COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Klann v. Klann,

2018 BCCA 48

Date: 20180206

Docket: CA44349

Between:

Trevor William
Bird Klann, aka Trevor William

Klann Bird, aka
Trevor William Klann

Respondent

(Claimant)

And

Veronica Klann,
aka Veronica Espino Jasmer

Appellant

(Respondent)

Before:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice A. MacKenzie

The Honourable Mr. Justice Goepel

On appeal from:  An
order of the Supreme Court of British Columbia,
dated March 2, 2017 (
Klann v. Klann
, 2017 BCSC 344,
Vancouver Docket E091805).

Counsel for the Appellant:

I. I. Turaglio

Counsel for the Respondent:

A. N. Winters

Place and Date of Hearing:

Vancouver, British
  Columbia

January 19, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

February 6, 2018

Written Reasons by:

The Honourable Madam Justice A. MacKenzie

Concurred in by:

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Goepel

Summary:

The appellant challenges the
chambers judges order varying the amount of spousal support payable by the
respondent under a consent order. She argues that, on the evidence presented,
the respondent did not establish a material change in circumstances. She also
claims the judge erred in law in varying the quantum of support while not
adjusting its duration. The appellant further brings an application to adduce
fresh evidence. Held: application dismissed; appeal dismissed. The fresh
evidence does not meet the test for admission as it could have been discovered
earlier with due diligence and is not material. The chambers judge committed no
error in finding that a material change in circumstances occurred based on the
uncontested affidavit evidence of the respondent and others. The judge
considered the relevant principles under the Divorce Act and did not err in
limiting the variation to amount of support, the only factor impacted by the
material change. There is no automatic requirement that support must be lengthened
if its quantum is reduced.

Reasons for Judgment of the Honourable
Madam Justice MacKenzie:

[1]

The parties to this appeal were married for 11 years before separating
in 2009 and divorcing in 2013. They have two children who are now aged 14 and
16. In January 2011, the terms of a mediated settlement were incorporated by
consent into a court order. It included spousal and child support payable by Mr. Klann
to Ms. Jasmer (formerly Ms. Klann). The spousal support was to
terminate on June 1, 2020.

[2]

On March 2, 2017, on the application of Mr. Klann, Justice Masuhara
reduced the amount of spousal and child support payable retroactive to
January 1, 2016, based on what he determined to be a material change of
circumstances under s. 17 of the
Divorce Act
, R.S.C. 1985, c. 3
(2nd Supp.).

[3]

Ms. Jasmer appeals the variation order. First, she

contends the
chambers judge erred in finding Mr. Klann met the threshold requirement of
a material change in circumstances, as required by s. 17(4.1) of the
Divorce
Act
, by

relying on contradictory, uncorroborated, and incomplete evidence
in imputing a reduced income to Mr. Klann.

[4]

Alternatively, if the judge did not so err, Ms. Jasmer says he erred
in reducing the amount of spousal support without increasing its duration,
largely because he failed to consider the objectives in s. 17(7) of the
Act.

[5]

Ms. Jasmer also applies to adduce fresh evidence.

[6]

For the reasons that follow, I would not admit the fresh evidence, and
would dismiss the appeal.

Background Facts

The 2011 Consent Order

[7]

In January 2011, following mediation, the parties consented to an order (the
2011 consent order) that included these terms, as summarized by the chambers
judge at para. 13:

(a)     The
parties continued to share joint custody and guardianship, and continued to
share parenting of the Children on an equal basis;

(b)     [Mr.
Klann] was to pay [Ms. Jasmer] $3,114 for child support, which was based on a
set-off of the table amounts payable on an income to [Mr. Klann] of $275,000
and $30,000 to [Ms. Jasmer];

(c)     The
Childrens extraordinary expenses were to be paid in proportion to the parties
respective incomes, at the time 68% to [Mr. Klann] and 32% to [Ms. Jasmer];

(d)     [Mr.
Klann] was to pay [Ms. Jasmer] $5,559 per month as spousal support, based on an
income to [Mr. Klann] of $275,000 and $30,000 to [Ms. Jasmer].  Spousal support
was to terminate absolutely on June 1, 2020, with liberty to [Mr. Klann] to
apply to the court for termination of his spousal support obligation prior to
that date;

(e)     The right to review both
spousal support and child support was provided for anytime after May 31, 2013,
with liberty to apply to the court if the parties were unable to agree; ...

[8]

During the marriage, Mr. Klann worked for Phoenix Restorations Ltd.
(Phoenix), a fire and flood restoration company that had been founded by his
father and that he inherited alongside his brother.

[9]

The 2011 consent order provided for a right to review both spousal and
child support upon the liquidation, dissolution, or winding up of Phoenix or if
any shareholder, other than Mr. Klann, ceased to be an employee. The order
did not contemplate a review of support in the event of an involuntary sale by Mr. Klann
of his interest in Phoenix.

The Parties Circumstances

[10]

Ms. Jasmer has a university degree in fashion design and worked for
a design company in Mexico before marrying Mr. Klann. She worked part-time
in low-wage hourly jobs during the marriage. Since the divorce, Ms. Jasmer,
whose primary language is Spanish, has taken courses to improve her English and
has been certified as an esthetician. She has worked since her certification,
although her income was below the level of $30,000 per annum attributed to her
in the consent order (about $7,000 in 2013; $14,030 in 2014; and $19,880 in
2015). However, Ms. Jasmer received a substantial capital payment to
equalize the parties assets and debts. The judge noted at para. 38: At
present, Ms. Jasmer has approximately $610,000 in a cash account. She
deposes that she has been advised that she earns an annual return of 8% on
those funds. This amounts to annual income of approximately $48,000 to which
her spousal support is added.

[11]

Mr. Klann, who has remarried and started a new family, claimed that
since the separation and divorce, Phoenix experienced a decline, partially due
to external forces, and partially due to disagreements between himself and his
brother. As a result, Mr. Klann sought to reduce his support obligations,
and counsel for both parties began corresponding in April 2014.

[12]

On September 30, 2014, Mr. Klanns counsel wrote to Ms. Jasmers
counsel, advising that, using an income of $123,110.64 for Mr. Klann and
$30,000 for Ms. Jasmer pursuant to the
Federal Child Support Guidelines
,

SOR/97-175 [
Guidelines
], Mr. Klanns monthly payments should be
$1,311 for child support and (at the low end) $1,475 for spousal support.
Starting in October 2014, Mr. Klann began paying these reduced amounts. Mr. Klann
claimed that he assumed Ms. Jasmer agreed to this reduction, although Ms. Jasmer
denied having done so.

[13]

Mr. Klanns dispute with his brother over Phoenix culminated in
litigation that settled in July 2015. The result was that Mr. Klann
resigned from the company and sold his interest in the company to his brother.

Reasons of the Chambers Judge

[14]

Mr. Klann presented his application as one to vary support under
s. 17 of the
Divorce Act
and the judge proceeded on that basis. Mr. Klann
argued there had been a material change in circumstances arising from his
significant reduction in income on his departure from Phoenix. He also claimed Ms. Jasmer
was capable of earning more than she did at the time. The parties agreed to
have the matter determined on a summary basis and the chambers judge relied
solely on affidavit evidence, which included expert reports of two Chartered
Professional Accountants and Chartered Business Valuators, Ms. Walters for
Ms. Jasmer, and Mr. Tidball for Mr. Klann.

[15]

The judge found Ms. Jasmer never agreed to a reduction in the
support provided by the consent order, and that Mr. Klann unilaterally
decreased his payments from October 2014 onward.

[16]

Ms. Jasmer argued, in assessing Mr. Klanns income, the court
should consider the fact that Mr. Klann owned 50% of Athabasca Farms Ltd.
(Athabasca), which owns and operates an 89-acre blueberry farm. Mr. Klann
claimed all of Athabascas income went to his father. The judge accepted the
evidence of Mr. Klann, as confirmed by his father, that Mr. Klann did
not have access to the corporate earnings of Athabasca in light of the
historical agreement with his father and brother.

[17]

For 2015, the judge found Mr. Klanns income did in fact decline
because he did not seek new employment. However, the judge went on to note that
Mr. Klanns justification for not seeking employmenthis uncertainty over
the close of the Phoenix transactionwas insufficient in light of his
obligation to support his children and former spouse.

