COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Orr,

2021 BCCA 42

Date: 20210203

Docket: CA45726

Between:

Regina

Respondent

And

Arlen Jeffrey Orr

Appellant

Before:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice DeWitt‑Van Oosten

The Honourable Mr. Justice Grauer

On appeal from: An
order of the Supreme Court of British Columbia, dated April 9, 2018 (
R.
v. Orr
, Victoria Docket 168272‑2).

Counsel for the Appellant (via videoconference):

D.J. McKay

Counsel for the Respondent (via videoconference):

O.L. Bick

Counsel for the Applicant, Office of the Chief Judge
  (via videoconference):

E.V. Gottardi, Q.C.

C.V. van Wiltenburg

Place and Date of Hearing:

Vancouver, British
  Columbia

December 8, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

February 3, 2021

Written Reasons by:

The Honourable Madam Justice DeWitt‑Van Oosten

Concurred in by:

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Grauer

Summary:

The appellant seeks to
overturn two convictions for possessing drugs for the purpose of trafficking
and one conviction for possessing a prohibited weapon. He says the trial judge
erred in dismissing Charter applications filed at trial in which the appellant
sought the exclusion of evidence and a stay of proceedings. Held: Appeal
dismissed. The trial judge did not err in summarily dismissing the appellants
claim under s. 8 of the Charter; finding that police had reasonable
grounds for the appellants warrantless arrest; or concluding that the
appellant did not prove an abuse of process within the meaning of s. 7.

The Court also denies an
application for a permanent sealing order and publication ban specific to a record
filed at trial.

Reasons for Judgment of the
Honourable Madam Justice DeWitt‑Van Oosten:

Introduction

[1]

This is an appeal from three convictions: two for possessing drugs for
the purpose of trafficking and one for possessing a prohibited weapon.
[1]
[2]

At his Supreme Court trial, the appellant filed
Charter
applications
seeking the exclusion of evidence under s. 24(2) and a stay of proceedings
under s. 24(1). The applications invoked ss. 7, 8 and 9 of the
Charter.
They did not succeed.
[3]

With that outcome, the appellant consented to the admission of Crown
evidence sufficient to prove the three offences. He did not call a defence.
Instead, he invited the trial judge to convict, presumably with a view to
challenging the three convictions on appeal. With the Crowns consent, the
trial judge entered acquittals on all remaining counts on the Indictment.
[4]

The appellant says the trial judge committed reversible error in his
Charter
rulings and the convictions should be overturned. He says the judge wrongly
deprived him of an evidentiary
voir dire
to challenge a search warrant;
incorrectly found that police had reasonable grounds for a warrantless arrest;
and should have stayed the charges against him on the ground of abuse of
process.
[5]

I am of the view that the trial judge properly dismissed the
constitutional claims and there is no principled basis for setting aside the
convictions. Accordingly, I would dismiss the appeal.
Background
[6]

The appellants convictions arose from a 2016 investigation conducted by
the Victoria Police Department (VicPD). Three confidential informers told
police that the appellant was trafficking in drugs. As a result, VicPD
initiated surveillance.
Surveillance
[7]

The surveillance occurred over six days in April and May 2016 and
focused on the apartment building in which the appellant lived. Police also had
information that tenants in that building had complained about the appellant
trafficking in drugs.
[8]

During the surveillance, police observed activity they believed was
consistent with drug trafficking. This included the appellant thrice leaving
the apartment building and getting into a vehicle for a short period. On five
occasions, people known or suspected to be involved in the drug trade entered
the building at the appellants invitation and remained there for short
periods. On two occasions, police saw people who left the appellants company
conduct a hand‑to‑hand transaction with someone else or get into a
vehicle for a short period.
Search Warrant
[9]

On May 10, 2016, police obtained a warrant to search the appellants
apartment. The Information to Obtain (ITO) included the intelligence from the
confidential informers; the complaints by other residents of the apartment
building; observations made during the surveillance; and the appellants
criminal record, including a prior conviction for possessing drugs for the
purpose of trafficking and three convictions for weapons offences. The ITO also
indicated that police conducted a warranted search of the appellants residence
in 2013 (a different location) and located 14.9 grams of cocaine,
11.8 grams of heroin, two cell phones and $1,128 in cash. The company that
managed the appellants apartment building in 2016 confirmed he was a tenant in
the building. This too was included in the ITO.
Warrantless Arrest
[10]

On May 11, 2016, members of the Greater Victoria Emergency Response Team
(ERT) arrested the appellant for possessing a controlled substance for purposes
of trafficking. The arrest occurred away from his apartment. Police executed
the search warrant after the arrest. In opening the apartment door, they used keys
that were in the appellants possession when arrested. The search revealed
30 pills containing ketamine and fentanyl; 15.4 grams of pebbled
heroin and fentanyl; 122 grams of caffeine; multiple score sheets; a
working digital scale; $5,005 in cash; a money counter; an iPhone; a machete;
six knives (one of which was a prohibited push dagger); and a baton.
Charges and Unendorsed Arrest Warrant
[11]

Eight days after the search of the apartment (May 19, 2016), an
Information was sworn charging the appellant with various drug and weapons
offences. A justice of the peace issued an unendorsed warrant for the
appellants arrest.
[12]

The trial judge found that police did not execute the arrest warrant until
August 11, 2016. The arrest did not produce evidence relevant to the drug
prosecution.
Charter Applications at Trial
[13]

For purposes of his trial, the appellant gave written notice of two
Charter
applications. The applications raised multiple allegations of
constitutional non‑compliance by police and others in the criminal
justice system.
[14]

The appellant claimed that the search of his apartment on May 11, 2016,
and the related seizures, were unreasonable in violation of s. 8 of the
Charter
because the ITO did not provide a sufficient basis for the warrant. He said
the warrantless arrest preceding the search violated s. 9 because it was
not supported by reasonable grounds. He claimed that the warrant for his arrest
that issued on May 19, 2016, constituted an abuse of process in violation of
s. 7 of the
Charter
because: only a summons was permitted in the
circumstances; police took too long to execute that warrant; and the process
for issuing the warrant was deficient as it had not been recorded.
[15]

In the first of his two
Charter
notices, the appellant sought the
exclusion of evidence under s. 24(2). In his second notice, he added the
remedy of a stay of proceedings into the mix, invoking s. 24(1). In
addition to the
Charter
notices, the appellant

asked the judge to
issue direction[s] to all justices of the peace in British Columbia on the
proper procedures for issuing an arrest warrant, including maintaining a
producible record for purposes of review.
[16]

The Crown agreed that the complaint about the warrantless arrest on May 11, 2016,
justified an evidentiary
voir dire
.

However, it asked that the
trial judge summarily dismiss the other
Charter
challenges on the basis
that they carried no reasonable prospect of success.
Rulings of the Trial Judge
[17]

The trial judge first addressed the challenge to the unendorsed arrest
warrant issued on May 19, 2016:
R. v. Orr
, 2017 BCSC 2701
(RFJ‑1).
[18]

Citing
R. v.
Vukelich
(1996),
108 C.C.C (3d)
193 (B.C.C.A.)
, the Crown asked that this complaint be summarily
dismissed on the ground that the appellant was unable to show the warrant did
not comply with the requirements
prescribed by s. 507(4) of the
Criminal
Code
, R.S.C. 1985, c. C‑46.

Nor was there evidence
to support the appellants suggestion that the process by which the warrant
issued and its execution constituted an abuse of process within the meaning of
s. 7 of the
Charter.
[19]

The judge deferred his ruling on this challenge until completion of the
enquiry into the validity of the search warrant executed on May 11, 2016. He
thought it possible that during the s. 8 application, evidence might
become available for the defence in support of its challenge to the arrest
warrant. The appellant had also indicated he might call a justice of the peace
to testify about the general process of authorization for warrants versus a
summons, and that he wanted to cross-examine the police officer who obtained
the arrest warrant (RFJ‑1 at para. 10). The judge adjourned the
first
Charter
issue and granted the appellant leave to raise it again
after completion of the hearing on the search warrant.
[20]

The s. 8 challenge was next in line. The judges findings on this
enquiry are indexed as
R. v. Orr
, 2017 BCSC 2702
(RFJ‑2).
[21]

The appellant said the search of his apartment was unreasonable because
the authorizing warrant was invalid. The ITO contained information that was
prejudicial and unnecessary (RFJ‑2 at para. 6). This included, but
was not limited to, the appellants full criminal record and reference to a
2013 search of his then‑residence that resulted in a drug seizure but no
criminal charges.
[22]

The Crown opposed an evidentiary
voir dire
on the search warrant,
again citing
Vukelich
. It argued that the material complained of was
properly included in the ITO, and, in any event, even if the judge were to excise
that material, there remained ample evidence to support the warrant (RFJ‑2
at para. 10). As such, the warrant could have issued and the application
to have it declared invalid carried no reasonable prospect of success.
[23]

The trial judge reviewed the entirety of the 37‑page ITO. He
dismissed the s. 8
Charter
claim, concluding that:
even if the challenged portions of the information to
obtain are excised, what remains is sufficient to satisfy the test of
reasonable grounds for the search. It follows, therefore, that on the authority
of
R. v. Vukelich
, I find that there is no reasonable prospect that the
accused will be successful in having the warrant quashed, and I conclude that
conducting a hearing into the validity of the search warrant would be a waste
of judicial resources. See also
R. v. Cody
, 2017 SCC 31
at para. 38.
[RFJ‑2 at para. 27.]
[24]

