Case Name:

                          R. v. Sudweeks

                             Between

                     Regina, respondent, and

                     Mark Sudweeks, appellant

                       [2003] B.C.J. No. 3022

                      [2004] C.C.S. No. 4128

                           2003 BCSC 1960

               Williams Lake Registry No. 02-14699

                  British Columbia Supreme Court

                 Williams Lake, British Columbia

                          C.L. Smith J.

                   Heard:  June 26 - 27, 2003.

                  Judgment:  December 30, 2003.

                           (145 paras.)

     Animals -- Cruelty to animals -- Protected animals -

- Seizure of animals in distress -- Offences -- Criminal

law -- Summary conviction proceedings -- Appeals, grounds

-- Misapprehension of evidence -- Bias.

     Appeal by Sudweeks from conviction and sentence for

causing or permitting animals to be or continue to be in

distress.  Sudweeks owned a property that he used as a

fishing lodge and a care and treatment centre for young

persons during the summer. Horses were an integral part

of the treatment program that was run primarily by

Sudweeks' adult daughters. Sudweeks left the property in

the fall with the 40 horses confined in a pasture with

very little food and no water. He also left 200 pounds of

dog food in a washtub for his seven dogs.  He returned

briefly in mid-December, then left the property in the

care of Tetz who arrived in early January. Tetz found no

dog food on the property, noticed that the horses were

not well, and had no way to contact Sudweeks directly.

The RCMP received a complaint from a neighbour, and they

arranged to meet in Sudweeks' driveway on January 10th.

The RCMP officer noticed the condition of the animals,

entered the property to check on their condition, and was

unable to locate anyone. The officer applied for and

obtained a telewarrant and then returned the next day

with two veterinarians and a special constable from the

SPCA. The veterinarians determined that the animals had

been without adequate food and water for at least two

months.  The animals were seized. On January 15th, the

RCMP returned with a veterinarian and found more horses

and a horse skeleton.  All of the animals seized survived

and recovered in the SPCA's care. The trial judge

rejected Sudweeks' testimony that his daughters were the

ones responsible for the animals' care, that he left

adequate food, and that Tetz was at fault. The judge

accepted Tetz' evidence and concluded that Sudweeks was

responsible for the animals, that he left them in a state

of present distress in mid-December, and that Tetz

undertook to be responsible for the horses and permitted

their distress to continue. Sudweeks received a $2,000

fine on each of two counts and a lifetime ban on owning

or having custody of any animal. On appeal, Sudweeks

argued that the trial judge demonstrated a reasonable

apprehension of bias in his interruptions and

interference with examination of witnesses, in his

obtaining and providing a copy of a newspaper article on

the case to Sudweeks during a lunch recess, and in his

comments about his own personal experience with the care

of horses. Sudweeks also argued that the judge erred in

his findings of credibility, in admitting the evidence

obtained during the searches, and in passing a sentence

that was unduly harsh.

     HELD: Appeal dismissed. Fresh evidence by way of

affidavits from Sudweeks and his daughter were admitted

with respect to Sudweeks' allegations of bias. The trial

judge's interruptions did not generally amount to

cross-examination of the witnesses, nor did it

demonstrate any opinions about the witnesses'

credibility. Any evidence elicited by the judge was more

helpful to Sudweeks than to the Crown. Although the

newspaper article that the judge gave to Sudweeks had a

negative impact on the relationship between Sudweeks and

Tetz, the parties would have seen the article a few hours

or a day later and it would have had the same effect. At

no time did the judge's interference or comments displace

the right to silence or the presumption of innocence. The

judge was even-handed, and if anything, was more helpful

to Sudweeks than to the Crown. The RCMP had authority

under the Prevention of Cruelty to Animals Act to act as

authorized agents for the SPCA in this geographic region.

The trial judge was correct in concluding that the

telewarrant was invalid because the Act had its own

search provisions and it was issued on the basis of

unsworn informations, but he was also correct to conclude

that the evidence was admissible. The Act authorized the

searches because the police had reasonable grounds to

believe that the animals were in distress. In the

alternative, the warrantless searches were justified

because of the exigent circumstances.  Even if the

searches violated the Charter, the evidence was

admissible because of Sudweeks' limited expectation of

privacy, the officers' good faith in believing that they

had valid warrants, the fact that the evidence was

non-conscriptive, the technical nature of the breach, the

lack of other investigative means, the seriousness of the

charges and the importance of the evidence to the

prosecution. Given the extreme condition of the animals,

the police and SPCA had the authority to seize them and

had no obligation to let Tetz attempt to bring them back

to health. Although there was evidence that Sudweeks'

daughters purchased the animals and made decisions

regarding their care, Sudweeks was clearly the one who

had custody of the animals during the relevant period and

was responsible for their care. The evidence reasonably

supported the judge's findings of credibility and

conclusions regarding the facts. The sentence was not

excessive and the trial judge applied the correct

sentencing principles.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, ss. 8,

24(2).

Criminal Code, s. 446(1)(c).

Narcotic Control Act, R.S.C. 1985, c.  N-1, s. 10.

Prevention of Cruelty to Animals Act, R.S.B.C. 1996, c.

372, ss. 1(2), 1(3), 11, 13, 13(1), 13(2), 14, 14(1),

14(2), 15, 22, 24(1), 24(3).

Counsel:

     R.H. Hawkins, for the Crown.

     G. Wool, for the appellant.

     C.L. SMITH J.:--

INTRODUCTION

[para1]     The appellant Mark Sudweeks appeals from his

conviction in Provincial Court on July 19, 2002 on two counts

under the Prevention of Cruelty to Animals Act, R.S.B.C. 1996,

c. 372, s. 24(1) ("PCA Act"), for causing or permitting

animals to be or to continue to be in distress. The counts

relate to horses and dogs found on his property near Anahim

Lake, B.C., on January 10, 11 and 15, 2001.

[para2]     Section 24 states in part:

  24 (1)  A person responsible for an animal who causes or

          permits the animal to be or to continue to be in

          distress commits an offence.

     (2)  Subsection (1) does not apply if the distress

          results from an activity that is carried on in

          accordance with reasonable and generally accepted

          practices of animal management.

     (3)  If a person is convicted of an offence under

          subsection (1), a justice may, in addition to any

          other penalty that may be imposed for the offence,

          prohibit the person from owning or having custody or

          control of an animal for a period of time specified

          by the justice.

[para3]     Mr. Sudweeks also appeals from the sentence, which

was a fine of $2000 on each count and a lifetime prohibition

from owning or having custody or control of any animal.

[para4]     The trial took twelve days. The information

included a total of eight counts, some of which were under s.

446(1)(c) of the Criminal Code for wilfully neglecting or

failing to provide suitable and adequate food, water, shelter

and care for animals. Cheryl Sudweeks, the appellant's wife,

was charged jointly with him on four of the counts but was

acquitted on all counts. The counts under the Criminal Code

were conditionally stayed against the appellant when he was

convicted of the offences under the PCA Act.

[para5]     Bryan Tetz, who had been left in charge of the

property during some of the relevant time, was charged under

separate counts. He was acquitted of the Criminal Code charge

and convicted on the PCA Act offence with respect to the

horses. He was acquitted of the PCA Act offence with respect

to the dogs.

ISSUES

[para6]     The appellant raised four sets of issues:

     (1)  Did the trial judge's comments and conduct in and

          out of the courtroom give rise to a reasonable

          apprehension of bias?

     (2)  Did the trial judge err in law in admitting evidence

          obtained by warrantless searches?

     (3)  Did the trial judge misapprehend the evidence and

          did the trial judge make unreasonable findings of

          credibility?

     (4)  Was the sentence imposed on the appellant excessive?

FACTS

1.   Background

[para7]     The learned trial judge found as fact that Mark

and Cheryl Sudweeks co-owned a property known as the Chilanko

Lodge since 1986. It is near Anahim Lake, about 250 kilometres

west of Williams Lake, and is bisected by Highway 20. The

property to the south of the highway is a 160 acre fenced bush

pasture. North of the highway is an area of similar size where

the main lodge, a secondary dwelling, a number of cabins, two

barns, some outbuildings, an airstrip and a large fenced

corral are located.

[para8]     Until 1996 Mr. Sudweeks and his family lived at

the lodge and operated it as a fishing resort. They also

provided care and treatment for young persons in difficult

circumstances. After Cheryl Sudweeks was seriously injured in

1996 the lodge's operations became seasonal only and the

family began to spend the winter at a home in Utah or in

Mexico.

[para9]     The treatment program for young persons was

expanded and two of the Sudweeks's daughters, Shayla Welling

and Trinity Bennett, became quite involved in it. Horses were

considered an integral part of the treatment program. Ms.

Welling and Ms. Bennett and their husbands took a primary role

in running the Chilanko Lodge operation.

2.   Events leading to the charges

[para10]     The trial judge found that when the 2000 season

at the lodge ended in late November, the 40 horses on the

property were in apparently good condition. One horse was

taken to a neighbour's property and 39 were placed in the

south pasture. There were also seven Golden Retriever dogs on

the property. The Sudweeks family departed for Utah leaving a

youth to keep an eye on things until Mr. Sudweeks returned in

December.

[para11]     The court noted Mr. Sudweeks's evidence that when

he returned to the lodge briefly on December 10-11, 2000 to

pick up his plane, the horses and dogs were all in fine

condition.

[para12]     The court found that Mr. Sudweeks left the horses

confined in the south pasture, which had been grazed off long

before then, leaving no feed. The court accepted Mr.

Sudweeks's evidence that he put out two round bales of hay and

three pails of pellets in the pasture but found that that

amount would not have fed the horses for more than two or

three days. Mr. Sudweeks testified that he supposed that the

water sources in the south pasture were not frozen or would

not freeze when he departed on December 11, 2000. The court

found that the water sources did freeze, not a surprising

event, and that if horses obtain water by consuming snow they

must be given extra feed.

[para13]     The trial judge found that Mr. Sudweeks left 200

pounds of dog food out in a washtub and otherwise left the

dogs to fend for themselves.

[para14]     The trial judge found that sometime before

January 3, 2001, seven horses escaped or were released from

the south pasture. They were seized by a Ministry of Forests

employee on January 4, 2001, all in reasonable condition.

[para15]     The court found that Bryan Tetz, a former foster

child of the Sudweeks and the brother of Darlene Tetz Thomas

(who had been adopted by the Sudweeks), was engaged as a

winter caretaker at the lodge with responsibility to care for

the horses and dogs, that Mr. Tetz came to the lodge with his

girlfriend and their newborn child on January 2, 2001, that

there was no dog food to be found on the property and that the

dogs were starving when Mr. Tetz arrived. The court found that

Mr. Sudweeks did not leave Mr. Tetz with a telephone number or

other means of contacting him directly in the event of an

emergency (although Mr. Tetz could reach his sister, Darlene,

who in turn was able to reach the Sudweeks through leaving a

message for them).

[para16]     The trial judge found that Bryan Tetz moved 27

horses from the south pasture to the corral, likely late in

the day on January 4, 2001. Some of the horses were mares with

nursing foals. The court found that Mr. Tetz knew that two of

the horses were particularly weak; one of them died on January

6 and he removed its carcass. Four or five horses remained in

the south pasture (although Mr. Tetz may not have been aware

of that fact). The court found that the horses confined in the

corral on January 4 were entirely deprived of water until

intervention by the authorities on January 11, although a

horse needs to drink 25 to 30 litres of water a day. They did

have access to some snow. The horses were fed some hay in the

corral but the court also found that the condition of the

horses on January 11 demonstrated that the hay left out for

them had been of poor quality, too little, and not properly

fed out.

[para17]     The trial judge referred to the evidence of the

two veterinarians who were called by the Crown and stated that

the evidence satisfied him that the animals were neglected for

a number of months and not just for a few days or weeks.

[para18]     On January 8, 2001, Constable MacDonald of the

Anahim Lake R.C.M.P. detachment received a complaint late in

the day from Arianne Brink, a local resident, that the horses

at Chilanko Lodge were not being fed or watered, that they

were extremely skinny, and that many of the horses were in

danger of dying in the next few days. Constable MacDonald made

some inquiries on January 9. He arranged to meet Ms. Brink on

January 10 at the Chilanko Lodge driveway.

[para19]     The trial judge found that on January 10

Constable MacDonald had reasonable grounds to believe that

horses at the Chilanko Lodge were in critical distress, and

that he was justified in entering upon the premises without a

warrant for the purpose of taking appropriate action to

relieve that distress. He further found that when Constable

MacDonald embarked upon a warrantless search on January 10,

his actions were reasonable.

[para20]     Constable MacDonald and Ms. Brink, who knew the

property, walked down the Chilanko Lodge driveway. They did

not find anyone. The court found that in fact no other persons

were at the property that morning.

[para21]     Constable MacDonald testified that he saw the

horses in the corral, and that they were "extremely skinny"

and in poor condition. Ms. Brink testified that they were "all

in really bad shape". The trial judge found that the

photographs taken that morning "record that these words are

gentle understatements" and found that one horse was obviously

in urgent need of attention by a veterinarian, and all the

horses had no access to feed or water.

[para22]     On January 11, 2001, Sharon Caddy, a special

constable with the Society for the Prevention of Cruelty to

Animals ("SPCA") came to the property with two veterinarians,

Dr. Long and Dr. Stuart, having been advised by Constable

MacDonald of the animals' condition. Constable Reed of the

R.C.M.P. also attended. He had applied for and obtained a

search warrant. The trial judge concluded that the warrant was

invalid, but that no search warrant was necessary. He also

found that there was no lack of good faith by Constable Reed

or any other R.C.M.P. officer.

[para23]     Bryan Tetz was present on the property on January

11 and told Constable Reed that he was looking after the

place. The court found that when it had been determined that

the animals were in distress and that Bryan Tetz was not

capable of relieving their distress, Constable Reed took

custody of the animals. Neighbours were called in to assist in

loading and transporting them. They were turned over to the

care of the SPCA.

[para24]     The trial judge found that there were 26 horses

in the corral and seven dogs on the property. He found that

each of the animals was deprived of adequate food and

neglected, all of the horses were deprived of water and some

of the horses were seriously suffering. One of the horses had

to be put down. One of the veterinarians, Dr. Stuart, observed

that the horses were infested with lice and worms (suggesting

a lack of care) and stated the opinion that the feet of some

of the horses revealed a longstanding lack of care.

[para25]     The trial judge found that although Bryan Tetz on

January 11 told Constable Reed that there were no other horses

on the property, four horses were later seen in the south

pasture. On January 15 Constable MacDonald, Dr. Long, and

three neighbours returned pursuant to a second search warrant.

Bryan Tetz had left and no-one else was on the property. These

four horses were all found to have been in distress. The

skeleton of a horse was also found in the south pasture.

[para26]     In all, 29 horses and seven dogs were seized, in

addition to the one horse that was euthanized on January 11.

The trial judge noted that all of the animals seized have

survived and recovered in the care of the SPCA.

[para27]     The appellant testified. With respect to the

appellant's evidence, the learned trial judge said

([paragraph]  37 of his Reasons):

     I know that Mr. Sudweeks said that he did not own and was

     not responsible for the horses or dogs, that there was a

     great deal of feed remaining in the south pasture when he

     left the horses there on December 10, that there was also

     some good hay in the barn, that Bryan Tetz was, he

     believed, capable of caring for the horses and dogs, that

     he expected Bryan Tetz to arrive at the Chilanko Lodge

     about December 15, and that while Bryan Tetz may have

     been at fault, he was not. To be blunt, I found Mr.

     Sudweeks' testimony to be a litany of excuses. Some were

     incredible and others merely very unconvincing. He did

     not raise any reasonable doubts in my mind.

