COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Birch v. Brenner,

2017 BCCA 22

Date: 20170116

Docket:
CA42737; CA42738

Docket:
CA42737

Between:

Suzanne Birch

Respondent

(Plaintiff)

And

Robin Elizabeth
Brenner

Appellant

(Defendant)

And

Suzanne Birch and (Others
Residing at Property)

Respondents

(Defendants
By Way Of Counterclaim)

- and

Docket:
CA42738

Between:

Robin Elizabeth
Brenner

Appellant

(Plaintiff)

And

Frances Ann
Bakewell

Respondent

(Defendant)

And

Robin Elizabeth
Brenner

Appellant

(Defendant
By Way Of Counterclaim)

Before:

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Goepel

The Honourable Madam Justice Fenlon

On appeal from:  An
order of the Supreme Court of British Columbia,
dated March 26, 2015 (
Birch v. Brenner
, 2015 BCSC 466,
Vancouver Docket Nos. S128262 and S138927)

Counsel for the Appellant:

S.A. Dawson

C. George

Counsel for the Respondents:

S.A. Griffin

P.D.H. Williams

Place and Date of Hearing:

Vancouver, British
  Columbia

April 26, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 16, 2017

Written Reasons by:

The Honourable Mr. Justice Groberman

Concurred in by:

The Honourable Mr. Justice Goepel

The Honourable Madam Justice Fenlon

Summary:

The
parties are the owners of lots in Roberts Creek. The Birch and Bakewell lots
enjoy an easement over the Brenner lot. At trial, the judge found that the
easements provided rights of way not only to the nearest public road, but also
to the Gulf of Georgia. He granted an expansive order setting out the rights of
the parties. Ms. Brenner appeals, arguing that the easements do not extend
to the water, and also that the judges order did not properly reflect his
interpretation of the easements. Held: appeal largely dismissed. The judge interpreted
the easements correctly. His order, while understandably designed to prevent
future disputes between the parties, had the effect of expanding the
respondents rights beyond those associated with a right of way. Accordingly,
some modification to the order is required.

Reasons
for Judgment of the Honourable Mr. Justice Groberman:

[1]

Ms. Brenner, Ms. Birch and Ms. Bakewell each own one of
three contiguous lots in Roberts Creek. There are easements over Ms. Brenners
lot in favour of the lots owned by Ms. Birch and Ms. Bakewell. The
trial judge found that the easements extend from a public road  Lower Road
to the foreshore on the Gulf of Georgia. Ms. Brenner takes issue with that
finding, arguing that the easements only provide access from Lower Road to the
Birch and Bakewell properties.

[2]

A secondary issue on this appeal is whether the formal order entered in
the court below was in conformity with the judges findings.

The Lands and the
Easements

[3]

The lots owned by the parties comprised a single parcel of land until 1927,
when the southeast corner of the parcel was subdivided off to form Lot A. Lot A
is a waterfront parcel with no public road access. An easement along the
eastern boundary of the remainder lot connected it to Lower Road. That
easement is not in issue in this litigation.

[4]

In 1940, the remainder was further subdivided into four lots. Most of
the waterfront portion of the remainder lot became Lot C. Two upland lots fronting
on Lower Road were also created: one north of Lot C, designated Lot B; and one north
of Lot A, designated Lot D. The fourth lot created was a 12 foot strip of land
running south from Lower Road to the foreshore. Its eastern boundary coincided
with the western boundaries of Lots A and D, and its western boundary coincided
with the eastern boundaries of Lots B and C. It is designated Private Road on
the subdivision plan. The following diagram, based on the 1940 subdivision
plan, shows the general configuration of the lots:

[5]

In 1949, the owners of the Private Road lot (who also owned Lot C)
granted an easement over the Private Road lot in favour of the owners of Lots
A and C. The easement is described as
a
right of way over the  private road for persons, animals, and vehicles.

[6]

In 1973, the owner of Lots A and D proposed to consolidate the two lots,
and, in the belief that it was necessary in order to effect a consolidation,
acquired an easement in favour of Lot D over the Private Road lot. The easement
is in identical terms to the 1949 easement. Although the easement was
registered, the lots were not consolidated.

[7]

Today, Lot A is held by Ms. Birch, and Lot D is held by Ms. Bakewell.
Ms. Brenner, who owned Lot C and the Private Road lot, has consolidated
them into a single parcel, known as Lot 1. The easements that are appurtenant
to Lots A and D continue to exist over that portion of Lot 1 that was formerly
the Private Road lot. In accordance with the terminology generally used in
the law of easements, I will use the term dominant tenement to describe the
land that benefits from the easement (here, Lots A and D) and servient
tenement to describe the lands over which the easement passes (here, that part
of Lot 1 that was formerly the Private Road lot).

The Litigation

[8]

In approximately 2004, Ms. Brenner and her husband (now deceased) constructed
a home on their lot. The following year, they undertook extensive landscaping
of their property. They installed hedges and other plants on parts of the
easement, and also erected wire fencing on it. They placed a large boulder on
the easement, blocking some vehicular use, and also installed a wooden fence
and locking gate. The southern 120 feet of the easement ceased to be available
for use by the respondents, preventing them from accessing the foreshore using
the easement.

[9]

Eventually, the blocking of the southern portion of the easement
resulted in litigation. At trial, among other claims, Ms. Birch and Ms. Bakewell
sought declarations that they were entitled to use the easements, and
injunctions restraining interference with them and requiring the removal of
existing impediments. Ms. Brenner, among other claims, sought declarations
that the easements were void or expired, and the cancellation of the easements.

Supreme Court Decision

[10]

A number of issues were addressed at trial. The judge found the easements
to be valid and enforceable, and concluded that they should not be modified or
cancelled. He granted injunctive and declaratory relief. Most importantly, the
judge rejected the proposition that the easements extended only from Lower Road
to the respondents lots, finding that the easements continued to the foreshore:

[45]      I am unable to accept
that the Easements in this case are so limited. They both refer to a
right-of-way over the said private road, and not merely that portion of it
that permits access to Lots A and D. It is my view that the Easements in this
case were intended by the grantors and grantees to afford the grantees a right
of access from the Private Road not only to their properties, but to the beach
and waterfront at the southern end of the Private Road as well. Any other
interpretation of the wording of the Easements, and their depiction on Plan
6851 would fail to derive a sensible meaning from those words and depiction, as
required by authorities such as

Anglo-Saxon
Petroleum Co. Ltd. v. Adamastos Shipping Co. Ltd
., [1957] 2 Q.B. 233.

[11]

After the reasons for judgment were pronounced, the parties disagreed on
the appropriate terms for the formal order. The judge conducted a hearing to deal
with several issues including the settlement of the orders. He gave reasons
following that hearing (indexed as 2015 BCSC 974), including a discussion of
the appropriate terms for the order.

[12]

The order in the proceeding brought by Ms. Birch against Ms. Brenner
was settled in terms that include the following provisions:

2.         The Plaintiff Suzanne Birch and her agents,
servants, workmen, and invitees are entitled to free, full, and uninterrupted
access to the whole of the Easement Area for persons, animals, and vehicles
save and except that the Easement conveys no right to park vehicles on the
Easement Area or construct within the Easement Area a bridge to permit vehicle
traffic to cross Stephens Creek.

3.         The Defendant Robin
Brenner is enjoined from restricting the free, full, and uninterrupted use by
the Plaintiff Suzanne Birch and her agents, servants, workmen, and invitees of
the whole of the Easement Area for persons, animals and vehicles.

[13]

The order in the proceeding brought by Ms. Brenner against Ms. Bakewell
included identical provisions, except that they referred to the Defendant Ann
Bakewell and the Plaintiff Robin Brenner rather than the Plaintiff Suzanne
Birch and the Defendant Robin Brenner.

[14]

On appeal, the major issue is whether the judge interpreted the
easements correctly in finding that they afforded the holders of the dominant
tenements a right of way to the foreshore, rather than only between Lower Road
and their properties. A second issue is whether, in settling the orders, the judge
afforded the respondents rights beyond those granted in the easements.

The Nature of a Right of
Way

[15]

Ms. Brenner argues that the judge failed to appreciate the nature
of a right of way granted by easement. She says that, as a matter of law, a
right of way in an easement carries with it only a right of access to or egress
from the dominant tenement over the servient tenement. She says access or
egress from the dominant tenements in this case is by way of Lower Road, and
that any interpretation of the easements that allows access from the dominant
tenements to the foreshore exceeds the proper scope of a right of way.

[16]

In support of her argument, Ms. Brenner cites the following passage
from Colin Sara,
Boundaries and Easements
, 5th ed. (London: Sweet &
Maxwell, 2011) at 375:

A private right of way is an
easement permitting people to pass to and fro over another persons land from
one point to another for the benefit of land belonging to the person entitled
to the right of way.

[17]

A number of cases support the proposition that a person making use of a
right of way granted in an easement is only entitled to use the right of way for
access to or egress from the dominant tenement, and not for access to or egress
from other properties. Ms. Brenner particularly relies on
Purdom v.
Robinson
, [1899] 30 S.C.R. 64;
Harris v. Flower
(1904), 74 L.J. Ch.
127 (C.A.);
Grant v. Lerner
(1914), 7 O.W.N. 564 (Ont. H.C.);
Weisner
v. Blades
, [1985] B.C.J. 182, 1985 CarswellBC 2764 (S.C.) and
Das v.
Linden Mews Ltd.
, 2002 E.W.C.A. Civ. 590. I will discuss
Purdom
,
Harris
,
and
Das
, which appear to me to be the most important authorities. It
does not appear to me that the principles applied in
Grant
or
Weisner
differ in any respect from those applied in the three authorities I will discuss.

