COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

NBC Holdings Ltd. v. Aarts Nursery Ltd.,

2021 BCCA 7

Date: 20210112

Docket: CA46585

Between:

NBC Holdings Ltd.

Appellant

(Petitioner)

And

Aarts Nursery
Ltd., Garry Edward Cassidy and Darlene Aunita Cassidy

Respondents

(Respondents)

Corrected
Judgment: The cover page of the judgment
was corrected on January 13, 2021.

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Dickson

The Honourable Mr. Justice Hunter

On appeal from:  An
order of the Supreme Court of British Columbia, dated November 25, 2019 (
NBC
Holdings Ltd. v. Aarts Nursery Ltd.
, 2019 BCSC 2016, Vancouver Docket
S192487).

Counsel for the Appellant

(via videoconference):

D.J. Taylor
G. Paulson, Articled Student

Counsel for the Respondents

(via videoconference):

S. Payne

Place and Date of Hearing:

Vancouver, British
  Columbia

December 8, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 12, 2021

Written Reasons by:

The Honourable Chief Justice Bauman

Concurred in by:

The Honourable Madam Justice Dickson

The Honourable Mr. Justice Hunter

Summary:

The appellant petitioned the
court for cancellation of an easement on the grounds that the easement was
obsolete, or alternatively, that the parties agreed to cancel the easement. The
chambers judge declined to cancel the easement, instead ordering that, pursuant
to certain terms of the easement agreement, the easement be relocated at the
appellants expense. She awarded special costs against the appellant for its
breach of the easement agreement and for bringing the petition. Held: Appeal
allowed; the special costs award is set aside. The parties are at liberty to
pursue a traditional civil claim in the Supreme Court. While purporting to exercise
her jurisdiction under s. 35 of the Property Law Act, the judge
effectively ordered specific performance of a clause in the easement agreement.
In doing so, she erred in interpreting her jurisdiction under s. 35. Specific
performance, or enforcement generally, of the clauses in an easement agreement
cannot be pursued by a petition under s. 35. With respect to costs, the
judge erred in finding that the appellants pre-litigation conduct warranted a
special costs award against it.

Reasons for Judgment of the Honourable
Chief Justice Bauman:

I. Overview

[1]

This case considers the proper scope and application of s. 35 of
the
Property Law Act
, R.S.B.C. 1996, c. 377 [
PLA
]. It does
so in the context of an easement agreement (the Easement) benefitting lands
of the respondent Aarts Nursery Ltd. (Aarts) and burdening those of the
respondents Cassidy and the appellant, NBC Holdings Ltd. (NBC).

[2]

For simplicity, I will refer to the properties as Aarts Lot, Cassidys
Lot and NBCs Lot.

[3]

Aarts operates a commercial nursery on its lot. The nursery is currently
dependent on a private water supply from a well on NBCs Lot, which runs
through buried pipe across the Cassidys Lot to Aarts Lot. The Easement covers
the maintenance, repair and replacement of the well and pipe making up the
water supply system.

[4]

By its terms, the Easement prohibits the construction of buildings and
structures over its defined area. With admitted knowledge that it was doing so
in breach of this term, NBC constructed a substantial wall over the Easement in
order to enclose its principals new home.

[5]

NBC sought to cancel the Easement by way of petition in the Supreme
Court under s. 35 of the
PLA
. Notwithstanding its conduct in
constructing the wall, NBC takes the position that it has the right to cancel
the Easement in accordance with certain of its provisions.

[6]

In the result, the chambers judge fashioned something of a judicial
compromise by ordering that the Easement be relocated across NBCs Lot in a
way and to a location agreed upon in advance and in writing by Aarts and at
NBCs expense.

[7]

NBC takes the position that its alleged breach of the Easement is
irrelevant because circumstances exist obliging Aarts to cancel it after
connecting to the municipal water supply in the area. Given that position, NBC
questions the even-handedness of the compromise and it brings this appeal.

[8]

In my view, the parties have misunderstood the scope of s. 35 of
the
PLA
and have misguidedly invoked its jurisdiction. For reasons that
follow, I would allow the appeal but I would dismiss the petition and leave the
parties at liberty to pursue a traditional civil claim in Supreme Court if they
are so inclined. However, as I note below, there is much to be said for a
compromise here utilizing clause 13 of the Easement and fairly allocating the
costs of its relocation.

II. The Easement

[9]

The Easement was entered into in 1984 between the owners of the affected
lots.

[10]

A municipal water supply (from the township of Langley) was not then
available to Aarts Lot.

[11]

The owners of NBCs Lot and the Cassidys Lot agreed under clause 8 of
the Easement not to construct on the Easement areas across their lots, including
any building, structure, concrete driveway or patio, without Aarts consent.
They also agreed that they will not on any part of the easement areas do any
act or thing that will interfere with or injure the . . . pipe or the right or
ability of [Aarts] to have access to and draw water from the well system, and
maintain the . . . pipe . . .

[12]

Clause 13 of the Easement qualifies this prohibition in these terms:

If the location of the easement
areas on [NBCs Lot] and [Cassidys Lot] at any time interfere with the use or
enjoyment or the planned or desired use or enjoyment by [NBC and Cassidys],
[NBC and Cassidys] shall respectively have the right, at their sole expense,
from time to time, to alter the location of the easement areas and [Aarts]
Pipe on [NBCs Lot and Cassidys Lot] so long as the rights and benefits of
[Aarts] hereunder are not otherwise affected and so long as the location where
the easement areas and [Aarts] Pipe meet the boundary between [NBCs Lot] and
[Cassidys Lot] and the [Aarts Lot] is not altered without the written consent
of [Aarts], and where such alteration is permitted or authorized by [Aarts]
pursuant to this clause, [Aarts] will immediately on request execute all
documents and plans necessary for such purpose.

[13]

Clause 14 of the Easement is the other critical provision in this piece:

If Municipal water becomes
available to [NBCs Lot] and [Cassidys Lot] and [Aarts Lot] and is sufficient
for the commercial purposes of [Aarts], then all of the parties covenant that
within 120 days of receiving notice from the Municipality of Langley of the
availability of the Municipal water, that they will connect to the Municipal
water and all parties will immediately after connection to the Municipal water
supply release, discharge and cancel the easement hereby granted.

[14]

Access to municipal water has been available in the area of the Lots for
some time. Whether that water supply is sufficient for the commercial
purposes of Aarts was an issue of mixed fact and law below and was the subject
of expert evidence led by Aarts and NBC.

[15]

In this regard, NBCs witness opined that Langleys water supply system
can supply water in excess of the commercial needs of Aarts Lot.

[16]

Aarts tendered expert, on the contrary, said he conservatively estimated
the cost of that municipal supply at $32,000 per year, at minimum.

[17]

Aarts evidence was to the effect that this cost would be prohibitively
expensive to it. It is a live issue whether the cost of water and the cost of
connecting to Langleys municipal water system properly figure into the
sufficient for the commercial purposes of Aarts inquiry under clause 14 of
the Easement.

[18]

Aarts witness concluded:

In any event, in my experience, the Township of Langley is
not guaranteed to agree to provide municipal water in the volumes required by
the Nursery to operate its business. Section 21 of the Township of Langleys
Waterworks Regulation Bylaw 2008 No. 4697. This section confirms that
proposed water usage for other than Normal or fire protection use (which
includes irrigation and commercial agricultural use) requires the written
authorization of the Engineer. Use of municipally-supplied water for these uses
requires written application to the Engineer, and such usage will only be
permitted upon receipt of written authorization of the Engineer, and may
include terms and conditions imposed by the Engineer.

In consequence, the provision of
municipal water for such purpose as irrigation and commercial agriculture is
discretionary. Based on my experience and dealings with the Township of
Langley, I am skeptical that the Township of Langley would approve of water
connections permitting the 172,800 gallons per day the Nursery reasonably
requires to operate its business.

III. The Petition

[19]

The petition was brought under s. 35 of the
PLA
and Rule
2-1(2)(b) of the
Supreme Court Civil Rules
.

[20]

The latter rule allows a party to bring a petition proceeding where an
enactment so authorizes. Section 35 does so in the circumstances described
therein, which I will canvass below.

[21]

A petition proceeding is, of course, quite summary and usually
expeditious. The petition is heard by a judge in chambers and is based on
affidavit evidence only. It has a number of obvious advantages over the formal
trial process where there are no serious and disputed questions of fact.

[22]

NBC sought these orders by way of its petition:

1.         A Declaration that a municipal water supply
is available to the Respondents;

2.         A Declaration that the municipal water supply
is sufficient for the commercial purposes of the Respondent, Aarts Nursery
Ltd.;

3.         An Order that the Respondents connect to the
municipal water supply, if they have not already done so;

4.         An Order that once the Respondents are
connected to the municipal water supply, the parties will immediately release,
discharge and cancel the easement registered in the New Westminster Land Title
Office with Registration Number X2935;

5.         Further, or alternatively, a Declaration that
the easement registered in the New Westminster Land Title Office with
Registration Number X2935 is obsolete;

6.         costs; and

7.         such further and
other relief as this Honourable Court may deem just.

[23]

NBC recited clause 14 of the Easement and alleged the availability of a
water supply from the Municipality of Langley, sufficient for the commercial
purposes of Aarts. NBC pleaded that Aarts (and the Cassidys, who have allied
themselves with Aarts in these proceedings) had breached clause 14 of the
Easement. NBC, of course, invoked s. 35 of the
PLA
. It provides:

35(1)    A person interested in land may apply to the
Supreme Court for an order to modify or cancel any of the following charges or
interests against the land, whether registered before or after this section
comes into force:

(a)        an easement;

(2)        The court may make an order under subsection
(1) on being satisfied that the application is not premature in the
circumstances, and that

(a)        because of changes
in the character of the land, the neighbourhood or other circumstances the
court considers material, the registered charge or interest is obsolete,

(b)        the reasonable use
of the land will be impeded, without practical benefit to others, if the
registered charge or interest is not modified or cancelled,

(c)        the persons who are
or have been entitled to the benefit of the registered charge or interest have
expressly or impliedly agreed to it being modified or cancelled,

(d)        modification or
cancellation will not injure the person entitled to the benefit of the
registered charge or interest, or

(e)        the registered
instrument is invalid, unenforceable or has expired, and its registration
should be cancelled.