At this point, the judge returned to the complaint about the arrest
warrant from May 19, 2016, and asked appellants counsel whether he had further
submissions to make based on the s. 8
Vukelich
hearing. There were
no further submissions.
[25]

The judge proceeded to review ss. 507(1)(4) of the
Code
,
which enumerate the requirements for the issuance of process to compel an
accused to attend court in a prosecution commenced by the federal or provincial
Attorney General. He noted there was no material before him showing what was
placed before the justice of the peace in this case, or detailing the process
that was followed (RFJ‑2 at para. 34).
[26]

The appellant sought to argue there was no reason for an arrest
warrant. There were no grounds to believe a warrant was necessary in the public
interest (as required by s. 507(4)). There was no indication that the
police had any concerns about where the [appellant] was at any time between the
time of the search and the issuance of the [arrest] warrant, or that any
restriction was sought to be placed on the [appellants] movements or liberty
in support of the public interest (RFJ‑2 at para. 35).
[27]

The judge decided the appellant should be allowed to pursue this
challenge by way an evidentiary
voir dire
:
[36]      The difficulty that transpires in a case of this
nature is that the hearing before the justice of the peace is
ex parte
. It
may be that there was ample evidence placed before the justice of the peace to
support the issuance of a warrant, particularly an unendorsed warrant, but we
are not aware of what that was. That, in my view, is an unsatisfactory result
as it is clear that the justice of the peace is obliged to meet the test of
reasonable grounds to justify a warrant before issuing one.
[37]      For the accused to explore that issue, there must
be something by way of material that can be assessed and spoken to, either by
submissions of counsel and perhaps supplemented with an affidavit. In this
case, there is nothing. The only way that the accused can probe that particular
issue is in the context of a
voir dire
where the police officer who
presented the material can be questioned as to what material was placed before
the justice of the peace. It may also be that a justice of the peace can be
called and questioned about the general process, not the actual conduct of a
judicial act, but the process that is typically followed and how information is
recorded and presented at an
ex parte
hearing.
[RFJ‑2.]
[28]

Before moving into that
voir dire,
the judge addressed a third of
the appellants constitutional complaints, namely, the lawfulness of the arrest
without
a warrant

on May 11, 2016. The judges ruling on that
issue is indexed as
R. v. Orr
, 2017 BCSC 2703 (RFJ‑3).
[29]

Members of the ERT arrested the appellant on the same day police
searched his apartment. The appellant argued police did not have reasonable grounds
for the arrest and, as a result, it was arbitrary, in violation of s. 9 of
the
Charter.
An evidentiary
voir dire
proceeded with the Crowns
consent. One witness testified: Sgt. Philip. He was involved in the
surveillance that preceded the warrantless arrest. In his ruling, the trial
judge reviewed the evidence of Sgt. Philip. He also reviewed s. 495(1)
of the
Code
, which sets out the criteria for a warrantless arrest, and a
leading Supreme Court authority on the legal standard applied under that provision:
R. v. Storrey
, [1990] 1 S.C.R. 241. The judge found, as a
fact, that the police officers who effected the arrest of the [appellant]
honestly believed that the [appellant] was, at the time of his arrest, in
possession of a controlled substance for the purpose of trafficking (RFJ‑3
at para. 28). He also found that the information known to police at the
time of the arrest satisfie[d] the objective criteria sufficient to justify
the arrest (at para. 29). He dismissed the challenge to the lawfulness of
the warrantless arrest.
[30]

Notwithstanding this conclusion, the judge went on to address a further
issue. The evidence on the
voir dire
suggest[ed] to him that the
appellant was held in custody for some period of time after his arrest, and
then released without appearing before a justice of the peace or being rendered
subject to a process compelling him to attend court. It also appear[ed] that
the appellant was released after the search of his residence had been completed.
As a result, the judge considered it important to remind counsel and the
police that:
[32]       the purpose of an arrest is to take the
accused before a justice so as to bring him under the authority of the court or
to compel him to comply with conditions that are set, most of which consist of
his adhering to the conditions that the court or the system of justice imposes
upon him.

[35]       It appears that there is a common practice
of arresting an accused at the time that a search is being conducted, and I
question whether such practice is within the authority of the
Criminal Code
.

[RFJ‑3.]
[31]

The next matter addressed was an application to reopen the s. 8
challenge to the search of the appellants apartment. The Crown opposed the
application, taking the position that additional submissions would not change
the previous outcome (dismissal).
[32]

The appellant said the evidence provided by Sgt. Philip on the
voir
dire
relating to the warrantless arrest revealed material omissions and
misstatements in the ITO. The result was a stronger foundation from which to
argue that the search warrant was invalid and that the evidence obtained under
the warrant should be excluded from trial.
[33]

The judge dismissed the application to reopen. His reasons are indexed
as
R. v. Orr
, 2018 BCSC 2473 (RFJ‑4). The judge
reviewed the information the appellant said had emerged from the s. 9
voir
dire
and concluded that the ITO touche[d] on some of those issues (RFJ‑4
at para. 9). Moreover, to the extent that the additional information
revealed omissions or misstatements in the ITO, they were not of a kind or
nature that could lead to a finding that the issuing justice was misled in a
way that could result in the warrant being set aside or the evidence obtained
being excluded (at para. 12).
[34]

That took the judge back to the complaint about the unendorsed arrest
warrant that issued on May 19, 2016. By this point, the appellant had reshaped
his constitutional claim on that issue. He had transitioned from a request for
the exclusion of evidence under s. 24(2) of the
Charter
to an
application for a stay of proceedings under s. 24(1)
.
The asserted
basis for the stay was two‑fold. The appellant contended: (1) that
an arrest warrant was not necessary in the public interest and therefore
unlawful; and (2) that the process by which the warrant had issued was
deficient. The Crown asked that the application for a stay of proceedings be
dismissed on the ground there was no reasonable prospect of success. The judge
rejected that argument and the matter moved into an evidentiary
voir dire
:
R. v. Orr
, 2018 BCSC 2474 (RFJ‑5).
[35]

The ruling on the s. 24(1) application is indexed as
R. v. Orr
,
2018 BCSC 1626 (RFJ‑6). Two witnesses testified on the
voir
dire
: the police officer who swore the Information charging the appellant
with drug and weapons offences (Cst. Mutch); and a justice of the peace
who described, generally, the procedures surrounding the swearing of an
Information and the concomitant issuance of process (Justice of the Peace
(JP) Erickson).
[36]

In his ruling, the trial judge described the requirements under s. 507(1)(4)
of the
Code
as follows:
[32]       The justice of the peace must be satisfied
upon hearing the facts of the case that the informant has reasonable and
probable grounds to believe and does believe that the facts alleged in the
information are true. The information is given upon the oath of the officer or,
in the case of a private prosecutor, the person preferring the information. If
so satisfied, the justice then turns to the question of whether or not to issue
process. In doing so, the justice must have regard to the purpose of the
process, which is to bring the accused under the jurisdiction of the court.
[33]      The justice should be guided by the seriousness of
the offence, as well as whether or not the accused is known to reside in the
community, whether he or she will respond to a summons, and/or whether it is
possible to serve a summons effectively, whether the accused is likely to commit
further offences or to interfere with potential witnesses. There may be other
factors to be considered, but those are some of them. The Crown may seek a
warrant on the ground that it is necessary to arrest the accused, so that
conditions can be imposed upon the accused to control his or her behaviour
while awaiting trial. That, in my view, is a suitable framework for the
analysis of the justice of the peace. I do not intend it to be an exhaustive
analysis, but only some of the important factors that seem to arise in most
cases.
[RFJ‑6.]
[37]

Applying this analysis to the case, the judge dismissed the application
for a stay of proceedings. He found that the appellant did not prove an abuse
of process. There were ample grounds upon which to base the issuance of the
[I]nformation (RFJ‑6 at para. 34). There was also no evidence
showing that the justice who accepted the Information and issued the arrest
warrant did not comply with s. 507 and the process of an official is
presumed to be conducted properly (at para. 38).
[38]

The appellant also argued that justices of the peace should record all
proceedings under s. 507. The absence of a recording was said to render
the process for issuing an arrest warrant abusive because it precludes
transparency for purposes of review. The trial judge rejected that argument,
holding t
here is no need for an actual
recording (RFJ‑6 at para. 40). On this point, he also agreed with
the comments of Ewaschuk J. in
R. v. Whitmore
(1987), 41 C.C.C. (3d) 555
(Ont. S.C.), affd (1989), 51 C.C.C. (3d) 294 (Ont. C.A.),
stating
that s. 507 of the
Code
(then s. 455.3) does
not mandate a recording.
[39]

These conclusions were sufficient to dispose of the application under
s. 24(1). However, the trial judge went on to express the following views.
First, he opined that there is no authorization in law to simply sit on a
warrant or delay the arrest for any other purpose. Second, there is no
authority in law to arrest someone to expedite the search of a residence or any
other execution of a search warrant. Third, when police attend before a
justice to swear an Information and seek process, they should have a notation
of the reasons why a warrant, either endorsed or unendorsed, is sought at the
first instance rather than a summons. Finally, the reasons for the warrant
should be articulated to the justice of the peace (RFJ 6 at paras. 36,
37, 40).
[40]

At the conclusion of his ruling, the judge expressed hope that his
comments would be considered by the Attorney General, so that if an
appropriate process is not being followed under s. 507 of the
Code
,
it will be (RFJ‑6 at para. 42).
Issues on Appeal
[41]

In his factum, the appellant makes substantive submissions

on
three main issues. He says the trial judge erred by: (1) summarily
dismissing the s. 8 challenge; (2) finding there were objectively
reasonable grounds for the warrantless arrest and therefore no violation of
s. 9; and (3) concluding that issuance of the unendorsed arrest
warrant did not give rise to an abuse of process under s. 7 of the
Charter
.
I will resolve the appeal on those bases.
[42]

There is an ancillary issue to address. The Office of the Chief Judge of
the Provincial Court of British Columbia (OCJ) has applied for a permanent
sealing order and publication ban specific to an excerpt from a justice of the
peace training manual that was provided to the judge at trial, and referred to
by appellants counsel in his submissions on the s. 7
voir dire
.

