COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Johnston,

2016 BCCA 3

Date: 20160105

Docket:  CA39526

Between:

Regina

Respondent

And

Gary Donald
Johnston

Appellant

Restriction on Publication:
 A publication ban has been imposed under s. 486.5 of the
Criminal Code
restricting the publication, broadcasting or transmission in any way of evidence
that could identify undercover police officers.
This publication ban applies indefinitely unless
otherwise ordered.

Before:

The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Frankel

The Honourable Madam Justice D. Smith

On appeal from:  An
order of the Supreme Court of British Columbia, dated
April 15, 2011 (
R. v. Johnston
, New Westminster Docket No. X073860-2).

Counsel for the Appellant:

B.B. Olthuis

G.J. Allen

Counsel for the Respondent:

M.K. Brown

Place and Date of Hearing:

Vancouver, British
  Columbia

October 30, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

October 30, 2015

Place and Date of Reasons:

Vancouver, British
  Columbia

January 5, 2016

Written Reasons by:

The Honourable Mr. Justice Frankel

Concurred in by:

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice D. Smith

Summary:

Appeal by J. from his
conviction by a trial judge for second degree murder.  The principal evidence
implicating J. came from admissions he made in a Mr. Big interview and a
videotaped statement his brother made to the police.  The videotaped statement
was admitted under an exception to the hearsay rule.  The trial took place
before the Supreme Court of Canada decision in R. v. Hart established a new
common-law rule with respect to the admissibility of Mr. Big statements.
In a pre-Hart judgment this Court dismissed J.s appeal.  In that appeal, J.
did not challenge the admissibility of the Mr. Big interview.  Post-Hart,
the Supreme Court of Canada remanded the case for reconsideration.  On the
second appeal, J. challenged the admissibility of the Mr. Big interview.
He contended that:  (a) the Mr. Big operation was an abuse of process
because it involved simulated violence; and (b) threshold reliability of
the statements he made during the Mr. Big interview had not been
established.  Held:  Appeal dismissed.  In the circumstances, the use of
simulated violence directed at third parties was not an unacceptable
investigative technique.  The threshold-reliability requirement was met having
regard, in particular, to the fact J. knew details of the murder that it was
likely only the killer would know.

Reasons for Judgment of the Honourable
Mr. Justice Frankel:

Introduction

[1]

Gary Donald Johnston was convicted by Mr. Justice Crawford of the
Supreme Court of British Columbia of the second degree murder of Victor Fraser.
Mr. Fraser died of stab wounds to his neck.

[2]

The Crowns case included statements made by Mr. Johnston to
undercover police officers engaged in what is known as a Mr. Big
operation.  That operation involved 60 scenarios, i.e., occasions on which
undercover officers and Mr. Johnston interacted.  In the last scenariocommonly
referred to as the Mr. Big interviewMr. Johnston admitted killing Mr. Fraser.
At the trial, Mr. Johnston did not object to the admissibility of any of
the statements he made during the Mr. Big operation.

[3]

The Crown also tendered as evidence a videotaped statement made under
oath by Mr. Johnstons brother, Michael Johnston.  In that statement
Michael Johnston said Mr. Johnston admitted to him that he killed Mr. Fraser.
At trial, Michael Johnston testified he could not remember giving the statement
to the police.  Following a
voir dire
, the trial judge admitted Michael
Johnstons videotaped statement under the exception to the hearsay rule
discussed in
R. v. B.(K.G.)
, [1993] 1 S.C.R. 740.  In finding that the
threshold-reliability requirement for the admission of hearsay had been met,
the judge relied on statements Mr. Johnston made during the Mr. Big
interview.

[4]

Mr. Johnstons conviction appeal was dismissed by this Court on
April 11, 2014:  2014 BCCA 144, 354 B.C.A.C. 68.  On that appeal, his main
ground was the admissibility of Michael Johnstons videotaped statement.  He
did not contest the admissibility of his Mr. Big statements, only their
ultimate reliability.

[5]

On July 31, 2014, the Supreme Court of Canada released its judgment in
R. v.
Hart
, 2014 SCC 52, [2014] 2 S.C.R. 544, in which it articulated a new
common-law rule governing the admissibility of statements made during a Mr. Big
operation.  Following the release of
Hart
, Mr. Johnston filed an
application in the Supreme Court of Canada for an extension of time to file and
serve an application for leave to appeal from this Courts order dismissing his
appeal.  On February 26, 2015, the Supreme Court of Canada, acting pursuant to
s. 43(1.1) of the
Supreme Court Act
, R.S.C. 1985, c. S-26,
remanded Mr. Johnstons case to this Court for disposition in accordance
with
Hart
:  [2014] S.C.C.A. No. 478.

[6]

Mr. Johnstons appeal came back before this Court on October 30,
2015.  At that time he contended that his Mr. Big interview should not have
been admitted because the manner in which the Mr. Big operation was
conducted constituted an abuse of process.  He further submitted that the statements
he made during the Mr. Big interview did not meet the
threshold-reliability requirement set out in
Hart
.  He did not advance
an alternative argument challenging the ultimate reliability of his statements.
Last, Mr. Johnston submitted that as the trial judge relied on his Mr. Big
statements in finding Michael Johnstons videotaped statement admissible, if
the Mr. Big statements were found to be inadmissible, then so too should Michael
Johnstons statement.

[7]

At the conclusion of Mr. Johnstons submissions we dismissed this
appeal with reasons to follow.  These are my reasons for so doing.

Factual Background

[8]

Mr. Fraser was murdered on March 10, 1998, at the home of his
sister, Eugenie Fraser, in Surrey, British Columbia; he had gone there to check
a water leak while she was at work.  Between 10:00 and 10:30 that morning, Ms. Frasers
boyfriend found Mr. Frasers body on the floor inside the door on the east
side of the house, off the kitchen; Mr. Frasers truck was parked in the
driveway.  Two knives were missing from a block in the kitchen.  Mr. Fraser
had been savagely attacked and stabbed in the neck.  The stabbing had been so
forceful that a knife blade that had broken from its handle was lodged above Mr. Frasers
right collarbone.  A second broken knife blade was found under Mr. Frasers
body.  His wallet was missing.

[9]

At the time of the murder, Mr. Johnston lived in the vicinity of Ms. Frasers
house.  Ms. Fraser testified she knew Mr. Johnston and he had been
inside her house.  Shortly after the murder Mr. Johnston moved away.

[10]

There was damage to the front door of Ms. Frasers house,
indicating someone had broken in.  The house had been ransacked; video-game and
other electronic equipment had been left in a pile on the living room floor,
drawers in the upstairs master bedroom were open, and a jewellery box kept
upstairs was on the living room floor.  A telephone handset was missing from
its charging station.

[11]

Darrell Barker, who lived two houses away from Ms. Fraser,
testified that he acted as a crossing-guard at an elementary school up the hill
from where he and Ms. Fraser lived.  He worked from 8:00 to 9:00 in the
morning.  On the day of the murder he saw Ms. Fraser drive by on her way
to work.  Shortly after 9:00 a.m., as he was putting away his crossing-guard
gear, he saw a man dressed in black wearing what he described as a fishermans
hat ride by on a black bicycle.

[12]

Mr. Barker said that as he was driving down the hill a few minutes
later to return home, he noticed a black bicycle by the east side of Ms. Frasers
house.  As he was backing his vehicle into his garage he saw the cyclist he had
seen earlier going up the stairs to the front of Ms. Frasers house and
entering through the front door.  That door faces south.

[13]

A member of the Royal Canadian Mounted Police who arrived at Ms. Frasers
house at approximately 2:00 p.m. on March 10, 1998, observed bicycle tire
tracks in the grass leading from the deck at the east side of the house through
the yard to the street.  The back door of the house is on the east side and
opens onto the deck.

[14]

On the day of the murder the RCMP issued a news release stating that a
43-year old man had been found dead of apparent stab wounds in a north Whalley
home just before 11:00 a.m. this morning.  The victims name was not
mentioned.  That release also contained the following:

Police found the front door of
the house had been forced open and effects from inside had been piled near the
door.  Investigators are looking into the possibility that the victim had
interrupted a break and enter at the residence sometime between 9:00 and 10:45
am.

[15]

The following day, March 11, 1998, the RCMP issued a second news release
which contained Mr. Frasers name, the date of the murder, and the address
at which he was stabbed.  That release contained the following:

Victor FRASER had attended at the North Surrey address for
the purpose of meeting a friend at that location.  When the friend arrived he
found the victim on the floor inside the residence and subsequently called
police.

Police found the front door of
the house forced open and there were a number of items from inside the
residence piled near the door. Police investigators are working on the theory
that the victim interrupted a break and enter in progress at the residence sometime
between 9:00 and 10:45 AM.

[16]

An autopsy revealed the injuries Mr. Fraser sustained included eight
to nine stab wounds to the neck and fractured displacement of the second to the
fifth upper right ribs.

