






Citation:



R. v. Dunbar et
  al



Date:
20030109











2003 BCCA 60



Docket:



CA027861

CA027862

CA029457

CA028736

CA019928





Registry:  Vancouver





COURT OF APPEAL
  FOR BRITISH COLUMBIA





ORAL REASONS FOR JUDGMENT





Before:







The Honourable Mr. Justice Esson





January 9, 2003









The Honourable Madam Justice Southin













The Honourable Mr. Justice Hollinrake















Vancouver,
        B.C.













BETWEEN:





REGINA





RESPONDENT





AND:





ALLAN ARTHUR DUNBAR

DARREN DENNIS POLLARD

DOUGLAS MARVIN COOPER

GERRY LEIDING

MALCOM KRAVIT





APPELLANTS






















S. Goldberg



appearing
  for the Appellants





C. Sweeney, Q.C.



appearing
  for the (Crown) Respondent re. A. Dunbar, D. Pollard, D. Cooper, G. Leiding





W. Smart, Q.C.



appearing
  for the (Crown) Respondent re. M. Kravit




[1]

ESSON, J.A.
: Mr.
Goldberg, I think you have the drift of the Courts views on your application. 
We are all of the view that no grounds have been shown to interfere with the
decision made by Madam Justice Huddart.  We do that without deciding whether
the matter was properly dealt with as a chambers application rather than
administratively and without deciding whether there is power in criminal cases
to have a review of an order made in chambers in the way that has been sought.  Clearly,
in our view, there is no merit in the application before us today which is one
for a review of the order of Madam Justice Huddart.

[2]

SOUTHIN, J.A.
:
If
I may say so, it appears to me that these appeals need to be managed.  We now
have a practice in this Court of pre-appeal hearings and so on, and something
has to be done about it.  Otherwise this whole thing is going to get completely
out of hand.  If Mr. Dunbar has a sound ground for a new trial the sooner he
gets it the better.  He is serving a sentence for first degree murder.  His
appeal should not be delayed by any attempts on your part, Mr. Goldberg, to
engage in remaking the way the legal profession operates.  Mr. Dunbar is
entitled to have his appeal brought on.

[3]

ESSON, J.A.
: That
concludes the hearing of the first application in this case.  You have another
application, Mr. Goldberg?

[4]

MR. GOLDBERG
: I
am going to withdraw that application.

[5]

SOUTHIN, J.A.
:
That sub-section does not apply here.  You just want to make an ordinary garden
variety fresh evidence motion.

[6]

MR. GOLDBERG
:  How
simple.

[7]

ESSON, J.A.
:  Mr.
Sweeney, you looked alarmed.  Is there anything

[8]

MR. SWEENEY
:  I
am trying not to look alarmed.

[9]

SOUTHIN, J.A.
:
Why are you alarmed, Mr. Sweeney?

[10]

MR. SWEENEY
:  I am just sort of
confused.  It seemed that Mr. Goldberg was arguing what I thought I was arguing
by the end of the day.  I do not want to re-open it all up.

[11]

SOUTHIN, J.A.
: No, no.  We will be right
back to square one.

[12]

ESSON, J.A.
: Mr. Smart, I take it, you
have nothing to add?

[13]

MR. SMART
:  No.  In fairness to Madam
Justice Huddart, when we came before her the issue before her was not addressed
to whether it was appropriate that more than one would be heard together and
the issue is being collateral.  Counsel came before her really on the basis it
would be appropriate to be heard.  There is no argument her mind was not
directed to whether that was an efficient way to proceed.  The issue was
whether there should be three or five -- whether the two appeals had to have an
extension or leave to be dealt with the other three or in advance.  That was
the only issue.  In fairness to her, the issues that Madam Justice Southin has
raised about its diverting from the issues of Dunbar was never addressed by her.

[14]

SOUTHIN, J.A.
: No, I did not think they
were.  Mr. Dunbars affidavit of 20 December was not before her, was it?

[15]

MR. SMART
:  Most of the affidavits were
not, so the complications werent there.

[16]

SOUTHIN, J.A.
: No, so the significance
of what happened at Dunbars
trial was not known to Madam Justice Huddart.

[17]

MR. SMART
:  So the question was: should
everybody convene for five matters before one panel or should the two that
still werent ready to proceed, be dealt with in advance?  That was the issue
for her.  In fairness to Madam Justice Huddart, it wasnt quite as it now
appears from the affidavits.

[18]

I
      wonder if I could just add something.  I dont think Madam Justice
Huddart had any material before her but for the notices of appeal that Mr.
Sweeney filed.  So I dont think she had any of the affidavits.

[19]

SOUTHIN, J.A.
:  No, she did not.

[20]

ESSON, J.A.
:  We will add in relation to
Mr. Goldbergs first application that, as I said, we are doing nothing other
than doing nothing to disturb the direction given by Madam Justice Huddart on
that day.  That does not imply that it is a decision of this panel that that
direction should remain in effect and could not be the subject of further
consideration which might be on an administrative basis through the Registry or
the Chief Justice, or by a hearing in chambers.  We are also of the view that
given the complexity of this matter there should be management and we will
indicate that to the Chief Justice.



[21]

We
      are not in a position to make any direction to that effect.  With
those additional remarks that concludes this hearing.

The Honourable Mr. Justice Esson



CORRECTION: February
  5, 2003

In the
Style of Cause Court of Appeal No. CA027457 should be CA029457


