COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Mayer,

2004 BCCA
            17

Date: 20040109

Docket: CA030405

Between:

Regina

Respondent

And

Jean Jacques
      Mayer

Appellant

Before:

The Honourable
            Madam Justice Southin

The Honourable
            Madam Justice Rowles

The Honourable
            Madam Justice Prowse

Oral Reasons for Judgment

G. Barriere

Counsel for the Appellant

N. Harris

Counsel for the (Crown) Respondent

Place and
            Date:

Vancouver, British Columbia

January 9, 2004

[1]

PROWSE,
          J.A.
: On 11 April 2002, a Provincial Court judge
          convicted Mr. Mayer of one count of sexual assault under s. 271 of the
Criminal
          Code
(the
Code
).  On 31 October 2002, Mr. Mayer
          was sentenced to one year imprisonment and two years probation.  He
          has served the custodial part of his sentence and is presently serving
        the period of probation.

[2]

Mr.
      Mayer is appealing from conviction on the basis that:

(1) The trial judge
        misapprehended the evidence of Mr. Mayer on a critical point of evidence
        resulting in a miscarriage of justice;

(2) The trial judge
        erred in law in relying on conjecture and speculation in assessing Mr.
        Mayer's evidence; and

(3) The trial judge erred in law in shifting the onus of proof to Mr.
      Mayer to prove his innocence.

[3]

Since
        I have concluded that there must be a new trial in this matter, I do
      not propose to deal at length with the evidence.

[4]

By
        way of brief background, the conviction arose out of two incidents which
        occurred in a work camp near Fort Nelson, B.C. between 1 September and
        21 November 2001.  The complainant alleged that Mr. Mayer attempted to
        touch the complainants genital area on two occasions, once in the complainant's
        room, and once while the two men were standing at a urinal.  The complainant,
        who was a 16 year old male working in the camp, moved away from Mr. Mayers
        advances on both occasions and subsequently complained to his employer
      about the incidents.

[5]

The
        trial judge accepted the evidence of the complainant as to how the incidents
        occurred and rejected the evidence of Mr. Mayer.  It is the trial judge's
        reasons for rejecting Mr. Mayer's evidence which give rise to the necessity
      of a new trial.

[6]

The
        principal problem with the trial judge's reasons arises from his characterization
        of Mr. Mayer's evidence in relation to the alleged assault at the urinal.  At
      paras. 13-14 of his reasons, the trial judge stated, in part:

[13] In cross-examination,
        Mr. Mayer was asked, if in the washroom, in the urinal area, whether
      or not he reached for Mr. F.'s genital area.
Mr. Mayer did not say, "No";
        he did not deny that allegation.
What Mr. Mayer did was, by implication,
        deny the allegation by saying that there were walls between the urinals,
        and that he never went near him.

[14] Now those responses are puzzling to me.
It seems to me that
          when that allegation is made to an individual, the natural answer would
          have been, if you were denying it, would have been to say, "No,
          I never did that."
But Mr. Mayer qualifies that to some extent
          by saying that, "Well, it couldnt be done because there were walls
        between the urinals," That again is puzzling.

[7]

Mr.
        Mayer's evidence in that regard is found in the following passage from
      the transcript:

Q     Now, Mr.
        F. says, on one occasion, you came into that wash area, and went to the
      urinal beside him, do you remember that?

A     No, I don't
      remember standing beside him.

Q     Okay. And
      he  he said you reached out and tried to grab his crotch area.

A     There's
      walls in between the urinals.

Q     Yes. He
        said he pulled away from you when you tried to reach, do you remember
      that?

A.
No,
          I never even went near him
, and besides, there's  like I say, there's
        walls in between the urinals.

[Emphasis added.]

[8]

I
        agree with counsel for Mr. Mayer that the trial judge misapprehended
      both the substance and the effect of Mr. Mayer's evidence. In this passage
      from
        his evidence, Mr. Mayer specifically denied that he had touched the complainant,
        ("No, I never even went near him").  This was consistent with
        the evidence Mr. Mayer had given in examination in chief.  Further, rather
        than qualifying his answer, Mr. Mayer offered an explanation for why
      the assault could not have occurred in the manner alleged by the complainant.

[9]

It
        is apparent that the trial judges misapprehension of the evidence led
        him to discount Mr. Mayers credibility on this critical point.  Since
        Mr. Mayers denial of any wrongful touching was the cornerstone of his
      defence, the impact of this error cannot be underestimated.

[10]

The
        trial judges error in this regard was compounded by two instances in
      which he relied on speculation and conjecture in finding that Mr. Mayer's
      evidence
        lacked credibility.  The first instance related to Mr. Mayer's evidence
        that he rarely had men in his room, that he usually drank in his room alone,
        and that most socializing between employees was done in the kitchen area
        of the camp.  In addressing that evidence, the trial judge made the following
        comments: "Alcohol and drugs are substances that are usually consumed
        in the company of other people." and "It seems improbable to
        me, that with this amount of alcohol and drugs in the camp, that socializing
        would not have been done in the rooms."  There was no evidence before
        the trial judge, apart from that of Mr. Mayer, as to the nature of Mr.
        Mayer's socializing with other employees, his general drinking habits,
        or the socializing habits of the men in the camps.  While there may well
        have been some basis for the trial judge to reject Mr. Mayer's evidence,
      he did so in this instance on the basis of generalizations and conjecture.

[11]

Similarly,
        the trial judge relied on speculation in casting doubt on Mr. Mayer's
      evidence that he had no authority to inspect the rooms of employees, including
      the
        complainants room.  While Mr. Mayers right of access to the complainants
        room was a subsidiary point in the Crowns case, the trial judge seized
      upon it as another example of Mr. Mayers lack of credibility.

[12]

The
        three errors to which I have referred were made by the trial judge in
      the course of very brief oral reasons for judgment.  Because they all related
        directly to the critical question of Mr. Mayer's credibility, they went
      to the heart of the defence.

[13]

In
        these circumstances, I would allow the appeal, set aside the verdict of
      guilt and order a new trial.

[14]

SOUTHIN,
        J.A.
: I agree.

[15]

ROWLES,
        J.A.
: I agree.

The Honourable Madam Justice Prowse


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

BMF
                Trading, a Partnership v. Abraxis Holdings Ltd.,

2004 BCCA
            12

Date: 20040112

Docket: CA030184

Between:

BMF Trading,
      a Partnership

Appellant

(
Plaintiff
)

And

Abraxis
      Holdings Ltd., formerly
Four Star Management Ltd. and
Sierra Commodities, Inc.

Respondents

(
Defendants
)

Before:

The Honourable
            Madam Justice Southin

The Honourable
            Mr. Justice Hall

The Honourable
            Mr. Justice Low

G. S. McAlister

Counsel for the Appellant

F. L. Lamer

Counsel for the Respondents

Place and
            Date of Hearing:

Vancouver, British Columbia

2nd and 3rd September, 2003

Place and
            Date of Judgment:

Vancouver, British Columbia

23rd October, 2003

Written Submissions Received

Date of Supplementary Reasons:

12th January, 2004

Supplementary
              Reasons by
:

The Honourable
            Madam Justice Southin

Concurred
              in by:

The Honourable
            Mr. Justice Hall

The Honourable
            Mr. Justice Low

Supplementary Reasons
        for Judgment of the Honourable Madam Justice Southin:

[1]

Subsequent
        to the delivery of our reasons for judgment, 2003 BCCA 559, we received
      written submissions from counsel on two questions.

[2]

The
        first is the question of costs here and below.  Mr. Lamer argues that
        there should be no costs in this Court.  He says, in effect, that the
        success of the appellant in this Court came only from the decision of
        the Court
      to add Williams as a defendant.

[3]

We
        are not of that opinion.  The appellant did persuade us of errors in the
        reasoning of the learned trial judge entitling the appellant to succeed.  That
      being so, the costs in this Court shall follow the event.

[4]

The
        costs of the new trial and the costs of the trial before Madam Justice
      Garson are remitted to the judge hearing the new trial.

[5]

The
        second question is the disposition of the fund in court.  We are of the
        opinion that it is not appropriate to make the order sought by the respondents,
        namely, that one-third of the fund be now paid out to the respondents.  The
        complexity of the issues to be decided in the court below militates against
        any disposition until the new trial is concluded or the parties come
      to some agreement.

[6]

The
        appropriate order is to remit the disposition of the fund to the court
      below.

[7]

If
        during the proceedings below there should be any change in the circumstances
        of the parties as they existed when the application for payment out was
        made to us, the parties have liberty to apply to the court below for such
      order or orders as may be appropriate.

[8]

The
        appellant shall have the costs of the written submissions as it has essentially
      succeeded on those submissions.

The Honourable Madam Justice Southin

I agree:

The Honourable
      Mr. Justice Hall

I agree:

The Honourable
      Mr. Justice Low


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Enns
                (Guardian ad Litem) v. Voice of Peace Foundation,

2004 BCCA
            13

Date: 20040113

Docket: CA031497

Between:

Abram Enns
      by his Guardian ad Litem the Public Guardian and Trustee in and for the
      Province of British Columbia

Appellant

(
Plaintiff
)

And

Voice of
      Peace Foundation

Respondent

(
Defendant
)

Before:

The Honourable
            Mr. Justice Donald

(In Chambers)

D.R. Urquhart and
S. Yung

Counsel for the Appellant

J.A. Rost
            and

A.H. Northey

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

30 December 2003

Place and
            Date of Judgment:

Vancouver, British Columbia

13 January 2004

Reasons for Judgment of the Honourable Mr. Justice Donald:

[1]

The
        appellant applies for leave to appeal the refusal of a
Mareva
injunction
        by Madam Justice Sinclair Prowse in chambers on 22 December 2003, and if
        leave is granted, an injunction pending the appeal in the same terms sought
      below.

