



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Verma
,









2019 BCCA 14




Date: 20190131

Docket: CA45742

Between:

Regina

Respondent

And

Pradeep Kumar Verma

Applicant

Corrected
Judgment:  The text of the judgment was corrected in the Summary,
the heading above paragraph 44 and at paragraphs 4(g), 14, 20, 26, 30, 47 and 54
on August 8, 2019.




Before:



The Honourable Madam Justice MacKenzie

(In Chambers)




On appeal from:  An
order of the Supreme Court of British Columbia, dated
November 23, 2018 (
R. v. Verma
, 2018 BCSC 2311,
Vancouver Docket 27011‑7).

Oral Reasons for Judgment




The Applicant, appearing in person:



P.K. Verma

(L. Keallen, Interpreter)





Counsel for the Respondent:



E.A. Campbell





Place and Date of Hearing:



Vancouver, British Columbia

January 29, 2019





Place and Date of Judgment:



Vancouver, British Columbia

January 31, 2019








Summary:

The applicant brought on
numerous applications related or preliminary to his application for leave to
appeal, pursuant to s. 839 of the Criminal Code, an order dismissing
his summary conviction appeal from convictions on two counts of uttering
threats. Held: For a variety of reasons, including their lack of merit, or
the Courts lack of jurisdiction to grant the orders sought, all the
applications stand dismissed.

[1]

MACKENZIE J.A.
: Mr. Verma brought on many
applications for hearing in Chambers on January 29, 2019. While he emphasized
certain applications, he was clear that he did not withdraw any of those filed.
I reserved until today my decision on those and other applications brought just
that morning.

[2]

Some of the applications are related, or preliminary, to Mr. Vermas
substantive application for leave to appeal pursuant to s. 839
of the
Criminal Code,
R.S.C. 1985, c. C‑46,

the
order of Justice Brundrett dismissing the summary conviction appeal from
convictions on two counts of uttering threats against an employee of the Office of the Public Guardian and Trustee (the PGT),
contrary to s. 264.1(1) of the
Criminal Code.
Mr. Verma

was convicted of these counts on September 23, 2016 by Judge Bahen
of the Provincial Court. Justice Brundretts reasons of November 23, 2018
are indexed as 2018 BCSC 2311. The actual application for leave to
appeal pursuant to s. 839 was not heard on January 29. The determination
of the preliminary applications come first.

[3]

The following list of these preliminary applications is derived from the
respondent Crowns written argument, which has been of great assistance in
identifying and consolidating the applications. On my review, this list is
accurate as to the relief sought, with the addition of further applications
filed on January 22 and 25, 2019 that I will describe below.

[4]

The applications are for the following orders:

a)       The Crown bear the costs of
the transcripts and appeal books;

b)
Amicus curiae
be appointed;

c)
Amicus curiae
be directed to submit a report on the merits of this appeal (CA45742) and
an appeal or re‑opening of
R. v. Verma
, 2014 BCCA 157
(Levine J.A. in Chambers), the dismissal of an application for
leave to appeal the dismissal of a summary conviction appeal from a 2012 conviction
for threatening;

d)       Directing the PGT to
advance funds from the estate of Tripta Verma (the applicants mother)
and Pradeep K. Verma;

e)       Adding the PGT and
Tripta Verma as parties to this appeal;

f)        Re‑opening the leave to appeal
application dismissed by Levine J.A. in
R. v. Verma
, 2014 BCCA 157
(in Chambers);

g)       Re‑opening two civil cases
involving the applicant and the PGT (
Verma v. British Columbia
(Ministry of Health)
,

VA S082438 and
Verma v. HMTQ
, CA36458);

h)       Removing the PGT as
the committee of the applicants estate;

i)        A prohibition against the
BC Prosecution Service bringing criminal prosecutions against Tripta Verma
or Pradeep Verma without special leave of the court and
various orders respecting steps to follow if any prosecution is brought; and

j)        A
direction to the BC Prosecution Service to enter a stay of
prosecution respecting all criminal actions against Pradeep Verma
since 2000 and a direction to the PGT to calculate award estimations
for all arrests and detentions of Pradeep Verma.

[5]

Mr. Verma submitted his leave to appeal application becomes moot if
the Court focused on the granting of what he characterizes as criminal immunity
in i) and j) above, whereby the Court is without jurisdiction
to impose penal sanctions, and has the ability to direct the Prosecution Service
to stay all criminal actions against him since 2000. He made lengthy
submissions on these issues in particular.

[6]

Mr. Verma began his submissions with an application that I recuse
myself based on a reasonable apprehension of bias. He framed his application
this way:

Due to a reasonable likelihood or a perception of a
reasonable apprehension of bias that the presiding justice might be guided by
his prior ruling on this same relief[,] Id like the Registry to insure [
sic
]
that my docket is
not
placed before a justice who has heard [and] denied
these reliefs to me.

