COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Dhaliwal,

2006
          BCCA 43

Date: 20060123

Docket: CA033587

Between:

Regina

Respondent

And

Jagpal
    Singh Dhaliwal

Appellant

Before:

The
          Honourable Madam Justice Saunders

(In
          Chambers)

Oral Reasons for Judgment

D.
          Markovitz

Counsel for the Appellant

P.
          Eccles

Counsel for the (Crown) Respondent

Place
          and Date:

Vancouver, British Columbia

23 January 2006

[1]

SAUNDERS, J.A.
:  Mr. Dhaliwal applies for judicial interim
    release pursuant to s. 679 of the
Criminal Code
pending his
    appeal from conviction and sentence.  On 25 June 2005 Mr. Justice Romilly,
    sitting alone, convicted Mr. Dhaliwal of importing cocaine and possession
    of cocaine for the purpose of trafficking.  On 7 November 2005 he entered
    a conditional stay on the possession count and sentenced Mr. Dhaliwal to incarceration
    for a term of six years on the importation count.

[2]

Section 679(3) of the
Criminal Code
establishes the criteria
    an applicant must meet to attain release pending the determination of his
    appeal:

. . .  the judge of the court of appeal may
    order that the appellant be released pending the determination of his appeal
    if the appellant establishes that

(
a
) the appeal or application for
    leave to appeal is not frivolous;

(
b
) he will surrender himself into
    custody in accordance with the terms of the order; and

(
c
)
    his detention is not necessary in the public interest.

[3]

Mr. Justice Romilly concisely set out the circumstances of the offence
    in his reasons on sentencing:

[4]
     The accused is the owner operator of a transport truck and at the material
    time he was operating under an agreement to haul goods to and from the United
    States of America on September 20, 2003, at the Canada-U.S. border, Canada
    Customs officials found six kilograms of cocaine secreted in a hidden compartment
    in the cab of his truck.  The cocaine was between 82% and 91% pure and was
    valued at between $192,000 and $210,000.

[4]

In his reasons for conviction there is more detail:

[3]
     At all material times, the accused was the owner/operator of a transport
    truck.  He entered into an agreement with Spady Transport Ltd (Spady) to
    haul goods to and from the Unites States of America.  Under the agreement
    with Spady, the truck was registered in the name of Spady for the sole purpose
    of obtaining the benefit of their fleet insurance.  The agreement also stated
    that the accused was not allowed to carry any passengers unless they had a
    signed waiver.

[4]
     On September 20, 2003, the accused passed through the Pacific Highway Border
    Truck crossing into the United States of America.  At the border crossing
    his truck was stopped by U.S Customs and searched.  The search was conducted
    by Inspector Schmidt, an officer with U.S. Customs.  Inspector Schmidt testified
    that when checking the cab area of the accuseds truck he noticed that the
    bunk did not lift up as it normally does in the hundreds of trucks that he
    examines each day.  He noticed three hidden compartments covered by a piece
    of sheet metal with some loose screws around the sheet metal door.  He testified
    that this was certainly not something that was constructed by the manufacturer
    of the truck, Kenworth.  The officer also noted duct tape in the area of the
    sheet metal door.  He was of the view that it was the type of duct tape that
    is commonly available in hardware stores.  Officer Schmidt took a photograph
    of the area at the request of the R.C.M.P.

[5]
     On September 27, 2003, Inspector Schmidt again noticed the truck come through
    the border crossing.  During his inspection of the truck on that occasion
    he took the opportunity to again look at the area of the cab of the truck
    where he had noticed the three hidden compartments on September 20, 2003.
    On this occasion he noticed that the screws which held the sheet metal door
    in place were no longer loose and instead they were in place holding the sheet
    metal door closed.

[6]
     Inspector Schmidt testified that on neither of these occasions did he mention
    anything about his suspicions to the accused driver of the truck.  He did,
    however, enter a report of his suspicions onto the computer system and on
    October 1, 2003, he advised Canadian Customs of his observations.

[7]
     As a result of the information they received from Inspector Schmidt, Canadian
    Customs put the truck on a watch for list.  At approximately 2:25 a.m. on
    October 10, 2003, the truck was searched by Canadian Customs on its return
    trip from the United States of America.  In a search of the cab area of the
    truck the Customs officials found approximately six kilograms of cocaine in
    a Nike bag in the secret compartment of the cab area that was previously observed
    by Inspector Schmidt.  The sheet metal door that covered this secret compartment
    was screwed into place.  The cocaine was between 82% to 91% pure and was valued
    at between $192,000.00 and $210,000.00.  No identifiable fingerprints were
    found on the seized cocaine.  There was no access to the seized drugs from
    the outside of the truck.

[8]
     In the cab of the truck the Customs officers also found a cordless drill
    together with some drill bits.

[5]

The case, thus, was, on the issue of knowledge, purely circumstantial.

[6]

Mr. Justice Romilly set out the relevant principles as to the burden
    of proving knowledge and regarding proof through use of circumstantial evidence.
    He found there is an irresistible inference that Mr. Dhaliwal had the requisite
    knowledge and control.  He then referred at some length to
R. v. Jenner
,
    [2005] MBCA 44, discussing the circumstances and conclusions in that case
    and ending with:

[28]
     Similarly, in the case at bar no reasonable explanation was offered to rebut
    the irresistible inference that the accused had knowledge and control of the
    cocaine found in his truck. . . .

He found no rational inference consistent with innocence.

[7]

On behalf of Mr. Dhaliwal it is said that this treatment of the circumstantial
    evidence and the conclusion that there was an irresistible inference of knowledge
    is an error that is likely to succeed on a conviction appeal.  On behalf of
    the Crown it is said that the circumstantial evidence easily supported the
    conviction, and that the appeal is without merit.

[8]

I am satisfied that the ground of appeal meets the relatively low threshold
    of s. 679(3)(a), that is, I am satisfied that the appeal is not frivolous.

[9]

The second criteria is the issue of compliance with the surrender requirement.
    Mr. Dhaliwal is 40 years old.  He has resided in Canada since 1986 when he
    and his parents came to Canada under sponsorship of his brother.  He is married
    and has two children aged 9 and 12.  He has no previous criminal record, and
    he has complied with all reporting and surrender requirements of previous
    court orders.  Although he now stands convicted of the offences for which
    he was charged, and in this the circumstances before me differ from those
    before the trial court making the previous orders, the circumstances persuade
    me that Mr. Dhaliwal has met the burden under s. 679(b).

[10]

This leaves for consideration s. 679(3)(c), consideration of the public
    interest.  The objectives of s. 679(3)(c) were discussed in this Courts decision
    in
R. v. Mapara
, 2001 BCCA 508, which in turn applied
R.
    v. Farinaccii
, (1993) 86 C.C.C. (3d) 32 Ont. C.A. and
R. v.
    Baltovich
, 470 O.R. (3d) 761.  Madam Justice Ryan, in
Mapara
,
    recognized that the competing principles are enforceability and reviewability.
    She cited with approval the discussion of public interest from
Farinacci
and Mr. Justice Rosenbergs  statement in
Baltovich
that the matter that is most influential on the question of the public interest
    is the strength of the grounds of appeal, and said:

[35]      In
Demyen
when Culliton C.J.S. speaks of the necessity for the
    appellant to show "something more" than the requirements of paragraphs
    (a) and (b) of s. 679(3) to establish that his detention is not necessary
    in the public interest, he must be referring to the necessity for the appellant
    to show that the principle of enforceability is outweighed by that of reviewability.
    In my view the strength of the interest of reviewability must primarily be
    measured by examining the likelihood of the success of the appeal.  Very strong
    grounds will tip the scale in favour of reviewability.

[36]      Depending
    on the demonstrated strength of the grounds, other factors, such as the circumstances
    of the offence - for example, pre-meditated violence  and, inordinate delay
    will be matters to weigh in the balance.  The essential question, however,
    will be whether the appellant has been able to establish that enforceability
    is outweighed by reviewability.

[11]

In this case I have only the reasons for judgment of the learned trial
    judge from which to assess as best I can, the strength of the appeal.  Knowing
    only that, and accompanied by Mr. Markovitzs explanation of the ground of
    appeal, I cannot say that it reaches at the strength referred to by Madam
    Justice Ryan as tipping the scale in favour of reviewability.

[12]

The conviction in this case was of importing cocaine through use of
    Mr. Dhaliwals commercial vehicle that crossed the border as part of the normal
    trade between Canada and the United States of America.  The substance carried
    into Canada is illicit and does untold damage.  Importation is a vital link
    in the chain from production to retail trafficking, and necessarily engages
    others in criminal activity at both ends of the trip.  That is, the offence
    is part of a criminal enterprise, unlike some of the one of cases I was
    referred to, such as
R. v. OGrady
, 1999 BCCA 711.  In this
    case, and given my view of the merits of the appeal, and notwithstanding Mr.
    Markovitzs strong submissions on behalf of Mr. DhaliwalI as to his personal
    circumstances, I am of the view that public confidence in the administration
    of justice does not favour the application.  That is, I am not satisfied that
    Mr. Dhaliwals detetention is not necessary in the public interest.

[13]

The trial of this case was not long.  The issue described is discreet.
    Hearing dates this spring are available.  The principle of reviewability and
    the interests of the public, in my view, will be best served by this case
    proceeding with dispatch.  To the extent that my comments may assist in having
    this appeal brought before a panel of this Court as soon as reasonably practicable,
    I would ask the registry to accommodate Mr. Markovitz, on behalf of Mr. Dhaliwal,
    with an early hearing date when the appeal is ripe for that step.

[14]

The application is dismissed.

The
    Honourable Madam Justice Saunders

Correction:
10 February 2006

In reasons for judgment dated January 23,
    2006
, the following change
    should be noted:

The list of Counsel has been corrected and
    should read as follows:

D.
          Markovitz

Counsel for the Appellant

P.
          Eccles

Counsel for the (Crown) Respondent


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Mollazadeh,

2006
          BCCA 35

Date: 20060123

Docket: CA032246

Between:

Regina

Respondent

And

Shahram
    Mollazadeh

Appellant

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Ryan

The
          Honourable Mr. Justice Mackenzie

Oral Reasons for Judgment

T.W.
          Rodocker

Counsel for the Appellant

W.P.
          Riley

Counsel for the Respondent

Place
          and Date:

Vancouver, British Columbia

23 January 2006

[1]

RYAN, J.A.
:  The appellant was convicted on 10 June
    2004, in the Supreme Court of one count of possession of a controlled drug,
    "crack" cocaine, for the purpose of trafficking.

