COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Laursen v. Director of Crime Victim Assistance,

2017 BCCA 8

Date: 20170110

Docket: CA43066

Between:

Christian Laursen

Appellant

(Petitioner)

And

Director of Crime
Victim Assistance

Respondent

(Respondent)

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Bennett

The Honourable Madam Justice Dickson

On appeal from:  An
order of the Supreme Court of British Columbia, dated
August 12, 2015 (
Laursen v. Director of Crime Victim Assistance
, 2015
BCSC 1413, Vancouver Docket S150574).

Counsel for the Appellant:

J.E. Shragge
K.A. Rose

Counsel for the Respondent:

T. Mason
C. Drake

Place and Date of Hearing:

Vancouver, British
  Columbia

October 11, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 10, 2017

Written Reasons by:

The Honourable Chief Justice Bauman

Concurred in by:

The Honourable Madam Justice Bennett

The Honourable Madam Justice Dickson

Summary:

Mr. Laursen appeals the
chambers judges dismissal of his judicial review application after the
Director refused to award him lost earning capacity benefits under the Crime
Victim Assistance Act. He argues that the Directors determination that he was
unemployable at the time of his injury was unreasonable. He also says his
judicial review application is not statute-barred. Held: Appeal allowed. There
is a single reasonable interpretation of employable that requires the
Director to determine whether the applicant has the intent and ability to
become employed in the future. The Director failed to test Mr. Laursens
potential for future employment, rendering his decision unreasonable. Mr. Laursens
judicial review application is not barred by the passage of time because s. 11
of the Judicial Review Procedure Act provides relief from the statutory
limitation period.

Reasons
for Judgment of the Honourable Chief Justice Bauman:

Background

I.

[1]

In the years preceding 2011, Christian Laursen struggled with addiction
issues, polysubstance abuse and insulin dependent diabetes. He had been in
receipt of a disability pension because of these matters since 2002. He was
hospitalized in this regard from 1016 February 2011. On the latter date he was
discharged and referred to detox.

[2]

On 17 February 2011, Mr. Laursen was viciously beaten during the
course of an apparent robbery. He was again hospitalized for a severe head
trauma. On admittance to hospital he tested positive for cocaine and/or
amphetamines.

[3]

Mr. Laursen was treated at Vancouver General Hospital until 22
March 2011. He was admitted to GF Strong Rehab Centre that day and discharged
on 16 May 2011.

[4]

Mr. Laursens acquired brain injury has resulted in permanent
deficits of mobility, mood, speech and cognition. In the opinion of his
treating physician his prognosis is poor, as his cognitive deficit is likely to
deteriorate. He is now permanently disabled from performing any form of
physical work. This includes a position as house monitor at a Vancouver
recovery facility that he was scheduled to commence in April 2011.

[5]

Mr. Laursen applied for and has been in receipt of benefits under
the
Crime Victim Assistance Act
, S.B.C. 2001, c. 38 (the
Act
).
However, in a series of decisions by adjudicators under that scheme, Mr. Laursen
has been denied an award for lost earning capacity.

[6]

Mr. Laursen brought judicial review proceedings in respect of one
of the decisions in the chain of the original adjudication, reconsiderations
and reassessments of his application; this was the decision of the reconsideration
adjudicator dated 18 May 2012.

[7]

The application for judicial review was brought well beyond the 60-day
time limit set by s. 14.1(2) of the
Act
.

[8]

Mr. Laursens application for judicial review was dismissed by
Justice G. C. Weatherill in reasons indexed at 2015 BCSC 1413.

[9]

He appeals from that order. In the reasons below, I consider the proper
interpretation and application of employability and employable under the
Act
and the
Crime Victim Assistance (Income Support and Vocational Services or
Expenses Benefits) Regulation
, B.C. Reg. 162/2002 (the
Regulation
).
I also consider the Directors assertion that Mr. Laursens application
for judicial review is statute-barred under the
Act
and that the relief
from the rigors of that limitation apparently offered by s. 11 of the
Judicial
Review Procedure Act
, R.S.B.C. 1996, c. 241 (
JRPA
) is not
available as that section, the Director submits, has been impliedly repealed.

II.

[10]

It is necessary to describe in some detail the Directors consideration
of Mr. Laursens application through the decisions of various
adjudicators.

[11]

It begins with the original adjudication dated 19 April 2011. That
decision awarded Mr. Laursen benefits:

(i)       under
s. 7 of the
Act
for medical services or expenses;

(ii)      under
s. 11 of the
Act
for counselling services or expenses; and

(iii)      under
s. 13 of the
Crime Victim Assistance (General) Regulation
, B.C.
Reg. 161/2002 for repairs or replacement of damaged or destroyed personal
property.

[12]

That adjudicator left for further reassessment a claim for disability
aids under the
Crime Victim Assistance (General) Regulation
.

[13]

With respect to income support benefits (as distinct from an award for
lost earning capacity) the original adjudicator said this:

Mr. Laursen has also
requested benefits for income support. The Crime Victim Assistance Program can
consider income support in circumstances where the victim was employed at the
time of the offence and the injuries have resulted in a loss of employability. Mr. Laursen
was receiving a monthly disability benefit from the Ministry of Housing and
Social Development at the time of his injury. Additional information is being
collected to determine if Mr. Laursen is entitled to a benefit in this
category.

[14]

On 12 October 2011, Marvin Cavanagh, the Executive Director of the
Reaching Out Supportive Recovery Facility wrote in support of Mr. Laursens
claim to this effect:

This letter is confirmation that, Mr. Christian LAURSEN
was hired on to take on the responsibilities of house monitor at 3608 Knight
Street, starting April 2011, receiving five hundred dollars per month. This
$500 would have been an honorarium from our society.

However, this position did not
happen for Mr. Laursen as he was a victim of a severe physical attack,
which ended with him being hospitalized with severe head injuries; therefore,
we had no choice but to fill this position offered Mr. Laursen.

[15]

This letter led to the adjudicators reassessment decision of 19
December 2011. In the words of that adjudicator, referring to the Cavanagh
letter just quoted:

Mr. Laursen currently
requests a reassessment regarding income support in regard to a bone fide offer
of employment.

[16]

The adjudicator continued:

Hospital records obtained indicate that Mr. Laursen was
hospitalized prior to the incident between February 10 and 16, 2011 for
Diabetic Ketoacidosis and polysubstance use. On discharge he was referred to
detox. On February 17, 2011 Mr. Laursen was readmitted to hospital with
a head trauma. The hospital report indicates that cocaine and/or amphetamines
were reportedly used on that date.

As Mr. Laursen was actively using drugs at the time of
the incident, the employer indicates he would not have been suitable for
employment at a recovery facility. Under the circumstances the offer of
employment would have been withdrawn.

Although Mr. Laursen may
have expected to be employed commencing April 2011, it is found that the offer
of employment was invalidated due to his polysubstance use. As the offer of
employment was terminated prior to Mr. Laursen commencing work, he has not
experienced an economic loss and therefore a lost earning capacity benefit
cannot be considered.

[17]

In this decision the adjudicator refers to lost earning capacity
benefits despite the fact that Mr. Laursen requested a reassessment of his
eligibility for income support benefits. It is unclear whether the adjudicator considered
the offer of employment with respect to income support or lost earning capacity
benefits, or both categories of benefits.

[18]

I note the suggestion that the offer of employment was invalidated due
to his polysubstance use and as a result the offer of employment was
terminated prior to Mr. Laursen commencing work This is simply not so.
As Mr. Cavanagh explained in his letter to the Director dated 17 January
2012:

In February I had an employment agreement with Christian
Laursen to be a Monitor in one of my Recovery Houses. The offer of employment
was accepted and it was confirmed he would begin work in April 2011.

Christian Laursen did not begin
work in April 2011 as a result of physical and mental injuries sustained in
Feb. 2011. I did not withdraw my offer of employment from Christian as a result
of his relapse on drugs and would still have extended the employment opportunity
to him if he would have been clean an[d] sober on the start date in April 2011.
I was contacted by someone at Victim Services and questioned about the
employment agreement I had with Christian. I believe this conversation was
misunderstood. I was asked if I would have hired Christian if he had relapsed?
I thought that meant at [the] time of employment but they were referring to
Feb. 2011. I would like to make it clear that Christians relapse on drugs in
Feb. 2011 would not have prevented me from extending him employment, the only
stipulation being he would have to be clean and sober at the start date of
employment. Given the fact that Christian relapsed in Feb. 2011, if he was able
to be clean and sober by April 2011 I would have employed him as agreed upon as
a monitor at one of my Recovery Houses. Christian would have earned $500 per
month in the position of House Monitor commencing April 2011 had he not
sustained injuries as a result of an assault in Feb. 2011. I would be happy to
discuss this matter further and in detail as I do believe this matter was not
clearly discussed and understood in the original telephone conversation with
Victims Services.

[19]

This letter was considered in the adjudicators reassessment decision of
9 February 2012. In the context of the application for income support benefits
the adjudicator there wrote:

The Program finds that due to a combination of Mr. Laursens
history of addiction and the requirements of employment at a rehabilitation
facility, the employer could not guarantee Mr. Laursen employment as it
could not be foreseen whether Mr. Laursen would be clean and sober on
April 1, 2012 [
sic
].

While Mr. Laursen was actively involved in a
rehabilitation program, the medical information on file indicates that he was
using drugs at the time of the assault and therefore he was not capable of
taking the job on any specific date.