[17]

The RCMP did not disclose the following information to the public (what
is commonly referred to as holdback evidence):  (a) the location of the
body; (b) the autopsy results; (c) the broken knife blades; (d) the
missing telephone; (e) the missing wallet; and (f) the bicycle and
associated tire tracks.

[18]

The police considered both Mr. Johnston and Michael Johnston to be
persons of interest.  In August of 1998, Michael Johnston gave a videotaped
statement to the police in which he related that on the day of the murder Mr. Johnston
told him that he had broken into Ms. Frasers house and stabbed someone to
death using a kitchen knife.  The account of the murder Mr. Johnston gave
to Michael Johnston included a number of details consistent with the crime
scene, the autopsy, and other information gathered by the police.

[19]

Michael Johnston said he and Mr. Johnston went to a friends house
in Vancouver where Mr. Johnston burned the clothes he wore during the
stabbing.  Michael Johnston described the clothes as a rain jacket with a hood,
pants, socks, gloves, and a shirt, all of which were black.

[20]

On April 10, 2000, Mr. Johnston pleaded guilty to manslaughter
arising out of an incident in Saskatchewan and was sentenced to ten years
imprisonment.  In March 2009, after Mr. Johnston had been released on
parole, he became the target of a Mr. Big operation in which undercover
officers posed as members of a criminal organization with connections to both
the military and law enforcement.

[21]

The Mr. Big operation lasted five and one-half months.  During that
period Mr. Johnston received varying amounts of money totalling around $14,000
for doing tasks for the criminal organization.  Undercover officers bought Mr. Johnston
food and drinks and gave him a ticket to a rock concert.

[22]

The initial contact with Mr. Johnston took place on April 2, 2009,
in Trenton, Ontario.  At that time, Mr. Johnston was living in a suite on
the top floor of a house.  He did not appear to be employed, but may have been
receiving a disability pension.  During the Mr. Big interview, he stated
he had recently purchased a used motorcycle.

[23]

Constable I. approached Mr. Johnston on the street and asked for
his assistance in searching for the officers sister.  He told Mr. Johnston
he would pay for his assistance.  Mr. Johnston agreed and went with the
officer to a strip club, restaurant, and billiard hall among other locations.
Constable I. told Mr. Johnston he was in the trucking business and had warehouses.
Without prompting, Mr. Johnston said

he had spent 25 years in the
penitentiary and was presently on parole for murder, having done time for
killing a rat in Saskatchewan.  Constable I. gave Mr. Johnston $150 for
helping him.  (Scenario no. 1)

[24]

On April 9, 2009, Constable I. and Mr. Johnston continued to look
for the sister.  Constable I. gave Mr. Johnston $200.  (Scenario no. 2)

[25]

On April 10, 2009, Constable I. introduced Mr. Johnston to
Constable N. and asked him to assist Constable N. to get a storage locker and
to continue looking for his sister.  Mr. Johnston was paid $150.
Following this Constable N. became the Mr. Big operations primary contact
with Mr. Johnston.  (Scenario no. 3)

[26]

Over the next several weeks, Mr. Johnston was involved with
Constable N. and other undercover officers in various scenarios.  Those
included continuing to look for Constable I.s sister, obtaining a storage
locker for Constable N. and being paid to manage the locker and its contents,
picking up packages, and assisting Constable N. in repossessing a vehicle from
a debtor.  Mr. Johnston also acted as Constable N.s bodyguard.  Mr. Johnston
was paid $250 per month for managing the storage locker and from $100 to $400 for
the other tasks he performed.

[27]

On May 8, 2009, Mr. Johnston hosted a barbeque at his residence
attended by Constable N., Constable I., and two other undercover officers.  He
told the officers he had purchased a barbecue for that occasion.  Mr. Johnston
offered Constable I. a leather jacket as a gift but, as it did not fit
Constable I., Mr. Johnston gave the jacket to Constable N.  Mr. Johnstons
residence appeared clean and well-kept.  (Scenario no. 14)

[28]

In early June 2009, Mr. Johnston assisted Constable N. in collecting
a $10,000 debt and received ten percent of the amount collected (i.e., $1,000)
for his services.  (Scenario no. 19)  Also in June, Mr. Johnston assisted
in picking up what purported to be explosives from an undercover officer posing
as a corrupt member of the Royal Canadian Air Force.  (Scenario nos. 20, 21)

[29]

On June 27, 2009, Mr. Johnston picked up a briefcase containing
$100,000 in cash from the storage locker and met with Constable N. and an
undercover officer posing as a client of the organization who was borrowing
that money. Mr. Johnston counted the money in front of the client.  Mr. Johnston
was paid $500.  That day Constable N. told Mr. Johnston there was a big
score coming with military involvement.  Constable N. said his father, who was
the boss of the criminal organization, would decide whether Mr. Johnston
would be allowed to participate in that big score.  (Scenario no. 27)

[30]

On July 4, 2009, Mr. Johnston participated with Constable N. and
other undercover officers in kidnapping two undercover officers posing as a
debtor and his girlfriend.  Before the kidnapping took place, Mr. Johnston
was told he could leave if he was concerned about his parole conditions, but he
agreed to participate.  Mr. Johnston drove the van used to transport the
victims.  A simulated beating of the victims took place in the back of the van.
(Scenario no. 31)

[31]

On July 5, 2009, Constable N. took Mr. Johnston to a cabin where
the kidnap victims were purportedly being held; they were in the cabin bound
with tape.  Constable I. emerged from the cabin with blood on his face and
hands and was angry with Constable N. for bringing Mr. Johnston with him.
Constable N. stated he was going to take care of the victims and went inside
the cabin.  As Mr. Johnston walked away from the cabin with Constable I.,
Constable N. fired three shots to make it appear the victims had been killed.  (Scenario
no. 32)  On July 7, 2009, Constable N. and Mr. Johnston went to a casino
where a security video was taken with an altered date to provide an alibi for
the incident at the cabin.  (Scenario no. 33)

[32]

Throughout the month of July, Mr. Johnston continued to perform
tasks for the organization for which he was paid.

[33]

On August 4, 2009, Constable N. and Mr. Johnston had two meetings
with undercover officers, each of whom invested $50,000 in the big score.  Mr. Johnston
helped deliver that money to an undercover officer posing as a corrupt army
officer.  Mr. Johnston was paid $800 that day, some of which was for past
tasks.  (Scenario no. 44)

[34]

On August 6, 2009, Mr. Johnston assisted another undercover
officer, Constable C., in picking up a duffel bag purported to contain guns from
a storage locker in Trenton and taking it to Constable N. in Montreal.  On the drive
to Montreal Constable C. told Mr. Johnston about an upcoming big job
connected with an army base for which Constable C. would be paid $20,000.  Later,
Mr. Johnston assisted Constable N. in delivering the guns to an undercover
officer who paid $10,000 for them.  Mr. Johnston was paid $1,500 for his
participation.  (Scenario no. 45)

[35]

Throughout August and into September, Mr. Johnston met and
socialized with undercover officers a number of times and performed some tasks
for the organization for which he was paid.

[36]

On September 16, 2009, Mr. Johnston and Constable C. drove to
Montreal in connection with planning to kill a witness.  Mr. Johnston told
Constable C. that he had brought clothes and shoes to throw away after the
killing, that he was up for doing anything, and that he was looking forward to being
involved in the killing.  Mr. Johnston said he wanted to kill his ex-wife
and a person who had ratted on him.  With respect to the upcoming killing, Mr. Johnston
told Constable C. he did not care about the money, he just liked the action and
excitement.  (Scenario no. 58)

[37]

On September 17, 2009, in Montreal, Constable I. showed Mr. Johnston
a motorcycle which Mr. Johnston took for a ride.  Constable I. said he had
repossessed the motorcycle and told Mr. Johnston the motorcycle would be
his.  It is not clear whether the motorcycle was presented as a gift, a reward
for participating in the killing, or something Mr. Johnston could pay for
over time.  Constable I. gave Constable C. $5,000 and told him it was half the
money Constable C. was to be paid for the hit (i.e., killing the witness).
Constable I. said Mr. Johnston would be paid when given the go ahead for
the hit.  Mr. Johnston then accompanied Constable N., Constable C., and
another undercover officer, as they drove around Montreal looking at potential
locations for the hit.  (Scenario no. 59)

[38]

The final scenario (no. 60) took place on September 18, 2009, in
Montreal.  After Mr. Johnston had gone with several undercover officers to
look at another possible location for the hit, he was taken to a hotel to meet
with Sergeant D., who posed as the boss of the criminal organization.  Sergeant
D. conducted the Mr. Big interview, which was secretly videotaped.  Having
viewed the videotape, I agree with the following description of Mr. Johnstons
demeanor by the trial judge:

[107]     Gary Johnston is calm,
he is composed, he is relaxed, he is comfortable and at times reflective and
contemplative.  He knew and was secure in the confidence and friendship of the other
gang members.

[39]

Sergeant D. expressed concern that Mr. Johnston had been involved in
a murder that was still under investigation and that the investigation could
bring heat on the criminal organization.  Sergeant D. had press releases
about Mr. Frasers death and what he said were police documents.