[18]

Therefore, the judge concluded Mr. Klanns income for both 2014 and
2015 should remain at $275,000. Mr. Klanns unilateral reduction of
support in October 2014 was thus unwarranted because his total income could not
be said to have materially changed.

[19]

The judge then found there had been a material change in circumstances
after 2015. He noted that on a subjective basis, Mr. Klann would not have
had knowledge at the time of the consent order that he would have a dispute
with his brother, involuntarily sell his interest in the family business, and
lose his job and dividend income. Had Mr. Klann known these facts, it is
unlikely he would have agreed to support based on the income levels set out in
the 2011 consent order.

[20]

For Mr. Klanns income for the period after 2015 (January 1,
2016  June1, 2020), the chambers judge explained:

[67]      In terms of income for the period post-2015, I
would impute annual income for support purposes at $123,000 plus investment
income.  The $123,000 was the level of employment income which was imbedded in
the total income for Mr. Klann for support purposes under the Consent
Order.  It is apparent that termination of Mr. Klann from employment at
Phoenix would not be the basis of a review.  As a result, at least to this
amount, termination was not an unforeseen event.  I would also add to this the
after-tax return shown on Mr. Tidballs calculation at 7%.  The total
annual income which I thus find appropriate for support payments are:

Year

Amount

2016

152,530

2017

166,543

2018

180,105

2019

196,238

2020

211,964

[21]

The judge dismissed Mr. Klanns argument that Ms. Jasmers
imputed income should be increased based on potential rental income from the
basement suite in her home, greater employment income, and investment income
from the large sum she holds in a bank account (para. 68). The judge noted
the parties knew at the time the income level was imbedded in the 2011 consent
order of the opportunity for rental income and of interest income. He found Ms. Klann
had made appropriate effort to establish herself financially and declined to
vary her income level.

[22]

Based on the revised incomes ascribed by the judge to Mr. Klann
after 2015, the judge ordered monthly support obligations (generated from the
software program DivorceMate), with the termination date for spousal support
(at the mid-level) remaining as in the 2011 consent order, June 1, 2020.

[23]

Finally, the judge concluded Mr. Klann had not established a
substantial alteration in his capacity, means, needs, and financial
circumstances to justify cancelling his arrears of support that had accumulated
following his October 2014 unilateral reduction.

The Issues

[24]

Ms. Jasmer raises the following issues:

1.       Whether the judge erred in
finding Mr. Klann had met the threshold requirement of a material change
of circumstances, as required by s. 17(4.1) of the
Divorce Act
, by
relying on inconsistent, uncorroborated, or incomplete evidence as to Mr. Klanns
income; and

2.       Alternatively,
if the threshold was met, whether the judge erred in reducing Mr. Klanns
spousal support payments without varying the termination date.

Standard of Review

[25]

Ms. Jasmer largely alleges errors of fact which are subject to the
deferential standard of review of palpable and overriding error. That is, such
errors must be plainly seen and material to the outcome:
Housen v.
Nikolaisen,
2002 SCC 33 at paras. 56, 10, 22. Her second ground, alleging
generally a failure to correctly apply the test for a variation, is a question
of mixed fact and law in this case to which the same standard of review applies.

[26]

As this Court said in
K.P.B. v. A.S.R.,
2016 BCCA 382 at para. 15:

The standard of review for a
support order on appeal is deferential. That is because support orders are
fact-based and discretionary. The deference afforded to support orders promotes
finality in family law litigation and recognizes the importance of the trial
judges appreciation of the facts. Thus, while an appeal court may intervene
when there is a material error, a serious misapprehension of the evidence, or
an error in law, it will not overturn a support order simply because it would
have made a different decision or balanced the various factors differently:
Beissner
v. Matheusik
, 2015 BCCA 308 at paras. 37
‑
38.
This deferential standard applies equally to findings of fact, including
inferences made by the trial judge:
Beissner v. Matheusik
, at paras. 38,
44
‑
46.

[27]

Furthermore, this standard of review applies equally to cases heard on
affidavit evidence:
Manore v. Manore
(1995)
,
16 B.C.L.R. (3d) 364
(C.A.) at paras. 17-18. The question for this Court remains whether the
judges conclusions are reasonably supported by the evidence. It is not enough
for Ms. Jasmer to show only that other findings or different inferences
were available on the evidence.

[28]

It is common ground the judge identified the correct legal test for a
variation of spousal support as set out in
L.M.P. v. L.S.,
2011 SCC 64
at paras. 3135. The questions are whether he erred in making the findings
of fact underlying his determination to vary the amount, and correctly applied
that test when he reduced the amount, without extending the duration, of
spousal support.

Discussion

1.
Did Mr. Klann Establish a
Material Change of Circumstances?

[29]

Section 17(4.1) of the
Divorce Act
provides:

(4.1)     Before the court makes
a variation order in respect of a spousal support order, the court shall
satisfy itself that a change in the condition, means, needs or other
circumstances of either former spouse has occurred since the making of the
spousal support order or the last variation order made in respect of that
order, and, in making the variation order, the court shall take that change
into consideration.

[30]

In advancing her position that the judge erred in finding Mr. Klann
had met the onus of establishing the required material change in circumstances,
Ms. Jasmer asserts various errors of fact, misapprehensions of the
evidence, or non-disclosure of information (incomplete evidence) regarding whether
there was a reduction in Mr. Klanns income to justify reducing the spousal
and child support payable.

[31]

Ms. Jasmers arguments essentially amount to disagreements with the
evidence, or the judges findings of fact, as to the financial decline in
Phoenix, the family conflict said to give rise to Mr. Klanns involuntary
departure from Phoenix, the expert evidence as to his post-2015 income, and his
access to income from Athabasca. Interspersed with Ms. Jasmers
submissions are general complaints of insufficient disclosure of financial
records.

[32]

I will address her submissions in turn.

Evidence of Phoenixs Financial Decline

[33]

To begin, Ms. Jasmer disputes Mr. Klanns evidence that Phoenixs
financial health began to decline in 2010 and, in September 2013, began to seriously
deteriorate. Ms. Jasmer says this means Phoenixs
gross
revenues
would have been decreasing during this period, yet they increased sporadically from
2010 to 2015, as indicated by its financial statements.

[34]

Ms. Jasmer says that 2013 was Phoenixs second highest
grossing
year. In 2015, Phoenix had its highest grossing year since 2010.

[35]

But gross revenues, as noted by Mr. Klann, were not the only
indicator in the evidence of the companys financial health. Ms. Jasmers
submissions overlook the financial statements showing that from 2010 to 2015,
Phoenixs
net
income dropped substantially. As Mr. Klann points
out, the costs incurred to earn income must be factored into the calculation of
net income; he provided, in his factum, a chart setting out both net and gross
revenues:

YEAR

NET
  INCOME

GROSS
  REVENUE

2010

$1,928,372

$11,145,060

2011

$1,266,421

$11,923,094

2012

$317,106

$11,507,871

2013

$940,004

$12,645,963

2014

$257,946

$11,920,571

2015

$967,668

$13,679,308

[36]

The figures in the chart are supported by the financial statements. Ironically,
this evidence was adduced by Ms. Jasmer. Thus, the judge did not err in
finding there had been a decline in Phoenixs financial health.

Family Conflict Leading to Mr. Klanns Departure from Phoenix

[37]

Ms. Jasmer says Mr. Klanns evidence, accepted by the chambers
judge, that he was forced to sell his shares in Phoenix to his brother because
the personal and business relationship between them was deteriorating, was
contradicted by other evidence in Mr. Klanns affidavits. She provides as
examples that Mr. Klann and his brother continue to each own half of
Athabasca, as well as property in Whistler and Mission, B.C.

[38]

Ms. Jasmer contends Mr. Klann provided no evidence to show his
relationship with his brother had a negative effect on their joint ownerships. She
also says Mr. Klann did not adduce any written agreement of a certain loan
from his father to his brother and Phoenix. Her further complaints include deficiencies
in Mr. Tidballs evidence and in Mr. Klanns document disclosure, and
complaints about certain of Mr. Klanns evidence being uncorroborated.

