charge premiums with respect to certain
types of employees and was entitled to
charge a 10 per cent surcharge on expenses,
Hungry Hill was entitled to payment. Even
if Hungry Hill made misrepresentations
that induced TTM to enter into the agreement, the misrepresentations failed given
the inclusion of a clause in the agreement
which stipulated that neither party made
any representations to the other except as
indicated in the agreement and that any
such representations were not relied on and
were of no effect. Furthermore, Hungry
Hill was not hired based on any misrepresentation as to Beck’s qualifications. Hungry Hill was entitled to 15 per cent interest
on its overdue accounts pursuant to its
invoices. There was no breach of fiduciary
duty or of fundamental terms of the agreement. While one of the principals of Hungry Hill abandoned her duties as project
manager, Hungry Hill continued to provide
the required services. Consequently, it was
entitled to 30 days’ notice of termination of
the contract as stipulated in the agreement.
Hungry Hill never fulfilled the requirements to exercise its options.
Hungry Hill Geological Ltd. v. TTM
Resources Inc., [2012] B.C.J. No. 361,
British Columbia Supreme Court, Smithers, British Columbia J.D. Truscott J.,
February 23, 2012. Digest No. 3147-005
CRIMINAL LAW
SENTENCING – Criminal Code
offences – Offences against person and
reputation – Sexual assault – Particular
sanctions – Sentencing considerations.
Sentencing of James following his
guilty plea to repeated sexual assaults of
Fleury between September 1, 1983 and
August 31, 1985, and of Holt between May
1, 1989 and April 30, 1994. Fleury and
Holt were teenage junior hockey players
who aspired to play professionally. Their
talent was spotted by James, whose job it
was, as a coach and scout, to find, cultivate
and promote hockey talent. James was so
revered by the Canadian hockey commun-
ity that Fleury and Holt, and their fam-
ilies, were thrilled when he noticed them
and took it on himself to manage their
hockey careers. The management of their
hockey careers, starting at the age of 14 in
Fleury’s case, and 15 in Holt’s case, evolved
into the management of most aspects of
their lives, including schooling, accommo-
dation and travelling. James controlled
what would happen with their hopes and
dreams of playing professional hockey. He
had the power to make or break them, and
he told them so. That knowledge made the
sexual assaults possible, and created a
situation in which Fleury and Holt, as
teenagers, away from their families, and
wanting above all else to play professional
hockey, were entirely trapped. The sexual
assaults were repeated and regular, and
continued over a long span of time. On
January 2, 1997, James pleaded guilty and
was sentenced on two counts of repeated
sexual assaults against two other victims.
Those offences were committed from 1984
to 1994. James was sentenced to three and
a half years in prison on each charge, and
the sentences were concurrent to each
other. On February 27, 1998, James
pleaded guilty to one count of indecent
assault on a third victim that happened in
1971. James was sentenced to six months
for that offence, concurrent to the sen-
tence he was then serving. James served
his sentence as required, and completed
his parole in 2000. In 2010, Fleury and
Holt disclosed to police that James had
repeatedly sexually assaulted them at or
about the same time as other sexual
assaults for which James had been sen-
tenced 15 years previously. James was 59
years old, was no longer involved in organ-
ized hockey, and he had not re-offended.
While he was in prison, he had finished a
university degree. James had been diag-
nosed as a homosexual hebephile. Hebe-
philia was described as a sexual attraction
to pubescent and post-pubescent children.
As James was homosexual, his attraction
was to young men from 15 to 25 years old.
When James was incarcerated, he had an
intensive assessment done by a psycholo-
gist, who concluded that while James
expressed remorse, he had little insight
into his offences.
EVIDENCE – Burden and standard
of proof – Standard of proof – Beyond a
reasonable doubt – Witnesses – Cred-
ibility – Children.