[2]

The drugs were found in the appellant's car after the appellant had
    been stopped by the police and his vehicle searched.

[3]

The appellant says that the drugs found by the police ought not to
    have been admitted into evidence because they were found by the police as
    a result of an arbitrary detention.

[4]

The evidence at trial revealed that the appellant and two of his friends
    got into the appellant's black four-door Jetta in the 900 block of Hornby
    Street at about 1:55 a.m. on 21 October 2002.  They were returning
    to West Vancouver.  At almost the same time, Constable Berry in a police van
    nearby received a priority call over the police radio that there had been
    a shooting at the Urban Well nightclub near Hornby and Nelson Streets.

[5]

The following paragraphs from the reasons of the trial judge on the
voir dire
tell the rest of the story:

[4]        As a result of hearing the priority one call, Constable Barry
    offered to take up a containment position.  He drove to the area and parked
    on Hornby Street just south of Nelson.  When in that position, Constable Barry
    heard on the police radio that a 911 caller had reported that persons
    involved in the shooting were leaving the area in a black four-door vehicle
    and that the vehicle was going through the intersection of Hornby and Nelson;
    it was travelling north on Hornby Street.  The 911 caller reported that
    the vehicle leaving the scene was at that moment passing a police vehicle.

[5]        As Constable Barry heard that broadcast, he observed a black
    four-door Volkswagen Jetta pass him travelling north on Hornby Street at Nelson
    Street.  He observed that there was a driver and a passenger and noticed a
    jacket on the hook in the rear of the Jetta.  Constable Barry estimated that
    his observation of the Jetta was simultaneous with his hearing the 911 caller
    report on the police radio.

[6]        Constable Barry testified in chief that the Jetta appeared
    to be accelerating and was passing other vehicles.  In cross-examination,
    he agreed that he had made no note of the speed of the vehicle, but nevertheless
    confirmed that the Jetta seemed to be accelerating, although he could not
    estimate the speed with certainty.

[7]        Constable Barry followed the Jetta as it proceeded north on
    Hornby and then turned left onto Georgia Street, heading west.  He broadcasted
    his direction of travel and asked for assistance.  When the Jetta was about
    to enter the Stanley Park causeway, Constable Barry activated the police wagon
    lights and siren and pulled over the Jetta in the 1800 block of West
    Georgia Street.  He testified that he waited until then because he was waiting
    for assistance, since he believed the occupants of the Jetta had potentially
    been involved in a shooting.

. . .

[11]      Constable Harty heard the police radio report of a shooting
    outside of the Urban Well downtown at about 1:55 a.m.  He and his partner,
    Constable Alonso, drove toward the shooting site.  En route, he heard that
    the police had confirmed that a male had been shot in the leg.  He also heard
    at about 2:03 a.m. that a witness had reported that a four-door sedan
    driving north on Hornby Street was involved in the shooting and was passing
    the nose of a parked police vehicle.  He then heard Constable Barry broadcast
    that it was his police vehicle that the sedan had passed.

[12]      Constables Harty and Alonso followed the direction of Constable
    Barry's travel broadcast.  Constable Harty recalled arriving at Georgia and
    Denman at about the time that Constable Barry was pulling over the Jetta.

[13]      Constable Harty testified that the Jettas licence plate was
    broadcast before he left the police vehicle.  He then got out of the passenger
    side, drew his gun in the "low ready" position pointed at the ground,
    and called out, Police.  Show your hands".

[14]      Constable Harty approached the passenger side of the Jetta and
    motioned to the man in the front passenger seat to roll down the window.
    He advised the passenger that there had been a shooting at the Urban Well,
    that their vehicle was reported to be involved, and that he believed there
    may be firearms in the vehicle.  The passenger got out of the Jetta and Constable
    Harty motioned him to walk toward other officers who had arrived at the scene.

[6]

The appellant, his passengers and the vehicle were searched shortly
    thereafter for weapons.

[7]

The appellant accepts, on the authority of
Mann v. The Queen
(2004), 185 C.C.C. (3d) 308 (S.C.C.), that the police have the power to make
    an investigative stop where reasonable grounds to suspect are present.  He
    also accepts that where the police have properly made an investigative stop
    they may conduct a search for the purpose of the safety of the police or others
    if the search is reasonably necessary.  The appellant says, however, that
    sufficient grounds did not exist in this case to detain the appellant.

[8]

The appellant points to other evidence that apparently was also provided
    by the dispatcher over the course of his or her transmissions.  The other
    information was that a black male was suspected to be the shooter; that a
    Corvette was a vehicle of interest; and that the caller said that six males
    ran into a dark four-door sedan.  He says that these other reports weaken
    the reliability of the evidence relied upon by Constable Barry and the other
    police officers.

[9]

I cannot agree.  The trial judge had that information before her.
    She made the following observations:

[44]      As I have noted, the accused contends that the police acted
    on wholly insufficient information when they detained him, which the accused
    says cannot meet the test of articulable cause.  I disagree.

. . .

[47]      In addition to knowledge of a confirmed shooting, the police
    were informed that a dark four-door sedan was observed leaving the scene of
    the shooting and was travelling north on Hornby Street.  Seconds later the
    police were informed that a suspect vehicle was passing a police vehicle at
    the intersection of Nelson and Hornby.  Constable Barry simultaneously saw
    a dark four-door sedan pass his police wagon as he was parked on Hornby at
    Nelson.

[48]      The accused argues that the police ignored information that,
    if considered, would have alerted them to the possibility that the Jetta was
    not reasonably involved in the shooting.  That information included the police
    radio broadcast concerning a black Corvette, six male occupants in a four-door
    sedan, and a black male suspect in a red t-shirt.

[49]      However, Constable Barry could not recall hearing that information.
    He testified that, once he saw the dark four-door sedan pass him on Hornby
    Street and heard that the suspect vehicle was travelling north on Hornby and
    was passing a police vehicle at that location, he was then focussed on the
    task of following that vehicle.

[50]      The police were responding to a high priority call, which calls
    for immediate response.  They had a duty to check all leads.  They did not
    have the luxury of waiting and synthesizing all the information available
    to them.

[51]      When the police pulled over the Jetta, they knew that a shooting
    had recently occurred at the Urban Well.  They had a description of a dark
    four-door sedan.  They were told it was travelling north on Hornby Street.
    The sedan was reported to be passing a police vehicle at the very location
    Constable Barry was posted in his police wagon.  There was a reasonable concern
    that the persons fleeing the scene of a shooting would have firearms in their
    possession.

[52]      In my respectful view, that information constitutes, in the
    urgent and heightened circumstances of this case, a combination of objectively
    discernible facts that justified the police detaining the occupants of the
    Jetta.

[10]

I am unable to say that the trial judge erred in law or in fact in
    her analysis of the rights of the appellant. I would dismiss the appeal.

[11]

ROWLES, J.A.
:  I agree.

[12]

MACKENZIE, J.A.
:  I agree.

[13]

ROWLES, J.A.
:  The appeal is dismissed.  Thank you, counsel.

The Honourable Madam Justice Ryan


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Patterson,

2006
          BCCA 24

Date: 20060123

Docket: CA032118

Between:

Regina

Respondent

And

Darrin
    John Patterson

Appellant

Before:

The
          Honourable Mr. Justice Donald

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Levine

W.P.
          Riley

Counsel for the Appellant

J.M.P.
          Firestone

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

December 14, 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

January 23, 2006

Written
          Reasons by
:

The
          Honourable Madam Justice Levine

Concurred
          in by:

The
          Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

Reasons for Judgment of the Honourable Madam Justice
    Levine:

Introduction

[1]

Darrin John Patterson appeals from his conviction by a Supreme Court
    justice of possession of cocaine for the purpose of trafficking, contrary
    to s. 5(2) of the
Controlled Drugs and Substances Act
, S.C.
    1996, c. 19.  The appellants arguments at trial and on appeal are that his
    rights under the
Charter of Rights and Freedoms
were violated
    in three distinct circumstances: on his arrest, while he was held in custody,
    and during his dealings with police.

[2]

The appellants primary ground of appeal is that the trial judge erred
    in failing to find that his right to consult counsel without delay was violated
    when he was held incommunicado at the police detachment while police officers
    executed a search warrant at his home, and the evidence obtained from the
    search should have been excluded. I agree that his right to counsel was violated,
    but in all of the circumstances I would not exclude the evidence obtained
    from the search. I would not accede to any of the other grounds of appeal,
    with the result that I would dismiss the appeal.

[3]

The trial judges reasons for judgment may be found at 2004 BCSC 355.

[4]

I will deal in turn with the appellants arrest, custody, and dealings
    with police.

[5]

The appellant was arrested by Constable Richmond at approximately 1
    p.m. on September 13, 2002. Constable Richmond had provided back-up to another
    police officer who served a three-month driving prohibition under s. 95 of
    the
Motor Vehicle Act
, R.S.B.C. 1996, c. 318, on the appellant
    in August 2002, about one month before the arrest. At the time the driving
    prohibition was served, the appellant was aggressive and he and his girlfriend
    were taken into custody.

[6]

The day of the arrest, Constable Richmond was driving a marked police
    vehicle to a meeting. He observed the appellant driving a black Cadillac,
    a vehicle the appellant was known to drive regularly. Constable Richmond pulled
    the appellant over. As Constable Richmond pulled in behind the appellants
    vehicle, he noticed the appellant and his passenger, Paul Flynn, quickly change
    seats, so that the appellant was in the passenger seat and Mr. Flynn was in
    the drivers seat.

[7]

Constable Richmond ordered the appellant out of the vehicle, by name.
    The appellant complied. Constable Richmond did a pat-down search of the appellant,
    finding 13.8 grams of white powder, later found to be cocaine, in a baggie
    in the side front pocket of his pants. Constable Richmond arrested the appellant
    for possession of cocaine for the purpose of trafficking.

[8]

On a search of the vehicle, Constable Richmond found an expandable
    baton in the centre console. He then arrested all three occupants for possession
    of a prohibited weapon.

[9]

Constable Richmond testified that he informed the appellant and the
    two passengers of their
Charter
rights and warnings. The appellant
    testified that he received the warnings and requested to speak to his lawyer.
    The three men were taken to the police detachment.