[39]

I see no merit in these contentions. As Mr. Klann points out, Ms. Jasmer
did not challenge his evidence in the court below or apply to cross-examine Mr. Klann
on his affidavit evidence. Nor was there any requirement of corroboration
before the judge could accept Mr. Klanns evidence. The judge observed
there was some conflict on the evidence, but noted the parties sought to have
the matter determined on a summary basis. The parties chose to resolve this
matter on affidavit evidence. There was evidence on the record, mainly through Mr. Klanns
affidavits, from which the judge could conclude that Mr. Klann had a
dispute with his brother that resulted in their inability to continue to work
together at Phoenix. The chambers judge committed no reviewable error on this
point.

Expert Evidence of Income

[40]

Both parties retained experts to provide opinion evidence as to Mr. Klanns
Guidelines
income, both before and after his departure from Phoenix. As Mr. Klann
says, the pre-departure income was only relevant to retroactive support and
arrears, and Ms. Jasmer is not appealing the orders relating to those
issues.

[41]

Mr. Klanns post-departure income was relevant to the amount of support
payable going forward, in the event the judge granted a variation. Thus, only
the opinions on that issue, and the facts on which they were based, are
relevant to this appeal.

[42]

The facts and assumptions challenged by Ms. Jasmer did not form the
basis of Mr. Tidballs opinion on Mr. Klanns post-departure income.
Instead, Mr. Tidball took calculations from the report prepared by Ms. Walters
and modified them to account for tax and rates of return.

[43]

As part of this argument, and the one as to whether Mr. Klann had
access to income from Athabasca, Ms. Jasmer submits that Mr. Klann
did not provide the necessary information from his corporations for a full
assessment of his income. Thus, he did not meet his burden to establish a
material change in circumstances.

[44]

However, Ms. Jasmer does not say the facts underlying Ms. Walters
opinion are wrong, and Ms. Walters obviously had enough information to
provide an opinion as to the post-departure income. Furthermore, Ms. Jasmers
complaints about insufficient disclosure of financial information respecting Mr. Klanns
income appear to be fully answered in written reply submissions of Mr. Klanns
counsel at the variation hearing.

[45]

Thus, Ms. Jasmer has not identified a palpable and overriding error
in the judges assessment of the post-departure income. Nor is any alleged
non-disclosure by Mr. Klann relevant as it concerned only the
pre-departure income. Ms. Walters was able to and did provide an opinion
as to Mr. Klanns post-departure income.

Access to Income from Athabasca

[46]

In 2006 (five years before the consent order was made), Mr. Klanns
father sold his interest in Athabasca to Mr. Klann and his brother, who
each received a 50% interest. The sale formed part of the fathers estate
planning. After the sale, the father continued to manage the operations of the
business.

[47]

The evidence reflects that the father, Mr. Klann, and his brother
made an oral agreement that the father would receive all the income of
Athabasca. Mr. Klann had not received earnings from Athabasca since the
sale of its shares.

[48]

The father was diagnosed with terminal cancer in 2015. Mr. Klann deposed
that at his mothers request, he began assisting his parents with their
finances, including becoming familiar with their holdings, and assisting his
father with tasks with respect to Athabasca.

[49]

Ms. Jasmer complains that in assessing Mr. Klanns evidence
from 2016 forward, the judge did not include income she says Mr. Klann
could receive from his 50% interest in Athabasca. She specifically objects to
the judges rejection of the evidence of Ms. Walters in which she assumed Mr. Klann
had, and has, access to the corporate earnings of Athabasca.

[50]

This argument too must fail. It was open to the judge to accept the
evidence of Mr. Tidball excluding any funds from Athabasca in Mr. Klanns
income. This opinion was based on Mr. Klanns evidence, confirmed by his
father, that the family agreed any income from the farm would go solely to the
father. The judge simply accepted the unchallenged evidence as to Mr. Klanns
interest in Athabasca.

[51]

Overall, Ms. Jasmer takes issue with many of the factual findings
of the chambers judge that were open to him based on the affidavit evidence
before him. She has failed to persuade me of any palpable and overriding
factual error.

Fresh Evidence

[52]

On her first ground of appeal, Ms. Jasmer applies to adduce fresh
evidence. The test for admissibility of evidence on appeal is set out in
Palmer
v. The Queen,
[1980] 1 S.C.R. 759 at 775:

(1)     The
evidence should generally not be admitted if, by due diligence, it could have
been adduced at trial provided that this general principle will not be applied
as strictly in a criminal case as in civil cases: see
McMartin v. The Queen
[[1964] S.C.R. 484].

(2)     The
evidence must be relevant in the sense that it bears upon a decisive or
potentially decisive issue in the trial.

(3)     The
evidence must be credible in the sense that it is reasonably capable of belief,
and

(4)     It must be such that if
believed it could reasonably, when taken with the other evidence adduced at
trial, be expected to have affected the result.

[53]

The evidence sought to be admitted is an affidavit of Ms. Jasmer,
sworn October 5, 2017, attaching as one of several exhibits, an appraisal of Mr. Klanns
current residence. The affidavit and exhibits attribute the modest B.C.
Assessment value of the property (mortgaged for a higher amount) to not
accounting for its income-generating potential as a blueberry farm.

[54]

Ms. Jasmer said the appraisal may be material to this Courts
assessment of the veracity of Mr. Klanns financial disclosure and
evidence presented in the court below. In my view, it is not material for two
reasons. First, the fact an appraisal, prepared for the purposes of obtaining a
mortgage, reflects income-producing capacity is not evidence of actual (or any)
income produced. The appraisal does not affect the calculation of Mr. Klanns
income. Second, with due diligence, the appraisal could easily have been
adduced in the court below.

[55]

I would dismiss the application to adduce fresh evidence as Ms. Jasmer
has failed to meet the test in
Palmer
; nor are there any special
circumstances calling for a departure from the
Palmer
criteria:
Jiang
v. Shi
, 2017 BCCA 232 at para. 11.

Conclusion on Material Change in Circumstances

[56]

Finally on this ground, I decline to address the argument Ms. Jasmers
counsel raised for the first time at the end of her reply at the hearing of
this appeal. She submitted the judge erred in using Mr. Klanns after-tax
income, instead of his pre-tax income, to calculate his support obligations.
This argument was raised far too late in the proceedings and in a manner unfair
to Mr. Klann.

[57]

In sum, the first ground of appeal is properly disposed of by application
of the standard of review. Disagreement with the judges findings of fact does
not amount to palpable and overriding error when those findings were open to
him on a consideration of the entire record, including submissions of all
counsel. A review of the record discloses the judges findings were reasonable.
It is not for this Court to reweigh the evidence. I would not give effect to
this ground of appeal.

2.
Reducing Spousal Support Without
Varying Its Termination Date

[58]

Section 17 of the
Divorce Act
governs an application to vary
spousal support:

17 (1)  A court of competent jurisdiction may make an order
varying, rescinding or suspending, prospectively or retroactively,

(a)  a support order or any provision
thereof on application by either or both former spouses;

(4.1)  Before
the court makes a variation order in respect of a spousal support order, the
court shall satisfy itself that a change in the condition, means, needs or
other circumstances of either former spouse has occurred since the making of
the spousal support order or the last variation order made in respect of that
order, and, in making the variation order, the court shall take that change
into consideration.

(7)  A variation order varying a spousal support order should

(a)  recognize any economic
advantages or disadvantages to the former spouses arising from the marriage or
its breakdown;

(b)  apportion between the former
spouses any financial consequences arising from the care of any child of the
marriage over and above any obligation for the support of any child of the
marriage;

(c)  relieve any economic hardship
of the former spouses arising from the breakdown of the marriage; and

(d)  in so far as practicable, promote the economic
self-sufficiency of each former spouse within a reasonable period of time.

[59]

It is common ground the judge identified the correct legal test for the
variation of support orders as set out in
L.M.P.
when he said the
following:

[45]      The first question to address is whether there has
been a material change in the condition, means, needs or circumstances of the
applicant.