[18]

In each of these cases, a person who held property to which a right of
way attached used that right of way for the purpose of accessing other
properties that they owned.

[19]

In
Purdom
, the defendant travelled along a beach to get from his
lot to a village. He had no right to do so. After the plaintiff sought to
enjoin such use, the defendant acquired a second lot that purportedly
benefitted from an easement over the beach. The Supreme Court of Canada
rejected the proposition that the easement in respect of the second property
constituted a defence to the trespass claim brought against the defendant.
Citing
Ackroyd v. Smith
(1850), 10 C.B. 164 and
Skull v. Glenister
(1864), 16 C.B. N.S. 81 the Court said, at 71:

[A] right of way granted as an
easement incidental to a specified property cannot be used by the grantee for
the same purposes in respect of any other property...

[20]

In
Harris
, a factory was constructed on two lots, one of which
had a right to access over an easement on an adjacent lot, and the other of
which did not. The English Court of Appeal held that the owner of the factory
was not entitled to use the easement for the purpose of accessing that part of
the factory that lay on the lot that did not benefit from the easement. To do
so would be to allow the burden of the easement to be expanded beyond the scope
of the grant.

[21]

In
Das
, the owner of a residence had a right to use the
carriageway in front of the residence for limited purposes. At para. 5,
the court described the easement as allowing a right to pass and repass over
the [carriageway] to and from the highway to their respective properties by
foot and with vehicles and a right to halt a single vehicle immediately
adjacent to their respective properties for the purposes of loading and
unloading the said vehicles. The owner acquired a separate property that was
separated from the carriageway by a wall. He modified the wall to allow passage
into an area of the second property, which he used for parking his car. The
court held that the use of the carriageway to access the second property was
beyond the scope of the easement:

[23]      What the owner wishes to do is to drive a car up
the carriageway, past number 4, on to the garden ground, and then leave the car
parked there while he enters number 4: by going either through the garden
ground or through the front door that abuts on to the carriageway. All that is
said to accommodate the dominant tenement, in that it is an adjunct to,
ancillary to, the owners enjoyment of life in number 4. But even if the latter
were, in law, an available analysis in general terms, on the facts of this case
it presents an insuperable problem.  The great benefit of access to the garden
ground is not simply to be able to access number 4, because that can already be
done by using the easement according to the grant. What the garden ground adds
is somewhere where the car can be left: a parking space.

[24]       [T]hat is a separate
use from mere access. It is a use that takes place other than on the dominant
tenement, and by using the carriageway to access that parking space the owner
extends the dominant tenement.

[22]

Ms. Brenner argues that this case is analogous to
Purdom
,
Harris
, and
Das
. She says that the easements only grant a right of
way for access to or egress from the Birch and Bakewell lots, and do not give a
right of access to the foreshore.

[23]

Ms. Brenners position is premised on the assumption that an
easement must start at a public highway and end at the dominant tenement. Such
an assumption is not correct as a matter of law. While an easement will, most
often, start from a public highway and end at the dominant tenement, there are
other possibilities. Sara discusses the issue at p. 377 of his book:

It is sometimes said that a right of way must have a
terminus
a quo
and a
terminus ad quem
, i.e. that it must lead from one fixed
point to another. Usually one of these fixed points will be a public highway
and the other will be the dominant tenement. There is no requirement, however,
that the way must lead directly to the dominant land. There is nothing to stop
a person obtaining a right of way over one parcel of land tor the purpose of
gaining access to his own land over intervening land.

[citations omitted]

[24]

Equally, there is nothing to stop a person obtaining a right of way that
extends from the dominant tenement to other land that the owner of the dominant
tenement wishes to access from their land. A landowner can acquire an easement
providing a right of way extending from the dominant tenement to the foreshore.

[25]

In the case before us, the judge interpreted the easements as allowing
access not only between the dominant tenements and Lower Road, but also between
the dominant tenements and the foreshore. There is no legal impediment to the
existence of such rights of way.

[26]

This case is not like
Purdon
or
Harris
, in which the
owners of lands that enjoyed the benefits of an easement purported to be entitled
to use the easements for access to other lands. Ms. Birch and Ms. Bakewell
do not claim a right to use their rights of way for properties to which they
are not appurtenant. They wish to use them only in connection with the dominant
tenements.

[27]

This case does resemble
Das
in some respects.
Das
could be
characterized as a case in which the property owner was asserting a right to
pass back and forth from the highway to his home and back and forth from his
home to a parking spot. It is important to recognize, however, that the
easement in
Das
was not a general right of access to the property over the
carriageway, but rather a specific right to proceed from the highway to the
property, drop off passengers, and return to the highway. By continuing along
the carriageway to a different property on which the parking spot was located,
the owner was exercising rights beyond those given by the easement.

[28]

In contrast, the case before us is one in which the easements simply provide
for a right of way through the easement area. I see no difficulty in the judges
characterization of them as extending both to Lower Road and to the foreshore.

The Interpretation of the
Easement

[29]

Ms. Brenners contention that, as a matter of law, an easement
cannot allow access to the foreshore, then, is without merit. She contends,
however, that, as a matter of interpretation, the easements in issue in this
case do not afford access to the foreshore. She points out that Lot A was, at
all times, a waterfront lot, with no need to have foreshore access by way of
the easement. While Lot D does not have any other access to the foreshore, it
is clear that the easement was acquired for Lot D solely in order to facilitate
its consolidation with Lot A, and not for the purpose of providing independent
access to the foreshore.

[30]

The trial judge heard extensive evidence on the history of the
easements, and gave cogent reasons for his conclusions. The interpretation of
the easements is a mixed question of fact and law, and the judge is entitled to
deference in respect of it. I am not persuaded that the judge made any error in
construing the easements.

[31]

Indeed, I am of the view that the interpretation reached by the judge
was completely consonant with the language of the easement. It also conformed
with the history of the easement. When it was granted, it was over a narrow lot
designated as Private Road. On the face of it, the only practical use for
that lot was as a transportation corridor for the adjoining landowners to
access Lower Road and the foreshore.

[32]

In my view, the judges reasons represent a thorough canvassing of the
history and nature of the easements, and his conclusions are well-supported.

The Scope of the Order

[33]

An easement involves use of land by both the owners of the dominant and
servient tenements. In order to accommodate such joint use, the rights of each are
subject to limitations. The easement itself will contain limitations as to its
extent and purpose. Beyond those limitations, the easement will be interpreted
as not allowing the owner of the dominant tenement to make use of the easement
beyond what is reasonable. Equally, the owner of the servient tenement must not
unreasonably interfere with the use of the easement by the dominant tenement.

[34]

The judge in this case was called upon both to construe the terms of the
easement and to decide whether certain uses of the dominant and servient
tenements were reasonable. In his original judgment, the judge construed the
easement as providing rights of way from Lower Road to the dominant tenements
and from the dominant tenements to the foreshore. He also made certain
determinations with respect to the use of the easement, particularly at paras. 50-56:

[50]      Ms. Brenner relies on the decision of the
Court of Appeal in

Duncan
v. Sherman
, 2006 BCCA 14 [
Duncan
] to support her contention that the
Easements only afford the owners of the dominant tenements access to their
properties at their respective driveways. In that case, the easement for the
benefit of the dominant tenancy provided that:

The Lot A Owner, as the registered
owner of Lot A, grants to the Lot B Owner, as the registered owner of Lot B,
for the benefit of and to be appurtenant to Lot B, for the use and enjoyment of
the Lot B Owner at any time and from time to time, the non-exclusive right,
liberty and easement to enter on, go across, pass and repass over and through,
with or without motor vehicles, the Lot A Easement Area for the purposes of
obtaining access to and egress from Lot B.

[51]

In

Duncan
the purchaser of Lot B agreed, by an
addendum to his contract of sale and purchase, to restrict his access to the
easement from only two locations along its length. In the result, at para. 17,
Madam Justice Levine held:

[17]       [A]s a matter of law,
as noted by the chambers judge,

Lewis v.
Wakeling
(in which the Ontario Court of Appeal relied on the principles
articulated by the English Court of Appeal in

Pettey
v. Parsons
, [1914] 2 Ch. 653), is authority for the principle that a
grantee of an easement is entitled to reasonable access to his property, not
access along the whole unfenced line. The Addendum provided for reasonable
access, and there is no reason not to enforce the agreement. The respondent is
not entitled to access to the easement at gate 2.

[52]

As no such
agreement exists between Ms. Brenner and the owners of the dominant
tenements, the case is of no assistance to Ms. Brenner. The intention of
the parties who agreed to the Easements was to afford the owners of the
dominant tenancies access from the Private Road not only to their properties,
but to the beach and waterfront as well.

[53]

That does
not mean, of course, that the owners of the dominant tenements can expect to
access their properties at all points along the Private Road, or that Ms. Brenner
cannot fence or plant hedges along the eastern boundary of her property, so
long as she affords that reasonable access from the Private Road to the
dominant tenements and to the beach and waterfront that were previously
enjoyed, or subsequently agreed to: see, for example,
Fisher v. Bosse
,
2006 BCSC 674.

