Gillespie v. Pompeo, 2013 BCSC 843

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Gillespie v. Pompeo, 2013 BCSC 843 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 Counsel for the plaintiff: J.A.S.

Legh Counsel for the defendant, David Pompeo: S. Conroy Place and Date of Chambers Hearing: Victoria, B.C. May 3, 2013 Place and Date of Judgment: Victoria, B.C.

May 16, 2013 [ 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”