R. v. Cliffe, 2024 BCCA 50

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Cliffe, 2024 BCCA 50 Date: 20240216 Docket: CA47860 Between: Rex Respondent And Eddy Walter Cliffe Appellant Corrected Judgment: The text of the judgment was corrected at para. 68 on February 21, 2024 Before: The Honourable Mr. Justice Hunter (In Chambers) On appeal from: An order of the Provincial Court of British Columbia, dated January 13, 2020 (conviction) and October 1, 2021 (sentence) ( R. v. Cliffe and Olney , Campbell River Docket 42484-1). Counsel for the Appellant: E. Purtzki Counsel for the Respondent: L.A.

Vizsolyi Place and Date of Hearing: Vancouver, British Columbia February 1, 2024 Place and Date of Judgment: Vancouver, British Columbia February 16, 2024

Summary: The appellant applies for the appointment of counsel pursuant to s. 684 of the Criminal Code to assist him in his appeal from a conviction and sentence for arson. He wishes to argue that because his First Nation imposed a banishment order on him after the fire, conviction for arson would constitute double jeopardy. Held: Application in relation to the conviction appeal is dismissed. Given the state of the record, the procedural hurdles facing him and the weakness of the double jeopardy argument, it is not in the interests of justice for public-funded counsel to be appointed for the conviction appeal.

The sentence appeal is arguable, and counsel is appointed to assist the appellant for that appeal. Reasons for Judgment of the Honourable Mr. Justice Hunter: [ 1 ] On January 13, 2020, the appellant, Eddy Walter Cliffe, pleaded guilty to arson, for which he was subsequently sentenced to a 21 month custodial sentence, followed by 18 months’ probation. He filed a notice of application for leave to appeal against sentence and six months later filed an amended notice of appeal against conviction. [ 2 ] On this application, Mr.

Cliffe seeks an order appointing counsel under s. 684 of the Criminal Code , R.S.C. 1985, c. C-46 to assist him in both his conviction and sentence appeals. [ 3 ] Mr. Cliffe is a member of the Wei Wai Kum First Nation (the “Nation”) located in Campbell River, B.C. Following the fire for which he was charged, but before he entered his guilty plea, Mr. Cliffe advises that the Nation issued a banishment order prohibiting him from entering its reserve lands for six months. The banishment order arose from Mr. Cliffe’s conduct in setting the fire. [ 4 ] On his conviction appeal, Mr.

Cliffe wishes to argue, inter alia , that as a result of the banishment order, Mr. Cliffe’s prosecution and sentencing under the Criminal Code constituted double jeopardy contrary to s. 11(

h) of the Charter of Rights and Freedoms . [ 5 ] On his sentence appeal, Mr. Cliffe wishes to argue that the sentencing judge erred in failing to take the banishment order adequately into account when sentencing Mr. Cliffe.

Background Facts [ 6 ] For purposes of this application, the background facts are not in dispute. On June 25, 2019. Mr. Cliffe and his mother, Ms. Olney set fire to a house owned by Mr. Cliffe on the Wei Wai Kum First Nation Reserve [ 7 ] The appellant owned the house. He had obtained a mortgage that was secured by the First Nation, but he had defaulted on that mortgage and the Nation paid it out. Thereafter, the Nation made efforts to settle the debt with the appellant.

Ultimately, the Nation served the appellant with an eviction notice, following which there were protracted negotiations to resolve the issue. [ 8 ] However, the appellant did not pay down the debt and the Nation proceeded with the eviction. [ 9 ] The appellant’s mother, Ms. Olney, expressed her frustration with the First Nation and how they were treating her son. She sent an email to the Nation which amounted to a veiled threat to burn the house down.

At a meeting the next day, the Nation told the appellant and his mother that the house would be sold. [ 10 ] The day before the Nation was set to take control of the house, the appellant called the Chief and confirmed that the Nation was going to follow through with that plan. Shortly after that call, the appellant purchased gasoline. [ 11 ] Mr. Cliffe phoned a friend and told her that he had damaged the house and referenced burning down the house. He asked if he should let his mother light the match and take the “heat” for him.