[54]      However, it does mean that Ms. Brenner cannot
maintain uninterrupted hedges or fencing along the entirety of the eastern
boundary of her property or the wooden fence and locked gate to the south of
the driveway into Lot A, the large boulder, or significant landscaping and
planting on the Private Road that would prevent the passage of vehicular
traffic along the Private Road as far as the northern side of Stephens Creek.

[55]      I am not, however,
persuaded that the owners of the dominant tenements are entitled to park
vehicles on the Private Road or construct a bridge to permit vehicular traffic
to cross Stephens Creek. Such use to the south of Stephens Creek is contrary to
the topography and the vegetation in that area, which is necessary to reduce
the likelihood of further erosion of Ms. Brenners property above the tide
line.

[35]

These paragraphs appear to have led the parties to differing views as to
the proper form of order. Ms. Brenner, in particular, wished to have the
orders spell out specific points of access from the right of way to the
dominant tenements, and specific details with respect to the use of the
easement. The judge did not agree with her view. In his reasons settling the
order, he said:

[19]      In my view, the forms of orders proposed by Ms. Brenner
are a recipe for further unpleasantness between the litigants, and are
unnecessarily detailed. While I agree that the areas covered by the easements
should be set out in the orders, with some minor exceptions, it is unnecessary
to reiterate in the orders the rights afforded and duties required by the
easements.

[36]

The approach taken by the judge cannot be faulted. The case before him
was a broad-ranging one, touching on many nuances of the easements. He was
required to decide certain fundamental issues  whether the easement allowed
the respondents access to the foreshore, and whether the obstructions placed by
the appellant on the easement violated the respondents rights. The judges
order specifically addressed these issues.

[37]

The judge was entitled, as well, to determine whether particular actions
by the parties, and particular uses proposed by them, were reasonable in light
of the existence of the easement. He enjoyed considerable leeway in deciding
how far to go in this regard. The action before him did not touch on every
possible future scenario. He wisely refrained from making his order too
detailed, reasoning that doing so would increase the likelihood of future
disputes between the parties.

[38]

I am of the view, however, that the terms in which the order was settled
were not wholly appropriate. The easements are rights of way, and as such, they
only allow the respondents to use the servient tenement for the purpose of
passing from Lower Road to their lands, and from their lands to the foreshore.
The order, in stating that the respondents have free, full and uninterrupted
use of the servient tenement fails to recognize this limitation. Further, the
provision enjoining Ms. Brenner from restricting the free, full, and
uninterrupted use by the respondents of the whole of the Easement Area for
persons, animals and vehicles is inconsistent with the judges recognition
that Ms. Brenner is not prohibited from placing some fencing or hedging
along the eastern boundary of her property, provided that doing so does not
unreasonably restrict the respondents use of the right of way.

[39]

Given the unfortunate history of this matter, I am persuaded that it is
necessary to modify the formal order granted in the court below to ensure that it
does not have the effect of enlarging the respondents rights beyond what they
are entitled to as holders of a right of way granted by easement.

[40]

In the result, I would replace paragraphs 2 and 3 of the order in the
Birch
proceeding with the following:

2.         The Plaintiff Suzanne Birch is entitled, with or
without other persons, vehicles or animals, to use the Easement Area to pass:

a) from Lower Road to Lot A

b) from Lot A to Lower Road

c) from Lot A to the foreshore

d) from the foreshore to Lot A

and is entitled to authorize agents, servants, workers and
invitees to pass from and to the same points, with or without other persons,
vehicles, or animals.

3.         The Plaintiff Suzanne Birch does not have the right
to park vehicles on the Easement Area or to construct within the Easement Area
a bridge to permit vehicular traffic to cross Stephens Creek.

4.         Nothing in this order grants the Plaintiff Suzanne
Birch authority to use her right of way over the Easement area in an
unreasonable manner.

5.         The Defendant Robin
Brenner is enjoined from doing anything that restricts the ability of Plaintiff
Suzanne Birch or her agents, servants, workers and invitees to pass through the
Easement Area as set out in this Order.

[41]

The other paragraphs of the original order will have to be renumbered to
accommodate these changes.

[42]

I would replace paragraphs 2 and 3 of the order in the
Bakewell
proceeding with the following:

2.         The Defendant Ann Bakewell is entitled, with or
without other persons, vehicles or animals, to use the Easement Area to pass:

a) from Lower Road to Lot D

b) from Lot D to Lower Road

c) from Lot D to the foreshore

d) from the foreshore to Lot D

and is entitled to authorize agents, servants, workers and
invitees to pass from and to the same points, with or without other persons,
vehicles, or animals.

3.         The Defendant Ann Bakewell does not have the right
to park vehicles on the Easement Area or to construct within the Easement Area
a bridge to permit vehicular traffic to cross Stephens Creek.

4.         Nothing in this order grants the Defendant Ann
Bakewell authority to use her right of way over the Easement area in an
unreasonable manner.

5.         The Plaintiff Robin
Brenner is enjoined from doing anything that restricts the ability of the
Defendant Ann Bakewell or her agents, servants, workers and invitees to pass
through the Easement Area as set out in this Order.

[43]

Again, the succeeding paragraphs of the original order will have to be
renumbered.

[44]

I acknowledge that there remains potential for future disputes between
the parties surrounding what use of the right of way is reasonable. They also
may disagree on the extent of fencing and hedging Ms. Brenner may erect on
the eastern boundary of Lot 1 without restricting the ability of the
respondents to make use of their right of way. It is inappropriate, however,
for the order to resolve these matters, as they have not specifically been the
subject of the litigation. I am hopeful that the parties will be willing and
able to agree on such matters as necessary.

[45]

I am aware that there may also remain some uncertainty as to whether the
easement authorizes the use of vehicles on the portion of the easement lying
south of the north side of Stephens Creek. The judge was clearly aware of the
topography, and specifically found that the easement did not allow for the
construction of a bridge over the creek. He did not specifically deal with the
ability of the respondents to operate vehicles south of the creek (or, indeed, assuming
it is private property covered by the easement, through the creek). It seems
obvious from the evidence that conventional automobiles are wholly unsuited to
the topography, and that it would be difficult for any vehicle to traverse the
creek itself. The judge did not specifically address the question of whether
any vehicular traffic could use the area south of the creek to access the
foreshore. It seems to me that if such a question arises in future (something I
would think unlikely), a court would have to determine whether such access was
a reasonable use of the easement.

Costs

[46]

It does not appear that any order for costs has yet been made in the
Court below. I would not interfere with the discretion of the trial judge to
address the issue of costs if that remains outstanding.

[47]

With respect to costs in this Court, I am of the view that there has
been divided success on distinct issues. In such circumstances, it is open for
the court to award the more successful party a portion of their costs: Cowper-Smith
v. Morgan, 2016 BCCA 509. I am of the view that a fair order would be for the
appellant to pay 75% of the respondents costs.

Conclusion

[48]

In the result, the appeal is allowed only to the extent of modifying the
formal order entered in the court below as indicated in paras. 40-43 of
these reasons. The appeal is otherwise dismissed. The respondents are entitled
to 75% of their costs of the appeal on scale 1.

The
Honourable Mr. Justice Groberman

I AGREE:

The Honourable Mr. Justice
Goepel

I AGREE:

The Honourable
Madam Justice Fenlon


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Mehan,

2017 BCCA 21

Date: 20170116

Docket
Nos.: CA43036; CA43041

Docket:
CA43036

Between:

Regina

Respondent

And

Christopher Lloyd
Mehan

Appellant

- and -

Docket: CA43041

Between:

Regina

Respondent

And

Jeremy Albert
Stark

Appellant

Restriction on Publication: A publication ban has been imposed under
s. 486.5(1) of the
Criminal Code
restricting the publication,
broadcasting or transmission in any way of evidence that could identify a witness/undercover
officer referred to in this judgment as the Agent.
This publication ban
applies indefinitely unless otherwise ordered.

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice D. Smith

The Honourable Mr. Justice Groberman

On appeal from:  An
order of the Supreme Court of British Columbia, dated April 16, 2015 (
R. v.
Mehan
, New Westminster Docket No. X77681).

Counsel for the Appellant,
C. Mehan:

M. Peters

Counsel for the Appellant,
J. Stark:

H. Patey

Counsel for the Respondent:

J. Walker

Place and Date of Hearing:

Vancouver, British
  Columbia

September 30, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 16, 2017

Written Reasons by:

The Honourable Madam Justice D. Smith

Concurred in by:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Groberman

Summary:

Mr. Stark and Mr. Mehan
were convicted of conspiracy to import cocaine from California to British
Columbia, contrary to s. 465(1)(c) of the Criminal Code. Mr. Stark
also was convicted of conspiracy to traffic cocaine, contrary to s. 465(1)(c).
Both appeal their convictions on the basis that the trial judge erred in his
application of the Vukelich test, by declining to hold a voir dire in order to
determine whether Canadian law enforcement agents (the CFSEU) had breached
their s. 8 Charter rights. The CFSEU did not obtain a Part VI
authorization before receiving and reviewing email communications that were lawfully
intercepted by American law enforcement agents (the DEA) in California and
electronically transmitted to the CFSEU in near real-time. Mr. Mehan also
appeals his conviction on the basis that the trial judge erred in admitting evidence
of an inculpatory statement he provided to the police while he was impaired by drugs
and alcohol. Held: Appeals dismissed. The trial judge correctly held that a
voir dire was not required to determine the admissibility of lawfully-gathered
foreign evidence by the DEA that it voluntarily shared with the CFSEU as the Charter
does not apply in these circumstances. The DEA intercepted emails were not part
of the Canadian communication process. On the admissibility of Mr. Mehans
inculpatory statement, there was an evidentiary basis to support the judges
factual findings that the statement was voluntary and that Mr. Mehan had
knowingly waived his right to counsel.

