Citation:

R. v. Hyatt and Pawlak

Date:  20030116

2003 BCCA 27

Docket:  CA028675CA28824

COURT OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

REGINA

RESPONDENT

AND:

STEVEN
            ALLEN HYATT

ADRIAN
            EDWARD PAWLAK

APPELLANTS

Before:

The Honourable Mr. Justice Low

The Honourable Madam Justice Levine

The Honourable Mr. Justice Smith

M.F. Allen

P.E. Pearson

Counsel
            for the Appellant Hyatt

Counsel
            for the Appellant Pawlak

W.F. Ehrcke, Q.C.

Counsel
            for the (Crown) Respondent

Place and Date of Hearing:

Victoria, British
        Columbia

November 27, 2002

Place and Date of Judgment:

Vancouver, British
        Columbia

January 16, 2003

Written Reasons by:

The Honourable Mr. Justice Smith

Concurred in by:

The Honourable Mr. Justice Low

The Honourable Madam Justice Levine

Reasons for Judgment of the Honourable
      Mr. Justice Smith:

Introduction

[1]

It
        is not disputed that the appellants committed the offences of which they
        were convicted.  They say, however, that the real and testimonial evidence
        by which the Crown proved their guilt should have been excluded by the
        trial judge as a result of violations of their Charter rights and those
        of the vital Crown witness, and that they are entitled to acquittals
      or to a new trial.

Background

[2]

The
        appellants were convicted on June 4, 2001,
        by Madam Justice Neilson of the Supreme Court, following a joint trial
        on a four-count indictment, of robbery with a firearm contrary to s.
        344(a) of the Criminal Code and of having their faces masked with intent
        to commit
        an indictable offence contrary to s. 351(2).  As well, Pawlak was convicted
        of possessing a prohibited weapon, a sawed-off shotgun, contrary to s.
      91(2).

[3]

The
        charges stem from an armed robbery of a convenience store in Campbell
        River, B.C. in the early morning hours of Friday, January 7, 2000.  Two masked men
        entered the store, one carrying a rifle.  The latter threatened the store
        clerk with death and scooped some bills and rolls of coins out of the till.  The
        other man grabbed several packages of cigarettes from the shelves.  The
        men left when the clerk told them that she was unable to open the safe.  The
        clerk called 9-1-1 immediately
        and provided a description of the men and their clothing, which was relayed
      to the police officers who were dispatched to the scene.

[4]

As
        the clerk was unable to identify the robbers, the trial judge based the
        convictions on the subpoenaed testimony of Pawlaks girlfriend, Ms. Bennett,
        and on real evidence discovered after she and the appellants became the
      focus of the police investigation.

[5]

Ms.
        Bennett, who was with the appellants when they planned the robbery, drove
        the appellants to the store in her automobile and, following the robbery,
        drove them to a lake near town. There, the appellants divided the spoils.  They
        hid the coins and the cigarettes in the glove box of Ms. Bennetts vehicle
        and put the clothing worn in the robbery in a knapsack, which they hid
        in the trunk with the shotgun.  As Ms. Bennett drove along a logging road
        to take them back to town, they were stopped by two members of the R.C.M.P.  This
        encounter occurred about two kilometres from the scene of the crime at
        about 5:00 a.m., approximately
      forty minutes after the robbery.

[6]

Constable
        Jaques and Constable Desroches of the R.C.M.P. had been dispatched to
      the scene of the robbery and, after searching for the robbers in the immediate
        area, had broadened their search in their police vehicle when they came
        upon Ms. Bennett and her passengers.  They, and other officers who joined
        them shortly afterward, conducted searches and elicited statements from
        each of the three occupants of the Bennett vehicle at the scene.  The searches
        turned up the coins and the cigarettes in the glove compartment.  That
        discovery, along with some of Ms. Bennetts responses to their questions,
        provided what the police considered to be reasonable and probable grounds
        for arrest.  After arresting the appellants, the police searched them
      and found several bills in their pockets.

[7]

The
        questioning of the suspects at the scene was carried out in violation
      of their s. 10(b) Charter right to legal assistance.  Ms. Bennett, in particular,
        was persistently questioned even after she had advised that she wanted
        to speak to a lawyer before answering.  After Ms. Bennett was transported
        to the police station and lodged in the cells, she was able to contact
        a lawyer by telephone. She advised the police that, on her lawyers advice,
        she did not wish to speak with them until he could attend at the station
        to see her.  Nevertheless, the police continued their pressing and, at
        times, manipulative, attempts to persuade her to talk.  Against Ms. Bennetts
        express wishes, the police called her mother to the station and enlisted
        her assistance.  As Ms. Bennett continued to refuse to cooperate, the police
        decided that they would attempt to obtain an unwarned statement from
        her that they hoped would incriminate the appellants. Finally, about twelve
        hours after her initial detention and without speaking to her lawyer again,
        she yielded and provided a recorded statement in which she disclosed her
        knowledge of the relevant events.  After making the statement, she was
      charged.

[8]

The
        police obtained a search warrant and searched Ms. Bennetts vehicle.  They
        seized the coins and cigarettes from the glove box and, as well, the
      shotgun and the clothing from the trunk.

[9]

Ms.
        Bennett was released from custody on Monday morning, three days after
      the robbery.  The charges against her were subsequently stayed and, as
      I have already noted, she was subpoenaed to testify for the Crown at the
      trial.

Discussion

[10]

The
      appellants submit that the trial judge erred in failing to exclude the
      real and testimonial evidence pursuant to s. 24(2) of the Charter because
        of breaches of their rights and of Ms. Bennetts rights under ss. 8,
      9,
        and 10(b) of the Charter.  Further, they contend that the trial judge
        should have excluded Ms. Bennetts testimonial evidence pursuant to s-ss.
        24(1)
        or (2) on the ground that its admission violated their rights under ss.
        7 and 11(d) or because it was obtained in a manner that amounted to an
      abuse of process.