He later told the friend that she should not come by the house because it would be “going up” in the next 15 minutes. [ 12 ] The appellant also spoke with his mother that morning. They discussed their plan to burn the house down. They poured gas over the house after removing some belongings. They also recorded a video in which the appellant claims to be trying to stop his mother from lighting the house on fire. [ 13 ] The appellant handed a match to his mother who set the fire. [ 14 ] The appellant warned the immediate neighbour of the fire.

The appellant later called the Chief and said that his mother had started the fire and he had tried to stop her from doing so. [ 15 ] Mr. Cliffe and Ms. Olney were subsequently arrested and charged with arson, contrary to s. 434 of the Criminal Code . Both pleaded guilty to the offence. [ 16 ] The unusual feature of the case that Mr. Cliffe wishes to raise is that some time in July 2019, the Nation issued an order against Mr. Cliffe banishing him from the reserve for six months. Mr.

Cliffe argues that his conviction for arson after the banishment order constitutes double jeopardy. [ 17 ] The foundation for the 2019 banishment order is unfortunately unclear. [ 18 ] Mr. Cliffe has filed an affidavit stating that the order was made, but he was unable to locate a copy of the order.

In support of his argument, he has produced a copy of a Wei Wai Kum First Nation Community Protection Law , 2020 , that authorizes the Council of the Nation to make an order restricting or prohibiting the presence of certain “Designated Individuals” on reserve lands, effectively a banishment order. [ 19 ] The Band Council Resolution approving the Community Protection Law, 2020 is dated December 9, 2020. [ 20 ] A copy of the Community Protection Law filed on this application dated December 22, 2020 contains the following statement: BE IT KNOWN that this Law entitled the Wei Wai Kum Community Protection Law is hereby enacted by a quorum of Council at a duly convened Council of the Wei Wai Kum First Nation held on December 22 nd , 2020. [ 21 ] On the material before me, the effective date of the Community Protection Law on which Mr.

Cliffe relies for his double jeopardy argument appears to be December 22, 2020, well after the six month banishment order apparently made in 2019 and well after Mr. Cliffe had pleaded guilty to the arson charge. [ 22 ] I will comment further on the state of the record when I discuss the interests of justice engaged in this application. [ 23 ] Mr. Cliffe was sentenced on October 1, 2021, and filed an application for leave to appeal sentence on October 29, 2021. On May 2, 2022, he filed an amended notice of appeal against conviction, with an application for an order for court-appointed counsel under s. 684 .

Legal Framework [ 24 ] The statutory test for the assignment of court-appointed counsel has two elements. Counsel may be assigned to act on behalf of an accused “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”: s. 684(1) of the Criminal Code . [ 25 ] To assess whether an accused has sufficient means to retain counsel, this Court’s Practice Directive titled Applications for a Court-Appointed Lawyer Under

Section 684 of the Criminal Code (Criminal Practice Directive, 19 September 2011) states that applicants should generally be able to show that they cannot afford to retain counsel for the appeal and that they applied to the Legal Services Society for legal aid and were refused.

[ 26 ] Mr. Cliffe did apply to the Legal Services Society for legal aid. His application was refused, but not for financial reasons. [ 27 ] It is common ground that Mr. Cliffe does not have sufficient means to retain counsel to advance the issues he wishes to raise. Thus, the only issue is whether it is in the interests of justice that he have legal assistance for these appeals. [ 28 ] In assessing the interests of justice, the Criminal Practice Directive goes on to state that applicants must show the Court there is a reasonable possibility the appeal will succeed.

The merits standard has been expressed as whether there is an arguable appeal; that is, “whether any of the proposed grounds has a reasonable prospect of success”: R. v. Patrick , 2016 BCCA 232 (Chambers) at para. 13 ; see also R. v.