Reasons for Judgment of the Honourable
Madam Justice D. Smith:

[1]

Jeremy Stark and Christopher Mehan were convicted by a judge sitting
with a jury of conspiracy to import cocaine from Los Angeles, California to British
Columbia, Canada at or near the cities of Surrey, Langley and Abbotsford,
contrary to s. 465(1)(c) of the
Criminal Code
(the
Code
). Mr. Stark
also was convicted of conspiracy to traffic cocaine, contrary to s. 465(1)(c).
He was sentenced to 13 years imprisonment. Mr. Mehan was sentenced to 10
years imprisonment. Both appeal their convictions.

[2]

For the reasons below, I would dismiss both appeals. In my view, the
trial judge correctly held that a
voir dire
was not required to determine
the admissibility of the communications that were lawfully intercepted by the
Drug Enforcement Agency at Los Angeles, California (the DEA) and shared
electronically with RCMP officers in the Combined Forces Special Enforcement
Unit at Delta, British Columbia (the CFSEU) in near real-time. The CFSEU receipt
and viewing of the foreign-gathered evidence was not, in my opinion, an
intercept of communications within the communication process as completed in
R. v. TELUS Communications Co.,
2013 SCC 16 [
TELUS
], so as to
engage Part VI of the
Code.
In these circumstances, the
Charter
does
not apply to the lawful actions of foreign law enforcement agencies.

[3]

I would also dismiss Mr. Mehans challenge to the voluntariness of
his post-arrest inculpatory statement to the police and to the validity of his waiver
of his right to counsel. There was, in my view, an evidentiary basis to support
the judges findings on both questions of fact.

Background

[4]

In January 2008, the United States and Canada were cooperating on parallel
investigations of cross-border illicit drug importation and trafficking from
the United States into Canada. The DEA had used a civilian agent (the Agent) to
communicate with a number of targets in its investigation. One of those targets
was Mr. Stark.

[5]

The DEA had learned from the Agent that Mr. Stark resided in Canada
and had travelled to California to communicate with the Agent for the purpose
of engaging in drug-trafficking activities. Those activities involved transporting
large-scale bulk currency and brokering cocaine transactions with various
suppliers for importation into Canada. The Agent also informed the DEA that Mr. Stark
communicated with him and others via email on a Blackberry device.

[6]

In May 2008, the DEA arranged for the Agent to distribute encrypted Blackberry
devices (the Devices) to the targets of the investigation. One of the Devices
was delivered to Mr. Stark at his business address in Langley, B.C.

[7]

The Devices were connected to a Blackberry Enterprise Service (the BES)
and an email server operated by the DEA (the DEA Server). The email domain name
associated with the DEA Server and the Devices was @goosebomb.com. Each of the Devices
had its own @goosebomb.com email address, which was stored on the DEA Server,
and each was configured to only send and receive emails. The Devices could not
be operated as telephones.

[8]

Between June 23, 2008 and February 25, 2009, the DEA obtained a series
of judicial authorizations to intercept the targets communications to and from
the Devices, including those of Mr. Stark. The appellants did not
challenge the validity of the DEA judicial authorizations.

[9]

The intercepted email communications were forwarded directly to the BES
and DEA Server, where they were stored. On July 15, 2008, the DEA began
forwarding Mr. Starks intercepted emails to an archived email address set
up by the CFSEU. The electronic transmission of those communications occurred
within seconds of their real-time receipt by the DEA Server.

[10]

During this period, Mr. Stark used his Device to communicate by
email with Mr. Mehan. At the time, Mr. Stark was resident in Langley
and Mr. Mehan was resident in Burnaby. Mr. Mehan was not a target of
the DEA investigation and therefore did not have one of the Devices. However,
his email communications to and from Mr. Stark were captured by the
interception of the communications to and from Mr. Starks Device. They in
turn were transmitted to the CFSEU by the DEA Server. This is how Mr. Mehans
involvement in the conspiracy came to the attention of the RCMP.

[11]

The DEAs interception of Mr. Starks and Mr. Mehans
communications led the Canadian Border Services Agency (the CBSA) to seize two
shipments of cocaine, which were being transported from the United States into
Canada. The first shipment was seized on December 20, 2008. It contained 121
kilograms of cocaine. The cocaine was discovered in a hidden compartment of the
cab of a tractor-trailer commercial vehicle. The intercepted communications
disclosed that 65 kilograms of the shipment were brokered by Mr. Stark.

[12]

The second shipment was seized on December 24, 2008. It contained 97
kilograms of cocaine, which were found with a cargo of bananas in a commercial
transport vehicle. The intercepted communications disclosed that: (1) Mr. Stark
had arranged the purchase and acquisition of the cocaine; (2) Mr. Mehan
had organized its transportation from Los Angeles into Canada; and (3) both had
arranged for the sale of 42 kilograms of cocaine from the shipment to local
buyers in British Columbia.

[13]

The DEA investigation was scheduled to end on February 22, 2009, however,
the CFSEU investigation was still ongoing at that time. The DEA agreed to loan
the CFSEU the DEA Server until the completion of its investigation. On February
23, 2009, the DEA Server was moved to the CFSEU Delta office.

[14]

On February 20, 2009, relying in part on the communications transmitted by
the DEA, the CFSEU obtained a Part VI authorization to intercept the email
communications of Mr. Stark to and from his then email address, baileys@goosebomb.com.
At the time, the CFSEU was investigating an extortion in Canada related to the 97
kilograms of cocaine seized by the CBSA at the Canadian border on December 24,
2008. The emails intercepted under the Part VI authorization also implicated Mr. Mehan,
who was using a personal email address. On April 21, 2009, the CFSEU obtained
another Part VI authorization to intercept email communications to and from Mr. Mehans
personal email address.

[15]

Most of the intercepted email communications admitted into evidence at
the appellants trial had been intercepted by the DEA. Those that were intercepted
by the CFSEUs Part VI authorizations were obtained after the conspiracy had
ended and were primarily relied upon to identify the appellants.

Mr. Mehans arrest

[16]

Mr. Mehan was not arrested until July 26, 2012, when Cst. Jones was
conducting a routine traffic stop. Mr. Mehan was a passenger in the stopped
vehicle. A computer check of its occupants disclosed an outstanding warrant for
Mr. Mehan for conspiracy to commit s. 465(1).

[17]

Cst. Jones arrested Mr. Mehan and informed him of the subject
matter of the outstanding warrant. He also gave Mr. Mehan his
Charter
rights
and warning, which Mr. Mehan said that he understood. Cst. Jones asked him
if he wished to speak with a lawyer, to which Mr. Mehan replied no.
While being transported to the police detachment, Mr. Mehan asked the
police officer if he was being arrested for the U.S. thing. Cst. Jones wrote
in his notes that Mr. Mehan was polite and cooperative throughout his
dealings with him. He did not observe Mr. Mehan exhibiting any symptoms of
impairment.

[18]

Cst. Tourangeau interviewed Mr. Mehan at the detachment. The
interview was videotaped and transcribed. Cst. Tourangeau had been involved in
the CFSEU investigation of Mr. Mehan in 2008 and 2009. In June 2009, she
was present during a search of Mr. Mehans residence. During the
interview, Cst. Tourangeau reviewed the circumstances of the charge against Mr. Mehan
for conspiracy to import cocaine. When she advised Mr. Mehan that the
arrest warrant was for conspiracy to import coke, he responded: I know what
youre talking about. Mr. Mehan also told Cst. Tourangeau that he remembered
her as one of the officers who was present during the search of his residence.
He said that he recalled she was nice and polite and that she had found him a
place to go to while the police executed the warrant and had made arrangements
for the care of his dogs. He also confirmed with Cst. Tourangeau that: (i) he
understood he could speak to a lawyer at any time; (ii) he did not have to talk
to her; (iii) she could not make him any promises; and (iv) anything he said
could be used as evidence.

[19]

Mr. Mehan challenged the admissibility of his statement to Cst.
Tourangeau because, in the three days preceding his arrest, he had been on an alcohol
and drug binge. He had consumed approximately 40 ounces of vodka, 1½ bottles of
red wine, three 80 milligram tablets of OxyContin and four grams of cocaine. During
the interview, Cst. Tourangeau did not detect any odour of alcohol emanating
from Mr. Mehan. She did note however that his speech was slurred, he was
mumbling, he was moving around a lot and he was constantly scratching his skin
and other body parts.

[20]

During the
voir dire
on the admissibility of his statement, Mr. Mehan
testified that while he remembered his arrest, he recalled nothing thereafter. He
stated that he knew the search of his residence in 2009 was related to the 2008
investigation by the DEA. He also stated that he knew, upon being arrested, he
did not have to answer questions asked by a police officer and that anything he
said to a police officer, or answers he gave to questions asked by a police
officer, could be used in evidence against him.