[40]

Mr. Johnston disclosed to Sergeant D. that in 1998 he killed someone,
who he said was the brother of a neighbour.  He told Sergeant D. that at about
10:00 or 10:30 in the morning he rode on a bicycle to the neighbours house in
Surrey wearing a hoody with the hood pulled up over his head; he also had
gloves on.  He entered the house through the back (i.e., side) door, which was
open.

[41]

Mr. Johnston said no one was in the house when he entered.  He ransacked
the place looking for things to take and left video-game and other electronic
equipment on the living room floor.  When he heard the victims truck arrive he
sat at the kitchen table and waited for the victim to come inside.

[42]

Mr. Johnston said he stabbed the victim in the neck about 30 times,
using four knives he took from a block in the kitchen.  He said he kicked the
victim in the ribs several times as he lay on the floor gasping for breath.  At
one point Mr. Johnston said two knife blades broke off in the victims neck;
at another point he said four knife blades broke off in the victims neck.  He said
he killed the victim because the victim owed him $1,800 and did not want to pay
it back.  The victims body was on the kitchen floor.

[43]

Mr. Johnston told Sergeant D. he left the house through the back
(i.e., side) door and rode away on his bicycle.  He took the four knife handles
and buried them.  He did not take a telephone.  With the help of his brother he
burned everything he was wearing that day at a friends house.  He told his
brother he got into a beef with someone who died.

Analysis

Abuse
of Process

[44]

Mr. Johnston contends that the Mr. Big operation was an abuse
of process because of the scenarios where it was made to appear that two
persons were kidnapped, beaten, and then killed (Scenario nos. 31 and 32), and
because the operation was designed to prey on the poverty and social isolation
he experienced upon release from prison.  He submits that the simulated
violence used in this operation is unacceptable to Canadians and that the
statements he made during the Mr. Big interview should be excluded.

[45]

In discussing the application of
the doctrine of abuse of process to Mr. Big operations in
Hart
, Mr. Justice
Moldaver said:

[115]
It is of course impossible to set out a precise
formula for determining when a Mr. Big operation will become abusive.
These operations are too varied for a bright-line rule to apply.  But there is
one guideline that can be suggested.  Mr. Big operations are designed to
induce confessions.  The mere presence of inducements is not problematic ([
R.
v.

Oickle
, 2000 SCC 38 at para. 57, [2000] 2 S.C.R. 3]).  But
police conduct, including inducements and threats, becomes problematic in this
context when it approximates coercion.  In conducting these operations, the
police cannot be permitted to overcome the will of the accused and coerce a
confession.  This would almost certainly amount to an abuse of process.

[116]
Physical violence or threats of violence provide
examples of coercive police tactics.  A confession derived from physical
violence or threats of violence against an accused will not be admissible  no
matter how reliable  because this, quite simply, is something the community
will not tolerate (see, e.g.,
R. v. Singh
, 2013 ONCA 750, 118 O.R. (3d)
253).

[117]
Violence and threats of violence are two forms of
unacceptable coercion.  But Mr. Big operations can become coercive in
other ways as well.  Operations that prey on an accuseds vulnerabilities
like mental health problems, substance addictions, or youthfulness  are also
highly problematic (see [
R. v. Mack
, [1988] 2 S.C.R. 903] at p. 963).
Taking advantage of these vulnerabilities threatens trial fairness and the
integrity of the justice system.  As this Court has said on many occasions,
misconduct that offends the community's sense of fair play and decency will
amount to an abuse of process and warrant the exclusion of the statement.

[118]
While coercion is an important factor to consider, I
do not foreclose the possibility that Mr. Big operations can become
abusive in other ways.  The factors that I have outlined, while not identical,
are similar to those outlined in
Mack
, with which trial judges are
well-familiar (p. 966).  At the end of the day, there is only so much guidance
that can be provided.  Our trial judges have long been entrusted with the task
of identifying abuses of process and I have no reason to doubt their ability to
do the same in this context.

[46]

In the present case, the officer who directed the undercover operation
testified that in a Mr. Big operation, each scenario (with the possible
exception of the initial contact) is designed based on how the person under
investigation responded to the previous scenario.  With respect to the staged
killing of the kidnap victims, the officer testified:

[T]he objectives at the start
were to  to show Mr. Johnston that Constable [N.s] organization were [
sic
]
capable of violence, and to conduct a scenario which would expose a crime
somewhat similar to the crime being investigated.

[47]

Mr. Johnston relies on the recent judgment of the Court of Appeal
of Quebec in
R. c. Laflamme
, 2015 QCCA 1517, in which a Mr. Big
operation was found to constitute an abuse of process, resulting in the setting
aside of a conviction for first degree murder and the entry of a stay of
proceedings.  He submits
Laflamme
stands for the proposition that it is
unacceptable for the police conducting a Mr. Big operation to use
scenarios involving violence or threats of violence.  I do not agree.  As I
will explain, the Mr. Big interview in
Laflamme
was conducted in a
significantly different manner than the interview involving Mr. Johnston.

[48]

In 2007, a Mr. Big operation was directed at Mr. Laflamme, who
was suspected of killing his wife in 1976.  Undercover officers posing as
members of a criminal organization engaged Mr. Laflamme in 40 scenarios
over the course of four months, during which time he was paid some $12,000.  Mr. Laflammes
primary contact with the organization was an officer known as Vince, with
whom he developed a strong friendship.  The 41st scenario was the Mr. Big
interview, during which Mr. Laflamme admitting strangling his wife to
death.

[49]

In the first scenario involving violence, Mr. Laflamme accompanied
Vince to visit a bad debtor.  While Mr. Laflamme waited outside a motel
room, Vince went inside and simulated beating up the debtor.  In the next
scenario involving violence, Vince, in Mr. Laflammes presence, grabbed an
undercover officer posing as a corrupt bank employee by the throat and threatened
her with a pistol.

[50]

As is typical, the Mr. Big interview was conducted for the purpose
of determining whether Mr. Laflamme would be accepted into the criminal
organization.  During that interview the undercover officer posing as the crime
boss implied that serious harm would befall both Mr. Laflamme and Vince if
the interview did not go well.

[51]

Scenarios involving violence are a common feature of a Mr. Big
operation directed at a person suspected of having committed murder.  Such
scenarios are used, as they were in the case at bar, to give the impression that
the fictitious criminal organization tolerates and is prepared to use violence.
This is done to create an atmosphere in which the person under investigation
will not be reluctant to discuss his or her past involvement in similar violent
acts:  see
R. v. West
, 2015 BCCA 379 at para. 99.

[52]

In
Laflamme
, it was not the scenarios involving violence directed
at persons outside the criminal organization that took the investigation over
the line.  Rather, what the Court found unacceptable was the directing of
threats at Mr. Laflamme and Vince.  Those threats were unacceptable
because they amounted to coercion for the purpose of extracting a confession:  paras. 77-87.

[53]

That
Laflamme
does not stand for the proposition it is
unacceptable for the police to use scenarios involving violence or threats of
violence is reflected in
R. c. Perreault
, 2015 QCCA 694, 19
C.R. (7th) 393 (
Perreault No. 2
), another recent judgment of the Court
of Appeal of Quebec.  That judgment was the second by the Court of Appeal addressing
an appeal by Mr. Perreault from his conviction for first degree murder.
The first judgment was rendered prior to the Supreme Court of Canadas judgment
in
Hart
:
R. c. Perreault
, 2013 QCCA 834 (
Perreault No. 1
).
Following the release of
Hart
, Mr. Perreault filed an application
in the Supreme Court of Canada for an extension of time to file and serve an
application of leave to appeal from the order dismissing his appeal.  That
Court, acting pursuant to s. 43(1.1) of the
Supreme Court Act
,
remanded Mr. Perreaults case to the Court of Appeal for disposition in
accordance with
Hart
.

[54]

The Mr. Big operation in
Perreault
involved a fictitious criminal
organization engaged in various illegal activities including the extortion of
an escort agency.  There were 41 scenarios, the last being the Mr. Big
interview.  In one scenario the undercover officer who befriended Mr. Perreault
simulated beating up an escort.  Also, the officer who befriended Mr. Perreault
told him that he had approved the murder of a woman:
Perreault No. 1
at paras. 5-8;
Perreault No. 2
, paras. 14-16.

[55]

In rejecting Mr. Perreaults argument that the Mr. Big
operation constituted an abuse of process, the Court, in
Perreault No. 2
,
noted no violence or threats of violence had been directed at Mr. Perreault.
Having regard to all the circumstances, it held that the admissions Mr. Perreault
made during the Mr. Big interview were not the product of coercive police
tactics:  paras. 87-89.