The Alleged
Charter
Breach

[10]

The appellant asserted at trial that the police did not have reasonable
    and probable grounds to arrest him and the search of his person was unreasonable,
    infringing his rights under s. 8 of the
Charter
. He sought to
    have the cocaine excluded as evidence.

The Decision of the Trial Judge

[11]

The trial judge found Constable Richmond to be a credible witness.
    She found the appellant not to be credible and did not accept his evidence.
    The trial judge found that Constable Richmond had reasonable and probable
    grounds to arrest the appellant for a prohibited driving offence under s.
    79 of the
Motor Vehicle Act
, which authorizes a police officer
    to arrest without warrant and detain a person who the officer has reasonable
    and probable grounds to believe was driving in contravention of s. 95 of the
Act
. She summarized the circumstances leading to the arrest
    as follows (at para. 16):

This accused was known to Constable Richmond.  Constable
    Richmond had been present one month previously in August, 2002 when Mr. Patterson
    had been served with the notice.  Constable Richmond saw the accused driving
    on September 13th.  He also saw Mr. Patterson's actions in switching seats
    so quickly before Constable Richmond had time to park his vehicle or get out
    of his vehicle.  Constable Richmond also had past knowledge of this accused
    and his temperament, and there is also the fact that Constable Richmond was
    alone at this time in his vehicle and in the vehicle in front of him, the
    Cadillac, there were three young men approximately 20 years of age.  The cocaine
    was found, a considerable quantity, on the pat down search.  I find the search
    was not intrusive.  It was a pat down as I have said.  At that point, it became
    an arrest for possession of cocaine for the purpose of trafficking.

[12]

Having found that the search of the appellant followed a lawful arrest,
    the trial judge admitted the cocaine as evidence.

Grounds of Appeal

[13]

The appellants grounds of appeal in connection with the arrest are
    accurately summarized by the Crown:

(a)        Whether the trial judge erred in
    failing to consider relevant evidence or in failing to provide sufficient
    reasons for accepting the evidence of Constable Richmond with respect to the
    circumstances of the appellants arrest.

(b)        Whether the trial judge erred in holding that there was no
    violation of the appellants rights under s. 8 of the
Charter
in
    connection with the roadside search incidental to the arrest.

[14]

The appellant points to certain inconsistencies in the evidence and
    maintains that the trial judge did not adequately deal with these in her assessment
    of the credibility of the witnesses or her analysis of the issues.

[15]

In my opinion, there is no basis for the appellants complaints about
    the manner in which the trial judge dealt with the evidence of the circumstances
    of his arrest. There was no real difference between the testimony of Constable
    Richmond and the appellant regarding the arrest in any event. The appellant
    argues, however, that inconsistencies between Constable Richmonds evidence
    and that of other witnesses should have led the trial judge to a different
    conclusion regarding Constable Richmonds credibility.

[16]

The trial judges reasons for judgment contain a thorough analysis
    of the material evidence and the reasons for accepting that of Constable Richmond
    and rejecting that of the appellant. Where there were inconsistencies between
    the evidence of Constable Richmond and other witnesses, they were not material
    to the issue: whether Constable Richmond had reasonable and probable grounds
    to arrest the appellant for a driving prohibition and search him incidental
    to that arrest. As set out by the trial judge in the paragraph quoted above,
    the evidence provided obvious grounds for the appellants arrest: Constable
    Richmond had been involved in the personal service of a three-month driving
    prohibition on the appellant one month before; Constable Richmond observed
    the appellant driving a vehicle that he was known to regularly drive; Constable
    Richmond observed the appellant quickly moving from the drivers seat to the
    passenger seat; Constable Richmond knew the appellant to be aggressive and
    had reasonable grounds to be concerned for his own safety.

[17]

The appellant relies on
R. v. Sheppard
, [2002] 1 S.C.R.
    869, to support his claim that the trial judges reasons were insufficient.
    However,
Sheppard
does not require the trial judge to recount
    every item of evidence in her reasons; it requires that the reasons provide
    an intelligible guide to the trial judges reasoning. There is no question
    that the trial judges reasons in this case readily meet that standard.

[18]

I would not accede to this ground of appeal.

Violation of s. 8 of the
Charter

[19]

The appellant concedes that if there were reasonable and probable grounds
    for his arrest for a driving prohibition, the subsequent search was authorized
    as incidental to the arrest and was therefore a reasonable search for the
    purposes of s. 8 of the
Charter
.

[20]

As noted above, the grounds for the appellants arrest for a driving
    prohibition were obvious. I agree with the trial judge (at para. 15) that
    it was not reasonably necessary for the police officer to check his computer
    to confirm that the driving prohibition was still in effect, nor was it necessary
    in the circumstances for him to ask whether the prohibition had been appealed
    and stayed.

[21]

There is no basis to find, as the appellant alleges, that the police
    officer breached s. 29(2) of the
Criminal Code
by failing to
    advise the appellant that he was being arrested for driving while prohibited.
    The appellants conduct in changing seats made it clear that he knew why he
    was stopped (see
R. v. Beaudette
(1957), 118 C.C.C. 295 (Ont.C.A.))
    and the officer was not required to state the grounds for the arrest before
    he searched the appellant (see
R. v. Charlton
(1992), 15 B.C.A.C.
    272 at para. 38;
R. v. Dubois
, 2004 BCCA 589 at para. 10).

[22]

Nor is there any basis to find that Constable Richmond acted in bad
    faith. The appellant suggests that Constable Richmond was rounding up the
    appellant and the two passengers in the car for suspected drug violations.
    Much of the appellants argument regarding bad faith focused on the treatment
    of the two passengers, which is of course not relevant to the appellants
    claim that his
Charter
rights were breached (see
R. v.
    Spinelli
(1995), 101 C.C.C. (3d) 385 (B.C.C.A.)). The trial judge
    made no finding with regard to bad faith. In any event, there is no basis
    for the claim, since the trial judge clearly found, and I agree, that Constable
    Richmond had reasonable grounds for the arrest and he believed that he had
    such grounds.

[23]

I would not accede to this ground of appeal.

Time in Custody

Summary of the Facts

[24]

The appellant and his two passengers were taken to the police detachment
    following their arrest after the roadside stop, arriving there at 1:24 p.m.
    The appellant was not allowed to call his lawyer, though he had asked to do
    so at the time of his arrest. Constable Richmond testified that he wanted
    to search the appellants residence, and had concerns that officer safety
    and the preservation of evidence would be jeopardized if the appellant or
    either of the other two persons arrested called anyone before the search was
    completed.

[25]

Constable Richmond prepared the documents to obtain a search warrant,
    faxed them to Vancouver at 4:31 p.m., and received the authorization to search
    the appellants residence at 5:01 p.m. The search began at 5:50 p.m. and was
    completed at 7:16 p.m. The police seized drug paraphernalia from the appellants
    home, including mini scales, a kitchen knife with a residue of cocaine, a
    coffee grinder also found with a residue of cocaine, $5,330 in cash in a briefcase
    under the bed, a long sword, a machete in a closet, and an empty tin of mace
    found in the same briefcase as the cash.

[26]

At 7:30 p.m., the two passengers were released from custody without
    charges. Constable Richmond told the appellant he would be released and offered
    him the use of the telephone for the first time. Constable Richmond testified
    that the appellant told him he would telephone his lawyer after he was released,
    which the appellant denied. The appellant was released at 8:47 p.m., without
    having used the telephone.

[27]

Thus, from the time of his arrest at 1 p.m. until 7:30 p.m., the appellant
    did not have access to a telephone to call his counsel or anyone else.

[28]

The appellant claimed that his right under s. 10(b) of the
Charter
to retain and instruct counsel without delay was infringed when he was held
    incommunicado and denied access to a telephone for six-and-a-half hours,
    from the time of his arrest until the search of his home was completed. He
    sought a stay of proceedings under s. 24(1) or exclusion of the evidence obtained
    in the search of his home (that is, the drug paraphernalia) under s. 24(2)
    of the
Charter
.

[29]

The Crown conceded that there had been a breach of the appellants
    right to consult counsel without delay from the commencement of the search
    at 5:50 p.m. until he was offered the telephone at 7:30 p.m., but argued there
    was no breach from the time of the appellants arrest until the search commenced
    and the police had the situation at the appellants home under control.

The Decision of the Trial Judge

[30]

The trial judge found, relying on
R. v. Strachan
, [1988]
    2 S.C.R. 980, that there was no breach of the appellants right to consult
    counsel until the search warrant was executed at 5:50 p.m.  She accepted Constable
    Richmonds concerns that officer safety and preservation of evidence would
    have been jeopardized had the appellant been allowed to make a telephone call
    before the police were in control, that is, on the premises beginning a lawful
    search (at para. 32). She found, however, from the time the search commenced
    until 7:30 p.m., when the appellant was offered the use of the telephone,
    there was a violation of his
Charter
right to counsel. She concluded
    nonetheless that the evidence obtained from the search of the appellants
    home should not be excluded, as its admission would not render the trial unfair;
    the violation, though serious, was not flagrant; and the exclusion of evidence
    necessary to substantiate a charge could, in itself, bring the administration
    of justice into disrepute (at paras. 40-41).

Grounds of Appeal

[31]

The appellants grounds of appeal relating to the alleged violation
    of his right to counsel are accurately summarized by the Crown: whether the
    trial judge erred in declining to exclude evidence or impose a stay of proceedings
    under the
Charter
in connection with an infringement of the
    appellants right to counsel without delay contrary to s. 10(b) of the
Charter
.

Violation of s. 10(b) of the
Charter

[32]

In my opinion, the trial judge erred in applying
Strachan
to the facts of this case and finding there was no breach of the appellants
Charter
right to counsel until the search warrant was executed.

[33]

In
Strachan
, four police officers executed a search warrant
    at the home of the accused, knowing he was on the premises. There were two
    other men, unknown to police, in the apartment. The police knew that the accused
    had two restricted weapons on the premises and wanted to locate them. The
    police refused the accuseds request to telephone his lawyer immediately after
    he was arrested, telling him there would be no call until they had matters
    under control. The accused was allowed to call his lawyer from the police
    station, one hour and forty minutes after his arrest.