[11]

Section 24 of the Charter provides:

24.  (1)
        Anyone whose rights or freedoms, as guaranteed by this Charter, have
      been infringed or denied may apply to a court of competent jurisdiction
      to obtain
      such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings
        under subsection (1), a court concludes that evidence was obtained in a
        manner that infringed or denied any rights or freedoms guaranteed by this
        Charter, the evidence shall be excluded if it is established that, having
        regard to all the circumstances, the admission of it in the proceedings
      would bring the administration of justice into disrepute.

1.   The alleged breach of the appellants s. 9 Charter right not
      to be arbitrarily detained.

[12]

The
      appellant Hyatt submits that the initial stop of the Bennett vehicle was
      an arbitrary detention within s. 9 of the Charter and that all of the
        evidence obtained as a result should have been excluded pursuant to s.
        24(2).  The trial judge rejected this submission.  She concluded that
        Constable Desroches had articulable cause to stop the Bennett vehicle
        in the course
      of her investigation of the robbery.

[13]

The concept of articulable cause as justification for an investigative
        detention is derived from the reasons for judgment of Doherty J.A. in R.
        v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), in which he said, at
      p. 501, after a review of relevant authorities:

These cases require a constellation of objectively
        discernible facts which give the detaining officer reasonable cause to
        suspect that the detainee is criminally implicated in the activity under
      investigation.

He went on
        to observe that the requirement of objective criteria serves to avoid
        indiscriminate and discriminatory exercises of the police power to arrest,
        and that purely subjective assessments, such as a hunch based solely
      on intuition gained by experience, will not suffice.

[14]

In R. v. Ferris (1998), 126 C.C.C. (3d) 298 (B.C.C.A.), Ryan J.A.,
        speaking for the Court on this point, noted that the question is whether
        the police conduct was justifiable, which will depend on whether it was
        reasonably necessary (paras. 34-35), and expressly agreed with Mr. Justice
        Dohertys formulation of the articulable cause test for justifiability
      (paras. 37-39).

[15]

The
      appellant Hyatt relies on the testimony of Constable Desroches, given during
      her cross-examination, in which she acceded to counsels characterization
        of her basis for stopping the vehicle as a hunch and a suspicion.  Thus,
        he contends, the constable admitted that she did not have articulable cause.  The
      trial judge dealt with this submission as follows:

[106] I appreciate that on cross-examination
        Constable Desroches agreed with defence suggestions that she was acting
        on a hunch or a suspicion.  I do not think the fact that those words are
        placed in a witnesss mouth by effective cross-examination always dictates
        a conclusion that there was no objective basis for articulable cause.  Any
        investigative detention is based to some extent on suspicion. The question
      is whether that suspicion is supported by adequate objective grounds.

[16]

The
      trial judge found that objective grounds existed for the officers to stop
      Ms. Bennetts vehicle.  She said:

[103] Campbell River is a town of some thirty
        thousand inhabitants.  This was not a random stop.  A serious offence had
        just occurred.  The police had a limited description of the perpetrators,
        and the two males in the Bennett vehicle matched this description in terms
        of their age, gender, and race. I do not accept the defence contention
        that Constable Desroches decision to stop the vehicle in part because
        of those personal characteristics constituted the type of discriminatory
        conduct referred to by Mr. Justice Doherty at page 502 of R. v. Simpson.  Rather,
        those personal criteria matched identifying factors in the limited description
      of the robbers available.

[104] The time and location were also appropriate
        factors to consider in the decision to stop the vehicle, both in terms
        of their proximity to the location of the robbery, and the question of
        legitimate activity in the area of the logging roads at that hour of the
      morning.

[17]

That these objective factors were in the mind of Constable Desroches
        when she decided to stop the vehicle was clear on the evidence. For example,
        after counsel for Pawlak had Constable Desroches testify that she sometimes
        stopped drivers randomly to check for licences and registration certificates
        on mere suspicion of non-specific criminal activity, the following exchange
      occurred:

Q. Okay. And thats really what was going
        on here, is that right?  You saw these people, you thought: Well, maybe
        theyre some people up to no good, well pull them over, and it seemed
      like a good check, is that right?

A. Well, theres some other grounds there.  Theyre
        in the vicinity, theyre on a logging road at 5 a.m. in the morning,
      theres two Caucasian late-teen males in the vehicle...All of that kind
      of combined
      with the fact that we had an armed robbery in the vicinity.

[18]

In
      my view, the trial judges conclusion that the detention was justified
      is fully supported by the evidence.  I would reject this ground of appeal.

2.   The alleged breach of the appellants s. 10(b) Charter right
      to legal assistance.

[19]

The
      appellant Hyatt contends that the items seized from the glove box and the
      testimonial evidence of Ms. Bennett constitute derivative evidence
        obtained as a result of questioning of the appellants in violation of
      their s. 10(b) Charter right to counsel.  He says that this produced an
      unfair effect on the trial and that the items should have been excluded
      from evidence
      pursuant to s. 24(2).

[20]

Derivative
      evidence is generally understood to be evidence that would not have been
      found but for a violation of the accuseds constitutional
        rights.  Thus, in R. v. Burlingham, [1995] 2 S.C.R. 206, 97 C.C.C. (3d)
        385, a gun used in a murder was excluded from evidence pursuant to s. 24(2)
        where its location was disclosed by the accused in a statement made in
        the course of a violation of his s. 10(b) Charter right and the police
        would not have found the gun but for the statement.  Similarly, a later
        statement to a third party that fixed the accused with knowledge of the
        guns location was excluded because he would not have made the statement
        had he not been tricked into cooperating with the police in violation
      of his right to legal assistance.

[21]

In
      considering the question of whether the accuseds statement to the third
      party was too remote from the Charter breach to come within s.
        24(2), Sopinka J., writing for the majority in Burlingham, quoted a passage
        from the reasons of Dickson C.J.C. in R. v. Strachan, [1988] 2 S.C.R.
      980, 46 C.C.C. (3d) 479, that reflects the appellants submission here.  At
      para. 41, Sopinka J. said:

R. v. Strachan concerned
        the admissibility of evidence (marijuana) obtained as a result of a valid
        search during which the accuseds right to counsel was violated.  Dickson
        C.J.C. made it clear that a strict causal analysis is not necessary in
        a s. 24(2) analysis and that the presence of a temporal connection is not
      determinative.  He stated at pp. 1005-6:

In my view, all of
        the pitfalls of causation may be avoided by adopting an approach that focuses
        on the entire chain of events during which the Charter violation occurred
        and the evidence was obtained ... A temporal link between the infringement
        of the Charter and the discovery of the evidence figures prominently in
        this assessment, particularly where the Charter violation and the discovery
        of the evidence occur in the course of a single transaction ... [However]
        [t]here can be no hard and fast rule for determining when evidence obtained
      following the infringement of a Charter right becomes too remote.