[2]

The
        action is brought by the Public Guardian and Trustee as the guardian
      ad litem for Dr. Abram Enns to recover a debt of $999,000 on a series of
      promissory
        notes.  The respondent says the appellant represented to its directors
        that the debt was repaid and on that basis the respondent made commitments
        to contribute financial aid to a charitable organization working in Eastern
        Europe.  The appellant maintains that the notes were never actually repaid
      and he is therefore still owed the money.

[3]

Because
        of the urgency of this matter, counsel have agreed on a note of reasons
        for judgment given orally by the learned chambers judge.  She found that
        the appellant was unable to satisfy the threshold test for a
Mareva
injunction,
        a strong
prima facie
case, and she dismissed the application for
        an order freezing the assets of the respondent in two accounts.  The
      note of her reasons conclude as follows:

9.    With respect
        to an interim injunction, there is no dispute that the funds in the accounts
        are the only assets of the Defendant.  Therefore, the application is
      in the nature of a mareva injunction.

10.   The test
        set out in
Aetna Financial Services Ltd. v. Feigelman
[1985] 1
        S.C.R. 2 requires that the applicant demonstrate a strong prima facie
        case.  I
        am not satisfied that the applicant meets this test.  The Defendant has
        not established a strong prima facie case.  The financial statements show
        that the debt was no longer owing in 1999.  The Plaintiff was the only
        or one of the only three directors at all material times.  Although there
        may have been a fraud perpetrated on Revenue Canada, there is no evidence
        of a fraud perpetrated on the Plaintiff.  The Plaintiff represented himself
      as the creditor repaid and the debtor making the payment.

11.   Given that
        the evidence does not establish a strong prima facie case, the application
        is dismissed.  Whatever stay order may be forthcoming should not pertain
        to the legal fees incurred by the Voice of Peace Foundation for the defence
      of this application or pending the stay/leave application.

12.   This order will not be entered until December
        30, 2003 unless otherwise ordered by the court or agreed to by the parties
      in writing.

[4]

Leave
        to appeal is sought on the ground that the judge wrongly applied the
      threshold test and in so doing she erred in the exercise of her discretion.  The
        appellant argues that she applied a "strict formalistic approach" rather
        than one which is more flexible and relaxed in the manner in which the
        various factors are considered and cites in support of that proposition
Mooney
        v. Orr
, [1994] B.C.J. No. 2652 (B.C.S.C.) and
Silver Standard
        Resources Inc. v. Joint Stock Co. Geolog
, [1998] B.C.J. No. 2887
      (B.C.C.A.).

[5]

The
        requirement of showing "a strong
prima facie
case" was
        pronounced by the Supreme Court of Canada in the leading case of
Aetna
        Financial Services Ltd. v. Feigelman
,

[1985] 1
        S.C.R. 2.  It is a threshold test.  In my respectful opinion, it can
        be reasonably argued that the judge erred in finding that the appellant
        did not have
        a strong
prima facie
case.  This is evident from the circumstances
      which I shall now briefly recite.

[6]

Dr.
        Enns created the Voice of Peace Foundation as a charitable society.  He
        was the mind and will of the foundation and its sole officer and director
        until 1998 when the Reverend Vincent Price and a Dr. Hunt joined the board
        of directors.  Dr. Enns funded the foundation by depositing $1,000,000,
        his life savings, in the treasury of the foundation with the idea that
        the interest earned on the capital would fund various religious endeavours
        undertaken by Reverend Price through the European Christian Mission.  This
        organization provides financial support to local pastors and evangelists
        working in Ukraine, Russia and the Baltics.  Dr. Enns took back promissory
      notes for his contributions to the respondent.

[7]

In
        November and December of 1998 Dr. Enns participated in two transactions
        which, if the facts alleged concerning them are proved, could be said
      to be cheque kiting.  The first involved a lawyer, Blake Bromley, who together
        with his wife and their two children issued cheques to the respondent totalling
        $500,000.  Dr. Enns then issued charitable tax receipts to the Bromleys
        and represented on the books of the respondent that he used the money to
        repay $500,000 on the promissory notes.  He caused the respondent to issue
        him a cheque for $500,000 in payment of promissory notes.  What the books
        do not show, and what was not apparently revealed to the other directors,
        was that on the same day the Bromleys issued their cheques, Dr. Enns issued
        two personal cheques payable to Mr. Bromley and his wife each in the sum
        of $250,000.  In the result, no money actually changed hands and the Bromleys
        obtained charitable tax receipts.  It is alleged that there was an understanding
        that the Bromleys would contribute part of their tax savings to the respondent,
      but that did not occur.

[8]

The
        December transaction was similar in nature and involved Stan Unger.  Mr.
        Unger issued a cheque for $400,000 to the respondent, Dr. Enns caused the
        respondent to issue a cheque to him in the same amount for repayment of
        promissory notes and then Dr. Enns issued a personal cheque to Mr. Unger
        for that same amount.  The only difference appears to be that Mr. Unger
        actually paid part of his tax credit, approximately $178,000, to the
      respondent.

[9]

On
        the evidence before me, the Bromleys did not have the money to cover
      their cheques amounting to $500,000.  Thus Dr. Enns did not receive any
      money in repayment of his promissory notes.

[10]

Dr.
        Enns suffered a stroke in June of 2001.  A certificate of incapability
        pursuant to the
Patients Property Act
, R.S.B.C. 1996, c.
        349 was issued on 16 August 2001 as a result of which the Public Guardian
      and Trustee became the committee of Dr. Enns' person and estate.

[11]

Canada
        Customs and Revenue Agency conducted an investigation into the transactions
        which it suspected were fraudulent.  As a result of the investigation,
        Mr. Bromley has been charged with criminal offences and will proceed
      to trial in January 2004.

[12]

To
        grant leave I must determine whether there is a reasonable prospect of
        persuading a division of this Court that the judge was clearly wrong in
        the exercise of her discretion:
Mikado Resources Ltd. v. Dragoon
        Resources Ltd.
(1990), 46 B.C.L.R. (2d) 354 at 357 (C.A.).  The
        case for the appellant is that Dr. Enns did not obtain repayment of his
        promissory notes.
Prima facie
, that is true.  The cheques he issued
        to himself on the respondent's account say that they are in payment of
        the notes, but plainly he got no money from the two transactions.  So his
        claim in debt is strongly based on the facts.  I think that may be as
        far as he needed to go in securing an injunction to freeze the remaining
        funds
      in the respondent's accounts, approximately $380,000.

[13]

The
        respondent's defence is that Dr. Enns said he was paid and therefore
      he waived his right to enforce the notes; or he is estopped from denying
      he
        was paid because the respondent relied on his representations in promising
        to fund Reverend Price's European charitable activities.  Furthermore,
        the respondent asserts that the appellant's action must rely on the cheque
        kiting scheme, a fraud, to overcome the documentation that would defeat
      the claim.

[14]

It
        can, in my view, be reasonably argued that ironically it is the respondent
        who relies on the fraud, if such it is, to prevent Dr. Enns' estate from
        recovering on the notes.  The notes exist and they have not been paid.  The
        respondent calls in aid documents prepared as part of an allegedly dishonest
      scheme for its defence.

[15]

As
        far as the clean hands doctrine is concerned, a principle invoked by
      the respondent, the respondent could be said to be fixed with the knowledge
        of the nature of the scheme because, as I have noted, Dr. Enns was the
        mind and will of the respondent.  The other directors may have been in
        the dark but that would not affect the imputation of knowledge to the respondent.  Moreover,
        the scheme was intended for the benefit of the respondent.  Are the hands
        of either party clean?  That is a question worthy of exploration on an
      appeal from the refusal of the injunction.

[16]

I
        think, with respect, it may have been an error for the judge to have
      decided the motion on the basis of the defences proposed by the respondent.  In
        my view, the evidence for the appellant if advanced at a trial would be
        amply sufficient to require the presentation of a defence.  It is by no
        means clear to me that the respondent is bound to succeed in its defences.  If
        both parties participated in a fraud, why should one be allowed to set
        up the fraud to defeat the other's claim when the claim does not depend
      on the fraud?

[17]

The
        foregoing views are expressed tentatively and for the limited purpose
      of deciding whether leave to appeal should be granted.  I go no further
      than to say that there is a reasonable prospect that the appellant may
      be able
        to demonstrate an error in principle in the judge's ruling on the threshold
        requirement or that she was clearly wrong in her decision:
Silver
        Standard Resources Inc.
,
supra
at para. 23.  Accordingly,
      I grant leave to appeal.

[18]

It
        follows that there should be an injunction pending the appeal.  The appeal
        will be nugatory without it.  Reverend Price has expressed an intention
        to spend a large portion of the respondent's money if lawfully permitted
        to do so.  The respondent has made no disbursements since the Public Trustee
        became Dr. Enns' committee.  Reverend Price deposed that he thought when
        the Public Trustee requested the respondent not to make any disbursements
        he was bound by law to comply.  He is now aware that the appellant requires
        a freezing order.  Nevertheless, the respondent has not been active for
        a significant period of time and I think the status quo should remain
      until the appeal is decided.

[19]

I
        have not been persuaded that the respondent should be permitted to make
        expenditures said to be in the ordinary course of its business.  The
        injunction shall be in the terms requested in para. 3 of the appellant's
        notice of
        motion for leave and stay pending appeal, to which should be added para.
        2 of the learned chambers judge's interim stay pronounced 22 December
        2003 giving the defendant liberty to pay its legal expenses in defending
        the
      appeal.