(3)        The court may
make the order subject to payment by the applicant of compensation to a person
suffering damage in consequence of it but compensation is not payable solely
for an advantage accruing by the order to the owner of the land burdened by the
registered instrument.

[24]

It was NBCs essential position that, by reason of the available
municipal water supply, the Easement was obsolete (s. 35(2)(a)).

[25]

Alternatively, by virtue of clause 14 of the Easement, the parties
expressly or impliedly had consented to its cancellation within the meaning of
s. 35(2)(c).

IV. The Chambers Proceeding and Judgment

[26]

In order to understand the genesis of the compromise ordered by the
chambers judge, it is necessary to refer at some length to the submissions
below of NBCs counsel, Mr. Taylor, and his colloquy with the chambers
judge.

[27]

Mr. Taylor advanced the essential submission under s. 35 of
the
PLA
that I have outlined. During the course of his submissions, the
chambers judge interjected:

THE COURT:  Can there be no good neighborliness in this?
Because this is a fight that, although one person my win, it's going to -- it's
going to end up with bad feelings because we have three lots, two of whom, from
what I hear, are in favour of the easement continuing. Your client wants to move
in, I imagine wants their family to live in a happy environment, which means
that everybody should get along. Is there no way that this can be resolved so
that that happens?

THE COURT:  Can this not be solved with some  and this
is really speaking off the top of my head -- but some agreement between your
client and the other easement holders that if there's a problem, they can get
under that wall or part of the wall might have to be taken down? There might
never, ever have to be a problem.

MR. TAYLOR: Without -- if the easement were to be cancelled
and those rights were given in a way that doesn't involve an easement, I expect
that would probably resolve my client's concerns, because then he could get an
occupancy permit and he could move in.

THE COURT:  No, the easement -- I don't see the easement
-- and again, really, this is just -- I'm just throwing this out, but I don't see
the easement being cancelled, but I can see it being amended to allow for the
wall and access, if need be. I don't know. You're squirming, so that might not
even be --

MR. PAYNE:   My client
would certainly be open to some sort of agreement that would reserve the easement.
Just speaking frankly, they're a bit baffled why their neighbour built a wall
directly overtop before even beginning proceedings.

[28]

Chambers then broke, with the encouragement of the chambers judge that
the parties use the break to work together.

[29]

Mr. Taylor returned from the break and advised the court that while
the parties had some useful discussions regrettably, we have to carry on.
Later, Mr. Taylor submitted:

In paragraph 96
we're relying on subsections 35(2)(a) and 35(2)(c). Alternatively, and I can
say this: To the extent that you are mind to consider the modification of the
easement as compared to a cancellation, there is something that I can suggest
which may be of assistance to you in that context.

The easement in
question runs directly beneath the building wall that's constructed at the
front of the house. Further to the front of the house there is approximately 4
feet of property owned by my client. So there's the house, the wall and another
4 feet. At present the front wall is right on top of the pipe. A modification
of the easement that allowed for a bypass pipe just across the frontage, so in
other words, the pipe from the well up to the start of the wall stays. At least
a bypass pipe that goes to the front of the wall and across the length of that
wall in front of the property and connects again on the other side of it. That
bypass pipe would effectively, as Your Ladyship suggested this morning, leave
everybody with what they want.

In that instance
the easement would be modified to cover that area as compared to where the wall
is, and the result of that is my client gets his occupancy permit and the city
is satisfied, and Aarts Nursery gets its continued easement, gets its access to
water, basically has everything that it has now, and it will be able to access
that water pipe and there's no issue.

So to the extent
that the court is more minded to try to fashion something that will be of
assistance to both parties rather than making a decision on cancellation, in my
submission, of course you have to be under the same section of the act, the
authority to modify the easement, and a modification in that respect certainly
will need the court to address cost, so there will be a cost of moving that
pipe.

THE COURT:  So you're saying that if I'm so inclined, then
the only matter I'd have to consider is costs.

MR. TAYLOR: I believe that to be the case, because
--

THE COURT: And your submission on costs?

MR. TAYLOR: Well, my
submission is, in the circumstances, the cost of that should be either borne
entirely by Aarts or significantly by Aarts because

[30]

At the end of his submissions, Mr. Taylor provided the chambers
judge with further argument on the courts statutory authority to modify the
Easement under s. 35 of the
PLA
:

THE COURT:  But how do I get to the mid ground?

MR. TAYLOR: Well, either modification.

THE COURT:  Right.

MR. TAYLOR: Well, I think section -- the authority
for it, My Lady. I can take you to this. Tab 3 of my book of authorities, which
is the statute.

THE COURT:  That would allow me to modify?

MR. TAYLOR: Yes.

THE COURT:  Okay.

MR. TAYLOR: Yes. That's the statutory authority,
and that's in 35(1):

A person interested in land may
apply to the court for an order to modify or cancel.

And sub (a) is an easement.

THE COURT:  Okay.

MR. TAYLOR: So that's the statutory authority that
allows you to go there, and then the other things that I think would come into
your consideration is, of course, what kind of a modification may do justice
between the parties, and I can't think of anything that could really get to a
higher platform than a modification that would leave both parties with the
gravamen of what they really want.

My client wants to
be able to get the occupancy permit and live there.

THE COURT:  Right.

MR. TAYLOR: And Aarts wants to have access to my
client's well and the water supply and be able to access the pipeline in the
event there's a problem, and a modification that allows for that one bypass
appears to give everybody what they want so that the issue just remains, what
would the cost of that be, and I think the court can, if it's so minded, deal
with that in a number of different ways.

THE COURT:  Okay.

MR. TAYLOR: Including the possibility of saying,
the first X many dollars will be -- you know, required for the bypass will be
funded by one or the other of the parties, and in my submission it would be
Aarts. Pay for the first $10,000 and parties have liberty to come back if the
costs become something nobody is anticipating. But I'm telling you that my
understanding today from inquiring about this is that the cost of that bypass
for that specific finite area is anticipated to be less than $10,000.

THE COURT:  Okay. Good.
Thank you.

[31]

Counsel for Aarts, Mr. Payne, and Mr. Taylor made the
following submissions on the prospect of reaching a negotiated settlement:

THE COURT:  I don't want to short circuit. If you want
to go ahead on your long submissions, that's fine because I'm willing to hear
them. But if we can walk away and everybody is happy, that would be a good thing.

MR. PAYNE:
My Lady, if it's a matter of
negotiated settlement at this point, I do not have instructions to enter into
it.

THE COURT:  Okay.

MR. PAYNE:   But just speaking as counsel, I'm
aware that you have that discretion, and I agree that could be a practical
solution. I just submit that the petitioner should bear the costs and there
should be a costs consideration on top of that for these proceedings, given
that they are unnecessary in light of section 13 of the agreement.

MR. TAYLOR: Well,
to be clear, My Lady, I'm not
abandoning my principal position
, because I believe strongly it's an
appropriate case for cancellation.

THE COURT:  Okay. Well, let's go ahead with your
argument.

MR. TAYLOR: I'm not
saying I'm not prepared for the modification, but I'm not prepared to say I'm
giving up on my argument about cancellation at all.

[Emphasis added.]

[32]

This brings me to the reasons of the chambers judge. They are brief.

[33]

After setting out the background and the positions of the parties, the
judge seized on the so-called middle ground mooted in argument:

[17]      There is a solution that both parties agree is
feasible.

[18]      As set out in paragraph 13 of the Easement
Agreement, the owners of Lots 1 and 2 may alter the location of the easement
and the pipe if it interferes with the use or enjoyment of their lots:

If the location of the easement
areas on Lot 3 and Lot 2 at any time interferes with the use or enjoyment or
the planned or desired use or enjoyment by the First Grantor of Lot 3, and the
Second Grantor of Lot 2, the First and Second Grantor shall respectively have
the right, at their sole expense, from time to time, to alter the location of
the easement areas and the Grantee's Pipe on the First Grantors Lot and Second
Grantors Lot so long as the rights and benefits of the Grantee hereunder are
not otherwise affected and so long as the location where the easement areas and
the Grantees Pipe meet the boundary between the First Grantors Lot and the
Second Grantors Lot and the Grantees Lot is not altered without the written
consent of the Grantee, and where such alteration is permitted or authorized by
the Grantee pursuant to this clause, the Grantee will immediately on request
execute all documents and plans necessary for such purpose.

[19]      That clause should dispose of this issue. But it
does not as the parties cannot agree on who should bear the cost of moving the
pipe. NBC takes the position that Aarts should. Aarts says NBC should.

[20]      Not only is it clearly stipulated in the Easement
Agreement that NBC is responsible for the cost of moving the pipe, it is in my
view, just and equitable that they bear the expense.

[21]      Given this mid-ground
remedy that both parties agree is workable, I see no reason to go further. It
is a happy resolution. It allows Aarts to continue their long established
business and the Sidhus to move into and enjoy their home.

[34]

The chambers judge concluded by making these orders:

1)

Pursuant
to paragraph 13 of the Easement Agreement, NBC shall relocate the portion of
the pipe over which they have erected a concrete and brick wall in a way and to
a location agreed upon in advance and in writing by Aarts; and

2)

Pursuant to paragraph 13 of the Easement Agreement, NBC is solely
responsible for the cost of the relocation of the pipe and any associated
expense.

V. Analysis

[35]

I generally observe that, in my view, the parties and the chambers judge
have misunderstood the scope of the s. 35
PLA
jurisdiction in
analyzing and disposing of the essential issues before the court on the
application.

[36]

It is telling that in making the noted orders, the chambers judge did so
expressly Pursuant to paragraph 13 of the Easement Agreement.