Sopinka J.
        concluded that the statement, although only remotely connected to the
      Charter breach, would directly affect the fairness of the trial because
      its admission
        would allow the Crown to prove indirectly what it could not prove directly,
        that is, that the accused knew where the gun was hidden.  Thus, the right
        of the accused to have the Crown overcome the presumption of innocence
      without his assistance was preserved by excluding the statement.

[22]

The
      Supreme Court returned to the question of proximity in R. v. Goldhart,
      [1996] 2 S.C.R. 463, 107 C.C.C. (3d) 481, where the issue was whether the
        viva voce testimony of a witness, who was found during a police search
        of premises containing a marijuana grow operation in violation of the
      accuseds
        s. 8 right, should be excluded pursuant to s. 24(2).  Sopinka J., writing
        for a unanimous Court, observed (at para. 40) that evidence will be excluded
        under s. 24(2) only where there exists a sufficiently strong link between
        the Charter breach and the discovery of the evidence and that causal and
        temporal connections are factors in the analysis.  He distinguished between
        the discovery of a witness and the witnesss subsequent testimony.  At
      para. 43, he said:

... The discovery of the person cannot simply
        be equated with securing evidence from that person which is favourable
        to the Crown.  The person charged has the right to remain silent and in
        practice will usually exercise it on the advice of counsel.  The prosecution
        has no assurance, therefore, that the person will provide any information
        let alone sworn testimony that is favourable to the Crown.  In this regard
        it has been rightly observed that testimony cannot be treated in the
      same manner as an inanimate object.

[23]

The causal and temporal connections between the discovery of a witness
        and the subsequent testimony of the witness are generally tenuous and remote,
        as Sopinka J. pointed out (at para. 45), because the material event for
        purposes of the Charter analysis is not the discovery of the witness but
        the intervening decision of the witness to testify, and because the knowledge
        of the witness cannot be discovered unless and until the witness voluntarily
      discloses it.

[24]

A
      similar approach was taken by this Court in R. v. P.(E.K.) and B.(T.P.)
        (1989), 72 C.R. (3d) 182 (B.C.S.C.), affirmed sub nom R. v. P. (E.K.)
      (18 March, 1992), Vancouver No CA010676/CA010678 (B.C.C.A.), [unreported],
        a case involving a violation of the rights of a witness, which the trial
        judge considered to be similar to the case at bar.  In that case, the two
        accused were charged with a murder that was witnessed by the brother of
        one of them.   The police breached the brothers rights under the Charter
        and under the Young Offenders Act by interfering with his contact with
        his mother and his counsel. As well, they deceived him and tricked him
        to obtain his statement.  The trial judge in that case rejected a submission
        that the brother should be prohibited from testifying on the basis that
        the police misconduct toward him amounted to a violation of the rights
        of the accused and because they were entitled to have the investigation
        conducted in a lawful manner.  In dismissing an appeal, Cumming J.A.
      said, at p. 2:

In my view the learned trial judge arrived
        at the proper conclusion for the reasons which he gave.  The evidence of
        the witness [M.P.] and his knowledge of the events which he witnessed did
        not result from any Charter breach.  His knowledge existed prior to any
        police investigation. His viva voce evidence was not obtained through any
        breach of the Charter.  There was therefore no basis to exclude his viva
      voce evidence pursuant to s. 24.

Those comments
      are apt here.

[25]

Moreover, in R. v. Goldhart, Sopinka J. said that, at para.40, that:

... the strength of the connection between
      the evidence obtained and the Charter breach is a question of fact.

[26]

Here, the cigarettes and coins seized from the glove compartment on
        the execution of the search warrant were first discovered by Constable
        Jaques when he opened the compartment after ordering the appellants out
      of the car during the initial investigative detention.

[27]

The
      trial judge rejected the submission that the evidence should be excluded
      under s. 24(2).  She concluded that Constable Desroches questioning
        of the appellants at the scene was conducted in violation of their s. 10(b)
        right to counsel and, as a result, she ruled their statements inadmissible.  However,
        after adverting to their submission that the search of the glove box
        was part of a chain of events and was an inevitable consequence of this
        violation
      of their rights, she said:

[130] The problem I have with that argument
        is that on the facts here I do not see a sufficient link between Constable
        Desroches breach of their s. 10 rights and Constable Jaques decision
        to search the glove box.  There is no evidence that Constable Desroches
        advised Constable Jaques of the information she received from Mr. Hyatt
        and Mr. Pawlak before Constable Jaques searched the glove box.  All of
        the facts point to the conclusion that his decision to conduct that search
      was independent of any information provided by Mr. Hyatt and Mr. Pawlak.

[28]

Later in her reasons, the trial judge referred to R. v. Goldhart and
      said:

[192] I have found that at the time the glove
        box was searched, the s. 10 rights of both Mr. Hyatt and Mr. Pawlak had
        been breached when Constable Desroches asked them questions about their
        activities that evening without advising them of the reasons for their
        detention or their right to counsel.  However, I cannot see how it can
        be said that that Charter violation led to the discovery of the items in
        the glove box.  It was Constable Jaques who searched the glove box, and
        there is no evidence his decision to do so was influenced by the prior
        conversation between Constable Desroches and Mr. Hyatt and Mr. Pawlak.  Constable
        Desroches and Constable Jaques both testified that she did not pass on
        the contents of these statements to Constable Jaques before he searched
      the glove box.

[192] Accordingly, I am unable to find that
        it is derivative evidence procured in a matter [sic] which infringed Mr.
      Hyatts and Mr. Pawlaks Charter rights.

