R. v. Boykiw, 2021 BCPC 33

Citation: R. v. Boykiw 2021 BCPC 33 Date: 20210304 File No: 36496-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT BOYKIW and DAVID AFFLECK CBA DYNAMIC TREE SERVICES REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE Z. MAKHDOOM Counsel for the Crown: D. Howieson Counsel for Robert Boykiw: R. Kasting Counsel for David Affleck: J. Gopaulsingh Place of Hearing: Vancouver , B.C. Date of Hearing: March 20, 21 and April 05, 2019 Date of Ruling: February 22, 2021 Date of Written Reasons: March 04, 2021

INTRODUCTION: [ 1 ] The matter proceeded on March 20, 2019, and after two further days of trial, it was adjourned for a decision. A series of issues included lost or delayed transcripts, COVID-19 related Court closures, led to a much regretful and unfortunate delay in rendering these reasons. BACKGROUND: [ 2 ] This is a case about five Western Red Cedar trees, hereafter Trees, located on 3170 Ash Street, Vancouver, BC, a property owned jointly by Ms. Ida Kaplan and her daughter Ms. Odie Kaplan.

A 15-Count information sworn on July 12, 2018, alleging Robert Boykiw and David Affleck, doing business as Dynamic Trees Services (hereinafter the Accuseds), did compromise health and safety of these otherwise healthy Trees, in contravention of several regulations set out in the City of Vancouver Protection of Trees Bylaw 9958. The allegedly illegal actions include: 1. Remove bark from or cause any damage to five trees, Counts 1, 4, 7, 10, and 13, contrary to section 8(2)(

a) of the Bylaw 2. Prune those trees hence compromising their characteristic appearance to the extent that it is unlikely ever for these to regain their characteristic appearance, Counts 2, 5, 8, 11, and 14, contrary to section 8(2)(

e) of the Bylaw 3. Climb retention trees using, “climbing gaffs, spurs, or spikes”, Counts 3, 6, 9, 12, and 15, contrary to section 8(2)(

f) of the Bylaw. CHARGES: [ 3 ] Count 1, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of remove bark from or cause any damage to a tree, contrary to

section 8.2(

a) Vancouver Protection of Trees By-Law 9958. [ 4 ] Count 2, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of prune tree to extent unlikely to regain health, contrary to

section 8.2(

e) Vancouver Protection of Trees By-Law 9958. [ 5 ] Count 3, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of climb a retention tree using gaffs, spurs/spikes, contrary to

section 8.2(

f) Vancouver Protection of Trees By-Law 9958. [ 6 ] Count 4, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of remove bark from or cause any damage to a tree, contrary to

section 8.2(

a) Vancouver Protection of Trees By-Law 9958. [ 7 ] Count 5, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of prune tree to extent unlikely to regain health, contrary to

section 8.2(

e) Vancouver Protection of Trees By-Law 9958. [ 8 ] Count 6, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of climb a retention tree using gaffs, spurs/spikes, contrary to

section 8.2(

f) Vancouver Protection of Trees By-Law 9958. [ 9 ] Count 7, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of remove bark from or cause any damage to a tree, contrary to

section 8.2(

a) Vancouver Protection of Trees By-Law 9958. [ 10 ] Count 8, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of prune tree to extent unlikely to regain health, contrary to

section 8.2(

e) Vancouver Protection of Trees By-Law 9958. [ 11 ] Count 9, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of climb a retention tree using gaffs, spurs/spikes, contrary to

section 8.2(

f) Vancouver Protection of Trees By-Law 9958. [ 12 ] Count 10, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of remove bark from or cause any damage to a tree, contrary to

section 8.2(

a) Vancouver Protection of Trees By-Law 9958. [ 13 ] Count 11, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of prune tree to extent unlikely to regain health, contrary to

section 8.2(

e) Vancouver Protection of Trees By-Law 9958. [ 14 ] Count 12, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of climb a retention tree using gaffs, spurs/spikes, contrary to

section 8.2(

f) Vancouver Protection of Trees By-Law 9958. [ 15 ] Count 13, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of remove bark from or cause any damage to a tree, contrary to

section 8.2(

a) Vancouver Protection of Trees By-Law 9958. [ 16 ] Count 14, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of prune tree to extent unlikely to regain health, contrary to

section 8.2(

e) Vancouver Protection of Trees By-Law 9958. [ 17 ] Count 15, on or about January 13, 2018, at or near Vancouver BC, did commit an offence of climb a retention tree using gaffs, spurs/spikes, contrary to

section 8.2(

f) Vancouver Protection of Trees By-Law 9958. THE LAW: [ 18 ] Relevant law respecting the protection of trees inside the municipality is as follows; Vancouver Charter SBC 1953, c55, sections 291 (

k) and (

l) enables the Council of the City of Vancouver to enact and enforce regulations for the protection of trees. It reads:

(

k) for regulating the planting and care of shade or ornamental trees upon a street, and for prohibiting the injury or destruction of such trees ; (

l) for causing any tree upon a street to be trimmed or removed when deemed necessary in the public interest; [ 19 ] A Bylaw thus enacted, City of Vancouver Protection of Trees, Bylaw 9958 (hereafter the “Bylaw”), regulates the tree canopy inside a very dynamic, yet geographically limited urban landscape of Vancouver.

