



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Van Dyke,









2013 BCCA 33




Date: 20130128

Docket: CA040305

Between:

Regina

Respondent

And

Bradley
Jay Van Dyke

Appellant






Before:



The Honourable Chief Justice Finch





The Honourable Mr. Justice Chiasson





The Honourable Madam Justice A. MacKenzie




On judicial review
from: British Columbia Court of Appeal (Chambers),
November 2, 2012 (
R. v. Van Dyke
, 2012 BCCA 464, Docket CA040305)




Counsel for the Appellant:



R.C.C. Peck, Q.C. and
A. Cheon-Hayes





Counsel for the (Crown) Respondent:



F. Tischler





Place and Date of Hearing:



Vancouver, British
  Columbia

January 14, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 28, 2013









Written Reasons by:





The Honourable Madam Justice MacKenzie





Concurred in by:





The Honourable Chief Justice Finch

The Honourable Mr. Justice Chiasson








Reasons for Judgment of the
Honourable Madam Justice MacKenzie:

[1]

Mr. Van Dyke applied for bail pending his appeal from conviction,
pursuant to s. 679 of the
Criminal Code
.  On November 2, 2012,
Madam Justice Saunders, in chambers, dismissed his application.  The Crown
agreed Mr. Van Dykes appeal was not frivolous and that he established his
likely surrender into custody pursuant to a bail order.  However, the
Crown opposed bail on the basis Mr. Van Dyke had not demonstrated his
detention was not necessary in the public interest.  His application
focussed on that issue.  The judge found there was real substance to
Mr. Van Dykes grounds of appeal, but concluded his release would
tend to undermine public confidence in the administration of justice.

[2]

On December 20, 2012, Chief Justice Finch directed a review under
s. 680 of the
Criminal Code
of the order of the chambers judge.

[3]

The issue on the review before this Court is again whether
Mr. Van Dykes detention is necessary in the public interest. 
For the following reasons, I would dismiss this application.  In my view,
the chambers judge balanced the relevant criteria and considerations, properly
concluding Mr. Van Dyke had not met the burden of establishing it was
not contrary to the public interest that he be released pending appeal.  I
would not substitute a different opinion for hers.

Background

[4]

Mr. Van Dyke, now 39 years old, and his co-accused, Mr. Gill, were tried
by Mr. Justice Myers and a jury.  On March 23, 2012, they were both
convicted of the following offences:

1.      
breaking and entering to commit an indictable offence, namely assault, contrary
to s. 348(1)(b) of the
Criminal Code
;

2.      
aggravated assault, contrary to s. 268(2) of the
Criminal Code
;

3.      
use of a firearm while committing an indictable offence, contrary to
s. 85(1) of the
Criminal Code
; and

4.      
discharge of a firearm with intent to wound, maim, or disfigure, contrary to s.
244(2) of the
Criminal Code
.

The court entered a conditional stay of proceedings on
count 3 due to its similarity with count 4.

[5]

On October 9, 2012, Mr. Van Dyke was sentenced to five years imprison­ment,
less 21 months credited for pre-trial custody.

[6]

The chambers judge described the circumstances of the offences as
follows:

[4]       
The charges arose out of the break in of a cabin in 2009, occupied by a person
tending a commercial grow operation on behalf of the cabins owner, and the
beating and shooting of the occupant. The occupant testified that on the night
of the attack the two appellants appeared at the cabin. He said he heard some
noise outside the cabin, opened the front door and was struck in the mouth with
a metal bat. The occupant testified that he stepped back and searched for
something to protect himself with, that the two appellants entered the cabin,
that Mr. Gill had a baseball bat and Mr. Van Dyke had a gun, that Mr.
Gill told the occupant to lay on a mattress on the floor, that he did so and
that Mr. Gill started hitting him with the bat, including to his legs and feet.
The occupant testified he managed to get up and flee to the door at which time
Mr. Gill yelled at Mr. Van Dyke to shoot him and Mr. Van Dyke did so, hitting
him in the abdomen, and again in the arm.

[7]

Before trial, counsel agreed to the admission of evidence of Mr.
Van Dykes and Mr. Gills involvement with grow operations to help explain
the Crowns theory of motive and to establish
animus
between the
parties.  Specifically, the Crown sought to adduce evidence of threats
made by Mr. Gill toward the complainant two years before the incident because
Mr. Gill was suspicious that the complainant had stolen from one of the grow
operations they allegedly ran together.  This evidence was not admitted
for the truth of its contents.