[34]

The Crown conceded on the appeals to this Court and the Supreme Court
    of Canada that there had been a breach of the accuseds
Charter
right to consult counsel without delay when he was not allowed to call his
    lawyer until he was taken to the police station.  The issue was therefore
    whether the evidence obtained on the search should be excluded under s. 24(2)
    of the
Charter
. Dickson C.J.C., for the majority, said this
    about the breach of s. 10(b) (at pp. 998-999):

Section 10(b) and the Right to Counsel

The respondent has conceded in this Court and in the
    Court of Appeal, that the police violated the appellant's right to counsel
    when they refused to allow him to telephone a lawyer until after he was taken
    to the police station. Because of that concession, it is not necessary to
    consider the violation of the right to counsel in depth in this case, but
    it is nevertheless opportune to comment on one aspect.

The trial judge rejected the argument that Constable
    Bisceglia needed to get the situation "under control" before allowing
    any telephone calls and held that the violation of the right to counsel occurred
    as soon as the Constable refused to let the appellant telephone his lawyer.
    Esson J.A. disagreed with the trial judge on this point and held that
Constable
    Bisceglia's concern to stabilize the situation was a proper one
.  Although
    it is not necessary to decide the point in this case, I would be inclined
    to agree with Esson J.A.
The combination of an arrest in the accused's
    home, the presence of two unknown people, and the knowledge that two restricted
    weapons were in the apartment, was a potentially volatile situation
.
    It is true the accused had the proper registration permits for the weapons,
    but, notwithstanding, the possibility of their use was a serious matter for
    a police officer to consider while taking a person into custody.  In my opinion,
Constable Bisceglia was justified in preventing any new factors from entering
    the situation until some of the unknowns had been clarified
.  Thus I would
    say that the violation of s. 10(b) did not occur when Constable Bisceglia
    initially prevented the appellant from telephoning his counsel.  But
once
    the accused had been arrested, the weapons located, and the other two people
    had left, the police were clearly in control
and there was no reason why
    they should not have allowed the appellant to telephone a lawyer.  I would
    hold that the denial of counsel began from that point.

[My underlining.]

[35]

The principle that police are entitled to get a situation under control
    before providing an accused person the opportunity to contact counsel was
    applied by this Court in
R. v. Schultz
(1991), 67 C.C.C. (3d)
    360 (B.C.C.A.).  In that case, the appellant was convicted on seven counts
    of an indictment concerning the violent armed kidnapping, with accomplices,
    of a Vancouver businessman. He was arrested at about 3 p.m. and a decision
    was made by police (but not communicated to the accused) to prohibit him from
    making any telephone calls, to protect certain victims from other suspects
    still at large. He first requested, and was allowed, the opportunity to telephone
    a lawyer between 8 p.m. and 9 p.m. Later in the evening, he called one of
    his accomplices to ask her to warn the others. The Court held his s. 10(b)
    right to counsel was not violated.

[36]

The Quebec Court of Appeal came to the same conclusion in
R.
    v. James
, [2001] J.Q. No. 5232 (C.A.). In that case, the police denied
    the appellant access to counsel for five-and-a-half hours in order to facilitate
    the execution of search warrants and arrests of other suspects in Montreal
    and Toronto. The investigation involved charges of first degree murder of
    a security guard, an attack described as one of extreme violence. There
    was evidence that a number of named suspects remained at large, and that the
    appellant and an accomplice had travelled from Montreal to Toronto to carry
    out an exchange of firearms.

[37]

Strachan
,
Schultz
and
James
were relied on by the trial judge in
R. v. Kiloh
, 2003 BCSC
    209.  The accused were arrested at 10:35 a.m. for the armed robbery of a jewellery
    store during which a hand-gun had been fired at a civilian who attempted to
    hinder the escape of the robbers. The trial judge described the arrest (at
    para.9): The arrest was a Code 5 take-down, which is used in high risk
    situations for the safety of police. Code 5 refers to the police arresting
    the accused by drawing and pointing their sidearms to bring the accused to
    the ground and handcuff them.  The police suspended the two accused's exercise
    of their right to consult counsel until after the search of their residence
    was completed. The reasons for the suspension were to protect the safety of
    the police officers conducting the search  there were unlocated firearms
    and unidentified persons involved in the robbery  and preservation of evidence
    which might be inside the residence. The accused arrived at the police detachment
    at 11 a.m.; the residence was secured by 11:53 a.m.; and the accused were
    allowed to use the telephone at 12:30 p.m.

[38]

The trial judge held that the two accused's s. 10(b) rights were properly
    suspended while the police took control of the situation. She found that
    the over suspension after the residence was secured probably amounts to
    a s. 10(b) breach, because there was no longer a concern about officer safety
    or preservation of evidence, but noted that it was brief and no attempts were
    made to interview or question the accused during that time.  In the result,
    the trial judge held that there was no violation of the accuseds s. 10(b)
    right.

[39]

The Crown cited two other cases in support of its argument that there
    was no violation of the appellants s. 10(b) right to counsel until after
    the search was commenced:
R. v. Fairgrieve
(1996), 83 B.C.A.C.
    219 and
R. v. Coates
(2003), 176 C.C.C. (3d) 215 (Ont. C.A.).
    These cases do not support the Crown on this issue, however. In both cases,
    the Crown conceded that there had been a breach of s. 10(b) and the issue
    before the courts was whether the evidence should be excluded under s. 24(2).
    In both cases, it was held that the evidence was admissible.

[40]

Strachan
,
Schultz
,
James
,
    and
Kiloh
share certain characteristics not present in this
    case. All of them dealt with investigations in progress, involving high risk,
    volatile situations where firearms were known to be involved. The police had
    identifiable reasons for concerns about the potential for violence and a risk
    that evidence may disappear or be destroyed. In
Strachan
, the
    police encountered not only the accused, but two other unknown persons, during
    a search for known firearms. In
Schultz
, the accused was involved,
    with accomplices, in a violent armed kidnapping. In
James
, the
    accused and accomplices were involved in the violent murder of a security
    guard, and were known to be trading in firearms. In
Kiloh
, the
    accused were arrested in a volatile situation for armed robberies of jewellery
    stores where shots had been fired at civilians.

[41]

In this case, the trial judge accepted that Constable Richmond had
    concerns about officer safety and the preservation of evidence. But the concerns
    were of a general nature; there was no evidence that the police knew there
    were weapons in the residence, or that the appellant had accomplices in his
    drug dealings that were at large or in the residence. There was no investigation
    in progress until after the appellants arrest, which arose initially from
    a roadside stop for a driving prohibition.  It took an unexplained three-and-a-half
    hours to obtain the search warrant, and another fifty minutes until the search
    of his home began. The suspension of the appellants right to counsel extended
    over a total of six-and-a-half hours.

[42]

In my opinion, the appellants right under s. 10(b) of the
Charter
to retain and instruct counsel
without delay
was infringed when he
    was not allowed to use a telephone shortly after he was taken to the police
    detachment and charged. The police were not justified in suspending the
    appellants right for six-and-a-half hours.

Admission of the Evidence  s. 24(2) of the
Charter

[43]

The trial judge held that the evidence obtained in the search of the
    appellants residence, the drug paraphernalia, should not be excluded. I agree
    with her analysis of the application of s. 24(2) of the
Charter
in these circumstances, despite my conclusion that the appellants right to
    counsel was violated for a longer period of time.

[44]

The three factors to be considered are, as established by
R.
    v. Collins
, [1987] 1 S.C.R. 265, the fairness of the trial, the seriousness
    of the breach, and the effect of excluding the evidence on the administration
    of justice.

[45]

The evidence obtained in the search was real evidence. The violation
    of the appellants right to counsel had nothing to do with its discovery,
    its admission as evidence at the trial, or the fairness of the trial.

[46]

The breach of the appellants right to counsel was more serious than
    determined by the trial judge, but nonetheless I agree that it was not flagrant.
    It is of some importance that during the time the appellant was denied access
    to counsel, the police made no attempt to question him or elicit information.
    The appellant has demonstrated no prejudice to him from the delay and, in
    fact, he delayed contacting counsel, when given the opportunity, until after
    he was released. The police were found to have had concerns about officer
    safety and preservation of evidence, which had been held, in other cases,
    to justify a suspension of right to counsel. That I have found their concerns
    did not justify the suspension in the circumstances of this case will guide
    police in the future, but for the purposes of this case, I would take the
    view that the police acted in good faith, at least until they commenced their
    search of the appellants home. (This is not to imply that they acted in bad
    faith after that.) Insofar as the breach continued after that, the trial judges
    analysis is entitled to deference and I see no reason to interfere: see
R.
    v. Smith
, 2005 BCCA 334 at paras. 36-38.

[47]

The drug trafficking charge was serious and the drug paraphernalia
    found in the search of the appellants home was important to the prosecution
    of the charge. I agree with the trial judge that excluding that evidence could
    bring the administration of justice into disrepute.

Stay of Proceedings  s. 24(1) of the
Charter

[48]

The appellant claims that the trial judge should have stayed the charges
    against him because of the seriousness of the circumstances in which he and
    his two passengers were held incommunicado for six-and-a-half hours.

[49]

It is sufficient in response to state that this was not one of the
    clearest of cases that justify a stay of proceedings. There was no abuse
    of the process of the courts or the justice system.

[50]

The appellant argues that the police breached s. 7(1) of the
Offence
    Act
, R.S.B.C. 1996, c. 338. He maintains that breach provides an additional
    reason why there should be a stay of proceedings under s. 24(1) or the evidence
    obtained from the search should be excluded under s. 24(2) of the
Charter
.

[51]

The
Offence Act
provides in s. 7:

Right to telephone

7          (1)        Every person who is taken into
    custody by a peace officer is entitled, on request to the person responsible
    for his or her custody, to have access to, and the private use of, a telephone
    as soon as possible at least once during the first 12 hours of his or her
    custody.

(2)        A person who, without reasonable
    excuse, hinders or prevents a person in custody from exercising the right
    granted by subsection (1), commits an offence.

[52]

This argument is without merit. First, there was no breach of s. 7(1),
    as the appellant was offered the use of a telephone within the first 12 hours
    of his custody. Second, if there was a breach, s. 7(2) provides the remedy
     the person in breach has committed an offence under the
Act
.
    Third, it is doubtful that the
Act
applies to criminal proceedings
    under the
Criminal Code
: see
Scowby et al. v. Glendinning
(1986), 29 C.C.C. (3d) 1 at 13 (S.C.C.), where the majority of the Supreme
    Court of Canada held that provincial human rights legislation was constitutionally
    inapplicable to arrest or detention under the provisions of the criminal law.
    Fourth, s. 24 of the
Charter
provides remedies for violations
    of
Charter
rights.

