COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Saugestad
          v. Saugestad,

2008
          BCCA 38

Date: 20080125

Docket: CA034716

Between:

Joan
    Saugestad

Appellant

(
Plaintiff
)

And

Carl
    Nicholas Saugestad and Stephen Saugestad, personally and in their capacity
    as Executors of the Will of Ragnar Saugestad, Deceased

Respondents

(
Defendants
)

Before:

The
          Honourable Mr. Justice Hall

The
          Honourable Mr. Justice Mackenzie

The
          Honourable Mr. Justice Chiasson

D.F.
          McEwen, Q.C. and
A.S. MacKay

Counsel for the Appellant

H.H.
          Low

Counsel for the Respondents

Place
          and Date of Hearing:

Vancouver, British Columbia

20 November 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

25 January 2008

Written
          Reasons by
:

The
          Honourable Mr. Justice Mackenzie

Concurred
          in by:

The
          Honourable Mr. Justice Hall

The
          Honourable Mr. Justice Chiasson

Reasons
    for Judgment of the Honourable Mr. Justice Mackenzie:

[1]

This appeal is from a judgment varying
    the will of the late Ragnar Saugestad (the testator) to provide the appellant
    widow, Joan Saugestad, with a cash legacy of $29,000 and a life estate in
    the testators one-half interest in a condominium known as the Electra.
    The testator left the entirety of his estate disposed of by will to his two
    sons from his first marriage.  The appellant contends that the variation is
    inadequate to fulfill the testators legal and moral duties to her under the
Wills Variation Act
, R.S.B.C. 1996, c. 490.  The reasons for
    judgment of the trial judge are indexed as 2006 BCSC 1839.

Background Facts

[2]

The testator died in 2003 at age 63.
     He was survived by the appellant, then age 56, and his two sons, the respondents
    Nicholas Saugestad and Stephen Saugestad, then ages 30 and 29.  The testator
    was a native of Norway and lived in Japan from 1968 to 1990, employed by a
    subsidiary of Tokai Shipping Ltd.  He married his first wife, Toshiowati (Joy)
    Umezu, in 1970.  She died of breast cancer in 1989.  Tokai transferred the
    testator to Vancouver in 1990.  He was paid a retirement allowance at that
    time.  The testator continued to work for Tokai in Vancouver as a ship broker
    at a salary of $10,000 per month until 2001 when Tokai went into receivership
    and he retired.

[3]

The testator met the appellant in 1990
    when she was separated from her first husband and was working as a realtor.
    She has a grade 12 education and was licensed as a real estate salesperson
    until 2002.  She has no children.  Following her divorce, the appellant and
    the testator lived together for about a year and then were married on 5 March
    1992.  After the marriage, the appellant worked as a realtor until 1997 when
    she retired with the testators encouragement; her retirement permitted them
    to travel extensively together at his expense, paid partly out of his capital
    assets.  The testator told her he had enough money to support them in their
    retirement.  The appellant was in good health except for a heart related problem
    that resulted in minor surgery in 1993 and 2003.

[4]

Both the respondents are single with
    no dependents and no significant independent assets.  They were born in Japan
    and sent to boarding school in Hawaii in their early teens at their fathers
    expense.  They both have Bachelor of Arts degrees resulting from university
    studies financed by the testator.  Stephen has his own web design business
    with anticipated earnings of $35,000 per year.  He was previously employed
    as a web developer, earning approximately $21,000 per year.  Nicholas is employed
    as a sales representative for a shipping company, earning $60,000 per year.

[5]

On the testators death, the appellant
    inherited the matrimonial home, a condominium on Ostler Street in North Vancouver
    (the Ostler Street Condo), as surviving joint tenant.  She receives the
    testators Japanese pension of approximately $1,350 per month (declining slightly
    over time) and a CPP survivors benefit of $270.13 per month.  Together with
    motor vehicles, furniture and artwork, she is the beneficiary of the testators
    RRSPs totalling $52,633 and approximately $28,000 in various bank accounts.
     Specific bequests of cars, antiques, and art pieces were made to the respondents
    in the will.  The residue of the estate was to be shared equally between the
    sons.

[6]

A clause in the testators will dated
    31 March 1998 explained why he had made no provision for the appellant in
    his will:

I
    LOVE MY WIFE, JOAN IRENE SAUGESTAD, but I have not made her the beneficiary
    of my Will, as I have provided for her with other means so she does not require
    a bequest from me.  I have provided for her as follows:

a.
    She is a joint tenant of our home located at 401-1500 Ostler Court, North
    Vancouver, although I provided all of the purchase funds as well as funds
    for upgrading and furnishing;

b.
    She is the named recipient of my Japanese pension.

The
    appellant was aware that the will made no provision for her and she in turn
    made no provision for him in her will.

[7]

The appellant brought to the marriage
    a property settlement of $145,000 from her first marriage, a house later sold
    for $76,000, some furniture, a car, and some savings.  The trial judge calculated
    her total assets entering the marriage at approximately $225,000 compared
    to her assets of approximately $950,000 on the testators death.

The Assets in Dispute

[8]

The testators assets involved in the
    appeal primarily fall within three categories:

1.
    real property;

2.
    shares in a private investment holding company, Nistera Ltd. (Nistera),

3.
    the testators inheritance from his mother, Hjordis Saugestad (the Hjordis
    Inheritance).

All monetary values that follow are expressed in Canadian
    dollars.

1.         Real Property

[9]

The testator had interests in four condominiums
    at the date of his death.  The matrimonial residence, the Ostler Court Condo,
    was purchased by the testator in 1993.  He transferred title into joint tenancy
    with the appellant and title passed to the appellant by right of survivorship.
    This property was valued at $381,000 at the date of death.

[10]

The testator was the sole owner of a
    condominium in Boca Raton, Florida, (the Boca Raton Condo) purchased during
    his first marriage in 1981 for $128,000.  Title passed as part of the residue
    of the estate to the respondents under the will.  It was later sold for net
    proceeds of $285,204, less expenses.  The trial judge valued it at $255,715
    at the date of death.

[11]

In 1994, the testator and the appellant
    purchased a rental condominium in Whistler as tenants in common.  They each
    contributed approximately one-half of the net purchase price.  This condominium
    was sold in 1997 and a portion of the proceeds was applied to the purchase
    of a second Whistler condominium (the Blackcomb Condo) with the testator
    and the appellant again as tenants in common contributing equally to the cash
    portion of the purchase price.  This condominium was valued at $750,000 less
    a mortgage of $92,956 at the date of death.

[12]

In April 1995, the testator and the
    appellant purchased a rental condominium known as the Electra (the Electra
    Condo) on Nelson Street in Vancouver as tenants in common with equal contributions
    to the cash portion of the purchase price.  The trial judge valued the Electra
    Condo at the date of death at $170,000 subject to a mortgage of $62,385.

[13]

The will gave the testators one-half
    interest in the Blackcomb Condo and the Electra Condo to the respondents by
    virtue of their inclusion in the residue of the estate.

2.         Nistera

[14]

In 1990 the testator moved approximately
    $400,000 of his retirement allowance from his employer in Japan to accounts
    in Norway from accounts in Singapore and Tokyo.  The testators mother, Hjordis
    Saugestad, managed the funds in the Norwegian accounts until 1993 when the
    funds were transferred to accounts in the testators name.  In 1997 the testator
    incorporated a private investment holding company in Gibraltar, Nistera, which
    he controlled.  The shares were held by Danish bank nominees for the testator
    and the respondents as joint tenants.  In 1997 the testator transferred $415,000
    to Nistera from his accounts in Norwegian banks and in 2000 he likewise transferred
    another $720,457.  The testator took monies from the Nistera accounts from
    time to time for family expenses and there may be tax implications related
    to Nistera that the estate will have to deal with in due course.  At the testators
    death, Nistera held deposits valued at $1,014,758.12.  There is no evidence
    that any of the funds held in the Norwegian accounts or in Nistera originated
    in Canada.  Beneficial ownership in the Nistera shares passed to the respondents
    by right of survivorship.