The Honourable
      Mr. Justice Donald


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Phillips
                v. Vancouver Sun,

2004 BCCA
            14

Date: 20040113

Docket: CA030083; CA030361

Docket: CA030083

Between:

Murray
      Phillips

Respondent

(Applicant)

And

The Vancouver
      Sun

Appellant

(Respondent)

And

The Attorney
        General for British Columbia,

Vancouver
        City Police Department and

The Honourable Judge David Smyth

Respondents

(Respondents)

- and -

Docket: CA030361

Between:

The Vancouver
      Sun

Appellant

(
Applicant
)

And

Murray
        Phillips,

The Attorney
        General for British Columbia,

Vancouver
        City Police Department and

Justice of the Peace Richard Yee

Respondents

(
Respondents
)

Before:

The Honourable
            Madam Justice Rowles

The Honourable
            Madam Justice Prowse

The Honourable
            Madam Justice Saunders

R.S. Anderson and
C.J. Doucet

Counsel for the Appellant

D.G. Butcher

Counsel for the Respondent,
Murray Phillips

R.W. Gourlay, Q.C. and
K. Wedel

Counsel for the Respondent,
the Attorney General

No one appearing

for the Respondent,
Vancouver City Police Department

Place and
            Date of Hearing:

Vancouver, British Columbia

November 21, 2003

Place and
            Date of Judgment:

Vancouver, British Columbia

January 13, 2004

Written
              Reasons by
:

The Honourable
            Madam Justice Prowse

Concurred
              in by:

The Honourable
            Madam Justice Rowles

The Honourable
            Madam Justice Saunders

Reasons for Judgment of the Honourable Madam Justice
        Prowse:

INTRODUCTION

[1]

There
        are two appeals before the Court involving, firstly, the interpretation
        of s. 487.3(4) of the
Criminal Code
,
R.S.C. 1985,
        c. C-46 (the "Code") and, secondly, an application by the Vancouver
        Sun (the "Sun") pursuant to s. 487.3 for access to and disclosure
        of edited copies of a search warrant, Information to Obtain a Search Warrant
        (the "Information") and related materials in circumstances where
      no charges have been laid against the target of the search.

[2]

The
        first appeal is from the decision of Mr. Justice Parrett, made August 7,
        2002, granting
certiorari
and quashing the order of the Honourable
        Judge Smyth, pronounced January 11, 2002, which granted disclosure of
        an edited version of the warrant, Information and related materials to
        the
        Sun.  Mr. Justice Parrett's order restored the prior sealing order made
        by Justice of the Peace Yee ("J.P. Yee"), on September 29, 2000
        with respect to these materials.  Mr. Justice Parrett's reasons for judgment
      may be found at 2002 BCSC 1169.

[3]

The
        second appeal is from the decision of Associate Chief Justice Dohm, made
        November 27, 2002, dismissing the Sun's application for an order of
certiorari
quashing
        the first sealing order of J.P. Yee, made September 29, 2000 and the
        subsequent order of J.P. Yee, made October 28, 2002, both of which denied
        access to
      the warrant, Information and related materials.

[4]

In
        upholding the sealing order, Associate Chief Justice Dohm was invited by
      counsel to follow the decision of Mr. Justice Parrett, and he did so.

[5]

Madam
        Justice Saunders made an order on April 29, 2003 that the two appeals be
      heard together.

[6]

The
        Vancouver Police Department (the "VPD") did not appear on the
        appeals, but the Court was advised that the VPD adopted the submissions
      of the Attorney General for British Columbia.

THE ISSUES

[7]

The
      Sun submits that Mr. Justice Parrett erred:

(1)   in misinterpreting
        s. 487.3(4) of the Code by finding that Judge Smyth had no jurisdiction
      to terminate and/or vary the sealing order of J.P. Yee;

(2)   in finding that
certiorari
would
        lie to quash Judge Smyth's order on the basis of error of law on the face
      of the record;

(3)   in finding on the merits that disclosure of the sealed materials
      should be denied.

[8]

Since
        Associate Chief Justice Dohm's order turned on the correctness of Mr. Justice
        Parrett's order, the parties agree that this Court's resolution of these
        three issues will be determinative of the principal issues raised on both
      appeals.

BACKGROUND

[9]

In
        May 1999, the respondent, Cst. Phillips, was a detective constable employed
        in the robbery squad of the respondent, the VPD, working out of the police
      station at 312 Main Street, Vancouver, B.C.

[10]

On
        May 27, 1999, Detective Constable Patrick Fogarty of the VPD swore an
      Information to Obtain a Search Warrant in relation to a search at the police
      station
        in furtherance of an investigation of Cst. Phillips for the offence of
      breach of trust by a public officer, contrary to s. 122 of the Code.

[11]

On
        May 27, 1999, Justice of the Peace Cyr issued a search warrant pursuant
        to s. 487.3 of the Code and, on that same date, ordered that all search
      warrant materials be sealed until September 1, 1999.

[12]

The
        search of the police station was conducted on May 28, 1999, and various
      documents and other materials were seized.

[13]

On
        September 29, 2000, J.P. Yee issued a sealing order of the search warrant
        materials (the "sealing order") until "further order of
        the court".  (Between September 1, 1999 and September 29, 2000,
      no sealing order was in effect.)

[14]

On
        November 19, 2001, the Sun applied before Judge Smyth for an order "setting
        aside" the sealing order and seeking access to the sealed materials.  Since
        the investigation was over, and subject to editing concerns, the Crown
        and the VPD did not oppose the Sun's application.  At that time, the
        Crown advised the court that no charges were going to be laid against
      Cst. Phillips.

[15]

In
        reasons dated January 11, 2002, Judge Smyth vacated the sealing order
      and further ordered that an edited version of the warrant and Information
      be
        disclosed to the Sun.  He then imposed a one-week stay of his order to
      permit Cst. Phillips to apply for
certiorari
.

[16]

Upon
        hearing Cst. Phillips' application for
certiorari
, Mr. Justice
        Parrett made the order of August 7, 2002 which is the subject of the
        first appeal.  The
      Sun filed an appeal from that order on August 30, 2002.

[17]

On
        October 16, 2002, based on Mr. Justice Parrett's interpretation of s.
      487.3(4) of the Code, the Sun applied to J.P. Yee for an order varying
      or vacating
        his sealing order, and simultaneously invited him to dismiss the application
        on the basis of Mr. Justice Parrett's decision.  J.P. Yee gave reasons
      dismissing the application on October 28, 2002.

[18]

The
        Sun applied for
certiorari,
and on November 27, 2002, Associate
      Chief Justice Dohm made the second order under appeal.

[19]

The
        investigation of Cst. Phillips, and the subsequent decisions not to lay
        criminal charges or to proceed with proposed disciplinary proceedings against
        him attracted considerable media attention, as evidenced by numerous newspaper
      articles contained in the Appeal Books.

DISCUSSION OF THE ISSUES

(1)
Interpretation of s. 487.3(4)
          of the Code

[20]

Section
        487.3 of the Code provides for the making, varying, and termination of
        sealing orders in relation to search warrants and related materials.  It
      provides, in part:

487.3 (1)
A judge
          or justice may
, on application made at the time of issuing a warrant
          under this or any other Act of Parliament . . . or at any time thereafter,
make
          an order prohibiting access to and the disclosure of any information
        relating to the warrant . . . on the ground that

(a)
the ends of justice would be subverted by the
          disclosure for one of the reasons referred to in subsection (2) or the
        information might be used for an improper purpose; and

(b)
the ground referred to in paragraph (a) outweighs
        in importance the access to the information.

(2)   For the purposes
        of paragraph (1)(a),
an order may be made under subsection (1) on the
      ground that the ends of justice would be subverted by the disclosure

(a)
if disclosure of the information would

(i)     compromise the identity of a confidential
      informant,

(ii)    compromise the nature and extent
      of an ongoing investigation,

(iii)   endanger a person engaged in particular
        intelligence-gathering techniques and thereby prejudice future investigations
      in which similar techniques would be used, or

(iv)
prejudice the interests of an
        innocent person;
and

(b)   for any other sufficient reason.

(3)
Where an
          order is made under subsection (1), all documents relating to the application
          shall
, subject to any terms and conditions that the justice or judge
          considers desirable in the circumstances, including, without limiting
          the generality of the foregoing, any term or condition concerning the
          duration of the prohibition, partial disclosure of a document, deletion
          of any information or the occurrence of a condition,
be placed in
          a packet and sealed by the justice or judge immediately on determination
          of the application, and that packet shall be kept in the custody of the
          court in a place to which the public has no access
or in any other
          place that the justice or judge may authorize
and shall not be dealt
          with except in accordance with the terms and conditions specified in
        the order or as varied under subsection (4).

(4)
An application
          to terminate the order or vary any of its terms and conditions may be
          made to the justice or judge who made the order or a judge of the court
          before which any proceedings arising out of the investigation in relation
        to which the warrant was obtained may be held.

[Emphasis added.]

[21]

A "justice" is
        defined in s. 2 of the Code to mean "a justice of the peace or a
      provincial court judge."

[22]

Mr.
        Justice Parrett concluded that Judge Smyth did not have jurisdiction
      to vary the sealing order pursuant to s. 487.3(4) of the Code on the basis
        that he was neither the justice nor judge who made the order, nor "a
        judge of the court before which any proceedings arising out of the investigation
        in relation to which the warrant was obtained may be held."  In his
        view, the fact that the investigation giving rise to the warrant had ended,
        together with the fact that the Crown was not proceeding with charges against
        Cst. Phillips, meant that there was no court before which proceedings arising
        out of the investigation "may be held" within the meaning of
        s. 487.3(4).  He concluded that, while the Supreme Court could vary the
        sealing order pursuant to its inherent jurisdiction, the Provincial Court,
      being a creature of statute, could not.

