R. v. Khakh, 2013 BCSC 1658

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Khakh, 2013 BCSC 1658 Date: 20130909 Docket: 148269-1 Registry: Victoria Regina v. Harjinder Singh Khakh Before: The Honourable Mr. Justice G.R.J. Gaul Reasons for Judgment (Re: Costs) Counsel for the Appellant: D.H. Christie Counsel for Crown Respondent: T.A. Shaw Place and Dates of Hearing: Victoria, B.C. July 6 and November 30, 2012 Place and Date of Judgment: Victoria, B.C. September 9, 2013 Introduction [ 1 ] The appellant, Mr.

Harjinder Singh Khakh, appealed from his conviction in Provincial Court of one count of providing the Insurance Corporation of British Columbia (“ICBC”) with information material to a claim that he knew or ought to have known was false or misleading, contrary to s. 42.1(2) (

a) of the Insurance (Vehicle) Act , R.S.B.C. 1996, c. 231 (the “ Act ”). A second count under the same statutory provision was dismissed. The statement Mr. Khakh provided to ICBC related to the identity of the person who had been driving his motor vehicle at the time of an accident. [ 2 ] The Crown respondent conceded Mr. Khakh’s appeal and consequently the conviction was overturned and an acquittal entered. Mr. Khakh now seeks an order of costs against the Crown for both his trial and his appeal. Facts [ 3 ] On 12 October 2008, Mr. Khakh was in his motor vehicle along with his friend Ms. Neelam Brar.

While stopped waiting to merge into traffic, Mr. Khakh’s vehicle was struck from behind by a vehicle driven by Ms. Susan Dulc. The collision caused some minor damage to Mr. Khakh’s vehicle. [ 4 ] Mr. Khakh filed an insurance claim with ICBC for the expense of repairing his vehicle. Ms. Dulc acknowledged that she was responsible for the accident and therefore ICBC went about processing Mr. Khakh’s claim. During that process, Mr. Khakh provided a statement to ICBC indicating, amongst other things, that he had been driving his car when it was struck by Ms. Dulc’s vehicle. This information conflicted with Ms.

Dulc’s statement to ICBC wherein she indicated a female had been driving Mr. Khakh’s vehicle at the time of the accident. In light of this factual discrepancy, ICBC commenced an investigation. Ms. Brar subsequently provided a statement to ICBC confirming she was driving Mr. Khakh’s car when it was struck. [ 5 ] The materiality of whether Mr. Khakh was driving or Ms. Brar was driving at the time of the accident was an issue representatives of ICBC considered during the course of their investigation. Certain notes prepared by ICBC adjusters indicated that Mr.

Khakh’s misrepresentation of who was driving at the time of the accident was potentially material to his claim and therefore warranted further inquiries. Other ICBC records suggested that if both Mr. Khakh and Ms. Brar possessed valid driver’s licences at the time of the accident, then the identity of the driver of the Khakh vehicle would not be material to Mr. Khakh’s insurance claim. [ 6 ] On 1 October 2009, Mr. Khakh was charged with having contravened s. 42.1(2) (

a) of the Act . [ 7 ] In complying with its disclosure obligation, the Crown provided the defence with a comprehensive package of prosecution materials. These materials, including all of the relevant ICBC notes and records, were delivered to Mr. Khakh’s counsel approximately one year prior to the trial date. [ 8 ] Mr. Khakh’s trial commenced on 26 October 2010 and encompassed five days, concluding on 18 October 2011. On 24 November 2011, Mr. Khakh was found guilty and convicted of breaching s. 42.1(2)(

a) of the Act and sentenced to a fine of $1,200. [ 9 ] On 20 December 2011, Mr. Khakh filed his Notice of Appeal. One ground of appeal advanced by Mr. Khakh was that his

statement to ICBC was not material to his insurance claim. [ 10 ] Prior to the hearing of Mr. Khakh’s appeal, counsel for the respondent (who was not the trial prosecutor) contacted Mr. Khakh’s counsel to enquire why the ICBC notes and records that touched upon the question of materiality had not been brought to the attention of the trial judge or used by the defence at trial. Counsel for Mr. Khakh responded by explaining he had not read all of the notes and records. [ 11 ] After reviewing the prosecution’s evidence, counsel for the respondent informed counsel for Mr.

Khakh that because of the ambiguity in some of the ICBC notes and records, the Crown was not in a position to maintain the materiality of Mr. Khakh’s statement and therefore would be conceding Mr. Khakh’s appeal. [ 12 ] When Mr. Khakh’s

summary conviction appeal came on for hearing before me, counsel for the respondent confirmed the appeal was uncontested. In his factum, counsel for the respondent explained: 4. The Respondent concedes the appeal on the grounds that it is not in a position to maintain the materiality of the false statement made by the Appellant concerning who was driving at the time of [sic] the car was rear-ended. 5.

