R. v. Gutovich, 2023 BCSC 1938

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Gutovich, 2023 BCSC 1938 Date: 20231011 Docket: 34397 Registry: Vancouver Rex v. Harold Gutovich Before: The Honourable Justice Blake On appeal from: An order of the Provincial Court dated May 1, 2023 ( R. v. Gutovich , Docket No. 38359-1) Oral Reasons for Judgment at

Summary Conviction Appeal Counsel for the Crown: C. Armstrong The Accused: No appearance Place and Date of Hearing: Vancouver, B.C. September 22, 2023 Place and Date of Judgment: Vancouver, B.C. October 11, 2023 Table of Contents I. INTRODUCTION .. 3 II. DECISION OF THE JUDICIAL JUSTICE .. 3 III.

SUMMARY CONVICTION APPEALS .. 6 IV. ISSUES ON APPEAL AND STANDARD OF REVIEW ... 6 V. ANALYSIS .. 7 A. Alleged Errors of Fact 7 B. Alleged Error of Law .. 9 VI. CONCLUSION .. 11 I. INTRODUCTION [ 1 ] As these are oral reasons, I make the usual reservation that if a transcript of them is ordered, I may edit them where necessary and quote from the caselaw in more detail, but that the overall substance and result will not change. [ 2 ] The Crown appeals Mr. Gutovich’s acquittal on the charge of violating s. 76 of the City of Vancouver, By-law No. 2849, Street and Traffic By-law (the “Bylaw”) on January 9,

Section 76 provides: The owner or occupier of any parcel of real property shall, not later than 10:00 a.m. every day, remove snow and ice from any sidewalk

adjacent to such parcel for a distance that coincides with the parcel’s property line and for the full width of the sidewalk. [ 3 ] Mr. Gutovich did not attend at the trial on May 1, 2023. At trial, the learned Judicial Justice dismissed the charge against Mr. Gutovich in reasons for judgment issued orally immediately after the conclusion of the trial (“Reasons”). [ 4 ] Mr. Gutovich also did not attend at the appeal of his acquittal, despite being properly served with the notice of hearing and all other appeal materials. II. DECISION OF THE JUDICIAL JUSTICE [ 5 ] At trial, the Crown entered four exhibits:

a) photographs taken by Mr. Gill, a building site inspector, on January 9, 2022, in front of 1121 West 16 th Ave., Vancouver, B.C.;

b) a state of title certificate for the property in question;

c) a tax attribute report for the property in question; and

d) an aerial view of the subject property. [ 6 ] The only witness called by the Crown was Mr. Gill, who testified he was a building site inspector for the City of Vancouver, contracted to deal with snow removal issues in the city, and authorized to enforce the snow removal requirements of the Bylaw. He testified that he was asked to attend at the property after a call came in to 311 with respect to snow not being removed. Mr.

Gill attended at 1121 West 16 th Ave., Vancouver, B.C. on January 9, 2022, at 10:11 a.m., took the photos tendered as Exhibit 1 above, and testified that he noted that there was no snow removal done on the front sidewalk of the property, which was city sidewalk. [ 7 ] After the Judicial Justice confirmed with the Crown that that was the totality of their case, she commented that in reviewing the Bylaw in question, it states that snow and ice must be “removed”.

She noted that it was clear to her that while the sidewalk was not “perfectly clear”, that snow had clearly been removed, and she asked the Crown for some case law on the proper

interpretation of the Bylaw. Crown argued that the Bylaw requires that snow and ice be cleared every day prior to 10 a.m., and the Judicial Justice noted (Proceedings at Trial , p.9, line 35 to p. 10, line 12): It doesn’t say that. I will give you a chance to provide me that information, but the bylaw doesn’t say that the –must be clear. It simply says, “remove snow and ice from any sidewalk adjacent to such parcel.” So something has been removed because you have got the two higher levels. This is not an –one where nothing has been removed. Something has been removed.

So I am looking at the bylaw, and what I am saying to you is, if you are telling me that –the fact that I –what I am looking at on Photograph –the bottom of page 1 on Exhibit 1 and the top of page 2 of Exhibit 1, looks clearly – you’ve got the ridges, so something has been removed. It’s not –the snow is not the same level. It’s not –it is not untouched snow. It’s not trod-on snow. You can see, looking along –especially on Exhibit –page 2 of Exhibit 2, the high ridge of snow on what I expect is likely the grass boulevard. It’s where the signposts are.