In the fall of 2011, the Vancouver City Council, hereafter the “Council”, approved the “Greenest City Action Plan 2020” which enabled the Council and the Park Board to further approve a number of measures under “ The Urban Forest Strategy” to further its plans for protecting, as well as improving the tree canopy. Enactments and diligent enforcement of these legal instruments was a big part of this strategy.

In 2014, then in force, the Protection of Trees Bylaw was given a fresher read. [ 20 ] Gone were the provisions pursuant to which a property owner may, under a permit issued by the City of Vancouver (hereafter the “City”), remove one tree every year, off their property. The newly amended Bylaw prohibited; (

a) s. 2.3, all removals excepting the ones deemed necessary by a public utility, or (

b) s. 2.4, Parks Board decision to remove or relocate a tree, or, (

c) pursuant to the provisions set out in s.11.2 of the Bylaw. The City embarked upon vigorous enforcement of the Bylaw violations. Anecdotally, the raw number of cases brought before our Courts arising from the alleged noncompliance of the Bylaw saw a marked increase. In case of convictions, the prosecution routinely sought much higher penalties plus court orders under s.333 (

c) of Vancouver Charter , requiring the offending parties to replace the trees. Mr. Boykiw’s rather unwarranted tryst with this Bylaw unfolded during this time of the heightened awareness of the need for a healthy tree canopy for Vancouver and the consequent sensitivity to the breaches. The material sections of the Bylaw read: 8.2 A person must not: (

a) remove bark from, or cause any damage to, a tree; (

f) prune a tree to the extent that it is unlikely ever to regain its characteristic appearance; (

g) climb a retention tree using climbing gaffs, spurs or spikes; TRIAL & EVIDENCE [ 21 ] 3170 Ash Street (hereafter the “Ash St. House”), is a multi-unit dwelling house owned by Ms. Ida Kaplan and her daughter Odie Kaplan since June 2010 (Exhibit 30). The property is divided into separate suites. At the time of the commission of these offences, all of those units were occupied by renters. The senior Ms. Kaplan, 96, is a resident in a long-term care facility. Apparently she has entrusted the care, maintenance and management of this property to Ms. Odie Kaplan.

This is a corner property located at the place where West 16 th intersects with Ash Street. Unlike the property to its east, this property is adorned with the Trees. [ 22 ] 575 West the 16 th Avenue (hereafter “W.16 th House”), is also a multi-unit dwelling house. In August 2015, this property was acquired by 1045628 B.C. Ltd., with Mr. Boykiw, listed as the sole director, with registered address at 569 West 16 th Avenue, the same address that houses Reguis Group, whose CEO is Mr. Boykiw. Under an arrangement the former owner of the property, Ms.

Georgina, was permitted sole use of the property until January 2017. [ 23 ] Afer Mr. Boykiw secured the possession of the W.16 th House in 2017, he inspected the interior of the house and found severe deficiencies needing immediate action. Asbestos off the walls was removed, which exposed rotting walls, and rear stairs. The property was designed to house two independent suites and three housekeeping units. Access to these units needed work. The City wouldn’t approve any changes to the plan due to the power limitations. Mr.

Boykiw concluded that neither the stairs could be restored nor the higher amperage power could be brought in without “lifting the limbs” of the Trees. [ 24 ] There is evidence that between 2015 and January 2018, the Trees were pruned several times, including one pruning conducted and directed by the BC Hydro presumably to avoid, sparking and arcing of the power cables. The Monkey Tree Services, a company we would talk about later, have been engaged as long-term regular arborists by Ms. Kaplan. But all of the foregoing wasn’t enough to accommodate Mr.

Boykiw’s need for developing the property back to being a revenue-generating, multi dwelling unit. After all, the company under Mr. Boykiw’s sole directorship bought the property for investment purpose, not for its great looks. [ 25 ] In 2016, Davey Trees did pruning, after BCHydro had performed their share. [ 26 ] On the material date of January 13, 2018, Mr. Affleck was retained by Mr. Boykiw to perform allied tasks at a nearby property under his care. Upon being advised that work on that property was done, Mr. Boykiw directed Mr.

Affleck to prune Trees that were located on the adjacent property to the east of the W.16 th House. However, Mr. Boykiw had not intimated to Mr. Affleck that the trunks of the Trees he is ordering pruned are not located on his property but are on the yard of the Ash St. House. [ 27 ] Mr. Affleck gave evidence that he is cognisant of the Bylaw that authorises pruning of branches even if the trunks of those trees are not located inside the property of person retaining his services.

