



`COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Lambert,







2007 
          BCCA 26



Date: 20070110





Docket: CA033290

Between:

Regina

Respondent



And

Shane 
    Eldon Lambert

Appellant








Before:


The 
          Honourable Madam Justice Newbury




The 
          Honourable Mr. Justice Lowry




The 
          Honourable Madam Justice Kirkpatrick



Oral Reasons for Judgment




P. 
          Benning

R.P. Thirkell


Counsel for the Appellant




F. 
          Tischler


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver
,
British Columbia







5 January 2007




Place 
          and Date of Judgment:


Vancouver
,
British Columbia




10 January 2007



[1]

NEWBURY, J.A.
: Mr. Lambert appeals his conviction on five 
    counts of fraud arising from a scheme whereby a woman, Ms. Hauser (the appellants 
    common law wife), and at least one man, defrauded several restaurants of food 
    and cash.  The ground of appeal advanced at the hearing was the trial judges 
    reasons contained an analytical flaw in that the third step described in
R. v. Carter
, [1982] 1 S.C.R. 938 and
R. v. Mapara
, 
    [2005] 1 S.C.R. 358, for the application of the co-conspirator hearsay exception 
    was, the appellant contends, missing.  I should note, the accused in the instant 
    case were not charged with conspiracy but with the substantive offence of 
    fraud, so that the existence of a joint venture could be shown on the balance 
    of probabilities in accordance with
R. v. Bouvier
, [1985] 2 
    S.C.R. 485 and
R. v. Sutton
, [2000] 2 S.C.R. 595, which affirmed 
    the New Brunswick Court of Appeal at 1999 N.B.J. No. 548.

[2]

Mr. Benning for the appellant says that although the trial judge correctly 
    asked the question whether a joint venture existed between Mr. Lambert and 
    Ms. Hauser and whether on the balance of probabilities Mr. Lambert was a participant 
    therein and answered both questions affirmatively, the trial judge did not 
    go on to consider whether, on all the evidence (including the acts and declarations 
    in furtherance of the venture) the Crown had proven
on the criminal standard
that Mr. Lambert was guilty.  Because of this flaw, counsel contends, the 
    reasons do not permit meaningful appellate review in accordance with the
Sheppard
line of cases:
R. v. Sheppard
, [2002] 1 S.C.R. 26;
R. 
    v. Gagnon
, [2006] 1 S.C.R. 621;
R. v. S.J.D.
(2004), 
    186 C.C.C. (3d) 304 (Ont. C.A.), and this courts recent decision in
R. 
    v. Thomas
, 2006 BCCA 411.

[3]

Mr. Benning sought to illustrate his argument with reference to Count 
    6 in particular, which allegedly took place in August 2004, two months before 
    the two co-accused moved into the motel owned by Ms. Halosny.  He notes that 
    the trial judge did not consider expressly this question of timing, nor find 
    expressly that Mr. Lambert was the male caller, or explain why he concluded 
    Mr. Lambert had participated on that occasion.  He suggests that although 
    the two co-accused said they had been together for five years, there was 
    no evidence that prior to their arrival at the motel in October, Mr. Lambert 
    had been participating in the fraudulent scheme.  As well, it is said the 
    trial judge failed to address the question of whether another male had been 
    involved in the scam, as was suggested by evidence regarding men with different 
    accents on the phone and in the cabs.

[4]

I do not find these arguments persuasive.  After the trial judge had 
    considered and resolved the first two steps of the modified
Carter
analysis, he did go on to consider the question of Mr. Lamberts guilt, beyond 
    a reasonable doubt, on the basis of the acts and declarations which were almost 
    totally, I would say, in furtherance of the joint venture.  In other words, 
    as the Crown argued in its factum, almost all of Ms. Halosnys acts and statements 
    adduced by the Crown were done and said in the course of carrying out the 
    fraud.  It was not necessary for the judge, sitting alone, to review again 
    all of the evidence he summarized at para. 6 in his Reasons, in order to illustrate 
    that that evidence supported a conclusion of guilt beyond a reasonable doubt.  
    Indeed I would have said the case, including Count 6, was overwhelming.

[5]

The trial judge did go on, after dealing with the first two steps in
Carter
, to make clear credibility findings against the defence 
    witnesses.  He stated that where their evidence conflicted with the Crowns 
    evidence, he preferred the latter.  Then, on considering the Crowns entire 
    case, he found that it had been proven to the criminal standard.  I do not 
    agree with the defence that the Reasons do not admit meaningful appellate 
    review within the meaning of the cases mentioned earlier, or that the pathway 
    to conviction was not clear.  The trial judges findings were clearly stated 
    and fully supported the verdict.

[6]

In the result, I would give leave to appeal but dismiss the appeal.

[7]

LOWRY, J.A.
: I agree.

[8]

KIRKPATRICK, J.A.
: I agree.

The Honourable Madam Justice Newbury