[56]

Also instructive is the recent judgment of the Court of Appeal for
Saskatchewan in
R. v. Allgood
, 2015 SKCA 88, 327 C.C.C. (3d) 196.  Mr. Allgood
was suspected of having shot and killed the mother of his child and attempting
to kill her partner.  At the time the Mr. Big operation began, Mr. Allgood
was unemployed and known to frequent a pawn shop.  There were two scenarios
involving violence.  In the first, Mr. Allgood participated in the kidnapping
of a person who owed the organization a large sum of money and witnessed that
person being assaulted.  Shortly afterwards, it was made to appear that this
person had been shot and killed out of Mr. Allgoods sight.  In the second
scenario, Mr. Allgood accompanied an undercover officer who intimidated
and assaulted a woman and threatened both her and her daughter.  Over the
course of the four-month operation Mr. Allgood was involved in 43
scenarios and received $8,500.  Prior to the Mr. Big interview he was told
that if the crime boss approved, then he would be able to participate in a big
job for which he would receive $25,000:  paras. 14-17.

[57]

Mr. Allgood was convicted of first degree murder and attempted
murder by a judge sitting without a jury prior to the Supreme Court of Canadas
judgment in
Hart
.  In appealing those convictions, he argued that a new
trial should be ordered so that the admissibility of his statements could be
tested under the
Hart
framework.  In dismissing the appeal, the Court of
Appeal applied that framework.  With respect to the contention that the Mr. Big
operation constituted an abuse of process, Mr. Justice Herauf said this:

[56]      In the context of Mr. Big operations, the
Supreme Court held that the police cannot be permitted to overcome the will of
the accused and coerce a confession.  Violence and threats of violence, preying
on the accuseds vulnerabilities (e.g. mental health problems, substance addictions,
or youthfulness) are also highly problematic.  Misconduct that offends the
communitys sense of fair play and decency will amount to an abuse of process
and warrant the exclusion of the statement.

[67]      I believe [the abuse of process] argument can be
dealt with quickly.
The Supreme Court found that operating a typical Mr. Big
operation alone does not amount to an abuse of process.  Something more is
required;
the police must be shown to have overcome the will of the accused
and coerced a confession.  There was no indication that there was violence,
threats of violence, or taking advantage of Mr. Allgoods vulnerabilities
on the part of the police.  I do not find that there was any other misconduct
that would offend the communitys sense of fair play and decency.  I would not
give effect to this ground of appeal and agree with the trial judge that the
confession was admissible evidence. [Emphasis added.]

[58]

In the case at bar, the Mr. Big operation directed at Mr. Johnston
was, in substance, no different than those described in
Allgood
and in
this Courts judgment in
West
.  In other words, it was typical.  Although
Mr. Johnston was unemployed, there is no suggestion he was destitute or
socially isolated.  The police neither preyed on his vulnerabilities, nor
directed violence or threats of violence at him or anyone close to him.

[59]

In a passage oft-quoted from
Rothman v. The Queen
, [1981] 1
S.C.R. 640 at 697, Mr. Justice Lamer (as he then was) said this:

It must also be borne in mind
that the investigation of crime and the detection of criminals is not a game to
be governed by the Marquess of
Queensbury
rules.  The authorities, in dealing with shrewd and often sophisticated
criminals, must sometimes of necessity resort to tricks or other forms of
deceit and should not through the rule be hampered in their work.  What should
be repressed vigorously is conduct on their part that shocks the community.

[60]

In my view, reasonable and well-informed members of the community would
not find the manner in which the police investigated Mr. Frasers murder
shocking and unacceptable.

[61]

I would not accede to this ground.

Threshold
Reliability of the Mr. Big Interview

[62]

Mr. Johnston submits that the statements he made during the Mr. Big
interview should be excluded because their probative value is demonstrably
outweighed by their prejudicial effect.  He says his statements during that
interview are unreliable and, therefore, of low probative value because:
(a) he is unsophisticated and was induced by the gifts, money, and
friendships bestowed upon him by a fictitious criminal organization that
implicitly subjected him to threats of violence; (b) there is a possibility
Michael Johnston committed the murder and told him about it; (c) some of the
details of the killing he related to Sergeant D. are inconsistent with the actual
facts, i.e., the use of four knives to inflict 30 stab wounds, and that he killed
the victim because of an unpaid debt; and (d) the interview did not result
in the discovery of any new evidence.  He further submits the evidence from the
Mr. Big operational is prejudicial as it shows he participated in
simulated criminal activity and was prepared to participate in killing a
witness.

[63]

As Mr. Johnston was being tried by a judge sitting without a jury
there was little risk of either moral prejudice or reasoning prejudice:
West
at para. 78.

[64]

It is important to keep in mind
that threshold-reliability is a gatekeeper standard; it is used to determine
whether evidence can properly be considered by a jury or, in the case of a
judge-alone trial, by the judge sitting as the trier of fact:
Hart
at para. 98.
In discussing the approach to be taking in deciding this issue,
Moldaver J. said:

[102]     Thus, th
e first
step in assessing the reliability of a Mr. Big confession is to examine
those circumstances and assess the extent to which they call into question the
reliability of the confession.  These circumstances include  but are not
strictly limited to  the length of the operation, the number of interactions
between the police and the accused, the nature of the relationship between the
undercover officers and the accused, the nature and extent of the inducements
offered, the presence of any threats, the conduct of the interrogation itself,
and the personality of the accused, including his or her age, sophistication,
and mental health.

[103]
Special note should
be taken of the mental health and age of the accused.  A confession arising
from a Mr. Big operation that comes from a young person or someone
suffering from a mental illness or disability will raise greater reliability
concerns.

[104]
In listing these
factors, I do not mean to suggest that trial judges are to consider them
mechanically and check a box when they apply.  That is not the purpose of the
exercise.  Instead, trial judges must examine all the circumstances leading to
and surrounding the making of the confession  with these factors in mind  and
assess whether and to what extent the reliability of the confession is called
into doubt.

[105]
After considering
the circumstances in which the confession was made, the court should look to
the confession itself for markers of reliability.  Trial judges should consider
the level of detail contained in the confession, whether it leads to the
discovery of additional evidence, whether it identifies any elements of the
crime that had not been made public (e.g., the murder weapon), or whether it
accurately describes mundane details of the crime the accused would not likely
have known had he not committed it (e.g., the presence or absence of particular
objects at the crime scene).
Confirmatory evidence is not a hard and fast
requirement, but where it exists, it can provide a powerful guarantee of
reliability.
The greater the concerns raised by the circumstances in which
the confession was made, the more important it will be to find markers of
reliability in the confession itself or the surrounding evidence. [Emphasis
added.]

See also:
R. v. Mack
, 2014 SCC 58 at para. 34,
[2014] 3 S.C.R. 3.

[65]

In
Hart
, the statements made by Mr. Hart implicating himself
in the drowning of his two daughters were excluded because of a combination of
factors.  At the time the Mr. Big operation began Mr. Hart was
unemployed, socially isolated, and living on welfare.  Over four months he was
paid over $15,000 and told a $25,000 pay day was coming.  The undercover
officers became his closest friends and transformed his life.  His descriptions
of how the crime was committed were inconsistent.  Further, and of considerable
importance, there was no confirmatory evidence.

[66]

In the present case, while Mr. Johnston was unemployed, he was not
socially isolated, destitute, or vulnerable.  He had a criminal past that he
freely disclosed to Constable I. the first time they met; a past that includes
taking another persons life.  He was not a person unaccustomed to violence.

[67]

Although Mr. Johnston became friendly with a number of the
undercover officers, particularly Constable N., those officers did not engrain
themselves in his life to the same extent as occurred in
Hart
.  No
violence or threats of violence were ever directed at Mr. Johnston, or at
anyone close to him.  He was calm and composed during the Mr. Big
interview.

[68]

Of particular significance is Mr. Johnstons
knowledge of aspects of the holdback evidence such as the killers use of a
bicycle, the stab wounds to Mr. Frasers neck, and the broken knife blades.
His statement that he kicked the victim in the ribs is consistent with the injuries
Mr. Fraser sustained.  That Mr. Johnston misstated the number of
knives used and the number of stab wounds inflicted together with stating that
he killed the victim over an unpaid debt does not render his statements
unworthy of consideration by a trier of fact.  A finding of threshold
reliability is not precluded merely because there are some inaccuracies in an
accuseds description of the actual facts:
West
at para 87;
Allgood
at para. 64.  I note that the trial judge, in finding ultimate reliability,
referred to Mr. Johnston having overstated the number of knives as well as
the number of stab wounds as exaggerations:  paras. 146, 149.

[69]

Other markers of threshold reliability (i.e., potentially confirmatory
evidence) are:

(a)      Mr. Johnstons description
of how he was dressed and his statement as to the time at which he rode a bicycle
to Ms. Frasers house (which is generally consistent with Mr. Barkers
testimony);

(b)      his knowledge that Mr. Fraser
arrived in a truck;

(c)      his knowledge that the knives
came from a block in the kitchen; and

(d)      his
knowledge that video-game and other electrical equipment had been left on the
living room floor.

[70]

As is readily apparent, Mr. Johnston knew details of Mr. Frasers
murder that it was likely only the killer would know.  This knowledge provides
a powerful guarantee of the reliability of his statements during the Mr. Big
interview.  At the threshold-reliability stage, that guarantee is not
diminished by the possibility that Mr. Johnston could have learned those
details from Michael Johnston.