[46]      From [
L.M.P.
],
the court stated this with respect to a s. 17 application:

31
Willick
described
the proper analysis as requiring a court to determine first, whether the
conditions for variation exist and if they do exist what variation of the
existing order ought to be made in light of the change in circumstances (p.
688).  In determining whether the conditions for variation exist, the court
must be satisfied that there has been a change of circumstance since the making
of the prior order or variation.  The onus is on the party seeking a variation
to establish such a change.

32        That change of
circumstances, the majority of the Court concluded in
Willick
, had to
be a material one, meaning a change that, if known at the time, would likely
have resulted in different terms (p. 688).
G.(L.)
confirmed that this
threshold also applied to spousal support variations.

33        The focus of the analysis
is on the prior order and the circumstances in which it was made.
Willick
clarifies that a court ought not to consider the correctness of that order, nor
is it to be  departed from lightly (p. 687).  The test is whether any given
change would likely have resulted in different terms to the order.  It is
presumed that the judge who granted the initial order knew and applied the law,
and that, accordingly, the prior support order met the objectives set out in
s. 15.2(6).  In this way, the
Willick
approach to variation
applications requires appropriate deference to the terms of the prior order,
whether or not that order incorporates an agreement.

34        The decisions in
Willick
and
G.(L.)
also make it clear that what amounts to a material change
will depend on the actual circumstances of the parties at the time of the
order.

35        In general, a material
change must have some degree of continuity, and not merely be a temporary set
of circumstances (see
Marinangeli v. Marinangeli
(2003), 66 O.R. (3d)
40, at para. 49).  Certain other factors can assist a court in determining
whether a particular change is material.  The subsequent conduct of the
parties, for example, may provide indications as to whether they considered a
particular change to be material (see MacPherson J.A., dissenting in part, in
P.(S.)
v. P.(R.)
, 2011 ONCA 336, 332 D.L.R. (4th) 385, at paras. 54 and 63).

[47]      Recently Madam Justice Kirkpatrick in
Moazzen-Ahmadi
v Ahmadi-Far,
2016 BCCA 503 stated in regard to material change:

[14]      The seminal decision is
Willick
v. Willick
, [1994] 3 SCR 670 where Mr. Justice Sopinka stated at 688:

...In deciding whether the
conditions for variation exist, it is common ground that the change must be a
material change of circumstances.  This means a change, such that, if known at
the time, would likely have resulted in different terms.  The corollary to this
is that if the matter which is relied on as constituting a change was known at
the relevant time it cannot be relied on as the basis for variation.

[15]      Thus, the test, at its
core, requires subjective knowledge of the change.

[48]      Nothing has been
brought before me to indicate directly that on a subjective basis the knowledge
that Mr. Klann would be involved in a dispute with his brother which would
lead to Mr. Klann selling his interest and which would lead to the loss of
his job and entitlement to dividends.  Had it been, the idea of Mr. Klann
agreeing to support based on a level of income which included substantial
dividends from his company would have resulted in different terms.  Though
there is clear knowledge embedded in the Consent Order of the potential of the
company being dissolved or liquidated (which would trigger a review); and the
potential of Mr. Klann ceasing to be an employee of Phoenix (which would
not trigger a review); the circumstance of an involuntary sale by Mr. Klann
of his interest is not.

[60]

Ms. Jasmer emphasizes that the terms of the prior order are
presumed to have complied with the objectives of the
Divorce Act
(
L.M.P.
at para. 39) and therefore the total amount of spousal support Mr. Klann
agreed to pay under the 2011 consent order (having regard to quantum and
duration) must also be presumed to have been in compliance with the objectives
of the
Divorce Act
.

[61]

Ms. Jasmer submits reducing her quantum of spousal support without
a corresponding variation to its duration means Mr. Klann will be required
to pay significantly less than what the parties agreed to in the 2011 consent
order. She claims this results in a windfall to Mr. Klann and prejudice
to herself, and argues this result does not meet the objectives of the
Divorce
Act
.

[62]

The 2011 order contemplates final termination of spousal support on
June 1, 2020, which date represents the maximum duration for the payment
of Spousal Support to [Ms. Jasmer] pursuant to the
Spousal Support
Advisory Guidelines
.

[63]

In her factum, Ms. Jasmer focused on the judges alleged failure to
satisfy himself that a change in the condition, means, needs or other
circumstances of either former spouse has occurred since the making of the
spousal support order (
Divorce Act
,
s.
17(4.1)). But at the
hearing of this appeal, Ms. Jasmer contended the judge failed to consider
the objectives set out in s. 17(7) of the
Divorce

Act.
I do
not accept this submission.

[64]

Although the judge did not specifically mention s. 17(7), he
recited other relevant parts of s. 17, considered and quoted extensively
from the leading authority on variation orders which comprehensively analyses
s. 17, and discussed in his reasons factors relevant to s. 17(7). He addressed
the parties economic circumstances before, during, and after the marriage. He
recognized that Ms. Jasmers career plan had not yet turned out the way
she planned and noted her original support claim was based on both compensatory
and non-compensatory grounds. This analysis subsumes the factors in s. 17(7).

[65]

It seems to me Ms. Jasmers submission in this case would have this
Court fall into the same type of error that occurred in
L.M.P.
and which
was corrected by the Supreme Court of Canada. Justices Abella and Rothstein,
for the majority, said this:

[47]

If
the s. 17 threshold for variation of a spousal support order has been met,
a court must determine what variation to the order needs to be made in light of
the change in circumstances.  The court then takes into account the material
change, and should limit itself to making only the variation justified by that
change.  As Justice LHeureux-Dubé, concurring in
Willick
,
observed: A variation under the Act is neither an appeal of the original order
nor a
de novo
hearing (p. 739).  As earlier stated, as Bastarache
and Arbour JJ. said in
Miglin
, judges making variation orders under
s. 17 limit themselves to making the appropriate variation, but do not
weigh all the factors to make a fresh order unrelated to the existing one,
unless the circumstances require the rescission, rather than a mere variation
of the order (para. 62).

[66]

In
L.M.P.,
instead of determining whether there had been a
material change of circumstances, the trial judge conducted a
de novo
assessment
of the wifes ability to work as if the variation application were an original
application for support. The trial judge made no finding about whether there
had been a material change in the wifes circumstances since the original order.
The Court of Appeal, relying on the
de novo
assessment to infer a
material change in circumstances, fell into the same error. Ms. Jasmers
submission, in my view, invites the same error of the Court undertaking a
de
novo
hearing in this case. The judge properly limited himself to only making
the variation that is appropriate in light of the material change in
circumstances identified. The factors relevant to s. 17(7) were addressed
by counsel, and it is axiomatic a judge need not record every part of his or
her analysis.

[67]

In my view, Ms. Jasmer has not identified any error in the judges
application of the test in s. 17(4.1) of the
Divorce Act
and
L.M.P.
to the facts as he found them.

[68]

Section 17 of the
Divorce Act
required the judge to limit the
scope of his variation. He could not reweigh the factors underlying spousal
support or disregard the terms of the 2011 consent order. He identified and
applied the relevant legal test for the variation having regard to s. 17,
and appropriately in this case, the
Spousal Support Advisory Guidelines
(
SSAG
):
L.M.P
. at paras. 4750 per Abella and Rothstein JJ., and para. 92(6)
per Cromwell J., concurring;
Domirti v. Domirti
, 2010 BCCA 472 at paras. 40-41.
There were no intervening events to make it inappropriate to recalculate
support using the
SSAG
:
Boekhoff v. Boekhoff
, 2016 BCCA 33 at para. 77
.

[69]

As Mr. Klann says, Ms. Jasmer is wrong to treat quantum and
duration of spousal support as interdependent. While they are conceptually
linked under the
SSAG
, there is no support for Ms. Jasmers
argument that a decrease in quantum must automatically lead to an increase in
duration. There is no sliding scale requirement. Rather, the correct approach
is to adjust spousal support having regard to the respective factors underlying
the amount and duration calculations. In this case, the material change in
circumstances, namely Mr. Klanns sale of his interest in Phoenix and the
corresponding loss of dividend income, informed only the amount. The judge did
not err in adjusting the amount of spousal support while maintaining the duration
contemplated in the 2011 consent order.

