A Campbell River man who burned down his house on the Wei Wai Kum First Nation Reserve can appeal his sentence but not his conviction, a B.C. Court of Appeal justice ruled Friday, Feb. 16.
Eddy Walter Cliffe was sentenced to 21 months in jail and 18 months’ probation after he pleaded guilty to setting fire to a house he owned on the Wei Wai Kum First Nation Reserve on June 25, 2019. Cliffe had obtained a mortgage on the house secured by the First Nation but he had defaulted on that mortgage and the Nation paid it out, Justice John Hunter says in a written decision.
The First Nation made efforts to settle the debt but, ultimately, served Cliffe with an eviction notice. Negotiations to resolve the issue failed and the First Nation proceeded with the eviction. On June 25, 2019, Cliffe poured gas over the house and “handed a match to his mother who set the fire,” Justice Hunter says.
Cliffe pleaded guilty to arson on Jan. 13, 2020 and was sentenced Oct. 1, 2021. Cliffe appealed the court’s conviction and sentence because, as a result of his arson, the First Nation also banished him from the Reserve for a period of six months. Cliffe contends that the conviction by the provincial court and the banishment by his First Nation constitutes a “double jeopardy” that is contrary to s. 11(h) of the Charter of Rights and Freedoms.
Cliffe argues that both the banishment and the arson charge arose from the same conduct and, accordingly, once he was punished by way of banishment, he cannot be punished again through the criminal law.
The justice questions the legal basis of the banishment. Justice Hunter says in his written decision that he has “grave doubts” about the merits of the double jeopardy defence based on a banishment order because it is unclear whether the banishment is a criminal proceeding or the punishment has true penal consequences.
Meanwhile, with regards to the sentencing appeal, Cliffe has more of a leg to stand on. Justice Hunter says the sentencing judge was aware of the banishment by the First Nation when he imposed sentence but “it is arguable that he failed to take the banishment adequately into account when fashioning Mr. Cliffe’s sentence.”
Technically, Justice Hunter is ruling on whether to allow the appointment of counsel to assist Cliffe in his appeals, pursuant to s. 684 of the Criminal Code.
Justice Hunter concludes that it is not in the interests of justice to appoint counsel to assist Cliffe in appealing his conviction and that application is dismissed but it is in the interests of justice to allow the appointment of counsel to assist Cliffe with appealing his sentence and so that application is granted.