The Lawyers Weekly - July 20, 2012

J.M. Simmons and E.A. Cronk JJ.A.,
June 5, 2012. Digest No. 3212-004
APPEALS – Mootness – Preliminary
inquiry – Committal for trial or dis-
charge – Evidence – Purpose.
Appeal by the accused from a decision
of a Supreme Court judge dismissing the
appellant’s application for certiorari. The
appellant was committed for trial on
charges of break and enter, unlawful con-
finement, sexual assault and robbery.
The preliminary inquiry judge concluded
that the documents tendered by the
Crown were admissible without the
necessity of tendering any witnesses in
support. The judge also denied the appel-
lant’s request to cross-examine the Crown
witnesses under s. 540(1) of the Criminal
Code for the purpose of discovery on the
ground that the effect of the 2004
amendments to the Criminal Code,
viewed in the context of the full disclo-
sure requirement on the Crown man-
dated by Stinchcombe, was to streamline
the preliminary inquiry to the extent that
its ancillary discovery function had been
relegated to a by-product of the proceed-
ing, and not one of its purposes or func-
tions. The appellant argued that the pre-
liminary inquiry judge exceeded her
jurisdiction or breached the principles of
natural justice by committing him to
stand trial based solely on her review of
the paper record filed by the Crown, and
without permitting any viva voce evi-
dence, either in direct or cross-examina-
tion. He also argued that the judge erred
by treating his request to call witnesses
on the inquiry as an application for an
adjournment, by refusing an adjourn-
ment, and by stating that she would not
have allowed him to call witnesses on the
inquiry in any event because the evidence
he sought to elicit thereby was not rel-
evant to the inquiry. The Crown argued
that the appeal was moot, as the Crown
had stayed proceedings on the informa-
tion leading to the committal and pro-
ceeded against the appellant by way of
direct indictment. The appellant had
since been convicted of all charges.
HELD: Appeal allowed. Although the
appellant had been tried, the court was in
a position to make a determination on the
substantive issues, which required a
determination of the correct interpreta-
tion and application of the relevant provi-
sions of the Code. The importance of the
issues to the practising bar and to the
conduct of preliminary inquiries made it
appropriate and worthwhile to address
those issues. If the court concluded that
the interpretation of the impugned provi-
sions of the Code was plainly wrong, it
would be mischievous to allow the prac-
tice to continue. If the law was being
misinterpreted, it was consistent with the
mandate of both Parliament and the
courts to ensure that this was corrected.
The preliminary inquiry judge erred in
permitting the Crown to file its entire
case in paper form without permitting the
appellant to cross-examine any Crown
witnesses. Although the Crown’s case
could be placed before the court in paper
form pursuant to s. 540( 7), the right of
the Crown to tender its initial case by way
of paper did not detract from the right of
the defence to apply, pursuant to s.
540( 9), to examine or cross-examine wit-
nesses. Although the appellant did not
expressly refer to s. 540( 9) in his submis-
sions, he was, in fact, seeking to have the
witnesses upon whose paper evidence the
Crown relied called for cross-examination
under s. 540( 9). The preliminary inquiry
judge acted without jurisdiction when
she denied the appellant’s request to
cross-examine witnesses whose evidence
formed part of the paper record, without
regard to s. 540( 9). The preliminary
inquiry judge also exceeded her jurisdic-
tion in ruling that she would not have
allowed him to call evidence under s.
541( 5) in any event because discovery was
not a purpose relevant to the inquiry. She
erred in concluding that, by virtue of a
combination of Stinchcombe and the
2004 amendments, the words “relevant
to the inquiry” in s. 541( 5) meant only
“relevant to committal”, and that an
accused had no “right” to call witnesses
under s. 541( 5) if his sole purpose in
doing so was to test or discover the
Crown’s case. The discovery role of pre-
liminary inquiries had not been extin-
guished or rendered obsolete.

GOVERNMENT LAW
ACCESS TO INFORMATION AND
PRIVACY – Access to information –
Governmental or public information –
Inspection of public documents – Bars
and grounds for refusal.
Application by the Ministry of Cit-
izens’ Services for judicial review of a
decision by a delegate of the British Col-
umbia Information and Privacy Commis-
sioner relating to an access request made
by the British Columbia Freedom of
Information and Privacy Association.
The Association sought access to a work-
place support agreement between the
province and IBM. The agreement gov-
erned IBM’s provision of computer sup-
port services to the Ministry. It required
IBM staff to provide service desk func-
tions to government employees requiring
assistance with their workplace systems.
The Association asked the Ministry to
disclose a list of software and IBM equip-
ment being used, and server names and
locations. The Ministry withheld por-
tions of the requested information in
releasing a response to the Association’s
request. The Association challenged
some of the Ministry’s grounds for with-
holding information. An adjudicator
concluded that the Ministry was required
to disclose information that it had with-
held on the basis of its potential to harm
the security of its computer system. In
coming to this conclusion, the adjudica-
tor articulated that it was the release of
information itself that had to give rise to
a reasonable expectation of harm, and
that the burden rested with the Ministry
to establish that disclosure could result
in this harm. He found that the Ministry
drew no direct connection between the
disclosure of the disputed information
and the claimed harm. The Ministry sub-
mitted that the release of the information
increased the chances of a successful
attack on its system, without stating by
what factor the risk increased. He con-
sidered the risk that a hacker might use
the information to breach the system’s
security speculative at best.
HELD: Application dismissed. The
adjudicator correctly articulated the
harms-based test applicable to the issue
before him. He gave due consideration to
the relevant case law. His decision fell
within the range of possible, acceptable
outcomes defensible in respect of the facts
and law. The adjudicator made it clear
that the Ministry failed to provide con-
crete evidence that there was a reasonable
expectation that sensitive government
information would be hacked or other-
wise compromised should the informa-
tion be released.