[53]

I would not accede to this ground of appeal.

Dealings with Police

[54]

On the appellants release from custody, as he was leaving the police
    station, Constable Richmond gave him his business card and invited him to
    provide information to the police. The evidence concerning this conversation
    was conflicting.

[55]

Constable Richmond testified that he asked the appellant if he wanted
    to provide information regarding drug activity or any other criminal offence.
    Constable Richmond said he would listen and would tell the Crown that the
    appellant had been cooperative. According to Constable Richmond, the appellant
    took his card but said nothing in response.

[56]

The appellant testified that Constable Richmond told him if he gave
    up his dealer then Constable Richmond would have the charges dropped to
    possession. The appellant said that he told Constable Richmond he would think
    about it. In cross-examination, he testified that Constable Richmond said
    he drops the charges for all his [informant] friends. The appellant did
    not believe that Constable Richmond had the power to drop charges and had
    no intention of providing information because he was not a rat.

[57]

The appellant testified further that about a month later he was approached
    by another officer who suggested that he call Constable Richmond about getting
    those charges dropped to a lesser charge.  The other police officer denied
    saying anything to the appellant about reducing charges because he was in
    no position to make such an offer.

The Alleged Abuse of Process

[58]

The appellant sought a stay of proceedings on the ground that the discussions
    initiated by the police were an abuse of process.

Decision of the Trial Judge

[59]

The trial judge rejected the appellants argument that there was any
    abuse of process. As she put it (at para. 49): There was no meeting of the
    minds here, no deal proposed, no deal contemplated and no deal accepted, and
    there was no abuse of process in my view.

No Abuse of Process

[60]

The trial judge accepted the evidence of both Constable Richmond and
    the appellant. She found that Constable Richmond had asked the appellant if
    he wanted to give information and offered to tell the Crown that he had been
    cooperative if any information was given. She also found that the appellant
    did not believe that Constable Richmond could make a deal and had no intention
    of providing information.

[61]

In these circumstances, the trial judge was correct in concluding there
    was no abuse of process: see
R. v. Pawliuk
(2001), 148 B.C.A.C.
    165 at paras. 49, 52, 57-58.

[62]

I would not accede to this ground of appeal.

[63]

I would dismiss the appeal.

The Honourable Madam Justice Levine

I AGREE:

The Honourable Mr. Justice Donald

I AGREE:

The Honourable Madam Justice Newbury


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Labell
          v. Labell,

2006
          BCCA 45

Date: 20060124

Docket: CA33015

Between:

Richard
    Simon Labell

Respondent

(
Plaintiff
)

And

Valerie
    Mary Maureen Labell

Appellant

(
Defendant
)

Before:

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Huddart

The
          Honourable Mr. Justice Low

Oral Reasons for Judgment

J.M.
          Stirling

Counsel for the Appellant

J.W.
          Bennie

Counsel for the Respondent

Place
          and Date:

Victoria, British Columbia

24 January 2006

[1]

NEWBURY, J.A.:
Ms. Labell appeals an order of Lander,
    J. which varied the child maintenance payable by Mr. Labell in respect of
    the couple's child, a daughter, now 17 years old, to $1.00 per month and cancelled
    all arrears owing since the previous order of September 1994.  The amount
    cancelled, including interest and collection fees charged by the Director
    of the Family Enforcement Maintenance Program, was approximately $36,000.
    Ms. Labell has appealed only the cancellation of the arrears.

[2]

The previous order had been the result of a recommendation of Master Horne
    in September 1994, i.e., prior to the present

Guideline regime.  Master
    Horne attributed income of $10,000 per annum to Mr. Labell, being approximately
    the amount of unemployment insurance benefits drawn by him in his tax returns
    for 1989 to 1993.  Mr. Labell also claimed to have incurred a net loss, or
    a very small profit, from fishing each year, although his gross income therefrom
    was between $26,000 and $29,000.  The expenses charged against that income
    were not disclosed.  Master Horne recommended that child maintenance
    at that time be increased to $300 per month.  His reasons were not read by
    the Chambers judge below, although they were before him.

[3]

Over the 11 years since the 1994 order, the Chambers judge found that
    Mr. Labell had paid a total of $5,907.  Mr. Labell adduced incomplete
    financial information  most notably his T4 for fishing in 2004 and T4E for
    employment insurance income for the same year.  He deposed to very low income
    (under $2,000) in 2000 and 2001 and said he had supported himself by staying
    with family and friends "as I was unable to support myself alone".
    He said his income tax returns and related documents for 2000 to 2003 had
    been lost, but copies of the Revenue Canada summary sheets for 2000 to 2002
    were adduced.  At para. 17 of his affidavit he stated:

I
    cannot afford the current support amount, and I don't think I should pay to
    the Respondent when my daughter is not living with her.  I also cannot afford
    to pay the arrears outstanding, with my income I will never be able to pay
    them off.  As of February 17, 2005 the records for the Family Maintenance
    Enforcement Program state that I owe $36,008.75.  A true copy of those records
    are attached at Exhibit "G".

Based on this information, the Chambers judge calculated
    Mr. Labell's average income over the last three years as $8,506, which would
    have meant the Guideline amount for one child would be $44 per month.  If
    the last five years were averaged, Mr. Labell would not have to pay anything
    under the Guidelines.

[4]

The Chambers judge also noted that Mr. Labell is functionally illiterate
    and has worked at other labouring jobs in the past in addition to fishing.
    Mr. Labell deposes that his illiteracy "makes it very difficult to look
    for work, as I find reading help wanted ads very difficult".  His counsel
    suggests this may also have contributed to his failure to apply earlier to
    have the maintenance order varied.  He is now 40 years old and appears not
    to have varied at all from the fishing/UIC life that he was living when the
    couple were living together.  There is no evidence he has attempted to overcome
    his illiteracy.  Yet he has a daughter who requires support and is approaching
    middle age.

[5]

The Chambers judge dealt first with the question of support and essentially
    reasoned that because he had really no information about how the daughter
    was supporting herself (she was working at a Dairy Queen and living with friends),
    he would reduce the maintenance to a nominal amount of $1.00 per month.  (This
    is not under appeal, but I note parenthetically that the application of the
    Guidelines does not depend on the child's income or needs.  It is determined
    now solely on the payor's ability to pay.)  The Chambers judge next turned
    to the question of arrears.  He said Mr. Labell's arrears were "reprehensible",
    but that he could see no hope Mr. Labell would every repay the $36,000.
    He then said:

Brittanie
    is 16 now, and her situation appears to be one where she has ceased to continue
    her education.  Whether she returns or not, I have already dealt with.  So
    I see that very soon she will be an adult.

However,
    I do have some sympathy for Mrs. Labell and the years that she was deprived
    of income for the support of Brittanie by this man's conduct.  But we must
    deal in the present and consider the future.

Therefore,
    I am cancelling the arrears.  There will be no costs.

[6]

The Chambers judge mentioned only one case
Earle v. Earle
(New Westminster No. A881580, dated January 18, 1999).  In it, Martinson,
    J. declined to reduce the arrears of a father who had hopes of being able
    to pay his arrears in future, but no present ability.  Perhaps a more analogous
    and more useful case would have been this court's decision in
Longstaff
    v. Longstaff
(1993), 49 R.F.L. (3d) 1.  Like this case, it was an
    appeal from an order reducing child maintenance and cancelling arrears.  In
Longstaff
, $4,900 of the $10,900 of arrears had been cancelled.
    The Court of Appeal allowed the appeal, confirming that the onus was on the
    payor spouse to make full disclosure of his financial circumstances; that
    a variation in maintenance generally requires proof of a change in circumstances;
    and that with respect to the reduction or cancellation of arrears, the payor
    must satisfy the court it would be grossly unfair not to reduce or cancel
    the arrears.  In the circumstances of
Longstaff
, this court
    ruled it was not open to the Chambers judge to cancel part of the arrears.
    Rowles, J.A. quoted from
Barton v. Barton
, a 1985 case (November
    26, 1985, Co.Ct., Vancouver Docket No. CC850939), where Huddart, Co.Ct. J.
    (as she then was) had said:

To
    cancel arrears on a child maintenance order merely because that order, never
    sought to be varied, cannot at a moment in time be enforced, encourages a
    lack of diligent effort to pay in the hope that the more diligent parent will
    give up any attempt to enforce the order at whatever cost in lost savings
    and extra effort.

If
    the courts are to respect the principle that parents share equally the responsibility
    for the care of their children, no result should be permitted that gives any
    appearance of favouring a parent whose efforts to fulfil that responsibility
    have been less than those of the other who shoulders it by dint of energetic
    and sustained application of his or her resources.

[7]

In the case at bar, while it is unlikely Mr. Labell will get himself
    out of his dependence on employment insurance and seasonal work, there is
    always the chance, however slim, that he may do so, or that he may inherit
    or come into some money in some way.  In that event, it would be grossly unfair
    if his daughter were unable to press her claim which has grown over the years
    to $33,000.  In the meantime, I am not satisfied Mr. Labell has discharged
    the onus on him to show that non-cancellation would be grossly unfair.  It
    may never be possible to collect the arrears from him, but in my view, it
    has not been shown that it would be grossly unfair not to cancel or even reduce
    the arrears in these circumstances.

[8]

Accordingly, I would allow the appeal, set aside the cancellation order
    made below, and fix the arrears at $33,873.75, which we are told includes
    interest and penalties but not default fees owing to the government.

[9]

HUDDART, J.A.:
I agree.

[10]

LOW, J.A.:
I agree.

The Honourable Madam Justice Newbury


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Groat,

2006
          BCCA 27

Date: 20060124

Docket: CA032849

Between:

Regina

Respondent

And

Robert
    Groat

Appellant

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Levine

R.
          Neary

Counsel for the Appellant

P.A.
          Eccles

Counsel for the Respondent

Place
          and Date of Hearing:

Victoria, British Columbia

September 29, 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

January 24, 2006

Written
          Reasons by
:

The
          Honourable Madam Justice Newbury

Concurred
          in by:

The
          Honourable Madam Justice Rowles

The Honourable
          Madam Justice Levine

Reasons for Judgment of the Honourable Madam Justice
    Newbury:

[1]

Mr. Groat was convicted on March 10, 2005 of one count of production
    of a controlled substance, namely Cannabis (marihuana), and one count of possession
    of the same substance for the purpose of trafficking.  The crucial evidence
    against him consisted of certain statements he made to police officers, and
    physical evidence found by the officers as a result of a warrantless search
    of a house occupied by him.  This evidence included 79 Cannabis plants
    which were said to constitute a "small to medium-sized two-stage commercial
    marihuana production operation."  They would have yielded almost 10 pounds
    of marihuana having a value of between $21,725 and $27,650.  The admissibility
    of the statements and the real evidence was the subject of a
voir dire
conducted by the trial judge, for which she gave reasons indexed as [2005]
    B.C.J. No. 539, 2005 BCPC 80.