If any portion of those trees is encroaching on the subject property, in this case W.16 th House , it would indeed be a fair game to prune away the Trees. However, remaining mindful of the Bylaw. [ 28 ] On the inaugural hearing date, co-accused Mr. Affleck pled guilty to three Counts, 7, 10 and 13, relating to the damage to Trees number 3, 4, and 5; the balance of the charges concerning him were withdrawn by the City and Affleck ended up being called by the City as a witness. Subsequent to a joint submission by counsels for the City and Mr.

Affleck, he was fined $1,500 reflecting a penalty of, $500, on each of the three Counts pled. [ 29 ] Mr. Boykiw pled not guilty on all 15 Counts. The ensuing trial was somewhat protracted given the usual

summary process in our Court. The Court heard from 7 witnesses. The City adduced evidence through five witnesses, including the accused Mr. Affleck, the

owner of property located at 3170 Ash Street, Vancouver, and an expert witness, while the Defence presented two witnesses including the accused Mr. Boykiw. Additionally, 30 items were marked as exhibits. [ 30 ] On December 29, 2015, the law firm representing Mr. Boykiw was sent a reply by Ms. Kaplan (Exhibit 10) to their two letters that she received in November and December of 2015, advising her of their client’s concerns regarding trees located on her property encroaching on the property at 575 West 16 th .

Thus constituting the tort of nuisance, disrupting their client’s enjoyment of his property, and offering to pay half the cost of pruning of these trees all the while soliciting a reply in earnest. Failing which, threatening her with a litigation in the Supreme Court of British Columbia as well costs for bringing in such application before the Court (see Exhibits 8 & 9). In her aforementioned letter dated December 29, 2015, Ms. Kaplan wrote: We have no objection to Mr.

Boykiw, (at his own expense) cutting the branches encroaching onto his property. (emphasis added) [ 31 ] Somewhere between December 2015 to March 2016, Mr. Boykiw decided to buy the Ash St. House. He sent Ms. Kaplan an email (Exhibit 11) to that effect, offering her $3.5 million for her property. In his testimony he denied engaging in “land assembly”, emphasising he wished to buy the property in order to effect a solution to his need for dealing with the Trees. [ 32 ] On the material date of January 13, 2018, Mr. Affleck was originally retained by Mr. Boykiw to perform allied tasks at a nearby property.

Upon being advised that work on that property was done, Mr. Boykiw directed Mr. Affleck to prune trees east of the 16 th Ave. House. However, Mr. Boykiw had not intimated to Mr. Affleck that the trunks of the trees he is ordering pruned are not located on his property but are on the yard of the Ash St. House. [ 33 ] Mr. Affleck gave evidence that he is cognisant of the Bylaw that authorises pruning of branches even if the trunks of those trees are not located inside the property of person retaining his services.

Briefly stated, if any portion of those Trees is encroaching on the subject property, in this case the West 16 th House, it would indeed be a fair game to prune away the Trees. [ 34 ] Following Mr. Boykiw’s gaining the possession of the West 16 th House, he inspected the interior of the house and found severe issues that needed immediate action. Asbestos off the walls was removed, which exposed rotting walls and rear stairs. The 4000 square feet “character” property was designed to contain two independent suites and three housekeeping units. Access to these units needed work.

The City wouldn’t approve any changes to the plan due to the power limitations. Mr. Boykiw concluded that neither the stairs could be restored nor the higher amperage power could be brought in without “lifting the limbs” of the Trees. [ 35 ] Between 2015 and January 2018, the Trees were pruned several times, including one pruning conducted and directed by the BC Hydro, as indicated earlier, presumably to avoid sparking and arcing of the power cables. Davey Trees pruned in 2016. The Monkey Tree Services, a company we would talk about later, have been engaged as long-term regular arborists to Ms. Kaplan.

But all of the foregoing wasn’t enough to accommodate Mr. Boykiw’s need for developing the property back to being a multi dwelling unit. After all, the property was purchased for investment purposes. [ 36 ] Mr. Affleck gave evidence that he is cognisant of the Bylaw that authorises pruning of branches even if the trunks of those Trees are not located inside the property of person retaining his services. If any portion of those Trees is encroaching on the subject property, in this case W. 16 th House, it would indeed be a fair game to prune away the Trees, so long there is no trespass. [ 37 ] Mr.

Affleck is the sole proprietor of Dynamic Tree Services. He presented as a fairly competent and credible person engaged in the business of tree management, including, tree removals, pruning, crown reduction, spiral pruning. Experienced in the discipline of tree management, with few courses under his belt offered by the International Society of Arboriculture (ISA), but not certified as an “arborist” by this body.

There is no evidence that ISA is a legally constituted regulatory body at either provincial or federal level, such as College of Physicians and Surgeons or the Law Society, but is an internationally recognised standards and accrediting entity. The ISA Certified arborists are routinely accepted as expert witnesses in our courts dealing with the matters of tree management. [ 38 ] Upon being directed, Mr. Affleck attended the W.16 th House, where he met with Mr. Boykiw who directed him to “lift limbs” off the Trees to the “property line”. Mr.