In ICBC adjuster notes known to the parties but not brought to the trial judge’s attention, certain statements made by ICBC adjusters cast doubt on the materiality of a false statement concerning the driver at the time of the accident where both the driver and passenger (the other potential driver) had valid licences. 6. Materiality being a constituent element of the offence under s. 42.1 of the Insurance (Vehicle) Act , the Respondent is regrettably not in a position to defend the conviction entered below. [ 13 ] In light of the respondent’s concession, Mr.

Khakh’s appeal was allowed and an acquittal was entered, pursuant to s. 121(1) (

a) of the Offence Act, R.S.B.C. 1996, c. 338. Issues [ 14 ] There are two issues before me:

a) Is Mr. Khakh entitled to an award of costs against the Crown?

b) If Mr. Khakh is entitled to an award of costs, what amount is he entitled to? Position of the Appellant [ 15 ] With respect to the first issue, Mr. Khakh asserts the prosecution’s case was a pointless venture from the outset given the immateriality of who was driving his car at the time of the accident. Moreover, Mr. Khakh argues the Crown exhibited gross negligence and bad faith by withholding evidence from him and the court that proved his innocence and in pursuing a prosecution that it knew or ought to have known was unsustainable. In attempting to advance this latter facet of his argument, Mr.

Khakh alleges ICBC and Crown counsel engaged in racial profiling and targeted him for investigation and prosecution because of his ethnicity. [ 16 ] On the question of the amount of costs that should be awarded, Mr. Khakh claims an entitlement to the full amount of the legal fees paid or owing to his counsel for both the trial and the appeal. Moreover, he seeks reimbursement for the costs of the transcripts that were prepared for the appeal. In total, Mr. Khakh seeks approximately $15,000.

Position of the Crown Respondent [ 17 ] The respondent submits there is no reason to depart from the general rule that an order for costs against the Crown in a criminal or quasi-criminal prosecution is usually not granted unless there are exceptional circumstances. [ 18 ] In denying that the prosecution of Mr. Khakh was a frivolous one, the respondent points to the ambiguous nature of the ICBC notes and records and the fact that both the prosecutor at trial and counsel for Mr. Khakh overlooked the exculpatory portions of those materials.

The issue of materiality was an arguable issue at trial, says counsel for the respondent; however both parties failed to address it in any concerted manner and in particular the ICBC materials were not brought to the attention of the court.

Consequently, the learned Provincial Court judge never had an opportunity to examine those materials and consider their relevance to the issue of materiality. [ 19 ] The respondent maintains that while the trial prosecutor may have been mistaken in not fully appreciating the materiality issue and the ICBC materials that addressed it, there is no evidence he acted negligently or in bad faith or allowed himself to be improperly directed or influenced by ICBC officials. Moreover, the respondent asserts that Mr.

Khakh’s contention that his prosecution was racially motivated is wholly unfounded and borders on the defamatory. [ 20 ] The respondent further submits that Mr. Khakh’s misconduct during the course of the prosecution disentitles him to any award of costs. [ 21 ] Finally, the respondent takes issue with the amount and nature of the costs being sought by Mr. Khakh. Arguing the evidentiary foundation justifying the amount sought is lacking, the respondent proposes this second issue be addressed at a subsequent hearing in the event I rule in favour of Mr.

Khakh on the first issue and conclude an award of costs should be made. The Law [ 22 ] Section 112(1) of the Offence Act governs the first issue in this case. That

section reads, in part:

(1) If an appeal is heard and determined, or is abandoned or is dismissed for what of prosecution, the appeal court may make any

order with respect to costs that it considers just and reasonable. [23] In R. v. Neustaedter, 2003 BCSC 39, the appellant successfully appealed against his conviction for speeding. In addition tohaving his conviction overturned, Mr. Neustaedter sought an award of costs against the Crown. In reasons that neatly summarize asummary conviction appeal court’s ability to award costs to a successful appellant, Stromberg-Stein J. (as she then was) explained: [3] A superior court hearing an appeal of a

summary conviction has a broad discretion under s. 826 of the Criminal Code to awardcosts that it considers “just and reasonable”, including costs against the Crown: R. v. Ouellette, (SCC), [1980] 1 S.C.R.568. [4]

Section 112 of the Offence Act is similarly worded, and should be constructed in the same manner as the Criminal Codeprovision on account of their “long parallel history”: R. v. Port McNeill (Town) (1998), (BC CA), 123 C.C.C. (3d)392 (B.C.C.A.), leave to appeal to S.C.C. dismissed [1998] S.C.C.A.

