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BC Court of Appeal – Losing Control on Shoulder of Road is Prima Facie Negligence

Written by admin on . Posted in ICBC Liability (fault) Cases.

Reasons for judgement were released today by the BC Court of Appeal overturning a trial judgement as being ‘clearly wrong’ and finding that when a motorist loses control on the shoulder of a road a prima facie case of negligence is made out.
In today’s case (Gaebel v. Lipka) the Plaintiff was a passenger in a vehicle operated by the Defendant.  The Defendant drifted on to the shoulder of the road then “lost control, the vehicle fishtailed, crossed the road to the opposite side, travelled up onto an embankment, launched into the air and rolled over three times before landing.”.
The claim was dismissed at trial with a finding the Defendant was not negligent.  The Court of Appeal overturned this finding and provided the following reasons:

[29]         In my view driving onto the shoulder and losing control of the vehicle gives rise to a prima facie inference of negligence. On this evidence, the only reasonable inference that can be drawn was that Mr. Lipka drove on the shoulder either because of a lack of attention or because he approached the curve too fast, or both.

[30]         Once a prima facie case of negligence is proven, the onus shifts to the defendant to rebut the inference through the defence of explanation. A defence of explanation is an explanation of how the accident may have happened without the defendant’s negligence: Singleton v. Morris, 2010 BCCA 48 at para. 38.

[31]         In this case, Mr. Lipka has advanced no explanation as to how the accident may have occurred absent negligence on his part. The lack of an explanation distinguishes this case from cases such as Singleton and Nason, in which the trial judges found the prima facie case of negligence had been rebutted.

[32]         In the result, I find the respondents are wholly liable for Mr. Gaebel’s damages.

Motorcyclist Not At Fault for Crashing in "Agony of the Moment"

Written by admin on . Posted in ICBC Liability (fault) Cases.

The legal principle of “agony of collision” sometimes also called “agony of the moment” gives wide latitude to a Plaintiff who is confronted with a sudden and unexpected hazard on the roadway due to someone else’s negligence.  This principle was in action in reasons for judgement published today by the BC Supreme Court, Vancouver Registry.
In today’s case (Biggar v. Enns) the Plaintiff was operating a motorcycle and was riding in a staggered fashion behind the Defendant who was also operating a motorcycle.  The Defendant rounded a curve and was out of sight of the plaintiff.  During this time the Defendant took his eyes off the road and drifted into the oncoming lane of traffic.   He crossed back over the centre line and re-entered his intended lane of travel roughly perpendicular to the proper direction of travel.
At this moment the plaintiff rounded the corner, saw the Defendant in his lane and braked hard losing control of his bike and crashing.
The Defendant argued the Plaintiff was partly at fault as a more prudent motorist could have avoided the hazard he posed.  The Court disagreed and in doing so relied on the agony of collision principle finding the Defendant fully at fault.  Madam Justice Sharma provided the following reasons:

[50]         In my view, the phrase “agony of the moment” aptly describes the plaintiff’s situation. The plaintiff’s first reaction was to avoid colliding with the defendant, or an oncoming vehicle.  Therefore, it was a reasonable course of action for him to brake hard which caused his bike to fall and slide. The defendant agreed that in order to avoid hitting him, the plaintiff had to brake hard, and that made the plaintiff’s bike fall.

[51]         In my view the evidence is clear that the plaintiff was riding in a prudent and careful manner. There is no evidence that his speed was inappropriate for the conditions of the road or any other circumstance.

[52]          As noted earlier, I do not accept the defendant’s argument that once he lost sight of the defendant in front of him, the plaintiff should have slowed down more than he did. Also, I have already concluded the plaintiff was driving at an appropriate rate of speed, and that he had already slowed down.

[53]         Drivers are entitled to assume that other people will be driving in a prudent and safe manner. In Bern v. Jung, 2010 BCSC 730 the plaintiff lost control of a bicycle because of a sudden and unexpected presence of the defendant’s vehicle travelling in the wrong direction. The Court noted, at paras. 13-14, that the plaintiff was forced to act quickly and apply his brakes quickly and that he should not be found contributorily negligent for doing so.