[para28]     On the other hand, the trial judge stated that

the story told by Mr. Tetz generally "rings true", specifying

at [paragraph] 38 of his Reasons for Judgment:

     I believe that the horses and dogs were in a bad way when

     he arrived. I believe that he tried to relieve the

     distress of the dogs: he bought some dog food for them. I

     do not believe he had any sufficient notion how to care

     for horses during the winter in Chilcotin country, and

     the task of caring for the Sudweeks' distressed horses

     simply overwhelmed and defeated him. The extent of Mr.

     Tetz' ineptitude is demonstrated by the fact that he

     apparently never did realize that he had not found and

     removed all the horses in the south pasture. Mr. Tetz

     failed when he did not "blow the whistle". He listened to

     his sister who told him not to do that because it might

     cause troubles for the Sudweeks. He should have listened

     to his friend, Mr. Pimlott. Mr. Tetz assumed

     responsibilities that were beyond his abilities. When he

     realized he was "in over his head", he had a legal duty

     to call for help, to call the SPCA, or to call the RCMP,

     but he did nothing of the sort.

[para29]     Although the trial judge declined to make any

finding regarding ownership of the horses, he found that

within the Sudweeks family, certain of the horses were

considered to be owned by Shayla Welling and others by Trinity

Bennett. As well, the dogs were considered to be owned by Ms.

Welling and Ms. Bennett. In the end, he found that Mr.

Sudweeks was responsible for 39 horses and seven dogs as of

December 11, 2001 and that he left them in a state of present

distress, or circumstances which caused them to be in

distress. He found that Mr. Tetz undertook to be responsible

for the horses and permitted their distress to continue.

ANALYSIS OF THE ISSUES

1.   Bias

     A.   Particulars of bias alleged by the appellant

[para30]     The appellant's position is that the trial

judge's intervention in the examination of witnesses at the

trial and certain comments the trial judge made regarding

publicity surrounding the trial give rise to the appearance

that the appellant did not receive a fair trial. In

particular, Mr. Wool for the appellant submitted as follows:

     (1)  On June 26, 2002 the judge interrupted the

          examination in chief of the defence witness Shayla

          Welling numerous times. The appellant says that this

          part of the proceeding gave the appearance of the

          judge developing his own agenda and entering the

          arena and that there were nearly 50 interruptions in

          46 pages of transcript.

     (2)  During the testimony of Shayla Welling the judge

          engaged the witness in an irrelevant matter, making

          inquiries about the whereabouts of a young woman

          (Crystal Eaton) who had been in the program at the

          lodge. He also asked Ms. Welling (a key defence

          witness) to defend or comment on the testimony of

          the veterinarians who had previously testified

          regarding the quality of the hay as part of the

          Crown's case.

     (3)  On June 28, 2002 the judge denied Mr. Sudweeks's

          counsel the right to question Bryan Tetz about

          driving at a time when he was prohibited from

          driving, without hearing counsel's submissions.

     (4)  On June 25, 2002 during the lunch recess, the judge

          asked the sheriff to provide to the defendants a

          copy of an article from the Williams Lake Tribune of

          that date. The contents of the article led to an

          estrangement between the appellant and the

          co-defendant Bryan Tetz. The timing of the matter

          suggested that the judge had received a copy of the

          article by fax from Williams Lake.

     (5)  On July 18, 2002 the judge made his ruling on the

          Williams Lake Tribune's application to publish

          photographs taken at a judicial view of the Lodge.

          He denied the application except that he permitted

          his own image to be published. In the course of the

          ruling the judge commented "there was a very fine

          picture of Mr. Wool (defence counsel) published".

     (6)  On June 25, 2002 during legal argument, the judge

          commented "I am absolutely certain that if your

          clients had gone to the Williams Lake Tribune and

          said 'We want you to publish our side of the story'

          that, you know, that the editor would have sat down

          with them and said, 'I'd be delighted to do that'".

[para31]     Mr. Wool also noted that on the first day of

trial the learned trial judge made the following comment:

     Mr. Wool, I'm not sure that if Mr. Gilson and I have

     encountered each other in at least one previous

     out-of-the-way court location, but Mr. Wool, I think you

     should probably know, and I have no idea whether Mr.

     Gilson is aware of this or not but, you know, while I

     live down in the Gulf Islands now, I spent about 25 years

     in Williams Lake. I lived 30 kilometres out of town on a

     place that people might call a stump ranch. I do not

     claim to be an expert in horses, but we kept horses for

     most of those 25 years and they didn't live in a barn.

     ...

     As I say, I don't claim to be an expert on horses, but

     neither am I somebody who has never had any experience

     with wintering horses in this part of the country.

          (Transcript of Proceedings at Trial, June 18, 2003,

          p. 57)

     B.   Application to adduce fresh evidence

[para32]     Counsel for the appellant applied to have the

January 24, 2003 affidavit of the appellant and the September

24, 2002 affidavit of his daughter, Darlene Tetz Thomas,

considered on this appeal. At this juncture I will consider

only the admissibility of those portions of the appellant's

affidavit bearing on the grounds of appeal relating to bias. I

will consider the admissibility of other portions of his

affidavit, and the affidavit of Ms. Tetz Thomas, later in

connection with the grounds of appeal relating to

misapprehension of the evidence.

[para33]     The general criteria for the admission of "fresh

evidence" are set out in R. v. Stolar  [1988], 1 S.C.R. 480,  40

C.C.C. (3d) 1 at 6 and Palmer and Palmer v. The Queen  [1980] 1

S.C.R. 759, (1979),  50 C.C.C. (2d) 193 at 205:

     1.   If the evidence could, with due diligence, have been

          adduced at trial, it should not in general be

          admitted, although this principle will not be

          applied as strictly in criminal cases;

     2.   It must be relevant in the sense that it bears on a

          decisive or potentially decisive issue in the trial;

     3.   It must be reasonably capable of belief;

     4.   It must be such that if believed it could

          reasonably, when taken with the other evidence

          adduced at trial, be expected to have affected the

          result.

[para34]     R. v. Dunbar,  2003 BCCA 667 at [paragraphs]

33-37, affirms the Palmer and Stolar criteria, with the

following modifications:

     1.   The requirement of due diligence does not apply

          where the fresh evidence is being used to challenge

          the integrity of the trial process.

     2.   Where it is the integrity of the trial process that

          is impugned, the fresh evidence if admitted need not

          affect the substantive result of the trial, but

          should go to determining whether there has been a

          miscarriage of justice.

[para35]     To similar effect, see R. v. Budai (2001),  154

C.C.C. (3d) 289 (B.C.C.A.), where Cumming J.A. wrote at

[paragraph] 88:

     88   The Palmer principles require modification where the

          issue on appeal does not involve a determination of

          an issue of fact relevant to the outcome of the

          trial. In R. v. W. (W.) (1995),  100 C.C.C. (3d) 225

          (Ont. C.A.) at 232-33, a case involving an

          allegation that the conduct of trial counsel

          resulted in a miscarriage of justice, Doherty J.A.

          stated:

               The Palmer criteria do not, however, apply to

               all situations where fresh evidence is offered

               on appeal. Those criteria reflect the balancing

               of competing considerations relevant to the

               interests of justice when fresh evidence is

               offered to attack a determination made at

               trial. The same criteria cannot necessarily be

               applied where, as here, the fresh evidence is

               offered for a different purpose. The material

               sought to be admitted here is not directed at a

               finding made at trial, but instead challenges

               the very validity of the trial process. The

               nature of this material and the purpose for

               which it is offered places it outside the

               Palmer paradigm....

[para36]     I have concluded that the evidence in the

appellant's affidavit relating to allegations of bias should

be admitted. The evidence goes to a central issue on this

appeal, bearing on the integrity of the trial process, it is

reasonably capable of belief and is relevant to the

determination whether there has been a miscarriage of justice.

     C.   Authorities on reasonable apprehension of bias or

          partiality

[para37]     The leading authority on reasonable apprehension

of bias is R. v. R.D.S.,  [1997] 3 S.C.R. 484. In that case,

Cory J., having stated that the qualities of fairness and

impartiality are of fundamental importance to judges, wrote at

[paragraph] 94:

     Fairness and impartiality must be both subjectively

     present and objectively demonstrated to the informed and

     reasonable observer. If the words or actions of the

     presiding judge give rise to a reasonable apprehension of

     bias to the informed and reasonable observer, this will

     render the trial unfair.

The definition of bias set out by Scalia J. in Lietky v. U.S.,

 114 S.Ct. 1147 (1994) at p. 1155 was referred to by Cory J. in

R.D.S. with approval at [paragraph] 105:

     The words [bias or prejudice] connote a favorable or

     unfavorable disposition or opinion that is somehow

     wrongful or inappropriate, either because it is

     undeserved, or because it rests upon knowledge that the

     subject ought not to possess (for example, a criminal

     juror who has been biased or prejudiced by receipt of

     inadmissible evidence concerning the defendant's prior

     criminal activities), or because it is excessive in

     degree (for example, a criminal juror who is so inflamed

     by properly admitted evidence of a defendant's prior

     criminal activities that he will vote guilty regardless

     of the facts).

                                           [Emphasis in original]

[para38]     The threshold for a finding of real or perceived

bias is high; the person alleging it must demonstrate a real

likelihood or probability of bias. A mere suspicion is not

enough: R.D.S. per Cory J. at [paragraphs] 112-113.

[para39]     As for impartiality, in R.D.S. both Cory J. and

L'Heureux-Dubé and McLachlin JJ. in their concurring reasons,

referred to the Canadian Judicial Council's Commentaries on

Judicial Conduct (1991) where it is stated that the duty of

impartiality does not mean that a judge is presumed to be free

of existing sympathies or antipathies, and that a judge free

of a heritage of past experience would probably lack the very

qualities of humanity required of a judge. Instead, the

Commentaries state (at 12):

     ... the wisdom required of a judge is to recognize,

     consciously allow for, and perhaps to question, all the

     baggage of past attitudes and sympathies that fellow

     citizens are free to carry, untested, to the grave.

     True impartiality does not require that the judge have no

     sympathies or opinions; it requires that the judge

     nevertheless be free to entertain and act upon different

     points of view with an open mind.

[para40]     Cory J. summarized as follows at [paragraph]

141:

     These examples demonstrate that allegations of perceived

     judicial bias will generally not succeed unless the

     impugned conduct, taken in context, truly demonstrates a

     sound basis for perceiving that a particular

     determination has been made on the basis of prejudice or

     generalizations. One overriding principle that arises

     from these cases is that the impugned comments or other

     conduct must not be looked at in isolation. Rather it

     must be considered in the context of the circumstances,

     and in the light of the whole proceeding.

[para41]     With respect to the specific issue of judicial

intervention in the examination of witnesses, R. v.

Brouillard,  [1985] 1 S.C.R. 39 is often referred to. Lamer J.

(as he then was) stated for the court at [paragraph] 14:

     In the case at bar I am certainly not convinced that the

     judge was biased. On the contrary, I am inclined to

     believe that he meant to be impartial. I am thus of the

     view that the accused was not prevented from presenting

     his defence, calling all relevant witnesses and adducing

     all relevant evidence, although not without difficulty.

     However, I am obliged to conclude that, by his conduct,

     the trial judge allowed there to be some doubt on this

     subject, which only a new trial can erase.

The trial judge in Brouillard was said to have asked one of

the witnesses for the defence some sixty questions, almost as

many as the Crown, to have interrupted her more than ten times

during her testimony, and to have asked many more questions

during the accused's testimony than did the two counsel. He

was found to have interrupted the accused's

examination-in-chief and cross-examined him, to have

interrupted the accused over sixty times in his answers in

chief and in cross-examination and to have made both the

accused and his witness the object of sarcastic remarks.

[para42]     Lamer J. referred with approval in Brouillard at

[paragraph]  21 to the statement of Bird J.A. in R. v. Darlyn

(1946),  88 C.C.C. 269 at 277 (B.C.C.A.):

     The nature and extent of a Judge's participation in the

     examination of a witness is no doubt a matter within his

     discretion, a discretion which must be exercised

     judicially. I conceive it to be the function of the Judge

     to keep the scales of justice in even balance between the

     Crown and the accused. There can be no doubt in my

     opinion that a Judge has not only the right, but also the

     duty to put questions to a witness in order to clarify an

     obscure answer or to resolve possible misunderstanding of

     any question by a witness, even to remedy an omission of

     counsel, by putting questions which the Judge thinks

     ought to have been asked in order to bring out or explain

     relevant matters.

Lamer J. summarized at [paragraph] 25:

     In conclusion, although the judge may and must intervene

     for justice to be done, he must nonetheless do so in such

     a way that justice is seen to be done. It is all a

     question of manner.

                                           [Emphasis in original]

[para43]     In an appeal from a trial on a charge of

extortion before a judge and jury, in R. v. Lefebvre (1998),

 123 C.C.C. (3d) 200, (C.A.), the Yukon Territory Court of

Appeal wrote at [paragraph] 23:

     An allegation that a trial judge has departed from the

     accepted standard of judicial conduct must be considered

     in the context of the effect of that conduct on the

     fairness of the trial: R. v. Torbiak and Campbell (1974),

      18 C.C.C. (2d) 229 at 231 (Ont. C.A.). ...

          Some departures from the ideal may of themselves so

          seriously affect the appearance of fairness of the

          trial as to require the granting of a new trial.

          However, in the great majority of instances the

          gravity to be assigned to the conduct of a Judge is

          relative to its effect on the right of the accused

          to a fair trial according to law.

The appellate court in Lefebvre found that the trial judge had

interrupted the evidence of the witnesses many times during

the trial and in a number of instances had entered the arena

as an advocate. He was found to have taken over the

cross-examination of the accused in such a way as to undermine

the accused's credibility. A new trial was ordered on the

basis that the trial judge's questions went far beyond what is

permissible in order to remain, and appear to remain, neutral

and unbiased.

[para44]     Regina v. A.W.,  [1995] 4 S.C.R. 51, reversing

(1994),  94 C.C.C. (3d) 441 (Ont. C.A.) provides another

example of judicial conduct of a trial found to be

inconsistent with the appearance of a fair trial. The trial

judge had extensively cross-examined the witnesses and in so

doing had introduced inadmissible evidence and interrogated

the accused in an impermissible manner, going to his

credibility, a key issue in the case. He had also elicited

inadmissible evidence from other witnesses.

[para45]     Counsel for the appellant referred me to the

following cases in which judicial intervention was found to

have interfered with a fair trial or the appearance of a fair

trial: R. v. Tudor,  [1990] B.C.J. No. 153 (C.A.) (appeal from

a trial before judge and jury); and R. v. Dubreuil (1998),  125

C.C.C. (3d) 355 (Ont. C.A.).

[para46]     Other cases have fallen on the other side of the

line. The Crown brought to my attention these cases in which

judicial intervention was found not to have given rise to the

appearance of an unfair trial: R. v. Geddes (1997),  88

B.C.A.C. 61 (C.A.); R. v. Dubas (1995),  60 B.C.A.C. 202

(C.A.); R. v. McKitka (1982),  66 C.C.C. (2d) 164 (B.C.C.A.).

[para47]     Another example is R. v. Lynxleg (2002),  168

C.C.C. (3d) 120 (C.A.), an appeal from a conviction on a

charge of sexual assault. The key issue was whether the trial

judge's questions resulted in such an appearance of unfairness

that a new trial should be ordered. The court at [paragraph]

20 referred to the comments of Martin J.A. in R. v. Valley

(1986),  26 C.C.C. (3d) 207 at 232 (Ont. C.A.) as stating the

appropriate test:

     Interventions by the judge creating the appearance of an

     unfair trial may be of more than one type and the

     appearance of a fair trial may be destroyed by a

     combination of different types of interventions. The

     ultimate question to be answered is not whether the

     accused was in fact prejudiced by the interventions but

     whether he might reasonably consider that he had not had

     a fair trial or whether a reasonably minded person who

     had been present throughout the trial would consider that

     the accused had not had a fair trial ....