[37]

The chambers judge was essentially ordering specific performance of the
obligations on the parties created by clause 13. However, on the face of that
clause, those obligations could only be invoked by the Grantor and Second
Grantor that is, at this time, NBC and/or the Cassidys. In particular, given
the Cassidys passive interest in the litigation, the right to call for the
relocation of the Easement area, pipe and waterworks, could only be invoked by
NBC. NBC clearly did not do so; it did not petition the court for enforcement
of this clause in the Easement, nor did it have any intention, as Mr. Taylors
submission to the judge made clear, to be responsible for the costs of
relocating the works.

[38]

Specific performance, or enforcement generally, of the clauses in an
easement agreement cannot be pursued by a petition under s. 35 of the
PLA
.

[39]

Again, s. 35(2) contemplates the modification or cancellation of an
easement present the alternative conditions in ss. (a) to (e) and if not
premature in the circumstances. Enforcement of the terms of the Easement,
whether they are those contained in clause 13, clause 14 (the requirement to
connect to a municipal water supply), or clause 8 (the prohibition on building on
the area of the Easement), are matters that must be pursued through the
traditional trial process, not the summary petition process under s. 35 of
the
PLA
.

[40]

Section 35 of the
PLA
provides a comprehensive code for the
modification or cancellation of the interests in land identified in subsection
(1). A comprehensive code displaces the common law, such that the authority of
the court to cancel [or modify] an easement is constrained by the specific
grounds set out in s. 35(2):
Lafontaine v. UBC
, 2018 BCCA 307 at para. 51;
Vandenberg v. Olson
, 2010 BCCA 204 at para. 23.

[41]

What is critical, is the fact that the jurisdiction to cancel or modify
the easement is constrained by subsection (2). This point was succinctly
summarized by Justice Punnett in
Langlois v. Tessaro
, 2018 BCSC 1463 [
Langlois
]
(affd with minor variance in 2019 BCCA 95) at para. 27:

For the petitioners to succeed on their application under
s. 35 of the
Property Law Act
, (whether for cancellation or
modification of the easement), they must:

a)         Demonstrate that
the application is not premature;

b)         Demonstrate that
the application fulfills one of the five criteria in subsection 35(2); and

c)         Persuade the court that, in all the
circumstances, the court should exercise its discretion in favour of granting
the application.

[42]

The five criteria in s. 35(2) provide the necessary context for the
cancellation/modification jurisdiction set out in s. 35(1). That
jurisdiction is not at large and, in particular, it is not triggered by
allegations of non-performance of obligations under the instrument.

[43]

This is all to say again that specific performance or enforcement
generally of the clauses in an easement must be pursued by a traditional civil
action as indeed was done in
Langlois
.

[44]

In this regard, it is instructive to look again at the relief claimed in
the petition. NBC sought these orders:

1.         A Declaration that a municipal water supply
is available to the Respondents;

2.         A Declaration that the municipal water supply
is sufficient for the commercial purposes of the Respondent, Aarts Nursery
Ltd.;

3.         An Order that the Respondents connect to the
municipal water supply, if they have not already done so;

4.         An Order that once the Respondents are
connected to the municipal water supply, the parties will immediately release,
discharge and cancel the easement registered in the New Westminster Land Title
Office with Registration Number X2935;

5.         Further, or
alternatively, a Declaration that the easement registered in the New
Westminster Land Title Office with Registration Number X2935 is obsolete;

[45]

In my view, the only claimed relief available under s. 35 of the
PLA
is that sought in para. 5. The declarations sought in paras. 1 and 2
are necessary findings in enforcing the obligations under clause 14, which are
in turn the subject of the enforcement orders sought in paras. 3 and 4. The
enforcement of these obligations may only be sought in a traditional civil
claim. They do not come within the modification/cancellation jurisdiction
vested in the court by s. 35. A judge has the jurisdiction under s. 35 to
cancel an easement if the parties have agreed to the cancellation. She does
not, however, have the jurisdiction to order specific performance of conditions
precedent in order to perfect an agreement so that she may order cancellation.

[46]

It might be said that to the extent the judge invoked clause 13 in the
manner she did, she was modifying the Easement under s. 35(1). But that
is not what the chambers judge said she was doing. What was done was
Pursuant to paragraph 13. In any event, neither party made
an application to modify the Easement and the judge made none of the findings
of fact necessary before a modification order can be made under s. 35(2)
of the
PLA
. Those findings of fact, again, are set out in s. 35(2)
and are summarized by Justice Punnett in the above quotation from
Langlois
.

[47]

Finally, it is doubtful, even in these
circumstances, that modification is available against the interests of the
servient party (NBC) on the application of the dominant party (Aarts):
Banville
v. White
, 2002 BCCA 239.

[48]

On this appeal, Aarts argues that NBC knew and
agreed that a modification of the Easement was a possibility and that it was
on the table. However, an appellate court is not bound by concessions of law
made in the court below (
Orphan Well Association v. Grant Thornton Ltd.
,
2019 SCC 5 at para. 125) and counsel cannot accord jurisdiction by consent
where it is otherwise lacking.

[49]

Similarly, if the order of the chambers judge were in some way to be
squeezed into the s. 35 modification jurisdiction, NBC would rightly
submit that the judges discretion to assign the costs of the relocation to it
was exercised with a view to its breach of the no construction covenant, and without
regard to the obligation under clause 14 on Aarts to connect to the municipal
water supply and without making the findings of fact to determine if indeed clause
14 had been triggered.

[50]

Finally, in light of Mr. Taylors last submission that I am not
prepared to say I am giving up on my argument about cancellation at all, one
cannot characterize what the judge ordered as giving effect to some sort of
settlement reached during oral argument.

[51]

On this analysis, the disposition of the chambers judge cannot stand. It
was a well-intentioned judicial compromise that exceeded the judges
jurisdiction under s. 35 of the
PLA
and, in any event, is not based
on a consideration all of the equities relevant in the matter; that is to say,
in ordering that NBC bear the costs of relocation, the judge considered NBCs
alleged breach of the agreement but did not put the possibility of Aarts
failure to connect to the municipal water supply into the balance.

[52]

What then of NBCs petition? It too was misguided. In respect of the
relief sought in para. 5 (the only viable relief sought), recall that
there are two branches to NBCs s. 35 case: the Easement is obsolete in
light of the availability of a municipal water supply (s. 35(2)(a)) or,
alternatively, the parties expressly or impliedly consented to the Easements
cancellation (s. 35(2)(c)).

[53]

The obsolescence argument fails at the threshold. The well and pipeline
continue to supply water to Aarts Lot. The Easement clearly is not obsolete.
If
Aarts is in breach of clause 14, that is a matter for civil enforcement of the
contract.

[54]

Whether an easement is obsolete depends on the nature of the easement
itself and the circumstances of the use of the relevant property; it is not to
be decided on a basis of balancing the rights of the parties:
Chivas v.
Mysek
, [1986] B.C.J. No. 2547 (C.A.). As this Court held in
Vandenberg
at para. 33, on the plain language of s. 35(2)(a), an easement cannot
be obsolete in circumstances in which it has been in regular use.

[55]

In order for the court to cancel the Easement on the basis of
obsolescence, evidence would need to be before it that Aarts no longer uses the
private water system covered by the Easement.

[56]

Indeed, before we get to s. 35(2)(a) and the other considerations
set out in sections (2)(b) to (e), NBC must have demonstrated that the
application is not premature in the circumstances. It fails here as well. In
Newco
Invt. Corp. v. B.C. Transit
(1987), 14 B.C.L.R. (2d) 212 (at 223), this Court
provided the following guidance on the issue of prematurity:

. . . Thus
where it appears that considerations, material to a determination whether
grounds exist under paras. (a) to (e), have not yet materialized or where,
for other reasons, it would be better to defer to a later date consideration of
whether the covenant should be struck out, the application should be dismissed.

[57]

Here, the considerations material to whether grounds exist under
s. 35(2)(a) and (c) had not yet materialized. These considerations
included the formal notice from the Municipality of Langley of the availability
of municipal water, the passage of 120 days from receiving the notice, and the
connection by Aarts to the municipal water supply. Accordingly, the application
by NBC was premature in the circumstances.

[58]

Then NBC pursues the agreed to cancel submission. That finds its
genesis in clause 14 of the Easement. Again, that provides:

If Municipal water becomes available
to [NBCs Lot] and [Cassidys Lot] and [Aarts Lot] and is sufficient for the
commercial purposes of [Aarts], then all of the parties covenant that within
120 days of receiving notice from the Municipality of Langley of the
availability of the Municipal water, that they will connect to the Municipal
water and all parties will immediately after connection to the Municipal water
supply release, discharge and cancel the easement hereby granted.

[59]

However, NBCs submission ignores the clear conditions precedent that
must be satisfied before the parties agree to release, discharge and cancel
the easement hereby granted.

[60]

The conditions are: (i) the parties receiving
notice from the Municipality
of Langley
of the availability of Municipal water sufficient for the
commercial purposes of [Aarts] (emphasis mine) and (ii) the connection of the
Lots to the water supply within 120 days of receipt of that notice.

[61]

There is no evidence in the record that
Langley
has given such
notice. Indeed, if one accepts Aarts evidence through its expert, there is
some doubt Langley would approve of the needed water connections, and the
chambers judge certainly did not make any finding in this regard.

[62]

When asked about proof of service of the required notice by Langley,
counsel for NBC submitted that it was effectively given to all the world by virtue
of the fact that municipal water regulated by Langleys bylaw was available in
the area.

[63]

In my view, that is not the notice contemplated by the Easement. The
Easement contemplates a formal notice stating the availability of municipal
water, which in turn would trigger a 120 day period within which the parties
had to connect to the water system. That has not happenedat least there is no
evidence that it has. It is then said by NBC that this aspect of the matter
hinged on an application by Aarts to Langley; that this was beyond the control
of NBC. There is nothing in the record indicating that Langley would not
cooperate with NBC by giving the required notice or, further, that NBC could
not compel Langleys cooperation through an appropriate proceeding. NBC wants
to rely on a very significant obligation in the Easement that leads to its very
cancellation. It is incumbent on NBC to ensure that the conditions precedent to
that cancellation have been performed.

[64]

Finally, of course, Aarts has
not
connected to the municipal
water supply system. Neither condition has been fulfilled. The agreed to
cancel argument under s. 35 cannot be sustained.