[54]         In this case the plaintiff was entitled to assume that his friend had negotiated the curve safely; coming upon the defendant situated in front of him and perpendicular to his line of traffic was unexpected and sudden. The plaintiff cannot be blamed for doing what I find to be the only reasonable thing he could do to avoid a more serious accident: applying his brakes hard. I conclude it was the defendant’s string of actions (looking to the canyon, and trying to get back in position instead of waiting on the shoulder) that caused the accident.

[55]         For all those reasons, I find the defendant 100% liable for the accident.

Tell the BC Government "No!" To Stripping Rights Of Those Injured By Impaired and Distracted Drivers

Written by admin on . Posted in ICBC Minor Injury Caps, Uncategorized.

The Government is flirting with the idea of stripping your rights if you are injured by a distracted or impaired driver.
If you think this is a bad idea tell the government no.
If you want your voice to be heard here are some quick steps you can take to stand up for your rights.

  • Follow ROADBC, a coalition of British Columbians committed to protecting the rights of anyone injured on our roads
  • Contact your MLA.  Tell them “No to caps” and to keep British Columbians rights intact when injured by careless drivers
  • Join ROADBC’s Facebook Page and share this page with those that share your views

Here’s some background on the current situation.
ICBC is under financial pressure.  That has not always been the case.  In recent years the public insurer was so profitable that the past government scooped nearly $1.3 billion from the crown corporation.
Instead of putting this money back into ICBC or taking less drastic solutions the Government has publicly mulled stripping victim rights to save the insurer money.  When the government strips you of your rights it rarely gives them back.
This is done with talk of “caps”.  In short this means restricting the rights of those injured by careless drivers.  Caps are not new and are the creation of the insurance lobby as product to increase profits.  Caps exist in many jurisdictions across Canada and the US and are proven not to be effective in stabilizing insurance rates.  Insurers, even after successfully persuading governments to limit victim rights, look for ever increasing premiums.
The root cause of ICBC’s financial issues are collisions caused by distracted drivers.  Instead of targeting victims of crashes the focus is better placed on bad drivers.

  • Efforts to make our roads safer by reducing speeding, distracted and impaired driving
  • Higher risk drivers should fairly pay higher premiums reflective of the risk they cause.
  • Embracing safe driving technologies projected to cut down collision rates
  • Returning the $1.3 Billion of past profits taken from ICBC

If you want to say no to the Government stripping your rights to benefit bad drivers contact your MLA and tell them no to caps.

$135,000 Non-Pecuniary Damages for Chronic, Partly Disabling Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries caused in a motor vehicle collision.
In today’s case (Slater v. Gorden) the Plaintiff was involved in a 2014 rear-end collision.  The Defendant accepted fault.  The crash caused various soft tissue injuries which turned into a chronic problem.  The Plaintiff’s injuries disabled her from her general duties as a police officer and limited her to administrative work.  In assessing non-pecuniary damages at $135,000 Madam Justice Forth provided the following reasons:

[84]         As stated earlier, Ms. Slater suffered soft tissue injuries to her neck, left shoulder, lower back and left hip area. She continues to suffer from daily pain and stiffness primarily in her low back and left hip area.

[85]         Ms. Slater presented as someone who likes to be in control, and it appears that the ongoing symptoms and their lack of resolution have been particularly difficult for her to adjust to. She testified as to the impact that the accident has had on her life, in that she feels she has lost everything that she worked “super hard” to achieve: her career, her personal life, and her physical well-being.

[86]         With respect to her career, she has lost the ability to perform the type of police work that provided her the greatest enjoyment, that is, general duty police work out on the road. The accident has caused a significant change to Ms. Slater’s ability to undertake general police duties. She has not been medically cleared to work, and the medical opinion supports that Ms. Slater currently cannot return to general police duty. Further, it appears unlikely that she will be able to do so in the future. She has been able to remain an RCMP officer but on administrative duties only.

[87]         She is concerned that she will not have the same opportunity for advancement. She does not find her job in the Serious Crime Unit as enjoyable as her previous role, and she finds it more depressing and mentally draining as she has to deal with serious files for extended periods. Her current role mainly involves computer work in the office, which she finds far less stimulating than the general duty work.

[88]         Ms. Slater has become more withdrawn from her work colleagues, family and friends; her relationship with her common-law husband has ended; and she has not been able to participate in her children’s activities to the same extent. Her sleep is affected and she frequently wakes up at night.