In Lynxleg, Steel J.A. commented at [paragraph] 24 that an

analysis of the cases in which judicial interventions have

been held to result in the appearance of unfairness shows that

in those cases the extent of the interference was extensive

and the nature of the intervention inhibited counsel for the

defence from adequately examining witnesses - Brouillard being

a prime example. She noted that in the case before the court,

the judge had extensively questioned the accused and his

witness, but the questioning had followed the examination and

cross-examination by counsel, it did not interfere defence

counsel's questioning and counsel had the opportunity to

pursue any issue that arose from the court's questions.

Further, the court's questions were held not to be

inappropriate.

[para48]     One intervention in Lynxleg was said to be more

troubling. It involved the judge asking the accused whether

the accused had embraced the defence witness on the street

after her testimony. There had been no evidence before the

court of any such embrace, and there was no indication as to

how the judge acquired the information leading to his

question. Steel J.A. stated at [paragraph]  38-42 that

although judges should not act on personal knowledge, and in

fact should recuse themselves if they have such knowledge, in

this case the judge had not simply acted on that knowledge but

had asked the question in open court and had given the accused

an opportunity to respond to it. Defence counsel did not

object to the line of questioning. The trial judge's reasons

for decision contained an analysis of all of the evidence. On

the whole, the appeal court concluded that the proceedings

were not rendered unfair by the trial judge's interventions.

     D.   Application to the circumstances in this case

[para49]     Counsel for the appellant pointed to the fact

that the trial judge made it known when the trial started that

he was familiar with the Williams Lake area and with horses.

Mr. Wool argued that although that did not appear to be a

problem at the outset, as the trial progressed a reasonable

apprehension of bias arose out of the judge's comments and his

conduct in and out of court.

[para50]     Mr. Wool argued that although the judge

interrupted the questioning of counsel on both sides, that the

interruptions were concentrated on the defence witnesses and

interfered with a fair trial or gave rise to the appearance of

an unfair trial.

[para51]     With respect to the testimony of Shayla Welling,

the accused Mark Sudweeks's daughter, the following appears in

the 93 pages of transcript.

[para52]     At Transcript of Proceedings at Trial, June 26,

2002, pp. 48-50:

     EXAMINATION IN CHIEF BY MR. WOOL:

     Q    Now, Mrs. Welling, you are the daughter of Cheryl

          and Mark Sudweeks, that are seated in the courtroom;

          correct?

     A    Yes.

     Q    And I'm going to cover some points pretty quickly

          here with my friend's permission. You were born in

          1978?

     A    I am.

     Q    And your age right now is...?

     A    I'm 24 years old.

     Q    24 years of age. And you are --

     THE COURT:     Do you have an older sister? Or are you

                    the oldest?

     THE WITNESS:   Well, I'm the oldest, but we've got a

                    daughter --my parents have a daughter

                    that's sealed to them through the church.

                    She's not -- we always call her my sister.

     MR. GILSON:    Lead.

     THE WITNESS:   But -

     MR. WOOL:

     Q    Is that Darlene?

     A    Darlene.

     THE COURT:     Okay. So you're 24?

     THE WITNESS:   Yes.

     THE COURT:     And how old is Darlene?

     THE WITNESS:   She's four years older. She's 28.

     THE COURT:     Darlene, you have a special term for it,

                    but many people would refer to her as your

                    parents' adopted daughter?

     THE WITNESS:   But she'd just be like my sister.

     THE COURT:     Yes. I understand that.

     THE WITNESS:   But --

     THE COURT:     But -

     THE WITNESS:   She -- well, people refer to her as Mom

                    and Dad adopted her.

     THE COURT:     Okay.

     THE WITNESS:   She's part of the family, but she never

                    was adopted.

     THE COURT:     Okay.

     THE WITNESS:   I know it's kind of confusing, but...

     THE COURT:     No. It's -- it's not confusing. But that's

                    the way you view her.

     THE WITNESS:   Okay. Yes.

     THE COURT:     Okay.

At Transcript of Proceedings at Trial, June 26, 2002, pp.

60-61:

     Q    I want to ask you about Bryan Tetz. He's in the

          courtroom here; right?

     A    Yes.

     Q    You've known Bryan for - since he was a teenager; is

          that correct?

     A    That's correct.

     Q    And you - do you have a memory of what Bryan did in

          the way of work around the lodge when he lived

          there?

     A    I do. He would take care of the maintenance, the

          fences. He would pretty much assist us if we needed

          help saddling the horses. Because Bryan came as a

          foster kid. The courts assigned him to us.

     Q    Yes

     A    And -

     THE COURT:     When was that?

     THE WITNESS:   That was around the time that we had

                    Crystal Eaton (phonetic) and those other

                    kids, which would have been right when

                    Darlene came, about 1988.

     MR. WOOL:

     Q    All right.

     THE COURT:     Stop for a minute, would you?

     MR. WOOL:      All right.

     THE WITNESS:   I was 11.

     THE COURT:     Courts assigned Bryan to you to the family

                    -

     THE WITNESS:   Not to me. I'm sorry.

     THE COURT:     No, I -- you said "to us".

     THE WITNESS:   Okay.

     THE COURT:     And you were 11 at the time?

     THE WITNESS:   I remember it was around the time Darlene

                    came, so I believe that it was around

                    1988, which would have made me about 11.

     MR. WOOL:      All right.

     THE COURT:     Just a minute. And you said that you had

                    Crystal Eaton at the time?

     THE WITNESS:   Yes. And some other kids.

     THE COURT:     That's fine.

     THE WITNESS:   That's just how I -

     THE COURT:     Do you have any knowledge of where Crystal

                    Eaton is these days?

     THE WITNESS:   We saw her at the Fraser Inn, she's a

                    waitress.

     THE COURT:     Just recently?

     THE WITNESS:   It was about oh, probably two years ago

                    now.

     THE COURT:     Two years.

     THE WITNESS:   But she looks really good, is doing good.

     THE COURT:     Good. Glad to hear it. You wouldn't know

                    anything about that, Mr. Wool.

     THE WITNESS:   She --her whole --she's changed her whole

                    life around.

     MR. WOOL:      No, that's -

     THE WITNESS:   But the reason why I was saying this, is

                    because since he came in to live with us,

                    Bryan, of course, got a horse. He was

                    taught to saddle a horse, take care of

                    horses, and so as the years went on, he'd

                    assist us with helping with the horses.

     MR. WOOL:

     Q    All right.

     A    Getting ready for -- also we do trail rides, which

          was separate from everything else, but he'd help us

          saddle horses for trail rides or...

At Transcript of Proceedings at Trial, June 26, 2002, pp.

71-73:

     Q    To your memory, what was the quality of the hay like

          in the winter and Spring of the year 2000?

     A    It was -

     THE COURT:     Does she know?

     MR. WOOL:      Yeah.

     THE WITNESS:   Well -

     THE COURT:     Well, if she does, that's fine.

     THE WITNESS:   The reason I know is because we had -- I

                    mean, we've had horses for a long amount

                    of periods of time by this time, so hay

                    was always an issue and we'd gone by

                    experience that the Timothy hay that we

                    get from Alberta or this guy in Vanderhoof

                    -

     MR. WOOL:

     Q    Yes?

     A    -- was always excellent hay, and we've never had a

          problem with it.

     Q    All right. And -

     A    So I kind of know it was really good hay.

At Transcript of Proceedings at Trial, June 26, 2002, p. 64:

     Q    Okay. Well, what about his knowledge of setting out

          hay for the horses?

     THE COURT:     Mr. Wool. You didn't have any stock waters

                    for the winter. You cut the ice down at

                    the lake by the beach and the horses

                    watered there?

     THE WITNESS:   We had -- we have different troughs that

                    --

     THE COURT:     But they -

     THE WITNESS:   But they were for the summer, so -

     THE COURT:     Yeah. They're not heated.

     THE WITNESS:   -- in the wintertime, we just cut holes in

                    the ice.

     THE COURT:     That's fine. That's what you did. Okay.

                    And he knew you did that?

     THE WITNESS:   Yes.

     THE COURT:     Okay. And then Mr. Wool asked what about

                    feeding hay to the horses. What did Bryan

                    do about that?

     THE WITNESS:   It was a self all-you-can-eat buffet for

                    those horses.

     MR. WOOL:

     Q    All right.

     A    We'd set round bales out and Bryan knew about the

          round bales, setting them out. And they were kept in

          the barn.

     Q    All right. How about the -

     THE COURT:     Just a minute.

     MR. GILSON:    There was 19 that winter that the horses

                    were seized, in the barn.

     MR. WOOL:

     Q    19 -

     A    19 round bales.

     Q    Yeah. We -

     THE COURT:     19 at what time?

     THE WITNESS:   That was when we left.

     THE COURT:     Okay. When we -- when you -

     THE WITNESS:   When -- that was November 21st.

     THE COURT:     When you and Trinity left with your

                    husbands, there were 19 round bales in the

                    barn?

     THE WITNESS:   Yes.

     THE COURT:     Okay.

     MR. WOOL:

     Q    Just -- oops.

     A    Well, Trinity left before I did.

     Q    Yeah. She left -

     THE COURT:     When you and Steven -

     THE WITNESS:   And Steven left.

     THE COURT:     -- left there were 19.

     THE WITNESS:   There were 19 round bales.

     MR. WOOL:

     Q.   19 round bales. And you've testified -

     THE COURT:     So that was -

     THE WITNESS:   And there was 28 tonnes -

     THE COURT:     Just one minute.

     THE WITNESS:   -- of the pellets.

     MR. WOOL:      Yes.

     THE COURT:     The first winter after you and Steven were

                    married, you go down to Mexico and your

                    sister, Trinity, stays up here?

     THE WITNESS:   Yes, that's correct.

     THE COURT:     You come back that summer?

     THE WITNESS:   Yes.

     THE COURT:     Then you go again in the Fall?

     THE WITNESS:   It was -

     THE COURT:     The Fall of 2000?

     THE WITNESS:   It was the end of November.

     THE COURT:     Okay. Fall.

     THE WITNESS:   So Fall, yeah.

     THE COURT:     And you --Trinity had already gone?

     THE WITNESS:   She left right before Halloween.

     THE COURT:     Okay.

     THE WITNESS:   Her husband --I don't know if she told

                    you. Her husband was going to take the

                    block classes, so -

     THE COURT:     Yes, she did. Yes. You left at the end of

                    November?

     THE WITNESS:   Yes.

     MR. WOOL:

     Q    All right.

     THE COURT:     Just a minute. 19 round bales. Mm-hmm? Go

                    ahead, Mr. Wool.

At Transcript of Proceedings at Trial, June 26, 2002, p. 83:

     Q    All right. And what else was he supposed to do about

          feeding?

     A    Well, to make sure the salt blocks were all out

          there and...

     Q    Okay. What -

     THE COURT:     Your dad knows how to look after horses, I

                    presume?

     THE WITNESS:   My -- yes. He's the one that taught us

                    how.

     THE COURT:     Okay. So -

     MR. WOOL:

     Q    All right. So he -

     THE COURT:     -- he knows horses.

     THE WITNESS:   Yes.

     THE COURT:     He taught you. Okay.

At Transcript of the Proceedings at Trial, June 26, 2002, pp.

86-87:

     Q.   And what, if anything, did you say to Constable Reed

          about the ownership of these horses?

     A    The same thing. We are here to get our horses.

     Q.   All right.

     A    And I just asked the normal questions, like what do

          we need to do to get them back.

     Q.   Okay.

     A    Sharon Caddy said that we'll never get the horses

          back.

     Q    Okay.

     THE COURT:     Just a minute. You didn't get them back.

     THE WITNESS:   No.

     THE COURT:     No. Mr. Wool, I -

     MR. WOOL:      Yes. That's -

     THE COURT:     Now, just a minute. She was going to say

                    what Sharon Caddy had said to her.

     THE WITNESS:   Doesn't matter.

     THE COURT:     Just -

     MR. WOOL:      It's not necessary.

     THE WITNESS:   Okay.

     THE COURT:     If it's not necessary, that's fine. But

                    it's not objectionable either.

     MR. WOOL:      No.

     THE COURT:     But that's fine.

At Transcript of Proceedings at Trial, June 26, 2002, p.

87-89:

     MR. WOOL:

     Q    As to your relationship with Arianne Brink, are you

          friendly or unfriendly towards her?

     A    We've always been friendly. I remember Trinity would

          have birthday parties and invite her kids to our

          birthday parties and her kids said that they were

          never allowed to come over -

     Q    Okay. Well, I can't get into what they said, but -

     A    Oh, okay.

     Q    -- as between -- is -- Ms. Brink, do you consider

          her to be friendly or unfriendly?

     A    She's -- I don't even really know her. We don't,

          have a relationship.

     Q    All right.

     THE COURT:     No, but -

     THE WITNESS:   I -- I don't know. She's not unfriendly.

                    She doesn't go out of --well -

     MR. WOOL:

     Q    All right.

     A    She's definitely not friendly though.

     Q    Okay. --

     THE COURT:     Miss Welling, just a minute. You -- I'm

                    sorry? It's --maybe we need to take the

                    break.

     MR. WOOL:      You're going to get the break.

     THE COURT:     But I'm a little confused here. You go to

                    school with Arianne Brink's kids?

     THE WITNESS:   Yes.

     THE COURT:     Okay.

     THE WITNESS:   They weren't my age. They were -- her

                    oldest one was Trinity's age.

     THE COURT:     Okay. But -

     THE WITNESS:   And I -- when I said -

     THE COURT:     I know perfectly well that in rural

                    communities like you have out here, there

                    are neighbourhood feuds. Sometimes they go

                    on for generations. And people hate each

                    other very intensely. Other families will

                    be really, really close. And other people,

                    you know, you're not friendly with them;

                    you're not unfriendly with them. You don't

                    see them very often. But there are, in my

                    experience, at least those three groups

                    and perhaps more. And -

     THE WITNESS:   We tried to be friendly with her. We've

                    always tried, and -

     THE COURT:     Okay.

     MR. WOOL:

     Q    All right. But you wouldn't consider yourself a

          friend of hers?

     A    No.

     THE COURT:     You didn't fight with her kids at school

                    or. ..?

     A    No. No, we never did. That's why it was kind of hard

          to explain, 'cause we'd never see them other than at

          school.

     THE COURT:     Okay.

     MR. WOOL:      All right.

     THE COURT:     Friendly but not close.

     THE WITNESS:   No.

     THE COURT:     Not positively unfriendly?

     THE WITNESS:   Well, I --I don't know if she was

                    unfriendly to

     THE COURT:     Your feelings to the Brinks, you didn't -

     THE WITNESS:   It's hard to say this right now because of

                    what they have done.

     THE COURT:     I understand that.

     MR. WOOL:      All right.

     THE WITNESS:   But -

     THE COURT:     But before January -

     THE WITNESS:   She was never -

     THE COURT:     --2001 -

     THE WITNESS:   She was never friendly to us. She'd never

                    come over and see us or anything.

     THE COURT:     Okay.

     THE WITNESS:   So...

     THE COURT:     You never associated.

     THE WITNESS:   But we never fought or anything like that.

     THE COURT:     Okay.

At Transcript of Proceedings at Trial, June 26, 2002, pp.

94-95:

     Q    Do you follow that? What would you expect their

          condition to be based on your knowledge of the --

          your last seeing those animals on the 21st or 22nd,

          of November?