[65]

The petition must be dismissed.

[66]

If Aarts and NBC wish to enforce the obligations under the Easement that
benefit them, they must pursue a civil claim in the Supreme Court. However, as
I indicated above, a reasoned compromise must be considered. NBC built on the
Easement in apparent contravention of clause 8. Aarts arguably has failed to
connect to an available municipal water supply thus obviating the need for a
private supply. Clause 13 of the Easement does provide a scheme for compromise with
the parties modifying that scheme by fairly sharing the costs of relocation of
the private works. NBC could do so because whether Aarts is in breach of clause
14 is problematic. Without deciding the question, the phrase sufficient for
the commercial purposes of [Aarts] must in my view, and contrary to NBCs
submission, involve some consideration of the economics of the matter from the
perspective of Aarts business operation, perhaps on the basis of a
subjective/objective assessment of the impact of those costs on Aarts. And
Aarts of course would consider a compromise for the very reason that its
position under clause 14 is not at all clear.

The Special Costs Award

[67]

NBC also appeals the award of special costs against it. I note that the
decision to award special costs is discretionary and that discretion should not
be interfered with on appeal unless the judge made an error in principle or the
costs award is plainly wrong:
Hamilton v. Open Window Bakery Ltd.
, 2004
SCC 9 at para. 27.

[68]

Special costs are typically awarded when there has been reprehensible
conduct on the part of one of the parties:
Young v. Young
, [1993] 4
S.C.R. 3 at 134. Reprehensible conduct means scandalous or outrageous conduct
but also encompasses milder forms of misconduct deserving of reproof or rebuke:
Garcia v. Crestbrook Forest Industries Ltd.
(1994), 9 B.C.L.R. (3d) 242
(C.A.) at para. 17.

[69]

This Court established a bright line rule regarding special costs and
pre-litigation conduct in
Smithies Holdings Inc. v. RCV Holdings Ltd.
,
2017 BCCA 177 at para. 134:

Special costs should be reserved
to punish and deter reprehensible conduct in the course of litigation.
Pre-litigation conduct should not be considered in determining whether such an
award is appropriate. There are other suitable mechanisms to censure
pre-litigation conduct.

The
reasons of the chambers judge with regard to the special costs award do appear
to be focused on NBCs pre-litigation conduct (at para. 23):

NBC purchased the property fully
aware of the Easement Agreement. But it chose to build the wall right on top of
the easement, did not halt building when requested and chose instead to
complete the wall, then apply to court to cancel the easement. Not only is this
behaviour contrary to the Easement Agreement, it is relevant to the issue of
costs. I am satisfied that NBC created a problem that did not have to be
created, then made resolution of it far more difficult than it should have been.
As such an award of special costs against NBC is warranted.

[70]

The judge made no reference to the ongoing effect of the wall on the
terms of the Easement. Instead, she focused on the choices that NBC made prior
to the commencement of the litigation, its resistance to out-of-court
resolution, and its choice to make what she viewed as an unnecessary petition.
The problem that NBC created is properly the subject of a claim for relief in
a civil action, not a special costs award following a petition.

[71]

A failure to resolve an issue out of court also does not attract special
costs. Litigation is an inherently adversarial process and parties are
generally entitled to have their claims or petitions heard on their merits.

[72]

In my opinion, the judge erred in principle by awarding special costs
against NBC.

VI. Disposition

[73]

I would allow the appeal from the orders of the chambers judge but
dismiss the petition with liberty to proceed as I have indicated. I would set
aside the award of special costs.

[74]

In the odd circumstances of this litigation, I think it is appropriate
that the respondents have their costs of the chambers application and this
appeal.

The
Honourable Chief Justice Bauman

I agree:

The Honourable Madam
Justice Dickson

I agree:

The Honourable Mr. Justice Hunter


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Perkins,

2021 BCCA 9

Date: 20210112

Docket: CA45393

Between:

Regina

Respondent

And

Corey Jim Perkins

Appellant

Before:

The Honourable Madam Justice Fenlon

The Honourable Madam Justice Griffin

The Honourable Mr. Justice Voith

On appeal from: An
order of the Supreme Court of British Columbia, dated March

12, 2018 (
R. v. Perkins
,
2018 BCSC 823, Chilliwack Docket 65705‑3).

Counsel for the Appellant (via videoconference):

D. Markovitz

Counsel for the Respondent (via videoconference):

C.W. Greenwood

Place and Date of Hearing:

Vancouver, British
  Columbia

December 18, 2020

Place and Date of Judgment:

Vancouver, British Columbia

January 12, 2021

Written Reasons by:

The Honourable Madam Justice Griffin

Concurred in by:

The Honourable Madam Justice Fenlon

The Honourable Mr. Justice Voith

Summary:

Appeal from conviction on
two counts of possession of cocaine, six counts of illegal possession of
firearms, and two counts of possession of prohibited devices. The charges arose
from the seizure of drugs, firearms, and firearm accessories upon the execution
of various warrants. At trial, the appellant challenged the facial validity of
the warrants. The judge initially held that the warrants were invalid, based on
the informations to obtain (ITOs) that were redacted for informant
protection. After the Crown provided the judge with partially unredacted ITOs,
the judge found the warrants were valid. The appellant appeals on the grounds
that the unredacted information was insignificant, the new information revealed
had been virtually conceded, and the judge treated informant evidence
inconsistently. Held: Appeal dismissed. The trial judge did not err in finding
the unredacted information was significant or in his weighing of that evidence.
If the appellant did concede the inference available from the unredacted ITO, the
judge did not accept it. There was no inconsistency in the way the judge
treated informant evidence.

Reasons for Judgment of the
Honourable Madam Justice Griffin:

Introduction

[1]

The appellant, Corey Perkins, appeals his convictions on March 12, 2018,
of two counts of possession of cocaine and fentanyl for the purpose of
trafficking; six counts of illegal possession of various firearms (including
restricted semi‑automatic rifles, a prohibited sawed‑off shogun, and
restricted or prohibited handguns); and two counts of possession of prohibited
devices, namely detachable cartridges and silencers.

[2]

The firearms were discovered after the execution of search warrants on a
storage locker, the keys to which were in the appellants blue Mercedes car,
which had been the subject of a tracking warrant and was also the subject of a
search warrant. The keys found in the Mercedes also opened a safe inside the
storage locker, which contained cocaine, and a safe located in a barn on Taylor
Road. The police searched the barn and found an additional firearm, as well as
drugs in the safe. The appellants fingerprints were inside the safe. An
additional firearm was discovered on execution of a search warrant on the
appellants residence. Cocaine and fentanyl were also found in an envelope
delivered by the appellant to a Canada Post outlet. Similar packaging was found
in the barn. Surveillance of the appellant showed him attending the storage
locker and the Taylor Road barn and moving containers around these places as
well as to the Canada Post outlet. The surveillance of the appellants Mercedes
revealed short meetings in parking lots, consistent with drug transactions,
based on police experience.

[3]

This appeal focuses on a number of
voir dire
rulings at trial
concerning evidence obtained by way of a production order served on the owner
of the storage facility, a general warrant for the storage locker, and search warrants
covering the storage locker, the barn, and the appellants home and vehicle. The
rulings addressed applications by the appellant for declarations that his right
to be secure against unreasonable search and seizure, guaranteed by s. 8
of the
Charter
, was violated by the searches, and for an order pursuant
to s. 24(2) of the
Charter
excluding all evidence obtained.

[4]

The judge initially held that the information to obtain (ITO) was
insufficient to justify the production order and the general warrant, in that
the information did not provide reason to believe that the appellant was
someone who had committed a drug offence. This was in part because the judge
was unable to give weight to information provided by a confidential informant
known as Source E. That information was initially redacted from the
evidence presented to the judge in order to protect the identity of the
informant.

[5]

After the judge found the ITO to be incapable of supporting the warrants,
the Crown supplemented the evidence placed before the judge. This supplemental evidence
revealed to the judge that Source E identified the appellant by sight,
used a single consistent name for him, and had picked up cocaine [redacted]
from him. The judge approved a judicial summary of the evidence to this effect,
which was provided to the appellant. This was all done pursuant to step six of
the procedure laid out in
R. v. Garofoli
, [1990] 2 S.C.R. 1421 at
p. 1461.

[6]

Based on the supplemented ITO, the judge upheld the production order,
general warrant and other search warrants as valid. The evidence obtained by
use of these warrants was then admitted against Mr. Perkins.

[7]

The sole issue on appeal is whether the judge erred in law in finding
that the additional, unredacted information in the ITOs, together with the pre‑existing
information, was sufficient to support the production order and warrants. The
appellant submits that there was no material change in the information from
what the judge had earlier determined to be insufficient. The appellant characterizes
the judges decision as reversing his earlier rulings.

[8]

It is important to note that the appellant takes no issue with the
judges adoption of step six of the procedure in
Garofoli
. The appellant
also does not take issue with the judicial summary. He accepts that the
judicial summary provided a sufficient basis for the appellant to appreciate
the nature of the unredacted evidence shown to the judge.

[9]

Rather, the appellant simply says the unredacted information provided to
the judge, and summarized for the appellant, was too insubstantial to have
tipped the balance and to have caused the judge to change his conclusion that
the ITO was insufficient to support the production order and warrants.

[10]

For the reasons that follow, I am not persuaded that the judge erred.
The judge did not reverse his earlier rulings. He followed the correct
procedure in considering the unredacted information, applied the correct legal test,
and properly appreciated all of the evidence in upholding the production order
and warrants as valid.

Standard of Review

[11]

Before I delve into a review of the background and various rulings by
the trial judge concerning the warrants, it is important to remind ourselves of
the standard by which the appeal court may review the decision of a trial judge
who is tasked with the review of a judicial officers order authorizing a
search or seizure.

