks and ATMs, and following people. 11 Gradually, the scenarios became rougher and then violent. In Scena- rio 26, violence was introduced. The appellant was tasked with counting the cash on a job collecting money from a reluctant debtor. When the debtor (an undercover officer) became arrogant, Officer A hit him several times. Officer A told the appellant that he (Officer A) was carrying a gun. This was intended to show the appellant that the organization had and would use guns against those outside the organization. 12 Scenario 30 involved greater violence. Two undercover officers staged an invasion of a motel room where a debtor (another undercover officer) was staying. The debtor was assaulted and Officer A pointed a gun in the debtor’s face. The appellant had brought gloves and a baton to this meeting without being asked to do so. He did not participate in the beating but his calm performance and demeanor in the face of violence earned him a salary ($1000 per week) and a place in the Mr Big organization. 13 The next set of scenarios also involved fictitious collections from a debtor. By this time the appellant was also involved in planning. During Scenario 43 Officer A asked the appellant if he would go to Vancouver for work. The appellant hesitated because he was concerned that he might be killed for having miscounted some money in one of the earlier ATM scenarios. Officer A assured him he would not be and that this was not the manner in which the organization dealt with mistakes. 14 Scenarios 51 and 52 involved a member of the organization in Edmonton who was suspected of having alcohol problems and skimming money. The appellant armed himself for this meeting. The member was fired and required to return the keys to his car and condominium. The point of the scenario was to convey that sanctions against gang members were economic and social, but not violent. 212 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

15 In early 2011 Officer A advised the appellant that he (Officer A) might be moved to Seattle and the appellant was being considered as his replacement. The appellant was interested and offered to quit his construction job. This led to Scenario 58 in which another undercover officer said he needed help because he had made a mistake. He was collecting money from a debtor on his own (against the organization’s rules) and got into a fight. He was concerned that the debtor might have died and that the officer had been observed leaving the scene with blood on his clothes. He was concerned about this potential witness who was a cleaner in the building. The point of this scenario was to indicate that despite a breach of the rules, honesty in admitting an error would result in the organization’s help. 16 This led to Scenarios 63, 64 and 65 in Vancouver. In Scenario 63, the appellant and Officer A, along with others planned to “deal with” the cleaner who had witnessed the events described by the undercover officer in Scenario 58. It was intended to be obvious to the appellant that the plan was to kill the cleaner. The appellant raised the possibility of carrying out the killing that very evening. The appellant had a knife that he must have purchased after he arrived in Vancouver as the appellant and Officer A had gone through airport security without problem. The appellant also said he had gloves with him. After the meeting, the appellant and Officer A went to scout out the location where they believed they would find the cleaner. While driving in the area, the appellant saw the cleaner and said they should deal with him then. Officer A deliberately manoeuvred the car into traffic so as to avoid making any contact with the person, and the plan was aborted. The appellant then revealed to Officer A that he had been involved in a previous murder. To Officer A’s surprise it was not Dequina’s murder but rather a murder in Saskatoon a number of years earlier. 17 In Scenario 64 the appellant was told that Mr Big had changed his mind about the cleaner witness in Scenario 63. Rather than killing him, they were just to scare him. Mr Big told the appellant not to carry a weapon. The appellant, Officer A and other undercover officers kid- napped the witness. The appellant’s role was to be the lookout. Officer A hit the witness several times. They drove the victim to a gravel pit and took him outside and “shot” him in the leg with a starter pistol out of the view of the appellant, then returned to the car. The appellant’s demeanour was calm throughout. R. v. Yakimchuk Per curiam 213

18 In Scenario 65 the police issued a news release linking a suspect to the vehicle involved in the Dequina murder. The sketch closely resembled the appellant. This move was intended to stimulate discussion with the appellant about his involvement in the killing. Officer A indicated to the appellant that he was concerned about the appellant’s honesty and whether he would bring “heat” onto the organization. Officer A told the appellant that he was a valuable member of the organization and they would protect him. The appellant agreed that the sketch resembled him. He revealed full details of the death of Dequina, and drew a map of the murder scene. He also discussed the Saskatoon killing. 19 While still in Vancouver, a meeting was set up with Mr Big so that the appellant could explain his involvement. Mr Big offered to help the appellant but also wanted to assess whether the appellant’s position as a suspect put the organization at risk.

The Mr Big Confessions 20 The appellant first confessed to Officer A on January 16, 2011 during Scenario 65. Officer A and the appellant discussed the police news release. The conversation began with a discussion of the relationship between the appellant and Dequina, who had known each other for 12 years and were soon to be brothers–in–law. Officer A asked if Dequina was a loser and the appellant said no but some things “went wrong”. Officer A asked the appellant how many people knew. The appellant replied that two people knew but they were solid. 21 The appellant said he planned the murder a week or two before it happened. He brought in two of his guys; one to shoot and the other to drive the pickup car. Dequina was interested in more involvement in drug trafficking and the appellant told him they were going to meet another guy. He said that the gun was his and he loaded it. He got the gun “just for this”. He had previously gone to the location of the killing. In the appellant’s words: “I planned the route” and “I knew exactly what I was doing”. He said the pickup car they used was stolen by a friend who had access to a car rental location. 22 The appellant then discussed the crime. He said he sat in the passenger seat beside Dequina. Another man sat behind Dequina and shot him. They left and were picked up by a third man. The appellant stated that he got rid of the gun; it was in pieces and only he knew where it was. He said that they left the shell casing behind because there was too much blood. He identified the gun as a .45. He also said that they opened the 214 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

car door so that the windows wouldn’t blow out when the shot was fired. He said that the bullet came out Dequina’s eye. 23 The appellant claimed that they burned the pickup car. He identified Freddy Alex Beltran as the driver of the pickup car. 24 Officer A was particularly interested in how the police could have obtained a sketch of the appellant. He inquired about the presence of traffic cameras and possible witnesses. The appellant told him that he planned a route so that there would be no cameras or witnesses. The appellant said he wore a hoodie pulled down so it was not likely he could be identified in a traffic camera. He described the location in detail and indicated that there were three houses in the general vicinity but the clos- est would have been about a football field away. There were no lights on at the houses. 25 Officer A was also very concerned about DNA left in Dequina’s car. The appellant said he wore gloves that he bought just for this occasion. It was minus 30 degrees C and he was pretty sure there was no possible transfer of DNA in Dequina’s car. 26 The appellant met with Mr Big later the same day. Mr Big expressed concern and stressed the need for people who he could trust in his organization. He was concerned about the photo and whether it could implicate the organization. 27 The appellant gave greater detail about the relationship with Dequina. According to the appellant, he had lent Dequina $40,000 and Dequina had only paid him back $20,000. Dequina was also involved in drug trafficking. The appellant told Dequina that they were going to meet another guy involved in the drug business who could be a contact. The appellant described the killing as he had described it to Officer A. 28 Mr Big asked the appellant what he thought the cops had on him. The appellant mentioned the money transfer and the bullet casing left in the car. He said that they didn’t go back for the casing because of the blood. He said he bought the gun six months before and that he had disposed of the gun in the river. He again said that he burned the pickup car. He said that Dequina did not see this coming. The police wouldn’t be able to tie the appellant to Dequina because he had used his burner phone (used for the appellant’s drug transactions) on the day of the murder. The appellant identified the shooter as Kenny Tingle. R. v. Yakimchuk Per curiam 215

Events After the Mr Big Confessions 29 Between January 2011 when the appellant first confessed to Officer A and Mr Big and the appellant’s arrest on March 16, 2011, the police continued the operation in order to investigate Mr Tingle’s involvement in Dequina’s murder. This part of the investigation was referred to as Operation Copperhead Road 2. On the weekend of March 12, 2011, the appellant and Tingle drove from Penticton to Osoyoos in a vehicle lent to the appellant by the Mr Big organization. Their conversations, including discussion of the murder, were recorded. While the appellant was in the Okanagan, he again met with Mr Big, who asked him about the pickup car. The appellant admitted that he had previously lied about burning the pickup car, and that it was actually a rental car that had been returned. 30 The appellant was arrested on March 16, 2011. His first call was to Officer A. After his arrest, the appellant gave another interview to police. Part way through the interview he was shown a video of one of his previous confessions and was made aware of the existence of the Mr Big operation. He confirmed the earlier confessions and admitted again that he had not burned the pickup vehicle and had lied about this previously.

Evidence at Trial 31 The confessions formed the only evidence linking the appellant to the crime. There was no DNA evidence, no fingerprints, and no footprint match. The gun was never found. 32 The appellant testified at trial. He admitted to being present at De- quina’s murder and identified Tingle as the shooter. Contrary to his Mr Big confessions, he said that he had not planned the killing and that it happened in the spur of the moment. He said that Dequina insulted Tin- gle. The appellant said that he did not know that Tingle had a gun. 33 The appellant testified that he had invited his friend, Tingle, to visit. Tingle lived in Edmonton and although the appellant owned a car, he decided to rent a car for Tingle’s use during the visit. Rather than rent it from a location close to his home or the centre of the city where Tingle would be arriving, he rented it from the airport. He asked Beltran to pick up the rental car. According to the appellant’s testimony, he did not owe Dequina any money but Tingle did. He testified that Dequina was interested in getting into the drug trafficking business, although he acknowledged that Dequina had no previous involvement in any criminal activity. He also thought Dequina was angry with Tingle because Tingle 216 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

hadn’t repaid the money he had lent him. He arranged a meeting with Dequina and Tingle at a pub in south Calgary. 34 On the night of the meeting, the men didn’t talk about the money or the drugs while in the pub because there were too many patrons (in the noisy pub) who might overhear their conversations. Rather than invite Beltran to join them at the pub (which could be easily located) with the rental car, the appellant arranged to meet Beltran near a gas station on the outskirts of Calgary near the Tsuu T’ina reserve. The appellant, Tingle and Dequina got into Dequina’s car and drove to meet Beltran. They stopped near 146 Ave and 53 Street SW near the gas station. Dequina and Tingle had an argument. The appellant was not paying attention to them, as he was looking out the window to see if Beltran was approaching. He heard a shot and turned to find that Tingle had shot Dequina. He testified that he did not know that Tingle had a gun. There was blood all over the appellant’s clothing. They left Dequina and the car. By this time Beltran had approached but the rental car got stuck. They pushed the rental car out of the snow. They told Beltran that the plan had changed and drove him home. The appellant and Tingle then retrieved the appellant’s car from the pub. Tingle drove the rental car back to the airport, and the two returned the car to the rental outlet. They returned to the appellant’s house and the appellant offered to get rid of the gun. 35 The appellant admitted to disposing of the gun. He said that he did not tell the police this story when he was questioned about Dequina’s death because he panicked and did not want to see Tingle sent to jail. 36 With respect to the confessions made to Officer A and Mr Big the appellant testified that he lied because he wanted to make himself look smart. He feared that if he didn’t appear smart, he would be out of the organization and he knew he could make more money working with them. He told the false story of stealing and burning the getaway car to show that he could cover his tracks. He wanted to impress them. He said that he was deceitful so that he could manipulate and trick Officer A and Mr Big into believing that he had orchestrated, planned and carried out the murder. 37 The jury convicted the appellant of first–degree murder.

III. Grounds of Appeal 38 The appellant raises one ground of appeal. He submits that the admissibility of his Mr Big confessions and his post–arrest interview must be reconsidered in light of Hart. Although he originally submitted that this R. v. Yakimchuk Per curiam 217

court could conduct the Hart analysis, at the hearing of the appeal he contended that the case should be returned to the Court of Queen’s Bench. Hart confirmed that trial judges are in the best position to weigh the probative value and prejudicial effect of the evidence, and that a decision to admit or exclude the evidence will ordinarily be afforded deference on appeal: Hart at para 110. 39 Nevertheless, since Hart, the Supreme Court has sent several similar cases back to appellate courts for reconsideration: R. c. Perreault, 2015 QCCA 694 (C.A. Que.) at para 9, (2015), 19 C.R. (7th) 393 (C.A. Que.); R. v. Johnston, 2016 BCCA 3 (B.C. C.A.) at para 5, (2016), 381 B.C.A.C. 1 (B.C. C.A.). Appellate courts have considered the effect of Hart when the trial decision occurred prior to Hart: R. c. Laflamme, 2015 QCCA 1517 (C.A. Que.) at para 15, (2015), 23 C.R. (7th) 137 (C.A. Que.); R. v. West, 2015 BCCA 379 (B.C. C.A.) at para 5, (2015), 376 B.C.A.C. 301 (B.C. C.A.). 40 We conclude that the record is sufficient to enable us to conduct the Hart analysis.

IV. Analysis 1) The Hart Framework 41 In Hart, the Supreme Court set out a new framework for assessing the admissibility of Mr Big confessions. A confession obtained in the course of a Mr Big operation is presumptively inadmissible. This presumption can be overcome if the Crown proves on a balance of probabilities that the probative value of the confession outweighs its prejudicial effect. 42 There are two parts to the framework. The first part involves four steps. First is an examination of the circumstances in which the police elicit a Mr Big confession. The court is guided by a number of relevant factors stated at para 102: These circumstances include — but are not strictly limited to — the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication, and mental health. 218 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

43 The second step is to look to the confession for markers of reliability. The court in Hart, at para 105, states: Trial judge should consider the level of detail contained in the confession, whether it leads to the discovery of additional evidence, whether it identifies any elements of the crime that had not been made public (e.g., the murder weapon), or whether it accurately describes mundane details of the crime the accused would not likely have known had he not committed it (e.g., the presence or absence of particular objects at the crime scene). Confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence. 44 The court can then assess the probative value of the confession given the background circumstances of the operation and the markers of reliability in the confession. 45 The third step is a consideration of the prejudicial effect of a Mr Big confession. The danger here is twofold; the trier of fact may engage in both moral and reasoning prejudice. Moral prejudice refers to the risk that the jury will engage in ‘propensity reasoning’ and convict the accused because he or she did ‘bad things’ like committing other crimes in the course of the Mr Big operation. Reasoning prejudice refers to the risk that the jury will be distracted from the charges before the court because of the amount of time spent discussing the Mr Big operation: Hart at para 106. 46 The fourth and final step in this first part is to weigh the probative value of the confession against its prejudicial effect. 47 The second part of the Hart framework concerns the abuse of process doctrine. In this part of the test, the court recognizes that there must be limits on the power of the state in order to “guard against state conduct that society finds unacceptable, and which threatens the integrity of the justice system”: Hart at para 113. At this stage, the onus is on the accused to establish that an abuse of process has occurred. In particular, the court focuses on the use of physical violence or threats of violence, and operations that prey on the vulnerabilities of an accused (such as mental health problems, addictions, or youthfulness): Hart at paras 116–17. R. v. Yakimchuk Per curiam 219

2) Applying the Hart Framework 48 Each case must be decided according to its own facts, and the balancing of the various factors. No factor is determinative. Even prior to Hart, trial judges were careful to assess the probative value and prejudicial effect of this type of evidence. 49 The Supreme Court used the Hart framework to evaluate the admissibility of Mr Big confessions in Hart as well as its companion case, R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3 (S.C.C.). In Hart, the confessions were inadmissible. The Supreme Court found that the circumstances of the operation cast serious doubt on the confessions. Mr Hart’s life was changed completely by joining the organization, which gave him a ticket out of social isolation and poverty. The police isolated Mr Hart from his wife and became his best friends; he called one of them when he was first arrested. As well, there was a complete lack of confirmatory evidence in Hart. Mr Hart was being investigated for the drowning death of his twin toddler daughters. He gave several confessions that were inconsistent, and the circumstances of the crime meant that it was reasonably possible that it was in fact an accident. The Supreme Court also found that the potential for moral prejudice was significant in Hart, as the appellant bragged about his crimes and said that he would “do anything” for the organization. 50 The circumstances of Mack were quite different, and the court admitted the Mr Big confessions. The inducements offered to Mr Mack were more modest. He was not threatened, and it was made clear that he could decline to say anything about his crime and remain as part of the organization’s “third line”. There was confirmatory evidence, including consistency in his confessions. Mr Mack led undercover officers to the victim’s physical remains (ashes, as the body had been burned). The Supreme Court also noted in Mack that the potential for prejudice was limited as the accused was not involved in any violence, nor did the operation reveal prejudicial facts about his history. Overall, the probative value of the confessions outweighed any prejudice. 51 In the case on appeal, the trial judge was concerned about the evidence. He did the balancing and ultimately admitted the confessions but excluded certain parts. Significantly, the trial judge removed all reference to the Saskatoon murder, and all reference to the appellant’s willingness to participate in the violence which formed part of the scenarios. 220 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

a. Probative value i) Circumstances of the Operation Length of the Operation and Number of Interactions 52 Operation Copper Road lasted six months, including the two months after the appellant’s initial confessions to Officer A and to Mr Big. There were 66 scenarios culminating in the two confessions approximately four months into the operation. 53 Hart involved 63 scenarios over the course of four months. Many subsequent cases where the Mr Big evidence was admitted have been less intensive: Mack (30 scenarios in 4 months); Perreault (41 scenarios in 3.5 months); R. v. Allgood, 2015 SKCA 88, 465 Sask. R. 120 (Sask. C.A.) (43 scenarios in 4 months); West (39 scenarios in 4 months); R. v. M. (M.), 2015 ABQB 692, [2015] A.J. No. 1289 (Alta. Q.B.) (65 scenarios in 8 months). However, in none of these cases was this factor determinative.

The Nature of the Relationship Between the Undercover Officers and the Appellant 54 One goal of every Mr Big operation is to make the target feel comfortable with the undercover officers. The concern is not whether the officers and the accused were friendly, but whether these relationships rose to a level of dependence that preyed on the accused’s social isolation. 55 This factor was very significant in Hart. Mr Hart was socially isolated and had few friends. His life was completely transformed by the friendships he made with the undercover officers, and a deliberate effort was made to separate him from his wife. Subsequent cases expressly distinguish Hart on this basis: Perreault at para 41; West at para 86. In other cases, the court will look to the accused’s social life and ties to family and community: M. (M.) at paras 115–116; R. v. Wruck, 2016 ABQB 370 (Alta. Q.B.) at para 22, [2016] A.J. No. 725 (Alta. Q.B.). 56 A friendship developed between Officer A and the appellant. Indeed, similar to Mr Hart, Officer A was the first person the appellant called when he was arrested. The appellant emphasizes this close relationship and points to the fact that Officer A had given him a gift when the appellant’s son was born, the two exchanged Christmas gifts and the appellant invited Officer A to socialize with the appellant’s friends and family (Of- ficer A did not accept the invitations). However, unlike Hart, who was found to have been isolated from his wife and offered a way out of his R. v. Yakimchuk Per curiam 221

social isolation, the appellant continued his normal relationships with family and friends. The Mr Big organization was portrayed as valuing honesty and trust in the hope that the appellant would feel comfortable disclosing his criminal activities. It was made clear that the appellant was free to leave the organization at any time. In our view, overall there was no dramatic change in lifestyle and no “new world” was opened up or “dependency” created. The relationship never overwhelmed the appellant’s ability to think and act based on his own free will.

Nature and Extent of the Inducements 57 The appellant suggests that the police took advantage of his dire financial condition. Yet, he maintained his job as a carpenter at a construction company. He also testified that he made $30,000 between April and September (prior to the operation) building decks and fences. The appellant also sold drugs earning him approximately $2000 per month. When he was offered a higher position in the Mr Big organization, he said he would be willing to give up his day job. He lived beyond his means and told Officer A that he needed extra money to assist with household expenses. The inducements were primarily financial, starting with payments of $100 to $150 per act and ending with a permanent retainer of $1000 per week. The only other inducement was the suggestion that if Officer A moved to Seattle, the appellant might be promoted to take his place. 58 These inducements fit comfortably into the typical Mr Big operation. All Mr Big operations feature some form of financial inducement, including monetary payments and social activities. Some cases also make it known that continued work for the organization has benefits such as luxury items like cars or condominiums, or big “paydays”. 59 Because inducements are common to Mr Big operations, their mere presence will not make a confession unreliable. The more important question is whether the inducements have become coercive: R. v. Ledesma, 2014 ABQB 788 (Alta. Q.B.) at para 123, (2014), 604 A.R. 68 (Alta. Q.B.). When a Mr Big target is employed, the inducements are considered to have less of an effect: Mack at para 33; M. (M.) at para 86; Wruck at para 22. In Wruck, the accused earned a significant salary as a tradesperson, but was motivated to become involved in the organization as he lived beyond his means. The court determined that this was not sufficient to show that the inducements overwhelmed his will: Wruck at para 22. A number of cases deal with accused persons who are unem- 222 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

ployed or receiving social assistance. This alone is not enough to show that financial or lifestyle inducements are overwhelming or that the accused is “destitute”: Allgood at para 58; West at paras 86 and 100; M. (M.) at para 86; Johnston at para 66.

The Presence of Threats 60 Generally, post–Hart jurisprudence is clear that threats of violence towards the target or towards members of the organization are unacceptable (and may amount to an abuse of process):Laflamme at para 87; Johnston at paras 51–52; M. (M.) at para 175. In Laflamme, the undercover officers were violent towards a collaborator of the organization and threatened to harm one of the target’s friends (another undercover officer) if his final interview was unsatisfactory. The court may also consider whether the scenarios demonstrate that members of the organization who breach the rules are not subject to violence: Allgood at para 13, R. v. Randle, 2016 BCCA 125 (B.C. C.A.), at para 89, (2016), 384 B.C.A.C. 243 (B.C. C.A.). Although violence against members of the organization is unacceptable, expulsion or revocation of financial privi- leges is not considered to be a threat or a form of intimidation. A Mr Big organization may be designed so that the target is given the opportunity to leave or to decline to participate if they do not feel comfortable: Allgood. 61 The appellant was never threatened. Any violence was directed at people outside the organization. The impression that the police intended to convey was that there would not be violence towards members of the organization; hence the scenario where the discipline of a member was to take away his car and condominium. Officer A testified that he believed the appellant understood this. 62 Nor does a review of the scenarios demonstrate that the appellant was intimidated. To the contrary, he brought a weapon with him on two occasions without being asked to arm himself. When Mr Big told him not to bring a weapon, he bragged to Officer A that he would not be intimidated.

The Interrogation by Mr Big 63 The manner in which the interrogation is framed can affect the analysis. In a typical Mr Big operation, the target must confess to the boss or risk losing his position in the organization and its benefits: Hart at para 32; Perreault at para 15; Laflamme at para 86. However, in some opera- R. v. Yakimchuk Per curiam 223

tions, there is an event that triggers a discussion about the crime under investigation, and Mr Big offers to help the problem disappear. Courts have recognized a difference between a “truth verification strategy” (we can help cover this up if we know what happened) and a strategy which might induce false bragging (are you tough enough for our organization?): R. v. Campeau, 2015 ABCA 210, 602 A.R. 140 (Alta. C.A.); M. (M.). The latter involves greater potential for coercion. 64 A review of the transcripts and video of Scenarios 64 and 65 (the confessions) satisfies us that there was no intimidation or coercion. In his confession to Officer A, the appellant tells the story and answers questions in a very businesslike manner. Indeed his demeanour is considera- bly calmer than Officer A’s. Officer A is very concerned that the appellant had been caught on a video camera and the appellant assures him of the remoteness of the location. 65 Mr Big presses the appellant a little harder and places more emphasis on the need for trust in the organization and the importance of revealing all of the circumstances so nothing can come as a surprise. He challenges the story more directly than did Officer A. The appellant’s story about the disposal of the gun is inconsistent, but apart from that, the two versions of events are similar. 66 The confessions themselves were not made under an atmosphere of intimidation. The undercover officers did not threaten the appellant. Dur- ing the two confessions they did not assert that he was lying. The only occasion upon which the appellant was challenged about his version of the events occurred several months after the confessions. When the appellant met Mr Big in the Okanagan, Mr Big told the appellant that he knew that the appellant had not burned the rental car. Even faced with this challenge the appellant was not intimidated. He stated that he had not lied to impress Mr Big but to remain consistent because he had previously lied to Officer A. 67 Importantly, the appellant’s future in the organization was not contin- gent on his confessions. The undercover officers knew the police had the appellant on their radar and wanted to know the true story to see if they could help him. They warned him to tell the truth so that they could help him.

Personality traits of the appellant 68 The main concern here is whether the target was vulnerable. Does he have a personality that makes him particularly vulnerable? This was cer- 224 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

tainly the situation with Mr Hart. In Perreault, the court found that despite receiving social assistance, the target was “intelligent, wilful, determined and had a strong personality” (at para 89). In M. (M.) at para 112, the trial judge found that while the accused was quite young, he was also sophisticated. In West at para 86, the court found that a target with an extensive criminal past and street smarts was less likely to be vulnerable. He would be less likely to be shocked or manipulated by simulated crimes. 69 Our review of the record reveals the appellant as intelligent, analytical and businesslike. There is nothing to suggest he was weak or vulnerable to manipulation.

ii) Markers of Reliability 70 This step of the Hart analysis asks whether there are any “markers of reliability” in the evidence that would add to the probative value of the confession. These include the level of detail contained in the confession, whether the confession leads to the discovery of additional evidence, whether the confession identifies elements of the crime that have not been made public (holdback evidence) and whether the confession accurately describes mundane details of the crime that the accused would not likely know unless he was the perpetrator. 71 The level of detail in a confession must be considered relative to the complexity and nature of the crime: R. v. Streiling, 2015 BCSC 597, [2015] B.C.J. No. 1618 (B.C. S.C.) at para 139. In addition, although an accused’s version of events may correspond with the public version of events, this does not necessarily lessen the probative value of the confession: M. (M.) at para 134; Randle at para 82. 72 The Crown submitted the following six items of holdback evidence: (i) Dequina was killed by a single gunshot wound to the back of the head; (ii) the fatal gunshot wound was fired at skin contact range; (iii) the gun used was a .45 caliber pistol — the expended shell casing was found at the scene; (iv) the gun was never recovered; (v) the shooter was positioned directly behind Dequina; and (vi) the shooter exited the rear driver’s side door and left a unique set of footprints in the fresh snow leading away from the crime scene — the shooter was wearing a certain brand of men’s size 10 running shoes. 73 The appellant submits that the holdback evidence is not a marker of reliability. He admits he was present at the scene of the murder and would have known all of this even if he was not involved in the crime. R. v. Yakimchuk Per curiam 225

He suggests that most of the holdback evidence is equally consistent with the version of events to which he testified; he was there but did not plan the murder. 74 In our view there are aspects of the holdback evidence that support the reliability of the appellant’s confession that he planned the murder. He knew the type of gun, that the shell was left behind and that the gun was never found. This is not the knowledge of an innocent bystander who was in shock. Moreover, the mechanics of the killing are detailed; in particular, the appellant mentioned the fact that Tingle opened the car door before he shot Dequina to avoid blowing out the windows. The appellant also said that they did not retrieve the spent shell casing because of the carnage from the shooting. These are details only an active partici- pant would know and although the appellant may contend that they are equally consistent with his presence at the scene, this evidence stands in stark contrast to the appellant’s testimony at trial. He testified that he did not witness the shooting because he was looking out the window in search of Beltran, yet in his Mr Big confession he said that Tingle had opened the door. He testified that he was in shock afterwards, yet he knew that there was a spent shell casing to be retrieved and there was so much carnage they could not retrieve it. This is unlikely to be a detail that someone who was in complete shock would remember. 75 The appellant’s confessions to Officer A and to Mr Big were for the most part consistent. He admitted to disposing of the weapon, although the details varied somewhat. He told them he burned the rental car, although he later admitted that this was a lie. He had very specific knowledge of the location and the reason for choosing the location, and the two confessions are consistent in this regard. His confessions in relation to his financial dealings with Dequina were not entirely consistent. While there were some inconsistencies in the confessions, these were not so significant as to make the confessions entirely unreliable. 76 It is important to remember that at this stage, we are considering threshold reliability of the confessions. The extent to which inconsistencies in a confession affect its ultimate reliability is a question for the trier of fact, so long as the confession meets the minimum standard required for threshold reliability: Wruck at paras 41–44; West at para 87; Johnston at para 68, Allgood at para 64. 77 Finally, there is one further marker of reliability; knowledge of the Saskatoon murder. In 2004, Isho Hana was shot to death in Saskatoon. The murder remained unsolved until the information revealed in Opera- 226 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

tion Copperhead Road. The appellant and Tingle were charged with the first–degree murder of Hana and tried separately. Tingle was acquitted: R. v. Tingle, 2015 SKQB 184, 477 Sask. R. 160 (Sask. Q.B.) . An appeal of the appellant’s conviction was allowed and a new trial ordered on the ground that the trial judge failed to instruct the jury on manslaughter: see R. v. Yakimchuk, 2015 SKCA 110, [2015] S.J. No. 554 (Sask. C.A.). We do not rely upon the appellant’s culpability as providing a marker of reliability of his confessions to Dequina’s murder. Further, we appreciate that the appellant did not have an opportunity to explain how he knew about the Saskatoon murder. For example, he may have testified that he learned about it from Tingle but embellished his involvement to impress Mr. Big. However, at this stage our concern is with threshold reliability. In our view, his knowledge of the Saskatoon murder lends credence to the version of events he relayed to Officer A and Mr Big.

b. Prejudicial Effect 78 Character evidence is inevitably adduced along with confessions obtained in a Mr Big operation. Its prejudicial effect flows from the context of the Mr Big operation. The evidence includes the accused’s willingness to engage in criminal activity and his actual participation in that activity: Hart at para 145; Allgood at para 49. 79 The appellant argues that the potential for prejudice here was significant, as his statements demonstrated a history of violence, his engage- ment in drug trafficking and other crimes of dishonesty, his familiarity with firearms, his claim to have conducted a prior contract killing, and his links and friendships to other “nefarious” friends. 80 The prejudicial effect of evidence can be tempered through the use of jury instructions and editing: Mack at paras 56 and 61; M. (M.) at para 164. Here, the trial judge was alive to the risk of prejudice. He removed the most prejudicial aspects of the evidence from consideration by the jury. The jury was not told about the appellant’s involvement in the Sas- katoon murder. Reference to the appellant’s eagerness to participate in violent scenarios was deleted from the evidence. 81 The trial judge gave lengthy instructions in relation to evidence of bad character: For instance, the accused spoke about his apparent drug trafficking and his desire to purchase some firearms. He also admitted to stealing tiles with Mr. Dequina and reselling them. The accused also apparently was recruited into this fake criminal organization and appar- R. v. Yakimchuk Per curiam 227

ently committed illegal acts in his mind. His participation in these acts extended to acts which, on their surface, were acts of violence to another person. As I told you earlier in the trial, you are strictly forbidden from using any of his comments or conduct when acting in association with the undercover police officers to conclude that the accused is a bad man, a person of bad character, a person with a propensity to commit crime in general, or any particular type of crime, and therefore more likely than not to have committed the offence alleged in the Indict- ment. That chain of reasoning is forbidden to you. You must obey this instruction on the law. You have heard that the accused took certain action to evade paying income tax and defrauding the Saskatchewan government. You have heard the accused speak of these bad acts and other bad acts when he testified before you at the trial. Evidence of any bad acts by the accused, apart from the alleged against him in the Indictment, be those bad acts, involvement with drugs or other illegal activity, or joining in what you may conclude the accused thought were the criminal activities of “The Gang”, the undercover officers or his signifying a willingness to perhaps commit offences never actually undertaken, even in the pretend world the police had drawn him into or any other bad acts spoken of, committed or contemplated by the accused must not be the platform for the forbidden chain of reasoning I have told you about. You must obey that order. 82 The trial judge also instructed the jury about the dangers of reliance upon evidence obtained in Mr Big operations. 83 No ground of appeal is raised in relation to the trial judge’s instruction to the jury.

c. Probative Value versus Prejudicial Effect 84 There is considerable probative value in the Mr Big statements. The appellant’s confessions to planning Dequina’s murder, rather than merely being present, increased his jeopardy from the other possible verdicts upon which the jury was charged (acquittal, manslaughter, second degree murder) to first–degree murder. Indeed without the Mr Big statements there would have been nothing linking the appellant to the murder. 85 There is the potential for prejudice. However, we are satisfied that the trial judge’s exclusion of the most prejudicial evidence, his instructions limiting the use of other character evidence and his warning regarding 228 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

the use of this type of evidence adequately reduced the risk of moral and reasoning prejudice. 86 In conclusion, considering all of the Hart factors, the appellant’s confessions made in the context of the Mr Big operation meet the standard of threshold reliability. The Crown has met its burden of rebutting the presumption.

Abuse of Process 87 We must now consider whether Operation Copperhead Road was an abuse of process. A typical Mr Big operation is not in and of itself an abuse of process. In assessing whether there has been an abuse of process, courts focus on two elements: the use of violence and the vulnerability of the target. 88 Mr. Big operations are used to investigate the most serious crimes. As violence forms a part of those crimes, some appearance of violence is created in the Mr. Big scenarios to induce the target to talk about his past violent acts. Allowing some violence creates an atmosphere where the target believes he is free to discuss his or her past involvement in similar acts: Johnston at para 51; West at para 99. 89 Where violence is directed towards the target or towards members of the organization, there is a strong likelihood of abuse of process: Laflamme at paras 84, 87. Some courts have concluded where violence is directed at outsiders that there is less likelihood of an abuse of process: Allgood at para 13; Randle at paras 88–89. 90 The central issue is whether the Mr. Big confession is reliable. This depends on whether the will of the target has been overcome by any suggestion of violence. An important factor is that no violence be directed at the target, directly or by implication. 91 A typical Mr Big operation, which necessarily includes some incen- tives, will not be so exploitative that it constitutes an abuse of process. Something more is required: Allgood at para 67; West at para 100. For example, the target may have mental health or substance abuse issues, or the target may be very young: R. v. R. (N.R.), 2013 ABQB 288, 562 A.R. 199 (Alta. Q.B.). 92 The appellant submits that the use of violence in the scenarios ought to persuade us that this operation was an abuse of process. There were six scenarios involving the use of violence. This ranged from the appellant being present while Officer A left a threatening voicemail, to his presence at a debt collection where the debtor was “beat up”, to the kid- R. v. Yakimchuk Per curiam 229

napping where he heard (but did not see) a witness being “shot” in the leg. 93 None of the violence was targeted at the appellant or at a member of the organization. Indeed, in Scenario 43, Officer A assured the appellant that this was not the way that the organization dealt with its members and that mistakes were tolerated. In Scenario 52, a member of the organization who was caught skimming money, was dismissed from the organization but not threatened with violence. Importantly, the violence did not appear to shock or intimidate the appellant. Indeed, he brought weapons to scenarios without being asked. 94 We have earlier commented on possible vulnerability of the appellant. He was not vulnerable. To the contrary, he is intelligent, articulate and street smart. 95 We find no abuse of process in the manner in which Operation Cop- per Road was conducted.

V. Conclusion 96 The Crown has established on a balance of probabilities that the probative value of the appellant’s statements obtained in the course of the Mr Big operation outweighs their prejudicial effect. The appellant has not established an abuse of process. Accordingly, the statements are admissible, and the trial judge did not err in admitting them into evidence. The appeal is dismissed. Appeal dismissed. 230 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

[Indexed as: R. v. Yellowknee] Her Majesty the Queen (Respondent) and Gregory Roger Yellowknee (Appellant) Alberta Court of Appeal Docket: Edmonton Appeal 1603-0215-A 2017 ABCA 60 Patricia Rowbotham, Thomas W. Wakeling, Frederica Schutz JJ.A. Heard: January 17, 2017 Judgment: February 14, 2017 Criminal law –––– Offences — Arson — General offence — Sentencing — Adult offenders –––– Accused pleaded guilty to arson, mischief, and breaches of recognizance — Accused was Aboriginal man — Accused was sentenced globally to 12 months imprisonment, followed by 12 months probation — Ac- cused claimed that sentencing judge did not take into account Gladue factors — Accused claimed that sentence was unfit — Accused appealed from sentence — Appeal dismissed — Arson committed by accused was in more serious range, destroying multi-family home — Starting point for sentencing was in 4-year range — Aggravating factors of accused’s use of alcohol and breach of undertaking added time to sentence — Guilty plea was main mitigating factor, with rehabilitation efforts and Gladue factors as lesser mitigating factor. Criminal law –––– Sentencing — Principles — Restorative justice — Ab- original offenders –––– Accused pleaded guilty to arson, mischief, and breaches of recognizance — Accused was Aboriginal man — Accused was sentenced globally to 12 months imprisonment, followed by 12 months probation — Ac- cused claimed that sentencing judge did not take into account Gladue factors — Accused claimed that sentence was unfit — Accused appealed from sentence — Appeal dismissed — Fit sentence would actually have been in 32-month range — Sentencing judge did not err in consideration of factors, including Gladue factors — Sentencing judge was alert to accused’s upbringing, and role that it appeared to play in accused’s alcoholism — Reasons were somewhat brief, but were adequate to set out basis for sentence — Intermittent sentence was not reasonable sentencing option for crime of this seriousness. Cases considered by Patricia Rowbotham, Frederica Schutz JJ.A.: R. c. Lacasse (2015), 2015 SCC 64, 2015 CSC 64, 2015 CarswellQue 11715, 2015 CarswellQue 11716, [2015] S.C.J. No. 64, [2015] A.C.S. No. 64, 86 M.V.R. (6th) 1, 24 C.R. (7th) 225, (sub nom. R. v. Lacasse) 478 N.R. 319, R. v. Yellowknee 231

[2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450, 396 D.L.R. (4th) 214 (S.C.C.) — referred to R. v. M. (C.A.) (1996), 46 C.R. (4th) 269, 194 N.R. 321, 105 C.C.C. (3d) 327, 73 B.C.A.C. 81, 120 W.A.C. 81, [1996] 1 S.C.R. 500, 1996 CarswellBC 1000, 1996 CarswellBC 1000F, [1996] S.C.J. No. 28, EYB 1996-67066 (S.C.C.) — followed

Cases considered by Thomas W. Wakeling J.A.: Baldhead, Re (1966), 48 C.R. 228, 55 W.W.R. 757, [1966] 4 C.C.C. 183, 1966 CarswellSask 10 (Sask. C.A.) — considered Boulton v. R. (2014), [2014] VSCA 342 (Australia Vic. C.A.) — considered Gall v. United States (2007), 552 U.S. 38 (U.S. Sup. Ct.) — considered Hessell v. R. (2010), [2010] NZSC 135, [2011] 1 N.Z.L.R. 607 (New Zealand S.C.) — considered Latoudis v. Casey (1990), 170 C.L.R. 534, [1990] H.C.A. 59 (Australia H.C.) — considered Leeth v. Commonwealth (1992), 174 C.L.R. 455, [1992] H.C.A. 29 (Australia H.C.) — considered Markarian v. R. (2005), [2005] H.C.A. 25, 228 C.L.R. 357, 215 A.L.R. 213 (Australia H.C.) — considered Norbis v. Norbis (1986), 161 C.L.R. 513 (Australia H.C.) — considered Pillar Resource Services Inc. v. PrimeWest Energy Inc. (2017), 2017 ABCA 19, 2017 CarswellAlta 67 (Alta. C.A.) — considered R. c. Lacasse (2015), 2015 SCC 64, 2015 CSC 64, 2015 CarswellQue 11715, 2015 CarswellQue 11716, [2015] S.C.J. No. 64, [2015] A.C.S. No. 64, 86 M.V.R. (6th) 1, 24 C.R. (7th) 225, (sub nom. R. v. Lacasse) 478 N.R. 319, [2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450, 396 D.L.R. (4th) 214 (S.C.C.) — referred to R. v. Allen (2014), 2014 NWTTC 7, 2014 CarswellNWT 14, [2014] N.W.T.J. No. 14 (N.W.T. Terr. Ct.) — considered R. v. Anthony-Cook (2016), 2016 SCC 43, 2016 CSC 43, 2016 CarswellBC 2929, 2016 CarswellBC 2930, [2016] S.C.J. No. 43, [2016] A.C.S. No. 43, 488 N.R. 289, 32 C.R. (7th) 1, 342 C.C.C. (3d) 1, 404 D.L.R. (4th) 238 (S.C.C.) — considered R. v. Aramah (1982), 76 Cr. App. R. 190 (Eng. C.A.) — considered R. v. Arcand (2010), 2010 ABCA 363, 2010 CarswellAlta 2364, [2010] A.J. No. 1383, 264 C.C.C. (3d) 134, 40 Alta. L.R. (5th) 199, [2011] 7 W.W.R. 209, 83 C.R. (6th) 199, (sub nom. R. v. A. (J.L.M.)) 499 A.R. 1, (sub nom. R. v. A. (J.L.M.)) 514 W.A.C. 1 (Alta. C.A.) — considered R. v. Bain (2005), 2005 ABPC 101, 2005 CarswellAlta 636, 377 A.R. 120, [2005] A.J. No. 537 (Alta. Prov. Ct.) — considered R. v. Beaulieu (2009), 2009 NWTSC 9, 2009 CarswellNWT 12 (N.W.T. S.C.) — considered 232 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

R. v. Beckstrom (2005), 2005 ABPC 196, 2005 CarswellAlta 1181, [2005] A.J. No. 1060 (Alta. Prov. Ct.) — considered R. v. Bennight (2012), 2012 BCCA 461, 2012 CarswellBC 3800, [2012] B.C.J. No. 2546, 329 B.C.A.C. 250, 560 W.A.C. 250 (B.C. C.A.) — considered R. v. Biancofiore (1997), 1997 CarswellOnt 3218, 29 M.V.R. (3d) 90, 119 C.C.C. (3d) 344, 35 O.R. (3d) 782, 103 O.A.C. 292, 10 C.R. (5th) 200, [1997] O.J. No. 3865 (Ont. C.A.) — considered R. v. Billam (1986), [1986] 1 W.L.R. 349, [1986] 1 All E.R. 985, 82 Cr. App. R. 347, 8 Cr. App. R. (S.) 48, [1986] Crim. L.R. 347 (Eng. C.A.) — considered R. v. Blackshaw (2011), [2011] EWCA Crim 2312, [2012] 1 W.L.R. 1126 (Eng. C.A.) — considered R. v. Bright (2008), [2008] EWCA Crim 462, [2008] 2 Cr. App. R. (S.) 578 (Eng. C.A.) — considered R. v. Buffrey (1992), 14 Cr. App. R. (S.) 511 (Eng. & Wales C.A. (Crm.)) — considered R. v. Butt (2006), [2006] 2 Cr. App. R. (S.) 59, [2006] EWCA Crim 47 (Eng. & Wales C.A. (Crm.)) — considered R. v. Caines (1981), 35 Nfld. & P.E.I.R. 446, 1981 CarswellNfld 181 (Nfld. C.A.) — considered R. v. Chanalquay (2015), 2015 SKCA 141, 2015 CarswellSask 795, [2015] S.J. No. 688, [2016] 4 W.W.R. 242, 26 C.R. (7th) 276, 472 Sask. R. 110, 658 W.A.C. 110 (Sask. C.A.) — considered R. v. Clifford (2015), 2015 BCSC 875, 2015 CarswellBC 1419, [2015] B.C.J. No. 1059 (B.C. S.C.) — considered R. v. Connor (1957), 118 C.C.C. 237, 1957 CarswellOnt 141 (Ont. C.A.) — considered R. v. Cootes (2011), 2011 BCCA 398, 2011 CarswellBC 2602, [2011] B.C.J. No. 1890, 311 B.C.A.C. 183, 529 W.A.C. 183 (B.C. C.A.) — referred to R. v. Coupal (2010), 2010 ABQB 229, 2010 CarswellAlta 648, 94 M.V.R. (5th) 228, [2010] A.J. No. 392, 488 A.R. 139 (Alta. Q.B.) — considered R. v. D. (S.) (2002), 2002 NFCA 18, 2002 CarswellNfld 78, 1 C.R. (6th) 5, 164 C.C.C. (3d) 1, 211 Nfld. & P.E.I.R. 157, 633 A.P.R. 157, [2002] N.J. No. 79 (Nfld. C.A.) — referred to R. v. Day (2013), 2013 BCCA 172, 2013 CarswellBC 985, [2013] B.C.J. No. 781, 336 B.C.A.C. 224, 574 W.A.C. 224 (B.C. C.A.) — considered R. v. Deen (1997), 93 B.C.A.C. 53, 151 W.A.C. 53, 1997 CarswellBC 1343 (B.C. C.A.) — considered R. v. Delorme (2017), 2017 SKCA 3, 2017 CarswellSask 6 (Sask. C.A.) — considered R. v. Deren (2017), 2017 ABCA 23, 2017 CarswellAlta 45 (Alta. C.A.) — considered R. v. Diebel (2007), 2007 ABCA 418, 2007 CarswellAlta 1732, 415 W.A.C. 377, 422 A.R. 377, [2007] A.J. No. 1431 (Alta. C.A.) — considered R. v. Yellowknee 233

R. v. Elliott (1981), 35 Nfld. & P.E.I.R. 49, 99 A.P.R. 49, 1981 CarswellNfld 42 (Nfld. C.A.) — considered R. v. Eng (2000), 2000 BCCA 31, 2000 CarswellBC 278, 137 B.C.A.C. 163, 223 W.A.C. 163, [2000] B.C.J. No. 295 (B.C. C.A.) — considered R. v. Evans (2014), 2014 ABCA 339, 2014 CarswellAlta 1874, [2014] A.J. No. 1133, 316 C.C.C. (3d) 437, 584 A.R. 263, 623 W.A.C. 263, 8 Alta. L.R. (6th) 331 (Alta. C.A.) — considered R. v. Fattah (2006), 2006 ABQB 178, 2006 CarswellAlta 268, 393 A.R. 369 (Alta. Q.B.) — considered R. v. Fewer (2004), 2004 CarswellNfld 389, [2004] N.J. No. 433 (N.L. Prov. Ct.) — considered R. v. Fouquet (2005), 2005 ABQB 673, 2005 CarswellAlta 1260 (Alta. Q.B.) — considered R. v. Gladue (1999), [1999] S.C.J. No. 19, 1999 CarswellBC 778, 1999 Car- swellBC 779, 133 C.C.C. (3d) 385, 171 D.L.R. (4th) 385, [1999] 2 C.N.L.R. 252, 23 C.R. (5th) 197, 238 N.R. 1, [1999] 1 S.C.R. 688, 121 B.C.A.C. 161, 198 W.A.C. 161, [1999] A.C.S. No. 19 (S.C.C.) — followed R. v. Griffiths (1977), 137 C.L.R. 293 (Australia H.C.) — considered R. v. H. (K.) (1994), 146 N.B.R. (2d) 372, 374 A.P.R. 372, 1994 CarswellNB 211, [1994] N.B.J. No. 196 (N.B. C.A.) — considered R. v. H. (K.S.) (2015), 2015 ABCA 370, 2015 CarswellAlta 2173, [2015] A.J. No. 1283, 609 A.R. 99, 656 W.A.C. 99, [2016] 5 W.W.R. 700, 31 Alta. L.R. (6th) 243 (Alta. C.A.) — considered R. v. Hili (2010), [2010] H.C.A. 45, 242 C.L.R. 520 (Australia H.C.) — considered R. v. Hutchinson (2015), [2015] VSCA 115 (Australia Vic. Sup. Ct.) — considered R. v. Ipeelee (2012), 2012 SCC 13, 2012 CarswellOnt 4375, 2012 CarswellOnt 4376, 91 C.R. (6th) 1, 280 C.C.C. (3d) 265, [2012] 2 C.N.L.R. 218, 428 N.R. 1, 288 O.A.C. 224, [2012] S.C.J. No. 13, 318 B.C.A.C. 1, [2012] 1 S.C.R. 433, 541 W.A.C. 1, 113 O.R. (3d) 320 (note) (S.C.C.) — followed R. v. Jandrew (2014), 2014 BCPC 317, 2014 CarswellBC 4027, [2014] B.C.J. No. 3280 (B.C. Prov. Ct.) — considered R. v. Johnas (1982), 32 C.R. (3d) 1, 2 C.C.C. (3d) 490, 41 A.R. 183, 1982 CarswellAlta 299, [1982] A.J. No. 615, 1982 ABCA 331 (Alta. C.A.) — considered R. v. Jurisic (1998), 45 N.S.W.L.R. 209, [1998] NSWSC 423 (New South Wales S.C.) — considered R. v. Keber (2005), 2005 BCCA 543, 2005 CarswellBC 2719, 218 B.C.A.C. 125, 359 W.A.C. 125, [2005] B.C.J. No. 2475 (B.C. C.A.) — considered R. v. Kelly (October 26, 2000), Doc. 107900-02DC2, 108699-01, [2000] B.C.J. No. 2381 (B.C. Prov. Ct.) — considered 234 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

R. v. Kummer (2011), 2011 ONCA 39, 2011 CarswellOnt 282, [2011] O.J. No. 234, 103 O.R. (3d) 641, (sub nom. R. c. Kummer) 103 O.R. (3d) 649, 5 M.V.R. (6th) 161, 266 C.C.C. (3d) 32, 273 O.A.C. 378, 83 C.R. (6th) 379 (Ont. C.A.) — considered R. v. Laberge (1995), 165 A.R. 375, 89 W.A.C. 375, 1995 CarswellAlta 556, [1995] A.J. No. 434, 1995 ABCA 196 (Alta. C.A.) — considered R. v. Laboucane (2016), 2016 ABCA 176, 2016 CarswellAlta 1072, [2016] A.J. No. 593, 337 C.C.C. (3d) 445, 38 Alta. L.R. (6th) 275, [2016] 12 W.W.R. 34 (Alta. C.A.) — followed R. v. Lapointe (2010), 2010 NBCA 63, 2010 CarswellNB 429, 2010 Car- swellNB 430, 260 C.C.C. (3d) 528, 363 N.B.R. (2d) 129, 936 A.P.R. 129 (N.B. C.A.) — considered R. v. Lyons (1987), 80 N.R. 161, [1987] 2 S.C.R. 309, 44 D.L.R. (4th) 193, 82 N.S.R. (2d) 271, 37 C.C.C. (3d) 1, 61 C.R. (3d) 1, 32 C.R.R. 41, 207 A.P.R. 271, 1987 CarswellNS 41, 1987 CarswellNS 342, [1987] S.C.J. No. 62, EYB 1987-67386 (S.C.C.) — considered R. v. M. (A.) (2010), [2010] 2 N.Z.L.R. 750, [2010] NZCA 114 (New Zealand C.A.) — considered R. v. M. (C.P.) (2009), 2009 ABPC 58, 2009 CarswellAlta 333, 465 A.R. 385, [2009] A.J. No. 247 (Alta. Prov. Ct.) — considered R. v. M. (T.E.) (1997), 1997 CarswellAlta 213, (sub nom. R. v. McDonnell) 210 N.R. 241, (sub nom. R. v. McDonnell) 114 C.C.C. (3d) 436, (sub nom. R. v. McDonnell) 145 D.L.R. (4th) 577, (sub nom. R. v. McDonnell) 196 A.R. 321, (sub nom. R. v. McDonnell) 141 W.A.C. 321, 49 Alta. L.R. (3d) 111, (sub nom. R. v. McDonnell) [1997] 1 S.C.R. 948, (sub nom. R. v. McDon- nell) [1997] S.C.J. No. 42, 6 C.R. (5th) 231, [1997] 7 W.W.R. 44, (sub nom. R. v. McDonnell) 43 C.R.R. (2d) 189, 1997 CarswellAlta 214 (S.C.C.) — considered R. v. Ma (2003), 2003 ABCA 220, 2003 CarswellAlta 1018, 330 A.R. 142, 299 W.A.C. 142, 177 C.C.C. (3d) 535, 23 Alta. L.R. (4th) 14, [2003] A.J. No. 901 (Alta. C.A.) — considered R. v. McLaughlin (2003), 2003 ABQB 338, 2003 CarswellAlta 514, [2003] A.J. No. 473, 337 A.R. 158 (Alta. Q.B.) — considered R. v. Meer (2011), 2011 ABQB 46, 2011 CarswellAlta 106, [2011] A.J. No. 88, 507 A.R. 365 (Alta. Q.B.) — considered R. v. Meer (2016), 2016 ABCA 368, 2016 CarswellAlta 2239 (Alta. C.A.) — considered R. v. Mirzakhalili (2009), 2009 ONCA 905, 2009 CarswellOnt 8006, 257 O.A.C. 27, [2009] O.J. No. 5464 (Ont. C.A.) — considered R. v. Morrissette (1970), 75 W.W.R. 644, 1 C.C.C. (2d) 307, 12 C.R.N.S. 392, 13 Crim. L.Q. 268, 1970 CarswellSask 117, [1970] S.J. No. 269 (Sask. C.A.) — considered R. v. Yellowknee 235