[29]

The
      trial judge also rejected the submission that Ms. Bennetts testimony was
      derivative evidence.  She said:

[194] The situation is similar with respect
        to Ms. Bennetts testimonial evidence.  Her potential as a witness in this
        case was apparent as soon as her vehicle was stopped and she was found
        in the company of the two accuseds.  I have found that that detention was
        justifiable, and discovery of her as a witness with some knowledge of the
        events of that evening thus occurred before any breach of the Charter rights
        of either accused.  Her evidence in court would be available by issuing
        a subpoena to her, based on that knowledge, regardless of any Charter violations
        which followed.  Accordingly, I do not see a basis on which Mr. Hyatt
        and Mr. Pawlak can claim that her oral evidence in this proceeding was
        obtained
        in a manner that infringed their Charter rights and is therefore derivative
      evidence.

[30]

The
      trial judges reference to R. v. Goldhart demonstrates that she was aware
      of the governing principles in this analysis and her findings
        are supported by the evidence.  I am not persuaded that she erred and
      I would reject this submission.

3.   The alleged breach of the appellants s. 8 Charter right to be
      free from unreasonable search and seizure.

[31]

The appellants submit that the trial judge erred when she concluded
        that Pawlak had no standing to challenge the legality of the search of
        the glove box in Ms. Bennetts vehicle because he had not established the
      requisite reasonable expectation of privacy.

[32]

The
      leading case on the elements of a claim that evidence should be excluded
      for a breach of s. 8 of the Charter is R. v. Edwards, [1996] 1
        S.C.R. 128, 104 C.C.C. (3d) 136, which involved a search of an apartment
        occupied by the girlfriend of the accused in violation of her s. 8 right.  Despite
        the unlawfulness of the search, drugs discovered in the apartment were
        admitted in evidence against the accused on a charge of possessing drugs
        for the purpose of trafficking.  The accuseds appeal from conviction
        was dismissed on the basis that he had failed to prove a reasonable expectation
        of privacy in the drugs or in his girlfriends apartment and, therefore,
      had no standing to seek exclusion of the evidence under s. 24(2).

[33]

In what has become the prevailing summary of relevant principles,
      Cory J. said, at para. 45 in R. v. Edwards:

A review of the recent
        decisions of this Court and those of the U.S. Supreme Court, which I
      find convincing and properly applicable to the situation presented in the
      case
        at bar, indicates that certain principles pertaining to the nature of
      the s. 8 right to be secure against unreasonable search or seizure can
      be derived.  In
      my view, they may be summarized in the following manner:

1.   A claim for
        relief under s. 24(2) can only be made by the person whose Charter rights
      have been infringed.  ...

2.   Like all Charter
        rights, s. 8 is a personal right.  It protects people and not places.
      ...

3.   The right to
        challenge the legality of a search depends upon the accused establishing
      that his personal rights to privacy have been violated. ...

4.   As a general
        rule, two distinct inquiries must be made in relation to s. 8.  First,
        has the accused a reasonable expectation of privacy.  Second, if he has
        such an expectation, was the search by the police conducted reasonably.
      ...

5.   A reasonable
        expectation of privacy is to be determined on the basis of the totality
      of the circumstances. ...

6.   The factors
        to be considered in assessing the totality of the circumstances may include,
      but are not restricted to, the following:

(i)

presence
      at the time of the search;

(ii)

possession
      or control of the property or place searched;

(iii)

ownership
      of the property or place;

(iv)

historical
      use of the property or item;

(v)

the
        ability to regulate access, including the right to admit or exclude others
      from the place;

(vi)

the
      existence of a subjective expectation of privacy; and

(vii)

the
      objective reasonableness of the expectation.

...

7.   If an accused
        person establishes a reasonable expectation of privacy, the inquiry must
        proceed to the second stage to determine whether the search was conducted
      in a reasonable manner.

[Citations omitted]

[34]

In
      R. v. Belnavis, [1997] 3 S.C.R. 341, 118 C.C.C. (3d) 405, the Court applied
      this reasoning to a search of a motor vehicle and concluded that
        a passenger had no standing to advance a s. 8 claim in respect of stolen
        property found in the back seat of anothers automobile because she had
        no reasonable expectation of privacy in the vehicle.  The Court observed
        that the reasonable expectation of privacy in an automobile is much less
      than that in a residence.

[35]

The appellant Pawlak submits that the trial judge misapplied these
      decisions in the circumstances of this case.

[36]

Pawlak contends, first, that the trial judges focus on his expectation
        of privacy in the vehicle led her to conclude erroneously that he had no
      reasonable expectation of privacy in the glove box or its contents.

[37]

In support of this submission, Pawlak referred to a passage in the
        trial judges reasons where she said that he had to establish a reasonable
        expectation of privacy, both with respect to the vehicle and the items
        in the glove box. However, while the trial judge did pose the issue in
        those terms at one point in her reasons, it is clear from her reasons as
        a whole that she gave discrete consideration to Pawlaks asserted right
        of privacy in the vehicle itself, on the one hand, and in the glove box
      and its contents, on the other.

[38]

Next,
      Pawlak submits that the trial judge erred in her conclusion that he had
      not established a reasonable expectation of privacy in the
        glove box and its contents.  The gist of this submission is that she
        gave insufficient consideration to his subjective expectation of privacy
        based
        on his having placed the items in the glove box in order to hide them
        from the police; on his ownership of the items in the glove box, including
        his purchase of some of the cigarettes therein from Hyatt after the
        robbery;
        and on his assertion that, since the glove box was immediately in front
      of his seat and within arms reach, it was under his control.

[39]

The
  trial judge said:

[124]...First, as pointed out in paragraph
        39 of Belnavis, a reasonable expectation of privacy in a vehicle is greatly
        reduced from that attaching to a home. Second, while Mr. Pawlak had a
      history of using the vehicle with its owner, this was over a relatively
      short period
        of three weeks and always in her company.  He did not have an extended
        relationship with the driver or the vehicle.  He had no ownership interest
        in the vehicle and no right to use it when Ms. Bennett was not present.  He
        had no right to regulate access to it. While I appreciate he had a subjective
        expectation of privacy in hiding the items in the glove box, I do not
        find this was objectively reasonable, given the other circumstances I
      have outlined.