[8]

At trial, it was agreed the evidence of the complainant would be subject
to a
Vetrovec
warning (
R. v. Vetrovec
, [1982] 1 S.C.R. 811),
given his extensive criminal record.  Mr. Gill and Mr. Van Dyke
did not testify or call witnesses at trial.  Their position was there was
no physical evidence to corroborate the complainants version of events and he
should not be believed.

[9]

Mr. Van Dyke appeals from his conviction on the grounds the judge erred:

1.        
... by failing to provide the jury with any limiting instruction on the use
they could make of the bad character evidence adduced at trial;

2.        
... by taking from the jury issues that were not clearly admitted by the
defence at trial;

3.        
... by failing to adequately put the defence theory to the jury;

4.        
... by failing to provide the jury with an adequate
Vetrovec
warning.

Order of the Chambers Judge

[10]

On October 30, 2012, the chambers judge heard Mr. Van Dykes application
for judicial interim release pending the appeal.

[11]

Section 679(3) of the
Criminal Code
sets out the relevant factors
on an application for bail pending appeal:

(3)  In the case of an appeal referred to in paragraph
(1)(
a
) or (
c
), the judge of the court of appeal may order that
the appellant be released pending the determination of his appeal if the
appellant establishes that

(
a
)       
the appeal or application for leave to appeal is not frivolous;

(
b
)       
he will surrender himself into custody in accordance with the terms of the
order; and

(
c
)       
his detention is not necessary in the public interest.

[12]

The Crown conceded the appeal is not frivolous and
Mr. Van Dyke had shown he will likely surrender himself into custody
under a bail order.  Thus, the only issue before the chambers judge was
whether Mr. Van Dyke had established his detention was not necessary
in the public interest.

[13]

In support of his application, Mr. Van Dyke submitted his grounds of
appeal are strong, his criminal record in the last five years only consists of
one count of driving while prohibited and one count of production of marihuana,
he was on judicial interim release for a considerable period before trial and
sentencing without breaching his terms of release, he has employment if
released, and he would like to visit his terminally ill father who lives in
Ontario.

[14]

The Crown, in turn, contended the grounds of appeal are not as strong as
Mr. Van Dyke suggests, and the circumstances of the offences are
serious.

[15]

The chambers judge found, in oral reasons given November 2, 2012, on one
hand, there is real substance to the grounds of appeal and noted the
circumstances of Mr. Van Dykes father.  On the other hand, however, the
judge was concerned by the violent nature of the offences, the involvement of a
gun, the surrounding circumstances of the drug trade, and
Mr. Van Dykes prior conviction for production of marihuana.
 The judge concluded Mr. Van Dykes release would undermine
public confidence in the administration of justice and dismissed his
application.

Discussion

Standard of Review

[16]

The standard of review under s. 680 was described by Mr. Justice Cumming
for the Court in
R. v. Wu (B.Q.)
(1998), 117 B.C.A.C. 305:

[6]       
A review under s. 680(1) of the
Criminal Code
is in the nature of an
appeal on the record and not a hearing
de novo
.
While the reviewing
court exercises an independent discretion and may substitute its own opinion
for that of the single judge under review, it must base its review on the facts
found by the single judge's evaluation of the evidence. It is not necessary
that a reviewing court, before intervening, come to a conclusion that the
decision of the single judge under review was unreasonable or that an error in
principle was committed
....

[Emphasis
added.]

[17]

This Court confirmed this standard of review in later decisions,
including
R. v. Mapara
, 2001 BCCA 508 at paras. 12-13, 158 C.C.C. (3d)
312, and recently in
R. v. Gingras; R. v. Porisky
, 2012 BCCA 467 at
paras. 48-49.

[18]

The reviewing Court may also disagree with the chambers justices
opinion of the ingredients of the statutory criteria such as the seriousness of
the offence and the strength of the grounds:
Gingras
, at para. 49.

Criteria under Section 679(3)

[19]

As stated, s. 679(3) of the
Criminal Code
requires the appellant
to establish: a) the appeal is not frivolous; b) he will surrender
himself into custody in accordance with the terms of the order; and c) his
detention is not necessary in the public interest.