IMMIGRATION LAW
REFUGEE PROTECTION – Perse-
cution – Protection of country of nation-
ality – Internal flight alternative.
Application by citizen of Pakistan for
judicial review of a decision of the Immi-
gration and Refugee Board, Refugee
Protection Division, which found that he
was not a Convention refugee or person
in need of protection. The applicant was
from the city of Sialkot. He met a young
woman through his sister and began a
relationship with her, which led to a
marriage proposal that was contrary to
her parent’s wishes. The couple fled to
the city of Mardan and took refuge with
the family of a friend. They married in
October 2007. Charges of abduction and
rape were filed against the applicant
based on the complaint of his wife’s par-
ents. He fled to Canada and sought pro-
tection. In August 2008, his wife gave
birth to a boy. His wife and son con-
tinued to live in Mardan with the friend’s
family. The Board found the applicant’s
claim to be largely credible and sup-
ported by the evidence. However, the
Board found that the applicant had
internal flight alternatives in the cities of
Multan and Mardan, and his in-laws
would not be able to find him and his
wife in one of those cities. The Board
also found that the in-laws did not
appear to be actively looking for him
outside Sialkot. The Board considered
that it would be easy for the applicant to
relocate, as he had a bachelors degree
from Pakistan and had completed most
of his MBA in the United States.
HELD: Application allowed, and
matter remitted to the Refugee Protec-
tion Division for reconsideration. The
Board’s decision was unreasonable and
was not defensible on the facts. It was
open to the Board to find that the in-
laws and the police could have found
where his wife was living through her
National Identification Card, which
included the residence address, as the
record indicated that it was used in the
issuance of his son’s birth certificate.
However, it was mere speculation to also
conclude that the police and the in-laws
could have located her through the friend
who offered shelter in Mardan, as the
evidence did not indicate that the friend
was known to her family or the police.
Moreover, his wife was not subject to the
arrest warrant and the fact that she was
able to live in Mardan, albeit discretely,
for four years should not have been used
to demonstrate that the applicant would
not have been arrested had he returned
to that city. As noted by the Board, Pak-
istan experienced a high number of hon-
our crimes committed against couples
who married in defiance of parents. The
evidence also indicated that the police
allowed themselves to be used as guard-
ians of public morality to uphold trad-
ition and culture. It was unreasonable to
suggest that the applicant live in hiding
in the proposed internal flight alterna-
tive. The Board also failed to consider
the effect of the arrest warrants. It
assumed without evidence that there
was no computerized system to access
warrants. There was no indication in the
evidence that warrants were not access-
ible through electronic or other means in
other parts of Pakistan. As the Board
accepted that many lower courts in Pak-
istan were corrupt, it was contradictory
for it to suggest that the applicant could
return to face his accusers in Pakistan on
the strength of an assumption that he
would have a reasonable chance of suc-
cess in defending himself against the
charges. If arrested, the applicant would
have been tried in Sialkot, where his in-
laws carried considerable influence and
where a considerable backlog in the judi-
cial system could have resulted in his
indeterminate pre-trial detention.

LEGAL PROFESSION
BARRISTERS AND SOLICITORS –
Compensation – Contingency agree-
ments – Change of counsel – Solicitor’s
lien – Statutory charging order – Taxa-
tion or assessment of accounts.
Appeals by a solicitor and his client
from orders charging the settlement funds
recovered by the client, holding the solici-
tor and the client jointly and severally
liable for an amount to be assessed and
remitting the matter to the Registrar for
taxation. The respondent law firm,
Hammerberg Altman Beaton & Maglio
LLP, and in particular Maglio, acted for
the appellant FitzGibbon under a contin-
gency fee contract on her claim for dam-
ages arising from a motor vehicle accident
which occurred in March 2007. Pursuant
to the contingency fee arrangement, Fitz-
Gibbon agreed to pay all disbursements
incurred in pursuit of her claim, with
interest at a rate of 1.5 per cent per month
and a fee of one-third of any amount
recovered. The agreement also included a
provision that entitled the law firm to ren-
der an account for services rendered if an
offer of settlement was made and recom-
mended by the law firm, but rejected by
the client. ICBC made an offer to settle.
The law firm made no recommendation
with respect to the offer. Subsequently,
Maglio withdrew as FitzGibbon’s solicitor
and she retained the appellant Piters. A
settlement was eventually concluded and
funds were paid by ICBC to Piters in trust.
Piters subsequently transferred the funds
to FitzGibbon, despite having been advised
by the law firm that it was maintaining a
solicitor’s lien. The law firm applied for a
charge against the settlement funds
recovered by FitzGibbon and for an order
that FitzGibbon and Piters be held jointly
and severally liable for an amount to be
assessed. It also sought an order remitting
the matter to the Registrar for taxation.
The chambers judge granted all three