…

[92]         I have reviewed the various cases provided, and in assessing the particular circumstances of Ms. Slater, I am of the view that the appropriate award for non-pecuniary damages is $135,000.

Defense Doctor Opinion Rejected After Finding He Acted As "Advocate"

Written by admin on . Posted in Uncategorized.

Adding to this site’s archived judgments of judicial criticism of expert witness ‘advocacy’, reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, rejecting the testimony of a defense hired expert.
In today’s case (Nagra v. Stapleton) the Plaintiff was involved in a 2014 collision that the Defendant admitted responsibility for.  Despite voicing some concerns about the Plaintiff’s credibility the Court accepted his medical evidence that he suffered injuries to his neck and low back as a result of the crash.
In the course of the trial the Defendants called a physician they hired who provided an opinion minimizing the collision’s connection to the injuries.  In rejecting this evidence Mr. Justice Cole found this expert “seemed to be more of an advocate” and provided the following critical comments:

[40]         Dr. Laidlow, called on behalf of the defendant, also confirms that movement of the neck noted during joint examination did seem to be consistent with what was observed spontaneously. Dr. Laidlow also found restrictive range of motion in the plaintiff’s neck but was of the view that his physical symptoms are at the same level or consistent with the plaintiff’s physical symptoms as a result of the 2012 motor vehicle accident.

[41]         I have difficulty with Dr. Laidlow’s evidence as he seemed to be more of an advocate, he was argumentative, and based his report, in part at least, on the fact that because there was no record of neck pain prior to his examination of the plaintiff, that the neck pain had been resolved to the state it was prior to the motor vehicle accident.

[42]         Dr. Laidlow’s opinion is based on the assumption that the neck pain that the plaintiff reported at the end of June 2013, continued on through 2013 and 2014, since the plaintiff was still experiencing neck pain when the June 2014 accident occurred. This assumption was made despite the fact that the plaintiff provided no information to suggest he was experiencing these pain symptoms in 2014 at the time of the accident. Dr. Laidlow admitted that he found no clinical records between 2014 and the date of the accident where the plaintiff reported ongoing neck pain or headaches. Dr. Laidlow reviewed the report of the plaintiff’s family doctor to indicate that there were no reports in his records of pain symptoms similar to those sustained in the accident. Instead, Dr. Laidlow relied on a report by Dr. Novak from June 16, where he indicated that the plaintiff was suffering from chronic neck pain “likely since 2012”.

[43]         I prefer the evidence of Drs. Watson and Waseem, however, the weight to be given to their evidence is diminished because I do not find the plaintiff to be a credible witness.

BC Supreme Court Discusses When Short Leave Applications Should Be Granted

Written by admin on . Posted in BCSC Civil Rule 8, Civil Procedure.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, providing a general overview of when a short-leave applications should be granted and criticizing the frequency with which such applications are brought by defence lawyers in personal injury lawsuits.
In today’s case (O’Callaghan v. Hengsbach) the plaintiff claimed physical and psychiatric injuries from a collision and sued for damages.  The Defendant had the plaintiff assessed by a neurologist.  After the time limit for delivery of expert reports the Defendant brought sought to have the Plaintiff examined by a psychiatrist and requested short leave to bring the application.  The Court dismissed the request and in doing so Master Baker provided the following reasons of the protocol that should be followed when seeking short leave –

[16]         The Masters in chambers, almost daily, are asked to give short leave under Rule 8-5(1). I have heard three of these applications in 1 ½ days of chambers; in one application, plaintiff’s counsel told the court that it was the third short leave application by the defence in that case since October 17. Interestingly, on a quick search I found no authorities to guide the court in granting or refusing applications for short leave. The rule itself offers little guidance, other than an application may be made in circumstances of “urgency”.

[17]         Such applications should be restricted to emergent circumstances and should not reward inefficiency, inattention to a particular case, or a lack of oversight. To abridge the time limits imposed by the Supreme Court Civil Rules is, presumably, to prejudice the other party who is, naturally, entitled to rely on timelines imposed by the Rules and to expect the opposing party to do likewise.