[71]

In my view, the threshold-reliability requirement for Mr. Big
statements set out in
Hart
was satisfied.

[72]

I would not accede to this ground.

Admissibility
of Michael Johnstons Videotaped Statement

[73]

Mr. Johnstons objection to the admissibility of Michael Johnstons
videotaped statement is tied directly to his objection to the admissibility of
the Mr. Big interview.  He accepts that if the Mr. Big interview is
admissible, then his objection to the videotaped statement must fail.

[74]

As I have found the Mr. Big interview admissible, I would not
accede to this ground.

Disposition

[75]

As noted, these are my reasons for dismissing the appeal.

The Honourable Mr. Justice Frankel

I AGREE:

The
Honourable
Mr.
Justice Chiasson

I AGREE:

The Honourable
Madam Justice D. Smith


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. zombori,

2016 BCCA 9

Date: 20160106

Docket: CA42691

Between:

Regina

Respondent

And

Joseph Steve zombori

Appellant

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Groberman

The Honourable Madam
  Justice Dickson

On appeal from: an
order of the Supreme Court of British Columbia, dated
April 9, 2015 (
R. v. zombori
) (conviction) and February 26, 2015 (
R.
v. zombori
) (sentence), Williams Lake Docket No. 32113)

Oral Reasons for Judgment

Appellant appearing In Person (via teleconference):

Counsel for the Respondent:

R. Leong

Place and Date of Hearing:

Vancouver, British
  Columbia

January 6, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 6, 2016

Summary:

Extension
of time for filing appeal (one year after convictions) was sought but the
appellant had not complied with filing dates set in a Criminal Appeal Advisory
Letter. The matter was referred to a division and appellant confirmed he would
not file the transcript or appeal books. He demanded his appeal be referred to
a Court of Equity to be dealt with in private. Appeal dismissed as abandoned.

[1]

NEWBURY J.A.
: Mr. zombori was convicted by a jury on April
10, 2014 of the production of marihuana, possession of marihuana for the
purpose of trafficking, and wilful interference with the lawful use of
property. On February 26, 2015 he was sentenced to a term of 18 months
imprisonment, a probation term of six months and the forfeiture of certain
property.

[2]

Almost a year after his conviction, Mr. zombori filed a notice of appeal
(from conviction and sentence) and notice of an application to extend time for
the filing of the notice of appeal. In accordance with this court's practice,
he was notified by the Registrar of certain deadlines that became applicable to
his appeal  the filing of a transcript by May 5, 2015, the filing and serving
of a transcript and appeal book by June 30, the filing and serving of his
factum by October 20 and the hearing of the appeal no later than April 7, 2016.

[3]

The case was referred to case management and at a case management
session, Madam Justice Neilson on June 24, 2015 urged him to apply for legal
aid and to consider making an application under s. 684 of the
Criminal
Code
, R.S.C. 1985, c. C-46, for the appointment of counsel. At a second
case management session on July 24, Mr. zombori told the judge that he
would not be applying for legal aid or for the appointment of counsel; nor did
he wish to be represented by counsel. He asserted at that time that the Court
did not have jurisdiction in respect of the offences for which he was convicted
and that he would be filing materials challenging the Court's jurisdiction in
due course.

[4]

Mr. zombori failed to meet the deadlines for the filing and service
of a transcript and appeal books and was notified on October 21, 2015 by the Registry
that a hearing would be held on November 24, 2015 to consider whether his
failure to diligently pursue his appeal should be referred to a court or to a
justice.

[5]

A month later, on November 24 of last year, Mr. zombori appeared at
a Registrar's reference before Madam Justice Bennett. At that time, he
confirmed that he had not ordered or filed transcripts or appeal books and
again asserted that the Court and the Crown do not have jurisdiction in respect
of the offences. Madam Justice Bennett referred the matter to this division of
the Court and Mr. zombori has appeared by telephone link before us today.

[6]

Today, he has reiterated the position he outlined to Madam Justice
Bennett, namely that the Court has, and the Supreme Court of British Columbia
had no jurisdiction over him, and that these proceedings are a matter for a
court of Equity. As I understand it, he says he has equitable rights arising
out of a private trust that is cognizable only in Equity and that the Crown
had no right to charge him with the offences. He also says this is a private
matter and that the proceedings are irreparably damaging, either to his rights
or those of the beneficiary of the trust (I am not quite sure which it is.) We
attempted, without success, to explain to Mr. zombori that there is no longer
an exclusive court of Equity in this Province, and that the Supreme Court now exercises
both equitable and legal jurisdiction. It was in the Supreme Court, of course,
that he was convicted.

[7]

Mr. zomboris submissions are, I must say, entirely without merit and
leave no hope that he intends to pursue an appeal. He has no intention of
obtaining a transcript or filing appeal books as required by the
Rules
,
nor of obtaining counsel who might put forward an argument that might have some
merit. No reason having been given as to why further extensions of time should
be granted, I conclude that the appeal must be dismissed as abandoned.

[8]

GROBERMAN J.A.
: I agree.

[9]

DICKSON J.A.
: I agree.

[10]

NEWBURY J.A.
: The appeal is dismissed as abandoned.

The
Honourable Madam Justice Newbury


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Cameron v. Cameron,

2016 BCCA 10

Date: 20160107

Docket: CA42809

Between:

Shannon Marie
Cameron

Appellant

(Plaintiff)

And

Gary Craig Cameron

Respondent

(Defendant)

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Dickson

On appeal from:  An
order of the Supreme Court of British Columbia, dated April 22, 2015 (
S.M.C.
v. G.C.C.
, April 22, 2015, Vancouver Docket E123621)

Oral Reasons for Judgment

Counsel for the Appellant:

J. Predovic

Counsel for the Respondent:

M. Brandon

Place and Date of Hearing:

Vancouver, British
  Columbia

January 7, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 7, 2016

Summary:

The appellant appeals from a
chambers judges decision on a review of a spousal support order. The original
support order contemplated the appellant re-training and being able to generate
income, and provided for a review of spousal support in 2015. On the review,
the chambers judge imputed income of $1000/month to the appellant, based on the
judges assessment that the appellant should now be earning that amount. The
appellant argues that the chambers judge misapprehended the evidence or placed
undue weight on the need for the appellant to achieve self-sufficiency. Held:
appeal dismissed. The judge considered the difficulties encountered by the
appellant, but, after assessing the evidence, concluded that she ought to be
earning $1000/month. There is nothing in her judgment to suggest that she
misapprehended the evidence or misapplied the law.

[1]

GROBERMAN J.A.:
The appellant appeals from an order of the
Supreme Court on a review of spousal and child support orders. She contends
that the judge erred in imputing income of $1000 per month to her and in limiting
the special or extraordinary expenses payable under s. 7 of the Federal
Child Support Guidelines.

[2]

The original spousal support order was made in September, 2013. At that
time, the appellant had lost her employment as an office assistant, and had
decided to re-train as a jewellery designer. While she was not making any money
as a jewellery designer at that time, the judge concluded that her decision to
re-train was a reasonable one. He declined to impute any income to her, and
ordered the respondent to pay $1359 per month as spousal support. He directed
that the spousal support award would be reviewable no earlier than January 1,
2015. It is clear that the issue to be reviewed was the appellants income. It
was anticipated that she would be able, with time, to earn income as a
jewellery designer.

[3]

The review application was heard in May, 2015. It appears that the
appellant was still not earning any income. The respondent argued that income
should be imputed to her on the basis that she had not made reasonable efforts
to secure employment. The appellant, on the other hand, contended that her lack
of income was reasonable, given that she had suffered certain health
difficulties and emotional challenges, and given that she was the primary
caregiver for the couples child, who has special needs.

[4]

The judge imputed income to the appellant, but at a level well-below
that contended for by the respondent. Her reasoning was succinct:

[15]      Having considered the
evidence, I am of the view that while there is no doubt that the claimant has
had some very unfortunate circumstances with respect to her health, Justice
Sewell did consider her health and [P.'s] special needs in structuring an order
that allowed the parties to move forward and ultimately achieve
self-sufficiency, as contemplated under the Divorce Act. He did anticipate, in
my view, that by January 2015, that would have provided a reasonable opportunity
for the claimant to obtain employment.

[16]      I am of the view,
however, that given the history of this relationship and considering [P.'s]
special needs and the health difficulties of the claimant, it is far too early
to consider terminating the spousal support provision.

[17]      I
am of the view overall that, given all of the circumstances, it is appropriate
to impute an income to the claimant at this time of $1,000 per month or $12,000
per annum. I have considered her graduation from the jewellery design course
and the success that she is capable of a jewellery designer. I have also
considered the inventory that she currently has in her business, along with the
tools to develop that business or to obtain employment. In my view, this is an
appropriate amount that balances her need for flexible employment, her need to
provide care for [P.] in a manner that allows her some flexibility, recognizes
her health difficulties, but also recognizes the needs of the parties to move
forward and become self-sufficient.