[125] I am not convinced that the evidence
        establishes a sufficient proprietary interest in the items in the glove
        box to enhance his claim to an expectation of privacy.  He had possessed
        them for less than an hour. It is questionable that he owned them, given
        the fact they had been stolen, and it is certain that he had no historical
        use of them. While he may have had a subjective expectation of privacy
        based on his desire to hide them from detection, I find that fact insufficient
      to establish the objective reasonableness of that expectation.

She concluded
        that Pawlak had not established a reasonable expectation of privacy in
      the vehicle or in the glove box and its contents.

[40]

I cannot agree with Pawlaks submission that the trial judge failed
        to consider the totality of the circumstances and that she relied on
        historic proprietary factors to the exclusion of a dynamic and flexible
        analysis of the situation. In my view, she properly applied the relevant
      principles from R. v. Edwards and R. v. Belnavis.

[41]

Pawlaks
      submission, in effect, invites this Court to substitute its conclusions
      of fact for those of the trial judge.  He says that the factors
        that he relied upon to establish a proximal link to the stolen items in
        the glove box rendered his subjective expectation of privacy in those items
        reasonable.  What is reasonable is quintessentially a question of fact.  In
        rejecting his submission, the trial judge considered all of the factors
        upon which he relied. I see no basis upon which we could interfere with
      her conclusions and I would reject this submission.

4.   The breaches of Ms. Bennetts Charter rights.

[42]

The next question is whether the learned trial judge erred in failing
        to exclude the real evidence found in Ms. Bennetts vehicle and her testimonial
        evidence under s. 24(2) on the ground that they were obtained in violation
      of Ms. Bennetts rights.

[43]

The
      trial judge was critical of the investigative tactics employed by the police,
      particularly in relation to Ms. Bennett. She said that Ms.
        Bennett was relentlessly pressured to give a statement without regard
        for her rights and that the police questioning of Ms. Bennett showed
      a blatant disregard for her rights.  She concluded that the search warrant
        for Ms. Bennetts vehicle was defective because the information in support
        of the warrant was replete with facts obtained in the breaches of her
        Charter rights. She agreed with defence counsels characterization of
        the multiple breaches of Ms. Bennetts rights under ss. 8 and 10(b) of
        the Charter as wilful, serious, and in some cases policy-based.  In
        the view of the trial judge, had charges proceeded against Ms. Bennett,
        there
        was no doubt that her statements and the real evidence recovered from
      her vehicle would have been ruled inadmissible against her.

[44]

The appellants submit that the real evidence and Ms. Bennetts testimony
        derived from a continuous chain of Charter breaches beginning with the
        initial stop of Ms. Bennetts vehicle, and that the breaches of Ms. Bennetts
        rights were so egregious that that they should be entitled to rely upon
        them as the basis for excluding the evidence pursuant to s. 24(2) of the
      Charter.

[45]

The
      difficulty with this submission is that R. v. Edwards, supra, established
      that Charter rights are personal and cannot be asserted by
        anyone except the person whose rights are violated.  The appellants seek
        to overcome this obstacle by reference to R. v. Thompson, [1990] 2 S.C.R.
        1111, 59 C.C.C. (3d) 225, which they submit is authority for the proposition
        that standing in respect of s. 24(2) will be granted to an accused in relation
        to the breach of a third partys Charter rights when justice cannot otherwise
        be done.  However, standing was not an issue in Thompson, which involved
        a challenge by the persons accused to the admissibility of wiretap evidence
        of their own conversations. The s. 8 privacy rights of innocent third parties
        were implicated only on the question of whether a wiretap on a public pay
        phone constituted an unreasonable search.  Thus, this decision does not
        assist the appellants and the conclusion of the trial judge that they
      have no standing on this issue is unassailable.

[46]

Moreover,
      even if the appellants had standing in respect of Ms. Bennetts testimony,
      the testimony was not obtained as a result of any Charter breach,
        as the trial judge demonstrated in her reasons for rejecting the submission
      that the testimony was derivative evidence.

[47]

The rationale underlying the exclusion of derivative evidence is
        that the Crown cannot, through violating the rights of an accused, enlist
        the assistance of the accused in building the case against him.  This
        foundational policy does not apply to testimony discovered as a result
        of violations
      of the rights of a third party.

[48]

Accordingly, as the appellants have no standing under s. 24 to rely
        on breaches of Ms. Bennetts Charter rights and as Ms. Bennetts testimony
        was not produced as a result of any breach of her Charter rights in any
        event, I would reject the appellants submission that the real evidence
        and Ms. Bennetts testimony should be excluded pursuant to s. 24(2) on
      this ground.

5.   Whether the admission of Ms. Bennetts testimony violated the
        appellants rights under s. 7 or s-s. 11(d) or whether it amounted to
      an abuse of process.

[49]

The
      appellants submit that the admission of Ms. Bennetts testimony violated
      their liberty rights in a manner that is not consistent with the
        principles of fundamental justice under s. 7 or violated their guarantee
        of a fair trial under s-s. 11(d).  As well, they contend that police
        misconduct in obtaining Ms. Bennetts testimony was so egregious as to
        amount to an
      abuse of process.

[50]

The
      trial judge concluded that breaches of a witnesss Charter rights or other
      abusive treatment of a witness by the police could lead to exclusion
        of the witnesss testimony under the rubric of trial fairness only where
        the effect of the state behaviour casts doubt on the reliability or veracity
        of the witnesss testimony.  She refused to exclude the testimony of
      Ms. Bennett because she concluded that it was reliable and truthful.

[51]

The
      appellants submit that the trial judge erred in her conclusion that the
      test is whether the testimony of the witness is reliable and truthful.  As
        I understand their submission, the trial judge should have concluded
      that the police misconduct in relation to Ms. Bennett was so abusive that
      it
      irremediably taints the fairness of the trial.

