IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130516

Docket: 11-0499

Registry:
Victoria

Between:

William Arthur
Gillespie

Plaintiff

And

Constable
David A. Pompeo, Constable David T. Birchett, and The Minister of Public Safety
and the Solicitor General of the Province of British Columbia on behalf of Her
Majesty the Queen in Right of the Province of British Columbia

Defendants

Before:
The Honourable Mr. Justice Baird

On
appeal from: the Supreme Court Order of Master Bouck, dated April 16, 2013

Reasons for Judgment

[1]            
This is an appeal under Rule 23-6(8) from an order of Master Bouck
dismissing the defendant’s application for an adjournment of the civil trial of
this claim, which is scheduled to start on June 3, 2013, for five weeks before
a judge of this court sitting without a jury.

[2]            
The standard of review is whether the Master’s order can be said to be
“clearly wrong”, unless the order is vital to a final issue in the case or is a
decision on a point of law, in which case the review is by way of a rehearing,
unfettered by any deference to the order under appeal: Stoneman v.
Desjardins, 2004 BCSC 57 at para. 7.

[3]            
I have concluded that the Master’s decision was on a point of law and
have approached the review as a rehearing of the application. For the reasons
that follow, the appeal is allowed and the trial is ordered adjourned.

[4]            
The defendant is a member of the RCMP stationed at Chemainus. On
September 18, 2009, while performing ordinary duties, the defendant and a
colleague pursued the plaintiff in his automobile because the defendant was
suspected of driving while prohibited. For reasons that need not detain us
here, this led to an interaction in which the defendant shot the plaintiff and
caused him personal injury, hence this civil claim of assault and battery.

[5]            
A criminal charge of aggravated assault was preferred against the
defendant arising from the same facts. On February 13, 2013, after a nine day
trial in the Provincial Court at Duncan, the Honourable Judge Wood found the
defendant guilty.

[6]            
On this trial it was not disputed that the defendant wilfully shot the
plaintiff and caused the sort of injuries referred to in section 268 of the Criminal
Code. The only issue at trial was whether the defendant had been justified
in using such force in the circumstances. His defence relied upon section 25 of
the Criminal Code which reads, in part:

Protection of persons acting
under authority

25. (1) Every one who is required or authorized by law to do
anything in the administration or enforcement of the law

. . .

(b) as a peace officer or
public officer,

. . .

is, if he acts on reasonable grounds, justified in doing what
he is required or authorized to do and in using as much force as is necessary
for that purpose.

. . .

(3) Subject to subsections (4)
and (5), a person is not justified for the purposes of subsection (1) in using
force that is intended or is likely to cause death or grievous bodily harm
unless the person believes on reasonable grounds that it is necessary for the
self-preservation of the person or the preservation of any one under that
person’s protection from death or grievous bodily harm.

[7]            
Judge Wood, in a lengthy, considered judgment, found that although the
defendant subjectively believed that it was necessary to shoot the plaintiff,
the Crown had proved beyond a reasonable doubt that this belief was not
objectively reasonable. Accordingly, the section 25 defence failed and the
accused was convicted.

[8]            
The issue on the civil trial will be identical: whether the defendant was
justified by section 25 of the Criminal Code in causing the plaintiff
grievous bodily harm because he believed on reasonable grounds that it was
necessary for self-preservation. This defence applies to civil as well as
criminal complaints: Soussan v. Wolthers, Donaghy and City of Vancouver, 2005
BCSC 916 at para. 22.

[9]            
The defendant’s criminal conviction has been appealed, and an expedited
hearing of the appeal has been scheduled for September 18 and 19, 2013. The
defendant seeks an adjournment of the civil trial until the appeal has been determined.

[10]        
As far as I am concerned, the decision on a point of law which permits
me to determine this matter de novo is the use to which the defendant’s
criminal conviction might be put on the civil trial and the effect it would
have on the question of liability, as well as the proper considerations under
the test for granting an adjournment in the circumstances of this case.

[11]        
Section 71 of the Evidence Act, R.S.B.C. 1996, c.124,
provides that a conviction that is not subject to appeal, or from which no appeal
is taken, may be admitted as evidence on a civil trial as proof that the
convicted person committed the offence.

[12]        
At the hearing before Master Bouck, the defendant argued that if the
civil trial is not adjourned, then prejudicial evidence of his conviction will
be put before the court. However, Master Bouck interpreted s. 71 to mean that
the defendant’s conviction by Judge Wood would not be admissible at trial as
the appeal will not be heard until later, and consequently there would be no
actual prejudice to the defendant on this account.

