



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Pedersen; R v. Serrano-Hernandez,









2014 BCCA 16




Date: 20140117

Docket
Nos.:  CA039278; CA039536

Docket No.: CA039278

Between:

Regina

Respondent



And

Scott Everett
Pedersen

Appellant

- and -

Docket No: CA039536

Between:

Regina

Respondent

And

Vincente
Serrano-Hernandez

Appellant

Restriction on Publication: A
publication ban has been imposed under s. 486.5 of the
Criminal Code
restricting the publication, broadcasting or transmission in any way of
evidence that could identify an undercover officer.
This publication ban applies
indefinitely unless otherwise ordered.




Before:



The Honourable Mr. Justice Frankel

(In Chambers)




On appeal from:  An
order of the Supreme Court of British, dated July 20, 2011 (
R. v.
Pedersen & Serrano-Hernandez
, Victoria Registry No. 149340).




Counsel for the Appellant, Pedersen:



R.A. Mulligan, Q.C.





Counsel for the Appellant,

Serrano-Hernandez



M.F. Allen





Counsel for the Respondent:



R.D. Leong





Place and Date of Hearing:



Victoria, British
  Columbia

November 29, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 17, 2014










Summary:

Applications granted under s.
684 of the Criminal Code appointing counsel to act on conviction appeals. As
some of the proposed grounds of appeal are not considered arguable, counsel are
authorized to order only a limited transcript and appeal book.

Reasons for Judgment of the Honourable
Mr. Justice Frankel:

Introduction

[1]

Following a lengthy trial in the Supreme Court of British Columbia,
Scott Everett Pedersen and Vincente Serrano-Hernandez were convicted by a jury of
possessing 1001 kilograms of cocaine for the purpose of trafficking. Each was
sentenced to 14 years and 7 months imprisonment; effectively 16 years having
regard to pre-sentence custody.

[2]

Mr. Pedersen and Mr. Serrano filed appeals from both
conviction and sentence and sought legal-aid funding from the Legal Services
Society. Funding was approved for the sentence appeals, but refused for the
conviction appeals. They now apply, pursuant to s. 684(1) of the
Criminal
Code
, R.S.C. 1985, c. C-46, for the appointment of counsel for the
purpose of advancing their conviction appeals. If such an appointment is made,
then the fees and disbursements of counsel will be paid by the Attorney General
of Canada: see s. 684(2).

[3]

For the reasons that follow, I would grant Mr. Pedersens and Mr. Serranos
respective applications on terms. As I will explain, I consider that the
interests of justice warrant the granting of state funding, for some, but not
all, of their proposed grounds of appeal.

General Background

[4]

On the evening of March 5, 2010, the Huntress, a sailing vessel
owned by Mr. Pedersen, was observed by a surveillance aircraft in the
vicinity of Scott Islands at the north end of Vancouver Island. That aircraft
had been deployed at the request of the Royal Canadian Mounted Police in
response to information provided by a confidential source that a vessel
containing 1,000 kilograms of cocaine had departed Panama for a location off
the west coast of Vancouver. That vessel was expected to arrive in March. The
flight crew was of the view that the Huntress was suspicious because it was unusual
to see a sailboat in that area in March due to the weather conditions. As well,
it was running without night-time running lights.

[5]

A male with a North American accent responded to a hail from the
aircraft, identified the vessel as the Huntress, but was unable to provide
the vessels call sign or registration. The male identified his last port as
Panama and his destination as Port Hardy, British Columbia.

[6]

Early the following morningMarch 6, 2010the aircraft returned to
the area and again located a vessel the crew believed was the Huntress. Flying
at a high-altitude, the aircraft followed the vessel using a forward-looking
infrared camera (FLIR). At approximately 4:00 a.m., the vessel was
observed to change course and turn towards Shushartie Bay on the east coast of
Vancouver Island. A small Zodiac-like vessel was observed travelling from the
shoreline to the vessel and back to shore several times. Based on the use of
FLIR, it appeared to the crew of the aircraft that after the final trip there
was one person on shore and two on the vessel.

[7]

The officer-in-charge of the investigation believed that what the
aircrafts crew had observed was a mother ship drug offload. As a result, he
gave instructions to arrest those onboard the vessel when it arrived in Port
Hardy.