     MR. GILSON:    Well, Your Honour, at this point, I'm

                    going to object to my friend's question

                    unless he expects something more than a

                    general statement that this -- from this

                    witness that these horses will lose

                    weight. She had not been there for

                    approximately five to six weeks. This is a

                    hypothetical question. She is not an

                    expert in nutrition, not an expert in

                    feed. She can tell us, and it's an obvious

                    statement, that these horses would

                    deteriorate, but to give any specifics on

                    this, I object to that.

     THE COURT:     I hear you, Mr. Gilson. She's not an

                    expert in the sense that she's a

                    veterinarian.

     MR. GILSON:    No.

     THE COURT:     But she's been around horses all her life.

                    She's owned, she says, a number of these

                    horses for years and has known all of them

                    and she's told me that she didn't just

                    grow up with a horse that she stabled

                    somewhere and rode occasionally, as is

                    fashionable in Vancouver and Victoria

                    among some people, but rather, she went

                    away to school where, while she got an

                    aviation degree, she focused her interests

                    on learning more than she already knew

                    about horses. I think that she's entitled

                    to answer that question.

     MR. WOOL:      Thank you.

     Q    Now, in your opinion, what would you expect?

     A.   A horse has got to have water every day and feed.

     Q    Yes?

     A    And if they were without that for five days, you

          say, they'd deteriorate pretty fast. They wouldn't

          look very good.

At Transcript of Proceedings at Trial, June 26, 2002, p. 95:

     CROSS-EXAMINATION BY MR. GILSON:

     Q    Miss Welling, if you need a break, just say so, with

          the child in --or with His Honour's permission, I'll

          start now.

     THE COURT:     Mm-hmm.

At Transcript of Proceedings at Trial, June 26, 2002, pp.

101-102:

     Q    And your father -- I don't know if I'll explain this

          concept properly, but your father is the guiding

          force behind the treatment program and has been for

          years; is that a fair assessment?

     A    I wouldn't say that, because -- I don't -- I think

          you need to give credit where credit's due and he

          certainly didn't do anything at the lodge after '96.

          It was my husband and I and Trinity and Trevor and

          Darlene.

     THE COURT:     I think that's not what -

     THE WITNESS:   Is it -- maybe I heard the question wrong.

     THE COURT:     This got started, you know, 17 years ago

                    when your husband was just -

     THE WITNESS:   And he did -

     THE COURT:     -- a little boy.

     THE WITNESS:   And my dad, definitely he had -- I'm

                    sorry. I must not have understood the question.

     MR. GILSON:

     Q    I'll ask it again and maybe slightly different, but

          -

     THE COURT:     This is not a trick question. Nothing like

                    that.

     MR. GILSON:

     Q.   I'm not trying to take you in a bad road or anything

          here, but your father has been the driving force

          behind the treatment centre idea for all of these

          years; is that a fair assessment?

     A    You mean the guy with the cash. He -- he took care

          of all the financial part of the lodge.

     Q    Okay.

     THE COURT:     Just a minute.

     THE WITNESS:   As far as decision-making, he didn't.

     THE COURT:     Your father took care of the finances.

     THE WITNESS:   Yes.

     THE COURT:     Okay.

     MR. GILSON:

     Q    Okay.

     A    Which came out of the Chilanko Lodge funds. He'd pay

          the bills.

     THE COURT:     Okay. Is that all he did?

     THE WITNESS:   Pretty much that's it. He used to come up

                    -- until Steven came up that one Fall and

                    summer, end of summer, Fall, to watch and

                    learn what he needed to do, Dad would come

                    up and take care of the maintenance.

At Transcript of Proceedings at Trial, June 26, 2002, pp.

117-118:

     A    We left them there for a short period of time until

          Bryan got there.

     Q    You specifically, Mrs. Welling, didn't have any idea

          when Bryan -- you did not make arrangements for a

          time for Bryan to show up on your property, did you?

          You yourself.

     A    We did. We knew that he was going to be there before

          Christmas and then when we wired the money on

          December 1st and we found -- I believe it was

          December 1st, then we found out that he couldn't

          come till later, then we made other arrangements.

     THE COURT:     I'm sorry? You wired the money?

     THE WITNESS:   We wired the money over to his bank

                    account.

     THE COURT:     That was December 1st?

     THE WITNESS:   I believe it was December 1st.

     THE COURT:     But your dad did that?

     THE WITNESS:   Yes.

     MR. GILSON:    Let me put it in. I'd rather be accurate

                    than wander around -

     MR. WOOL: Well, if she doesn't know what it was, you

               can't cross-examine her on it.

     MR. GILSON:

     Q    Mrs. Welling -

     THE COURT:     Just --you said that you found out he

                    couldn't be there until later, and I don't

                    know what you mean. He couldn't be there

                    until sometime later than after Christmas?

     THE WITNESS:   He -- well, I got word that he wasn't

                    going to be able to make it until after

                    Christmas.

     THE COURT:     Well, that's when you thought he would be

                    there. Oh, I -- before Christmas.

     THE WITNESS:   Well, I thought he was going to be there

                    before Christmas.

     THE COURT:     You made other arrangements?

     THE WITNESS:   So then we made other arrangements -

     THE COURT:     Mm-hmm.

     THE WITNESS:   -- to have the horses looked after.

     THE COURT:     Okay. Just a minute. Mm-hmm?

     THE WITNESS:   And I don't know if you want to know what

                    those arrangements were, or...

     THE COURT:     Mr. Gilson will...

     MR. GILSON:

     Q    Mrs. Welling, if I suggested to you that no money

          was even transferred to Mr. Tetz until the 27th of

          January 2000, would that refresh your memory?

     A    I don't believe -- I don't believe that that was the

          case.

At Transcript of Proceedings at Trial, June 26, 2002, p. 120:

     A    Yes.

     Q    These were -- these round bales that you saw in the

          photograph I showed you earlier, what would you say

          that those round bales would weigh?

     A    I don't remember.

     Q    If I suggested a thousand to 1200 pounds, would I be

          fairly close?

     A    I --I honestly don't know how much those weigh.

     THE COURT:     But you would, I think, be able to make a

                    well-educated guess -

     THE WITNESS:   Yes.

     THE COURT:     -- as to how long those 19 round bales --

     THE WITNESS:   Oh -

     THE COURT:     -- would last, all things being equal.

                    Some winters are worse than others.

     THE WITNESS:   I know. And I forgot to tell you too --

                    well, no, I didn't forget, because I told

                    you my husband and I were planning to be

                    back before Valentine's Day and Trinity

                    and Trevor ordered -- you don't just go

                    through one truckload a winter of hay.

                    We've ordered, I don't know, a couple,

                    several truckloads that come in, so we

                    didn't expect 19 round bales to suffice

                    all those horses.

     THE COURT:     All winter long.

     THE WITNESS:   Yeah.

At Transcript of Proceedings at Trial, June 26, 2002, pp.

134-41:

     RE-EXAMINATION BY MR. WOOL:

     Q    Just seeking a clarification on one of the answers

          you've given. Mr. Gilson just asked you, he said as

          to the horses' ownership was a family thing. Do you

          remember that question just a few minutes ago?

     A    Yes.

     MR. GILSON:    That was prior to 1997.

     MR. WOOL:      Oh, prior to --was that prior to 1997?

     THE WITNESS:   Prior to 1997.

     THE COURT:     I certainly understood that.

     MR. GILSON:    I think it's understood.

     MR. WOOL:      Thank you. I just -- I, wasn't clear.

                    Thank you. Those are all the questions I

                    have.

     EXAMINATION BY THE COURT:

     Q    Ms. Welling, I want to ask you questions about two

          areas only, and it may be that if I tell you what

          those questions -- what those areas are, either Mr.

          Wool or Mr. Gilson would think it better that he ask

          the questions, rather than me.

          You told me about the hay, the Timothy hay that was

          purchased as a matter of -- well, every year. Good

          Timothy hay from Alberta or Vanderhoof.

     A    Yes.

     Q    I don't claim to be an expert on horses, but I fed

          horses for about 20 winters and winters out in the

          Horsefly Road are nearly as severe as they are out

          here, and I know that different people with

          different types of horses doing different activities

          will have different ideas about what is the ideal

          diet for horses. You know? Some people will want to

          feed a lot of wild hay and some alfalfa and other

          people will say no, just pure Timothy. Whatever. But

          when Dr. Stuart testified, she told me that she

          looked at the bale of hay that was put out that day,

          the 11th of January, for the 25, 26 horses that were

          there in the corral that day. And Dr. Stuart said

          that her observation was it was old mouldy hay. It

          looked as if it was mature, coarse and low quality

          when it was harvested.

          Dr. Long looked at the hay the same day and she's

          another veterinarian. Dr. Stuart is a vet in

          Williams Lake who says that her special interest is

          horses. Dr. Long is another vet who has owned horses

          herself, like Dr. Stuart. She says she looked at the

          hay. It was quite coarse and there was a lot of

          obvious mould and that the horses needed better

          quality hay than that. She said -- well -- and Ms.

          Caddy, the SPCA lady -

     A    Mm-hmm.

     Q    -- took a photograph of the hay that's in the

          exhibit that I --maybe we should look at. I think

          it's number 11 there. Okay?

     A    Okay.

     Q    I think that you may wish to say something about the

          observations of Dr. Stuart and Dr. Long and about

          that picture.

          And the other issue that I think you didn't say

          anything about, but I could be wrong, you found out

          that Bryan Tetz wasn't going to be able to come to

          the Chilanko Lodge before Christmas, which you had

          expected. He couldn't come, you believed, until --

          or you were told until after Christmas, so you said

          that in most circumstances, and I think your exact

          words were, "We made other arrangements to have the

          horses looked after." But I don't believe that you

          or your sister said anything about what those other

          arrangements were. And you may want to tell me more.

          And if Mr. Wool would like to pick it up from there,

          fine. If Mr. Gilson would, but those are the two

          areas that I think I would like to know more about.

     A    Okay. For the hay, the reason that we didn't choose

          alfalfa hay

     Q    Oh, I -

     A    -- or it's -

     Q    I don't say you should have.

     A    I know. My --we -

     Q    You can -

     A    -- like the Timothy hay because that's what the

          horses are used to. That's what we've got on our

          property.

     Q    I agree, but you can get -

     A    You can get -

     Q    -- good Timothy hay -

     A    Yes.

     Q    -- from Vanderhoof -

     A    Well -

     Q    -- and I'm sure you can get it from Alberta, but Dr.

          Stuart said and Dr. Long said that hay was junk.

     A    This is -

     Q    They didn't use those words, but that's what they

          said.

     A    No. That's fine. When we went to look at the horses

          at the stockyards, it was --the first thing that

          Trinity and I noticed is that they were using the

          same exact hay that we were, but we thought it was

          even in either the -- in less quality condition than

          the hay we had. And that picture with the mould on,

          that round bale --

     Q    But the hay that you had -

     A    But the hay -- the reason why we -

     Q    The vets say -

     A    That hay was -

     Q    -- it was junk.

     A    -- was good, was good hay.

     Q    So -

     A    And we know that was good hay. You're going to find

          mouldy hay in all truckloads or -- usually when we

          get a bunch of hay in, there's always going to be

          some mould in it.

     Q    Mm-hmm.

     A    That was good quality hay and I believe it was in 24

          -- it was really good hay to feed those horses;

          otherwise, we wouldn't have ordered it.

     Q    You simply don't agree with Dr. Stuart?

     A    I don't.

     Q    Or Dr. Long.

     A    We wouldn't have ordered it from Alberta like we --

          or in the past, we've ordered that same hay and it's

          been great hay, so I don't believe that it was bad

          hay. Of course, that one bale that's in the picture

          with mould on it, it's not good hay, but like I

          said, you're going to find mouldy hay in...

     Q    Okay. Any other arrangement?

     A    And for the other arrangements, I'm not exactly sure

          when Bryan was going to come. I think it was the end

          of December or the 1st of January. I'm not exactly

          sure on that date, but until he was to come, one of

          us called --do you want to know names? Does --is

          that okay?

     Q    Mm-hmm.

     MR. WOOL:      Well, Your Honour, I think she wants to

                    tell you some names, so I have no

                    objection to that.

     THE WITNESS:   Okay. We had the Sitesingers, he kept his

                    airplane down at our air strip. And he

                    would come down -

     THE COURT:

     Q    Sitesingers?

     A    They're German.

     Q    Do you know how they spell their name? And if you

          don't

     A    I don't.

     Q    Okay. You had some German neighbours, the

          Sitesingers, to come?

     A    Yes. And he --since he kept his plane down there,

          he'd come all the time to check on his airplane and

          he said that the horses were fine. And besides him,

          we had called the Wickses (phonetic). They're the -

          he's the principal here at Anahim and she's the

          principal at Tatla. And they helped us out. So

          between the three of them, that was the arrangements

          we had made.

     Q    Mr. and Mrs., the principals -

     A    Mrs. -- yes.

     Q    The school principal people.

     A    Yes.

     THE COURT:     The Wicks, they were going to help out.

                    Mr. Wool?

     MR. WOOL:      Yes. Perhaps questioning on this.

     RE-EXAMINATION BY MR. WOOL, Continuing:

     Q    Now, the judge asked some questions about the hay

          just now, remember that?

     A    Yes.

     Q    The hay that there's a photograph taken of and that

          was in the pole barn, when was that delivered to

          Chilanko Lodge?

     A    That was delivered that Fall of 2000.

     Q    All right. There were 19 bales. We've been told, or

          somebody mentioned 19 bales. Of that hay, what was

          the size of the load that came; do you know?

     A    It was pretty big.

     Q    Pretty big?

     A    I don't know how big it was.

     Q    You don't know how big it was. The hay that we see,

          was it fed to the horses before you left, of that

          load?

     A    Yeah. Yeah, we fed some to the horses.

     Q    All right. You'll -- and I'm not going to put --

          you've seen a video of activities in September of

          the year 2000; is that correct?

     A    Yes.

     Q    And in that video, there are horses that are doing

          some athletic kind of things, like running and going

          through various areas of the arena; right?

     A    Yes.

     Q    What hay, if any, were they fed from that load?

     A    They were fed that same stuff.

     Q    All right. Now, fair to say the horses were being

          used every day, if not every second day, during the

          Fall of 2000?

     A    That's correct.

     Q    Right? What, if any, problems were those horses

          having as a result of eating the hay that was in

          that pole barn or the hay barn that we see?

     A    They had none.

     Q    All right. Now, as to the neighbours that you knew,

          for instance, how long had you known the Wicks?

     A    He was my principal. We've known him pretty much the

          whole time we've lived here.

     Q    All right. Was this somebody that was the principal

          at the high --at the school here?

     A    We've known him, I believe, at least ten years.

     Q    Ten years? What about the Sitesingers?

     A    The Sitesingers we've known for about the same.

     Q    About the same. I take it that they would at least

          know where your property is; is that fair to say?

     A    Yeah.

     MR. WOOL:      Okay. Those are all the questions I have.

     THE COURT:     Mr. Gilson?

     MR. GILSON:    My friend opened up an area and I think

                    now we're left with a bit of a

                    contradiction. If I may, Your Honour.

     CROSS-EXAMINATION BY MR. GILSON, Continuing:

     Q    Mrs. Welling, if I suggested to you that this hay

          was from a crop in the summer or Fall of 1999, would

          that refresh your memory?

     A    I don't know when it was from a crop or what -

     Q    If I suggested to you that it was brought in in the

          Spring of the year 2000, would that assist your

          memory?

     A    I don't remember.

     Q    Not sure? If I suggested to you that the reason or

          part of the reason that these horse pellets were

          ordered was the fact that you needed a higher

          nutritional content on your feed, is that a fair

          assessment or statement to make, Mrs. Welling?

     A    That's very false.