[21]

In addition to his own evidence, Mr. Mehan called several witnesses
on his behalf in the
voir dire.
His former wife testified that when he
visited her the day before his arrest, he was intoxicated by alcohol and drugs.
His neighbour, who was present at his arrest, described Mr. Mehan as
having blood shot eyes, slow and slurred speech, poor balance, and appeared to
be sleep deprived. Dr. Kennedy, a clinical pharmacologist and
toxicologist, provided opinion evidence about the effects of consumption of
alcohol and drugs. He opined that the amount of alcohol and drugs consumed by Mr. Mehan
before his arrest would have negatively impacted his speech, coordination,
cognitive abilities, judgment and ability to understand consequences.

Reasons for Judgment

A.       The appellants application for a
voir
dire
on the admissibility of the intercepted communications

[22]

In the court below, the threshold issue was whether the appellants had
met the legal test in
R. v. Vukelich,
[1996] 108 C.C.C. (3d) 193 (B.C.C.A)
for embarking on a
voir dire
with respect to the admissibility of the foreign-gathered
evidence from the email communications intercepted by the DEA.

[23]

The appellants had applied for a
voir dire
to cross-examine the
Canadian and American authorities about the scope of their investigation and to
assess the seriousness of the alleged s. 8
Charter
breach,
including whether the officers had acted in good or bad faith. The appellants
submitted that what occurred in this case amounted to an intercept of the private
communications of two Canadian residents during a communication process in
Canada. Based on
TELUS,
they submitted that their private communications
could only be received and reviewed by the CFSEU pursuant to a Part VI
authorization. Absent such an authorization, they said the actions of the CFSEU
were an unreasonable search and seizure, contrary to s. 8 of the
Charter,
and that the foreign-gathered evidence had to be excluded from the trial.

[24]

The judge disagreed. In his reasons, indexed at 2014 BCSC 2242, he concluded
that an evidentiary hearing was unnecessary to determine whether a s. 8
Charter
breach had occurred. In his view, such an inquiry would serve no purpose as:
(1) the underlying facts of the acquisition and transmission of the
communications were not in dispute; and (2) the law with respect to the
application of the
Charter
in foreign jurisdictions is settled. He
stated:

[12]      In the case at bar, the
defence seeks a
voir dire
to cross-examine Canadian and American
investigative authorities. However, this evidence is irrelevant to the issue of
whether there has been a breach of s. 8 of the
Charter.
Based on
the material the Crown has disclosed to the defence, all of the factual
information relevant to the s. 8 inquiry is before the Court on this
application. The proposed defence evidence would only be relevant to the
question of whether evidence gathered in violation of the accuseds
Charter
rights
should be excluded pursuant to s. 24(2). In other words, it is only if the
factual scenario in this case constitutes a breach of s. 8 of the
Charter
that a
voir dire
will be necessary.

[25]

The judge framed the threshold issue as whether the accused had
demonstrated that a
voir dire
is necessary and
would
assist the
court with the proper trial of real issues (emphasis added). He cited the
test from
Vukelich
that a judge need not embark upon an enquiry that
will
not
assist the proper trial of the real issues (emphasis added). He also referred
to
R. v. Pires,
2005 SCC 66, where the Court described the test as
requiring the applicant to show a reasonable likelihood that the hearing
can
assist in determining the issues before the court (emphasis added). As well, he
noted that in
R. v. Malik,
2002 BCSC 484, he had stated that the threshold
for embarking on an evidentiary hearing into an alleged
Charter
breach
is low and that the applicant need only demonstrate a reasonable basis upon
which the Court
could
find a breach of the
Charter
(emphasis
added). Last, the judge noted that in
R. v. McDonald,
2013 BCSC 314, Mr. Justice
Fitch (as he then was) had explained that the applicant had to demonstrate a
reasonable basis upon which the Court [
could]
find a breach of the
Charter
.

[26]

In this case, the judge concluded that the appellants had not
established that a
voir dire
[
would
] assist in the proper trial
of the real issues or a reasonable likelihood that the hearing
[could]
assist in determining the issues before the court for three main reasons.

[27]

First, he concluded that the effect of acceding to the appellants
submission would have been to apply the
Charter
extraterritorially to a
criminal investigation in a foreign state:

[29]       Once the
communications were intercepted by the DEA Blackberry server in Los Angeles,
they became foreign obtained evidence. The fact that they were shared
contemporaneously with the CFSEU in Vancouver does not alter the nature of this
evidence. Thus, the viewing of the previously intercepted communications is not
an intercept, but rather the viewing of previously intercepted communications.
The CFSEU was not required to obtain Part VI authorization to view the
communications disclosed by the DEA, as pursuant to settled legal principles,
Canadian law does not apply to foreign obtained evidence. There was thus no
unlawful search, as s. 8 of the
Charter
does not apply
.

[28]

He held that it is settled law that Canada has no jurisdiction to
enforce the
Charter
abroad:
R. v. Harrer,
[1995] 3 S.C.R. 562;
R.
v. Terry,
[1996] 2 S.C.R. 207;
R. v. Hape,
2007 SCC 26; and
R. v.
Tan,
2014 BCCA 9. He noted that the rules of international law generally
bear on the interpretation of legislation, in this case the interpretation of
intercept under s. 183, absent ambiguous language. To interpret the term
intercept as applying to the circumstances of this case, and to require a
Part VI authorization before Canadian authorities can receive and review the
transmitted communications, in his view, would have the effect of imposing
Canadian judicial scrutiny to the DEAs decision to contemporaneously relay the
intercepted communications to the Canadian authorities. Imposing such judicial
scrutiny would run counter to the approach adopted in
Terry
and
Hape.

[29]

Second, he held that cooperation between Canadian peace officers and
foreign law enforcement agencies does not change the fact that the
Charter
is
not enforceable in foreign jurisdictions because of the principle of comity
between foreign states: see
Hape
at para. 52 and
Harrer
at para. 15.

[30]

Third, he held that there was no principled reason to distinguish the
circumstances of this case with the circumstances in
Wakeling v. United
States of America,
2014 SCC 72, an extradition case in which the RCMP
lawfully intercepted communications disclosing a plot to transport drugs from
Canada into the United States. In
Wakeling
, the Court held that the
disclosure of lawfully intercepted communications by the RCMP to a foreign investigative
agency pursuant to s. 193(2)(e) of the
Code
was not a search in
the context of s. 8 of the
Charter
but simply the communication to
a third party of previously acquired information (para. 34
per
Moldaver
J. for the plurality). Although, in this case, the disclosure of the lawfully
intercepted communication was by the American DEA to the Canadian CFSEU, the
communication disclosed was previously acquired information, like the
information disclosed in
Wakeling
.

[31]

On appeal, Mr. Mehan submits the trial judge erred in framing and
applying the
Vukelich
test. Both appellants say that the judge erred in
declining to embark on a
voir dire
to determine whether the CFSEU
breached their
Charter
rights by not obtaining a Part VI authorization
before receiving and reviewing the intercepted email communications.

B.       The
admissibility of Mr. Mehans post-arrest statement

[32]

Before the trial judge, Mr. Mehan submitted that the Crown had
failed to establish beyond a reasonable doubt that his post-arrest statement to
Cst. Tourangeau was voluntary because he was intoxicated immediately prior to
his arrest and at the time he gave his statement. He argued that his state of
intoxication had negatively impacted his cognitive capacity to understand the
nature of his rights and the consequences of speaking to Cst. Tourangeau
without having consulted with counsel. He also submitted that his ss. 10(a)
and (b)
Charter
rights to be informed promptly of the reasons for his
arrest, to be advised of his right to counsel, and to have the opportunity to
retain and instruct counsel without delay, were violated. With respect to his
s. 10(b) right, he contended that he did not have the capacity to
understand or appreciate the consequences of his decision to waive his right to
counsel before speaking with Cst. Tourangeau.

The voluntariness of the statement

[33]

The judge referred to the test set out in
R. v. Oickle,
2000 SCC
38 at paras. 69 and 71, to determine whether Mr. Mehans statement
was voluntary. That test requires the Crown to establish beyond a reasonable
doubt that: (1) no threats or promises were made to the accused; (2) the
statement was not taken in an atmosphere of oppression; (3) the accused had an
operating mind; and (4) the statement was not induced by police trickery that
would shock the community.

[34]

With respect to whether Mr. Mehan had an operating mind when he
gave his statement, the judge referred to
Oickle
(at para. 69),
which sets out criteria that: (1) the accused understands what he or she was
saying; and (2) that he or she understands that their evidence could be used in
proceedings against them.

[35]

The judge found that Mr. Mehan had reduced cognitive capacity due
to his consumption of alcohol and drugs immediately before his interview with
Cst. Tourangeau. However, he was satisfied beyond a reasonable doubt that Mr. Mehan
had an operating mind during the interview, based on his recollection of what
had occurred during the search of his residence in 2009, his understanding of
his rights, his responsive answers to the questions put to him, and his
understanding of his right to silence and of the judicial process. No appeal is
taken from this finding.

[36]

The judge also found that Cst. Tourangeau did not engage in police
trickery when she took his statement. Mr. Mehan appeals this finding
principally because the judge dismissed his submission on this point simply
because it was totally without merit at para. 24: 2015 BCSC 522.