[5]

The judge, accordingly, reduced spousal support to $900 per month,
effective July 1, 2015. She was obviously concerned about the appellants
efforts to secure employment, noting that her affidavit indicated that she had
applied for approximately 14 jobs, but that, in the course of argument, it was
conceded that she had simply reviewed 14 jobs, and had not made applications.

[6]

With respect to special expenses, the judge determined that counselling
and dental expenses, and one extra-curricular activity would constitute special
expenses for the purpose of the
Federal Child Support Guidelines
. In
doing so, she commented that she wished to acknowledge the needs of [the
child] but  also put a limit on these expenses, because  both parties have
some financial challenges. Special expenses payments are divided, with the
respondent paying 70.4%.

[7]

Canadian courts have recognized that significant deference is afforded
trial judges in respect of support orders. In
Hickey v. Hickey
, [1999] 2
S.C.R. 518, LHeureux-Dubé J., for a unanimous court said:

[11]      Our Court has often emphasized the rule that appeal
courts should not overturn support orders unless the reasons disclose an error
in principle, a significant misapprehension of the evidence, or unless the
award is clearly wrong .

[12]      There are strong
reasons for the significant deference that must be given to trial judges in
relation to support orders. This standard of appellate review recognizes that
the discretion involved in making a support order is best exercised by the
judge who has heard the parties directly. It avoids giving parties an incentive
to appeal judgments and incur added expenses in the hope that the appeal court
will have a different appreciation of the relevant factors and evidence. This
approach promotes finality in family law litigation and recognizes the
importance of the appreciation of the facts by the trial judge. Though an
appeal court must intervene when there is a material error, a serious
misapprehension of the evidence, or an error in law, it is not entitled to
overturn a support order simply because it would have made a different decision
or balanced the factors differently.

[8]

The appellant alleges that the judge erred in three ways:

(1) by focussing on the appellants lack of success in
obtaining employment rather than on the reasonableness of her efforts to obtain
employment;

(2) by misapprehending the evidence pertaining to the
appellants medical and other difficulties which impeded her search for
employment;

(3) by failing to increase the
amount of spousal support as provided for in s. 12.10 of the
Spousal
Support Advisory Guidelines
for cases involving children with special
needs.

[9]

I am unable to find errors in the judges assessment. She cited
Jordan
v. Jordan
, 2011 BCCA 518 as setting out the nature of her task  the review
did not depend on a finding that there was a material change in circumstances,
but did require that she identify the issues to be reviewed and to determine
those issues. She identified the appellants income as the issue of focus. She
reviewed the evidence, and concluded that the appellant, even with her health
difficulties and the special needs of her child, ought to be able to generate
an income of $1,000 per month. I see nothing in her reasons that suggests that
she misapprehended the evidence or applied the wrong legal tests.

[10]

The judge carefully assessed the special needs of the child, and took
them into account in determining the appropriate amount of income to impute to
the appellant. I am unable to find that there was any error on the part of the
judge in declining to further adjust the spousal support based on the childs
special needs.

[11]

While the grounds of appeal do not specifically address the judges
reasons for finding that payment for only one extracurricular activity should
qualify as an extraordinary expense, the relief sought by the appellant
includes overturning that order. I would not accede to that request. I am
unable to find any error in the judges analysis of the question. After considering
the needs of the child and the financial position of the parties, she found
that it was reasonable to include only one extracurricular activity as an
extraordinary expense. There is no basis to challenge that finding.

[12]

In the result, I would dismiss the appeal.

[13]

NEWBURY J.A.
: I agree.

[14]

DICKSON J.A.
: I agree.

[15]

NEWBURY J.A.
: The appeal is dismissed.

The
Honourable Mr. Justice Groberman


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Krieger,

2016 BCCA 11

Date: 20160107

Docket: CA41114

Between:

Regina

Respondent

And

Scott Berthold
Krieger

Appellant

Corrected Judgment:
Text was corrected in the summary on January 25, 2016.

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Garson

The Honourable Madam Justice Fenlon

On appeal from: an
order of the Supreme Court of British Columbia, dated
August 9, 2013 (
R. v. Krieger
, 2013 BCSC 1722,
New Westminster Registry No. 73899)

Oral Reasons for Judgment

Counsel for the Appellant:

N.L. Cobb

Counsel for the Respondent:

W.P. Riley, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

January 6, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 7, 2016

Summary:

The appellant appeals the
two-year custodial sentence imposed following his conviction for possession of
cocaine for the purposes of trafficking, and applies for a post-sentence report
and/or admission of fresh evidence. The appellant submits that the sentencing
judge erred by concluding that the offence was committed for profit, by
treating the absence of addiction as an aggravating factor, by failing to treat
Charter breaches as a mitigating factor, and by not imposing a conditional sentence.
Held: The appeal and applications are dismissed. The sentencing judge
reasonably concluded that the offence was motivated by profit, and did not
treat the absence of addiction as an aggravating factor. The Charter breaches
that occurred in the appellants case did not rise to the level of mitigating
factors. A two-year custodial sentence was not unfit. The proposed evidence in
the applications for a post-sentence report and/or fresh evidence primarily supported
existing evidence, and there was no reasonable possibility that it would assist
the Court in reviewing the fitness of the sentence imposed.

I.
Introduction

[1]

GARSON J.A.
: The appellant Scott Berthold Krieger appeals from a
two-year custodial sentence imposed by a Supreme Court judge following his
February 20, 2013, conviction on a charge of possession for the purposes of
trafficking contrary to s. 5(2) of the
Controlled Drugs and Substances
Act
, S.C. 1996, c. 19.

[2]

On appeal, Mr. Krieger says that the custodial sentence is harsh
and excessive, and he seeks the imposition of a conditional sentence. He
submits that a conditional sentence is a fit one based on the following
factors: he is a first time offender; he has been on bail since his arrest in
2009; he has fully complied with all bail conditions; he is the self-employed
owner of an oil pipeline company employing about 20 people whose employment
depends upon him; his family would suffer considerable hardship if he were
incarcerated, particularly because of his wifes recent cardiac difficulties; and
his own health difficulties.

[3]

In imposing a custodial sentence, Mr. Krieger submits that the
sentencing judge erred:

a)

By concluding
that he had committed the offence for profit;

b)

By treating the
absence of addiction as an aggravating factor;

c)

By failing to
treat as mitigating factors breaches of the
Canadian Charter of Rights and
Freedoms
that occurred respecting Mr. Kriegers detention, and the
searches of his vehicle, cellular telephone, and residence; and

d)

By declining to
impose a conditional sentence order.

[4]

Additionally, Mr. Krieger seeks an order that this Court order a
post-sentence report and/or admit fresh evidence. In support of this
application, he tenders his own evidence as well that of his wife about her
cardiac symptoms, although without any expert testimony. He tenders his updated
evidence about his employment and his companys contracts. He asserts that his
personal supervision is required to service those contracts.

[5]

In reply, the Crown says that the appeal, the application for a
post-sentence report, and the application for fresh evidence should all be
dismissed on the grounds that the judge did not err, and that Mr. Krieger
has failed to establish that the sentence is not fit.

[6]

For the reasons that follow I would dismiss the appeal and the applications.

II.
Background

[7]

The circumstances of the offence are summarized by the sentencing judge
beginning at para. 12 of the reasons for sentence: 2013 BCSC 1722:

[12]      The established facts are simple. They are set out
in the judgment pronounced on February 20, 2013 and indexed at 2013 BCSC 1429.
I will not repeat them now in detail.

[13]      In summary, Mr. Krieger travelled from Alberta
to Surrey, British Columbia on April 19, 2009 and met Mr. Goodkey in the
parking lot of a hotel there on the morning of April 20, 2009. They drove in Mr. Goodkeys
vehicle to New Westminster, where they were lost to surveillance, and returned
soon thereafter to the hotel parking lot. Mr. Goodkey then delivered to Mr. Krieger
two boxes later found to contain over seven kilograms cocaine.

[14]      Mr. Goodkey, wearing blue gloves, took boxes
from the back of his vehicle and handed them to Mr. Kreiger while he was
in the back deck of a pickup truck. Mr. Krieger tilted the tidy tank on
the deck of the truck to a 45-degree angle to gain access to a compartment
located under the tidy tank.

[15]      The circumstances of the exchange supported the
inference the accused knew they were trafficking cocaine. They are referred to
in the judgment and include the fact both wore gloves at the time of the
transfer; the exchange occurred in a secluded location at the back of an empty
parking lot adjacent to a wooded area; the drugs were put into a secret
compartment in the presence of Mr. Goodkey by Mr. Krieger; and Mr. Krieger
was seen to discharge what appeared to be fuel around the tank after the drugs
had been concealed.

[16]      Following the meeting, the offenders went their
separate ways. Mr. Kreiger, in the course of returning to Alberta, was
stopped before he left British Columbia. When his vehicle was searched, the
compartment beneath the tidy tank and the cocaine were located.