     Q    If I suggested to you that hay which was two years

          old does not have that high of a nutritional value,

          isn't that true, Mrs. Welling?

     MR. WOOL:      I'm going to object here. This is inviting

                    argument and -

     THE COURT:     No, I'm -

     MR. WOOL:      There's --how is she going to answer that

                    possibly?

     THE COURT:     I -- just a minute. I think Mr. Gilson is

                    suggesting to you that horse owners know

                    it isn't good practice to feed

                    two-year-old hay unless it's supplemented.

                    Is that -- is he right on that or....?

     THE WITNESS:   Yeah.

     MR. GILSON:    That's all I'm asking, Your Honour.

     MR. WOOL:      Well, I just want to make an observation

                    in terms of argument. If the Crown at --

                    has never had that hay tested, it now

                    becomes -

     THE COURT:     I'm well aware -

     MR. WOOL:      And, you see, what happens, the absurdity

                    of that line of -

     THE COURT:     Just a minute.

     MR. WOOL:      Yes.

     THE COURT:     That's argument.

     MR. WOOL:      Yes.

     THE COURT:     Mr. Wool, I am well aware. I think you

                    will recall that it was me that asked -

     MR. WOOL:      Yes.

     THE COURT:     -- a couple of witnesses -

     MR. WOOL:      That's right.

     THE COURT:     -- did you get the hay tested.

     MR. WOOL:      But I think the concern I have on behalf

                    of the defendant or my clients is that

                    we're -- actually, we're arguing --it's

                    like how many angels can we put on the pin

                    of a needle. I mean, we don't even know

                    what the quality of the hay was.

     THE COURT:     I understand that.

     MR. WOOL:      And that -

     THE COURT:     There was nothing improper about the

                    question.

     MR. WOOL:      Oh, no. But I just want to make it very

                    clear that my client shouldn't go away

                    thinking that somehow the quality of the

                    hay has been established as being poor

                    quality, when -

     THE COURT:     There were some witnesses who said --

     MR. WOOL:      Who said -

     THE COURT:     -- that it was junk and she says it

                    wasn't.

     MR. WOOL:      That's right. And we don't know any better

                    from that. Thank you.

                    And this is strictly humour. I take it the

                    cows didn't feel that way.

     THE COURT:     Horses and cows have different feeding

                    requirements. Mr. Tetz, do you have any

                    questions that you want to ask her?

     THE DEFENDANT, TETZ:     Yes. Just briefly.

[para53]     These are not all of the interventions, but only

those of some duration. With respect to the extent of the

questioning by the trial judge and its tone, I do not find

that it is comparable to that described in Brouillard,

Lefebvre or A.W. With the exception of the quality of the hay

issue, the questioning does not amount to cross-examination of

the witness. The questioning does not seem to demonstrate any

opinion about the witness's credibility. The questioning in

which the judge put the veterinarians' opinion about the hay

to Ms. Welling took place after re-examination and counsel

were permitted to ask questions arising from the judge's line

of questioning. I also take into account that one of the two

accused persons, Bryan Tetz, was unrepresented and no doubt

the trial judge was particularly concerned to ensure for his

benefit that the evidence of this defence witness was clear.

[para54]     The exchange regarding Crystal Eaton was objected

to not only because of the intervention per se, raising a

question about someone uninvolved in the case, but also

because it was said to signal that the trial judge was keeping

in mind other events and personalities beyond the scope of the

trial. Mr. Sudweeks applied for the admission of fresh

evidence and filed an affidavit in which he set out the

following:

     11.  The mention of "Crystal Eaton" was troubling because

          I don't know how the judge remembered or interpreted

          the problems that Ms. Eaton had as it relates to me.

          Ms. Eaton would run away from the lodge, commit

          crimes in Williams Lake and then appear before this

          judge. She would criticize me and my family to the

          judge, which included situations and conditions at

          the lodge. This is according to what she would later

          tell us, including her out of court communications

          that she claimed to be having with the judge. As I

          understood it Ms. Eaton and the judge were writing

          letters to each other. As it turned out, we, as a

          family, believed that we helped get Ms. Eaton's life

          turned around and she is now apparently a

          law-abiding and responsible person. I don't know

          what the judge's pre-disposition was towards me or

          what details he had remembered about Ms. Eaton but

          obviously it was a situation that he remembered and

          had some interest in, although it had no relevance

          to the current trial proceedings.

[para55]     What seemed to have been an inquiry by the judge

based on mere curiosity unfortunately led the appellant to

believe that the judge was referring to historical allegations

against the appellant reflecting adversely on his character.

However, there was no suggestion in the judge's remarks that

he had any views about the appellant or his family based on

whatever Ms. Eaton might have related to him. I do not find

that the exchange would give rise to a reasonable apprehension

of bias in the mind of a reasonable observer informed of the

history between Ms. Eaton and the Sudweeks family.

[para56]     I turn to the examination of Ms. Welling

regarding the quality of the hay. Defence counsel had asked

Ms. Welling about her opinion of the quality of the hay in his

examination in chief. She said that it was good quality

Timothy hay. On cross-examination Crown counsel did not

explore the area further. The judge then, in his examination

of the witness following re-examination, asked her to comment

on the evidence of two veterinarians to the effect that the

hay was mouldy and of poor quality. The judge summarized his

understanding of their evidence as, "They said that hay was

junk".

[para57]     Mr. Wool argued that this was an unfair question

because it displaced the onus of proof, given that there had

been no scientific or laboratory analysis of the hay, and

because of its implicit suggestion that the trial judge had

already made up his mind about the quality of the hay. He

relied on R. v. Ellard (2003),  172 C.C.C. (3d) 28 (B.C.C.A.)

where the court held that Crown counsel had acted improperly

in asking the accused about the veracity of a Crown witness.

The court stated that such questioning before a jury is

improper because it tends to shift the burden of proof from

the Crown to the accused by suggesting that if an accused

cannot say why the witness would give false evidence, that

evidence may be true. At [paragraph]  22 Donald J.A. wrote:

     The risk of such a course of reasoning undermines the

     presumption of innocence and the doctrine of reasonable

     doubt. The mind of the trier of fact must remain firmly

     fixed on whether the Crown proved its case on the

     requisite standard and not be diverted by the question

     whether the accused provided a motive for a witness to

     lie.

[para58]     Here, Shayla Welling, as someone with experience

in the care and feeding of horses, was allowed to testify as

to her observations and opinion of the hay that was made

available to the horses on the Sudweeks property. Two

veterinarians had previously been permitted to state their

observations and opinion about the hay. The judge asked Ms.

Welling to comment on what the veterinarians had said. I do

not think that this situation is comparable to what occurred

in the Ellard case. Ms. Welling was not the accused. This was

a trial by judge alone. Ms. Welling was not being asked to

comment on the credibility of a Crown witness. She was being

asked to say why her opinion about the quality of the hay was

different from that of the veterinarians. Counsel for the

appellant was permitted to ask further questions after this

examination. As it transpired, the evidence elicited by the

questioning was probably more helpful to the defence than to

the Crown.

[para59]     As to the issue regarding the cross-examination

of Bryan Tetz, the following occurred at Transcript of

Proceedings at Trial, June 28, 2002, pp. 57-58:

     Q    And on January 12th of the year 2000, at Red Deer,

          Alberta, you were convicted of driving while

          disqualified; is that correct?

     A    Yes.

     Q    And you were given a fine of $500, in default of

          payment 11 days and prohibited from driving for one

          year; is that right?

     A    Yes.

     MR. WOOL:      Might this man's record be filed as the

                    next exhibit?

     THE COURT:     Well, if you wish, but -

     MR. WOOL:      You have it.

     MR. GILSON:    It's been read in.

     MR. WOOL:      It's read in.

     THE COURT:     It's all read in.

     MR. WOOL:

     Q    So I take it when you were driving -

     THE COURT:     No, you're not going to ask that question,

                    Mr. Wool.

     MR. WOOL:      Well -

     THE COURT:     No.

     MR. WOOL:      I take -

     THE COURT:     No, Mr. Wool.

     MR. WOOL:      I didn't say I was.

     THE COURT:     No, you're not going to.

     MR. WOOL:      I didn't even ask the question.

     THE COURT:     I know. You didn't get a chance.

     MR. WOOL:      Those are all the questions I have.

     MR. GILSON:    Nothing, Your Honour.

     EXAMINATION BY THE COURT:

     Q    Mr. Tetz, if at one point during your

          cross-examination, I believe you said that there was

          something you wanted to explain to me. I'm not sure

          that you still -- that there's anything --

     A    I think I've touched on it, but in regards to this -

     Q    Your statement?

     A    Yeah.

     Q    Mm-hmm.

     A    It's not entirely accurate. There was a few reasons

          for it. Mainly I was trying to protect Mark and

          Cheryl.

     Q    You've told me that.

     A    And I didn't want the horses to be seized.

     Q    You've told me that.

     A    He told me that there was --so that's basically all

          I wanted to say.

     THE COURT:     Mr. Tetz, I'm quite certain that you told

                    me previously that you had no other

                    witnesses to call. Just yourself.

     THE WITNESS:   Right.

     THE COURT:     So that's all the evidence that you're

                    calling?

     THE WITNESS:   Right.

     THE COURT:     Thank you, Mr. Tetz.

                         (WITNESS ASIDE)

     THE COURT:     I do understand, Mr. Wool, that if he was

                    driving from Saskatoon to Chilanko Lodge

                    and whilst he was here, that might have

                    been a problem. I think the evidence would

                    suggest that he probably was, but I don't

                    think the question was -

     MR. WOOL:      Well, put it very bluntly. The man was

                    driving unlawfully.

     THE COURT:     I understand, Mr. ---

     MR. WOOL:      And that's ---

     THE COURT:     -- Wool, but -

     MR. WOOL:      It might give you an idea of what the

                    man's regard is.

     THE COURT:     Yes. I understand that perfectly well.

     MR. WOOL:      And -- and I think it's called --Your

                    Honour had mental telepathy with defence

                    counsel.

[para60]     The transcript shows that counsel for the

appellant had wished to cross-examine Mr. Tetz about driving

while under prohibition. Mr. Wool argued on the appeal that

this question was relevant because it may have revealed that

the police did not find Mr. Tetz at the lodge on January 10

because Mr. Tetz was avoiding the police. Mr. Wool submitted

that by the time this exchange between himself and the judge

occurred he was "beginning to get the picture" and did not

make any submissions because the judge had already made his

ruling, and it is rare that a judge will reverse a ruling

already made. The transcript overall, however, shows that the

trial judge permitted Mr. Wool to argue that Mr. Tetz had been

driving while prohibited. Further Mr. Wool could have asked

the court to hear submissions on his entitlement to pursue

this line of questioning. This he did not do.

[para61]     I will refer briefly to the evidence regarding

the dealings with the press. The appellant complains of: (a)

the judge's reference in court to an article from the Williams

Lake Tribune before it had been distributed in the local

community; (b) the judge's ruling about publication of

photographs of the judicial view; (c) the judge's comment

about the publication of a "very fine picture" of defence

counsel; and (d) the judge's comment during legal argument

that he was sure the editors of the Williams Lake Tribune

would have been willing to publish the defendants' side of the

story.

[para62]     Mr. Sudweeks stated in his affidavit the

following:

     2.   When the trial started on June 18th, 2002 at Anahim

          Lake, B.C. I noticed the presence of newspaper

          reporters. They were in the public seating area of

          the courtroom. At the court breaks in the morning

          and afternoon these reporters mingled with the

          crowd, including members of my family.

     3.   The trial continued to Friday, June 21st, 2002, when

          there was a court viewing by the judge at our

          property, called "Chilanko Lodge". The media

          attended our property and wanted permission to

          photograph the proceedings at the lodge. In court, I

          had objected to photographs of my family and

          property on the reasoning that widespread publicity

          had already caused a serious disruption to our

          lives. Among other things the publicity generated

          hundreds of hate e-mails, including a specific death

          threat directed at me.

     4.   When the trial resumed on Monday, June 24th, 2002 I

          noticed the media reporters were not present at the

          Anahim Lake courthouse. It was the same for Tuesday,

          June 25th, 2002. There were no reporters present.

     5.   Near 12 noon, Tuesday, June 25th, 2002, the

          proceedings were adjourned as usual for the lunch

          hour. As I and others started clearing out of the

          courtroom, I heard the trial judge tell the sheriff

          to make a photocopy for the "Sudweeks". The judge

          was referring to a newspaper article. The judge had

          his robes on as he handed the paper to the sheriff.

     6.   The sheriff went into a backroom of the courthouse.

          He came out with a photocopy, that was handed to one

          of my family members. Everyone, including the

          co-accused Bryan Tetz was intensely interested in

          the article, a copy of which I attach to this my

          affidavit as Exhibit "A".

     7.   Included in the newspaper article was a statement

          attributed to my wife (co-accused at the time) that

          "Brian Tetz may be on the hot seat". She is also

          quoted, "We thought we could trust him". As the

          article was being read at the courthouse steps,

          Bryan Tetz turned to my family and said words to the

          effect "You're against me or you're trying to blame

          me". After he made that statement, he turned and ran

          from the courthouse.

     8.   Up until this incident at the courthouse steps,

          Bryan Tetz was supportive towards my wife and I.

          When this trial started he stayed at our lodge.

          Among the comments he stated to us were; "I could

          have stopped all this", "I feel responsible" and "I

          should plead guilty". After this incident, Tetz

          became very distant from us. He started speaking to

          the prosecutor, Mr. Gilson, out of court and I

          understand he sought advice from him about pleading

          guilty. I am not able to say why the judge decided

          to circulate this newspaper article but it caused

          considerable disruption to our case.

     9.   As the trial continued it became apparent to me and

          my family that the judge was considering, or

          allowing himself to be influenced by matters that

          had nothing to do with the charges against me.

     ...

     16.  At trial on July 19th, 2002 the judge made a comment

          that indicated his bias towards me. When my counsel

          was making a submission about how the SPCA and media

          had ruined my business, the judge stated "I'm

          absolutely certain that if Mr. Sudweeks had chosen

          to go to the CBC, The Vancouver Sun, or The Williams

          Lake Tribune and said to Mr. Phillips here in

          Williams Lake or -- or other persons, "I want to sit

          down with you and I want to tell you my side of the

          story, "I'm absolutely certain that The Williams

          Lake Tribune and -- and those other outfits also

          would have been very pleased to run that side of the

          story".

     17.  The judge was totally misguided on how the media

          crafted their version of events. Long before I had

          any opportunity to say anything to the media, T.V.,

          radio and newspapers put out false and misleading

          stories. There was speculation and sensational

          reporting, some of which caused the hate and death

          threats. When my wife was acquitted, on the merits,

          she tried to put her side of the storey to the

          media. In a response dated July 23rd, 2002 from the

          Vancouver Sun reporter, Nicholas Read, she was

          advised that their senior editor had decided "not to

          run the story". I attach that response to this my

          affidavit as Exhibit "C".

     18.  As the result of the judge's distribution of the

          Williams Lake Tribune article on June 25th, and his

          comment during sentencing on July 19th, 2002 (para.

          16), I concluded the judge was allowing evidence not

          introduced at the trial to influence his decisions

          and was therefore biased. His comments regarding the

          press coverage lead me to believe that he condones

          trial by the media. I revisited the Williams Lake

          Tribune article written by "Bill Phillips". The date

          of this article was drawn to my attention as Tuesday

          June 25th, 2002, a date when no reporters were in

          attendance. The community of Anahim Lake, B.C. is

          very small and over 400 km. west of Williams Lake,

          B.C. The Williams Lake Tribune publishes and comes

          out on Tuesday morning in Williams Lake. The fact

          that the judge had a copy of this article within a

          few hours of it being published in a town four or

          more hours drive away leads me to believe that

          somebody provided the judge with a copy of the

          article (June 25th) by fax, possibly through the

          judge's office. I don't know why the judge would

          solicit or receive a newspaper article about me in

          his office during an ongoing trial.