[23]

Mr.
        Justice Parrett's conclusions in that regard are stated at paras. 33-35
      of his reasons:

The language
        of s. 487.3(4) appears calculated, in my view, to allow applications
      to be made during the time between the issuance of a search warrant and
      the
        initiation of proceedings rather than in those relatively rare applications
      brought where a decision has been made not to proceed with charges.

While it may
        seem to be an anomaly in the legislation, absent a specific legislative
        authorization the jurisdiction does not exist in a court which has only
      statutory jurisdiction.

In the present case there was no uncertainty, the decision had
        been made and no proceedings would be initiated, nor have they been.  In
        these circumstances the options available under s. 487.3(4) were reduced
        to bringing the application before the "justice or judge" who
        made the order or to a court of inherent jurisdiction. I am satisfied
        that there was no jurisdiction in the court below to entertain the application
      in the circumstances of this case.

[24]

In
        my view, Mr. Justice Parrett's interpretation of s. 487.3(4) fails to
      give effect to the plain meaning of the words "the court before which any
        proceedings . . . may be held."  This phrase is couched in the future
        tense.  I agree with the Crown that it includes the court before which
        proceedings could be held, if proceedings were instituted.  Its language
        is not restricted to the court before which proceedings have
in fact
been
        instituted or would
in fact
be instituted.  In most cases, the court
        before which any proceedings may be held would be the Provincial Court
        since, in British Columbia, every charge, whether summary or indictable,
        is commenced by an Information laid in that court.  The only exception
        is where the Crown decides to proceed by direct indictment in the Supreme
      Court.

[25]

I
        am satisfied that the clear intent of s. 487.3(4) is to provide the court
        in which "any" proceedings arising out of the investigation in
        relation to which the warrant was obtained could be instituted with the
        jurisdiction to vary or terminate a sealing order issued under s. 487.3(1).  I
        note that this interpretation is consistent with the wording of the sealing
        order in issue, which provided that it should remain in effect "until
        further order of the court."  Given the fact that the sealed documents
        were then under the control of the Provincial Court, it is reasonable to
      conclude that J.P. Yee had in mind an order of the Provincial Court.

[26]

The
        narrow reading of s. 487.3(4) adopted by Mr. Justice Parrett does not
      take into account the broad jurisdiction given to Provincial Court judges
      to
        make a sealing order under s. 487.3(1), either at the time of issuance
        of the search warrant "or any time thereafter".  Nor does it
        recognize the general power of each court to control its own processes.  As
        Mr. Justice Dickson stated in the leading case of
A.-G. N.S.
        v. MacIntyre
, [1982] 1 S.C.R. 175 at 189, 132 D.L.R. (3d) 385, "Undoubtedly
        every Court has a supervisory and protecting power over its own records."  This
        general power would be rendered nugatory if the only Provincial Court
      judge who could vary the order was the one who made it.

[27]

The
        narrow construction placed on this provision by Parrett J. also gives
      rise to practical problems which militate against his interpretation. For
      example,
        if the justice or judge who made the original sealing order were unavailable,
        ill or deceased, any application to vary would have to be dealt with
      by the Supreme Court  a cumbersome procedure which could result in unnecessary
        delay and expense.  Counsel for the Sun and the Crown submit that it
      is unlikely that Parliament intended this result.

[28]

Mr.
        Justice Parrett acknowledged that his interpretation of s. 487.3(4) gave
        rise to an anomaly and that it significantly restricted the powers of Provincial
      Court judges to deal with such orders.

[29]

In
        the result, I am not persuaded that Parliament intended to limit the
      jurisdiction of Provincial Court judges in this manner.  I note that no rationale has
        been provided for reading this provision in such a restrictive fashion.  For
        these reasons, I conclude that Mr. Justice Parrett erred in finding that
        Judge Smyth did not have jurisdiction under s. 487.3(4) of the Code to
      vary the order of J.P. Yee.

(2)
Error of Law on the Face of the
          Record

[30]

The
        next issue which arises is whether Mr. Justice Parrett erred in finding
        that Judge Smyth's order should be quashed on the basis of error of law
      on the face of the record.

[31]

The
        specific error which Mr. Justice Parrett found constituted an error of
        law on the face of the record arose from Judge Smyth's reasons, at para.
        21, and from the form of order drafted by counsel following Judge Smyth's
      decision.  The relevant provision of the order states:

THIS COURT ORDERS that the Sealing Order of a Search Warrant and an Information
        to Obtain a Search Warrant relating to a search executed on or about May
        28, 1999 at the office premises of the Respondent Murray Phillips be vacated,
        and an edited version of the Search Warrant and Information to Obtain a
      Search Warrant be disclosed to the Applicant.

[32]

Paragraph
        21 of Judge Smyth's reasons simply provides that "I order the disclosure
      of the edited warrant and its supporting materials."

[33]

All
        counsel agree that, in order to comply with s. 487.3(4) of the Code,
      the order should have been drafted to provide that the order of J.P Yee
      be "varied" to
        provide for disclosure of the edited warrant and Information.  The word "vacated" should
        not have been used.  It is not seriously disputed that this was the intent
        of Judge Smyth's order, and that the error in the drafted order is one
      of form rather than substance.

[34]

Mr.
        Justice Parrett found that the order referred to in para. 21 of Judge
      Smyth's reasons was ambiguous.  At paras. 51-53 of his reasons, he stated:

Finally, as
        I stated earlier, the language of the order in para. 21 is ambiguous.  On
        its face it directs disclosure of the "
edited
warrant
and
        its supporting materials"
. It does not direct disclosure of only
        the edited version of the Information to Obtain and it does not clearly
        deal with whether or not the sealing order is terminated or whether it
      is varied in order to disclose the edited versions.

Clarity and
        precision is needed in dealing with such matters and, regrettably, its
        absence in the present case leads to uncertainty as to the order given
      in the court below.

These difficulties,
        I find, constitute errors on the face of the record of the court below
      within the meaning of the relevant authorities.

[Emphasis in original.]

[35]

While
        it is undoubtedly true that orders should be drawn with clarity and precision,
        I am unable to agree that the deficiencies in form referred to by Parrett
        J. justify a quashing of Judge Smyth's order.  Although the original application
        before Judge Smyth sought access to unedited versions of the warrant and
        supporting materials, counsel agreed to an editing process during the course
        of the proceedings such that the only real issue became whether any access
        should be permitted to the edited materials.  No one was in doubt as
      to the nature of the order made; nor did the parties view it as ambiguous.

[36]

In
        my view, the Provincial Court, like other courts, has the power to correct
        errors of form under its general powers to control its own processes.  For
        that reason, and in the absence of authority to the contrary, I conclude
        that Mr. Justice Parrett erred in treating the imprecision in para. 21
        of Judge Smyth's reasons, and in the drafting of his order, as constituting
      an error of law on the face of the record justifying an order to quash.

(3)
The Merits  Disclosure
          or Non-Disclosure

(a)
Introduction

[37]

If
        I am right in finding that Judge Smyth had jurisdiction to vary the sealing
        order, and that his reasons and order do not give rise to an error of law
        on the face of the record, a further issue, raised by Cst. Phillips, is
        whether Judge Smyth erred in law in the exercise of his discretion by failing
        to give adequate consideration to
Charter
principles in accordance
        with
Dagenais v. Canadian Broadcasting Corp.
, [1994] 3
      S.C.R. 835.  This issue arises only in relation to the first appeal.

[38]

After
        dealing with this issue, I will go on to deal with the merits of Mr.
      Justice Parrett's order refusing disclosure, since his reasons were adopted
      by
      Associate Chief Justice Dohm in making the second order under appeal.

[39]

In
        discussing the merits of these decisions, I will refer to several of the
      authorities cited by counsel.

(b)
Judge Smyth's Order

[40]

Cst.
        Phillips submits that Judge Smyth's order providing for disclosure of
      the edited materials should be set aside on the merits, as failing to properly
        take into account Cst. Phillips' privacy interests, and the potential
      damage
        to his reputation.  He submits that he is an "innocent person" within
        the meaning of s. 487.3(2)(a)(iv) of the Code, such that his privacy
        interests, protected by ss. 7 and 8 of the
Canadian Charter of Rights and Freedoms
,
        should have taken precedence over the public's right to obtain access
        to the sealed materials.  In that regard, he relies on the analysis of
      Chief Justice Lamer, speaking for the majority, in
Dagenais.

[41]

In
Dagenais
,
        the court was considering a pretrial publication ban imposed under the
        common law to prevent the airing of a television program, the contents
        of which potentially jeopardized the fair trial rights of four accused.
        There, Chief Justice Lamer stated that the exercise of a judge's discretion
        whether or not to impose a publication ban should be exercised in accordance
        with
Charter
principles.  That was so whether the ban was
        imposed by statute or under the common law.  Failure to do so could give
        rise to a reversible error in law open to attack through
certiorari
.  Further,
        the remedies available to the court would not be restricted to quashing
        the order but would include remedies consistent with those available
      under s. 24(1) of the
Charter
.

[42]

In
        stating that his privacy interests are of superordinate importance in
      this case, Cst. Phillips relies heavily on the fact that he was never charged
        with an offence. In short, he submits that Mr. Justice Parrett's analysis
      of the merits should be preferred to that of Judge Smyth.

[43]

Judge
        Smyth framed the issue before him (at para. 5 of his reasons) as "whether
        the principle of openness by which judicial proceedings are generally
      governed should yield to the privacy interests Cst. Phillips claims."

[44]

In
        answering this question, Judge Smyth reviewed the reasons for judgment
        of Mr. Justice Dickson, speaking for the majority in
MacIntyre
,
supra
,
        and several other decisions referred to by counsel, including
R.
        v. Mentuck
, [2001] 3 S.C.R. 442.  I will discuss those decisions
      later in these reasons.