Although there was an honourable
intention of employment from the perspective of both Mr. Laursen and the
employer, this intention does not meet the standard of a bona fide offer of
employment as it was conditional on Mr. Laursen[s] sobriety which was
unpredictable under the circumstances.

[20]

However, for the first time the adjudicator went on to expressly consider
the possibility of an award to Mr. Laursen for lost earning capacity.

[21]

The reasons of the adjudicator on this aspect need to be fully set out:

The Crime Victim Assistance Program can consider the
provision of lost earning capacity benefits in circumstances where the victim
was employable but not employed at the time of the injury. The injuries must
have resulted in a long term loss of employability for the victim; a period
generally longer than two years. Employability is defined as the physical and
mental capability of being employed.

In determining eligibility for a Lost Earning Capacity
benefit it must first be determined whether the claimant was employable at the
time of the injury.

Information obtained from the Ministry of Social Development
indicates that Mr. Laursen applied for disability benefits in 2002 due to
drug and alcohol addiction. Mr. Laursens Income Tax assessments indicate
he received limited income from sources other than income assistance in the
years 2006, 2007, [and] 2008 however since 2008 the records available indicate
he was solely dependent on the disability benefit based on his addiction.

Information from the Ministry of Social Development indicates
that Mr. Laursen was eligible for a disability benefit since 2002. His
eligibility for a disability benefit was based on drug and alcohol abuse. As
the medical information indicates that Mr. Laursen was using drugs at the
time of the offence the program cannot consider him employable.

Based on the information available
from the Ministry of Social Development and Canada Revenue Agency, Mr. Laursen
is not found to be employable at the time of his injury and therefore this
benefit may not be considered.

[22]

Once again advocates for Mr. Laursen responded on his behalf. Kailey
Toth is a social worker at GF Strong Rehab Centre. On 16 April 2012 she wrote
to the Director, in part saying this:

The denial of Mr. Laursens
initial application, dated February 9, 2012, stated that it could not be
foreseen whether Mr. Laursen would be clean and sober on April 1, 2012 (I
believe this letter meant to state April 1, 2011). I am writing to support Mr. Laursens
appeal and to add that Mr. Laursen has been clean and sober for over a
year. Mr. Laursen could have been employed during this time were it not
for the injuries he sustained on February 17, 2011. Despite the
unpredictability of sobriety, that Mr. Laursen has been doing so
remarkably well despite what he has been through, speaks to his tremendous
resiliency and the possibility for him to have become sober, no matter the
circumstances. While Mr. Laursen was not deemed to be employable at the
time of his injury, he certainly had the potential for future employment and
lost that potential not because of a lack of sobriety on his part, but because
of the crime that was committed against him. I would ask that the Crime
Victims Assistance Program reconsider your decision and take into account that
while it is impossible to guarantee that Mr. Laursen would be clean and
sober on April 1, 2011 we also cannot rule out that he could have been.

[23]

This submission led to the reconsideration decision of 18 May 2012, the
only decision that is still relevant on judicial review. It confirmed the
decision of 9 February 2012. Although Ms. Toths letter was not before the
adjudicator in the 9 February 2012 reassessment decision, the reconsideration adjudicator
nevertheless considered her letter in his decision. Under s. 14(2) of the
Act
this should have been done by way of a reassessment; however, the Director did
not rely on this procedural issue in his submissions.

[24]

The reconsideration adjudicator, in comprehensive reasons, dealt first
with the application for income support benefits. The adjudicator agreed with
the decision of 9 February 2012: the offer of employment was contingent on a
precondition  that Mr. Laursen be sober and drug free in April 2011. The
adjudicator could not find that to be satisfied on the balance of
probabilities:

As a result, I also cannot find
that Mr. Laursen held a job or occupation when he was injured in February
2011, which disqualifies him for further income support benefit consideration.

[25]

No issue is taken with this finding or conclusion.

[26]

However, on the issue of lost earning capacity benefits, the adjudicator
said this:

I am instructed by section 6 of the
Regulation
that
the first consideration under this heading is Mr. Laursens employability
at the time of the assault. Specifically, I must be able to make an initial
finding on the evidence before me that Mr. Laursen was employable but not
employed at the time of that injury. In my judgment, the evidence does not
support that finding.

As noted by the Program adjudicator in the February 9, 2012
reassessment decision, Mr. Laursen first qualified through the provincial
Ministry of Social Development for disability benefits for drug and alcohol
abuse in 2002. The adjudicator also noted that according to his tax records, Mr. Laursens
sole source of income since 2008 was his disability benefits that, again, were
due to his addiction. In addition, it has already been established that Mr. Laursen
was experiencing a drug relapse in February 2011 when he was assaulted.

I appreciate Ms. Toths submissions regarding Mr. Laursens
potential for
future
employability had it not been for the compensable
injuries he sustained, but the weight of the evidence before me leads me to the
same conclusion as the adjudicator, that Mr. Laursen was not employable
in February 2011
. I therefore find that the Programs denial of lost
earning capacity benefits was consistent with the best available evidence as
well as the law and the
Regulation
.

[Italics in original, underline added.]

[27]

It will be seen that the adjudicator misstates Ms. Toths evidence.
She stated, in part, of Mr. Laursens situation in February 2011  he
certainly had the potential for future
employment
and lost that
potential not because of a lack of sobriety on his part, but because of the
crime that was committed against him (emphasis added). The Directors reference
to employability instead of employment is significant.

[28]

The adjudicators reasons also make it clear that he did not take into
account Mr. Laursens likely future position had he not been assaulted. The
Directors finding that Mr. Laursen was not employable in February 2011,
taken alone, is capable of meaning that he implicitly took into account Mr. Laursens
future employment capacity. However, the preceding discussion of Ms. Toths
submissions makes it clear that he did not. He discounted her letter precisely
because it concerned Mr. Laursens

future potential. His
discounting of Mr. Laursens future potential is made further clear by the reconsideration
adjudicators agreement, in all essential respects, with the reassessment of 9
February 2012. The adjudicator there similarly halted his inquiry on the issue
of employability at February 2011. That adjudicator said (to repeat the
extract above in part):

As the medical information indicates that Mr. Laursen
was using drugs at the time of the offence the program cannot consider him
employable.

Based on the information
available from the Ministry of Social Development and Canada Revenue Agency, Mr. Laursen
is not found to be employable at the time of his injury and therefore this
benefit may not be considered.

[29]

I will discuss the impact of these points with respect to the Directors
implicit definition of employable below.

Chambers Judgment

[30]

The chambers judge summarized the crux of the issue on judicial review as
whether the Directors determination that Mr. Laursen was not employable
at the time of the assault was reasonable. He noted the parties agreement that
the issue of whether judicial review of the reconsideration decision was
statute-barred would be dealt with later if Mr. Laursen was successful in
his application on the merits.

[31]

The chambers judge found the Directors interpretation of employable
reasonable, which meant that he was required to defer to it (
McLean v.
British Columbia (Securities Commission)
, 2013 SCC 67 at paras. 40-41).

[32]

The chambers judge then looked at the evidence presented by Mr. Laursen
and again found the Directors decision not to award an amount for lost earning
capacity reasonable. None of the information or evidence before the Director
established that Mr. Laursen was physically and mentally capable of being
employed or self-employed on the day he was injured. He concluded that the opinion
of Ms. Toth one year later regarding Mr. Laursens progress in rehab
and his future employment potential were unsubstantiated and that the Director
was correct to place little reliance on that opinion.

[33]

Mr. Laursen appeals the chambers judges decision.
He seeks to have this Court set aside the 18 May 2012 reconsideration decision
and remit the issue of his application for lost earning capacity benefits to
the Director in accordance with the proper interpretation of s. 6 of the
Regulation
.
He says the Directors interpretation of employable was unreasonable and/or
that he unreasonably found that Mr. Laursen was not employable on the
facts. He also seeks to have this Court determine whether his application for
judicial review is statute-barred notwithstanding the agreement of the parties
to consider this issue at a future hearing if Mr. Laursen was successful
on the merits.

Submissions

[34]

Both parties agree that the chambers judge
properly identified the standard of review as reasonableness. They also agree
that, at issue, is an implicit decision of the Director to interpret capable
of in the definition of employable as meaning able to.

[35]

In a nutshell, Mr. Laursens position is
that the chambers judge erred in finding that the Directors interpretation of
employable was reasonable. He argues that the judge deferred to the
Directors overly restrictive interpretation of capable of being employed as
meaning able to be employed. The Director failed to consider the plain meaning
of capable of in light of the text, context and purpose of the
Act
and
associated regulations. Had he done so, he would have found that capable of
should be interpreted as having the future potential to. A person will be
eligible for lost earning capacity benefits if he or she generally had the
physical and mental potential for, or openness to, being employed.

[36]

The Director responds that the chambers judge
correctly found that it was reasonable for the Director to have implicitly
interpreted the term capable of in the definition of employable as meaning
able to rather than having the future potential to. The chambers judge was
required to defer to any reasonable interpretation and he was able to consider
reasons which could have been offered in support of the Directors decision. The
Director argues that Mr. Laursen adopts a less obvious dictionary definition
of capable and that competent, ableor having the ability or fitness
necessary for is the ordinary meaning of the term. This interpretation is
consistent with the context of the legislation and, in particular, with all
references to employable in the
Regulation
. It is also consistent with
the purpose of the
Act
which is to provide publically funded benefits while
balancing accountability with public funds and providing benefits to victims.