I will address that issue at the end of my reasons.
Discussion
General Principles Applicable to
Charter-
based

Claims
[43]

Before turning to the grounds of appeal, I consider it helpful to set
out some well‑established principles governing
Charter
applications
in the criminal trial context. These principles may appear trite to some, but
they are germane to the issues raised by the appellant and worth repeating.
[44]

First
, the applicant for a
Charter
remedy bears the
overall burden of proving an infringement or denial of a constitutionally
protected right or guarantee on a balance of probabilities. In some cases, that
burden may be met by establishing a
prima facie
set of facts that
triggers a presumption the Crown is then unable to rebut (such as the
presumptive unreasonableness of a warrantless search). As another example, the applicant
might establish an arrest (or detention) and, in response, the Crown is unable
to justify the lawfulness of the liberty interference. Even in those
circumstances, however, it remains the applicants overall burden to prove that
the impugned state conduct violated the
Charter
. (
R. v. Duerksen
, 2018 BCCA 46 at paras. 25, 35;
R. v. Lotfy
, 2017 BCCA 418
at para. 32, leave refd [2018] S.C.C.A. No. 14;
R. v.
Sadikov
, 2014 ONCA 72 at para. 35
; R. v. Harper,
[1994] 3 S.C.R. 343 at 354
;
R. v.
Collins
, [1987] 1 S.C.R. 265 at 27778.)
[45]

Second
, constitutional claimants that seek the exclusion of
evidence under s. 24(2) or an individualized remedy under s. 24(1) of
the
Charter
must support their application for a remedy with a factual
foundation. Allegations of constitutional violation cannot exist in a factual
vacuum, or rely for their proof on conjecture, speculation, or the unsupported
submissions of counsel. (
R. v. Fournier
, 2019 ABCA 265 at para. 9:
R. v. Patry
, 2018 BCSC 591 at paras. 3033;
MacKay v.
Manitoba
, [1989] 2 S.C.R. 357 at 36162;
Collins.
)
[46]

Third
, there is no automatic entitlement to an evidentiary
voir
dire
in a
Charter
claim. As a result, where there is no reasonable
likelihood that a
voir dire
can assist in determining the issues before
the court, or no reasonable prospect of success in proving an infringement or obtaining
the sought‑after relief, a trial judge has clear jurisdiction to decline
an evidentiary
voir dire
and to summarily consider and dismiss the
application. (
Vukelich
;
R. v. Greer
, 2020 ONCA 795 at para. 108;
Trans Mountain Pipeline ULC v. Mivasair
, 2020 BCCA 255 at paras. 4952;
R. v. Edwardsen
, 2019 BCCA 259 at para. 62, leave refd
[2019] S.C.C.A. No. 337;
R. v. Vickerson
, 2018 BCCA 39
at para. 61;
R. v. Frederickson
, 2018 BCCA 2 at paras. 1114,
24, 26, 33, 39;
R. v. Joseph
,

2018 BCCA 284 at paras. 2025;
R. v. Cody
, 2017 SCC 31 at para. 38;
R. v. Mehan
,
2017 BCCA 21 at paras. 4347, 49;
R. v. Pires, R. v. Lising
,
2005 SCC 66 at para. 35.)
[47]

Fourth
, a trial judge is entitled to revisit a
Charter
ruling
made during the trial. However, that power is limited and to be exercised only
when necessary because of a material change of circumstances or other
development that renders a re‑opening in the interests of justice, and
not if it results in an unfair proceeding. (
R. v. Slemko
,
2020 BCCA 207 at para. 52;
R. v. R.V.
,
2018 ONCA 547 at paras. 98103,
rev'd on other grounds, 2019 SCC 41;
R. v. Le
,
2011 MBCA 83 at para. 123.)
[48]

Fifth
, a decision to decline an evidentiary
voir dire
, or
to re‑visit that ruling, will attract significant deference on appeal. (
Greer
at paras. 108109;
Vickerson
at paras. 6162;
R. v. M.B.
,
2016 BCCA 476 at paras. 4547;
Pires, Lising
at para. 47.)
[49]

With these principles in mind, I turn to the grounds of appeal.
Did the trial judge err in summarily dismissing the s. 8 challenge?
[50]

The trial judge dismissed the challenge to the search warrant after a
Vukelich
hearing. The appellant says the judge went too far in summarily resolving
his s. 8 claim. The intent of the
Vukelich
hearing [is] to
determine if there is an articulable basis to conduct a
voir dire
.
Instead of asking himself that question, the appellant says the judge invited
full submissions on the likely outcome of any such
voir dire
and
assessed the relevant evidence before it was even adduced, prematurely making
dispositive findings on the validity of the warrant (appellants factum at paras. 9394).
[51]

The appellant contends that the judges approach to the s. 8 claim extended
well beyond that contemplated by
Vukelich
. Moreover, it employed a
screening methodology that he says engenders trial unfairness. If the Crowns
application for summary dismissal is not successful after the type of
Vukelich
hearing conducted in this case, and the s. 8 challenge proceeds to an
evidentiary
voir dire
, the Crown unfairly receives two full
opportunities to defeat the defence claim for
Charter
relief. Where the
Vukelich
application
is
successful, the appellant contends the approach
adopted by the trial judge irreparably taints any subsequent request to reopen
the s. 8 ruling because the court has already made conclusive findings in
respect of the ITO.
[52]

The Crown says there is no basis on which to interfere with the judges
exercise of discretion in dismissing the s. 8 challenge. He was entitled
to manage the trial in this manner and to reduce the amount of court time spent
on a
Charter
application that bore no reasonable prospect of success.
The appellant made thorough submissions on the issues he wanted to raise with
the judge. The judge had opportunity to read the entirety of the ITO; he
reflected on the matter overnight; and then (correctly), the judge determined
that the appellant would not be able to establish warrant invalidity. To
declare an evidentiary
voir dire
in those circumstances would have
wasted judicial resources.
[53]

The standard of appellate review governing the summary dismissal of a
Charter
claim was set out this way by Bennett J.A. in
Vickerson
:
[61]

The discretion to decline to hold a
voir dire
is
founded in the need for trial judges to control the course of proceedings and
to not embark upon enquiries that will not assist the real issues in the trial:
M.B.
at para. 45.
These case management powers are a critical
tool that trial judges should use to minimize delay
:
R. v. Cody
,
2017 SCC 31 at para. 38, citing
Vukelich
with approval on
this point.
[62]

Absent an argument on appeal demonstrating that the
trial judges discretion in declining to hold a
voir dire
was not
exercised judicially, this Court cannot and should not disturb such rulings.
[Emphasis
added.]
[54]

The importance of the deferential standard cannot be overstated.
As explained by Charron J. in
Pires,

Lising
, without
deference to the discretionary exercise of case management powers, judges are
likely to embark upon many unnecessary hearings rather than risk vitiating an
entire trial, and the trial courts power to control the proceedings then
becomes more illusory than real (at para. 47). Such a result would be
antithetical to the increased jurisprudential calls to avoid unnecessary delay
in criminal proceedings and the special role judges play in
heeding that call:
R. v. Jordan
,
2016 SCC 27 at paras. 41, 45, 114, 116, 139;
Cody
at paras. 1,
3639;
R. v. Thanabalasingham
, 2020 SCC 18 at para. 9.
[55]

After reviewing
the record in this case, I am not persuaded the trial judge failed to exercise
his discretion judicially in dismissing the s. 8 challenge, both at first
instance and following the application to reopen. As a result, there is no basis
for appellate intervention with these rulings.
[56]

The trial judge
in
Vukelich
summarily dismissed a challenge to a search warrant, as well
as a subsequent application to reconsider that decision. This Court upheld the
dismissals, confirming that a judge
need
not embark upon an enquiry that will not assist the proper trial of the real
issues (at para. 26).
[57]

Writing for the Court,
McEachern C.J. emboldened trial judges to conduct a threshold screening of
Charter‑
based challenges and noted that they have considerable
flexibility in doing so. In most cases, the utility of a
voir dire
to
test admissibility can be determined from the statements of counsel (at para. 17).
Counsel can explain the basis for the claim, particularizing the right or
guarantee said to have been breached by the impugned state conduct; the manner
of that breach; the anticipated evidence in support (arising from the Crowns
case or otherwise); and the remedy sought. Where there has been advance notice
of the
Charter
application, it will logically assist in framing the
discussion. (For a helpful discussion of advance notice in the s. 24(2)
context, see
Greer
at para. 104;
R. v. Sipes
,
2008 BCSC 1257; and
R. v. Fagan
(1998), 115 B.C.A.C. 106
at paras. 3856. The
Constitutional Question Act
, R.S.B.C. 1996,
c. 68 governs notice in applications for a remedy under s. 24(1).)
[58]

If the statements of counsel
prove insufficient for a threshold screening, greater material may be
necessary, such as an affidavit setting out the evidence likely to support the
constitutional challenge:
Vukelich
at para. 21. In some cases,
there would be nothing to prevent the defence from advancing its full position
in the first instance (at para. 21). What is required in a given case to
justify an evidentiary
voir dire
will depend on the circumstances,
including the breadth and complexity of the issues raised and the legal tests governing
their review and resolution. In a
Vukelich
hearing, there must be
sufficient substance put before the court to enable the trial judge to properly
exercise [their] discretion, and the threshold analysis is contextual:
Frederickson
at paras. 26, 33.
[59]

In this case, the defence did
advance its full position on the
Vukelich
hearing. On appeal,
appellants counsel does not point to additional submissions he would have made
or evidence he would have called had there been a
voir dire
.