[70]

I agree with this submission in Mr. Klanns factum:

75.       The factors underlying amount and duration of
support are different. In the
with child support
, shared parenting
formula, the amount of support is calculated based on the net incomes of both
parents, with a goal of ensuring that the children of the marriage live in
households with similar net disposable income. Duration, on the other hand, is
calculated based on the length of marriage and the length of the remaining
child-rearing period.

See
SSAG
, ss. 8.3, 8.5 & 8.6

76.       The chambers judges decision limited his variation
to amount because the material change in circumstances went to the net
disposable income of the Husbands household. There was no change to the length
of marriage nor the child-rearing period. In so limiting the variation, the
chambers judge refrained from approaching the parties circumstances
de

novo
,
instead making only a variation justified by the material change.

See
L.M.P
. at para. 47, per
Abella and Rothstein JJ.

77.       Had the chambers judge chosen to extend the
duration of support, he would have been ignoring the range for duration, making
the support award effectively contrary to the SSAG. His decision to maintain a
support award that fell within the recommended ranges should be approached with
deference.

See
Domirti
at para. 48

[71]

The judges order was also consistent with the parties intention, as
reflected in the 2011 order that contemplated a possible variation and a final
termination date for spousal support. Ms. Jasmers submission that the
2011 order contemplated a specified sum is misguided because the order was not
for lump sum support. Instead, the order provided for reviewable periodic
support based on the parties respective imputed incomes. The clear intention
was that the end date represented the maximum duration for support in
accordance with the
SSAG.

[72]

I would not accede to this ground of appeal.

Costs

[73]

It is unnecessary to address Ms. Jasmers application for special
costs of the hearing below. Not only is she unsuccessful on this appeal, but
also, the parties did not accept the judges invitation to set the matter of
costs for hearing before him. Consequently, there is no order for costs from
which an appeal may be taken.

[74]

Mr. Klann will have his costs of the appeal.

Conclusion

[75]

In the result, I would dismiss the application to adduce fresh evidence and
dismiss the appeal with costs to Mr. Klann.

The Honourable Madam Justice MacKenzie

I agree:

The Honourable Mr. Justice
Groberman

I agree:

The Honourable Mr. Justice
Goepel


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Duerksen,

2018 BCCA 46

Date: 20180206

Docket:
CA43816

Between:

Regina

Respondent

And

Christopher John
Duerksen

Appellant

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hunter

On appeal from:  An
order of the Supreme Court of British Columbia, dated
June 16, 2016 (
R. v. Duerksen
, 2016 BCSC 1771, Chilliwack Docket 63977).

Counsel for the Appellant:

C.L. Bauman

Counsel for the Respondent:

M.A. Street

Place and Date of Hearing:

Vancouver, British
  Columbia

September 7, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

February 6, 2018

Written Reasons by:

The Honourable Chief Justice Bauman

Concurred in by:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hunter

Summary:

The police arrested the
accused on charges of kidnapping and robbery. The police also informed the
accused of the right to counsel, but he did not identify a specific lawyer to
contact because he was unsure of who to call. The accused had previously
indicated he did not want to rely on Legal Aid counsel. The accused later spoke
with Legal Aid counsel prior to giving statements to police. The accused argued
that the statements should be inadmissible because he was not provided with a
reasonable opportunity to access counsel of choice as required by s. 10(b)
of the Charter. The trial judge held that the evidence was insufficient to
determine how the police came to contact Legal Aid counsel, and therefore the
accused had not met his burden to show that he was not afforded a reasonable
opportunity to contact counsel of choice. Held: Appeal dismissed. The burden to
prove that the police failed to provide an accused with a reasonable
opportunity to contact counsel lay with the accused. The trial judge did not
err in finding that the evidence was insufficient to show that the police
pre-empted the accuseds choice of counsel or that they otherwise did not
provide the accused with a reasonable opportunity to access counsel of choice.
The accused also clearly waived his right to contact counsel again after being
charged with robbery since he requested to speak to police.

Reasons
for Judgment of the Honourable Chief Justice Bauman:

Introduction

[1]

This appeal arises out of a
voir dire
ruling consequent upon an
accused persons allegation that on his arrest, the police breached his rights
under s. 10(b) of the
Charter
, to retain and instruct counsel
without delay and to be informed of that right. For reasons that follow, I
would dismiss the appeal from the trial judges decision dismissing the
application.

Facts

[2]

On 20 June 2014, Christopher John Duerksen and his co‑accused,
Stuart Forrest, cornered the complainant, Kevin Regehr, in a shed on Mr. Regehrs
family property. Mr. Duerksen planned to tie Mr. Regehr up, take him
for a drive in his truck and scare him into having his family pay a
multi-million dollar ransom. However, after Mr. Duerksen took Mr. Regehrs
wallet and keys and had him write a ransom note, Mr. Regehr attempted to
escape. Mr. Forrest reacted by striking Mr. Regehr in the head
several times, causing his head to hit the cement. Mr. Forrest also kicked
him in the groin. The men then placed Mr. Regehr in Mr. Duerksens
truck, brought him into a nearby park, tied him up against a tree and left.

[3]

With the help of a police dog, the police located Mr. Regehr several
hours later. Mr. Regehr had suffered a severe head injury, multiple facial
fractures, blurred vision, severe scalp lacerations, soft tissue injuries, a
groin injury and psychological trauma.

[4]

In the early morning hours of 21 June 2014, Mr. Duerksen called the
Abbotsford Police Department and told Detective Demers he would turn himself
into the detachment in the morning in connection with the Regehr matter after
he consulted with a lawyer. Det. Demers sought to dispel Mr. Duerksens
concerns that the police would arrest him before Mr. Duerksen came in
voluntarily and suggested that Mr. Duerksen come down to the police
station where counsel might then be provided. Mr. Duerksen emphasized his
desire to contact a lawyer before turning himself in and that he did not want
to come in and then have to be given [counsel].

[5]

Coincidentally, Mr. Duerksen was arrested a short time later by
another officer, Sergeant Sansalone, when Mr. Duerksen was found near the
truck that had been used to commit the kidnapping. He was arrested and charged
with kidnapping and aggravated assault. In response to being read his s. 10(b)
Charter
rights, Mr. Duerksen said he wished to call a lawyer.
Another officer, Constable Walker, then transported Mr. Duerksen to
Abbotsford police cells. He knew Mr. Duerksen had asked to speak to
counsel and he left a message for Legal Aid. When Legal Aid returned the call, Mr. Duerksen
spoke to a lawyer in his cell from 2:46 to 2:48 a.m.

[6]

Detective Murray then became involved when he re-read Mr. Duerksen
his
Charter
rights after he was also charged with robbery. When Det.
Murray asked if he wished to speak to a lawyer, Mr. Duerksen replied No,
the first time was pointless. He then asked Det. Murray when someone would
speak to him. Det. Murray expressed surprise that Mr. Duerksen wanted to
speak at that late hour. Nevertheless, he took Mr. Duerksen into an
interview room and conducted an interview.

[7]

The interview began at 3:40 a.m. and lasted for just over 3 hours
and 40 minutes. Throughout, Mr. Duerksen was hesitant to discuss the
offence, but eventually relented and gave further details when prompted by Det. Murray.
Det. Murray used a number of ways to prompt Mr. Duerksen to give him
information:  he expressed sympathy for Mr. Regehrs family, concern for Mr. Regehrs
safety (at that time police did not know the identity of Mr. Duerksens co‑perpetrator),
and urged Mr. Duerksen to be a good person and have a conscience. Mr. Duerksen
expressed his wish to consult a lawyer a number of times during the interview.
It is apparent from the transcript that Mr. Duerksen believed he could
have a lawyer in the interview room with him. At one point, Mr. Duerksen
asked if the police had somethingbetter than the Legal Aid. In response,
Det. Murray referred to a list of counsel kept in a book in the detachment, but
said private lawyers would not answer at that early hour. He then said that did
not mean there would not be someone available later in the morning. The
interview continued and Mr. Duerksen provided evidence incriminating
himself.

[8]

Later that day, just after 5:00 p.m., Detective Wheatley and
another officer spoke to Mr. Duerksen and informed him they would be
speaking with his father to see if his father wished to arrange a lawyer for Mr. Duerksen.
Det. Wheatley told the father that the fathers lawyer could communicate
with Mr. Duerksen to provide advice.