R. v. Murphy (2014), 2014 ABCA 409, 2014 CarswellAlta 2170, [2014] A.J. No. 1338, 317 C.C.C. (3d) 314, [2015] 4 W.W.R. 695, 593 A.R. 60, 637 W.A.C. 60, 10 Alta. L.R. (6th) 194 (Alta. C.A.) — considered R. v. Nasogaluak (2010), 2010 SCC 6, 2010 CarswellAlta 268, 2010 Carswell- Alta 269, 90 M.V.R. (5th) 1, 251 C.C.C. (3d) 293, [2010] 4 W.W.R. 1, 72 C.R. (6th) 1, [2010] S.C.J. No. 6, 469 A.R. 395 (note), 470 W.A.C. 395 (note), 315 D.L.R. (4th) 193, 19 Alta. L.R. (5th) 1, 398 N.R. 107, 474 A.R. 88, 479 W.A.C. 88, [2010] 1 S.C.R. 206, 206 C.R.R. 100 (S.C.C.) — considered R. v. Nur (2015), 2015 SCC 15, 2015 CSC 15, 2015 CarswellOnt 5038, 2015 CarswellOnt 5039, [2015] S.C.J. No. 15, [2015] A.C.S. No. 15, 469 N.R. 1, 18 C.R. (7th) 227, 322 C.C.C. (3d) 149, 385 D.L.R. (4th) 1, 332 O.A.C. 208, [2015] 1 S.C.R. 773, 332 C.R.R. (2d) 128, 132 O.R. (3d) 719 (note) (S.C.C.) — considered R. v. Okimaw (2016), 2016 ABCA 246, 2016 CarswellAlta 1537, [2016] A.J. No. 842, 90 C.P.C. (7th) 235, 340 C.C.C. (3d) 225, 31 C.R. (7th) 377, [2017] 1 W.W.R. 543 (Alta. C.A.) — considered R. v. Ostertag (2000), 2000 ABCA 232, 2000 CarswellAlta 860, 35 C.R. (5th) 350, [2000] A.J. No. 965, [2000] 9 W.W.R. 592, 83 Alta. L.R. (3d) 20, 266 A.R. 57, 228 W.A.C. 57 (Alta. C.A.) — referred to R. v. Rahime (2001), 2001 ABCA 203, 2001 CarswellAlta 1019, 156 C.C.C. (3d) 349, [2001] 10 W.W.R. 428, [2001] A.J. No. 988, 286 A.R. 377, 253 W.A.C. 377, 95 Alta. L.R. (3d) 237 (Alta. C.A.) — considered R. v. Rossi (2016), 2016 ABCA 43, 2016 CarswellAlta 199, [2016] A.J. No. 158, 612 A.R. 183, 662 W.A.C. 183, 95 M.V.R. (6th) 196, 34 Alta. L.R. (6th) 255 (Alta. C.A.) — referred to R. v. Rowsell (2002), 2002 CarswellNfld 71, 210 Nfld. & P.E.I.R. 226, 630 A.P.R. 226, [2002] N.J. No. 73 (Nfld. T.D.) — considered R. v. Ryan (2015), 2015 ABCA 286, 2015 CarswellAlta 1664, [2015] A.J. No. 977, 329 C.C.C. (3d) 285, [2016] 2 W.W.R. 437, 607 A.R. 47, 653 W.A.C. 47 (Alta. C.A.) — considered R. v. S. (D.C.) (2000), 2000 CarswellOnt 840, 47 O.R. (3d) 612, 131 O.A.C. 396, [2000] O.J. No. 885 (Ont. C.A.) — considered R. v. S. (W.B.) (1992), 73 C.C.C. (3d) 530, (sub nom. R. v. P. (M.)) 127 A.R. 65, 20 W.A.C. 65, 15 C.R. (4th) 324, 1992 CarswellAlta 274, (sub nom. R. v. W.B.S.) [1992] A.J. No. 601 (Alta. C.A.) — considered R. v. Saeed (2004), 2004 ABCA 384, 2004 CarswellAlta 1584, 357 A.R. 238, 334 W.A.C. 238, [2004] A.J. No. 1350 (Alta. C.A.) — considered R. v. Sandercock (1985), 40 Alta. L.R. (2d) 265, 62 A.R. 382, 48 C.R. (3d) 154, 22 C.C.C. (3d) 79, [1986] 1 W.W.R. 291, 1985 CarswellAlta 190, [1985] A.J. No. 817, 1985 ABCA 218 (Alta. C.A.) — considered R. v. Sheppard (2002), 2002 SCC 26, 2002 CarswellNfld 74, 2002 CarswellNfld 75, [2002] S.C.J. No. 30, 162 C.C.C. (3d) 298, 210 D.L.R. (4th) 608, 50 236 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

C.R. (5th) 68, 284 N.R. 342, 211 Nfld. & P.E.I.R. 50, 633 A.P.R. 50, [2002] 1 S.C.R. 869, REJB 2002-29516 (S.C.C.) — followed R. v. Shular (2014), 2014 ABCA 241, 2014 CarswellAlta 1237, [2014] A.J. No. 784, 67 M.V.R. (6th) 208, 577 A.R. 294, 613 W.A.C. 294 (Alta. C.A.) — considered R. v. Spina (1997), 200 A.R. 133, 146 W.A.C. 133, 1997 CarswellAlta 510, [1997] A.J. No. 645, 1997 ABCA 235 (Alta. C.A.) — considered R. v. Stone (1999), 1999 CarswellBC 1064, 1999 CarswellBC 1065, [1999] S.C.J. No. 27, 24 C.R. (5th) 1, 239 N.R. 201, 63 C.R.R. (2d) 43, 173 D.L.R. (4th) 66, 134 C.C.C. (3d) 353, 123 B.C.A.C. 1, 201 W.A.C. 1, [1999] 2 S.C.R. 290, REJB 1999-12568 (S.C.C.) — considered R. v. T. (R.P.) (1983), [1983] 5 W.W.R. 558, 7 C.C.C. (3d) 109, 46 A.R. 87, 1983 CarswellAlta 301, 1983 ABCA 175 (Alta. C.A.) — considered R. v. Tatton (2014), 2014 ONCA 273, 2014 CarswellOnt 4373, [2014] O.J. No. 1683, 10 C.R. (7th) 108, 310 C.C.C. (3d) 309, 319 O.A.C. 10 (Ont. C.A.) — referred to R. v. Thurston (1994), 149 A.R. 226, 63 W.A.C. 226, 1994 CarswellAlta 500, 1994 ABCA 179 (Alta. C.A.) — considered R. v. V. (M.) (1998), 1998 CarswellOnt 732, 123 C.C.C. (3d) 138, 106 O.A.C. 386, 39 O.R. (3d) 217, [1998] O.J. No. 712 (Ont. C.A.) — considered R. v. Vigon (2016), 2016 ABCA 75, 2016 CarswellAlta 506, [2016] A.J. No. 282, 612 A.R. 292, 662 W.A.C. 292 (Alta. C.A.) — considered R. v. Walker (2007), 2007 BCSC 122, 2007 CarswellBC 144, [2007] B.C.J. No. 146 (B.C. S.C.) — considered R. v. Wallace (1999), [1999] 3 N.Z.L.R. 159 (New Zealand C.A.) — considered R. v. Wood (1988), 1988 CarswellBC 1015, [1988] B.C.J. No. 1985 (B.C. C.A.) — considered Rita v. United States (2007), 551 U.S. 338 (U.S. Sup. Ct.) — considered Wong v. R. (2001), 76 A.L.J.R. 79, [2001] H.C.A. 64, 185 A.L.R. 233, 207 C.L.R. 584 (Australia H.C.) — considered Statutes considered by Patricia Rowbotham, Frederica Schutz JJ.A.: Criminal Code, R.S.C. 1985, c. C-46 s. 718.2(e) [en. 1995, c. 22, s. 6] — considered

Statutes considered by Thomas W. Wakeling J.A.: Coroners and Justice Act 2009, 2009, c. 25 s. 118 — considered s. 125(1) — considered Crimes (Sentencing Procedure) Act 1999, No. 92 (NSW), 1999 ss. 36-42A — referred to Crimes Act 1900, No. 40 (NSW), 1900 s. 195(1)(b) — considered R. v. Yellowknee 237

Crimes and Criminal Procedure Code, 18 U.S.C. Generally — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 47(1) — considered s. 229(a)(ii) — referred to s. 231 — considered s. 235(1) — considered s. 255(2.1) [en. 2008, c. 6, s. 21(3)] — referred to s. 433 — considered s. 434 [rep. & sub. 1990, c. 15, s. 1] — considered s. 434.1 [en. 1990, c. 15, s. 1] — considered s. 435 — considered s. 675(1)(b) — considered s. 687 — considered s. 687(1) — considered s. 718.2(a) [en. 1995, c. 22, s. 6] — considered s. 718.2(a)(vi) [en. 2015, c. 23, s. 16] — considered s. 718.2(b) [en. 1995, c. 22, s. 6] — considered s. 726.2 [en. 1995, c. 22, s. 6] — considered s. 730 — referred to s. 731(1)(a) — considered s. 732 — referred to s. 742.1(c) [en. 1995, c. 19, s. 38] — referred to s. 745(a) — considered s. 745(b) — considered s. 745(b.1) [en. 2000, c. 24, s. 46] — considered s. 745(c) — referred to Criminal Damage Act, 1971, c. 48 s. 1 — referred to s. 4 — referred to Criminal Justice Act 2003, 2003, c. 44 Sched. 21, s. 4(2)(a) — considered Sched. 21, s. 8 — considered Criminal Law (Sentencing) Act 1988, No. 50 (SA), 1988 Pt. 2, Div. 4 — referred to Penal Code, California s. 451.5(a)(2)(A) — referred to s. 451.5(b) — referred to Penalties and Sentences Act 1992, 1992 (Qld) Pt. 2A — referred to Sentencing Act 1991, No. 49 (Vic), 1991 s. 6AB(1) — referred to 238 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

Sentencing Act 1995, 1995 s. 143 — referred to s. 143A — referred to

APPEAL by accused, from 12-month prison sentence for arson and related offences.

K.A. Joyce, for Respondent J.D. Bromley, A.S. Millman, for Appellant

Patricia Rowbotham, Frederica Schutz JJ.A.:

1 The appellant, Gregory Roger Yellowknee, pled guilty to the offences of arson of a dwelling house, mischief, and two breaches of a recognizance for consuming alcohol and contacting his common law spouse when he was prohibited from both on an undertaking. For these offences, he received a total sentence of 12 months’ imprisonment, followed by 12 months’ probation. 2 In appealing his sentence, the appellant argues that the sentencing judge failed to give appropriate weight to Gladue factors, as required under section 718.2(e) of the Criminal Code, and failed to properly consider recommendations for rehabilitation. 3 The Crown argues that the sentence is fit and that the sentencing judge referenced the specific Gladue factors in the appellant’s Aboriginal background in imposing sentence. 4 On appeal, deference is owed to a sentencing judge’s decision absent an error of principle, a failure to consider a relevant factor or an overem- phasis of an appropriate factor and the error had an impact on sentence, or the sentence imposed is otherwise demonstrably unfit: R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 (S.C.C.). 5 Here, the sentencing judge appropriately considered and weighed all of the relevant factors in this matter, including the appellant’s Aboriginal circumstances and background. He stated that he had read the Gladue report prepared, and that a history of residential schooling and alcoholism in the appellant’s family “set the course” for the appellant’s own alcoholism, which was a factor in the circumstances of this offence. We are further satisfied that the sentence was fit having regard to the gravity of the offences, and the culpability of the appellant. While the appellant was intoxicated and had no memory of the offences, he deliberately set fire to his home, after texting his common law spouse to attend the home R. v. Yellowknee Wakeling J.A. 239

and retrieve her possessions. Though the home was unoccupied at the time, the possessions of a third party were damaged. 6 We are of the view that these offences were unquestionably serious, and the sentence imposed of 12 months’ imprisonment followed by 12 months’ probation provides no basis for appellate intervention. 7 We have read the concurring decision of our colleague Wakeling JA with which we cannot agree. Rather, we reiterate what was said by the Supreme Court of Canada in R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.), 1996 CanLII 230 at para 92: ... It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. See Mellstrom, Morrissette and Baldhead. Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and re- gions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. For these reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. 8 The appeal is dismissed.

Thomas W. Wakeling J.A. (concurring in result): I. Introduction 9 This is an offender sentence appeal. 10 Gregory Roger Yellowknee pled guilty to intentionally or recklessly causing damage by fire to a dwelling house owned by the Bigstone Band in contravention of s. 434 of the Criminal Code.1 11 Judge Paul imposed a sentence consisting of a term of imprisonment of twelve months and probation for a term of twelve months.

1 R.S.C. 1985, c. C-46. 240 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

12 The offender seeks a reduction in his sentence.2

II. Questions Presented 13 Mr. Yellowknee argues that the sentencer failed “to give appropriate weight to the Gladue factors [and explain] how ... he had factored the relevant Gladue factors into determining a fit sentence [and] ... to consider whether there was a meaningful sentencing alternative to incarceration”.3 Are these arguments meritorious? If so, did any error impact the selection of a fit sentence? What is a fit sentence for Mr. Yellowknee? 14 Would a less severe sentence be patently unfit?

III. Brief Answers 15 Judge Paul made no errors. If he committed any of the errors alleged by the appellant, these errors would have had no impact on a fit sentence. A fit sentence is in the thirty-two months range. Any lesser sentence than the sentencer imposed is out of the question.

IV. Applicable Criminal Code Provisions 16 Section 434 of the Criminal Code4 reads as follows: “Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.” 17 Section 726.2 of the Criminal Code states that “[w]hen imposing a sentence, a court shall state the term of the sentence imposed, and the reasons for it, and enter those terms and reasons into the record of the proceedings”.

2 An appeal court may vary a sentence if “a sentencing judge makes an error of law or an error in principle that has an impact on the sentence ... [or] it is demonstrably unfit”. R. c. Lacasse, 2015 SCC 64 (S.C.C.), ¶ 11; [2015] 3 S.C.R. 1089 (S.C.C.), 1102. A sentence that “falls outside of a range of reasonable dis- positions is unreasonable and therefore demonstrably unfit”. R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 15; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 207 per Wakeling, J.A. 3 Factum of the Appellant, ¶¶ 19, 20 & 30. 4 An Act to amend the Criminal Code (arson), S.C. 1990, c. 15, s. 1. It came into force on July 1, 1990. R. v. Yellowknee Wakeling J.A. 241

18 Sections 675(1)(b) and 687 of the Criminal Code set out the jurisdiction of this Court in a sentence appeal: 675(1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal ..... (b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law...... 687(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may ... (a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (b) dismiss the appeal.

V. Statement of Facts 19 On July 1, 2015 Mr. Yellowknee undertook to refrain from the consumption of alcohol and to abstain from communicating either directly or indirectly with April Nanooch, his common-law wife. 20 He broke those promises on December 31, 2015. 21 The appellant sent her texts on December 31, 2015 informing her that he intended to burn their residence down. 22 That same day, while intoxicated, he set fire to a derelict trailer owned by the Bigstone Band that he and Ms. Nanooch occupied. It burned to the ground. The fire also destroyed the personal property of another person. It would appear that no one was in the trailer at the time. 23 The Crown subsequently charged Mr. Yellowknee with a number of offences arising out of this incident. 24 Mr. Yellowknee pled guilty to arson, mischief and breach of his July 1, 2015 undertakings. 25 His counsel argued that “treatment would be the best option for him [and i]f incarceration is necessary ... a sentence in the intermittent range [with] ... a very long period of probation” would be a fit sentence.5

5 Appeal Record 11: 33-36. 242 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

26 On August 11, 2016 Judge Paul of The Provincial Court of Alberta sentenced the appellant to a one-year prison term for arson, as well as twelve-months’ probation. A concurrent sentence of one-month imprisonment for the other three offences was imposed. 27 The offender is forty-five years old and a member of the Bigstone Band. 28 He and his father are alcoholics. 29 Mr. Yellowknee has remained sober from January 1, 2016, the day after he committed these crimes, to the date his appeal was heard before us. 30 Mr. Yellowknee attended a residential alcohol treatment centre in approximately 1996 and stayed sober for about a year. 31 The offender’s Gladue report notes that the appellant’s addiction counsellor observed that the offender “seems willing to bring about change in his life, but an appearance of willingness does not necessarily mean ... [he] will apply offered suggestions.” 32 Mr. Yellowknee does not participate in aboriginal ceremonies or follow traditional ways. 33 On August 25, 2016 Mr. Yellowknee filed a notice of appeal. He complained that he was not properly represented by legal counsel.

VI. Analysis A. The Appellant Argues That the Sentencer Made Three Errors 34 Mr. Bromley, Mr. Yellowknee’s appeal counsel, advanced three principal arguments. First, he argued that Judge Paul failed to give appropriate weight to the Gladue factors. Second, appellant counsel maintained that Judge Paul’s reasons do not disclose how the Gladue factors affected Mr. Yellowknee’s sentence. Third, Mr. Bromley asserted that the sentencer did not give adequate consideration to an intermittent sentence. 35 The appellant’s counsel relied on statements made by the Supreme Court of Canada in R. v. Ipeelee6 and R. v. Gladue7 and this Court in R.

6 2012 SCC 13 (S.C.C.), ¶¶ 60 & 72; [2012] 1 S.C.R. 433 (S.C.C.), 469 & 476- 77. 7 [1999] 1 S.C.R. 688 (S.C.C.), 725. R. v. Yellowknee Wakeling J.A. 243

v. Laboucane8 directing sentencers to consider the difficult life experiences that may have contributed to an aboriginal offender’s criminal conduct.9 He also referred to this Court’s direction in Laboucane re- minding sentencers that their statutory duty to give reasons obliged them to explain “whether, and how, identified Gladue factors impacted the creation of a just sanction for that particular offence and that particular offender”.10 36 Mr. Bromley’s arguments must be rejected. 37 Judge Paul carefully reviewed Mr. Yellowknee’s Gladue report and was aware of its most important features. The sentencer stated that “I have read the Gladue report and considered its factors and there’s no doubt in my mind that his father’s attendance at residential schools and his resulting alcoholism set the course for the accused’s alcoholism”.11 38 The fact that Judge Paul did not sentence Mr. Yellowknee to a penitentiary term is likely attributable to Mr. Yellowknee’s Gladue factors. The sentencer declared that “arson is taken extremely serious[ly and i]t is ... not unusual in appropriate circumstances, for penitentiary terms to be imposed”.12 It is safe to conclude that Judge Paul believed that an arsonist, whether aboriginal or nonaboriginal, who destroys a dwelling place must serve a significant prison term.

8 2016 ABCA 176 (Alta. C.A.), ¶ 5; (2016), 337 C.C.C. (3d) 445 (Alta. C.A.), 450. 9 See R. v. Laboucane, 2016 ABCA 176 (Alta. C.A.), ¶ 60; (2016), 337 C.C.C. (3d) 445 (Alta. C.A.), 461 (“Section 718.2(e) does not create a race-based discount on sentencing”); R. v. Delorme, 2017 SKCA 3 (Sask. C.A.), ¶ 68 (“s. 718.2(e) of the Criminal Code does not lead to an automatic reduction in sentence simply because the offender is Aboriginal”) & R. v. Chanalquay, 2015 SKCA 141 (Sask. C.A.), ¶ 52; (2015), [2016] 4 W.W.R. 242 (Sask. C.A.), 255 (a sentence should not be reduced just because an offender is aboriginal). 10 R. v. Laboucane, 2016 ABCA 176 (Alta. C.A.), ¶ 5; (2016), 337 C.C.C. (3d) 445 (Alta. C.A.), 450. 11 Appeal Record 13: 13-15. See also R. v. Okimaw, 2016 ABCA 246 (Alta. C.A.), ¶ 87; (2016), 340 C.C.C. (3d) 225 (Alta. C.A.), 249 (the Court concluded that the aboriginal offender’s background provided some insight into his criminal behaviour) & R. v. Chanalquay, 2015 SKCA 141 (Sask. C.A.), ¶ 52; (2015), [2016] 4 W.W.R. 242 (Sask. C.A.), 255 (a sentencer must assess the moral culpability of an aboriginal offender taking to account his or her background). 12 Appeal Record 13: 26-27. 244 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

39 Could Judge Paul have provided more clarity for this decision? Yes. But this is a sentence delivered in a busy docket court. The sentencer had very little time to order his thoughts. In any event, a judge’s failure to articulate in detail why he or she came to a conclusion does not justify the inference that a decision maker has no reasons. Often the background against which reasons are delivered is more than adequate to allow the offender, the Crown, the public and appellate court judges to follow the decision maker’s thought process. The sentencer provided reasons that meet the standard set out by R. v. Sheppard.13 This Court is able to exercise “meaningful appellate review of the correctness of the decision”.14 40 Mr. Bromley’s other argument was that Judge Paul failed to give proper consideration to an intermittent sentence. 41 This argument is also without merit. 42 The intermittent sentence that Mr. Yellowknee’s defence counsel asked Judge Paul to impose was never a realistic option in this case. Mr. Yellowknee destroyed a dwelling place that he did not own. He faced a lengthy prison term — far more than ninety days.15 43 Judge Paul said this:16 “[T]he courts of appeal and the superior courts have made it clear that it’s absolutely necessary to send a message to others who think that it’s all right to burn the home down in which they live and that cannot be done, in my view, by an intermittent sentence”. 44 The sentencer made it clear that he was aware of the positive steps that Mr. Yellowknee had taken to distance himself from the self-destructive consequences alcohol consumption represents for himself and his family circle and the offender’s request to be given an intermittent sentence:17 I am mindful of the mitigating factors, that is his entry of a guilty plea. That he is taking steps through the Pee Kis Kwe Tan Let’s Talk

13 2002 SCC 26 (S.C.C.), ¶ 25; [2002] 1 S.C.R. 869 (S.C.C.), 882. 14 Id. 15 An intermittent sentence may only be imposed if the sentence of imprisonment is ninety days or less. Criminal Code, s. 732. A conditional sentence is not available because a s. 434 arson offence is punishable by a maximum term of imprisonment of fourteen years and such an offence is not one for which a conditional sentence is available. Criminal Code, s. 742.1(c). 16 Appeal Record 14: 5-7. 17 Appeal Record 13: 4-6 & 13: 37-14: 3. R. v. Yellowknee Wakeling J.A. 245

Society to address his alcohol issues. That he has remained sober since January of 2016...... The [offender] ... wants, in all of these circumstances, to have me impose upon him a sentence that he can serve intermittently in the community. That would be a sentence where one’s sympathy ... overcome[s] the need to deter others. Even if Mr. Yellowknee is not inclined to commit an offence like this again, and to be honest with you we don’t know that because if he does not successfully address his alcohol issue ... there’s nothing to suggest that he wouldn’t do it again. So certainly some individual deterrence is necessary as well. 45 He simply concluded that an intermittent sentence was not a reasonable option. 46 Had I agreed with Mr. Bromley that Judge Paul’s reasons were deficient, which was his best argument, what would have been the consequence? 47 Suppose that a sentencer has selected a starting point sentence that is eminently reasonable. Neither the offender nor the Crown contest the validity of this feature of the sentencer’s reasons. The controversy centres on the judge’s treatment of aggravating and mitigating factors. The offender argues that the sentencer improperly characterized a fact as aggravating and unjustifiably increased his starting point sentence by ten percent. The Crown maintains that the judge erroneously treated a fact as mitigating and, without warrant, reduced the starting point sentence by ten percent. 48 Suppose that the appeal court accepts both arguments. The end result is that the finishing point sentence is the same as the starting point sentence. The errors had no impact on a fit sentence. In this scenario, there is no reason to adjust the sentence. It is fit. 49 Suppose that an appeal court concludes that the Crown’s position has merit and that the sentencer’s selection of the starting point sentence is indefensible. The starting point sentence should have been four years higher. Neither side argued that there were any aggravating or mitigating circumstances. In this case the error affected the sentence. It produced an unfit sentence. 50 It is obvious that the critical question is whether any error impacted a fit sentence. Justice Wagner, writing for himself and four colleagues, in 246 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

R. c. Lacasse,18 said just this: “[E]xcept where a sentencing judge made an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit”. 51 Even if I had concluded that Judge Paul’s reasons were deficient, I would have dismissed Mr. Yellowknee’s appeal. This error would have had no impact whatsoever on a fit sentence. As I explain in Part VI B, a fit sentence for Mr. Yellowknee would have been in the thirty-two months range. A lesser sentence than the one Judge Paul imposed would have been demonstrably unfit.

B. A Fit Sentence for the Offender Is in the Thirty-two Months Range 1. Appeal Courts Must Provide an Analytical Framework for the Assistance of Sentencing Courts 52 The sentencing court was not referred to a judgment of this Court or any other appellate courts to assist it to select a fit and proper sentence. Judge Paul noted that there was no judgment of this Court that provided him with any assistance.19 He relied exclusively on R. v. Beaulieu,20 a 2009 judgment of the Northwest Territories Supreme Court. That case does not provide any analytical framework for an arson sentence. The sentencer recorded the facts of the offence, the personal characteristics of the criminal and the maximum sentence for arson and states the penalty. Nothing else.21

18 2015 SCC 64 (S.C.C.), ¶ 11; [2015] 3 S.C.R. 1089 (S.C.C.), 1102 (emphasis added). See also R. v. Deren, 2017 ABCA 23 (Alta. C.A.) (the Court dismissed the offender’s sentence appeal even though it agreed with his argument that his failure to cooperate with police was not an aggravating factor; the Court concluded that the sentence appealed was fit). 19 Appeal Record 13: 24-25. 20 2009 NWTSC 9 (N.W.T. S.C.). 21 See R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 50 n. 21; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 215 n. 21 per Wakeling, J.A. (“Reference to other sentencing cases that feature no reasons does not enhance the quality of the sentencing decision”). R. v. Yellowknee Wakeling J.A. 247

53 An appeal court22 “must construct analytical sentencing frameworks [to] assist sentencers with their important and complicated task of selecting a just sentence.”23 Without such models, sentencers are left to their own devices and their work product is extremely unlikely to promote

22 In R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 57 n. 31; (2016), 612 A.R. 292 (Alta. C.A.), 306 n. 31 and R. v. Evans, 2014 ABCA 339 (Alta. C.A.), ¶ 23; (2014), 316 C.C.C. (3d) 437 (Alta. C.A.), 448-49 (chambers) I explained why appeal courts, and not trial courts, are in the best position to construct guideline judgments. 23 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 45; (2016), 612 A.R. 292 (Alta. C.A.), 304 per Wakeling, JA. See also R. c. Lacasse, 2015 SCC 64 (S.C.C.), ¶ 37; [2015] 3 S.C.R. 1089 (S.C.C.), 1109, (“appellate courts must ensure the co- herent development of the law while formulating guiding principles to ensure that it is applied consistently in a given jurisdiction”); R. v. Morrissette (1970), 1 C.C.C. (2d) 307 (Sask. C.A.), 311 (Sask. C.A. 1970) (“A provincial Court of Appeal ... has a duty to give some guidance [in dealing with sentences] to trial Judges in this field”); Boulton v. R., [2014] VSCA 342 (Australia Vic. C.A.), ¶ 27 (“The function of a guideline judgment is to provide assistance to sentencing courts in the application of the law”); R. v. Jurisic, [1998] NSWSC 423, 45 N.S.W.L.R. 209 (New South Wales S.C.), 220 (C.C.A. 1998) (“guideline judgments ... provide a useful statement of principle to assist trial judges to ensure consistency of sentencing”); R. v. M. (A.), [2010] NZCA 114 (New Zealand C.A.), ¶ 12; [2010] 2 N.Z.L.R. 750 (New Zealand C.A.), 758 (the Court issues guideline judgments when it “perceive[s ...] a particular need for guidance”); Pillar Resource Services Inc. v. PrimeWest Energy Inc., 2017 ABCA 19 (Alta. C.A.), ¶ 63 per Wakeling, J.A. (“It is the responsibility of appellate courts to construct a logical framework [to allow lower courts to exercise their discretion in a rational manner]”); Latoudis v. Casey, [1990] H.C.A. 59 (Australia H.C.), ¶ 27; (1990), 170 C.L.R. 534 (Australia H.C.), 558 (“Where a statute confers an unqualified discretion, an appellate court should ... point out those considerations which ought to guide the exercise of the discretion in the ordinary case so that, as far as possible, like cases will be decided in a like manner”) per Dawson, J. & Norbis v. Norbis (1986), 161 C.L.R. 513 (Australia H.C.), 519 (High Ct. Austl. 1986) (“But the need for consistency in judicial adjudication, which is the antithesis of arbitrary and capricious decision-making, provides an important countervailing consideration supporting the giving of guidance by appellate courts, whether in the form of principles or guidelines”) per Mason and Deane, JJ. 248 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

rationality,24 predictability,25 consistency26 and transparency in sentencing, essential features of any legitimate sentencing regime. Just the oppo-

24 Wong v. R., [2001] H.C.A. 64 (Australia H.C.), ¶ 65; (2001), 207 C.L.R. 584 (Australia H.C.), 608 (“Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect”) (emphasis in original) & R. v. Griffiths (1977), 137 C.L.R. 293 (Australia H.C.), 326 (Austl. High Ct. 1977) (“Disparity of sentencing standards is a very serious deficiency in a system of criminal justice”). 25 R. v. Anthony-Cook, 2016 SCC 43 (S.C.C.), ¶ 36 (“For many accused, maxi- mizing certainty as to the outcome is crucial”) & Hessell v. R., [2010] NZSC 135 (New Zealand S.C.), ¶ 13; (2010), [2011] 1 N.Z.L.R. 607 (New Zealand S.C.), 616 (“[a sentencing guideline on guilty pleas] would enable defence lawyers to advise on the consequences of, in particular, an early guilty plea with some certainty”). 26 R. v. Ostertag, 2000 ABCA 232 (Alta. C.A.), ¶ 11; (2000), 35 C.R. (5th) 350 (Alta. C.A.), 356 (“Starting-point sentencing guidelines support the principles of equality and uniformity”); R. v. Blackshaw, [2011] EWCA Crim 2312 (Eng. C.A.), ¶ 14; (2011), [2012] 1 W.L.R. 1126 (Eng. C.A.), 1133 (“[a sentencing guideline] provides the starting point and it produces the desirable consistency of approach to sentencing decisions ... without sacrificing the obligation to do justice in the individual and specific cases”); R. v. Jurisic, [1998] NSWSC 423, 45 N.S.W.L.R. 209 (New South Wales S.C.), 220 (C.C.A.) (“guideline judgments [promote] ... consistency in sentencing”) & R. v. McLaughlin, 2003 ABQB 338 (Alta. Q.B.), ¶ 21; (2003), 337 A.R. 158 (Alta. Q.B.), 161 (“In the course of argument, counsel submitted numerous cases which decided the parole ineligibility of similarly situated accused. Those decisions are remarkable for their widely disparate results”). R. v. Yellowknee Wakeling J.A. 249

site is the case.27 It will be the product of unknown factors.28 This is extremely regrettable:29 [O]ffenders who are similarly situated may be the recipients of vastly different sentences and those who are not alike may be the recipients of similar sentences. Not only is this result undesirable, it is a contravention of equality principles that account for Parliament’s declaration that “a sentence should be similar to sentences imposed on similar offenders for offences in similar circumstances.” The administration of justice is brought into disrepute by grossly disparate sentences. A five-judge panel of the Supreme Court of New South Wales stated that “[i]nconsistency in [sentencing decisions] offends the principles of equality before the law [and is itself] a manifestation of injustice”. 54 This is not a recent problem.30

27 Markarian v. R., [2005] H.C.A. 25 (Australia H.C.), ¶ 131; (2005), 228 C.L.R. 357 (Australia H.C.), 405 per Kirby, J. (“With some judicial officers, talk of ‘instinct’ and pure ‘intuition’ might be understood as endorsing a process that involves little more than plucking a figure from the air .... Such as arbitrary exercise of public power is to be discouraged, not endorsed by this Court of phrases such as ‘instinctive synthesis’”). 28 R. v. H. (K.S.), 2015 ABCA 370 (Alta. C.A.), ¶ 79; (2015), [2016] 5 W.W.R. 700 (Alta. C.A.), 724 per Wakeling, J.A. (“[a sentence is] not an intuitive response to unknown and unarticulated values”) & Markarian v. R., [2005] H.C.A. 25 (Australia H.C.), ¶ 135; (2005), 228 C.L.R. 357 (Australia H.C.), 406 per Kirby, J. (“The generalised assertion by the sentencer that he or she acted on ‘instinct’, ‘intuition’ or personal experience or experience in the courts, is not now enough ... to meet the standards of reasoning in sentencing that we have come to expect in Australia”). 29 R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 65; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 320-21 per Wakeling J.A. See also Wong v. R., [2001] H.C.A. 64 (Australia H.C.), ¶ 6; (2001), 207 C.L.R. 584 (Australia H.C.), 591 (“Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency”) & R. v. Hili, [2010] H.C.A. 45 (Australia H.C.), ¶ 49; (2010), 242 C.L.R. 520 (Australia H.C.), 535 (“When it is said that the search is for ‘reasonable consistency’ what is sought is the treatment of like cases alike and different cases differently”). 30 R. v. Arcand, 2010 ABCA 363 (Alta. C.A.), ¶ 24; (2010), 264 C.C.C. (3d) 134 (Alta. C.A.), 166 (“public confidence in the fairness of sentencing in Can- 250 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

55 Other jurisdictions also confront inexplicable sentence disparities.31 56 A 1988 research report of the Canadian Sentencing Commission noted that “[t]here is general agreement that the criminal justice system has failed to remedy manifest inequities in the sentencing process.”32 The Australian High Court, in Wong v. The Queen,33 also spoke out: “If there is ... inconsistency [in sentences], public confidence in the value of discretionary sentencing will suffer.” The New South Wales Court of Criminal Appeal, in The Queen v. Jurisic,34 explained that “[i]nconsistency in sentencing ... can lead to a sense of grievance amongst individuals on whom uncharacteristically severe sentences are imposed and amongst the broader community of victims and their families, in the case of uncharacteristically light sentences.” 57 The explanation for erratic sentencing patterns usually is attributable to the absence “of a sound and workable analytical framework the use of

ada has been undermined by widespread concerns about arbitrariness and disparity in sentencing”); Baldhead, Re, [1966] 4 C.C.C. 183 (Sask. C.A.), 185 (“The disparity of sentences for the same or similar crimes is a problem which con- stantly faces appellate Courts”) & R. v. Connor (1957), 118 C.C.C. 237 (Ont. C.A.), 238 (“It is difficult, if not impossible, to reconcile the sentence in one case with the sentences in other cases”). 31 United States: Zipperstein, “Certain Uncertainty: Appellate Review and the Sentencing Guidelines”, 66 S. Cal. L. Rev. 621, 626 (1992) (“Disparity reduction as a goal of federal sentencing represents the public’s reaction to the perva- sive disparate treatment of past offenders”); Australia: Krasnostein, “Boulton v The Queen: The Resurrection of Guideline Judgments in Australia?”, 27 Current Issues Crim. Just. 41, 41-42 (2015) (“Since the 1970s, empirical research has repeatedly demonstrated that unregulated discretion is directly correlated with unwarranted inter-judge disparity in sentencing outcomes”) & Tasmania Law Reform Institute, Sentencing Final Report No. 11, at 250 (June 2008) (a study of Magistrate Court sentences disclosed evidence of inconsistent sentences) & Eu- rope: Recommendation No. R. (92) 17 of the Committee of Ministers to Mem- ber States Concerning Consistency in Sentencing 1 (October 19, 1992) (the report acknowledged that an “unwarranted disparity in sentencing sometimes occurs” and that this “might bring the criminal justice system into disrepute”). 32 A. Young, The Role of an Appellate Court in Developing Sentencing Guide- lines (Research Reports of the Canadian Sentencing Commission) 98 (1988). 33 [2001] H.C.A. 64 (Australia H.C.), ¶ 10; (2001), 207 C.L.R. 584 (Australia H.C.), 593. 34 [1998] NSWSC 423, 45 N.S.W.L.R. 209 (New South Wales S.C.), 216. R. v. Yellowknee Wakeling J.A. 251

which by sentencers ensures that the sentencing process is as rational and transparent as possible and that all legitimate interests are accounted for and that no irrelevant consideration affects the outcome.”35 58 Many common law jurisdictions have introduced sentencing regimes designed to combat this invidious practice. 59 The United Kingdom36 and many American jurisdictions37 have created sentencing commissions and given them the task of producing sentencing guidelines.

35 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 48; (2016), 612 A.R. 292 (Alta. C.A.), 305 per Wakeling, J.A. See also R. v. Arcand, 2010 ABCA 363 (Alta. C.A.), ¶ 53; (2010), 264 C.C.C. (3d) 134 (Alta. C.A.), 173-74 (“Sentencing [without a governing principle to guide the exercise of sentencing discretion] would then essentially be a free-for-all”) & Krasnostein, “Boulton v The Queen: The Resurrection of Guideline Judgments in Australia?”, 27 Current Issues Crim. Just. 41, 54 (2015) (“Without such policy guidance [from guideline judgments], sentencers are left to decide anew with each case and according to their disparate personal philosophies matters of sentencing policy”). Sentences must be the product of a rational process. R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 46; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 213 per Wakeling, J.A. See also Criminal Code, s. 726.2 (a sentencer must “state the terms of the sentence imposed, and the reasons for it”); R. v. Lyons, [1987] 2 S.C.R. 309 (S.C.C.), 329 (sentencing is a “rational system”); R. v. Murphy, 2014 ABCA 409 (Alta. C.A.), ¶ 29, n. 4; (2014), 317 C.C.C. (3d) 314 (Alta. C.A.), 323, n. 4 per Wakeling, J.A. (“Sentencing is not an unreasoned response to undisclosed considerations”); R. v. Arcand, 2010 ABCA 363 (Alta. C.A.), ¶ 37; (2010), 264 C.C.C. (3d) 134 (Alta. C.A.), 170 (“By imposing this duty [to give reasons], Parliament assumed that rational reasons for sentencing could be provided in each case — and in- sisted that they would be”) & Rita v. United States, 551 U.S. 338 (U.S. Sup. Ct. 2007), 356 (2007) (“Judicial decisions are reasoned decisions”). 36 Coroners and Justice Act 2009, c. 25, s. 118 (introduced the Sentencing Council for England and Wales) & s. 125(1) (a sentencer must “follow any sentencing guidelines which are relevant to the offender’s case ... unless it ... would be contrary to the interests of justice to do so”). 37 United States Sentencing Commission, 2016 Federal Sentencing Guidelines Manual 3 (Congress, in enacting the Sentencing Reform Act of 1984, “sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders”) & Minnesota Sentencing Guidelines Commission, 2016 Sentencing Guide- lines and Commentary 1 (“The purpose of the Sentencing Guidelines is to establish rational and consistent sentencing standards that reduce sentencing disparity 252 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

60 Other jurisdictions, either expressly or implicitly, have assigned courts this important task. Some have enacted statutes that direct courts to issue guideline judgments to accomplish this goal.38 “A guideline judgment is a single judgment which sets out general parameters for dealing with several variations of a certain type of offence, considering the main aggravating and mitigating factors, and suggesting an appropriate starting point or range of sentences.”39 Some appellate courts have recognized the harm caused by a statutory vacuum and on their own initi- ative have provided lower courts with much-needed guidance.40

and ensure that the sanctions imposed for felony convictions are proportional to the severity of the conviction offense and the offender’s criminal history”). See Report of the Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment 7 (1976) (“President Ford has described American sentencing provisions as ‘often erratic and inconsistent’”). 38 E.g., Sentencing Act 1995, No. 76, ss. 143 & 143A (W. Austl.); Crimes (Sen- tencing Procedure) Act 1999, No. 92, ss. 36-42A (N.S.W.); Sentencing Act 1991, No. 49, s. 6AB(1) (Vict.); Penalties and Sentences Act 1992, Part 2A (Queensl.); Criminal Law (Sentencing) Act 1988, Part 2, Div. 4 (S. Austl.) & R. v. Wallace, [1999] 3 N.Z.L.R. 159 (New Zealand C.A.) (the Court issued a guideline judgment regarding commercial dealings in controlled drugs). 39 A. Ashworth, Sentencing and Criminal Justice 36 (5th ed. 2010). See also R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 55; (2016), 612 A.R. 292 (Alta. C.A.), 306 per Wakeling, J.A. (“[an ordinary sentencing judgment] considers the just- ness of a sanction imposed on an individual offender. [A guideline sentencing judgment] considers issues that apply to a group of offenders who display important common features and proposes an approximate response to a class or groups of offenders”) & Boulton v. R., [2014] VSCA 342 (Australia Vic. C.A.), ¶ 27 (“The function of a guideline judgment is to provide assistance to sentencing courts in the application of the law”). 40 E.g., R. v. M. (T.E.), [1997] 1 S.C.R. 948 (S.C.C.), 981 (“appellate courts may set out starting-point sentences as guides to lower courts”); R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 77; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 325 per Wakeling, J.A. (“By default, appeal courts have the primary responsibility for introducing rationality, predictability and consistency into the sentencing process”); R. v. Ostertag, 2000 ABCA 232 (Alta. C.A.), ¶ 25; (2000), 266 A.R. 57 (Alta. C.A.), 67 (“Another mechanism for achieving the objective of equal treatment, or more accurately uniformity of approach, in sentencing is reliance on the range of sentences as a factor for a sentencing”); Wong v. R., [2001] H.C.A. 64 (Australia H.C.), ¶ 6; (2001), 207 C.L.R. 584 (Australia H.C.), 591 (“One of the legitimate objectives of [appellate] ... guidance is to reduce the incidence of un- R. v. Yellowknee Wakeling J.A. 253

61 Chief Justice Spigelman of the New South Wales Court of Criminal Appeal has opined that41 guideline judgments should now be recognized ... as having a useful role to play in ensuring that an appropriate balance exists between

necessary and inappropriate inconsistency”); R. v. Jurisic, [1998] NSWSC 423, 45 N.S.W.L.R. 209 (New South Wales S.C.), 220 (C.C.A) (“At times and with respect to particular offences, it will be appropriate for this Court to lay down guidelines so as to reinforce public confidence in the integrity of the process of sentencing”) & Thomas, “Sentencing in England”, 42 Md. L. Rev. 90, 99 (1983) (“When considered collectively, these [appellate] decisions provide useful indi- cations to trial judges of what the Court of Appeal considers the appropriate sentence length for particular types of crime”). The Alberta Court of Appeal has issued numerous guideline judgments. E.g., R. v. Saeed, 2004 ABCA 384 (Alta. C.A.), ¶ 7; (2004), 357 A.R. 238 (Alta. C.A.), 239 (the Court established a sentencing range of twelve to eighteen months for street mugging involving no physical injury to the victim and proceeds of modest value); R. v. Ma, 2003 ABCA 220 (Alta. C.A.), ¶ 13; (2003), 177 C.C.C. (3d) 535 (Alta. C.A.), 540 (the Court confirmed a 4.5 year starting point for a courier engaged in wholesale cocaine trafficking); R. v. Rahime, 2001 ABCA 203 (Alta. C.A.), ¶ 18; (2001), 156 C.C.C. (3d) 349 (Alta. C.A.), 356 (the Court confirmed a three-year starting point for commercial cocaine street vendors selling more than a minimal amount); R. v. Ostertag, 2000 ABCA 232 (Alta. C.A.), ¶ 20; (2000), 35 C.R. (5th) 350 (Alta. C.A.), 359 (the Court confirmed a five-year starting point for low-level commercial heroin trafficking); R. v. S. (W.B.) (1992), 73 C.C.C. (3d) 530 (Alta. C.A.), 553 (Alta. C.A. 1992) (the Court established a four-year starting point for a single major sexual assault on a child); R. v. Sandercock, 1985 ABCA 218 (Alta. C.A.), ¶ 17; (1985), 22 C.C.C. (3d) 79 (Alta. C.A.), 85; (the Court established a three-year starting point for a major sexual assault on an adult woman) & R. v. Johnas, 1982 ABCA 331 (Alta. C.A.), ¶ 19; (1982), 2 C.C.C. (3d) 490 (Alta. C.A.), 495 (Alta. C.A. 1982) (the Court established a three-year starting point for a convenience store robbery). 41 R. v. Jurisic, [1998] NSWSC 423, 45 N.S.W.L.R. 209 (New South Wales S.C.), 220. See also Markarian v. R., [2005] HCA 25 (Australia H.C.), ¶ 80; (2005), 228 C.L.R. 357 (Australia H.C.), 389 (“In New South Wales there is also a statutory system of guideline judgments and standard minimum non-parole periods that give more specific guidance in common offences and operate as a starting point from which departure is intended to be the exception or at least require explanation”); Boulton v. R., [2014] VSCA 342 (Australia Vic. C.A.), ¶ 4 (“It is vitally important ... that sentencing courts be given as much guidance as possible about how a ... [community correction order] can serve the various purposes for which a sentence is imposed”); Hessell v. R., [2010] NZSC 135 (New 254 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

the broad discretion that must be retained to ensure that justice is done in each individual case, on the one hand, and the desirability of consistency in sentencing and the maintenance of public confidence in sentences actually imposed, and in the judiciary as a whole, on the other. 62 Guideline judgments provide a framework within which sentencers exercise their judgment. They do not eliminate the need for sentencers to make discretionary decisions.42 What is the appropriate starting point sentence within a subset? What is the nature of the appropriate adjustment for aggravating and mitigating factors? “Guideline judgments are a mechanism for structuring discretion, rather than restricting discretion”.43

Zealand S.C.), ¶ 13; (2010), [2011] 1 N.Z.L.R. 607 (New Zealand S.C.), 616 (“[guideline judgments] assist in achieving greater sentencing consistency and set out a clearer approach for the future”); Ashworth, “Techniques of Guidance on Sentencing”, [1984] Crim. L. Rev. 519, 520 (“Guideline judgments ... [are] to be welcomed as an important step towards more rational and consistent sentencing practices”) & Spigelman, “Sentencing Guideline Judgments,” 11 Current Is- sues Crim. Just. 5, 8 (1999) (“By reason of the public prominence of the issues that arise, consistency in sentencing serves a high constitutional purpose: the maintenance of the rule of law”). 42 Ashworth, “Disentangling Disparity” in The Psychology of Sentencing: Ap- proaches to Consistency and Disparity 34 (D. Pennington & S. Lloyd-Bostock eds. 1987) (“Discretion probably cannot and certainly should not be eliminated, but the basis for its exercise in such a publicly important decision as the criminal sentence must be clearly articulated. The goal must be to reduce disparity by increasing uniformity of approach”). See R. v. Nasogaluak, 2010 SCC 6 (S.C.C.), ¶ 44; [2010] 1 S.C.R. 206 (S.C.C.), 233 (“The wide discretion granted to sentencing judges has limits. It is fettered by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code”) & R. v. Sandercock, 1985 ABCA 218 (Alta. C.A.), ¶ 3; (1985), 22 C.C.C. (3d) 79 (Alta. C.A.), 82 (“The discretion of sentencing judges is wide, but it is not unfettered”). 43 R. v. Jurisic, [1998] NSWSC 423, 45 N.S.W.L.R. 209 (New South Wales S.C.), 221. See also R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 48; (2016), 612 A.R. 292 (Alta. C.A.), 305 per Wakeling, J.A. (“Of utmost importance is the consistent application of the methodology”); Sentencing Guideline Council, Guideline Judgments Case Compendium i (2005) (U.K.) (“Consistency of approach by sentencers is essential to maintain public confidence”); A. Ashworth, R. v. Yellowknee Wakeling J.A. 255

63 Appellate guidance reduces the risk that a sentencer will be unable to comply with s. 726.2 of the Criminal Code and give “reasons for [the sentence imposed]”. Guideline judgments give the sentencer analytical assists that most Criminal Code offences do not provide:44 “Given that only a few criminal offences have only one sanction and almost all crimes are punishable by a large range of sanctions this omission creates a significant problem. If a sentencer does not know where to go to start the journey to judgment, where a sentencer ends up is little more than chance.” 64 Many sentencing judgments do nothing more than confirm that the sentencer is aware of the provisions of the Criminal Code that record the purposes and principles of sentencing and the facts that evidence the commission of a crime and the background of the criminal.45 There is no explanation as to how these values and facts influence the sentence that is imposed. This remains a mystery. In the end, the validity of the sen-

Sentencing and Criminal Justice 33 (5th ed. 2010) (“[English guidelines] are more about process (what has been termed ‘consistency of approach’) than about imposing sentences of a particular type or length”) & Council of Europe, Consistency in Sentencing 20 (1993) (“Consistency of approach is the goal, rather than arithmetical consistency of outcomes). 44 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 67; (2016), 612 A.R. 292 (Alta. C.A.), 308 per Wakeling, J.A. The Criminal Code, ss. 47(1), 235(1) & 745(a)(b) & (b.1) provide for only one sanction in just four offences — high treason, first degree murder or second degree murder in two specific cases. 45 R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 50; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 215 per Wakeling, J.A. (“many sentencing judgments ... often recite the applicable sentencing purposes and principles, record the facts and refer to cases counsel may have brought to the court’s attention before announcing the sentence. It is as if the sentencer believes there could be only one sentence”); R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 79; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 328 per Wakeling, J.A. (“Many sentencing decisions are nothing more than a conclusionary statement following the recital of sentencing purposes and principles”) & Markarian v. R., [2005] H.C.A. 25 (Australia H.C.), ¶ 135; (2005), 228 C.L.R. 357 (Australia H.C.), 406 per Kirby, J. (“Simply to assert that they have considered a list of relevant factors, without identifying, in general terms, the weight that has been given to the most important of them, may represent an error in sentencing”). 256 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

tence rests on the fact that the sentencer is a judge.46 One is left with the overwhelming impression that the rule of law was not in play. This cannot be right.47

2. Building an Analytical Framework To Determine a Just Sanction for an Arsonist 65 Neither this Court, nor any other appellate or sentencing court of which I am aware,48 has prepared a comprehensive analytical framework to assist sentencers select the fit sentence for an arsonist convicted of violating s. 434 of the Criminal Code.49 Arson sentences are frequently the product of a comparison of one set of facts against other sets of facts in other cases, often without regard to whether the offenders pled guilty

46 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 64; (2016), 612 A.R. 292 (Alta. C.A.) per Wakeling, J.A. (“It is ... unacceptable for judges to impose a sentence just because he or she is a judge”) & Markarian v. R., [2005] H.C.A. 25 (Austra- lia H.C.), ¶ 129; (2005), 228 C.L.R. 357 (Australia H.C.), 403 per Kirby, J. (“This is therefore a formula that risks endorsement of the deployment of purely personal legal power”). 47 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 63; (2016), 612 A.R. 292 (Alta. C.A.), 307 per Wakeling, J.A. (“This is not consistent with the rule of law”) & R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 51; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 215 per Wakeling, J.A. (“This is not how justice should be admin- istered in a state committed to the rule of law”). 48 The English Sentencing Council has published a guideline statement for arson. Arson (criminal damage by fire), effective August 4, 2008. Regrettably, it is very skeletal in nature. The work of the English Sentencing Council is of the highest quality. It is logical and comprehensive. I frequently refer to it. 49 Commentators have argued that Canadian appellate courts could provide more helpful direction to sentencers. E.g., Rankin, “The Origins, Evolution and Puzzling Irrelevance of Jury Recommendations in Second-Degree Murder Sen- tencing”, 40 Queen’s L.J. 531, 544-45 (2015) (“appellate courts have given little guidance with respect to appropriate ranges for parole ineligibility”); Jones & Rankin, “Justice as a Rounding Error?: Evidence of Subconscious Bias in Sec- ond-Degree Murder Sentences in Canada”, 52 Osgoode Hall L.J. 109, 120 (2014) (“higher courts have given relatively little guidance with respect to appropriate ranges”) & The Canadian Sentencing Commission, Sentencing Re- form: A Canadian Approach 81 (1987) (“To date, the Courts of Appeal have not issued judgments resulting in any kind of uniformity of approach to the general principles of sentencing in Canada”). R. v. Yellowknee Wakeling J.A. 257

and invariably on the unfounded assumption that the comparators imposed rational sentences.50

a. Parliament’s Sentence Range 66 No analytical framework can be undertaken until one knows what the sentence range is. This is a mandatory first step.51 A golf course architect cannot start work until the client informs the architect what land is available for the project. It makes a huge difference whether the client has 200 or 640 acres for the golf course and whether the land is on a mountain side or part of a vast prairie landscape. 67 Section 434 of the Criminal Code stipulates that an offender who is guilty of intentionally or recklessly causing damage by fire to property that is not wholly owned by the offender is “liable to imprisonment for a term not exceeding fourteen years”.52

50 R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 50 n. 21; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.) 215 (“Reference to other sentencing cases that feature no reasons does not enhance the quality of the sentencing decision”). 51 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 72; (2016), 612 A.R. 292 (Alta. C.A.), 308 per Wakeling, J.A.; R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 56; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 217 per Wakeling, J.A.; R. v. H. (K.S.), 2015 ABCA 370 (Alta. C.A.), ¶ 61; (2015), [2016] 5 W.W.R. 700 (Alta. C.A.), 718 per Wakeling, J.A.; R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 146; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 353 per Wakeling, J.A.; R. v. Murphy, 2014 ABCA 409 (Alta. C.A.), ¶¶ 30-33; (2014), 317 C.C.C. (3d) 314 (Alta. C.A.), 324-25 per Wakeling, J.A.; R. v. Shular, 2014 ABCA 241 (Alta. C.A.), ¶ 43; (2014), 67 M.V.R. (6th) 208 (Alta. C.A.), 223; Markarian v. R., [2005] HCA 25 (Australia H.C.), ¶ 31; (2005), 228 C.L.R. 357 (Australia H.C.), 372 per Gleeson, C.J. & Gummow. Hayne & Callinan JJ. (“careful attention to maximum penalties will almost always be required”) & 392 per Kirby, J. (“no task of sentencing ... could be accurately carried out without proper attention to any statutes affecting the maximum penalty fixed by Parliament for the worst possible case”) & R. v. Jurisic, [1998] NSWSC 423, 45 N.S.W.L.R. 209 (New South Wales S.C.), 223 (C.C.A.) (“The seriousness with which society regards offences — reflected in the maximum permissible penalties ... — is an important consideration in sentencing decisions”). 52 There are other arson crimes. Section 433 criminalizes arson that endangers others. The maximum prison term for a contravention of s. 433 is life imprisonment. Section 434.1 criminalizes arson to the offender’s own property that threatens the safety or property of others. Section 435 applies to arson for fraud- 258 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