Affleck advised him that the best way to “lift limbs” is to prune them right to the collar or trunk of the tree. I do not accept the defence contention that Mr. Boykiw was “talked into” accepting such method of cutting. There is no evidence that Mr. Affleck’s advice was met even with a meek rejoinder or sought further explanation. He was given the go ahead while being cautioned not to trespass. [ 39 ] Ms. Lise Pilon, one of the renters in the Ash St. House and Ms. Odie Kaplan testified. Ms. Pilon occupies an upper floor apartment on the northeast side.

When she goes out to the balcony, she would “…see the trees” (Transcript, 20 March 2019, p.22). She was home on the material day when she heard noises outside and then she saw men “…sawing the trees” (ibid.) this prompted her to call Ms. Kaplan. Who attended the site in earnest and found men climbed up her Trees. She asked them to stop cutting and then took position under one of the Trees. The cutting paused. Mr. Affleck phoned Mr. Kaplan. The work had effectively stopped but for Mr.

Affleck’s co- worker removing the cut limbs, etc. [ 40 ] Heath Czypionka, landscape inspector for the City attended the material property on January 22, 2018. He found that: The limbs were removed on the east portion of the tree that was overhanging the property line, right to the trunk of the tree…Not the entire tree, but probably the majority of the tree and that most likely had to do with access and the climber’s ability.

The tops most likely were just too small to support the weight of the – of the arborist, hence probably why they weren’t able to carry on with – with the removals…This is a speculation – on my part, but – so I observed trees that were – five trees that had the majority of – all their limbs removed to the…right to the trunk of the trees, so from my perspective…the trees had lost the characteristic. (p.77) [ 41 ] On February 5, 2018, he submitted his “Landscape Inspection Report” (exhibit 23). He found majority of the east-facing tree limbs were removed off all five Trees in question.

He wrote, “…that half the canopy has been removed of all the subject trees”. He also noticed spur marks caused by the climbing equipment that may have been utilised in the process of removing the limbs. He testified that,

“The puncture marks where the spurs entered into the tree were very fresh.” At the time of his authorship of the foregoing report, Inspector Czypionka, a certified arborist, has been engaged in arboreal culture for almost 30 years. [ 42 ] But by this time, as per Inspector Czypionka’s report, all limbs excepting ¼ of the top on the east facing side of the Trees were cut to the core, collar or trunk. He wrote in his report: I am of the opinion that these trees are unlikely to ever regain past physical characteristics. Aerial imagery shows all these trees with a full canopy which is spherical and full.

This spherical canopy form would be considered typical of such coniferous trees. The resulting canopies have had a significant number of limbs removed from their once spherical forms creating now lopsided trees. The missing canopy will not be able to replenish the missing canopy and the resulting growth will be so sparse in the locations where limbs were removed; hence the tree is unlikely to ever regain its natural characteristic. The resulting canopies will not have the ability to address wind stresses adequately and the tree is prone to failure and present additional risk to property and persons.

The accumulated stresses upon the tree will cause the tree to decline and lead to nearly death. The trees have in essence half of their photosynthesizing sites removed; thus retarding the tree to generate food, through photosynthesis, for its full growth. (Exhibit 23) [Empasis added] [ 43 ] Expert findings : In a letter dated February 4, 2019, to Mr. Seth Mennie, a lead arborist and owner of the Monkey Tree Services, Mr. Howieson issued an express reminder to him that: “As an expert your duty is to assist the court and not to be advocate for any party.” I am of the respectful view that Mr.

Mennie remained faithful to his undertaking. [ 44 ] According to arborist, Seth Mennie, the extent to which pruning of the five Trees was conducted under the direction of Mr. Boykiw was not warranted (p.6, Exhibit 24). Mr. Mennie inspected the Trees on 5 th of February 2019, almost 13 months after the impugned pruning activities conducted under the direction of Mr. Boykiw. He testified that when limbs are cut to the collar or trunk, the tree would basically cure the place where cut was made and close it. His findings and opinions are basically on all fours with Inspector Czypionka’s findings.

His inspection was conducted nine days after the cuts made under Mr. Boykiw’s order. Citing standard arboriculture texts, he reported, …I did not observe new growth in the impact area since the completion of the pruning (one year plus). With the current growing season, new growth should be visible. It is very obvious that the trees have been severely pruned with an intentional over-elevation of the crowns . The pruning actions are not justified in the current context.

I say with confidence that these trees are unlikely to ever regain their prior-to form or condition given the extent of limb removal on the east side as a result of pruning. (Ibid.) [Emphasis added] [ 45 ] Mr. Mennie’s email to Inspector Czypionka of January 18, 2018, triggered the investigation by the City. He testified having a long term professional relationship with Ms. Kaplan as her go-to-guy for her tree-related questions. And that after he stopped climbing the trees, as he assumed the role of a consulting arborist, his company Monkey Tree Services continued providing regular pruning services to Ms.