3.         The Hjordis Inheritance

[15]

The testators mother, Hjordis Saugestad,
    died on 6 November 2002 leaving 50 percent of her estate nominally to the
    testator and 50 percent to two grandsons who were sons of the testators brother.
    $356,655 was received by the testator from the estate before his death.  One-half
    of that amount was transferred to Norwegian accounts for the two grandsons
    in accordance with the terms of Hjordis will and is not in issue.  The remaining
    half was transferred by the testator to his bank account in North Vancouver.
    Approximately $53,000 of that amount was withdrawn and the remaining balance
    of $125,365 was nominally an asset of the estate that passed to the respondents
    as residue under the will.

[16]

After the testators death, the estate
    received a further $374,085 from Hjordis estate which passed to the respondents
    as residue under the will.

The Decision of the Trial Judge

[17]

The trial judge noted that the authority
    of a court to vary a will to meet the legal and moral obligations of the testator
    to provide for the proper maintenance and support of the testators spouse,
    children, or both, is founded in s. 2 of the
Wills Variation Act
.
     Section 2 provides:

Despite
    any law or statute to the contrary, if a testator dies leaving a will that
    does not, in the court's opinion, make adequate provision for the proper maintenance
    and support of the testator's spouse or children, the court may, in its discretion,
    in an action by or on behalf of the spouse or children, order that the provision
    that it thinks adequate, just and equitable in the circumstances be made out
    of the testator's estate for the spouse or children.

The
    trial judge followed a two-stage approach endorsed by
Tataryn

v. Tataryn Estate
, [1994] 2 S.C.R. 807, and applied in subsequent
    cases, to analyse the testators obligations to the appellant and determine
    whether adequate, just and equitable provision had been made.  The first
    stage addresses the notional obligations of the testator under a
Family
    Relations Act
analysis and whether these obligations have been met.
     The second stage considers the moral obligations of the testator and determines
    whether these moral claims against the estate have been, or can be, met.

The Family Relations Entitlement Claims

[18]

In the case at hand, the trial judge
    correctly employed a hypothetical calculation and division of family assets
    between the testator and the appellant in the first stage of the analysis,
    assuming that the parties had separated and that the assets were divided between
    them immediately before the date of the testators death pursuant to the
Family
    Relations Act
, R.S.B.C. 1996, c. 128 (the
FRA
).  The
    appellant contends, however, that the trial judge erred in her treatment of
    the Boca Raton Condo, Nistera, and the Hjordis Inheritance.

[19]

The trial judge accepted that the Boca
    Raton Condo and Nistera would be considered family assets for the purpose
    of division under Part 5 of the
FRA
, but she found that the
    presumptive equal division of those assets under s. 56(2) would be unfair
    having regard to the factors listed in s. 65(1).  She concluded that those
    assets should be notionally divided 80/20 in favour of the testator.  She
    decided that no part of the Hjordis Inheritance was a family asset, but if
    she was in error and the portion received by the testators estate after his
    death was a family asset, it should also be notionally divided 80/20.  The
    Ostler Street Condo, the Blackcomb Condo and the Electra Condo were family
    assets that should notionally be divided equally.  On this notional division
    the trial judge concluded that the appellant was left with approximately $50,000
    more in assets on the testators death than she would have obtained on a division
    of family assets under the
FRA
.

[20]

The appellant submits that the trial
    judges analysis contains several errors.

1.         The Allegations of Bad Faith

[21]

In this Court the appellant contended
    for the first time that the testator arranged the joint tenancy of the shares
    in Nistera with his sons as part of a secret scheme to defeat the appellants
    claims to the Nistera assets under s. 66(3) of the
FRA
and the
Wills Variation Act
.  The appellant argues that the testators
    declaration of trust in favour of the respondents for the first part of the
    Hjordis Inheritance also was made with intent to disguise the family asset
    status of those funds and defeat the appellants claims.

[22]

The facts found by the trial judge implicitly
    reject any bad faith on the part of the testator or the respondents.  The
    testator recognized the moral claims of both the appellant and his sons and
    he arranged his affairs to balance those claims.  The trial judge concluded
    (at para. 135):

[....] the testator's clear intention was that his children should benefit
    from his estate.  That is why he arranged his affairs as he did, and why he
    provided for the plaintiff in other ways to ensure she would be adequately
    looked after for the remainder of her lifetime.  He paid for the entirety
    of the Ostler Court Condo, which she receives by the right of survivorship.
     He was aware that she had significant assets, in the form of RRSPs and the
    couple's investment properties, which would ensure she was provided for.  He
    clearly wanted to provide for his sons, who themselves are only just starting
    out on their career paths and have no assets or real estate, and have not
    received the benefit of their mother's estate. In these circumstances, the
    moral claim of the sons is stronger than the moral claim of the plaintiff,
    and I have taken that into account in reaching my decision.

[23]

The testator recognized the claims of
    the appellant in the arrangement of his affairs.  He explained in his will
    that the appellant was excluded because he had provided for her by other means
    so she does not require a bequest from me.  He left her the matrimonial
    residence and his pension outside the will.  Together they had arranged to
    hold their real estate investments, to which they both contributed financially,
    as tenants in common.  Neither the pleadings nor the facts found by the trial
    judge can support an inference that the testator dealt with any of his assets
    in a manner intended to defeat legitimate claims of the appellant. There is
    no basis for us to question the legitimacy of the testators motivation in
    arranging his affairs as he did.  I would reject this ground of appeal.

2.         The Status
    of the Hjordis Inheritance

[24]

The appellant submits that the trial
    judge erred in finding the first part of the Hjordis Inheritance to be held
    in trust by the testator for the respondents and therefore not beneficially
    an asset of the estate.  She also submits that the second part, received after
    the testators death, was a family asset subject to equal division under the
FRA
.

[25]

The trial judge has concluded that the
    first part of the Hjordis Inheritance was impressed with a trust in favour
    of the respondents in accordance with the intent of the testators mother.
    On that finding, the testator had no beneficial interest in that portion of
    the inheritance and it could not be attributed to him as a family asset.

[26]

The appellant contends that the evidence
    did not support the finding of a trust and that an email from the testator
    to his solicitor referencing the trust is insufficient in law to create a
    trust.  In my view, this submission misapprehends the nature of the trust.
    The trust arises from the intention of the testators mother to benefit the
    respondents and not the testator; no beneficial interest passed to the testator.
    His email to his solicitor is simply an acknowledgement of the existing trust:
    it did not create it.  The transfer by the testator of one-half of the first
    distribution from the Hjordis estate to his two nephews (the grandsons of
    Hjordis) is circumstantial confirmation of the acknowledgement in the testators
    email that he was not the intended beneficiary of that distribution.  The
    trust is properly characterized as a secret trust, in the sense that no reference
    is made to it explicitly in Hjordis testamentary documents but it is enforceable
    outside her will.

[27]

The trial judge noted that the testator
    withdrew approximately $53,000 of the Hjordis Inheritance funds from his bank
    account and used a portion to pay living, travel, and entertainment expenses
    of the testator and the appellant.  Approximately $40,000 was used for the
    respondents benefit to pay certain of their school related loans.  It is
    agreed by the parties that the trial judge incorrectly found the appellant
    and testators amount to be $8,000 rather than $13,000 but the discrepancy
    in the amount does not affect the judges finding that the funds were impressed
    with a trust.  On her finding, it was neither an asset of the estate nor a
    notional family asset.

[28]

The appellant contends that the trust
    of the first part of the Hjordis Inheritance in favour of the respondents
    is inconsistent with the decision in
MacDonald v. MacDonald
,
    2002 BCSC 1453, 33 R.F.L. (5th) 119, at paras. 80-81, which rejected the attempted
    characterization of an employment bonus earned before separation, but partly
    paid after separation, as two separate assets for family asset purposes.
    In my view, that decision is not on point.  The bonus in
MacDonald
was a single asset.  Here the trust excluded any beneficial interest of the
    testator in that portion of the inheritance and it could not be characterized
    as his family asset. There was no trust involved in the second distribution,
    received after the testators death in the amount of $374,085, and it became
    part of his beneficial estate.  The trial judge correctly recognized that
    difference.  In my view, the trial judge made no reviewable errors in her
    treatment of the Hjordis Inheritance trust.