68 This provision establishes the outer markers of a just sanction. A non- custodial sanction is the low end of the sentencing spectrum and fourteen years is at the high end.53 The custodial range spans fourteen years. 69 It is fair to state that Parliament considers arson to be a very serious crime.54 Offences punishable by up to fourteen years of imprisonment are only exceeded in their seriousness by those for which life imprisonment is the maximum penalty.55

ulent purposes. The maximum penalty for a breach of ss. 434.1 and 435 is a term of imprisonment of fourteen and ten years respectively. Section 436 criminalizes negligent conduct that allows a fire to spread and damage the property or the welfare of others. The maximum prison term for this offence is five years. 53 R. v. Kummer, 2011 ONCA 39 (Ont. C.A.), ¶ 20; (2011), 266 C.C.C. (3d) 32 (Ont. C.A.), 38 (“Absent a determination that the maximum penalty is unconsti- tutional, this court is not entitled to lower the maximum penalty any more than it is entitled to raise it”). 54 R. v. Wood, [1988] B.C.J. No. 1985 (B.C. C.A.) (C.A. chambers) (“Arson is a serious offence carrying a maximum of 14 years imprisonment”); R. v. Mirzakhalili, 2009 ONCA 905 (Ont. C.A.), ¶ 9; (2009), 257 O.A.C. 27 (Ont. C.A.), 29 (“arson always jeopardizes the lives of fire fighters and other emergency personnel who respond to fires”); R. v. V. (M.) (1998), 123 C.C.C. (3d) 138 (Ont. C.A.), 143 (Ont. C.A. 1998) (“A fire once set can spread uncontrolla- bly and of its own accord, creating risks to adjacent property, persons nearby and firefighters. The offence has as its objective public safety as well as the protection of property”) & R. v. H. (K.) (1994), 146 N.B.R. (2d) 372 (N.B. C.A.), 377 (C.A. 1994) (“Fire, no matter how well planned, is often erratic and unpredictable and gives rise to unforeseen consequences”). Arson is also a very serious offence in the United Kingdom. A person convicted of arson prosecuted by indictment is liable to life imprisonment. Criminal Damage Act 1971, c. 48, ss. 1 & 4. California punishes aggravated arson with a prison term from ten years to life. Penal Code § 451.5(b). One of the elements of aggravated arson is “property damage and other losses in excess of seven million dollars”. Penal Code § 451.5(a)(2)(A). New South Wales’ Crimes Act 1900, No. 40, s. 195(1)(b) states that an arsonist who intentionally or recklessly destroys or damages property is liable to imprisonment for ten years. 55 The punishment assigned to a crime reflects Parliament’s assessment of its gravity. R. v. Coupal, 2010 ABQB 229 (Alta. Q.B.), ¶ 15; (2010), 94 M.V.R. (5th) 228 (Alta. Q.B.), 232 (“An assessment of the gravity of the offence is informed by the maximum penalties prescribed in the Criminal Code”) & R. v. Connor (1957), 118 C.C.C. 237 (Ont. C.A.), 238 (Ont. C.A. 1957) (“Parliament R. v. Yellowknee Wakeling J.A. 259

b. Subsets Are an Essential Analytical Tool 70 Within an offence there may be different categories of offence classified by their degrees of seriousness or blameworthiness. Justice McLach- lin, as she then was, says just this in R. v. M. (T.E.):56 [C]rimes defined by the Criminal Code invariably cover a range of acts of varying degrees of seriousness in terms of the harm they are likely to cause to the victim, attracting a range of sentences of varying degrees of severity. Consider, for example, the offence of theft. Theft may be so small as to be trivial — for example, the taking of a quarter from the landlady’s change purse. Or it may be serious — for example, stealing millions of dollars from innocent investors. The courts properly fashion different sentences according to the different degrees of seriousness of the theft. ... [N]o one would deny ... that a given category of crime as defined by the Criminal Code is capable of embracing a wide variety of conduct, some more heinous and hence deserving of harsher punishment than others. 71 Sometimes Parliament expressly populates subsets of offences. For example, section 231 of the Criminal Code classifies murder as either first or second degree. An offender commits first degree murder if the homicide is the product of planning and deliberation, the victim held a specified position or the victim died as a result of specified criminal acts of the offender. To qualify as second degree murder an offender must have intended to cause the victim’s death or meant to cause the victim “bodily harm that [the offender] ... knows is likely to cause ... death and is reckless whether death ensues or not” and must have committed homicide in a manner not captured by the test for first degree murder.57 72 First degree murder is more serious than second degree murder. This is because an offender convicted of first degree murder is not eligible for parole until he or she has served twenty-five years of a life sentence.58

has taken a serious view of the offence of robbery as is shown by the fact that the penalty provided by law is life imprisonment and liability to be whipped”). 56 [1997] 1 S.C.R. 948 (S.C.C.), 998-99. See also R. v. Sandercock, 1985 ABCA 218 (Alta. C.A.), ¶ 5; (1985), 22 C.C.C. (3d) 79 (Alta. C.A.), 83 (“The crime of sexual assault, like the crime of robbery, is so broadly defined that it encom- passes all manner of crimes, some serious, some not so serious. A rational sentencing structure segregates them into meaningful categories”). 57 Criminal Code, s. 229(a)(ii). 58 Id. s. 745(a). 260 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

An offender convicted of second degree murder may be eligible for parole as soon as he or she has served at least ten years of a life sentence.59 73 Suppose that Parliament had not created first and second degree murder classifications and had stipulated that life imprisonment with no eli- gibility for parole until the murderers had served at least twenty-five years of the prison sentence is the maximum penalty for murder. Courts would have had to construct their own analytical framework to introduce rationality into the sentencing process. Judges may or may not have fash- ioned subsets of offences that contain the same characteristics as those Parliament assigned to the first and second degree murder subsets. But the key point is this — without an analytical framework, whatever it looked like, sentencing patterns would be even more erratic than they are with the modest guidance Parliament has provided. 74 The arson offence is best subdivided into three subsets.60 The first subset captures offences that are serious; the second groups together more serious crimes; the third subset collects the most serious crimes. 75 In order to assign offences to these three subsets one must have a grasp of the essential elements of the crime of arson. Its physical and mental components may be easily stated. The physical component con-

59 Id. s. 745(c). 60 Three subsets are frequently desirable. R. v. Nur, 2015 SCC 15 (S.C.C.), ¶ 82; [2015] 1 S.C.R. 773 (S.C.C.), 814-15 (possession of prohibited or restricted firearm with ammunition); R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 61; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 218 per Wakeling, J.A. (causing an accident resulting in bodily harm while operating a motor vehicle with a prohibited blood-alcohol concentration); R. v. H. (K.S.), 2015 ABCA 370 (Alta. C.A.), ¶ 62; (2015), [2016] 5 W.W.R. 700 (Alta. C.A.), 718 per Wakeling, J.A. (aggravated assault); R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 161; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 357-58 (second-degree-murder-parole-ineligibility period) per Wakeling, J.A.; R. v. Laberge, 1995 ABCA 196 (Alta. C.A.), ¶ 9; (1995), 165 A.R. 375 (Alta. C.A.), 378 (unlawful act manslaughter) & R. v. T. (R.P.), 1983 ABCA 175 (Alta. C.A.), ¶ 26; (1983), 7 C.C.C. (3d) 109 (Alta. C.A.), 115 (sexual abuse of children). See also Roberts, “Sentencing Guidelines in England and Wales: Recent Developments and Emerging Issues”, 76 Law & Contemp. Probs. 1, 5 (2013) (the author noted that “most offences for which a definitive guideline has been issued ... [are] stratified into three levels of seriousness”) & Sentencing Guidelines Council, Causing Death by Driving: Definitive Guidelines 10 (2008) (U.K.) (the offence guideline created three levels of seriousness). R. v. Yellowknee Wakeling J.A. 261

sists of damage to property that is not wholly owned by the arsonist caused by fire or explosion for which the arsonist is the cause. A person who sets fire to his own home has not contravened s. 434 of the Criminal Code. Nor has a person who drives a bulldozer into his neighbour’s home and destroyed it committed arson. The mental element of arson consists of an intentional or reckless state of mind. It is not enough if a negligent act of the accused causes a fire that destroys another’s property. Suppose that A, while working for B Roofing Co., thoughtlessly lights a cigarette while working with hot tar on C’s roof. The lit cigarette ignites some fumes and causes an explosion that causes A serious burns and destroys C’s home. Because A’s causative act was negligence, A is not guilty of arson. 76 The object of the classification exercise is the “creation of subsets that accurately measure comparable degrees of egregiousness”.61 This is desirable because s. 718.2(b) of the Criminal Code mandates that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. 77 There is a direct correlation between the seriousness or egregiousness of the offences assigned to each subset and the severity of the sentencing option. The most serious offences attract the most severe sentences range.62 The severity of the sentence range diminishes as the severity or seriousness of the cases assigned to a subset deescalates.

61 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 81; (2016), 612 A.R. 292 (Alta. C.A.), 309 per Wakeling, J.A.; R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 59; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 218 per Wakeling, J.A. & R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 156; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 355 per Wakeling, J.A. See R. v. H. (K.) (1994), 146 N.B.R. (2d) 372 (N.B. C.A.), 377 (C.A. 1994) (“the most blameworthy type of arson ... [attracts] the most severe punishment”). 62 R. v. Shular, 2014 ABCA 241 (Alta. C.A.), ¶ 44; (2014), 67 M.V.R. (6th) 208 (Alta. C.A.), 223 (“The most severe sentences should be reserved for the subset of offences which involve the most egregious contraventions of a criminal norm”) & R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 161; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 357-58 per Wakeling, J.A. (“The most egregious or grave cases belong to the subset with the longest period of parole ineligibility”). 262 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

c. Measuring the Severity of the Arson Offence 78 Selecting the criteria that identify the offences captured by each subset is a challenging task. 79 Many options exist. 80 The utility of markers is usually a function of their preciseness.63 Here is an example of a precise marker: an offender who imports heroin and morphine with a street value in excess of £1 million is subject to a prison sentence between twelve and fourteen years.64 Another is in this form: “unsophisticated armed robbery of unprotected commercial outlets

63 R. v. Stone, [1999] 2 S.C.R. 290 (S.C.C.), 411 (“a clarity requirement must be read into this appellate court authority [for setting ranges for sentences] because such guides would not be useful without a clear description of the category created and the logic behind the starting point appropriate to it”); R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 158; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 356 per Wakeling, J.A. (“The appropriate level of abstraction balances the need for precision with the need for a practical analytical tool”); R. v. Sandercock, 1985 ABCA 218 (Alta. C.A.), ¶ 3; (1985), 22 C.C.C. (3d) 79 (Alta. C.A.), 82 (“appellate guidance cannot be so vague as to permit unjustified disparity in sentencing”); R. v. M. (A.), [2010] NZCA 114 (New Zealand C.A.), ¶ 76; [2010] 2 N.Z.L.R. 750 (New Zealand C.A.), 770 (“On our approach, it will need to be clear what activity is involved”) & A. Young, The Role of an Appellate Court in Developing Sentencing Guidelines (Research Reports of the Canadian Sentenc- ing Commission) 32 (1988) (“[a methodology that] suffers from ... lack of sufficient details to establish an operative criteria [is not valuable]”). 64 R. v. Aramah (1982), 76 Cr. App. R. 190 (Eng. C.A.), 192 (1982). See also R. v. M. (T.E.), [1997] 1 S.C.R. 948 (S.C.C.), 998 (“In order to give guidance to sentencing judges, the Alberta Court of Appeal divided the vast global offence of sexual assault into two types, minor and major”); R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶¶ 169-73; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 361-72 per Wakeling, J.A. (one of the markers for the lowest range of parole ineligibility for second degree murderers was “offences in which the offender acted impul- sively and killed someone who was not the offender’s current or former domestic partner or child, as a result of an incident that occurred shortly before the homicide”) & R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 63; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 219 per Wakeling, J.A. (“The most egregious category of offences [under s. 255(2.1) of the Criminal Code] captures those in which the offender had a very high blood-alcohol concentration, drove in an environment where the risk of causing harm to persons was very high, drove in a manner where the risk of causing harm to others was very high, was working while driving and caused catastrophic harm to others”). R. v. Yellowknee Wakeling J.A. 263

in the absence of actual physical harm to the victim and with modest or no success”.65 81 It is not efficacious to assert that the sentencing range for serious offences is x to x+2; for more serious offence is x+3 to x+5; and for the most serious offences is x+6 to x+14. These markers are too abstract. 82 While conceding that this tripartite model — serious, more serious and most serious — represents an improvement over a system that features unbridled discretion, reason-based sentencers require much more concrete boundaries between the three subsets. It is extremely difficult to determine the seriousness of a crime without more guidance. 83 There are several variables that may influence whether arson is properly characterized as a serious, more serious or most serious example of arson. 84 One is the property that has been damaged. 85 The damaged property can be either public or private property. And within either of these categories there may be substantial differences. An arsonist who sets fire to the legislature and severely damages it and an arsonist who destroys a city riding mower worth $20,000 are not likely members of the same subset even though the damaged property in each case is public property. The same is true if the arsonist destroys a small neighbourhood storage shed as opposed to a multi-million dollar man- sion. There is a striking difference between a fire that damages a dwelling house and a storage shed even though private property is destroyed in both cases. 86 The mental element of the crime and the offender’s motive also introduce several measurable variables.

65 R. v. Johnas, 1982 ABCA 331 (Alta. C.A.), ¶ 19; (1982), 2 C.C.C. (3d) 490 (Alta. C.A.), 495. See also R. v. Billam (1986), 8 Cr. App. R. (S.) 48 (Eng. C.A.), 50 (1986) (“For rape committed by an adult without aggravating or mitigating features, ... five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility toward the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years”). 264 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

87 An arsonist who intends to cause a large amount of damage is more culpable than an arsonist who intends to cause only a small fire that grows unexpectedly.66 88 There are many reasons why arsonists strike.67 Is it because of an uncontrollable fascination with fire?68 Is it because the offender hates the owner of the destroyed property? Is it because the offender wishes to intimidate the victim? Is it because someone paid the arsonist? 89 How much time separated the arsonist’s decision to damage property by fire or explosion and the execution of the plan? Was it a spontaneous act or did a significant amount of time pass after the arsonist decided to use fire to damage property? 90 I will investigate these elements more fully.

i. Property Damage 91 Property damage69 is central to the crime of arson. 92 Suppose that A sets fire to the legislative buildings. Most would agree that this is a far more serious crime than setting fire to B’s storage shed in which B’s lawnmower and other garden equipment is kept. One destroys property owned by the community. The other violates the right of a single person. 93 But the fact that the legislative buildings are public property is not the primary reason why such a target makes it a very egregious crime.

66 I accept that property loss caused by an arsonist is just one measure of blameworthiness. As noted below the offender’s state of mind is a critical factor. An arsonist may have intended to destroy an entire structure but been only modestly successful. 67 R. v. H. (K.) (1994), 146 N.B.R. (2d) 372 (N.B. C.A.), 377 (C.A. 1994) (the Court observed that different types of arsonists acted for different reasons — pyromaniacs, vandals and professionals). 68 See R. v. M. (C.P.), 2009 ABPC 58 (Alta. Prov. Ct.), ¶ 76; (2009), 465 A.R. 385 (Alta. Prov. Ct.), 398 (“The degree of risk posed by an individual can be taken into account in measuring the length of a sentence. A person suffering from pyromania ... may pose a greater risk [of reoffending]”). 69 R. v. V. (M.) (1998), 123 C.C.C. (3d) 138 (Ont. C.A.), 144-45 (Ont. C.A. 1998) (the property damaged by an arsonist need not have any value). R. v. Yellowknee Wakeling J.A. 265

94 It is because the legislative building houses a democratic institution. So does city hall. Other structures such as court houses and government offices also promote democratic interests. 95 Other structures that provide important public services — hospitals, education facilities, airports, police stations, fire halls, auditoriums, art galleries and museums — should be accorded the same protection as democratic facilities. They promote a comparable public interest. 96 An arsonist who damages these structures attacks the collective good and causes harm to an entire community. These are targets that appeal to terrorists. 97 Some private property also services a large segment of the community and deserves special protection. Railroads, bus depots, hockey are- nas, pipelines, shopping centres and churches come to mind. 98 Dwelling places also merit special attention. The common law has always recognized that a person’s home is his or her castle and warrants extraordinary protection from invasion by state and private actors. The only question is whether an arsonist who damages a dwelling place should be assigned to the more serious or most serious subsets, or both. 99 Other property — such as garages and most personal property — do not attract the same level of condemnation.

ii. Mental Element 100 A person commits arson who damages property by fire either intentionally or recklessly.70 101 An arsonist who intends to use fire to cause property damage is mar- ginally more blameworthy than an arsonist who does so recklessly.71 102 The arsonist who acts with the intention to cause a large amount of property damage or other harm is more culpable than the criminal whose goal is more modest.

70 R. v. Tatton, 2014 ONCA 273 (Ont. C.A.), ¶ 23; (2014), 310 C.C.C. (3d) 309 (Ont. C.A.), 317 & R. v. D. (S.), 2002 NFCA 18 (Nfld. C.A.), ¶ 19; (2002), 164 C.C.C. (3d) 1 (Nfld. C.A.), 10. 71 See Sentencing Guidelines Council, Overarching Principles: Seriousness 6 (2004) (U.K.) (an offender who intends to cause harm is the most blameworthy actor). 266 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

103 So is an arsonist who entertains a criminal state of mind over a long period of time more blameworthy than a criminal who acts spontaneously.72 The actor who plans and deliberates a criminal act and does not deviate from the criminal enterprise has had ample opportunity to abandon the unlawful course.73 Not so for the spontaneous actor. 104 The arsonist’s motive is an important factor. 105 An actor who destroys property because he or she has been paid a large amount to do so is much more blameworthy than an actor like Yel- lowknee whose intoxication may have precluded him from appreciating the significance of the property loss to the owner of the destroyed property.

72 R. v. Cootes, 2011 BCCA 398 (B.C. C.A.), ¶ 49; (2011), 311 B.C.A.C. 183 (B.C. C.A.), 191 (the Court considered the fact that “[t]he [arson] crimes were impulsive, not a product of malice” as justifying a less severe prison sentence); R. v. M. (C.P.), 2009 ABPC 58 (Alta. Prov. Ct.), ¶ 76; (2009), 465 A.R. 385 (Alta. Prov. Ct.), 398 (“where the arson was committed in a planned manner such as bringing an accelerant to set the fire the moral culpability of the offender increases”); R. v. M. (A.), [2010] NZCA 114 (New Zealand C.A.), ¶ 37; [2010] 2 N.Z.L.R. 750 (New Zealand C.A.), 764 (sexual violation that is the product of planning is more reprehensible than an impulsive act); R. v. Murphy, 2014 ABCA 409 (Alta. C.A.), ¶ 42; (2014), 317 C.C.C. (3d) 314 (Alta. C.A.), 330 per Wakeling, J.A. (“An offender who plans a crime is more blameworthy than one who acts spontaneously”); R. v. Laberge, 1995 ABCA 196 (Alta. C.A.), ¶ 18; (1995), 165 A.R. 375 (Alta. C.A.), 381 (C.A. 1995) (“all other things being equal, impulsivity is less blameworthy than planned or repeated conduct”) & Criminal Justice Act 2003, c. 44, Sch. 21, s. 4(2)(a) (U.K.) (“a substantial degree of premeditation or planning” is one of the markers of an exceptionally high offence). 73 R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 163; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 359 per Wakeling, J.A. (“There is a correspondence between the amount of time when the offender harboured an intention to kill and the blameworthiness of the offender. As the duration increases so does the blameworthiness of the offender. An offender who charts a course and maintains it knowing where the course will take him or her has a more blameworthy state of mind than does one who causes another’s death almost immediately after forming an intention to do so. An offender who has contemplated a culpable homicide for any length of time will have had ample opportunity to reflect on the high degree of harm such a course entails”) & Sentencing Guidelines Council, Overarching Principles: Seriousness 6 (2004) (U.K.) (an offender who plans an offence is more blameworthy than a spontaneous actor). R. v. Yellowknee Wakeling J.A. 267

106 An arsonist whose conduct is attributable to his or her animosity towards the owner of the destroyed property is also arguably more culpable than the criminal who selects his victim at random. 107 There are two distinct types of criminals with specific victims as their targets. 108 In one type the actor is content to damage the victim’s property to settle a grudge.74 The arsonist does not want to alter the victim’s behaviour by using fire as a tactic. 109 Suppose that A believes that B Co. wrongfully dismissed him. A pours gasoline on a B Co. vehicle and ignites it. A is satisfied the moment the vehicle starts to burn. A did not act for any other reason than to harm B Co. 110 In the second type the actor uses fire as a means to alter the victim’s behaviour. 111 Suppose that A owes B a lot of money. A suffers financial reverses and cannot discharge his debt to B. B sues A to enforce his security. A burns B’s summer cottage to cause B to discontinue his lawsuit and his efforts to enforce B’s security. A acted with an additional purpose in mind. 112 The second type of crime is more reprehensible than the first type because it is intended to cause B to abandon a lawful course of action and interfere with B’s free will, a fundamental tenet of a free and democratic society. 113 This Court spoke out against intimidation in R. v. Thurston:75 [C]rimes of urban intimidation are totally inconsistent with the freedoms that are accorded the citizens of a democratic Canada, and will not be tolerated by the Court. Those freedoms depend upon the rec- ognition by every citizen of the rule of law, and the inescapable fact that there is a duty which accompanies every right. A free society cannot survive when zealots, no matter how laudable their motives might be and no matter how passionately they hold their beliefs, deliberately break the law in an effort to impose their will on others by dangerous and unlawful intimidation. When they do, the Court has an obligation to impose an exemplary sentence to recognize the serious

74 E.g., R. v. Clifford, 2015 BCSC 875 (B.C. S.C.) (the arsonist destroyed the property of his son’s maternal grandfather out of spite). 75 1994 ABCA 179 (Alta. C.A.), ¶ 8; (1994), 149 A.R. 226 (Alta. C.A.), 228. 268 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

nature of the crimes and to deter others from seeking to achieve their private ends through similar illegal means.

d. Assigning Subset Markers and Sentencing Ranges 114 Having considered potential distinguishing features, one must then determine how to best combine them to produce criteria that distinguish the three subsets of arson offences — serious, more serious and most serious.76

i. The Most Serious Arson Crimes 115 Arson crimes damaging public property that is used by the legislative, executive and administrative branches of government — legislatures, city halls, government offices and courthouses — and those that provide important public services — airports, fire halls, police stations, hospitals, schools and libraries — are the most egregious form of arson. These are attacks on the institutions and welfare of the community. They undoubt- edly must be members of arson crimes properly catalogued as the most serious crimes. 116 Arson crimes that damage private property that is used to provide important services to large segments of the public are also justly catalogued as the most serious forms of arson. This subset includes damage to train stations, bus depots, pipelines, auditoriums and hockey stadiums, to name but a few facilities. Crimes that target these undertakings attack the welfare of the community.

76 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 82; (2016), 612 A.R. 292 (Alta. C.A.), 310 per Wakeling, J.A. (“the most egregious subset captures the most blameworthy offences”); R. v. Bright, [2008] EWCA Crim 462 (Eng. C.A.), ¶ 29; [2008] 2 Cr. App. R. (S.) 578 (Eng. C.A.), 588 (“the maximum sentence permitted by statute is reserved not for the worst possible case which can realis- tically be conceived, but for cases which in the statutory context are truly identified as cases of the utmost gravity”) & R. v. Butt, [2006] EWCA Crim 47 (Eng. & Wales C.A. (Crm.)), ¶ 11; [2006] 2 Cr. App. R. (S.) 59 (Eng. & Wales C.A. (Crm.)), 367 (the Court confirmed the continued force of Lawton L.J.’s 1975 opinion: “[W]hen judges are asking themselves whether they should pass the maximum sentence, they should not use their imagination to conjure up unlikely worst possible kinds of cases. What they should consider is the worst type of offence which comes before the court and ask themselves whether the particular case they are dealing with comes within the broad band of that type”). R. v. Yellowknee Wakeling J.A. 269

117 While multi-family dwellings do not serve the same purpose as train stations and pipelines, they do provide benefits important enough to their occupants to justify placing crimes that target them in this category. This is particularly so for apartments or condominiums. 118 Crimes committed by professional arsonists and others who act for significant financial reward should also be accorded membership in this subset without regard to the nature of the property they destroy or its value. These perpetrators have concluded that their own financial interests are more important than the victim’s interests. They probably do not know the victims and have no reason whatsoever to harm them. 119 Suppose that A is a known arsonist in the criminal community. B has a thriving pizza restaurant in a university community. C builds a pizza restaurant in the same area and attracts some of B’s customers. B retains A to firebomb C’s restaurant. A’s fee is $25,000. A does not know C and likes pizza. 120 A person who uses property damage by fire to cause another to do or refrain from doing something he or she is lawfully entitled to do or refrain from doing causes enough harm to the community to characterize the crime as a most serious form of arson. 121 I gave the example earlier of the arsonist who set fire to a creditor’s cottage to cause the creditor to refrain from enforcing the creditor’s rights. This is a reprehensible crime not just because of the damage done to the victim’s property. It is an affront to our civil justice system. 122 Another important question that needs to be answered is the sentence range for this set of arson crimes that are assigned to the most serious subset of arson crimes. 123 Given the severity of the harm the crimes in this category cause their victims — the community — and the wide variety of crimes properly assigned to this subset a significant range is necessary. A defensible and appropriate range is six to fourteen years inclusive.77 This gives a sentencer a nine-year range to work with. This should be sufficient.

77 Could a lower or higher cutoff point have been selected? Of course. And valid reasons exist to support a different demarcation point. But I have concluded that six years is the most appropriate floor for this category and the appropriate ceiling for the subset of more serious arson offences. 270 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

iii. The Serious Arson Crimes 124 I will now focus on the markers for the set of arson crimes that are the least egregious, always keeping in mind that any arson crime is egregious. 125 Arson crimes that cause property damage to property not covered by the other subsets and is of less than $40,000 in value can generally be allotted to this subset. This means that arson crimes damaging garages,78 sheds,79 most cars80 and many types of equipment would be assigned to this entry level subset. 126 The dividing point could have been $30,000 or $50,000 or any other comparable number. That is a given. But the fact that a number has to be selected is also a given. Criminal statutes routinely use bright-line standards. For example, s. 334 of the Criminal Code declares that a thief who steals property the value of which exceeds $5,000 is liable to a term of imprisonment not exceeding ten years. A thief who steals property with a value of $5,000 or less is liable to a term of imprisonment not in excess of two years. In 1982 the English Court of Criminal Appeal in R. v. Aramah selected a £100,000 street value as the benchmark for prison terms between seven and twelve years for the importation of heroin and morphine and £1 million and up as the demarcation point for prison terms between twelve to fourteen years. The Court gave no reason for its

78 R. v. Beckstrom, 2005 ABPC 196 (Alta. Prov. Ct.), ¶ 38 (the Court effectively stated that the starting point sentence for an arsonist who damaged a garage was two-years’ incarceration). 79 R. v. Lapointe, 2010 NBCA 63 (N.B. C.A.), ¶ 37; (2010), 260 C.C.C. (3d) 528 (N.B. C.A.), 547 (the Court substituted an eighteen-month sentence for a three-year sentence for an arsonist who damaged a residential shed on the basis of the totality principle, stating that the original sentence might have been fit standing alone) & The Queen v. Parent, [2007] A.R. Uned. 167 (P.C.) (the Court sentenced an arsonist who damaged outdoor toilets and an elevator and caused approximately $14,500 in loss to a twenty-two months prison term). 80 R. v. Beckstrom, 2005 ABPC 196 (Alta. Prov. Ct.), ¶ 37 (the Court effectively stated that the starting point sentence for an arsonist who caused $3,000 damage to a motor vehicle was one-year prison term) & R. v. Allen, 2014 NWTTC 7 (N.W.T. Terr. Ct.), ¶¶ 39-40 (the Court imposed a one-year prison term and a one-year probation term on an arsonist who pled guilty to causing minor damage to a vehicle). R. v. Yellowknee Wakeling J.A. 271

decision to select these street value amounts. This is not necessary to ensure their utility. A judgment call had to be made. 127 This dividing line means that an arsonist who sets fire to a classic Chevrolet Corvette worth $150,000 would face a sterner prison term than the arsonist who firebombs a used Chevy subcompact worth $2,000. This is not to suggest that the loss the owner of the Chevy subcompact would suffer is not significant. The owner may be a single parent who uses the vehicle to transport a disabled child to and from school and physiother- apy sessions. On the other hand, the Corvette owner may be a collector who has a number of Corvettes. Measuring this type of loss is much more difficult than using replacement costs as the yardstick. In the end, the line needs to be drawn and property value has considerable utility. 128 A suitable range of sanctions for this entry level subset would include nonincarceration options81 and a term of imprisonment of less than two years.82 This is nonpenitentiary time. Some offences warrant a relatively modest sanction.

iii. The More Serious Arson Crimes 129 By a process of elimination the middle category of arson crimes has a sentence range commencing at two years — penitentiary time83 — and ending at a day less than six years.

81 Criminal Code, s. 730 (discharge), s. 731(1)(a) (suspended sentence), 734 (fine alone) & 731(1)(b) (fine and probation). 82 R. v. Cootes, 2011 BCCA 398 (B.C. C.A.), ¶ 51; (2011), 311 B.C.A.C. 183 (B.C. C.A.), 191 (the Court substituted a twelve-month prison term for an eighteen-month term for an arsonist who damaged a van, a car and a shed). 83 R. v. M. (C.P.), 2009 ABPC 58 (Alta. Prov. Ct.), ¶ 76; (2009), 465 A.R. 385 (Alta. Prov. Ct.), 398 (“Penitentiary terms for s. 434 offences are reserved for those where the gravity of the offence is serious”). 272 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

130 Arson crimes that fall in this more serious category include damage to dwelling places,84 stores,85 accommodations such as motels and dormi- tories,86 regardless of the quantum of the damage, and other types of

84 R. v. Rowsell (2002), 210 Nfld. & P.E.I.R. 226 (Nfld. T.D.), 230 & 233 (Nfld. T.D. 2002) (the Court, after noting that the appropriate range was from two to six years, sentenced the arsonist who damaged a house his mother owned and he lived in to two years less a day plus a probation term of three years, a sentence he acknowledged was “extremely lenient”); R. v. Fewer, [2004] N.J. No. 433 (N.L. Prov. Ct.) (the Court sentenced the arsonist who burned down a residence (loss of $48,500) in which his brother had been sexually assaulted years ago to a prison term of twenty-seven months less time served; the offender pled guilty) & R. v. Wood, [1988] B.C.J. No. 1985 (B.C. C.A.) (C.A. chambers) (the Court refused to give an arsonist who pled guilty leave to appeal a twenty-two month prison sentence for damaging his family residence; the arsonist acted to preserve the safety of his wife and children). 85 R. v. Elliott (1981), 35 Nfld. & P.E.I.R. 49 (Nfld. C.A.), 59 (Nfld. C.A. 1981) (the Court reduced a sentence of two arsonists, who pled guilty to damaging a small community general store, from six years to a three-year prison term) & R. v. Caines (1981), 35 Nfld. & P.E.I.R. 446 (Nfld. C.A.), 447 (Nfld. C.A. 1981) (the Court sentenced an arsonist who damaged a variety store in a small town ($80,000 loss), after a trial, to a three-year prison term) & R. v. Keber, 2005 BCCA 543 (B.C. C.A.), ¶ 10; (2005), 218 B.C.A.C. 125 (B.C. C.A.), 127 (the Court upheld a two-year plus three-year probation term on an arsonist who damaged a gas station). 86 R. v. Eng, 2000 BCCA 31 (B.C. C.A.), ¶¶ 1 & 8; (2000), 137 B.C.A.C. 163 (B.C. C.A.), 164 & 166 (the Court affirmed a four-year sentence for an arsonist who damaged a university dormitory). R. v. Yellowknee Wakeling J.A. 273

property87 not in the most serious crimes subset, so long as the value of the damage exceeds $40,000.88 131 This regime places a pyromaniac89 who destroys a $4 million man- sion and an arsonist who damages a $50,000 trailer home in the same subset. But this does not mean that both of these criminals deserve the

87 R. v. Clifford, 2015 BCSC 875 (B.C. S.C.), ¶ 30 (the Court imposed a three- year prison term on an arsonist who destroyed a rural garage and caused a loss “in the hundreds of thousands of dollars”); R. v. Jandrew, 2014 BCPC 317 (B.C. Prov. Ct.) (the Court imposed prison terms on an arsonist who caused “tremen- dous damage” and pled guilty ranging from 2.5 to four years); R. v. Day, 2013 BCCA 172 (B.C. C.A.), ¶¶ 1 & 19; (2013), 336 B.C.A.C. 224 (B.C. C.A.), 224 & 228 (the Court upheld a two-year prison sentence and a two-year probation term for an offender who destroyed a farm trailer) & R. v. Walker, 2007 BCSC 122 (B.C. S.C.), ¶ 12 (the Court imposed a three-year prison term on an arsonist found guilty of setting fire to three vehicles). 88 See R. v. Bain, 2005 ABPC 101 (Alta. Prov. Ct.), ¶ 36; (2005), 377 A.R. 120 (Alta. Prov. Ct.), 128 (the Court sentenced an arsonist who pled guilty to causing damage to a garage and a connected house to a two-year prison term and a two-year probation term less time served); R. v. H. (K.) (1994), 146 N.B.R. (2d) 372 (N.B. C.A.), 377 (C.A. 1994) (the Court, in reviewing the sentence of a young offender, noted that the adult arsonists who participated in the crime received 4.5 and 3.5 years for destroying a storage facility and causing over $3 million in damage); R. v. Deen (1997), 93 B.C.A.C. 53 (B.C. C.A.), 54 (1997) (the Court noted that the arsonist had been sentenced to a four-year prison term for damage to a retail store in excess of $3 million) & R. v. Kelly, [2000] B.C.J. No. 2381 (B.C. Prov. Ct.) (the Court sentenced an arsonist who pled guilty to damaging eleven school buses, four vehicles, two houses under construction and a portable school structure to a six-year prison term). 89 An offender who is a pyromaniac requires special consideration at the stage of the analysis that concentrates on the attributes of the offender. A mental health condition that is untreatable or treatable only with the cooperation of the offender that is absent marks an offender as unusually dangerous and a candi- date for an extended prison term. R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 182; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.). See also R. v. Diebel, 2007 ABCA 418 (Alta. C.A.), ¶ 21; (2007), 422 A.R. 377 (Alta. C.A.), 382 (the offender’s mental health condition and his refusal to help himself make him a future “high risk for violent — even homicidal violence”) & R. v. Bennight, 2012 BCCA 461 (B.C. C.A.), ¶ 28; (2012), 329 B.C.A.C. 250 (B.C. C.A.), 257 (“the judge did not err in placing excessive weight on the appellant’s future dangerousness”). 274 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

same sentence. An arson crime for the destruction of a $4 million man- sion should be close to the ceiling for this subset — six years less a day. And while most sentencers will probably be reluctant to impose such a severe sentence on the arsonist who damages a $50,000 trailer home, they must be mindful of the fact that arson crimes aimed at dwelling places are very serious crimes and must be severely sanctioned. Arson crimes that damage dwelling places should attract a sanction from the top half — four to six years less a day — of the more serious arson crimes subset.90 While this type of arson does not directly affect as large a number of persons as does an attack on a school, it does traumatize the victims. There can be few more disturbing and unsettling experiences than having one’s home and most-valuable possessions destroyed or damaged by an arsonist.91 132 The same problem arises in the theft of property over $5,000 scenario. An art thief who steals a Group of Seven painting worth $4 million will face the same maximum sentence — 10 years — as does an art thief who walks off with a painting valued at $100,000. Obviously a sentencer may give them different sentences.

e. Classification of an Offence 133 Once the analytical framework is in place, the sentencer must ascer- tain which subset is the best match for the crime before the sentencer. 134 The starting point is determined by the offence.92 135 This step obliges the sentencer to carefully consider the most important features of the crime and select a point on the subset sentence con-

90 R. v. Meer, 2016 ABCA 368 (Alta. C.A.) (the Court in a sentence appeal said nothing to suggest that a five-year sentence for destruction of a summer cottage was unfit). 91 2011 ABQB 46 (Alta. Q.B.), ¶ 17; (2011), 507 A.R. 365 (Alta. Q.B.), 369 (“[The victims] lost two beautiful homes. They lost all of their treasures — especially the treasures, which, though they had small monetary value, were price- less from a sentimental point of view”). 92 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 128; (2016), 612 A.R. 292 (Alta. C.A.), 316 per Wakeling, J.A.; R. v. H. (K.S.), 2015 ABCA 370 (Alta. C.A.), ¶ 82; (2015), [2016] 5 W.W.R. 700 (Alta. C.A.), 724 per Wakeling, J.A.; R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 95; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 227 per Wakeling, J.A. & R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 197; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 386 per Wakeling, J.A. R. v. Yellowknee Wakeling J.A. 275

tinuum. This is an important exercise because the differential between the start and end points may be measured in years. The end product of this exercise is the starting point sentence.

f. Adjustments to the Starting Point Sentence 136 Adjustments are usually made to the starting point sentence — the product of an assessment of the offence — to arrive at the finishing point — the actual sentence.93 This exercise has a clear statutory mandate. Section 718.2(a) of the Criminal Code states that “a sentence should be increased or reduced to account for any relevant aggravating and mitigating circumstances ....”94 137 The identification of an aggravating factor results in an upward adjustment to the starting point. A mitigating factor warrants a downward adjustment. Justice McLachlin, as she then was, emphasized this in R. v. M. (T.E.):95 “the starting-point approach mandates consideration of specific aggravating and mitigating factors directly relevant to the individual accused.” So did this Court in R. v. Ma:96 “The significance of the starting point is that it may be departed from by increasing or decreasing the severity of the sentence depending on a number of factors.” The New Zealand Court of Appeal also expressed the same opinion in R. v. M. (A.)

93 R. c. Lacasse, 2015 SCC 64 (S.C.C.), ¶¶ 58, 60, 69 & 143; [2015] 3 S.C.R. 1089 (S.C.C.), 1118, 1119-20, 1122 & 1147; R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 128; (2016), 612 A.R. 292 (Alta. C.A.), 316 per Wakeling, J.A.; R. v. Ostertag, 2000 ABCA 232 (Alta. C.A.), ¶ 12; (2000), 35 C.R. (5th) 350 (Alta. C.A.), 356 & R. v. Sandercock, 1985 ABCA 218 (Alta. C.A.), ¶ 6; (1985), 22 C.C.C. (3d) 79 (Alta. C.A.), 83 (Alta. C.A. 1985). See Sentencing Guidelines Council, Overarching Principles: Seriousness 6 (2004) (“Sentencing guidelines for a particular offence will normally include a list of aggravating factors which, if present in an individual instance of the offence, would indicate either a higher than usual level of culpability on the part of the offender, or a greater than usual degree of harm caused by the offence (or sometimes both)”) & Council of Eu- rope, Consistency in Sentencing 26 (1993) (“these are starting-points and not finishing-points: they are designed to ensure consistency of approach”). 94 See also Criminal Justice Act 2003, c. 44, sch. 21, s. 8 (U.K.) (“Having chosen a starting point, the court should take into account any aggravating or mitigating factors”). 95 [1997] 1 S.C.R. 948 (S.C.C.), 987. 96 2003 ABCA 220 (Alta. C.A.), ¶ 15; (2003), 177 C.C.C. (3d) 535 (Alta. C.A.), 540. 276 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

:97 “This ‘starting point’ sentence is, at the next step, adjusted up or down to reflect circumstances which are personal to the offender ....” 138 Any upward or downward adjustment must be the product of an objective-based deliberation.98 Adjustments attributable to unknown and unarticulated values undermine the legitimacy of this important phase of the sentencing process.99 The “failure of sentencing courts to accord similar treatment to comparable mitigating and aggravating circumstances leads to unjustifiable inconsistency in sentences”.100 The Council of Eu- rope has recognized the need for uniform adjusting mechanisms:101 “If consistency of approach is to be achieved, each member state should move toward the clarification of the major aggravating and mitigating factors .... If there is no agreement on these matters, subjective disparity between judges is likely to result”. 139 The undesirable effect of standardless adjustments is easy to illustrate. 140 Suppose that two sentencers have to impose sentences on two young fathers convicted of the aggravated assault of their infants — shaken baby cases. Each sentencer independently concludes on a rational basis utilizing an accepted analytical framework that the starting point sentence is forty-eight months. Both fathers immediately revealed to health- care providers the fact that they had shaken their babies and pled guilty at the earliest reasonable opportunity. The sentencers understood that a downward adjustment to the benchmark of forty-eight months imprisonment was appropriate. Sentencer A concludes that a one-third adjustment is fit and imposes a sentence of thirty-two months. Sentencer B believes that a ten percent reduction is fair. The end result is that two offenders who are similarly situated receive very different sentences — 43.2 and 32 months. This is unacceptable. “Justice requires that two offenders in

97 [2010] NZCA 114 (New Zealand C.A.), ¶ 14; [2010] 2 N.Z.L.R. 750 (New Zealand C.A.), 758. 98 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 131; (2016), 612 A.R. 292 (Alta. C.A.), 316 per Wakeling, J.A. 99 R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 91; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 225-26 per Wakeling, J.A. 100 Id. 101 Consistency in Sentencing 31 (1993). R. v. Yellowknee Wakeling J.A. 277

identical life circumstances who commit identical crimes should receive identical sentences”.102

i. Aggravating Circumstances 141 Aggravating circumstances may be attributable to either a fact relating to the offence or the offender.103 142 In R. v. Murphy,104 I discussed aggravating factors: Section 718.2(a) is not an exhaustive statement of aggravating factors. There may be other aggravating factors which relate to the offender but have nothing to do with the offence. Does the offender have prior convictions for the same offence or other offences? Prior convictions may support the view that a stiffer sentence than would otherwise be indicated is needed to deter the offender from committing future criminal offences. 143 An offender whose crime constitutes a breach of bail or an undertaking is more blameworthy than an offender whose crime was not committed under such conditions.105

102 R. v. Sandercock, 1985 ABCA 218 (Alta. C.A.), ¶ 3; (1985), 22 C.C.C. (3d) 79 (Alta. C.A.), 82. 103 R. c. Lacasse, 2015 SCC 64 (S.C.C.), ¶ 143; [2015] 3 S.C.R. 1089 (S.C.C.), 1147. R. v. M. (T.E.), [1997] 1 S.C.R. 948 (S.C.C.), 987; R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 128; (2016), 612 A.R. 292 (Alta. C.A.), 316 per Wakeling, J.A. & R. v. Sandercock, 1985 ABCA 218 (Alta. C.A.), ¶ 4; (1985), 22 C.C.C. (3d) 79 (Alta. C.A.), 83. See Sentencing Guidelines Council, Over- arching Principles: Seriousness 6 (2004). 104 2014 ABCA 409 (Alta. C.A.), ¶ 43; (2014), 317 C.C.C. (3d) 314 (Alta. C.A.), 330-31. 105 Criminal Code, s. 718.2(a)(vi) & Sentencing Guidelines Council, Overarch- ing Principles: Seriousness 6 (2004) (an offender who committed an offence “whilst on bail for other offences” is more blameworthy than an offender whose freedom is not subject to conditions). See also R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 182; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 378 (“an act in contravention not only of a Criminal Code provision but of an order made under the Criminal Code, such as a firearm ban” may warrant an upward adjustment to the starting point). 278 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

ii. Mitigating Circumstances 144 Like aggravating circumstances, mitigating circumstances may also arise from a fact linked to the offence or the offender.106 Facts connected with an offender may precede or follow the date of the offence. 145 Guilty pleas and rehabilitation progress are frequently assessed as mitigating circumstances. 146 I have explained why a sentencer would credit an offender for a guilty plea:107 First, it may be a sign that the offender appreciates that his or her criminal conduct adversely affects others in the community. This could presage better decision-making on the part of the offender in the future. The offender may be rehabilitable. Second, a guilty plea invariably reduces the amount of state resources that must be devoted to resolving the charges against the accused. This includes the costs associated with providing a courtroom, a judge, a prosecutor, legal aid and a police force. A policy that leads to good stewardship of a scarce administration-of-justice resource is sound. Third, in some cases a guilty plea means that the victim need not recite in public the events that constitute a crime. ... Fourth, expeditious resolution of criminal charges reduces the amount of time other criminal cases wait in the queue. 147 An offender who pleads guilty at the earliest reasonable opportunity should usually receive one-third credit.108 A smaller credit is in order for offenders who plead guilty after the Crown has completed its trial prepa-

106 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 138; (2016), 612 A.R. 292 (Alta. C.A.), 318 per Wakeling, J.A. & Sentencing Guidelines Council, Overarching Principles: Seriousness 7 (2004) (U.K.). 107 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 139; (2016), 612 A.R. 292 (Alta. C.A.), 318. 108 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 140; (2016), 612 A.R. 292 (Alta. C.A.), 318 per Wakeling, J.A.; R. v. Ryan, 2015 ABCA 286 (Alta. C.A.), ¶ 188; (2015), 329 C.C.C. (3d) 285 (Alta. C.A.), 382 per Wakeling, J.A.; R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 105 n. 49; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 229 n. 49 per Wakeling, J.A.; R. v. H. (K.S.), 2015 ABCA 370 (Alta. C.A.), ¶ 86; (2015), 609 A.R. 99 (Alta. C.A.), 122 per Wakeling, J.A.; R. v. Buffrey (1992), 14 Cr. App. R. (S.) 511 (Eng. & Wales C.A. (Crm.)), 515 (1993) & Sentencing Guidelines Council, Reduction in Sentences for a Guilty Plea: De- finitive Guideline 5 (rev. 2007) (U.K.). R. v. Yellowknee Wakeling J.A. 279

ration and witnesses have been summoned and made arrangements to attend court.109

iii. Other Factors May Warrant an Adjustment 148 A final adjustment may be necessary to take into account the objectives listed in s. 718 of the Criminal Code and the principles recorded in s. 718.2 of the Criminal Code. For example, “a harsher sentence [may be] needed to deter others besides the offender”110 in order to reduce the prevalence of a particular form of criminal conduct in the community — perhaps impaired driving.111

109 R. v. Vigon, 2016 ABCA 75 (Alta. C.A.), ¶ 140; (2016), 612 A.R. 292 (Alta. C.A.), 318 per Wakeling, J.A.; Sentencing Guidelines Council, Reduction in Sentence for a Guilty Plea: Definitive Guideline 5 (rev. 2007) (U.K.) & Hessell v. R., [2010] NZSC 135 (New Zealand S.C.), ¶ 76; (2010), [2011] 1 N.Z.L.R. 607 (New Zealand S.C.), 631 (“After a trial has commenced some real justification should be required before any allowance is made”). 110 R. v. Murphy, 2014 ABCA 409 (Alta. C.A.), ¶ 54; (2014), 317 C.C.C. (3d) 314 (Alta. C.A.), 334 per Wakeling, J.A. See also R. c. Lacasse, 2015 SCC 64 (S.C.C.), ¶ 72; [2015] 3 S.C.R. 1089 (S.C.C.), 1124 (“In reducing the sentence imposed by Judge Couture ... the Court of Appeal ... disregarded the local real- ity, thereby ... departing from the objectives of deterrence and denunciation”); R. v. Johnas, 1982 ABCA 331 (Alta. C.A.), ¶ 12; (1982), 2 C.C.C. (3d) 490 (Alta. C.A.), 493 (a sentence may be adjusted upwards to deter persons from committing a crime that is prevalent in the community); R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 92; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 226 per Wakeling, J.A. (“This inquiry takes into account factors that have nothing to do with the offence or the offender. It focuses on community-based facts. Is an upward adjustment to the sentence needed to communicate the community’s abhorrence of drinking and driving and to deter community members from engaging in a prevalent form of anti-social behaviour?”) & Leeth v. Commonwealth, [1992] H.C.A. 29 (Australia H.C.), ¶ 7; (1992), 174 C.L.R. 455 (Australia H.C.), 476 per Bren- nan, J. (“an offence may be prevalent in one locality and rare in another, and sentences in these localities for offences of the same kind and seriousness may properly reflect those factors”). 111 R. c. Lacasse, 2015 SCC 64 (S.C.C.), ¶ 13; [2015] 3 S.C.R. 1089 (S.C.C.), 1103 (“it was open to the trial judge ... to consider the frequency of impaired driving in the district where the crime was committed”); R. v. Johnas, 1982 ABCA 331 (Alta. C.A.), ¶ 5; (1982), 2 C.C.C. (3d) 490 (Alta. C.A.), 493 (a severe sentence may be necessary to deter the commission of common crimes) & R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 (Ont. C.A.), 357 (Ont. C.A. 280 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

g. Conclusion 149 This analytical framework is consistent with the fundamental purposes and principles of sentencing that are adopted in the Criminal Code and the values that the Supreme Court embraced in R. c. Lacasse.112

3. Applying the Analytical Framework a. Four Years Is the Starting Point 150 The offender destroyed by fire a trailer that served as the residence of his common law wife and their children. It did not belong to him. The Bigstone Band owned it. 151 Mr. Yellowknee’s offence is properly classified as a more serious arson offence. The sentencing range for this subset is from two years to six years less a day. 152 Arsonists who damage dwelling places commit a very serious offence. 153 The starting point for an arsonist who damages a dwelling place is somewhere in the upper half of the middle subset range — four years to six years less a day. 154 There is no direct evidence of the value of the dwelling place that Mr. Yellowknee destroyed. All that can safely be said is that it was a derelict structure, probably of minimal value. 155 Under these circumstances, the starting point sentence is four years or forty-eight months. 156 There are aggravating and mitigating circumstances.

b. Aggravating Circumstances 157 Mr. Yellowknee caused the damage to the Bigstone Band’s property while he was intoxicated.113 He had consumed so much alcohol that he is unable to recall any of the events surrounding his criminal conduct.

1997) (“The sentence for those crimes must bring home to other like-minded persons that drinking and driving offences will not be tolerated”). 112 2015 SCC 64, [2015] 3 S.C.R. 1089 (S.C.C.). 113 See Sentencing Guidelines Council, Overarching Principles: Seriousness 6 (2004) (an offender who commits an offence “while under the influence of alcohol or drugs” is more blameworthy than an offender who is not under the influence). R. v. Yellowknee Wakeling J.A. 281

158 To make matters worse, the offender consumed alcohol in contravention of an undertaking given on July 1, 2015 to abstain from drinking alcohol.114 159 Mr. Yellowknee is an alcoholic. He must know that he makes extremely poor choices if there is alcohol in his body. These poor choices may adversely affect others. That is what led to the July 1, 2015 undertakings. 160 Mr. Yellowknee is not a single man. His life choices affect others besides himself. 161 This crime has deprived his common law wife and his children of the ability to live as a family in their own dwelling place. 162 The offender chose to consume alcohol in violation of a court undertaking not to do so knowing that this selfish behaviour may cause him to make choices that may harm his family. This has happened before. This is especially noteworthy. 163 Mr. Yellowknee’s decision to set fire to the trailer was not spontaneous. He notified his common law wife that she should remove her be- longings because he intended to destroy their residence. 164 These aggravating factors result in a substantial upward adjustment — fifteen percent or 7.2 months- to the starting point sentence.

c. Mitigating Circumstances 165 These are two, possibly three, mitigating circumstances. 166 First, Mr. Yellowknee pled guilty at the earliest reasonable opportunity. A one-third reduction — sixteen months — on account of a guilty plea is a fair credit.115

114 R. v. Fattah, 2006 ABQB 178 (Alta. Q.B.), ¶ 31; (2006), 393 A.R. 369 (Alta. Q.B.), 374 (the sentencer increased the parole ineligibility period from eighteen to twenty-one years because the offender used a firearm to commit the crime despite being subject of a court order prohibiting him from possessing a firearm) & R. v. Fouquet, 2005 ABQB 673 (Alta. Q.B.), ¶ 25 (“Normally, committing a murder with a firearm in the face of a weapons prohibition should add four to five years to the period of parole ineligibility”). 115 R. v. H. (K.S.), 2015 ABCA 370 (Alta. C.A.), ¶¶ 85 & 86; (2015), 609 A.R. 99 (Alta. C.A.), 122 & R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 105; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 229 (in dissent I concluded that a one-third credit was fair for an offender who pled guilty at the earliest reasonable opportu- 282 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

167 Second, Mr. Yellowknee has abstained from the use of alcohol for over a year and appears to be making an effort to acquire the life skills that will allow him to live without alcohol. This is a positive sign that he is committed to a rehabilitation program. But he has made previous attempts to abstain from alcohol that have failed. Judge Paul was aware of this:116 “Even if Mr. Yellowknee is not inclined to commit an offence like this again, and to be honest with you we don’t know that because if he does not successfully address his alcohol issue ... there’s nothing to suggest that he wouldn’t do it again.” 168 If Judge Paul had concluded that Mr. Yellowknee had rehabilitated himself and was not a danger to the community on account of his alcoholism, a reduction of up to twenty percent would have been fair.117 This is not the case. Judge Paul did not make this finding. He no doubt was aware that the offender was not a young man and that it is difficult for

nity). See also Sentencing Guidelines Council, Reduction in Sentencing for a Guilty Plea: Definitive Guidelines 5 (rev. 2007) (U.K.) (“the level of reduction will ... [range] from a recommended one-third (where the guilty plea was entered at the first reasonable opportunity in relation to the offence for which the sentence is being imposed) ... to a recommended one-tenth (for a guilty plea entered at the ‘door of the court’ or after the trial has begun)”) & R. v. Buffrey (1992), 14 Cr. App. R. (S.) 511 (Eng. & Wales C.A. (Crm.)), 515 (the Court suggested a one-third sentence reduction for a guilty plea). 116 Appeal Record 13: 39-14: 2. 117 R. v. H. (K.S.), 2015 ABCA 370 (Alta. C.A.), ¶ 88; (2015), 609 A.R. 99 (Alta. C.A.), 122 per Wakeling, J.A. (relying on the sentencer’s determination that the offender had rehabilitated himself and was not a risk to reoffend, I stated that “I would have been inclined to reduce Mr. H.’s sentence by twenty percent”); R. v. Spina, 1997 ABCA 235, 200 A.R. 133 (Alta. C.A.)(the Court allowed the offender’s sentence appeal and reduced it by half because the sentencing court failed to attach proper weight to the fact that the offender was rehabilitated at the date of sentencing) & Gall v. United States, 552 U.S. 38 (U.S. Sup. Ct. 2007) (2007) (the Supreme Court affirmed a District Court judgment imposing probation on an offender who pled guilty to participating in a conspiracy to traffic drugs while in university, a sentence well below the guideline form because the offender had rehabilitated himself even before he was charged many years after the offender’s participation in the drug trafficking undertaking had ceased). R. v. Yellowknee Wakeling J.A. 283

older persons set in their ways to change course.118 A modest reduction — five percent — adequately recognizes the progress that the offender has made towards rehabilitation to date. 169 Third, assuming, without deciding, that the environment in which Mr. Yellowknee was raised119 — an alcoholic father and poor parenting — activates the Gladue principles and entitles him to some modest credit and that the treatment he has received for alcoholism, his education and his age do not preclude their consideration. This credit, along with the five percent discount for his rehabilitation efforts, effectively offsets the aggravating factors. 170 As a result, the finishing point is a sentence of thirty-two months incarceration. This is the starting point of four years less sixteen months, one-third credit for pleading guilty at the earliest reasonable opportunity. 171 There is no rational basis to conclude that the sentence reduction sought by Mr. Yellowknee would qualify as a fit sentence.