He
says the summary dismissal at first instance deprived the appellant of the
opportunity to cross‑examine the affiant. However, appellants counsel
told the judge more than once that the challenge to the search warrant was
restricted to its facial validity. At no point did the appellant seek to cross‑examine
the affiant of the ITO. In a facial validity challenge, the record examined by
the reviewing judge generally consists only of the ITO. It is not an amplified
or enlarged record:
Sadikov
at para. 37.
[60]

I see nothing wrong with the
approach taken by the trial judge in this case, given the nature of the
s. 8 challenge,
Vukelich
and subsequent cases. It accords with the
procedural fairness requirements for summary dismissal of a
Charter
motion
set out by the Court of Appeal for Ontario in
Greer
. The appellant
received an opportunity to make submissions; he was able to identify for the
judge the evidence that he said supported his
Charter
claim; and the
judge explained the reasons for his ruling (at paras. 110114).
[61]

The judge had access to
the
entirety of the affidavit prepared in support of the search warrant.
Appellants counsel worked through the ITO, highlighting the parts he said were
misleading, irrelevant, incomplete, unduly prejudicial, and reflected
conclusory statements about the appellants alleged drug trafficking that were
speculative, failed to account for alternative and innocent explanations, and
were of no assistance to assessing the existence of reasonable grounds.
Appellants counsel broke down each of the incidents observed as part of the
police surveillance in April and May 2016, highlighting the weaknesses of the inferences
drawn from them. He emphasized the ITOs inclusion of what he described as
quasi‑
opinion
evidence on behaviours said to be consistent with drug trafficking, without
expert qualification or independent support. He also addressed the fact that
the ITO relied on information provided by confidential informers. He made
submissions on the lack of corroboration in support of informer reliability, with
specific reference to redacted portions of the ITO.
[62]

In addition to pulling apart the ITO, appellants counsel made
submissions on the law governing the issuance of a search warrant. Citing
R. v.
Morelli
, 2010 SCC 8, he emphasized the importance of full and
frank disclosure when applying for a warrant to avoid misleading impressions or
the potential for inferences that would not have been available had there been
a complete recitation of the known facts:
Morelli
at para. 58. He
also stressed the problems associated with the use of generalizations about the
proclivities of particular types of offenders without supporting expert
opinion, risking dependence on stereotypes and prejudices in lieu of
evidence:
Morelli
at para. 79. From the appellants perspective,
the search warrant in this case suffered from many of the frailties found to
invalidate the warrant in
Morelli.
He submitted that after excising the
impugned portions of the ITO (as particularized on the
Vukelich
hearing),
the warrant could not have issued:
R. v. Araujo
, 2000 SCC 65.
[63]

After completion of the
voir dire
on the warrantless arrest, the
appellant applied to revisit the
Vukelich
ruling (with a continued focus
on facial validity). He said a number of facts arose from the evidence on the
s. 9
voir dire
that were not included in the ITO, raising serious
questions about whether the ITO met the test for full and frank disclosure. He
identified each of those facts for the trial judge and made submissions on why
they made a difference to the appellants request for a
voir dire
.
[64]

In
Cody,
the Supreme Court made it clear that trial judges not
only have jurisdiction to engage in a
Vukelich
hearing, but a
positive
obligation
to use their case management powers to minimize delay:
[
38
]
For example, before
permitting an application to proceed, a trial judge should consider whether it
has a reasonable prospect of success
. This may entail asking defence
counsel to summarize the evidence it anticipates eliciting in the
voir dire
and,
where that summary reveals no basis upon which the application could succeed,
dismissing the application summarily (
R. v. Kutynec
(1992), 7 O.R. (3d) 277
(C.A.), at pp. 287‑89;
R. v. Vukelich
(1996), 108 C.C.C. (3d) 193
(B.C.C.A.)).
And, even where an application is permitted to proceed, a trial
judges screening function subsists: trial judges should not hesitate to
summarily dismiss applications and requests the moment it becomes apparent
they are frivolous
(
Jordan
, at para. 63). This screening
function applies equally to Crown applications and requests. As a best
practice, all counsel  Crown and defence  should take appropriate
opportunities to ask trial judges to exercise such discretion.
[Emphasis added.]
[65]

After a close review of the s. 8 rulings in this case, I am
satisfied the trial judge did what
Cody
requires of him. He judicially
exercised his screening function. He was alive to the appellants specific
concerns about the ITO, considering them at first instance and on the request
to re‑open. This included the fact that during their surveillance, police
did not see actual drugs pass hands and that the appellants conduct was
possibly consistent with totally innocent contact (RFJ‑2 at para. 19).
The judge acknowledged that because of redactions to the ITO, critical
information in assessing the reliability of the information
received from the confidential informers was not
before him (at para. 21). He turned his mind to the prejudice that the
appellant said flowed from including the entirety of his criminal record in the
ITO (at para. 26).
[66]

In denying an evidentiary
voir
dire
, the trial judge properly instructed himself that a warrants facial
validity is assessed with reference to the totality of the material before the
authorizing justice (RFJ‑2 at para. 25). He focused on the right
question and asked himself whether the facts set out in the ITO, after
excising misstatements and adding omissions as suggested by the defence
submissions, disclosed a
reasonable
basis on
which the warrant could have been challenged:
Frederickson
at para. 39.
(See RFJ‑2 at para. 27; RFJ‑4 at para. 12.) Ultimately,
the judge found there was no reasonable prospect of success on the s. 8
claim. This was a conclusion reasonably open to him on the ITO, considered in
its entirety. On appeal, the appellant does not challenge the merits of the
judges conclusion that even if he excised the challenged portions of the
ITO, the warrant could have issued (RFJ‑2 at para. 27). Rather, he has
focused on the process by which the judge reached that conclusion.
[67]

Applying the deferential standard
of review to the
Vukelich
ruling, I would not accede to this ground of
appeal.
Did the trial judge err in his conclusion on the s. 9 complaint?
[68]

The appellant says the trial judge was wrong to find there were
sufficient grounds for the appellants warrantless arrest on May 11, 2016. Any
subjectively held belief that the appellant possessed one or more controlled
substances for purposes of trafficking was not objectively reasonable. Instead,
it was speculative.
[69]

Specifically, the appellant contends that the evidence on the s. 9
voir
dire
did not reveal actual hand‑to‑hand drug transactions
involving the appellant. The observations made of the appellant were equally
consistent with lawful activity. Police made no observations of the appellant
inside
his apartment, engaged in drug transactions with the people who entered.
Police saw people leave the building who then exhibited conduct consistent with
trafficking; however, the appellant was not an observed party to [those] two incidents
and his only connection [was] the speculative belief that [those] two people
had met with [him] while inside the building (appellants factum at para. 80).
From the appellants perspective, police knowledge and experience in drug
trafficking investigations could not make up for the lack of objective support
for an arrest.
[70]

Relying on
R. v. Lahtinen
, 2011 BCPC 490 at para. 26,
and like cases, the appellant says police brought a jaundiced and overly
negative view of the appellant and his behaviour to their investigation.
Applying that lens, Sgt. Philip and his co‑investigators are said to
have misinterpreted the appellants conduct as consistent with drug
trafficking. They had distorted subjective beliefs.
[71]

The Crown says the judge did not err in finding police had objectively reasonable
grounds to believe the appellant had committed or was about to commit a
criminal offence (in compliance with s. 495(1)(a) of the
Code
). The
surveillance observations, the other information available to police, and
Sgt. Philips knowledge and experience as a drug investigator provided
ample objective support for the warrantless arrest. It is the cumulative effect

of the information known to police that matters:
R. v. Luong
,
2010 BCCA 158 at para. 17.
[72]

The appellant does not challenge the
judges finding of fact that the officers who effected the arrest honestly
held a subjective belief that the appellant was in possession of a controlled
substance for the purpose of trafficking (RFJ‑3 at paras. 2829).