[37]

In oral argument, the parties seemed to agree
that their respective interpretations both work within the context of the
legislation and that this tool of statutory interpretation is not
determinative.

[38]

Turning to the second ground of appeal and
whether the evidence demonstrated that Mr. Laursen was capable of employment,
in his factum Mr. Laursen conceded that his success on this ground rests on
this Court siding with his interpretation of employable. However, in oral
argument, he argued that this Court could side with the Directors
interpretation of employable and nevertheless find that it was unreasonable
to conclude that Mr. Laursen was not capable of employment. He submits
that this question should be remitted to the Director for reconsideration.

[39]

The Director argues that Mr. Laursens
second ground of appeal is predicated on this Court accepting his argument on
the interpretation issue. The chambers judge made no findings with respect to
the evidence on the basis of Mr. Laursens preferred interpretation such
that it is unclear how he erred.

[40]

In the alternative, the Director submits that if
this Court determines the chambers judge erred on the first issue then the
proper remedy is to remit the matter to the Director to permit him to identify
a different interpretation of employable. There may be more than one
reasonable interpretation of employable that has yet to be identified.

[41]

Finally, Mr. Laursen seeks leave to argue a
new issue on appeal  namely, whether the application for judicial review is
time-barred. He does not dispute that the application for judicial review was
brought well outside the 60-day period set out in s. 14.1(2) of the
Act
.
However, he says his application is saved by s. 11 of the
JRPA
. The
text, context and purpose of s. 11 require a conjunctive reading of
subsections (a) and (b) such that this Court ought to exercise its discretion
to permit the late-filed application. He argues that to hold otherwise would
oust this Courts supervisory jurisdiction and violate the constitutional right
to judicial review.

[42]

The Director submits that s. 11 of the
JRPA
was impliedly repealed either by s. 14.1(2) of the
Act
or s. 57
of the
Administrative Tribunals Act
, S.B.C. 2004, c. 45 (
ATA
).
With respect to the former argument, the Director says that to hold otherwise
would be to find that the 60-day limitation period in the
Act
is
meaningless. Regarding the latter argument, the Director cites
Speckling v.
British Columbia
, 2008 BCCA 155, for the proposition that the limitation
period in s. 57 put a statutory temporal restraint on the right to seek
judicial review additional to that found in s. 11 of the
JRPA
.

[43]

Mr. Laursen says that s. 14.1(2) does
not entirely cover the subject matter of s. 11 so as to conclude that it
repealed s. 11. It is not open to the Director to rely on the difficulty
of proving prejudice or substantial hardship as a means for arguing that
s. 11 has been impliedly repealed. Further, section 57 of the
ATA
does not apply to the Director and, in any event, any discussion of s. 57 impliedly
repealing s. 11 ought to be saved for another day before a full
evidentiary record.

[44]

Mr. Laursen seeks costs of this appeal because the Director argued
the merits of the issues in both the court below and before this Court.

Analysis

[45]

I turn to my analysis.

[46]

There is no dispute that the standard of review applicable to the
Directors reconsideration decision is reasonableness. The substantive issue
here  the meaning of employable  turns on the interpretation of the
Act
and
Regulation
, the Directors home statute. Interpretation of an administrative
decision makers home statute raises the presumption of reasonableness, and
none of the four categories of issues that call for correctness are present
here (
Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.
,
2016 SCC 47 at paras. 2324).

[47]

Applying the reasonableness standard, if I find that there are multiple
reasonable interpretations of employable and one of them is consistent with
the Directors interpretation then I must defer to the Director. He holds the
interpretive upper hand (
McLean
at para. 40). However, if by
applying the ordinary tools of statutory interpretation I conclude that there
is a single reasonable interpretation that differs from that of the Director
then his interpretation is necessarily unreasonable (
McLean
at para. 38).
For the reasons set out below, I find that there is such a single reasonable
interpretation and the Director failed to adopt that interpretation. The
Directors decision must therefore be set aside.

[48]

The case of course turns on the statutory definitions of employability
and employable. They are set out in s. 1 of the
Regulation
:

"employability"
means the physical and
mental capability of being employed or self-employed;

"employable"
means physically and mentally capable of being employed or self-employed;

[49]

Both definitions centre on the notions of capability and capable.

[50]

The parties effectively take opposing either/or positions. Mr. Laursen
suggests that capable of being employed refers to the potential for or
openness to being employed. On the contrary, the Director suggests that it
means able to be employed, in this case, before and in and around February
2011.

[51]

As I alluded to above, in the reconsideration decision at issue the
Director completely discounted submissions made on behalf of Mr. Laursen
concerning his potential for future employment. I reproduce the relevant
portion of those reasons again for convenience:

I appreciate Ms. Toths
submissions regarding Mr. Laursens potential for
future
employability had it not been for the compensable injuries he sustained, but
the weight of the evidence before me leads me to the same conclusion as the
adjudicator, that Mr. Laursen was not employable in February 2011.
[Emphasis in original.]

[52]

From his reasons, it is clear the reconsideration adjudicator took into
account Mr. Laursens employment history and past income. However, his
discounting of Ms. Toths letter because it concerned Mr. Laursens
potential for
future
employability and his complete disregard of Mr. Cavanaghs
letter make it clear that he stopped his analysis in February 2011. As I have
said, he also repeated the same error made by the adjudicator whose 9 February
2012 reassessment decision he was reconsidering.

[53]

In my view, the Director was correct in suggesting that the capacity of
an applicant for employment must be tested at the time of the event giving rise
to the claim for lost earning capacity benefits. But Mr. Laursen was
correct in suggesting that the applicants potential for employment must be
relevant as well. Mr. Laursen was wrong to discount the issue of present
ability and the Director was wrong to discount the applicants future potential
to engage in employment.

[54]

Of essential importance, the Directors discounting of future potential
for employment is a clear legal error resulting in an unreasonable decision
denying Mr. Laursen potential benefits for lost earning capacity.

[55]

The parties rely on dictionary definitions of capable.

[56]

Definitions 2 and 3 of capable in the
Shorter Oxford English
Dictionary
, 6
th
ed. (Oxford: Oxford University Press, 2007)
define it so:

2.         foll. by of: open to, admitting of, susceptible.

3.         Having the ability,
power or fitness for some specified purpose or activity;

[57]

In the
Canadian Oxford Dictionary
(Toronto: Oxford University
Press, 1998), we find:

1.         Competent, able, gifted

2.         (foll. by of) a.
having the ability or fitness or necessary quality for;
b. susceptible or admitting of (explanation or improvement etc.)

[58]

The
Concise Oxford English Dictionary
, 11
th
ed. (Oxford:
Oxford University Press, 2008) reads:

1.         (capable of doing
something) having the ability or quality necessary to do something > open to
or admitting of something

[59]

The parties would pick and choose between the alternatives here. The
one concentrating on present ability, the other on future potential, openness
to, or susceptible. But in truth capable as used in the
Regulation
means all of these things; it covers each of these notions. One must approach
the question of lost earning capacity holistically without artificially
constraining the inquiry, as the Director has, to a period of time before and in
and around February 2011.

[60]

This is demanded by the context of the
Act
. In distinguishing
between income support benefits (in the case of a loss of actual employment)
and lost earning capacity benefits, the
Act
mirrors the equivalent
common law heads of damage in tort law. The legislative drafters did not use
the words lost earning capacity by accident. In my view, they must be taken
to have intended to incorporate the legal meaning of this concept when defining
eligibility for lost earning capacity benefits.

[61]

I reproduce this summary of the lost earning capacity head of loss by
Professor Fridman in
The Law of Torts in Canada
, 3rd ed. (Toronto:
Carswell, 2010) at 487488:

Loss of the opportunity to earn,
including future earnings, may be recovered. The rationale for this recovery is
that, as a result of the defendants negligence, the plaintiff is now less
valuable to himself or herself as a person capable of earning an income in a
competitive market or has suffered loss or impairment of earning capacity
viewed as a capital asset. In assessing what the plaintiff has lost the court
must focus on the plaintiffs lost opportunity to earn income as a consequence
of the accident. The amount of any award will depend on what the plaintiff was
earning at the time of the accident, and on whether he or she can still earn
any income after the accident. However,
if the plaintiff was not gainfully
employed when injured but intended at some future point to be, and was capable
of being, gainfully employed
, the court must make a reasonable allowance
for the probable loss of future income due to the plaintiffs being deprived of
that opportunity. [Emphasis added.]

[62]

The underlined portion reflects the need for courts to measure lost
earning capacity with an appreciation for both the present condition of the
plaintiff and his or her likely future capability.

[63]

Measuring lost earning capacity with an eye to both the present and
likely future position of an individual is reflected in this Courts approach
to lost earning capacity awards in personal injury cases. It is well-settled
that plaintiffs must establish a real and substantial possibility that their
earning capacity has been impaired to recover damages for lost earning capacity
(
Perren v. Lalari
, 2010 BCCA 140 at para. 32). If the plaintiff
discharges that burden of proof then he or she may prove the quantification of
that loss on either an earnings or capital asset approach (
Morgan v.
Galbraith
, 2013 BCCA 305 at para. 53). The latter approach is more
useful where a loss is not as easily measurable.
Brown v. Golaiy
(1985),
26 B.C.L.R. (3d) 353 (S.C.) sets out the following considerations in applying
the capital asset approach:

1. The plaintiff has been rendered less capable overall from
earning income from all types of employment;

2. The plaintiff is less marketable or attractive as an
employee to potential employers;

3. The plaintiff has lost the ability to take advantage of
all job opportunities which might otherwise have been open to him, had he not
been injured; and

4. The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

[64]

A review of these factors demonstrates that not working on the day of
ones injury or suffering from a transitory physical inability to work are not
absolute bars to recovery. They are relevant factors, but courts may nevertheless
award an amount if, notwithstanding a present incapacity, the plaintiff
demonstrates that his or her earning potential has been impaired in accordance
with the real and substantial possibility threshold.