VII. Conclusion 172 Leave to appeal is granted pursuant to s. 675(1)(b) of the Criminal Code.120 173 This appeal is dismissed. 174 I acknowledge the able assistance of counsel. Mr. Bromley identified the best arguments that were available to his client. Mr. Joyce, Crown

118 See R. v. M. (C.P.), 2009 ABPC 58 (Alta. Prov. Ct.), ¶ 78; (2009), 465 A.R. 385 (Alta. Prov. Ct.), 398 (“Offences are often committed by young people because of lack of maturity, or poor judgment. Rehabilitation generally is considered to be highest when a person is youthful”) & R. v. Rossi, 2016 ABCA 43 (Alta. C.A.), ¶ 100; (2016), 95 M.V.R. (6th) 196 (Alta. C.A.), 228 per Wakeling, J.A. (I recognized that the offender was a young man whose post-crime choices allowed me to conclude that “[t]here is good reason to believe that he recognizes that he has made poor choices in the past and is committed to abandoning this pattern”). 119 R. v. S. (D.C.) (2000), 47 O.R. (3d) 612 (Ont. C.A.), 615 (C.A. 2000) (“Al- though the appellant’s crimes warrant a jail sentence, the hardships he has suffered [as a result of his upbringing] should be taken into account in determining a fit sentence”). 120 See R. v. Hutchinson, [2015] VSCA 115 (Australia Vic. Sup. Ct.), ¶¶ 2, 24 & 26 (the Court refused the offender leave to appeal his sentence because it was “unduly lenient”, and not “manifestly excessive”, as asserted). 284 ALBERTA LAW REPORTS 48 Alta. L.R. (6th) counsel, adopted a position that fairly recognized Mr. Yellowknee’s interests. Appeal dismissed. R. v. Gauvreau 285

[Indexed as: R. v. Gauvreau] Her Majesty the Queen (Appellant) and Luke Gauvreau (Respondent) Alberta Court of Appeal Docket: Calgary Appeal 1601-0274-A 2017 ABCA 74 Patricia Rowbotham, J.D. Bruce McDonald, Jo’Anne Strekaf JJ.A. Heard: February 22, 2017 Judgment: March 3, 2017 Criminal law –––– Offences — Impaired driving causing bodily harm — Sentencing –––– Accused was drinking at pub and when he left, his ability to operate motor vehicle was impaired by alcohol — RCMP officer attempted traffic stop after accused’s vehicle passed semi- trailer truck on highway at 204 km/h in 110 km/h zone — Accused approached exit ramp, but failed to negotiate turn due to speed that was sufficient to vault his vehicle through air twice — All four of accused’s passengers were injured — Accused fled without attending to his passengers and evaded police before surrendering — Accused pleaded guilty to impaired driving causing bodily harm — Considering accused’s lack of criminal record, favourable pre-sentence report, his employer’s reference letter, his acceptance of responsibility, and his expression of remorse, sentencing judge reduced 12-month sentence by 3 months to account for early guilty plea and steps he had taken since offence — Crown appealed nine-month sentence of imprisonment — Appeal allowed — When there are reviewable errors that have impact on sentence, appellate court cannot intervene unless sentence is demonstrably unfit — Sentencing judge’s approach in relying on rigid framework proposed in dissenting opinion in R. v. Rossi could not be endorsed — He double- counted guilty plea and steps taken by accused as mitigating factors, and underemphasized his fleeing scene as aggravating factor — Both were reviewable errors that impacted sentence because they substantially affected proportionality analysis — As result, sentence was demonstrably unfit — While Crown did not pursue charges of leaving scene and evading police, they were aggravating factors — Accused’s conduct not only deprived his victims of help, but also deprived police of ability to determine level of his impairment — His driving was very dangerous — This was serious offence for which principle sentencing objectives were denunciation and deterrence — Accused’s moral blameworthiness was high — Fit sentence was 15 months’ imprisonment. 286 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

Criminal law –––– Post-trial procedure — Appeal from sentence — Grounds — Error in principle –––– Accused was drinking at pub and when he left, his ability to operate motor vehicle was impaired by alcohol — RCMP officer attempted traffic stop after accused’s vehicle passed semi- trailer truck on highway at 204 km/h in 110 km/h zone — Accused approached exit ramp, but failed to negotiate turn due to speed that was sufficient to vault his vehicle through air twice — All four of accused’s passengers were injured — Accused fled without attending to his passengers and evaded police before surrendering — Accused pleaded guilty to impaired driving causing bodily harm — Con- sidering accused’s lack of criminal record, favourable pre-sentence report, his employer’s reference letter, his acceptance of responsibility, and his expression of remorse, sentencing judge reduced 12-month sentence by 3 months to account for early guilty plea and steps he had taken since offence — Crown appealed nine-month sentence of imprisonment — Appeal allowed — When there are reviewable errors that have impact on sentence, appellate court cannot intervene unless sentence is demonstrably unfit — Sentencing judge’s approach in relying on rigid framework proposed in dissenting opinion in R. v. Rossi could not be endorsed — He double-counted guilty plea and steps taken by accused as mitigating factors, and underemphasized his fleeing scene as aggravating factor — Both were reviewable errors that impacted sentence because they substantially affected proportionality analysis — As result, sentence was demonstrably unfit — While Crown did not pursue charges of leaving scene and evading police, they were aggravating factors — Accused’s conduct not only deprived his victims of help, but also deprived police of ability to determine level of his impairment — His driving was very dangerous — This was serious offence for which principle sentencing objectives were denunciation and deterrence — Accused’s moral blameworthiness was high — Fit sentence was 15 months’ imprisonment. Cases considered: R. c. Lacasse (2015), 2015 SCC 64, 2015 CSC 64, 2015 CarswellQue 11715, 2015 CarswellQue 11716, [2015] S.C.J. No. 64, [2015] A.C.S. No. 64, 86 M.V.R. (6th) 1, 24 C.R. (7th) 225, (sub nom. R. v. Lacasse) 478 N.R. 319, [2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450, 396 D.L.R. (4th) 214 (S.C.C.) — followed R. v. Andrew (1994), 91 C.C.C. (3d) 97, 46 B.C.A.C. 299, 75 W.A.C. 299, 6 M.V.R. (3d) 293, 1994 CarswellBC 563, [1994] B.C.J. No. 1456 (B.C. C.A.) — followed R. v. Currell (2010), 2010 CarswellOnt 9444, [2010] O.J. No. 5791 (Ont. S.C.J.) — considered R. v. Currell (2010), 2010 ONCA 826, 2010 CarswellOnt 9268, [2010] O.J. No. 5228 (Ont. C.A.) — referred to R. v. Dawad (2014), 2014 ABCA 240, 2014 CarswellAlta 1217, [2014] A.J. No. 775, 65 M.V.R. (6th) 174, 577 A.R. 373, 613 W.A.C. 373 (Alta. C.A.) — followed R. v. Gauvreau Per curiam 287

R. v. M. (C.A.) (1996), 46 C.R. (4th) 269, 194 N.R. 321, 105 C.C.C. (3d) 327, 73 B.C.A.C. 81, 120 W.A.C. 81, [1996] 1 S.C.R. 500, 1996 CarswellBC 1000, 1996 CarswellBC 1000F, [1996] S.C.J. No. 28, EYB 1996-67066 (S.C.C.) — considered R. v. Rossi (2016), 2016 ABCA 43, 2016 CarswellAlta 199, [2016] A.J. No. 158, 612 A.R. 183, 662 W.A.C. 183, 95 M.V.R. (6th) 196, 34 Alta. L.R. (6th) 255 (Alta. C.A.) — considered Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 249.1(4)(a) [en. 2000, c. 2, s. 1] — considered s. 252(1.2) [en. 1999, c. 32, s. 1] — considered s. 255(2) — considered

APPEAL by Crown from sentence imposed for impaired driving causing bodily harm.

J. Morgan, for Appellant T. Foster, Q.C., for Respondent

Per curiam:

1 The Crown appeals a nine–month sentence of imprisonment imposed for impaired driving causing bodily harm pursuant to section 255(2) of the Criminal Code, RSC 1985, c C–46. 2 We allow the appeal and impose a sentence of imprisonment of fifteen months. We affirm the victim fine surcharge and the three year driving prohibition.

I. Background 3 The agreed statement of facts includes the following. The respondent was driving home on Highway 1 near Canmore, Alberta after consuming alcohol at a pub. He had four passengers in his vehicle. When he left the pub, his ability to operate a motor vehicle was impaired by alcohol. 4 A RCMP officer observed the respondent’s vehicle passing a semi– trailer truck at 204 kilometers per hour in a 110 km/h zone. The officer activated his emergency lights and attempted a traffic stop. The respondent acknowledged to his passengers that the RCMP was attempting to stop him. He did not slow down but, rather, approached an exit ramp. Two signs on the ramp indicated that speeds of 80 km/h then 30 km/h 288 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

were recommended. The respondent braked but failed to negotiate the turn to the exit ramp. The vehicle was travelling so fast that rather than make the turn, it entered the median of an intersecting highway and vaulted 28.5 meters through the air landing on the far side of the highway. The vehicle became airborne a second time (eight meters) before impacting a hill on the east side of the highway. Environmental and road conditions were not a factor. 5 Data collected from the vehicle indicated that five seconds prior to impact the vehicle was travelling at 179 kilometres per hour and the brakes were fully engaged. At that speed a driver is “outside of his headlights” meaning he is travelling so fast that if there is something on the road, he would not be able to react to it in time. 6 All four passengers were injured. One passenger sustained soft tissue injuries to his neck and back requiring a number of chiropractic appoint- ments. Another had multiple broken ribs, a collapsed lung, bruising to her face and shoulders, soft tissue injuries to her tailbone making walking very difficult for the first few weeks post–incident. A third suffered a broken orbital bone and soft tissue injuries. The fourth had a broken nose, soft tissue injuries to his ankle and knee, chest soreness, bruising to his tibia and shin. Two of the four passengers provided victim impact statements describing depression and the effect of the injuries on their work and personal lives. 7 The respondent was not injured and fled without attending to his passengers. The RCMP and emergency services assisted the passengers who were taken to the hospital for treatment. The RCMP attempted to appre- hend the respondent. When RCMP contacted the respondent by cellular telephone the respondent indicated that he was at home, and he was told that the RCMP would attend there shortly. A sniffer dog tracked the respondent to the residential complex where he lived. The RCMP searched his home but the respondent was not there. 8 Seventeen hours after the accident, the respondent surrendered to police. He subsequently entered a guilty plea to one count of impaired driving causing bodily harm that encompassed all four passengers. The Crown did not pursue four other charges associated with evading the police (section 249.1(4)(a)) and leaving the scene of the accident and failing to offer assistance to an injured person (section 252(1.2)). 9 The respondent was 31 years old at the time of the offence. He has no criminal record. He is fully employed and had a positive pre–sentence report. R. v. Gauvreau Per curiam 289

II. Sentencing Decision (Unreported) 10 The Crown sought a sentence of 18 to 24 months’ imprisonment. De- fence counsel argued for a 90–day intermittent sentence with a period of probation. 11 The sentencing judge found that the respondent’s degree of responsibility was high. The offence was serious, he ignored the police, he ignored the pleas of his passengers to stop, and he left the scene of the accident. Additionally, given that deterrence and denunciation are domi- nant sentencing factors in cases involving vehicles and alcohol, the sentencing judge held that incarceration was necessary. 12 The sentencing judge stated that the sentence proposed by the Crown was not unreasonable. However, relying on the dissenting reasons in R. v. Rossi, 2016 ABCA 43, 612 A.R. 183 (Alta. C.A.) he found that the offence fell into the “more egregious” category. In crafting the sentence, the sentencing judge considered the respondent’s lack of a prior criminal record, the favourable pre–sentence report, his employer’s reference letter, his expression of remorse at the sentencing hearing, his acceptance of responsibility for his criminal behaviour “virtually from the outset”, and that he had taken “significant steps to restore his relations in the community”. 13 The sentencing judge concluded that 12 months’ imprisonment, the lowest available in the “more egregious” category, was appropriate. He then reduced it by three months to account for the respondent’s early and timely guilty plea and the positive steps outlined in the pre–sentence report. The final sentence was nine months’ imprisonment and a three–year driving prohibition.

III. Grounds of Appeal and Standard of Review 14 The Crown appeals the sentence on two grounds: i. The sentencing judge erred in the identification and assessment of the applicable mitigating and aggravating circumstances, leading to a distorted view of proportionality. ii. The sentence imposed is demonstrably unfit. 15 The Supreme Court “has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives of the 290 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

Criminal Code. Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.”: R. c. Lacasse, 2015 SCC 64 (S.C.C.) (headnote), [2015] 3 S.C.R. 1089 (S.C.C.).

IV. Discussion R. v. Rossi 16 The sentencing judge’s approach (with which both counsel agreed) was to categorize the offence in accordance with the dissenting opinion in Rossi. That opinion creates three categories of impaired driving causing bodily harm: least egregious, more egregious and most egregious, and sets ranges of sentence for each category. The sentencing judge characterized this offence as in the “more egregious” category. The range proposed by the dissent in Rossi for this category is 12 months to four years. The sentencing judge imposed the lowest sentence in that category (12 months), and then deducted three months for the guilty plea and the steps taken by the respondent since the offence. 17 The Crown submits, “reliance by all parties [and the sentencing judge] on the dissenting reasons [in Rossi] creates some challenges.” This is an understatement. We do not and cannot endorse the approach advocated by the dissent in Rossi. Parliament has not adopted sentencing “grids”. The application of the rigid framework proposed in the Rossi dissent fetters the proportionality analysis required by the Criminal Code and the Supreme Court’s decision in R. v. M. (C.A.), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 (S.C.C.).“The overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a just and appropriate sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.”: ibid at para 82. 18 No matter how thoughtfully crafted, there will be factors that were not included as defining characteristics in the rigid framework proposed by the dissent in Rossi which would have been considered in the proportionality analysis. For example, here there was no blood–alcohol reading whereas very specific and bright–line blood–alcohol readings are the main defining characteristic of the dissenting judge’s Rossi framework. 19 To be clear, reliance on the dissent in Rossi was not raised as a ground of appeal and we do not decide this appeal based upon the sentencing judge’s adoption of it. However, the dissent in Rossi is not law in R. v. Gauvreau Per curiam 291

Alberta and to rely upon it, depending upon the circumstances, may well constitute reviewable error. 20 Nevertheless, the sentencing judge made two reviewable errors. First, he double counted the guilty plea and the steps taken by the respondent since the offence as mitigating factors. Second, although the sentencing judge made brief reference to the respondent fleeing the scene, he underemphasized this as an aggravating factor. These two errors resulted in a sentence that was demonstrably unfit.

Mitigating Factors 21 The sentencing judge did not separately set out the mitigating factors but these can be found in his reasons at Transcript 45/23–31 (with emphasis): . . .as is clear from the presentence report, the offender’s employer reference letter, and the offender’s expression of remorse made at the sentencing hearing. Mr. Gauvreau has accepted responsibility from the outset –– virtually from the outset for his criminal behaviour and has taken significant steps to restore his relations in the community. Therefore, I find that a sentence of 12 months’ imprisonment, the lowest available in the more egregious category, is appropriate. That amount is reduced by three months to take into account the offender’s early and timely guilty plea and the steps that he has taken as outlined in the presentence report. 22 The Crown suggests that the sentencing judge erred when he referred to the respondent’s “significant steps to restore his relations in the community”. While the conclusion is a stretch, given that all the respondent did was return to work where he received an award as a valued employee, we do not find this statement to be a reviewable error. 23 The sentencing judge identified four mitigating factors: the expression of remorse, the reference letter from the employer, the acceptance of responsibility from the outset and the “significant steps”. The acceptance of responsibility is the plea of guilty, and the sentencing judge had already considered the steps taken by the respondent after the offence in arriving at the 12 month sentence. Double counting these factors to arrive at a nine–month sentence is a reviewable error.

Aggravating Factors 24 The aggravating factors were not separately delineated nor described as aggravating but the sentencing judge did refer to them in his discus- 292 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

sion of the respondent’s degree of responsibility. He said: “the offence is serious and given the facts that the offender ignored the police response to his driving, ignored the pleas of the complainants to stop, and the fact that he left the scene, the offender’s degree of responsibility as a result is high”: Transcript at 44/26–29. 25 The Crown submits that: “[o]verall the approach to the aggravating factors suggests a failure to adequately define proportionality” such that the reasoning “cannot withstand scrutiny”. 26 We agree. While the Crown did not pursue the charge of leaving the scene and evading the police, they are aggravating factors. The respondent was uninjured. His four passengers were injured. He did not remain at the scene to determine how seriously they were injured or to render assistance. He walked away. He told the police when they called that he was at home but left before they arrived. The respondent’s conduct not only deprived his victims of help but also deprived the police of the ability to determine the level of his impairment. Other than the passing reference quoted above, the sentencing judge failed to assess the aggravating effect of the respondent’s conduct or increase the sentence because of it.

Fitness of Sentence 27 Lacasse reminds us that even when there are reviewable errors, an appellate court cannot intervene unless the errors have an impact on sentence. Both errors impact this sentence because they substantially affect the proportionality analysis. In the result, we sentence afresh. In so doing we acknowledge the letter from the Lethbridge Correctional Centre which describes the respondent as a model inmate, with great work ethic. 28 The essential elements of this offence are three–fold: driving while impaired, the impairment is causally connected to a collision causing bodily harm and bodily harm was caused by the collision: see generally R. v. Andrew (1994), 46 B.C.A.C. 299, 91 C.C.C. (3d) 97 (B.C. C.A.). In crafting a fit sentence we must have regard to the level of impairment, the driving and the injuries suffered by the victims. 29 As to the level of impairment, we can only rely on the agreed facts which simply state that when the respondent left the pub his ability to operate a motor vehicle was impaired by alcohol. It would be improper to speculate about the level of impairment in the absence of any evidence. The driving however was very dangerous. The RCMP “clocked” the respondent’s vehicle at 204 km/hr in a 110km/hr zone. He approached an exit ramp at 179 km/hr (knowing that the police had ob- R. v. Gauvreau Per curiam 293

served his vehicle). He was travelling “outside his headlights”. The speed was sufficient to vault the vehicle, not once but twice. Although the injuries were not catastrophic, four people were injured and two were still suffering the effects at the date of the sentencing. 30 We were referred to a number of cases from this jurisdiction and others. The cases confirm that there is a broad range of sentence for this offence; from a 90–day intermittent sentence to the sentence sought by the Crown, 18 to 24 months. We cannot sentence the respondent for the offence of leaving the scene but we observe that when an offender is convicted of the separate offence of fleeing the scene a court has imposed a consecutive sentence of six months: R. v. Currell, 2010 Cars- wellOnt 9444 (Ont. S.C.J.), aff’d 2010 ONCA 826 (Ont. C.A.). Two decisions of this court support a sentence in the range of 12 to 18 months without the aggravating factor of leaving the scene. The majority in Rossi concluded that a fit sentence was at least 12 months when the 19–year old offender who had pleaded guilty, had a blood–alcohol reading of 132 mg%, fell asleep or passed out and drifted over oncoming lanes of traffic before striking a tree. Three passengers were injured; one passenger who was not wearing a seatbelt required multiple surgeries and was in a coma. (A 90–day sentence was upheld for reasons unrelated to fitness.) Rossi did not flee the scene and the driving was less egregious. 31 In R. v. Dawad, 2014 ABCA 240, 577 A.R. 373 (Alta. C.A.) the 21–year old offender pleaded guilty. He had been drinking and lost control of his vehicle on a road that was snow and ice covered and in poor winter driving condition. The offender’s blood–alcohol content was 128 mg%. He was injured as was his 11–year old cousin who was very severely and permanently injured. This court concluded that a fit sentence would have been 15 to 18 months. However, given other circumstances (the over two and half year delay in sentencing and the considerable remorse over the permanent injury to the offender’s cousin), a 90–day intermittent sentence was upheld. 32 As emphasized in Dawad: Drunk driving is not a mere regulatory offence; it is a true crime . . .. It follows that members of the public who recklessly choose to drink and drive expose themselves to a substantial term of imprisonment. That said, the specific sentence in each such case will turn on the mix of aggravating and mitigating factors. . .. 294 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

V. Conclusion 33 This is a serious offence for which the principle objective of sentencing is denunciation and deterrence, and in particular, the deterrence of others who drink and get behind the wheel of a vehicle putting many lives in danger. The moral blameworthiness of the respondent is high. He not only drove while impaired and at a grossly excessive speed, he also left his injured passengers at the scene and evaded the police. We do acknowledge as mitigating, the four factors relied upon by the sentencing judge and referred to in paragraph 23 above. We conclude that a fit sentence for this offence and this offender is 15 months’ imprisonment. We uphold the victim fine surcharge and the three year driving prohibition. Appeal allowed. Horst Tyson Dahlem Profess. Corp. v. John F. Schneider 295

[Indexed as: Horst Tyson Dahlem Professional Corp. v. John F. Schneider Professional Corp.] Horst Tyson Dahlem Professional Corporation (Respondent / Plaintiff) and John F. Schneider Professional Corporation, operating as Canmore Legal Services and John F. Schneider (Appellants / Defendants) Alberta Court of Appeal Docket: Calgary Appeal 1601-0054-AC 2017 ABCA 97 Frans Slatter, Barabar Lee Veldhuis, Sheila Greckol JJ.A. Heard: February 9, 2017 Judgment: March 27, 2017 Professions and occupations –––– Barristers and solicitors — Organization and regulation of profession — Law firms — Miscellaneous –––– Personal liability of lawyer — Plaintiff, lawyer D’s professional corporation, and defendant lawyer S’s professional corporation, entered into employment agreement that provided that D would be paid commissions based on fees received — D presented S with invoice for $71,166.98 but he was only paid $17,791.75 — S terminated D’s employment and locked D out of building — Trial judge allowed plaintiff’s action against defendants to recover amount owing under employment agreement — Judge held that plaintiff had legitimate claim against defendant for $53,375.23 plus interest, as plaintiff did all that was required and S had acknowledged amounts were owing — Judge found S personally liable under s. 133 of Legal Professions Act, as his liability related to practice of law — S had locked D out of office and prevented him from having access to files — S failed to produce documents he relied on in timely manner and could not introduce documents through exhibits — D was entitled to percentage of fees, which were received by S’s office as legal fees, and were not paid to D — S retained money earned by associate through practice of law and associate earned his fair share — Defendants appealed — Appeal allowed in part on other grounds — Judge made no error in concluding that S was personally liable — Wages of associate lawyer, engaged through employment, were costs associated with practice of law — There was no basis to interfere with judge’s decision to exclude evidence proffered by S in support of claim that staff time ought to have been deducted from plaintiff’s commissions, given that S’s delayed disclosure of documentation violated duty of disclosure. Professions and occupations –––– Barristers and solicitors — Organization and regulation of profession — Law firms — Relationship between part- 296 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

ners –––– Plaintiff, lawyer D’s professional corporation, and defendant lawyer S’s professional corporation, entered into employment agreement that provided that D would be paid commissions based on fees received — D presented S with invoice for $71,166.98 but he was only paid $17,791.75 — Trial judge allowed plaintiff’s action against defendants to recover amount owing under employment agreement — Judge dismissed defendants’ counterclaim alleging plaintiff breached employment agreement — Judge held that plaintiff had legitimate claim against defendant for $53,375.23 plus interest, as plaintiff did all that was required and S had acknowledged amounts were owing — Judge found no merit to S’s allegations that D breached employment agreement by attributing other staff’s time and work to himself and writing off accounts and reducing contin- gency fees — Judge rejected defendants’ claims that plaintiff owed them for advertising and for typewriter — Defendants appealed — Appeal allowed in part — Defendants were entitled to set off amounts owing for advertising and typewriter — Plaintiff admitted in its statement of defence to counterclaim that it agreed to pay for portion of advertising, but that it never received invoice — Judge erred in ignoring pleaded admissions of plaintiff — There was no evidentiary basis for conclusion that plaintiff was not liable for advertising and typewriter. Contracts –––– Remedies for breach — Damages — Interest –––– Plaintiff, lawyer D’s professional corporation, and defendant lawyer S’s professional corporation, entered into employment agreement that provided that D would be paid commissions based on fees received — D presented S with invoice for $71,166.98 but he was only paid $17,791.75 — Trial judge allowed plaintiff’s action against defendants to recover amount owing under employment agreement — Judge held that plaintiff had legitimate claim against defendant for $53,375.23 plus interest — Judge awarded contractual interest of 6.5 percent per annum compounded semi-annually — Defendants appealed — Appeal allowed in part on other grounds — Discretion to deny interest under Judgment Interest Act did not extend to contractual interest — Parties had contracted that any outstanding amounts would bear interest at 6.5 percent per annum, compounded semi-annually — There was no basis for finding that interest rate was unconscionable — There was no indication that parties expected interest would accrue for only limited period of time. Civil practice and procedure –––– Costs — Particular orders as to costs — Costs on solicitor and own client basis –––– Plaintiff, lawyer D’s professional corporation, and defendant lawyer S’s professional corporation, entered into employment agreement that provided that D would be paid commissions based on fees received — Trial judge allowed plaintiff’s action against defendants to recover $53,375 plus interest as amount owing under employment agreement — Judge awarded costs on solicitor-and-client basis — Judge found that defendants acknowledged debt to plaintiff but spent almost ten years battling claim at every Horst Tyson Dahlem Profess. Corp. v. John F. Schneider 297 step — Judge found that defendants tried to delay trial by unsuccessfully attempting to file late affidavits of production — Judge held that case did not go quite so far as to warrant costs on solicitor and own client basis — Judge held that defendants hindered, delayed or confused litigation, where there was no serious issue of fact or law requiring lengthy, expensive proceedings — Defend- ants appealed costs order — Appeal allowed — Judge erred in ordering solicitor-and-client costs — Litigation was subject to serious delay, but defendants were not sole cause of delay — Defendants’ actions did not rise of level of reprehensible, scandalous or outrageous conduct — Defendants’ application to introduce late evidence was dismissed, which was significant remedy for lateness of application — Misconduct with respect to one discrete step was not justification for awarding solicitor-client costs for entire action and trial — It could not be said that personal liability of lawyer as shareholder of professional corporation was not serious issue of law — Plaintiff was awarded assessed costs of trial. Cases considered: Alberta Permit Pro v. Booth (2009), 2009 ABCA 146, 2009 CarswellAlta 548, 3 Alta. L.R. (5th) 201, [2009] 6 W.W.R. 599, 61 B.L.R. (4th) 22, 460 A.R. 129, 462 W.A.C. 129 (Alta. C.A.) — referred to Alberta v. Fletcher Estate (1994), 27 Alta. L.R. (3d) 384, 167 A.R. 59, 1994 CarswellAlta 715 (Alta. Surr. Ct.) — considered Balm v. 3512061 Canada Ltd. (2003), 2003 ABCA 98, 2003 CarswellAlta 458, 327 A.R. 149, 296 W.A.C. 149, [2003] A.J. No. 417, 14 Alta. L.R. (4th) 221 (Alta. C.A.) — considered Bun v. Seng (2015), 2015 ABCA 165, 2015 CarswellAlta 854 (Alta. C.A.) — referred to Canada (Attorney General) v. Roger M. Bourbonnais Professional Corp. (1996), 39 Alta. L.R. (3d) 17, [1996] 6 W.W.R. 571, 181 A.R. 389, 116 W.A.C. 389, [1996] 3 C.T.C. 5, 96 D.T.C. 6438, 1996 CarswellAlta 824, [1996] A.J. No. 378, 1996 ABCA 130 (Alta. C.A.) — distinguished Corkery v. Foster Wedekind (1987), 56 Alta. L.R. (2d) 268, 88 A.R. 232, (sub nom. Corkery v. Foster) 45 D.L.R. (4th) 159, 1987 CarswellAlta 262 (Alta. Q.B.) — considered Creston Moly Corp. v. Sattva Capital Corp. (2014), 2014 SCC 53, 2014 CSC 53, 2014 CarswellBC 2267, 2014 CarswellBC 2268, 373 D.L.R. (4th) 393, 59 B.C.L.R. (5th) 1, [2014] S.C.J. No. 53, [2014] 9 W.W.R. 427, 461 N.R. 335, 25 B.L.R. (5th) 1, 358 B.C.A.C. 1, 614 W.A.C. 1, (sub nom. Sattva Capital Corp. v. Creston Moly Corp.) [2014] 2 S.C.R. 633 (S.C.C.) — referred to Deans v. Thachuk (2005), 2005 ABCA 368, 2005 CarswellAlta 1518, 48 C.C.P.B. 65, 20 E.T.R. (3d) 19, 2005 C.E.B. & P.G.R. 8177 (headnote only), 52 Alta. L.R. (4th) 41, 261 D.L.R. (4th) 300, 376 A.R. 326, 360 W.A.C. 326, [2006] 4 W.W.R. 698, 23 C.P.C. (6th) 100, [2005] A.J. No. 1421 (Alta. C.A.) — referred to 298 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

Edmonton Telephones Corp. v. Monette (1994), 160 A.R. 72, 1994 CarswellAlta 673, [1994] A.J. No. 755 (Alta. Q.B.) — considered Evans v. Teamsters, Local 31 (2008), 2008 SCC 20, 2008 CarswellYukon 22, 2008 CarswellYukon 23, 65 C.C.E.L. (3d) 1, 2008 C.L.L.C. 210-019, [2008] S.C.J. No. 20, 292 D.L.R. (4th) 577, 374 N.R. 1, 253 B.C.A.C. 1, 425 W.A.C. 1, D.T.E. 2008T-400, [2008] 1 S.C.R. 661 (S.C.C.) — referred to Halkyard v. Mathew (2001), 2001 ABCA 67, 2001 CarswellAlta 273, 4 C.C.L.T. (3d) 271, [2001] 7 W.W.R. 26, 277 A.R. 373, 242 W.A.C. 373, 91 Alta. L.R. (3d) 201, [2001] A.J. No. 293 (Alta. C.A.) — referred to Hamilton v. Open Window Bakery Ltd. (2003), 2004 SCC 9, 2003 CarswellOnt 5591, 2003 CarswellOnt 5592, 40 B.L.R. (3d) 1, 235 D.L.R. (4th) 193, [2003] S.C.J. No. 72, 316 N.R. 265, 184 O.A.C. 209, 2004 C.L.L.C. 210- 025, 70 O.R. (3d) 255 (note), [2004] 1 S.C.R. 303, REJB 2004-54076, 70 O.R. (3d) 255, 2004 CSC 9 (S.C.C.) — referred to Housen v. Nikolaisen (2002), 2002 SCC 33, 2002 CarswellSask 178, 2002 Car- swellSask 179, [2002] S.C.J. No. 31, 286 N.R. 1, 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, [2002] 7 W.W.R. 1, 219 Sask. R. 1, 272 W.A.C. 1, 30 M.P.L.R. (3d) 1, [2002] 2 S.C.R. 235, REJB 2002-29758, 2002 CSC 33 (S.C.C.) — referred to Jackson v. Trimac Industries Ltd. (1993), 8 Alta. L.R. (3d) 403, 138 A.R. 161, [1993] 4 W.W.R. 670, 1993 CarswellAlta 310, [1993] A.J. No. 218 (Alta. Q.B.) — considered Magnum Leasing v. John’s Sandblasting & Painting Ltd. (2000), 2000 CarswellAlta 671, 84 Alta. L.R. (3d) 149, 269 A.R. 309 (Alta. Q.B.) — distinguished National Trust Co. v. Conroy (1995), 28 Alta. L.R. (3d) 213, [1995] 6 W.W.R. 363, 168 A.R. 161, 1995 CarswellAlta 123, [1995] A.J. No. 336 (Alta. Q.B.) — referred to Penner v. Niagara Regional Police Services Board (2013), EYB 2013-220248, 2013 SCC 19, 2013 CarswellOnt 3743, 2013 CarswellOnt 3744, 32 C.P.C. (7th) 223, 49 Admin. L.R. (5th) 1, [2013] S.C.J. No. 19, 356 D.L.R. (4th) 595, 442 N.R. 140, 304 O.A.C. 106, [2013] 2 S.C.R. 125, (sub nom. Penner v. Niagara (Police Services Board)) 118 O.R. (3d) 800 (note) (S.C.C.) — referred to Rayani v. Yule & Co. (Hong Kong) Ltd. (1996), 36 Alta. L.R. (3d) 217, [1996] 3 W.W.R. 574, 178 A.R. 231, 110 W.A.C. 231, 1996 CarswellAlta 491, [1996] A.J. No. 27, 1996 ABCA 35 (Alta. C.A.) — distinguished Sandilands v. Powell (2003), 2003 ABCA 162, 2003 CarswellAlta 956, 34 C.P.C. (5th) 81, 35 B.L.R. (3d) 1, 330 A.R. 92, 299 W.A.C. 92, [2003] 11 W.W.R. 618, 19 Alta. L.R. (4th) 216, [2003] A.J. No. 855 (Alta. C.A.) — distinguished Stringer v. Empire Life Insurance Co. (2015), 2015 ABCA 349, 2015 Carswell- Alta 2104, 57 C.C.L.I. (5th) 108 (Alta. C.A.) — referred to Horst Tyson Dahlem Profess. Corp. v. John F. Schneider Per curiam 299

Young v. Young (1993), [1993] 8 W.W.R. 513, 108 D.L.R. (4th) 193, 18 C.R.R. (2d) 41, [1993] 4 S.C.R. 3, 84 B.C.L.R. (2d) 1, 160 N.R. 1, 49 R.F.L. (3d) 117, 34 B.C.A.C. 161, 56 W.A.C. 161, [1993] R.D.F. 703, [1993] S.C.J. No. 112, 1993 CarswellBC 264, 1993 CarswellBC 1269, EYB 1993-67111 (S.C.C.) — considered Statutes considered: Judgment Interest Act, R.S.A. 2000, c. J-1 s. 2(2)(h) — considered Judgment Interest Act, S.A. 1984, c. J-0.5 Generally — referred to s. 2(2)(h) — considered Legal Profession Act, R.S.A. 1980, c. L-9 s. 116(1) — considered Legal Profession Act, R.S.A. 2000, c. L-8 s. 133 — considered s. 133(1) — considered Rules considered: Alberta Rules of Court, Alta. Reg. 124/2010 Generally — referred to

APPEALS by defendant lawyer and professional corporation from judgment reported at Horst Tyson Dahlem Professional Corp. v. John F. Schneider Professional Corp. (2016), 2016 ABQB 92, 2016 CarswellAlta 191, 88 C.P.C. (7th) 407 (Alta. Q.B.), allowing plaintiff’s action and dismissing defendants’ counterclaim, and from judgment reported at Horst Tyson Dahlem Professional Corp. v. John F. Schneider Professional Corp. (2016), 2016 ABQB 173, 2016 CarswellAlta 509, 38 Alta. L.R. (6th) 328 (Alta. Q.B.), awarding solicitor-client costs.

M.A. Amery, for Respondent R. Jadusingh, for Appellants

Per curiam: INTRODUCTION 1 This is an appeal of a debt claim and a subsequent costs order with respect to an agreement between two lawyers through their professional corporations. For the reasons that follow, we allow the appeal in part. 300 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

BACKGROUND 2 The facts have been set out in detail by the trial court: Horst Tyson Dahlem Professional Corp. v. John F. Schneider Professional Corp., 2016 ABQB 92 (Alta. Q.B.) at paras 2–16, (2016), 88 C.P.C. (7th) 407 (Alta. Q.B.); Debt Action Decision, Horst Tyson Dahlem Professional Corp. v. John F. Schneider Professional Corp., 2016 ABQB 173 (Alta. Q.B.) at paras 1–7, (2016), 38 Alta. L.R. (6th) 328 (Alta. Q.B.) Costs Decision. 3 Mr. Dahlem joined Canmore Legal Services (CLS) as a lawyer in Oc- tober, 2003. Mr. Schneider owned and operated CLS through his professional corporation, John F Schneider Professional Corporation. The parties entered into an agreement whereby Mr. Dahlem was to be paid commission based on a percentage of collected billings. 4 In 2005, Mr. Dahlem incorporated his own professional corporation, Horst Tyson Dahlem Professional Corporation (HTDPC). In 2006, the parties signed a written contract between the two professional corporations which they titled “Employment Agreement.” That agreement was retroactive to Mr. Dahlem’s start date in 2003. 5 In 2006, the respondent, HTDPC, filed a claim against the appellants, Mr. Schneider and CLS, for unpaid commissions of $53,375.23. The appellants counterclaimed for a set–off amount and general damages for breach of a collateral agreement and failure to properly account for staff time on files. 6 Following ten years of litigation, the trial judge found Mr. Schneider and CLS liable for the amount claimed, plus interest at the rate specified in an amendment agreement to the contract (6.5%). The appellants’ counterclaim was dismissed and solicitor–client costs were awarded against them.

GROUNDS OF APPEAL 7 The appellants argue that the trial judge erred by: 1. Incorrectly applying s 133 of the Legal Profession Act, RSA 2000, c L–8, disregarding deemed admissions from a notice to admit, and finding that the appellant Mr. Schneider was personally liable; 2. Failing to find there was a collateral agreement that the respondent deduct staff time before billing; 3. Excluding relevant evidence; Horst Tyson Dahlem Profess. Corp. v. John F. Schneider Per curiam 301

4. Failing to find that the respondent agreed to pay for Yellow Pages advertising and owed money for the typewriter; 5. Awarding an unreasonably high quantum of interest; and 6. Granting solicitor–client costs.

STANDARD OF REVIEW 8 The application of s 133 of the Legal Profession Act to the facts of this case to determine whether Mr. Schneider is personally liable for the debt is a question of mixed fact and law. If the trial judge made an extricable error of law or principle, such as misstating the legal test, the standard of correctness applies; otherwise, this issue is reviewable for palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.) at para 36, [2002] 2 S.C.R. 235 (S.C.C.). 9 The treatment of deemed admissions from a Notice to Admit involves an element of discretion, with which this court will not interfere unless the trial judge misdirected himself or came to a decision that is so clearly wrong that it amounts to an injustice: Stringer v. Empire Life Insurance Co., 2015 ABCA 349 (Alta. C.A.) at paras 10–12, (2015), 57 C.C.L.I. (5th) 108 (Alta. C.A.); Penner v. Niagara Regional Police Services Board, 2013 SCC 19 (S.C.C.) at para 27, [2013] 2 S.C.R. 125 (S.C.C.). 10 The trial judge’s finding that there was no collateral agreement is a question of fact, reviewable for palpable and overriding error: Housen at para 10. His exclusion of the appellants’ late disclosure is a discretionary decision entitled to deference: Halkyard v. Mathew, 2001 ABCA 67 (Alta. C.A.) at para 15, (2001), 277 A.R. 373 (Alta. C.A.). 11 Failing to accept an admission of fact or making fact findings that are contrary to clear admissions in the pleadings is essentially a failure to consider relevant evidence, which is an error of law reviewable for correctness: Alberta Permit Pro v. Booth, 2009 ABCA 146 (Alta. C.A.) at para 38, [2009] 6 W.W.R. 599 (Alta. C.A.); Evans v. Teamsters, Local 31, 2008 SCC 20 (S.C.C.) at para 47, [2008] 1 S.C.R. 661 (S.C.C.); Housen at para 8. 12 The trial judge’s decision regarding the quantum of pre–judgment interest involves an assessment of the contract between the parties and whether there was any reason to deviate from the interest rate specified in that contract; this question of mixed fact and law is reviewed for palpable and overriding error, unless an extricable error of law is demonstrated: Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53 302 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

(S.C.C.) at paras 50–54, [2014] 2 S.C.R. 633 (S.C.C.); Housen at para 36. 13 Costs awards are discretionary and will not be interfered with unless the judge below made an error in principle or the award is plainly wrong: Bun v. Seng, 2015 ABCA 165 (Alta. C.A.) at para 5, 2015 CarswellAlta 854 (Alta. C.A.); Deans v. Thachuk, 2005 ABCA 368 (Alta. C.A.) at para 16, (2005), 261 D.L.R. (4th) 300 (Alta. C.A.); Hamilton v. Open Window Bakery Ltd. (2003), 2004 SCC 9 (S.C.C.) at para 27, (2003), [2004] 1 S.C.R. 303 (S.C.C.).

ANALYSIS Personal Liability under section 133 of the Legal Profession Act 14 The trial judge found that Mr. Schneider was personally liable for the amount owing to the respondent because it arose from the practice of law under s 133 of the Legal Profession Act, which states: 133(1) Notwithstanding anything to the contrary in the Business Cor- porations Act, every person who is a voting shareholder of a corporation during the time that it is the holder of a permit or of a corporation during the time that it acts in contravention of section 106(1) is liable to the same extent and in the same manner as if the voting shareholders of the corporation were during that time carrying on the business of the corporation as a partnership or, if there is only one voting shareholder, as an individual practising as a barrister and solicitor. (2) The liability of any person in carrying on the practice of a barrister and solicitor is not affected by the fact that the practice of a barrister and solicitor is carried on by that person as an employee and on behalf of a professional corporation. 15 The appellants submit that the trial judge erred by concluding that a shareholder is liable for debts of a professional corporation where the debt is related to the practice of law. They argue that the test is whether the liability arose as a result of the shareholder’s practice as a barrister and solicitor. The appellants submit that Mr. Dahlem’s practice of law was independent of Mr. Schneider’s practice as a barrister and solicitor. They also argue that liability arises only where the protection of the public is engaged. Further, they argue that the plain contractual intention of the parties was to limit liability to their professional corporations. 16 The respondent argues that a sole shareholder of a professional corporation is personally liable for debts arising from the practice of law, Horst Tyson Dahlem Profess. Corp. v. John F. Schneider Per curiam 303

which include associate lawyers’ wages. The respondent relies on the Code of Professional Conduct of the Law Society of Alberta which de- fines “associate” as “a lawyer who practices law in a law firm through an employment or other contractual relationship”: The Law Society of Al- berta, Code of Conduct, ch 1.1–1. The respondent argues that if the parties were truly an association of independent practices, then clients would have paid Mr. Dahlem directly. 17 The proper test for determining whether a sole shareholder of a professional corporation is personally liable is whether the debt arises from the practice of law: Corkery v. Foster Wedekind (1987), 88 A.R. 232, 45 D.L.R. (4th) 159 (Alta. Q.B.). In Corkery, a lawyer and sole shareholder of a professional corporation, and another professional corporation, were associated in the practice of law and became indebted to a lawyer employed in their practice of law for unpaid employee benefits. The issue was whether the sole shareholder of the professional corporation was personally liable for payment of the debt. Virtue J found that “The in- debtedness is for wage benefits incurred by the appellant’s professional corporation directly connected with carrying on the practice of law”: para 3. 18 The wording of the earlier relevant section 116(1) of the Legal Pro- fession Act is very similar to the current section 133(1) set out above. Virtue J found at para 6: In my view the plain meaning of the words of the section are that the sole shareholder of a professional corporation is personally liable for debts arising from the practice of law. Costs associated with main- taining the operation of an office for the practice of law including the wages and benefits of employees who are lawyers are costs directly related to carrying on the business of the practice of law and are matters for which the sole shareholder of a professional corporation remains personally liable. Personal liability is not limited “to matters arising directly out of the carrying out of professional duties” as a barrister and solicitor, but rather depends on “the directness of the connection to the practice of law in the broader business sense”: Corkery at para 8. 19 In Edmonton Telephones Corp. v. Monette (1994), 160 A.R. 72, [1994] A.J. No. 755 (Alta. Q.B.), Funduk M applied the reasoning in Corkery in concluding that an individual accountant was personally responsible for a debt incurred by her professional corporation for telephone services which were “directly connected to the carrying out of the professional duties”. 304 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

20 Obligations of professional corporations that arise outside of the scope of practising in a particular profession have been held not to be liabilities of the voting shareholder(s). In Canada (Attorney General) v. Roger M. Bourbonnais Professional Corp., 1996 ABCA 130, 181 A.R. 389 (Alta. C.A.), the issue before this court was whether Bourbonnais was personally liable for the income tax liability of his professional corporation after he sold his law practice and ceased to practice law in Al- berta. Foisy JA disagreed with the earlier decision in Alberta v. Fletcher Estate (1994), 167 A.R. 59, 27 Alta. L.R. (3d) 384 (Alta. Surr. Ct.) and held that the obligation of a professional corporation to pay taxes “flows from the provisions of the Income Tax Act (Canada) which impose a tax on business income after it has been earned and without reference to the character of the business in which it was earned”: para 13. 21 Sandilands v. Powell, 2003 ABCA 162, [2003] 11 W.W.R. 618 (Alta. C.A.) canvasses the origins of professional corporations in Alberta and reviews the jurisprudence to that point in time. The facts of that case involved the acquisition of a dental practice. Briefly, when one dentist sold his dental practice to the professional corporation of the purchasing dentist, the transaction did not close. Eventually judgment was rendered against the purchasing dentist personally. The court found that the purchasing dentist “is not personally liable for the obligation of his professional corporation arising by virtue of the non–performance of the purchase and sale agreement of Dr. Sandilands’ dental practice”: para 43. 22 The court found that “practising dentistry” does not include the purely business aspects of acquiring a dental practice. Rather, practising means “the ongoing activity customarily and usually employed in the treatment of patients. . .One cannot be ‘practising’ before one has a practice”: para 39. 23 Professional corporations were originally created to allow professionals to access tax advantages available to other small businesses. At the same time, the traditional rule that professionals are personally liable for the obligations of their practices was maintained, “notwithstanding anything to the contrary in the Business Corporations Act”. While personal liability to the professionals’ clients and the protection of the public are central issues addressed in the legislation, the general rule set out in s 133 is that the shareholder would remain personally liable for all the debts of the professional practice. Bourbonnais and Sandilands delineate the outer boundary of that personal liability. Bourbonnais confirms that tax liability of the corporation remains that of the corporation, if only Horst Tyson Dahlem Profess. Corp. v. John F. Schneider Per curiam 305

because access to the separate taxation regime was the primary point of professional corporations. Sandilands holds, in essence, that capital transactions relating to the purchase of the professional practice are not included. 24 Bourbonnais and Sandilands are factually distinguishable because, unlike this case, neither decision involved an ongoing professional practice. As stated in Corkery, “practising as a barrister or solicitor” is not confined to professional services provided to clients but includes the business context in which those professional services are provided. 25 We agree with the respondent that the wages of an associate lawyer, engaged through an employment or other contractual relationship, are costs associated with the practice of law. Mr. Dahlem was a lawyer working under the banner of, using the resources of, and bringing in business to CLS. He was at least analogous to an associate lawyer in a firm. This arrangement was intended to benefit CLS in its practice of law, and the trial judge made no error in concluding that the debt owing to the respondent arose from the appellants’ practice of law. 26 The appellants also submit that the trial judge erred in his s 133 analysis by disregarding deemed admissions from a notice to admit relating to Mr. Schneider’s personal liability for the amount owing to the respondent. The appellants filed three notices to admit facts. The respondent failed to respond to the first notice to admit, but did respond to the second and third. At trial, Mr. Dahlem gave evidence that he believed that he had responded to the first notice and was not aware until cross–examination that there had been no response to the first notice. The trial judge found that this was due to inadvertence on the part of the respondent since the parties were involved in a very similar case with similar parties. The trial judge rejected the appellants’ attempts to rely on the notice to admit facts. 27 As pointed out by the respondent, the notices to admit mainly contained legal conclusions rather than factual admissions. Statements of law or mixed fact and law are improper in a notice to admit. Moreover, there was a great deal of overlap between the various notices to admit, and essentially all statements in the first notice were subsumed in the second and third notices. By responding to the second and third notices to admit, the respondent effectively replied to any statements of fact made in the first notice. The trial judge therefore did not err in rejecting the appellants’ assertion that it was entitled to rely on deemed admissions from the first notice to admit. 306 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

28 The trial judge made no reviewable error in concluding that Mr. Schneider was personally liable for the amount owing to the respondent. We dismiss this ground of appeal.

The Collateral Agreement and Excluding Evidence 29 The next two grounds of appeal are interrelated and will be dealt with together. The appellants argue there was a collateral agreement under which HTDPC agreed to deduct staff time before billing. They allege that HTDPC failed to deduct from its commissions time spent by other staff on files. 30 The appellants base their claim on evidence given by Mr. Schneider supported by documents which were not produced as relevant documents in the appellants’ affidavit of records or as a result of any undertakings. The documents were produced less than a month before trial. The trial judge found that Mr. Schneider’s failure to produce these documents in a timely fashion “made a mockery of the purpose of the Rules of Court”: Debt Action Decision at para 28. 31 There is no basis to interfere with the trial judge’s decision to exclude evidence proffered by the appellants in support of their claim that staff time ought to have been deducted from HTDPC’s commissions. We agree with the trial judge that the appellants’ delayed disclosure of the extensive documentation violates the duty of disclosure under the Rules of Court. Nor did the trial judge make a reviewable error in finding that the appellants had failed to prove their claim regarding a collateral agreement. 32 We dismiss these grounds of appeal.

Admissions regarding the Advertising and Typewriter 33 The trial judge rejected the appellants’ claims that HTDPC owed the appellants for advertising in the Yellow Pages and for a typewriter. He found there was no binding agreement between the parties for the Yellow Pages advertising. In respect of the typewriter, he found that the typewriter was never received and therefore the respondent was not responsible for its cost. The appellants argue that the trial judge erred as he ignored the respondent’s pleaded admissions that it agreed to pay a portion of the Yellow Pages advertising costs and that it owed the appellants for the cost of the typewriter. 34 The respondent admitted in its statement of defence to counterclaim that it agreed to pay for a portion of the advertising, but that it never Horst Tyson Dahlem Profess. Corp. v. John F. Schneider Per curiam 307

received an invoice and that the obligation to pay for advertising ended upon termination of the contract. Mr. Dahlem’s evidence at trial was that he was not invoiced for the advertising and that the employment agreement superseded the agreement for advertising. The respondent also admitted in its statement of defence to counterclaim that it owed the appellants for the typewriter. Both parties provided evidence at trial that the typewriter was never received. 35 Judicial admissions made in a statement of defence bind the party, unless they are withdrawn. As stated in Balm v. 3512061 Canada Ltd., 2003 ABCA 98 (Alta. C.A.) at para 34, (2003), 14 Alta. L.R. (4th) 221 (Alta. C.A.), “the statement of defence is a formal statement by the defendants who filed it. In a narrow sense it is not evidence, but in a sense it is stronger than evidence. A pleading certainly can make admissions which the court will receive against the party delivering it.” The respondent did not bring an application to withdraw the admissions by amend- ing its pleadings with respect to the Yellow Pages advertising or the typewriter. 36 The trial judge erred in ignoring the pleaded admissions of the respondent. The respondent did not apply to withdraw the admissions in its statement of defence to counterclaim. At trial, the respondent gave no evidence that contradicted the admissions. There was no basis for the trial judge to disregard those binding admissions, nor was there any evidentiary basis for the conclusion that the respondent was not liable for the Yellow Pages advertising and the typewriter. 37 This ground of appeal is allowed. The appellants are entitled to set off the amounts owing for the Yellow Pages advertising and the typewriter.