[Emphasis in original.]

[7]

Mr. Verma said that if the sole applications I determined were to issue
mandamus
against the PGT, or to make an order appointing
amicus
to
make such an application
,
he would have no objection to my hearing them.
He requested the Crown not be heard as the appropriate party was the PGT. He
wanted to ensure the Crown lawyer did not oppose the Courts discretion to
appoint an
amicus
as is standard court procedure where the person is under
a disability as in the case at bar.

[8]

If I were not inclined to grant these applications (for
mandamus
,
as I understood it, or
amicus
to apply for
mandamus
),
then he said he must insist we adjourn to ensure the appointment of
amicus
to address the jurisdictional question of issuing
mandamus
in
litigation that began in 2007, and requires the issuance of
mandamus.

[9]

Mr. Verma maintained that
amicus
is supposed to guide
or make submissions to this Court on the question of granting
mandamus
so
that there is a lawyer to oppose the submissions of Crown counsel. His
submissions, he said, have been ignored in the past, creating a breach of
fairness.

[10]

Going further, he submitted
mandamus
could be wrongfully
denied if the Crown were heard, as the Crown is guilty of subverting justice
by opposing the appointment of
amicus
and the issuance of
mandamus.

[11]

Mr. Verma contended he would have no choice but to seek an
adjournment before me to make an application for the removal of any Crown counsel
on this matter, and the appointment of an expert lawyer to make the
serious application of the removal of Crown counsel.

[12]

Mr. Verma submitted the Crown had no standing in the application
for
mandamus
to issue against the PGT. The layers of Mr. Vermas
submissions spiralled deeper and deeper.

[13]

In the event the Crown opposed the application for
mandamus
against the PGT and I condoned that obstruction of justice, Mr. Verma
asked that I read a ten‑page document entitled, Motion seeking Foreclosure of right of B.C.
Prosecution Services to be heard. This motion was apparently required
to ultimately prevent offences via use of court orders as murder weapons.

[14]

I dismissed Mr. Vermas application for the appointment of
amicus
to make an application on his behalf for
mandamus,
and also for a month‑long
adjournment to make the
mandamus
application against the PGT with
the possible help of a lay person  an advocate for the mentally ill.
I advised Mr. Verma that it did not matter who made the application
because I had no jurisdiction to order that
mandamus
be issued
against the PGT. An adjournment would therefore be pointless. I denied the
adjournment.

[15]

Mr. Verma then applied for judge recusal based on
adjudicative fraud, based in turn on a total lack of ultimate remedy (against
the PGT, I understand). He said there was no remedy open to him and his mother,
although for seven years he has been made to live without income. He and
his mother are both denied rehabilitative assistance, which led to his
threatening in this case of the PGT employee. He said that jurisdiction
must be created or enacted by this Court to fashion a remedy, or the Court
must rely on its own remedy.

[16]

I did not allow either of these applications. This is a criminal matter
and the Courts jurisdiction derives from the
Criminal Code
. There
is no jurisdiction to issue
mandamus
against the PGT in this matter
.
In
R. v. Verma,
2017 BCCA 436 at para. 14, Justice Saunders
for a division of this Court also said that the issue of
mandamus
is
not one that comes within s. 839 [of the
Criminal Code
].

[17]

I understand Mr. Verma has long‑standing conflict with the
PGT, which was appointed as committee of his estate pursuant to a certificate
of incapability issued under the
Patients Property Act,
R.S.B.C. 1996,
c. 349. Mr. Verma says the PGT was also appointed as committee of his
mothers estate in January 2018. But this Court has no jurisdiction
to embark on civil matters in the context of a criminal matter.

[18]

I dismissed Mr. Vermas application that I recuse myself, finding
the test for reasonable apprehension of bias set out in
Yukon Francophone School Board,
Education Area #23 v. Yukon (Attorney General)
, 2015 SCC 25,
was not met. The test from
Yukon
is as follows:

[20]      The test for a reasonable apprehension of bias is
undisputed and was first articulated by this Court as follows:

. . . what would an informed person, viewing
the matter realistically and practically  and having thought the
matter through  conclude. Would he think that it is more likely than
not that [the decision‑maker], whether consciously or unconsciously,
would not decide fairly. [Citation omitted.]