[9]

Mr. Duerksen had another call with counsel at 9:28 a.m. on 22 June
2014. Detective Brown-John then conducted a follow-up interview at 11:36 a.m.
When the detective asked him for further details, Mr. Duerksen again said
he wished to speak to a lawyer. When Det. Brown-John responded that Mr. Duerksen
had already had the opportunity to speak to his lawyer, the interview continued
and Mr. Duerksen provided a number of additional details. He admitted to having
planned the kidnapping and to his involvement in the offence.

[10]

At trial, the key issue was the admissibility of Mr. Duerksens various
statements to police. Mr. Duerksen did not testify at the
voir dire
on
that issue. Following the trial judges ruling admitting Mr. Duerksens
statements, the accused through his counsel invited the trial judge to impose
convictions on counts 1, 3 and 5 of the indictment, without prejudice to his
right to appeal the
voir dire
ruling.

Decision Under Appeal:
voir
dire
ruling

[11]

The trial judge found that Mr. Duerksen had failed to establish a
breach of his rights under s. 10(b) of the
Charter
. In his ruling,
the trial judge set out all portions of the police interview transcripts of the
telephone conversations between Mr. Duerksen and Det. Demers, as well
as the formal interviews at the Abbotsford police detachment in which Mr. Duerksen
expressed his wish to consult a lawyer, and his frustration as a result of having
admitted certain facts. The trial judge also set out the positions of the
defence and Crown, and highlighted the Crowns emphasis on the insufficiency of
evidence in support of an actual breach of s. 10(b) in the absence of
testimony from Mr. Duerksen as to how he wished to exercise his right to
counsel. The trial judge also found that Mr. Duerksens statements to Det.
Demers could support an inference as to Mr. Duerksens intentions to
contact counsel if he had been asked (para. 41).

[12]

The judge then turned to an analysis of the chain of events leading to Mr. Duerksens
inculpatory statements. The judge accepted that the law requires police to
offer the means to a detainee to choose their own counsel, and that the police cannot
pre-empt that choice by calling Legal Aid on a detainees behalf without
direction from the detainee. However, the trial judge found that the defence
had failed to establish that Cst. Walker pre‑empted the choice of
counsel by calling Legal Aid on his own initiative (para. 43). The
evidence did not demonstrate to any reliable degree what Mr. Duerksen said
in response to being informed of his rights or how Cst. Walker came to
dial Legal Aid.

[13]

The trial judge also addressed the interview conducted by Det. Murray.
He found that Mr. Duerksen had rejected Det. Murrays offer of
alternative contact with counsel and highlighted that Mr. Duerksen had in
fact asked to speak with police (at para. 45). The trial judge found that
the police had no duty at that point to persuade him to speak to a second
lawyer and that their duty to hold off on interviewing Mr. Duerksen was at
an end. The judge acknowledged that Det. Murray may have been incorrect in
advising Mr. Duerksen that contact with lawyers other than Legal Aid
likely could not be made at that time of night, but found that Det. Murray
conveyed this misinformation in the context of a gratuitous offer, thus it was
not found to constitute a breach of s. 10(b). The judge noted that many of
Mr. Duerksens comments about having a lawyer appeared to be rooted in his
mistaken belief that he could have a lawyer present for the interview
something Det. Murray correctly advised was not a component of the
Charter
right.
In the end, the judge concluded there was no breach of Mr. Duerksens
s. 10(b) right.

Submissions

[14]

The sole issue on appeal is whether the trial judge erred in holding
that the Abbotsford Police satisfied their implementational duty to provide Mr. Duerksen
with a reasonable opportunity to exercise his right to counsel.

[15]

Mr. Duerksen submits that the trial judge erred in placing the
persuasive burden on him, not just with respect to proving a breach, but with
respect to every factual finding made in analysing whether a
Charter
breach had been established. Mr. Duerksen cites a decision of the Alberta
Court of Appeal,
R. v. Luong
, 2000 ABCA 301, for the proposition that a
s. 10(b)
Charter
breach is subject to a shifting persuasive burden
since police must preserve evidence of their interactions with an accused
person. According to Mr. Duerksen, the question was not whether Cst. Walker
pre‑empted Mr. Duerksen from exercising his right to counsel by
calling Legal Aid when he did, but rather whether the police, after having become
aware of Mr. Duerksens wish to contact counsel, discharged their duty to
facilitate reasonable access to counsel of choice.

[16]

Mr. Duerksen further submits that the judge failed to consider the
evidence of Cst. Walkers conduct in facilitating access to counsel and Det.
Murrays subsequent advice that it was doubtful a lawyer could be reached at
that time. In particular, Mr. Duerksen points to the failure to take into
account the context of him clearly advising Cst. Walker that he wished to speak
with counsel of choice and later expressing dissatisfaction with the Legal Aid
Brydges line. Had the judge done so, then he would have concluded that Mr. Duerksen
had met his onus of proof.

[17]

If this Court determines that the police, through Cst. Walker, did
not fulfill their implementational duty, Mr. Duerksen says the next
question is whether he subsequently waived his right to speak to counsel when
he was again advised of his s. 10(b)
Charter
rights by Det. Murray.
He says the trial judge erred in resolving this matter by finding implicitly a
waiver when he responded in the negative to Det. Murrays question as to whether
he would like to speak to a lawyer. In this regard he says the trial judge made
a factual error in finding that Mr. Duerksen said No, the first
one
was pointless when in fact, the record shows that he said No, the first
time
was pointless. He says, properly understood, this statement did not constitute
a waiver, but was an expression of his dissatisfaction with the advice he
received.

[18]

Mr. Duerksen also submits that Det. Murray actively misled him
and discouraged him from attempting to seek alternate counsel when the officer
told him it was possible to call counsel from a book of lawyers, but that none
of those lawyers could be reached at that time.

[19]

The Crown submits that the trial judge did not err in respect of the
persuasive burden. That burden only shifts to the Crown if there is a delay in providing
or facilitating the right to counsel, or if the Crown asserts waiver. Here, the
Crown asserted waiver only with respect to the right to counsel offered to Mr. Duerksen
following his arrest for robbery. Mr. Duerksen still bore the burden of
establishing that police had failed to provide him with a reasonable
opportunity to contact counsel after arresting him for aggravated assault and
kidnapping.

[20]

The Crown argues that Mr. Duerksen failed to meet this burden. He
was entitled to try to meet the burden of proof through cross-examination
rather than testifying himself, but he had to live with the consequences of
doing so. He adduced no evidence upon which the trial judge could have found a breach.
Mr. Duerksen did not ask Cst. Walker about his knowledge of the
different ways a detainee may wish to exercise his or her right to counsel, nor
his practice when a detainee wants counsel other than Legal Aid, but does not
know who to contact. There was no direct evidence as to how Mr. Duerksen intended
to exercise his right to counsel.

[21]

With respect to waiver, the Crown argues that while the trial judge did
not explicitly reference the legal test for waiver, the court is presumed to
know the law. The record makes it clear that the trial judge did not err in
finding Mr. Duerksen had waived his right to counsel. He had sufficient
information to have validly waived the right. Although the trial judge
misstated Mr. Duerksens response to Det. Murray, he was merely
paraphrasing a statement he had correctly reproduced earlier in his ruling, and
in any event, the misstatement had no effect on the judges reasoning. The
critical word in the sentence was pointless, which was ambiguous and did not
indicate that Mr. Duerksen had not been given advice, or that he somehow
did not understand the advice he had received.

[22]

The Crown submits that Mr. Duerksens ambiguous comments did not
give Det. Murray reason to believe the advice Mr. Duerksen had received
was deficient. At best, his remarks suggested that he disliked the lawyer with
whom he spoke. Police are not required to monitor the quality of legal advice
provided once a detainee has contacted counsel. Had Mr. Duerksen not
understood the advice he had received or felt it was deficient, he ought to
have said so. He demonstrated an ability to voice his concerns or ask for
things on a number of occasions during the interview with Det. Murray. Although
Mr. Duerksen made comments indicating a wish to contact a lawyer during
the interrogation with Det. Murray, he made those comments as a result of the
mistaken assumption that he had the right to have a lawyer present during
questioning.