Quantum of Interest 38 The trial judge awarded contractual interest in the amount of 6.5% per annum compounded semi–annually. The appellants cite the cases of Rayani v. Yule & Co. (Hong Kong) Ltd., 1996 ABCA 35, 36 Alta. L.R. (3d) 217 (Alta. C.A.) and Magnum Leasing v. John’s Sandblasting & Painting Ltd. (2000), 269 A.R. 309, 84 Alta. L.R. (3d) 149 (Alta. Q.B.) for the proposition that the interest awarded should be reduced due to the plaintiff having contributed substantially to the time required for judgment to be granted. Both of these cases are distinguishable. 39 In Rayani, this Court considered the power to disallow interest under the Judgment Interest Act, SA 1984, c J–0.5. However, section 2(2)(h) of that Act, along with s 2(2)(h) of the current Judgment Interest Act, RSA 308 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

2000, c J–1, both provide that a court shall not award pre–judgment interest under that section if there is an agreement between the parties respecting interest; see also National Trust Co. v. Conroy (1995), 168 A.R. 161 (Alta. Q.B.) at para 18, [1995] 6 W.W.R. 363 (Alta. Q.B.). 40 In Magnum, the Court disallowed a contractual interest rate of 15% compounded monthly for a loan which was intended to be a one month loan, on which payment was extended for thirteen months. Litigation extended over eight years. It was found neither party could have foreseen or intended that interest would accrue for over eight years. The unforeseen and unintended interest accumulation was found to verge on unconscionable and thus a reduction in the interest payable was allowed. 41 The discretion to deny interest under the Judgment Interest Act does not extend to contractual interest. Here the parties had contracted that any outstanding amounts would bear interest at 6.5% per annum, compounded semi–annually. There is no basis for finding that the 6.5% interest rate is unconscionable. Nor is there any indication that the parties expected interest would accrue for only a limited period of time. 42 We dismiss this ground of appeal.

Costs 43 Solicitor–client costs, generally, should only be awarded “where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”: Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.) at 134, (1993), 108 D.L.R. (4th) 193 (S.C.C.). The trial judge here found that the appellants should be subject to an increased cost award as Mr. Schneider “did something to hinder, delay or confuse the litigation, where there was no serious issue of fact or law which required these lengthy, expensive proceedings”: Costs Decision at para 9 citing Jackson v. Trimac Industries Ltd. (1993), 138 A.R. 161 (Alta. Q.B.) at para 28, [1993] 4 W.W.R. 670 (Alta. Q.B.). He ordered the respondent’s account forwarded to him for review, and stated that the appellants could not comment on or dispute the accounts. 44 This litigation has been subject to serious delay; however, the appellants are not the sole cause of the delay. The appellants’ actions during this litigation, though certainly not commendable, do not rise to the level of reprehensible, scandalous or outrageous conduct. 45 The trial judge awarded solicitor–client costs, in part, because of the late attempt by the appellants to introduce evidence in support of the asserted set–off for staff time. The lateness of that application, however, Horst Tyson Dahlem Profess. Corp. v. John F. Schneider Per curiam 309

was magnified by a case management order directing a speedy trial. Fur- ther, the application to introduce that late evidence was dismissed, which itself was a significant remedy for the lateness of the application. Fur- ther, misconduct by a party with respect to one discrete step in the litigation is not a justification for awarding solicitor–client costs for the entire action and trial. 46 Given the sparse jurisprudence on point, it cannot be said that the personal liability of a lawyer as a shareholder of a professional corporation is not a serious issue of law. 47 The trial judge erred in ordering solicitor–client costs. Further, the trial judge erred in ordering that the appellants could not comment on or dispute the accounts tendered by the respondent. 48 We allow this ground of appeal, and award the respondent assessed costs of the trial proceedings, including reasonable disbursements and GST.

CONCLUSION 49 The fourth ground of appeal, relating to set off for the Yellow Pages advertising and the typewriter, and the sixth ground of appeal, relating to the imposition of solicitor–client costs, are allowed. All remaining grounds of appeal are dismissed. 50 Given the limited success on appeal, an order for party and party costs against the appellants is appropriate. First appeal allowed in part; second appeal allowed. 310 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

[Indexed as: Kostic v. Piikani Nation] Liliana Kostic (Appellant / Plaintiff) and Piikani Nation as represented by Its Chief in Council (Respondent / Defendant) Alberta Court of Appeal Docket: Calgary Appeal 1501-0113-AC 2017 ABCA 53 Peter Martin, Brian O’Ferrall, Barbara Lea Veldhuis JJ.A. Heard: May 12, 2016 Judgment: February 9, 2017 Contracts –––– Consideration — What constitutes consideration — Mutual promises –––– Defendant First Nation received land claim settlement, term of which was that funds would be put in investment trust — Trust agreement required appointment of certified investment counsellor — Defendant had power to appoint certified investment counsellor, and such additional advisors as defendant directed counsellor to retain — Defendant covenanted with plaintiff that it would direct investment counsellor to retain her — Plaintiff subsequently brought action for wrongful termination of business agreement, claiming financial loss from denial of opportunity to earn commissions — Trial judge dismissed action on basis that contract was unenforceable as not supported by consideration — Plaintiff appealed — Appeal allowed — There was clear exchange of promises amounting to consideration in two business agreements between parties — In exchange for defendant’s payment, plaintiff covenanted to manage comprehensive settlements totalling $64.3 million — Defendant clearly wanted plaintiff to manage land claims settlement funds and wanted binding commitment from her to do so — Promises made by plaintiff for benefit of defendant were not valueless — Plaintiff was obligated to provide investment advice for at least five years. Contracts –––– Remedies for breach — Damages — Contract for service or repair –––– Defendant First Nation received land claim settlement, term of which was that funds would be put in investment trust — Trust agreement required appointment of certified investment counsellor — Defendant had power to appoint certified investment counsellor, and such additional advisors as defendant directed counsellor to retain — Defendant covenanted with plaintiff that it would direct investment counsellor to retain her — Plaintiff subsequently brought action for wrongful termination of business agreement, claiming financial loss from denial of opportunity to earn commissions — Trial judge dismissed action on basis that contract was unenforceable as not supported by consideration, and that even if it was enforceable plaintiff suffered no damages — Kostic v. Piikani Nation Per curiam 311

Plaintiff appealed — Appeal allowed; matter remitted for consideration of entitlement to damages, if any, and if so, quantum — Trial judge erred in finding no consideration — Also, plaintiff may have suffered loss — By terminating investment management agreement and any related agreements, defendant prematurely terminated its contractive relationship with plaintiff and thereby breached business agreement it had with her — At very least, premature termination may have deprived plaintiff of opportunity to earn income for assisting in management of trust funds for balance of term of her agreement with defendant. Cases considered: Levinsky v. Toronto-Dominion Bank (2013), 2013 ONSC 5657, 2013 Carswell- Ont 12655, 117 O.R. (3d) 106, [2013] O.J. No. 4118 (Ont. S.C.J. [Commer- cial List]) — referred to Regehr v. Ketzakey Silver Mines Ltd. (1970), 10 D.L.R. (3d) 171, 1970 CarswellAlta 159, [1970] A.J. No. 14 (Alta. C.A.) — referred to

APPEAL by plaintiff from judgment dismissing action for breach of contract.

W.S. Klym, L.T. McMillan, for Appellant R.J. Hawkes, Q.C., S. Lulman, for Respondent

Per curiam:

1 This is an appeal of a judgment dismissing a claim in contract on the basis that the contract was unenforceable because it was not supported by consideration and that even if it was enforceable, the plaintiff (appellant) suffered no damages. 2 We would allow the appeal on the basis that the contract or contracts in question were supported by consideration and were therefore enforceable. We also disagree with the trial judge’s reasons for finding the appellant was not entitled to damages. In our view, she may have been. Thus, the issue of the appellant’s entitlement to damages, and their possible quantum, still requires judicial determination and so we direct such an assessment. 3 As indicated, the judgment appealed from was the product of a summary trial ordered by the Associate Chief Justice sitting as the case management judge. The plaintiff and appellant, Ms. Kostic, had sued the Pi- ikani Nation for wrongful termination of a business agreement between her and the Nation wherein the Nation agreed to retain her to provide investment advice. Ms. Kostic claimed to have suffered a financial loss as a result of being denied the opportunity to earn commissions as an 312 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

investment advisor. She also claimed to have suffered a stroke as a result of the termination certain embezzlement allegations made against her upon termination. 4 During the course of the litigation, Ms. Kostic was apparently slow to disclose certain medical information relative to her health damage claim. As a consequence, Associate Chief Justice Rooke ordered Ms. Kostic’s claim struck. However, Justice Rooke stayed his order on the condition that Ms. Kostic produce the requested medical information. And if Ms. Kostic did produce the medical information, Justice Rooke ordered that her claim be determined by summary trial. In so doing, Justice Rooke defined the issues to be tried as follows: 1. whether the Nov. 18, 2002 and Nov. 22, 2004 agreements “were formed with proper consideration such that they are binding agreements in law sufficient to sustain the cause of action advanced by the Plaintiff” (Ms. Kostic pled wrongful repudiation of the contract); and 2. whether Ms. Kostic suffered any damages. 5 What happened was that the Piikani Nation had received millions of dollars as a result of a land claim settlement with the governments of Canada and Alberta. It was a term of that settlement that some of the land claim settlement funds would be put in an investment trust with the CIBC as trustee. The trust agreement between the Nation and the CIBC required the appointment of a certified investment counsellor who would invest the funds in investments authorized by the trust agreement. The trust agreement conferred upon the Nation the power to appoint not only the certified investment counsellor (the institutional investment counsellor or broker) but also such additional advisors as the Nation directed the certified investment counsellor to retain. Ms. Kostic was the advisor who the Nation directed the investment counsellors to retain. In other words, the Nation had the contractual right to direct the investment counsellors in this case (Woody Gundy and, later, Raymond James) to retain Ms. Kostic. And the Nation covenanted with Ms. Kostic that it would direct whatever investment counsellor was appointed to retain her. That covenant was contained in the two business agreements between the Nation and Ms. Kostic. 6 The trial judge found that the Nation’s covenant in the business agreements was not enforceable because no consideration was given by Ms. Kostic for the covenant. The trial judge also ruled that even if consideration was given, Ms. Kostic suffered no damages. Ms. Kostic ap- Kostic v. Piikani Nation Per curiam 313

peals these findings; arguing that the trial judge erred in finding no consideration to support the arrangement and again in holding that she suffered no damage. 7 With respect to the enforceability of the business agreements between Ms. Kostic and the Nation, the trial judge found that the business agreements of November 18, 2002 and November 22, 2004 were not “binding, enforceable agreements” because of an absence of consideration. The trial judge found there was no consideration flowing from Ms. Kostic to the Nation because Ms. Kostic’s commitment in both business agreements, to provide investment services, was the same obligation she already had to her employers, Wood Gundy and Raymond James. The trial judge dismissed Ms. Kostic’s submission that the fact that she was committed to make herself available for the five-year term of the contract to perform the requested services amounted to consideration. 8 In our view, the trial judge erred in finding no consideration. There was a clear exchange of promises amounting to consideration in both business agreements between the Nation and Ms. Kostic. Indeed, the business agreements expressly cited that it was “in consideration of the premises and the agreements hereinafter set forth, the Piikani Nation and the Investment Advisor [Liliana Kostic] agree as follows...” [emphasis added]. The Nation covenanted to appoint Ms. Kostic as its “Investment Advisor” for five years. The Nation also covenanted to “pay all commissions, fees and other expenses as outlined in the Account Agreement” (the account agreement between the Nation and the investment counsellor, Woody Gundy, and later Raymond James). For her part, Ms. Kostic covenanted to “manage on behalf of the Piikani Nation comprehensive settlements totalling approximately $64.3 million from the Federal and Provincial Governments.” 9 The Nation clearly wanted Ms. Kostic to manage the land claims settlement funds and wanted a binding commitment from her to do so. The Nation could not manage the funds itself because the settlement funds were given to the Nation on condition that they be placed in trust and invested by an institutional investment counsellor or broker. Article 10.1 of the Trust Agreement decreed that the funds were to be invested by one or more “Institutional Investment Counsellors” named by the Council (the Nation) “so long as that Investment Counsellor was a corporation registered and regulated by the Securities Commission of Alberta.” The trust agreement also permitted the Nation to direct the institutional investment counsellor to retain “additional advisors” (Article 10.2.1). 314 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

10 So, while the trust agreement was designed to limit the Nation’s direct management of the settlement funds, the Nation was still given a role in the ongoing control and management of its investments. As indicated above, Article 10.1 of the Trust Agreement gave the Nation the right to name the Institutional Investment Counsellor and Article 10.2.1 gave the Nation the right to direct the Institutional Investment Counsellor to retain advisors of the Nation’s choice. This power of appointment had the effect of giving the Nation the right to name the particular individual it wanted to manage the investment accounts. The appointment of both the Trustee (the CIBC) and the Institutional Investment Counsellor (Wood Gundy and later Raymond James) could be withdrawn by the Na- tion. So if the brokerage house appointed did not comply with the Na- tion’s direction with respect to advisors, the brokerage house ran the risk of being replaced and losing the income generated from accounts worth $65 million dollars. 11 When these facts are considered in the context of the exchange of promises in the business agreements, it is apparent that by agreeing with Ms. Kostic to appoint her as the Nation’s investment advisor for five years, the Nation was also committing to appoint an investment counsellor who would retain Ms. Kostic who would then manage the Nation’s investment account. The Nation’s promise to pay Ms. Kostic all necessary commissions was fulfilled when the trustee, the CIBC, paid commissions on the Nation’s behalf to the investment counsellors (Wood Gundy and later Raymond James) who, in turn, paid Ms. Kostic in accordance with the terms of their employment agreements with her. Ms. Kos- tic’s income from both Wood Gundy, and Raymond James, was tied directly to the payment of these commissions on trades of the Nation’s investments. When the Nation, by Band Council Resolution in Novem- ber of 2006, gave notice of termination to Ms. Kostic, her income was reduced to zero. 12 Further context for the nature of the relationship between the parties and the influence the Nation exerted vis-`a-vis the investment funds is evidenced by the fact that, in order to comply with the second business agreement, which the Nation entered into with Ms. Kostic after she left Wood Gundy and moved to Raymond James, the Nation directed the appointment of Raymond James as its new institutional investment counsellor or broker. The significance of Ms. Kostic’s involvement as an investment advisor is set out in the Investment Management Agreement, Kostic v. Piikani Nation Per curiam 315

signed by the trustee, Raymond James and the Nation, where it is noted at paragraph 2, By way of a Band Council Resolution #7729/2004-05 (“the BCR”) executed by the Client on November 26, 2004, the Client [the Na- tion] directed CIBC Trust [the trustee] to hire Liliana Kostic as the institutional Investment Counsellor with respect to the Investment Account, the Heritage Account and Youth and Education Account for the Piikani Trust. 13 Ms. Kostic’s obligation under the two business agreements was to make herself available to manage the Nation’s accounts, through “a corporation registered and regulated by the Securities Commission of Al- berta” (the institutional investment counsellor or broker) and to handle the accounts as directed by any relevant management agreements. Ms. Kostic complied with this obligation, initially through her employment with Wood Gundy, and later through her relationship with Raymond James. And when Ms. Kostic moved from Wood Gundy to Raymond James, the Nation exercised its power under the Trust Agreement and moved the trust funds to Raymond James as its new institutional investment counsellor or broker. 14 The trial judge found that there was no consideration flowing from Ms. Kostic to the Nation on the basis that she was merely agreeing to do something she was already bound by to do for her employer. The consideration was the five-year commitment by Ms. Kostic to manage the Na- tion’s funds. She was not free to go elsewhere. 15 The trial judge went behind the exchange of promises by Ms. Kostic and the Nation and held, in effect, that they were valueless. It is not up to the courts, however, to weight the sufficiency of consideration: Regehr v. Ketzakey Silver Mines Ltd. (1970), 10 D.L.R. (3d) 171 (Alta. C.A.) 179, 1970 CanLII 838. Besides, the promises made by Ms. Kostic for the benefit of the Nation were not valueless. She was obligated provide investment advice to the Nation for a period of five years (or more if she did not give notice of termination three months prior to the expiration of the initial primary term). Courts have no mandate to examine contracts to see whether bargains contained therein make sense: Levinsky v. Toronto- Dominion Bank, 2013 ONSC 5657 (Ont. S.C.J. [Commercial List]) at para 90, (2013), 117 O.R. (3d) 106 (Ont. S.C.J. [Commercial List]). The bargains are what they are. 16 In assessing the validity of the business agreements, the trial judge found significance in the fact that one of the investment counsellors, 316 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

Wood Gundy, did not permit their investment advisors to enter into personal service contracts with their clients. In my view, however, such a prohibition would not prevent the Nation from covenanting with Ms. Kostic that she would be the advisor whom the investment counsellor would be directed to retain. Any breach of Wood Gundy’s employment policies would be a matter between Wood Gundy and Ms. Kostic, but it would not be a matter that would invalidate the business agreement between Ms. Kostic and the Nation. Furthermore, both Wood Gundy and Raymond James were fully aware that their continued appointment as investment counsellors was dependent in part upon having Ms. Kostic be the investment advisor to the Nation. But regardless, any breach of Wood Gundy’s employment policies is ultimately irrelevant because at the end of the day Ms. Kostic’s claim is based on the Nation’s repudiation of the business agreement in place when she was working for Raymond James (the November 22, 2004 agreement), not the one in place when she was working for Wood Gundy. There was no evidence Raymond James had a similar prohibition. 17 With respect to the issue of damages, the trial judge found that even if the business agreements were binding, Ms. Kostic suffered no damages because the Nation was not obliged to pay and did not pay any of the Commission’s fees or expenses under the account agreements between the Nation and the investment counsellors and the trustee. The trial judge noted that it was the trustee who was obligated to pay these commissions, fees and expenses and they were payable to the investment counsellor, not to Ms. Kostic. 18 However, in our view, Ms. Kostic may have suffered a loss. By terminating the Investment Management Agreement and “any other agreements with Raymond James Ltd. and Lilliana Kostic” in November of 2006, the Nation prematurely terminated its contractive relationship with Ms. Kostic and in so doing the Nation breached the business agreement it had with her. At the very least, the premature termination may have deprived Ms. Kostic of the opportunity to earn the income she received from Raymond James for assisting in the management of the trust funds for the balance of the term of her agreement with the Nation. When the Nation removed its investment accounts from Raymond James through its power to name the institutional investment counsellor, Ms. Kostic’s income from her employment at Raymond James disappeared as the Na- tion was her primary investment account. Thus, while it was the trustee who was obligated to pay the investment counsellor for services related to the investment and management of the trust funds, it was the Nation, Kostic v. Piikani Nation Per curiam 317

with its ability to direct the institutional investment counsellor to hire a particular investment advisor, which enabled Ms. Kostic to earn an income. 19 The Nation agreed with Ms. Kostic that she would be the Nation’s investment advisor for a term of seven years. The Nation terminated that agreement prior to the expiration of the term. As a consequence Ms. Kos- tic was unable to earn that income. Typically, a plaintiff’s inability to earn income as a result of another’s breach of contract gives rise to a damage claim, but this is a matter for a trial court to assess. And in conducting that assessment, Ms. Kostic’s claim to damages for the manner in which the Nation terminated the business agreement should also be considered. It was not dealt with by the trial judge. 20 In conclusion, we would allow the appeal and order that the court below consider whether or not the appellant is entitled to damages in accordance with these reasons, and if so, in what quantum. Appeal allowed. 318 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

[Indexed as: Elsenheimer v. Matras] Estate Name: Marjorie Matras Maxine Elsenheimer, Karen Meyer, Candace Watson (Applicants) and Rene Matras, Eileen Gullion (Respondents) Alberta Court of Queen’s Bench Docket: Edmonton ES03-145958 2016 ABQB 728 W.N. Renke J. Heard: October 4, 2016 Judgment: December 21, 2016 Estates and trusts –––– Estates — Construction of wills — Description of persons — Definitions — “Children” — Miscellaneous –––– Foster child was adopted at age four to eight months by testatrix and spent her life to young adult in care of testatrix, although had not been adopted — Testatrix became deceased — Applicants claimed that foster child was not beneficiary of will — Applicants brought application for advice and directions respecting interpretation of will — Foster child was child for purposes of will, as per intention of testatrix — Foster child was child within scope of will and was residual beneficiary — Interpretation of terms child and children in Wills and Succession Act were not applicable due to date will was made — Particular portion of will referring to child or children of person named in will did not govern matter as no children of testatrix was named in will and particular clause was not meant to govern definition of children for entirety of will — Although testatrix had other foster children at various times, it was not shown they were considered to be her children — Lawyer who drafted will had died and no speculation regarding his preparation of will was appropriate — At date will was made foster child was given enduring power of attorney and personal directive made foster child agent of testatrix, and these documents referred to foster child as daughter — Family documents such as cards and photo albums showed that foster child was considered daughter. Estates and trusts –––– Estates — Powers and duties of personal representatives — Supervision of personal representatives by court — Removal — Miscellaneous. Cases considered by W.N. Renke J.: Ares v. Venner (1970), [1970] S.C.R. 608, 12 C.R.N.S. 349, 73 W.W.R. 347, 14 D.L.R. (3d) 4, 1970 CarswellAlta 80, 1970 CarswellAlta 142, [1970] S.C.J. No. 26 (S.C.C.) — considered Elsenheimer v. Matras 319

Hanson v. Mercredi (2014), 2014 ABCA 216, 2014 CarswellAlta 1019, 98 E.T.R. (3d) 1, 99 Alta. L.R. (5th) 77, [2014] 10 W.W.R. 41, 577 A.R. 110, 613 W.A.C. 110 (Alta. C.A.) — considered Hryniak v. Mauldin (2014), 2014 CarswellOnt 640, 2014 CarswellOnt 641, 37 R.P.R. (5th) 1, [2014] S.C.J. No. 7, 46 C.P.C. (7th) 217, 27 C.L.R. (4th) 1, (sub nom. Hryniak v. Mauldin) 366 D.L.R. (4th) 641, 2014 CSC 7, 453 N.R. 51, 12 C.C.E.L. (4th) 1, 314 O.A.C. 1, 95 E.T.R. (3d) 1, 21 B.L.R. (5th) 248, [2014] 1 S.C.R. 87, [2014] A.C.S. No. 7, 2014 SCC 7 (S.C.C.) — considered R. v. Khan (1990), 113 N.R. 53, 79 C.R. (3d) 1, 41 O.A.C. 353, [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92, 1990 CarswellOnt 108, 1990 CarswellOnt 1001, [1990] S.C.J. No. 81, EYB 1990-67557 (S.C.C.) — considered Ryrie v. Ryrie (2013), 2013 ABQB 370, 2013 CarswellAlta 1096, 564 A.R. 312 (Alta. Q.B.) — referred to Smith v. Lister (2015), 2015 ABQB 420, 2015 CarswellAlta 1225, 11 E.T.R. (4th) 315, 24 Alta. L.R. (6th) 332, [2016] 3 W.W.R. 384 (Alta. Q.B.) — considered Statutes considered: Family Law Act, S.A. 2003, c. F-4.5 Pt. I — referred to Wills Act, R.S.A. 2000, c. W-12 Generally — referred to s. 36 — considered Wills and Succession Act, S.A. 2010, c. W-12.2 s. 8(2) — considered s. 26 — considered s. 28 — considered s. 36(2) [am. 2010, c. 16, s. 1(53)] — referred to ss. 37-40 — referred to s. 39 — considered Rules considered: Alberta Rules of Court, Alta. Reg. 124/2010 R. 1.2 — considered R. 10.33 — considered Words and phrases considered: daughter A daughter is a child. That is common sense.

APPLICATION by applicants for interpretation of will.

Agota Taborosi, for Applicants 320 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

Malkit Atwal, for Respondent, Rene Matras Gordon VanderLeek, for Respondent, Eileen Gullion

W.N. Renke J.:

1 The Applicants brought an application for advice and directions respecting the interpretation of the Will of Marjorie Matras in Civil Cham- bers on October 4, 2016. Counsel for Rene Matras, the personal representative named in the Will, was in attendance. Eileen Gullion was not named as a party to the proceedings and no one appeared on her behalf in Chambers. 2 The issue was whether Ms. Gullion is one of the testatrix’s “children” and therefore a residuary beneficiary under paragraph 4(b) of the Will. I was of the view that the issue could not be resolved in Chambers but that I would accept written submissions from the parties. I also directed that Ms. Gullion, who would be clearly affected by the interpretation of the term “children,” would have an opportunity to respond to the application. I indicated that I would provide a written decision based on my review of the submissions (unless it turned out that a hearing to resolve disputed facts would be necessary). The parties, including Ms. Gullion, have provided written submissions. Having reviewed those submissions, I find that resolving the issue on the basis of those submissions is a fair, just, cost–effective, and proportional procedure as contemplated by rule 1.2 and Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.), Karakatsanis J at para 49. 3 I find that Ms. Guillion is included within the scope of the term “children” in paragraph 4(b) of the Will. My reasons follow.

BACKGROUND 4 Marjorie Matras died on February 8, 2016, leaving a Will dated No- vember 9, 2009. 5 The Respondent Rene Matras was named in the Will as the testatrix’s personal representative. 6 Mr. Matras is a legally adopted child of the testatrix. 7 The Applicants are the biological daughters of the testatrix. 8 Ms. Gullion was the testatrix’s foster child. She commenced living with the testatrix in about 1959, when Ms. Gullion was between 4 and 8 months old. She was, however, never adopted by the testatrix. Elsenheimer v. Matras W.N. Renke J. 321

9 Mr. Matras filed an application for probate in April, 2016. Ms. Gul- lion was named as one of the testatrix’s “children” and listed as a residuary beneficiary. 10 The Applicants filed a caveat in the probate proceedings on the basis that Ms. Guillon was not one of the “children” of the testatrix as contemplated in the Will. 11 The Applicants filed this application in September 1, 2016, seeking a judicial interpretation of paragraph 4(b) of the Will and an Order directing Mr. Matras, as personal representative, to administer the estate of the testatrix in accordance with the terms of the Will or as the Court directs. In the relief sought, the Applicants applied for certain conse- quential relief should Mr. Matras fail to administer the Will in accordance with its terms, including an application to remove Mr. Matras as personal representative. 12 The Grant of Probate has not yet been issued.

THE ISSUE: WILL PROVISIONS REQUIRING INTERPRETATION 13 Paragraph 4(b) of the Will provides as follows: (b) To transfer the rest and residue of my estate, including all articles of personal, domestic and household use or ornament belonging to my estate at my death for the benefit of my children and to divide the residue of my estate then remaining into as many equal shares as the number of my children . . . [emphasis added] 14 Paragraph 4(c) of the Will provides as follows: For the purposes of this Will, a child or children of a person named in this Will shall mean the biological and legally adopted children of such person. 15 The Applicants are biological children of the testatrix. Mr. Matras is a legally–adopted child of the testatrix. They, without dispute, are “children” within the meaning of paragraph 4(b). Ms. Guillon is neither a biological child nor an adopted child of the testatrix. The issue is whether she falls within the scope of the term “children” in paragraph 4(b). 322 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

REASONS 1. What statutory provisions apply? 16 The testatrix died after February 1, 2012. Hence, under s. 8(2) of the Wills and Succession Act, ss. 26 and 37 — 40 apply to her Will. Sub- section 8(2) provides as follows: (2) Despite subsection (1), sections 26 and 37 to 40 apply to a will or other writing, a marking or an obliteration regardless of when the will, writing, marking or obliteration was made, if the testator died on or after February 1, 2012. 17 Notably, s. 28 of the Wills and Succession Act does not apply to the Will since the Will was made prior to February 1, 2012. Section 28 concerns the interpretation of “child” and “children” in a will. The applicable statutory provision respecting children is s. 36, as it stood before the 2010 amendments to the Wills Act: 36 In the construction of a will, except when a contrary intention appears by the will, an illegitimate child shall be treated as if that child were the legitimate child of that child’s mother. That provision does not advance the argument. Counsel for the Ap- plicants referred to a version of s. 36 that did not apply given the date of the Will. Part 1 of the Family Law Act has no application to the determination of the issue before me (see s. 36(2) as amended by SA 2010, c. 16, s.1(53)). 18 Even if the current s. 28 applied, it would not be decisive. It provides, generally, that a will must be interpreted to include biological children as children. The provision expands the scope of a reference to children in a will. The provision is subject to a “contrary intention” manifest in a will, and, in any event, does not speak to the inclusion or exclusion of non–biological children of a testator. The purpose of the current s. 28 and the earlier versions of s. 36 of the Wills Act was to combat discrimination against children born outside marriage. These provisions were not drafted with non–biological children in mind. I read these provisions as including individuals that would otherwise have been excluded from the scope of the term children, but not as excluding other individuals who may be included based on a contextual reading of a will. See Alberta Law Reform Institute, Wills and the Legal Effects of Changed Circum- stances, Final Report (August 2010), chap. 9, https://www.alri.ualberta. ca/docs/fr098.pdf. Elsenheimer v. Matras W.N. Renke J. 323

19 Of more significant bearing on the present issue is s. 26, which does apply, and which provides as follows: 26 A will must be interpreted in a manner that gives effect to the intent of the testator, and in determining the testator’s intent the Court may admit the following evidence: (a) evidence as to the meaning, in either an ordinary or a specialized sense, of the words or phrases used in the will, (b) evidence as to the meaning of the provisions of the will in the context of the testator’s circumstances at the time of the making of the will, and (c) evidence of the testator’s intent with regard to the matters referred to in the will. I will return to this provision below.

2. Does paragraph 4(c) determine the interpretation of “children”? 20 Paragraph 4(c) of the Will may appear to be decisive. Again, it provides as follows: For the purposes of this Will, a child or children of a person named in this Will shall mean the biological and legally adopted children of such person. It does not refer to non–biological, non–legally adopted children, which might seem conclusively to exclude Ms. Gullion as a “child.” I find, however, that paragraph 4(c) does not have this effect, for three reasons. 21 First, it refers to “a child or children of a person named in this Will.” None of the “children” of the testatrix was “named” in the Will in paragraph 4(b). Only Mr. Matras and Candace Watson are named in the Will, in paragraph 2(a), the “Appointment of Executors and Trustees” section in Part 1 of the Will. Paragraphs 4(b) and (c) are found in Part 2 of the Will. Arguably, the Part 1 naming is irrelevant to Part 2. In paragraph 4(b) only the description “children” appears. Paragraph 4(c), then, might be found not to have been engaged given the language of the Will. 22 Second, if that approach is too literal and pedantic, the crucial question is whether “a person named in this Will” includes the testatrix. The difficulty is that this element of paragraph 4(c) is in the passive voice. It might concern anyone whose name occurs in the Will or it might mean any person the testator has named in the Will. If the former interpretation were adopted, 4(c) would apply to the testatrix’s children and would exclude Ms. Gullion. I find, though, that the latter interpretation is correct. 324 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

It is the testatrix testator’s Will. She would do the “naming”, even if that were by description — i.e., by referring to her “children.” The testatrix, then, is not included as a “person named in this Will.” She is the person doing the naming in this Will. She is not named in the Will. It is her Will. Hence, as counsel for Mr. Matras pointed out, the testatrix refers to herself in the first person throughout the Will. 23 Third, if the purpose of paragraph 4(c) were to define “child” or “children” for all purposes under the Will, the words “of a person named in this Will” would not have been necessary. These words should not be regarded as mere surplusage. They were added for a reason. That reason (as indicated in the previous paragraph) was to distinguish the testatrix’s children from her children’s children. 24 This approach does not strip paragraph 4(c) of use. Paragraph 4(c) applies to the children of the testatrix’s children. It provides some certainty, consistent with statutory non–discrimination provisions, that the biological children of the testatrix’s children would be entitled to benefit under the Will in the circumstances contemplated by the Will. 25 Thus, paragraph 4(c) does not determine whether Ms. Gullion does or does not fall within the scope of the term “children” in paragraph 4(b). The testatrix’s intention must be determined.

3. What did the testatrix intend to convey by the term “children,” in light of the evidence? 26 Paragraph 26(b) requires a Court to consider, in particular, “the meaning of the provisions of the will in the context of the testator’s circumstances at the time of the making of the will:” 26 A will must be interpreted in a manner that gives effect to the intent of the testator, and in determining the testator’s intent the Court may admit the following evidence: (b) evidence as to the meaning of the provisions of the will in the context of the testator’s circumstances at the time of the making of the will . . . According to Justice Goss in Smith v. Lister, 2015 ABQB 420 (Alta. Q.B.) at para 60, [60] Anyone with an interest can ask the court to determine the testator’s intent, and in that event the court must consider extrinsic evidence without the need to first establish ambiguity: Ryrie v Ryrie, 2013 ABQB 370 at para 41–47, 564 AR 312. Elsenheimer v. Matras W.N. Renke J. 325

See also Hanson v. Mercredi, 2014 ABCA 216 (Alta. C.A.), Wakeling JA at paras 59–61. “Anyone with an interest” includes Mr. Matras and Ms. Gullion. 27 Justice Goss’s comments at para 62 of Smith v. Lister respecting a testator’s intent must be borne in mind: [62] The Court noted [in Lubberts Estate] that ascertaining the testator’s will is a subjective exercise, unlike interpreting contracts and legislation. A will incorporates a series of unilateral choices in contrast to legal instruments which are the product of multiple factors. Subject to public policy concerns, a testator’s last will and testament should be interpreted in a manner completely faithful to her wishes. A court must assume that the testator intended to give the words which appear in her will their ordinary meaning unless the will and the context rebuts this assumption. The factual backdrop against which the will was created may explain the meaning the testator attached to words in her ordinary speech, and reveal the persons she most likely regarded as persons whom she would like to assist: Lub- berts Estate, paras 10, 52, 57. 28 The Alberta Law Reform Institute provided the following recommendation and comments about extrinsic evidence and testator’s intent at paras 228 and 230 of Wills and the Legal Effects of Changed Circum- stances — and the current Wills and Succession Act was based on ALRI recommendations (Ryrie v. Ryrie [2013 CarswellAlta 1096 (Alta. Q.B.)] at para 24): [228] The recommendation of ALRI is that a court should be able to consider all the extrinsic evidence in every case, including evidence of the testator’s intention. With implementation of this recommendation, the law would be simple and clear. The admission of evidence would not depend on the individual judge’s view of the current law. All litigants would have the same opportunity to have all the available evidence considered. A court would have the best opportunity to ensure that a testator’s intentions were carried out. [230] . . . [Safeguards against increased litigation are in place.] Firstly, the will still acts as the guiding star. Extrinsic evidence is only an aid to interpretation. The court cannot write the will for the testator. Secondly, the Alberta Evidence Act requires that evidence in actions against deceased persons be corroborated. To ensure that this requirement applies to all proceedings interpreting wills, ALRI rec- ommends that a similar provision be placed in the Wills Act. Thirdly, it has always been the job of the court to determine the relevancy and 326 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

weight of evidence and immaterial or irrelevant evidence would be excluded [footnotes omitted]. As Justice Sisson noted in Ryrie at paras 18 and 19, [18] Section 3(3) of the Wills and Succession Act, deals with a requirement for corroborative evidence in an application such as this one. It says: “For greater certainty, section 11 of the Alberta Evi- dence Act applies in respect of evidence offered or taken in an application to the Court under this Act.” [19] Section 11 of the Alberta Evidence Act says: In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence. 29 The requirement for evidence respecting the testatrix’s intentions fully answers a concern raised by counsel for the Applicants. The testatrix and her husband had more than one foster child. Counsel asserted that a “Pandora’s box of potential new claims” would be opened should Ms. Gullion be found to be a child of the testatrix. Ms. Gullion is found to be a child of the testatrix based on the evidence, not simply because she was a foster child of the testatrix. There was no evidence that any other former foster child was considered by the testatrix at the time of making the Will to be one of her children. Were there such evidence, that former foster child would be as entitled to be classified as a residuary beneficiary as the testatrix’s natural children. 30 The Will was drafted by Thomas Cooke Q.C., now deceased. No part of his file was disclosed in the application. No illumination of the testatrix’s intentions may be drawn from that quarter. I shall not speculate about communications between the testatrix and Mr. Cooke. 31 Nonetheless, evidence of the testatrix’s intention respecting the term “children” at the time of making the Will was corroborated and utterly convincing. On the same date as the Will was signed, the testatrix granted an Enduring Power of Attorney naming Ms. Gullion as an attorney and made a Personal Directive naming Ms. Gullion as an agent. In both cases, Ms. Gullion was described as “my daughter.” The other attorney and other agent was her natural daughter, who was also described as “my daughter.” The testatrix’s evidence is hearsay. Necessity is established because she is deceased. Reliability is established because the Elsenheimer v. Matras W.N. Renke J. 327

description of Ms. Gullion as her daughter (an abbreviated factual proposition) is found in a signed, witnessed, and reviewed–with–counsel document. 32 Counsel for the Applicants pointed out that entrusting an individual with authority under an Enduring Power of Attorney or a Personal Direc- tive is different than identifying the individual as a beneficiary in a will and different than classifying that individual as a “child” under a will. While the distinction is acknowledged, it misses the point. The point is that on the same day as the Will was signed, the testatrix referred in other estate planning documents to Ms. Gullion as her “daughter” and used the term “children” to identify beneficiaries in her Will. A daughter is a child. That is common sense. The estate planning documents provide solid evidence of how, at the time the Will was executed, the testatrix regarded Ms. Gullion. She was her daughter and she therefore was one of her children for the purposes of the Will. 33 Counsel for the Applicants suggested that the testatrix was “mistaken” in referring to Ms. Gullion as her daughter in the other estate planning documents. That is a potential inference. It is the wrong inference. The testatrix referred to Ms. Gullion as her daughter because that is how she thought of Ms. Gullion. The evidence of her subjective appreciation of Ms. Gullion’s family status should inform the interpretation of the Will. 34 The evidence of the other estate planning documents is sufficient to establish the testatrix’s subjective understanding of the family status of Ms. Gullion and to resolve the issue of the interpretation of the Will. Other evidence was referred to in submissions, though, which warrants comment. 35 In her submissions in reply to Ms. Gullion’s submissions, counsel for the Applicants included the former will of the testatrix dated September 16, 1996. Paragraph 3(c) of that will provided as follows: I direct my Trustee to pay or transfer the residue of my Estate among my five children, MAXINE ROSEMARY ELSENHEIMER, KAREN RUTH MEYER, CANDACE ELAINE WATSON, EILEEN GULLION, and RENE STANLEY MATRAS in equal shares per stirpes. Counsel went on to claim that “In 2009, [the testatrix] drafted a new will specifically excluding Ms. Gullion.” I draw a different conclusion. First, the old will expressly referred to Ms. Gullion as one of the testatrix’s children (the old will language supports Ms. Gullion’s 328 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

argument). Second, paragraph 4(b) of the Will does not name any of the testatrix’s children. If it excludes Ms. Gullion, it excludes the rest of the children. If it does not exclude the rest of the children, it does not exclude Ms. Gullion. Third, the difference between the old will language and the current Will language is that the testatrix’s children are not named. The effect of the two provisions is similar. Hence, just as Ms. Gullion was treated as one of her beneficiary children under the old will, so Ms. Gullion was treated as one of her beneficiary children under the Will. 36 Mr. Matras also filed an affidavit sworn June 3, 2016, included with counsel’s submissions, that contained evidence pre–dating the Will. These were birthday cards provided to Ms. Gullion in 1990, 1991, and 1992 from “Mom” and “Dad”, and in 1998 from “Mom”. These descriptors would permit the inference that the recipient was a child of the persons who sent the cards. Ms. Gullion’s 1993 Wedding Program was included, which referred to the testatrix and her husband as her “parents,” the Applicants as her “sisters,” and Mr. Matras as her “brother.” Ms. Gullion attached her wedding announcement as an exhibit to her affidavit of November 2, 2016. Consistently with the Wedding Program, the announcement describes Ms. Gullion as the daughter of the testatrix and her husband. 37 This evidence was not contemporaneous with the execution of the Will. It may be understood as before–the–fact circumstantial evidence relating to the testatrix’s views relating to Ms. Gullion’s family status. Its probative value, though, is not strong given that the documents originated (for the most part) over a decade before the execution of the Will. It was not clear who prepared the wedding documents. One might surmise that had the descriptions in these documents have been inaccu- rate, there would have been a corrective response, but none was in evidence on the record. The pre–Will documentation, at least, did not undermine the inferences drawn from the estate planning documents. 38 Mr. Matras’s affidavit included post–Will execution evidence, in the form of a residency agreement for the Copper Sky Lodge (a supportive living facility) where the testatrix took up residence in 2013. Ms. Gul- lion, who had been assisting the testatrix when her health took a turn for the worst, was named as a “daughter.” It was not clear who was responsible for so describing Ms. Gullion or whether the testatrix had endorsed that description. This evidence has little probative value, but again at least did not undermine the inferences drawn from the estate planning documents. Elsenheimer v. Matras W.N. Renke J. 329

39 Ms. Gullion was placed in the foster care of the testatrix and her husband when she was between 4 and 8 months old. She lived in the Matras home for her young life, including the period of her University studies. She left home when 21, but later moved back at intervals. She moved to Calgary in 1988, and, as indicated, married a few years later. This evidence of the long relationship of the testatrix and Ms. Gullion aids in understanding why the testatrix would have thought of Ms. Gullion as her daughter. 40 Ms. Guillon and Mr. Matras included some social services records concerning Ms. Gullion and the Matras family. The records, generally, set out the opinions and impressions of third party social services workers. The records were hearsay but admissible. Necessity is made out by the impracticality of calling individual workers to testify respecting impressions of a child and her family in the 1960s and 1970s. The records are reliable, in that they were prepared by persons with a duty to prepare such records and the records were prepared with the expectation that they would be relied on by other workers, to ensure that the best interests of the child were served. Workers had an obligation to be accurate. The records were made by individuals with personal knowledge of what was recorded, although (being typed) the records could not have been made contemporaneously with the information gathered by the authors. I find the records admissible under Ares v. Venner, [1970] S.C.R. 608 (S.C.C.) and R. v. Khan, [1990] 2 S.C.R. 531 (S.C.C.). 41 For the most part, the social services records confirm Ms. Gullion’s and Mr. Matras’s contentions respecting Ms. Gullion’s role as a true member of the testatrix’s family. We read entries such as the following (references are to exhibit C of Ms. Gullion’s affidavit): [The testatrix] is obviously very fond of Eileen . . . and would fight any plans to move [her] (February 8, 1968, p. 23). Eileen . . . [works] out very well in this home and there appears to be very strong bonds and relationships between family members (April 9, 1974, p. 14). [Eileen is] fully excepted (sic) by [her] foster parents (October 8, 1973, p. 11). Eileen is definitely and completely a family member (July 2, 1975, p. 9). RELATIONSHIP WITH FOSTER FAMILY: Seems excellent. [The testatrix] is obviously very proud of all [of Eileen’s] accomplishments and when financing of her university was 330 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

discussed she was advised that they were prepared to assist her. Two other daughters were home at the time of this visit and their relationship to Eileen was one of mutual respect and affection (May 30, 1977, p. 5) 42 However, as counsel for the Applicants pointed out, there are some discordant elements in the records. In an April 4, 1963 entry (p. 33), we read that the testatrix had Eileen “call her ‘auntie’ and her husband ‘un- cle.’” Not, one might observe, mom and dad. An August 18, 1966 entry stated that The foster family is very attached to [Eileen]. [The testatrix] feels she will probably never be in a financial position to adopt but wants [Ei- leen] to remain with her. The testatrix and her husband did adopt Mr. Matras, who came into their lives after Ms. Gullion. Finally, a December 8, 1977 (p. 2) entry reads as follows: Eileen has been somewhat disappointed in the last couple of months in what she interprets as a change in the foster parents[’] attitude towards her. She has believed all of her life that she was a complete member of this family, and in the past couple of months [the testatrix] has been saying such things as Eileen will have to pay room and board after the termination of her wardship at the end of January and the other reason for this is that Eileen is not her natural daughter . . . Further, It was news to [Eileen] that the foster parents were expected to provide her clothing and also to give her a monthly spending allowance. Apparently she hasn’t received this in years. Ms. Guillon did not want either of these matters discussed with her foster parents. 43 Do these entries undermine the conclusion that the testatrix, at the time of making her Will, regarded Ms. Gullion as one of her children? They do not. The entries long pre–date the making of the Will and the other estate planning documents. The 1963 record makes sense. At this time, the testatrix and her husband could not predict that Ms. Gullion would spend her life to young adulthood with them. It was prudent to try to keep some emotional distance, hard as that might have been (the entry went on to add that when Eileen became excited about something, she always called the testatrix “mummy” (p.33)). The 1966 entry speaks to a Elsenheimer v. Matras W.N. Renke J. 331

tension that manifested later. On the one hand, a strong relationship existed. On the other hand, Eileen was a source of income. I cannot speculate about why Mr. Matras was adopted but Ms. Gullion was not. I can only observe that the adoption simply confirmed the mixed nature of the testatrix’s family, with natural, adopted, and foster children. 44 The 1977 entries are disturbing. It is true that many families have older children pay room and board. That by itself has little probative value, one way or another. The requirement to pay, though, was apparently linked to Ms. Gullion’s foster status. As illuminated by the second 1977 entry, what may be disclosed was an excessive focus on money over relationship. I do not judge this. Whatever may have been the testatrix’s perspective in 1977, the testatrix — like all other individuals — was entitled to develop as a person and to embrace or re–embrace Ms. Gullion as a daughter. The testatrix had done so as her years advanced, and, as I have found, by the time she made the Will.

CONCLUSION 45 Ms. Gullion was one of the testatrix’s children. She falls within the scope of the term “children” in paragraph 4(b) of the Will. That is what the testatrix intended. That is the only reasonable and moral interpretation. 46 I hereby direct that the testatrix’s personal representative divide the residue among the five children of the testatrix — Maxine Elsenheimer, Karen Meyer, Candace Watson, Rene Matras, and Eileen Gullion. 47 There is no need to resort to “rectification” of the Will under s. 39 of the Wills and Succession Act since what the testatrix testator meant by the term “children” in paragraph 4(b) is clear without the need for any linguistic modification.

CONSTRUCTIVE TRUST 48 Counsel for Ms. Gullion made passing mention of a constructive trust argument that related to a settlement agreement concerning the testatrix’s husband’s estate. I make no findings respecting any constructive trust. Constructive trust issues are beyond the scope of the application before me and are distinct and separable from the interpretation of the Will. 332 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

APPLICATION TO REMOVE MR. MATRAS AS PERSONAL REPRESENTATIVE 49 An application to remove Mr. Matras as personal representative is premature. To this point, he has sought the proper interpretation of the Will and has not demonstrated unwillingness to administer the estate according to the correct interpretation of the Will. Insofar as the Applicants have applied for the removal of Mr. Matras as the testatrix’s personal representative, that application is dismissed.