Kaplan, who from all evidence appears as a genuinely concerned person about the health and security of the Trees. She called Mr. Mennie to help put her on the right path by laying a complaint with the City about “unauthorised and unlawful pruning of the Trees” conducted under the direction of Mr. Boykiw. Although, the defence discerns foulplay, I find Mr. Mennie’s email to Inspector Czypionka was merely to help Ms. Kaplan who wasn’t alive to the process of laying a complaint with the City. Through her long business connection with Mr. Mennie, she felt comfortable soliciting his help.

Furthermore, there is evidence that Monkey Tree Services was engaged to prune the Trees after the January 13 pruning. Mr. Mennie did not disclose that his company pruned the Trees after the material cuts were made. [ 46 ] An expert, Lucian Serban and Mr. Boykiw testified for the defence. Mr. Serban, is an ISA certified arborist, he works as a consulting arborist and urban forester for Davie Tree Expert Co. of Canada Limited. In addition to an undergraduate relevant degree, he has taken multiple courses in Forestry.

He attended W.16 th House on November 23, 2018, and found Tree number 5, wasn’t touched during the January 2018 pruning. Pruning cuts on all Trees 1-4 in January 2018, “…are of an acceptable quality” (Exhibit 25). He further reported that 15% of the live crown was removed from Tree 1, 30-35% was removed from Trees 2 and 3, and 20% from Tree 4. He opined: Given the relative youth of these trees, with moderate to good vigour, I don’t anticipate the pruning to cause any major negative effect on the health of the trees. I noticed some recent “green” growth as a reaction of the trees to the crown’s reduction.

This is a typical good sign of the trees responding to pruning (ibid.) [ 47 ] He reported that spurs were used to climb Trees 1-4, however, these “…spur markings do not appear to affect the health, structure or aesthetics of the trees”, (ibid.) After his inspection, he sent his report titled, Arborist Letter , dated December 6, 2018. However, upon the accused’s request, he prepared another report dated February 27, 2019, documenting his findings after site visits on February 6 and 26, 2019. In brief, since the January 2018 pruning, the Trees were pruned.

He reported that 2 to 41 cuts were performed resulting in removal of 1 to 23 percent of crown. Mr. Mennie admitted his company did indeed prune the Trees after January 2018 in November 2019 but they did not touch the side of trees facing east or towards W. 16 th House. [ 48 ] Mr. Boykiw testified about the challenges he faced dealing with Ms. Kaplan’s alleged intransigence and lack of cooperation in assisting him with his development plans for the W. 16 th House.

ANALYSIS & FINDINGS [ 49 ] The material Trees adorn an urban landscape, these form, as the contemporary language suggest, part of Vancouver’s urban forest. When we choose to own real property in an urban setting, we implicitly engage in a regulatory realm, including regulations respecting the landscaping, protection, propagation, care and maintenance of trees that are found on one’s property. Unlike the growth of trees in their natural forest habitat, where Mother Nature performs its duty of their stewardship, trees inside urban centres, such as

Vancouver, require care by the property owners as I reflected when articulating the Law

section above. Whether they reside or activelyuse the property or have rented it out, owners of property have lawful duty to conduct all of the activities set out in the Bylaw to properlysteward and protect trees. [50] I’m mindful of the disputes involving neighbours, especially when it comes to the management of trees. Even a cursory review ofthe evidence in the case at Bar would reveal a situation of stark acrimony between Ms. Kaplan and Mr. Boykiw. Per testimony of Ms.Pilon and that of the expert Mr. Mennie, shows that she is very much committed to protecting her Trees. Mr.

Boykiw, on the other hand,appears as a consummate professional businessman. Their values clash. While Ms. Kaplan is keen on protecting her Trees, Mr. Boykiwis protecting his investment. He wasn’t a happy camper that his entreaties to cut the Trees were squarely frustrated; or his attempts atacquiring Ash St. House were snubbed. Ms. Kaplan was heart-broken that only 25% crown of her healthy and well cared for Trees wereleft intact and that according to Inspector Czypionka, a very qualified arborist, and an expert, Mr. Mennie, these Trees would neverregain their characteristic appearance.

Even a quick glance at Figures 2 and 3 in Mr. Serban’s second report (exhibit 26), the east facingside of Trees 1, 2, reveals nary a limb was left on the east-side of the Trees excepting few at the very top. Respectfully, even if therewasn’t any expert evidence, albeit contradicted by another expert, available, I do not need an expert to tell me that these trees have losttheir characteristic appearance. Exhibits 18 through 22 afford a photographic evidence of how the canopy looked like on these Treesprior to the cut-job by Mr. Affleck.