(
Committee for Justice and Liberty v. National Energy Board
,
[1978] 1 S.C.R. 369, at p. 394, per de Grandpré J.
(dissenting))

[21]      This test  what would a reasonable,
informed person think  has consistently been endorsed and clarified
by this Court: e.g.,
Wewaykum Indian Band v. Canada
, [2003] 2 S.C.R. 259,
at para. 60;
C.U.P.E. v. Ontario

(Minister of Labour),
[2003] 1 S.C.R. 539,
at para. 199;
Miglin v. Miglin
, [2003] 1 S.C.R. 303,
at para. 26;
Baker v. Canada (Minister of Citizenship
and Immigration)
, [1999] 2 S.C.R. 817, at para. 46;
R. v. S. (R.D.),
[1997] 3 S.C.R. 484, at para. 11,
per Major J., at para. 31, per LHeureux‑Dubé and
McLachlin JJ., at para. 111, per Cory J.;
Ruffo v. Conseil de la magistrature,
[1995] 4 S.C.R. 267, at para. 45;
R. v. Lippé
,
[1991] 2 S.C.R. 114, at p. 143;
Valente v. The Queen
,
[1985] 2 S.C.R. 673, at p. 684.

[22]      The objective of the test is to ensure not only the
reality, but the
appearance
of a fair adjudicative process. The issue of
bias is thus inextricably linked to the need for impartiality. In
Valente
,
Le Dain J. connected the dots from an absence of bias to
impartiality, concluding [i]mpartiality refers to a state of mind or attitude
of the tribunal in relation to the issues and the parties in a particular case
and connotes absence of bias, actual or perceived: p. 685. Impartiality
and the absence of the bias have developed as both legal and ethical
requirements. Judges are required  and expected  to approach
every case with impartiality and an open mind: see
S. (R.D.)
, at para. 49,
per LHeureux‑Dubé and McLachlin JJ.

[23]      In
Wewaykum,
this Court confirmed the
requirement of impartial adjudication for maintaining public confidence in the
ability of a judge to be genuinely open:

. . . public
confidence in our legal system is rooted in the fundamental belief that those
who adjudicate in law must always do so without bias or prejudice and must be
perceived to do so.

The essence of impartiality lies in the
requirement of the judge to approach the case to be adjudicated with an open
mind.
[Emphasis added in
Yukon
; paras. 57‑58.]

[24]      Or, as Jeremy Webber observed, impartiality
is a cardinal virtue in a judge. For adjudication to be accepted, litigants
must have confidence that the judge is not influenced by irrelevant
considerations to favour one side or the other: The Limits to Judges Free
Speech: A Comment on the Report of the Committee of Investigation into the
Conduct of the Hon. Mr Justice Berger (1984), 29 McGill L.J. 369,
at p. 389.

[25]      Because there is a strong presumption of judicial
impartiality that is not easily displaced (
Cojocaru v. British
Columbia Womens Hospital and Health Centre,
[2013] 2 S.C.R. 357,
at para. 22), the test for a reasonable apprehension of bias requires a
real likelihood or probability of bias and that a judges individual comments
during a trial not be seen in isolation: see
Arsenault‑Cameron v. Prince Edward Island
,
[1999] 3 S.C.R. 851, at para. 2;
S. (R.D.)
,
at para. 134, per Cory J.

[26]      The inquiry into whether a decision‑makers
conduct creates a reasonable apprehension of bias, as a result, is inherently
contextual and fact‑specific, and there is a correspondingly high burden
of proving the claim on the party alleging bias: see
Wewaykum,
at para. 77;
S. (R.D.),
at para. 114, per Cory J. As Cory J.
observed in
S. (R.D.):

. . . allegations of perceived judicial bias
will generally not succeed unless the impugned conduct,
taken in context
,
truly demonstrates a sound basis for perceiving that a particular determination
has been made on the basis of prejudice or generalizations. One overriding
principle that arises from these cases is that the impugned comments or other
conduct must not be looked at in isolation. Rather
it must be considered in
the context of the circumstances, and in light of the whole proceeding
. [Emphasis
added in
Yukon
; para. 141.]

[19]

I concluded there was no basis for me to recuse myself on the grounds
alleged. This is a small Court and Mr. Verma has appeared many times
before many of its justices. He has appeared before a variety of justices in
Chambers because he brings so many applications. It is inevitable that Mr. Verma
would find himself before a justice who has heard one of his many applications before.

[20]

In Mr. Vermas case, I have made no previous findings of credibility
or fact to taint my reasoning in this matter. I observed that the issues raised
questions of jurisdiction and law. I said on January 29 that I was
confident of my ability to entertain his applications without being improperly
influenced.

[21]

I concluded a reasonable, informed person, viewing the matter
realistically and practically  and having thought the matter through  would
not think it more likely than not that, whether consciously or unconsciously, I
would not decide this matter fairly. Accordingly, I dismissed the application
for recusal.