[18]         In the absence of guiding authorities, I suggest the following considerations, non-exclusive, should guide the parties and the court in considering short leave applications:

  1. a)       The application, of course, is to be made by Requisition, usually without affidavits, and may be made before a Registrar, Master, or Judge.
  2. b)       While undue formality in the application is discouraged, the application should be made in court, on the record (even if by video or telephone) and not online as an e-filed application.
  3. c)       Applicant’s counsel should notify the opposing counsel or party of an intention to apply for short leave so that counsel can appear. At the very least applicant’s counsel should canvass with his or her friend their availability on the proposed chambers date and whether he or she is opposed to the short leave.
  4. d)       The applicant should be prepared to give a full accounting of the facts, circumstances, context, and chronology leading to the application for short leave, all of which should establish that the applicant has been affected or surprised by events or developments not reasonably foreseeable.
  5. e)       If opposing counsel is not present should, as in the case of without notice applications, be prepared to give both favourable and unfavourable details.
  6. f)        If any important or pivotal fact or element is disputed by opposing counsel the applicant should be prepared to offer affidavit evidence on the point and, as always, counsel should not speak to his or her own affidavit if the matter is contested.
  7. g)       Busy schedules for the applicant counsel will usually not be sufficient reason for short leave; in that case counsel should arrange for a colleague or agent to speak to the chambers application on the usual notice required by the rules.

[19]         Ultimately, taking these points into consideration, the court will balance the prejudice both to the other party by potentially disrupting their schedules and trial preparations as well as service to other clients and to the applicant by virtue of reasonably unforeseen facts, circumstances, or developments that have inhibited the applicant’s preparation in the normal chronology that the rules contemplate and mandate.

[20]         Some areas of the law tend to offer more emergencies or crises than others; family law would likely fall in this category. Despite this, however, of late more applications for short leave seem to arise from personal injury/motor vehicle accident cases than in any other. And most of those applications for short leave seem to be on behalf of the defence, seeking short leave to bring an application for an IME close to trial. In that respect, this case is completely typical of that growing practise.

[21]         In many cases, the applicant can point to genuine circumstances giving rise to surprise or the advent of claims or circumstances the applicant could not have reasonably anticipated. This, and many similar applications, is not in that category. In too many cases, in my view, the defence, either assuming that settlement is likely or simply by applying triage or prioritizing in busy offices with large caseloads, have not given due attention and focus in a timely way to the possible claims and damages of the plaintiff. Lawyers are extremely busy professionals. They have many cases other than the one specifically before the court. Every master and judge knows that. Still, that cannot be permitted to affect the other party’s right to due process and adherence to the rules unless clearly justified; it is the court’s function to prevent that.

[22]         I have opined often, from the bench, about the template nature of pleadings in personal injury cases[3]. Often, it seems, the only change to pleadings are the names of the parties and the date and location of the accident. The damages claimed and particulars of alleged negligence are almost rote. Still, when a party specifies concussion, cognitive impairment, nightmares, sleep disruption, and driving related anxiety (which, to be fair, not all plaintiffs claim), it should be an obvious announcement to the defence that psychiatric enquiry is justified.

[23]         With the advent of standardized pleadings, an obvious problem for the defence arises: what really are the damages (if any) to this particular plaintiff?  It is my conclusion that very often the true issues in the claim are not established until expert medical (and sometimes economic) reports are delivered. And, yes, very often these reports are delivered at or very near the 84-day deadline. I do understand the defence dilemma in that, but even when faced with standardized pleadings, nothing prevents the defence from, as here, conducting the usual steps for disclosure and discovery. The chronology or timing of that is very much for the defence to decide and control.

[24]         In this particular case, Ms. Stewart is right; there were multiple indications to the defence that Ms. O’Callaghan was not only making a claim for psychiatric injuries, but that she was firm in her allegation and that in her view the damages were significant and long-lasting. Both the clinical records and her discovery evidence should have reinforced that assertion. Her denial of the facts contained in the defence notice to admit was a further obvious sign. But preceding all of those indicators was the NOCC which, despite my complaints of template pleadings in general, was clear in alleging specific psychiatric or psychological injuries and consequences of the accident.