[13]        
Master Bouck went on to hold that, even if admitted into evidence, the
conviction would only be a factor to be considered by the trial judge in
determining liability on the civil claim. “It is not”, she wrote, “in and of
itself, determinative of liability”, and she cited two cases as authority for
this proposition: Shucknecht v. Singh, 2006 BCSC 1025, and D.L.M.
v. Battle, 2005 BCSC 1502. The former case involved a question of
liability for a motor vehicle accident where the defendant had been convicted
of speeding on the same facts; and in the latter case the defendant was sued in
civil court for sexual assault after pleading guilty in criminal court to
simple assault. In each case, the trial judge had to determine the weight
to be given to the conviction (see s. 71(8) of the Evidence Act) because
in neither case was the conviction dispositive of liability.

[14]        
With respect, the same cannot be said in the present case. If the
defendant’s conviction is upheld on appeal it will mean that there has
effectively been a final determination on the issue of liability, both criminal
and civil, for the assault in question.

[15]        
Defendant’s counsel submitted that the presently scheduled civil trial
in June will involve a second full trial on precisely the same evidence and
issues as those already given a comprehensive airing on the criminal trial in
Provincial Court. The same witnesses will be called on the issue of liability
and the same defence of justification under section 25 of the Criminal Code
will be advanced.

[16]        
Defendant’s counsel has conceded, quite properly, that there can be no
civil trial on the question of liability if the conviction stands and all
appeals are abandoned or exhausted.

[17]        
At paragraph 7 of her reasons Master Bouck cited 617449 B.C. Ltd. v.
Munster, 2005 BCSC 1623, for the proposition that “the court must consider
the interests of justice in exercising its discretion to adjourn or not adjourn
a trial.” At the hearing below, the defendant argued that if the civil trial is
not adjourned there is a possibility of inconsistent findings between the civil
and criminal courts addressing the same incident, and for that reason the
interests of justice require that the appeal be determined before the civil
trial commences. However, in her reasons at para. 15, Master Bouck held that
“[i]n the absence of actual prejudice being suffered by the defendant Pompeo,
there should be no need for the court to weigh the parties’ interests or
consider the overall interests of justice. Thus, the application must fail …”
She then went on to say that, “if I am wrong in that regard, then I find that
the plaintiff and the judicial system itself will suffer the greater prejudice
should the trial be adjourned.” She referred to the prejudice that results from
lengthy delays in bringing matters to trial, but she did not speak to the
concerns around the relitigation of liability and inconsistent findings.

[18]        
In my respectful view, Master Bouck erred in not taking these concerns
into account when determining whether an adjournment would be in the interests
of justice. In my opinion, it would not be reasonable to relitigate liability
on the balance of probabilities when an exhaustive criminal inquiry has
determined the issue against the defendant beyond a reasonable doubt. Such an
attempt would be an abuse of process: see Toronto (City) v. Canadian Union
of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, especially paras. 51-52
in which Arbour J. made the following observations on relitigating a criminal
conviction in subsequent civil proceedings:

[51] …the doctrine of abuse of process concentrates on the
integrity of the adjudicative process. Three preliminary observations are
useful in that respect. First, there can be no assumption that relitigation
will yield a more accurate result than the original proceeding. Second, if the
same result is reached in the subsequent proceeding, the relitigation will
prove to have been a waste of judicial resources as well as an unnecessary
expense for the parties and possibly an additional hardship for some witnesses.
Finally, if the result in the subsequent proceeding is different from the
conclusion reached in the first on the very same issue, the inconsistency, in and
of itself, will undermine the credibility of the entire judicial process,
thereby diminishing its authority, its credibility and its aim of finality.

52  In
contrast, proper review by way of appeal increases confidence in the ultimate
result and affirms both the authority of the process as well as the finality of
the result. It is therefore apparent that from the system’s point of view,
relitigation carries serious detrimental effects and should be avoided unless
the circumstances dictate that relitigation is in fact necessary to enhance the
credibility and the effectiveness of the adjudicative process as a whole. There
may be instances where relitigation will enhance, rather than impeach, the
integrity of the judicial system, for example: (1) when the first proceeding is
tainted by fraud or dishonesty; (2) when fresh, new evidence, previously
unavailable, conclusively impeaches the original results; or (3) when fairness
dictates that the original result should not be binding in the new context. …

[19]        
As things stand, the defendant has been criminally convicted of
aggravated assault. There can be no assumption at this stage that a civil trial
will yield a different or more accurate result. If the conviction is upheld it
will be the end of the matter for the purposes of liability, and a civil trial
conducted in the interval will have been a colossal waste of judicial resources
and the time, money and effort of the parties and witnesses alike. Finally,
dual proceedings on the same issues and facts give rise to the spectre of
inconsistent verdicts, an eventuality to be avoided in the interests of
maintaining the credibility of the judicial process.

[20]        
For these reasons I conclude that an adjournment of the civil trial is
in the best interests of justice.

[21]        
Master Bouck ordered costs below in any event of the cause on the basis
that the application should never have been brought. It will be obvious that I
respectfully disagree with this proposition.

[22]        
Accordingly I order that the costs below and on this appeal will be in the
cause.

 “The
Hon. Mr. Justice R.A.M. Baird”