Right to be informed of and waiver of right to counsel

[37]

The judge referred to the test in
R. v. Evans,
[1991] 1 S.C.R.
869 to address Mr. Mehans right to be advised of the reason for his
arrest, as well as the test in
R. v. Smith,
[1991] 1 S.C.R. 714 at
728-9, to address the validity of his waiver of his right to counsel. He
concluded that Mr. Mehan had been properly advised of the reason for his
arrest and that he had provided a clear and unequivocal waiver of his right to
counsel:

[32]      The police fully
complied with their obligations under the
Charter
upon and after the
arrest of Mr. Mehan. The arresting officer was acting on an outstanding
warrant for the arrest of Mr. Mehan and informed him the charges were for
conspiracy, without further particulars. Mr. Mehan revealed his belief
that the offence was related to the United States DEA investigation, later
confirmed by Cst. Tourangeau and Mr. Mehan himself. The video and
transcript between Cst. Tourangeau and Mr. Mehan at the commencement of
the interview suggest Mr. Mehans waiver of his right to counsel was clear
and unequivocal. While it may not have been a good or a wise choice for Mr. Mehan
to waive his right to counsel, I am satisfied that it was an informed choice. (2015
BCSC 522.)

[38]

On appeal, Mr. Mehan submits that the judge erred by failing to
substantially address the requirements that Mr. Mehan understood his jeopardy
and had an awareness of the consequences when he waived his right to counsel.

Discussion

A.       Admissibility of intercepted communications

[39]

Mr. Mehan contends that the judge erred in law in his articulation
of the
Vukelich
test. Both appellants submit that he erred in his
application of that test by declining to hold a
voir dire
for the
purpose of determining whether the CFSEU had breached their s. 8
Charter
rights by not obtaining a Part VI authorization before receiving and reviewing
the intercepted communications.

[40]

With respect to the judges application of the
Vukelich
test, the
appellants allege two errors. First, they submit the near-contemporaneous speed
with which the intercepted communications were shared, effectively meant they were
captured by the Canadian communication process when they were received and
viewed by the CFSEU in Canada. In these circumstances, they say,
TELUS
required
the CFSEU to obtain a Part VI authorization before it could receive and review
those communications.

[41]

Second, the appellants submit the judge erred in applying the reasoning in
Wakeling
to the circumstances of this case. They say the principle of
comity does not permit a Canadian investigative agency, operating in Canada, to
avoid obtaining the proper legal authorization before receiving and viewing the
private communications of Canadian residents, in Canada, from a foreign state.

[42]

In my view, the second issue is subsumed in the first issue. If the CFSEUs
receipt and review of the DEA-intercepted communications was within the
Canadian communication process it would have required a Part VI authorization,
absent which, the appellants s. 8
Charter
rights were violated.
If, however, the receipt and review of the DEA-intercepted communications remained
within the U.S. communication process, the principle of comity does not permit
the
Charter
to apply to the lawfully-gathered evidence of a foreign
state.

1.       The
Vukelich
test

[43]

The test for the discretionary decision to engage in a
voir dire
was
set out in
Vukelich.
Writing for the Court, Chief Justice McEachern stated:

[25]       In
Hamill
[
R. v. Hamill
(1984), 14
C.C.C. (3d) 338 (B.C.C.A.)], Esson J.A., at pp. 366-7 said this:

In those cases where the accused does apply to exclude the
evidence, it will be for the trial judge to decide what procedure should be
followed but, at the least, counsel for the accused should be required to state
with reasonable particularity the ground upon which the application for
exclusion is made. That much is essential for an orderly trial of the issue. It
follows that, if the statement of grounds does not disclose a basis upon which
the court
could
make an order excluding the evidence, the application
may be dismissed without hearing evidence.

[26]      Based on these authorities, it does not follow that
an accused is always entitled as of right to a
voir dire
in the course
of a criminal trial in order to challenge the constitutionality of a search.
The trial judge must control the course of the proceedings, and he or she need
not embark upon an enquiry that
will not assist the proper trial of the real
issues
.

[Emphasis added.]

[44]

Mr. Mehan contends that the judges interchangeable use of the
words would assist, will assist and can assist to the reasonable
likelihood that the remedy sought could be granted, as articulated by Esson
J.A. in
Hamill,
resulted in the application of the wrong test for dismissing
the appellants application for a
voir dire.
I do not agree.

[45]

The judge used the word would when he first identified the
Vukelich
test in para. 9 of his reasons (cited in para. 25 above). Mr. Mehan
submits would incorrectly raises the threshold standard for a
Vukelich
hearing
.
The judge then quoted para. 26 of
Vukelich,
which framed the
test as whether such an inquiry
will assist
the trial judge in a proper
trial of the real issues. The judge also referred to
Pires
where the
Supreme Court described the test as whether a party could show a reasonable
likelihood that a hearing
can assist
 in determining the issues before
the court. As well, the judge noted the decisions in
Malik
and
McDonald
where the respective trial judges used the word could in their
articulation of the test.

[46]

The language used in the above articulations of the
Vukelich
test
varies. The Supreme Court used the can assist standard in
Pires.
I am
satisfied the would standard initially stated by the judge falls within the
range of these various articulations of the test for an inquiry into the
admissibility of evidence.

[47]

The significance of a
Vukelich
hearing is to determine the
relevance of the proposed evidence to the issues at trial. The judge recognized
that the threshold is a low one. However, as a matter of law, he found there
was no evidentiary basis to advance a claim of a s. 8
Charter
breach,
and therefore, the inquiry was irrelevant to the determination of the issues at
trial.

[48]

I find no error in the judges articulation of the
Vukelich
test.

2.       The Application of the
Vukelich
test

[49]

It is common ground that there is no absolute right to a
voir dire
where
a
Charter
right is alleged to have been violated:
R. v. Bains,
2010
BCCA 178 at para. 69. A judge may exercise his or her discretion to
decline to hold an evidentiary hearing if there is no demonstrated remedy
available:
R. v. Mastronardi,
2015 BCCA 338 at para. 63. An
evidentiary hearing is a discretionary order that is case-specific and highly
contextual:
McDonald
at para. 21.

[50]

The single issue was whether the process by which the CFSEU received and
viewed the appellants communications constituted an interceptas defined in
s. 183 of the
Code
of communications that were acquired from a
communication process in Canada. The appellants submitted that it was and said
that absent a Part VI authorization, their communications should have been
excluded from the trial pursuant to s. 24 (2) of the
Charter.

[51]

Section 183 of the
Code
defines intercept as includ[ing]
listen to, record or acquire a communication or acquire the substance, meaning
or purport thereof. The CFSEU review of the intercepted communications initially
seems to fall within this broad definition. However, the context in which the private
communications were acquired informs the meaning and scope of this provision:
TELUS
at paras. 18-19.

[52]

The context in this case is provided by the jurisdiction in which the
interception was authorized and undertaken. The search of the appellants
communications was authorized by a Californian court. It concerned criminal
activities that had occurred in that state. It was undertaken by the DEA, an
American law enforcement agency, in Los Angeles. The DEA Server that
intercepted the appellants communications was located in Los Angeles. In
short, all of the evidence obtained in the U.S. investigation of the
appellants criminal activities in California was gathered in the U.S. The fact
that the appellants were residents of Canada, and that their intercepted email communications
occurred in Canada, did not convert the U.S. investigation into a Canadian
investigation. Only when the U.S. investigation was completed, did the DEA loan
its server to the CFSEU.

[53]

The appellants contend that the CFSEUs actions in the Canadian
investigation and prosecution brought the interceptions within the Canadian
communication process. Their submission relies on the near-contemporaneous speed
with which the DEA transmitted the appellants communications to the CFSEU. However,
the timing of the transmissions alone cannot convert the U.S. interception into
a Canadian interception. There is, in my view, no principled distinction to be
made between the pony express delivering the DEA-intercepted communications to
the CFSEU and the almost simultaneous delivery by electronic transmission that
occurred in this case. The appellants communications were still captured and
stored, however briefly, on the DEA Server before being shared with the CFSEU.
In these circumstances, the subsequent actions of the CFSEU, in receiving and
reviewing the communications, occurred outside the Canadian communication
process and therefore
TELUS
does not apply.

[54]

It is common ground that the
Charter
does not apply to actions of
foreign law enforcement agencies with respect to the investigative techniques
or procedures they use to obtain evidence in their jurisdictions, so long as
they are not acting as agents of the Canadian authorities, and the manner in
which they obtained the evidence would not render the trial unfair (e.g.,
torture):
Harrer
at paras. 11-12 and
Hape
at para. 113.
Nor does the
Charter
govern the actions of foreign law enforcement
agencies that choose to cooperate with Canadian law enforcement agencies on an
informal basis:
Terry
at para. 19. McLachlin J. (as she then was), noted
in
Terry
:

19         any cooperative
investigation involving law enforcement agencies of Canada and the United
States will be governed by the laws of the jurisdiction in which the activity
is undertaken

[55]

Similarly in
Hape,
the Court held that the
Charter
did not
apply to searches and seizures in other jurisdictions. In that case, the RCMP
suspected that the accused Canadian was money laundering through his investment
company in the Turks and Caicos Islands. The Islands authorities permitted the
RCMP to continue their investigation on the Islands under the authority of the
Islands police. Corporate records and other evidence incriminating the accused
were obtained without a warrant, which was not required in that jurisdiction.
The accused objected to the admissibility of that evidence at trial. However, the
trial judge held that the
Charter
did not apply to foreign-gathered
evidence and convicted the accused. His conviction was upheld on appeal to the
Supreme Court, where Mr. Justice Lebel, for the majority wrote:

[87]      The theoretical and
practical impediments to extraterritorial application of the
Charter
can
thus be seen more clearly whether the s. 8 guarantee against unreasonable
search and seizure is in issue than where the issue relates, as in cases
discussed above, to the right to counsel. Searches and seizures, because of
their coerciveness and intrusiveness, are by nature vastly different from
police interrogations. The power to invade the private sphere of persons and
property, and seize personal items and information, is paradigmatic of state
sovereignty. These actions can be authorized only by the territorial state.
From a theoretical standpoint, the
Charter
cannot be applied, because
its application would necessarily entail and exercise of the enforcement
jurisdiction that lies at the heart of territoriality. As a result of the
principles of sovereign equality, non-intervention and comity, Canadian law and
standards cannot apply to searches and seizures conducted in another states
territory.