[52]

The
      appellants did not develop the abuse of process argument before the trial
      judge, perhaps, as she said, because the core of such an argument
        remains the issue of trial fairness, which has been presented in the
      context of the ss. 7 and 11(d) argument.  She concluded, for the same
      reasons that she rejected the submissions on ss. 7 and 11(d), that this
      case was
        not one of the clearest of cases that would justify a judicial stay
      of proceedings.

[53]

The
      appellants have abandoned their claim to a judicial stay of proceedings.  Before
        this Court, they limited their claim to the remedy of exclusion of Ms.
      Bennetts testimony.

[54]

In
      R. v. Harrer, [1995] 3 S.C.R. 562, 101 C.C.C. (3d) 193, and in R. v. Terry,
      [1996] 2 S.C.R. 207, 106 C.C.C. (3d) 508, the Court considered
        the admissibility of evidence obtained abroad in a manner that did not
        meet Charter standards.  Although in neither case did the Court rule
        that the evidence should have been excluded, it did recognize that, apart
        from
        cases within s. 24(2), there may be cases in which the evidence is obtained
        in a manner that is so abusive as to amount to a violation of the principles
        of fundamental justice and of the guarantee of a fair trial under ss.
      7 and 11(d).

[55]

More
      recently, in R. v. Caster (2001), 159 C.C.C. (3d) 404, 2001 BCCA 633, this
      Court considered a submission that the testimony of a witness
        who had been tricked by the police should have been excluded.  There, the
        police deceived an acquaintance of the accused during a murder investigation
        by posing as friends of the accused and as the accuseds lawyer who, they
        said, wanted him to answer a list of questions.  The friend was taken in
        by the ruse and provided information to the police that implicated the
        accused in the killing.  He subsequently testified at the trial and the
        accused was convicted.  On appeal, it was argued that the police conduct
        amounted to an abuse of process and infringed the appellants right to
        make full answer and defence.  Further, the appellant contended that the
        admission of the witness testimony violated the principles of fundamental
        justice.  He sought a judicial stay of proceedings or, alternatively,
      exclusion of the testimony.

[56]

This
      Court dismissed the appeal, holding that the police conduct did not amount
      to an abuse of process and that the appellant had not established
        any impairment of his right to make full answer and defence arising out
        of the police conduct because the police conduct was not illegal; the
      police conduct was not designed to create evidence or to influence the
      witness
        memory or testimony; the witness knowledge existed regardless of the
      ruse perpetrated by the police; the witness testimony was not obtained
      other
        than by way of subpoena; and the appellant had not shown actual prejudice
        of such magnitude that the publics sense of decency and fairness is
      affected.

[57]

Those
      comments are equally applicable in this case.  In my view, the
        question of the credibility and reliability of Ms. Bennetts testimony
        goes to the issue of prejudice.  Here, after hearing Ms. Bennetts testimony
        on the voir dire pursuant to an agreement that it would be considered as
        evidence on the trial if the defence application to exclude it should fail,
        the trial judge concluded that her evidence was credible and reliable and
        would not affect the fairness of the trial.  It is difficult to see how
        this conclusion could be challenged in the circumstances presented here.  The
        appellants were not taken by surprise by Ms. Bennetts evidence.  Moreover,
        they cross-examined her at large on the voir dire and did not challenge
        her evidence on the substantive aspects of the offences. Rather, their
        cross-examination was limited to attempting to establish a basis for the
        exclusion of her testimony and of the real evidence found in her vehicle.  In
        my view, the appellants have failed to demonstrate that their right to
        make full answer and defence or their right to a fair trial were in any
      way diminished by the admission of Ms. Bennetts testimony.

[58]

Further,
      I am not persuaded that the appellants have established that an abuse of
      process occurred. In R. v. Jewitt, [1985] 2 S.C.R. 128 at 136-37,
        21 C.C.C. (3d) 7 at 14, the Court stated that the doctrine of abuse of
        process addresses the communitys sense of fair play and decency and
      the necessity that the courts process be free from abuse by oppressive
      and
        vexatious proceedings.  The doctrine should not be applied, the Court said,
        except in the clearest of cases.  It cannot be said that the trial judge
        erred in her conclusion that this case is not one of those cases.  Certainly,
        the conduct of the police in this case was no less egregious than the
        conduct of the police in R. v. Caster, supra, and this Court found that
        no abuse
      of process occurred there.

[59]

Thus, it is not necessary to consider the appellants forceful submission
        that the exclusion of testimonial evidence is an available remedy for the
      police conduct in this case.

Conclusion

[60]

For those reasons, I would dismiss the appeals.

THE HONOURABLE MR. JUSTICE
      SMITH

I AGREE:

THE HONOURABLE MR. JUSTICE LOW

I AGREE:

THE HONOURABLE MADAM JUSTICE LEVINE


Citation:

598543
          B.C. Ltd. v. 630350 Saskatchewan Ltd.

Date:
20030117

2003
          BCCA 30

Docket:

CA030370

Registry:
          Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

598543 B.C. LTD.

APPELLANT

(RESPONDENT)

AND:

630350 SASKATCHEWAN LTD.

630351 SASKATCHEWAN LTD. and

630352 SASKATCHEWAN LTD.

RESPONDENT

(PETITIONER)

Before:

The
          Honourable Madam Justice Saunders

(In
          Chambers)

G.J.
          Scharfstein

Counsel
          for the Appellant

G.T.
          Tucker

Counsel
          for the Respondent

Place
          and Date of Hearing:

Vancouver,
          British Columbia

December
          13, 2002

Place
          and Date of Judgment:

Vancouver,
          British Columbia

January
          17, 2003

Reasons for Judgment of the Honourable
    Madam Justice Saunders:

[1]

598543 B.C. Ltd. seeks directions as to whether it requires leave to
    appeal an order
nisi
, and if leave is required, seeks leave to appeal.
    In the event it obtains leave to appeal, it also seeks a stay of the order
nisi
.

[2]

I shall refer to the parties as the BC Company and Saskatchewan Companies
    respectively.