Chan , 2001 BCCA 138 (Chambers) at paras. 7–8 . [ 29 ] In addition to the merits of the appeal, factors relevant to a s. 684 appointment include the points to be argued on appeal, the complexity of the case, any point of general importance in the appeal, the applicant’s competency to present the appeal, the need for counsel to find facts, research law or make argument, and the nature and extent of the penalty imposed: R. v.

Silcoff , 2012 BCCA 463 (Chambers) at para. 23 . [ 30 ] The Court may consider the opinion of the Legal Services Society that an appeal has no prospect for success, but the opinion of the Legal Services Society is only one factor in the assessment: Silcoff at para. 27 . Proceedings on this Application Hearing before Marchand, J.A. [ 31 ] Mr. Cliffe’s application for an appointment of counsel under s. 684 was initially heard before Justice Marchand (as he then was) on August 18, 2022. [ 32 ] Mr. Cliffe appeared on his own behalf before Marchand J.A.

He raised a number of issues with respect to which he sought court- appointed counsel. Justice Marchand distilled the material issues to two — an allegation of ineffective assistance of counsel and an argument that by reason of the banishment order of the first nation, the arson charge under the Criminal Code constituted double jeopardy contrary to Mr.

Cliffe’s Charter rights. [ 33 ] Justice Marchand considered the possible merit of the double jeopardy argument and made the following comment in relation to the Community Protection Law, 2020 : [30] The Community Protection Law does not, however, detail the process by which the council decides whether to designate a person for banishment or other sanction. As a result, I do not know how the Council came to make its decision to banish Mr. Cliffe.

The point is that I have insufficient information to assess whether the proceedings under the Community Protection Law were or were not criminal in nature. … [33] Without a detailed review of the Nation’s proceedings, the terms of its order, the roots of the law under which its order was made, how the Nation traditionally viewed and currently views the sanction of banishment and how Indigenous law intersects with the Criminal Code and Charter in the sentencing context, I am not prepared to conclude that Mr. Cliffe’s double jeopardy argument lacks merit. [ 34 ] Justice Marchand then reviewed Mr.

Cliffe’s allegations of ineffective assistance of counsel and concluded that a limited appointment of counsel under s. 684 to assess the allegations of ineffective assistance was warranted, observing that “Mr. Cliffe’s allegations go to the voluntariness of his guilty plea”: para. 35. [ 35 ] The judge ordered that counsel be appointed pursuant to s. 684 for the limited purposes of evaluating Mr.

Cliffe’s proposed double jeopardy and ineffective assistance of counsel grounds of appeal with respect to conviction and sentence, and to prepare and argue a “full” s. 684 application if counsel considers any of the proposed grounds of appeal to have sufficient merit. Hearing before Griffin J.A. [ 36 ] Hollis Lucky was appointed counsel for Mr. Cliffe and reset the application for appointment of s. 684 counsel before Griffin J.A. on June 9, 2023. Justice Griffin concluded that Mr.

Cliffe had not addressed outstanding issues regarding the merits of his proposed grounds of appeal, and accordingly his application for “full” appointment of s. 684 counsel was premature. [ 37 ] With respect to the two proposed grounds of appeal, Justice Griffin made the following comments: [6] … Mr. Cliffe pleaded guilty in the court below.

It seems to me that all of his grounds of appeal turn on setting aside the guilty plea, and that turns on his argument that he had ineffective assistance of counsel prior to entering that plea. … [7] As well, there has been no further investigation of the merits of the proposed double jeopardy ground of appeal and so the court has little additional information than was in the application before Marchand J.A. As noted by Marchand J.A. at para. 30, there was insufficient information before him as to the process by which Mr.

Cliffe’s band council came to issue a banishment order against him, to be able to weigh the merits of an argument that the proceedings were criminal in nature. [ 38 ] Justice Griffin concluded that additional steps were required to assess whether there was any merit to either ground of appeal.