[45]

Judge
        Smyth concluded that Cst. Phillips was "an innocent person" within
        the meaning of s. 487.3(2)(a)(iv) of the Code.  He also considered the
Charter
principles
        at stake, as reflected by his statement that he would have to determine "whether
        [Cst. Phillips'] general privacy interests subsumed under s. 7 of the
Charter
should
        be subordinated in this instance to the applicant's s. 2(b) rights."  (para.
      17.)

[46]

Judge
        Smyth ultimately resolved that balancing process in favour of disclosure,
        as reflected in the following extract from his reasons for judgment at
      paras. 19-20:

While I would
        not be comfortable saying that Cst. Phillips has no privacy interests relevant
        to this discussion, as the applicant submitted in argument, I think that
        his privacy interest in the results of the search and the basis upon which
        it was made must carry little weight.  The search concerned an allegation
        that he had committed a breach of trust as an officer of the Vancouver
        Police Department.  It was conducted at his place of work.  I have been
        given a copy of the report made to a justice following the search and the
        things seized consisted almost entirely of files, notes and other information
        and things gathered or used in the course of his employment.  This was
        not a search delving into Cst. Phillips' private affairs, but rather
        the performance of his public duty, and the things seized in the search
        appear
      to relate directly to his performance of that duty.

Conclusion

I agree with
The Vancouver Sun
that the investigation of
        Cst. Phillips and the judicial proceedings taken in respect of that investigation
        are matters of public interest.  So far as possible they should be open
        to public examination.  That is what the principle of openness calls for.  It
        can scarcely be over-stressed that no charges have been laid against
        Cst. Phillips, but in my view the privacy interest he has shown in this
        application
        should not be preferred to the s. 2(b) rights asserted by the applicant,
        and are really of the kind Dickson, J. had in mind when he wrote (at
        p. 402 of
MacIntyre
) that: "As a general rule the sensibilities
        of the individuals involved are no basis for exclusion of the public
      from judicial proceedings."

[47]

Cst.
        Phillips submits that the error in this passage arises from Judge Smyth's
        statement that Cst. Phillips' privacy interests "must carry little
      weight."

[48]

In
        my view, it is apparent from reviewing Judge Smyth's reasons as a whole
        that he was fully alive to the public interest in preserving the privacy
        interests of individuals.   In the circumstances of this case, however,
        he concluded that Cst. Phillips' privacy interests were entitled to less
        weight than the public interest in disclosure.  I agree with his conclusion
        in that regard, and I am satisfied that it is in accord with the
MacIntyre
decision
        and with the principles set forth in the other authorities to which I will
      refer later in these reasons.

[49]

I
        now turn to an analysis of the merits of Mr. Justice Parrett's decision
      which forms the foundation of both orders under appeal.

(c)
Mr. Justice Parrett's Order

[50]

Mr.
        Justice Parrett concluded that the balancing of interests referred to in
MacIntyre,
and
        in s. 487.3 of the Code, favoured protecting Cst. Phillips' privacy interests,
        including protection of his reputation.  The fact that no charges had been
        laid against Cst. Phillips was critical to Parrett J.'s entire analysis
        in arriving at that conclusion.  He framed the fundamental issue before
      him at para. 63 of his reasons:

The substance of the present application [for access] reduces itself
        to this:  Does the public interest in the execution of a search warrant
        which results in no charges being laid override the privacy interests of
        an individual who faces no criminal charges?  Put another way, in each
        case where a search warrant is granted, does the fact that items are
        seized pursuant to the warrant result in the underlying information becoming
        public
      even where charges do not proceed?

[51]

In
        my view, posing the question in this fashion suggests that there is only
        one "right" answer which applies in every case in which a search
        warrant is issued and items are seized pursuant to that warrant, but no
        charges are laid. It is apparent from his analysis that Mr. Justice Parrett
        thought that there was only one right answer to this question, and that
        the answer was "no disclosure."  In that regard, he stated,
      at para. 86 of his reasons:

It simply cannot
        be the case that it is the seizure of items or the absence of seizures
        which triggers an overriding public interest in disclosure.  What must,
        in my view, trigger that public interest is, rather, at the least, the
        seizure of evidence which discloses the commission of a criminal offence,
and
        the initiation of criminal proceedings.
Absent such a result the
        search is of primary interest only to the persons whose rights of privacy
        have
      been invaded by the search.

[Emphasis added.]

[52]

Later
        in his judgment (paras. 90-91), Mr. Justice Parrett concludes that the
MacIntyre
emphasis
        on openness of court proceedings "is predicated on charges proceeding
      to trial."

[53]

In
        my view, the
MacIntyre
decision does not justify such a narrow
        reading. In fact, at p. 186 of the decision, Dickson J. adverts to the
        fact that, in some cases, disclosure is necessary precisely because the
      Crown has made a decision not to lay charges.

[54]

I
      turn, then, to the
MacIntyre
decision.

[55]

As
        previously stated,
MacIntyre
is the leading case on access
        to search warrants and related materials.  Although it was decided in
        1982, approximately three months prior to the enactment of the
Charter
,
        it ultimately formed the foundation for s. 487.3 of the Code, which was
        enacted in 1997. Subsequent decisions of the Supreme Court of Canada, and
        of other courts, continue to rely on Dickson J.'s analysis in
MacIntyre
when
      issues of access to search warrant materials and related issues arise.

[56]

In
MacIntyre
,
        the Chief Clerk and Justice of the Peace of the Provincial Court refused
        to permit Mr. MacIntyre, a journalist who was researching a story on
      political patronage and fund raising, to have access to executed search
      warrants
        and related materials, on the basis that such materials were not available
        for inspection by the general public.  Mr. MacIntyre applied pursuant to
        then s. 446(5) of the Code for a declaration that he, as a member of the
      public, was entitled to inspect such documents.  Section 446(5) provided:

(5)   Where anything is detained under subsection (1) [the general power
        of search and seizure], a judge of a superior court of criminal jurisdiction
        or of a court of criminal jurisdiction may, on summary application on
      behalf of a person who has an interest in what is detained, after three
      clear
        days notice to the Attorney General, order that the person by or on whose
      behalf the application is made be permitted to examine anything so detained.

[57]

The
        Nova Scotia Supreme Court granted the declaration.  The Nova Scotia Court
        of Appeal not only upheld the declaration, but also stated that the public
      was entitled to be present in open court when search warrants were issued.

[58]

On
        appeal to the Supreme Court of Canada, all members of the Court agreed
        that the Court of Appeal had erred in finding that members of the public
        were entitled to be present at the time search warrants are issued.  They
        were divided on whether the public was entitled to obtain access to such
      documents.

[59]

Mr.
        Justice Dickson wrote for the majority in finding that Mr. MacIntyre was
      entitled to a declaration in the following terms:

IT IS DECLARED that after a search warrant has been executed, and objects
        found as a result of the search are brought before a Justice pursuant to
        s. 446 of the
Criminal Code,
a member of the public is entitled
        to inspect the warrant and the information upon which the warrant has been
      issued pursuant to s. 443 of the
Code
.  [at 190]

[60]

There
        is no indication in this declaration that it is a condition precedent
      to public access to these documents that someone be charged with an offence
        arising from the investigation giving rise to the warrants.  Nor is there
        any indication in
MacIntyre
whether charges had been laid
        in relation to the warrant materials to which access was sought.  Thus,
        I am unable to agree with Mr. Justice Parrett that
MacIntyre
stands
        for the proposition that it is only after charges have been laid that
        the public is entitled to seek, and obtain, access to such documents.  Rather,
        that is a factor to be considered by the court in determining whether
      access should be granted.

[61]

In
        discussing the search warrant provisions of the Code, Mr. Justice Dickson
        noted that Parliament had made a clear policy choice that the public
      interest in the detection, investigation and prosecution of crime was to
      be given
        precedence over the competing public interest of protecting the individual
        from interference with the enjoyment of his property.  He went on to note,
        however, that the Code provided little guidance on the question of accessibility
        by the public to search warrants and related documents.  For that reason,
        he concluded that it would be unwise to attempt any comprehensive determination
      of the right of access to judicial records.  At pp. 183-84, he stated:

The question before
        us is limited to search warrants and informations.  The response to that
        question [of public access], it seems to me, should be guided by several
        broad policy considerations, namely, respect for the privacy of the individual,
        protection of the administration of justice, implementation of the will
        of Parliament that a search warrant be an effective aid in the investigation
        of crime, and finally, a strong public policy in favour of "openness" in
        respect of judicial acts.  The
rationale
of this last-mentioned
      consideration has been eloquently expressed by Bentham in these terms:

In the darkness of secrecy, sinister interest, and evil in every shape
        have full swing.  Only in proportion as publicity has place can any of
        the checks applicable to judicial injustice operate.  Where there is no
        publicity there is no justice.  Publicity is the very soul of justice.  It
        is the keenest spur to exertion and surest of all guards against improbity.  It
      keeps the judge himself while trying under trial.

The concern
        for accountability is not diminished by the fact that the search warrants
        might be issued by a Justice
in camera
.  On the contrary, this fact
        increases the policy argument in favour of accessibility.  Initial secrecy
        surrounding the issuance of warrants may lead to abuse, and publicity
      is a strong deterrent to potential malversation.

In short, what should be sought is maximum accountability and accessibility
        but not to the extent of harming the innocent or of impairing the efficiency
        of the search warrant as a weapon in society's never-ending fight against
      crime.