[29]

The remaining Hjordis Inheritance issue
    is whether the portion received after the testators death was a notional
    family asset.  After an extensive review of family law authorities, the trial
    judge decided that it was not.  The testator had discussed with the appellant
    using those funds in the future, including for the purchase of a new car,
    diamond earrings for the plaintiff, and a six-month world cruise.  The trial
    judge concluded that those discussions did not amount to reliance on those
    funds for their future financial security.  Such reliance was required to
    characterize a future inheritance as a family asset.   Here the couple had
    sufficient other assets for their financial security in their retirement,
    and they were contemplating drawing on the Hjordis Inheritance for luxury
    expenditures.

[30]

The appellant submits that the availability
    of other assets to support her is not relevant to the determination of the
    status of the Hjordis Inheritance.  The test to be applied under the
Wills
    Variation Act
is whether the will has made adequate, just and equitable
    provision for the appellant.  The family asset determination is a notional
    one, in atypical circumstances.  Usually a division of family assets under
    the
FRA
occurs between a separating couple in mid-life where
    the interests of the parties themselves, plus any dependent children, are
    the dominant considerations.  In the wills variation context, the determination
    is made at the end of life of one of the parties.  The trial judge was alert
    to this distinction, quoting para. 32 of
Tataryn
. Here, the
    issues involve intergenerational equity between a surviving spouse, at or
    near retirement with no children of her own, and adult children from the deceased
    spouses first marriage.  The trial judge found that other assets were sufficient
    to provide adequately for the appellants financial security.  As to the respondents,
    the trial judge observed that they are only just starting out on their career
    paths and have no assets or real estate, and have not received the benefit
    of their mother's estate.  The trial judge concluded that their financial
    circumstances were more deserving of moral claims on the estate than the appellants
    wish to continue a generous lifestyle and purchase luxury items.  In my view,
    the trial judge framed the issue correctly and I agree with her conclusion.
    Simply because the appellant and the testator had indulged in an expensive
    lifestyle that encroached on capital assets does not legally obligate the
    estate to sustain that indulgence where the appellant is otherwise financially
    secure.

3.
    The 80/20 Notional Division of the Boca Raton Condo and Nistera

[31]

The appellant also submits that the
    trial judge overlooked or underweighed the appellants contributions to the
    testators assets.  She contends that in particular she made substantial contributions
    to the Boca Raton, Blackcomb and Electra Condos.  The trial judge noted that
    the appellant and the testator had made approximately equal contributions
    to the Electra Condo and to the Blackcomb Condo and its predecessor in Whistler.
    The return on these investments was largely in the form of capital appreciation
    and, as the couple held the properties as tenants in common, the appellant
    received half of those gains.  The Boca Raton Condo was acquired by the testator
    entirely from funds accumulated during his first marriage. The appellant supervised
    some renovations to make it suitable for the familys use after it had been
    previously rented, but the cost of the renovations was paid from the testators
    funds and the appellant subsequently benefited from its use with the testator.
    In my view, there are no grounds for concluding that the trial judges 80/20
    reapportionment  of the Boca Raton Condo overlooked or failed to adequately
    account for any contribution of the appellant to the value of that asset and
    I would not give effect to the appellants submission.

[32]

The trial judge also notionally apportioned
    Nistera 80/20 in favour of the testator.  She summarized her conclusion at
    para. 107 of her reasons:

In the case at bar, the
    marriage was of moderate duration, and the funds held by Nistera Ltd. were
    brought into the marriage by the Deceased. Some unknown portion of these funds
    may have been inherited by the Deceased on the death of his first wife, and
    her contributions to raising the Deceased's children no doubt contributed
    to his income and earning capacity. Although the plaintiff would have a need
    to remain economically independent, she would have significant other assets
    that would enable her to provide for herself, as well as half of the Deceased's
    pension.  As the Deceased was retired, both spouses would have a need for
    additional income to support their lifestyles, which would have to be produced
    by their existing assets.  The couple was already encroaching on the Deceased's
    capital in order to sustain their expensive lifestyle.  Additionally, the
    plaintiff did not contribute to the acquisition or preservation of the funds
    held by Nistera Ltd., and in fact contributed to their expenditure by virtue
    of the lifestyle she shared with the Deceased.  Thus, an equal division would
    be unfair in these circumstances, and I would have reapportioned the fund
    80% in the Deceased's favour.

I
    am satisfied that the facts on which this apportionment is based are supported
    by the evidence and there are no grounds to disturb the findings that the
    appellant did not make any contribution to the Nistera assets and had only
    benefited from encroachment on those assets with the testator to sustain
    their expensive lifestyle in their retirement.  I would not disturb the trial
    judges notional apportionment of Nistera.

The Moral Entitlement Claims

[33]

The trial judge summarized the relationship
    between the testator and the appellant in these terms (at para. 123):

[...]

this is a second marriage of moderate length; the testator
    has children from a previous marriage and much of his estate was accumulated
    during that first marriage; each party has their own assets and is largely
    financially independent; and the testator made clear his intention that he
    wanted his estate to benefit his children, and not the plaintiff's heirs.
     Society's reasonable expectations of what a judicious husband and father
    would do in such circumstances may vary much more widely than they might in
    the case of a life-long marriage in which neither party entered the relationship
    with significant assets, as was the case in
Tataryn
.

The
    trial judge noted that the appellant was leaving an 11 year marriage with
    over $900,000 compared to her assets of approximately $225,000 when she entered
    it.  The judge acknowledged that the appellants real estate acumen had contributed
    to the value of the real estate investments but she concluded that the testators
    capital contributions and payment of all the couples living expenses had
    left the appellant with financial gains that she could never have achieved
    had she continued working as a realtor and paying her own expenses.  The gains
    offset any disadvantage to the appellant in giving up her career.  Both spouses
    retired and the trial judge concluded that they enjoyed each others company
    in an expensive lifestyle paid for by the testator.

[34]

The trial judge concluded that the respondents
    had a strong competing moral entitlement to the testators estate based in
    part on the contributions of the testators first wife to his estate.  The
    trial judge summarized those contributions as childcare and household management
    as well as benefiting him with her estate.  She presumed that the first wife
    would have wanted her efforts to benefit her sons rather than the testators
    new wife.

[35]

The appellant contends that there was
    no evidence to support the trial judges finding that the testators first
    wife made a contribution to his assets, and in particular to the funds held
    in Nistera.  The trial judge found that some unknown portion of the Nistera
    funds may have been inherited by the testator from his first wife and her
    contributions in raising the children, as their primary care-giver, no doubt
    contributed to [the testators] income and earning capacity.  The testator
    was married to his first wife for 19 years and the respondents were 17 and
    15 when their mother died.  The evidence clearly established that the testator
    was the beneficiary of his first wifes estate and its size was unknown.  According
    to the evidence of Nicholas Saugestad, his mother had her own import-export
    business in Japan.  She guaranteed the mortgages on the Boca Raton Condo.
    I am satisfied that there was evidence to support the facts found by the trial
    judge as to the first wifes contribution and there are no grounds to disturb
    that finding in this Court.

[36]

The trial judge also concluded that
    the testators support for his sons during his lifetime created a legitimate
    expectation that they would receive Nistera and the bulk of the estate.  The
    testator had paid for the respondents education expenses and a comfortable
    upbringing in a large home in Japan.  The testator paid for their travel expenses
    and they had use of the condos in Whistler and Boca Raton.  The testators
    relationship with his sons, and for that matter with the appellant, was sometimes
    difficult but he recognized his moral responsibilities to both the respondents
    and the appellant in the disposition of his assets.  He arranged his affairs
    to fulfill his intention to leave the Ostler Court Condo directly to the appellant
    outside the will.

[37]

The testator has provided the appellant
    with sufficient assets that, together with assets she brought into the marriage,
    provide her with a comfortable, financially secure lifestyle.  He left her
    the Ostler Court Condo and his RRSPs and pension.  She retained half-interests
    in the Blackcomb Condo and the Electra Condo that were both appreciating in
    value.  She has no immediate family with potential moral claims on her estate
    and expectations of an inheritance.