Court of Appeal Standard of Review

[12]

This Courts role in reviewing the trial judges findings in respect of
a warrant review is deferential. The Court should decline to interfere with the
trial judges decision absent an error of law, a misapprehension of evidence,
or a failure to consider relevant evidence:
R. v. Slemko
,
2020 BCCA 207 at para. 53;
R. v. Reid
, 2017 ONCA 430 at para. 8;
R. v. Grant
(1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at para. 18,
leave to appeal refd [1999] S.C.C.A. No. 168;
R. v. Ebanks
, 2009
ONCA 851, leave to appeal refd [2010] S.C.C.A. No. 84.

Reviewing Judges Standard of Review

[13]

The trial judges role is to determine whether the order
could
have been granted based on the record that was before the authorizing justice,
as amplified on review, not whether, in the view of the trial judge, the order
should
have been granted:
R. v. Whitaker
, 2008 BCCA 174 at para. 43; leave
to appeal refd [2008] S.C.C.A. No. 296;
R. v. Araujo
, 2000
SCC 65 at para. 51;
R. v. Al‑Maliki,
2005 BCCA 157.

[14]

The production order and warrants at issue on this appeal all required
the justice to first conclude that the evidence in support of the warrant
provided reasonable grounds to believe that the offence described in the
warrant had been committed. The offences alleged in this case were possession
of drugs for the purpose of trafficking and trafficking in drugs contrary to
ss. 5(1) and (2) of the
Controlled Drugs and Substances Act
, S.C.
1996, c. 19 (
CDSA
). It was the determination of reasonable
grounds to believe these offences had been committed that is at issue on this
appeal.

[15]

The justice considering the applications for the production order and warrants
at issue had to also determine that there were reasonable grounds to believe
that execution of the order and warrants would afford evidence of these
offences. The reviewing judges determination that this aspect of the test was
met is not at issue on this appeal.

[16]

The reasonable grounds to believe standard is applied in several
different contexts. It was explained in
Whitaker
:

[39]      The reasonable grounds standard is well‑known.
The Supreme Court of Canada said this about it in
Mugesera v. Canada
(Minister of Citizenship & Immigration)
, [2005] 2 S.C.R. 100, 2005 SCC
40:

114      The first issue raised by s. 19(1)(j) of the
Immigration
Act
is the meaning of the evidentiary standard that there be reasonable
grounds to believe that a person has committed a crime against humanity. The
FCA has found, and we agree, that the reasonable grounds to believe standard
requires something more than mere suspicion, but less than the standard
applicable in civil matters of proof on the balance of probabilities:
Sivakumar
v. Canada (Minister of Employment and Immigration)
, [1994] 1 F.C. 433
(C.A.), at p. 445;
Chiau v. Canada (Minister of Citizenship and
Immigration
), [2001] 2 F.C. 297 (C.A.), at para. 60. In essence,
reasonable grounds will exist where there is an objective basis for the belief
which is based on compelling and credible information:
Sabour v. Canada
(Minister of Citizenship & Immigration)
(2000), 9 Imm.L.R. (3d) 61
(F.C.T.D.)

[40]      The judgment of Madam Justice Wilson in
R. v.
Debot
, [1989] 2 S.C.R. 1140 (at 1166), is also apt:

The question as to what standard of proof must be met in
order to establish reasonable grounds for a search may be disposed of quickly.
I agree with Martin J.A. that the appropriate standard is one of reasonable
probability rather than proof beyond a reasonable doubt or
prima facie
case. The phrase reasonable belief also approximates the requisite standard.

[41]      A determination with respect to whether reasonable
grounds exist requires a consideration of the totality of the circumstances:
R.
v. Bracchi
, 2005 BCCA 461, 201 C.C.C. (3d) 35 at para. 20;
Re
Church of Scientology & The Queen (No. 6)
(1987), 31 C.C.C. (3d)
449 (Ont. C.A.) at 502. This means that, it is important that the Information
be examined as a whole and not one piece of evidence at a time, because each
piece of evidence colours other pieces of evidence and a fuller picture emerges
by considering all of the evidence together:
R. v. Lam
, 2002 BCCA 99,
172 B.C.A.C. 161 at para. 10.

[42]      Further, the assessment of the facts relied upon to
establish reasonable grounds is made on a practical, non‑technical, and
common sense basis:
R. v. Sanchez
(1994), 93 C.C.C. (3d) 357
(Ont.Ct.)(G.D.)) at 367. As Mr. Justice Cumming observed in
R. v.
Charlton
(1992), 15 B.C.A.C. 272, the person deciding whether the
reasonable grounds standard has been met is entitled to put two and two
together: para. 34.

[Emphasis in original.]

[17]

Warrants are obtained on an
ex parte
basis, frequently relying on
information provided by confidential informants.

[18]

The dilemma when reviewing the basis for a warrant is how to protect
three interests: enforcing the law; informer privilege, which is designed to
protect a confidential informants safety; and an accuseds right to make full
answer and defence:
R. v. Crevier
, 2015 ONCA 619 at para. 1. In
Garofoli
,
the Supreme Court of Canada established a six‑step editing procedure to
address that dilemma.

[19]

The
Garofoli
procedure can be briefly summarized as follows.
Initially, the information produced to the defence and the court on review of
the warrant can be edited to protect the identity of the confidential
informant. If, after redaction of the confidential information, the reviewing
judge considers the remaining information to be insufficient to support the
warrant, the Crown may apply to produce some of the previously redacted
material to the judge. This is step six of the
Garofoli
procedure. The
reviewing judge will only consider the newly unredacted material if satisfied
that a judicial summary of it has been provided to the defence that provides
the defence with enough knowledge to still be able to challenge it. It is this
procedure that was followed here, and the appellant does not suggest it was
done incorrectly.

[20]

When considering whether information provided by a confidential informant,
together with other information, meets the reasonable grounds for belief
standard, the reviewing judge must consider whether the ITO provides sufficient
details to be able to assess the informants reliability. In
R. v. Debot
,
[1989] 2 S.C.R. 1140 at p. 1168, Wilson J. identified three criteria as
the focus of assessing an informants evidence: the information must be compelling;
it must come from a credible source; and it must be corroborated by police
investigation prior to being relied on. The consideration of the informants
credibility can include evidence from the police as to the quality of the
information received in the past from this informant and the motives of the
informant. None of these factors form a separate test, and weaknesses in one
area may be offset by strengths in another, but these factors are part of the
totality of the circumstances that must meet the standard of reasonable grounds
for belief.

[21]

In a challenge to an issued warrant, a distinction is made between
facial defects and subfacial defects, as explained in
Slemko
at para. 2:

A warrant may be quashed when the
Information to Obtain (ITO) the warrant does not set out reasonable and
probable grounds to believe that an offence has been committed and that there
is evidence to be found at the place of the search (a facial defect); or
because the reviewing judge is satisfied the warrant was founded upon false,
inaccurate or misleading evidence (a subfacial defect).

[22]

The present appeal involves a facial challenge to the warrants in
question. There is no allegation that the information provided to obtain the
warrants was in error, and so there was no amplification of the record on
review to correct good faith errors.

[23]

The appellant does not allege that the judge erred in law in respect of
any of the above principles that applied to his task of reviewing the issuance
of the production order and warrants.

[24]

Indeed, it is clear that the judge properly instructed himself on these
principles in his reasons, citing
Whitaker
and
Debot
, among other
authorities.

Background

[25]

The judge was required to make a number of
voir dire
rulings
regarding admissibility of evidence obtained by warrant. Not all of these
rulings are the subject of appeal, but the judges analysis of the evidence set
out in the relevant ITOs was sometimes a necessary stepping‑stone for his
subsequent rulings.

[26]

I will focus only on those rulings relevant to the issue on this appeal.

February 1, 2018 Ruling re Tracking Warrant

[27]

At trial, the appellant challenged the validity of a warrant issued on
November 6, 2014, to track the movements of a certain blue Mercedes automobile
registered in the name of the appellant (the Tracking Warrant). The Tracking
Warrant was issued on the basis of an ITO affirmed by Cst. Davies on
November 6, 2014. The information in this ITO was carried forward into
additional ITOs affirmed by Cst. Davies.

[28]

The appellant sought a declaration that the Tracking Warrant should not
have been granted. The judge dismissed that application on February 1, 2018, in
reasons indexed as 2018 BCSC 232 (Ruling re Tracking Warrant). No issue is
taken with this decision.

[29]

While the Crown did not seek to have evidence obtained by way of the
Tracking Warrant admitted at trial, that evidence was relevant because it was included
in subsequent ITOs to obtain additional warrants, which were being challenged
and are at issue on appeal.

[30]

In the judges Ruling re Tracking Warrant, he noted that the standard
for issuing such an order is reasonable grounds to suspect that an offence
has or will be committed and that information relevant to the commission of the
offence can be obtained through use of a tracking device: s. 492.1(1)
Criminal
Code
;
R. v. Chehil
, 2013 SCC 49. This standard is lower than the
reasonable grounds to believe standard that applies to other warrants at
issue.

[31]

The judge noted that the ITO made five assertions in support of a
reasonable suspicion that a tracking device on the Mercedes would assist in
obtaining information relevant to the offence of drug trafficking and possession
for the purpose of trafficking, at para. 17:

(a)

that Mr. Himpfen (Himpfen) and Ms. Losier
(Losier) were drug dealers;

(b)

that Himpfen was observed meeting or
tracked to a meet with the Mercedes;

(c)

that Corey Perkins was the registered
owner of the Mercedes and had been seen driving it;

(d)

that Corey Perkins was reputed to be a
drug dealer; and

(e)

that Himpfen was supplied indirectly by
someone called Corey.

[32]

The ITO set out evidence from four confidential informants, Sources A,
B, C, and D. The ITO set out information relating to their reliability,
including their past history and the extent to which the information they
provided was confirmed by other sources. The information provided by
Source B was redacted. There was also surveillance evidence.

[33]

It is convenient to set out the judges review of the evidence in the
ITO, because, as noted, this evidence was a foundational part of the record and
context for the judges subsequent rulings:

THE ASSERTION THAT HIMPFEN
AND LOSIER WERE DRUG DEALERS

[19]      Paragraphs 22 to 28 of the ITO set out information
obtained from Source A, who had a limited history with the Abbotsford
Police as an informant, but whose information had in the past led to the arrest
of persons with outstanding warrants.