No. 209 (Q.L.). [5] Costs may also be awarded as a remedy for a Charter breach under s. 24(1) of the Charter: R. v. 974649 Ontario Inc. (2001),2001 SCC 81 , 206 D.L.R. (4th) 444 (S.C.C.). [6] While s. 826 provides a broad discretion to an appeal court to award costs, a defendant in a criminal case is generally not entitledto costs, regardless if he or she is successful on the merits of the case: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500.

InM.(C.A.), costs were denied to the appellant as it was found there was nothing “remarkable” about the circumstances of the case, nor any“oppressive or improper conduct” alleged against the Crown, that would justify an award of costs. [7] In R. v. King (1986), (BC CA), 26 C.C.C. (3d) 349 (B.C.C.A.), the Court recognized three classes of caseswhere costs might properly be awarded against the Crown: 1. Where the prosecution by the Crown has been frivolous; 2. Where the prosecution has been conducted for an oblique motive; or 3.

Where the case has been taken by the Crown as a test case. [8] In addition, there may be other classes of cases where costs may be awarded, but any new class must be “some special categorylike the three categories” listed above: King at 351. [24] In R. v. Taylor, 2007 BCCA 250, Mr. Justice Hall examined the question of awarding costs to successful appellants in

summaryconviction appeals. In confirming that the ordinary rule is that successful appellants generally do not get an award of costs, Hall J.A.provided the following helpful guidance: [22] In my opinion, judges in

summary conviction proceedings who are entertaining an application for costs against the Crown mustbe cautious in awarding such costs. There may have been a time in the 19th century at a period when

summary conviction proceedingswere often brought on behalf of private interests that a practice grew up, somewhat akin to civil practice, where costs were often awardedagainst a prosecutor who was acting more in a private character than in a state character. That regime has clearly ceased to be the norm inmost prosecutions in Canada in modern times.

Summary conviction proceedings are now usually brought by and on behalf of the stateand as noted by Lamer C.J. in R. v. M.(C.A.), supra, the general rule is that costs are not routinely awarded in criminal cases in thiscountry. [23] Madam Justice McFadyen said in R. v. Robinson (1999), 142 C.C.C. (3d) 303 at 315, 1999 ABCA 367 that a reason to limit costsawards is because the Crown is not an ordinary litigant and does not win or lose but rather conducts prosecutions and makes decisionsabout prosecutions in the public interest. Discussion [25] Mr.

Khakh does not allege his case falls into any class of case beyond those listed in King. Nor does he suggest his entitlementto costs is based on his case being a “test case”. Instead Mr. Khakh maintains that the circumstances of his case fall into either or both ofthe first two of the King categories. That is, the prosecution was a frivolous one and/or it was conducted for an oblique motive. I willaddress each of these categories separately. Was the prosecution of Mr. Khakh a frivolous one? [26] In R. v.

Stevovic, 2011 BCCA 460, at para. 30, Rowles J.A. explained that the word “frivolous”, in the context of anincarcerated appellant’s application for bail pending appeal, is “a term of art and means the party bringing the appeal can be said to betrifling with the court or wasting the time of the court, or that the appeal is not capable of reasoned argument.” In my respectful opinion,this definition is equally applicable to the instant case such that “frivolous” means the Crown’s prosecution of Mr. Khakh was a waste ofthe court’s time or was a futile one incapable of reasoned argument. [27] Mr.

Khakh is critical of the Crown for having proceeded with its case against him when, he asserts, the prosecutor at trial knewor ought to have known that certain ICBC materials put in doubt the Crown’s ability to prove a material misrepresentation. I do not shareMr. Khakh’s view of the notes and records in question or the futility of the prosecution. In my view, the respondent is correct in that thequestion of materiality could have been addressed by both sides in a more fulsome manner at trial.

The fact of the matter is that not onlywere the ICBC materials overlooked by both the prosecution and the defence, but both parties appear also to have failed to recognize andappreciate the importance of the “materiality” issue in general. In presenting their final arguments before the learned trial judge, both theprosecutor and counsel for Mr. Khakh devoted most of their attention and energy to the question of whether Mr. Khakh had misleadICBC when he informed them that he had been driving his vehicle at the time of the accident.