Inspector Czypionka’s report sets out how the “spherical and full canopy” of these was removed andwhy the Trees would not regain their characteristic appearance. Expert Mr. Mennie agrees. [51] Expert Mr. Serban says no permanent damage has been caused. He observed a few green twigs growing where the cuts weremade as the basis of his conclusion. Mr. Mennie, in presenting a very cogent analysis of the parts of tree, had maintained that a trunk isnot a branch. It is the source from which multiple branches flourish, subsequently these become limbs, giving a tree its architecture and astructure to its crown.

Limbs are the hosts that hold multiple branches on which twigs grow that have leaves and buds at their top.According to Mr. Mennie’s rather persuasive evidence, proper pruning of a tree without compromising its characteristic appearance is toprune “inside” the crown, through selective and strategic cuts to branches and twigs and not chopping off the limbs. [52] Mr. Boykiw commissioned an unqualified tree trimmer to “lift the limbs”, as opposed to performing selective and strategic cuts.His direction was specific. Mr.

Affleck simply advised him that the most efficient way of accomplishing the task of “lifting the limbs”was to cut them to the collar or to the trunk. Mr. Boykiw wasn’t fazed by this information. His resolve to “lift the limbs” did not dampen,instead he gave Mr. Affleck a go ahead. [53] I do not find Mr. Serban’s evidence to live up to the rigorous methodological and empirical standards of philosophy of science.All of his observations concerning the individual Trees seemed consistent with the “advice” he received from the accused. Mr. Mennie,persuasively contradicts many of his findings.

During cross examination, Mr. Serban replaced specificities by proffering generalities. Inone such exchange between Messrs. Howieson and Serban, the former quipped, “…you’ve given us a lot there, and…I don’t know quitewhat to make of it”. This was a very polite way of letting Mr. Serban know that his proclivity to avoiding specificities while sticking bygeneralities is not very helpful. Rather than deal with what may have happened to a specific Tree, Mr. Serban tended to launch intolecturing us on the attributes of species.

I find this fact curious in the least. [54] However, sufficient grounds for me to attach significantly less weight than I would assign to Mr. Mennie’s testimony and report.Notwithstanding, his failure in disclosing his close professional relationship with Ms. Kaplan. His services were retained by the City toprepare the report and appear as a witness. The City was cognisant that the initial complaint of the cutting of the limbs of these Treeswas brought in by Mr. Mennie at the behest of Ms. Kaplan. There were no secrets in that regard. His scholarship, rigour, and ability tostick to the specifics was helpful.

I agree with Mr. Howieson that Mr. Mennie’s gainful business relationship with Ms. Kaplan is akin topolice officers, who are employees of the Crown, appearing as expert witnesses in motor vehicle cases or even in matters involvingbreaches of s. 253 of our Criminal Code. [55] The last minute reference to the case of City of Vancouver v. Michael Richter, et.al, (2019, unpublished, Provincial Court ofBritish Columbia, Vancouver Registry #36185-1) a decision of my learned colleague, His Worship Christopher Maddock, was veryhelpful.

I must distinguish that case on the fact that while Justice Maddock conceptually and factually could not prefer evidence of oneover other of two experts, who gave contradictory evidence. Thus leaving him in a quandary. Hence reasonable doubt. Applying thesecond branch of R. v. W.(D.), (1991) (SCC), 1 SCR 742, he acquitted the accused. In the case at Bar, findings andopinions of both experts are at odds with one another. Following my analysis above, I have attached lesser weight Mr. Serban’s findings.I have no doubt in my mind that these Trees would never regain their characteristic appearance.

Furthermore, damage to the barks andthe use of spurs for climbing may further weaken these Trees. [56] Taking in account the evidence in its entirety, including the testimony and reports of both experts, as well Inspector Czypionka, acertified arborist, albeit not qualified as an expert, I am left without any reasonable doubt that Counts 1 through 14 have been proven. [57] There are three further issues that need to be addressed. Issue 1: Is Mr. Boykiw vicariously liable for breaching material provisions of the Bylaw? [58] In the context of strict liability matters, vicarious liability is a known fact of law.

The bulk of jurisprudence from the superiorCourts involve corporate defendants. Consequently, it is often mistakenly believed that vicarious liability exclusively attaches tocorporations. Both counsel made excellent arguments invoking a number of cases that are routinely cited during similar deliberations, insupport of their arguments. Most of the cases in that context drawing from the common law perspectives on the question of aiders andabettors.

As such, I’d distinguish these on the grounds that an owner’s vicarious liability is a distinct condition that must not be conflatedwith that of the aiders and abettors. The former works in situations where mental element (mens rea) must be proved. In regulatoryrealm, mental element is inconsequential. Vicarious liability occupies a central core of prosecutions. [59] In British Columbia, owners of motor vehicles are routinely charged for breaching a wide variety of motor vehicle laws.