It seems to be the same height all along for the one – from 1121 West 16 th to the ones in front, so something –you can see a ridge, something has been removed. So that’s the difficulty I have, is something has been removed. [ 8 ] The Judicial Justice went on to note that the evidence of Mr. Gill was that these were photographs taken on the day in question and went on to state (Proceedings at Trial, p. 10, lines 33 – 43): So on January 9 th , it’s clear to me that there has been removal. It’s just that they are not clear. So if you are telling me that the law says removal is not enough.

It needs to be removed to the point that the sidewalks are clear from snow and ice, I will give you time to get that for me, because I don’t see that, and that’s not the language of the –that’s not the language of the section, unfortunately, and it’s clear that there has been snow removal – snow and ice removal to some degree. [ 9 ] The Judicial Justice gave counsel time over the lunch hour to find case law that dealt with the obligation of property owners to comply with the Bylaw, and specifically whether the obligation was that all sidewalks must be free and clear from all snow and ice.

Crown was not able to find anything directly on that issue. [ 10 ] In her Reasons, the Judicial Justice found that snow had been removed, but that the “sidewalks are not clear”: Reasons at para. 18. She went on to address her

interpretation of the difference between “clear” (which wording she had found over the lunch hour that the City of Vancouver used on their website), and “remove” which is the language of the Bylaw. She determined that snow and ice had clearly been removed from the sidewalk, but that the sidewalk was not “clear”: Reasons at para. 23. She engaged in a discussion with counsel for the Crown, and she noted she could not take judicial notice “that a certain amount of snow is unsafe”, notwithstanding that was what counsel was suggesting: Reasons at para. 30.

She concluded that the photographs presented “very clearly show me the snow has been removed”, and that no photographs, nor evidence, had been tendered to show the sidewalk was not safe : Reasons at para. 36. She concluded in her Reasons: [43] I find snow has been removed. I am gong to find that snow has been removed, which appears to be consistent all the way along, and I do appreciate that they may all be liable, but I am looking at it – and obviously you cannot tell, but I would say looking at – significant snow has been removed.

I would say and find judicial notice significant snow has been shovelled, particularly looking at the ridges both – well, both it is clear on the page 1 – the photograph on page 1 and the photograph on page 2. I agree, it has not been cleared to the extent of the snow, but – that the officer took in the photo, bottom of page 2. However, even that is not completely free and clear of all snow and ice. [44] If this was a balance of probabilities, I may have more concern, but Crown must prove its case beyond a reasonable doubt.

I do find I am left with doubt, obviously, with this, whether or not this individual has complied with the bylaw, because I do find snow has

been removed, and I have not found any help, in terms of the definition of “removal” in any of the dictionaries, and I could not find adefinition of “remove” in the bylaw. But what I have, looking at the City of Vancouver, they do not use the word “remove” on theirwebsite. They use the word “clear”, which is very different than “remove.” It would have been –actually, maybe you could pass alongto the City of Vancouver, perhaps they should be amending the bylaw.

But in this case, somebody has removed snow, and I have noproblem finding beyond a reasonable doubt the photos provided by Crown show that there is snow removal. […] [45] So on the basis of that, I have a reasonable doubt as to whether or not they have complied with the legislation. III.

SUMMARY CONVICTION APPEALS [11]

Part XXVII of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) governs appeals from

summary convictions or acquittals;specifically, s. 813 of the Code provides the authority for

summary conviction appeals. That

section provides that the Crown may appealfrom an order of acquittal.

Section 822 of the Code provides that ss. 684 – 689 (with the exception of ss. 683(3) and 685(5)) apply to asummary conviction acquittal. [12] The Crown’s right to appeal a

summary conviction acquittal extends to appealing on the basis of errors of fact, errors of law, anderrors of mixed fact and law: R. v. Antonelli (1977), 5 B.C.L.R. 154 at paras. 21–22, (C.A.). [13] Pursuant to s. 686(4) of the Code, the court may: dismiss the appeal; allow the appeal, set aside the verdict and order a new trial;or allow the appeal and enter a verdict of guilty with respect to the offence. IV. ISSUES ON APPEAL AND STANDARD OF REVIEW [14] The Crown argues that the Judicial Justice made errors of fact and errors of law.

With respect to their argument that she madeerrors of fact, the Crown argues that the Judicial Justice improperly took judicial notice on two occasions, and improperly withheldjudicial notice on another occasion. With respect to their argument that she made errors of law, the Crown argues that the Judicial Justiceincorrectly interpreted s. 76 of the Bylaw, in finding that it did not require all snow and ice to be removed from a sidewalk. [15] As explained in Housen v.