[65]

The approach to lost earning capacity awards in personal injury cases
provides the context within which s. 6 of the
Regulation
must be interpreted.
After all, the Legislature is presumed to know the law; absent a clear
legislative intent to the contrary, a statute should not be interpreted as
substantially changing the common law (
R. v. D.L.W.
, 2016 SCC 22 at para. 21).
Of course, here the legislation in s. 6(2) and s. 1(1) of the
Regulation
mandates a specific formula for calculating the amount of the lost earning
capacity benefit and to this extent the legislation departs from the common
law I have discussed.

[66]

The meaning of lost earning capacity according to dictionary definitions
and at common law reflects two key components of capability, as that term is
used in the definition of employable in the
Regulation
: intent and
ability. To this I add the requirement that capability be measured at the time
of the injury (
Regulation, s.
6(1)(a)).

[67]

Reasoning from the foregoing meaning of employableat the time of the
injury, in my view, the analysis demanded by s. 6 of the
Regulation
is as follows: the Director is required to test the applicants potential for
future employment at the time of the injury
not
based simply on the
applicants physical status at that time, but based on the applicants intent
and ability to do what is necessary to become employed in the future
(s. 6(1)). After reviewing the materials filed in support of the
application, if the Director is satisfied that the applicant has both the
intent and the ability to become employed in the future then he awards an
amount calculated under the formula in s. 6(2) and the s. 1(1) definition of
lost earning capacity benefit when the applicant is first impacted by that
loss (s. 6(3)). It is up to applicants to satisfy the Director of their intent
and ability as well as the time at which they will be impacted by the loss.

[68]

I would expand on this discussion of the operation of the statutory
scheme by quoting s. 6 of the
Regulation
in full:

Lost earning capacity

6
(1) The director may award to a victim a benefit in
the category of benefits described as lost earning capacity in section 4 (1)
(m) of the Act only if the director is satisfied that an eligible injury has
resulted in a loss of employability and the victim

(a) was a minor or an adult victim
who was employable but not employed at the time of that injury, and

(b) is, as a result of that injury,

(i) unemployable, or

(ii) not employable for 40 hours a
week.

(2) The director may award a lost earning capacity benefit to
a victim affected by a loss of employability in an amount that equals the
difference between 40 hours a week and the average number of hours the
victim is employable after the eligible injury, up to a maximum of
40 hours a week, less the victim's income from other sources.

(3) Subject to subsections (4) and (5), a victim is eligible
for a benefit under subsection (2) from the date the victim first became
affected by the loss of employability, as determined by the director.

(4) The director must not award a lost earning capacity
benefit to a victim who is a minor at the time of the eligible injury, unless
the minor victim was living independently at the time of that injury.

(5) A victim who is a minor who is not living independently
at the time of the eligible injury is eligible for a lost earning capacity
benefit on becoming 19 years old, payable from that date if the victim is
still affected by a lost earning capacity.

(6) The director may require a
victim who is employable, as a condition of the victim receiving a lost
capacity benefit, to participate in vocational services that are specified by
the director.

Under this provision, the following factors must be
present before the Director will award any amount of lost earning capacity
benefits: (1) the claimant has suffered an eligible injury, (2) the eligible
injury has resulted in a loss of employability, (3) the claimant was employable
(as I have defined that term above) but not employed at the time of the injury,
and (4) the claimant is affected by the loss of employability. The first three
criteria come from s. 6(1) and crystallize at the time of the injury. The
fourth factor comes from s. 6(3) and, as I will explain more fully below, may
change over time depending on the claimants conduct rendering him or her unfit
for employment.

[69]

I note first s. 6(3), which accords the Director a broad discretion
to determine the start date for the payment of lost earning capacity benefits,
if awarded. In the case of this claimant, it would be that date in the future
when the Director determined on the basis of the evidence before him that Mr. Laursen
would have been fit for employment but for his compensable injury. Determining
when Mr. Laursen is actually affected by the loss of employability
requires a judgment call by the Director, but that is what s. 6(3)
contemplates. Indeed, it is little different from the discretionary
determination made by trial judges in quantifying damages for loss of earning
capacity in personal injury cases.

[70]

How would the scheme work in this case? It seems to me that the Director
would first determine whether the three s. 6(1) criteria are met. Under
s. 6(3), he would then determine a future date when Mr. Laursen would
likely have been fit for employment. If the evidence permits him to identify
such a date then benefits would be paid in accordance with s. 6(2). If the
Director awarded him lost earning capacity benefits and Mr. Laursen later
relapsed such that he was no longer
affected
by the loss of
employability precipitated by the compensable injury, s. 12(1) of the
Act
would require him to so notify the Director such that a reassessment of his
eligibility for the benefit might be undertaken. Indeed, under s. 12(3) of
the
Act
, the Director may on his own initiative reassess a persons
eligibility for a benefit under the
Act
.

[71]

Before I leave s. 6(3) of the
Regulation
, I would address a
point stressed by the Director: if employability and employable look, as
well, to future potential, this subsection, says the Director, becomes
nonsensical because a claimant would be employable at all times; there would
be no interval in any case as s. 6(3) contemplates in some situations. The
answer is this: in Mr. Laursens case, for example, he would only begin to
receive the benefit as of the future date determined by the Director when he
would likely have been fit for actual employment. The evidence presently before
the Director may or may not satisfy him that Mr. Laursen would have been
employable by a particular future date. That is his decision to make. While it
is possible that Mr. Laursen remains employable at all times (even during
his alcohol and drug-induced incapacity) he only becomes affected by the loss
of the potential for actual employment so as to become entitled to a
compensable benefit, when he has made himself otherwise fit for employment (for
example, by remaining clean and sober as he has now done for over a year).

[72]

This interpretation of employable is consistent with the context of
the
Regulation
and gives effect to the purpose of the legislation as a
whole.

[73]

Regarding the legislative context, as I indicated above, this
interpretation gives effect to the distinction between lost earning capacity
and income support benefits, which use employable and employed,
respectively. It is consistent with the reference to employability in the
eligibility criteria for vocational services, which would serve to advance the
applicants ability to become employed in the future (s. 2,
Regulation
).
It also does not offend the plain meaning of employable as it is used in
determining compensation for short and long term losses of employability since
those awards are dependent on the victim holding a job at the time of the
injury (ss. 3, 4,
Regulation
).

[74]

Moreover, this interpretation avoids the absurdity of the Directors
interpretation that individuals suffering from transitory conditions preventing
them from working at the moment they are injured (e.g., pregnancy, bereavement
leave, intoxication) would be forever ineligible for lost earning capacity
benefits. In my view, it cannot have been the intent of the Legislature to
preclude these individuals from recovering vocational and lost earning capacity
benefits.

[75]

As it relates to the purpose of the legislation, when the
Act
was
introduced in the Legislative Assembly the Honourable Rich Coleman set out the
purpose behind the legislation as follows:

Changes to make this program more responsive have long been
advocated by victims[] groups and stakeholders. This new legislation will
allow the ministry to provide a program that effectively responds to victims of
crime while being fiscally accountable to government. Even after these changes,
the B.C. program will still be among the most generous in Canada.

(British Columbia,
Official
Report of Debates of the Legislative Assembly (Hansard)
, 37
th
Parl., 1st Sess., Vol. 2, No. 23 (21 August 2001) at 691.)

[76]

Requiring that the Director have regard to the applicants potential for
future employment gives effect to the legislative intent to put victims of
crime back in their original position. Requiring applicants to prove that they
had the requisite intent and ability
at the time of the injury
(s.
6(1)(a)) and only paying benefits when the victim is actually affected by the
loss of employability (s. 6(3)) ensures that the Crime Victim Assistance
Program remains accountable to the public purse.

[77]

I now turn to applying this interpretation to the facts at hand. Here, the
Director considered Mr. Laursens income tax returns from 2002 to 2010.
The returns indicate that Mr. Laursen earned some income in 2001
($10,459), 2005 ($1,112), 2006 ($16,804), 2007 ($19,647) and 2008 ($9,860).
While these are not substantial sums, they are reflective of some

capacity
to earn income. Moving to the time of the injury, Mr. Laursen was not
gainfully employed when injured but intended at some future point to be,
indeed in his case, in April 2011.

[78]

The question is: did he have the intent and ability or was he capable
of being gainfully employed (Fridman)? In the eyes of one employer  the
recovery facility in the person of Mr. Cavanagh  he certainly was. Ms.
Toth provided some evidence that Mr. Laursen would have been gainfully
employed if not for the compensable injury when she stated (and I repeat her
words):

Despite the unpredictability of
sobriety, that Mr. Laursen has been doing so remarkably well despite what
he has been through, speaks to his tremendous resiliency and the possibility
for him to have become sober, no matter the circumstances. While
Mr. Laursen was not deemed to be employable at the time of his injury, he
certainly had the potential for future employment and lost that potential not
because of a lack of sobriety on his part, but because of the crime that was
committed against him. I would ask that the Crime Victims Assistance Program
reconsider your decision and take into account that while it is impossible to
guarantee that Mr. Laursen would be clean and sober on April 1, 2011 we
also cannot rule out that he could have been.