[20]      Source A provided information that Esther
Losier and Jason Himpfen sold cocaine and methamphetamine including out of
Losiers car and out of Himpfens house on Tims Street. Source A provided
specific details that were confirmed by the police including that the two were
seeing each other, that Losier lives on Capilano Place, and that Himpfen hangs
around the tent city near the Salvation Army. The information that people
came to Himpfens house at 2856 Tims Street to buy drugs is consistent with
police observations of multiple people attending that address for short periods
of time.

[21]      Source C provided information on Himpfen and
Losier, some of which confirmed As information; for example, the assertion at
paragraph 30(a) that drugs were being sold out of 2856 Tims Street.
Source C also provided information at paragraph 30(d) about three specific
vehicles that Himpfen and Losier were driving, a Nissan 350Z, a Dodge Magnum,
and a GMC Yukon, which they used to reload their drug dealers. The use of these
three specific vehicles by Himpfen and Losier was confirmed by police
surveillance.

[22]      Like Source A, Source C had a limited
history as an informant, and his credibility might initially be assessed as
low, but the information about the three vehicles was very specific, and it was
confirmed by other evidence.

[23]      I am satisfied that the information provided by
Source A and by Source C should not be entirely discounted, but
rather can be considered along with the other evidence as part of the
constellation of facts relevant to the assessment of the reasonable suspicion
standard.

[24]      In any event, the assertion that Himpfen and Losier
were drug dealers was supplemented by the facts set out in paragraphs 36 to 37,
that Himpfen and Losier were arrested in the Nissan on October 28, 2014 for
possession of controlled substances, at which time Losier had one cell phone in
her boot and another in her bra, and Himpfen had $1,522 in folded bills in his
pants pocket. Losier was searched, and a plastic bag was found in her vagina.
The bag contained a light brown powder and a bag of white crystals, which were
suspected of being heroin and methamphetamine.

THE ASSERTION THAT MR. HIMPFEN MET WITH THE MERCEDES
OWNED BY MR. PERKINS

[25]      Surveillance evidence set out at paragraphs 32 to
33 of the ITO showed that on October 21, 2014, Himpfen and Losier left the Tims
Street house in the Yukon and an hour later parked in the parking lot of the
Twister Gym beside a blue Mercedes. Himpfen got out of the Yukon and into the
front passenger seat of the Mercedes. About 30 seconds later, he got out of the
Mercedes and back into the Yukon. Both vehicles then left the area. Cst. Davies
affirmed that in his experience, these actions were consistent with a drug
transaction.

[26]      The Yukon went directly to 32847 Capilano Place for
two minutes and then returned to the Tims Street house.

[27]      During the surveillance, Cst. Nugent observed
that the licence plate of the blue Mercedes contained the characters, AD8. A
subsequent check with ICBC showed a possible match for a blue Mercedes in
Abbotsford with the licence, AD8 81N. A CPIC check showed the registered
owner of that vehicle to be Corey Jim Perkins of 34239 Green Avenue,
Abbotsford, British Columbia. A query of the Abbotsford Police Department
booking system produced a booking photo for the name Perkins at the Green
Avenue address, and that photograph was circulated to other police members.
Surveillance on October 27, 2014, showed Mr. Perkins exiting the residence
at 34239 Green Avenue and driving away in the Mercedes. He drove to a farm
property at 29939 Taylor Road. At paragraph 34(d) of the ITO, it states, Perkins
appeared to be working in a greenhouse.

[28]      On November 3, 2014, Himpfen was observed exiting
the Tims Street house and driving away in the Nissan. A tracking device on the
Nissan showed that it stopped on Satchell Street just west of Ross Road. At the
same time, the Mercedes was seen leaving eastbound from the same area. Satchell
Street is a rural farm road, and no other vehicles were observed in the area at
the time. The Mercedes parked at 29939 Taylor Road, and Corey Perkins was
confirmed as the driver. The Nissan did not stop until it entered the driveway
of the Tims Street house, where Himpfen was seen exiting the Nissan carrying a
small white grocery bag.

THE ASSERTION THAT MR. PERKINS WAS REPUTED TO BE A
DRUG DEALER

[29]      Paragraph 42 of the ITO shows that Cst. Davies
performed a CPIC and PRIME search on November 4, 2014, and found that Corey Jim
Perkins has convictions for trafficking in a Schedule I substance in 2009,
a conviction for production of a Schedule I substance in 2009, and a
conviction for possession of a Schedule I substance for the purpose of
trafficking in 2009.

THE ASSERTION THAT HIMPFEN WAS SUPPLIED INDIRECTLY BY
SOMEONE CALLED COREY

[30]      Source D provided information that Phil Aslin
works for someone named Corey and that Phil Aslin supplies Himpfen with
drugs. This information lacks specificity, in that Source D provided no
surname for the person named Corey. As well, Source D had a very limited
history as an informant, and police had never before acted on any information
supplied by him.

[31]      Nevertheless, his information is consistent with a
PRIME report that Phil Aslin was a passenger in a vehicle driven by Corey
Perkins on April 16, 2014.

[32]      While the information
supplied by Source D is entitled to very little weight, it need not be
discounted in its entirety, but rather can properly be considered as one small
and relatively insignificant part of the overall constellation of
circumstances. I say this bearing in mind that the evidence is not to be evaluated
on a piecemeal basis.

[34]

The judge considered the circumstantial evidence and concluded it met
the reasonable suspicion standard (para. 39).

February 7, 2018 1
st
Ruling re Production Order

[35]

Another
voir dire
ruling was made on February 7, 2018, indexed at
2018 BCSC 307 (the 1
st
Ruling re Production Order). This concerned
a production order granted on December 10, 2014, by a justice of the peace (the
Production Order), requiring the production of information by a storage company.
The information sought concerned video, customer information, contracts and
pass codes relating to a specific storage locker.

[36]

The Production Order had been granted on the basis of an ITO provided by
Cst. Davies, dated December 10, 2014. That ITO built on the earlier ITO
provided by Cst. Davies that had been used to support the Tracking Warrant.

[37]

The judge recognized and stated that the task before him was different
than the task of reviewing the Tracking Warrant. Whereas the latter was subject
to the reasonable suspicion standard, the present task was subject to the
reasonable grounds to believe standard:

REASONABLE GROUNDS STANDARD

[12]      Unlike a tracking warrant, where the application
materials must satisfy a reasonable suspicion standard, the legislation in
relation to production orders and general warrants sets the bar higher and
requires that the prerequisites be established on the standard of reasonable
grounds to believe.

[13]      Reasonable grounds are something more than
suspicion, but less than the civil standard of a balance of probabilities, and
less than a
prima facie
case
.
It is a practical, non‑technical,
and common sense standard that requires a consideration of the totality of the
circumstances:
R. v. Debot
(1989), 52 C.C.C. (3d) 193 at p. 213
(S.C.C.);
R. v. Whitaker
, at paras. 39‑42;
R. v. Lam
,
2002 BCCA 99 at paras. 7‑8; and
R. v. Liu
, 2014 BCCA 166 at paras. 33‑39.

[14]      In reviewing the application materials submitted
for a production order or a warrant, the grounds must be assessed from the
standpoint of a reasonable person standing in the shoes of the police officer,
and in this respect the experience of the affiant is relevant:
R. v. Tran
,
2007 BCCA 491 at paras. 12‑13.

[15]      Where the affiant relies on information obtained
from a confidential informer, the court must assess the informers reliability,
including past performance, motive, and whether the information was compelling,
credible, and corroborated, although weakness in one area may be compensated
for by strengths in the others:
R. v. Debot
at p. 215.

[16]      Reasonable grounds can
be based in part on reputation evidence, including the reputation of the
suspect and the reputation of people with whom the suspect associates, although
the weight to be given to such evidence will depend in part on its reliability:
R. v. Debot
at pp. 215‑216.

[38]

After reviewing the law, the judge considered the evidence in the ITO,
as redacted, and whether it provided a basis on which the justice could have
found there were reasonable grounds for Cst. Davies stated belief that
the appellant had committed a drug offence and that production of the data
relating to the storage locker would afford evidence respecting the commission
of that offence.

[39]

The judge noted that in his Ruling re Tracking Warrant he found that the
Tracking Warrant was properly issued, but the standard for a tracking warrant
was only reasonable suspicion, not reasonable belief. In the 1
st
Ruling
re Production Order, the judge noted that the earlier ITO would not have met
the standard of reasonable grounds to believe (para. 26).

[40]

The judge thus moved on to consider whether the additional information
in Cst. Davies December 10, 2014 ITO was sufficient to raise the level of
confidence from that of reasonable suspicion to reasonable grounds to believe
the appellant committed a drug offence.

[41]

The judge found that there were four categories of additional evidence:

1.

Additional evidence that the appellant regularly drove the blue
Mercedes, including on dates in November and December 2014, all of which strengthened
the inference that it was the appellant in the Mercedes when it was seen
meeting in suspicious circumstances with Himpfens Yukon on October 21, 2014 (para. 30);

2.

Information that even after his arrest, Himpfen continued to be involved
with activities consistent with drug activities. That strengthened the
inference that there may have been a drug transaction between Himpfen and the
appellant when Himpfens vehicle and the Mercedes were tracked in close
proximity to each other near a rural farm (para. 31);

3.

Two further occasions when the appellant was the subject of surveillance
and was seen driving his Mercedes to brief meetings with persons in
circumstances consistent with drug activities. In one meeting in a parking lot,
a person entered the Mercedes, left after one minute and drove away. In another
meeting in a different parking lot, the appellants Mercedes was parked
adjacent to a vehicle; the appellant entered the other vehicle, and in under
two minutes left the other vehicle and drove away. The driver of the other
vehicle was someone with a record for possession for the purpose of trafficking;
and

4.

New
evidence from a confidential informant, described as Source E.

[42]

The earlier ITO had not referred to Source E. The new ITO stated
that: Source E had been providing information since 2014; the information
he provided resulted in one tracking warrant and two CBSA search warrants in
which controlled substances were located and seized; Source E was
motivated by money and consideration of current charges and was awaiting
disposition on something; and the information he provided was based on personal
knowledge.