[38]

The assets allocated to the respondents
    are substantial but hardly excessive considering the cost of residential accommodation
    in Vancouver and their reasonable expectation that their father use his estate
    to enhance the modest lifestyle available from their employment income and
    provide them with some financial security.  In part, their moral claims arise
    out of the unquantified benefits received by the testator from his first wife
    during their marriage and his receipt of her estate.  I agree with the trial
    judges presumption that she could reasonably expect those benefits to eventually
    devolve to her sons.

[39]

The trial judge recognized that the
    testamentary autonomy of the testator was a factor to be taken into account
    when assessing the appellants claims.  Madam Justice McLachlin observed in
Tataryn
, at para. 33, that in many cases a testator has available
    a range of options for dividing assets that is adequate, just and equitable.
    An option chosen by a testator within the range should not be disturbed.
    This is not a case where adult children are advancing claims against the provisions
    of a will on grounds that they have moral claims which the testator has failed
    to meet.  The respondents are defending the testators division of his assets.
     The issue is not between the moral claims of the appellant and the respondents,
    each standing independently of the will.  It is whether the testators arrangement
    of his affairs is within the range of testamentary autonomy entitled to deference.
     The moral claims of the respondents reinforce deference to his arrangements.
    The trial judge rightly recognized that testamentary autonomy and the respondents
    moral claims coincided to support the terms of the will.

[40]

The testator arranged his affairs in
    a manner that provided reasonable financial security for the appellant and
    otherwise chose to benefit his sons.  The appellants case is essentially
    that she needs a larger share of the assets to be able to continue the generous
    lifestyle that she enjoyed with the testator in retirement, without encroaching
    on her capital.  In my view, the trial judge was right not to override the
    testator and assign that objective a moral priority.  The respondents inheritance
    will not support an expensive lifestyle but with prudent investment it will
    supplement their modest employment income and allow them the means to maintain
    a comfortable standard of living consistent with the support provided by the
    testator before his death.  Their moral claims rank ahead of the appellants
    in the circumstances.

The Trial Judges Variation of the Will

[41]

The trial judge concluded that the absence
    of any provision for the appellant in the will caused the testator to fail
    in his obligations to her.  She ordered that the will be varied to provide
    the appellant with a bequest equal to the net amount she had taken from the
    estate after the testators death and a life interest in the testators one-half
    interest in the Electra Condo; the estate was ordered to pay out one-half
    of the Electra mortgage.  The trial judge considered ordering the alternative
    of an absolute interest in the Electra Condo, rather than a life interest,
    but after reviewing several cases, including
Tataryn
, she concluded
    that an absolute interest was not required because the appellants financial
    independence was assured by her other assets including the matrimonial home,
    and the value of the life estate was sufficient to meet the testators obligations
    to her.  There is no cross appeal from the trial judges variation.

[42]

Tataryn
directs (at para. 11) that, apart from oral testimony,
    an appellate court is in the same position as the trial judge in applying
    the
Wills Variation Act
and deference to the findings of the
    trial judge is not required.  The Electra Condo is an investment rather than
    a property personally used by the appellant or the respondents.  It is managed
    by the appellant.  It may be sold at any time depending on the inclination
    of the vendors in the light of market conditions.  Allocating sale proceeds
    between the life interest and the reversion adds an additional complication
    to a sale.  A life estate is usually more appropriate for a matrimonial home
    or other asset personally used by the grantee.  Here the appellant already
    has a one-half interest in the Electra Condo.  In my view, it is preferable
    to vary the will to give her the testators one-half interest absolutely instead
    of a life estate and I would allow the appeal to that extent.  It follows
    that the appellant will assume the entirety of the mortgage remaining on the
    Electra Condo and the estate will be relieved of any obligations with respect
    to that mortgage.

Conclusion

[43]

In the result I agree with the limited
    variation in the will made by the trial judge, except in respect of the Electra
    Condo.  I would amend the trial judges order to give the appellant the testators
    one-half interest outright, subject to her assumption of the entire remaining
    mortgage.  In all other respects I would affirm the trial judges order.

[44]

As the appellant has had limited success
    on this appeal, she should have the costs of the appeal on a party and party
    basis at scale 1.

The Honourable
    Mr. Justice Mackenzie

I AGREE:

The Honourable Mr. Justice Hall

I AGREE:

The Honourable Mr. Justice Chiasson


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

British
          Columbia Ferry Services Inc. v. Canadian Transportation Accident Investigation
          and Safety Board,

2008
          BCCA 40

Date: 20080128

Docket: CA035432

Between:

British
    Columbia Ferry Services Inc.

Appellant

(
Petitioner
)

And

Canadian
    Transportation Accident
Investigation and Safety Board

Respondent

(
Respondent
)

Before:

The
          Honourable Mr. Justice Hall

The
          Honourable Mr. Justice Lowry

The
          Honourable Mr. Justice Frankel

W.S.
          Berardino, Q.C. and B.B. Olthuis

Counsel for the Appellant

A.M.
          Mersey and M.E. Fancourt-Smith

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

January 16, 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

January 28, 2008

Written
          Reasons by
:

The
          Honourable Mr. Justice Lowry

Concurred
          in by:

The
          Honourable Mr. Justice Frankel

Concurring
          Reasons by:

The
          Honourable Mr. Justice Hall  (P. 7, para. 14)

Reasons
    for Judgment of the Honourable Mr. Justice Lowry:

[1]

British Columbia Ferry Services Inc. ("B.C. Ferries") appeals
    the order of Mr. Justice Hinkson dismissing its application to be relieved
    of an obligation of confidentiality assumed under an agreement made with the
    Canadian Transportation Accident Investigation and Safety Board (the "Board").
    The reasons for judgment are cited as 2007 BCSC 1434.  The question that arises
    is whether the judge properly exercised his discretion in disposing of the
    application as he did.

[2]

The Board has undertaken an investigation into the cause of the sinking
    of a B.C. Ferries vessel in March 2006.  The Board recovered a computer hard
    drive from the vessel containing electronic chart data that had been submerged
    in salt water for three months.  The data was retrieved from the hard drive
    and copies were made for use in the investigation.

[3]

The Board's authority to seize property is governed by the
Canadian
    Transportation Accident Investigation and Safety Board Act
, S.C. 1989,
    c. 3.  Under ss. 19 and 20, the Board was authorized to seize the computer
    hard drive and to retain it until the purpose for which it was seized has
    been served.  Subsection 20(2) provides for an application to be made in the
    event the drive is not returned, and s. 20(3) provides the court may order
    its return when the purpose of its seizure has been served or the interests
    of justice require.

[4]

In due course, the Board provided B.C. Ferries with a draft copy of
    the report it proposes to publish in concluding its investigation.  The draft
    was provided in confidence and B.C. Ferries was invited to comment.  B.C.
    Ferries sought disclosure of the data in order to be able to make a meaningful
    assessment of the report.  The Board declined to return the hard drive or,
    more particularly, to release the data until after its investigation was completed
    and its report was published unless B.C. Ferries agreed to hold the data
    in confidence until the Board's report was published.

[5]

B.C. Ferries filed a petition seeking the return of the hard drive
    or the release of a copy of the data free of any restriction on its use.
    The parties then entered into an agreement pursuant to which the Board delivered
    a copy of the data to B.C. Ferries on the following condition:

The
    [data] will be kept in confidence by BC Ferries and is to be used only for
    the purposes of responding to the draft report subject to the parties' agreement
    to permitted uses prior to the release of [the Board's] final report or order
    of the court.

[6]

B.C. Ferries has already published its own internal report about the
    sinking of its vessel.  Upon reviewing the data, a decision was made to issue
    an addendum to its report based on the data.  It wishes to do so now before
    the Board's final report is published.  (The report is expected before the
    anniversary of the sinking.)  A draft of the addendum was given to the Board
    but the Board was and remains unwilling to relieve B.C. Ferries of the obligation
    to hold the data in confidence.  B.C. Ferries amended its petition and applied
    for a declaration that it be at liberty to use the data in publishing the
    addendum.

