R. v. Mak et al. Date:, 2017 BCPC 74

Citation: R. v. Mak et al. Date: 20170316 2017 BCPC 74 File No: 34977-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LAI PING MAK, KC DEVELOPMENT LTD and JOSEF KLIMO aka JOZEF KLIMO dba ABC TREE SERVICE RULING ON APPLICATION OF THE HONOURABLE JUDGE P.R. MEYERS Counsel for the City Prosecutor: W. Robert LeBlanc Counsel for Lai Ping Mak: Jeremy E. Shragge Place of Hearing: Vancouver , B.C.

Date of Hearing: December 6, 2016 Date of Judgment: March 16, 2017 [1] Counsel for Mak and KC Development Ltd. (“The Applicants”) have applied to the Court for an Order directing that the City ofVancouver Bylaws Prosecutors produce further documentation with respect to this case. [2] More specifically, the documents which they request are the following: (

i) all communications or notes of communications, between City Staff Members, including those between Members of the Planningand Development Services Department and Staff and other City Departments; (ii) all communications or notes of communications, from City Staff Members to external parties; (iii) all communications, or notes of communications, between City Staff Members and City of Vancouver Counsellors; (iv) all communications, or notes of communications, between City Staff Members and the Office of the City Manager; (

v) all communications, or notes of communications between City Staff Members and the Office of the Mayor of Vancouver; (vi) for greater certainty, all reports, memos, forms, correspondence and any related supporting documents, contained on theDOMICO Electronic Document Filing System in any way related to the tree cutting; and (vii) full particulars of a Report by Mr.

Chad Neufeld, dated June 16, 2015, relating to a previous Protection of Tree Bylaw Infraction [topping] at 3692 W. 18th Avenue, Vancouver, BC, as well as the City Disclosure package relating to that past Infraction. [3] The Applicants argue that the documents are necessary for them to make full answer and defence to the Regulatory Offencescharged against them under the City of Vancouver Bylaw 9958 in connection with the removal of trees. [4] This Application is made pursuant to the decision in the case of R. v.

Stinchombe, (SCC), [1991] 3 SC.R. 326. [5] The Applicants made it clear that this Application was not being made pursuant to the decision in the case of R. v.

O’Connor, 4S.C.R. 411. [6] The relevant parties involved are Lai Ping Mak who is the Owner of the property at 3854 W. 38th Avenue in Vancouver, KCDevelopments Limited who is the Developer of the property, Josef Klimo who is the Owner/Operator of ABC Tree Service, RaymondLeung who is the Construction Manager, and an individual by the name of John Wu, who apparently was hired to cut down the trees onthe property. [7] There are several issues to decide in this Application: (

a) Firstly, are the documents requested, physically in the possession or “deemed” to be in the possession of the City Prosecutor byvirtue of the wide umbrella definition of “Crown Counsel”, who are prosecuting the Bylaw case? (

b) Is this Application properly made under the Stinchcombe decision or should it have been made under the O’Connor decision? (

c) Are the documents requested necessary for the Applicants to be able to make full answer and defence to the Regulatory Offencescharged under the Bylaw? [8] On the surface, the facts of this case, both the admitted facts and those facts disputed, are quite simple. (

a) Ms. Mak owns the property; (

b) Ms. Mak hired both a Developer and a Construction Manager who in turn hired a tree cutter; (

c) Three trees were cut down in the backyard to make room to build a three car garage; (

d) Ms. Mak says that the City initially granted a Permit to cut down the three trees in the backyard in order for her to build the threecar garage; (

e) The City of Vancouver say that there was never a Permit issued to cut down any trees in the backyard nor was a Permit issued tobuild a three car garage in the backyard. The City says that Ms. Mak was granted a Permit to cut down trees in the front yard only; (

f) The City say that they have checked all of their records and could not find any record of a Permit ever being issued to cut downany of the trees in the backyard nor any Permit granting permission for the building of a three car garage at the back of the property; (

g) To date, the City has disclosed a large quantity of documentation, including emails back and forth, which clearly set out that theApplicants’ initial Application to build a three car garage and to cut down three trees in order to do that, had been rejected from the verybeginning. In short, the City say that the Permit that Ms. Mak alleges exists, does not exist; and (

h) The individual employees of the City who were responsible for issuing Permits, will testify that they had never signed, consentedto nor saw anything at all, permitting the destruction of any trees in the backyard nor approving building a three car garage on theproperty.

[ 9 ] Although it is the third Question posed in Paragraph 7, that is: “Is the disclosure requested by the Applicants necessary for them to be able to make full answer and Defence to the charges?” I want to deal with this Question first. [ 10 ] As I see it, the Permit that the Applicants describe either exists or it does not exist. The City say that such a Permit does not exist. The Applicants say that they know that it does exist because they were given it. [ 11 ] If the Applicants have the Permit(

s) that they say they have, they will be able to produce same and that will be their full and complete answer to the case against them. If the Applicants do not produce the Permits that they say they have, the case will be decided on the Permit(

s) which the City produces. [ 12 ] Accordingly, the Applicants have not satisfied the Court that the documents which they request are necessary for them to be able to make full answer and defence to the Bylaw charges before the Court. [ 13 ] Although I am tempted to deal with the interesting questions of whether the Application is properly made under R. v. Stinchcombe or whether the Application should have been made under R. v.

O’Connor , I am opting to follow the advice often given by our Superior Courts and that is, if an issue raised is not necessary to decide to make the Decision in the case, resist the temptation to engage in unnecessary obiter dicta . [ 14 ] The Application is hereby dismissed. _______________________________ Judge Paul R. Meyers Provincial Court of British Columbia