Rather, the s. 9 complaint focuses on the determination that the subjective
belief was objectively reasonable. This raises a question of law. As noted in
Vickerson
,
the standard of review is correctness:
[64]

The
standard of review of whether reasonable and probable grounds exist is found in
R. v. Shepherd
, 2009 SCC 35 at para. 20:
While there can be no doubt that
the existence of reasonable and probable grounds is grounded in the factual
findings of the trial judge,
the issue of whether the facts as found by the
trial judge amount
at law
to reasonable and probable grounds is a
question of law
. As with any issue on appeal that requires the court to
review the underlying factual foundation of a case, it may understandably seem
at first blush as though the issue of reasonable and probable grounds is a
question of fact. However, this Court has repeatedly affirmed that the
application of a legal standard to the facts of the case is a question of law:
see
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992,
at para. 18;
R. v. Biniaris
, 2000 SCC 15, [2000]
1 S.C.R. 381, at para. 23. ... Although the trial judges
factual findings are entitled to deference, the trial judges ultimate ruling
is subject to review for correctness.
[Emphasis added.]
[73]

Only one witness testified about the warrantless arrest: Sgt. Philip.
At the material time, he was a supervisor with the VicPD Strike Force unita
plainclothes surveillance unit with a primary mandate of investigating drug‑related
offences. Sgt. Philip had been with that unit for five years. Prior roles included
working in an undercover capacity in street drug investigations and eight years
with an emergency response team. On at least three prior occasions, Sgt. Philip
had been qualified by a court to give expert opinion evidence as a drug
expert. He had specialized training in controlled substances; recruiting and
managing confidential informers; and surveillance techniques. He was not a
neophyte.
[74]

Sgt. Philip personally participated in the surveillance of the
appellant as part of VicPDs targeted drug investigation. On May 10, 2016, he
concluded that police should arrest the appellant for drug offences and apply
for a warrant to search the appellants residence. He relayed that conclusion
to others at VicPD, and they took steps to effect the arrest. Sgt. Philip
testified that he considered a number of factors in reaching his conclusion
on the arrest. They included:
·

emails
from people who managed an apartment building on Quadra Street in Victoria,
indicating that other tenants had complained of the appellant engaging in drug
trafficking in and around the building;
·

a
tenancy list produced by the managers of that building confirming the appellant
was a resident;
·

Sgt. Philip
was personally familiar with the appellant, having investigated him twice
previously for trafficking in controlled substances (2013 and 2015). The 2013
investigation included a search of the appellants then‑residence and the
seizure of controlled substances;
·

Sgt. Philip
regularly attended intelligence meetings at VicPD. The appellants name was
brought up on numerous occasions as being a viable target [for surveillance]
and possibly involved in trafficking controlled substances;
·

three
confidential informers reported that the appellant was involved in trafficking
and, based on information gathered from one or more other officers, Sgt. Philip
came to believe the informers were reliable;
·

while
conducting six days of surveillance of the appellant in late April and early
May 2016, the surveillance team and/or Sgt. Philip made observations they
believed were consistent with trafficking in controlled substances from his
apartment building. This included observations of the appellant interacting
with persons known to police as involved in Victorias drug culture;
·

by
May 10, 2016, the surveillance team had seen plenty of behaviour consistent
with trafficking and Sgt. Philip believed the appellant was a drug
dealer; was heavily involved in trafficking; was in possession of controlled
substances; and would continue to be;
·

Sgt. Philip
relied on his own experience in drug investigations in forming his beliefs
about the appellants conduct;
·

he
also considered the totality of everything[:]  the information of
confidential informants and [their] surveillance observations and the beliefs
of other members on the team; and,
·

before the actual arrest on May 11, Sgt. Philip reviewed the
ITO prepared in support of a search warrant to be executed that same day. The
ITO confirmed that which he already knew of the appellant, based on his own
observations or otherwise. Nothing in the ITO contradicted inferences that he
had personally drawn.
[75]

In cross‑examination, Sgt. Philip acknowledged that during
the surveillance, police did not see actual drugs in the appellants
possession; they did not see the inside of the appellants apartment; the 2013
drug investigation did not proceed to court; and the 2015 investigation did not
result in charges.
[76]

Section 495(1)(a) of the
Code
authorizes a
peace officer to arrest without
warrant a person who has committed an indictable offence or who, on reasonable
grounds, the officer believes has committed or is about to commit an indictable
offence.
Assessing the validity of an arrest under this provision
involves a two‑part test. First, the trial judge must factually determine
whether the arresting officer subjectively believed that the person arrested
had committed or was about to commit an indictable offence and the grounds for
that belief. As explained by Frankel J.A. in
Lotfy
, the second
stage of the validity analysis:
[35]

involves
determining whether the officers grounds for that belief are objectively
reasonable. This is a question of law:
R. v. Shepherd
,
2009 SCC 35 at paras. 18‒20, [2009] 2 S.C.R. 527;
R. v. MacKenzie
, 2013 SCC 50 at para. 54, [2013]
3 S.C.R. 250.  The officers training and experience are
relevant in assessing objective reasonableness.
MacKenzie
at para. 73;
R. v. Wilson
, 2012 BCCA 517 at para. 26,
99 C.R. (6th) 76, leave to appeal refd, [2013] 3 S.C.R. xii.
[77]

There need not be a
prima facie
case for conviction before an
arrest without a warrant:
Storrey
at 250251. The reasonable grounds
standard requires:
[39]       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.
[
R. v. Henareh
,
2017 BCCA 7, per Fitch J.A.; emphasis added.]
See also
R. v. Glendinning
, 2019 BCCA 365
at paras. 27.
[78]

In this case, the trial judge found a subjective belief that the
appellant was in possession of one or more controlled substances for trafficking.
In my view, he also correctly found there was an objectively reasonable basis
for that belief. The totality of the circumstances known to police, including:
the past involvement in drug offences; the concerns expressed by other tenants
in his building; the information received from confidential informers; the observations
made of the appellant and people interacting with him; and Sgt. Philips
knowledge and experience with drug trafficking investigations generally,
provided a credibly‑based probability of possession and trafficking.
Police acknowledged they did not see the appellant in physical possession of
actual drugs, transporting them, or distributing them to other individuals.
However, Sgt. Philip was entitled to inform the inferences he drew about the
appellants conduct with reference to the other information in his possession.
As the Crown has appropriately emphasized in the appeal, it is the cumulative
effect of the information known to police that matters. Individual pieces of
evidence adduced on the evidentiary
voir dire
may carry the possibility
of alternative (and innocent) inferences. However, the evidence in support of a
warrantless arrest is not [to be] assessed on a piece meal basis:
Luong
at para. 17.
[79]

The appellant did not establish a s. 9 violation at trial.
Accordingly, I would not accede to this ground of appeal.
[80]

Before leaving this issue, it is important to say something about the
trial judges additional comments in his s. 9 ruling. Although he found
that the warrantless arrest did not violate the
Charter,
he went on to
comment adversely on the fact that after the arrest, police appeared to have held
the appellant in custody and then released him without conditions or process
compelling him to attend court. The judge expressed concern about a common
practice of arresting an accused at the time that a search is being conducted,
and queried whether any such practice is authorized by the
Code
(RFJ‑3
at paras. 32, 35).
[81]

With respect, there was no direct evidence on the
voir dire
about
the amount of time the appellant spent in police custody on May 11, 2016; the
reason why police kept him in custody; the circumstances surrounding his
release; or any common practice of warrantless arrests being effected in
conjunction with residential searches. Sgt. Philip testified that he was
not involved in any of the decisions relating to the appellants detention
following his arrest, or his release. No other officer gave evidence on the
voir
dire.
The appellant did not testify on the
voir dire.
The only
reason provided for the arrest in evidence was that police believed the
appellant was in possession of a controlled substance for the purpose of
trafficking, [and] that he would continue to be on the following day.
[82]

In his submissions on the s. 9
voir dire
, appellants
counsel offered the view that the grounds for arrest were, in fact, to allow
[police] to perform the search of [the appellants] residence. However, there
was no evidence in support of that proposition. It was speculative. Counsel did
not suggest to Sgt. Philip in cross‑examination that this was the
primary, or even a secondary, reason for the warrantless arrest. The trial
judge found, as a fact, that the subjective belief underlying the arrest was
the one articulated by Sgt. Philip in his testimony; moreover, he found
that it was an honestly held belief and objectively reasonable.
[83]

It is also worth noting that the written notices of the appellants
Charter
applications filed prior to trial did not allege that the warrantless
arrest was unlawful because it was done to facilitate the search of his
apartment, or that his subsequent detention in custody and his release without
process infringed his s. 9 right. Rather, the challenge to the arrest
focused on the absence of reasonable grounds.
[84]

It follows that the judges comments about the legal propriety of the
appellants detention post‑arrest; his release from custody without
process; and the perceived common practice were
obiter
and unsupported
by evidence. As such, they have no legal effect.
Did the trial judge err in finding no abuse of process?
[85]

A prosecution by the federal or provincial Attorney General commences by
invoking ss. 504 and 507 of the
Code.
In
Ambrosi v. British
Columbia (Attorney General)
, 2014 BCCA 123, Bennett J.A.
explained the process:
[19]

There
are two stages to commencing a prosecution under the
Criminal Code
. The
first is laying an information [under s. 504] and the second is issuing
process.
[20]

The
justice must receive the information [under s. 504] if the alleged offence
is known to law and facially complies with the requirements of this section:
R. v. McHale
,
2010 ONCA 361

at para. 43, leave to appeal refd [2010]
S.C.C.A. No. 290. This commences criminal proceedings and the
person is charged with an offence for the purpose of s. 11(b) of the
Charter
of Rights and Freedoms
[
Charter
] (the right to be tried within a
reasonable time): see
R. v. McHale
at para. 44 and
R. v. Kalanj
,
[1989] 1 S.C.R. 1594 at 1607.
There is another step, however,
before a criminal prosecution commences, and that is the pre-inquiry held by
a judge to decide whether to issue process in the form of either a summons or a
warrant
.
[21]