The judge adjourned the application so that those steps could be undertaken. [39] Mr. Lucky was subsequently appointed as a Provincial Court judge, and Mr. Purtzki was appointed under the limited s. 684 ordermade by Marchand J.A. Current Application [40] Mr. Purtzki now brings an application on behalf of Mr. Cliffe for a “full” appointment of counsel pursuant to s. 684 to advancethe ground that Mr. Cliffe’s rights under s. 11(

h) of the Charter were violated because of the banishment order imposed by the Nation. [41] Mr. Cliffe no longer wishes to advance an argument alleging ineffective assistance of counsel through s. 684 counsel and seeksno order to pursue that ground, although he has advised counsel that he wishes to pursue the ineffective assistance ground on his own. [42] Thus, the question to be resolved is whether it is in the interests of justice to appoint s. 684 counsel to advance the ground ofappeal that the effect of the Nation’s banishment order, followed by the conviction for arson, constituted double jeopardy for Mr.

Cliffe,or to argue alternatively that the sentencing judge erred in failing to adequately take into account the banishment order when sentencingMr. Cliffe. [43] Mr. Cliffe submits that while novel, the double jeopardy ground is arguable on the general principles of double jeopardy set outin R. v. Wigglesworth, (SCC), [1987] 2 S.C.R. 541. Under the principles explained in Wigglesworth, a person can claims. 11(

h) protection if either the banishment proceedings were, by their nature, criminal proceedings or the punishment previouslyimposed involved a true penal consequence. [44] The position of the Crown is that the ground of appeal based on an infringement of s. 11(

h) of the Charter insofar as it relates tothe conviction appeal is not arguable and no appointment of counsel should be made in relation to that ground of appeal. The Crowndoes not oppose the appointment of counsel in relation to the impact of the community protection order on the sentence appeal. Withdrawal of the Guilty Plea [45] A threshold question before addressing the double jeopardy argument is whether there is a reasonable prospect that Mr.

Cliffewill be permitted to withdraw his guilty plea. [46] Justice Griffin pointed out that “all of his grounds of appeal turn on setting aside the guilty plea, and turn on his argument that hehad ineffective assistance of counsel prior to entering that plea”. As an order is not being sought under s. 684 for court-appointed counselto argue ineffective assistance of counsel, the question arises as to whether there is any reasonable prospect that the double jeopardyargument can be advanced in the face of a guilty plea. [47] The validity of the guilty plea has not been challenged on this application.

To be valid, the plea must be informed, voluntary, andunequivocal: R. v. Wong, 2018 SCC 25 at para. 3. [48] There is nothing in the material before me to indicate that Mr. Cliffe’s plea was not informed, voluntary, and unequivocal.Mr. Cliffe was represented by counsel at the time of the plea but entered the plea personally and without equivocation. [49] At the time Mr. Cliffe entered his plea, the judge obtained a

summary of the factual allegations from Crown counsel, ending withthe statement that Mr. Cliffe had poured a flammable substance believed to be gasoline throughout the house and “then used anincendiary device believed to be a match to ignite the flammable liquid”. [50] The following exchange then occurred: THE COURT: … and so, Mr. Cliffe, so you heard just a brief

summary of the facts that are alleged by Crown counsel, and so I justwanted to ask you again, sir, I understand that you wish to plead guilty to the offence that you intentionally or recklessly caused damage by fire or an explosion to a dwelling house, the property of the Campbell River Indian Band on June 25th, 2019. You understand thecharges? THE ACCUSED: Yes. THE COURT: And you are pleading guilty today? THE ACCUSED: Yes, I was responsible for that. THE COURT: All right. And you agree with the facts as set out today, essentially summarizing what occurred by Crown counsel?