[43]

The judge observed that the paragraph of the ITO setting out the
information provided by Source E was heavily redacted, leaving it
impossible to tell if the information was very significant or
inconsequential. The judge noted:

[37]      On this review, however, almost the entirety of
paragraph 43 has been redacted
.
What is left unredacted is just parts of
clause (f), clause (g), and clause (i)
.
Clause (f)
speaks of Source E identifying a booking photo of Corey Perkins as, and
then there is a redaction
.
Clause (g) says that Source E
described, and then there is a redaction, followed by the words, as white and
skinny with a long skinny face and had a tattoo on the top of his hand, after
which Cst. Davies added the comment that Cst. Toews observed a tattoo
on the top of Perkins hand
.
Clause (i) states that Source E
picked up cocaine, and then there is a redaction, followed by the words directly
from followed by another redaction, and then the comment of Cst. Davies
that Perkins has a criminal record for drug trafficking
.

[38]
Depending on what
is in those portions that have been redacted, this information from
Source E could be very significant or it could be completely
inconsequential
.
In its current redacted form, it is impossible to tell,
and it would be wrong to speculate
.

[Emphasis added.]

[44]

Because of the redactions, the judge concluded that he could not place
any weight on information provided by Source E (para. 39).

[45]

The judge found that the other additional information had provided a
stronger basis for believing that the appellant was involved in a drug offence
than what was provided in the earlier ITO (para. 40). But, while the case
was
very close to the line
, he concluded that the reasonable grounds
for belief standard has not been met on the basis of the December 10, 2014 ITO
as
currently redacted
 (para. 42; emphasis added). The judge held that
on the basis of the
redacted
ITO, there were not grounds upon which the
justice could have properly issued the production order (para. 43; emphasis
added).

February 8, 2018 2
nd
Ruling re Production Order

[46]

Following the judges 1
st
Ruling re Production Order, the
Crown immediately applied to have the court consider a partially unredacted
version of the ITO. The judge approved a judicial summary of this additional
information, which was provided to the appellant.

[47]

After considering the additional information, the judge issued a second
ruling with respect to the production order on February 8, 2018, indexed at
2018 BCSC 308 (the 2
nd
Ruling re Production Order).

[48]

As explained in the 2
nd
Ruling re Production Order, the judge
was provided with a new page of the ITO, revealing to him some of the
information that was previously redacted (although other redactions remained).
The judge approved a judicial summary of the new material that he was shown,
and that summary was provided to the appellant. The judge explained the nature
of the new information:

[5]        With the new information that was not before me at
the time of my ruling on February 7, 2018, paragraph 43(f), (g) and (i) of the
ITO may now be understood in this way, as explained in the judicial summary:

(f)         Source E
identified a booking photo of Corey Perkins as being [NAME].

(g)        Source E described
[NAME] as white and skinny with a long skinny face and had a tattoo on the top
of his hand [Cst. Toews observed a tattoo on the top of Perkins
hand]. . .

(i)         Source E picked up
cocaine [redacted] directly from [NAME] [Perkins has a criminal record for drug
trafficking].

[6]        In the previously
redacted version of this material, it was not clear whether Source E was
referring to the same individual in clauses (f), (g) and (i). Following
the
Garofoli
Step 6 procedure, it is now clear that he was referring to
the same person in each of those clauses. That is, Source E identified a
booking photo of Corey Perkins as being a person he referred to by a certain
name. He described that person as being white and skinny with a long skinny
face, and had a tattoo on the top of his hand and he picked up cocaine
[redacted] directly from that person.

[49]

The judge noted two arguments advanced by the appellant.

[50]

One argument was that the appellant did not know the specific name that
Source E used, which would help him in knowing whether Source E was
mistaking him for someone else. The Crown position was that revealing the
actual name would compromise informant privilege.

[51]

The second argument advanced by the appellant was that the new
information did not add anything significant to what was known before. In
particular, the appellant noted that the information in (i) above, which states
that Source E picked up cocaine from the appellant, was undated. Since it
was known from information in the earlier ITO that the appellant had a previous
conviction for a drug offence in 2009, it was possible that Source E was
referring to the transaction for which the appellant had previously been
convicted.

[52]

The judge considered these arguments but noted that the issue was not
whether the new information on its own was sufficient, but whether the entire
constellation of information  is sufficient to provide reasonable grounds for
belief (para. 11).

[53]

The judge found that the additional information, along with the earlier
information from the December 12, 2014 ITO, did provide reasonable grounds for
Cst. Davies belief that the appellant was involved in a drug offence (para. 29).

[54]

The judge went on to consider the second requirement for obtaining a
warrant: whether the material provided reasonable grounds to believe that the production
order would afford evidence of the offence. He concluded that it did. The
appellant does not take issue with this aspect of the judges analysis.

February 8, 2018 1
st
Ruling re General Warrant

[55]

The judge next considered an application by the appellant for a
declaration that a general warrant to search the storage locker (the General
Warrant) should not have been granted. This was the same storage locker that
was the subject of the Production Order. The General Warrant allowed access to
the storage locker, as well as examining, photographing and taking samples of
the contents.

[56]

On execution of the General Warrant, numerous firearms were found in the
storage locker, as well as ammunition and relatively small quantities of drugs.

[57]

The judges first ruling on this was on February 8, 2018, in reasons
indexed as 2018 BCSC 309 (1
st
Ruling re General Warrant). The
basis for the General Warrant was an ITO of Cst. Davies affirmed December
12, 2014, the majority of which was identical to the December 10, 2014 ITO for
the Production Order, including the redactions as to the information provided
by Source E.

[58]

The judge concluded, for substantially the same reasons as in the 1
st
Ruling re Production Order, that on the basis of the redacted ITO he could
place no meaningful interpretation of the evidence from Source E. Again,
the judge held that although the case is very close to the line, the standard
had not been met on the issue of whether there were reasonable grounds for
Cst. Davies belief that the appellant had committed a drug offence. As
such, the General Warrant could not be sustained (para. 3).

February 9, 2018 2
nd
Ruling re General Warrant

[59]

The Crown then followed the same procedure as with the Production Order,
as outlined in step six of
Garofoli
. A partially unredacted version of the
ITO was produced to the judge, and a judicial summary of the newly produced
material was provided to the appellant. The judge then made a second ruling
regarding the General Warrant for the storage locker, indexed at 2018 BCSC 310
(2
nd
Ruling re General Warrant).

[60]

The judge considered similar arguments advanced by the defence as had
been advanced in the 2
nd
Ruling re Production Order, to the effect
that: the additional information was insufficient and not material because the
appellant did not know the name used by Source E, hindering his ability to
know whether the source was mistaken; and since the previous information
already disclosed that the appellant had a criminal record from 2009, that conviction
might have been the drug transaction that Source E was referring to.

[61]

Applying similar albeit somewhat expanded reasoning as he had in respect
of the 2
nd
Ruling re Production Order, the judge concluded that the
additional information, together with the other material from the December 12,
2014 ITO, was sufficient to provide reasonable grounds for Cst. Davies
belief that the appellant was involved in a drug offence of trafficking or
possession for the purpose of trafficking (para. 29).

[62]

The judge went on to consider the question of whether there were reasonable
grounds for belief that information concerning the offences would be obtained
by way of the General Warrant. The judge reviewed the surveillance evidence in
more detail, linking the appellants movements to the storage facility and
linking the movements from the storage facility to drug trafficking, and
answered this question in the affirmative, upholding the General Warrant. This
aspect of the judges reasoning is not at issue on appeal.

February 16, 2018 Ruling re
CDSA
Warrants

[63]

The judge was subsequently required to consider the validity of four
search warrants issued pursuant to the
CDSA
(the
CDSA
Warrants). The judges ruling in this regard was on February 16, 2018, and is
indexed at 2018 BCSC 312 (Ruling re
CDSA
Warrants).

[64]

The warrants were to search, respectively: the storage locker; the
residence of the appellant; the blue Mercedes; and a barn located on Taylor
Road in Abbotsford.

[65]

A single ITO was sworn by Cst. Davies on December 15, 2014 in
respect of the
CDSA
Warrants.

[66]

While the judge expressly adopted his previous rulings, he also
meticulously set out the standard of review applicable to the issuance of the warrants
and the standard required of reasonable grounds to believe. He carefully
reviewed the information in the ITO that pre‑existed the information that
came from Source E. Rather than splitting the matter into two separate
hearings, at this
voir dire
hearing the Crown applied to have the judge
consider a partially unredacted version of Source Es evidence, in
accordance with step 6 of the
Garofoli
procedure.

[67]

The same information was provided to the judge and the same judicial
summary was provided to the appellant of Source Es evidence as was the
case in the 2
nd
Ruling re Production Order and 2
nd
Ruling
re General Warrant.

[68]

Similar arguments were advanced by the defence as to the insignificance
of the evidence from Source E. The judge reached similar conclusions as he
did in the 2
nd
Ruling re Production Order and 2
nd
Ruling
re General Warrant, namely, that the newly redacted information, together with
the entire constellation of evidence from the ITO, was sufficient to
establish reasonable grounds to believe that the appellant was involved in drug
trafficking or possession for the purpose of drug trafficking (para. 54).

[69]

The judge next turned to the question of whether there were reasonable
grounds to believe that any drugs or drug‑related items would be found in
the four places to be searched pursuant to the
CDSA
Warrants. The judge
answered this question in the affirmative with respect to three of four places,
but in the negative with respect to drugs at the private residence. A s. 24(2)
Charter
application then followed with respect to the items found at the
residence, with the judge ruling the evidence admissible: 2018 BCSC 395 at para. 31.
These aspects of the judges analysis are not in issue on appeal.

Trial Judgment

[70]

At trial, the Crown relied on surveillance evidence, evidence obtained
by search warrants, a police interview of the appellant after his arrest, and
admissions. The combined evidence was sufficient to persuade the judge beyond a
reasonable doubt of the appellants guilt.

[71]

The judge imposed a global sentence of eight years and 10 months
imprisonment, after taking into account a credit of 38 months served in pre‑trial
custody.