[22]

Mr. Verma did not wish to withdraw any of the applications filed,
so we proceeded. He referred me to the ten‑page document I described
earlier. I read it, although it was complicated and difficult to follow. He used
the document to make his submissions on the preliminary applications filed, as
well as other materials.

[23]

The Crown opposed all the orders listed above and said, (and I agree),
this Court has no jurisdiction in the circumstances to make the orders sought
in g) to j) and/or they are wholly unrelated to, and
inappropriate for this leave application.

Background

[24]

On September 23, 2016, Mr. Verma was convicted of two counts
of uttering a threat to cause death or bodily harm to Kimberly Azyan,
contrary to s. 264.1(1) of the
Criminal Code
(
R. v. Verma
(23 September 2016), Vancouver 19901‑4‑C (B.C.P.C.)).
Ms. Azyan is the director of adult services for the PGT.

[25]

The Crowns useful summary of the background to these applications
follows:

4.         Kimberly Azyan is the director of adult
services for the office of the PGT. The PGT was appointed as the committee of
the applicants estate in 2001 and the relationship has been characterized by
conflict because the applicant does not believe he is fairly treated by the
PGT. [RFJ  Bahen P.C.J., para. 4,
R. v. Verma
,
2014 BCCA 157 (Chambers), para. 3 (tab 11)]

5.         After the Crown closed its case, the applicant did
not call any evidence. As stated by Bahen P.C.J.,

The accused expressed the view that the trial process was unfair,
as he had not had counsel appointed to act on his behalf. He referred to his
view that the defence of necessity could have been established at trial, but
the opportunity to do so was denied to him, by the refusal of the court to
appoint defence counsel. [RFJ  Bahen P.C.J., para. 18 (tab 2)]

6.         An
amicus

curiae
had been
appointed to assist the court at trial because of conflicts that arose between
the applicant and several lawyers the Legal Services Society appointed to act
for him. [
R. v. Verma
, 2016 BCCA 307, para. 5 (tab 5)]
Amicus curiae
provided submissions on what Bahen P.C.J.
described as the principal issue, whether the applicant formed the intent to
threaten. [RFJ  Bahen P.C.J., paras. 7, 23, 27‑28
(tab 2)]

7.         Bahen P.C.J. noted that the applicant raised,
on his own behalf, issues including legal justifications for his actions, self‑defence,
and the defence of necessity. However, there was no air of reality to any of
those issues. [RFJ  Bahen P.C.J., paras. 8, 20]

8.         The same day as his conviction, September 23, 2016,
the applicant filed an appeal of that conviction in Supreme Court. [
R. v. Verma
,
2016 BCCA 498, para. 14 (tab 6)]

9.         The applicant made a number of applications
related to his summary conviction appeal. The relevant ones were dismissed by Mr. Justice N. Smith
on January 23, 2017. [
R. v. Verma
, 2017 BCSC 652
(tab 3)] Among other things, the applicant sought: (1) the
appeal proceed by way of trial
de novo
; (2) court‑appointed counsel;
and (3) the Crown pay for the transcripts from the Provincial Court
trial. The applicant apparently wanted a trial
de novo
to call
witnesses in support of a defence of necessity (para. 9). Justice Smith
considered the merits of the appeal and the applicants desire to advance a
defence of necessity. Smith J. also considered decisions by Justices Silverman, Fisher and Levine
regarding an earlier conviction the applicant received for uttering threats
with respect to Ms. Azyan.

10.       Bahen P.C.J. also considered the relevance of
the applicants earlier conviction for threats regarding the same complainant.
As he stated, [t]he principal issue at this trial is whether the accused
formed the intent to threaten in September 2015 and March 2016, when
he wrote and conveyed words that were quotes or closely similar references to
words he had written in 2010 (para. 7).

11.       The applicants previous conviction for uttering
threats was imposed on April 26, 2012 by Howard P.C.J. In
that case, the threat was written in a document that was filed by the applicant
in the Court of Appeal in December 2010. In this case, the threat in
September 2015 was contained in a new document written by the applicant
and sent by email to the PGT. The second threat, in March 2016, was
contained in a different document written by the applicant and emailed by him
to a social worker who had been involved in assisting the applicant. [RFJ  Bahen P.C.J.,
paras. 12‑15] As described by Bahen P.C.J., the recent two threats
were certainly closely similar to the words used in the appeal court filing of
2010 (para. 27).

12.       Given the similarity of the wording of the threats
with respect to the same complainant and the applicants identical defence of
necessity or some similar legal justification, Smith J. found the
decisions relating to the applicants appeal of his 2012 conviction to be
relevant. The next three paragraphs will summarize that earlier appeal from the
conviction imposed by Howard P.C.J. on April 26, 2012.