[8]

The Huntress pulled into Port Hardy Bay and docked at approximately
9:00 a.m. on March 6, 2010. Mr. Pedersen disembarked and was walking
on the dock when he was approached by a police officer. In answer to questions
from the officer, Mr. Pedersen said he had just come from Panama and
pointed out the Huntress as his vessel. At this point he was arrested.

[9]

Mr. Serrano was seen by the police in the cockpit area of the Huntress.
He was ordered off the vessel and arrested.

[10]

The police then did a security-sweep of the Huntress to ensure that no
one else was onboard and to look for weapons. As I will discuss later in these
reasons, the police re-boarded the Huntress several times to search for
evidence and for other investigative purposes.

[11]

Several hours after the arrests, police officers made their way to
Shushartie Bay, where they found 37 duffel bags each containing between 25 and
30 individually wrapped bricks of cocaine covered with a camouflage tarp. A
Zodiac-style boat was located nearby. Hand-held radios were also found.

[12]

The trial lasted some 76 days. Approximately half that time was taken up
with various motions and
voir dires
which took place prior to the jury
being empanelled. The grounds of appeal which Mr. Pedersen and Mr. Serrano
wish to advance relate, for the most part, to a number of those rulings,
including a challenge to the lawfulness of the search of the Huntress and the
admissibility of evidence found on board. They do not challenge any aspect of
the trial judges charge to the jury.

Proceeding Leading Up
to the Present Application

[13]

The trial judge sentenced Mr. Pederson and Mr. Serrano on
July 27, 2011. She also ordered the Huntress forfeited to the Crown.

[14]

On August 15, 2011, Robert A. Mulligan, Q.C., who acted for
Mr. Pedersen at trial and continues to represent him, filed a notice of
appeal against conviction, sentence and forfeiture. The Legal Services Society
agreed to fund the sentence appeal but not the conviction appeal. That refusal
was not for financial reasons. On February 16, 2012, Mr. Pederson,
acting on his own behalf, filed an application for the appointment of counsel
to advance his conviction appeal.

[15]

On December 8, 2011, Martin F. Allen, who now represents Mr. Serrano
but did not act at trial, filed a notice on behalf of Mr. Serrano,
appealing sentence only. At the same time, Mr. Allen filed an application
for an extension of time within which to file the sentence appeal. The
affidavit filed in support of the extension of timesworn by an articled
student with the Legal Services Societysets out that: (a) within weeks of
being sentenced Mr. Serrano applied for legal aid funding to appeal both
conviction and sentence; (b) on November 18, 2011, funding was
approved for the sentence appeal only; and (c) on November 19, 2011,
a referral was issued to Mr. Allen for the sentence appeal. The refusal
with respect to the conviction appeal was not for financial reasons.

[16]

On October 24, 2012, Mr. Allen filed an amended notice of
appeal on behalf of Mr. Serrano, appealing both conviction and sentence,
together with an application for an order under s. 684 appointing counsel
to act on the conviction appeal.

[17]

In early January 2013, I was assigned to case-manage these appeals. On
January 11, 2013, I made interim orders under s. 684 in connection
with both conviction appeals, appointing counsel (in effect Mr. Mulligan
and Mr. Allen) to act for the limited purpose of advancing full s. 684
applications. At that time, Mr. Mulligan suggested the interim appointment
should provide him and Mr. Allen with authority to order the entire trial
record, including all motions and
voir dires
. However, I declined to
make such an order and, indeed, specifically included a term in my orders
stating that counsel were not authorized to order any transcripts and appeal
books. What I did include in my orders was a term that required defence counsel
and Crown counsel,

[to] cooperate to ensure that
material already produced, and in particular all
voir

dire
rulings, transcripts and the written charge to the jury from trial, are
provided to each other and be made available for the hearing of the full
application under section 684 of the
Criminal Code
.

As a result, when the present
applications were argued counsel and I had in hand eight
voir dire
rulings,
counsels jury addresses, the written jury charge, the sentencing proceedings,
and the reasons for sentence.

Regularizing
Mr. Serranos Appeals

[18]

Although this matter has been proceeding on the basis that Mr. Serrano
has conviction and sentence appeals outstanding before this Court, in the
course of preparing these reasons it came to my attention that his application
for an extension of time has never been spoken to. At my request, the registry
contacted Mr. Allen and Crown counsel, Raymond D. Leong, to inquire how
they wished to deal with that matter. In response, Mr. Leong indicated the
Crown does not oppose an extension being granted. Accordingly, I order the time
for the filing of Mr. Serranos amended notice of appeal be extended to
October 24, 2012.