[20]

In
Mapara
at para. 32, Madam Justice Ryan, for the Court, adopted
the analysis in
R. v. Farinacci
(1993), 86 C.C.C. (3d) 32 (Ont. C.A.),
where Madam Justice Arbour held that the public interest criterion in s.
679(3)(c) of the
Criminal Code
requires a balance between the competing
dictates of enforceability and reviewability.  Madam Justice Ryan said:

[34]      I agree with the analyses
in
Farinacci
and [
R. v.

Baltovich
, 47 O.R. (3d) 761
(C.A.)].  Public confidence in the administration of justice requires that
verdicts, properly rendered, be enforced. Where an appellant establishes that
he or she does not pose a flight risk and is unlikely to re-offend, the public
interest also acknowledges that actual punishment for a crime be avoided if
strong grounds exist for setting aside the verdict.

[35]      In [
R. v. Demyen
(1975), 26 C.C.C. (2d) 324 (Sask. C.A.)] when Culliton C.J.S. speaks of the
necessity for the appellant to show something more than the requirements of
paragraphs (a) and (b) of s. 679(3) to establish that his detention is not
necessary in the public interest, he must be referring to the necessity for the
appellant to show that the principle of enforceability is outweighed by that of
reviewability. In my view the strength of the interest of reviewability must
primarily be measured by examining the likelihood of the success of the appeal.
Very strong grounds will tip the scale in favour of reviewability.

[36]     
Depending on the demonstrated strength of the grounds, other factors, such as
the circumstances of the offence  for example, pre-meditated violence  and,
inordinate delay will be matters to weigh in the balance. The essential
question, however, will be whether the appellant has been able to establish
that enforceability is outweighed by reviewability.

[21]

In
Gingras
(decided after the chambers judge made her order), a
five-judge division of this Court addressed an inconsistency in our
jurisprudence as to whether the weakness of an appeal is a proper consideration
in the balancing of reviewability and enforceability.  Mr. Justice Donald,
for the Court, said:

[31]     
In any event, the controversy, such as it is, can now be laid to rest. 
The strength of the grounds of appeal can work both ways.  The merits are
in opposition to the seriousness of the offence; the greater the seriousness of
the offence, the stronger the grounds required to shift the balance from
enforceability to reviewability.  Since the strength of the grounds and
seriousness of the offence are two sides of the same coin, it does not make
sense to say that weak grounds cannot negatively affect a bail application.

[22]

Mr. Van Dyke submits the chambers judge erred by over-emphasizing the
seriousness of the offence, effectively treating it as determinative.
 Mr. Van Dyke says the judge failed to expressly weigh the
seriousness of the offences against the factors that favoured his release,
including the considerable period he spent on judicial interim release without
breaching the terms of his release, his wish to see his terminally ill father,
his employment opportunity, and most importantly, the judges favourable
finding with respect to the strength of the grounds of appeal.  Mr. Van Dyke
characterizes the chambers judges approach as a categorical approach, where
the type of offence trumped all other factors.

[23]

Mr. Van Dyke argues the public interest analysis under s. 679(3)(c)
favours reviewability over enforceability in this case.

[24]

As to the merits of the appeal, Mr. Van Dyke says the grounds of appeal
are strong, as found by the judge.  He also points to his limited criminal
record and the fact he has not been in trouble with the law in the three years
since the convictions under appeal.  Mr. Van Dyke further notes the
extenuating personal circumstance of his dying father whom he wishes to see if
released and permitted to do so by this Court.

[25]

As to the seriousness of the offences, Mr. Van Dyke admits they were
very serious, but says they were not at the most serious end as this is not a
case of murder or attempted murder.  Mr. Van Dyke also takes issue with
the judges concern that the offences occurred in the context of the drug
trade.  He says he was specifically involved in the marihuana industry,
which has been recognized by British Columbia courts as less serious than drug
offences involving more addictive and harmful substances.  Mr. Van Dyke
further notes this Court has recognized that the aggravating factor of a home
invasion covers a wide range of circumstances and the sentencing judge in this
case acknowledged that this factor was attenuated because the complainant was
running a commercial grow operation inside the cabin.  Thus, Mr. Van Dyke
says the nature of the offences in this case does not outweigh the strong
factors in favour of his release.

[26]

The Crowns position is that although the appeal meets the not
frivolous threshold, the impugned jury charge is adequate when viewed in its
entirety and in context.  While the chambers judge found the grounds of
appeal had real substance (para. 17), she did not find they were strong.
 In doing so, the Crown contends the judge made a carefully measured and
nuanced, yet clear, assessment of the strength of the grounds of appeal.
 I agree with the Crown.