13.       On November 21, 2012, Mr. Justice Silverman
dismissed an application for
amicus curiae
with respect to the
applicants summary conviction appeal of his 2012 conviction. [
R. v. Verma
(21 November 2012), Vancouver file 26179 (B.C.S.C.) (tab 9)] Silverman J.
considered the applicants defence of necessity and his main ground of appeal  that
Howard P.C.J. erred in rejecting the defence. Silverman J. concluded
there was no merit to the defence and, accordingly, to the appeal (paras. 1‑8).

14.       On March 8, 2013, Madam Justice Fisher
[as she then was] dismissed further applications for counsel or an
amicus curiae
,
and various other orders. [
R. v. Verma
, 2013 BCSC 782
(tab 10)] In doing so, she noted that neither the defence of necessity nor
the defence of duress were available to the applicant (para. 26). She
dismissed the appeal for failure to file transcripts and appeal books.

15.       On April 17, 2014, Madam Justice Levine
dismissed an application for leave to appeal the decision of Fisher J. [
R. v. Verma
,
2014 BCCA 157 (Chambers) (tab 11)] Levine J.A. referenced
that Chiasson J.A. had earlier refused an application for counsel or
amicus
curiae
with respect to the leave application (para. 11). Levine J.A.
also agreed with both Justices Silverman and Fisher that there was no possibility
of success on an appeal on the defence of necessity (para. 12).

16.       Despite his earlier lack of success with the
defence of necessity in nearly identical circumstances, the applicant asserted
that defence (and variations of it) before Bahen P.C.J. with respect to
the case in issue (RFJ  Bahen P.C.J., para. 8). Before Smith J.,
he sought a trial
de novo
and court appointed counsel in order to
call witnesses to support a defence of necessity (
Verma
, 2017 BCSC 652,
para. 9 (tab 3)). Smith J. noted the earlier rejections by
Justices Silverman, Fisher and Levine in similar
circumstances and similarly concluded there was no merit to warrant the
applications sought (paras. 14‑19, 23). The applicants attempt
to appeal Smith J.s order was rejected as this Court did not have
jurisdiction while the summary conviction appeal remained outstanding. [
R. v. Verma
,
2017 BCCA 436 (tab 8)]

17.       On November 23, 2018,
the applicants summary conviction appeal was dismissed by Mr. Justice Brundrett.
[
R. v. Verma
, 2018 BCSC 2311 (tab 4)] At the
time, the applicant had also renewed his application for counsel under s. 684
of the
Code
and applied for the appointment of
amicus curiae
.
Brundrett J. dismissed both applications, having found no grounds of
appeal with any reasonable possibility of success and no basis for the
appointment of counsel in the interests of justice (paras. 11‑16).
Brundrett J. then dismissed the appeal for want of prosecution as
transcripts of the trial had not been filed for a year and a half
(paras. 19‑20, 24). On November 27, 2018, the applicant
applied for leave to appeal from the order of Brundrett J.

[26]

I add here that the reasons of Justice Fitch for the Court in
R. v. Verma
,
2016 BCCA 498 also set out the background of Mr. Vermas
litigation concerning his previous convictions for uttering threats, and attempted
interim applications during the summary conviction appeal of those convictions.

The Preliminary Applications

[27]

While Mr. Verma emphasized applications i) and j) above,
as he did not withdraw any of his applications, I address them all to the
extent I understand them.

a) The Crown bear the costs of the transcripts and appeal books
(Notice filed Nov. 27, 2018, item #1)

[28]

If Mr. Verma is seeking this order as to the trial proceedings,
it would be inappropriate in that a leave application is with respect to an
appeal from the summary conviction appeal decision, and not a second appeal
from the trial:
R. v. Rio Tinto Alcan Inc.,
2017 BCCA 440
(in Chambers). Further, as there is no appointment of counsel under
s. 684, this Court does not have jurisdiction to make this order. As I
understand it, there was documentation specifically stating Mr. Verma was
not applying under s. 684 of the
Criminal Code.

[29]

This Court may not fund the production of transcripts without the
appointment of counsel:
R. v. McDiarmid
, 2015 YKCA 19
at para. 17. Mr. Verma has previously been denied, on the basis of
McDiarmid
,
an order that the Crown pay for transcripts. During his attempt to appeal the
order of Justice N. Smith prior to the conclusion of his summary conviction appeal,
Justice Bennett said in
R. v. Verma
, 2017 BCCA 273
(in Chambers):

[14]      Indeed, this Court may
not fund the production of transcripts without the appointment of
counsel:
R. v. McDiarmid
, 2015 YKCA 19 at para. 17.
Mr. Justice Donald denied this type of limited retainer application,
concluding that appointing counsel for the sole purpose of ordering transcripts
would compromise counsels professional judgment, and would serve a purpose not
directly covered by s. 684 of the
Code: R. v. Kim
,
2002 BCCA 133, leave to appeal to SCC refused, 29152 (October 3, 2002)
at para. 9. I would not grant these orders.