COSTS 50 I have considered rule 10.33. Ms. Gullion was fully successful. The Applicants failed to name her as a party to their application, which had put Ms. Gullion at risk of loss without the ability to answer. Ms. Gullion had been a member of the testatrix’s family for over 50 years. I regret to find that I could discern no good reason for the Applicants’ attempt to exclude Ms. Gullion as a member of their family and to subvert their mother’s intentions. Ms. Gullion shall have her costs of this application on a solicitor and own client full–indemnity basis, payable from the testatrix’s estate. Application granted. Ross v. Edmonton (City) 333

[Indexed as: Ross v. Edmonton (City)] Janet Ross (Applicant) and City of Edmonton and Edmonton Local Assessment Review Board (Respondents) Alberta Court of Queen’s Bench Docket: Edmonton 1403-10106 2016 ABQB 730 J.B. Veit J. Heard: December 9, 15, 2016 Judgment: December 21, 2016 Municipal law –––– Municipal tax assessment — Practice and procedure on assessment appeals and objections — Right of appeal — Question of fact or law –––– Municipality assessed property owner’s residential property at $1,790,000, which was 24 per cent increase from previous year — Average change of assessment in same neighbourhood that year was decrease of 4.4 per cent — Owner unsuccessfully appealed to Edmonton Local Assessment Review Board (Board) with them concluding owner failed to prove assessment was incorrect despite giving little or no weight to municipality’s evidence — Owner was granted leave to appeal on issue of whether board failed to apply legal tests in Municipal Government Act — Appeal allowed; matter remitted for reconsideration — Board made legal error in failing to distinguish between initial evidentiary burden of proof, requiring owner to lead some evidence, and ultimate or legal burden of proof, requiring owner to prove assessment was unfair and inequitable — Board committed error of law in requiring owner to prove that her assessment was incorrect before requiring municipality to engage — Owner had put forward some evidence that assessment was incorrect, so evidentiary burden shifted to municipality, but board had not recognized this shift — In absence of reasons by board in relation to legal burden, court could only conclude board’s departure from correct legal analysis was unreasonable — Board had also not given proper reasons on substantive issue, having provided only conclusory statements. Municipal law –––– Municipal tax assessment — Practice and procedure on assessment appeals and objections — Miscellaneous –––– Municipality assessed property owner’s residential property at $1,790,000, which was 24 per cent increase from previous year — Average change of assessment in same neighbourhood that year was decrease of 4.4 per cent — Owner unsuccessfully appealed to Edmonton Local Assessment Review Board (Board) with them concluding owner failed to prove assessment was incorrect despite giving little or no weight to municipality’s evidence — Owner was granted leave to appeal on 334 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

issue of whether board failed to apply legal tests in Municipal Government Act — Appeal allowed; matter remitted for reconsideration — Board made legal error in failing to distinguish between initial evidentiary burden of proof, requiring owner to lead some evidence, and ultimate or legal burden of proof, requiring owner to prove assessment was unfair and inequitable — Board committed error of law in requiring owner to prove that her assessment was incorrect before requiring municipality to engage — Owner had put forward some evidence that assessment was incorrect, so evidentiary burden shifted to municipality, but board had not recognized this shift — In absence of reasons by board in relation to legal burden, court could only conclude board’s departure from correct legal analysis was unreasonable — Board had also not given proper reasons on substantive issue, having provided only conclusory statements. Cases considered by J.B. Veit J.: Altus Group v. Edmonton (City) (2014), 2014 ABQB 657, 2014 CarswellAlta 1949, 601 A.R. 286 (Alta. Q.B.) — referred to BTC Properties II Ltd. v. Calgary (City) (2010), 2010 ABQB 719, 2010 CarswellAlta 2277, 77 M.P.L.R. (4th) 120, 37 Alta. L.R. (5th) 347, 19 Ad- min. L.R. (5th) 283, (sub nom. Calgary (City) v. Municipal Government Board (Alta.)) 504 A.R. 1 (Alta. Q.B.) — referred to Baker v. Canada (Minister of Citizenship & Immigration) (1999), [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, 1 Imm. L.R. (3d) 1, 14 Admin. L.R. (3d) 173, [1999] 2 S.C.R. 817, [1999] F.C.J. No. 39 (S.C.C.) — followed British Columbia (Securities Commission) v. McLean (2013), 2013 SCC 67, 2013 CarswellBC 3618, 2013 CarswellBC 3619, 366 D.L.R. (4th) 30, [2014] 2 W.W.R. 415, (sub nom. McLean v. British Columbia Securities Commis- sion) 452 N.R. 340, 53 B.C.L.R. (5th) 1, (sub nom. McLean v. British Columbia (Securities Commission)) [2013] 3 S.C.R. 895, [2013] S.C.J. No. 67, (sub nom. McLean v. British Columbia Securities Commission) 347 B.C.A.C. 1, (sub nom. McLean v. British Columbia Securities Commission) 593 W.A.C. 1, 64 Admin. L.R. (5th) 237 (S.C.C.) — referred to C.R. Coatings & Painting Inc. v. IUPAT, Local 1439 (2014), 2014 NSCA 40, 2014 CarswellNS 273, (sub nom. Coatings (C.R.) & Painting Inc. v. International Union of Painters and Allied Trades, Local 1439) 1089 A.P.R. 125, (sub nom. Coatings (C.R.) & Painting Inc. v. International Union of Painters and Allied Trades, Local 1439) 344 N.S.R. (2d) 125 (N.S. C.A.) — referred to Calgary Hoteliers Inc. v. Calgary (City) (2016), 2016 ABQB 388, 2016 CarswellAlta 1326 (Alta. Q.B.) — referred to Campbell v. Edmonton (City) (2014), 2014 ABQB 742, 2014 CarswellAlta 2192, 31 M.P.L.R. (5th) 295, 603 A.R. 87 (Alta. Q.B.) — referred to Ross v. Edmonton (City) 335

Canada (Attorney General) v. Igloo Vikski Inc. (2016), 2016 SCC 38, 2016 CSC 38, 2016 CarswellNat 4645, 2016 CarswellNat 4646, 401 D.L.R. (4th) 197, 487 N.R. 318 (S.C.C.) — considered Canada (Minister of Citizenship and Immigration) v. Khosa (2009), 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 82 Admin. L.R. (4th) 1, [2009] S.C.J. No. 12, 77 Imm. L.R. (3d) 1, 385 N.R. 206, 304 D.L.R. (4th) 1, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339 (S.C.C.) — considered Canada Safeway Ltd. v. Calgary (City) (2016), 2016 ABQB 200, 2016 CarswellAlta 1008 (Alta. Q.B.) — referred to Daisley v. Lethbridge (City) (2000), 2000 CarswellAlta 230, (sub nom. Lethbridge (City) v. Daisley) 250 A.R. 365, (sub nom. Lethbridge (City) v. Daisley) 213 W.A.C. 365, 12 M.P.L.R. (3d) 153, 83 Alta. L.R. (3d) 239, (sub nom. Lethbridge (City) v. Daisley) [2000] A.J. No. 253, 2000 ABCA 79 (Alta. C.A.) — referred to Eco-Industrial Business Park Inc. v. City of Edmonton (2014), 2014 ABQB 421, 2014 CarswellAlta 1202 (Alta. Q.B.) — referred to Edmonton (City) v. Edmonton (City) Composite Assessment Review Board (2012), 2012 ABQB 171, 2012 CarswellAlta 441, 73 Alta. L.R. (5th) 143, 535 A.R. 215, [2012] A.J. No. 281 (Alta. Q.B.) — referred to Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. (2016), 2016 SCC 47, 2016 CSC 47, 2016 CarswellAlta 2106, 2016 CarswellAlta 2107, [2015] S.C.C.A. No. 161, 54 M.P.L.R. (5th) 1, 8 Admin. L.R. (6th) 179, 402 D.L.R. (4th) 236, [2016] S.C.J. No. 47, [2016] 12 W.W.R. 215 (S.C.C.) — considered Edmonton School District No. 7 v. Dorval (2016), 2016 ABCA 8, 2016 CarswellAlta 32, 28 Alta. L.R. (6th) 1, 609 A.R. 280, 656 W.A.C. 280 (Alta. C.A.) — referred to GSL Chevrolet Cadillac Ltd. v. Calgary (City) (2013), 2013 ABQB 318, 2013 CarswellAlta 976, [2013] A.J. No. 604 (Alta. Q.B.) — considered Genesis Land Development Corp. v. Calgary (City) (2014), 2014 ABQB 57, 2014 CarswellAlta 162, 19 M.P.L.R. (5th) 298 (Alta. Q.B.) — referred to Gray v. Ontario (Director of Disability Support Program) (2002), 2002 Cars- wellOnt 1196, 212 D.L.R. (4th) 353, 158 O.A.C. 244, 59 O.R. (3d) 364, 2002 C.E.B. & P.G.R. 8459 (headnote only), 44 Admin. L.R. (3d) 88, [2002] O.J. No. 1531 (Ont. C.A.) — considered Leon’s Furniture Ltd. v. Alberta (Information & Privacy Commissioner) (2011), 2011 ABCA 94, 2011 CarswellAlta 453, 22 Admin. L.R. (5th) 11, 45 Alta. L.R. (5th) 1, [2011] 9 W.W.R. 668, 502 A.R. 110, 517 W.A.C. 110, [2011] A.J. No. 338 (Alta. C.A.) — referred to M.A.H.C.P. v. Nor-Man Regional Health Authority Inc. (2011), 2011 SCC 59, 2011 CarswellMan 606, 2011 CarswellMan 607, D.T.E. 2011T-803, (sub nom. Manitoba Assn. of Health Care Professionals v. Nor-Man Regional 336 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

Health Authority Inc.) 340 D.L.R. (4th) 1, 29 Admin. L.R. (5th) 1, (sub nom. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 423 N.R. 95, [2012] 2 W.W.R. 619, 96 C.C.E.L. (3d) 1, (sub nom. Nor-Man Regional Health Authority Inc. v. M.A.H.C.P.) 2012 C.L.L.C. 220-004, (sub nom. Manitoba Assn. of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 212 L.A.C. (4th) 93, [2011] S.C.J. No. 59, [2011] A.C.S. No. 59, (sub nom. Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals) [2011] 3 S.C.R. 616, (sub nom. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 275 Man. R. (2d) 16, (sub nom. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 538 W.A.C. 16 (S.C.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 SCC 62, 2011 CarswellNfld 414, 2011 CarswellNfld 415, D.T.E. 2012T-7, 340 D.L.R. (4th) 17, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 213 L.A.C. (4th) 95, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, 97 C.C.E.L. (3d) 199, 38 Admin. L.R. (5th) 255 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, [2008] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — followed Ontario (Energy Board) v. Ontario Power Generation Inc. (2015), 2015 SCC 44, 2015 CSC 44, 2015 CarswellOnt 14395, 2015 CarswellOnt 14396, 388 D.L.R. (4th) 540, (sub nom. Power Workers’ Union v. Ontario Energy Board) 475 N.R. 1, (sub nom. Power Workers’ Union v. Ontario Energy Board) 338 O.A.C. 1, 95 Admin. L.R. (5th) 1, [2015] 3 S.C.R. 147 (S.C.C.) — referred to Ross v. Edmonton (City) (2015), 2015 ABQB 495, 2015 CarswellAlta 1436 (Alta. Q.B.) — referred to Ross v. Edmonton (City) J.B. Veit J. 337

Shinkaruk v. Edmonton (City) (2005), 2005 CarswellAlta 2460 (Alta. Mun. Gov. Bd.) — referred to Victoria University v. GE Canada Real Estate Equity (2016), 2016 ONCA 646, 2016 CarswellOnt 13524 (Ont. C.A.) — referred to Winship v. Stantec Consulting Ltd. (2016), 2016 ABQB 468, 2016 CarswellAlta 1548 (Alta. Q.B.) — considered Wood Buffalo (Regional Municipality) v. Alberta (Energy & Utilities Board) (2007), 2007 ABCA 192, 2007 CarswellAlta 1381, 80 Alta. L.R. (4th) 229, 417 A.R. 222, 410 W.A.C. 222 (Alta. C.A.) — referred to 1447743 Alberta Ltd. v. Calgary (City) (2011), 2011 ABCA 84, 2011 Carswell- Alta 368, 80 M.P.L.R. (4th) 71, 41 Alta. L.R. (5th) 366, 21 Admin. L.R. (5th) 190, 502 A.R. 330, 517 W.A.C. 330 (Alta. C.A.) — referred to 1544560 Alberta Ltd. v. Edmonton (City) (2014), 2014 ABQB 176, 2014 CarswellAlta 504 (Alta. Q.B.) — considered 1544560 Alberta Ltd. v. Edmonton (City) (2015), 2015 ABQB 520, 2015 CarswellAlta 1504, 39 M.P.L.R. (5th) 206 (Alta. Q.B.) — referred to Statutes considered: Municipal Government Act, R.S.A. 2000, c. M-26 Generally — referred to s. 460 — considered s. 467(1) — considered s. 468(1) — considered Regulations considered: Municipal Government Act, R.S.A. 2000, c. M-26 Matters Relating to Assessment Complaints Regulation, Alta. Reg. 310/2009 Generally — referred to Matters Relating to Assessment and Taxation Regulation, Alta. Reg. 220/2004 Generally — referred to

APPEAL by property owner from Edmonton Local Assessment Review Board’s decision denying her request to lower assessment of her residential property.

Steven A.A. Dollansky, for Applicant Michael S. Gunther, for Respondent, City of Edmonton Kate L. Hurlburt, Q.C., for Respondent, Edmonton Local Assessment Review Board

J.B. Veit J.:

1 Janet Ross was given leave to appeal the decision of the Edmonton Local Assessment Review Board’s decision which had denied her re- 338 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

quest to lower the assessment of her residential property from $1,780,000.00 to $1,500,000.00. The two grounds on which Ms. Ross was given leave are: whether the Review Board failed to apply the legal tests set out in the Municipal Government Act and whether the Review Board endorsed an arbitrary approach to property assessment. 2 The appeal is allowed: the Ross claim is returned to the Board for reconsideration. 3 Despite leave to appeal having been granted on a legal issue, the standard of review here is reasonableness. Although this Board meets one prong of the legal issue test for correctness rather than reasonableness because it has no expertise in legal matters, the legal issue in question — the burden of proof on assessment appeal hearings – is not of central importance to the legal system. 4 Here, the Board made a legal error in failing to distinguish between the initial evidentiary burden of proof, i.e. requiring the claimant to lead some evidence, and the ultimate or legal burden of proof, i.e. requiring the claimant to prove, on a balance of probabilities, that the assessment was unfair and inequitable. The Municipal Government Act does not statutorily change the burden of proof for these proceedings; s. 460 of the MGA merely requires an assessed owner to provide what amounts to pleadings for the hearing. This Board committed an error of law in requiring Ms. Ross to prove that her assessment was incorrect before requiring the City to engage; Ms. Ross had put forward some evidence that the assessment was incorrect. In such a situation, the evidentiary burden shifted to the City. This shift was not recognized by the Board. This Board was required, by statute and at common law, to provide reasons for its decision to adopt a burden of proof that was different from the legal burden of proof. The Board simply did not, in its decision, address the issue of the legal burden of proof; it did not even provide a conclusory statement about the burden of proof. Had the Board provided reasons for departing from the correct burden analysis, this court would, of course, have embarked upon a reasonableness assessment. Because the standard of review on appeal is deferential, it is particularly important for the tribunal whose decision is being appealed to give adequate reasons for its decision. In the absence of reasons by the Board in relation to the legal burden, this reviewing court can only conclude that the Board’s departure from a correct legal analysis was unreasonable. 5 However, where, as here, the standard of review is reasonableness, even an unreasonable legal conclusion might still be saved if the overall Ross v. Edmonton (City) J.B. Veit J. 339

decision of the tribunal is reasonable: Wood Buffalo. In relation to the substantive issue, the Board did not give what the law describes as “reasons”; overall, it only provided conclusory statements. As stated previously, this Board was required, by statute and by common law, to give reasons for its substantive conclusions. It did not do so. As one example, the Board did not address Ms. Ross’ argument to the effect that, even based on the City’s own evidence – comparables which were not, in her view, fair comparables – the City had proved that her assessment was unfair. As another example, the Board did not address how any assessed person could prove that their assessment was unfair and inequitable where, as here, the City refused to divulge the basis on which it trans- posed comparables to other properties. 6 In summary, the Board’s interpretation of the MGA as it applied to the Ross hearing was unreasonable. In light of that conclusion, this reviewing court has not gone on to consider the second ground on which leave to appeal was granted.

Cases and authority cited 7 By Ms. Ross: Ross v. Edmonton (City), 2015 ABQB 495 (Alta. Q.B.); Municipal Government Act, RSA 2000, c M–26; Matters Relating to As- sessment and Taxation Regulation, AR 220/2004; 1544560 Alberta Ltd. v. Edmonton (City), 2015 ABQB 520 (Alta. Q.B.); Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 (S.C.C.); 1544560 Alberta Ltd. v. Edmonton (City), 2014 ABQB 176 (Alta. Q.B.); GSL Chevrolet Cadillac Ltd. v. Calgary (City), 2013 ABQB 318 (Alta. Q.B.). 8 By the City of Edmonton: Edmonton School District No. 7 v. Dorval, 2016 ABCA 8 (Alta. C.A.); Wood Buffalo (Regional Municipality) v. Alberta (Energy & Utilities Board), 2007 ABCA 192 (Alta. C.A.); BTC Properties II Ltd. v. Calgary (City), 2010 ABQB 719 (Alta. Q.B.); Altus Group v. Edmonton (City), 2014 ABQB 657 (Alta. Q.B.); Campbell v. Edmonton (City), 2014 ABQB 742 (Alta. Q.B.); Daisley v. Lethbridge (City), 2000 ABCA 79 (Alta. C.A.); Genesis Land Development Corp. v. Calgary (City), 2014 ABQB 57 (Alta. Q.B.); Excerpt, Sopinka, Leder- man and Bryant, The Law of Evidence in Canada; Shinkaruk v. Edmonton (City) [2005 CarswellAlta 2460 (Alta. Mun. Gov. Bd.)], MGB DL 085/05; Mainstreet Equity Corp v Edmonton, 2016 ECARB 01577; Eco-Industrial Business Park Inc. v. City of Edmonton, 2014 ABQB 421 (Alta. Q.B.); Edmonton (City) v. Edmonton (City) Composite Assessment 340 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

Review Board, 2012 ABQB 171 (Alta. Q.B.); N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.); British Columbia (Securities Commission) v. McLean, 2013 SCC 67 (S.C.C.); M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 SCC 59 (S.C.C.); C.R. Coatings & Painting Inc. v. IUPAT, Local 1439, 2014 NSCA 40 (N.S. C.A.); Victoria University v. GE Canada Real Estate Equity, 2016 ONCA 646 (Ont. C.A.). 9 By Edmonton Local Assessment Review Board: Excerpts from the Municipal Government Act, RSA 2000, c. M–26, as amended; Excerpts from the Matters Relating to Assessment and Taxation Regulation, Alta Reg 220/2004, as amended; Excerpts from the Matters Relating to As- sessment Complaints Regulation, Alta Reg 310/2009, as amended; 1447743 Alberta Ltd. v. Calgary (City), 2011 ABCA 84 (Alta. C.A.); Leon’s Furniture Ltd. v. Alberta (Information & Privacy Commissioner), 2011 ABCA 94 (Alta. C.A.); Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 (S.C.C.); New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.); Edmonton (City) v. Edmonton (City) Composite Assessment Review Board, 2012 ABQB 171 (Alta. Q.B.); Canada Safeway Ltd. v. Calgary (City), 2016 ABQB 200 (Alta. Q.B.); Calgary Hoteliers Inc. v. Calgary (City), 2016 ABQB 388 (Alta. Q.B.); Genesis Land Development Corp. v. Calgary (City), 2014 ABQB 57 (Alta. Q.B.). 10 By the court: Janet M. Ross v The City of Edmonton 2014 ELARB 01123; Winship v. Stantec Consulting Ltd., 2016 ABQB 468 (Alta. Q.B.); Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.); Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12 (S.C.C.); Gray v. Ontario (Director of Disability Support Program), [2002] O.J. No. 1531 (Ont. C.A.); Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38 (S.C.C.). Appendix A: Reasons for decision of the Edmonton Local Assess- ment Review Board Appendix B: Extracts from the Municipal Government Act

1. Background a) Factual 11 Janet Ross is the owner and resident of a residential property in the Quesnell Heights neighbourhood of Edmonton. In 2014, the City of Ross v. Edmonton (City) J.B. Veit J. 341

Edmonton assessed the Ross property at $1,790.000.00, which was a 24% increase from the previous year. The average change of assessment in the Quesnell Heights neighbourhood in 2014 was a decrease of 4.4%. 12 Ms. Ross appealed the assessment of her residence, properly filling out the forms required by s. 460 of the Municipal Government Act. She claimed that her property should be assessed at $1,500,000.00. 13 A market evaluation of the Ross property from a real estate firm familiar with real estate in the general area where the Ross property is located estimated the market value of the property at $1,510,000.00. An estimate of repairs necessary to the main structure of the property to- talled nearly $200,000.00 consisting of repairs to the roof and shingles and the possible separation of a recent addition from main structure. 14 The City of Edmonton provided evidence of two “sales comparables” and two “equity comparables”. Using those comparables — which she rejected as being comparable — Ms. Ross calculated that the City’s own approach validated her request for a reduced assessment. 15 For ease of reference, an extract, entitled “Reasons for Decision”, from the Review Board’s decision is set out at Appendix A.

b) Legislative 16 The pertinent provisions of the Municipal Government Act are set out in Appendix B.

2. The standard of review here is reasonableness 17 The appellant, Ms. Ross, and the respondent, City of Edmonton, agree that the standard of review on this appeal is reasonableness. Both rely on the Supreme Court of Canada’s decision in Capilano, a decision that was unavailable to the judge who granted leave in this case, but the result of which was anticipated by her. The Capilano decision makes it unnecessary for this court to embark upon a detailed assessment of standard of review principles. 18 However, this court was concerned about the basis of the parties’ acceptance of the Capilano result. The respondent City of Edmonton par- ticularizes that “it is now settled law that the standard of review on a decision of the Board, interpreting the MGA, is reasonableness”. My main concern is that the SCC did not, in Capilano, decide that all appeals from this Review Board, and all similar Review Boards, were always to be decided on a standard of deference, i.e. reasonableness. On the contrary, the SCC decided that an appeal court should begin by considering 342 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

whether the issue on appeal involves the interpretation by the Board of its own statute. In Capilano, it was clear that that the issue was whether the Board had powers under s. 467(1) of the MGA. Here, for the reasons that will be expanded upon below, it is not clear that, in resolving the matter before it, the Board was interpreting any particular section of the MGA or even the MGA itself. Even if the issue of statutory interpretation is resolved, the SCC reminded us that the four Dunsmuir exceptions to reasonableness continue to apply to this Board and tribunals of its type. The specific Dunsmuir exception which must be considered here is whether the appeal raises a question which is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise. 19 After considering the parties’ additional submissions on the standard of review in the circumstances here, I have come to agree with their conclusion: the applicable standard is deference, i.e. reasonableness. In coming to that conclusion, I have noted that, while this Board has no expertise in general legal matters, such as the burden in civil litigation, the application of the concept of the burden of proof as it was developed by this Board would be extremely unlikely to be considered to be a matter of concern by the legal system as a whole: any harm done by a wrong approach by this Board would likely only affect other panels of this Board.

3. The Board’s decision is unreasonable. It is unreasonable on a crucial legal issue: the correct burden analysis here required Ms. Ross to provide, initially, only some evidence of an unfair and inequitable assessment; when that threshold was crossed, the evidentiary burden switched to the City. The Board did not recognize this distinction between the initial, and the ultimate, burden of proof. Because the Board did not provide sufficient reasons for departing from the correct burden analysis, this reviewing court can only conclude that the Board’s conclusion on a question of law is, without more, unreasonable. The Board’s decision is also unreasonable when assessed overall. The Board’s conclusion that Ms. Ross had to prove that the assessment was unfair and inequitable was unreasonable in light of the enormous information imbalance between the parties and the City’s refusal to provide information on how “comparables” are applied to other properties. Ross v. Edmonton (City) J.B. Veit J. 343

A. The Board’s decision was unreasonable on a crucial question of law: the burden of proof 20 The Board’s approach to the burden of proof in this matter is set out in paragraph 30 of its decision: see Appendix A. In the first sentence of that paragraph, the Board stated that it considered the evidence and arguments of both parties. It then went on, in the second sentence, to conclude that Ms. Ross did not “provide sufficient evidence with respect to sales, assessments, or any other matter” to establish that the assessment was incorrect. Next, it stated, explicitly, that the “onus of proving incorrectness of an assessment is on the complainant”. Finally, it stated that the market evaluation submitted by Ms. Ross did not provide “sufficient evidence to prove the incorrectness of the assessment”. These comments might have been acceptable if they had been made in relation to the ultimate burden of proving that the assessment was incorrect; that burden was clearly on Ms. Ross. However, the way in which the Board reached its conclusion is made explicit in paragraph 36 of its decision (see Ap- pendix A). 21 As will be demonstrated below, the correct analysis of the burden of proof on hearings before the Board is that a complainant must initially provide only some evidence that the assessment is incorrect, after which the evidentiary onus switches to the City to provide evidence that the assessment is correct. After hearing all submissions on all the evidence, the Board should have decided whether the assessment of the Ross property was fair and equitable. Here, Ms. Ross had provided some evidence that the assessment was incorrect; the City then provided evidence which the Board rejected; the Board was then presumably left only with Ms. Ross’ evidence; Ms. Ross’ claim should therefore have been accepted. The Board’s actual approach was incorrect. 22 However, correctness is not the standard of review. Had the Board given reasons for its departure from the correct burden analysis, this court might have been able to agree that the Board’s approach was reasonable. In the absence of any reasons for departing from the correct burden analysis, this court can only conclude that the Board’s departure was unreasonable. 344 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

a) The ordinary burden of proof in civil matters is that a claimant must, initially, provide only someevidence in support of its claim; once that threshold is met, the evidentiary burden shifts to the respondent 23 In civil proceedings, a claimant must, initially, only provide some evidence in support of its claim. Once that threshold is satisfied, the evidentiary onus switches to the respondent, here the City, to lead evidence. The way in which the test operates was outlined recently by Goss J. in Winship: [3] Rule 8.20 states: At the close of the plaintiff’s case, the defendant may request the Court to dismiss the action on the ground that no case has been made, without being asked to elect whether evidence will be called. [4] The test on a rule 8.20 (non–suit) application is set out in Prudential Securities Credit Corp, LLC v Cobrand Foods Ltd, 2007 ONCA 425 at para 35, 85 OR (3d) 561: On a non–suit motion, the trial judge under- takes a limited inquiry. Two relevant principles that guide this inquiry are these. First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion. Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign “the most favourable meaning” to evidence capable of giving rise to competing inferences. . . . [5] Our Court of Appeal adopted this test in Capital Es- tate Planning Corp v Lynch, 2011 ABCA 224 at para 19, 510 AR 244 [Capital Estate]; and recently cited it with approval in Elan Construction Ltd v South Fish Creek Recreational Assn, 2016 ABCA 215, [2016] A.J. No. 710 at para11 (QL). [6] In Capital Estate at para 20, the Court rephrased the test this way: In short, a non–suit application will fail if the plaintiff has adduced some evidence on each of the essential elements of her claim. In making this assessment, the trial judge does not weigh the evidence or assess credibility. Fur- Ross v. Edmonton (City) J.B. Veit J. 345

thermore, the trial judge must assume that the plaintiff’s evidence is true, and draw all reasonable inferences from it. . . . 24 It is important to recognize that the hearings before the Board were not a summary judgment application; therefore, there was no obligation on Ms. Ross to prove her case on a balance of probabilities before the evidentiary burden shifted to the City to make a response. 25 In any civil matter, the respondent — here the City — is not obliged to call evidence to respond to the claimant’s evidence; however, the respondent takes an obvious risk in not calling evidence.

b) The ordinary burden of proof was not statutorily varied for Board hearings 26 A statute can, of course, establish – for matters coming within its am- bit – a burden of proof which is different from the usual standard of proof. 27 As the Supreme Court of Canada noted in Capilano, it is possible — perhaps even salutary – for legislation to establish the standard of review in relation to proceedings under that statute. A statutory standard of review could be different from the otherwise applicable judicially developed standard of review. The MGA does state that the ordinary laws of evidence do not apply in proceedings before the Board. A similar approach might have been taken in the legislation with respect to the burden of proof; however, this Alberta legislation does not set any statutory standard for the burden of proof.

c) Here, Ms. Ross did provide some evidence that the assessment was unfair and inequitable; in other words, she met the prima facie test 28 Ms. Ross initially provided three types of evidence that her assessment was incorrect: the nearly 25% increase from the previous year, cou- pled with the average decrease in her neighbourhood, evidence that her home required substantial repairs and renovations; and a market evaluation from a realtor. 29 In addition to her own evidence, Ms. Ross also applied the City’s comparable square foot evaluations to show that, even applying that evidence, the assessment of her home was incorrect. 346 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

d) The Board departed from the ordinary principle of law when it required Ms. Ross to prove that the assessment was incorrect before assessing the totality of the evidence before it 30 Paragraph 36 of the Board’s reasons illustrates this Board’s misunder- standing of the burden of proof: it required Ms. Ross to shoulder the ultimate burden before calling on the City. e) This Board was required to give reasons which reasons must be assessed within a context of deference 31 This Board has a statutory obligation to give reasons: s. 468(1) MGA. 32 On a reasonableness review, it appears from Capilano that a reviewing court must, however, consider not any statutory obligation to give reasons, but whether there was a breach of procedural fairness. 33 The Newfoundland and Labrador Nurses Union decision to which the SCC referred in Capilano makes the following comments about the obligation to give reasons: 20 Procedural fairness was not raised either before the reviewing judge or the Court of Appeal and it can be easily disposed of here. Baker stands for the proposition that “in certain circumstances”, the duty of procedural fairness will require “some form of reasons” for a decision (para. 43). It did not say that reasons were always required, and it did not say that the quality of those reasons is a question of procedural fairness. In fact, after finding that reasons were required in the circumstances, the Court in Baker concluded that the mere notes of an immigration officer were sufficient to fulfil the duty of fairness (para. 44). ... 22 It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis. 34 The reference to Baker takes us back to that decision: The Provision of Reason [37] More generally, the traditional position at common law has been that the duty of fairness does not require, as a general rule, that reasons be provided for administrative decisions: Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684; Supermarch´es Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219, at p. 233; Public Ross v. Edmonton (City) J.B. Veit J. 347

Service Board of New South Wales v. Osmond (1986), 159 C.L.R. 656 (H.C.A.), at pp. 665–66. ... [38] Courts and commentators have, however, often emphasized the usefulness of reasons in ensuring fair and transparent decision–making. Though Northwestern Utilities dealt with a statutory obligation to give reasons, Estey J. held as follows, at p. 706, referring to the desirability of a common law reasons requirement: This obligation is a salutary one. It reduces to a considerable degree the chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question of appeal. . . . The importance of reasons was recently reemphasized by this Court in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at paras. 180–81. ... [43] In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlow- ski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached. 35 Baker was, of course, considering a situation where there was no statutory obligation to give reasons; that decision is authority for the proposition that, in some cases, even where there is no statutory obligation to do so, procedural fairness requires that reasons be given. Here, not only is there a statutory obligation to give reasons, under the Baker analysis there would be a common law duty to give reasons: there is a statutory right of appeal, on a question of law, if leave is granted and the decision has an important financial significance for the assessed person. 348 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

36 In the result, in the circumstances here, a failure to give reasons amounts to a breach of procedural fairness. 37 There is a further complication in the law relating to the obligation to give reasons which arises from the obligation on a reviewing court to consider what reasons could have been given by a tribunal when it did not give reasons or not give adequate reasons. This obligation is somewhat akin to the obligation for a sentencing court to consider what a jury might have found as sentencing facts. The obligation to consider the possibility of reasons was established in Baker at para. 65. 38 Where the law requires reasons and there is an absence of reasons or of adequate reasons, and the standard of review is reasonableness, at paragraph 65 of Baker it appears that reviewing courts are required to consider reasons “that could be offered”: Professor Dyzenhaus has articulated the concept of “deference as respect” as follows: Deference as respect requires not submission but a respectful attention to the reasons offered or which could be offered in support of a decision. . . . (D. Dyzenhaus, “The Politics of Deference: Judicial Re- view and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286.). [Emphasis added] 39 Nonetheless, as the SCC reminded us in Khosa: 63 The Dunsmuir majority held: A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision–making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47] Dunsmuir thus reinforces in the context of adjudicative tribunals the importance of reasons, which constitute the primary form of accountability of the decision maker to the applicant, to the public and to a reviewing court. Al- though the Dunsmuir majority refers with approval to the proposition that an appropriate degree of deference “requires of the courts ”not submission but a respectful atten- Ross v. Edmonton (City) J.B. Veit J. 349

tion to the reasons offered or which could be offered in support of a decision‘“ (para. 48 (emphasis added)), I do not think the reference to reasons which ”could be offered“ (but were not) should be taken as diluting the importance of giving proper reasons for an administrative decision, as stated in Baker v. Canada (Minister of Citi- zenship and Immigration), [1999] 2 S.C.R. 817, at para. 43. Baker itself was concerned with an application on ”humanitarian and compassionate grounds‘ for relief from a removal order. [Emphasis added] 40 In summary, case law has established the following principle: where there is a duty on a tribunal to give reasons, either to satisfy a statutory requirement or to satisfy a common law duty of procedural fairness, a reviewing court should review the reasons given or which could have been given within the context of deference. f) In the absence of reasons from the Board explaining why it departed from the ordinary burden of proof, the reviewing court can only conclude that the Board’s decision to depart from the correct analysis of the burden of proof was unreasonable 41 Had the Board given reasons for departing from the legal burden of proof, this court would, of course, have considered them. For example, the Board might have said that it construed s. 460 of the MGA as estab- lishing the burden of disproving correctness on a claimant. That interpretation of the section would have been wrong: s. 460 merely establishes a requirement for what amounts to pleadings before the Board. However, a misinterpretation of the section could have been reasonable, depending on the reasons given: this is the administrative law equivalent of the requirement in mathematics to show your reasoning. g) Unreasonableness on a question of law 42 In summary, the Board’s imposition of an ultimate burden rather than an initial burden on Ms. Ross was unreasonable.

B. The Board’s decision was unreasonable in applying the evidence; overall, the Board’s decision was unreasonable a) Analysis on a reasonableness basis cannot end on a finding that the interpretation of the enabling statute is unreasonable 43 Administrative law is clear: in weighing reasonableness where that is the appropriate standard of review, a reviewing court must not parse out 350 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

the different facets of a tribunal’s decision, but must assess the overall reasonableness of the tribunal’s decision. In this context, a tribunal’s obligation to give reasons applies equally to fact findings and to decisions on legal issues. The analysis of the obligation to give reasons in the context of this Board’s choice to apply the ultimate burden on Ms. Ross at the initial stage apply equally to the factual decisions reached by the Board. This Board had to give reasonable reasons for its factual decisions: suffice it to say that there is a statutory obligation on this Board to give reasons, there is a legitimate expectation to receive reasons on the part of Ms. Ross, and the difference of approximately $380,000.00 in the assessed value is a matter of importance to Ms. Ross. I will just add the following comments. 44 As the case law makes clear, the obligation to give reasons is height- ened where the standard of review is reasonableness. How can a reviewing court judge reasonableness unless adequate reasons are given? In Gray, the Ontario Court of Appeal added support for the Federal Court of Appeal’s commentary that the obligation to give reasons is particularly important where the decision is reviewed deferentially, i.e. on a standard of reasonableness: [22] Recently, the Federal Court of Appeal considered the nature and extent of a statutory duty to give reasons in VIA Rail Canada Inc. v. Canada (National Transportation Agency), [2001] 2 F.C. 25, 193 D.L.R. (4th) 357 (C.A.). Sexton J.A. said at pp. 35–36 F.C.: The duty to provide reasons is a salutary one. Reasons serve a number of beneficial purposes including that of focussing the decision maker on the relevant factors and evidence. In the words of the Supreme Court of Canada: Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. [Baker v. Can- ada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at p. 845.] Reasons also provide the parties with the assurance that their repre- sentations have been considered. In addition, reasons allow the parties to effectuate any right of appeal or judicial review that they might have. They provide a basis for an assessment of possible grounds for appeal or review. They allow the Ross v. Edmonton (City) J.B. Veit J. 351

appellate or reviewing body to determine whether the decision maker erred and thereby render him or her accountable to that body. This is particularly important when the decision is subject to a deferential standard of review. ... The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. In the words of my learned colleague Evans J.A., “[a]ny attempt to formulate a standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to give reasons.” [See J.M. Evans, Adminis- trative Law: Cases, Text and Materials (4th ed.), (Toronto: Emond Montgomery, 1995), at p. 507.] The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors. [See: North- western Utilities et al. v. City of Edmonton, [1979] 1 S.C.R. 684, at p. 706–707; Desai v. Brantford General Hospital; Desai v. St. Jo- seph’s Hospital (1991), 87 D.L.R. (4th) 140 (Ont. Div. Ct.), at p. 148; Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (C.A.), at pp. 637, 687–688.] [Emphasis added] 45 It will be noted, of course, that this Board did not recite the submissions and evidence of Ms. Ross and the City and address why it preferred one over the other with respect to the major points in issue. Despite the onus on a tribunal to provide functional reasons, this reviewing court must remind itself that a tribunal’s reasons are not held to a standard of perfection. As the SCC held in Igloo Vikski, they must only be adequate: 18 Reasonableness review is concerned with the reasonableness of the substantive outcome of the decision, and with the process of articulating that outcome. The reasoning must exhibit “justification, transparency and intelligibility within the decision–making process”: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. The substantive outcome and the reasons, considered to- 352 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

gether, must serve the purpose of showing whether the result falls within a range of possible outcomes: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 14. While the adequacy of a tribunal’s reasons is not on its own a discrete basis for judicial review, the reasons should “adequately explain the bases of [the] decision”: Newfoundland Nurses, at para. 18, quoting from Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221, at para. 163 (per Evans J.A., dissenting), rev’d 2011 SCC 57, [2011] 3 S.C.R. 572.

b) Overall, the Board’s reasons on the assessment itself were unreasonable (i) The reasons for disregarding the increase in assessment from the previous year were reasonable 46 The Board gave reasons for concluding that Ms. Ross’ concern about the year–to–year nearly 25% increase in her assessment was unfounded: see para. 31 at Appendix A. Those reasons are reasonable: since assessments are based on market value, the market might spike or tumble from one year to the next.

(ii) The reasons for disregarding the evidence about repairs/renovations were unreasonable 47 The Board’s reasons for concluding that Ms. Ross’ reliance on the cost of renovations and remediations are unfounded. 48 The Board’s reasons for rejecting Ms. Ross’ evidence and submissions on the renovations and remediations are set out at para. 32 of Ap- pendix A. The main problem with the Board’s reasons in this area is the absence of any comment whatsoever in relation to the problem arising from “the addition separating from the main structure” mentioned in a note at the bottom of the quote from Holland Custom Renovations. Given the engineering cost, the soil testing cost and the potential struc- tural remediation may well “exceed over $100,000”. Through her agent, Ms. Ross further explained the physical evidence leading to a concern that the addition was in fact separating from the main home. A separation problem is not a general maintenance problem. The amount quoted by the renovation firm to deal with the separation problem is, of course, in addition to the nearly $100,000.00 of the quote itself. There was, therefore, some evidence of approximately $200,000.00 in renovations and remediations which the Board had to consider. Ross v. Edmonton (City) J.B. Veit J. 353

49 The City’s reasons for not accepting the renovation quote in relation to decks was answered by Ms. Ross in her Rebuttal. The Board’s reasons for rejecting Ms. Ross’ position and Rebuttal are not reasonable in relation to the deck because they do not address Ms. Ross’ evidence at para. 3 of her Rebuttal. 50 The Board’s reasons also appear to be wrong in that they refer to “normal deterioration of a structure of this age” whereas the evidence before the Board was to the effect that there was a relatively recent major addition to the property with respect to which there were obvious fault lines which may require the repair of the building’s foundation; that was not addressed in the reasons. 51 Finally, on the issue of repairs and reparations, the Board’s reasons accept the City’s explanation for the lack of inspection without address- ing Ms. Ross’ detailed explanation of the background to the inspection issue: see para. 1 of her Rebuttal at page 035 of the Record.

(iii) The reasons for disregarding the market valuation were unreasonable 52 The Board did not give reasonable reasons for concluding that the market evaluation prepared by Lear Real Estate Ltd. did not provide sufficient evidence to establish that the market evaluation by the City was incorrect. 53 I have earlier concluded that Ms. Ross’ initial burden was merely to provide some evidence; the Lear evaluation was clearly some evidence. 54 In any event, the Board’s statement of insufficiency was a conclusion rather than reasons; a mere conclusory statement, rather than reasons, would be a sufficient basis on which to allow the appeal if the standard were correctness. However, in the circumstances here, where the standard is deference, the court must look at the reasons which the Board might have, or could have, given for stating that the Lear opinion was wrong. 55 The City argued that the Lear report did not give specifics of sales in the area. However, the evidence was to the effect that there were few recent sales in the area. The Lear report did, however, provide some evidence of sales of some properties that had some similarities to the Ross property, i.e. they were in the general area, they abutted the river, they were recent, they were discoverable by the City. 56 The City also argued that the Lear report did not provide sufficient evidence of assessments. There is, of course, an enormous information imbalance between a property owner and the City in matters of assess- 354 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

ment. For example, the City maintained that the appropriate comparable was not the Quesnell Heights area itself, but rather the River Valley zone. That might well be true; but that is information about the City’s assessment practice that would not necessarily be known to an assessed person. 57 More importantly, during the course of the hearing before the Board, the City took the somewhat strange position that it would not disclose the way in which assessments of alleged “comparables” were measured against the subject property. It is therefore impossible for an assessed person to provide “sufficient” evidence that an assessment is incorrect. 58 Ms. Ross even used the City’s comparables and the City’s per square foot values to establish a value for her property which value was consistent with the Lear evaluation.

4. Conclusion 59 For the reasons set out above, the Edmonton Local Assessment Re- view Board’s decision on the Ross complaint applied an unreasonable test on Ms. Ross; this may have arisen through a misinterpretation of the Municipal Government Act. In light of this conclusion, it is not necessary for this court to consider the second basis on which leave to appeal was granted — whether this Board endorsed an arbitrary approach to property assessment. The Ross complaint is returned to the Board for reconsideration.

5. Costs 60 If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Appeal allowed; matter remitted for reconsideration.

APPENDIX: EXTRACT FROM THE DECISION OF THE EDMONTON LOCAL ASSESSMENT REVIEW BOARD A — Reasons for the Decision

[30] After review and consideration of the evidence and argument presented by both parties the Board determined the 2014 assessment of the subject property at $1,790,000 to be fair and equitable. In determining whether the subject property is correctly assessed at $1,790,000, the Board finds that the Complainant did not provide sufficient evidence with respect to sales, assessments or any other matter to establish that the Ross v. Edmonton (City) J.B. Veit J. 355 assessment is incorrect. The onus of proving the incorrectness of an assessment is on the Complainant. The market valuation prepared by Lear Real Estate Ltd. did not provide sufficient evidence to prove the incorrectness off(sic) the assessment. [31] The Board accepts the Respondent’s position that each year’s assessment is independent of previous assessments and the mere fact of a large increase is not sufficient information to draw the conclusion that an assessment is too high. Assessments are not based on previous year’s assessments. [32] The amount to repair the deck is not a factor in determining the assessed value of the subject property as decks are not included by the City in assessing the value of a property. The balance of the repair work described by the Complainant appears to be consistent with normal deterioration for a structure of this age. There was no detailed information provided by the Complainant other than the letter from Hoiland Custom Renovations dated April 12, 2014. Further there was no detailed information to show that the repairs required were not consistent with general maintenance. [33] The Board notes that the Respondent was unable to carry out a detailed inspection of the property due to the Complainant being unavailable. [34] Due to the dissimilarity and location of the properties used by the Respondent as sales comparables the Board placed no weight on these as justification of the assessed value of the subject property. [35] The Equity comparables provided by the City were lacking in sufficient detail as to allow the Board to place much weight on these comparables. [36] As the Complainant had not provided sufficient evidence to establish that the assessment is incorrect the failure by the Respondent to provide better sale and equity comparables on which the Board could rely does not factor into the decision of this Board. [Emphasis added] APPENDIX B: EXTRACTS FROM THE MUNICIPAL GOVERN- MENT ACT, RSA 2000 c. M–26 Duties of assessors 293(1) In preparing an assessment, the assessor must, in a fair and equitable manner, 356 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

(a) apply the valuation and other standards set out in the regulations, and (b) follow the procedures set out in the regulations. (2) If there are no procedures set out in the regulations for preparing assessments, the assessor must take into consideration assessments of similar property in the same municipality in which the property that is being assessed is located. (3) An assessor appointed by a municipality must, in accordance with the regulations, provide the Minister with information that the Min- ister requires about property in that municipality. ... Complaints 460(1) A person wishing to make a complaint about any assessment or tax must do so in accordance with this section. (2) A complaint must be in the form prescribed in the regulations and must be accompanied with the fee set by the council under section 481(1), if any. (3) A complaint may be made only by an assessed person or a taxpayer. (4) A complaint may relate to any assessed property or business. (5) A complaint may be about any of the following matters, as shown on an assessment or tax notice: (a) the description of a property or business; (b) the name and mailing address of an assessed person or taxpayer; (c) an assessment; (d) an assessment class; (e) an assessment sub–class; (f) the type of property; (g) the type of improvement; (h) school support; (i) whether the property is assessable; (j) whether the property or business is exempt from taxation under Part 10. (6) There is no right to make a complaint about any tax rate. (7) A complainant must (a) indicate what information shown on an assessment notice or tax notice is incorrect, (b) explain in what respect that information is incorrect, Ross v. Edmonton (City) J.B. Veit J. 357

(c) indicate what the correct information is, and (d) identify the requested assessed value, if the complaint relates to an assessment. (8) A complaint about a local improvement tax must be made within one year after it is first imposed. (8.1) Despite subsection (8), where a local improvement tax rate has been revised under section 403(3), a complaint may be made about the revised local improvement tax whether or not a complaint was made about the tax within the year after it was first imposed. (8.2) A complaint under subsection (8.1) must be made within one year after the local improvement tax rate is revised. (9) Repealed 1995 c24 s71. (10) A complaint must include the mailing address of the complainant if the mailing address of the complainant is different from the address shown on the assessment notice or tax notice. (11) An assessment review board has no jurisdiction to deal with a complaint about linear property or an amount set by the Minister under Part 9 as the equalized assessment for a municipality. Address to which a complaint is sent 461(1) A complaint must be filed with the designated officer at the address shown on the assessment or tax notice, not later than the date shown on that notice. (2) On receiving a complaint, the designated officer referred to in section 455 must set a date, time and location for a hearing before an assessment review board in accordance with the regulations. ... Proceedings before assessment review board 464(1) Assessment review boards are not bound by the rules of evidence or any other law applicable to court proceedings and have power to determine the admissibility, relevance and weight of any evidence. (2) Assessment review boards may require any person giving evidence before them to do so under oath. (3) Members of assessment review boards are commissioners for oaths while acting in their official capacities. Notice to attend or produce 465(1) When, in the opinion of an assessment review board, (a) the attendance of a person is required, or 358 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

(b) the production of a document or thing is required, the assessment review board may cause to be served on a person a notice to attend or a notice to attend and produce a document or thing. (2) If a person fails or refuses to comply with a notice served under subsection (1), the assessment review board may apply to the Court of Queen’s Bench and the Court may issue a warrant requiring the attendance of the person or the attendance of the person to produce a document or thing. ... Decisions of assessment review board 467(1) An assessment review board may, with respect to any matter referred to in section 460(5), make a change to an assessment roll or tax roll or decide that no change is required. (2) An assessment review board must dismiss a complaint that was not made within the proper time or that does not comply with section 460(7). (3) An assessment review board must not alter any assessment that is fair and equitable, taking into consideration (a) the valuation and other standards set out in the regulations, (b) the procedures set out in the regulations, and (c) the assessments of similar property or businesses in the same municipality. (4) An assessment review board must not alter any assessment of farm land, machinery and equipment or railway property that has been prepared correctly in accordance with the regulations. Assessment review board decisions 468(1) Subject to the regulations, an assessment review board must, in writing, render a decision and provide reasons, including any dissenting reasons, (a) within 30 days from the last day of the hearing, or (b) before the end of the taxation year to which the complaint that is the subject of the hearing applies, whichever is earlier. Eecol Electric Corp. v. 968392 Alberta Ltd. 359

[Indexed as: Eecol Electric Corp. v. 968392 Alberta Ltd.] Eecol Electric Corp (Plaintiff) and 968392 Alberta Ltd., Chandos Construction Ltd., 722657 Alberta Ltd., 722657 Alberta Ltd. operating under the trade name and style of Sprague Electric, BDO Canada Limited in its capacity as receiver and manager of 722657 Alberta Ltd. and 722657 Alberta Ltd. operating under the trade name and style of Sprague Electric, and Sprague Electric (Defendants) Alberta Court of Queen’s Bench Docket: Edmonton 1203-09269 2017 ABQB 196 Master W.S. Schlosser, In Chambers Heard: March 6, 2017 Judgment: March 22, 2017 Bankruptcy and insolvency –––– Priorities of claims — Preferred claims — Miscellaneous –––– Defendant C was general contractor and defendant S was electrical subcontractor — Plaintiff was defendant S’s electrical supplier — De- fendant S went into receivership — Defendants kept materials that had been supplied by plaintiff and in refusing to pay, now took shelter in Builders’ Lien Act and s. 81.1 of Bankruptcy and Insolvency Act — Defendants relied on term of sub-contract permitting them to take over and complete work that was either sub-standard or abandoned — Plaintiff made demand under s. 81.1 of Act for approximately $200,000 worth of materials — Plaintiff brought application for value of materials — Application granted — Funds held in court representing unpaid supplies were to be paid out to plaintiff — Contractual term relied on contemplated investigation and 24 hours notice before contractor took over and did not permit general contractor to keep materials belonging to subcontractor without paying for them — Section 81.1 of Act isn’t exclusive remedy and supported plaintiff’s claim to have had better right to goods when receivership intervened — Mere delivery did not give ownership, much less unassailable right to something for nothing — Builders’ Lien Act was not to be used as means to frustrate legitimate expectations of unpaid supplier. Construction law –––– Construction and builders’ liens — Priorities — Be- tween types of creditors — Miscellaneous –––– Defendant C was general contractor and defendant S was electrical subcontractor — Plaintiff was defendant S’s electrical supplier — Defendant S went into receivership — Defendants kept materials that had been supplied by plaintiff and in refusing to pay, now took 360 ALBERTA LAW REPORTS 48 Alta. L.R. (6th) shelter in Builders’ Lien Act and s. 81.1 of Bankruptcy and Insolvency Act — Defendants relied on term of sub-contract permitting them to take over and complete work that was either sub-standard or abandoned — Plaintiff made demand under s. 81.1 of Act for approximately $200,000 worth of materials — Plaintiff brought application for value of materials — Application granted — Funds held in court representing unpaid supplies were to be paid out to plaintiff — Contrac- tual term relied on contemplated investigation and 24 hours notice before contractor took over and did not permit general contractor to keep materials belonging to subcontractor without paying for them — Section 81.1 of Act isn’t exclusive remedy and supported plaintiff’s claim to have had better right to goods when receivership intervened — Mere delivery did not give ownership, much less unassailable right to something for nothing — Builders’ Lien Act was not to be used as means to frustrate legitimate expectations of unpaid supplier. Cases considered by Master W.S. Schlosser, In Chambers: Barrington & Vokey Ltd., Re (1995), 34 C.B.R. (3d) 187, 26 C.L.R. (2d) 28, 1995 CarswellNS 49, [1995] N.S.J. No. 605 (N.S. S.C.) — referred to Bova Steel Inc. v. Constructions Beauce-Atlas Inc. (2016), 2016 ABQB 589, 2016 CarswellAlta 2881, 44 C.B.R. (6th) 324 (Alta. Q.B.) — referred to Litemor Distributors (Edmonton) Ltd. v. Midwest Furnishings & Supplies Ltd. (2007), 2007 ABQB 23, 2007 CarswellAlta 316, 70 Alta. L.R. (4th) 170, [2007] 5 W.W.R. 276, 28 B.L.R. (4th) 270, 63 C.L.R. (3d) 111, 411 A.R. 370 (Alta. Q.B.) — referred to Man-Shield (Alberta) Construction Inc. v. 1117398 Alberta Ltd. (2007), 2007 ABQB 603, 2007 CarswellAlta 1347, 65 C.L.R. (3d) 60, 82 Alta. L.R. (4th) 44, [2008] 2 W.W.R. 647, 37 E.T.R. (3d) 250, 436 A.R. 353 (Alta. Q.B.) — referred to Statutes considered: Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 s. 81.1 [en. 1992, c. 27, s. 38(1)] — considered s. 81.1(1) [en. 1992, c. 27. s. 38(1)] — considered s. 81.1(11) [en. 1992, c. 27. s. 38(1)] — considered Builders’ Lien Act, R.S.A. 2000, c. B-7 Generally — referred to s. 17(2) — considered s. 18(3) — considered s. 18(3)(b) — considered s. 48 — considered Judgment Interest Act, R.S.A. 2000, c. J-1 Generally — referred to

APPLICATION by plaintiff for value of materials. Eecol Electric Corp. v. 968392 Alberta Ltd. Master W.S. Schlosser 361

Patrick Kirwin, for Plaintiff Trent Kulchar, for Chandos Construction Ltd.

Master W.S. Schlosser, In Chambers:

1 In this case, Chandos kept materials that had been supplied by Eecol and, in refusing to pay, now takes shelter in the Builders’ Lien Act, RSA 2000, c B–7 and section 81.1 of the Bankruptcy and Insolvency Act, RSC, 1985, c B–31. 2 There are three reasons why Chandos should not be permitted to do this: First, Eecol has (had) a superior right to the property (or the value of it) pursuant to section 81.1 of the Bankruptcy and Insolvency Act and section 17(2) of the Builders’ Lien Act; Second, a liberal and purposive reading of section 18(3) of the Builders’ Lien Act (18(3)(b) ‘due and owing but unpaid’) favours Eecol; Finally, Eecol as supplier and sub–subcontractor, enjoys a range of equitable remedies against a general contractor, notwithstanding other remedies it might enjoy under the Builders’ Lien Act.

Facts 3 Chandos was the general contractor in a big project in Ft. McMurray. Sprague was the electrical subcontractor. Eecol was Sprague’s electrical supplier. 4 Sprague went into receivership. The Receiver notified Eecol. Eecol made a demand under s 81.1 of the Bankruptcy and Insolvency Act, which would, in effect, have given them a priority — or the equivalent of a secured interest in a bankruptcy — for the approximately $200,000 worth of materials they had supplied but which had yet to be incorporated into the project. 5 The Receiver conveyed to Eecol that they did not have the electrical supplies. They passed Eecol’s demand on to Chandos. Chandos either ‘refused or neglected’ (as the expression goes), to deliver up the materials to the Receiver. The materials were ultimately used to complete the project by replacement subcontractors.

1 This is a brief summary of the reasons for allowing Eecol’s claim which were given in abbreviated form, at the end of the afternoon in Special Motions Court. The issues were otherwise thoroughly canvassed in the five briefs submitted to the Court and in oral argument over the course of the afternoon’s application. 362 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

6 Eecol seeks the money paid into Court some time ago under s 48 of the Builders’ Lien Act to discharge the liens. The amount represents the value of the materials supplied. 7 Chandos’ relies on a term of the sub–contract permitting them to take over and complete work that is either sub–standard or abandoned. They take the position that Sprague abandoned the project before the receivership or, at the very least, Sprague formally abandoned the project when the Court appointed Receiver gave notice that, as Receiver, they would not be completing the project.

Analysis 8 The contractual term relied on by Chandos contemplates an investigation, and 24 hours notice before the general contractor takes over. It does not permit the general contractor to keep materials belonging to subcontractors, or the subcontractor’s supplier, without paying for them. 9 Chandos had physical possession of the materials but it is difficult to justify a better claim to ownership, or title, prior to payment. When title is to pass is a matter of intent. Eecol invoiced Sprague for material and even on the face of those invoices, return of unused material is contemplated (subject to a restocking fee). It would be legally cumbersome to presume that the return of unused goods amounted to a resale at a 20% discount, for example. And without being able to demonstrate ownership or title, Chandos might well have been a bailee. Accordingly, I reject Chandos’ claim to be able to keep the materials with impunity based on the contractual term in the sub–contract between Chandos and Sprague. 10 Chandos takes the position that Eecol’s remedy exists solely under s 81.1 of the Bankruptcy and Insolvency Act which provides: 81.1 (1) Subject to this section, if a person (in this section referred to as the “supplier”) has sold to another person (in this section referred to as the “purchaser”) goods for use in relation to the purchaser’s business and delivered the goods to the purchaser or to the purchaser’s agent or mandatary, and the purchaser has not fully paid for the goods, the supplier may have access to and repossess the goods at the supplier’s own expense, and the purchaser, trustee or receiver, or the purchaser’s agent or mandatary, as the case may be, shall release the goods, if (a) the supplier presents a written demand for repossession to the purchaser, trustee or receiver, in the prescribed form and con- taining the details of the transaction, within a period of 15 Eecol Electric Corp. v. 968392 Alberta Ltd. Master W.S. Schlosser 363

days after the day on which the purchaser became bankrupt or became a person who is subject to a receivership; (b) the goods were delivered within 30 days before the day on which the purchaser became bankrupt or became a person who is subject to a receivership; (c) at the time when the demand referred to in paragraph (a) is presented, the goods (i) are in the possession of the purchaser, trustee or receiver, (ii) are identifiable as the goods delivered by the supplier and not fully paid for, (iii) are in the same state as they were on delivery, (iv) have not been resold at arms’ length, and (v) are not subject to any agreement for sale at arms’ length; and (d) the purchaser, trustee or receiver does not, forthwith after the demand referred to in paragraph (a) is presented, pay to the supplier the entire balance owing. 11 The difficulty with this position is that Sprague (or Sprague’s Re- ceiver) did not have actual possession of the goods and Chandos refused to deliver them up, relying on the section of the sub–contract noted above. Chandos thereby frustrated the Receiver’s call for possession and, indirectly, the Court Order appointing the Receiver. 12 As noted above, the effect of s 81.1 would have been to give Eecol the equivalent of a secured interest and thereby put it in a superior position to other creditors as Sprague. I note that s 81.1(11) of the Bank- ruptcy and Insolvency Act has preserves other remedies available to unpaid suppliers. It isn’t an exclusive remedy and it does support Eecol’s claim to have had a better right to the goods when the receivership intervened. Mere delivery does not give ownership in these circumstances, much less an unassailable right to something for nothing. (eg Barrington & Vokey Ltd., Re, 1995 CarswellNS 49 (N.S. S.C.) esp. at para 33, per Smith, R. 13 Chandos also takes refuge in the Builders’ Lien Act. They argue that the lien fund should be set at $50,000 (under s 18(3)) and that Eecol’s other claims based in conversion, detinue and unjust enrichment should be dismissed. 14 I am not willing to read s 18(3), especially 18(3)(b), as narrowly as Chandos requests. Eecol’s claim is plainly for amounts due and owing 364 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

them, but which remain unpaid in large part because Chandos frustrated the priority Eecol would have enjoyed in the receivership. In other words, Chandos is now trying to do directly what it has already attempted to do indirectly and, I might add, improperly. 15 The purpose of the Builders’ Lien Act is to give a remedy to unpaid subcontractors or suppliers who have no contractual recourse against an owner or a contractor. It is not to be used as a means to frustrate the legitimate expectations of an unpaid supplier. In a manner of speaking the Act is a sword in the hands of subcontractors and not a shield for contractors to frustrate legitimate claims. 16 Finally, the Act does not solely and exclusively occupy the field to the extent that remedies in tort that a subcontractor (or a sub–subcontractor) might have are extinguished. I have in mind here: Litemor Distributors (Edmonton) Ltd. v. Midwest Furnishings & Supplies Ltd., 2007 ABQB 23 (Alta. Q.B.), per Read, J., Man-Shield (Alberta) Construction Inc. v. 1117398 Alberta Ltd., 2007 ABQB 603 (Alta. Q.B.), per Hanebury, M., Bova Steel Inc. v. Constructions Beauce-Atlas Inc., 2016 ABQB 589 (Alta. Q.B.) at paras 20 — 26 per Robertson, M. This is not a suppliers claim against an owner and, as the learned Master noted in the last case, a tort claim, or a claim in equity is not made “under the Act.”