[para63]     Referring to the appellant's various concerns

about dealings with the press, the first was that the judge

had the June 25 newspaper article and provided a photocopy of

it to the defence. Counsel submitted that it appeared that the

judge was considering material obtained outside the trial, and

that the incident was problematic because after reading the

article Bryan Tetz ceased to be friendly to the co-accused,

Mark Sudweeks.

[para64]     It may be that the judge had looked at material

obtained outside the courtroom but surely the best course was

to reveal that to the parties and share the information with

them (as Steel J.A. stated in Lynxleg at [paragraph]  44). As

to the rift between the co-accuseds, it was not caused by the

provision of the photocopy but by the contents of the article.

Assuming that Mr. Tetz would have read the newspaper when it

arrived in the local community, the judge's causing it to be

distributed when he did only had the effect of moving up the

timing of the rift by a few hours to a day.

[para65]     As for the second complaint, that the judge

permitted his own photograph taken at the judicial view to be

published but not those of the parties or counsel, I do not

find that to indicate bias in either direction.

[para66]     With respect to the third matter, the judge's

comment about the picture of defence counsel, this was said to

relate to a sensitive matter because of the amount of interest

in this case in the local community, and animosity directed

toward the defendants and defence counsel. The photograph was

in the same June 25, 2002 edition of the newspaper. The trial

judge made a light comment, not unusual in a long trial; I do

not find that there is any reasonable apprehension of bias

flowing from this.

[para67]     The context of the comment referred to in the

fourth complaint, regarding the judge's view that the

defendants could have had their side of the story published,

is important. Near the end of Mr. Wool's submissions on the

voir dire regarding the admissibility of the evidence found as

a result of the search of the Sudweeks's lodge, at Transcript

of Proceedings at Trial, June 25, 2002, pp. 41-44, the

following occurred:

     MR. WOOL       .... But I think that that's where this

                    particular case really fails the system is

                    because it seems that the police and the

                    SPCA were bent on the entirety of a

                    seizure without having some reasonableness

                    attached to it. It didn't matter what

                    Bryan Tetz said. It didn't matter what

                    food or water was available. The whole

                    herd was going, including the dog. And

                    there were people -- now we look back

                    there, a year and a half later, that's an

                    excessive seizure.

                    And it is open for the court to see how

                    misguided and improper it also was for Ms.

                    Caddy to start disclosing evidence to the

                    media based on her -- based on --no, she's

                    giving these interviews, but what I'm

                    saying is the court can see that that, if

                    you read West and you consider what you've

                    heard now is how the media got involved in

                    this, you see, that becomes --where it

                    brings the administration of justice into

                    disrepute is that the media that doesn't

                    have this impartial or theatre of proof,

                    the media, once it gets into the media,

                    Your Honour, there is no control over it

                    and the search becomes unreasonable

                    because there's a one-sided story, a

                    six-year-old ---

     THE COURT:     Oh -

     MR. WOOL:      No.

     THE COURT:     -- Mr. -- to overstate this, you really

                    can't, because you know -- you may have a

                    real point here, Mr. Wool. I don't think

                    it goes to the proposition that the search

                    warrants were bad from their inception,

                    but you say that, you know, once the media

                    gets hold of it, there's, you know -

     MR. WOOL:      No.

     THE COURT:     I am absolutely certain that if your

                    clients had gone to the Williams Lake

                    Tribune and said, "We want you to publish

                    our side of the story, "that, you know,

                    that the editor would have sat down with

                    them and said, "I'd be delighted to do

                    that." Now, --

     MR. WOOL:      How in the --

     THE COURT:     I'm not suggesting that your clients would

                    --

     MR. WOOL:      No.

     THE COURT:     --you know, do that, but you can make too

                    much of this proposition that the media is

                    evil and uncontrolled and rabid.

     MR. WOOL:      I wouldn't back down from that for one

                    minute because, you see, what happens is

                    when finally a judge looks at it and says

                    that why should we exclude the evidence,

                    you can see that if the administration of

                    justice is there to say that there's

                    nothing evil about the media or that oh,

                    you can make too much of that --

     THE COURT:     I said you can make too much of it.

     MR. WOOL:      The media has no theatre of impartiality.

                    Once it gets into the media, you don't

                    have a Court of Appeal. The media, as is

                    often said, facts are negotiable;

                    perceptions are not. And what happens is

                    that the administration of justice, if it

                    wants to align itself with the media and

                    says that no, we're not concerned about

                    what happened in the media and what

                    happens to people who have their property,

                    their lives disturbed by the media, we're

                    not concerned about that, then there is no

                    justice. That is so simple, that if the

                    Charter was meant to protect people, that

                    -- it says people are free from

                    unreasonable search and seizure. It's the

                    fruits of the seizure that led to media.

                    Nobody twisted Ms. Caddy's arm to go and

                    describe a six-month -- as she said, oh,

                    this is a six-month -- this was in the

                    media, six-month-old colt and dramatize

                    its poor weight and go into that. Nobody

                    twisted her arm, but you could see how

                    that can turn a seizure into an

                    unreasonable circumstance and that that's

                    what the Charter was there to protect. It

                    was there to say look, if you're going to

                    have search and seizure, that's in

                    accordance with law and the principles of

                    law and the duty is for a police officer

                    to take that evidence to a justice of the

                    peace and it's to be disposed of in court

                    where there's a free and impartial

                    adjudication of the facts. It is not a

                    free adjudication of facts when one party

                    puts themselves in with the media and then

                    puts out information which is speculative

                    because that -- if this court wants to

                    endorse that and say, "No, Mr. Wool, we've

                    got nothing to do with the media, we don't

                    care. I'm sure the media would have

                    listened to the Sudweeks." What kind of a

                    mess would that bring the administration

                    of justice into? What would that say for

                    the people who don't have the political or

                    financial access to the media? What does

                    it say about them?

                    And it thoroughly destroys the

                    administration of justice. Right-minded

                    people, sitting, hearing a situation where

                    the media is being used and remarkably, on

                    the 11th of June, being used and the basis

                    of that is the seizure. I think

                    right-minded people will say, "That's not

                    fair. That's not --"

     THE COURT:     I -

     MR. WOOL:      Your Honour, this --

     THE COURT:     The story in The Vancouver Sun on the 11th

                    of June?

     MR. WOOL:      Yes.

     THE COURT:     Reporting on a judicial decision.

     MR. WOOL:      It's reporting about the --when you read

                    it, it's reporting about the weight of a

                    little colt.

     THE COURT:     That's mentioned in there, certainly. But

                    I don't --I don't think that any

                    reasonable person could say that the media

                    is being used. The media may have -- you

                    may say that they went too far --

     MR. WOOL:      Here's the point.

     THE COURT:     -- but I don't think that they were being

                    used.

Mr. Wool was concerned because of publicity regarding the

case, including the publication of material that appears to

have been erroneous such as the misdescription of a

four-month-old colt as six months old (thus exaggerating the

state of distress of the animal). These were valid concerns.

However, I do not consider that the judge's words in context

could give rise to a reasonable apprehension of bias. Nor do I

find a basis for Mr. Wool's position that the judge's comments

showed a displacement of the right to silence and presumption

of innocence of the defendant.

     E.   Conclusion

[para68]     I have reviewed much of the transcript of the

trial in addition to those portions brought to my attention by

defence counsel. The trial judge appeared to be even-handed

and, if anything, more helpful to the defence than to the

Crown - I note, for example, that the basis upon which the

search warrants were found to be invalid was one not raised by

defence counsel but by the judge himself. Throughout the

proceedings the judge seemed anxious to ensure that there was

a fair trial for both defendants, including Mr. Tetz who was

unrepresented. That the press was interested in this case was

not the fault of the trial judge. I do not find that the

conduct or comments of the learned trial judge, taken

individually or as a whole, in the context of the trial as a

whole would have given to the reasonable and informed person a

reasonable apprehension of bias or the impression that the

appellant was not receiving a fair trial.

2.   Admission of Evidence Obtained Through Warrantless

     Searches

     A.   The relevant legislation

[para69]     The PCA Act provides as follows:

   1 (2)  For the purposes of this Act, an animal is in

          distress if it is

          (a)  deprived of adequate food, water or shelter,

          (b)  injured, sick, in pain or suffering, or

          (c)  abused or neglected.

     (3)  For the purposes of this Act, a person responsible

          for an animal includes a person who

          (a)  owns an animal, or

          (b)  has custody or control of an animal.

     11   If an authorized agent is of the opinion that an

          animal is in distress and the person responsible for

          the animal

          (a)  does not promptly take steps that will relieve

               its distress, or

          (b)  cannot be found immediately and informed of the

               animal's distress,

          the authorized agent may, in accordance with

          sections 13 and 14, take any action that the

          authorized agent considers necessary to relieve the

          animal's distress, including, without limitation,

          taking custody of the animal and arranging for food,

          water, shelter and veterinary treatment for it.

  13 (1)  An authorized agent who believes, on reasonable

          grounds,

          (a)  that there is an animal in distress in any

               premises, vehicle, aircraft or vessel, or

          (b)  that an offence under section 24 has been

               committed and that there is in any premises,

               vehicle, aircraft or vessel, anything that will

               afford evidence of that offence,

          may enter the premises, vehicle, aircraft or vessel

          with a warrant issued under subsection (2) for the

          purpose of

          (c)  determining whether any action authorized by

               this Act should be taken to relieve the

               animal's distress, or

          (d)  searching for any thing that will afford

               evidence of an offence under section 24.

     (2)  A justice who is satisfied by information on oath in

          the prescribed form that there are reasonable

          grounds

          (a)  under paragraph (1)(a), may issue a warrant in

               the prescribed form authorizing an authorized

               agent to enter the premises, vehicle, aircraft

               or vessel for the purpose of taking any action

               authorized by this Act to relieve the animal's

               distress, and

          (b)  under paragraph (1)(b), may issue a warrant in

               the prescribed form authorizing an authorized

               agent to enter the premises, vehicle, aircraft

               or vessel for the purpose of searching for the

               thing that will afford evidence for an offence

               under section 24.

     ...

  14 (1)  In this section, "critical distress" means distress

          in an animal of such a nature that

          (a)  immediate veterinary treatment cannot prolong

               the animal's life,

          (b)  prolonging the animal's life would result in

               the animal suffering unduly, or

          (c)  immediate veterinary intervention is necessary

               to prevent the imminent death of the animal.

     (2)  An authorized agent who believes on reasonable

          grounds that there is an animal in critical distress

          in any premises, other than a dwelling house, or in

          any vehicle, aircraft or vessel, may enter the

          premises, vehicle, aircraft or vessel without a

          warrant for the purpose of taking any action

          authorized by this Act to relieve that critical

          distress.

     15   An authorized agent may, without a warrant, during

          ordinary business hours enter any premises, other

          than a dwelling house, where animals are kept for

          sale, hire or exhibition for the purpose of

          determining whether any animal is in distress in the

          premises.

     22   In a part of British Columbia in which the society

          [the SPCA] does not function through a branch or

          authorized agent, a peace officer who has

          jurisdiction in the part has and may exercise any of

          the powers of an authorized agent of the society

          under this Act.

[para70]     It was not disputed that s. 22 of the PCA Act

applied, in that Anahim Lake is a part of British Columbia in

which the SPCA does not function through a branch or

authorized agent. Sharon Caddy of the Williams Lake SPCA was

brought in to assist, but she was not an authorized agent for

the Anahim Lake area. Thus, the RCMP constables had

jurisdiction as authorized agents under the Act.

     B.   The judge's rulings

          (1)  The initial entry onto the appellant's property

[para71]     With respect to Constable MacDonald's first entry

upon the property, on January 10, 2001, in response to the

initial complaint made by Arianne Brink that the horses on the

property were not being fed or watered, the trial judge held

that sections 22 and 14 of the PCA Act authorized Constable

MacDonald's actions.

[para72]     The learned trial judge found that on January 10

Constable MacDonald had reasonable grounds to believe that

horses at the Chilanko Lodge were in critical distress, that

the constable was justified in entering the premises without a

warrant for the purpose of taking appropriate action to

relieve the distress of the animals, and that his actions in

so doing were reasonable. The court referred to R. v. Grant,

 [1993] 3 S.C.R. 223 and stated:

     In the present case, Constable Macdonald learned late in

     the day on January 8 that horses were said to be in

     danger of dying in the next few days. He made some

     necessary inquiries the next day. He became familiar with

     the provisions of the Prevention of Cruelty to Animals

     Act. He decided to conduct a warrantless search at the

     Chilanko Lodge at an early hour on January 10. I am not

     prepared to say that the circumstances were not exigent.

     And I do say that it would have been impracticable to

     obtain a search warrant for January 10. I say that for

     reasons which were not fully known to Constable MacDonald

     at the time.

     Constable MacDonald was a member of a small RCMP

     detachment in a remote community. There was no longer a

     justice of the peace resident in Anahim Lake. Members of

     the Anahim Lake RCMP detachment were expected to obtain

     all search warrants by telewarrant. But no telewarrant

     could issue for the suspected Criminal Code offences, and

     no telewarrant could issue for the suspected offences

     under the Prevention of Cruelty to Animals Act, for the

     reasons which I shall state later in these reasons. The

     law did not require that Constable MacDonald travel to

     some distant community, and then return to the Chilanko

     Lodge, search warrant in hand, before he could commence

     the work of saving animals and investigating offences on

     January 10. In my opinion, the law is not such an ass as

     people sometimes presume it to be!

[para73]     Later in his Reasons, the trial judge stated

that:

     Although I have not researched the issue thoroughly, I

     believe that for provincial offences, a telewarrant

     cannot be issued if the statute creating the suspected

     offence has its own specific search provisions, as does

     the Prevention of Cruelty to Animals Act. See the

     decision of McKenzie J. in Saunders v. British Columbia

      [1988] B.C.J. No. 1085.

          (2)  The subsequent searches

[para74]     On January 11, 2001 Constable Reed of the RCMP

obtained a search warrant, using the telewarrant process. The

warrant was attacked on several bases at trial, but the

learned trial judge found that it was invalid for other

reasons: that a telewarrant cannot be issued if the relevant

statute has its own specific search provisions, and that it

was issued on the basis of unsworn informations, contrary to

the requirement set out in section 22 of the Offence Act.

[para75]     The Crown on this appeal did not dispute the

conclusion that the warrant was invalid.

[para76]     A search of the property was conducted by

Constable Reed on January 11, 2001, accompanied by Sharon

Caddy of the SPCA and two veterinarians. Bryan Tetz was

present on the property. The court found that Constable Reed

took custody of a number of animals after determining that

they were in distress and that Bryan Tetz was not capable of

relieving their distress.

[para77]     Another telewarrant was obtained on January 15,

2001, after Constable MacDonald received a report on January

13 that there were still horses on the property. This warrant

was found to be invalid for the same reasons as was the

January 11 warrant. Again, the Crown did not dispute the trial

judge's conclusion in this regard. Four more horses were

located in the south pasture, and were taken into custody by

Constable MacDonald. Dr. Long also found the skeleton of a

horse in the pasture.

          (3)  The conclusions of the trial judge on admission

               of the evidence

[para78]     The trial judge concluded that warrants were not

necessary with respect to any of the three searches (January

10, 11 and 15). It appears that his conclusion was based on

the finding that the police believed on reasonable grounds

that the animals were in critical distress and thus the

searches were authorized under s. 14 of the PCA Act, or

alternatively on a finding that a warrantless search was

justified because the circumstances were exigent.