[30]

In any event, an order with respect to the proceedings on the summary conviction appeal
is unnecessary because the leave application can be determined solely on
the reasons for judgment of the court below.

[31]

I deny this application.

b)
Amicus curiae
be appointed and c)
Amicus
be
directed

to prepare a report on the merits of the appeal and an appeal
or re‑opening of
R. v. Verma
, 2014 BCCA 157
(Levine J.A. in Chambers), that dismissed an application for leave to
appeal the dismissal of a summary conviction appeal from the 2012 convictions
for threatening (Notice filed Nov. 27, 2018, items #2, #3,
handwritten notice of appeal filed Nov. 27, 2018, Dec. 4, 2018
requisition, item #2)

[32]

In
Ontario v. Criminal Lawyers Association of Ontario
,
2013 SCC 43 at para. 44, the Court confirmed that courts have
inherent or implied jurisdiction to appoint
amici curiae
where it
is necessary to permit a particular proceeding to be successfully and justly
adjudicated. Justice Fish, although dissenting in the result, explained
the source of statutory courts jurisdiction to appoint
amici curiae
:

[112]    In the case of statutory
courts, the power to appoint an
amicus
derives from the courts
authority to control its own process in order to administer justice fully and
effectively. Their authority to appoint
amici
is necessarily implied in
the power to function as a court of law:
R. v. 974649 Ontario Inc.
,
2001 SCC 81, [2001] 3 S.C.R. 575, at paras. 70‑71;
[
R. v. Cunningham
, 2010 SCC 10] at para. 19.

[33]

Two principles guide the courts in determining whether to appoint
amicus
curiae
: (a) the appointment must be essential to the discharge of
the judicial function; and (b) the court must be wary of making
an appointment that blurs the line between the role of friend of the court and
the role of defence counsel. There is a difference between
amicus curiae
and other counsel:
Ontario v. Criminal Lawyers Association of
Ontario
;
R. v. Podolski
, 2017 BCCA 169 at para. 13.
(I understand leave to appeal was dismissed by the Supreme Court of Canada
on another issue today.)

[34]

Significantly in this case, the court may decline to exercise its
jurisdiction to appoint an
amicus curiae
if the appeal is bound to
fail:
Fairfield v. Canada (Ministry of Citizenship and Immigration)
,
2009 BCCA 391 at para. 12.

[35]

As the Crown submits, most of Mr. Vermas list of 26 proposed grounds
of appeal are irrelevant to what occurred in the court below. This leave
application is straightforward because it concerns only two decisions in
the court below that resulted in the dismissal of the summary conviction appeal: 1) Mr. Verma
was denied counsel or
amicus
and, accordingly, transcripts and
appeal books; and 2) Mr. Vermas appeal was dismissed for want of prosecution
when he did not file those transcripts and appeal books. These decisions
were reasonable in the circumstances.

[36]

Mr. Verma sought before me to renew his application for the
appointment of counsel to speak to the leave application because in light
of the constitutional exemptions (referred to at page 3 of his ten‑page
document to which I referred earlier), this now concerns a class proceeding.
Therefore, the PGT needs to be added as a party. Mr. Verma submits the
relief sought in these applications in general must be reviewed by the Court in
the context of this being a class action related to constitutional exemptions
for mentally ill persons. It has ramifications beyond the instant case,
says Mr. Verma.

[37]

In unpublished oral reasons for judgment indexed as
R. v. Verma,
2017 BCSC 652 at para. 14, N. Smith J. cited
the test in
R. v. Silcoff,
2012 BCCA 463 (in Chambers)
at paras. 23‑26 for the appointment of counsel under s. 684 of
the
Criminal Code.
As he observed, it is not in the interests of
justice to appoint counsel where an appeal has no merit.

[38]

As the Crown pointed out in its summary of the background to this
matter, Mr. Verma sought to advance a defence of necessity or variations
of it, but the trial judge found that defence to have no air of reality. Judges
in this Court found it without merit in similar circumstances. As the Crown
says, it was appropriate for N. Smith J. to conclude there was no
merit to the proposed appeal and it was similarly so for Brundrett J. An
appointment of
amicus
was not justified where there was no reasonable
possibility the appeal would succeed. It was also appropriate to deny counsel again
under s. 684 of the
Criminal Code
where the circumstances had
not changed. Thus, the dismissal of the summary conviction appeal for
want of prosecution followed when transcripts and appeal books were not
filed.