Very little was said about the materialityof that alleged misrepresentation to the charges before the court. What little argument there was appears to have arisen in an impromptu

and unstructured manner during the course of counsel for Mr. Khakh’s brief reply submissions. The following colloquy between the court and counsel for Mr. Khakh during those reply submissions, reproduced at p. 36 line 38 to p. 38 line 8 in the transcript of the Proceedings at Trial on 18 October 2011, illustrates the point: THE COURT: -- because I don't think you made the point. MR. CHRISTIE: Material to a claim. It wouldn't be material to a claim. What claim? He's not claiming to be a driving instructor. He's not charged with being a driving instructor when he had no licence. That's a separate matter, right.

I think it's the same for Count 1. If he gave information that was material to a claim that he knew or ought to have known was false, well, what claim? THE COURT: All right, so I just want to make sure I understand you. You're saying even if I were to accept completely that the accident happened as described -- MR. CHRISTIE: While he was a passenger -- THE COURT: Sorry? MR. CHRISTIE: While he was a passenger giving driving lessons. THE COURT: It still doesn't matter. They still haven't proved a thing. MR.

CHRISTIE: I don't think they have, but I would say this, that one of the main methods of assessing the credibility of an otherwise sane person is to say, well, before I decide he's lying I have to consider that if he's not insane he'd have to have a reason to lie. That's a -- THE COURT: Okay, but let's say -- MR. CHRISTIE: That's a method -- THE COURT: -- we've got past that point. MR. CHRISTIE: All right. THE COURT: Let's say we've got past that point and I've concluded that everything your client told me is absolute nonsense. You're still saying it really doesn't matter because it's not material to the claim.

MR. CHRISTIE: Well, I'm struggling with that because the claim is -- yes, I'm saying that in essence, right, because -- THE COURT: That's what I want to hear your friend on. MR. CHRISTIE: Okay, well, all right. MR. HAY: The answer is that I believe that he was specific that Mark Beveridge was specifically asked on that point and that's where the Crown's case rests. If it's not there -- THE COURT: Well, I'd better look at my notes. MR. CHRISTIE: I'm really struggling with the question of what material -- of what claim is he giving information to which that information is material that he knew was false.

Is it information that he was actually a passenger when he alleges he was a driver? How does that change any claim? What claim? THE COURT: Well, you're saying it doesn't. MR. CHRISTIE: Yeah. Well, I mean, surely I'm hopeful that somewhere along the line my poor benighted mind will get an answer to that question because there has to be a claim of some consequence that my client is actually supposed to be making to which this representation which my friend says is false is material. THE COURT: Okay. MR. CHRISTIE: I'm there.

I'm still without an answer and I'll leave it there because I don't know what the answer could possibly be. [ 28 ] In his reasons for judgment, the learned trial judge tellingly observed: [12] As the evidence unfolded at trial and as counsel made their submissions afterwards, it became evident to me that the focus was on the first question, whether the statements were false or misleading, to a much greater extent than on the second question, whether the statements were material to a claim. [13] I must say that from my point of view, with the obvious benefit of hindsight, the far more difficult question is the second one.

It is perhaps unfortunate that it received such glancing attention at the trial itself. [ 29 ] I agree with the respondent’s submission that the ICBC notes and records did not make the Crown’s case unsustainable at trial. The ambiguous nature of those materials called for further investigation. While that follow-up work could have been conducted by the Crown, there is no evidence that the trial prosecutor deliberately chose not to do so. Instead, it appears he overlooked the impact the materials may have had on the strength of the Crown’s case.

This mistake on the part of the prosecutor did not, in my respectful opinion, render the case void ab initio as suggested by Mr. Khakh. It should also be noted that enquiries regarding the ICBC materials and the issue of materiality could have been undertaken by the defence. That is, counsel for Mr. Khakh could have spoken with the prosecutor

about the ICBC notes and records and the materiality issue in general prior to the matter coming on for trial. Counsel for Mr. Khakh could also have attempted to speak with the ICBC representatives who authored the notes. Those discussions may have resulted in a completely different outcome for Mr. Khakh. However, given that those discussions never occurred, we will never know what might have resulted from them.

I recognize that at times counsel for an accused person may not want to engage in such discourse with investigators or the prosecutor for doing so might alert the Crown to a potential weakness in the prosecution’s evidence that it had not previously noticed and thus allow it to rectify the situation prior to trial. Counsel for the accused might strategically prefer to avoid such discussions so that the accused can rightfully take full advantage of any evidentiary lapses in the Crown’s case at trial. However, that would not appear to be the situation in Mr. Khakh’s case for counsel for Mr.