[7]

Without a s. 20(2) application before him, the judge was not prepared
    to assume that such an application would succeed  that the seizure of the
    hard drive had served its purpose and, had an application been made, the drive
    would be ordered returned before the Board's final report is published.  He
    took the view that, having made an agreement to hold in confidence the enhanced
    copy of the data, given for a limited purpose, it was not open to B.C. Ferries
    to circumvent the legislation by applying to have the court order the data
    could be disclosed as though B.C. Ferries had obtained the return of the hard
    drive.

[8]

B.C. Ferries contends the judge erred in his analysis.  It says the
    disclosure of the data is to be determined by terms of the agreement which
    the judge failed to enforce.  B.C. Ferries maintains that, because the agreement
    was made subject to agreed permitted uses of the data before the Board's report
    is published, it is not open to the Board to withhold its consent to the publication
    of the addendum, or insist the confidentiality upon which the data was given
    to B.C. Ferries be maintained, except on grounds that are objectively reasonable,
    citing this Court's decision in
Jack Wookey Holdings Ltd. v. Tanizul
    Timber Ltd.
(1988), 27 B.C.L.R. (2d) 221, quoting at 224-225,
Greenberg
    v. Meffert
(1985), 18 D.L.R. (4th) 548 at 554 (Ont. C.A.).  B.C.
    Ferries says no such grounds exist because the disclosure of the data could
    not impair the Board's investigation and would not be in any way inconsistent
    with the provisions of the Act.  B.C. Ferries does not advance any evidentiary
    basis for urgency but says that, as a matter of principle, in the absence
    of the Board establishing reasonable grounds for preserving confidence, B.C. Ferries
    should be permitted to use the data as it wishes before the Board's report
    is published.

[9]

The agreement was made to resolve the impasse over the return of the
    hard drive, and more particularly the data it contained, to permit B.C. Ferries
    to comment on the Board's draft report in a meaningful way.  It governs the
    whole basis on which the data copied from the hard drive was given to B.C.
    Ferries.  It was given for a limited purpose on the basis it be held in confidence
    until the Board's report was issued at the conclusion of its investigation.
    As B.C. Ferries says, the Act does not provide for the Board's imposition
    of the obligation of the confidence assumed, but the agreement does.  Rather
    than pursuing a s. 20(2) application, B.C. Ferries chose to agree to hold
    in confidence what it was given by the Board subject to further agreement
    or the order of the court on permissible uses to which the data might be put.

[10]

B.C. Ferries would read the agreement as effectively providing that,
    with the consent of the Board which may not be unreasonably withheld, the
    data may be used in any way B.C. Ferries wishes.  But that is not what the
    agreement says and I do not consider the wording employed bears that interpretation.
    Viewed objectively, having regard for the purpose for which it was made, the
    agreement reflects no more than the intention the data be held in confidence
    subject to any further agreement the parties may make, on such terms as may
    be mutually acceptable, or the court may order, with respect to the use by
    B.C. Ferries of the data.

[11]

Further, the decision of this Court upon which B.C. Ferries relies
    for the principle on which it founds its argument had nothing to do with relieving
    one of two parties to an agreement of its obligation of confidence.  The concern
    was whether in a timber production agreement which provided for termination
    if one party was dissatisfied with the performance of the other, dissatisfaction
    was to be measured on a subjective or objective basis.  It was held the satisfaction
    clause in that case was readily susceptible to objective measurement and imposed
    a standard of reasonableness.

[12]

I question the applicability of the principle for which the case is
    cited, but even if it could be said a standard of reasonableness with respect
    to agreeing to the disclosure of the data was imposed on the Board, I am unable
    to accept that a sound basis has been established upon which the judge would
    necessarily have had to conclude the Board has acted unreasonably in insisting
    the obligation of confidence B.C. Ferries chose to assume when it obtained
    the data be fulfilled.  In my view, it was open to the judge to conclude that
    the fact the data was given in confidence was of itself sufficient reason
    for the Board's refusal:  the terms of the agreement do not oblige the Board
    to justify B.C. Ferries' obligation which, as I have said, was the whole basis
    upon which the vessel's owner was given the data.

[13]

I would dismiss the appeal.

The Honourable Mr. Justice Lowry

I
    agree:

The
    Honourable Mr. Justice Frankel

Reasons
    for Judgment of the Honourable Mr. Justice Hall:

[14]

I have read in draft the reasons of Lowry J.A.  I concur in his disposition
    of this appeal substantially for the reasons he gives.  I would only add that
    although assertions were advanced about concerns of the appellant relative
    to the safety of the travelling public on ferries, I do not consider that
    the record here establishes a compelling case to permit a court to relieve
    the appellant of its agreement to hold in confidence the information it had
    earlier obtained.  I do not doubt that a judge in a proper case might relieve
    a party to such an agreement as the one in the case at bar from an obligation
    to hold information in confidence but such order could only be made on a clear
    demonstration of powerful grounds (an example might be urgent considerations
    of public safety).  I do not consider an evidentiary framework existed before
    the learned judge at first instance that would have furnished a sound basis
    permitting him to make the order sought on behalf of the appellant.

[15]

In this area, where there exist strong public policy reasons for affording
    confidentiality to activities of the respondent in order to facilitate effective
    investigation of transport accidents, I consider an applicant in the position
    of this appellant bears a heavy onus in seeking to persuade a court to relieve
    it of an agreement of the type here under consideration.  While the judge
    might have more expansively set forth his reasons for declining to exercise
    his discretion, I am in no doubt that he reached the correct result in refusing
    to relieve the appellant from its agreed obligation of time limited confidentiality.

[16]

I too would dismiss this appeal.

The Honourable Mr. Justice Hall


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. MacArthur,

2008
          BCCA 47

Date: 20080128

Docket: CA034554

Between:

Regina

Respondent

And

Duncan
    Bruce MacArthur

Appellant

RESTRICTION ON PUBLICATION:  AN ORDER HAS
    BEEN MADE IN THIS CASE PURSUANT TO SECTION 486.4 OF THE
CRIMINAL CODE
THAT PROHIBITS ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR WITNESSES
    BEING PUBLISHED, BROADCAST OR TRANSMITTED.

Before:

The
          Honourable Madam Justice Levine

The
          Honourable Madam Justice Kirkpatrick

The
          Honourable Mr. Justice Tysoe

Oral Reasons for Judgment

N.R.
          Bauder

Counsel for the Appellant

A.R.B.
          Clark

Counsel for the (Crown) Respondent

Place
          and Date:

Vancouver, British Columbia

28 January 2008

[1]

TYSOE, J.A.
: Mr. MacArthur seeks leave to appeal and, if leave is
    granted, appeals his sentence of four months incarceration and two years probation
    in respect of three convictions related to dealings with his ex-wife, D.G.
    He submits that the sentencing judge erred in not ordering a conditional sentence
    and in his consideration of the principles of proportionality, uniformity
    and totality.

[2]

Mr. MacArthur was charged with
    12 counts covering a period of approximately 20 years, and he was found guilty
    by the sentencing judge of the following three offences:

(a)        criminal negligence causing bodily
    harm in 1985 when, in a state of anger, he deliberately accelerated his motorcycle
    in such a way that he knew that there was a real risk of D.G. falling off
    the back of the motorcycle and injuring herself;

(b)        assault causing bodily harm in
    1988 when he punched D.G. and gave her a black eye; and

(c)        uttering a threat to cause death
    or bodily harm in 2002 when, in response to D.G. saying that she would change
    her phone number if he continued calling her residence, he said words to the
    effect that if she did that, he would put her six feet under.

[3]

At the time of sentencing in June 2007 Mr. MacArthur was 45 years of
    age and was working as a mechanic in Fort Nelson.  He did not have a criminal
    record other than a minor indirect breach of his undertaking to abstain from
    communicating with D.G.

[4]

A pre-sentence report had been ordered by the sentencing judge.  There
    were problems in the scheduling of an interview of Mr. MacArthur by the probation
    officer and when the interview was conducted, Mr. MacArthur provided minimal
    information, refused to sign a consent to release information form, refused
    to complete a basic questionnaire and, when the probation officer raised the
    requirement of a technical suitability assessment report as ordered by the
    sentencing judge, Mr. MacArthur refused a home visit and stated that there
    would be no electronic monitoring.  When subsequently asked if he had reconsidered
    his position, Mr. MacArthur responded that he was not interested in electronic
    monitoring.