[para79]     The judge further concluded that even if warrants

were required and therefore the appellant's rights under s. 8

of the Charter had been infringed, the evidence should not be

excluded. He stated that Crown counsel's submissions in this

regard were in general persuasive, and referred to R. v.

Grant, supra, R. v. Kokesch  [1990] 3 S.C.R. 3, R. v. Collins

 [1987] 1 S.C.R. 265 and R. v. Caslake  [1998] 1 S.C.R. 51.

[para80]     The evidence in support of the trial judge's

conclusion that the police had a reasonable belief that

animals were in critical distress was as follows.

[para81]     Constable MacDonald testified that on the evening

of January 8, he received a phone call from Arianne Brink (who

was previously unknown to him) who advised him "that the

horses at Chilanko Lodge were starving and had no salt, no

shelter, no water and that many of them were in danger of

actually dying." He testified that he had been advised that

"many of the horses were in danger of actually dying if the

situation wasn't addressed in short order".

[para82]     Constable MacDonald spoke to his supervisor, made

some inquiries, and contacted Sharon Caddy of the Williams

Lake SPCA. He arranged to meet Ms. Brink at the gate to the

lodge the following morning, January 10. He testified that

that morning he could see a line of blood in the snow going

down the driveway and that it appeared that something had been

dragged there. He then proceeded down the driveway with the

intention of finding an occupant. He saw in a corral some 25

horses that were "extremely skinny, extremely emaciated, in

very poor condition". He went to all of the doors of the

residential buildings and knocked, but found no-one present.

He took some photographs of the horses, including one animal

that was lying down and did not appear to be able to get up.

He testified that he observed that there was no feed or water

available to the horses except for some hay inside the hay

shed barred by a gate, and snow on the ground. He did not see

any salt or minerals. He did not see anything designed to

shelter the horses. He testified that the younger horses were

in particularly poor condition.

[para83]     Having seen the horses in this condition, and

having found no people on the property, the Constable

concluded that the horses were in urgent need of food, water

and attention from a veterinarian. He had to attend to other

matters and Constable Reed took over this one.

[para84]     On January 11, having been told what Constable

MacDonald had seen, Constable Reed entered on the property

with a veterinarian, Dr. Catherine Stuart, and with a warrant

he thought was valid. Constable Reed found Bryan Tetz on the

property and served him with the warrant. (The evidence

regarding what they then observed of course has no bearing on

the validity of the January 11 or January 10 searches, but may

be relevant to the validity of the subsequent search on

January 15.)

[para85]     Dr. Stuart and a second veterinarian, Dr. Long,

examined the horses and recorded their "body condition" on a

scale of one to nine, with "one" for emaciation and "nine" for

obesity. (Those are not the veterinarians' words but my rough

characterization of the effect of the scores as explained in

their evidence).

[para86]     Some 16 of the horses were assessed at scores of

"one" or "two", reflecting very poor or poor condition. One of

the animals was in critical distress due to severe colic, in

the opinion of the veterinarians, and had to be euthanized

that day to end its suffering. Dr. Stuart's evidence in this

regard was that in addition to the horse euthanized on January

11, there were two other horses whose condition was such that

they required medical assistance in order to survive. Mr.

Tetz, when told to so do by Constable Reed, used the excavator

to bring a bale of hay from the barn and put it out for the

horses. Dr. Stuart testified that, with respect to many of the

horses, providing them with the hay found in the barn would

not have been sufficient for their nutritional needs due to

the poor quality of that hay, even in combination with feeding

of grain. She observed that some of the horses appeared on

January 11 to be deprived of food to the point that they had

lost the drive to eat (they were anorexic). She also testified

that horses can eat snow, but converting it into water

requires energy, and they must eat about six times more snow

in volume than water.

[para87]     The seven Golden Retriever dogs on the property

were not formally scored as the horses had been, but the

evidence of Constable Reed, Dr. Stuart and Sharon Caddy was

that they were very thin and seemed in poor condition.

[para88]     Constable Reed concluded on the advice of the

veterinarian and on his assessment of Mr. Tetz's capabilities

that the animals should be seized in order to relieve their

distress.

[para89]     On January 15, having learned (contrary to what

Mr. Tetz had told the police) that there were more horses in

the south pasture, and having seen the condition of the horses

in the corral on January 11, the police obtained another

warrant. Constable MacDonald entered the property with Dr.

Long, Ms. Caddy and Ms. Richburg (another neighbour). No-one

was on the property, Mr. Tetz having departed on January 13.

Four horses found in the south pasture were seized. The

skeleton of another horse was found in the same pasture.

     C.   Analysis

[para90]     With warrantless searches, which are

presumptively unreasonable and in violation of s. 8 of the

Charter, the onus rests on the Crown to demonstrate on a

balance of probabilities that the search was reasonable. A

search will be reasonable if it is authorized by law, if the

law itself is reasonable, and if the manner in which the

search was carried out was reasonable: R. v. Buhay (2003),  174

C.C.C. (3d) 97 at [paragraph] 32.

[para91]     The person alleging an infringement of his or her

rights under s. 8 of the Charter must have a reasonable

expectation of privacy: R. v. Edwards,  [1996] 1 S.C.R. 128.

Whether this reasonable expectation of privacy exists is to be

determined in the totality of the circumstances, considering

these factors among others: (i) presence at the time of the

search; (ii) possession or control of the property or place

searched; (iii) ownership of the property or place; (iv)

historical use of the property or item; (v) the ability to

regulate access; (vi) the existence of a subjective

expectation of privacy; and (vii) the objective reasonableness

of the expectation. In Edwards, the Supreme Court concluded

that the appellant did not have a reasonable expectation of

privacy regarding a search of his girlfriend's apartment where

he was a visitor who stayed over occasionally. Recently, in R.

v. Buhay, supra, the Supreme Court held that an individual had

a reasonable expectation of privacy in a bus locker that he

had rented, similar to the expectation of privacy one might

have in a rented hotel room, apartment or office. At

[paragraph] 24 Arbour J. for the court stated:

     As recently stated in R. v. Law,  [2002] 1 S.C.R. 227,

      2002 SCC 10, this Court has adopted a liberal approach to

     the protection of privacy. Bastarache J. stressed at

     para. 16 that this protection extends not only homes and

     personal items, but to information which we choose to

     keep confidential - particularly that which is kept under

     lock and key. The same applies to personal items which we

     choose to keep safe from the interference of others by

     storing and locking them in a space retained for that

     purpose. While it was not as high as the privacy afforded

     to one's own body, home, or office, a reasonable

     expectation of privacy existed in locker 135 sufficient

     to engage the appellant's s. 8 Charter rights.

[para92]     I conclude that Mr. Sudweeks had an expectation

of privacy in the premises, which he owned, where he or

members of his family stayed from time to time, and where he

had the ability to regulate access, although his was a reduced

expectation of privacy given that the areas in question were

open fields and a corral, not dwelling houses or other

buildings, and that the lodge was not Mr. Sudweeks's

residence.

[para93]     The constitutional validity of s. 14 and s. 11 of

the PCA Act was not challenged at trial or on this appeal.

[para94]     The questions to be determined are:

     (1)  Has the Crown established on a balance of

          probabilities that the searches on January 10,

          January 11 and January 15 were valid warrantless

          searches authorized under s. 14 or s. 15 of the PCA

          Act?

     (2)  Has the Crown established on a balance of

          probabilities that the seizures of the animals on

          January 11 and January 15 were valid warrantless

          seizures authorized under s. 11 of the PCA Act?

     (3)  If not, has the Crown established on a balance of

          probabilities that the warrantless searches and

          seizures were valid at common law?

     (4)  If the appellant's right to be free from

          unreasonable search and seizure was infringed,

          should the evidence obtained as a result of the

          infringement be excluded as a result of s. 24(2) of

          the Charter?

[para95]     Mr. Wool for the appellant argued that section 11

of the PCA Act required that Bryan Tetz, as the person

responsible for the animals at the time of the entry onto the

property, must be given the opportunity to take steps to

relieve their distress before the authorized agent could take

any action in accordance with section 14.

[para96]     Counsel were unable to bring to my attention any

authorities interpreting section 14 of the PCA Act. Mr. Wool

referred to a portion of the transcript of an unreported

decision by The Honourable Judge W.G. MacDonald in R. v. Ann

Brown, Prov. Ct. File No. 104289, Surrey, B.C., May 25, 2000.

He relied upon it as authority for the proposition that,

because of s. 11, unless the person responsible for an animal

is sought and given the opportunity to relieve the animal's

distress, the authorized agent may not seek a warrant under s.

13 or enter without a warrant under s. 14. The only other

authority that I have been able to locate is one decided since

the argument of this case: McDougall v. British Columbia

Society for the Prevention of Cruelty to Animals,  2003 BCSC

1604, where the issue was the validity of a warrant under s.

13. The court commented, at [paragraph]  33, that entries

without a warrant had constituted trespasses since "the Act is

specific about the groundwork which must be laid before entry

can be made".

[para97]     Mr. Wool referred to R. v. McIntosh  [1995] 1

S.C.R. 686,  95 C.C.C. (3d) 481 (S.C.C.) as authority that in

matters of statutory interpretation, where there are penal

consequences, the interpretation favouring the accused must be

used.

[para98]     Mr. Wool argued that the evidence showed that

there was a good quantity of hay, horse pellets and dog food

on the property, that Bryan Tetz had been hired to be a

caretaker, and that because Mr. Tetz was given no opportunity

to attempt to bring the animals back from their distressed

state, the searches and seizures were invalid.

[para99]     Mr. Hawkins for the Crown disagreed with that

reading of the section and argued that s. 14 permits entry and

search on the property if the authorized agent has a

reasonable belief an animal is in critical distress.

[para100]     Further, Mr. Hawkins pointed to findings of fact

by the trial judge that Bryan Tetz could not be found on

January 10 or 15 and that on January 11 he was so overwhelmed

by the situation as to be unable to cope with the

responsibility of caring for the horses and dogs. The Crown

also argued that by January 10 the animals' distress was not

such that it could be relieved simply by putting out more of

the available hay and water, pointing to the evidence of Dr.

Stuart and Sharon Caddy. It was the Crown's position that,

even if providing an opportunity to the persons responsible

for the animals to relieve their distress was a pre-requisite

to a valid search and seizure, that condition had been

complied with in these circumstances.

[para101]     The Crown's position was that once there had

been a valid entry onto the property under s. 14, s. 11

permitted the authorized agent (here, the police) to take any

action considered reasonably necessary to relieve the animals'

distress-in this case, to take the animals into custody.

[para102]     Mr. Hawkins also argued that s. 15 might have

authorized the entry onto the property since the Chilanko

Lodge was a commercial enterprise in that the Sudweeks family

business was to take in tourists as well as to run treatment

programs for troubled youth involving the horses. This

argument does not appear to have been raised at the trial, and

the Crown did not refer to evidence showing that the animals

were kept "for sale, hire or exhibition". I do not find an

evidentiary basis for the application of s. 15 in these

circumstances.

[para103]     The legislative scheme under the PCA Act seems

reasonably clear. First, there will be no warrantless searches

of dwelling houses. Second, if an authorized agent believes on

reasonable grounds that an animal is in critical distress (as

"critical distress" is defined in s. 14 (1)) in any premises

other than a dwelling house, that agent may enter those

premises without a warrant for the purpose of taking any

action authorized by the Act to relieve that critical

distress. Third, if the circumstances give reasonable grounds

to believe that an animal is in distress (as defined in s.

1(2)), or that an offence under s. 24 has been committed (a

person responsible for an animal causing or permitting the

animal to be or to continue to be in distress) and there may

be evidence of that offence on the premises, a warrant may

issue under s. 13(2). Fourth, if entry on premises has been

properly made without a warrant pursuant to s. 14 or with a

warrant pursuant to s. 13, an authorized agent may, under s.

11, take any action considered necessary to relieve the

animal's distress, including taking custody of the animal, so

long as the person responsible for the animal does not

promptly take steps to relieve its distress or the person

responsible for the animal cannot be found immediately and

informed of the animal's distress.

[para104]     The statute defines the circumstances under

which there may be a warrantless search under s. 14 in effect

as those which are apparently "exigent" from the perspective

of the animals on the premises -- it requires a reasonable

belief that an animal is in a life-threatening condition on

those premises. Section 14 states the conditions for entry

onto premises; s. 11 states the conditions for the taking into

custody of animals. I am not persuaded that compliance with s.

11 is a precondition to a valid search under s. 14.

[para105]     The evidence amply supports the trial judge's

conclusion that Constable MacDonald on January 10 and

Constable Reed on January 11 and 15 believed on reasonable

grounds that there were animals in critical distress on the

premises. The searches were therefore authorized under s. 14

of the PCA Act. I find that the Crown has also demonstrated on

a balance of probabilities that the law itself is reasonable

and the manner in which the searches were carried out was

reasonable.

[para106]     Much of the Crown's case at trial was based on

evidence obtained during the searches - that is, the testimony

of the police, veterinarians and other witnesses regarding

their observations of the animals on January 10, 11 and 15,

and the photographs of the animals and premises taken on those

occasions. I have found those searches to be valid warrantless

searches, and the evidence obtained during those searches is

therefore admissible.

[para107]     I will, however, proceed to discuss the question

of the seizures. Once Constable Reed was on the premises, on

January 11, he formed the opinion that the person apparently

responsible for the animals, Bryan Tetz, had not taken and

would not be able to take the steps necessary to relieve their

distress. I see no basis for interfering with the trial

judge's conclusion based on the evidence that Mr. Tetz was

overwhelmed by the situation and that Mr. Tetz had not and

would not be able to relieve the animals' distress, despite

the presence of food on the property.

[para108]     I find therefore that the seizures were

justified under s. 11 of the PCA Act which allowed the animals

to be taken into custody. Evidence obtained as a result of the

seizures is therefore admissible.

[para109]     It is strictly speaking not necessary for me to

determine the other issues, but I will briefly address them.

[para110]     If, contrary to my conclusions, the searches and

seizures were not authorized under s. 14 and s. 11, they were

warrantless searches not authorized by statute.

[para111]     In R. v. Grant,  [1993] 3 S.C.R. 223,  84 C.C.C.

(3d) 173 the issue before the court was a warrantless search

pursuant to s. 10 of the Narcotic Control Act, R.S.C. 1985, c.

N-1. That section provided that a police officer may conduct a

warrantless search of a place other than a dwelling-house if

he has reasonable grounds to believe that the place contains a

narcotic by means of or in respect of which an offence

contrary to the Act has been committed. The court held that in

the context of a criminal investigation, for a search to be

reasonable there must ordinarily be prior authorization by an

independent and neutral arbiter and evidence on oath of the

grounds for issuance of the warrant. Because s. 10 did not

meet those requirements, the court held that it should be read

down so as to authorize warrantless searches only where

exigent circumstances made it impracticable for the police to

obtain a warrant. Sopinka J. wrote at p. 189:

     To sum up on this point, s. 10 may validly authorize a

     search or seizure without warrant in exigent

     circumstances which render it impracticable to obtain a

     warrant. Exigent circumstances will generally be held to

     exist if there is an imminent danger of the loss,

     removal, destruction or disappearance of the evidence if

     the search or seizure is delayed. While the fact that the

     evidence sought is believed to be present on a motor

     vehicle, water vessel, aircraft or other fast moving

     vehicle will often create exigent circumstances, no

     blanket exception exists for such conveyances.

[para112]     The Crown referred me to some cases illustrating

what will be considered to be exigent circumstances. In R. v.