Test for the
Appointment of Counsel

[19]

Section 684(1) of the
Criminal Code
provides:

A court of appeal or a judge of
that court may, at any time, assign counsel to act on behalf of an accused who
is a party to an appeal or to proceedings preliminary or incidental to an
appeal where, in the opinion of the court or judge, it appears desirable in the
interests of justice that the accused should have legal assistance and where it
appears that the accused has not sufficient means to obtain that assistance.

[20]

The approach to be taken in considering an application under s. 684
is well known. It was summarized as follows by Madam Justice MacKenzie in
R.
v. Silcoff
, 2012 BCCA 463:

[20]      The
overriding purpose of s. 684 of the
Code
is to protect the right to
be heard and to ensure the fairness of the proceedings:
R. v. Barton
and Federici
, 2001 BCCA 477 at para. 7.

[21]      Appointment
of counsel under s. 684 is subject to a two-part test, generally
considered in the following order:

1.   The accused must have
insufficient means to obtain legal assistance; and

2.   Appointment of counsel must be in
the interests of justice.

[22]      According
to
Applications for a Court-Appointed Lawyer Under Section 684 of the
Criminal Code
(Criminal Practice Directive, 19 September 2011), applicants
should generally be able to show that 1) they cannot afford to retain
counsel for the appeal; and 2) they applied to the Legal Services Society
for legal aid and were refused.

[23]      The
factors to be considered under the requirement of interests of justice were
summarized in
International Forest Products Ltd. v. Wolfe
, 2001 BCCA 632
at para. 6 and 13, 94 B.C.L.R. (3d) 67 (Levine J.A. in Chambers).
They are as follows:

a.   The points to be argued on
appeal;

b.   The complexity of the case;

c.   Any point of general importance
in the appeal;

d.   The applicants competency to
present the appeal;

e.   The need for counsel to find
facts, research law or make argument;

f.    The nature and extent of the
penalty imposed; and

g.   The merits of the appeal.

[24]      As
to the merits of the appeal, the threshold requirement is an arguable appeal:
R. v. Donald
,
2008 BCCA 316 at para. 15, 258 B.C.A.C. 117 (Saunders J.A. in
Chambers).

[25]      In
determining whether an appeal is arguable, regard must be had to the applicable
standard of review on the proposed appeal:
Lin v. British Columbia (Adult
Forensic Psychiatric Services)
, 2008 BCCA 518 at paras. 17-18
(Frankel J.A. in Chambers).

[26]      Even
where other factors favour the appointment of counsel, it will not be in the
interests of justice to appoint counsel where an appeal has no merit:
R. v. Hoskins
,
2012 BCCA 51 at paras. 30-32, 315 B.C.A.C. 238 (Garson J.A. in
Chambers).

[27]      The
Court may consider the opinion

of the Legal Services Society that an
appeal has no prospect of success, however, the opinion of the Legal Services
Society is only one factor:
R. v. Chan
, 2001 BCCA 138 at
para. 8 (Finch J.A., as he was then, in Chambers);
R. v. Butler
,
2006 BCCA 476 at paras. 7 and 10 (Rowles J.A. in Chambers).

See also:
R. v. Bath
, 2013 BCCA 126 at para. 12
(Chambers), 335 B.C.A.C. 144.

[21]

As discussed in greater detail below, in this case the critical issue is
whether Mr. Pedersen and Mr. Serrano have arguable grounds of appeal.
The Crown accepts they do not have either the financial ability to
independently obtain legal assistance or the ability to present their appeals
without the assistance of counsel.

[22]

One further point that should be mentioned is that I am of the view it is
open to a judge who makes an order under s. 684, to limit the contents of
the transcript and the appeal book to that which is necessary to advance the
grounds of appeal found to be arguable. In other words, an appointment of
counsel will not necessarily carry with it authority to order the entire trial
record at public expense:  see
R. v. Bernardo
(1997), 121 C.C.C. (3d)
123 at paras. 33  37 (Ont. C.A.). For example, if there does not appear to be
any merit in a proposed challenge to a
voir dire
ruling, then permission
to order the record of that
voir dire
need not be granted.

Proposed Grounds of
Appeal

[23]

Mr. Pedersens submissions relate to several proposed grounds of
appeal, some of which are specific to him. Mr. Serrano limited his submissions
to the ground challenging his arrest, the search of the Huntress and the
admissibility of what was found on board. However, Mr. Serrano did express
support for the grounds put forward by Mr. Pedersen which, if successful,
would benefit him.