In theCity of Vancouver, property owners are held responsible for breaches of a vast array of bylaws, Building, Animal control, Street andTraffic, Standards of Maintenance, Zoning, Fire, Public Health, as well as Protection of Trees bylaws. Retail store owners are charged

for breaches of provincial public health regulations, such as selling tobacco to minors. In Canadian Dredge & Dock Co. v. The Queen(1985) (SCC), 1 S.C.R. 662, at paragraph 20, Mr. Justice Estey wrote: “It is the wrongful action of the ‘primary’representative which by attribution to the corporation creates ‘primary’ rather than ‘vicarious’ liability, according to the identificationtheory.” However, when the wrongful action of the charged party is merely ownership of the property, I find reasons of Judge Brecknellof this Court, observed in R. v. Gwaii Wood Products Ltd., et al

(2015) BCPC 292, very persuasive. He maintains that, an owner cannotsimply contract away their responsibility. [60] Some argument has been advanced by the defence that the property located at 575 West 16th is owned by a numbered companyconsequently liability doesn’t flow to Mr. Boykiw. Respectfully, following the Canadian Dredge and Gwaii cases, I disagree. I acceptthe Crown argument that Mr. Boykiw initiated, ordered, or organised this impugned pruning activity.

He was the motor that causedunfurling of unlawful occurrences leading up to the City laying the material charges on July 12, 2018. [61] Since the Crown has proven actus reus beyond a reasonable doubt on all Counts, excepting Count #15, Mr. Boykiw is free toadvance a due diligence defence. Issue 2: The offences belong to the category of strict liability. Has Mr. Boykiw made out the defence of due diligence? [62] Negligence is the fault element of strict liability.

Further, once Crown has proven the actus reus beyond a reasonable doubt,negligence is presumed, unless the accused on balance of probabilities establishes that they took all necessary and diligent care. Mr.Justice Dickson, as he then was, held in, R. v. Sault Ste. Marie, (SCC), [1978] 2 SCR 1299, that: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facieimports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.

This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may properly be called offences of strict liability. [63] The ”original sin” of Mr. Boykiw that led to the cascade of events was the moment, without his arm being twisted, henonchalantly agreed with Mr. Affleck to “lift limbs” by pruning these to the “collar” or trunk of the Trees.

There is no evidence that Mr.Affleck had to engage in some sort of debate or painstakingly make a case for “perfect cuts” to the trunk of the Trees. Arborist Mr.Mennie, emphasised that pruning to the property line would have saved Mr. Boykiw the aggravation, the taxpayers the huge cost ofprosecuting this case, and likely there would not have been scars on the relationship between neighbours; both with hearts in a goodplace, one committed to protecting her beloved Trees, the other his business interests. [64] Mr. Boykiw appears as a man of wide experience and background in the areas of real estate and development.

During hisappearance before me he presented as a knowledgeable, thoughtful, soft-spoken, generous fellow. He was born in Vancouver, he grew upin the neighbourhood identified as “Cambie Village” where the material properties are located. With such a connection to thisneighbourhood, his nonchalance is inexplicable. It is demonstrable lack of care nevertheless. [65] Due diligence defence operates on the standard of balance of probabilities. The evidence in the case at Bar does not demonstrateeven a small modicum of diligence outside of issuing express directions to not trespass. In R. v.

Wholesale Travel Group Inc. (SCC), [1991] 3 S.C.R. 154, Mr. Justice Cory wrote that: “...It is absolutely essential that governments have the ability toenforce a standard of reasonable care in activities affecting public welfare.” I do not find any diligence on the part of the accused. Issue 3: Has Mr. Boykiw established evidential grounds for entitlement to the necessity excuse? [66] In his short eloquent reply to the Crown’s submissions, Mr. Kasting indicated that necessity defence is not being sought.However, in conflating the circumstances of Mr.

Boykiw with a Kafkaesque dilemma, he did manage to raise the specter of findingvindication of the allegedly unlawful, yet necessary, deeds of his client. Perhaps harkening back to a Hobbesian injunction set out in theclassic, Leviathan, that “…no Law can oblige a Man to abandon his own Preservation.” Hobbes, Thomas, Leviathan (Baltimore:Penguin Books, 1968) at page 230. He said: We have an old house that has five units…its designated as character and so it can’t be easily demolished and you can’t reduce thenumber of units. But because it’s so rotten, you need a development permit from the city, right.

You can’t – you can’t get a developmentpermit ‘cause you don’t have enough power. [Emphasis added] [67] The original concerns of the accused piqued consequent upon the messages he was receiving from the former owner of the property at 575 West 16th about arcing and sparks caused by wind when electric supply wires from the front would tangle in thesprawling canopy of the Trees. In case of any incident, the entire tree, and the ground beneath it, may get electrocuted posing seriousthreat to the safety and security of the inhabitants as well as the users of the adjacent sidewalk.