[3]

The order
nisi
was made in foreclosure proceedings concerning
    land in Kimberley, British Columbia, being developed as the Kimberley Ridge
    Property.  The land development contemplated construction and sale of condominium
    units.  The circumstances leading to and reasons for issuing the order
nisi
are set out by Chief Justice Brenner in his reasons for judgment thus:

. . . The mortgage is
    in the principal amount of 1.33 million dollars.  It has no periodic payments,
    but it has a maturity date of June 30, 2002.

The mortgage was
    entered into pursuant to a settlement agreement negotiated between the parties
    dated 12 December of 2000.  It is common ground between the parties that in
    the event of any conflict between the terms of the mortgage and the settlement
    agreement, the terms of the settlement agreement are to prevail.

The land in question
    was for a condominium development and the parties appeared to have contemplated
    that this development would take place in phases.  Phase 1 and 2 on the original
    tract of land, comprise twelve units each.  Those units have been sold.  The
    remaining portion of the original tract of land is the land that is the subject
    matter of this foreclosure proceeding.  There are plans for an additional
    three buildings containing twelve units each for that portion.

.
    .  .  .  .

One of the terms
    of the mortgage was that the property taxes be kept in good standing.  The
    affidavit filed by counsel for the petitioner shows that the property taxes
    currently in arrears total $20,366.00.  However, the affidavit filed in response
    by the principal of the respondent states that an arrangement exits with Kimberley
    relating to the payment of those taxes.  It appears to me that on the evidence
    before me and principally on the certificate issued by the City of Kimberley,
    that there are in fact taxes owing and that the mortgage is in breach by reason
    of that default.

The other question is whether the principal of the mortgage is now payable
    because the maturity date of June 30, 2002 has now passed.  It is submitted
    on behalf of the respondent that a portion of paragraph 7 of the settlement
    agreement effectively extends that date by reason of the settlement agreement
    provision.  Subparagraph (d) on page 9 of the settlement agreement provides
    that payment to the mortgage under the terms of the mortgage was to be deferred
    on Phase 1 of the Kimberley Ridge Project until within eight months of the
    date of the agreement.  Payment with respect to Phase 2 of the project was
    to be made on an eight month issuance of a commitment letter for the construction
    financing of Phase 2.  The paragraph then goes on, and these are the critical
    words at issue here, to provide that the same provision shall apply
mutatis
    mutandis
for all subsequent phases of the Kimberley Ridge Project.  Counsel
    for the respondent submits that this means that until a commitment letter
    has been issued for construction financing for Phase 3 of the project, the
    eight month time period does not start to run.  Counsel for the petitioner
    says that this argument makes no commercial sense as such a commitment letter
    may never be issued.  If that turns out to be the case, the principal amount
    of the mortgage would never become repayable to the petitioners.  I am persuaded
    with the latter argument.  It seems to me that the parties chose the date
    of June 30, 2002, as the date by which this matter was to be concluded between
    them and the principal amount of the mortgage was to be payable at that time
    to the extent that it had not already been paid.

[4]

The BC Company seeks to argue on appeal that the order
nisi
was issued in error because the company was not in breach of the mortgage
    obligations to pay taxes when due and to repay the principal by the maturity
    date of the mortgage.  As to the tax issue, it seeks the opportunity to contend
    before this Court that an arrangement with the municipality had the effect
    of relieving it from the requirement to pay the taxes within the time set
    out in the tax notice, such that it could not be said it had failed to pay
    the taxes when due.  On the issue of paying the principal by the maturity
    date it wishes to contend on appeal that a term of the Settlement Agreement
    tying periodic payments to construction phases and sales had the effect of
    overriding the provision that the mortgage was "fully due and payable"
    on June 30, 2002.

[5]

The first issue is whether leave to appeal is required.

[6]

Section 7(2)(c) of the
Court of Appeal Act
requires that
    leave be obtained where the order sought to be appealed was made under Rule
    50 of the
Supreme Court Rules
.  However, leave is not always
    required in foreclosure proceedings.  For example, in
Eusanio v. Janolino
,
    [1998] B.C.J. No. 3134 (C.A.), it was held that leave was not required although
    the issues were raised in a foreclosure proceeding, because the issues raised
    (questions of unconscionability, statutory construction and breach of fiduciary
    duties), were not foreclosure matters in the usual sense.  In contrast, in
Eron Mortgage Corp. v. Endeavour Development Ltd.
, [1999] B.C.J.
    No. 2079, 1999 BCCA 531, Madam Justice Newbury rejected the argument that
    leave was not required even though a substantive defence concerning the validity
    of the mortgage was raised by the appellant.

[7]

In my view, the issues sought to be raised in this case concern simply
    the existence, or not, of a breach of a term of the mortgage which would give
    rise to the commonplace foreclosure remedies of a declaration of default and
    order
nisi
.  As such they fall on the
Enron Mortgage
side of the leave requirement issue.

[8]

I conclude that leave to appeal is required in this case.

[9]

The question is whether leave should be granted in these circumstances.
    This question engages the merits of the appeal, the importance of the issue
    to the practice and to the parties, and general considerations of the interest
    of justice.

[10]

In
    this case, I am not satisfied that either issue presented by the BC Company
    has sufficient merit to warrant an order for leave to appeal.  The tax issue,
    given the legislative payment scheme which binds the municipality, is, I consider,
    bound to fail.  So, too, in my view, the issue of payment.  As the commitment
    letters upon which periodic or sales related repayment depends may never be
    issued, the practical effect of the BC Company's contention is that repayment
    of the principal amount of the mortgage is not required by any definite time.
    I do not consider that there is a reasonable prospect that a panel of this
    Court would accept that interpretation of the mortgage.

[11]

I
    further conclude that importance of the issues is not a basis on which to
    grant leave.  The issues raised are not of general concern.  Nor are they
    issues of significance to the parties beyond the significance any order
nisi
has for a land owner.

[12]

The
    BC Company contends that it has an argument concerning breach by the Saskatchewan
    Companies of the Settlement Agreement.  It says damages from this breach would
    provide a set-off and that the order
nisi
therefore should not have
    been made without hearing that issue.  However, the BC Company has not yet
    pleaded such a claim.  While it may be open for it still to raise those issues
    before the Supreme Court of British Columbia, I would not delay the foreclosure
    proceedings on that potentiality.