Drug-Detection Dog
Evidence

[24]

Some 11 days after the Huntress was seized a police dog handler went
on board with a dog trained to detect seven different drugs, namely marihuana,
Cannabis resin, cocaine, crack cocaine, methamphetamine, heroin and psilocybin
(magic mushrooms). The handler testified the dog reacted in a manner consistent
with detecting the scent of one or more of those drugs near some drawers and at
the back of the vessel. However, the handler could not say what drug or drugs
the dog detected. The police did not find any drugs on the vessel.

[25]

Mr. Pedersen and Mr. Serrano objected to the admission of the
dog handlers evidence on two bases:  (a) the officer did not have
sufficient expertise and experience; and (b) its probative value was low
and its potential prejudicial effect high. The trial judge overruled those
objections and allowed the Crown to tender the evidence
:
Oral Reasons
re
Voir Dire
No. 9 (Evidence of Corporal Calibaba) (June 22,
2011). She gave the jury a special caution before it heard the evidence and
repeated that caution in her charge.

[26]

On appeal, Mr. Pedersen only seeks to raise the
probative/prejudicial point. He submits the evidence of the presence of the
odour of some unidentified drug or drugs on board the Huntress is of dubious
value and ought not to have been heard by the jury. The Crown supports the
trial judges ruling and the manner in which she dealt with the evidence in her
charge.

[27]

In my view, the issue of the admissibility of the dog handlers evidence
is an arguable ground of appeal that Mr. Pedersen should be permitted to
advance before a division of this Court.

[28]

Although the next matter might have been for me to decide what part of
the record is required to argue this issue, the position taken by the Crown has
obviated the need for me to do so. This is because Mr. Leong indicated
that if this Court determines that the impugned evidence should not have been
admitted, then the Crown will seek dismissal of these appeals under s. 686(1)(b)(iii)
of the
Criminal Code
, i.e., on the basis that the admission of that
evidence did not give rise to a substantial wrong or miscarriage of justice. Mr. Leong
says to advance that argument the Crown will require the complete record of the
case before the jury.

[29]

Accordingly, the appointment of counsel will include authority to order
transcript that include the entirety of the trial proper (i.e., evidence and proceedings
before the jury and submissions/discussions in the absence of the jury), and an
appeal book containing all exhibits tendered before the jury, Oral Reasons re
Voir
Dire
No. 9, and the written charge to the jury.

[30]

As the entirety of the proceedings before the jury will be filed on the
appeal, I need not discuss another ground proposed by Mr. Pedersen which concerns
the admissibility of evidence as to how he reacted during a post-arrest
interview. This is because I have already authorized the ordering of the record
needed to advance this ground.

[31]

If upon reviewing the above-mentioned transcript and appeal book Mr. Mulligan
and Mr. Allen determine there are other grounds of appeal to be raised on
behalf of their respective clients, they are, of course, at liberty to do so.

Arrests, Search of the Huntress/Admissibility
of Evidence

[32]

As previously mentioned, Mr. Pedersen and Mr. Serrano were
arrested shortly after the Huntress docked in Port Hardy on March 6,
2010. Immediately following those arrests, the police did a security sweep of
the vessel for weapons. Later that day, the vessel was searched and a number of
items seized. Thereafter, the police re-boarded the Huntress on the following
dates:

March 7, 2010:          seizure of
hand-held radios discovered during the first search but not seized at that
time;

March 9, 2010:          seizure of diving
equipment and photographs taken of the interior of the vessel;

March 17, 2010:       Huntress now in
dry dock, vessel searched, measurements and photographs taken; drug dog taken
on board;

April 6, 2010:             seizure
of compact discs and documents.

[33]

At trial, Mr. Pedersen and Mr. Serrano asserted the police did
not have reasonable grounds to arrest them and that, as a result, the searches
of the Huntress were unlawful. They sought the exclusion of all of the
evidence obtained from the vessel pursuant to s. 24(2) of the
Canadian
Charter of Rights and Freedoms
, Part I of the
Constitution Act
,
1982, being Schedule B to the
Canada Act 1982
(U.K.), 1982,
c. 11.