Disposition 17 The funds presently held in Court representing the value of the unpaid supplies are to be paid out to Eecol in satisfaction of this portion of its claim. 18 Eecol Electric also claims interest and there may well be justification for interest at the invoice rate or something approaching it. However, the events leading to this application arose in 2012. Someone in the position of Eecol should not let her sword ‘sleep in her hands’ (to borrow from Blake). The Builders’ Lien Act contemplates two years from lis pendens to trial. This procedure has taken more than twice that. I acknowledge that the intervention of the receivership added some complexity and slowed things down somewhat. In my view, interest should be kept at 30 months and payable under the Judgment Interest Act, RSA 2000, c J–1. 19 Costs follow the event. Application granted. Woodsmere Holdings Corp. v. Hasco Development Corp. 365

[Indexed as: Woodsmere Holdings Corp. v. Hasco Development Corp.] Woodsmere Holdings Corp. (Plaintiff) and Hasco Development Corporation (Defendant) Alberta Court of Queen’s Bench Docket: Edmonton 0803-05358 2016 ABQB 725 E.J. Simpson J. Heard: September 19-28; October 28, 2016 Judgment: December 20, 2016 Real property –––– Sale of land — Remedies — Rectification — Of agreement –––– Vendor owned 3.76 acre property that was zoned as Agricultural Re- serve District, though municipality’s development plan showed future use as residential — Vendor applied to subdivide and rezone property to Residential Multi-Family High Density District (RM) — Purchaser agreed to buy property and vendor warranted property at closing date would be zoned to RM apartment buildings — Agreement was subject to purchaser obtaining development permit for its proposed development — Earlier development plan was discovered that showed future use of property as business park, and vendor’s rezoning application was rejected — Purchaser commenced action against vendor for damages for breach of contract, and vendor sought rectification of agreement — Action dismissed — Agreement was rectified to make it clear that rezoning of property was condition precedent, not warranty — Based on totality of evidence, parties executed agreement under common mistake that it accurately recorded their agreement that rezoning was condition precedent — Impugned warranty clause incorrectly expressed parties’ true agreement — It was clear that parties understood that they had agreed that if property was not rezoned, neither party would have further obligations under contract. Real property –––– Sale of land — Agreement of purchase and sale — Inter- pretation of contract — Conditions — Conditions precedent — Miscellane- ous –––– Vendor owned 3.76 acre property that was zoned as Agricultural Re- serve District, though municipality’s development plan showed future use as residential — Vendor applied to subdivide and rezone property to Residential Multi-Family High Density District (RM) — Purchaser agreed to buy property and vendor warranted property at closing date would be zoned to RM apartment buildings — Agreement was subject to purchaser obtaining development permit for its proposed development — Earlier development plan was discovered that showed future use of property as business park, and vendor’s rezoning applica- 366 ALBERTA LAW REPORTS 48 Alta. L.R. (6th) tion was rejected — Purchaser commenced action against vendor for damages for breach of contract, and vendor sought rectification of agreement — Action dismissed — Vendor had fulfilled its obligations to act honestly and in good faith and had taken all reasonable steps to obtain rezoning — Vendor had explained rezoning problem to purchaser, though its duty of honesty did not require that disclosure — It was not surprising that no documents existed to support vendor’s informal lobbying efforts — Vendor’s testimony was accepted, and he had done what any reasonable person would expect him to do — Not- withstanding vendor’s efforts, rezoning condition precedent was left unsatisfied, so agreement was rendered void — Vendor’s duty of good faith contractual performance did not required it to pursue substitute agreement that parties discussed for another property. Cases considered by E.J. Simpson J.: Bhasin v. Hrynew (2014), 2014 SCC 71, 2014 CSC 71, 2014 CarswellAlta 2046, 2014 CarswellAlta 2047, [2014] 11 W.W.R. 641, 27 B.L.R. (5th) 1, 464 N.R. 254, 379 D.L.R. (4th) 385, 20 C.C.E.L. (4th) 1, [2014] S.C.J. No. 71, [2014] 3 S.C.R. 494, 584 A.R. 6, 623 W.A.C. 6, 4 Alta. L.R. (6th) 219 (S.C.C.) — followed Canada (Attorney General) v. Fairmont Hotels Inc. (2016), 2016 SCC 56, 2016 CSC 56, 2016 CarswellOnt 19252, 2016 CarswellOnt 19253, [2016] S.C.J. No. 56 (S.C.C.) — considered Dynamic Transport Ltd. v. O.K. Detailing Ltd. (1978), 85 D.L.R. (3d) 19, [1978] 2 S.C.R. 1072, 20 N.R. 500, 6 Alta. L.R. (2d) 156, 9 A.R. 308, 4 R.P.R. 208, 1978 CarswellAlta 62, 1978 CarswellAlta 298, [1978] S.C.J. No. 52 (S.C.C.) — considered McLean v. McLean (2013), 2013 ONCA 788, 2013 CarswellOnt 17995, 118 O.R. (3d) 216, (sub nom. McLean Estate v. McLean) 313 O.A.C. 364, 39 R.P.R. (5th) 181, 370 D.L.R. (4th) 167, [2013] O.J. No. 5956 (Ont. C.A.) — considered McLean v. McLean (2014), 2014 CarswellOnt 5954, 2014 CarswellOnt 5955, [2014] S.C.C.A. No. 76, (sub nom. McLean Estate v. McLean) 474 N.R. 392 (note) (S.C.C.) — referred to

ACTION by plaintiff purchaser against defendant vendor for damages for breach of contract.

Gary B. Romanchuk, for Plaintiff Ben A. Guido, Amie W. Heil, for Defendant Woodsmere Holdings Corp. v. Hasco Development Corp. E.J. Simpson J. 367

E.J. Simpson J.: Introduction 1 In December 2007, the plaintiff, Woodsmere Holdings Corp. (Wood- smere), a British Columbia corporation carrying on business there and in Alberta, signed a contract with the defendant, Hasco Development Cor- poration (Hasco), an Alberta corporation, to purchase a parcel of land in the Town of Beaumont (the Town). Woodsmere alleges that Hasco breached the contract by failing to have the land rezoned so apartment buildings could be built on it. Woodsmere claims it suffered damages as a result of Hasco’s breach and brings this action to recover those damages. 2 Woodsmere’s action must be dismissed as (i) the rezoning of the land was a condition precedent to the performance of the parties’ obligations to sell and buy the land; (ii) Hasco fulfilled its obligations to act honestly and in good faith and take all reasonable steps to obtain the rezoning; (iii) notwithstanding Hasco’s efforts, the rezoning condition precedent was left unsatisfied; and (iv) consequentially, the parties’ contract was rendered void. These are my reasons.

Facts 3 The analysis portion of this decision requires a detailed examination of the facts. The following provides a general overview of the facts to place the analysis in context. 4 Hasco owned a 3.76–acre parcel of land in the Town, located in the northeast quadrant at the intersection of Highway 625 (running east and west) and Range Road 243 (running north and south). Hasco purchased the land for $1,200,000 in January 2007. For the purpose of this litigation, the parties referred to the land as Lot A. 5 Lot A was zoned AR (Agricultural Reserve District). It lay to the west of other land Hasco owned that was zoned CBP (Commercial Busi- ness Park). As of January 2007, the Town’s municipal development plan showed the future use of Lot A as residential. 6 In November 2007, Hasco applied to the Town to subdivide and rezone Lot A to RM74 (Residential Multi–Family High Density District), which would allow for the construction of up to thirty multi–family resi- dences per acre. The tentative subdivision plan submitted with Hasco’s application showed that Lot A would net out at 3.02 acres after the dedication of land for road widening and a municipal reserve. 368 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

7 The Town Council gave first reading to a bylaw rezoning Lot A from AR to RM74 on November 13, 2007, and held a public hearing regarding the rezoning of Lot A on December 11, 2007. Raj Sharma, a construction manager, and Kashif Alam attended the public hearing for Hasco. 8 Syed Hasan, the principal of Hasco, knew that the rezoning bylaw had passed first reading and that everything went well at the public hearing. He understood that the second and third readings of the rezoning bylaw would proceed in the latter half of January 2008. 9 In December 2007, Danny Jadresko, the principal of Woodsmere, learned from a realtor, Murray Kulak, that Lot A was for sale and was a possible site to build apartment buildings on. Mr. Kulak knew Mr. Jadresko from other dealings with him and thought Lot A would fit with Woodsmere’s business ventures. 10 Woodsmere had developed a business model of purchasing land, building apartment buildings on the land, retaining the apartments, and managing them as rental properties for a profit. In the decade before De- cember 2007, Woodsmere had completed about twenty such projects. In December 2007, Woodsmere was working on a project in Fort St. John, British Columbia. It completed that project in early 2008. 11 Woodsmere’s method of developing a project included using the same professionals and trades. As to the type of apartment buildings con- structed, Woodsmere refined a plan for a four–storey 47–unit building that it used for each project, with minor variations in colours and fin- ishes. Mr. Jadresko referred to this as the cookie–cutter plan. He explained that the cookie–cutter plan could be adjusted to add up to eight units (two per floor) or to replace a unit with a large lobby, gym or recre- ation room. Woodsmere engaged a related family corporation, W & J Construction Ltd., to construct the buildings. 12 Hasco purchased Lot A as part of its land development business. Prior to this purchase, Hasco worked at developing an 88–acre parcel of land in Beaumont. Mr. Hasan explained that Hasco purchased Lot A because the Town’s municipal development plan showed its future use as residential. He considered land with this designation more valuable than land with a commercial designation. Indeed, by January 2007, Hasco has only managed to sell one and a half acres of a twenty–acre parcel of land east of Lot A that was zoned commercial. When Hasco received an offer on Lot A from Woodsmere, through its realtor, Moses Baldwin, Mr. Hasan became very interested. Woodsmere Holdings Corp. v. Hasco Development Corp. E.J. Simpson J. 369

13 In late December 2007, Woodsmere and Hasco executed a Contract of Purchase and Sale wherein Woodsmere agreed to purchase Lot A from Hasco for $2,050,000. The contract indicated that Lot A was 3.76 acres and provided that April 15, 2008 would be the adjustment, possession and closing date. 14 The first paragraph under the Terms and Conditions portion of the contract provided: “The Seller warrants that the Property at the closing date will be zoned to RM74 apartment buildings.” That paragraph originally contained the words “accommodate four–storey”, instead of “RM74”; the change was made by Mr. Baldwin, Hasco’s realtor, and ini- tialed by Mr. Hasan. 15 Paragraph 8 under Terms and Conditions made the contract subject to “the Buyer obtaining a Development Permit from the Town of Beaumont to permit its proposed development of 2 — four storey 55 unit apartment buildings totalling 110 units with one on–site maintenance garage.“ February 15, 2008 was provided as the date by which this ”condition precedent” had to be satisfied or waived. 16 A handwritten clause at the end of the contract provided: “In the event the rezoning of the property to RM74 is not done by Feb 15/07, the seller will extend the condition removal date.” The parties agree that the date in this clause should read “Feb 15/08”. 17 Mr. Jadresko immediately went into action to obtain all the information he could with respect to the site servicing, as well as geotechnical and environmental assessments. He engaged his professionals to assist him and to draft a site plan. 18 On January 2, 2008, Mr. Jadresko flew from Victoria, British Colum- bia to Edmonton to meet with Mr. Kulak, deliver Woodsmere’s $50,000 deposit for Lot A, and meet with staff from the Town about Wood- smere’s proposed development. When Mr. Jadresko met with the Town’s staff, he then learned that, after subdivision, Lot A would net out at 3.02 acres. 19 Mr. Kulak discussed the size of Lot A with Mr. Baldwin. On January 16, 2008, he advised Mr. Jadresko that Hasco was not prepared to reduce the price of Lot A as the parcel’s size was only going to be reduced because of the subdivision and rezoning application. 20 Mr. Jadresko considered the situation. Although he was disappointed with the reduction in the size of Lot A, he thought he could work with it and decided to accept it and move on. 370 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

21 Mr. Jadresko continued to work towards obtaining the necessary documents for Woodsmere’s development permit application. He wanted to provide the application to the Town even before the Town had dealt with Hasco’s subdivision and rezoning application, so that the Town would be familiar with Woodsmere’s application and deal with it as quickly as possible once Hasco’s application was approved. 22 Dean McCartney was the Town’s planner at this time. He assumed that position in April 2007. It was Mr. McCartney who recommended that the Town Council give first reading to, and hold a public hearing regarding, the rezoning bylaw. After those events occurred, it was up to Mr. McCartney to prepare a development agreement for the Town and Hasco to sign. The rezoning bylaw could not proceed to second and third readings until such an agreement was in place. 23 Mr. McCartney did not prepare the required development agreement because he discovered an inconsistency in the Town’s records regarding Lot A. He found an outline plan (approved in 2005) that showed the future use of Lot A as business park. He was surprised by this, as the existing municipal development plan (revised December 2006) showed the future use of Lot A as residential. After some further digging, Mr. Mc- Cartney found that, like the outline plan, an earlier municipal development plan (revised April 2004) showed the future use of Lot A as business park. 24 When Mr. McCartney found nothing to support the amendment of the future use of Lot A to residential, he concluded that the existing municipal development plan contained an error. He advised other members of the Town administration of the error and suggested that logical planning would be to continue with the business park use. 25 Mr. McCartney met with Mr. Hasan on January 18, 2008 and explained the situation. He told Mr. Hasan that the Town administration would not support Hasco’s application to rezone Lot A to RM74, and that they wanted Lot A to be rezoned to CBP instead. Mr. McCartney explained that he was virtually certain that the Town Council would not approve the rezoning of Lot A to RM74. 26 This news deeply disturbed Mr. Hasan as he wanted Hasco to complete its deal with Woodsmere. On January 23, 2008, he met with Town administrators Mark Landry and Cody Lavasseur at his office to see what they might accomplish on Hasco’s behalf. He also had informal discussions with various councillors and the mayor, but this was all to no avail. Woodsmere Holdings Corp. v. Hasco Development Corp. E.J. Simpson J. 371

Mr. Hasan received no indication that Hasco would receive any support from the Town Council unless it sought to rezone Lot A to CBP. 27 On January 24, 2008, Mr. Kulak emailed Mr. Jadresko an addendum he received from Mr. Baldwin, in which Hasco offered to reduce the price by $20,000 and indicated that “the zoning could change to RM74 or commercial.” Mr. Kulak advised Mr. Jadresko that Hasco “may be having some zoning issues” and suggested that he call the Town to “discuss the zoning with them directly.” (Woodsmere never executed the addendum.) 28 After receiving information from Brenda Matthews, the Town’s planning and development officer, Mr. Jadresko flew from Victoria to Edmonton to meet, separately, with Mr. Hasan and some Town representatives. The meetings took place on February 6, 2008. 29 On February 7, 2008, Mr. Jadresko began advising his professionals to stop the work they were doing on Lot A as Woodsmere was considering an alternative site in Beaumont, north of Lot A on Range Road 243. For the purpose of this litigation, the parties referred to the alternative site as the Montrose North property. 30 On February 13, 2008, Mr. Kulak sent Mr. Jadresko an unexecuted proposed commercial real estate purchase contract he received from Mr. Baldwin regarding the Montrose North property. Mr. Jadresko sent the document to his lawyer, Les Jamieson, who drafted an offer to purchase the Montrose North property for Woodsmere. Mr. Jadresko executed the offer on February 15, 2008 (a Friday) and forwarded it to Mr. Kulak, who sent it to Mr. Baldwin. The offer was open for acceptance until 5:00pm the following Monday (February 18, 2008). Mr. Hasan did not see the offer until after the deadline. 31 Two weeks passed. Having received no response to Woodsmere’s offer, Mr. Jadresko instructed Mr. Jamieson to send Hasco a letter alleging breach of contract and insisting that Hasco fulfil its obligations under the December 2007 contract, or reach a new agreement with Woodsmere. Mr. Jamieson sent such a letter to Hasco on February 29, 2008. He received a response, setting out Hasco’s position, from Hasco’s lawyer, Kevin Ozubko, on March 7, 2008. 32 The lawyers reached no resolution. 33 After March 15, 2008, Hasco worked with the Town to rezone Lot A to commercial, rather than RM74. That was achieved on April 22, 2008. 372 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

34 On April 23, 2008, Mr. Kulak advised Mr. Jadresko that Mr. Baldwin had called him and indicated that Hasco was “ready to meet and sign up a deal”. Nothing came of this. 35 At the end of May 2008, Mr. Baldwin sent Mr. Kulak a memorandum proposing that Woodsmere purchase the Montrose North property from Hasco on different terms than those it had proposed in February, including a significantly higher price per acre. Woodsmere declined this proposal and pursued its action (commenced in April 2008).

Analysis Rectification Issue 36 As mentioned above, the parties’ contract provided that: “The Seller warrants that the Property at the closing date will be zoned to RM74 apartment buildings” (the impugned clause). Hasco seeks to have this clause rectified so as to make it clear that the rezoning of Lot A was a condition precedent, not a warranty.

Law 37 Rectification is an equitable remedy available in the discretion of the Court. In the recent case of Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, [2016] S.C.J. No. 56 (S.C.C.) (QL) at para 12 [Fairmont], the Supreme Court described the remedy this way: If by mistake a legal instrument does not accord with the true agreement it was intended to record — because a term has been omitted, an unwanted term included, or a term incorrectly expresses the parties’ agreement — a court may exercise its equitable jurisdiction to rectify the instrument so as to make it accord with the parties’ true agreement. Alternatively put, rectification allows a court to achieve correspondence between the parties’ agreement and the substance of a legal instrument intended to record that agreement, when there is discrepancy between the two. Its purpose is to give effect to the parties’ true intentions, rather than to an erroneous transcription of those true intentions [citation omitted]. 38 Later in Fairmont, at paragraph 14, the Court explained that, in a case where “both parties subscribe to an instrument under a common mistake Woodsmere Holdings Corp. v. Hasco Development Corp. E.J. Simpson J. 373

that it accurately records the terms of their antecedent agreement”, rectification is available if the applicant shows: that the parties had reached a prior agreement whose terms are defi- nite and ascertainable; that the agreement was still effective when the instrument was executed; that the instrument fails to record accurately that prior agreement; and that, if rectified as proposed, the instrument would carry out the agreement [citations omitted]. This test must be proven on a balance of probabilities by “evidence exhibiting a high degree of clarity, persuasiveness and cogency”: Fairmont at para 36. 39 In McLean v. McLean, 2013 ONCA 788, [2013] O.J. No. 5956 (Ont. C.A.) (QL) at para 60, leave to appeal to SCC refused, 35744 (May 8, 2014) [2014 CarswellOnt 5954 (S.C.C.)], the Ontario Court of Appeal explained that: the question that the court must answer is whether the totality of the evidence supports the conclusion on a balance of probabilities that an agreement was in place but that an error was made in recording it. This is an objective inquiry. The totality of the evidence can include the testimony of a party as to what he or she understood the terms to be. The weight of this testimonial evidence will vary depending on the documentary and other evidence available [citations omitted].

Relevant Evidence 40 Mr. Kulak testified that he found Lot A in late 2007 and contacted Mr. Baldwin to inquire about it. Mr. Baldwin told Mr. Kulak that he felt the property could be zoned residential and sent Mr. Kulak a municipal development plan which showed Lot A as a future multi–family residential site. 41 Mr. Jadresko testified that, when Mr. Kulak introduced Lot A to him, he presented it as a property that was “going to be zoned RM74”. Mr. Kulak provided Mr. Jadresko with the municipal development plan he received from Mr. Baldwin and some information on RM74 zoning. Mr. Jadresko said Woodsmere started to put an offer together right away. He explained: “We put together what we called a shell offer, and I laid out what I thought [were] the basic points of the offer. Then I forwarded it on to my lawyer”, Mr. Jamieson. 42 Mr. Jamieson formalized Woodsmere’s offer and forwarded it to Mr. Kulak, who forwarded it to Mr. Baldwin. Numerous handwritten changes were made to the document before the contract was finalized. The only 374 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

change made to the impugned clause was the replacement of the words “accommodate four–storey” with “RM74”. 43 Mr. Hasan testified that he did not understand why the impugned clause was written the way it was and that it was his understanding that Woodsmere’s “offer [was] subject to the rezoning, the condition for the rezoning.” He said that is why he “didn’t focus on the wording.” Mr. Hasan repeatedly explained that he understood that the parties’ deal was conditional on the rezoning of Lot A to RM74 and that, if the rezoning did not happen, the deal would be dead. 44 Mr. Kulak testified that he understood that Woodsmere was only interested in purchasing an appropriately–zoned property and, in Beau- mont, the appropriate zoning was RM74. He also testified that he understood the impugned paragraph to mean that it was a condition of the contract that Lot A would be zoned RM74. 45 Mr. Jadresko offered similar testimony. He said the impugned clause was “critical” to Woodsmere’s offer, and explained that: “Any other zoning would not work for us. RM74 was the apartment zoning that we require[d].” He also had these exchanges with Hasco’s counsel: Page 138, lines 25 to 29: Q Okay. Okay. So are you saying then that the agreement was subject to the rezoning? A The agreement was conditional on — on getting the rezoning to [RM74], yes. Q Okay. That’s what you understood, correct? A Yes. Page 140, lines 6 to 19: Q And you also testified just earlier that you understood the deal was subject to the property getting rezoned. A Yes. Q And if the property didn’t get rezoned, it was no more deal. A If the property did not get rezoned, there was no use to me for the property. Q And is it not correct that really what your lawsuit is about, or your complaint is, is that you think Hasco didn’t use its best efforts. A Correct. Woodsmere Holdings Corp. v. Hasco Development Corp. E.J. Simpson J. 375

Q And if Hasco did use its best efforts and it didn’t get rezoned, your understanding would be the deal is over and no one’s liable. Q And if Hasco did use its best efforts and it didn’t get rezoned, your understanding would be the deal is over and no one’s liable. A. Correct. 46 It is also worth noting that the proposed contracts the parties exchanged in February 2008, relating to the Montrose North property, each specified the rezoning of the property to RM74 as a condition precedent.

Decision 47 I am satisfied, based on the totality of the evidence, that the parties (that is, Mr. Jadresko for Woodsmere and Mr. Hasan for Hasco) executed the contract under a common mistake that it accurately recorded their agreement that the rezoning of Lot A to RM74 was a condition precedent. The impugned clause incorrectly expressed the parties’ true agreement by suggesting that Hasco was merely providing a warranty regarding the rezoning of Lot A. 48 Although the parties did not have direct discussions before executing the contract, it is clear that each of them understood that they had agreed that, if Lot A was not rezoned RM74, neither party would have further obligations under the contract. The principals of both companies, and Woodsmere’s realtor, testified that this was their understanding. The fact that the proposed contracts the parties exchanged for the Montrose North property made rezoning a condition precedent is further evidence that this was what the parties intended to do in their contract for Lot A. 49 Accordingly, in order to correctly record what the parties intended to do, the impugned clause is rectified to make the rezoning of Lot A to RM74 a condition precedent to the performance of the parties’ obligations to sell and buy the property.

Honesty, Good Faith and all Reasonable Steps Issue 50 At the heart of the dispute between the parties is whether Hasco fulfilled its duty to act honestly and in good faith and take all reasonable steps to rezone Lot A to RM74. 376 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

Law 51 In Dynamic Transport Ltd. v. O.K. Detailing Ltd., [1978] 2 S.C.R. 1072 (S.C.C.) at 1084 [Dynamic], a case where the vendor’s obtaining of subdivision approval was a condition precedent to the performance of the parties’ obligations to sell and buy the land, the Supreme Court held that “[t]he vendor is under a duty to act in good faith and to take all reasonable steps to complete the sale.” The Court went on to hold that it was up to the vendor to “make a proper application for subdivision and use his best efforts to obtain such subdivision.” 52 In the more recent case of Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494 (S.C.C.), the Supreme Court confirmed the duty of good faith performance enunciated in Dynamic and held that there is also “a general duty of honesty in contractual performance” that applies to all contracts: paras 47, 49, 73 and 75. The Court went on to explain that the duty of honesty requires that parties “not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract”, but that it “does not impose a duty of loyalty or of disclosure or require a party to forego advantages flowing from the contract”: para 73.

Relevant Evidence and Findings 53 The parties dispute very few of the facts in this case. However, they have left the Court with diametrically opposed descriptions of what tran- spired when Mr. Jadresko and Mr. Hasan met on February 6, 2008. 54 Mr. Hasan testified that he clearly explained “all the situation” to Mr. Jadresko at the meeting, including the fact that the Town was unwilling to rezone Lot A to RM74 and that it wanted to rezone Lot A to commercial instead. 55 In contrast, Mr. Jadresko testified that Mr. Hasan asked him to consider an alternate property (the Montrose North property) at the meeting, without explaining the situation with the Town. He said Mr. Hasan did not indicate that the Town had anything to do with the alternate property request, and denied that he was told that the Town wanted Lot A zoned commercial, rather than residential. 56 Regarding this factual dispute, I prefer the evidence of Mr. Hasan and find as a fact that he did advise Mr. Jadresko of the Town’s position. Indeed this is the only logical conclusion on the evidence. 57 On January 18, 2008, Mr. McCartney made it clear to Mr. Hasan that the Town administration would not recommend to Town Council that Lot A be rezoned to RM74. Woodsmere Holdings Corp. v. Hasco Development Corp. E.J. Simpson J. 377

58 On January 24, 2008, Mr. Kulak forwarded Mr. Jadresko an addendum he received from Mr. Baldwin which, among other things, indicated that the “zoning could change to RM74 or commercial” (emphasis added). In his cover email, Mr. Kulak advised Mr. Jadresko that Hasco might be having zoning issues and recommended that they check the matter out as soon as possible. 59 Mr. Jadresko arranged to meet with Mr. Hasan on February 6, 2008. During his flight to Edmonton, he made a list of the matters he wished to discuss with Hasco. “Zoneing” (sic) was the first item on his list. 60 During the February 6th meeting, Mr. Jadresko and Mr. Hasan discussed the possibility of Woodsmere purchasing the Montrose North property from Hasco, instead of Lot A. Mr. Jadresko agreed to consider the alternate property. 61 After the meeting, Mr. Jadresko stopped the work his various professionals were doing on Lot A and began gathering information on the Montrose North property. Mr. Sharma of Hasco provided Mr. Jadresko with some information on the alternate property. 62 Later in February, before the parties completely fell out with one another, they exchanged proposals regarding the Montrose North property but did not reach an agreement. 63 That Mr. Jadresko, having zoning at the top of his list of matters to discuss at the February 6th meeting, would not inquire as to why Lot A might be rezoned to commercial instead of RM74 defies common sense. That Mr. Hasan, who knew he faced losing the sale of Lot A as a result of the Town’s position on rezoning, would not tell Mr. Jadresko his problem also defies common sense. Mr. Hasan did not want to lose a sale. He knew he would likely lose the sale of Lot A and it behooved him to tell Mr. Jadresko why, so he could strike a new deal on the Montrose North property. Mr. Jadresko wanted Lot A and, if it looked like Hasco was experiencing zoning problems, he would want to know why. 64 When the two men met on February 6, 2008, they had a common goal in mind: the sale of land to Woodsmere for the development of apartment buildings. Nothing in the evidence demonstrates that it would have made any sense for Mr. Hasan not to explain the rezoning problem to Mr. Jadresko. Mr. Hasan did not stand to benefit from failing to explain the situation, especially as Hasco had already indicated to Woodsmere (in the proposed addendum) that Lot A might be rezoned to commercial. 378 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

65 Mr. Jadresko suspected a zoning problem, he inquired, and I’m persuaded on the evidence that Mr. Hasan explained it to him. 66 Woodsmere also disputes that Mr. Hasan had a meeting with Mr. Landry and Mr. Lavasseur on January 23, 2008. Earlier in this decision I set it out as a fact that he did. This is why. 67 Mr. Hasan knew he had a problem after his meeting with Mr. Mc- Cartney on January 18, 2008. He testified that he recalled that Mr. Lan- dry and Mr. Lavasseur were also in attendance at the January 18th meeting. Mr. McCartney testified that he thought Ms. Matthews attended the meeting with him. I prefer the evidence of Mr. McCartney on this point as there is nothing to suggest there was any reason for four members of the Town administration to attend the meeting. On balance, it seems most likely that Mr. Hasan contacted Mr. Landry and Mr. Lavasseur after the January 18th meeting to further plead his case with them. If Mr. Lan- dry and Mr. Lavasseur attended the January 18th meeting, it is unlikely that Mr. Hasan would have met with them again a few days later. 68 Mr. Hasan testified that, after the January 18th meeting, he still wanted to sell Lot A to Woodsmere, so he asked Mr. Landry and Mr. Lavasseur to visit him at Hasco’s office to see what they could do about the rezoning problem. He explained that he met with the two Town administrators on January 23, 2008 but his lobbying efforts proved fruitless. Following the meeting, it was his understanding that Lot A would be rezoned to commercial, not RM74. 69 When Mr. Sharma was questioned as an officer of Hasco, he provided answers that conflict with Mr. Hasan’s testimony regarding the January 23rd meeting. Mr. Sharma said the only meetings he and Mr. Hasan had with Town representatives in January 2008 were meetings with Mr. Mc- Cartney and Ms. Matthews at the Town’s office. 70 I accept the evidence of Mr. McCartney and Mr. Hasan. With respect to Mr. Sharma, I find that he either did not know of the meeting Mr. Hasan had with Mr. Landry and Mr. Lavasseur on January 23rd, or he had forgotten about it when he was questioned. 71 I accept that Mr. Hasan met with Mr. Landry and Mr. Lavasseur on January 23, 2008. The information on the proposed addendum that Mr. Baldwin sent to Mr. Kulak indicates that it was sent to Century 21 at 9:43 that day. The fax marking appears to show it as 9:43am as it is marked 09:43. Either Mr. Hasan met the two Town administrators before he sent the document or he met with them after it was sent. In either case Woodsmere Holdings Corp. v. Hasco Development Corp. E.J. Simpson J. 379

he knew he had a serious problem with zoning when he sent the document. 72 Whether he met with them before or after sending the document, it is clear that the document shows that he knew he had a problem with zoning and that the Town intended to change it to commercial and he intended to take the matter up with the two Town administrators. To Mr. Hasan, this meeting with Mr. Landry and Mr. Lavasseur was a memora- ble event. An event subsequent to the January 18, 2008 meeting connected temporally to the sending of the proposed addendum to Mr. Kulak. 73 Based on the evidence, I find as a fact that Mr. Hasan met with Mr. Landry and Mr. Lavasseur at his office on January 23, 2008 to try and address the zoning problem he was having with the Town.

Decision 74 Ordinarily, when a party to a contract is alleged to have failed to act honestly and in good faith, the allegation relates to the party attempting to avoid an obligation under the contract, or lying or misleading the other party to gain a benefit. 75 Woodsmere’s brief regarding Hasco’s alleged failure to act honestly and in good faith claims that Hasco failed to: (i) disclose the rezoning problem to Woodsmere in a timely manner, (ii) act in good faith in pursuing a substitute agreement on the Mont- rose North property, and (iii) take all reasonable steps to rezone Lot A to RM74.

Disclosure of Rezoning Problem 76 As for timely disclosure, I have already found as a fact that Mr. Hasan explained the rezoning problem to Mr. Jadresko when the two men met on February 6, 2008. In any event, from my reading of Bhasin, Hasco’s duty of honesty did not require that disclosure. At paragraph 73 of Bhasin, the Supreme Court clearly stated that the duty of honesty in contractual performance does not impose a duty of disclosure.

Pursuit of Substitute Agreement 77 Regarding Woodsmere’s second claim, I am not persuaded that Hasco’s duty of good faith contractual performance required it to pursue a substitute agreement on the Montrose North property. 380 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

78 Woodsmere has sued Hasco for breach of the contract regarding Lot A. There is nothing in that contract which suggests that Hasco was under any obligation to provide an alternate property if it could not deliver the required rezoning of Lot A. Hasco’s duty of good faith only extends to the contract for Lot A; it does not extend to the failed negotiations on the Montrose North property. Woodsmere has not brought a claim against Hasco regarding the Montrose North property, and there is nothing in Dynamic or Bhasin which suggests that Hasco was obliged to come up with an alternate property when its contract for Lot A fell afoul of the Town’s plans. 79 This was not a bait and switch tactic by Hasco. Hasco had a good reason to sell Lot A to Woodsmere. It stood to make a gross profit of $850,000 in approximately fifteen months, amounting to an annual gross return of about sixty percent. 80 When Mr. Hasan realized that Hasco faced the real possibility of losing the sale of Lot A as an RM74 property, and watching an $850,000 gross profit disappear, he proposed the Montrose North property as an alternative to Lot A, to save a deal for both parties. Mr. Hasan was not obliged to make this proposal but, as a developer, he wanted a sale and so he offered the Montrose North property as a possibility. 81 The following calculations show what contributed in large measure to the eventual breakdown of amicable business relations between Mr. Jadresko and Mr. Hasan. 82 When the contract for Lot A was executed, the parties considered it a 3.76 acre property, at a price of $545,212.77 per acre, for a total price of $2,050,000 (3.76 x $545,212.77 = $2,050,000). 83 However, the property required subdivision if Woodsmere wanted rezoning by Hasco. The subdivision required a dedication of land for road widening and a municipal reserve, leaving 3.02 net acres. In effect, this increased the price of Lot A to $678,807.95 per acre ($2,050,000/3.02 = $678,807.95). 84 When Mr. Jadresko understood this, in early January 2008, he did not like it, but decided Woodsmere could work with it. Mr. Jadresko tried to renegotiate the price but nothing came of it and he decided to proceed. Woodsmere has not alleged any dishonesty or bad faith on the part of Hasco regarding the net acreage of Lot A. 85 Hasco’s unexecuted proposed contract regarding the Montrose North property indicated that the property was four acres of a five–acre parcel, Woodsmere Holdings Corp. v. Hasco Development Corp. E.J. Simpson J. 381

at a price of $545,212.77 per acre, for a total price of $2,180,851 (4 x $545,212.77 = $2,180,851). Unlike the parties’ contract for Lot A, this proposed contract was based on estimated net acres. Mr. Hasan testified that he estimated that, after Hasco gave the Town a road, the Montrose North property would be a four–acre parcel. The price per net acre in the proposed contract was the same as the price per gross acre in the parties’ contract for Lot A. 86 In his testimony, Mr. Hasan acknowledged that four acres was more than Woodsmere required for its purposes, but suggested that Wood- smere could subdivide the Montrose North property and do with it what they saw fit. He believed Hasco’s proposed contract was a generous attempt to help Woodsmere continue with its plans to build apartment buildings in Beaumont. 87 Woodsmere responded to Hasco’s proposed contract with an offer drafted by Mr. Jamieson. Mr. Jadresko explained that Woodsmere was not satisfied with Hasco’s proposed contract because it did not deal with subdivision and some other matters. 88 Amendments for matters like subdivision would almost certainly have been acceptable to Hasco. However, because the bylaw relating to RM74 zoning limited the lot size to 3.09 acres, Woodsmere offered to purchase only 3.09 acres of the five–acre parcel, for a total price of $1,684,707.46 (3.09 x $545, 212.77 = $1,684.707.46). In other words, Woodsmere made an offer to purchase the 3.09 acres it required, rather than the 4 acres Hasco proposed to sell. 89 Mr. Hasan was insulted by Woodsmere’s offer. The offer reduced the price from $2,180,851 to $1,684,707.46. It also required acceptance on the Monday following the Friday that it was sent to Mr. Baldwin, which was before Mr. Hasan had even seen it. Moreover, it specified the precise portion of the five–acre parcel that Woodsmere wished to purchase, and Mr. Hasan was unsure about whether that portion included land that would have to be provided to the Town for a road. Mr. Hasan decided Woodsmere was not serious about purchasing the Montrose North property and Hasco did not respond to the offer. 90 It may have been a poor business decision for Hasco not to deal further with Woodsmere on the Montrose North property until after the closing date for the parties’ contract on Lot A had passed; however, it was not a breach of Hasco’s duty to perform its obligations under that contract in good faith. Hasco was not contractually obliged to make any effort to pursue a substitute agreement on an alternate property to Lot A. 382 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

Reasonable Steps to Rezone Lot A to RM74 91 Regarding Woodsmere’s third claim, I am persuaded that Hasco met its duty to take all reasonable steps to obtain RM74 zoning for Lot A. 92 When analyzing this matter, it is important to be mindful of the dates and events, what each person knew at the time, the steps that were taken by each person, the knowledge those steps were taken with, and the rather tight time lines the parties were working within to complete the purchase and sale of Lot A. 93 As of December 27, 2007, when the parties finalized their contract for Lot A, all appeared well with respect to the rezoning of Lot A to RM74 to allow Woodsmere to build apartment buildings on the land. 94 It is clear from the evidence that Mr. Hasan expected Mr. McCartney, who had supported Hasco’s rezoning application at the December public hearing, to present Hasco with a development agreement. Thereafter, once the terms of the development agreement were settled, the rezoning application would go before the Town Council for second and third readings, likely on January 22, 2008. 95 However, no development agreement came to Hasco. Rather, Mr. McCartney realized that the Town’s municipal development plan (revised in December 2006), showing the future use of Lot A as residential, was in error. It did not correspond with an earlier municipal development plan (revised in April 2005), or an outline plan approved in 2005, both of which showed the future use of Lot A as business park; and there was no resolution or other authorization from the Town to support the amendment of the future use of Lot A to residential. 96 Mr. McCartney took the matter up with other members of the Town administration, and they reached a decision that the Town administration would not support the rezoning of Lot A to RM74. 97 Mr. McCartney broke the news to Mr. Hasan on January 18, 2008, and told him that Hasco’s rezoning application would fail without the support of the Town administration. He also advised Mr. Hasan that, if Hasco’s application failed, Hasco would have to start over, with a new application to rezone the land. 98 Mr. McCartney testified that Mr. Hasan wanted to attend the next Council meeting and asked him to put the matter on the agenda, but he refused that request. It is not exactly clear which Council meeting Mr. McCartney was referring to, but I accept his evidence that Mr. Hasan made the request and that it was denied. Woodsmere Holdings Corp. v. Hasco Development Corp. E.J. Simpson J. 383

99 Then, on January 23, 2008, Mr. Hasan met with Town administrators Mr. Landry and Mr. Lavasseur at his office to lobby them to do something on Hasco’s behalf. From that meeting Mr. Hasan concluded that neither of these individuals would assist in providing any zoning other than commercial. 100 It was around this time that Hasco instructed Mr. Baldwin to provide Woodsmere with the addendum indicating that “the zoning could change to RM74 or commercial”. This was a rather weak method of advising Woodsmere of the rezoning problem Hasco faced. However, I have found as a fact that Mr. Hasan disclosed the problem he was having with the Town at the February 6, 2008 meeting. So, Woodsmere was well–aware of the problem by that date. 101 By then, that is by February 6, 2008, Woodsmere only had nine days to remove its conditions precedent, unless the handwritten clause at the end of the contract automatically extended the condition removal date to a further date. 102 Mr. Hasan, who was not prepared to accept the advice he received from the Town administrators, told Mr. Jadresko that he would continue to try to have Lot A rezoned to RM74. 103 Mr. Hasan testified that he had informal discussions with various councillors and the mayor to lobby them to help. Woodsmere suggested I should reject this evidence because it was uncorroborated: Hasco did not call anyone from the Town Council, and there are no documents supporting Mr. Hasan’s testimony. 104 It is not surprising that no documents exist to support Mr. Hasan’s informal lobbying efforts. I accept Mr. Hasan’s testimony. He did what any reasonable person would expect him to do; that is, he met personally with the councillors and the mayor to lobby for his rezoning application. This is the way of small town, or even city, developments. A developer can make its case as well, if not better, by meeting individually with Council members than by making a formal presentation at a regular Council meeting. 105 From the evidence I cannot find as a fact over what period Mr. Hasan carried out this lobbying with the councillors and the mayor. For certain it would have commenced sometime after January 23, 2008. It continued until he gave up, which would have been sometime before March 19, 2008, when Hasco followed the Town’s direction and changed its rezoning application to seek commercial zoning. 384 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

106 Although I cannot be certain when Mr. Hasan last lobbied the councillors or the mayor, or how many councillors he lobbied, I accept that he made sufficient inquiries of them until, as he testified, he gave up. 107 Woodsmere argues that Hasco did not take all reasonable steps to rezone Lot A to RM74 and suggests other steps it could have taken for the Court’s consideration. Remembering that the Dynamic test is objective, I deal with them as follows. 108 Woodsmere suggested that Hasco ought to have tried to have the outline plan amended to accord with the municipal development plan (revised December 2006) that showed the future use of Lot A as residential. Unfortunately, the error lay in the municipal development plan, which was to reflect the outline plan. The Town wanted Lot A zoned commercial, not residential of any density, so asking to change the outline plan had no more chance of success than continuing to try to rezone Lot A as RM74. 109 Woodsmere argues that Hasco should have requested a written explanation from the Town administrators and appeared before the Town Council to plead its case. Mr. McCartney clearly explained the Town administration’s position to Mr. Hasan and Mr. Hasan pled Hasco’s case with Town administrators Mr. McCartney, Ms. Matthews, Mr. Landry and Mr. Lavasseur. He also lobbied councillors and the mayor. Moreo- ver, Mr. McCartney told Mr. Hasan he would not place Hasco’s rezoning matter on a Council meeting agenda. Even if the matter had made the agenda, Hasco almost certainly faced a formal rejection confirming the off–the–record advice he had received from the Town administration, councillors and the mayor. 110 Mr. Hasan faced another problem with the Town administration. In January 2008, the Town hired a new chief administrative officer and one of that officer’s goals was to increase commercial lands in Beaumont. Faced with this direction from the new chief administrative officer, Mr. Hasan stood very little chance of success with the Town administration, the councillors or with a formal appearance before the Town Council. 111 Woodsmere also submits that Hasco could have hired experts to explain the advantages of having Lot A rezoned to RM74. This would not have been a reasonable step for Hasco to take in the circumstances. It would have been costly for Hasco to retain experts, and the expense would not have been justified in light of the advice Mr. Hasan continually received from the Town administration and Council. Woodsmere Holdings Corp. v. Hasco Development Corp. E.J. Simpson J. 385

112 Woodsmere suggests that Hasco should have hired a lawyer to threaten or take legal action against the Town. During oral argument, Woodsmere’s counsel suggested that Hasco could have used legal action to “massage” the Town. He added, “You say, look –– there’s other things we can do here that maybe you as a town don’t want to have come out.” 113 When this suggestion was put to Mr. Hasan during cross–examination, Mr. Hasan answered in words which I understand to mean that hiring a lawyer in these situations only makes things worse. 114 I do not see hiring a lawyer as a reasonable step for Hasco to have taken. Mr. Hasan faced a deadline of February 15, 2008 to complete the rezoning of Lot A to RM74 so that Woodsmere could remove its conditions precedent. The condition removal date may have been extended for a month or more, but not past the contract’s closing date of April 15, 2008. 115 A lawyer might threaten a negligence lawsuit for the error on the municipal development plan, but to what end? Such a lawsuit might take nine years, as has this one, to work its way through the courts. And, any threat to take action regarding the Town’s discretion on rezoning would have had little chance of success. More important, however, is the fact that bringing, or even threatening, litigation would have put Hasco at risk of poisoning its relationship with the Town. For Hasco to succeed as a developer in Beaumont, it needed the cooperation of the Town administration. Legal action or the threat of legal action would almost certainly badly damage the relationship. No reasonable observer would expect Hasco to take such steps when they had little chance of success with respect to the rezoning and would likely harm Hasco’s long–term interest. 116 Woodsmere argues that Hasco could have sought its assistance in per- suading the Town to rezone Lot A to RM74. That, however, cuts two ways. If Hasco were to involve Woodsmere, then it might face the risk of an allegation that it did not make its best efforts but left Woodsmere to carry the ball. In any event, Woodsmere presented no evidence that it would have acted differently than Hasco. Mr. Jadresko did not testify that Woodsmere was prepared to bear the expense of hiring an expert. As for Woodsmere hiring a lawyer, I have already pointed out the possibly negative consequences for Hasco. For Woodsmere, this project was to be its twenty–second, and it would have made little difference to Wood- smere if it hired a lawyer which in the long run damaged Hasco’s relationship with the Town. Woodsmere could move on to another project if 386 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

its lawyer failed to obtain the rezoning and leave Hasco to suffer the long–term consequences. Leaving Woodsmere out of the rezoning process did not amount to a failure to take a reasonable step by Hasco. 117 From the evidence, I cannot decide whether Woodsmere’s February 15, 2008 offer on the Montrose North property, which Mr. Hasan considered insulting, caused Mr. Hasan to relent or redouble his efforts to obtain the RM74 zoning for Lot A. Nor can I be certain of the effect the February 29, 2008 demand letter from Woodsmere’s counsel had on Mr. Hasan’s efforts. 118 Mr. Hasan testified that he tried to complete the rezoning for two months. Counting back from mid–March 2008, when he relented and amended Hasco’s application to seek commercial zoning, takes us to mid–January, around the time that Mr. McCartney told him that the Town administration would not support his application to rezone Lot A to RM74. 119 I am satisfied that Mr. Hasan, on behalf of Hasco, made all the efforts he could to persuade the Town administration and Council to proceed with his application to rezone Lot A to RM74. Mr. Hasan had an $850,000 gross profit riding on the deal with Woodsmere. This was a good reason to make his best efforts and he did. 120 For the reasons set out, I am persuaded that Hasco met its duty to take all reasonable steps to obtain RM74 zoning for Lot A. Notwithstanding Hasco’s efforts, the required rezoning was not obtained; that is, the rezoning condition precedent was left unsatisfied. Consequentially, the parties’ contract was rendered void.

Conclusion 121 In the result, Woodsmere’s claim is dismissed.

Outstanding Issues 122 It is unclear from the parties’ pleadings whether Hasco returned the deposit Woodsmere paid for Lot A, and neither party provided any evidence as to the disposition of the deposit. In the circumstances, that is, because Hasco was unable to satisfy the rezoning condition precedent, Woodsmere should be entitled to the return of the deposit. However, as the parties have not argued this matter fully, instead of directing the return of the deposit, I will grant the parties leave to make submissions on the issue if they cannot resolve it themselves. Woodsmere Holdings Corp. v. Hasco Development Corp. E.J. Simpson J. 387

123 If the parties cannot reach an agreement on costs, they may arrange with my assistant to make submissions on the issue of costs. Action dismissed. 388 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

[Indexed as: R. v. Sauve] Her Majesty the Queen and Ricky Sauve (Accused) Alberta Provincial Court Docket: Edmonton 160767760P1 2017 ABPC 19 M.G. Allen Prov. J. Heard: January 17, 2017 Judgment: January 27, 2017* Criminal law –––– Narcotic and drug control — Offences — Trafficking — Sentencing –––– Police received anonymous tip that accused was selling fentanyl and they were provided with telephone number where he could be reached — Undercover police officer contacted accused and he met with her twice and sold her seven fentanyl pills for $220 — Accused was mechanic who was member of car club and he helped individual with his vehicle — Individual did not have money to pay accused but he offered him fentanyl pills which could be sold — That individual betrayed him to police and gave them accused’s phone number — Accused was 41 years old and he was first time offender — Accused had been in common law relationship for 18 years and he and his spouse had four children — Accused was good father and provider and he and his wife had good relationship — Accused was employed full time — Accused was continually employed since he left school — Accused rarely drank alcohol and he did not take illicit drugs — Accused was sole provider of his family and his family would lose their house if he was sent to prison — Accused pleaded guilty to trafficking in fentanyl — There was joint submission of sentence of three and one half years — Accused sentenced to three and one-half years’ imprisonment — Despite being enticed accused chose to sell drugs — General deterrence, denunciation, and need to protect public required exemplary sentence for no one should sell fentanyl to anyone. Cases considered by M.G. Allen Prov. J.: R. v. Anthony-Cook (2016), 2016 SCC 43, 2016 CSC 43, 2016 CarswellBC 2929, 2016 CarswellBC 2930, [2016] S.C.J. No. 43, [2016] A.C.S. No. 43, 488 N.R. 289, 32 C.R. (7th) 1, 342 C.C.C. (3d) 1, 404 D.L.R. (4th) 238 (S.C.C.) — considered

* A corrigendum issued by the court on February 15, 2017 has been incorporated herein. R. v. Sauve 389

R. v. Aujla (2016), 2016 ABPC 272, 2016 CarswellAlta 2313 (Alta. Prov. Ct.) — considered R. v. Bowen (2007), 2007 ABCA 40, 2007 CarswellAlta 136 (Alta. C.A.) — considered R. v. Corbett (2015), 2015 ABPC 212, 2015 CarswellAlta 1880, [2015] A.J. No. 1080 (Alta. Prov. Ct.) — considered R. v. Dochniak (1980), 25 A.R. 187, 1980 CarswellAlta 382, [1980] A.J. No. 150 (Alta. C.A.) — considered R. v. Feser (2015), 2015 ABQB 786, 2015 CarswellAlta 2293, [2015] A.J. No. 1376 (Alta. Q.B.) — considered R. v. Getty (1990), 104 A.R. 180, 1990 CarswellAlta 344, [1990] A.J. No. 180, 1990 ABCA 51 (Alta. C.A.) — referred to R. v. Goodman (1989), 96 A.R. 313, 1989 CarswellAlta 594 (Alta. C.A.) — considered R. v. Jaber (2007), 2007 ABCA 383, 2007 CarswellAlta 1626, 425 A.R. 58, 418 W.A.C. 58, [2007] A.J. No. 1320 (Alta. C.A.) — considered R. v. Legerton (2015), 2015 ABCA 79, 2015 CarswellAlta 288, [2015] A.J. No. 203, 599 A.R. 170, 643 W.A.C. 170 (Alta. C.A.) — referred to R. v. Mahari (1996), 187 A.R. 35, 127 W.A.C. 35, 1996 CarswellAlta 605, [1996] A.J. No. 626 (Alta. C.A.) — referred to R. v. Maskill (1981), 29 A.R. 107, (sub nom. R. v. Maskell) 58 C.C.C. (2d) 408, 1981 CarswellAlta 337, [1981] A.J. No. 907, 1981 ABCA 50 (Alta. C.A.) — followed R. v. Melnyk (2014), 2014 ABCA 344, 2014 CarswellAlta 1880, [2014] A.J. No. 1150, 584 A.R. 238, 623 W.A.C. 238 (Alta. C.A.) — referred to R. v. Ness (1987), 77 A.R. 319, 1987 CarswellAlta 411, 1987 ABCA 90 (Alta. C.A.) — considered R. v. Ostertag (2000), 2000 ABCA 232, 2000 CarswellAlta 860, 35 C.R. (5th) 350, [2000] A.J. No. 965, [2000] 9 W.W.R. 592, 83 Alta. L.R. (3d) 20, 266 A.R. 57, 228 W.A.C. 57 (Alta. C.A.) — referred to R. v. Phun (1997), 1997 CarswellAlta 985, 120 C.C.C. (3d) 560, 56 Alta. L.R. (3d) 266, 209 A.R. 266, 160 W.A.C. 266, [1997] A.J. No. 1142, 1997 ABCA 344 (Alta. C.A.) — considered R. v. Rahime (2001), 2001 ABCA 203, 2001 CarswellAlta 1019, 156 C.C.C. (3d) 349, [2001] 10 W.W.R. 428, [2001] A.J. No. 988, 286 A.R. 377, 253 W.A.C. 377, 95 Alta. L.R. (3d) 237 (Alta. C.A.) — referred to R. v. Sandercock (1985), 40 Alta. L.R. (2d) 265, 62 A.R. 382, 48 C.R. (3d) 154, 22 C.C.C. (3d) 79, [1986] 1 W.W.R. 291, 1985 CarswellAlta 190, [1985] A.J. No. 817, 1985 ABCA 218 (Alta. C.A.) — considered Statutes considered: Controlled Drugs and Substances Act, S.C. 1996, c. 19 s. 5(1) — referred to 390 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

Criminal Code, R.S.C. 1985, c. C-46 s. 109(2)(a) — considered s. 109(2)(b) — considered s. 737 — considered s. 742.1 [en. 1992, c. 11, s. 16] — considered s. 743.2 [en. 1995, c. 22, s. 6] — considered

SENTENCING of accused on conviction for trafficking in fentanyl.