Appellants Position on Appeal

[72]

The appellant submits that the issue on appeal is very narrow. As he
puts it: was there any material change in the unredacted information from Source E
to justify a reversal of the judges original rulings?

[73]

The appellant argues that the information from Source E that was
unredacted was immaterial and could not have changed what was previously
insufficient evidence to support reasonable grounds to believe the offences had
been committed. I have grouped the appellants arguments about the
insufficiency of the new evidence into the following three points:

1.

Significant parts of Source Es evidence remained redacted and
there were gaps and a lack of detail in Source Es evidence, all of which
affected the reliability and relevance of his evidence;

2.

The defence had made a virtual concession that the person Source E
was referring to by name was the same person seen in the photograph, so nothing
new was established by confirming that by way of the unredacted information;
and

3.

The
judges reasoning after receiving the additional unredacted information from
Source E was inconsistent with how he had previously treated evidence from
other informants.

[74]

The Crown disagrees with each of the three points.

Analysis

[75]

I will address the applicants three challenges to the sufficiency of
Source Es evidence in turn.

Argument that Source Es Evidence Remained Immaterial

[76]

The appellant suggests that Source Es redacted evidence, even
after it was revealed he was referring to the same named person identified as
the appellant, was so undetailed and vague as to not be worthy of any weight.

[77]

The appellant argues that the evidence that Source E picked up
cocaine [redacted] from the person he identified in the booking photo as
[name] is very vague and problematic for several reasons.

[78]

First, the date of this transaction is unknown. Since earlier versions
of the ITO revealed that the appellant had a 2009 drug offence conviction in
Alberta, the information could have been referring to this old transaction. The
appellant submits that lack of any date or even a range of time in proximity to
the offences being investigated is highly problematic.

[79]

Second, the police showed Source E a booking photo. The appellant
says that showing the booking photo could have been prejudicial and influenced
the identification of the appellant. The appellant suggests the police should
have used a more recent surveillance photo. Further, by not revealing the
actual name used by Source E to describe the appellant, it was difficult
for the appellant to challenge whether Source E was referring to the 2009
offence.

[80]

Third, the appellant questions the meaning of the redaction after the
word cocaine. The appellant suggests it opens the possibility that it was not
cocaine at all that was involved in the transaction between Source E and
the person identified as the appellant, but something else, such as scale, or
buffer, or pipes.

[81]

I accept that the judge could have found these issues to be problematic
if Source Es evidence was the only evidence being relied upon by the
police investigator in obtaining the warrant. However, it was not the only
evidence. There was an abundance of surveillance evidence observing the
appellant, and someone in his blue Mercedes, engaging in activity that created
a high level of suspicion it was drug trafficking. There was other informant
evidence suggesting someone named Corey (the appellants first name) was
supplying drugs, but that informant evidence did not visually identify the
appellant.

[82]

Source Es evidence was reliable because it was consistent with the
pre‑existing large body of circumstantial evidence suggesting that the
appellant was involved in drug trafficking. The fact that Source E could
visually identify the appellant was credible. This visual identification was not
just from a booking photo, but by way of physical description which included a
tattoo on the top of the appellants hand. The hand tattoo was corroborated by
a police officers evidence. Source Es evidence that he picked up
cocaine [redacted] directly from the person identified as the appellant was
highly significant. I accept that the missing redacted word is curious, but I
do not find that it sufficiently diminishes the inference that Source E
purchased cocaine or something related to the cocaine trade from the appellant.

[83]

The judge acknowledged the argument that the cocaine transaction could
have been connected to the 2009 drug offence, but he was not persuaded that was
a reasonable inference.

[84]

The appellant raises an issue with the fact that in his later sets of
reasons, the judge added the explanation that there was no evidence that the
2009 offence had to do with the appellant trafficking in cocaine (see for
example para. 23 of 2
nd
Ruling re General Warrant and para. 51
of the Ruling re
CDSA
Warrants). The judge did not mention this
rationale in his 2
nd
Ruling re the Production Order. I do not see
anything significant in this amplification of the judges reasons. The judge
considered the appellants argument regarding the date of the cocaine transaction
in all of his rulings after production of Source Es partially unredacted
information and did not find it persuasive. The appellant raised this argument
on each occasion (as he was entitled to do, of course), and so the judge dealt
with it again as well.

[85]

Further, the appellants criticism seems to imply that the judge ought
to have ordered further disclosure of Source Es evidence. However, as the
Crown points out, that criticism is fully answered by the fact that the defence
never brought an application for further disclosure.

[86]

It is clear that the appellants criticisms of the judges treatment of
missing details in Source Es evidence does not raise an error of law,
misapprehension of evidence, or a failure to consider relevant evidence.
Rather, the appellants real criticism is with the weight the judge gave to
evidence of the confidential informant Source E. I see the judges
weighing of the evidence as entirely reasonable, and it does not provide any basis
for appellate interference.

Argument that There Had Been a Prior Concession

[87]

The appellant argues that the judges treatment of Source Es
partially unredacted evidence as significant made no sense because the
significant point had virtually been conceded even before the new disclosure. Specifically,
the appellant argues the defence had virtually conceded that the person
identified by Source E as the appellant was the same person referred to
elsewhere in Source Es evidence, including as the person involved in the
cocaine [redacted] transaction.

[88]

There are two problems with this position. First, the record is far from
clear that this was virtually conceded. In support of the proposition that
defence counsel virtually conceded this point, the appellant points to a single
extract from the transcript of the hearing:

 you have E saying, the skinny
guy, long face, tattoos on hand. Yeah thats the guy you showed me in the
booking photo. I picked up cocaine,  and Im adding to that because we more
or less have inferred that thats what is meant.

[89]

With respect, I do not think counsel stating that he has more or less
inferred what is the content of a redaction can clearly be seen as a
concession.

[90]

Second, it was the judge who had to be satisfied that this was the
substance of Source Es evidence. The redactions created the possible
inference that Source E could have been referring to different people and
not only to the appellant. The judge explicitly refused to speculate about the
content of the redactions in his 1
st
Ruling re Production Order
and 1
st
Ruling re General Warrant. Clearly, that was the proper
approach.

[91]

This means there was nothing inconsistent about the judge then finding
the partially unredacted evidence significant when it confirmed that
Source E was referring to the appellant throughout. In fact, the judge in
his early ruling alluded to the possibility that this information could be
very significant.

[92]

I therefore see no merit to the appellants suggestion that this point
had been virtually conceded.

Argument that There Was an Inconsistency in the Treatment of Informant
Evidence

[93]

As was set out in the overview of the standard of review above,
Debot
establishes that when considering an informants evidence as support for a
warrant, some consideration should be given to the question of whether there is
any corroboration for it.

[94]

The appellant suggests that the judge treated the informant evidence
inconsistently as between the earlier reasons, where he found the warrant
invalid, and his subsequent reasons, where he found the warrants to be valid.

[95]

In my view, there was also nothing inconsistent about the judges
treatment of the information provided by the confidential informants as between
the judges sets of reasons. For example, in his Ruling re Tracking Warrant,
the judge noted that Source Ds evidence was entitled to very little
weight but need not be discounted in its entirety. In his 2
nd
Ruling re Production Order, the judge described Source Ds information as
weaker than Source Es information because it left the key connectionthe
fact that the Corey Source D referred to was in fact the appellantas a
matter of inference. The judge consistently found that Source Ds
information was weak, but worthy of some consideration.

[96]

The judge instructed himself on the principles from
Debot
. It is
clear that in considering the totality of the evidence, he considered the
criteria of how compelling Source Es evidence was, whether it was
credible, and whether it was corroborated. The judge explicitly noted the
weaknesses in Source Es credibility, namely his short time as an
informant and the fact that his motivation for informing was financial and
consideration of charges he currently faced, before ultimately concluding that
some weight could be put on his information.

[97]

Of course it is the very nature of circumstantial evidence that piece‑by‑piece
it can accumulate to meet the necessary standard of proof, which here was the
standard of reasonable grounds to believe that the offences had been
committed. There was a substantial amount of circumstantial evidence set out in
the ITOs, some from informants and some from surveillance. Source Es
evidence was capable of strengthening, or as the judge described it,
tightening, the inferences of criminal activity that were available from the entire
constellation of the evidence.

[98]

The judges approach was consistent with the authorities, as summarized
in
Whitaker
:

[41]      A determination with respect to whether reasonable
grounds exist requires a consideration of the totality of the circumstances:
R.
v. Bracchi
, 2005 BCCA 461, 201 C.C.C. (3d) 35 at para. 20;
Re
Church of Scientology & The Queen (No. 6)
, (1987), 31 C.C.C. (3d)
449 (Ont. C.A.) at 502. This means that, it is important that the Information
be examined as a whole and not one piece of evidence at a time, because each
piece of evidence colours other pieces of evidence and a fuller picture emerges
by considering all of the evidence together:
R. v. Lam
, 2002 BCCA 99,
172 B.C.A.C. 161 at para. 10.

[42]      Further, the assessment
of the facts relied upon to establish reasonable grounds is made on a
practical, non‑technical, and common sense basis:
R. v. Sanchez
, (1994),
93 C.C.C. (3d) 357 (Ont.Ct.)(G.D.)) at 367. As Mr. Justice Cumming
observed in
R. v. Charlton
, (1992), 15 B.C.A.C. 272, the person
deciding whether the reasonable grounds standard has been met is entitled to put
two and two together: para. 34.

[99]

I do not find anything inconsistent in the judges approach to informant
evidence. It was within the reviewing judges purview to give weight to Source Es
newly unredacted evidence and to conclude that it, together with the whole of
the evidence set out in the relevant ITOs, was sufficient to support the
conclusion that there were reasonable grounds to believe that the appellant had
committed the offences of drug trafficking or possession of drugs for the
purpose of trafficking.

Conclusion

[100]

For the reasons given, I would dismiss the appeal from conviction.

The
Honourable Madam Justice Griffin

I AGREE:

The Honourable Madam Justice
Fenlon

I AGREE:

The Honourable Mr. Justice
Voith