Motorist Found Fully At Fault For Clipping Cyclist While Attempting to Pass

Written by admin on . Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, assessing fault for a collision involving a cyclist and a motorist.
In this week’s case (McGavin v. Talbot) the Plaintiff had merged onto the roadway where a bike lane ended.  Shortly thereafter the Defendant, proceeding in the same direction of travel, clipped the Plaintiff’s bike while a vehicle attempting to pass causing him to lose control and crash.  The motorist denied fault.  Mr. Justice Masuhara found fault rested fully with the motorist in these circumstances and provided the following reasons:

[20]         I find that Mr. McGavin had merged on the roadway at the end of the bike lane.  Mr. McGavin estimates he was riding at about 20-25 kmph which I accept.  I also find based on the testimony of Ms. Talbot, that Mr. McGavin was ahead of the Mr. Talbot’s pickup when the bike lane ended.  In my view, Mr. McGavin had the dominant position on the roadway beyond the end of the bike lane, and Mr. Talbot passed Mr. McGavin when there was not a safe distance between his pickup and Mr. McGavin to do so.  Mr. Talbot did not pass at a safe distance. 

[21]         I find the passing occurred before the X in the lane and before the start of guard rails for the Colquitz Bridge (Exhibit 1, Tab 4) and that the rear of the pickup driven by Mr. Talbot struck or clipped the handle bar of the bicycle ridden by the plaintiff causing the plaintiff to fall at about the start of the guard rails by the Colquitz Bridge. 

[22]         As a result, it is my determination that Mr. Talbot is entirely at fault for Mr. McGavin’s fall. 

[23]         My finding here is made on the bases that:

(a)            A cyclist has the same rights and duties of a driver of a vehicle pursuant to s. 183(1) of the Motor Vehicle Act, R.S.B.C. 1996, s. 318;

(b)            A driver of a vehicle overtaking another vehicle must cause its vehicle to pass to the left of the other vehicle at a safe distance and must not cause or permit the vehicle to return to the right side of the highway until safely clear of the overtaken vehicle pursuant to s. 157(1); and 

(c)             A driver of a vehicle must drive with due care and attention and must have reasonable consideration for other drivers pursuant to s. 144.

$100,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases.

Adding to this site’s archived damage assessments for thoracic outlet syndrome, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, assessing damages for such an injury.
In today’s case (Sharma v. MacDonald) the Plaintiff was involved in a 2013 collision that the Defendant accepted fault for.  The Plaintiff suffered a variety of injuries the most serious of which was thoracic outlet syndrome.  The symptoms lingered to trial and were expected to cause some ongoing limitations.  In assessing non-pecuniary damages at $100,000 Madam Justice Maisonville provided the following reasons:

[198]     …I find that the defendants are responsible for the plaintiff’s neck, back, and arm issues.  In my view, the plaintiff has established on a balance of probabilities that she suffers from thoracic outlet syndrome, as concluded by Dr. Hawkeswood, and that this injury was caused by the defendants’ negligence.

[199]     With respect to anxiety, I accept that the plaintiff suffers from anxiety in relation to driving…

[203]     Regarding non-pecuniary damages, I find that the plaintiff enjoyed a full life before the Accident and had no issues with respect to her neck and back.  Nor did she have a tingling feeling in her arm or numbness of her right arm.

[204]     I find that, as she testified, the plaintiff did not have to rest after having performed her regular activities. I also find that she did not experience headaches or low mood symptoms prior to the Accident.

[205]     I do find, however, that the plaintiff has been steadily improving.  I note that she enjoys playing basketball.  I note that she now works without significant limitations.  I note that she has gone back to a number of her pre-Accident activities.  She is not as socially isolated now that she has returned home from Edmonton.

[206]     I accept that the plaintiff still suffers from numbness and tingling feelings in her right arm, and from some neck and back pain.  However, the pain she has now is not like the pain immediately following the Accident.  The plaintiff is able to work to the extent she testified to.  While I appreciate that she must rest afterward, she is not disabled from working.

[217]     In all of the circumstances, I award the plaintiff $100,000 in non-pecuniary damages.