Khakh did little with the ICBC documents and failed to address the issue of materiality in any sustained or meaningful way at trial. [ 30 ] If the Crown’s case against Mr. Khakh had been as worthless or pointless as Mr. Khakh now contends, then his counsel at trial could have made a no-evidence motion at the conclusion of the Crown’s evidence. No such motion was made. Instead, the defence commenced its case by calling Mr. Khakh to the witness stand and it did so without seeking from the court any time to consider whether a motion for a directed verdict would be appropriate in the circumstances.

The defence could also have presented evidence or cross- examined Crown witnesses on the issue of materiality, but it did not. Instead, Mr. Khakh spent most of his time testifying about who had been driving his vehicle at the time of the accident and why Ms. Brar had changed her evidence and was an unreliable witness. In the end, it was Mr. Khakh who was found by the court to be unworthy of belief. [ 31 ] Overall, the manner in which the defence at trial was conducted indicates Mr. Khakh believed he had a case to meet necessitating the presentation of defence evidence. It also indicates Mr.

Khakh did not perceive the prosecution’s case against him as frivolous or unable of reasoned argument. Was the prosecution of Mr. Khakh conducted for an oblique motive? [ 32 ] Counsel for Mr. Khakh argues that by failing to review and appreciate the nature of the ICBC notes and records that addressed the issue of the materiality, the trial prosecutor failed to conduct himself in an honest and forthright manner. [ 33 ] In his written submissions on costs, counsel for Mr. Khakh explained: … 6.

If the Crown had conceded at the outset that the identity of the driver was not material, then the trial would have been unnecessary and there would be no reason to believe Mr. Khakh was lying. The fact the Crown chose not to so advise the court, as they should have at the outset, forced Mr. Khakh to testify as to what was the truth, and likely contributed to his being disbelieved. They now repeat the argument that he lied to defeat costs. This is self-serving and dishonourable. … 8.

It is the incumbent duty on Crown Counsel in all prosecution to be candid and fair and to introduce evidence that supports the accused where it is clearly known to him, since it is not the duty of the Crown to get a conviction, but simply to conduct a fair trial on all the evidence known to them. If it is alleged that the defence, by oversight, failed to mention what an adjuster said about the immateriality of Mr. Khakh’s statement, it cannot be excused that Crown Counsel chose not to bring it to the court’s attention when it was part of his own case and one of his own witnesses.

To withhold evidence that proves innocence of the accused is not a commendable course for Crown Counsel, or an excuse for avoiding costs. [ 34 ] In his written reply submissions on costs, counsel for Mr. Khakh added the following: 1. … the adjuster’s notes are the definitive documents in regard to materiality. These documents were in the possession of counsel for the Crown, and were clearly indicative of the fact, of which the Crown should have been well aware, that they were supporting evidence for an obvious conclusion, namely that there was no material misrepresentation.

To ignore the evidence in his own possession and blame counsel for the defence for not raising it is to deliberately close your eyes to the evidence of your own witness in your own possession. It is incumbent on the Crown Counsel prosecuting the case to (1) read the law, (2) understand the facts, and (3) apply the law to the facts. If Crown Counsel at trial had done this in an honest and forthright manner, he would have reached the inescapable conclusion that any allegedly false statement by Mr. Khakh was not material to a claim.

Even without the adjuster’s notes, Crown Counsel should have reached this conclusion. [ 35 ] Counsel for Mr. Khakh further suggested that the trial prosecutor improperly allowed himself to be directed by representatives of ICBC who were pursuing a case against Mr. Khakh for racially motivated reasons. In the following portion of the transcript of the proceedings before me on 6 July 2012, found at page 12, line 41 to page 14, line 47, counsel for Mr. Khakh explained: MR.

CHRISTIE: …So you have the two conditions, the frivolous case and what I would call gross negligence on the part of Crown counsel in looking at the simple facts, not with blinders on, not with some concern about who Mr. Khakh is, but with the simple facts, you know, if you left out Mr. Khakh's ethnicity, what's the reason for all this.

That's why I have to -- I'm driven to the conclusion that it's this prima facie concern that East Indians are somehow involved in ICBC fraud, which I must say is not novel to me or my perception, that would elevate what is prima facie a simple case into a massive criminal prosecution with very serious consequences for Mr. Khakh. THE COURT: When you say if you left out ethnicity, what is driving the prosecution, are you suggesting that what was driving the prosecution was your client's ethnicity? MR. CHRISTIE: What was driving ICBC was my client's ethnicity, and they instruct Mr. Hay and he follows instructions.

I don't know -- THE COURT: What do you mean, they instruct Mr. Hay?