[2]

The charges originated when two police officers, Clayton and Cranton,
    responded to a 911 call concerning a possible break and entry in progress
    at Mr. Groat's address in Sooke.  After looking around the outside of
    the house and seeing no indication of break and entry, they knocked on the
    front door.  Mr. Groat answered.  In the process of conversing with him
    about the 911 call, the officers smelled marihuana from the doorstep.  Constable
    Clayton suspected it was being grown in the house.  When she asked about it,
    Mr. Groat replied that he had just smoked some for medicinal purposes.
    However, Constable Clayton was confident it was fresh growing marihuana she
    smelled, and asked what was in the basement.  At first, Mr. Groat said
    he did not know and that he did not take care of the basement, but according
    to Constable Clayton's evidence, "then he changed his story in saying
    that yes, he did know what was in the basement and it was all his, it was
    his responsibility."

[3]

Although Constable Clayton testified she was not sure whether Mr. Groat
    had invited the police inside, the trial judge found that he had done so.
    The police entered.  The constable testified that by this time, she had formed
    the opinion Mr. Groat was growing marihuana in his basement.  She also
    testified that had Mr. Groat denied involvement with marihuana, she would
    have arrested him, taken him back to the detachment, cleared the house, "checked
    for evidence and officer safety", and would have sought a search warrant
    for the premises.  In fact, a third officer, Constable Pacquet, arrived at
    the scene, and Constable Clayton asked for Mr. Groat's permission to
    search the house.  She testified:

We were inside the house speaking to Mr. Groat.  He knew  he know [sic]
    that I knew there was a grow in the basement, he had admitted that you know,
    he was taking care of everything in the basement.

I asked him if he would give us a consent search, if he would sign my
    notebook, give me his consent to search the whole entire house.  He was also
    made aware that he would be charged with, you know, the grow that we did find.
     I asked him numerous times if he would like to  if he would give us permission
    or not, if he changed his mind at any time, he could."

Mr. Groat then signed a written consent to "enter
    residence up and down" which reiterated that he could revoke his permission
    at any time.  Constable Clayton also told him before going downstairs that
    "he would be charged with . . . the grow that we did find."  Mr. Groat
    seemed to understand and showed them around the house.  The police found a
    grow operation in the basement.  They immediately arrested Mr. Groat,
    gave him the usual
Charter
warning and permitted him to telephone
    legal counsel.  Constable Pacquet testified that on getting off the phone,
    Mr. Groat said:  "When you get caught, you get caught; when they
    catch you, you can't hide it."

[4]

One officer stayed at the house while Constable Clayton took the appellant
    to the local police headquarters where, the trial judge found, he was given
    another opportunity to revoke his consent to the search of his premises.
    He did not.  Accordingly, Constable Clayton returned to the house and with
    her colleagues conducted a search and seized the incriminating evidence.
    She then went back to headquarters, where Mr. Groat gave a videotaped
    statement in which, the trial judge said:

.
    . . he confirmed that he had been advised of his Charter rights and cautioned,
    spoken to a lawyer, and been given an opportunity to call a lawyer again.
     He confirmed what hed said earlier, and gave further details about the operation.
     He stated that the landlord was paying the hydro bills for the property,
    which were substantial.  He took responsibility for the operation.

Throughout all this, Officer Clayton did not raise her voice.  She made no
    threats and offered no inducements.  The accused was calm and open.  This
    is reflected in the videotaped statement.

The reason for using a consent search was to save the time
    and effort of obtaining a warrant.  It was a Saturday night and the police
    were busy.  [Paras. 10-12]

[5]

The first question argued at trial and the third ground of appeal now
    advanced by the appellant is that the Crown had failed to prove beyond a reasonable
    doubt that his statements made to the police at the house were voluntary.
    The trial judge did not accede to this argument.  She stated her findings
    as follows:

I am satisfied beyond a reasonable doubt that the statements
    of the accused were voluntary.  There were no inducements or threats.  There
    is nothing to suggest any difficulty with the mental capacity of the accused
    at the time.  In the videotaped statement he is completely lucid.  Officer
    Clayton took some notes, the other officers did not.  Notes are one factor
    to be used in assessing the evidence of a witness.  Depending on other aspects
    of the testimony and circumstances, they may be quite important, as illustrated
    in some of the authorities provided by the accused.  I found the testimony
    of Officer Clayton, and the other officers, credible.  In these particular
    circumstances, any gaps in Officer Claytons notes, and the failure of the
    other two officers to take notes, do not affect my finding.  [Para. 15]

[6]

In this court, it is said this finding was erroneous even though deference
    is to be shown to findings of fact made by trial judges who have seen all
    the witnesses.  Counsel for the appellant relied in particular on the following
    passage from a 1979 text by Fred Kaufman,
The Admissibility of Confessions
(3rd ed.).  The author wrote:

When questions are asked, it is of the utmost importance to
    keep a complete record of
all
questions and answers, and to resist
    the temptation to reduce to writing only that part which inculpates the accused.
    Indeed, failure to recollect the complete conversation may jeopardize an otherwise
    acceptable confession, but once again this is a matter of appreciation for
    the judge.  [139]

On this point, he cited
R. v. Bélanger
(1978), 40 C.C.C. (2d) 335 (Ont. H.C.J.) and
R. v. Hoser
(1958),
    unreported No. 810, Crown Office Montreal (Que. Sess.).

[7]

Two more recent cases which confirmed the heavy burden on the Crown
    to prove voluntariness are
R. v. Ahmed
(2002), 7 C.R. (6th)
    308 and
R. v. Moore-McFarlane
(2001), 47 C.R. (5th) 203, both
    decisions of the Ontario Court of Appeal.  In the latter case, Charron J.A.
    (as she then was) reviewed in particular
R. v. Oickle
, [2000]
    2 S.C.R. 3 and concluded that:

[T]here is no absolute rule requiring the recording of statements.  It is
    clear from the analysis in both
Hodgson
[[1998] 2 S.C.R. 449] and
Oickle
that the inquiry into voluntariness is contextual in nature and that all relevant
    circumstances must be considered. Iacobucci J. says so expressly in
Oickle
in the following words (at para. 47, p. 31 S.C.R., p. 345 C.C.C.):

The application of the rule will by necessity be contextual.
     Hard and fast rules simply cannot account for the variety of circumstances
    that vitiate the voluntariness of a confession, and would inevitably result
    in a rule that would be both over- and under-inclusive.  A trial judge should
    therefore consider all the relevant factors when reviewing a confession.

However, the Crown bears the onus of establishing a sufficient
    record of the interaction between the suspect and the police.  That onus may
    be readily satisfied by the use of audio, or better still, video recording.
    Indeed, it is my view that
where the suspect is in custody, recording facilities
    are readily available, and the police deliberately set out to interrogate
    the suspect without giving any thought to the making of a reliable record,
    the context inevitably makes the resulting non-recorded interrogation suspect
.
     In such cases, it will be a matter for the trial judge on the
voir dire
to determine whether or not a sufficient substitute for an audio or video
    tape record has been provided to satisfy the heavy onus on the Crown to prove
    voluntariness beyond a reasonable doubt.  [Paras. 64-65; emphasis added.]

In
Ahmed
, the Court overruled a trial judge's
    finding that a confession allegedly made at police headquarters had been voluntary,
    noting that the trial judge had given "no reason for why he believed
    the detective and failed to analyze his evidence on this crucial point."
    (At para. 18.)

[8]

In the case at bar, the appellant also emphasized that neither of the
    officers involved in questioning Mr. Groat could remember in detail what
    exactly had been said prior to his making his statement, and that about 10
    minutes elapsed between the arrival of the police and the point when he "finally
    advised" (the phrase is Constable Clayton's) that the plants were his.
    (So-called "continuation reports" were not made until the following
    day.)

[9]

The fact remains, however, that the trial judge found that the Crown
    had discharged its burden of proving voluntariness.  The officers' evidence
    was uncontradicted (the accused did not testify on the
voir dire
or
    at trial) and the trial judge did not find the absence of more copious notes
    to be fatal.  As she stated:

Notes are one factor to be used in assessing the evidence of a witness.
     Depending on other aspects of the testimony and circumstances, they may be
    quite important, as illustrated in some of the authorities provided by the
    accused.  I found the testimony of Officer Clayton, and the other officers,
    credible. In these particular circumstances, any gaps in Officer Clayton's
    notes, and the failure of the other two officers to take notes, do not affect
    my finding.  [Para. 15]

With respect to the videotaped statement made at police
    headquarters, she also found that Mr. Groat was "completely lucid."
    No challenge to that finding was advanced.

[10]

I see no basis on which an appeal court could conclude that the trial
    judge was not aware of the onus on the Crown, or that she somehow erred in
    principle in accepting the police officers' testimony.  This is not a case
    where suspicion of police misconduct required further analysis.  Mr. Groat
    was clearly willing to make the statements he did, and as unusual as his reaction
    was, the trial judge was entitled to make the findings of fact she did.  The
    findings are consistent with the videotaped evidence and with Mr. Groat's
    willingness to sign a consent to search the premises.  I would dismiss this
    ground of appeal.