[5]

The pre-sentence report outlined a history of problems in Mr. MacArthurs
    relationships, particularly relationships with women, including his mother
    and two women with whom he had relationships after the end of his marriage
    with D.G.  The report set out that Mr. MacArthur adamantly refused to attend
    any form of counselling.

[6]

The sentencing judge found the absence of the mitigating factor of
    remorse, and he found that Mr. MacArthur had demonstrated positive resistance
    to rehabilitation.  He also found that Mr. MacArthur had not taken responsibility
    for the acts giving rise to the convictions.

[7]

The sentencing judge gave extensive reasons in his consideration of
    a conditional sentence order.  He was not satisfied that a conditional sentence
    order would be consistent with the sentencing purpose of rehabilitation.
    He took into account Mr. MacArthurs position with respect to electronic monitoring.
    He concluded that the rehabilitation of Mr. MacArthur was more likely to be
    carried out by a period of incarceration followed by a probation order and
    that a conditional sentence order was not appropriate.

[8]

The sentencing judge then turned to the length of the sentence.  As
    the offences were distinct, he concluded that the sentences should be consecutive.
    He referred to the totality principle and stated that he would impose lesser
    periods of custody than would have been the case if each offence was being
    considered separately.  He imposed consecutive periods of imprisonment of
    one month on the first two offences involving bodily harm and two months for
    the offence of uttering a threat, for a total of four months imprisonment.

[9]

Counsel for Mr. MacArthur contends that the sentencing judge erred
    in five respects in not imposing a conditional sentence.  First, he says that
    the apparent inappropriateness of house arrest should not have rendered fatal
    the imposition of a conditional sentence.  Second, he says that the unwillingness
    of Mr. MacArthur to attend counselling should not have rendered fatal the
    imposition of a conditional sentence.  Third, he says the sentencing judge
    overemphasized and used as an aggravating factor the finding that Mr. MacArthur
    was not remorseful and had not yet taken responsibility for his actions.
    Fourth, he says the sentencing judge failed to consider imposition of other
    measures that would fulfil sentencing principles as required by s. 718.2(e)
    of the
Criminal Code
.  Fifth, he says that, given Mr. MacArthur
    was a first offender, the sentencing judge failed to give effect to the primary
    objective of individual deterrence and rehabilitation and failed to give the
    minimum intervention necessary in the circumstances.

[10]

In my opinion, the sentencing judge did not err in any of these respects.
    He did not rule out a conditional sentence solely on the basis of Mr. MacArthurs
    disinterest in electronic monitoring or his unwillingness to attend counselling.
    Rather, the sentencing judge took these facts into account, together with
    all the other relevant facts, in concluding that the rehabilitation of Mr.
    MacArthur was more likely to be carried out by a period of incarceration.

[11]

In the circumstances of this case, however, it is my view that it was
    open to the sentencing judge to have declined to make a conditional sentence
    order on the basis of Mr. MacArthurs refusal to co-operate in the completion
    of the technical suitability report for electronic monitoring.  His refusal
    meant that electronic monitoring was not an option for him.  The author of
    the pre-sentence report said the following about electronic monitoring:

While the rehabilitative element of community supervision remains in question
    for the Subject, the element of monitoring compliance, particularly of the
    protective conditions for the victim and collaterals, is considered a priority
    for their sense of security, and overall in the best interests of public safety.

Based on this evidence, it was open to the trial judge
    to have concluded that the condition precedent contained in s. 742.1(b) of
    the
Criminal Code
regarding the safety of the community had
    not been satisfied.  If a judge is of the view that the only method by which
    he or she can be satisfied that the safety of the community would not be endangered
    is through the means of electronic monitoring and if the offender is not prepared
    to participate in electronic monitoring, the condition precedent will not
    have been met.

[12]

The sentencing judge did not err in my view with respect to his use
    of the findings that Mr. MacArthur was not remorseful and had not taken responsibility
    for his actions.  The sentencing judge referred to
R. v. Anderson
(1992), 74 C.C.C. (3d) 523 (B.C.C.A.);
R. v. Caulfield
, 1999
    BCCA 190,
124 B.C.A.C. 287
; and
R. v. Zeek
, 2004 BCCA 42,
193 B.C.A.C. 104
, and correctly stated that lack of remorse is not an
    aggravating factor.  He referred to the sentencing objective, contained in
    s. 718(f) of the
Code
, of the promotion of a sense of responsibility.
    It was open to him to conclude, as I believe he inferentially did, that this
    objective would not have been promoted by a conditional sentence order in
    the circumstances where the offender was refusing to attend counselling and
    had expressed a disinterest in electronic monitoring.  In my opinion, the
    sentencing judge did not overemphasize this objective or misuse it as an aggravating
    factor.

[13]

The sentencing judge did not fail to consider sanctions other than
    imprisonment.  He quoted s. 718.2(e) and stated that it was particularly relevant
    in this case.  He then considered a conditional sentence and concluded that
    it would not be consistent with the fundamental purposes and principles of
    sentencing.

[14]

On the final point on the topic of a conditional sentence order, the
    trial judge did not fail to give effect to the objectives of individual deterrence
    and rehabilitation.  Indeed, the principle of rehabilitation was the primary
    focus of the reasoning of the sentencing judge in concluding that a conditional
    sentence order was not appropriate.  While a conditional sentence order can
    have a deterrent effect, there will be circumstances where deterrence will
    only be achieved by a custodial sentence.  I do not agree that the trial judge
    failed to give effect to the objective of individual deterrence.  It was not
    shown that Mr. MacArthur will be more likely to re-offend if he is sent to
    jail.  In my view, it could reasonably have been inferred from the attitude
    of Mr. MacArthur that a conditional sentence order would not have had a deterrent
    effect on him in the circumstances of this case.

[15]

Counsel for Mr. MacArthur contends that the length of period of incarceration
    given to him was unfit because the sentencing judge erred in considering the
    principles of proportionality, uniformity and totality.  He also says that
    the sentences for the three offences should have been made concurrent sentences.
    I do not agree with these contentions.  The sentencing judge directed his
    mind to proportionality and quoted s. 718.1 of the
Criminal Code
.
He specifically referred to the principle of totality set out in s. 718.2(c)
    of the
Code
, and stated that he was imposing lesser periods
    of custody than would have been the case if he had considered them separately.
    In my view, it was appropriate to make the sentences consecutive because the
    three convictions related to separate events committed at different times.

[16]

Counsel for the Crown has referred to the decisions in
R. v.
    G.A.L.

(1992), 21 B.C.A.C. 81;

R. v. Gates
, 2002
    BCCA 128,
163 C.C.C. (3d) 274;
R. v. Greene

(1993), 28 B.C.A.C. 35;
R. v. Nelson
, [1992] Y.J. No. 171 (QL) (Y.T.C.A.); and
R. v. Paterson

(1998), 103 B.C.A.C. 238,
demonstrating that the four-month sentence
    given to Mr. MacArthur is within the range of sentences for these types of
    offences.  I am not persuaded that the sentence is demonstrably unfit.

[17]

Counsel requests that Mr. MacArthurs sentence be varied so that he
    can serve the remainder of his sentence on an intermittent basis.  Mr. MacArthur
    is in the middle of his sentence and, in my opinion, the manner in which he
    serves the remainder of his sentence should be left to the corrections and
    parole officials in the circumstances of this case.

[18]

I would grant leave to appeal but would dismiss the appeal.

[19]

LEVINE, J.A.
: I agree.

[20]

KIRKPATRICK, J.A.
: I agree.

[21]

LEVINE, J.A.
: I order that leave to appeal is granted and the appeal
    is dismissed.

The Honourable Mr. Justice Tysoe

CORRECTION
 8 February 2008

The
    complainants name has been initialized wherever it appeared in full.