[62]

Dickson
        J. expressly rejected the argument that the principle of openness of
      court proceedings was restricted to the trial and did not apply at the
      pre-trial
        investigative stage of proceedings.  At pp. 185-186 of the decision,
      he stated:

The same policy considerations upon which is predicated our reluctance
        to inhibit accessibility at the trial stage are still present and should
        be addressed at the pre-trial stage.  Parliament has seen fit, and properly
        so, considering the importance of the derogation from fundamental common
        law rights, to involve the judiciary in the issuance of search warrants
        and the disposition of the property seized, if any.  I find it difficult
        to accept the view that a judicial act performed during a trial is open
        to public scrutiny but a judicial act performed at the pre-trial stage
      remains shrouded in secrecy.

[63]

And,
      at pp. 186-87, he stated:

At every stage
          the rule should be one of public accessibility and concomitant judicial
          accountability;
all
          with a view to ensuring there is no abuse in the issue of search warrants,
          that once issued they are executed according to law, and finally that
          any evidence seized is dealt with according to law.
A decision by
          the Crown not to prosecute, notwithstanding the finding of evidence appearing
          to establish the commission of a crime may, in some circumstances, raise
        issues of public importance.

In my view,
curtailment
          of public accessibility can only be justified where there is present
          the need to protect social values of superordinate importance.  One
        of these is the protection of the innocent.

Many search
        warrants are issued and executed, and nothing is found.  In these circumstances,
        does the interest served by giving access to the public outweigh that served
        in protecting those persons whose premises have been searched and nothing
        has been found?  Must they endure the stigmatization to name and reputation
        which would follow publication of the search?
Protection of the innocent
        from unnecessary harm is a valid and important policy consideration.
        In my view that consideration overrides the public access interest in
        those
        cases where a search is made and nothing is found.  The public right to
        know must yield to the protection of the innocent.  If the warrant is
      executed and something is seized, other considerations come to bear.

[Emphasis added.]

[64]

Later
        in his reasons, Dickson J. went on to make the statement referred to
      at para. 26 of my reasons that "every Court has a supervisory and protecting
        power over its own records" whereby the court can deny access where
        the ends of justice would be subverted by access, or where the documents
      might be used for an improper purpose.

[65]

I
        note here that various courts and commentators, including the Law Reform
        Commission in its report:
Public and Media Access to the Criminal Process
,
        Working Paper 56 (Ottawa: Law Reform Commission of Canada, 1987), have
        debated the significance of the distinction drawn by Dickson J. between
        searches resulting in seizures, and searches where nothing is seized,
        in relation to the issue of determining whether someone is an "innocent
        person" whose privacy interests are of superordinate importance.  I
        also emphasize that, in this case, no one seriously disputes that Cst.
        Phillips qualifies as an "innocent person" within the meaning
        of s. 487.3(2)(a)(iv) of the Code, given the fact that he was never charged
        with an offence, and despite the fact that materials were seized from his
        office in the course of the search.  This view, with which I agree, was
      also shared by Judge Smyth and Mr. Justice Parrett.

[66]

Counsel
        for the Sun, the Crown and the VPD do not agree, however, that the fact
        that Cst. Phillips is to be regarded as an innocent person is determinative
        of the disclosure issue.  In their view, prejudice to the interests of
        an innocent person is simply one factor the court must consider in determining
        whether disclosure should be made.  It is entitled to significant weight,
      but it does not necessarily tip the scales against disclosure.  I agree.

[67]

The
        critical analysis under s. 487.3 involves a balancing of interests in accordance
      with the provisions of that section which, as earlier stated, provides:

487.3 (1)   A judge
        or justice may, on application made at the time of issuing a warrant
      under this or any other Act of Parliament . . . or at any time thereafter,
      make
        an order prohibiting access to and the disclosure of any information
      relating to the warrant . . . on the ground that

(a)   the ends of justice would be subverted by the
        disclosure for one of the reasons referred to in subsection (2) or the
      information might be used for an improper purpose; and

(b)   the ground referred to in paragraph (a) outweighs
      in importance the access to the information.

(2)   For the purposes
        of paragraph (1)(a), an order may be made under subsection (1) on the
      ground that the ends of justice would be subverted by the disclosure

(a)   if disclosure of the information would

(i)     compromise the identity of a confidential
      informant,

(ii)    compromise the nature and extent
      of an ongoing investigation,

(iii)   endanger a person engaged in particular
        intelligence-gathering techniques and thereby prejudice future investigations
      in which similar techniques would be used, or

(iv)    prejudice the interests of an innocent
      person; and

(b)   for any other
      sufficient reason.

[68]

It
        is apparent from the language of this section that it was drafted to accord
        with Dickson J.'s judgment in
MacIntyre
.  In my view, it
        also reflects the
Charter
principles in issue here; namely,
        the principles of freedom of expression and freedom of the press encompassed
        under s. 2(b) of the
Charter
, and the public interest in
        protecting individual privacy encompassed under ss. 7 and 8 of the
Charter
.  The
        section does so by starting from the presumption of openness referred
        to in
MacIntyre
, taking into account the well-recognized
        concerns for the proper administration of justice including the protection
        of informants
        and the need to preserve the integrity of ongoing investigations, and
        considering the protection of the privacy interests of innocent persons.  The
        privacy interests are protected by taking into account any prejudice
        that may be
        occasioned to innocent persons in the event disclosure is granted, as
        well as whether the disclosure of the information could be used for an
        improper
      purpose.

[69]

The
        ultimate question to be resolved by the balancing of interests under
      s. 487.3 is whether any of the interests subsumed under s-s. 487.3(1)(a),
        which incorporates the grounds set forth in s-s. 487.3(2), "outweighs
      in importance the access to the information."

[70]

A
        recent decision which counsel for the Sun relies upon as shedding some
        light on the balancing process under s. 487.3 is
R. v. Eurocopter
        Canada Ltd.
, [2003] O.J. No. 4238 (Sup. Ct. J.).  There, the Crown
        was applying to vary a sealing order under s. 487.3 of the Code to permit
        public access to a warrant and supporting materials on the basis that the
        Crown could no longer justify the sealing order that was in place.  Mr.
        Justice Then framed the argument before him as "whether the Court
        should continue the sealing orders at the instance of Eurocopter Canada
        Limited ("Eurocopter") and Karlheinz Schreiber who submit that
        their entitlement to the protection of the innocent within the framework
        of s. 487.3 and at common law, in conjunction with their privacy rights
        and fair trial rights, outweighs the strong presumption of public access
      to the courts."

[71]

Mr.
        Justice Then concluded that, except for information relating to informants,
        the warrants and supporting materials should be made public.  In that
        case, charges had been laid, and the accused raised arguments concerning
        the
      validity of the warrants and their right to a fair trial.

[72]

In
        dealing with the "protection of innocence exception", Mr. Justice
        Then placed considerable reliance on
MacIntyre
and stated
        his view that s. 487.3 of the Code represents a "substantial codification" of
        the principles set forth in that decision.  At para. 47 of his reasons,
        Mr. Justice Then noted that privacy interests
per se
were not
        sufficient to displace the presumption of openness.  He then went on
        to refer to the quote from
MacIntyre
(referred to at para. 63,
supra
)
        in which Dickson J. referred to the importance of protection of the innocent
        from unnecessary harm, and his distinction between searches where something
        is seized and searches where nothing is seized.  Mr. Justice Then found
        it unnecessary to engage in the controversy involving the interpretation
      of that passage.  At para. 49 of his reasons, he stated:

At this point I propose to leave open the issue of whether the
        example of innocence adverted to by Dickson J. is exhaustive as I do not
        propose at this stage to decide, as Mr. Henry for the CBC would submit,
        that only the protection of this precise form of innocence will displace
        the presumption in favour of openness.  However, what is clear from
MacIntyre
is
      that the burden of proof is upon the person who would deny public access.

[73]

In
Eurocopter
,
        the accused sought to persuade the Court that their privacy and related
        reputation interests should be given superordinate status over the public's
        right to access to the search warrant materials on the basis that the warrants
        in issue had been illegally obtained. In considering that submission, Mr.
        Justice Then referred (at para. 53) to the
Mentuck
decision,
        which counsel before him had agreed should be applied.  At para. 53 of
Eurocopter
,
      Mr. Justice Then stated:

In the context of s. 487.3 of the Criminal Code
as
          informed by
Mentuck
, the burden was on the Crown to displace
          the general rule of openness by means of a sufficient evidentiary basis
          with respect inter alia to the exigencies of the investigation and
          the protection of the innocent in order to initially obtain a sealing
          order
          and a publication ban.  Similarly, the burden of proof and the provision
          of an evidentiary basis for the continuance of the sealing order and
          the publication ban must lie now with the party seeking the continuance
          when the Crown is no longer in a position to justify either the original
          sealing order or the publication ban.  The party seeking the sealing
          order must demonstrate based on evidence that absent a sealing order
          there is a serious risk to the administration of justice.  In this respect
          I do not doubt that the unjust stigmatization of reputation and invasion
          of privacy of an innocent person constitutes a serious risk to the administration
          of justice.  The issue is whether Eurocopter and Mr. Schreiber have
          discharged the evidentiary burden upon them to prove that there is
          a reasonable
        probability the information supporting the warrants was illegally obtained.

[Emphasis added.]

[74]

In
        the result, Mr. Justice Then found that the accused had not met the burden
        upon them to demonstrate, on the basis of reasonable probability, that
        the search was illegal, which was the foundation of their claim to "protection
      of the innocent".

[75]

Mr.
        Justice Then went on to reject the argument that the right of the accused
        to a fair trial was jeopardized by granting access to the search warrant
        materials.  In so doing, he referred to
Hill v. Church of Scientology
        of Toronto
, [1995] 2 S.C.R. 1130, in the context of the incorporation
        of
Charter
values into the balancing process.  The
Hill
decision
        is relied upon by Cst. Phillips in this case as highlighting the importance
      of the protection of his reputation.