[34]

The trial judge found that Mr. Pedersen and Mr. Serrano were
lawfully arrested, and that the searches of the Huntress on March 6 and
7, 2010, were lawfully conducted pursuant to the common-law power to search
incidental to arrest. Although the judge found the subsequent searches unlawful,
she nevertheless, in what she described as a close call, admitted the
evidence obtained as a result of those searches
:
Oral Reasons for
Judgment on
Voir Dire
No. 1 (March 10, 2011); Oral Reasons for
Judgment,
Voir Dire
No. 1  Section 24(2) Hearing (May 9,
2011).

[35]

Mr. Pedersen and Mr. Serrano contend that the trial judge
erred in finding their arrests lawful. Their position is that objectively
reasonable grounds did not exist. They further contend that if their arrests
were not lawful, then all of the evidence obtained from the Huntress should
be excluded. In response, the Crown says that the trial judges finding that
the arrests were lawful is supported by the record. The Crown further says that
the judges decision to admit the evidence she found had been improperly
obtained is entitled to considerable deference.

[36]

Based on what is presently before me, I cannot say that the points
Mr. Pedersen and Mr. Serrano seek to raise are not arguable. Accordingly,
the appointment of counsel will include authority to order the transcript of
Voir
Dire
No. 1, and include in the appeal book the two
Voir Dire
No. 1 Rulings mentioned above, and any relevant
voir dire
exhibits
that have not otherwise been ordered reproduced.

[37]

It should be noted that one of the issues Mr. Pedersen and Mr. Serrano
indicate they wish to raise concerns the trial judges refusal to compel
disclosure of the name of the police officer who provided the lead investigator
with information from the confidential source. That request was made during
Voir
Dire
No. 1 and renewed later in the trial:  see, e.g., Oral Reasons
for Judgment on
Voir Dire
No. 5  Right to Counsel and Abuse of
Process, Scott Everett Pedersen (May 9, 2011) at paras. 67  71. If this disclosure
point is pursued, then that ruling and any others in which the trial judge
dealt with this issue should be included in the material filed on the appeal.

Issues Relating to Mr. Pedersens
Statements

[38]

The trial judge conducted a
voir dire
to determine the
voluntariness of three statements made by Mr. Pedersen. The first
statement was made at the time of and shortly after his arrest. The second
statement was made during a 45 minute interview that took place on
March 7, 2010, while Mr. Pedersen was in custody in Port Hardy. The
third statement was an interview that lasted approximately three and one-half
hours. That interview took place at the Vancouver Island Regional Correctional
Centre after Mr. Pedersen had been remanded into custody, and after he had
retained counsel. The trial judge was satisfied beyond a reasonable doubt that
all of those statements were voluntary:  Oral Reasons for Judgment on
Voir
Dire
No. 2  Statements of Scott Everett Pedersen (March 31,
2011).

[39]

Subsequent to the ruling given by the trial judge on
Voir Dire
No. 2, Mr. Pedersen applied to the trial judge for exclusion of his
statements and a judicial stay of proceedings on the basis of abuse of process.
A further
voir dire
was conducted at which two witnesses were called. However,
in adjudicating the issues raised by Mr. Pedersen, the judge took into
consideration evidence that had been presented on other
voir dires
. The judge
dismissed Mr. Pedersens application:  Oral Reasons for Judgment on
Voir
Dire
No. 5  Right to Counsel and Abuse of Process, Scott Everett
Pedersen (May 9, 2011).

[40]

Mr. Pedersen seeks to argue on appeal that the police violated his
rights by interviewing him at the Vancouver Island Regional Correctional Centre
without first notifying his counsel and in the absence of his counsel. He also
seeks to argue that the police improperly attempted to persuade him to become
an informer.

[41]

In rejecting those submissions, the trial judge found as a fact that
Mr. Pedersen understood his right to counsel and his right to silence, and
had no difficulty in exercising his right to silence. She further held, having
regard to
R. v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310,
R. v.
McCrimmon
, 2010 SCC 36, [2010] 2 S.C.R. 402, and
R. v. Ashmore
, 2011
BCCA 18, 267 C.C.C. (3d) 108, leave refd [2012] 1 S.C.R. v, that there had
been no violation of Mr. Pedersens rights. Last, the judge was not
satisfied that Mr. Pedersen had proven, on a balance of probabilities,
that the police attempted to recruit him as an informer.

[42]

In my view, Mr. Pedersen has failed to demonstrate his proposed
arguments have any prospect of success. Given that a trial judges findings of
fact are entitled to considerable deference on appealthe standard of review is
palpable and overriding errorit is not sufficient simply to assert error in
the abstract. In this regard, I note that Mr. Pedersen has not suggested
there was no evidence to support the judges findings.