[79]

As I noted earlier, the adjudicator misstated Ms. Toths evidence:
he said in the impugned decision that he appreciated her submissions regarding
Mr. Laursens potential for
future
employability Ms. Toth
was not speaking of future employability, she was speaking of future
employment
and it was that potential that was lost. By equating employment with
employability the adjudicator conflated income support benefits with lost
earning capacity benefits.

[80]

The Director properly discounted Mr. Cavanaghs view in his
consideration of income support benefits. But when he again discounted Mr. Cavanaghs
and Ms. Toths letters in assessing Mr. Laursens eligibility for
lost earning capacity benefits, he adopted an improperly constrained
interpretation of capable of being employed. He disregarded Mr. Laursens
ability to attract a firm offer of employment as of February 2011. The Director
(through the adjudicators) did not engage in a testing of Mr. Laursens
potential for future employment as he must do when determining eligibility for
lost earning capacity benefits.

[81]

Indeed, the Director himself expressly recognized the need for this in
the case of others who might be unable to work at the critical time but who
might otherwise find work in the future. At para. 66 of his factum the
Director states:

The clear purpose of lost earning
capacity benefits is to provide a benefit similar to income support for persons
who were able to be employed at the time of the crime but were not. This could
include students who were physically and mentally able to be employed, but were
not because they were attending school. Likewise it could include full-time
caregivers who could have been employed at the time of the injury had they not
chosen to stay at home to take care of a child or a sick parent or spouse. It
also could include persons who recently lost their job and had yet to secure another
one. In light of s. 6(3) of the
Regulation
, these persons would not
begin to receive benefits until such time as they were actually affected by
their loss of employability, as determined by the Director (i.e. when the
Director believes they would have been employed). This properly balances
expenditures of tax-payer funds with providing benefits to victims so that they
are in a similar position to their position at the time of the crime.

[82]

The Director is here recognizing that notwithstanding the transitory
inability to actually work at the time of the injury, the opportunity to work
in the future has been lost and that loss should be compensated. He also
recognizes that persons should begin to receive benefits when the Director
believes they would have been employed. This is consistent with how I have
outlined the operation of the statutory scheme in these reasons. It is
impossible to reconcile permitting recovery for the individuals referenced by
the Director in his factum, yet deny recovery to an individual solely because
he was suffering a drug relapse at the time of the injury. The legislation
makes no such distinction between the types of incapacity that would preclude
recovery. In fact, in some cases, it would be discriminatory to do so.

[83]

The Director as evidenced by his treatment of students, caregivers and
the temporarily unemployed in his written submissions on appeal recognizes the
proper interpretation of capable of being employed; his failure to apply it in
Mr. Laursens case and to engage in a consideration of the possibility of Mr. Laursens
lost opportunity of future employment makes the decision at bar unreasonable.

[84]

I turn now to the argument that s. 11 of the
JRPA
 which
the parties appear to agree would otherwise permit the application to proceed
has been impliedly repealed by later legislative enactments.

[85]

In my view, Mr. Laursen has met the
standard required for this Court to consider a new issue raised for the first
time on appeal. The issue is a question of pure law that can be resolved with
reference to the parties positions, as outlined in the amended petition and
response to petition as well as their submissions before this division. Further,
the Director has not identified any prejudice he would suffer if this Court were
to determine whether the application is statue-barred. (See
On Call Internet
Services Ltd. v. Telus Communications Company
, 2013 BCCA 366 at paras. 6566.)

[86]

Turning to the merits, s. 11 of the
JRPA
reads as follows:

An
application for judicial review is not barred by passage of time unless

(a) an enactment otherwise provides, and

(b) the court
considers that substantial prejudice or hardship will result to any other
person affected by reason of delay.

[87]

The provisions application in the present case can
be broken down into two sub-issues:

1. Does the
JRPA
govern the issue of whether a late-filed application under the
Act
is
statute-barred?

2. If it does, do subsections 11(a) and (b) apply?

[88]

On the first sub-issue, it is most efficient to first
consider the Directors argument that s. 11 of the
JRPA
was impliedly
repealed by s. 57 of the
ATA
. Section 1.1 of the
ATA
provides that the provisions of the Act do not operate, except as made
applicable to a tribunal or other body by another enactment. In
Speckling
,
the Court considered the
Workers Compensation Act
, R.S.B.C. 1996,
c. 492, which expressly makes s. 57 applicable to the tribunal.
Nowhere in the
Act
or associated regulations is there reference to the
ATA
being applicable to the Director. Nor am I convinced that by enacting the
ATA
,
the Legislature communicated a broader intention to repeal all limitation
periods set out in individual statutes regardless of whether the
ATA
expressly applies to them.

[89]

I am also unconvinced by the Directors argument
that s. 14.1(2) of the
Act
impliedly repealed s. 11 of the
JRPA
.
The test for implied repeal in
Conseil scolaire francophone de la
Colombie-Britannique v. British Columbia,
2013 SCC 42

provides that
the new statute must have covered the entire subject-matter of the previous
statute such that according to all other ordinary reasoning the particular
provisions in the prior statute could not have been intended to subsist (at para. 44,
citing
R. v. Mercure
, [1988] 1 S.C.R. 234).

[90]

Subsection 11(a) of the
JRPA
explicitly
contemplates the existence of other enactments setting out a timeframe for
judicial review. This is what s. 14.1(2) of the
Act
does when it
requires judicial review applications to be filed within 60 days. Subsection
11(b) requires the reviewing court to then consider whether substantial
prejudice or hardship will result to any other person affected by reason of
delay. The provisions of the
Act
and
JRPA
are not incompatible
with one another; rather, the
JRPA
calls on the Director to point to
some substantial prejudice or hardship resulting from the delayed application
for judicial review. The difficulty of pointing to such prejudice does not mean
that the Legislature can necessarily be taken to have intended to repeal
s. 11 as applied to the Crime Victim Assistance Program.

[91]

With respect to the second sub-issue, the
Director does not advance any evidence of prejudice and, in fact, concedes that
he is unlikely to be able to show prejudice at any point in considering an
application for judicial review.

[92]

Accordingly, I would conclude that the application for judicial review
is not statute-barred.

[93]

For these reasons I would allow the appeal and remit the issue of Mr. Laursens
entitlement to lost earning capacity benefits back to the Director for
redetermination in accordance with these reasons.

[94]

Mr. Laursen also seeks costs of this appeal on the basis that the
Director argued the merits of the claim on his judicial review application.

[95]

Subject only to certain exceptions, there is a traditional immunity
protecting quasi-judicial tribunals from costs awards (
Lang v. British
Columbia (Superintendent of Motor Vehicles)
, 2005 BCCA 244 at paras. 45-46).
Two exceptions to this immunity are where the tribunal exhibited misconduct in
the proceedings before it, or made improper submissions on the merits of the
judicial review application and did not limit itself to jurisdiction (
18320
Holdings Inc. v. Thibeau
, 2014 BCCA 494 at paras. 55-69;
Lang
at
para. 2). Mr. Laursen relies on the latter exception.

[96]

Key to the application of this exception is whether the tribunal
improperly
argued the merits.

[97]

The Director does not dispute that he argued the merits. The question is
whether he properly did so. In my view, he did. In
Thibeau
I noted that
the exceptions in
Lang
do not authorise an award of costs against a
tribunal which of necessity argues the merits where there is no one else to
argue the other side (at para. 58). Here, no one other than the Director
would have argued the merits such that he is entitled to the traditional
immunity protecting him from costs awards.

[98]

Accordingly, I would not award costs to Mr. Laursen.

The
Honourable Chief Justice Bauman

I agree:

The Honourable Madam
Justice Bennett

I agree:

The Honourable Madam Justice Dickson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Fike,

2017 BCCA 11

Date: 20170110

Docket:
CA44062

Between:

Regina

Respondent

And

Eric James Fike

Appellant

Before:

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Fitch

On appeal from:  An
order of the Provincial Court of British Columbia,
dated March 14, 2012 (
R. v. Fike
, Prince George Registry 33053).

Counsel for the Appellant:

G. Kotz

Counsel for the Respondent:

R.D. Leong

Joint Statement on Sentence Appeal filed:

Vancouver, British
  Columbia

December 13, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 10, 2017

Written Reasons by:

The Honourable Mr. Justice Willcock

Concurred in by:

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Fitch

Summary:

The
appellant applies for an adjustment of time in custody in accordance with R. v. Summers,
2014 SCC 26. Held: Appeal allowed. The appellant is entitled to a credit
on a 1:1.5 basis.

Reasons
for Judgment of the Honourable Mr. Justice Willcock:

[1]

The appellant, Eric James Fike, applies for an
extension of time to appeal, leave to appeal, and if granted appeals his
sentence to reflect credit for pre‑sentence custody at a ratio of 1.5 days
for each day spent in pre‑sentence custody, in accordance with
R. v. Summers
,
2014 SCC 26.