At that time, I could discern proffering anexcuse or a justification although not expressedly articulating it as such. After everything was said and done. After we heard sevenwitnesses, including two highly qualified experts, generating substantial transcript material, hours of court time, Mr. Kasting’s lasteloquent invocation does pack inside a plea for excusing his client’s actions because he did not have much choice but to do what endedup doing.

Hence, the need for engaging in the following analysis. [68] The common law defence of necessity operates in Canada, by virtue of s. 8(3) of the Criminal Code of Canada, R.S.C. 1985, c.C-46. The Supreme Court of Canada in, R. v. Perka, (1984) (SCC), 2 S.C.R. 232, conceptualised this “defence” asjustification or excuse for the illegal action in order to avoid liability. Perka, concerned smuggling of then contraband, Cannabis, worthmillions of dollars. The sale of the contraband was deemed highly consequential given contemporary societal and legal approachtowards Marihuana. I realise the actions of Mr.

Boykiw would not produce consequences even remotely akin to those of Perka, et.al. Assuch, a brief contextual analysis of Perka is in order.

[ 69 ] Mr. Justice Dickson, writing for the majority, set out a three-part test for the defence of necessity to succeed: (1) the actions of an accused must be an involuntary response to an imminent and overwhelming peril. The peril must be so real and so imminent that normal human instinct would cry out for action; (2) dearth of reasonable lawful alternatives to the offending action; and (3) proportionality test.

The action of the accused must not be disproportionate to the peril, in other words, the “evil” that was being avoided must not be greater than the “evil” of breaking the law. [ 70 ] I agree that electrocution of a tree may led to unfortunate consequences. It is a real and dangerous peril that must be avoided. A homeowner receiving complaints about arcing is really in a tough bind. They must do something to dispel their fears. The raison d’etre for finding a solution was reasonable. His previous entreaties with Ms. Kaplan had netted nothing more than an unfortunate acrimony. He needed to act.

The dweller living in his property had a right to safe lodgings. Additionally, any harm caused to Ms. Georgina, the former owner of the property, who sold it to the numbered company that has Mr. Boykiw as the sole director, may create substantial liability issues for him. The defence is successful establishing existence of a peril that warranted action. [ 71 ] The Perka review requires the defence evidence to succeed on all three branches of the test.

The criterion is moral involuntariness of the proscribed action that is then measured in terms of the society’s expectations of appropriate and normal resistance to pressure. (

a) Necessity to act, (

b) dearth of lawful alternatives, and (

c) proportionality test. The alternatives Mr. Boykiw did pursue, alternatives that he must have found to be of sufficient merit, such as offering to buy the Ms. Kaplan’s property. He denied pursuing a land assembly. However, his experience in developing three large condo projects east of 475 West 16 th Avenue, one of those located at 469 West 16 th Avenue, is a 53 unit strata property that Mr. Boykiw manages for a family trust. A business card of Mr. Boykiw, admitted as Exhibit 13, announces him as the CEO of Reguis Group with offices at 569 West 16 th Avenue.

Later in his testimony he also spoke of his interest in a property located on West 13 th Avenue, the place from where his tree trimmer, Mr. Affleck, was sprung to “lift limbs” off the material Trees, located inside Ms. Kaplan’s property. The outcome of this “lifting of limbs” led to Trees numbered 1, 2, & 3 to look as seen on page 5 of Exhibit 23, the Landscape Inspection Report of Inspector Heath Czypionka of the City of Vancouver. These pictures were snapped about 9 days after Mr. Affleck’s pruning activity.

Expert Lucian Serban’s second report, Exhibit 26, shows same Trees 1, 2, & 3, photographed on November 23, 2018 and February 6, 2019. The east facing side of the Trees with crowns raised extremely high and reduced to a bare minimum. Mr. Mennie says these cuts were unnecessary as pruning can be conducted without altering the characteristic appearance of these Trees. He gave examples of getting deep under the canopy to do selective cuts involving twigs, branches or even tunnelling if there is a concern of electric wiring. I’m not an expert in trees.

I grew up in Sindh which is an area rich in deserts and sand and not trees. Conifers like Western Red Cedar are nowhere to be seen in that largely dry habitat. I’m fascinated and inspired by the beauty of trees here in the Pacific Northwest but I do not have an expertise in their life cycle or other features. I find Mr. Mennie’s assertions highly persuasive hence my finding that there were lawful alternatives to pruning the limbs right to the “collar” or trunk and that in doing so the character appearance of the specific Trees has been altered to the point of no return thus breaching s.8(2)(

e) of the Bylaw. [ 72 ] The foregoing renders any further analysis of proportionality moot. I must, therefore, disentitle Mr. Boykiw to the necessity excuse. [ 73 ] Based upon the foregoing, I am left with no choice, but with greatest of respect, find Mr. Boykiw guilty on Counts 1-14. I am acquitting him on Count 15, as there is a reasonable doubt that Tree 5 was climbed using spurs. _____________________________ Judicial Justice Z. Makhdoom Provincial Court of British Columbia