Since
2002, the
Code
sets out two different procedures for issuing process. The
first, s. 507, applies to informations laid by police officers, public
officers, the Attorney General or the Attorney Generals agent. The second is
s. 507.1, which applies to private prosecutions such as the one brought by
Mr. Ambrosi. Before the 2002 amendment, both public and private informants
were governed by s. 507. The relevant part of the current version of
s. 507 (public prosecutions) reads as follows:
507. (1) Subject to subsection 523(1.1), a justice who
receives an information laid under section 504 by a peace officer, a public
officer, the Attorney General or the Attorney Generals agent, other than an information
laid before the justice under section 505, shall, except if an accused has
already been arrested with or without a warrant,
(
a
) hear and consider,
ex parte
,
(i) the allegations of the informant, and
(ii) the evidence of witnesses, where he considers it
desirable or necessary to do so; and
(
b
) where he considers
that a case for so doing is made out, issue, in accordance with this section,
either a summons or a warrant for the arrest of the accused to compel the
accused to attend before him or some other justice for the same territorial
division to answer to a charge of an offence.
[Emphasis added.]
See also
R. v. Grinshpun
, 2004 BCCA 579 at paras. 32,
33, leave refd [2004] S.C.C.A. No. 579.
[86]

For the purpose of this appeal, ss. 507(3) and (4) of the
Code
are
also germane:
(3) A justice who hears the evidence of a witness
pursuant to subsection (1) shall
(a) take the evidence on oath;
and
(b) cause the evidence to be
taken in accordance with section 540 in so far as that section is capable of
being applied.
(4)
Where
a justice considers that a case is made out for compelling an accused to attend
before him to answer to a charge of an offence,
he shall issue a summons to
the accused unless the allegations of the informant or the evidence of any
witness or witnesses taken in accordance with subsection (3) discloses
reasonable grounds to believe that it is necessary in the public interest to
issue a warrant
for the arrest of the accused.
[Emphasis added.]
[87]

The appellants third ground of appeal concentrates on s. 507 and
the fact that this provision only mandates a recorded proceeding where
witnesses give evidence before the justice of the peace (s. 507(3)(b)).
The justice who issues process is not required to provide reasons for doing so.
The appellant says, as a result, there is no disclosable record of the
justices interaction with the informant. The complete lack of transparency
is said to result in an abuse of process (and therefore a violation of s. 7
of the
Charter
), because an arrest warrant leads to a deprivation of
liberty without any basis to understand, assess or review the decision
underlying its issuance (appellants factum at paras. 61, 68). The
appellant contends that in dismissing his application for a stay of
proceedings, the trial judge did not give meaningful effect to this process deficiency
or its implications.
[88]

This is how appellants counsel framed the s. 7 issue in the court
below. Lack of transparency was his predominant complaint:
Its really a question of whether or not what appears to have
been the past practice of not recording ought to continue and whether or not
that determination is contrary to the
Charter
rights of an accused to
know the reason why he was arrested and the basis by which the warrant was
issued and the ability to challenge that with regards to the arrest provisions
of the
Charter
as well.

Im asking for a stay of proceedings and in doing so
for the reasons that this is not only a process that has  gone on for far too
long where an accused does not have the ability to challenge and/or test the
issuance of a warrant as is provided for under the
Charter of Rights
.

I want to be clear that the abuse of process that
Im alleging does arise out of the lack of transparency and the inability to
review
. So, its not that the prosecution did anything wrong, its not that
 the police officer necessarily did anything wrong or the JP necessarily did
anything wrong. We simply dont know in those regards.
[Emphasis added.]
[89]

The appellant says because the s. 507 proceeding is not recorded
and cannot be transcribed, he has no way of knowing whether the justice of the
peace who issued the arrest warrant on May 19, 2016, correctly determined there
were reasonable grounds to believe a warrant was necessary in the public
interest, as required by s. 507(4). The trial judge relied on the
presumption of regularity in finding that such was the case, but from the
appellants perspective, he was wrong to do so. The presumption of regularity
(although acknowledged to apply to justices of the peace), cannot be used to
support a process that, by its very nature, is not  regular
(appellants factum at para. 72).
[90]

The Crown says the trial judge did not err in denying the appellant a
stay of proceedings under s. 24(1) of the
Charter
. The appellant
adduced no evidence establishing non‑compliance with s. 507 or other
state conduct that adversely affected the fairness of his trial (a first basis
for a finding of abuse of process). Nor did the lack of a recording under
s. 507 impinge on the integrity of the judicial process (a second,
residual basis for finding an abuse of process). As the appellant has
acknowledged, s. 507 does not mandate a recording when witnesses do not
give evidence before the justice of the peace.
[91]

The Crown emphasizes that stays of proceeding for abuse of process are
very rare and says the appellant did not meet the test:
R. v. Babos
,
2014 SCC 16. Had the appellant wanted to challenge the absence of a
mandated recording for all s. 507 proceedings, on grounds that a statutory
provision authorizing such a process violates the
Charter,
the proper
avenue was to bring a constitutional challenge to s. 507. He did not do
so.
[92]

As the majority explained in
Babos
, a decision to decline a stay
of proceedings is subject to a deferential standard of review. Appellate
intervention:
[48]       is warranted
only where a trial judge misdirects him or herself in law, commits a reviewable
error of fact, or renders a decision that is so clearly wrong as to amount to
an injustice ([
R. v.

Bellusci
, 2012 SCC 44] at para. 19; [
R. v.
Regan
, 2002 SCC 12] at para. 117; [
Canada (Minister of
Citizenship and Immigration) v.

Tobiass
, [1997] 3 S.C.R. 391]
at para. 87;
R. v. Bjelland
,

2009 SCC 38,
[2009] 2 S.C.R. 651, at paras. 15 and 51).
[93]

The trial judge allowed the appellant an evidentiary
voir dire
on
his s. 7 challenge. The police officer who swore the Information charging
the appellant with drug and weapons offences testified. Cst. Mutch did not
have an independent recollection of this case; however, she said it is her
general practice when swearing an Information to provide the justice of the
peace with a synopsis of the circumstances surrounding the allegations, as
set out in a Report to Crown Counsel (RTCC) prepared by police for charge
assessment and approval . If the synopsis does not contain sufficient
information, she will typically look through the rest of the RTCC and find what
she needs to ensure that the justice has a sufficient foundation for accepting
the Information. This might include, for example, details about how the accused
was identified as the perpetrator of the alleged offence(s); specific
information surrounding the commission of the offence; and where the offence
took place (presumably to establish jurisdiction). Cst. Mutch described
herself as pretty thorough in setting out the circumstances for the justice. Usually,
justices do not ask her for additional information.
[94]

Cst. Mutch testified that the RTCC typically includes a notation
from the Crown on the form of process considered appropriate for the
prosecution (a summons, endorsed warrant or unendorsed warrant). Cst. Mutch
relays that request to the justice of the peace. In her experience, the justice
of the peace will usually issue the process requested.
[95]

During the officers testimony, appellants counsel showed Cst. Mutch
an RTCC containing a Synopsis that related to this case. She reviewed it and
said it look[ed] like what she would have had access to when swearing the
Information; however, she did not know if it was the same document. That RTCC
was marked as an exhibit for purposes of the
voir dire
.

The
Synopsis portion is relatively brief. In subsequent questioning, Cst. Mutch
said that in light of its brevity, she likely would have gone through the
file in search of additional information to swear the Information and to seek
process as against the appellant. However, because she could not remember the
specific appearance, she was not able to indicate what that information would
have consisted of.
[96]

JP Erickson also testified on the s. 7
voir dire
.

She
was not the justice who accepted the Information or issued process in this
case. However, in her role as a senior justice of the peace, she is familiar
with the Provincial Courts policies and procedures surrounding s. 507 of
the
Code.
She confirmed that both the swearing of an Information (under
s. 504) and a request for process occur under oath or affirmation. She
also confirmed that in British Columbia, the s. 507 proceeding is held
in
camera
and is not recorded unless witnesses are involved.
[97]

Based on the evidence called in support of the appellants s. 7
challenge, I am of the view the complaint about the denial of a stay of
proceedings under s. 24(1) of the
Charter
has no merit. The
appellant does not allege that the judge misdirected himself in law, or that he
committed a reviewable error of fact. Instead, his argument is that the
s. 7 ruling is clearly wrong and amounts to an injustice. I disagree. The
evidence of Cst. Mutch and JP Erickson did not establish that the
unendorsed warrant failed to meet the preconditions for a warrant under
s. 507(4) of the
Code
, or that the process by which the warrant
issued was improper or unauthorized. That was the judges finding on the
voir
dire
and it was reasonably open to him on the evidence (RFJ‑6 at para. 38).
Furthermore, without evidence of non‑compliance, the trial judge was
entitled to presume that the justice of the peace adhered to the requirements of
s. 507 and acted judicially:
Re Tait
(1950),

98 C.C.C. 241
at 25354 (B.C.C.A.).
[98]

In his submissions on the
voir dire
, appellants counsel asked
the judge to infer that there was no need for an unendorsed warrant on May
19, 2016, because police had arrested the appellant eight days earlier, held
him in custody, and then released him without conditions or process compelling
him to attend court (RFJ‑6 at para. 10). Furthermore, police did not
execute the May 19 arrest warrant until August 2016. If police did not
consider it necessary to put conditions on the appellant effective May 11, and
did not consider it necessary to effect his arrest until three months after the
warrant issued, how could a warrant have been necessary in the public
interest?
[99]

The problem with this submission is that there was
no evidence
before
the trial judge from which he could reasonably draw any such inference.
[100]

First, the
appellant did not apply to have the evidence from the s. 9
voir dire
expressly
incorporated into or considered as evidence in the s. 7
voir dire
.