MR. CHRISTIE: Huh? THE COURT: What do you mean that they instruct Mr. Hay? Are you saying that ICBC tells the Crown what to do? MR. CHRISTIE: I'm pretty sure that you would put ICBC in the position of a complainant in this case. THE COURT: And does a complainant instruct the prosecution? MR. CHRISTIE: They inform. And I think when your client is ICBC, that's a fairly significant -- THE COURT: Are you saying that the prosecution has a client and that the client in this case is ICBC? MR. CHRISTIE: Well, either that's the case or Mr. Hay made these initiatives on his own, and I don't think so.

THE COURT: What I'm asking you is your submission that ICBC was the Crown's client in this case? MR. CHRISTIE: That's the way I understand it, yeah. They're not -- THE COURT: And that this prosecution under the direction of the client was ethnically based, but for your client's ethnicity it wouldn’t have happened? MR. CHRISTIE: There is no other rational explanation why one would elevate a simple rear-ending accident into allegations of fraud when no claim material to any misrepresentation is ever made. There is no rational explanation for that other than what I say relates to the prejudices that ICBC holds.

THE COURT: Would you agree that the submission that ICBC directs the prosecution and is in effect the client, instructing client, is a novel proposition or are you saying that that's, in fact, an accepted proposition? MR. CHRISTIE: It's an accepted practice. They don't take instructions from -- THE COURT: That ICBC instructs the prosecutors? MR. CHRISTIE: Mm-hmm. THE COURT: All right, that seems fairly novel to me. I thought the prosecutors were -- MR. CHRISTIE: Independent? THE COURT: Yes. MR.

CHRISTIE: Well, they should be, and I believe and with all due respect to the Crown counsel that they take instructions as to what the facts are and they take instructions on what to do in a case from ICBC in these circumstances, this type of charge. That's the practical reality. Nobody else tells the prosecutor what to do. Nobody else informs the prosecutor. THE COURT: Don't you think the prosecutor makes the decision independently? MR. CHRISTIE: In which case -- THE COURT: Isn't it the idea of independence of prosecutorial discretion? MR.

CHRISTIE: There should be and there is that principle, but too often, as is in this case the situation, the prosecutor is I say directed or misinformed. Mr. Hay of his own discretion I doubt would have proceeded with a charge like this. I think there's a lot of pressure on prosecutors to pursue people under these charges because there is a fact, a very grave concern by ICBC about fraud.

There's all kinds of people trying to defraud ICBC, and I don't think I'm the first to say that there's been a number of cases where, if you look at the names of those people prosecuted for fraud, there's a large number of people of East Indian ethnicity who have been engaged in that, and I suppose there's a belief about that. But I can't understand how any other explanation can be given that makes any sense, because of what I was given by way of disclosure, this turned into a major case when it was a simple rear-ending that was negligent on the part of the third party. Why else was this pursued?

And if it wasn't ICBC, then it was Mr. Hay's discretion. In either case the case was improperly pursued. [ 36 ] While the adversarial nature of our justice system requires counsel to resolutely stand up for their client and not shy away from advancing positions that may be unconventional, provocative or controversial, there is always an obligation on counsel to do so in a principled manner supported by some evidentiary foundation. There is no evidence that supports the proposition that the investigation and prosecution of Mr. Khakh was racially motivated.

Nor is there any evidence that the trial prosecutor allowed ICBC representatives to direct him or improperly influence him in the conduct of the prosecution. Notwithstanding what counsel for Mr. Khakh suggested, there is nothing in the evidence to indicate the Crown counsel at trial abdicated his role as an independent and impartial prosecutor in favour of becoming an advocate for ICBC and its interests. While counsel for Mr. Khakh was passionate in vigorously arguing Mr. Khakh’s position, in my respectful view his submission that Crown counsel had a racially based oblique motive in prosecuting Mr.

Khakh amounted to nothing more than unfounded and rash speculation. [ 37 ] Finally, in my view there is no merit to the argument that the trial prosecutor intentionally withheld any information or evidence from the defence or the court. Counsel for Mr. Khakh had full disclosure of the Crown’s case. The ICBC materials that touch on the issue of materiality were disclosed to the defence months in advance of Mr. Khakh’s trial. Whether counsel for Mr. Khakh chose to review all of the disclosure material was something beyond the control of the Crown.

At trial, the defence used some of the notes for purposes other than addressing the issue of materiality. Clearly, the defence was aware of the ICBC materials; however, it would appear

counsel for Mr. Khakh did not fully understand their contents, appreciate their full value or consider the entire range of their use at trial.Furthermore, notwithstanding the fact that the authors of some of the notes and records testified as Crown witnesses, the defence failedto cross-examine them on the issue of materiality.