Godoy,  [1999] 1 S.C.R. 311 the court held that the police were

justified in entering the accused's home against his wishes in

response to a 911 emergency call where the line was

disconnected before the caller spoke. The court stated that

the public interest in maintaining an effective emergency

response system is obvious and significant enough to merit

some intrusion on privacy interests, but only where the

intrusion is limited to the protection of life and safety. To

similar effect, see R. v. Sanderson (2003),  64 O.R. (3d) 257

(C.A.). In R. v. Jamieson (2002),  166 C.C.C. (3d) 501 (C.A.)

the court held that police entry into premises which they had

reasonable grounds to believe contained a clandestine

laboratory for the manufacture of drugs, posing significant

safety hazards, was legally justified in the circumstances and

did not constitute an unreasonable search within the meaning

of s. 8 of the Charter. In all of these cases there was

reference to common law and statutory duties of the police to

preserve the peace and prevent crimes. Entry of

dwelling-houses pursuant to those duties is to be

distinguished from entry simply in order to investigate a

crime or make an arrest: R. v. Feeney,  [1997] 2 S.C.R. 13.

[para113]     Were these searches valid warrantless searches

at common law? No authorities were cited to me in which a

court has found exigent circumstances relating to the safety

or well-being of animals rather than humans, but it may be

that the law would permit such a conclusion in an appropriate

case, by analogy with the principles set out in R. v. Grant

and R. v. Godoy.

[para114]     In any event, even if there was an infringement,

I note the deference that is to be shown to trial judges with

respect to s. 24(2) findings (Buhay, supra, at [paragraph] 46)

and I see no basis for interfering with the trial judge's

conclusion that the evidence should not be excluded under s.

24(2).

[para115]     Although the search warrants were invalid the

trial judge found no evidence of bad faith in the manner in

which they were obtained or executed.

[para116]     Mr. Wool argued that the trial judge erred in

that respect. He argued that there was evidence of bad faith

in that Ms. Caddy, on January 15, made comments indicating a

desire to "get" the Sudweeks and that she provided information

and photographs to the press which Mr. Wool considered were

unfair to his clients and provided further evidence of Ms.

Caddy's desire to see them pilloried for these alleged

offences. I am not persuaded that Ms. Caddy's comments can be

given any retrospective effect with respect to the entries on

the property on January 10 and 11, nor am I persuaded that her

approach toward the matter can be taken as evidence of the

attitude of the police. I do not find that the trial judge

erred in finding that there was no evidence of bad faith in

connection with the obtaining or execution of the warrants.

[para117]     I refer to the three sets of factors prescribed

in Collins at 284 and in R. v. Silveira,  [1995] 2 S.C.R. 297

at [paragraph] 145.

[para118]     First, the evidence was non-conscriptive and

there was no evidence that trial fairness was affected.

[para119]     Second, although as Mr. Wool argued, there was a

serious infringement in that the property was entered by

"unauthorized and unfriendly neighbours and police officers"

and the seizure details were dramatized in the media,

violating the privacy of the Sudweeks family, it is also the

case that the Charter breach was essentially technical in

nature. The police believed, in good faith, that they had

valid warrants for the entries onto the premises on January 11

and 15. On January 10 there had been a credible report of

animals in critical distress. The police proceeded

nevertheless to obtain warrants, which were found invalid for

technical reasons. There was a sense of urgency caused by the

concern that the horses' condition may be rapidly

deteriorating. There were no other investigative means

available to the police that did not involve entry onto the

property.

[para120]     Further, Mr. Sudweeks's expectation of privacy

regarding the driveway, the corral and the south pasture was

less than it would be regarding the dwelling or other

buildings and he was not on the property at the time. The

lodge was essentially a commercial enterprise that formed part

of the family business, and was not his home. The animals were

seized in order to relieve their distress, not in order to

provide evidence against the appellant.

[para121]     Third, with respect to whether excluding the

evidence would have a more serious impact on the repute of the

administration of justice than would admitting it, the charges

were serious ones within the context of the statute under

which they were brought. The evidence resulting from the

searches was crucial to the Crown's case. I do not consider

that the admission of the evidence in these circumstances

would bring the administration of justice into disrepute,

while its exclusion might well have that effect.

[para122]     For those reasons, I conclude that this ground

of appeal fails.

3.   Misapprehension of the Evidence or Unreasonable Findings

     of Credibility

     A.   The test to be applied

[para123]     In Harper v. The Queen,  [1982] 1 S.C.R. 2,  65

C.C.C. (2d) 193 at 210, the Supreme Court of Canada set out

the approach for appellate review of trial decisions for

misapprehension of evidence as follows:

     An appellate tribunal has neither the duty nor the right

     to reassess evidence at trial for the purpose of

     determining guilt or innocence. The duty of the appellate

     tribunal does, however, include a review of the record

     below in order to determine whether the trial Court has

     properly directed itself to all the evidence bearing on

     the relevant issues. Where the record, including the

     reasons for judgment, discloses a lack of appreciation of

     relevant evidence and more particularly the complete

     disregard of such evidence, then it falls upon the

     reviewing tribunal to intercede.

     B.   Finding that Mark Sudweeks was responsible for the

          animals

[para124]     Mr. Wool argued that the evidence raised a

reasonable doubt as to Mark Sudweeks being responsible for the

animals in that the defence witnesses' evidence showed that

the appellant's daughters Shayla and Trinity had purchased or

raised the animals, decided on feed requirements, and

participated in the Sudweeks family decision to hire Bryan

Tetz as caretaker.

[para125]     Mr. Hawkins for the Crown pointed to the

evidence of Bryan Tetz, who testified that Mark Sudweeks asked

him to caretake at the lodge and feed the horses. The Crown

also referred to the evidence of Shayla Welling, who testified

that she asked her father, on his trip to the lodge on

December 10, to put some of the round bales of hay from the

barn and salt blocks out for the horses and to make sure the

horses were looked after, and the evidence of Trinity Bennett,

who testified that her father made the arrangements with Mr.

Tetz about the lodge and wrote the cheque, and that she and

her sister had given Mr. Sudweeks instructions to give to

Bryan on how to take care of the horses.

[para126]     Being responsible for animals is not synonymous

with ownership of them. Responsibility may be shared. The two

daughters were considered to be owners of the animals and

shared in the decision-making about caretaking for the lodge

in winter and in providing instructions about the animals'

needs. It does not follow that Mr. Sudweeks, who was the

co-owner of the lodge and its property, the co-founder of the

business run on the lodge, and who was the only member of the

family to visit the lodge and have contact with the animals

between the end of the lodge season and the seizure of the

animals on January 11 and 15, was not responsible for them

within the meaning of the PCA Act. That Act provides in s.

1(3) that a person responsible for an animal includes one who

owns an animal, or who has custody or control of an animal.

The trial judge was entitled to find, as he did, that there

was no reasonable doubt that Mark Sudweeks fell within the

second aspect of that definition.

     C.   Misapprehension of the evidence in reaching the

          conclusion that the appellant's actions had led to

          the animals' condition

[para127]     Mr. Wool argued that the trial judge failed to

consider carefully the evidence supporting a conclusion that

the animals' condition was brought about during the period

when Bryan Tetz was at the property rather than their distress

pre-dating his arrival on January 2, 2001. It was open to the

trial judge to find, on the evidence of Bryan Tetz, that the

horses were already very thin and in poor condition as of

January 4 when he locked them in the corral, and on the

evidence of Mr. Tetz and Roma Richberg that there was no hay

bale out for them in the south pasture as of that date. It was

open to him to find, as he did, that, the horses' condition

indicated neglect for two to three months. My review of the

record does not persuade me that the trial judge failed to

consider the evidence in question.

     D.   Other findings of fact

[para128]     I have reviewed Mr. Wool's submissions regarding

the findings of fact set out by the trial judge at [paragraph]

34 of his reasons. I have concluded that the trial judge was

entitled to make those findings of fact on the evidence before

him. With particular reference to the issue regarding the

quality of hay, while it is true that the hay did not receive

laboratory testing, there was evidence from several witnesses

that the hay bale which Mr. Tetz put out for the horses did

not appear to be of good quality in that it showed little

green material and appeared to contain a good deal of mould.

Of course it is possible that that single bale was anomalous,

but the evidence provided some indication of the hay's quality

overall. It was open to the trial judge to reach the

conclusion that he did.

[para129]     The evidence at the trial amply supported the

trial judge's findings and his conclusion that the appellant,

who had taken the responsibility to see to the animals' care

for the winter, had failed to do so.

     E.   Unreasonable findings of credibility

          1.   Standard of appellate review

[para130]     In Burke v. The Queen,  [1996] 1 S.C.R. 474,  65

C.C.C. (2d) 193 at [paragraphs] 3-5, the Supreme Court of

Canada held that special concerns arise where the alleged

unreasonableness of the trial court's decision rests upon the

trial judge's assessment of credibility. In these cases, the

court of appeal must bear in mind the advantageous position of

a trial judge in assessing the credibility of witnesses and

the accused. However, the court of appeal retains the power to

reverse the trial court's verdict where the assessment of

credibility made at trial is not supported by the evidence.

          2.   Admissibility of Fresh evidence

[para131]     Mr. Wool applied for the court to consider fresh

evidence, in the form of a portion of the affidavit of Mark

Sudweeks and an affidavit of his daughter Darlene Tetz Thomas

(the sister of Bryan Tetz). Mr. Wool submits that the

evidence, if admitted, would go to the credibility of Bryan

Tetz in that it would show that he told his sister Darlene

that the two horses that were particularly weak when they were

examined on January 11 had been injured in an accident while

Mr. Tetz was attempting to operate farm equipment.

[para132]     This evidence does not fall within the

exceptional circumstances going to the integrity of the trial

process that pertain to the evidence bearing on the alleged

bias issues. However, given counsel's explanation for not

having called Ms. Tetz Thomas at trial, the fact that the

evidence bears on a potentially decisive issue in the trial,

that is, Mr. Tetz's conduct with the animals and his

credibility, the fact that the evidence is reasonably capable

of belief and that it may possibly have affected the result at

trial if accepted, I will admit the affidavit of Darlene Tetz

Thomas. She deposed as follows:

     5.   In the first weeks in January, 2000, I had a phone

          conversation with my brother, Bryan Tetz, who was

          hired as caretaker for the Sudweeks during the

          winter of 2000.

     6.   The conversation, as I recall, related to his

          mentioning to me that he'd had some sort of an

          accident with the horses. It is my recollection that

          there were 2 (two) horses that were injured in this

          accident. For some reason, my memory served me that

          the accident may have involved a bale of hay being

          dropped on the horses, but I am not 100% sure that

          this is the cause that injured the 2 horses.

     7.   As I recall, it was during this or a later

          conversation with my brother, Bryan Tetz, around the

          7th of January, 2000 that I talked to him about his

          concern over what to do with the dead horse. It was

          discussed about removing it from the vicinity of the

          corrals so as not to draw coyotes or wolves near the

          other horses.

[para133]     The relevant portions of Mr. Sudweeks's

affidavit simply repeat what Darlene Tetz Thomas told him

about her conversation with Bryan Tetz and add a statement of

Mr. Sudweeks's opinion about what must have caused the

accident. I do not find that evidence to be admissible.

[para134]     As for Ms. Tetz Thomas's affidavit, I note that

even if it was the case that two of the horses had been

injured by Mr. Tetz in an accident, the evidence shows that a

number of the other horses were also in very poor condition.

[para135]     I will refer below to the possible impact of Ms.

Tetz Thomas's evidence on the trial judge's finding as to Mr.

Tetz's credibility.

          3.   Bryan Tetz

[para136]     Mr. Wool submits that the learned trial judge's

assessment that Mr. Tetz was a credible witness cannot be

supported by any reasonable view of the evidence. Mr. Wool

points to the fact that Mr. Tetz admitted lying to the police

in his statement, admitted to a record of criminal

convictions, and submits that much of Mr. Tetz's testimony was

either contradicted or improbable.

[para137]     Mr. Hawkins submits that Bryan Tetz was

thoroughly cross-examined and that the learned trial judge was

entitled to believe him despite the factors pointed to by

counsel for the appellant. The evidence of Darlene Tetz Thomas

in her affidavit, if accepted, would provide another reason

for concern regarding Mr. Tetz's credibility. However, bearing

in mind that the trial judge, who is very experienced, heard

the witnesses for the Crown and the defence over a 12 day

trial, and that there was evidence from the veterinarians

confirming crucial aspects of Mr. Tetz's testimony regarding

the condition of the animals when he arrived, I am not

persuaded that this ground of appeal has been made out. The

trial judge's assessment of Mr. Tetz's credibility can be

supported on a reasonable view of the evidence.

          4.   Other witnesses

[para138]     Mr. Wool submits that the trial judge made

unreasonable findings of credibility with respect to Roma

Richburg, Arianne Brink and Elizabeth MacDonald, who admitted

to an unfriendly or indifferent relationship with Mark

Sudweeks. I find, however, that they were cross-examined about

their possible partiality and that it was open to the trial

judge to accept their evidence as he did.

          4.   Sentence

[para139]     At the sentencing of the appellant, the trial

judge stated:

     It is not the work of judges to reach for the harshest

     sentence they can "legally impose" in a given case so

     that persons who do not really have a full understanding

     of important issues will be pacified.

[para140]     The Crown suggested a jail sentence in the range

of 60 to 90 days. The trial judge referred to the fact that

Mr. Sudweeks, who was 51 at the time of the trial, had no

prior convictions and had done some good works to his

knowledge. The court referred to defence counsel's submission

that Mr. Sudweeks would be receiving punishment outside of the

courtroom as a result of the publicity the case had received,

and to financial difficulties for Mr. Sudweeks flowing from

the events of January 2001, including loss of business for the

lodge and the civil suit by the SPCA for compensation for

caring for the animals. He referred to Cheryl Sudweeks's

medical condition and the hardship she would experience if her

husband were incarcerated.

[para141]     Having stated that jail sentences tend to be

unusual for provincial offences, and reserved for the most

extreme cases, that a sentence could not be by way of

conditional or intermittent sentence, for practical reasons,

and that this was not a case for a suspended sentence, the

trial judge concluded that the sentence would be a fine of

$2,000 per count and a lifetime order under s. 24(3) of the

PCA Act.

[para142]     On this appeal, Mr. Wool submitted that the

sentence was excessive because the appellant's adult daughters

and their husbands were the owners and primary handlers of the

animals and Mr. Sudweeks had little if anything to do with

them. He also referred to the notoriety of the conviction and

to the fact that the civil judgment against Mr. Sudweeks by

the SPCA was for over $150,000.

[para143]     The appropriate test for appellate review of a

sentence is set out as follows in R. v. Shropshire,  [1995] 4

S.C.R. 227 at [paragraphs] 47 - 48:

     I would adopt the approach taken by the Nova Scotia Court

     of Appeal in the cases of R. v. Pepin (1990),  98 N.S.R.

     (2d) 238, and R. v. Muise (1994),  94 C.C.C. (3d) 119. In

     Pepin, at p. 251, it was held that:

          . . . in considering whether a sentence should be

          altered, the test is not whether we would have

          imposed a different sentence; we must determine if

          the sentencing judge applied wrong principles or

          [if] the sentence is clearly or manifestly

          excessive.

     Further, in Muise it was held at pp. 123-24 that:

          In considering the fitness of a sentence imposed by

          a trial judge, this court has consistently held that

          it will not interfere unless the sentence imposed is

          clearly excessive or inadequate....

[para144]     I am not persuaded that the trial judge applied

wrong principles in imposing this sentence or that it was

clearly or manifestly excessive. The trial judge did appear to

take into account the mitigating factors referred to by

counsel in submissions on sentencing, including the effect of

the publicity. I do not find that the sentence should be

varied.

CONCLUSION

[para145]     This appeal from conviction and sentence is

dismissed.

C.L. SMITH J.

QL UPDATE:  20040121

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