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Baddock,

2008
          BCCA 48

Date: 20080130

Docket: CA034315

Between:

Regina

Respondent

And

Christopher
    Lee Baddock

Appellant

Before:

The
          Honourable Madam Justice Levine

The
          Honourable Madam Justice Kirkpatrick

The
          Honourable Mr. Justice Tysoe

Oral Reasons for Judgment

P.T.
          Miranda

Counsel for the Appellant

R.D.
          Leong

V.L.
          Hartney

Counsel for the (Crown) Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

28 January 2008

Place
          and Date of Judgement:

Vancouver, British Columbia

30 January 2008

[1]

LEVINE, J.A.
: The appellant, Christopher Lee Baddock, appeals his
    conviction by a Supreme Court judge on one count of possession of cocaine
    for the purpose of trafficking, contrary to s. 5(2) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19.  He was found to be in
    possession of just under one gram of cocaine found in his vehicle after being
    stopped by police who had arranged to purchase one-half gram of cocaine over
    the telephone.

[2]

The appellant claims that the trial judge erred in failing to exclude
    the evidence found in his vehicle on the ground that his rights under ss.
    8 and 9 of the
Charter of Rights and Freedoms
were violated
    when his vehicle was stopped and searched, and that the verdict is unreasonable
    and unsupported by the evidence.

[3]

For the reasons that follow, I would not accede to any of the appellants
    arguments.  It follows that I would dismiss the appeal.

Evidence and Trial Judges Reasons

[4]

The evidence consisted of the
viva voce
testimony of Police
    Officer Thomson, the investigating and arresting officer, and the expert opinion
    of Constable Herbert, admitted by consent, that the drugs found in the appellants
    vehicle were possessed for the purpose of trafficking.  The evidence was produced
    on a
voir dire
held to determine the admissibility of the evidence
    found on the search of the appellants vehicle.

[5]

The trial judges reasons for his ruling on the
voir dire
(March
    8, 2006, Chilliwack Registry 49840-2) summarize the evidence of Officer Thomson,
    the issues raised by defence counsel, and set out his findings of fact and
    conclusions on the legal issues.  As they are brief, and are the focus of
    the appellants arguments in this Court, I will reproduce them in full:

[1]
THE COURT:
T
he issue
    on the voir dire is the admissibility of evidence found on a search of the
    accuseds vehicle.  The police officer who gave evidence on the voir dire
    said that he received information from an informant who he believed reliable
    on the basis firstly, that he had provided information instrumental in other
    arrests, and secondly, in that certain phone numbers were provided to him
    that were associated by the informant with dial-a-dope operations and through
    which he was able to set up a drug purchase.

[2] The police officer phoned one of these numbers and was able to engage
    in a drug transaction with the person who answered the phone.  A meet was
    set up for 15 minutes subsequent to the call, when a small, white car was
    to attend at a McDonald's restaurant.  Within the time expected, the accused,
    with a passenger, came on to the scene at the McDonald's in a small, white
    Honda Civic and parked in front of the McDonald's restaurant.  This is situate
    in a small mall with other stores, including a convenience store.  The Honda
    parked.  Neither the driver nor the passenger attended any of the stores or
    McDonald's.   The driver waited about two minutes without either of the two
    occupants leaving the vehicle.  It then left the mall. The police officer
    followed and pulled the vehicle over, believing that the occupants of the
    vehicle were associated with the telephone call he had made to the dial-a-dope
    operation.  On approaching the suspect vehicle, the police officer had his
    cell phone preset to phone the same number he had used in engaging the original
    drug conversation, and noted that the accused's phone, which he held in his
    hand, was vibrating as he approached the driver's side window.  The accused
    then turned his cell phone off.  Subsequent to this, the accused was put under
    arrest and a search of the Honda conducted.  Drugs were found in a coin compartment
    between the steering wheel and the driver's side door, and underneath a mat
    in the driver's side area of the vehicle.

[3] The accused focuses on the arrest and says there are insufficient
    grounds to found the objective conclusion that there were reasonable and probable
    grounds for arrest, and that the best that could be authorized in the circumstances
    was detention and a safety search of the accused to assure officer safety.
    Further, the accused's submission is that the subsequent search and the evidence
    of the drugs found should be excluded under s. 24(2), in that good faith cannot
    be established in these circumstances where, in the accused's submission,
    the police officer was acting beyond the precepts of objective reasonable
    and probable grounds.

[4] In my view, the crux of the matter here focuses on the arrest.  I
    am of the view that the arrest was objectively well-founded on circumstances
    that establish reasonable and probable grounds.  First of all, it is clear
    that there was subjective belief by the police officer in making the arrest.
    In viewing this from an objective point of view, the informant's information
    had face validity in that it had assisted the police in other investigations.
    But most importantly, it was tested on phoning the telephone number provided
    and the ability through that phone call to engage in the drug transaction.
    That, I think, is strong confirmation that the information that the informant
    provided was reliable.  Subsequent to that, the appearance of the small, white
    car, in this case the white Honda, within the time expected, the fact that
    the vehicle didn't attend for any apparent purpose of attending at any of
    the stores in the mall, but rather parked for a short time and then drove
    off, added to the circumstances implicating the accused.  Subsequent pulling
    over of the vehicle was, in my view, authorized as an authorized detention.
    The suspicion at that point was heightened to reasonable and probable grounds
    on the phoning to the original number that resulted in the drug transaction
    and the police officer's observation of the accused
's
    telephone receiving a call.  It is true, as the police officer acknowledged,
    that this may have been a case of simple coincidence, some other call either
    arriving before the police officer activated his cell phone, or at approximately
    the same time, and that the police officer didn't raise this cellphone at
    all.  But in my view, the circumstances are such as to make that unlikely
    and the event, notwithstanding the other possibility, is capable of sustaining
    objective grounds of reasonable and probable grounds for arrest.

[5]
    Accordingly, the search subsequent had the foundation of a search subsequent
    to a legal arrest, which, as is conceded, would envisage search of the vehicle
    for evidence.  Accordingly, the evidence will be received in these proceedings.

[6]

The trial judges reasons for judgment (March 8, 2006, Chilliwack Registry
    49840-2) are also brief, providing his analysis and conclusions on the guilt
    of the appellant:

[1]
THE COURT
: In my view, the Crown has proved beyond a reasonable doubt
    that the accused was in possession of cocaine for the purposes of trafficking.
    In saying that, I have come to the conclusion that the drugs that were found
    closest in proximity to where he sat as he drove the vehicle are, in my view,
    drugs in his possession.

[2]
    I am not convinced, however, that the drugs that were found under the other
    occupant were in his possession.

[3]
    Secondly, his cell phone, which was in his hand when he was detained, received
    a call when the police again dialled the number used to set up the meet.
    That phone was tested at a later opportunity for incoming calls, and it was
    apparent from those calls that the callers were persons attempting to obtain
    drugs.

[4]
    The total amount that stands proved in the accuseds possession is about one
    gram of cocaine.

Grounds of Appeal

[7]

The appellants claim is that the verdict was unreasonable and unsupported
    by the evidence, in that the trial judge made four errors of law. He says
    the trial judge erred in law:

(a)
    in failing to address the reliability of the evidence given by Officer Thomson;

(b)
    in failing to adequately address the issue of the reasonableness of the detention,
    and thus whether the evidence derived from the detention was admissible;

(c)
    in finding there were objectively reasonable and probable grounds to arrest
    the appellant; and

(d)
    in finding that the appellant had the intention to sell or distribute the
    drugs found in his vehicle.

Reliability of Constable Thomsons Evidence

[8]

The appellant claims that it was incumbent on the trial judge to address
    the reliability of Officer Thomsons evidence, pointing to what he says are
    inconsistencies and uncertainties in the officers testimony arising out of
    cross-examination.

[9]

The appellant acknowledges that no issue concerning the officers credibility
    or reliability was raised by defence counsel at trial, and that none of the
    trial judges findings of fact on the issues with which the identified inconsistencies
    and uncertainties are concerned, on their own, constitute palpable and overriding
    error.  Nonetheless, he claims that it was a legal error for the trial judge
    not to expressly consider in his reasons the issues the appellant says were
    raised by the officers testimony, by expressly commenting on the reliability
    of the witnesss evidence and explaining his reasons for his findings of fact.
    The appellant says that the failure to consider cumulatively the inconsistencies
    and uncertainties amounts to palpable and overriding error.