[23]

In response to the argument that Det. Murray allegedly actively
misled or discouraged Mr. Duerksen from using a lawyer, the Crown submits
that the defence has pointed to nothing in Det. Murrays conduct that
would support such an inference. Det. Murray was never challenged on the
sincerity of his belief that Mr. Duerksen would not have been able to
connect with a lawyer at the time of the interview. In any event, Det. Murrays
misunderstanding concerning the availability of a lawyer was inconsequential as
Mr. Duerksen had already exercised his right to counsel.

Analysis

[24]

The purpose of section 10(b) is to allow the detainee not only to
be informed of his rights and obligations under the law but, equally if not
more important, to obtain advice as to how to exercise those rights:
R. v.
Manninen
, [1987] 1 S.C.R. 1233 at 1242-1243. The police must provide a
detainee with a reasonable opportunity to exercise their right to counsel:
R.
v. Fan
, 2017 BCCA 99;
R. v. Taylor
, 2014 SCC 50 at para. 23.
For example, it is incumbent upon the police to offer a telephone to contact
counsel, regardless of whether a detainee requests one:
Manninen
at 1242.
Similarly, where it is reasonable to provide private phone access in a hospital
ward, it must be provided:
Taylor
at para. 34. However,
s. 10(b) does not create positive substantive obligations on the
government to provide duty counsel, nor does it require that counsel be present
during interrogation:
R. v. Prosper
, [1994] 3 S.C.R. 236 at 267-268;
R.
v. Sinclair
, 2010 SCC 35 at para. 2. A detainee must also be
reasonably diligent in the exercise of the right to counsel:
R. v.
Bartle
[1994] 3 S.C.R. 173 at 192.

[25]

The overall burden to prove a
Charter
infringement lies on the
claimant, including infringements of s. 10(b):
R. v. Collins
, [1987]
1 S.C.R. 265 at 277;
R. v. Rindero
, 2001 BCCA 336. However, the burden
lies on the Crown to show that any delay in affording a detainee an opportunity
to access counsel was reasonable in the circumstances:
Taylor
at para. 24.
The burden also lies on the Crown to prove that the detainee waived their right
to counsel:
Prosper
at 275.

[26]

The application before the trial judge turned on the sufficiency of the
evidence of a breach of Mr. Duerksens rights under s. 10(b). In
particular, it centered on whether he had shown on a balance of probabilities
that the police breached their implementational duty under s. 10(b) to
provide Mr. Duerksen with a reasonable opportunity to exercise his right
to counsel.

[27]

The crux of the trial judges reasoning in concluding that Mr. Duerksen
had not met his evidentiary burden is found in paras. 42 to 44 of his
reasons:

[42]      The first component of the alleged breach here is
that Cst. Walker simply facilitated contact with Legal Aid in the absence
of a request for a specific lawyer, ignoring the intermediate step, which I
accept is required by the authorities that have been cited, of also offering
the means to choose his own counsel. The critical evidence in support of this
are his earlier statements of intention to obtain a lawyer,
Sgt. Sansalone's agreement with the suggestion that he would have
considered a statement that Mr. Duerksen could not afford a lawyer or did
not have one to be important and would have noted it, and Cst. Walker's
apparent position that he would have noted and facilitated access to a specific
requested lawyer.

[43]      However, even taken at its highest I find the
current evidence insufficient to establish on a balance of probabilities that
Cst. Walker actually pre-empted the choice of counsel by calling Legal Aid
of his own initiative.

[44]      It is the accused's
burden in this
voir dire
and we simply do not know to any reliable
degree what he said in response to receiving his rights from
Sgt. Sansalone, beyond the mere affirmations that are noted, or how
Cst. Walker came to dial Legal Aid for him. As the cases emphasize, a
great deal of the implementational duties on the police are influenced by what
the detainee says and does in response to the required advice. This is not a
situation like
Kiloh
where there is clear evidence that the officer
regarded contact with a lawyer and with Legal Aid as the same thing and imposed
that misunderstanding on the detainee. Cst. Walker's reference in his
evidence to hunting down lawyers was in the context of a request for a specific
lawyer, but we do not know what his evidence would have been if he had been
asked what he does for detainees who want a lawyer other than Legal Aid, but do
not have a name.

[28]

Mr. Duerksen complains that the trial judge asked himself the wrong
question in para. 43 and focused too narrowly on whether Cst. Walker
pre-empted his choice of counsel; that the correct question, on the contrary,
was more generally whether the police, after having been made aware of Mr. Duerksens
wish to contact counsel, discharged their duty to facilitate reasonable access
to counsel of his choice. I disagree. The judge was clearly alive to the
generality of the issue before him. He was simply responding to the central
submission advanced by Mr. Duerksen in arguing that the implementational
duty had been breached when police choose counsel for a detainee based on the
reasoning in cases like
R. v. Kiloh
, 2003 BCSC 209.

[29]

This brings the discussion to the merits of Mr. Duerksens
submission: as between him and the police authorities, who does bear the burden
of establishing that the police discharged their duty to facilitate Mr. Duerksens
reasonable access to counsel? The facts include these:

(1) Based on his telephone
conversations with Det. Demers, Mr. Duerksen apparently wanted to be
advised (indeed accompanied) by counsel of his choice.

(2) Mr. Duerksen
reiterated his wish to call a lawyer upon being initially advised of his
s. 10(b) rights by Sgt. Sansalone. Being advised of the right to
retain and instruct counsel implicitly informs the detainee that they have the
right to hire a lawyer of their choice:
R. v. Grouse
, 2004 NSCA 108 per
Cromwell J.A., as he then was, at para. 24. So there is no doubt that
the informational duty was met in this regard.

(3) Mr. Duerksen
spoke to a Legal Aid lawyer from 2:46 to 2:48 a.m. when Cst. Walkers call
to Legal Aid was returned. No evidence was adduced on the
voir dire
to
the effect that Mr. Duerksen at that time objected to receiving advice
from a Legal Aid lawyer.

(4) After he was charged
with robbery, Det. Murray reread Mr. Duerksen his
Charter
rights. Mr. Duerksen
said, when asked, that he did not wish to speak to a lawyer, that  the first
time was pointless. Shortly thereafter, he said that he wanted to speak to the
police.

(5) At 3:40 a.m. Mr. Duerksen
was in the police interview room with Det. Murray and Cst. Baker. The
transcript discloses this exchange (CD is Mr. Duerksen and KM is Det.
Murray):

KM:      Okay; so Im gonna leave this audio recorder on
even though its gonna be audio and videoed okay? Just in case theres a screw
up with that machine; at least, at least I have this. Okay? So Im just gonna
make a note here that were in here at uh three-forty-four. Alright now, before
we begin, I know that you were already provided with your Charter Rights.

CD:      Are you gonna read that again?

KM:      I am not going to read it again.

CD:      Thank you.

KM:      I have to read a different part of it. Alright?

CD:      Okay.

KM:      So its called the Secondary Warning. Okay?

KM:      Alright. So I mean, my friend, I dont know
where you want to start. So, I, could I

CD:      Well I was to

KM:      -- could I

((U/I) conversation)

KM:      -- ask.

CD:      I was told by um, Detective

KM:      Tony?

CD:      Tony.

KM:      Yeah.

CD:      That he want to talk.

KM:      Uh

CD:      So I wa

KM:      -- we do.

CD:      So I assumed that you guys had a bunch of
questions.

KM:      I totally do. I just didnt know if you wanted
to st  initiate or start with an opening comment or something. Which you are
totally free to do.

CD:      St  start asking

KM:      Start? Okay.

CD:      Start asking
questions.

[30]

The essential facts before the judge on the
voir dire
then
distill to this essential scenario: Mr. Duerksen initially appeared to
want counsel of his own choice and must be taken to have known this was his
right. The police contacted Legal Aid. There is no evidence as to why this
happened. The Legal Aid lawyer responded to the call and Mr. Duerksen took
advice from that lawyer. Mr. Duerksen declined the opportunity to contact
a lawyer a second time. He said the first time was pointless. He expressed a
willingness to talk with police. He said he was thankful that he was not
advised of his right to counsel a third time. He assumed the police had a
bunch of questions and he invited police to Start asking questions.