$95,000 Non-Pecuniary Assessment For Chronic Wrist and Thumb Injury

Written by admin on . Posted in ICBC Hand Injury Cases, ICBC Wrist Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic hand injury caused by a vehicle collision.
In today’s case (Burke v. Schwetje) the Plaintiff was involved in a 2010 collision caused by the Defendant.  The Defendant admitted fault.  The collision caused a hand and thumb injury resulting in permanent partial disability.   The Plaintiff did, however, have a number of pre-existing issues which likely would have led to some overlapping disability described as “a number of quiescent but present conditions in his hands and wrists that would likely have become increasingly symptomatic over time in any event of the Collision.”
In assessing non-pecuniary damages at $95,000 Madam Justice Russell provided the following reasons:

[117]     I am aware that the plaintiff has not been able to continue as a commercial fisherman since 2013 and before that, had some serious functional limitations on his abilities. His culture, his friendships and his livelihood have all changed substantially since the Collision and because of the Collision.

[118]     The plaintiff’s right wrist symptoms were aggravated significantly by the Collision and he has had continuing pain in his thumb and his wrist for which he takes OTC medications and may choose to have one or possibly two surgeries.

[119]     As a man of 67 at the time of the Collision, his career has been shortened by the aggravation of his previously only mildly symptomatic arthritis.

…

[122]     Given the agreement of the defendants with the quantum of non-pecuniary damages which the plaintiff seeks and my finding that that amount is appropriate in the circumstances, I award him $95,000.

[123]     The award of damages under this head includes an amount for loss of housekeeping or gardening capacity

No – You Can't Call Evidence Suggesting Your Client is a Criminal Without Instructions

Written by admin on . Posted in Uncategorized.

Reasons for judgement were recently published by the BC Supreme Court, New Westminster Registry, with critical comments canvassing the conflict of interest that can arise when a defense lawyer is taking instructions from a Defendant’s insurer.
In the recent case (Kirilenko v. Bowie) the Plaintiff was involved in a collision and sued for damages.  The plaintiff alleged the collision caused a severe and disabling traumatic brain injury.
Mid trial the Defendant’s lawyer brought an application seeking permission for a police officer to testify who would provide evidence of both the Plaintiff’s and Defendant’s involvement in what the court described as “the drug culture“.
The Defendant’s lawyer argued this evidence would be important in helping the Court’s assessment of damages.
In refusing this evidence in the court noted that counsel would not provide “a straight answer” about whether they had instructions from the Defendant directly to call such potentially damaging evidence (as opposed to the Defendant’s insurer).
In refusing to allow the evidence in Mr. Justice Saunders provided the following reasons:

[11]         If the defendants were to tender evidence in this proceeding of the plaintiff having been trafficking in drugs along with the defendant Ms. Bowie, I would, in the first instance, have expected that evidence to come from Ms. Bowie. Ms. Bowie’s name is not on the list of defence witnesses. The natural inference that arises from the defence’s decision not to call Ms. Bowie is an adverse one: that she does not support Cst. Tumbas’ evidence. Had Ms. Bowie testified to that effect, counsel could not call evidence to the contrary, as that would impeach their own client. I do not see how the defence should be entitled to avoid that result, simply through the expediency of not calling Ms. Bowie’s testimony. A party may not do indirectly that which it is prohibited from doing directly.

[12]         This is not just an evidentiary issue. It is an ethical one as well.

[13]         In the eyes of the court, it is Ms. Bowie, and not her insurer, who is defence counsel’s client. There have been references made to insurance in this case – for example, references by the quantum experts who have been called as to ICBC’s involvement in approving certain expenses in regards to Mr. Kirilenko’s rehabilitation. Ms. Bowie’s liability insurer, if it is ICBC, would of course have the exclusive right to conduct the action and instruct counsel under s. 74.1 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83. However, even if that were the case, I would hesitate to allow defence counsel, on the insurer’s instructions, to tender evidence implicating a defendant insured in criminal conduct without that defendant having been given explicit notice and the opportunity to consult counsel as to her rights, and possibly to be heard on that point.

[14]         To put the matter more simply, in attempting to advance evidence possibly detrimental to the interests of Ms. Bowie, defence counsel would appear to be potentially in a conflict, acting in favour of one client to the detriment of another. I asked counsel directly whether they had instructions from Ms. Bowie that would permit them to tender evidence implicating her in criminal activity. I did not get a straight answer. The existence of any such conflict would have to be ruled out or resolved before this evidence could be admitted, or before Cst. Tumbas could be called.

…

[36]         I find nothing in the circumstances of this case justifies an order that Cst. Tumbas be allowed to testify and he will not be called as a witness.