A. Halliday, for Crown P. Shipanoff, for Accused

M.G. Allen Prov. J. (orally): Introduction 1 Ricky Sauve (“Mr. Sauve” or “offender”), a forty-one year old first time offender, pleaded guilty to trafficking in fentanyl contrary to section 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA).

The Circumstances Surrounding the Commission of the Offence 2 In May 2016, the Edmonton Police Service (EPS) received an anonymous tip that Mr. Sauve was selling fentanyl, and were provided with a telephone number where Mr. Sauve could be reached. On May 11, 2016, a female undercover police officer sent a text message to the telephone number requesting “greenies” or fentanyl. Mr. Sauve sent a reply text message that he would meet her at Londonderry Mall, where he would provide her with the drug. The undercover officer entered the offender’s vehicle and paid Mr. Sauve $120 for 3 pills of fentanyl. 3 On May 24, 2016, the police officer once more arranged a sale at Londonderry Mall. On this occasion, Mr. Sauve sold her 4 pills of fentanyl for $100. 4 Mr. Sauve is a mechanic. He has a hobby of working with others on automobiles at a car club. On one occasion he helped an individual who promised to pay him for his services. The individual did not have the money to pay him, but offered to provide Mr. Sauve with fentanyl pills, and assured him that someone would telephone him to purchase the pills. 5 Defence counsel, Mr. Shipanoff, indicated he had no reason to believe that the police knew the anonymous tipster was likely the indivi- R. v. Sauve M.G. Allen Prov. J. 391

dual who gave Mr. Sauve the fentanyl pills. Thus, there was no basis upon which to apply for a stay because of police entrapment.

The Offender’s Circumstances 6 Mr. Sauve’s mother and father separated in his early childhood. His mother has lived in a common-law relationship for thirty-seven years. Mr. Sauve described his childhood as “happy” and indicated that he received love and support from his mother and her common-law husband. He left home at eighteen years of age, and has been living on his own since. Mr. Sauve has been in a common-law relationship for eighteen years, and has four children ranging from ten years of age to seventeen years. His common-law wife confirms that he is a good father and provider, and that they have a “fairly good relationship.” 7 The offender completed grade 12 in Ontario, and has been certified as an apprentice heavy duty mechanic, and a welder. He plans to complete his journeyman level in each of these trades. Mr. Sauve has been continually employed since leaving school. Presently, he is working at Pep- siCo, and his hourly wage is $34 per hour. 8 Mr. Sauve rarely drinks alcohol and does not take illicit drugs, although he takes prescription drugs to deal with an issue relating to a sci- atic nerve. 9 Reflecting on the present offence, Mr. Sauve indicated to his probation officer that he could have been “smarter in his decision-making.” His mother, brother, and common-law wife all believe that the offence is out of character, and they will continue to support him whatever the result of the sentencing. 10 Mr. Sauve has been subject to a bail order since July 16, 2016, and has complied with the bail conditions. 11 Mr. Sauve is the sole supporter of his family, and the family will lose their house if he is sent to prison. His wife accompanied him to Court, and appeared very distraught concerning the prospect of her husband going to prison.

The Position of the Parties 12 Counsel for the parties jointly proposed a sentence of three and one half years. 13 In R. v. Anthony-Cook, 2016 SCC 43 (S.C.C.), the Supreme Court of Canada reviewed joint sentencing submissions. Moldaver J.A., writing 392 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

for the Court, held joint sentencing should not be rejected lightly by the Court because counsel are well placed to arrive at a joint sentencing submission that addresses the interests of both the public and the offender. In order to depart from a joint sentencing submission, a trial judge must apply a public interest test, i.e., the proposed sentence would bring the administration of justice into disrepute or otherwise be contrary to public interest. Judges should only depart from the proposed sentence where that sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.

The Alberta Starting Point Approach to Hard Drugs 14 The seminal case for the starting point approach relating to drug offences is R. v. Maskill, 1981 ABCA 50 (Alta. C.A.) (Maskell — also known as Maskill). Sparse facts are set out in the case. The youthful university student with no criminal record was convicted after a trial for a number of offences, including possession of 17 grams of cocaine valued at approximately $3,000. The trial judge’s sentence of three years for the cocaine possession was upheld on appeal. 15 In Maskell, Moir J.A. emphasized that deterrence was the most important sentencing factor: see paras. 15 and 18. 16 At paragraphs 18 to 20 Justice Moir added: The importance of deterrence in cases such as this must be emphasized. Even though the drug may be very much like the amphetamines in character, it is not like the amphetamines in price. It is a very expensive drug. Very large profits can be realized from its illegal sale. It is therefore much more attractive to handle than the amphetamines. It seems to me that the profits from its sale will keep it on the market unless it is dealt with sternly. It is our duty to deter these activities. Counsel for the appellant submits that the learned trial judge treated cocaine the same as if it were heroin. It appears that he thought he was doing so. However, if he did, he certainly erred because this was far from a minimum case of trafficking in drugs. Had the drug been heroin in the circumstances shown here with the scales, the hol- lowed-out book with $1,790.00 in it, and 17 grams of the substance, a sentence in the range of 5 years would be called for under the guidelines of this court. We have continued to preserve a hostile attitude towards heroin in Alberta insofar as heroin is concerned. If this were a case of social trafficking, or an isolated sale, adopting as we have the position that cocaine is not as serious or dangerous a drug as R. v. Sauve M.G. Allen Prov. J. 393

heroin, a lesser sentence may have been imposed considering the age of the appellant, the fact that he has no record at all, that he is a good student and has the support of his family, and that he has produced many favourable letters. However, these are not the facts here. This was clearly a commercial operation on something more than a minimal scale. It called for a penitentiary term. We are not prepared to say that the sentence was unfit for the circumstances revealed in this case. Accordingly, the appeal is dismissed. 17 The Court in Maskell did not ever say that three years was a starting point for cocaine traffickers. However, subsequent jurisprudence from the Alberta Court of Appeal adopted Maskell as setting a starting point of three years for trafficking in cocaine on more than a minimal scale. The Court of Appeal has repeatedly confirmed this three-year starting point. A few examples of the confirming jurisprudence are the following cases: R. v. Getty, 1990 ABCA 51 (Alta. C.A.); R. v. Mahari, [1996] A.J. No. 626 (Alta. C.A.); R. v. Rahime, 2001 ABCA 203 (Alta. C.A.) (Rahime); R. v. Melnyk, 2014 ABCA 344 (Alta. C.A.) (Melnyk); R. v. Legerton, 2015 ABCA 79 (Alta. C.A.) (Legerton). 18 In a subsequent decision, the Alberta Court of Appeal set out a five year starting point for trafficking in heroin: R. v. Phun, 1997 ABCA 344 (Alta. C.A.) (Phun). In Phun, the forty-one year old accused with no criminal record, sold 1 gram of 95% pure heroin to an undercover police officer for $550. Had the heroin been resold at the street level, one-tenth of a gram could have been sold for $7,000. The trial judge sentenced the accused to serve two and one-half years imprisonment. The Court of Ap- peal increased the sentence to four years, holding the trial judge overem- phasized the mitigating factors of the guilty plea and the prospect of rehabilitation. 19 McFayden J.A. held that Mr. Phun was conducting a street operation on more than a minimal scale: para. 4. Justice McFayden held the Court had a duty to adopt a hostile environment to traffickers in heroin, particularly when they are moved by hope of profit: see paras. 23 and 35. At paragraph 35, Justice McFayden summarized her views: “The Crown has not suggested to us that heroin, which has been rare in the Province of Alberta in recent years, has resurfaced to the extent that it did in the later 70’s when many of the cases were decided. Nevertheless, heroin continues to be a very dangerous drug. It is ad- dictive and destructive of the human beings whose lives it touches. It leads to other crime to support the very expensive addiction. As with 394 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

cocaine, the profits which can be made from trafficking in heroin are enormous. The philosophy discussed by McGillvray C.J.A. in Chap- man, by Moir J.A. in Maskill, and Laycraft J.A. in Burchnall continues to apply today. We must continue to preserve a hostile attitude towards heroin in Alberta. General deterrence and, to a much lesser extent, specific deterrence, must be the overriding factors in the imposition of sentences in cases involving heroin trafficking; especially those cases involving commercial trafficking on more than a minimal scale, such as occurred here. This Court has established a starting point sentence of three years for cocaine trafficking at this level. Be- cause of the greater harm caused by heroin trafficking, as is evident from the reasons in Maskill, and other cases, a starting point sentence for heroin should exceed that of cocaine. In our view, the starting point of five years keeping in mind the range mentioned by Moir J.A. in Maskill, continues to be appropriate for offences involving lower level commercial trafficking of more than a minimal scale, such as that found here. This assumes that the individual has no prior record, and that there are no extraordinary circumstances.” [Emphasis added] 20 The Court in Phun obviously relied upon Maskell as a precedent for a starting point. The Court acknowledged that the starting point applied to commercial trafficking on more than a minimal scale. By inference, the other exceptions inMaskell would also apply, i.e. social trafficking or an isolated sale. 21 The starting point in Phun has been reaffirmed by the Court of Ap- peal. An example is R. v. Ostertag, 2000 ABCA 232 (Alta. C.A.). 22 It is clear from Phun, that a lengthier starting point was appropriate for heroin trafficking, as compared to cocaine trafficking, because of the greater harm occasioned by heroin trafficking. 23 The Alberta Court of Appeal has not yet established a starting point for trafficking in fentanyl. Logically, such a starting point will likely be at least five years, and may well be longer. After all, the jurisprudence has recognized fentanyl is more powerful and more dangerous than heroin.

The Fentanyl Cases 24 There are few reported cases concerning fentanyl trafficking, but most of those cases recognize the greater danger that the misuse of the drug can pose to potential users, as compared to other hard drugs. Let me briefly review the Alberta jurisprudence supporting this view below. R. v. Sauve M.G. Allen Prov. J. 395

25 In R. v. Feser, 2015 ABQB 786 (Alta. Q.B.) (Feser), Chief Justice Wittmann relied upon the Ontario jurisprudence with respect to the dangers of fentanyl. At paragraphs 39 and 40, he described that jurisprudence: In Medeiros-Sousa, the Court accepted the evidence of an expert fo- rensic toxicologist, Dr. Karen Woodall, about the nature of fentanyl. As accepted by the trial judge, it was stated that fentanyl was 10-20 times stronger than heroin and that misuse of a fentanyl patch, which is designed to slowly release the drug in order to control pain over a number of days, can cause death. The misuse or abuse can occur by chewing, melting or otherwise consuming the contents of the patch: para. 8. In Lu, another Ontario justice referred to R. v. Turner, [2003] O.J. No. 685 (Ont. C.A.), where the Ontario Court of Appeal said that synthetic forms of heroin, such as fentanyl, were as serious as heroin: at page 1. In another Ontario case, Miller, Dr. Woodall was referred to again with respect to a sentencing for trafficking in fentanyl. Accepting the evidence of Dr. Woodall, the trial judge stated at page 4: Abusing fentanyl then is a very dangerous thing to do, as it is also a central nervous system depressant according to Doctor Woodall and lowers and can even stop breathing which all too frequently can cause death. The justice also found at page 9 that Dr. Woodall testified “in another case at the present time in Ontario” that fatalities caused by misuse of fentanyl were increasing and now exceed those caused by heroin. That was in 2014. In Gatfield, another Ontario justice stated at page 5: We are talking about fentanyl. It is a drug which is 100 times more powerful than morphine. It is at least 20 times more powerful than heroin. It is a powerful drug, even when prescribed and used properly. It is an opioid. It is used to treat severe pain. It is potentially destructive, ad- dictive, and lethal. 26 In Feser, the accused was charged with trafficking in MDA, producing MDA, producing methamphetamine, and attempted production of fentanyl. The police were investigating the origin of letters that contained MDA powder. The postal officials could not decipher the addressees of these letters, so they were sent back to the addressor, the HIV Network in Edmonton. One of the letters contained the fingerprints of the accused. The police were able to find one of the addressees who told them he ordered MDMA from an Internet website. Feser was also under surveil- 396 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

lance, because the Canadian Border Services Agency had intercepted chemical precursors for the production of methamphetamine, which were addressed to a post box rented by him. The police searched the accused’s residence and found a clandestine laboratory in the garage. Chemicals found in the search could have led to the production of fentanyl, MDMA, and MDA. 27 The accused pleaded guilty. Wittmann C.J.Q.B. found no mitigating factors, other than an early guilty plea. Feser was sentenced to serve a five year global sentence. 28 In R. v. Aujla, 2016 ABPC 272 (Alta. Prov. Ct.) (Aujla), the accused was convicted after a trial. The accused was stopped for speeding and the police searched his vehicle and found a number of illicit drugs: 454 fentanyl drugs (street value: $9,000); 1867 grams of cocaine (street value: $187,000); 769 grams of heroin (street value: $192,000); 410 grams of methamphetamine (street value: $41,000). Also found in the vehicle was body armour and three unloaded handguns. The trial judge sentenced the accused to seven years for possession for the purpose of trafficking of fentanyl; five years concurrent for possession for the purpose of trafficking of heroin; four years concurrent for possession for the purpose of trafficking in cocaine and methamphetamine. He also received concurrent time for possession of the firearms. 29 In Aujla, Van Harten P.C.J. heard and accepted evidence concerning the dangers of fentanyl. At paragraphs 2 to 4, he described the evidence: According to Alberta’s Chief Toxicologist who gave evidence at this sentencing hearing, fentanyl is a potent opioid analgesic. It is 100 times more potent than morphine. It is 25 to 50 times more potent than pharmaceutical grade heroin. As little as 2 micrograms can constitute a fatal dose of fentanyl. Fentanyl is a useful medical drug when used under carefully controlled circumstances. But illicit use is extremely risky because the quality of the drug when found on the street is unknown and the margin of error for an abuser to avoid overdosing is extremely small. That is especially so because opioid abusers develop a tolerance and need to increase their dosages to maintain the drug’s effect. Therefore, not only is fentanyl highly potent, it has a very high “abuse potential.” The Office of the Chief Toxicologist keeps data which show that the number of “fentanyl related” deaths over the past 5 years is: • 2011: 12 • 2012: 40 R. v. Sauve M.G. Allen Prov. J. 397

• 2013: 77 • 2014: 120 • 2015: 274 • 2016: 152 in the first 6 months Put into the Chief Toxicologist’s words: The incidents of finding fentanyl in toxicology related deaths in Alberta has approximately doubled every year from 2011 through 2015. 30 In R. v. Corbett, 2015 ABPC 212 (Alta. Prov. Ct.) (Corbett), the accused pleaded guilty to eight charges, including possession for the purpose of trafficking and trafficking in cocaine. He sold 0.9 - 2.6 grams of cocaine four times in a dial-a-dope operation. After being released on bail, he was found asleep in a damaged vehicle and in possession of 328 fentanyl pills, 80.6 grams of cocaine, and a sawed off shotgun. 31 In Corbett, Gaschler P.C.J. imposed a sentence of nine months incarceration satisfied by pre-trial custody, followed by two years of probation. The accused entered a guilty plea, was remorseful, and accepted responsibility for his offences. Judge Gaschler found the accused was an addict and committed the offences to feed an addiction, rather than to generate profit. After his arrest the accused took counselling courses, was committed to rehabilitating himself, and an addictions counsellor was ac- tively participating in his rehabilitation.

The Nature of a Starting Point Sentence 32 It is important to understand the nature of a starting point sentence. In R. v. Sandercock, 1985 ABCA 218 (Alta. C.A.) (Sandercock), the Al- berta Court of Appeal indicated that a starting point sentence is not a court mandated minimum sentence: see para. 2. Sandercock perhaps best describes the nature of the starting point approach at paragraphs 6 and 7: The sentencing process now adopted by this court is to state typical categories with precision, and to acknowledge at the same time that each actual case presents differences from the archetypical case. These differences might mitigate or aggravate. Nevertheless, the idea of a typical case affords a starting-point for sentencing because one can state a precise sentence for that precise category. An actual sentence in a real case will vary upwards or downwards from that, depending upon the balance of the factors present in the actual case. Many archetypes already exist, of which “bank hold-up” is a good example. What cannot always be found in the cases is a precise defi- 398 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

nition of such typical cases, and this imprecision can lead to confu- sion. Nor can a precise starting-point always be found. This, then, is the starting-point approach: first, a categorization of a crime into “typical cases”; second, a starting sentence for each typical case; third, the refinement of the sentence to the very specific circumstances of the actual case.

Exceptions to the Guideline Sentence for Drug Offences 33 In Maskell, the Court held the three-year starting point did not apply to all cocaine traffickers. Three exceptions were noted: a commercial operation on a minimal scale; social trafficking; or an isolated sale. Social trafficking refers to situations where the accused shared the drug without any compensation. The other two exceptions are not so clear; however, the Court of Appeal has provided some guidance related thereto. 34 In Getty, the Court observed at paragraph 18: ... Moir, J.A. did not define what he meant by minimal scale in Mas- kell, except to say that Maskell was not a case of “technical or social trafficking” or “an isolated sale”. From this it can be said that these are examples of what is not commercial trafficking on more than a minimal scale; but they are not exhaustive. The issue must be decided by analysis of Maskell and other cases in this court and comparison of these with the facts in this case. 35 The Court then referred to the facts in Maskell and the case before them of being cases of more than minimal commercial trafficking. For Getty these included: two actual sales, one sale of 28 grams of cocaine for $3,300, an indication from the accused he obtained cocaine from two different suppliers, pressure from him for further sales, and an admission from him that he had been a drug dealer in the past. Getty received a sentence of thirty-three months. 36 In Melnyk, the Court declined to reconsider the starting point in Mas- kell. The application was brought in part on the basis that commercial operation on more than a minimal scale is not a sufficiently clear category. The accused pointed to a group of cases involving a similar quantity of cocaine, some of which invoked the starting point while others did not. The Court clarified “the quantity of drugs is not the only factor at play in deciding if there is been a commercial trafficking in cocaine; the entire context must be considered.” However, the Court did not describe the category further, stating instead that the “indicia of commercial trafficking on more than a minimal scale can be adequately developed R. v. Sauve M.G. Allen Prov. J. 399

through the case law, and is not something that could prudently be defined in a new starting point decision”: see para. 6. 37 In Phun, the Court referred to R. v. Dochniak, [1980] A.J. No. 150 (Alta. C.A.) (a decision that predated Maskell) as an example of trafficking at a minimal scale. 38 Ms. Dochniak was a middle person who made no profit from the sale of $50 worth of heroin. She passed a request for the heroin from an officer to her friend. Her friend left and returned, and the accused passed the officer the drugs. She was sentenced to ninety days, to be served intermittently. 39 In R. v. Bowen, 2007 ABCA 40 (Alta. C.A.), the accused sold 1 gram of cocaine to an undercover officer for $100. It is unclear whether a starting point applied. The trial judge held the “commercial nature of the offence was at a fairly low level”. The Court of Appeal varied the sentence from eighteen months imprisonment, to a Conditional Sentence Order (CSO) of the same length. 40 In R. v. Jaber, 2007 ABCA 383 (Alta. C.A.), the Court of Appeal varied the sentence of eighteen months imprisonment to a two years less one day CSO. The accused sold 0.8 grams of crack cocaine to an undercover officer for $80, and was found in possession of $1,230. The Court held the sale was an isolated sale, and the Maskell starting point did not apply. 41 In Legerton, the majority of the Court upheld a twelve month sentence imposed by the trial judge who applied the Maskell starting point. The accused sold 0.8 grams of crack cocaine for $100, as part of a dial-a- dope operation. He was twenty-five years old, pleaded guilty, had an unrelated criminal record, and was on bail at the time of the offence. Berger J.A., writing for the majority, held the judge made no error in principle in sentencing the accused. In obiter, Berger J.A. opined that dial-a-dope operations do not necessarily engage the Maskell starting point.

Circumstances Where Less than the Starting Point has been Applied 42 As the Alberta Court of Appeal has made clear, a starting point is simply that: a starting point and not an ending point. Thus, starting point guidelines are not to be treated as minimal sentences. 43 Indeed, the Court of Appeal has often imposed less than three years to cocaine traffickers, where there is a commercial operation on more than a minimal scale. A few examples are set out immediately below. 400 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

44 In R. v. Goodman, [1989] A.W.L.D. 721 (Alta. C.A.) [1989 Carswell- Alta 594 (Alta. C.A.)], the Court of Appeal varied an original sentence of eighteen months to two years less a day. The accused was forty-three years old, had stopped trafficking prior to his arrest and had no criminal record. He arranged two sales of cocaine to an undercover officer for a small amount of money. He was a middle person: he arranged a meeting between the vendor and purchaser, and made no profit. The Court held that the Maskell starting point applied. 45 In Rahime, the Court upheld CSOs imposed on six offenders, each in relation to cocaine trafficking offences. The Court held the Maskell starting point applied, but held all of these offences were offences where a sentence of less than two years was appropriate. A sentence of less than two years is still a prerequisite pursuant to the present version of s. 742.1 of the Criminal Code, but a conditional sentence is now precluded for offences that have a maximum penalty of fourteen years or more. The maximum penalty for trafficking cocaine is life imprisonment. 46 Rahime dealt with six separate accused. Mr. Charles sold 2 grams of cocaine in the dial- a-dope operation and received a twenty month CSO. Twice Mr. Rahime sold 1 gram of cocaine in a dial-a-dope operation and received two concurrent eighteen month CSOs. Mr. Keller sold 3.5 grams and then 7 grams of cocaine as a dial-a-dope order and received a twenty-two month CSO. Mr. Ishmael sold 1/8 ounce of cocaine in a dial- a-dope operation and was sentenced to a CSO of two years less one day. Mr. Sayadi sold 2 ounces of cocaine and received a twenty-two month CSO. Mr. Phan sold 0.74 grams of cocaine and was in possession of an additional 3.4 grams. He was sentenced to a CSO of two years less one day. 47 In R. v. Martin (unreported, discussed in R. v. Ness, 1987 ABCA 90 (Alta. C.A.) at para. 9), the Court sentenced the accused to eighteen months imprisonment. The accused sold 1 ounce of cocaine to an undercover officer for $3,700, then 0.5 ounces of cocaine for $1,800. It was clear that the starting point applied, but was reduced because Ms. Martin voluntarily stopped trafficking before the undercover operation ended.

An Approach to Sentencing Fentanyl Traffickers 48 Fentanyl traffickers in Alberta can expect severe sentences. The Al- berta Court of Appeal has adopted a starting point approach to those who traffic in hard drugs. Two such starting point sentences have been established by the Court: three years for cocaine traffickers and five years for R. v. Sauve M.G. Allen Prov. J. 401

heroin traffickers. The paramount sentencing factor supporting these starting points is general deterrence to those who would seek to profit from preying upon those addicted to hard drugs, or those who might wish to experiment in their use. Sentencing judges are expected to give due consideration to guideline sentences, but maintain a measure of discretion to apply them to the individualized circumstances of the offender. Starting point sentences do not apply to all trafficking in hard drugs. Ex- ceptions are made in circumstances where the trafficking is of a social nature, is an isolated sale, or is commercial trafficking on a minimal scale. 49 The Court of Appeal has yet to set out a starting point for fentanyl. If it does so, the starting point will likely be in the range of at least five years, and perhaps more. This is because the judicial sentencing prece- dents recognize that fentanyl is a dangerous and even fatal drug if mis- used in small doses. After all, if Alberta courts are hostile to heroin traffickers, they should be even more hostile to fentanyl traffickers. 50 It is for the Alberta Court of Appeal to create such a starting point and not for a trial judge. Nevertheless, it is clear even in the absence of such a starting point, a severe exemplary sentence of five years is appropriate for most individuals who traffic in fentanyl.

Application to these Circumstances 51 Mr. Sauve is a first time offender and has wide family support. His Pre-Sentence Report (PSR) is extremely positive. He has been a hardworking and law-abiding man who provided support to his family, who will tragically lose their home if he is sent to prison. Specific deterrence is unnecessary because I am convinced that it is extremely unlikely he will ever commit another criminal act. 52 Mr. Sauve was not part of a criminal organization, set up with the purpose of exploiting addicts, or those who experiment in fentanyl, for profit. He obtained the drugs in payment for services rendered. He was enticed to sell the drugs by the person who provided the drugs to him, and who betrayed him by providing his telephone number to the police. Nevertheless, he made his own choice to sell the drugs. In all the circumstances, I am convinced that his sale was an example of trafficking on a minimal scale. 53 Despite his personal circumstances, and the circumstances surrounding the sale, it is my view that general deterrence, denunciation, and the 402 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

need to protect the public require an exemplary sentence. No one should sell fentanyl to anyone. 54 In these circumstances, I sentence Mr. Ricky Sauve to serve three and one-half years.

Firearms Prohibition Order 55 Mr. Sauve will be subject to a mandatory weapons prohibition order pursuant to s. 109(2)(a) and (b) of the Criminal Code.

Victim Surcharge 56 There will be an order pursuant to s. 737 of the Criminal Code for a victim surcharge of two hundred dollars ($200.00) or in default two days gaol. The two days will be served concurrently to the three and one-half years sentence.

Sentencing Recommendations 57 Defence counsel, Mr. Shipanoff, applied for me to make sentencing recommendations. I am convinced it is appropriate to make the following recommendations to the Correctional Service Canada officials for their consideration: 1. That Mr. Sauve serve his penitentiary term at the Bowden Institu- tion, the nearest medium security federal penitentiary, so he can be close to his family who reside in Edmonton, Alberta. 2. That Mr. Sauve receives upgraded technical courses while at the federal penitentiary. 3. That the Correctional Service Canada officials and the Parole Board of Canada consider Mr. Sauve for parole as soon as possible.

Section 743.2 Order 58 Pursuant to s. 743.2 of the Criminal Code, I order the court clerk to send a copy of this judgment and a copy of Mr. Sauve’s Pre-Sentence Report to the Correctional Service Canada officials. Accused sentenced to three and one-half years of imprisonment. R. v. Garemew 403

[Indexed as: R. v. Garemew] Takele Garemew (Appellant) and Her Majesty the Queen (Respondent) Alberta Court of Queen’s Bench Docket: Calgary 150872943S1 2016 ABQB 716 K.D. Yamauchi J. Heard: December 8, 2016 Judgment: December 16, 2016 Criminal law –––– Offences — Impaired driving/care or control — Proof of impairment — Miscellaneous –––– Adjudication on issue of impairment — Po- lice officers responded to call about vehicle on lawn of residence — One officer spoke to accused driver, observed indicia of impairment, and arrested accused — Trial judge convicted accused of impaired driving — Evidence relied on by trial judge for proof of impairment included that accused’s vehicle was on lawn, that he did not notice when officers arrived, and that he smelled of alcohol — Accused appealed from conviction — Appeal dismissed — Trial judge had ability to find that accused was impaired by alcohol based on evidence, as he found it, and he gave his reasons for his so finding — Evidence, which trial judge found, supported that finding, so his verdict was not unreasonable — Al- ternate explanations for evidence suggesting impairment that accused argued on appeal could be plausible, but they were pure speculation — It was arguable that trial judge erred in saying that there was no “marked departure test out there” — However, trial judge did not have to use marked departure test to convict accused — Trial judge had other facts suggesting that accused was impaired, and those facts supported his finding of guilt. Cases considered by K.D. Yamauchi J.: Housen v. Nikolaisen (2002), 2002 SCC 33, 2002 CarswellSask 178, 2002 Car- swellSask 179, [2002] S.C.J. No. 31, 286 N.R. 1, 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, [2002] 7 W.W.R. 1, 219 Sask. R. 1, 272 W.A.C. 1, 30 M.P.L.R. (3d) 1, [2002] 2 S.C.R. 235, REJB 2002-29758, 2002 CSC 33 (S.C.C.) — referred to R. c. Aub´e (1993), 85 C.C.C. (3d) 158, 2 M.V.R. (3d) 127, 1993 CarswellQue 1, 1993 CarswellQue 2106 (C.A. Que.) — considered R. v. Andrews (1996), 46 C.R. (4th) 74, 104 C.C.C. (3d) 392, 178 A.R. 182, 110 W.A.C. 182, 20 M.V.R. (3d) 140, 1996 CarswellAlta 7, [1996] A.J. No. 8, 1996 ABCA 23 (Alta. C.A.) — considered 404 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

R. v. Biniaris (2000), 2000 SCC 15, 2000 CarswellBC 753, 2000 CarswellBC 754, 184 D.L.R. (4th) 193, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1, [2000] S.C.J. No. 16, 252 N.R. 204, [2000] 1 S.C.R. 381, 134 B.C.A.C. 161, 219 W.A.C. 161 (S.C.C.) — considered R. v. Bruhjell (September 8, 1986), Doc. CA004416 (B.C. C.A.) — referred to R. v. Campbell (1991), 26 M.V.R. (2d) 319, 87 Nfld. & P.E.I.R. 269, 271 A.P.R. 269, 1991 CarswellPEI 1, [1991] P.E.I.J. No. 4 (P.E.I. C.A.) — referred to R. v. Lohrer (2004), 2004 CarswellBC 2936, 2004 CarswellBC 2937, [2004] S.C.J. No. 76, 2004 SCC 80, 24 C.R. (6th) 225, 193 C.C.C. (3d) 1, [2004] 3 S.C.R. 732, 329 N.R. 1, 249 D.L.R. (4th) 1, 208 B.C.A.C. 1, 344 W.A.C. 1, EYB 2004-82001, [2004] S.C.C.A. No. 46 (S.C.C.) — considered R. v. McKenzie (1955), 20 C.R. 412, 111 C.C.C. 317, 14 W.W.R. 500, 1955 CarswellAlta 13, [1955] A.J. No. 38 (Alta. Dist. Ct.) — considered R. v. Pelech (2011), 2011 ABQB 88, 2011 CarswellAlta 415, 13 M.V.R. (6th) 238, 47 Alta. L.R. (5th) 351, 507 A.R. 389 (Alta. Q.B.) — considered R. v. Pelech (2012), 2012 ABCA 134, 2012 CarswellAlta 782, [2012] A.J. No. 430, 29 M.V.R. (6th) 44, 522 A.R. 235, 544 W.A.C. 235, 63 Alta. L.R. (5th) 53, 286 C.C.C. (3d) 126 (Alta. C.A.) — referred to R. v. S. (P.L.) (1991), 5 C.R. (4th) 351, 64 C.C.C. (3d) 193, 122 N.R. 321, 90 Nfld. & P.E.I.R. 234, 280 A.P.R. 234, [1991] 1 S.C.R. 909, 1991 Car- swellNfld 197, 1991 CarswellNfld 18, [1991] S.C.J. No. 37, EYB 1991- 67352 (S.C.C.) — referred to R. v. Shepherd (2009), 2009 SCC 35, 2009 CarswellSask 430, 2009 Carswell- Sask 431, 66 C.R. (6th) 149, [2009] S.C.J. No. 35, [2009] 8 W.W.R. 193, 245 C.C.C. (3d) 137, 81 M.V.R. (5th) 111, 309 D.L.R. (4th) 139, 391 N.R. 132, 331 Sask. R. 306, 460 W.A.C. 306, [2009] 2 S.C.R. 527, 194 C.R.R. (2d) 86 (S.C.C.) — considered R. v. Smith (1992), 13 C.R. (4th) 125, 25 W.A.C. 59, 37 M.V.R. (2d) 9, 73 C.C.C. (3d) 285, 131 A.R. 59, 1992 CarswellAlta 272, [1992] A.J. No. 436 (Alta. C.A.) — considered R. v. Stellato (1993), 18 C.R. (4th) 127, 78 C.C.C. (3d) 380, 61 O.A.C. 217, 12 O.R. (3d) 90, 43 M.V.R. (2d) 120, 1993 CarswellOnt 74, [1993] O.J. No. 18, 1993 ONCA 3375 (Ont. C.A.) — referred to R. v. Stellato (1994), 3 M.V.R. (3d) 1, 72 O.A.C. 140, 31 C.R. (4th) 60, 90 C.C.C. (3d) 160, 18 O.R. (3d) 800, 168 N.R. 190, 1994 CarswellOnt 1159, [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51, 1994 CarswellOnt 84, EYB 1994-67659 (S.C.C.) — referred to R. v. Yebes (1987), [1987] 6 W.W.R. 97, [1987] 2 S.C.R. 168, (sub nom. Yebes v. R.) 43 D.L.R. (4th) 424, 78 N.R. 351, 17 B.C.L.R. (2d) 1, 36 C.C.C. (3d) 417, 59 C.R. (3d) 108, 1987 CarswellBC 243, 1987 CarswellBC 705, [1987] S.C.J. No. 51 (S.C.C.) — followed R. v. Garemew K.D. Yamauchi J. 405

Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 253(1)(a) — considered s. 254(3)(a)(i) — pursuant to s. 254(5) — pursuant to s. 686 — considered s. 686(1)(a) — considered s. 686(1)(b) — considered s. 813 — considered s. 822(1) — considered

APPEAL by accused from conviction for impaired driving.

C. John Hooker, for Appellant Rosalind Greenwood, for Respondent

K.D. Yamauchi J.: I. Introduction 1 The Crown charged Takele Garemew (the “Appellant”) with the following offences under the Criminal Code of Canada, RSC 1985, c C–46 [Criminal Code]: COUNT 1: on or about the 19th day of July, 2015, at or near Calgary, Alberta did, unlawfully operate a motor vehicle while his ability was to operate a motor vehicle was impaired by alcohol or a drug, contrary to section 253(1)(a) of the Criminal Code. COUNT 2: on or about the 19th day of July, 2015, at or near Cal- gary, Alberta did, without reasonable excuse, fail or refuse to comply with a demand made to him by a Peace Officer pursuant to s. 254(3)(a)(i) of the Criminal Code to provide as soon as practicable samples of his breath as were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood, and did thereby committed an offense, contrary to section 254(5) of the Criminal Code. 2 The Crown proceeded summarily on both charges. At the conclusion of the trial, the learned Provincial Court judge [“PCJ”] convicted the Ap- pellant on Count 1, and acquitted the Appellant on Count 2, as the Crown did not seek a conviction on that Count. 3 The Appellant appeals his conviction and sentence on the grounds that the PCJ erred in law by: 406 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

A. rendering a verdict that was unreasonable and not supported by the evidence; B. reversing the onus of proof; and C. stating that there is no longer any “marked departure” test when determining impairment of the ability to drive. 4 For the purposes of hearing counsels’ submissions during this appeal, this Court reviewed their written factums, along with the cases attached to their written factums. This Court also reviewed the January 19, 2016 trial transcript (the “Trial Transcript”).

II. Salient Facts 5 There appears to be no dispute concerning the salient facts. These are reflected in the parties’ respective briefs, and in the Trial Transcript, so this Court will not provide pinpoint locations within the Trial Transcript. 6 On July 9, 2015, Trudy Hoang resided on [. . .] Drive in Calgary, Al- berta. She was awakened at 3:00 a.m. by the loud sound of a vehicle’s exhaust and popping noises. She went to her window and observed a vehicle on her lawn that she thought was stuck. It was reversing and going forward. The vehicle reversed into her mother’s car. Ms. Hoang called the police, who arrived approximately 4 minutes later. Ms. Hoang observed the vehicle for 2 or 3 minutes. 7 She drew a diagram that showed the vehicle, a Honda Prelude (the “Prelude”), was 80% on her lawn and 20% on the sidewalk. She never approached the Prelude. 8 Cst. Marc Comeau was one of the police officers who arrived at the scene in a police vehicle. He was a passenger in the police vehicle. He observed the Prelude on the sidewalk at a 45–degree angle with the front of the vehicle pointed in a northwestern direction. It appeared to Cst. Comeau that the Prelude was “stuck.” He noted that 2 other vehicles had been struck, being a Honda Civic and a Lexus SUV. The Prelude was running, with the driver inside the Prelude. The Prelude’s lights were on, and the driver was attempting to drive the car off the sidewalk. The Prel- ude was “high–centered.” From the police vehicle Cst. Comeau could see by the Prelude’s taillights going on and off that the driver was trying to rock the Prelude off the sidewalk, but he could not get the Prelude off the sidewalk. 9 The police vehicle’s driver, Cst. Dan Tatla, pulled the police vehicle up to the Prelude with emergency lights activated and hit the police vehi- R. v. Garemew K.D. Yamauchi J. 407

cle’s air horn. Cst. Comeau could not see any response from the Prel- ude’s driver, from his vantage point, to Cst. Tatla’s actions. Rather, the Prelude’s driver continued to attempt to drive the Prelude off the sidewalk. Because the Prelude’s driver did not change his behavior, Cst. Tatla drove his police vehicle parallel to the Prelude. 10 Cst. Comeau exited the police vehicle, and opened the Prelude’s door. He immediately smelled a strong odour of alcohol from the vehicle. The Appellant was hunched over and swaying slightly from side–to–side. Ac- cording to Cst. Comeau, the driver was “almost zombie–like” and his hands were up towards the steering wheel. The swaying motion that the Appellant exhibited, based on Cst. Comeau’s personal experience, indicated that the Appellant was under the influence of alcohol. 11 Cst. Comeau asked the driver, identified as the Appellant, to show his hands. Instead of showing his hands the Appellant hesitated, then reached into his jacket pocket and handed Cst. Comeau his wallet. At that point, Cst. Comeau formed the opinion that the Appellant was impaired by alcohol. 12 Cst. Comeau directed the Appellant out of the Prelude so that he could determine whether the smell of alcohol was coming from the Ap- pellant or from the Prelude. Cst. Tatla assisted the Appellant from the Prelude. He noted that the Appellant was “extremely sweaty,” to the point where Cst. Tatla could see sweat dripping from the Appellant’s forehead. As well, Cst. Tatla could smell liquor coming from the Prelude or from the Appellant. He also noted that the Appellant’s eyes were “bloodshot red,” and really wide–open, like he was in shock. As well, Cst. Tatla noted that there was a case of Heineken beer behind the driver’s seat. This is when he formed the opinion that the Appellant was impaired by alcohol. 13 Cst. Comeau placed the Appellant under arrest and charged the Ap- pellant with impaired driving. The Appellant was then searched and placed in the back of the police vehicle. After arresting and handcuffing the Appellant, Cst. Tatla “Chartered and cautioned” verbatim from a card, which he read to the PCJ. The Appellant said to Cst. Tatla, “yes, I am drunk. I only had 2 beers.” The Appellant also said, “I understand little English. I’m stressed. I have no family. Without my girlfriend, I have nothing.” 14 Just before Cst. Comeau read the breath demand to the Appellant, the Appellant said, “I had 2 beers, and I drive.” 408 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

15 Cst. Comeau was of the view that the Appellant “absolutely” understood everything that was said to him in English. 16 Cst. Comeau made no notes of any problems with the Appellant’s walking to the police vehicle, getting into the police vehicle, or slurring of speech. He noted no swaying on the Appellant’s part while the Appel- lant was sitting in the police vehicle on the way to the police station. Cst. Comeau further testified that people who have been involved in a similarly forceful accident are often shaken up by the accident and are nervous at times, and that the sway he noted on first contact with the Appel- lant was slight. 17 Cst. Tatla agreed, during cross–examination, that there are many reasons other than impairment for bloodshot eyes, such as cigarette smoke or late nights, that profuse sweating can be caused by nerves which, in and of itself, could be indicative of nervousness. Cst. Tatla made no notes that the Appellant had any difficulty walking to the police vehicle while handcuffed, or that the Appellant had difficulty speaking or walking. He agreed that it would not be unusual for a person to be sitting in a vehicle looking shocked after an accident of similar severity. 18 The PCJ relied on the following indicia of impairment: • the Appellant’s “egregious driving” • the Prelude was on Ms. Hoang’s lawn • the Appellant continued to “rev the engine,” rocking the vehicle forwards and backwards, not appreciating that the vehicle was high–centred on the sidewalk and could not be moved • the Appellant did not notice when the officers arrived on the scene, and that Cst Tatla sounded the air horn • the smell of alcohol coming from the Prelude / Appellant • failing to follow directions by producing his wallet to Cst Comeau when asked to show his hands • slight swaying in his seat • looking “like a zombie” • bloodshot eyes • sweating from his forehead 19 Based on these factors, and the totality of the evidence, the PCJ found that the Appellant’s ability to operate a motor vehicle was impaired by alcohol. R. v. Garemew K.D. Yamauchi J. 409

III. Discussion 20 This Court will outline the standard of review that it must apply when considering the grounds of appeal that the Appellant argues. It will then review each of the grounds.

A. Standard of Review 21 This Court may allow an appeal of a summary conviction for the reasons set out in Criminal Code s 686, which by Criminal Code s 822(1), are made applicable to summary conviction appeals. Those provisions provide as follows: 686. (1) On the hearing of an appeal against a conviction . . ., the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (b) may dismiss the appeal where (i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby 822. (1) Where an appeal is taken under section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689, 410 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require. 22 By Criminal Code s 813, the Appellant is permitted to appeal his conviction and sentence to this Court. 23 When a party alleges that a judgment is unreasonable and cannot be supported by the evidence, the standard of review that the appellate court applies is whether a properly–instructed jury, acting reasonably, could have reached such a verdict. If the party alleges that the trial judge mis- apprehended evidence, the appellate court must examine whether the trial judge was “mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process”: R. v. Lohrer, 2004 SCC 80 (S.C.C.) at para 1, [2004] 3 S.C.R. 732 (S.C.C.). 24 The appellate court could allow an appeal where the trial judge has made a palpable and overriding error, but it must not substitute its own view of the evidence for that of the trial judge, especially in matters involving findings of credibility: R. v. S. (P.L.), [1991] 1 S.C.R. 909, 64 C.C.C. (3d) 193 (S.C.C.) at 198. 25 The standard of review depends on whether this Court is dealing with the facts, the law or mixed fact and law. A question of fact is to be reviewed on a standard of palpable and overriding error: Housen v. Niko- laisen, [2002] 2 S.C.R. 235 (S.C.C.) [Housen] at paras 10 and 25. A question of law is to be reviewed on a standard of correctness: Housen at para 8–9. A question of mixed fact and law lies along a spectrum. The general rule is where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error: Housen at paras 36. A question of mixed fact and law with an extricable error in principle can be characterized as an error of law. An extricable error in principle is one that “can be attrib- uted to the application of an incorrect standard, a failure to consider a required element of a legal test, or a similar error in principle”: ibid.

B. Unreasonable Verdict Based on Unsupported Evidence 26 In R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 (S.C.C.) [Shep- herd, cited to SCR], the Supreme Court of Canada said that it is crucial that the appellate court distinguish between factual findings and the “ultimate ruling” based on those facts, when it said the following: In our view, the summary conviction appeal judge erred in failing to distinguish between the trial judge’s findings of fact and his ultimate ruling that those facts were insufficient, at law, to constitute reasona- R. v. Garemew K.D. Yamauchi J. 411

ble and probable grounds. Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness. Shepherd at para 20. 27 The PCJ in this case at bar is entitled to deference concerning the facts as he found them. That, however, does not end this Court’s examination of the issue. It must determine whether those facts support the verdict. The latter examination is based on a standard of correctness. 28 In R. v. Yebes, [1987] 2 S.C.R. 168 (S.C.C.) at 185, McIntyre J, for the court said that the test for determining whether a verdict is unreasonable or that it could not be supported by the evidence is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.” In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1 (S.C.C.) [Biniaris, cited to SCR], Arbour J for the court said that the test outlined in Yebes, although framed in the context of a jury trial, was applicable, as well to a judge alone trial. She said the following: The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal. . . . [T]he court of appeal often can and should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion. The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached. These discernable defects are themselves sometimes akin to a separate error of law, and therefore easily sustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law. Biniaris at para 37. 29 Although the result must always be reasonable, Arbour J earlier in her reasons in Biniaris said that the findings of fact as determined by triers of fact are entitled to deference, when she said the following: Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, 412 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Conse- quently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned. Biniaris at para 24. 30 In this case, the Appellant argues that when one looks at the totality of the evidence, and the evidence from which the PCJ inferred that the Appellant was impaired, he rebutted that evidence to show that he was not impaired, or that his impairment was unrelated to the consumption of alcohol. He cites R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392, 178 A.R. 182 (Alta. C.A.) [Andrews, cited to CCC], in which Conrad JA said the following: . . . The question is simply whether the totality of the accused’s conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree. Obviously, if the totality of the evidence is ambiguous in that regard, the onus will not be met. Common sense dictates that the greater the departure from the norm, the greater the indication that the person’s ability to drive is impaired. ... Andrews at 404–05. 31 The Appellant gives numerous alternate theories for the various facts the PCJ found to show his impaired state, and the circumstances in which he found himself. This is similar to the issue with which the courts were faced in R. v. Pelech, 2011 ABQB 88, 47 Alta. L.R. (5th) 351, 507 A.R. 389 (Alta. Q.B.) [Pelech QB], rev’d 2012 ABCA 134, 522 A.R. 235, 63 Alta. L.R. (5th) 53 (Alta. C.A.) [Pelech CA]. In that case, the provincial court convicted the accused of impaired driving. On appeal to the Court of Queen’s Bench, he argued that the Provincial Court judge erred in drawing an adverse inference of impairment when other plausible and rational explanations were clearly available and supported by evidence that the trial judge had not taken into account. The summary conviction R. v. Garemew K.D. Yamauchi J. 413

appeal judge made the following observations about alternate sources of impairment: . .. negligence and oversight are also possible causes of impairment. We can take judicial notice of other factors, frequently alluded to in the general media or sometimes themselves the subject of legislation, factors such as fatigue, distraction by passengers, distraction by use of cell phones or texting devices, are also potential causes of impairment. Where the evidence warrants, a judge must consider whether impairment by alcohol is the only rational inference that can be drawn from the evidence. Pelech QB at para 9. 32 The Alberta Court of Appeal allowed the Crown’s appeal and said the following: With respect, there was no evidence to warrant consideration of any of these other sources of impairment. Specifically, no alternative source of impairment was ever suggested at trial, let alone offered by the respondent, who did not testify. Thus, these other potential sources of impairment, on this record, would be matters of pure speculation. Pelech CA at para 16. 33 In the case at bar, the PCJ had the ability to find that the Appellant was impaired by alcohol based on the evidence, as he found it, and he gave his reasons for his so finding. The evidence, which he found, supported that finding, so his verdict was not unreasonable. The theories, or alternate explanations, that the Appellant argued before this Court could be plausible, but as the Court of Appeal said, they are “pure speculation.”

C. Reversal of the Onus of Proof 34 This issue is related to the first. The Appellant argues that the PCJ was placing the burden of proof on the Appellant to offer an explanation for the factors which contributed to the PCJ’s finding of impairment. The PCJ said the following: There is no explanation for that driving, other than that the accused’s ability to operate a motor vehicle was, in fact, impaired by alcohol. And I would be speculating –– absent any explanation by the accused, for instance –– it was in the early morning hours, one of his front tires, or a rear tire blew, or something happened in the vehicle that caused the vehicle to swerve off the roadway and go onto the lawn. I don’t have any of that. All I have got is I have got an unexplained accident. 414 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

Trial Transcript, p 60, ll 36–40, p 61, l 1 [emphasis added]. 35 It is interesting to note that the PCJ made these comments during argument, and not during his ultimate ruling. However, in his ultimate ruling, the PCJ referred to the “unexplained motor vehicle accident” and the unexplained production of his wallet when the Appellant was asked to show his hands: Trial Transcript, p 65, l 9, ll 23–24. 36 The Appellant argues that the Crown must prove all elements of the offence, and that in determining guilt or innocence, the court must consider the totality of the evidence. This Court does not disagree with this proposition. How could it? That is the foundation upon which Canadian criminal law is built. However, once the Crown has satisfied its onus to prove beyond a reasonable doubt that the Appellant’s ability to operate a motor vehicle was impaired by alcohol, that would be the end of the Crown’s burden. It would be up to the Appellant at that stage to challenge the Crown’s evidence. This is not a shifting of the onus. The Crown has met its onus. If the Appellant chooses not to present any evidence, that ends the matter. The PCJ can consider what is before him, based on the evidence that the Crown has presented.

D. The “Marked Departure” Test 37 This ground of appeal arises from the PCJ’s comment, “I do not agree with any suggestion that there is still some kind of marked departure test out there”: Trial Transcript, p 65, ll 7–8. The Appellant argues that a “marked departure” test is “alive and well in Alberta.” The Crown argues that such a test is bereft of life. 38 This “debate” stems from a decision of the Alberta District Court in R. v. McKenzie (1955), 111 C.C.C. 317 (Alta. Dist. Ct.) at 319, (1955), 20 C.R. 412 (Alta. Dist. Ct.) [McKenzie], where Sissons CJDC said the following: If a combination of several tests and observations shows a marked departure from what is usually considered as the normal, it seems a reasonable conclusion that the driver is intoxicated with consequent impairment of control of faculties and therefore that his ability to drive is impaired. I do not think that such a finding should be made on a slight variation from the normal. R. v. Garemew K.D. Yamauchi J. 415

39 Thereafter, in R. v. Smith (1992), 73 C.C.C. (3d) 285, 131 A.R. 59 (Alta. C.A.) [Smith, cited to CCC], the Alberta Court of Appeal said the following: McKenzie seems to have been generally accepted. The courts that have employed it have found it to be a useful adjudicative tool that supplies some consistency to the trial of these cases and the assorted facts brought before them. Its value lies in its use as a general threshold of proof that counterbalances the generosities (or pruderies) of the many judges and juries who have to decide the issue. In our view the test has proved useful, realistic, and after 37 years, is now safe, we think, from incursion. Smith at 286–87. 40 It went on to say the following: . . . But McKenzie has maintained its force, certainly in Alberta. If it is wrong and Parliament prefers to criminally proscribe any impairment, however slight, accompanying the operation of a motor vehicle, it is free to do so. This seems unlikely where provincial governments concurrently sell intoxicants and driver’s licences (frequently from the same building), and the federal government declines to criminalize the operation of motor vehicles by persons who have consumed alcohol but in amounts less than 80 mg of alcohol in 100 ml of blood. Smith at 288. 41 Other courts of appeal across Canada criticized the approach that the court took in McKenzie. See e.g. R. v. Bruhjell (September 8, 1986), Doc. CA004416 (B.C. C.A.); R. v. Campbell (1991), 26 M.V.R. (2d) 319, 87 Nfld. & P.E.I.R. 269 (P.E.I. C.A.); R. v. Stellato (1993), 78 C.C.C. (3d) 380, 12 O.R. (3d) 90 (Ont. C.A.) [Stellato CA, cited to CCC], aff’d R. v. Stellato, [1994] 2 S.C.R. 478, 90 C.C.C. (3d) 160 (S.C.C.); and R. c. Aub´e (1993), 2 M.V.R. (3d) 127, 85 C.C.C. (3d) 158 (C.A. Que.). Labrosse JA for the Ontario Court of Appeal examined the history of this issue and said the following: . . . [T]he Criminal Code does not prescribe any special test for determining impairment. In the words of Mitchell J.A. [in Campbell], impairment is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of a criminal offence: courts should not apply tests which imply a tolerance that does not exist in law. In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can be 416 ALBERTA LAW REPORTS 48 Alta. L.R. (6th)

registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. Stellato CA at 384. 42 Labrosse JA agreed with the other courts that held that it is not necessary for the Crown to establish a marked degree of impairment of the accused person’s ability to drive. Instead, all it need prove beyond a reasonable doubt is any impairment, “ranging from slight to great,” of the accused person’s ability to drive. 43 This debate was finally laid to rest in Alberta, with the decision in Andrews, where Conrad JA explained how McKenzie and Stellato exist harmoniously. She said the following: In my view, Stellato and McKenzie are compatible cases. Stellato speaks to the degree of impairment of the ability to drive necessary to sustain a conviction; McKenzie speaks to the manner of proof of that impairment. Stellato supports the proposition that a marked degree of impairment of ability to drive is not required, whereas McKenzie says that an inference of any impairment of the ability to drive can reasonably be drawn from conduct that exhibits a marked departure from the norm. It does not say that it ought not to be drawn if it is not a marked degree. It only proscribes that inference if there is a slight variation from the normal. It speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt. Stellato does not overrule McKenzie, it says that there is no rule of law requiring that in addition to finding the existence of an impairment of ability to drive, there must also be a marked departure of conduct. Andrews at 403. 44 The Appellant in the case at bar argues that because Conrad JA says that Stellato CA does not overrule McKenzie, McKenzie is still good law in Alberta. He provides quotations from Andrews that are taken completely out of context. The ratio decedendi of Andrews was clearly articulated by Conrad JA in the immediately preceding para, i.e. Stellato CA speaks to the degree of impairment; McKenzie speaks to the manner of proof if the court intends to draw an inference of impairment. McKen- zie does not establish a rule of law: Andrews at 402. R. v. Garemew K.D. Yamauchi J. 417

45 If one were to get into a semantic debate, it is arguable that the PCJ might have erred in saying that there is no “marked departure test out there.” There is such a “test” out there, but it is not used to determine whether an accused person has committed an offence under Criminal Code s 253(a). It is used if the trial judge seeks to infer that the accused person’s ability to drive is impaired. 46 The PCJ, however, did not have to use a “marked departure test” to convict the Appellant. He had other facts before him and, as previously discussed, those facts supported his finding of guilt.

IV. Conclusion 47 As a result of the foregoing, this Court dismisses the Appellant’s appeal. Appeal dismissed.