[11]

The appellant also argued that because he had not been advised of his
    right to remain silent or given the opportunity to contact counsel
before
he made his statement, his rights under s. 10(b) of the
Canadian
    Charter of Rights and Freedoms
were infringed.  On this issue, the
    trial judge relied on the decisions of this court in
R. v. Kay
(1990), 53 C.C.C. (3d) 500 and
R. v. Stanford
(1994), 51 B.C.A.C.
    58, [1994] B.C.J. No. 2332.  In both cases, the police had come upon
    suspicious circumstances and suspects had been questioned in the course of
    their investigations.  In
Kay
, the appellant was questioned
    in his hospital bed and in
Stanford
, the questioning occurred
    in an ambulance after a car accident.  The trial judge noted that in each
    case, the police would have detained the suspect had the suspect tried to
    leave, but that did not happen.  She continued:

I find that Mr. Groat was not detained until he was arrested.
     He was standing in the residence talking to the officers.  He was not constrained.
     He would have been arrested had he tried to leave.  However, a determination
    of whether he was detained should be based on what actually occurred.  [Para.
    26]

The trial judge relied as well on
Ingenhaag v.
    Burdock
(1991), 4 B.C.A.C. 186, [1991] B.C.J. No. 4027, to the effect
    that in order to be "detained", the defendant had to show that he
    "reasonably believed himself compelled to answer the officer's questions".
    The trial judge was not satisfied Mr. Groat had reasonably believed he
    was compelled to answer Constable Clayton's questions.  In her words, "Because
    the accused was not detained, in either a conventional or extended sense,
    his right to counsel was not contravened. I find his right to silence was
    not denied, and that the statements are admissible."  (Para. 28.)

[12]

In this court, the appellant relies on certain factual differences
    between this case on the one hand and
Kay
,
Stanford
and
Ingenhaag
on the other.  Mr. Neary in his able submissions
    notes that as much as 20 minutes elapsed from the time when Mr. Groat
    admitted to being in possession of marihuana, to when he was informed of his
Charter
rights under s. 10; that in none of the cited cases
    was the accused "confronted with evidence pointing to [his] guilt"
    (see
Ingenhaag
, at para. 20); and that as soon as Mr. Groat
    began making his statement, Constable Clayton had reasonable and probable
    grounds to arrest him.  (She indeed testified that she felt that she had such
    grounds almost immediately upon the beginning of the conversation on the doorstep.)
    In any event, counsel for the appellant contends that as soon as Constable
    Clayton told Mr. Groat he would be charged (if a grow operation was found),
    he must have had a "reasonable apprehension of restraint or coercion,
    such as to produce a detention", within the meaning of this court's judgment
    in
Kay
,
supra
.

[13]

On the other hand, as counsel for Crown argues, the fact that the police
    officers may have thought they had reasonable grounds or may have intended
    to detain Mr. Groat had he tried to leave, is not determinative:
Stanford
,
supra
.  The Crown cites
R. v. Van Wyk
, [1999] O.J. No.
    3515 (Ont. Sup. Ct. J.), aff'd [2002] O.J. No. 3144 (Ont. C.A.)), where
    the trial judge reasoned:

In order for an individual to be detained other than in a physical sense,
a police officer must assume control over his or her movement by a demand
    or direction which may have significant legal consequences and which prevents
    or impedes access to counsel
:
The Queen v. Therens
(1985), 18
    C.C.C. (3d) 481 (S.C.C.) at 504
per
Le Dain J.  There must exist
some form of governmental coercion or compulsion
(
Prosper v. The
    Queen
(1994), 92 C.C.C. (3d) 353 (S.C.C.) at 377
per
Lamer C.J.C.)
     an element of "physical compulsion, in the form of a reasonable perception
    of suspension of freedom of choice" (
The Queen v. Therens
,
supra
,
    at 505).

In
Regina v. Moran
, [(1987) 36 C.C.C. (3d) 225 (Ont. C.A.)], at 258-9,
    Martin J.A. set out a number of factors relevant to the existence of detention
    while noting that the presence of "any one factor or combination of factors
    or their absence" would not necessarily be determinative in any particular
    case.  Nevertheless, application of the factors serves as a helpful guide.
    Their application to the dynamics of this case, as canvassed below, defeats
    the accused having established the status of detention when speaking to the
    police in the hallway of his home.

Neither Detective Morgado nor his associates, by their numbers, presence,
    language or actions, intimidated or coerced responses from the homeowner.
    Mr. Van Wyk stood in his own home, hot chocolate in hand, and elected to answer
    police questions.  There existed none of the pressure of custodial interrogation
    which is of course the type of environment necessitating the protection afforded
    by the right to counsel.

Accepting that a police question may, in some circumstances, amount to a "direction
    or command" (
Regina v. Moran
,
supra
at 258), that is not
    the case here.  A suspect is free to answer or not to answer questions posed
    by the police save in exceptional circumstances:
Regina v. Esposito
,
    [(1985), 24 C.C.C. (3d) 88 (Ont. C.A.)] at 94.  The language used by Detective
    Morgado was non-confrontational and polite.
There is no persuasive evidence
    that Mr. Van Wyk, in speaking to the police in the hallway, believed he was
    in a position where there existed a statutory compulsion to respond to questions
    about his driving of the sort described in The
Queen v. White
,
    [[1999] 2 S.C.R. 417].

The police did not have reasonable and probable grounds to believe that Mr.
    Van Wyk had committed the offence under investigation simply by virtue of
    his status as the registered owner of the vehicle reported to be involved
    in the accident.  In a somewhat similar case,
Regina v. Hicks
, [(1988),
    42 C.C.C. (3d) 394 (Ont. C.A.)] at 397, Lacourcière J.A. observed:

... the police had no reasonable and probable grounds to arrest ... until
    they eliminated the possibility that someone other than the owner of the van
    had been the driver on the day of the fatality in question.

In
    this sense then, Mr. Van Wyk, in the hallway, was not confronted with evidence
    pointing to his guilt.
It could not be said that the investigation had
    reached the stage, described by Martin J.A. at page 259 of the
Moran
decision, where the police "... had already decided that a crime had
    been committed and that the accused was the perpetrator or involved in its
    commission"
.

In any event,
the concept of detention has not been judicially
    expanded to include any case where the police have articulable cause to suspect
that the person being questioned is involved in the commission of the offence
    under investigation:
Regina v. Caputo
(1997), 114 C.C.C. (3d) 1 (Ont.
    C.A.) at 11
per
Rosenberg J.A.  [Paras. 58-63; emphasis added.]

As the Crown notes in its factum, the character of the
    interaction in
Van Wyk
between the police and the accused was
    found to have changed once the suspect was confronted with the assertion that
    witnesses had informed the police he had caused the accident.  From that point
    on, Mr. Van Wyk was found to have been detained.

[14]

In the case at bar, Constable Clayton wanted to see the marihuana grow
    operation, if there was one, before she detained (and arrested) Mr. Groat.
    As soon as she saw the operation, she arrested him and gave him the required
Charter
warnings.  There is no evidence of the appellant that
    he felt he was psychologically detained prior to his arrest.  In this regard,
    the case is different from many of those cited to us, including
R. v.
    Dolynchuk
(2004), 184 C.C.C. (3d) 214 (Man. C.A.).  There the Court
    stated:

The testimony of the accused as to his subjective belief that he was compelled
    to reply to the police is certainly very powerful evidence as to the existence
    of a reasonable belief.  Neither the accused in
C.R.H.
[(2003) 174
    C.C.C. (3d) 67 (Man. C.A.)] nor the accused at bar testified on the
voir
    dire
.  In most cases, this would end the matter.  However, ultimately,
    the determination is an objective one, and in appropriate circumstances, a
    court may conclude that the accused was psychologically detained even though
    he did not testify. Although it would have been preferable for the accused
    to testify as to his subjective belief, I do not agree with the Crown that
    in every case of psychological detention, the absence of evidence from the
    accused automatically negates the possibility of finding, in the words of
    Justice Le Dain in
Therens
, at p. 644, "a reasonable perception
    of suspension of freedom of choice" so as to make the restraint of liberty
    involuntary.  In fact, in the case of
C.R.H.
, I stated (at para. 47):

I am not suggesting that there can never be a finding of detention
    in the absence of testimony from the accused, but such a determination would
    require stronger facts than exist in this case.
The court must still have
    some evidence from which it can infer that the circumstances were such that
    the accused could reasonably have concluded that his freedom had been restrained.

What type of evidence could give rise to such an inference?  The facts
    of
C.R.H.
were very different than this case.  That case involved a
    random street encounter where no crime had been committed, there was no ongoing
    investigation and the police, besides chatting generally with the accused,
    asked only for the accused's name, address and birthdate.  In that case, speaking
    for the court, I held that not every conversation with police officers was
    a detention and, in that particular situation, no detention had arisen.  [Para.
    20; emphasis added.]

[15]

Considering all the circumstances before her, the trial judge in the
    case at bar was not satisfied that Mr. Groat had reasonably believed
    he was compelled to answer the officer's questions.  However, the evidence
    might have supported the opposite conclusion: two, and then three, officers
    had presented themselves at Mr. Groat's door, the conversation took several
    minutes, there was no indication the police were going to leave, nor were
    they likely to, given Constable Clayton's suspicions.  Certainly once Mr. Groat
    was told he would be charged if a grow operation were found, it is difficult,
    as Mr. Neary argues, to imagine that the appellant believed he was at liberty
    to "disengage".  I must say that I likely would not have reached
    the same conclusion as the trial judge did.  On the other hand, it was a conclusion
    of at least mixed fact, if not pure fact, and the room for appellate interference
    with findings of fact is extremely limited.  Accordingly, I propose for the
    balance of the reasons to
assume
, without deciding, that Mr. Groat
    was detained at some point during the conversation that began on his doorstep
    and then moved into the house.  From that assumption it follows that his rights
    to counsel under s. 10(b) of the
Charter
were breached.

[16]

The trial judge did find that Mr. Groat's consent to the warrantless
    search was not an informed consent.  In her words:

In this case,
Mr. Groat probably had the impression
    that his choice didn't matter one way or the other - he was told he would
    be charged anyway
.  This kind of statement diminishes the importance of
    the decision to waive a constitutional right.  Although the accused was told
    a number of times that he could revoke his consent, the evidence was sparse
    on whether he was told clearly, at the beginning, that he did not have to
    consent in the first place.  In the absence of clear information about his
    options and the consequences, he should have been given an opportunity to
    contact counsel before any consent to search was taken.  [Para. 32; emphasis
    added.]

In the result, the trial judge found that Mr. Groat's
    rights under s. 8 of the
Charter
had been breached "because
    the consent of the accused was not sufficiently informed in all of the circumstances."
    (Para. 35.)  The Crown does not challenge this finding on appeal.

[17]

The trial judge then turned to consider whether the real evidence
    i.e., "items forming part of the marihuana grow operation"  should
    be excluded.  Citing
R. v. Collins
,

[1987] 1 S.C.R.
    265, she correctly stated that she was required to consider "whether
    the admission of the evidence would affect trial fairness, the seriousness
    of the contravention of the
Charter
, and whether the repute
    of the justice system will be better served by exclusion or admission of the
    evidence".