The successive
voir dires
engaged separate inquiries and, generally,
the evidence adduced on one
voir dire
is not available for use in a
later
voir dire
in the absence of an agreement between counsel or a
ruling to that effect:
Frederickson
at para. 38;
Sadikov
at para. 31.
[101]

Second,
even had the evidence on the
voir dires
merged for use by the trial
judge, there was no direct evidence on the s. 9
voir dire
about the
amount of time the appellant spent in police custody on May 11, 2016; the
reason why police kept him in custody; or the circumstances surrounding his
release.
[102]

There was only
limited evidence about the manner in which the ERT effected the warrantless
arrest on May 11. There were admissions that police arrested the appellant in
the parking lot of an auto parts store and that he was searched incidental to
the arrest. Sgt. Philips testimony confirmed that the arrest occurred in
the parking lot; that the appellant was a passenger in a car when arrested; and
that police arrested the driver as well. Sgt. Philip testified that the
ERT handled the arrest because of the appellants previous history with VicPD
and the need to ensure a safe arrest. He acknowledged that arrests by the ERT
often involve police drawing weapons and surrounding the target vehicle;
however, he did not provide specifics on how the arrest unfolded in this case.
[103]

Finally,
the judge acknowledged in his s. 7 ruling that the appellant adduced no
evidence of what happened between the issuance of the arrest warrant on
May 19, 2016, and its execution three months later (RFJ‑6 at para. 34).
There was no evidence of the reasons for the delay in execution, or the
appellants whereabouts or conduct during that period. There was reference in his
counsels submissions to the appellant being under surveillance prior to the
August 2016 arrest; however, these were submissions only, unsupported by an
evidentiary foundation.
[104]

Harkening
back to the principles set out at the start of these reasons, an allegation of
state misconduct or non‑compliance with statutory requirements said to
provide the basis for a constitutional remedy cannot rely for its proof on
conjecture, or submissions alone.
Charter
decisions cannot find their
grounding in the unsupported hypotheses of enthusiastic counsel:
MacKay
at
36162.
[105]

Specific
to the issue of transparency, the appellant acknowledges that on its face,
s. 507 allows for the issuance of a summons or a warrant to proceed
ex
parte
,
in camera
and without a recording unless witnesses are
involved. No witnesses gave evidence before the justice of the peace in this
case. In these circumstances, I fail to understand how the procedure adhered to
by Cst. Mutch and the justice of the peace, or the unendorsed arrest warrant,
amounted to an abuse of process in violation of s. 7 of the
Charter
.
To obtain a stay of proceedings under the residual category of abuse of
process, the appellant bore the onus of proving state conduct that is so
offensive to societal notions of fair play and decency  [that] proceeding
with a trial in the face of that conduct would be harmful to the integrity of
the justice system:
Babos
at para. 35. He also bore the onus of
showing that any other remedy short of a stay [was not] capable of redressing
the prejudice:
Babos
at para. 39. The evidence on the s. 7
voir
dire
did not come even remotely close to meeting that standard.
[106]

I also
agree with the Crown that to challenge the process surrounding the issuance of
the arrest warrant for lack of transparency,
as a basis from which to seek
a constitutional remedy
, the appellant needed to attack the
constitutionality of s. 507. His primary s. 7 complaint before the
trial judge, and advanced on appeal, is that the procedure authorized by the
Code
for issuing an arrest warrant is deficient because it does not mandate a
recording in all circumstances. In turn, that deficiency results in warrants
that deprive persons of their liberty in a manner that contravenes one or more
principles of fundamental justice.
[107]

That was
the type of argument made in
Whitmore
, a case cited by the trial judge
in his s. 7 ruling. Mr. Whitmore and his co‑accused brought an
application for prerogative relief against an Information charging them with
indictable offences, as well as a related summons. In support of their
application, they attacked the procedure allowed for by statute and argued that
what is now s. 507 of the
Code
violated s. 7 of the
Charter
by permitting an
ex parte
hearing. The argument was rejected (albeit
in
obiter
), as being totally devoid of merit:
Whitmore
at 571
(Ont. S.C). Ewaschuk J. opined that procedural notions of the right of
notice, the right of presence, and the right of participation at hearings, as
protected by s. 7 of the
Charter
, do not apply to s. 507: at
57172. The Court of Appeal for Ontario agreed: The
Code
prescribes an
ex
parte
hearing. We can find no Charter

breach in that prescription:
Whitmore
at 296 (Ont. C.A.).
[108]

See also
Southam
Inc. v. Coulter
(1990), 60 C.C.C. (3d) 267 (Ont. C.A.),
wherein it was argued that, to the extent s. 507 mandates an
ex parte
hearing,
it violates s. 2(b) of the
Charter.
As in
Whitmore,
that
claim was made in the context of a constitutional challenge to the provision
itself.
[109]

Here,
rather than challenge the constitutionality of s. 507, the appellant
argued that the absence of a recording gave rise to an abuse of process,
even
though it was a process allowed for by statute.
Respectfully, that approach
was misguided and the trial judge was right to deny a stay of proceedings in
the circumstances.
[110]

Accordingly,
I would not accede to this ground of appeal.
[111]

As I did
under the second ground of appeal, I consider it important to address comments
made by the trial judge in his s. 7 ruling that were not necessary given
his finding that the appellant did not prove an abuse of process based on non‑compliance
with s. 507.
[112]

In
addressing the s. 7 claim, the trial judge offered his view that there is
no authorization in law to simply sit on a warrant or delay the arrest for any
other purpose (RFJ‑6 at para. 36). He also reiterated a concern expressed
in his ruling on the s. 9
voir dire
, namely, that there is no
authority in law to arrest someone to expedite the search of a residence or any
other execution of a search warrant (at para. 37). As discussed, neither
of these issues properly arose on the evidence before him. As such, his
comments were
obiter
and of no legal effect.
[113]

The trial
judge also provided direction to police in his s. 7 ruling, holding that
when they attend before a justice of the peace to swear an Information and seek
process, they should have a notation of the reasons why a warrant, either
endorsed or unendorsed, is sought at the first instance rather than a summons
(RFJ‑6 at para. 40). Furthermore, the reasons for process should be
articulated to the justice of the peace (at para. 40). The judge stressed
the need to ensure that informants and justices not lapse into a routine where
the police simply present informations for signature, rather than for
consideration and applications are simply requested and granted rather than
carefully thought through (at para. 41).
[114]

In his
factum, the appellant asks this Court to endorse the judges directions. In
fact, he goes further and asks that we issue directions to the Provincial and
Federal Attorneys General, crown counsel, the police and the Justices of the
Peace in the Province of British Columbia specifically detailing procedures to
be implemented under s. 507. Any such directions should include the
form and the nature of evidence to be received and considered prior to the
issuance of a warrant.
[115]

Although I
appreciate the trial judges attempt to highlight the importance of adhering to
the requirements of s. 507 of the
Code
, and suggest best practices,
the fact of the matter is that he did not find evidence of non‑adherence
in this case. He did not find a violation of the appellants s. 7 right in
the form of an abuse of process, or otherwise. He did not assess the constitutionality
of s. 507 to determine whether the process authorized there comports with
Charter
principles, or, if it does not, what it would require to do so. The judge
had no jurisdiction to read additional, mandatory process requirements into
s. 507, whether specific to the public prosecution informants who seek
process on a sworn Information, or the justices of the peace who address the
issue. Accordingly, the direction provided in the s. 7 ruling was
obiter
and of no legal effect.
[116]

In the
circumstances of this case, I also do not consider it appropriate for this
Court to issue directions of the breadth and scope sought by the appellant.
The question on this appeal is whether the appellant has established that his convictions
should be set aside on the ground of a wrong decision on a question of law (s. 686(1)(a)(ii))
or a miscarriage of justice (s. 686(1)(a)(iii)). The answer to that
question is no. As a result, there is no need for this Court to express views
on the ancillary issues raised by the appellant.
Application for a Sealing Order and Publication Ban
[117]

The trial judge sealed an excerpt from a justice of the peace
training manual provided to him at trial
.
The excerpt was presented to
the court (although not formally marked as an exhibit), during an application
by the Attorney General for British Columbia (AGBC) to quash the subpoena for
JP Erickson.
[118]

As
I understand it, the judge received an affidavit appending the excerpt as a
suggested alternative by the AGBC to having JP Erickson testify. The AGBC took
the position that if the judge considered it necessary that the appellant be
able to adduce evidence of any policy regarding potential considerations that
may have been engaged at the time the unendorsed arrest warrant issued, the
relevant section of the JP training manual should go in by affidavit.