[76]

Mr.
        Justice Then dealt with the relationship between
Hill
and
MacIntyre
at
      paras. 91-92 of his reasons:

In
MacIntyre
,
        Dickson J. recognized that the privacy rights of individuals must be
      respected and weighed in the balance with other compelling policy considerations,
        such as effective law enforcement, in determining whether the presumption
        in favour of openness of the courts should prevail.  Privacy rights also
        attract the protection of the Charter equal to other Charter values and,
        accordingly, must be respected and put in the balance with other Charter
        values in this case.  In
Hill v. Church of Scientology of Toronto
[citation
        omitted], Cory J. in dealing with a Charter challenge to the tort of defamation
      stated the following with respect to privacy rights at para. 121:

. . . reputation is intimately related to the right to privacy which
        has been accorded constitutional protection.  As La Forest J. wrote in
R.
        v. Dyment
(1988), 55 D.L.R. (4
th
) 503 at pp. 512-13, 45
        C.C.C. (3d) 244, [1988] 2 S.C.R. 417, privacy, including informational
        privacy, is "[g]rounded in man's physical and moral autonomy" and "is
        essential for the well-being of the individual".  The publication
        of defamatory comments constitutes an invasion of the individual's personal
        privacy and is an affront to that person's dignity.  The protection of
        a person's reputation is indeed worthy of protection in our democratic
        society and must be carefully balanced against the equally important
      right of freedom of expression.

(See also:
R. v.
        Mills
(1999), 139 C.C.C. (3d) 321 at pp. 364-369 (S.C.C.).)

In assessing the nature of the balance to be struck, it is pertinent
        to recall that Dickson J. in
MacIntyre
held that if the "protection
        of the innocent" is properly made out, the right to be free of the
        stigmatization and loss of reputation associated with the revelation of
        the Information to Obtain does prevail over the presumption of access and
        open courts.  However, in
MacIntyre
, Dickson J. also held that the
        loss of privacy per se, in the sense of embarrassment or loss of reputation
      is not, in itself sufficient to overcome the presumption in favour of openness.

[77]

In
        considering the weight to be given to the various factors under s. 487.3,
        as informed by
Mentuck
, Mr. Justice Then referred to the
        anomaly which would occur if the question of loss of reputation or privacy,
per
        se
, were given inordinate weight since that would mean the more serious
        the offence and the higher the standing of the individual at risk, the
        greater the likelihood that the proceedings would be kept secret from
        the public.  In the result, in the circumstances before him, he concluded
      that the balance must be struck in favour of public access.

[78]

Unlike
        this case and
Eurocopter,
the
Mentuck
decision
        (which is also relied upon by the Sun) did not involve the application
        of s. 487.3 of the Code, but, rather, a publication ban at trial to protect
        the identity of police officers and the investigatory methods they employed
        in their undercover operation.  The accused and two newspapers opposed
        the ban.  The trial judge granted a one-year ban on the identity of the
        undercover operators but refused to grant a ban with respect to the operational
        methods used by the police.  This decision was upheld on appeal to the
        Ontario Court of Appeal and on a subsequent appeal to the Supreme Court
      of Canada.

[79]

Mr.
        Justice Iacobucci, speaking for the court, noted that the decision raised "important
        questions about publicity rights in trials" which Parliament had not
        addressed in the Code and thus was to be determined by the common law.  There,
        Iacobucci J. posited the following principles (at para. 32) as governing
        the court's discretion in determining whether to issue a publication
      ban at common law:

A publication ban
      should only be ordered when:

(a)   such an order
        is necessary in order to prevent a serious risk to the proper administration
        of justice because reasonably alternative measures will not prevent the
      risk; and

(b)   the salutary effects of the publication ban outweigh the deleterious
        effects on the rights and interests of the parties and the public, including
        the effects on the right to free expression, the right of the accused
      to a fair and public trial, and the efficacy of the administration of justice.

[80]

These
        principles were considered in relation to the sealing of search warrants
        not only by Mr. Justice Then in
Eurocopter
,

but also
        by the Ontario Court of Appeal in
Toronto Star Newspapers Ltd. v.
        Ontario
, [2003] O.J. No. 4006 (C.A.).  In
Toronto Star
,
        the Crown applied for an order sealing search warrants, the Information,
        and related documents in relation to six searches which had been executed
        against a meat-packing business pursuant to an investigation under provincial
        legislation. (Thus, s. 487.3 of the Code did not apply.) The Crown alleged
        that the disclosure of the material in the warrants could identify a
        confidential informant and could interfere with the ongoing police investigation,
        both
        of which are relevant factors under s. 487.3 of the Code.  The order was
        granted.  Two newspapers sought and obtained an order for
certiorari
in
        the Supreme Court quashing the sealing order.  The quashing order was upheld
        on appeal.  Although the ratio of the Court of Appeal decision turned
        on the narrow ground of the Provincial Court judge's refusal to grant
        an adjournment
        so that the newspapers could be heard from, the Court went on to endorse
        the
Mentuck
analysis referred to above as relevant to the
      determination of whether a sealing order should be granted.

[81]

Counsel
        for Cst. Phillips sought to distinguish the various cases relied upon
      by the Sun on the basis that none of them dealt with the situation, as
      here,
        where the person who was the target of the investigation and named in
      the warrant had not been charged with a criminal offence.  In his view,
      that factor should be highly persuasive, if not determinative, in the balancing
      of interests under s. 487.3.

[82]

As
        earlier noted, however, it is not clear that anyone had been charged with
        an offence in
MacIntyre
.

Further,

under
        s. 487.3, prejudice to the innocent is but one of several factors the
        court must take into consideration in determining whether a sealing order
        should
        be granted or varied.  The extent of the prejudice an innocent person may
        suffer if access is granted may vary substantially depending on such things
        as the nature and extent of the investigation, the nature of the charges
        laid, if any, the nature and extent of the publicity surrounding the case,
        the extent to which the search warrant material may reveal personal, confidential
        or intimate matters only peripherally related to the investigation or charge,
        and various other factors.  Section 487.3 does not, on its face, separate
        out those who have been charged with a criminal offence from those who
        have not been charged.  Nor does the fact that someone has not been charged
        give rise to any logical or necessary inference that they should be protected
        from disclosure by virtue of that fact alone.  Rather, as Mr. Justice
        Osler said in
Canadian Newspapers Co. v. Canada (A.G.)
,

(1986),
        29 C.C.C. (3d) 109 at 121 (Ont. H.C.J.), (in considering the constitutionality
        of s. 487.2 of the Code): ". . . the very fact that no charge is laid
        may in some circumstances properly merit criticism and, in my view, the
        failure to lay a charge, or even to lay a particular charge 'in relation
        to which the warrant was issued' should not justify the prohibition of
      publication."

[83]

As
        earlier noted, Mr. Justice Dickson made a similar observation in
MacIntyre
when
      he said, at p. 186:

At every stage the
        rule should be one of public accessibility and concomitant judicial accountability;
        all with a view to ensuring there is no abuse in the issue of search
      warrants, that once issued they are executed according to law, and finally
      that any
        evidence seized is dealt with according to law.
A decision by the Crown
        not to prosecute, notwithstanding the finding of evidence appearing to
        establish the commission of a crime may, in some circumstances, raise issues
      of public importance.

[Emphasis added.]

[84]

With
        these authorities in mind, I return to the merits of Cst. Phillips' position
      that the sealing order should be continued.

[85]

In
        this case, the basis for making the sealing order in the first instance
        was to protect the confidentiality of informants (s. 487.3(2)(a)(i)),
      and to preserve the ongoing investigation into the allegations of breach
      of
        public office against Cst. Phillips (s. 487.3(2)(a)(ii)).  Given the editing
        of the warrant materials which counsel agreed was appropriate in this case,
        these considerations no longer apply.  Neither the Crown nor the VPD
        opposes the Sun's position that the sealing order should be varied to
        the extent
        of providing access to edited versions of the warrant, Information and
      related materials.

[86]

Cst.
        Phillips takes the position, nonetheless, that the ends of justice would
        be subverted by granting access to the materials, and, in particular, to
      the Information.

[87]

Because
        the balancing of interests under s. 487.3 must depend on the individual
        circumstances of each case, I have reviewed the edited materials to which
        access is sought.  I have also reviewed the other materials in the Appeal
        Books which form part of the record on this appeal.  The newspaper articles
        in the materials before us raise questions as to whether the prosecuting
        authorities and the VPD ought to have proceeded differently as a result
        of this investigation, including the decisions not to lay criminal charges
        against Cst. Phillips and not to proceed with internal disciplinary measures.  The
      articles also cast a shadow over Cst. Phillips.

[88]

Although
        Cst. Phillips has been subjected to publicity in relation to this investigation
        in the past, he is entitled to take the position that "enough is enough" and
        to seek to persuade the court that whatever interest the media may have
        in obtaining the further information it seeks, he has a greater interest
      in being left alone and not being subjected to further public scrutiny.

[89]

In
        approaching the balancing process, I agree with Judge Smyth that the
      nature and extent of this search, and the nature of the materials obtained
      as
        a result of the search are relevant in assessing the prejudice to Cst.
        Phillips' privacy interests.  I will repeat what Judge Smyth said at
      para. 19 of his reasons in that regard:

The search concerned an allegation that [Cst. Phillips] had committed
        a breach of trust as an officer of the Vancouver Police Department.  It
        was conducted at his place of work.  I have been given a copy of the report
        made to a justice following the search and the things seized consisted
        almost entirely of files, notes and other information and things gathered
        or used in the course of his employment.  This was not a search delving
        into Cst. Phillips' private affairs, but rather the performance of his
        public duty, and the things seized in the search appear to relate directly
      to his performance of that duty.