In my view, the manner in which the trial proceeded and the nature of the questionsasked of the witnesses who testified indicates the ICBC notes and records were simply overlooked by both sides rather than deliberatelycircumvented or concealed by the prosecutor in an attempt to avoid an obvious issue that might benefit Mr. Khakh. [38] I repeat what I noted earlier and that is the defence had ample opportunity to consider the ICBC materials and develop anargument relating to the issue of materiality, but it did not do so.

Consequently, I fail to see how it can now complain that the prosecutionacted improperly in not drawing the potentially exculpatory portions of those notes to the attention of the court. In my view, theprosecutor in Mr. Khakh’s case did not improperly withhold any potentially exculpatory evidence from the defence. On the contrary, fulldisclosure was made to the defence, including all of the ICBC materials. Once that was done, it was for counsel for Mr. Khakh toexamine the materials to determine what, if any, of them could be used to the defence’s advantage at trial. In my opinion, the trialprosecutor in Mr.

Khakh’s case had no obligation to lead as part of the Crown’s case potentially exculpatory evidence that had beendisclosed to the defence: R. v. Jolivet, 2000 SCC 29 , [2000] 1 S.C.R. 751, at pp. 762-763, paras. 14 - 16. Does Mr. Khakh’s conduct at trial disentitle him to an award of costs? [39] In addition to arguing that the prosecution of Mr. Khakh was not frivolous or conducted for improper motives, the respondentasserts that Mr. Khakh should be disentitled to his costs because of his misconduct and misrepresentations during the investigation andat trial. [40] The learned trial judge found Mr.

Khakh to be an untruthful witness regarding the identity of the person who was driving hisvehicle when the accident occurred. At para. 14 of his reasons for judgment, the trial judge observed: [14] I have no doubt whatever in concluding that the defendant’s statements concerning both the identity of the driver of his vehicleand the extent of his own injuries or disabilities were deliberately false and misleading. [41] The trial judge also reached the very serious conclusion that Mr. Khakh was involved in the creation of a fraudulent documentthat he attempted to rely on at trial.

In his reasons for judgment, the trial judge explained: [24] Number 3, I also found the evidence about the elusive “second statement” from Ms. Brar to be highly relevant in mydeterminations. [25] Ms. Brar testified that she provided a comprehensive statement to the ICBC investigator, Gerald Poitras, in February 2009. Inthat statement she described taking a driving lesson from the defendant on the day of the accident, and said that she was driving under hisdirection when the car in which the two of them were riding was rear-ended. She identified the statement for the court. [26] Ms.

Brar was then shown the second statement by defence counsel in which she apparently told a different story. In that secondstatement, she spoke of being a passenger in the vehicle at the time of the accident, and said that the defendant was the driver. Ms. Brartestified that she had indeed seen this second statement before. She said that the defendant brought it around to her house to sign at sometime after the accident, but that she had never signed it.

I note that there is indeed a marked difference between the signatures on the twoalleged Brar statements. [27] The defendant testified on this issue and, in my view, he essentially sunk his own ship. He testified that he asked Ms. Brar towrite the statement while the events were still fresh in her memory.

He testified that she apparently did so in his absence, then providedthe signed version to him, all within days of the accident. [28] The defendant conceded that on this version of the events, he must surely have had the second statement in his possession at the time he spoke to the adjuster, Mark Beveridge, on November 25th, 2008, and also when he spoke to the investigator, Gerald Poitras,some three weeks after that. [29] I find it inconceivable that, if he did indeed have the signed statement from Ms. Brar in hand, he would fail to advise at leastMr.

Poitras of that fact, especially in light of the investigator’s pointed assertion during the course of the interview that ICBC hadevidence that he was not the driver. [30] The statement in fact was not brought to light until the middle of the trial in this court, after Ms. Brar had given her evidenceidentifying herself as the driver of the defendant’s vehicle at the time of the collision. [31] In the circumstances, I think there is only one conclusion; namely, that the second statement is a concoction either prepared bythe defendant or at his instigation.

That conclusion severely damages the defendant’s credibility. [42] In his Notice of Appeal from Conviction, Mr. Khakh set out two grounds of appeal: 1. That the ruling was against the law and against the weight of the evidence; and 2. Such further and other grounds as counsel may advise on reading the transcript of evidence. [43] In his factum filed 27 April 2012, Mr. Khakh articulated with greater specificity the grounds of his conviction appeal as follows: 1. Did the learned trial judge err in concluding there was no reasonable doubt that the Appellant’s statement was false? 2.