THE ACCUSED: Everything except it wasn’t a match, it was a Q-tip. THE COURT: It was a what? THE ACCUSED: Q-tip not a match. THE COURT: All right. Thank you. [51] The position of Mr. Cliffe is that even if the plea was valid when made, if he can establish that his subsequent prosecution andsentencing under the Criminal Code breached his right under s. 11(

h) of the Charter, he would be able to argue that the guilty pleashould be set aside as a “miscarriage of justice” under s. 686(1)(a)(iii) of the Criminal Code.

[ 52 ] Mr. Cliffe relies on this Court’s judgment in R. v. Tallio , 2021 BCCA 314 , to the effect that “(

a) miscarriage of justice can occur even when the requirements for a valid guilty plea were satisfied at the time the plea was entered”: para. 58. However, the example provided in Tallio was one of innocence in fact, which is not asserted here. [ 53 ] At a minimum, the apparent validity of the guilty plea will present a significant hurdle for Mr. Cliffe to overcome before reaching the defence he wishes to raise. Double Jeopardy – State of the Record [ 54 ] In assessing the viability of the proposed double jeopardy defence, the state of the record presents another significant hurdle.

Justice Marchand pointed out the need for additional information about the banishment order before the viability of the defence could be assessed, and Justice Griffin reiterated the need for further information when this application came before her. I am in the same situation. [ 55 ] As a starting point, the legal basis for the banishment order is unclear to me. I have been provided with a copy of the Nation’s Community Protection Law , 2020 , but as I observed earlier, this Law post-dates both the original banishment order and the conviction of Mr. Cliffe. It cannot be the basis for a double jeopardy defence.

Perhaps an earlier version of this Law exists, but if so, I have not been provided with it. [ 56 ] Counsel for Mr. Cliffe has advised that he and previous counsel have requested information from the First Nation about the nature of the banishment process and how banishments were imposed in this case, but have not received answers from the Nation. The result is that I am in the same position as Justice Marchand and Justice Griffin in attempting to assess how the banishment order of the Nation relates to the Criminal Code proceedings, if at all. [ 57 ] To advance the double jeopardy defence, Mr.

Cliffe will need leave to argue a new issue not raised at trial. For leave to be granted, the Court must be satisfied that the evidentiary record is sufficient to permit proper legal analysis: R. v. Alfred , 2020 BCCA 384 at para. 6 . [ 58 ] Although the absence of an evidentiary record from the court below is not necessarily insurmountable, laying out a factual foundation for the determination of a complex constitutional issue at the appellate level does not comport with the orderly progress of litigation and attempting to do so presents institutional challenges for this Court: Alfred , at para. 19 .

Double Jeopardy – The Merits [ 59 ] Finally, I have grave doubts about the merits of the double jeopardy defence based on a banishment order, even if I make assumptions that the record can be established sufficiently to permit proper appellate consideration. [ 60 ] To succeed in the defence, Mr. Cliffe would have to establish that whatever law the Nation was relying on was criminal in nature or provided for true penal consequences. Mr.

Cliffe argues that both the banishment and the arson charge arose from the same conduct, and accordingly once he was punished by way of banishment, he cannot be punished again through the criminal law. [ 61 ] The consequence of this argument is that a serious crime could not be prosecuted against an Indigenous offender if, before charges could be brought, the offender received a banishment order authorized by an internal rule of the Nation. [ 62 ] In Wigglesworth , Justice Wilson explained that conduct can have a double aspect as a member of a specific group subject to internal rules and as a member of the public at large: at 566–567.

Thus, Mr. Wigglesworth could be prosecuted under the Criminal Code for conduct for which he had already been fined under the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9. [ 63 ] By analogy, prosecution under the Criminal Code in relation to

an act for which the accused has been subject to an internal banishment order by his First Nation would not violate Mr. Cliffe’s rights under s. 11(

h) of the Charter . Mr. Cliffe can be constitutionally required to account for his conduct to the Canadian public as well as to his Nation. [ 64 ] While it is not possible to be definitive without understanding the precise basis on which the Nation acted, as well as the information Justice Marchand referred to as necessary to assess the merits of the ground of appeal, I do not consider that the appellant has a reasonable prospect of success on his criminal appeal on the record as it stands before me. [ 65 ] In R. v.