[90]

This
        was not a search of Cst. Phillips' home, which the courts have generally
        regarded as highly invasive of individual privacy.  Rather, it was a search
        of his office and a seizure of items, most of which could be described
        as "work product" in circumstances which would not attract a
        high expectation of privacy on the part of Cst. Phillips.  I agree with
        Judge Smyth that Cst. Phillips suffered less prejudice to his privacy
        interest than if the search had been of his home, or of his personal
        papers and
      possessions.

[91]

On
        the other hand, it is a very serious matter for someone in the position
        of Cst. Phillips to be accused of breach of public trust and to be subjected
        to ongoing public scrutiny once it has been determined that there is
      no basis for proceeding with charges.  In that respect, I agree with Mr. Justice
        Parrett that the fact of no charge being laid is a significant factor in
        the balancing process.  Further, the fact that there has already been
        publicity about this case does not mean that further publicity which
        may flow from
      disclosure is of little consequence to Cst. Phillips.

[92]

In
        all of the circumstances, while I find that Cst. Phillips undoubtedly
      has a significant privacy interest at stake in these proceedings, and while
        I agree with Judge Smyth that "It can scarcely be over-stressed that
        no charges have been laid against Cst. Phillips", I find that Cst.
        Phillips has not established that the prejudice to him as an innocent person
        within the meaning of s. 487.3 outweighs the public interest in having
        access to the edited materials.  To use the language of that section,
        Cst. Phillips has not established that an order permitting the Sun to
        have access
        to the edited warrant, Information and related materials would subvert
        the ends of justice having regard to the factors set forth in s. 487.3(2)(a),
        or that the information might be used for an improper purpose. In my
        view, the result would be the same if the not dissimilar criteria for
        common
        law publication bans set forth in
Mentuck
(quoted at para.
      79 of these reasons) were applied.

CONCLUSION

[93]

I
        would allow both appeals.  In the first appeal, I would set aside the order
        of Mr. Justice Parrett.  I would reinstate and amend the order of Judge
        Smyth to provide that the sealing order made by J.P. Yee on September
        29, 2000 be varied to provide disclosure to the Sun of an edited copy
        of the
      warrant, Information and related materials.

[94]

In
        the second appeal, I would set aside the order of Associate Chief Justice
      Dohm and quash the order of J.P. Yee made October 28, 2002.

The Honourable
Madam Justice Prowse

I Agree:

The Honourable
Madam Justice Rowles

I Agree:

The Honourable
Madam Justice Saunders

Correction: January 13, 2004

Changes
      were made at p. 30, para. 70.

The
      words:
of the Supreme Court of Canada
have been removed.


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Mowatt,
                Sr. v. Anglican Church of Canada,

2004 BCCA
            23

Date: 20040114

Docket: CA026374

Between:

Floyd Stephen
      Mowatt, Sr.

Respondent

(
Plaintiff
)

And

The Anglican
      Church of Canada, The General Synod of the
Anglican Church of Canada, The Anglican Diocese of Cariboo,
The Synod of the Diocese of Cariboo

Respondents

(
Defendants
)

And

Derek Clarke
      and Her Majesty the Queen in Right of Canada
as represented by the Minister of Indian and
Northern Affairs

Appellants

(
Defendants
)

And

The Anglican
      Church of Canada and The Anglican
Diocese of Cariboo

Appellants

(Third Parties)

And

Derek Clarke
      and Her Majesty the Queen in Right of Canada
as represented by the Minister of Indian and
Northern Affairs

Appellants

(Third Parties)

Before:

The Honourable
            Mr. Justice Braidwood

The Honourable
            Mr. Justice Mackenzie

The Honourable
            Mr. Justice Low

Oral Reasons for Judgment

P. Miller

Counsel for the Appellants

R. Taylor
M. Double

Counsel for the Appellant, HMTQ (Canada)

P.R. Grant
A. Early

Counsel for the Respondet, F. Mowatt

Place and
            Date:

Vancouver, British Columbia

January 14, 2004

[1]

BRAIDWOOD,
          J.A.
: In 1993 the plaintiff Floyd Mowatt, Sr.
          (Mr. Mowatt), sued the Anglican Church of Canada, the Anglican Diocese
          of Cariboo (collectively, the Anglicans), Her Majesty the Queen in
          Right of Canada and Derek Clarke (a dormitory supervisor), claiming
          breach of fiduciary duty, negligence and vicarious liability for sexual
          assaults
          he endured while attending St. Georges Indian Residential School,
        located near Lytton, British Columbia.

[2]

Mr.
        Mowatt now appears before us seeking costs with reference to an abandoned
        appeal.  The circumstances are as follows.  Prior to trial the parties
        entered into a settlement agreement as to the quantum of damages; consequently,
        the sole issue at trial was that of liability.  Madam Justice Dillon presided
        over the trial for 21 hearing days in 1998, delivering Reasons for Judgment
        on 30 August 1999.  The terms of the trial order were settled by Reasons
        for Judgment dated 14 December 1999.  The trial judge found that the Anglicans
        and Canada were jointly and severally liable to Mr. Mowatt for sexual assaults
        committed by Clarke.  Liability was apportioned as between the Anglicans
      and Canada, 60% to the Anglicans and 40% to Canada.

[3]

On
        28 September 1999, the Anglicans filed a notice of appeal appealing the
        finding of liability against the Anglicans and the apportionment as between
        the Anglicans and Canada.  Mr. Mowatts counsel filed a notice of appearance
      on 15 October 1999.

[4]

Mr.
        Mowatt was paid the full amount of the judgment awarded by the trial
      judge soon after the trial judgment dated 30 August 1999.  Trial costs and disbursements
        were agreed upon and paid to Mr. Mowatts counsel by the end of August
        2000.  In their appeal the Anglicans sought neither the return from Mr.
        Mowatt of monies paid to him nor to alter the quantum of damages which,
        as stated, had been agreed to prior to trial.  Mr. Mowatts financial
        and legal interests would remain intact regardless of the outcome of
      the appeal.

[5]

By
        application filed out of time, on 14 June 2000, Mr. Mowatt sought an
      extension of time to cross-appeal and leave to cross-appeal.  By reasons
      and order made 29 June 2000, the Honourable Chief Justice Finch, then sitting
      as
        a justice of the Court of Appeal, dismissed Mr. Mowatts application
      for an extension of time and leave to appeal on the following grounds:

[4] In my view there is no utility
        to such an appeal.  The plaintiff has judgment for the full amount of the
        agreed damages against all defendants and there is no appeal by the Crown
        against the finding of liability on it.  Regardless of the disposition
        of the appeal brought by the Church, the plaintiff will at the end of the
        day continue to hold a judgment for the full amount of his damages against
        one or other or both of the defendants and will not be prejudiced in any
        way with respect to the execution or collection of the judgment.  Indeed,
        I am told the judgment has already been paid.

[5] I agree with the comments
        of counsel for the Crown, Mr. Taylor, who says that in effect what the
        plaintiff wishes to do is to appeal against the reasons for judgment
      rather than against the judgment itself.  That cannot be the proper foundation
        of either an appeal or a cross-appeal.  For those reasons, the application
      to extend the time to file a notice of cross-appeal is dismissed.

[6]

On
        application by Canada by reasons and order made 9 December 2002, the Honourable
        Mr. Justice Esson adjourned the hearing of the applicants appeal
sine
        die
.  The appeal had been scheduled for hearing the week of 27 January
        2003, along with the Indian Schools appeal in
Blackwater et al v.
        Plint
.  Grounds for the adjournment were that on 20 November 2002
        an agreement in principle between Canada and the Anglicans was initialled.  The
        final agreement, signed 11 March 2003, is for the resolution of issues
        as between the Anglicans and Canada and for the payment of compensation
        of validated IRS abuse claims.  What remained to be done as of December
        2002 was the ratification process for the agreement estimated to take beyond
        the end of January 2003.  The chambers judge held that it was in the interests
        of justice to adjourn the appeal.  The chambers judge noted in paragraph
        5 of the reasons that Mr. Grant, on behalf of Mr. Mowatt, took no position.  In
      fact, there is no prejudice to Mr. Mowatt for adjourning the appeal.

[7]

Moving
        now to the specifics of the argument.  There is no question that the Court
        may order costs when an appeal is abandoned, but I am of the opinion that
        it should not do so in favour of Mr. Mowatt in these circumstances.  I
      will refer very briefly to two paragraphs from his factum:

31.   When
        Mr. Mowatt learned that the Anglican Church was going to appeal Madam
      Justice Dillons decision that they were liable, he felt abused all over
      again
      by the Anglican Appellant.

32.   The
        healing and closure that the trial judgment provided Mr. Mowatt was threatened
        by the Anglican appeal.  The Anglican Defendants have denied their responsibility
        ever since the action was commenced, through the Rule 18A application,
        throughout the trial and through filing the appeal.  That denial continued
      right up to the application to abandon the appeal.

[8]

I
        am not persuaded that there is any general point of interest arising
      in that appeal.  I also am of the opinion that questions of healing and closure
        are not grounds for attempting to participate in an appeal, particularly
        here, where full compensation has both been ordered and paid by the wrongdoers
        and is not at risk.  Generally speaking, costs are to assist the successful
        party in the recovery of legal fees.  Here, obviously, Mr. Mowatt cannot
        be more successful.  The Chief Justice has indicated, as I have read
      above, that the appellant really had no role in the appeal.

[9]

Accordingly,
        I am of the opinion that costs should not be granted as claimed.  I am
        further of the opinion that in the appeal before us each party should
      bear their own costs.

[10]

MACKENZIE,
        J.A.
: I agree.

[11]

LOW,
        J.A.
: I agree.

The Honourable Mr. Justice Braidwood