Nikolaisen, 2002 SCC 33 at paras. 10, 18, 25, a trial judge’s findings and inferences of fact are subjectto the standard of review of palpable and overriding error. Where there is some evidence to support those findings and inferences, anappeal court will not revisit them, absent an error in principle or a palpable and overriding error. See also R. v. Clark, 2005 SCC 2 atpara. 9. [16] Alleged errors of law are reviewable on the standard of review of correctness: Housen at para. 8; see also HMTQ v. Pomeroy,2007 BCSC 142 at paras. 25–29 [Pomeroy].

To determine whether a trial judge made an error of law, the judgment must be read as awhole and in context. [17] However, a trial judge is presumed to know and properly apply the law, and to have taken into account all of the relevantevidence. As a result, and as a general proposition, succinct analysis, or silence, on a particular issue, is not an error in law. Where acomment is open to more than one

interpretation, the

interpretation consistent with the judge’s presumed knowledge of the law prevails,and that presumption is only displaced if an error in law is manifest in the judge’s reasons: Pomeroy at para. 39. [18] Further, I note, in R. v. Sheppard, 2002 SCC 26 at paras. 24–25, the Supreme Court of Canada addressed the issue of sufficiencyof reasons, and commented that a trial judge has a duty to explain to the public and to the accused why they were convicted, and topermit meaningful appellate review.

The Court also noted the time constraints on criminal courts, and specifically noted that trial judgesare not required to set out every aspect of their analysis and their reasons are not held to the standard of perfection: Sheppard at para. 55.Rather, they are required to provide reasons which are reasonably intelligible and provide a basis for meaningful appellate review. V. ANALYSIS A. Alleged Errors of Fact [19] The Crown argues that the Judicial Justice made errors of fact and improperly took judicial notice on two occasions, andimproperly withheld judicial notice on another occasion.

Specifically, the Crown argues the Judicial Justice improperly took judicialnotice that snow had been removed from the sidewalk and that the snow had not been trod on, and improperly withheld judicial noticethat snow or ice on a sidewalk constitutes a safety hazard. The Crown argues that the evidence presented at trial was not reasonablycapable of supporting the trial decision. [20] Judicial notice may only be taken in strict circumstances. In R. v.

Find, 2001 SCC 32, Chief Justice McLachlin (as she then was)explained judicial notice in the following manner: [48] […] the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notoriousor generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accuratedemonstration by resort to readily accessible sources of indisputable accuracy […] [21] After carefully reviewing both the transcript of the Proceedings at Trial and the Reasons, I do not find that the Judicial Justicetook judicial notice of the fact that snow had been removed from the sidewalk and that the snow had not been trod on.

Rather, afterconsidering the evidence tendered at trial, and in particular Exhibit 1, (the photographs taken by Mr. Gill on January 9, 2022), I find shemade findings of fact and reasonable inferences from those uncontested facts. Her findings of fact were based upon her observations of

the photographs. As the photographs provided evidence to support those findings and her reasonable inferences arising from thosefindings, I do not find she made a palpable and overriding error. While I acknowledge she did refer to “judicial notice” in para. 43 of herReasons, I find that was a mis-characterization of what was clearly a reasonable inference drawn—namely that significant snow has beenshovelled and that the snow had not been trod on—from the photographs accepted into evidence.

The Crown’s argument that there wereother reasonable explanations as to why the level of snow on the sidewalk was lower than its surrounding areas on January 9, 2022, ismere speculation, and is not based in any of the evidence tendered at trial. [22] Likewise, I do not find that it was a palpable and overriding error for the Judicial Justice to decline to take judicial notice that acertain amount of snow is unsafe: Reasons at para. 30.

The Crown did not tender any evidence to establish that the sidewalk in front of 1121 West 16th Ave. was not safe on January 9, 2022; rather, they were relying on the Judicial Justice to take judicial notice of that fact.They argue that no such evidence was necessary and say “[i]t therefore defies logic to say that a sidewalk completely covered in snowand/or ice, as in this case, might not pose a risk to pedestrian safety”.

First, I note their reliance on the description the “sidewalkcompletely covered in snow and ice” is an argument, and is not an accurate characterization of the findings of fact made by the JudicialJustice. She found significant snow had been removed, but that the sidewalk had not been “cleared to the extent of the snow”: Reasons atpara. 43. [23] Further, they rely upon a case in which there had been a slip and fall in winter conditions and judicial notice was taken “of thedangers inherent in walking in our winter climate”: Bramer v. City of Hamilton, 2015 ONSC 713 at para. 96.