[39]

Because the proposed appeal is without merit, I dismiss Mr. Vermas
application for an
amicus curiae
. The issues on the proposed application
for leave to appeal are not exceptional and this Court does not require the
assistance of an
amicus
.

d) Directing the PGT to advance funds from the estate of Tripta Verma
and Pradeep K. Verma (Dec. 4, 2018 requisition, item #6)

[40]

Making such an order would be an inappropriate interference of the PGTs
role and purpose. Further, a single justice of this Court does not have
jurisdiction to direct the PGT on how to manage funds of the parties it
represents.

e) Adding the PGT and Tripta Verma as parties to this appeal
(Dec. 4, 2018 requisition, item #3)

[41]

Even if a single justice in chambers had the jurisdiction to add parties
to an appeal, there is no basis to do so here. This matter concerns the summary
conviction appeal of Mr. Vermas convictions for uttering threats.
There is no justification to add the PGT or Mr. Vermas mother as
parties to the application for leave to appeal in a criminal matter.

f) Re‑opening the leave to appeal application dismissed by
Levine J.A. in
R. v. Verma
, 2014 BCCA 157 (in Chambers)
(Dec. 4, 2018 requisition, items #4 and 5)

[42]

Justice Fitch addressed this very application in
R. v. Verma
,
2016 BCCA 498:

[21]

The
jurisdiction to appeal to this Court from a decision of a summary conviction
appeal court is set out in s. 839 of the
Criminal Code
,
R.S.C. 1985 c. C‑46 (
Code
). Section 839 authorizes
an appeal on a question of law alone if leave to appeal is granted. Section 839
does not provide for a review of or appeal from a denial of leave to appeal.
This Court has repeatedly held that it does not have jurisdiction to review a
decision denying leave to appeal and that provincial legislation cannot bestow
jurisdiction in a matter governed by the
Code
:
R. v. Gelz
(1990),
55 C.C.C. (3d) 425 (B.C.C.A.);
R. v. Stojanovski
,
2002 BCCA 679
; R. v. Wadhams
, 2014 BCCA 83;
R. v. Staetter
,
2014 BCCA 294; and
R. v. Louis
, 2015 BCCA 225.

[43]

Mr. Vermas application to re‑open the leave to appeal
application, dismissed by Levine J.A., is outside this Courts jurisdiction.
This Court is without jurisdiction to re‑open an appeal already determined
on its merits and for which an order has been entered:
R. v. Cliff
,
2018 BCCA 301 at paras. 4, 10‑11.

Further,
there is no basis for this Court to re‑open an earlier leave application.

g) Re‑opening two civil cases involving the applicant
and the PGT (
Verma v. British Columbia (Ministry of Health)
,
VA S082438 and
Verma v. HMTQ
, CA36458) (Dec. 4, 2018 requisition, item #3)

[44]

I have no jurisdiction to re‑open two civil cases wholly
unrelated to the criminal appeal matter before this Court. The Court is
addressing a criminal matter in this appeal and has no jurisdiction in this
context to re‑open civil cases.

h) Removing the PGT as the committee of the applicants estate
(Dec. 4, 2018 requisition, item #1)

[45]

Again, this application is wholly inappropriate as the appeal is a
criminal matter. The PGT is not a party to this appeal. Although the victim (to
whom the threats were directed) is an employee of the PGT, there is no
jurisdiction for a single justice of this Court to make an order removing the
PGT as the committee of Mr. Vermas estate.

i) A prohibition against the BC Prosecution Service bringing
criminal prosecutions against Tripta Verma or Pradeep Verma without
special leave of the court and various orders respecting steps to follow if any
prosecution is brought (Dec. 21, 2018 notice, item #1)

[46]

It is open to the Court to make orders to protect the court process from
continuing abuse:
R. v. Verma
, 2016 BCCA 498
at para. 29. However, it would be wholly inappropriate here. There is no basis
to say the Crown has conducted itself inappropriately or abused the Courts
process.

j) A direction to the BC Prosecution Service to enter a stay
of prosecution respecting all criminal actions against Pradeep Verma since
2000 and a direction to the PGT to calculate award estimations for all arrests
and detentions of Pradeep Verma (Dec. 21, 2018 notice, item #1)

[47]

A single justice in chambers has no jurisdiction to enter a stay of
prosecution respecting
all
criminal actions. The order sought by Mr. Verma
is inappropriate and unavailable to him. I will not repeat all of Mr. Vermas
lengthy and difficult submissions on the relief he seeks in both i) and j) above.
He relied on the ten‑page document I referred to entitled Motion seeking
Foreclosure of right of B.C. Prosecution Services to be heard, this Court
has no jurisdiction in any event to make such orders.