The
    crux of her reasoning on this point was that:

The evidence here consists of items forming part of the marihuana grow operation.
     It is real evidence.  The admission of real evidence rarely affects trial
    fairness unless it is conscripted.  Real evidence is conscripted in a derivative
    sense where discovery of the evidence results from statements of the accused
    associated with a Charter contravention, or the accused is otherwise compelled,
    in contravention of the Charter, to participate in its discovery:
R. v.
    Stillman
(1997), 113 C.C.C. (3d) 321 (S.C.C.).  The evidence here was
    not conscripted.  There was no Charter violation associated with the statements.
     In addition, I am satisfied that the evidence would have been discovered
    in any event. I find it likely that the police would have obtained a search
    warrant if the accused had not consented to the search.

The violation is serious because of its nature, a search of
    the home of the accused.  The fact that the police could have obtained the
    evidence legally adds to the seriousness:
Collins
,
supra
.  However,
    I am satisfied the police acted in good faith.  I note this was the first
    consent search for the lead officer.  Although she was not asked this directly,
    I infer that she thought she had a valid consent.  The police were courteous
    at all times.  [Paras. 37-38]

In the result, she found that the admission of the evidence
    would not bring the justice system into disrepute.

[19]

The question for this court is whether, assuming Mr. Groat's rights
    under s. 10(b) as well as under s. 8 of the
Charter
were
    breached, the trial judge erred in admitting the appellant's statements made
    prior to arrest and the results of the search, or whether doing so would bring
    the administration of justice into disrepute.  In my view, it clearly would
    not.  Although we are here concerned with a search of the accused's residence
    and in that sense the warrantless search was not trivial, I would not, for
    that reason alone, exclude the evidence.  While the police officers were mistaken
    in assuming that the signed consent relieved them from the necessity of going
    through the formalities of obtaining a warrant, the absence of any malice,
    Constable Clayton's inexperience, and the fact that the accused was extremely
    forthcoming concerning his control of the grow operation lead me to conclude
    that the trial judge made no error in finding that the officers acted in good
    faith: see
R. v. Tang
(2001), 153 B.C.A.C. 6, 2001 BCCA 165
    at paras. 11-13.  This was not a case in which the police were acting
bona
    fide
but unreasonably, as occurred in
R. v. Bohn
(2000),
    145 C.C.C. (3d) 320, 2000 BCCA 239, or
R. v. Mann
, [2004] 3
    S.C.R. 59.  There was nothing "casual" or "flagrant" about
    the police behaviour; indeed, it appears they had been trying seriously to
    do what was required of them.  Considering all of the circumstances in which
    these violations of the
Charter
occurred, they do not attain
    the level of seriousness that would lead to a finding that the evidence is
    inadmissible.  As Hall J.A. noted in
R. v. Tang
at para.
    15:

. . .
appellate courts should not
    too readily interfere with the decision of trial judges with respect to the
    application of s. 24(2), unless it were to be found that the trial judge
    had made an unreasonable finding of fact or legal error in applying s. 24(2).
    The decision of the trial judge is to be given proper defence.

In this case, as in
R. v. Tang
, the trial
    judge made a decision that was open to her, on the evidence.

[20]

The charges on which Mr. Groat was convicted may not be regarded
    as serious charges by some, but cultivation of marihuana for the purpose of
    trafficking is now a very serious problem in this province.  The maximum term
    of imprisonment for which Mr. Groat could have been sentenced was substantial.
    The evidence was essential to the proof of the Crown's case and had the accused
    not given his consent to the search, the officers could in all likelihood
    have simply gone and obtained a search warrant.  To insist that the evidence
    be excluded because he was so forthcoming in speaking to them would be to
    take technicality to an absurd level and would in my view bring the administration
    of justice into disrepute.  (See David Watt,
Watt's Manual of Criminal
    Evidence
(2005) at §41.07.)

[21]

In these circumstances, I conclude that the appellant's statements
    and the real evidence were properly admitted.  I would dismiss the appeal,
    with thanks to counsel for their able arguments.

The Honourable
Madam Justice Newbury

I Agree:

The Honourable
Madam Justice Rowles

I Agree:

The Honourable
Madam Justice Levine


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Moore,

2006
          BCCA 44

Date: 20060124

Docket: CA33398

Between:

Regina

Respondent

And

Sherman
    John Moore

Appellant

Before:

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Huddart

The
          Honourable Mr. Justice Low

Oral Reasons for Judgment

J.
          Phillips

Counsel for the Appellant

K.
          Madsen

Counsel for the (Crown) Respondent

Place
          and Date:

Victoria, British Columbia

24 January 2006

[1]

NEWBURY, J.A.:
Mr. Moore seeks leave to appeal his sentences
    on a total of nine counts to which he pleaded guilty, ranging from mischief
    to break and enter.  They took place at various places in the Province over
    the period between March 2004 and May 2005.  The final offence took place
    near Penticton when Mr. Moore, driving a stolen car, stole $100 worth of gas
    and then sped off, went through a traffic signal or sign, and caused a very
    serious motor vehicle accident, destroying the car he was driving and the
    second car as well.  Mr. Moore then took off on foot from the scene.

[2]

The following sentences were imposed:

1.
    Taking a motor vehicle without the owner's consent:  30 days imprisonment.

2.
    Mischief (2 counts) and theft (at Chilliwack):  each 90 days consecutive to
    the sentence on the first sentence for the taking of a motor vehicle.

3.
    Breaking and entering (at Golden):  9 months consecutive to the other sentences.

4.
    Possession of housebreaking tools:  6 months consecutive.

5.
    The charges arising from the Penticton incidents, including possession of
    stolen property over $5,000, theft under $5,000 and failing to stop at an
    accident:  12 months.

(I note for the record that the warrant of committal
    erroneously states a 12-month sentence for the possession of housebreaking
    tools and should say six months on count 131144-2-CT.)  The sentences add
    up to 31 months all together.  Since the appellant served four months in custody
    before the sentencing, Ms. Phillips equates it to 39 months, using the double-credit
    guideline.

[3]

The appellant was age 32 at the time of sentencing and has an adult
    record, dating back to 1991, of some 21 offences, the longest previous sentence
    having been two years.  He is yet to be tried in Alberta on charges stemming
    from his apparent involvement in the theft of a truck and the driving of the
    vehicle through a stop sign where it collided with another truck, killing
    Mr. Moore's passenger and seriously injuring the other driver.  Evidently,
    Mr. Moore was seriously injured and suffered brain damage, which is an important
    factor in his lawyer's submission on this appeal.  The sentencing judge was
    told of this incident and of the opinion of the treating doctors that Mr.
    Moore requires ongoing treatment for the brain injury.

[4]

The sentencing judge was not terribly impressed with this submission
    that Mr. Moore needed the opportunity to have such treatment and "get
    back to normal".  At para. 4 of his Reasons, he stated:

[4]
    Notwithstanding the possibility of a treatment program for which he is on
    the waiting list, defence counsel refers to giving him an opportunity to get
    back to normal.  It is clear to me that "getting back to normal"
    means absolutely no change in his behaviour in the community.  His pattern
    has been consistent, as I have said, throughout his adult life, one offence
    after another notwithstanding whether he is on probation, parole or completely
    free of restrictions.  A penitentiary term is required to reflect the principles
    that I have referred to and to adequately protect the public, and this is
    true notwithstanding the fact that he has spent four months in custody.

The Court also found that a conditional sentence order
    would not be appropriate, noting that Mr. Moore's record showed him incapable
    of complying with "community-based supervision", and that since
    he reverts to crime when he is under stress (such as his addiction to drugs),
    the public requires greater protection than a CSO would provide.  Then followed
    the pronouncement of the sentences I have listed, together with a four-year
    driving prohibition and a one-year probation order.

[5]

On appeal, Ms. Phillips submitted that the learned trial judge erred
    in failing to take the pre-trial custody time into account; by failing to
    give adequate weight to Mr. Moore's need for rehabilitation, in particular
    his need for the brain injury treatment (which would apparently consist of
    a program of counselling); and failing to take into account the principle
    of totality.

[6]

I am not persuaded the trial judge erred on any of these bases.  He
    did refer, albeit in passing, to the fact of the pre-trial custody, noting
    that a penitentiary term was needed to protect the public nevertheless.  It
    was not necessary for him to expressly state that he was giving the double
    credit and he may be taken to be aware of the usual rule.

[7]

The more important ground was Mr. Moore's need for treatment.  This
    might have been more of a concern had his conduct suddenly changed for the
    worse after the Alberta accident, but that is not the case.  Mr. Moore appears
    to have very long-standing problems with impulse control, anger management
    and substance abuse.  Whether his doctors are aware of his past record I do
    not know, but in my view the trial judge's emphasis on public protection was
    entirely justified.  Nor were we given any evidence that the counselling he
    would receive in the federal corrections system would be harmful to his recovery
    from the brain injury or counterproductive to any treatment he might receive.

[8]

As far as the totality principle is concerned, I do not agree that
    the aggregate sentence here is a "crushing" one not in keeping with
    Mr. Moore's record and prospects.  This appellant has a serious record and
    has committed several offences endangering the public.  The cumulative sentence
    has not been shown to be unfit in my view.  Those offences that
were
connected were sentenced as a piece; the others were not, and rightly so.
    To reduce the total sentence below what it would have been had the unrelated
    sentences been tried separately would be to reward the appellant for re-offending.
    This we should not do.

[9]

Counsel are agreed the trial judge did err in imposing a probation
    order, given s. 731 of the
Criminal Code
and s. 139(1) of the
Corrections and Conditional Release Act
, see
R. v. Pawlak
,
    [2005] BCJ. No. 2251.  As well, assuming the four-year driving prohibition
    was imposed under the
Code
, the duration of the prohibition
    must be reduced to three years in accordance with s. 259(2)(c).  To that extent,
    and that extent only, I would grant leave and allow the appeal.  As for the
    balance of the appeal, I would dismiss it.

[10]

HUDDART, J.A.
:  I agree.

[11]

LOW, J.A.
:  I agree.

The
    Honourable Madam Justice Newbury

Correction:
03 February 2006

In reasons for judgment dated January 24,
    2006
, the following changes
    should be noted:

The list of Counsel has been corrected and
    should read as follows:

J.
          Phillips

Counsel for the Appellants

K.
          Madsen

Counsel for the (Crown) Respondent