[43]

As for the alleged breach of Mr. Pedersens rights, the trial
judges decision is in accord with the authorities upon which she relied. I see
no prospect that a division of this Court would hold otherwise.

[44]

In the result, I do not authorize the ordering of those portions of the
record that relate only to raising the issues I have just discussed.

The Post-Arrest Press
Conference

[45]

Approximately one week after Mr. Pedersen and Mr. Serrano were
arrested and charged the police conducted a press conference. Senior law
enforcement and military officers addressed the media, as did the provincial
Solicitor General. At trial, Mr. Pedersen sought a stay of proceedings on
the basis this conference amounted to a contempt of court and prejudiced his right
to a fair trial. The trial judge dismissed that application:  Oral Reasons for
Judgment on
Voir Dire
No. 5  Right to Counsel and Abuse of
Process, Scott Everett Pedersen (May 9, 2011). However, during jury
selection, she conducted a challenge for cause hearing at which prospective
jurors were asked the following question:

Can you judge this case fairly
based soley on the evidence presented in court, despite anything you have read,
seen, or heard outside court in the media, including radio, television,
newspapers, and the internet, even if what you have read, seen, or heard came
from high ranking government officials and police officers?

[46]

Mr. Pedersen describes what occurred as a trophy press
conference. He seeks to argue that the conduct of those who participated in
the conference was unacceptable and warrants judicial disapprobation. The
Crowns position is it could never be said that this press conference, which
took place more than a year before the jury was empanelled, warranted a remedy
as drastic as a stay of proceedings. It further says that any possible
prejudice was appropriately dealt with by the challenge for cause procedure.

[47]

I find it unnecessary to determine whether this issue independently reaches
the threshold of an arguable ground. I say that because:  (a) the evidence
relating to the press conference was tendered during
Voir Dire
No. 1,
the record of which I have already found should be produced; and (b) I
have already found the ruling on
Voir Dire
No. 5 should be produced.
As a result, what is necessary to advance this ground will be before the Court
in any event.

Disposition

[48]

In the result, I order:

(a)           the time for the filing
of Mr. Serranos amended notice of appeal be extended to October 24,
2012;

(b)           the appointment of
counsel for Mr. Pedersen to conduct his conviction appeal, counsels fees
to be paid in accordance with the prevailing legal-aid tariff;

(c)           the appointment of counsel
for Mr. Serrano to conduct his conviction appeal, counsels fees to be paid
in accordance with the prevailing legal-aid tariff;

(d)           that counsel for
Mr. Pedersen and Mr. Serrano are authorized to obtain, file, and
serve, a common transcript and appeal book, containing:

(i)         the complete evidentiary record
of
Voir Dire
No. 1 (i.e., the arrest of the appellants and the
searches of the Huntress);

(ii)        Oral Reasons for Judgment on
Voir
Dire
No. 1 (March 10, 2011);

(iii)       Oral Reasons for Judgment,
Voir
Dire
No. 1  Section 24(2) Hearing (May 9, 2011);

(iv)       Oral Reasons for Judgment on
Voir
Dire
No. 5  Right to Counsel and Abuse of Process, Scott Everett Pedersen
(May 9, 2011), and any other rulings in which the trial judge affirmed her
decision refusing to order disclosure of the name of the police officer who
provided information obtained from the confidential source; and

(v)        the complete record of the
trial before the jury, including the agreed upon challenge for cause question, Oral
Reasons re
Voir Dire
No. 9 (Evidence of Corporal Calibaba) (June 22,
2011), and the written charge to the jury; and

(e)          that
for the purpose of determining the timelines for these appeals under the
Pilot
Project Regarding Criminal Conviction/Acquittal Appeals
Practice Directive,
the date these reasons are released is to be treated as the date on which
Mr. Pedersen and Mr. Serrano filed their respective notices of
appeal.

[49]

If counsel for Mr. Pedersen and Mr. Serrano are of the view
that additional parts of the record are needed to advance the grounds of appeal
I have found to be arguable, then they are at liberty to order those, provided
they obtain the prior written approval of Crown counsel. In the event such
approval is not given, arrangements can be made through the registry to have
this matter brought back before me. Such arrangements can also be made if any
counsel considers further case-management would assist in moving this matter
forward for hearing.

The
Honourable Mr. Justice Frankel