Did the learned trial judge err in concluding that the Appellant’s statement was “material” to the claim? [44] According to Mr. Khakh, the trial judge’s conclusions regarding Mr. Khakh’s credibility were contrary to the weight of the

evidence at trial. Given that the Crown conceded Mr. Khakh’s appeal on the issue of materiality alone, Mr. Khakh was not able to pursueand obtain a finding on his alternate ground of appeal. Consequently, Mr. Khakh contends it would be unfair to consider the trial judge’sconclusion relating to Mr. Khakh’s credibility and conduct at trial on the issue of costs. [45] In each of his two grounds of appeal, the “statement” referred to by Mr. Khakh is his statement to ICBC that he was driving hisvehicle when it was struck by Ms. Dulc’s vehicle. There is no suggestion or submission on the part of Mr.

Khakh that the learned trialjudge erred in concluding Mr. Khakh was involved in the fabrication of Ms. Brar’s “second statement”. Counsel for Mr. Khakh didsubmit that absent the charges and trial, there would have been no reason to believe Mr. Khakh was lying. I am not persuaded by thatargument. It was Mr. Khakh’s initial statement that led to the investigation, charges and trial. In any event, and leaving aside the learnedtrial judge’s finding that Mr. Khakh’s statement to ICBC was deliberately false and misleading, I agree with the respondent’s submissionthat Mr. Khakh’s involvement in the creation of Ms.

Brar’s fake “second statement” and Mr. Khakh’s use of the statement at trialamounted to an attempt to commit a fraud on the court and further justifies denying Mr. Khakh’s request for costs. In reaching thisconclusion I have kept in mind the following comments of Southin J.A. in Sandhu v. Braich (1991), (BC CA), 61B.C.L.R. (2d) 273 (C.A.), at p. 278, paras. 22 - 23: [22] …Odd though it may seem to a layman, a finding by a judge, on a balance of probabilities, that he does not believe a witness isnot the equivalent of a finding that, by his evidence, that witness has attempted to commit a fraud on the Court.

The latter is a graverfinding which requires more compelling evidence then does the determination of credibility which often is upon a knife edge. [23] Secondly, such abuse of the court may be better addressed either by an order depriving the plaintiff of costs or, in extremecircumstances, by ordering the plaintiff to pay the costs of the defendant. Conclusion [46] In my opinion the prosecution of Mr. Khakh was not a frivolous one, in that it was not a futile case incapable of reasonedargument or one that was clearly a waste of the court’s time.

It would appear a key issue (i.e., materiality) was not fully canvassed attrial, notwithstanding the fact that there was documentary evidence touching upon the issue in the possession of both the Crown and thedefence. The fact that the issue was missed by the trial prosecutor meant the Crown’s case was susceptible to a potentially successfulmotion for a directed verdict. The Crown’s mistake at trial does not mean the prosecution was meritless or unsustainable from the start. [47] While it is regrettable that neither the prosecutor at trial nor counsel for Mr.

Khakh recognized or appreciated the potentialimportance of the ICBC materials, I fail to see how such an oversight on both sides can or should be recast as gross negligence on thepart of the prosecution or, worse, mala fides on the part of the prosecutor. In my view, the issue could have been addressed in a morecomprehensive way and the failure to do so cannot be attributed solely to the Crown. Having provided the defence with full disclosure, itwas for the defence to investigate and present whatever exculpatory evidence existed.

The fact that there was no application for adirected verdict at the close of the Crown’s case indicates to me that Mr. Khakh believed the prosecution was not a frivolous one andcalled for the presentation of defence case. If Mr. Khakh thought the prosecution was destined to fail from the outset and continued toharbour that belief at the close of the Crown’s evidence, then he could have and should have applied for a directed verdict. He did notand to me that indicates the prosecution was not frivolous. [48] There is also no evidence that supports Mr.

Khakh’s contention that his prosecution was inspired or influenced by any obliqueor improper motives. [49] In conceding Mr. Khakh’s appeal, the Crown submitted it was not in the interest of justice to attempt to resolve the ambiguity ofthe ICBC notes regarding materiality at a re-trial. I accept this submission as a reflection of sound reasoning and the proper exercise ofindependent prosecutorial discretion. [50] The onus is on Mr. Khakh to show it would be just and reasonable to make an award of costs in his case. In my view,Mr. Khakh has failed to do so. [51] Given my finding that Mr.

Khakh is not entitled to an award of costs, the determination of the quantum of those costs becomes amoot issue that need not be addressed. Order [52] Mr. Khakh’s application for an award of costs against the Crown is dismissed. “G.R.J. Gaul J.”