[2]

Mr. Fike was arrested on September 24,
2010 and remained in custody for approximately 18 months until his conviction,
in Prince George, British Columbia. On March 14, 2012, he pleaded guilty
to two counts of possession of cocaine for the purpose of trafficking (counts 1
and 5) and three counts of possession of prohibited firearms with
ammunition (counts 2, 3 and 4) and was sentenced to three concurrent 9‑month
sentences in relation to each drug possession conviction, after having been
credited for pre‑sentence custody in relation to those charges of 9 months
on a 1:1 basis; and three concurrent 51‑month jail sentences (to be
served consecutively to the drug charges) in relation to the firearms offences,
after having been credited for pre‑sentence custody of 9 months on a 1:1
basis in relation to those offences. The actual sentence imposed was therefore
60 months imprisonment.

[3]

The Crown advises that it does not oppose the
granting of credit for pre‑sentence custody at a ratio of 1:1.5 and
acknowledges that Mr. Fike is not disqualified from receiving such credit
by reason of s. 719(3.1) of the
Criminal Code
. However, the parties
agree that the sentencing judge apparently gave the appellant credit for the
harsh conditions of his pre‑sentence detention, an amount not specified
and impossible to calculate given its attachment to two other considerations,
together totaling 6 months, that reduced his sentence. They jointly submit
that the appellant will have received appropriate credit for pre‑sentence
incarceration, in accordance with the principles described in
Summers
if
he is now given three months additional credit.

[4]

In these circumstances, I would grant an
extension of time for the filing of this appeal, grant leave to appeal, and
allow the appeal to the extent only that the sentence on counts 2, 3 and 4
be reduced to 48 months with credit granted of 21 months (12 months of which
are attributed to those counts) for pre‑sentence custody.

[5]

I would accordingly make the following orders:

a)       granting an extension of time to appeal;

b)       granting leave to appeal; and

c)       allowing the appeal to the extent only that the sentence on
counts 2,3 and 4 be reduced to 48 months.

The Honourable Mr. Justice Willcock

I agree:

The
Honourable Mr. Justice Goepel

I agree:

The
Honourable Mr. Justice Fitch


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Henareh,

2017 BCCA 7

Date: 20170110

Docket: CA43305

Between:

Regina

Respondent

And

Esfandiar Henareh

Appellant

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Fitch

On appeal from:  An
order of the Supreme Court of British Columbia, dated January 5, 2015 (
R. v.
Henareh
, 2014 BCSC 566, Vancouver Docket 26235-5).

Counsel for the Appellant:

J.P. Desbarats

Counsel for the Respondent:

W.P. Riley, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

December 16, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 10, 2017

Written Reasons by:

The Honourable Mr. Justice Fitch

Concurred in by:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Kirkpatrick

Summary:

The appellant
appeals from conviction for possessing opium for the purposes of trafficking on
grounds that evidence obtained in a search of his vehicle incidental to a
warrantless arrest should not have been admitted at trial. The central issue is
whether the arresting officers subjective belief that he had reasonable
grounds to arrest the appellant was objectively reasonable. Held: appeal
dismissed. The trial judge did not err in law or misapprehend the evidence.
Though importation of drugs is not a continuing offence, the appellants
post-importation conduct afforded cogent evidence of his involvement in the
importation. The trial judge was not obliged to rule out every possible innocent
inference for the appellants suspicious activity. She properly assessed the
totality of the circumstances known to the arresting officer at the time of
the arrest and correctly concluded that the arresting officers subjective
belief was reasonable. There was ample evidence supporting her conclusion.

Reasons for Judgment of the Honourable Mr. Justice
Fitch:

A.       Introduction

[1]

On March 11, 2011, the appellant, Esfandiar Henareh, was arrested by
Sgt. Fossum for importing opium. The vehicle driven by the appellant at
the time was searched by a different officer incidental to the arrest.
Concealed in three coolers located in the trunk of the vehicle was 13.78
kilograms of opium with a wholesale value of approximately $275,000.

[2]

The central issue on this appeal is whether Sgt. Fossum had reasonable
grounds to arrest the appellant without a warrant under s. 495 of the
Criminal
Code
, R.S.C. 1985, c. C-46. More specifically, the issue is whether
Sgt. Fossums subjective belief that he had reasonable and probable grounds to
arrest the appellant was objectively reasonable. If the arrest was lawful, the
appellant concedes, as he has throughout, that it afforded justification for
the search of the vehicle.

[3]

Following a six-day
voir dire
, the trial judge held, in reasons
indexed as 2014 BCSC 566, that the arrest was lawful because Sgt. Fossum
subjectively believed that he had reasonable and probable grounds to arrest the
appellant and his belief was objectively reasonable. The trial judge admitted
the drug-related evidence, and the appellant was convicted of one count of
possession of opium for the purpose of trafficking contrary to s. 5(2) of
the
Controlled Drugs and Substances Act
,

S.C. 1996, c. 19. He
appeals from conviction.

[4]

In my view, the trial judge did not err in concluding that Sgt. Fossum
had objectively reasonable grounds to arrest the appellant for importing opium.
For the reasons that follow, I would dismiss this appeal.

B.       Background

(a)      Overview of Events Leading to the Arrest

[5]

On January 27, 2011, Sgt. Fossum received information from an unknown
tipster that a man named Aghasi, said to be associated with a particular
address in Burnaby, and a man named Henareh were involved in importing opium
into Canada. Sgt. Fossum relayed this information to the Canada Border Service
Agency (CBSA).

[6]

On February 3, 2011, Sgt. Fossum received additional information from
the same tipster that Aghasi and Henareh were importing opium from Iran,
that Aghasi had been responsible for importing large amounts of opium into
Canada, and that there was a large amount of opium in his Burnaby residence.

[7]

Within a few hours of receiving this information, Sgt. Fossum attended
at the Burnaby address provided by the tipster and spoke with Aghasi Salamat
Ravandi. Mr. Salamat Ravandi confirmed that he was from Iran and that
while his father was an opium addict, he had never before seen opium. He
invited Sgt. Fossum to do a cursory search of the apartment. No opium was
discovered.

[8]

On March 9, 2011, Sgt. Fossum received information from the CBSA that a
shipment had arrived from Iran addressed to Mr. Salamat Ravandi at his
Burnaby residence. The shipment consisted of four large packages that were said
to contain samovars (teapots) and rugs. The packages were referred for
secondary inspection. Three of the packages contained samovars. One package
contained rolled up rugs. The samovars were deconstructed and found to contain a
total of approximately 18 kilograms of opium.

[9]

On the same day, Mr. Salamat Ravandi attended at the CBSA Air Cargo
Centre in Richmond to collect the shipment. He was told that it would take a
number of days for the shipment to clear and that he would be contacted to
re-attend for pick up.

[10]

Sgt. Fossums team, working in collaboration with the CBSA, began
planning a controlled delivery of the packages to Mr. Salamat Ravandi on March
14, 2011.

[11]

On March 11, 2011, Mr. Salamat Ravandi unexpectedly returned to the
CBSA Air Cargo Centre to collect the shipment. Sgt. Fossum was advised of this
development and a surveillance team was quickly assembled consisting of RCMP
and CBSA officers.

[12]

Mr. Salamat Ravandi was invited by a CBSA officer to wait in a
small coffee shop adjacent to the CBSA Air Cargo Centre for his packages to be
readied for delivery. He was observed by surveillance officers sitting at a table
in the café. A second Persian man, later identified as the appellant, was
seated in the café at the same time. Both men were typing on their handheld
devices but did not speak or appear to acknowledge one another. Mr. Salamat
Ravandi exited the café. Shortly thereafter, the appellant exited the café and
walked in the same direction as Mr. Salamat Ravandi.

[13]

The appellant was observed getting into a Honda Civic with an identified
licence plate number.

[14]

Mr. Salamat Ravandi returned to the CBSA Air Cargo Centre with a
U-Haul van to collect the shipment. The four packages were loaded into the van
and Mr. Salamat Ravandi drove away. He was followed by surveillance
officers.

[15]

Sgt. Fossum observed Mr. Salamat Ravandi pull over and park in the
2000 block of S.E. Kent Avenue in Vancouver. He appeared to have his head down,
sending text messages on his phone. He did not exit the van. Three minutes
later, he did a U-turn and drove back down the street. He parked on SE Kent in
front of a building associated with the address of the plate holder for the Honda
the appellant was seen driving away from the CBSA Air Cargo Centre.

[16]

At this point, Sgt. Fossum noticed the appellant standing near the Honda
right across the street from where Mr. Salamat Ravandi parked the van. The
appellant did not immediately cross the street but continued to look to his left
and right, even though it was safe for him to cross the street and join Mr. Salamat
Ravandi.

[17]

The appellant eventually crossed the street to where Mr. Salamat Ravandi
parked the U-Haul. From a distance of approximately 150 metres and while using binoculars,
Sgt. Fossum watched the two men load one of the packages from the van into the
Honda. From his vantage point, Sgt. Fossum could not tell which one of the four
packages was transferred to the Honda. Both men then got into the Honda and the
appellant drove away. Sgt. Fossum and other surveillance officers followed.

[18]

For a couple of minutes, the appellant drove behind a slow-moving
transport truck without attempting to pass. Sgt. Fossum testified that it made
no sense for the appellant to stay behind the truck.

[19]

The appellant then turned into Central Park. The park is serviced by one
road. The appellant backed into a parking space enabling a clear view of anyone
else entering the park. Mr. Salamat Ravandi got out of the vehicle and had
a cigarette. The two men left the park about seven minutes later.

[20]

The appellant drove in the direction of Mr. Salamat Ravandis
residence, but took an indirect route that added distance and travel time.