[56]

The decision in
R. v. Della Penna,
2012 BCCA 3,

offers
additional insight into this issue. There, lawfully obtained information from a
U.S. interception of a telephone conversation, placed by the Canadian accused,
in Canada, to a civilian agent of the DEA in the state of Washington, was
shared with Canadian police. The Canadian police relied on the information to
obtain a Part VI authorization in the Canadian prosecution of the accused for importing
and trafficking drugs into Canada. The trial judge excised the information from
the affidavit in support of the application, which ultimately resulted in the
accuseds acquittal. On appeal, this Court set aside the acquittal and ordered
a new trial, finding that the judge erred in law by excising admissible
evidence from the affidavit. Writing for the Court, Mr. Justice Hall held that
Hape
is conclusive in favour of the admissibility of the contents of
the telephone conversation (at paras. 45 and 48).

[57]

Cooperation between law enforcement agencies in different jurisdictions
is common for combatting transnational crime, including illicit drug importation
and trafficking. Cooperation between jurisdictions to address international
criminal activity has been recognized by the Supreme Court as a necessary and
effective feature of multi-jurisdictional investigations:
United States of
America v. Cotroni,
[1989] 1 S.C.R. 1469 at 1485;
Hape
at para. 98;
and
Wakeling
at paras. 1 and 57. As Moldaver J. observed in
Wakeling
:

[57]       Multi-jurisdictional
cooperation between law enforcement authorities furthers the administration of
justice in
all
of the jurisdictions involved. It must not be forgotten
that Canada is often on the
receiving
end of valuable information from
foreign law enforcement authorities.  [Emphasis added by Moldaver J.].

[58]

Based on the undisputed underlying facts and the above jurisprudence, in
my view, the judge did not err in finding there was no evidentiary or legal
basis that required him to embark on a
voir dire
to determine the
admissibility of the intercepted communications. Those communications were disclosed
by the DEA to the CFSEU in cooperation and in the context of an investigation
into organized crime. The CFSEU relied on the communications to investigate the
appellants in Canada. A
voir dire
would not have assisted the court in
determining the real issues as the
Charter
was not applicable in these
circumstances. The evidence was properly admitted at trial.

B.       The
Admissibility of Mr. Mehans Post-Arrest Statement

[59]

Mr. Mehan contends that the judge erred in finding that his statement
was voluntary because he failed to sufficiently address the claim that it was
obtained by police trickery. He does not challenge the judges finding that he
had an operating mind despite being intoxicated when he gave the statement;
rather, he submits that Cst. Tourangeau engaged in trickery by taking advantage
of his intoxicated state to obtain a statement that included privileged
communications with his lawyer that he would never otherwise have provided.

[60]

A finding that a statement is voluntary beyond a reasonable doubt is a
finding of fact, or mixed fact and law. If the trial judge applies the correct
legal test, an appellate court cannot interfere with the weight the trial judge
gives to the various pieces of evidence:
Oickle
at para. 22.

[61]

When addressing an allegation of police trickery in obtaining an
accuseds statement, the court is not concerned as much with the reliability of
the statement as it is in maintaining the integrity of the criminal justice
system:
Oickle
at para. 65. In
Oickle
, quoting from
Rothman
v. The Queen,
[1981] 1 S.C.R. 640, Iacobucci J.

noted that police
trickery is difficult to establish:

66         courts should be wary not to unduly limit police
discretion

[T]he 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
.

As examples of what might shock
the community Lamer J. suggested a police officer pretending to be a chaplain
or a legal aid lawyer, or injecting truth serum into a diabetic under the
pretense that it was insulin [Emphasis added by Iacobucci J.] [Citations
omitted.]

[62]

Mr. Mehan does not suggest the judge applied the wrong legal test.
Rather, he takes issue with how the judge weighed the evidence because he says
the judge failed to consider that the police took advantage of his condition
to obtain a statement.

[63]

Cst. Tourangeaus conduct during the interview was exemplary. She was
polite throughout the interview. At no time did Mr. Mehan indicate that he
was in any distress. It is also difficult to see how the officer took advantage
of Mr. Mehans intoxicated state as alleged, when he was found to have had
an operating mind throughout the interview. There is nothing apparent with the
manner in which Cst. Tourangeau conducted the interview that would have shocked
the community. With respect, I find no error in the trial judges summary
dismissal of this claim.

[64]

Mr. Mehan further submits the judge erred in the legal test he
applied to the issue of whether he had waived his right to counsel.

[65]

The judge relied on the legal test set out in
R. v. Smith,
[1991]
1 S.C.R. 714 to determine this issue. In
Smith,
the court set out the
test as follows:

In Canada, we have adopted a
different approach [from that in the U.S]. We take the view that the accuseds
understanding of his situation is relevant to whether he has made a valid and
informed waiver. This approach is mandated by s. 10(a) of the
Charter,
which
gives the detainee the right to be promptly advised of the reasons for his
detention. It is exemplified by three related concepts: (1) the tainting of a
warning as to the right to counsel by lack of information; (2) the idea that
one is entitled to know the extent of ones jeopardy; and (3) the concept of
awareness of the consequences developed in the context of waiver (at 726-7).

[66]

Tainting is the failure to advise a detainee of critical information
pertaining to his or her detention or arrest, such as the death of the victim:
R.
v. Greffe,
[1990] 1 S.C.R. 755. The police advised Mr. Mehan of the critical
information with respect to his detention, which he appeared to already know. Knowledge
of the extent of his jeopardy required the police to advise Mr. Mehan
generally of the reason for his arrest. They were not required to provide a
detailed account of all of the circumstances of the alleged offences or the
precise charge(s) he was facing. Again, however, it is clear that Mr. Mehan
understood that he was being arrested for his involvement in the 2008 offences
in California. Indeed, he confirmed with Cst. Tourangeau that he knew what she
was talking about when she was reviewing some of the circumstances of the
offence with him.

[67]

Mr. Mehan also had to have been aware of the consequences of his
waiver for it to have been valid. The degree of his awareness of the
consequences of his waiver of the right to counsel only needed to be general and
could reasonably have been assumed in all of the circumstances (
Smith
at
pp. 728-9). The circumstances included his confirmation with Cst.
Tourangeau that: (i) he understood he could speak to a lawyer at any time; (ii)
he did not have to talk to her; (iii) she could not make him any promises; and
(iv) anything he said could be used as evidence.

[68]

The Court in
Smith
ultimately concluded:

What is required is that he or
she be possessed of sufficient information to allow making an informed and
appropriate decision as to whether to speak to a lawyer or not. The emphasis
should be on the reality of the total situation as it impacts on the
understanding of the accused, rather than on technical detail of what the
accused may or may not have been told (at p. 729).

[69]

In my view, the judges findings at para. 32 of his reasons
(reproduced in para. 37 above) canvass each of these elements. Mr. Mehan
clearly understood his
Charter
rights. Based on the judges finding that
Mr. Mehans waiver was clear and unequivocal at the commencement of the
interview, and his expressed understanding of the nature of the charges he was
facing, it was open to the judge to reasonably assume he was aware of the
consequences of waiving his right to counsel and his decision to do so was
informed.

[70]

For these reasons, I would dismiss the appeals.

The
Honourable Madam Justice D. Smith

I AGREE:

The Honourable Madam Justice
Saunders

I AGREE:

The Honourable Mr. Justice
Groberman


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Leung v. Yung,

2017 BCCA 35

Date: 20170117

Docket:
CA43278

Between:

Tsui Yu Leung

Appellant

(Claimant)

And

Kapo Yung also
known as Ka Po Yung
and Menno Leendert Vos

Respondents

(Respondents)

Corrected
Judgment: The front cover was corrected on February 14, 2017.

Before:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Harris

The Honourable Madam Justice Dickson

On appeal from: An order
of the Supreme Court of British Columbia, dated
October 29, 2015 (
Leung v. Yung
, 2015 BCSC 2434, Vancouver Registry
E120389).

Oral Reasons for Judgment

The Appellant appeared in person:

T.Y. Leung

Counsel for the Respondent, Menno Leendert Vos:

J.W. Bilawich

Place and Date of Hearing:

Vancouver, British
  Columbia

January 17, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 17, 2017

Summary:

Ms. Leung appealed a
decision concluding that a judgment registered against property alleged to be
family property had priority over any interest she may have had in the property
because the judgment was registered before her interest arose, but in any
event, the judgment was a family debt to be taken into account in the
apportionment of property between the spouses.  Appeal dismissed.
The judge applied the correct principles to the facts.