Trial of JS, a young person, on charges
of robbery and assault causing bodily
harm in relation to Wilson, who was
deceased. Wilson was 10 years old and in
grade 5. He had been diagnosed with
muscular dystrophy and part of his daily
regimen included walking. On Novem-
ber 1, 2010, he asked his father for per-
mission to walk a new route and left
home at 5:00 pm. He was carrying his
father’s iPhone and used it to call home
to find out what was for dinner. Shortly
after using the phone, he was jumped
from behind by two males, who pushed
him to the ground, stole his iPhone, and
then fled. By chance, Wilson’s step-
mother, Usher, saw the robbery and gave
chase to the assailants in her car. When
she cornered the taller boy, he eventually
tossed the phone back to her. Usher then
returned to Wilson and called the police.
As a result of the robbery, Wilson was
bleeding from the mouth. Two of his
front teeth were chipped. His hands
were scuffed and he had a sore wrist. He
required medical attention for his dam-
aged teeth. Wilson died in September
2011 shortly before the trial was origin-
ally scheduled to begin. Therefore, the
Crown relied on the statements he made
during the investigation to prove its
case. In his first two statements to the
police, Wilson said that he saw a group
of black boys outside a townhouse com-
plex on the first part of his walk. While
he was in eyesight of this group, he used
the iPhone to call home. On the return
portion of his walk, he again passed the
townhouse. He saw two males from the
original group pull their hoodies up and
walk over to him, one tall and one short.
The taller boy body slammed Wilson
from behind and he fell. Both youths
searched his pockets and the taller boy
removed the iPhone from his coat pocket.
The youths then fled. Two days after the
robbery, Wilson and Usher met with
Constable Campbell at lunchtime. When
Usher returned Wilson to school, they
went to the office as a youth was leaving.
Within seconds of seeing this youth,
Wilson identified him as the shorter
youth who had robbed him. He also cor-
rectly identified this youth in two class
photos shown to him by the school prin-
cipal. The youth Wilson identified was
JS. Wilson stated he was “100 per cent
sure” of this identification.
SENTENCING – Criminal Code
offences – Breach of long-term super-
vision order – Particular sanctions –
Sentencing considerations.
Appeal by Ipeelee from the decision dis-
missing his appeal from his sentence for
breaching a long-term supervision order
(LTSO). Appeal by the Crown from a deci-
sion allowing Ladue’s appeal from his sen-
tence for breaching a LTSO. Ipeelee had a
youth record containing approximately
three dozen convictions and an adult rec-
ord containing 24 other convictions. One of
the convictions was for sexual assault caus-
ing bodily harm, the predicate offence to his
designation as a long-term offender. After
concluding that there was a substantial risk
that Ipeelee would re-offend, the judge sen-
tenced him to six years’ imprisonment, to
be followed by a ten-year LTSO. One of the
conditions of Ipeelee’s LTSO was that he
abstain from using alcohol. After he was
released from prison, he was found intoxi-
cated by the police and was charged with
breaching a condition of his LTSO. He was
sentenced to three years’ imprisonment,
less six months of pre-sentence custody at a
1:1 credit rate. The judge held that when
sentencing an offender for breach of an
LTSO, the paramount consideration was
the protection of the public and rehabilita-
tion played only a small role. He noted that
Ipeelee’s Aboriginal status had already been
considered during his sexual assault sen-
tence and concluded that, when protection
of the public was the paramount concern,
an offender’s Aboriginal status was of
“diminished importance”. Ipeelee appealed
his sentence on the grounds that it was
demonstrably unfit, and that the senten-
cing judge did not give adequate considera-
tion to his circumstances as an Aboriginal
offender. Ladue had over 40 convictions.
He was sentenced to three years’ imprison-
ment for breaking and entering and com-
mitting sexual assault. The judge also
imposed a seven-year LTSO. After being
released from prison, Ladue provided urine
samples which returned positive for cocaine
and was charged with breaching a condi-
tion of his LTSO. He was sentenced to a
three-year term of imprisonment, less five
months of pre-sentence custody at a 1.5:1
credit rate. Ladue appealed his sentence on
the grounds that the sentencing judge failed
to adequately consider his circumstances as
an Aboriginal offender, and that the ultim-
ate sentence was unfit. The Court of Appeal
found that although the sentencing judge
was alive to Ladue’s unique circumstances
as an Aboriginal offender, she did not give
any tangible consideration to those circum-
stances in determining the appropriate
sentence. Ladue’s sentence was reduced to
one year’s imprisonment.