[21]

The appellant parked a block or two away from Mr. Salamat Ravandis
residence in Burnaby. The appellant stayed in the vehicle while Mr. Salamat
Ravandi got out and began walking towards his building. This made no sense to
Sgt. Fossum because there was ample parking closer to Mr. Salamat
Ravandis building.

[22]

The appellant then drove around to the back alley of Mr. Salamat
Ravandis building. Sgt. Fossum stopped the Honda and arrested the appellant
for importing a controlled substance.

[23]

After the arrest, Sgt. Fossum directed Cpl. Greenway to search the
Honda. The package transferred from the U-Haul to the Honda was discovered to
be the one that contained rugs. As mentioned earlier, Cpl. Greenway found
13.787 kilograms of opium in three coolers located underneath a blanket in the
trunk of the Honda.

(b)      Subjective Grounds for the Arrest

[24]

There is no question that Sgt. Fossum subjectively believed he had
reasonable and probable grounds to arrest the appellant for importing opium. He
testified on the
voir dire
that his subjective belief in the existence
of reasonable grounds to arrest the appellant for this offence was based on his
evaluation of the following information:

·

the tips received on January 27 and February 3, 2011, had been
confirmed in important ways. As the tipster indicated, a large shipment of
opium had been shipped to Aghasi Salamat Ravandi at his Burnaby address from
Iran;

·

the tips included the fact that a second man was involved with
Aghasi in the importation of opium from Iran;

·

a second Persian man, later identified as the appellant, was seen
sitting in the café while Mr. Salamat Ravandi waited for his shipment to clear.
Based on surveillance information relayed to him, Sgt. Fossum believed that
they were texting with one another but wanted to conceal the fact that they
were together. Sgt. Fossum testified that he believed the second Persian mail
to be involved because it makes no sense not to be  not  it would make no
sense for him not even to be with his friend;

·

Sgt. Fossum also testified that, based on his experience, the
behaviour of the appellant in the café was consistent with the role played by a
watcher in an importation scheme. He testified that watchers are used about
90% of the time;

·

both men left the café at the same time without talking to one
another;

·

the behaviour of the appellant on SE Kent  looking to his left
and right as Mr. Salamat Ravandi remained seated in the U-Haul van parked
across the road  was consistent with the activity of a watcher seeking to
flush out surveillance;

·

the appellant eventually met up with Mr. Salamat Ravandi on
SE Kent and the two men carried one of the four packages from the U-Haul to the
Honda; and

·

the appellant subsequently engaged in what Sgt. Fossum described
as common counter-surveillance techniques or heat checks, including: driving
behind a slow-moving vehicle in such a way as to force trailing surveillance
officers to pass or be exposed; stopping in Central Park to flush out
surveillance; taking a circuitous route from SE Kent to a location near the
Burnaby residence of Mr. Salamat Ravandi; and parking several blocks away
from Mr. Salamat Ravandis residence when there was no reason to do so.

[25]

In cross-examination, Sgt. Fossum testified that he believed the package
transferred from the U-Haul to the Honda was one of the three packages
containing opium-stuffed samovars (as opposed to the package containing rugs)
as this accounted for what he considered to be heat checks engaged in by the
appellant after the transfer occurred.

[26]

Sgt. Fossum explained that everything together caused him to believe
that both men were directly involved in the importation of opium.

C.       Reasons for Judgment on the
Voir Dire

[27]

The trial judge engaged in an extensive review of the governing
jurisprudence. The appellant does not suggest that the trial judge misdirected
herself on the applicable law.

[28]

The trial judge also engaged in an exhaustive review of the evidence. She
noted that Sgt. Fossum was an experienced drug investigator, knowledgeable in
matters pertaining to the importation of drugs, including opium. She found him
to be a credible and reliable witness.

[29]

The trial judge referenced the specific information provided in the tips
and found that the tips had been shown to be quite reliable through
independent confirmation. She noted that the commission of the crime itself
confirmed the reliability of much of the information supplied by the tipster.
Given the general reliability of the tipsters information, she concluded that
it was objectively reasonable for Sgt. Fossum to proceed on the basis that a
second male was working with Mr. Salamat Ravandi in the smuggling of opium
as the tipster had indicated.

[30]

The trial judge characterized the appellant and Mr. Salamat Ravandis
behaviour in the café as purposefully avoidant. Viewing the circumstances in
their totality, she concluded that if the appellant was an innocent dupe merely
assisting a friend with an errand, he would not have avoided speaking with or
sitting near Mr. Salamat Ravandi in the café. She said:

[49]      Taken
cumulatively, the events raise a much stronger probability that the two persons
were acting together in the importation of opium. Once the police had seen Mr. Henareh
at the airport and then again on Kent Street, they were entitled to look at the
two circumstances together: If Mr. Henareh was an innocent party just
helping out Mr. Ravandi, why would he avoid speaking to him or sitting
near him in a small airport café when they meet a short time later. This
purposeful avoidance is inconsistent with a mere associate helping a friend in
what he believed was an innocent activity.

[31]

She referenced the transfer of one of the packages from the U-Haul to
the Honda and the appellants role in facilitating that transfer. She noted the
heat checks engaged in by the appellant after the package had been
transferred to the Honda. Based on the appellants surveillance-conscious behaviour
after the transfer, she found that it was reasonable in the totality of the
circumstances for Sgt. Fossum to believe that the bag which had been moved into
the Honda contained opium.

[32]

With respect to the central issue that arises on this appeal, the trial
judge said:

[71]
The level of particularity in his
[Sgt. Fossums] testimony regarding the conduct of Mr. Henareh, in
relation to his experience and the information in his possession at the time of
arrest as set out above, provides ample evidence for me to find that not only
did Sgt. Fossum subjectively believe he had reasonable and probable grounds to
arrest Mr. Henareh, but also that a reasonable person in his place would
have believed that there were reasonable and probable grounds for the arrest.

[72]
The Crown has discharged its onus
on both the subjective and objective elements of the test.

[73]
I
therefore find that the arrest was lawful under s. 495(1)(a) of the
Criminal Code
, as the arresting officer had, both
subjectively and objectively, reasonable and probable grounds to arrest Mr. Henareh
in the totality of the circumstances.

D.       The Positions of the Parties

[33]

The appellant argues that that the trial judge erred in law in finding
Sgt. Fossums subjective belief to be objectively reasonable. While the
appellants submissions focussed on the trial judges reliance on his behaviour
in the café and her assessment of the reliability of the information contained
in the tip, he advances a number of additional points. In particular, he argues
that:

·

Sgt. Fossum blindly accepted the inference drawn by unknown
CBSA surveillance officers from the behaviour of the two men in the café that Mr. Salamat
Ravandi and the appellant didnt want it to be known that they knew each
other. In the absence of additional supporting facts, it was not reasonable
for Sgt. Fossum to proceed on this factual footing;

·

Likewise, the trial judges inference that the appellant and Mr. Salamat
Ravandi engaged in purposefully avoidant behaviour while together in the café
is said to be based on a misapprehension of the evidence. The trial judges
finding that the appellant avoided sitting near Mr. Salamat Ravandi in the
café was not a fact relayed to Sgt. Fossum. Although it was set out in an
agreed statement of facts that the two men sat at separate tables in the café,
Sgt. Fossum did not testify that he had been so informed. It was, therefore, an
error for the trial judge to incorporate this into her purposeful avoidance
finding. The error is said to be material because it affected the trial judges
assessment of the objective reasonableness of Sgt. Fossums grounds to arrest.
Specifically, the trial judge relied on this finding to reject a competing
inference put forward by the appellant that he was an innocent party helping
out a friend with what he believed to be a legitimate pick up of goods;

·

Importation of opium is not a continuing offence; it is complete
once the drugs have entered the country:
R. v. Bell
, [1983] 2 S.C.R. 471.
Accordingly, any observations about the appellants suspicious behaviour
subsequent to the importation of the drugs could not, standing alone, give rise
to reasonable and probable grounds to arrest him for opium importation;

·

The trial judge erroneously found that the reliability of the tipsters
information had largely been confirmed by the time of the arrest. In fact, all
of the details of the tip that were corroborated related to Mr. Salamat Ravandi
and not to the appellant. At the time of the arrest, there was no corroboration
that a second person was involved in the importation of opium aside from
unreasonable inferences made by CBSA officers regarding the appellants
behaviour in the café;

·

The trial judge erroneously found that it was reasonable for Sgt.
Fossum to have believed that the package loaded into the Honda contained drugs.
There was no evidence before her to justify that conclusion because the size
and shape of the package loaded into the Honda was different from the packages
that contained drugs; and

·

The trial judge erred in finding that Sgt. Fossums belief was
objectively reasonable when it was clear that a number of competing and innocent
inferences could be drawn from the appellants behaviour.

[34]

The appellant argues that his detention was arbitrary and the search of
his vehicle that led to the discovery of the opium a breach of his s. 8
rights.

[35]

The Crown submits that the trial judge made no error in fact or in law.
The Crown argues there was abundant evidence to support the trial judges
conclusion that Sgt. Fossums subjective belief that he had grounds to arrest
the appellant for importing opium was objectively reasonable.

F.       Analysis

(a)      Governing Legislation

[36]

Section 495(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46,
provides that:

495.  (1)  A peace officer may
arrest without warrant

(a)     a person who has committed an indictable offence or
who, on reasonable grounds, he believes has committed or is about to commit an
indictable offence.