[1]        Staff Sergeant Patrick Murphy was called to give
opinion evidence in the trail involving the trafficking and possession of
cocaine in British Columbia. It was his evidence that seven kilograms of
cocaine are unlikely to be possessed by a street-level distributor. This amount
of cocaine is likely to be held by an extremely high-level distributor or a
low-level wholesaler of cocaine. In the hands of distributors, this cocaine
would have a value in the range of $28,000 to $32,000 per kilogram, or
approximately $210,000. Distributed at street level, the same amount of cocaine
would have a value of approximately $600,000. This amount of cocaine would not
be held by an individual for personal use, but would be held for trafficking.

[2]        Because of its value and the risk of its
interception or theft, those involved in the trafficking of this amount of
cocaine from its point of production, likely Colombia, Peru, or Ecuador, across
the border and to street-level distributors, would have a high interest in
maintaining control over the cocaine.

[3]        If Mr. Goodkey
passed containers containing cocaine to Mr. Krieger without receiving
money in return at the time of transfer, according to Staff Sergeant Murphy,
that would suggest an established relationship between Mr. Krieger and Mr. Goodkey.

Circumstances of the offender

[8]

The sentencing judge described Mr. Kriegers personal circumstances
and the various letters written in his support at paras. 23-36. The
description of these circumstances is, to a limited extent, amplified by the
fresh evidence sought to be admitted on appeal:

[23]      Mr. Krieger has been married to Helena Krieger
for 14 years. He has two children, aged 11 and 8 years. He was born in Prince
George and raised there, as well as in Fort Nelson and Qualicum. His father
died in a hunting accident when Mr. Krieger was 20, and at that point he
is said to have been obliged to become the father of his family. He has worked
throughout British Columbia.

[24]      Counsel said that not only does he have no prior
criminal history, but he has been a constructive and productive member of
society. He has been steadily employed and done volunteer work.

[25]      I am advised he is the owner of 49% of a company
that employs dozens of individuals, 1742794 Alberta Ltd., which does business
as High Range Energy. He is said to be essential to the company:  he signs
the cheques. The company is actively in business, and currently about to bid on
a significant job. He said to be important to his community.

[26]      He suffers from a health problem -- polyarticular
gout, and a complication from that problem -- septic arthritis, for which he
takes medications and sees a rheumatologist. His illnesses is said to be
painful and exaggerated by stress. I am informed that he has been hospitalized
regularly. Counsel suggests that it may be difficult to treat this condition if
he is incarcerated.

[27]      He is the sole provider for his family.

Letters

[28]      Mr. Krieger is also the beneficiary of letters
of support from friends and family.

[29]      There is a letter from Ronald Noye, a retired RCMP
officer, who has known him for years. He describes Mr. Krieger as
hard-working, honest, and a good provider. He says that Mr. Krieger made a
mistake and has learned from it. He says Mr. Krieger confesses his regret
over his actions, but does not describe the nature of the mistake or Mr. Kriegers
regret. He describes Mr. Kriegers concern for the effect of this offence
upon his family. He says that if anyone deserves a second chance, it is Mr. Krieger.
He says that to send him to prison would cause his family to suffer hardship.

[30]      Pat Trainer, the mother of one Mr. Kriegers
childhood friends, describes him as popular, responsible, and hard-working. She
remains proud of him.

[31]      Rocky Scholz, a family friend of Mr. Krieger
who has known him for 14 years, describes Mr. Krieger as organized,
efficient, and extremely competent. He appears to been [sic] employed by Mr. Krieger.
He described him as a man of integrity, dedicated to his family and friends.

[32]      Miranda Scholz describes Mr. Krieger as
genuine, sincere, and kind-hearted. She says he is a family person.

[33]      Tammy Cowan is Mr. Kriegers sister. She says Mr. Krieger
has helped their brothers in dealing with a drug addiction. She says he
steadily employed and has worked hard. She will continue to support him.

[34]      James Keay describes Mr. Krieger is the best
operator of a feller-buncher he has ever seen, a dedicated father and husband,
and a hard worker. He says Mr. Kriegers character is beyond reproach.

Statement:

[35]      Mr. Krieger also comes before the Court and
says he made a great mistake, but does not know why he made that mistake. He
says he should have asked more questions but has not described for me the
natures of the questions he would have asked, or of whom he would have asked
those questions. He says that he is remorseful for the effect his actions have
had upon his family and friends.

[36]      He asks the Court to
give him an opportunity to show that he will not be further involved in
criminal activity by imposing on him a conditional sentence. He says he is a
good, hard-working person, and he seeks to minimize the effect of his sentence
on other people.

III.
Analysis

[9]

I shall address the four grounds
of appeal as set out above.

[10]

The first ground is that the judge
erred in concluding that Mr. Krieger committed the offence for profit. The
second ground is incidental to the first, in the sense that Mr. Krieger
says the judge erred by treating the absence of addiction as an aggravating
factor.

[11]

In describing Mr. Kriegers
involvement in the trafficking scheme, the judge noted that the appellant
carried a substantial amount of cocaine and must have done so for profit (at
para 118). The judge referred to and relied on the evidence at trial to
conclude that the quantity of drugs was seven kilograms, valued on a wholesale
basis at between $195,000−$225,000, and enough to produce 7,000
individual doses for sale to users (at para. 47).

[12]

Mr. Krieger argues that there
was no evidence on which the judge could have relied to draw the conclusion
that the criminal conduct was for a profit motive. Second, Mr. Krieger
argues that while addiction may be a mitigating factor, its absence is not an
aggravating factor. He interprets the judges reasons as so finding and he says
that the judge erred in making that finding.

[13]

While it is correct to say that
the evidence of trafficking does not always imply that profit is a motive, in
this case, in my view, the inference is inescapable. The circumstances of the
appellants involvement including the amount of cocaine involved, and the
nature of the transfer and transportation of the cocaine are consistent with
his being either a high level distributor, or a low-level wholesaler of
cocaine. The judges inference that the offence was committed for profit was
well-supported by the evidence. Indeed, it is difficult to imagine another
motive for such high-risk involvement. The only apparent purpose of journeying
from Alberta to Surrey, transfer of drugs to him, and returning towards
Alberta, was to receive drugs. There was clearly a basis in the evidence for
the judges finding that profit was a motive.

[14]

R. v. Fraser
, 2009 BCCA 179, is authority for the proposition that
trafficking for profit, if proven beyond a reasonable doubt, may be considered
an aggravating factor (see, also,
R. v. Li
, 2009 BCCA 85 at
paras. 33-34) and the converse proposition that trafficking to support an
addiction, if proven on a balance of probabilities, may be cited as a
mitigating factor diminishing the offenders culpability (see also this Courts
discussion in
R. v. Terezakis
, 2010 BCCA 268 at paras. 15-17). In
this case, as I have outlined, there is ample evidence to support the inference
that the appellants involvement was for profit.

[15]

Mr. Krieger argues that the
judge erred in finding the absence of addiction to be an aggravating
circumstance. The judge set out the aggravating factors applicable to
Mr. Krieger at para. 118 of the sentencing reasons:

[118]    The aggravating
circumstances affecting Mr. Kriegers sentence are those affecting
Mr. Goodkey. He carried a large amount of cocaine; he must have done so
for profit; he was not an addict; to some degree planning was involved; the
cocaine was to be transported over a significant distance to the market.

[16]

I do not read the judges reasons
as concluding that the
absence
of addiction is an aggravating factor,
which clearly it cannot be. In my view, when read in context, the judge is
simply referring to the absence of evidence supporting any alternative explanation,
apart from profit, for Mr. Kriegers involvement in the offence. I would
not accede to the first or second grounds of appeal.

[17]

The third ground of appeal
concerns the
Charter
breaches the judge found to have occurred in
respect of Mr. Kriegers detention and searches of his vehicle, residence,
and cellular phone. Mr. Krieger was originally under investigation for
smuggling weapons into Canada from the United States. In April, police officers
observed the transaction between Mr. Krieger and Mr. Goodkey
described above. Believing that the transaction involved weapons, police
arrested Mr. Krieger as he was driving towards Alberta. Mr. Krieger
argued at trial that police did not have reasonable and probable grounds to
make this arrest. After his arrest for smuggling, Mr. Krieger was detained
and his vehicle was searched. The police found a hidden compartment containing
the cocaine.

[18]

The
Charter
breaches at
issue were summarized in this Courts reasons on the appellants conviction
appeal (2015 BCCA 64 at paras. 148-167):

[148]    The
following breaches of Mr. Kriegers rights occurred in this case:

a)

his arrest was unlawful and,
therefore arbitrary (s. 9);

b)

the search of his truck was
unreasonable (s. 8);

c)

the search of his cellular
telephone was unreasonable (s. 8);

d)

the search of his residence was
unreasonable (s. 8); and

e)

his right to counsel was infringed
when, while he was waiting for his wife to arrange for a lawyer, the police
asked him how to access the hidden compartment in his truck and sought to
interview him after the cocaine had been found (s. 10(b)).

[149]    Mr. Kriegers
position is that the actions taken by the police represent a pattern of
disregard for

Charter

rights deserving of judicial disapprobation. He
submits the breaches were serious, highly intrusive and, in most cases,
intentional. Although I agree with Mr. Krieger that there were serious
breaches of his privacy interests, I do not agree with his assertion that the
police systematically and deliberately disregarded his rights.