[13]

It
    follows that I direct that leave to appeal the order
nisi
is required,
    and I dismiss the application for leave to appeal.

The
    Honourable Madam Justice Saunders


Court
    of Appeal for British Columbia

Citation:

McLeay
          v. Kelowna (City)
,

2003
          BCCA 34

Date:
    20030117

Docket: CA029434

Between:

Thomas
    McLeay and Deanna Arelis

Appellants

(
Plaintiffs
)

And

City
    of Kelowna and Her Majesty the Queen

in
    Right of the Province of British Columbia

Respondents

(
Defendants
)

Before:

The
          Honourable Madam Justice Ryan

(In
          Chambers)

H.
          Wiebach

Counsel
          for the Appellants

A.
          Hobkirk

Counsel for the Respondent, City of Kelowna

N.E.
          Brown

Counsel for the Respondent, H.M.T.Q. in Right of B.C.

Place
          and Date of Hearing:

Vancouver,
          British Columbia

January 10, 2003

Place
          and Date of Judgment:

Vancouver,
          British Columbia

January 17, 2003

Reasons
    for Judgment of the Honourable Madam Justice Ryan:

[1]

This is an application by the respondent, the Province of British Columbia
    for an order directing that there be a pre-hearing conference in respect of
    this appeal.

[2]

In an action filed in the Supreme Court the appellants sought judgment
    for:

a)   a declaration that the plaintiffs
    are the owners of the property described in their certificate of indefeasible
    title;

b)   a declaration that Kelowna is not
    entitled to use their property as a public walkway;

c)   an injunction requiring the City to
    block public access to the greenbelt; and

d)   an order that the plaintiffs recover
    judgment for damages to be assessed against the defendants, for trespass.

[3]

The matter was heard by way of an application under Rule 18A.  This
    appeal is from the order of Mr. Justice Clancy dismissing the appellants'
    action on that application.  In dismissing the application the trial judge
    said this (at para. 56):

Title to the triangular portion depicted
    on Plan B4694 is not included in the indefeasible certificate of title issued
    to the plaintiffs. The plaintiffs' action is dismissed. They are not entitled
    to judgment for damages, nor to the declaratory or injunctive relief sought.
    The claims for relief are predicated on the assumption that the certificate
    of title includes the triangular portion. I have found that it does not.

[4]

In his factum, counsel for the appellants outlines these alleged errors
    in the judgment:

46.  The learned trial judge erred in finding
    that neither McLeay and Arelis nor their predecessors in title obtained title
    to the Triangle.

47.  The learned trial judge erred in dismissing
    the appellants' application to adduce additional evidence and in failing to
    consider Plan KAP61083.

48.  The learned trial judge erred in declaring
    that he would order rectification, if necessary.

49.  The learned trial judge erred in holding
    that it was unnecessary to address the issues raised by the parties in their
    pleadings.  He should have decided those issues and he should have held that:

(a)  the Triangle
    was not reserved to the Province by the Crown Grant;

(b)  no part
    of the Triangle belongs to the Province pursuant to s. 55 of the
Land Act
.

(c)  no part
    of the Triangle belongs to the Province pursuant to s. 108 of the
Land
    Title Act
.

[5]

Counsel for the respondents say that the last ground of appeal constitutes
    a submission that this court should make the findings of fact that the trial
    judge ought to have made.  Counsel for the respondents advise me that on the
    appeal their position will be that if this court concludes that the trial
    judge erred, it ought to order a new trial rather than engage in a fact-finding
    mission of its own.

[6]

Counsel for the respondents say that if they are forced to confront
    the facts, they will require more time to argue the appeal and may require
    an order permitting them to file factums which exceed the 30-page limit imposed
    by the Rules.

[7]

Counsel submit that a pre-hearing conference should be ordered to either
    limit the scope of the appeal or to make orders expanding the time set aside
    for the appeal, or the size of the factums.

[8]

Generally speaking, a Court of Appeal will not make findings of fact.
    There are exceptions.  In
Hollis v. Dow Corning Corp.
, [1995]
    4 S.C.R. 634, Mr. Justice La Forest said this (at para. 33):

While appellate courts are generally, and justifiably,
    wary of making findings of fact without having the advantage of seeing and
    hearing testimony first-hand, I do not believe that such concerns arise in
    this case because the bulk of the critical evidence adduced at trial was documentary,
    not testimonial.  In light of the fact that Ms. Hollis has now waited
    close to seven years for the final resolution of her claim, and the high costs
    already created by the unusual length of this appeal process, I believe the
    Court of Appeal followed the proper course in weighing and assessing this
    evidence in order to achieve a measure of finality in this case; see, e.g.,
Davie Shipbuilding Ltd. v. The Queen
, [1984] 1 F.C. 461, at p. 464
    (C.A.);
Nova, An Alberta Corporation v. Guelph Engineering Co.
(1989),
    70 Alta. L.R. (2d) 97 (Alta. C.A.), at pp. 110-12.

[9]

Only the division of the court that hears the appeal will be in a position,
    after the issues are fully argued, to appreciate whether this is a case where
    the court, assuming the appellants are successful, will take on the role of
    a trial court, or whether it will return the matter to the trial list for
    a new trial.  Thus, a pre-hearing conference would be of no assistance to
    the parties in this matter.  I do not see the utility of ordering a pre-hearing
    conference at this stage of the proceedings.

[10]

Counsel
    also advised me that there remain outstanding issues with respect to the content
    of the appeal books and transcripts.  Apparently the trial judge made a ruling
    that he would only look at portions of affidavits that had been put to witnesses
    on cross-examination.  An issue arose as to how to deal with this on the appeal.
    Counsel have now agreed that they will prepare a schedule of the questions
    and answers and file it as part of the appeal book.  This seems like a sensible
    resolution of the issue.

[11]

I
    would not accede to the request for a pre-hearing conference at this time.
    This should not preclude a further request should matters arise which require
    the assistance of a pre-hearing conference.

The
    Honourable Madam Justice Ryan