[48]

Furthermore, as to both i) and j) above, whether
characterized as a constitutional exemption or criminal immunity, Mr. Vermas
emphasis on these two applications to further support his application for
amicus
is misplaced. Mr. Verma wants
amicus
to advocate
his

position
and to say
amicus
at trial did not fulfill his role. But Mr. Verma
misunderstands that the role of
amicus
is to assist the Court.

[49]

As discussed above, an important consideration in whether to appoint
amicus
is whether there is any merit to the proposed appeal. Mr. Verma
focussed his defence at trial on the criminal immunity defence as
referred to by Bahen P.C.J. quoted above. Judge Bahen found no air of
reality to any of Mr. Vermas defences.

[50]

In Mr. Vermas 18‑page reply filed January 25, 2019,
he asserts at para. 35 what he wishes the
amicus
to do:

The applicant would like the court appointed lawyer to argue
that the Court of Appeal sit on the judicial review of the conduct of trial by
Bahen PCJ and quash the conviction for failing to recognize the constitutional
exemptions and by erring in failing to grant the limited criminal immunity.
Review
of the conduct of the Supreme Court judge [is] futile because he never heard
the appeal for want of transcripts
.

[Emphasis in original.]

[51]

I agree with the Crown that this demonstrates the lack of merit to the
leave application and misconstrues the role of
amicus.
It also shows Mr. Verma
wishes this Court to conduct a judicial review of the trial decision as
if it had been an administrative tribunals decision. It appears to be an
attempt to avoid the constraints of s. 839 of the
Criminal Code.
At
para. 63 of the 18‑page reply filed January 25, 2019,
Mr. Verma states:

The jurisdiction to appeal to
Court of Appeal from a decision of a summary conviction appeal court as set out
in s. 839 of the
Criminal Code
, is moot on at least five
grounds, given that the applicants are seeking a judicial review of the conduct
of the trial judge in the provincial court, of the exercise of prosecutorial
direction by the complainant PGT and the [
sic
]

of the exercise of
prosecutorial direction by the British Columbia prosecutorial services all of
whom have done so in a perverse manner and denied fairness, breached
Charter
and perpetrated several other errors.

Mr. Verma asserts jurisdiction in the context of a
judicial review, not under s. 839 of the
Criminal Code
. He
submits this Court has jurisdiction because he is seeking a judicial review
of the conduct of the provincial court judge. He is also seeking a
judicial review of the PGTs exercise of discretion, and of the exercise
of prosecutorial discretion. Such reviews do not fall within this Courts
role in this matter.

[52]

Finally, as to the unmeritorious criminal immunity defence, Mr. Vermas
words (from para. 57 of the 18‑page reply filed January 25, 2019),
in the context of why he says the PGT should be made a party to this case,
bear noting. He says:

given that officials of
the PGT would be exposed to violence that cannot be prosecuted if this
exemption is recognized and given that this is a matter of rights of their
entire clientele the profound interest of the PGT in this question of law is
such that PGT should have applied to be granted a third party status in the
appeal which is not necessary because the PGT is already a party to the action
as a complainant.

As the Crown submits, these are ominous words. They
suggest Mr. Verma would be exempted from charges involving violence
against employees of the PGT. The application for criminal immunity is
utterly without merit, as is the defence of necessity. Thus, again the
appointment of
amicus
is not justified.

[53]

Mr. Verma wishes to complicate this matter to draw in a
consideration of the PGTs conduct and its treatment of him and his
mother, but the Court does not require the assistance of
amicus
based
on the narrow issues before the Court on the leave application. Even
though Mr. Verma has refocussed on issues i) and j), the
application for the appointment of
amicus
is dismissed.

[54]

As mentioned earlier, Mr. Verma made additional applications on
January 22 and 25, 2019. I discern the January 22
application to be for a contempt citation against the Crown for what he
characterizes as five (5) serious unconscionable acts of malice and
fraud on the court. There is no basis at all to these extreme and scandalous
claims, and I will not address them further.

[55]

The January 25 application I referred to is found in the 18‑page reply
to the Crowns submissions. It is for an order that the PGT be required to
submit an affidavit. There is no basis for the Court to make such an order. The
PGT is not a party to this proceeding. In that same reply, Mr. Verma makes
nonsensical allegations of collusion between the Crown, judges and the PGT
for the ulterior agenda of inflicting oppressive tyranny on the Vermas.

[56]

In summary, Mr. Verma is unsuccessful on all of his preliminary applications.
They are all dismissed.

The
Honourable Madam Justice MacKenzie