When the excerpt was submitted, the AGBC
highlighted the confidential nature of its contents:
These are not documents
that  that parties normally have access to. They are specifically for judicial
training and the office of the Provincial Court strongly prefers that portions
of the JP training manual not be produced in this proceeding. They are
concerned that production may open the door for future requests and that
reading the excerpts may give insight into the exercise of judicial discretion
by justices of the peace.
[119]

Ultimately, JP Erickson testified about administrative issues
surrounding s. 507 of the
Code
, as opposed the adjudicative
function. The judge ordered that the Crown and the defence have access to the
excerpt from the training manual and the appending affidavit. Appellants
counsel referred to the contents of the excerpt in his submissions on the
s. 7
voir dire
, specifically addressing some of the factors that justices
of the peace are trained to consider, or may have reference to, in deciding the
issuance of process. Crown counsel at trial also referred to the excerpt in her
submissions, but only in general terms.
[120]

After
conviction, the appellant successfully applied in the trial court to lift the
sealing order for purposes of his appeal. In September 2019, the AGBC sought an
interim sealing order in the appeal proceedings. The order was granted and
applies to the excerpt; an affidavit appending the excerpt; any portions of the
parties factums that refer to the contents of the training manual; and all
related portions of the trial transcript that form part of the appeal record.
On completion of the hearing of the appeal, we extended the interim sealing
order to await judgment.
[121]

The OCJ
has assumed conduct of the issue from the AGBC. It asks that we make the
interim sealing order permanent. It also seeks a publication ban over the text
of the excerpt from the training manual. The manual is an internal document electronically
available to justices of the peace in British Columbia. They have exclusive use
for purposes of training and reference. The OCJ describes the manual as
being in the nature of legal advice (although not protected by solicitor‑client
privilege). It is not ordinarily available to the public. The OCJ contends that
a permanent sealing order and publication ban are necessary to prevent a
serious risk to the proper administration of justice. The appellant and the
Crown take no issue with the OCJs standing to bring the application. Nor do
they take a position on the merits.
[122]

As noted by Groberman J.A. in
GEA Refrigeration Canada Inc. v. Chang
,
2020 BCCA 361: The open court principle demands that we not prevent
public access to court documents without good reason (at para. 190). In
cases where fair trial interests are not at stake (the situation here), whether
good reason exists to prevent access is answered by applying the analytical
principles established in
Dagenais v. Canadian Broadcasting Corp
.,
[1994] 3 S.C.R. 835 and
R. v. Mentuck
,

2001 SCC 76.
In accordance with para. 32 of
Mentuck
, the public should not be
denied access to information that forms part of a court record unless:
(a) such an order is necessary in order to prevent a
serious risk to the proper administration of justice because reasonably
alternative measures will not prevent the risk; and
(b) the salutary effects of
the publication ban outweigh the deleterious effects on the rights and
interests of the parties and the public, including the effects on the right to
free expression, the right of the accused to a fair and public trial, and the
efficacy of the administration of justice.
[123]

Under the
first prong of the analysis, the risk prevented by denying public access must
be a real and substantial risk that poses a serious threat to the proper
administration of justice:
Mentuck
at para. 34. It must also be well‑grounded
in evidence:
Mentuck
at para. 34.
[124]

In
assessing deleterious effects under the second part of the analysis, a court
must account for the fact that restricting public access to court documents
clearly infringe[s] the publics freedom of expression guarantee:
Sierra
Club of Canada v. Canada (Minister of Finance)
, 2002 SCC 41 at para. 36. There
is a strong and highly valued presumption that courts should be open and
reporting of their proceedings should be uncensored:
Mentuck
at para. 39.
This access is the method by which the judicial process is scrutinized and
criticized. Because it is essential to the administration of justice that
justice is done and is
seen
to be done, such public scrutiny is
fundamental:
Sierra Club
at para. 52 (emphasis in original).
[125]

The party
that seeks to restrict access bears the burden of displacing the general rule
that court documents are open to the public:
Mentuck
at para. 38.
The OCJ contends that allowing access to the contents of the training manual,
and its possible publication, will impinge judicial independence, both its
adjudicative and administrative aspects. In turn, the impingement will
adversely affect the administration of justice.
[126]

The
training manual assists justices of the peace in performing their adjudicative
role. The manual also addresses matters relevant to the Provincial Courts
administration, including training, setting internal administrative standards
and practices, and assigning judicial duties. The OCJ contends that public
access to this material may have the adverse effect of parties tailoring their
submissions to the manual when applying for court‑ordered process,
rather than having regard to relevant case law or the applicable statutory
requirements. It may also foster a tendency among justices of the peace to
restrict themselves to the manual in rendering their judicial decisions,
believing that to stray from it would heighten the risk of error and
unnecessarily open them to review.
[127]

Finally,
the OCJ submits that rendering the manual to public view could have a chilling
effect on the development of administrative procedures and judicial training
materials specific to the Provincial Court. The potential for the publics
reliance on those items requires a consideration of factors, relevant to
content, the manner of development, and the means of communication, not
otherwise accounted for in their production.
[128]

In support
of its application for a sealing order, the OCJ relies on
Mackeigan v.
Hickman
, [1989] 2 S.C.R. 796. In that case, the Supreme Court
held that a public commission of inquiry did not have authority to compel
judges to testify about why they arrived at a judicial decision, or why a
certain judge sat on a particular appeal.
[129]

The OCJ
also cites
R. v. Harper
, [2017] A.J. No. 1386 (Alta. Q.B.),
in which a judge dismissed an application for the production of training
materials developed by the National Judicial Institute on the topic of social
context in sexual assault prosecutions. The purpose of the application was to
enable the defence to know what instructional material the trial judge had
access to in learning about sexual assault cases. The judge dismissed the
application on the ground that the educational materials were not relevant to a
live issue at trial.
[130]

I find
neither of these cases of assistance in deciding the question before this
Court. They are distinguishable on their facts, as well as the nature of the
issues raised.
Mackeigan
prohibited compelled testimony about the
exercise of adjudicative and administrative decision making by the judiciary in
a particular case.
Harper
involved a request for access to educational material
that might inform an adjudicative decision in a particular case, and, in any
event, the court denied production on the ground of irrelevance, not because of
a possible impingement of judicial independence.
[131]

The
scenario before this Court is qualitatively different. The question of whether
the excerpt from the training manual was properly before the trial court for
use in the s. 7
voir dire
is not before us. The parties have not
asked the Court to consider that issue. Nothing I say here opines on its
admissibility. Instead, the OCJ applies to seal a document that
did
make
its way before the trial judge and now forms part of the record of a proceeding
held in open court. A different analysis applies.
[132]

I have
reviewed the excerpt from the training manual, as well as the appending
affidavit. The excerpt consists of two pages of index from the training manual
and five pages from Chapter 4 of the manual, entitled Information and
Process. Among other things, the excerpt identifies the
Code
provisions
that govern the swearing of an Information and the issuance of process and sets
out some of the case law relevant to those provisions. It explains the
differences between a summons and a warrant, as well as between an endorsed and
unendorsed warrant. The excerpt emphasizes that issuing an arrest warrant is a
serious matter and delineates factors a justice of the peace may consider
in deciding whether a warrant is necessary in the public interest. It sets out
an administrative procedure for justices after deciding to issue or not issue
process, specific to marking and signing the Information. If a justice of the
peace declines to issue process, the excerpt encourages them to briefly
indicate the reason for that decision, either verbally or in writing.
[133]

Standing
alone, the content of the excerpt is innocuous. Much of what is contained there
is already publicly available through the
Code
; learnable from the case
law relevant to s. 507; or deductively apparent from the face of any sworn
Information. The excerpt forms but a small part of a larger training manual.
Denying the application for a sealing order and publication ban will not open
the entirety of the training manual to public view. It will not reveal private
or sensitive information about a particular case or the persons involved. It
will not functionally compel an explanation for an adjudicative or administrative
decision that is ordinarily immune from disclosure or review.
[134]

In light
of these factors and the absence of compelling evidence substantiating the
harms said to arise from disclosure, the OCJ has not persuaded me that access
to the excerpt from the training manual and all references to it poses a
serious threat to the proper administration of justice. Accordingly, the
application fails under the first component of the
Mentuck
analysis.
[135]

That is
sufficient to dispose of the matter. However, were it necessary to do so, I
would also deny the application for a sealing order and publication ban under
the second prong of the
Mentuck
analysis.
[136]

In
R. v. Moazami
, 2020 BCCA 350, Chief Justice Bauman
described the open court principle as:
[2]

part
of the bedrock founding our judicial institutions and the rule of law. Courts
must be seen to function openly. Public access to court proceedings permits
public scrutiny of judicial processes and enhances public confidence in the
justice system and an understanding of how justice is administered in Canada.
[3]

The
open court principle is inextricably linked to the freedom of expression and
the freedom of the press, as protected by s. 2(b) of the
Canadian
Charter of Rights and Freedoms
, Part I of the
Constitution Act
,
1982
, being Schedule B to the
Canada Act 1982
(U.K.), 1982,
c. 11 [
Charter
]:
Vancouver Sun (Re)
, 2004 SCC 43
at para. 26. The public must be able to access information pertaining to
judicial proceedings in order to meaningfully exercise the right to express
ideas and opinions about the courts. The publics right to be informed depends
on the freedom of the press to gather and transmit this information. When court
openness is restricted, so too is freedom of expression and freedom of the press:
Canadian Broadcasting Corp. v. New Brunswick (Attorney General)
, [1996] 3 S.C.R. 480
[
New Brunswick
] at para. 26.
[137]

Given the limited
nature of the record at issue in this appeal, and the factors discussed above, the
salutary effects of denying public access to the excerpt from the training
manual do not outweigh the deleterious effects of precluding public scrutiny
of judicial processes and the enhanced public confidence in the justice system
that flows from that.
Disposition
[138]

For the reasons provided, I would grant an extension of time in which to
file the appeal from conviction to November 20, 2018, but dismiss the appeal. I
would also dismiss the application for a permanent sealing order and a
publication ban.
The
Honourable Madam Justice DeWitt‑Van Oosten
I AGREE:
The Honourable Mr. Justice
Groberman
I AGREE:
The Honourable Mr. Justice
Grauer

[1]

Section 5(2) of the
Controlled Drugs and Substances Act
,
S.C. 1996, c. 19, and s. 91(2) of the
Criminal Code
,

R.S.C. 1985,
c. C‑46, respectively.