I am not satisfied that itwould have been appropriate for the Judicial Justice, in the circumstances of this bylaw offence, to take judicial notice that the amount ofsnow shown in the photographs was unsafe. As already noted above, the threshold for judicial notice is strict. The issue of whether thesidewalk was safe on the morning of January 9, 2022, in my opinion, was properly something for the Crown to tender evidence on, andthey did not do so.

I do not accept it was a palpable and overriding error for the Judicial Justice to refuse to take judicial notice that theamount of snow depicted in the Exhibit was unsafe. B. Alleged Error of Law [24] The Crown argues that the Judicial Justice incorrectly interpreted s. 76 of the Bylaw in finding that it may not require all snowand ice to be removed from a sidewalk, and that in making such a finding, she made an error of law.

Section 8 of the

Interpretation Act,R.S.B.C. 1996, c. 238 requires that “[e]very enactment must be construed as being remedial, and must be given such fair, large andliberal construction and

interpretation as best insures the attainment of its objects”. The Supreme Court of Canada has stated that the“words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, . [25] The Crown argues that the object and scheme of the Bylaw is to ensure that sidewalks are safe. They argue that “it isindisputable that any amount of snow or ice on a sidewalk constitutes a safety hazard”. They also rely on the City of Vancouver’swebsite with its reference to “clear” all sidewalks of snow, as evidence that the proper

interpretation of the Bylaw requires that all snowand ice, and not just some indeterminate amount, must be removed from sidewalks. Their position is any other

interpretation of theBylaw would render it ambiguous and unenforceable. [26] With respect, I cannot accede to this argument. The Bylaw requires the owner or occupier of a property to “remove snow and icefrom any sidewalk”. It does not require the clearing of all snow and ice from any sidewalk. Further, even the City of Vancouver’swebsite, although it refers to “clear” instead of “remove”, does not state it is necessary to require the clearing of all snow and ice off asidewalk. While I accept that the purpose of the Bylaw is the safety of the public, I cannot accept that the proper

interpretation of theBylaw is that any amount of snow or ice on a sidewalk constitutes a safety hazard. [27] Whether a specific sidewalk, on a specific date, was rendered unsafe as a result of an owner or occupier failing to remove snowand ice from the sidewalk is an issue which requires evidence of the specific condition of that sidewalk on that date. The Crown failed totender evidence sufficient to satisfy the Judicial Justice that the sidewalk was not safe. The Crown had the burden of establishing abreach of the Bylaw beyond a reasonable doubt, and the Judicial Justice determined they had failed to meet this burden. I accept theJudicial Justice’s approach to the statutory

interpretation, and the burden of proof, was correct. [28] I also note that the Crown argues that the Reasons fail to acknowledge that the Bylaw requires snow and ice to be removed froma sidewalk before 10:00 a.m. “everyday”, and fails to make a specific finding in that respect. The Crown argues that “the failure toconsider this element of the offence constitutes an error in law which may have affected the outcome at trial”.

In my opinion, the failureto specifically acknowledge that the Bylaw requires snow and ice to be removed from a sidewalk before 10.00 a.m. “everyday” does notmean that the Judicial Justice did not turn her mind to this element of the offence. Rather, she did not articulate precise reasons given theuncontroversial evidence regarding the date of snow removal during trial. [29] Less detailed reasons for judgment may be required where the basis of a trial judge’s decision is clearly apparent from the record,even without being articulated: R v.

R.E.M., 2008 SCC 51 at para. 44. [30] In the Reasons, the Judicial Justice clearly noted that the photographs in Exhibit 1 were accurate representations taken byMr. Gill: Reasons at para. 28. Put another way, they were accurate representations of the state of the sidewalk on January 9, 2022, at thetime the photographs were taken (10:11 a.m. and 10:12 a.m.). While the Reasons do not specifically acknowledge that the snow wasremoved on that day, it is apparent from the record that the finding that snow has been removed refers to the evidence of January 9,2022, the day the photographs were taken and Mr.

Gill attended. This was not a situation where there was confused or contradictoryevidence regarding the date of the snow removal. The evidence of Mr. Gill, and the four exhibits, were the totality of the evidencetendered by the Crown at trial, and all evidence depicting the condition of the sidewalk points to the date of January 9, 2022. I amsatisfied that the Judicial Justice clearly addressed the state of the sidewalk as at the time the photographs were taken, and that her failureto make a specific finding as to whether the sidewalk had been cleared that day was not properly an error in law.

VI. CONCLUSION [ 31 ] In all of the circumstances, I therefore conclude that the Crown’s appeal is dismissed. “Blake J.”