[31]

Mr. Duerksen relies on
Luong
to argue that the Crown has the
burden of establishing that a detainee who has invoked a right to counsel is provided
with a reasonable opportunity to exercise that right. In
Luong,
the
Alberta Court of Appeal summarized the various stages in the s. 10(b)
analysis and in particular commented on the Crowns burden as follows:

[12]      For the assistance of trial judges charged with the
onerous task of adjudicating such issues, we offer the following guidance:

...

7.         A trial judge must first determine whether
or not, in all of the circumstances, the police provided the detainee with a
reasonable opportunity to exercise the right to counsel; the Crown has the
burden of establishing that the detainee who invoked the right to counsel was
provided with a reasonable opportunity to exercise the right.

[32]

Before us, the Crown submits that this is a dubious conclusion; that
Luong
has not been substantially considered in this regard by courts that have cited
it. I agree that this statement in
Luong
has not been critically
examined or expressly adopted. I do not accept the soundness of the Courts
comments in light of what this Court has said is trite law: the onus is on the
accused to establish on a balance of probabilities that the police have failed
to provide him with his rights under the
Charter
and, in particular, his
rights under s. 10(b):
Rindero
;
Collins
at 277;
R. v.
Baig
, [1987] 2 S.C.R. 537 at 540.

[33]

As already noted, the Crown submits that the persuasive burden shifts to
the Crown only if there is a delay in providing or facilitating the exercise of
a detainees right to counsel, or if the Crown asserted waiver of that right.
As to the former the Supreme Court of Canada did cite
Luong
with
apparent approval in
Taylor
at para. 24:

The duty to inform a detained
person of his or her right to counsel arises immediately upon arrest or
detention (
Suberu
, at paras. 41-42), and the duty to facilitate
access to a lawyer, in turn, arises immediately upon the detainees request to
speak to counsel. The arresting officer is therefore under a constitutional
obligation to facilitate the requested access to a lawyer at the first
reasonably available opportunity. The burden is on the Crown to show that a
given delay was reasonable in the circumstances (
R. v. Luong
(2000), 271
A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to
counsel is reasonable is a factual inquiry.

[34]

I do not read this reference, however, as adopting
Luong
s more
general statement that the Crown has the burden of establishing that the
detainee who invoked the right to counsel was provided with a reasonable
opportunity to exercise the right.

[35]

In
R. v. A.R.M.
, 2011 ABCA 98, leave to appeal refd [2012]
S.C.C.A. No. 84, the Alberta Court of Appeal extensively discussed the
burden of proof with respect to the infringement of s. 10(b). The Court
wrote that the burden of proof is on the
Charter
claimant, absent a
prima facie set of facts that triggers a presumption, such as facial
unreasonable trial delay in cases under s. 11(b) of the
Charter
or
facial warrantless search and seizure in cases under s. 8 of the
Charter
:
at para. 47. Notably, the Court did not discuss the burden shifting to the
Crown with respect to proving reasonable opportunity to exercise right to
counsel, even though it cited
Luong
only a few paragraphs earlier: see para. 43.

[36]

In
A.R.M.
, the Court went on to discuss how presumptions which
shift the burden of proof are motivated by specific policy choices:

[50]      The established onus on
a
Charter
claimant to prove the
Charter
claim does not defeat
justice. There [
sic
] presumptions as to prima facie breaches of certain
Charter
rights are policy choices under law for specific situations. The respondents
position would either create a new presumption, or would establish a broader
and more general rule which would make the existing presumptions redundant. We
are not persuaded that a new presumption should apply to this case.

[37]

Although
Taylor
creates a new presumption that effectively shifts
the burden of proof on the issue of reasonable delay, in my view the policy
rationale for that shift is not applicable in this case. Where there is a delay
in accessing right to counsel, it is likely only the police who would be in a
position to explain why the detainee was not able to contact counsel and
whether the delay was reasonable in the circumstances. On the broader question
of whether the detainee was provided a reasonable opportunity to exercise the
right to counsel, both sides are likely able to provide some explanation. As
the case at bar demonstrates, a central issue might be who the detainee wanted
to call, or when, which may be something to which the detainee is best
positioned to testify  if not the only one who is capable of doing so.

[38]

The Court of Appeal for New Brunswick also considered these issues in
MacDonald
Brown v. R
., 2009 NBCA 27 at paras. 22-23. In that case, the Court was
urged to follow
Luong
, but resisted compartmentalizing the obligations
that arise out of the implementation component of the s. 10(b) right. In
the Courts view the main governing principle in determining questions of
reasonable opportunity and due diligence is the need to examine the
totality of the circumstances. The trier of fact must look at the facts
globally and determine whether in all of the circumstances it can be said that
the detainee was not provided with a reasonable opportunity to exercise the
right to counsel.

[39]

While the Supreme Court of Canada in
Taylor
may have been willing
to acknowledge some shifting burdens in the s. 10(b) analysis, I still pay
heed to the cautionary note sounded by the Court in
MacDonald Brown
, and
would not adopt the analysis from
Luong
concerning the shifting of the
burden.

[40]

Mr. Duerksen, in part, supports the assignment of the burden to the
Crown on the basis that the police must preserve evidence of their interactions
with an accused person. Without a shift in the burden, the police have less
incentive to record completely their dealings with a detainee. That observation
is not particularly apt here. Mr. Duerksen knows very well whether he was
frustrated in his effort to contact counsel of his choice. The very heart of
his complaint was within his knowledge and he did not lead evidence on the
voir
dire
. And the ultimate burden was on him to prove a breach of his s. 10(b)
rights on a balance of probabilities.

[41]

As noted earlier, I do not accept the validity of the statement from
Luong
cited by Mr. Duerksen. He had the burden to establish that the police
failed to provide him with a reasonable opportunity to consult counsel. The
trial judge concluded that Mr. Duerksen had not met this burden. The judge
found as fact that we simply do not know to any reliable degreehow Cst.
Walker came to dial Legal Aid for him. Mr. Duerksen failed to meet his
burden of proof on his application.

[42]

I turn then to the issue of whether Mr. Duerksen waived his right
to counsel after he was subsequently charged with the additional offence of
robbery. When Mr. Duerksen again was informed of his right to counsel by
Det. Murray, Mr. Duerksen declined with the statement No. The first
time was pointless. The trial judge reasoned:

[45]      Once he was in Det. Murray's company there is
no question that Mr. Duerksen made some disparaging comments about the
Legal Aid lawyer he had dealt with. But as the Crown notes, his response to the
inquiry about whether he would like to speak to a lawyer put to him by
Det. Murray was negative, followed by the comment that the first one was
pointless. In other words, the context was the rejection of the offer of
alternative contact with counsel at that point prior to the first statement.
This is consistent with his request to speak to the police at that point, which
was certainly not being deterred by concerns about further lawyer contact.

[46]      I am unable to find that the police were required
to be such proactive guardians of his right at that point as to attempt to
persuade him, contrary to his rejection of the offer, that a second counsel
might be more fruitful. I also think that in light of what was, at the end of
the day a refusal to pursue other choices of counsel, their duty to hold off on
interviewing, if indeed it arose at all based on the second
Charter
warning for an additional offence, was at an end.

[47]      I appreciate that when
the subject of alternative choices of counsel came up later in the interview,
Det. Murray, perhaps inaccurately in light of counsel's own experience,
indicated that contact with lawyers other than Legal Aid likely could not be
made at that time of night, but this was at a stage after which alternate
counsel had been declined and I am not convinced that misinformation in the
context of a gratuitous offer, one unrelated to any change in the circumstances
giving rise to the need for the right guaranteed by s. 10(b), constituted
a breach at that point.

[43]

I conclude that nothing flows from the slight inaccuracy in the judges
recital of the evidence here, the first one rather than the first time. Further,
I agree with his conclusion that Mr. Duerksen declined to exercise his
right to counsel. Mr. Duerksen understood the extent of his jeopardy and
the consequences of waiving his right:
R. v. Mehan
, 2017 BCCA 21 at
paras. 65-69;
R. v. Smith
, [1991] 1 S.C.R. 714.

[44]

For these reasons I would dismiss the appeal.

The Honourable Chief Justice Bauman

I agree:

The Honourable Madam Justice
Newbury

I agree:

The Honourable Mr. Justice
Hunter