(
b)      Guiding
Principles

[37]

A number of uncontentious principles frame the core issue that arises
for determination on this appeal.

[38]

In
R. v. Storrey
, [1990] 1 S.C.R. 241 at 250-251, the Court held
that there is a subjective and objective element to the test for a lawful
arrest under s. 495(1)(a):

In summary then, the
Criminal
Code
requires that an arresting officer must subjectively have reasonable
and probable grounds on which to base the arrest. Those grounds must, in
addition, be justifiable from an objective point of view. That is to say, a
reasonable person placed in the position of the officer must be able to
conclude that there were indeed reasonable and probable grounds for the arrest.
On the other hand, the police need not demonstrate anything more than
reasonable and probable grounds. Specifically they are not required to establish
a
prima facie
case for conviction before making the arrest.

[39]

The reasonable grounds standard requires something more than mere
suspicion, but something less than the standard applicable in civil matters of
proof on the balance of probabilities:
Mugesera v. Canada (Minister of
Citizenship & Immigration)
, 2005 SCC 40 at para. 114. The
appropriate standard is one of reasonable probability:
R. v. Debot
,
[1989] 2 S.C.R. 1140 at 1166. Reasonable or credibly-based probability
contemplates a practical, non-technical and common sense evaluation of the
probability of the existence of facts and asserted inferences:
R. v. Sanchez
(1994), 93 C.C.C. (3d) 367 at 367 (Ont. Ct. (G.D.)).

[40]

Determining whether reasonable and probable grounds exist requires an
assessment of the totality of the circumstances:
R. v. Debot
at 1168.

[41]

A trial judges ruling on whether objectively reasonable grounds to
arrest have been shown is a question of law subject to a correctness standard:
R.
v. Shepherd
, 2009 SCC 31 at para. 20. Factual findings and inferences
made in the course of the analysis are, however, entitled to deference and fall
within the exclusive domain of the trial judge absent palpable and overriding
error:
R. v. Mann
, 2004 SCC 52 at para. 49;
R. v. Cornell
,
2010 SCC 31 at para. 25;
R. v. Bush
, 2010 ONCA 554 at para. 48.

[42]

Trial judges are obliged to assess the objective reasonableness of an
arresting officers belief that he or she had reasonable grounds to arrest from
the perspective of a reasonable person standing in the arresting officers shoes.
The analysis takes account of the arresting officers knowledge and experience
with respect to the matter under investigation:
R. v. Luong
, 2010 BCCA
158 at para. 24;
R. v. Wilson
, 2012 BCCA 517 at para. 26.

(c)      Surveillance at the Café and the Alleged
Misapprehension of the Evidence

[43]

I will deal together with the first two points made by the appellant.

[44]

First, there is no evidence that Sgt. Fossum blindly accepted the
observations communicated to him by the surveillance team that the appellant took
steps to make it appear as if he did not know Mr. Salamat Ravandi when
both of them were in the café. The trial judge made no such finding and it is
clear from the evidence of Sgt. Fossum that he weighed the totality of the
information before him before determining to arrest the appellant for importing
opium. Further, the appellants submission on this and on other points invites
an inappropriate piecemeal assessment of the evidence. The trial judge
correctly approached the central issue before her  whether Sgt. Fossums
subjective grounds for arrest were objectively reasonable  on the basis of the
totality of the information available to him.

[45]

I am also unable to accept the submission that the trial judge
misapprehended the information that had been communicated to Sgt. Fossum by the
surveillance team about the appellants behaviour in the café. While Sgt.
Fossum did not specifically testify that he had been informed that the two men
avoided sitting near one another in the café, it is clear that he was supplied
with the essence of this information. On direct examination, Sgt. Fossum
testified that Mr. Salamat Ravandi was observed sitting and there was
another male  Persian male  that was sitting and the  they both seemed to be
connected On cross-examination, Sgt. Fossum testified that he believed the
two men were texting each other because it makes no sense not to be  not  it
would make no sense for him not even to be with his friend It was open to the
trial judge to put these statements together and find that Sgt. Fossum had been
informed that the two men were not sitting together. Further, the trial judges
finding that the appellant and Mr. Salamat Ravandi engaged in purposefully
avoidant behaviour while they were in the café was reasonable and supported by
the subsequent behaviour of the two men on SE Kent. In my view, there is no
basis upon which this Court could properly interfere with what amounts to a
factual inference.

(d)      The Offence of Importing Opium was
Complete when the Appellant Attended at the CBSA Air Cargo Centre

[46]

The appellant argues that importation of drugs is not a continuing
offence and that it was unreasonable for Sgt. Fossum to infer that he was
involved in importing opium based on his behaviour after the drugs had entered
Canada. I cannot accede to this argument. Although importation is not a
continuing offence, I agree with the position of the Crown that subsequent conduct
can afford cogent evidence of involvement in the offence of importing drugs. I
see nothing wrong with the trial judges evaluation of the reasonableness of
Sgt. Fossums grounds for arrest in light of the appellants post-importation
conduct. This is particularly true in the instant case where the police had information
that two men were involved in importing opium from Iran.

(e)      The Trial Judges Reliance on the
Tipsters Information

[47]

I cannot accept the appellants submission that the trial judge
committed reviewable error by overemphasizing the reliability of the tipsters information.

[48]

Although nothing was known of the tipsters history of reliability, the
information supplied by the informer was rich in detail and confirmed in
material ways. In these circumstances, it was reasonable for Sgt. Fossum to
regard the tip as a whole as reliable, including information that a second man
was involved in importing opium from Iran. Indeed, this information could
reasonably be regarded as having been confirmed by the appellants conduct the
day Mr. Salamat Ravandi took delivery of shipment.

(f)       The Trial Judges Finding that it was
Reasonable for Sgt. Fossum to Believe that the Package Transferred to the Honda
Contained Opium

[49]

Similarly, I cannot accept the appellants argument that the trial judge
erred in finding that it was reasonable for Sgt. Fossum to believe that the
package transferred from the van to the Honda contained opium. From his vantage
point, Sgt. Fossum could not tell one package from the other. It must be
remembered that Sgt. Fossum was conducting covert surveillance from a
considerable distance. All four packages were similar in size and the same
colour. Three of the four packages were known to contain opium. The trial judge
found that it was reasonable, in the totality of the circumstances, for Sgt.
Fossum to believe that the package transferred to the Honda contained opium.
The totality of the circumstances included the post-transfer
counter-surveillance measures employed by the appellant. I see no reviewable
error in the conclusion the trial judge reached on this point.

[50]

I cannot accept the appellants further submission that Sgt. Fossum
placed no reliance on the heat check evidence in formulating what he
considered to be reasonable grounds to make the arrest. While Sgt. Fossum
testified on the
voir dire
that he thought he had reasonable grounds to
arrest when the package was transferred to the Honda, it is apparent from his
evidence as a whole that the appellants counter-surveillance measures also factored
into the formulation of his subjective belief that the appellant was arrestable
for the offence of importing opium. As a consequence, the trial judge made no
error in considering this evidence in determining whether those grounds were
objectively reasonable.

[51]

In summary, the trial judges finding on this point was entirely
reasonable and untainted by palpable or overriding error. Again, there is no
basis upon which this Court could properly interfere on this ground.

(g)      Failure to Consider Other Innocent
Explanations for the Appellants Behaviour

[52]

The appellant argues that the trial judges reasoning effectively
foreclosed consideration of other innocent inferences that might be drawn
from his behaviour at the café and other interpretations of the
counter-surveillance measures. I cannot give effect to this argument. I agree
with the Crown that the appellants submission on this point overlooks the
nature of the reasonable grounds analysis. The trial judge was not obliged to
scrutinize the evidence by employing tests applicable to the determination of
guilt or innocence. She was not obliged to rule out every possible innocent
inference for suspicious activity in determining whether Sgt. Fossums grounds
for arrest were objectively reasonable. Rather, she was obliged to consider the
totality of the circumstances relied upon by Sgt. Fossum and decide whether a
reasonable person standing in the arresting officers shoes and imbued with
that officers knowledge and experience would have believed that reasonable grounds
existed to make the arrest.

(h)      Objective Reasonableness of Sgt.
Fossums Grounds for Arrest

[53]

The trial judge considered the totality of the circumstances and
concluded that it was objectively reasonable for Sgt. Fossum to have believed
that he had reasonable grounds to arrest the appellant for importing opium. In
my view, the trial judge correctly resolved this issue. Given the totality of
the circumstances known to him at the time of the arrest, it was objectively
reasonable for Sgt. Fossum to believe that the man driving the Honda was the
second person identified by the tipster as being involved with Mr. Salamat
Ravandi in importing opium from Iran to Canada. I see no reviewable error in
the trial judges finding on this critical issue. Indeed, I agree with her
observation that there was ample evidence supporting a conclusion that Sgt.
Fossums grounds for the arrest were objectively reasonable.As the arrest of
the appellant was lawful, the search of the appellants vehicle was justified
because it was incidental to the arrest. The appellants
Charter
rights
were not breached in the events that led up to the discovery of the evidence.
In light of the conclusion I have come to on these points, it is unnecessary to
consider the application of s. 24(2).

[54]

I would dismiss the appeal.

The Honourable Mr. Justice Fitch

I AGREE:

The
Honourable Chief Justice Bauman

I AGREE:

The Honourable Madam Justice
Kirkpatrick