[150]    To use a colloquial
term, the police went offside when Staff Sergeant Baker made the decision to
have Mr. Krieger arrested. However, the trial judge found that decision
was not taken in bad faith but, rather, was the result of a judgment call that
fell just short of objectively sufficient reasonable grounds.  In other
words, as the investigation continued, the police had no reason to believe
anything other than that Mr. Krieger had been lawfully arrested.

[151]    The search of the
truck was for the purpose of finding the boxes the police reasonably believed
had been placed into a hidden compartment. Had Mr. Kriegers arrest been
lawful, a search of the truck incidental to that arrest would also have been
lawful:
R. v. Caslake
, [1998] 1 S.C.R. 51. In the circumstances of this
case, it would be wrong to treat the
Charter
breach occasioned by that
search as an independent and distinct breach, indicative of a pattern of
disregard for the
Charter
. Similarly, the search of Mr. Kriegers
cellular telephone should not be treated as an independent and distinct breach.

[152]    As mentioned above,
the trial judge held that the search of the cellular telephone infringed
s. 8 solely because the arrest was unlawful. The judge also found that the
officer who conducted that search, Constable Chand, acted in good faith, in
that he had an honest and reasonable belief such a search could be conducted
incidental to an arrest.

...

[160]    This brings me to the
search of Mr. Kriegers Grande Prairie residence, a place where persons
have a high expectation of privacy:
Côté
at para. 85. Without question,
the unlawful search of a residence is a serious breach of privacy:
Grant
at
para. 113. However, as with the other searches, that breach should not be
viewed as independent and distinct. Rather, it should be viewed as part of the
continuum of investigative steps undertaken by the police following what they
believed to be a lawful arrest. Knowing that Mr. Krieger possessed a large
number of firearms and believing that he was involved in both smuggling
handguns and trafficking in drugs, it is understandable the police would take
steps to remove those firearms from his possession. Whether registered or not,
it generally is not in the public interest to allow a person reasonably
believed to be involved in either smuggling handguns or trafficking in drugs to
possess firearms. Had the arrest been lawful the information relating to the
cocaine would have been properly included in the ITO and, on that basis, the
warrant could have issued.

[161]    What remains are the
breaches of s. 10(b), neither of which I consider to be egregious. The
first breach occurred while the police were looking for the hidden compartment
in the truck, which was after Mr. Krieger had spoken with the legal aid
lawyer. The trial judge found that one of the officers asked Mr. Krieger
how to gain access to the compartment and he said the Tidy Tank had to be
lifted. Given that the police had seen the Tidy Tank tilted up in the parking
lot, what Mr. Krieger told them neither advanced the investigation nor
compromised his interests.

[162]    The second breach
occurred when the police attempted to interview Mr. Krieger after the
cocaine was found. Their efforts were unsuccessful because, as Mr. Krieger
told them, he had been advised by the legal aid lawyer not to say anything and
he wished to speak with the lawyer his wife was arranging for him. Because of
this, the interview lasted less than 10 minutes.

[163]    The evidence as a
whole does not support Mr. Kriegers contention there was a concerted
effort by the police to interfere with his right to counsel of choice. Clearly,
there was a lack of communication among the officers. This is evinced by the
fact that:  (a) Constable Wikstrom did not inform the members of the
Border Integrity Unit that Mrs. Krieger was arranging a lawyer for her
husband; and (b) prior to attempting to interview Mr. Krieger,
Constable Barlow only knew that Mr. Krieger had spoken with a legal aid
lawyer. As Constable Barlow was unaware of what Mrs. Krieger was doing, it
cannot be said his attempt to obtain a statement from Mr. Krieger amounted
to a deliberate breach of Mr. Kriegers rights.

...

[167]    Balancing all of the factors, I have concluded that even
with the additional breach relating to the search of Mr. Kriegers
residence, the admission of the cocaine would not, in the long-term, adversely
affect the repute of the administration of justice. Reasonable and informed
members of the public would understand and appreciate that the breaches here
were not occasioned by disrespect or disregard for rights guaranteed by the
Charter
but,
rather, resulted from unintended human errors.

[19]

It is clear from the foregoing
passages that the
Charter
breaches were not considered by this Court to
be serious, deliberate or systemic. The appellant argues that the breaches are
nevertheless relevant to the judges decision on sentence and should be
considered a factor.

[20]

Where state conduct is relevant to the circumstances of the offence or
the offender for the purposes of sentencing,
Charter
breaches may
justify a reduction in sentence (
R. v. Nasogaluak
, 2010 SCC 6 at
para. 2). In
Nasogaluak
, police used excessive force in subduing
and arresting the accused, who was fleeing, following a report of impaired
driving. As a result of the excessive force used, the accused suffered broken
ribs and a collapsed lung. The Supreme Court of Canada upheld a judgment
reducing the accuseds sentence to the statutory minimum on account of the
excessive force used on his arrest.

[21]

Writing for the Court, Lebel J. explained that
Charter
breaches
and state misconduct are most appropriately considered within the framework of
sentencing as outlined in the
Criminal Code
, R.S.C. 1985, c. C-46,
ss. 718 to 718.2. Lebel J. noted that
Criminal Code
, s. 718
describes the fundamental purpose of sentencing as that of
contributing to respect for the law and maintenance of a just, peaceful and
safe society, thus providing scope for sentencing judges to consider the
actions of state actors (at para. 49). Accordingly, if the impugned
conduct relates to the individual offender and the circumstances of the
offence, sentencing can involve consideration of societys collective interest
in ensuring that law enforcement respects the rule of law and shared societal
values (at para. 49).

[22]

The circumstances of Mr. Kriegers arrest, detention, and search
are very far from those in
Nasogaluak
, in which the relevance of the
impugned conduct to the circumstances of the offender and the offence was
readily apparent. For the purposes of sentencing, the effect of the
Charter
breaches on the circumstances of the offence and the offender in this case is
not substantial, and does not raise those breaches to the level of mitigating
factors warranting a sentence reduction. As already noted, this Court found on
the conviction appeal that the
Charter
breaches were not of significance
and were all essentially derivative of the unintentional breach related to his
arrest. I do not agree that the judge erred in declining to reduce the sentence
on account of the
Charter
breaches. There is no evidence of the effect
of these
Charter
breaches on the circumstances of the offender. I would
not accede to the third ground of appeal.

[23]

I turn to the fourth ground of
appeal: whether the judge erred in declining to impose a conditional sentence
order. I address this together with the applications for fresh evidence and/or
a post-sentence report.

[24]

After reviewing the authorities
presented by the Crown and Mr. Krieger, the sentencing judge determined
that the low range of sentencing for similar offences for similar offenders was
two years (at para. 111). I see no error in this conclusion.

[25]

The judge imposed a 2-year
sentence, but out of an abundance of caution, considered and rejected the
submission that a conditional sentence would be appropriate (at paras. 111, 122).
I see no error in the judges decision to impose a custodial sentence. Given
the quantity of the drug, the seriousness of the drug, and Mr. Kriegers
degree of culpability, it cannot be said that the two-year custodial sentence
imposed is not fit. That the appellant has heretofore lead an exemplary life
and has family and employment responsibilities, while factoring to his credit,
does not necessarily lead to the conclusion that the sentence imposed was
unfit.

[26]

I would dismiss Mr. Kriegers
application to adduce fresh evidence. This is because, with the exception of
the evidence concerning his wifes medical condition, the proposed evidence
merely supports evidence already in the record (
R. v. Takhar
, 2007 BCCA
505 at para. 17). The sentencing judge was aware of and accounted for
Mr. Kriegers family and employment circumstances when imposing a sentence
at the low end of the appropriate range. The record discloses that the
appellant has made commendable efforts to rehabilitate himself. The judge took
this into account, but nevertheless, found that denunciation and deference
required a custodial sentence.

[27]

An application for a post-sentence
report implicitly imports the test for the admission of fresh evidence, as set
out in
R. v. Lévesque
, 2000 SCC 47 (see
R. v. Radjenovic
, 2013
BCCA 131 at paras. 6-7) and also based on considerations in
R. v.

Palmer
,
[1980] 1 S.C.R. 759. The overriding consideration is the interests of justice.
In my view, the circumstances of this case are not such that it would be in the
interests of justice to order a post-sentence report. There is not, in my
opinion, a reasonable possibility that the report would assist this Court in
reviewing the fitness of the sentence imposed (
Radjenovic
at
para. 7;
Takhar
at para. 17), by bringing to the Court
information not already known to the sentencing judge.

[28]

I would dismiss the applications,
and would not accede to the fourth ground of appeal.

IV.
Disposition

[29]

I would dismiss the applications
for a pre-sentence report and/or fresh evidence.

[30]

I would dismiss the appeal.

[31]

BAUMAN C.J.B.C.
: I agree.

[32]

FENLON J.A.
: I agree.

[33]

BAUMAN C.J.B.C.
: The appeal and the applications are dismissed.

The
Honourable Madam Justice Garson