[1]

HARRIS J.A.
:  Ms. Leung appeals from an order in a family
action which dismissed her claim to an interest related to two properties in
British Columbia. Her claim was made under the
Family Relations Act
, R.S.B.C.
1996, c. 128 [the
Act
]. Ms. Leung claimed the properties were
family assets in which she had an interest under that
Act
.

[2]

The first claim was to 50% of the net proceeds paid into court from the
sale of a leasehold property in Richmond which was registered in the name of Mr. Yung,
her former husband. The leasehold interest had originally been in the name of Ms. Leung,
although purchased by Mr. Yung, and was transferred back to her husband for
$1 in 2001, the day before she was declared bankrupt in Hong Kong. The second
claim was to a 50 percent interest in a condominium property in Vancouver,
which is registered in the name of Mr. Yung, but which she occupied at the
time of the application, with the two adult children of the marriage.

[3]

The trial judge summarized the proceedings as follows (paras. 2‑6):

Ms. Leungs original notice of family claim was filed in
February 2012 in which she sought relief under the
Family Relations Act
,
R.S.B.C. 1996, c. 128. Her amended family claim in February 2012 was
also under the
Family Relations Act
, as was her further amended family
claim of May 27, 2013.

Her second further amended notice of family claim filed
June 25, 2015 appears to seek relief under the
Family Law Act
,
S.B.C. 2011, c. 25.

Mr. Yung filed a response to the amended claim in which
he opposed Ms. Leung's property claims for an equal division, and
counterclaimed for an unequal division of family property and debts under the
Family
Relations Act
.

Ms. Leung did not respond to the counterclaim.

Dr. Vos was added as a
respondent to the action by court order and opposed the property claim sought
by Ms. Leung.

[4]

Complicating the application was the fact that Dr. Vos is a
judgment creditor of Mr. Yung for a large amount of money that
significantly exceeds the value of the money in court and the condominium. He
claimed to be entitled to payment out of the remaining moneys in court and to
priority over any interest of Ms. Leung in the condominium because he had
registered both a certificate of pending litigation against the condominium properties
and a BC judgment enforcing a Hong Kong judgment against Mr. Yung before
the order of divorce was made. Dr. Vos also has a judgment against Ms. Leung
in the same Hong Kong proceedings, though that judgment is irrelevant to the
appeal and to the judgment below. The judge summarized the situation (paras. 38‑40):

On June 14, 2012 this court made an order that Mr. Yung
pay Dr. Vos the equivalent of the Hong Kong judgment, namely approximately
$1.2 million, ongoing interest at the Hong Kong statutory rate, and costs
to be assessed.

On June 15, 2012 Dr. Vos registered a British
Columbia judgment against both of the BC properties and in February 2012 Ms. Leung
filed a notice of family claim in this action. The property claims are made
under the
Family Relations Act
.

As I mentioned, on June 9,
2015 a final order for the divorce of Ms. Leung to Mr. Yung was
entered and the divorce was obtained without notice to Dr. Vos.

[5]

It is not necessary to recite the complicated history of Dr. Voss
efforts to enforce his judgment and Ms. Leungs and Mr. Yungs
efforts to frustrate him. It is sufficient to note that the judgment below
rested on two grounds.

[6]

First, the judge found that any interest Ms. Leung had in the two
properties arose only on the triggering event of the divorce order under s. 56
of the
FRA
. By that time, Dr. Vos had registered his judgment
against the properties. As a result, his interest had priority over Ms. Leungs.
The judge must be taken to have found that Ms. Leung did not establish any
interest in the properties pre-existing the triggering event.

[7]

Second, the judge found that the judgment owed by Mr. Yung to Dr. Vos
was a family debt. The judge rested this conclusion on his analysis of the Hong
Kong judgment which he observed had found that Ms. Leung and Mr. Yung
were involved together in certain of the activities which were found to be
wrongs against Dr. Vos; activities for which it is clear that the two were
seeking a joint benefit. The liabilities have been found and determined against
both for their respective roles in the same general set of wrongful activities.

[8]

Based on this finding and Mr. Yungs counterclaim to reapportion
family debt, any interest Ms. Leung had in the properties, assuming they
were family assets, was subject to a reapportionment of the family debt between
husband and wife. The effect of the reapportionment was again to give Dr. Vos
a priority over Ms. Leungs interest, if any, based on Dr. Voss
judgment against Mr. Yung. This conclusion is stated a para. 49 and 50
of the reasons:

To the extent that the Vancouver property and the monies
related to the sale of the Richmond property are family assets, the fair
allocation of the debt owed to Dr. Vos by Mr. Yung is to allocate the
debt over the interests Ms. Leung holds in the monies and property. I
would say the same for the debt which Ms. Leung identifies in her claim
against Mr. Yung. I find this having taken into consideration the factors
set out in section 65 of the
Family Relations Act
. In this regard I
have considered the duration of the marriage, which was fourteen years
according to Ms. Leung, that the Richmond property was acquired and paid
for by Mr. Yung in 1989, registered in Ms. Leung's name and
transferred by Ms. Leung into Mr. Yungs name for $1. The Vancouver
property it appears was bought by Mr. Yung in 1997. I have also considered
the needs of Ms. Leung, who volunteers for many community organizations
but has not sought remunerative employment. I note she funded the purchase of
properties in Blaine and sole trustee of the trust that holds them.

I also considered the liabilities
of the spouses and the results and findings in the Hong Kong litigation and
reasons for judgment, particularly in regards to the involvement of Mr. Yung
and Ms. Leung in those activities as described in the judgment.

[9]

It should be noted that the judges conclusions were not based on any
direct liability Ms. Leung may have to Dr. Vos arising out of the
Hong Kong judgment. In other words, it is not based on the default judgment
taken against Ms. Leung in Hong Kong, contrary to the apparent assumption
she makes in this appeal.

[10]

In my opinion, the judge did not err in his analysis of either ground
supporting his order, either one of which is sufficient to support the result
he reached.

[11]

It is not necessary, in my view, at this point to set out in any further
detail the factual circumstances and procedural history leading to the current
appeal. They are set out in the judgment indexed at 2015 BCSC 2434. What is
apparent is that the appellant does not appreciate the basis on which the judge
ruled against her. She alleges 31 errors in judgment, some of which simply
attempt to reargue the facts or rest on a misapprehension of the basis of the
judgment.

[12]

In my view, the judges conclusions about the facts underlying his
judgment are supported by the evidence. There is no basis on which we are
entitled to interfere with them. He recognized and referred to the absence of
cogent evidence concerning the status of the BC properties as family assets
before separation. He properly noted the circumstances surrounding the transfer
of the Richmond property as it related to legal proceedings in Hong Kong. He
referred to and properly relied on the Hong Kong judgment which underlay the BC
judgment against Mr. Yung. The judge gave proper effect to Dr. Voss
judgment against Mr. Yung and its registration against the properties in
issue before Ms. Leung established any interest in them. He also
considered and relied on Mr. Yungs counterclaim against his wife, which
was not opposed by her.

[13]

Accordingly, and substantially for the reasons of the trial judge, I
would dismiss the appeal.

[14]

I have reached this conclusion without considering the application to
adduce fresh evidence or the application that was brought by Ms. Leung today. Dr. Vos
in his factum lays out the tangled procedural history of his efforts to enforce
his judgment against Dr. Yung, and Dr. Yung and Ms. Leungs
efforts to frustrate those efforts. That history lays a foundation for a
reasonable inference that this family action is an attempt to continue to
frustrate those efforts. The fresh evidence purports to demonstrate that this
action and appeal is an abuse of process and that the appeal should be
dismissed on that basis with special costs to Dr. Vos.

[15]

This family action is premised on the separation of the spouses and
their subsequent divorce. The divorce was granted by desk order in June 2015 in
part on Mr. Yungs affirmation that he and Ms. Yeung had lived
separate and apart since 2003 and that he was not part of a conspiracy or an
agreement to subvert the administration of justice or suppress or fabricate
evidence. The fresh evidence consists of text messages in which Mr. Yung
apparently acknowledges that in September 2015 he and Ms. Yeung were in a
spousal relationship and that this appeal was his appeal in which he sought
to recover his property. The evidence lays a foundation possibly to conclude
that there has been collusion between Ms. Yeung and Mr. Yung in
relation to these proceedings. The evidence has not been answered or explained
either by Ms. Yeung or Mr. Yung, although an application was brought
before us today which addresses some of the issues and challenges of some of
the conclusions that were in the application for fresh evidence. It may be that
there is some explanation for what the text messages suggest, but if there is,
it is not before us.

[16]

I have concluded that we are not in a position to make the findings of
fact requested by Dr. Vos. This is particularly so in relation to the
suggestion that the proceedings in the Supreme Court are an abuse of process.
In my view, the question whether there has been an abuse of process should be
referred back to the Supreme Court. I would adjourn the application for special
costs in this Court until findings of fact about whether this action is an
abuse of process have been made by the Supreme Court.

[17]

In addition to dismissing the appeal, I would order payment of the
security for costs posted by the appellant to be paid forthwith to the
solicitors for Dr. Vos in trust.

[18]

LOWRY J.A.
:  I agree.

[19]

DICKSON J.A.
:  I agree.

[20]

LOWRY J.A
.: There will be an order accordingly.

The Honourable Mr. Justice Harris