[27]

The Crown is also correct, in my view, that the chambers judge did not
apply a categorical approach to the public interest criterion in which the
type of offence trumped any other consideration.  Instead, the judge
properly balanced all the public interest considerations, including the
seriously aggravated circumstances of the offences.  She recognized the
difficult task of a single judge on an application for appeal bail where only a
limited assessment of the merits is either appropriate or possible, based on an
incomplete record and limited submissions.  But her reasons clearly
reflect she considered the reasonably full description of the grounds and counsel
provided her with the jury charge itself.  The following passage
demonstrates her careful and balanced analysis:

[16]      It is always a difficult
task for a single judge who ought not to say too much about the merits of a
case that will be heard by a division of at least three judges, to assess the
merits of an appeal based upon an incomplete record and less than complete
submissions on the merits. However, something needs to be said. I have been
assisted by the reasonably full description of the grounds of appeal provided
by counsel for Mr. Van Dyke and been provided with the jury charge, all
sufficient to be able to appreciate, at least on a cursory level, the substance
of the submissions intended to be made at the hearing of the appeal.

[17]      I am satisfied that there
is real substance to the grounds of appeal, and that they go beyond the modest
description of not frivolous, a consideration that makes the issue of
reviewability somewhat more urgent. I also have in mind the circumstances of
Mr. Van Dykes father.

[18]     
On the other side, this is a case involving firearms and personal injury. I am
troubled in this case that the offences were violent, that they involved the
carrying of a gun to the cabin and the discharge, twice, of the gun, that the
surrounding circumstances were involved with the drug trade, and that the
appellant has another conviction in relation to production of marihuana. Given
these considerations, I cannot say that Mr. Van Dykes detention is not
necessary in the public interest. Considering the standard of the ordinary,
reasonable, fair-minded citizen informed of the circumstances of this case, it
seems to me that Mr. Van Dykes release would tend to undermine public
confidence in the administration of justice.

[28]

In my view, the chambers judge properly balanced the competing factors
of reviewability and enforceability, pursuant to
Mapara
as confirmed in
Gingras
.

[29]

I would not substitute a different opinion for that of the chambers
judge.  I have considered all the thorough submissions before this
Court on the strength of the grounds of appeal.  I am not persuaded the
grounds of appeal are strong, although they are not merely not frivolous.

[30]

I disagree with Mr. Van Dykes complaint about the judges concern that
the offences occurred in the context of the drug trade and, given these violent
circumstances, with his submission that the marihuana industry is less serious
than drug offences involving more addictive and harmful substances.  This
case did not involve possession or trafficking in small amounts of marihuana.
 On the contrary, these offences demonstrate the seriously violent culture
of the marihuana production industry, of which the use of firearms is a
ubiquitous aspect.

[31]

Nor, with respect, do I view the home invasion feature of this case as
attenuated by the fact the complainant was running a commercial grow operation
inside the cabin.  This shooting could easily have been fatal.

[32]

In weighing the seriousness of the offences against the strength of the
appeal and Mr. Van Dykes personal circumstances, I must respectfully disagree
with Mr. Van Dyke that the factors in favour of his release outweigh
the nature of the offences in this case.  As the Crown put it, Mr. Van
Dyke shot a fleeing man in the context of the drug trade and in a clearly
premeditated offence.  He also has a recent conviction for production of
marihuana.

Disposition

[33]

This is a serious case of personal injury caused by firearms.  The
offences were violent and connected to the drug trade.  Mr. Van Dyke has a
conviction for production of marihuana.  As in
Gingras
,
enforceability requires strong grounds of appeal (para 60).  As to
reviewability, Mr. Van Dykes personal circumstances, apart from the noted
conviction, include 22 months of complying with terms of bail, which the Crown
at the sentencing characterized as exemplary.  Further, Mr. Van Dykes
father in Ontario has a terminal illness and Mr. Van Dyke wishes to visit him.
 Mr. Van Dyke also has employment if released.  However, in
my judgment, the grounds are not strong enough, even considered with his
personal circumstances, to favour reviewability.

[34]

In the result, I would dismiss this application for review.

The Honourable Madam Justice MacKenzie

I agree:

The Honourable Chief Justice
Finch

I agree:

The Honourable Mr. Justice Chiasson