Leyden , 2021 BCCA 367 (Chambers), Chief Justice Bauman dismissed an application for court-appointed counsel to argue a conviction appeal based on the relationship between Indigenous laws and the common law elements of criminal contempt in circumstances where the evidentiary record was inadequate. The Chief Justice commented as follows: [41] More broadly, the appellants suggest that they acted pursuant to Indigenous laws that provided a “statutory duty, power or authority,” or that Indigenous laws required independent consideration alongside the common law elements of criminal contempt.

The judges rejected such arguments on the basis that no evidence or clear argument had been advanced of the content of any applicable Indigenous laws.

I have reviewed the evidence of the appellants at trial and they simply allude generally to “natural law” and the alleged direction by Indigenous elders that they “stand up” in these matters, “…stand for Mother Earth.” Counsel’s formal submissions do not appreciably expand on this evidence in developing an Indigenous legal theory in defence of the appellants. [42] The courts will one day be required to address the complex issues of the relationship between Indigenous laws and the common law as they relate to the application of common law or colonial offences.

Regrettably, the appellants did not articulate or develop, either before the judges or on these applications, any clear basis on which to develop and consider these principles. Nor is there a sufficient evidentiary basis in the record on which this Court could reasonably arrive at a different conclusion from the judges. I consider the paucity of evidence in the record to be fatal, very arguably, to this Court’s ability to address these matters any further. The matter in the end is for the division of this Court hearing the conviction appeals.

… [45] Ultimately, the appellants’ arguments are not responsive to the elements of the offence of criminal contempt or the judges’ findings in relation to those elements. Their arguments centre on novel defences for which they have advanced no clear content or evidentiary foundation, and which in

part intersect with arguments that have recently been rejected by this Court.

Although I make no comment on the strength of the appellants’ arguments advocating for an Indigenous lens as they may be framed in the future, these appeals that are currently before the court lack a sufficient basis on which these complex and important issues can be given the consideration they deserve . [46] I therefore see little, if any, arguable merit to the conviction appeals, and I do not consider it would be in the interests of justice to order the appointment of counsel for the conviction appeals. [Emphasis added.] [ 66 ] I find myself in the same position.

In my view, it is not in the interests of justice to order the appointment of publicly-funded counsel to assist Mr. Cliffe in arguing his conviction appeal. [ 67 ] On the sentencing appeal, both the state of the record and the procedural issues weigh less heavily against the appointment of s. 684 counsel. Mr. Cliffe does not need an extension of time to argue his sentencing appeal, which was filed in time.

He does not need to extricate himself from his guilty plea, nor is the precise basis for the banishment order of as critical importance as it is for the conviction appeal. [ 68 ] The sentencing judge was aware of the banishment order when she imposed sentence, but it is arguable that she failed to take the banishment adequately into account when fashioning Mr. Cliffe’s sentence: see R. v.

R.R.M ., 2009 BCCA 578 at para. 16 . [ 69 ] The relationship between a First Nation’s banishment order and a sentence under the Criminal Code raises issues of sufficient complexity to support the appointment of publicly-funded counsel to assist Mr. Cliffe in presenting his argument. [ 70 ] I consider that it is in the interests of justice that counsel for Mr. Cliffe be appointed pursuant to s. 684 of the Criminal Code for the sentence appeal. Disposition [ 71 ] The application pursuant to s. 684 of the Criminal Code for the appointment of counsel to assist Mr.

Cliffe in his conviction appeal is dismissed. [ 72 ] The application pursuant to s. 684 of the Criminal Code for the appointment of counsel to assist Mr. Cliffe in his sentence appeal is granted. “The Honourable Mr. Justice Hunter”