[10]

I find no merit in this ground of appeal.  The facts to which Officer
    Thomson testified, and his credibility and reliability, were not in dispute.
    Where inconsistencies or uncertainties arose on cross-examination, Officer
    Thomson either offered an explanation or admitted to not being certain of
    the particular matter.  The issue before the trial judge (at para. 4) was
    whether the undisputed facts satisfied the legal tests for detention and arrest.
    He was not required to recite in his reasons every nuance in the evidence,
    or to explain or resolve every inconsistency or uncertainty.  He clearly accepted
    the evidence of Officer Thomson, as he was entitled to do.

[11]

I would not accede to this ground of appeal.

Objective Grounds for Detention

[12]

There is no dispute that the legal test for investigative detention
    is as set out in
R. v. Mann
, [2004] 3 S.C.R. 59, 2004 SCC 52
    at para. 45:

police
    officers may detain an individual for investigative purposes if there are
    reasonable grounds to suspect in all of the circumstances that the individual
    is connected to a particular crime and that such a detention is necessary.

[13]

The test for assessing the lawfulness of an investigative detention
    was summarized in
R. v. Greaves
(2004), 189 C.C.C. (3d) 305,
    2004 BCCA 484 at para. 33:

First,
    the police must have "reasonable grounds to detain" in the sense
    that they reasonably suspect that the individual detained was involved in
    a crime under investigation.  There must also be both a subjective and objective
    basis for that belief.  Second, the detention must be "reasonably necessary"
    in all the circumstances, including the nature of the liberty interfered with
    and the public purpose the interference serves.

[14]

From the appellants factum and submissions on the appeal, it appears
    that the appellant objects to the trial judges conclusion that pulling over
    the appellants vehicle was an authorized detention on two bases:  first,
    that the trial judge did not deal with the reliability of the officers testimony,
    and second, that the officer testified that when he pulled the appellant over
    he was intending to
arrest
him, and at that time he did not have reasonable
    and probable grounds for arrest.

[15]

These two arguments have no merit.  As to the first, I have already
    dealt with, and rejected, the appellants argument that the trial judge erred
    in law in failing to address the reliability of the officers testimony.

[16]

As to the second argument, the trial judge did not find that the officer
    had reasonable and probable grounds to
arrest
the appellant when he
    pulled him over  he found there were objectively reasonable grounds to
detain
him.  At trial, defence counsel, in both opening and closing submissions,
    conceded that.

[17]

The issue raised by defence counsel in his submissions to the trial
    judge was whether the officer had objectively reasonable and probable grounds
    to
arrest
the appellant.  His objective was to persuade the trial judge
    to rule that the evidence obtained on the search of the vehicle was inadmissible,
    on the ground that the search was unreasonable because it did not follow a
    lawful
arrest
.  He argued that the officer did not have more than reasonable
    grounds to
suspect
that the appellant was involved in a crime, which,
    as he said: And thats the basis for investigative detention.

[18]

Defence counsels submissions at trial are not binding on either the
    trial judge or this Court.  If the trial judge erred in law, it is for this
    Court to correct the error.  However, the trial judge cannot be said to have
    erred in law in finding, consistent with defence counsels submissions, that
    at the time the officer pulled the appellants vehicle over, the officer was
    authorized to detain the appellant for investigative purposes.  That finding
    was clearly supported by the evidence.  As a result, there was no violation
    of s. 9 of the
Charter
.

[19]

I would not accede to this ground of appeal.

Validity of the Arrest and Subsequent Search

[20]

Again, there is no dispute as to the law.

[21]

The test for making a valid arrest without a warrant was set out in
R. v. Storrey
, [1990] 1 S.C.R. 241 at 250-51:

In summary then, the
Criminal Code

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

[22]

The police may search a vehicle pursuant to a lawful arrest where the
    object or purpose of the search is correlated to the reasons or grounds for
    the arrest:
R. v. Caslake
,

[1998] 1 S.C.R. 51
    at para. 14, quoting
Cloutier v. Langlois
, [1990] 1 S.C.R. 158
    at 186.

[23]

Thus, as the trial judge said in his reasons, the crux of the matter
    here focuses on the arrest.  There was no dispute as to the officers
subjective
belief that the driver of the vehicle had committed an offence.  The issue
    at trial, again as identified by the trial judge, and on appeal, is whether
    the officers subjective belief was objectively reasonable.

[24]

The trial judge found (at para. 4) that the suspicion that validated
    the detention:

was
    heightened to reasonable and probable grounds on the phoning to the original
    number that resulted in the drug transaction and the police officers observation
    of the accuseds telephone receiving a call.

[25]

The appellant questions the validity of this finding on the ground
    that the trial judge wrongly drew the inference from the evidence of the officer
    that the phone call the officer made as he approached the appellants vehicle
    was the call that was received by the appellant.  The appellant points to
    the officers acknowledgment that he did not take steps, by calling the appellants
    cell phone after he had seized it, to confirm that the number he dialled to
    arrange the drug transaction was the number he called a second time as he
    approached the appellants vehicle, and that the number was, in fact, connected
    to the appellants cell phone.  He suggested there could have been some confusion
    or error because the officer recorded a second telephone number on the Exhibit
    Flow Chart.  The police officer acknowledged, in his testimony, that it was
    possible, though unlikely, that the appellant received a call from another
    telephone at the time the officer approached the vehicle.

[26]

The trial judge was clearly alive to this evidence  he expressly dealt
    with it in his reasons when he said:

It
    is true, as the police officer acknowledged, that this may have been a case
    of simple coincidence, some other call either arriving before the police officer
    activated his cell phone, or at approximately the same time, and that the
    police officer didnt raise this cell phone at all.  But in my view, the circumstances
    are such as to make that unlikely and the event, notwithstanding the other
    possibility, is capable of sustaining objective grounds or reasonable and
    probable grounds for arrest.

[27]

It was open to the trial judge to accept the officers evidence and
    draw the inference he did.  He applied the correct legal test.  The appellant
    has failed to identify any legal error in the trial judges fact finding or
    legal reasoning that led to the conclusion that the arrest was lawful.  Since
    the arrest was lawful, the search for evidence following the arrest was also
    lawful.  Although the trial judge did not explicitly say so, the legal result
    of his finding that the arrest and search were lawful is that there was no
    violation of s. 8 of the
Charter
.

[28]

It follows that I would not accede to this ground of appeal.

Intent to Traffic

[29]

The appellants final ground of appeal is that the trial judge erred
    in finding that the appellant had the intention to sell or distribute the
    drugs found in his vehicle.

[30]

The appellants argument focuses on the trial judges acceptance of
    the officers evidence that two calls were received on the appellants cell
    phone following his arrest from persons seeking to purchase drugs.  The appellant
    again claims that the trial judge failed to consider the reliability of this
    evidence, pointing out that the officer contradicted his evidence at the preliminary
    inquiry on the question of whether he turned the appellants cell phone on
    after seizing it.  Obviously, the trial judge accepted the officers explanation,
    as he was entitled to do, that he had been wrong in his testimony at the preliminary
    inquiry, and that he had turned the phone on.

[31]

It is worth noting that when the expert opinion that the drugs were
    possessed for the purpose of trafficking was admitted by consent, the trial
    judge commented, without objection from defence counsel: That establishes
    the opinion that these drugs were held for the purposes of trafficking, is
    that it, Ms. Grewel [Crown counsel at trial]?   That was additional evidence
    that the trial judge was entitled to take into account in concluding that
    the appellant was guilty of possession for the purpose of trafficking.

[32]

I would not accede to this ground of appeal.

Conclusion

[33]

The appellant has failed to establish that the trial judge erred in
    his findings of fact or made any legal errors in his conclusions that there
    were no violations of the
Charter
associated with the detention,
    arrest, and search of the appellant, and the appellant had the intention of
    trafficking in the drugs found in his vehicle.  The trial judges findings
    of fact and legal conclusions were well supported by the evidence, and the
    verdict of guilty of possession of cocaine for the purpose of trafficking
    was reasonable.

[34]

I would dismiss the appeal.

[35]

KIRKPATRICK, J.A.
: I agree.

[36]

TYSOE, J.A.
: I agree.

[37]

LEVINE, J.A.:
The appeal is dismissed.

The Honourable
    Madam Justice Levine