COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

United States of America v. Wilcox,

2015 BCCA 39

Date: 20150204

Docket: CA041188

Between:

Attorney General
of Canada

On behalf of the
United States of America

Respondent

(Requesting State)

And

George Wilcox

Appellant

(Person Sought)

- and -

Between:

George Wilcox

Applicant

And

Minister of
Justice

Respondent

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Willcock

On appeal from: An
order of the Supreme Court of British Columbia, dated August 13, 2013 (
U.S.A.
v. Wilcox
, 2013 BCSC 2541, Vancouver Docket 25219).

On judicial review
from: An order of surrender issued by Canada (Minister of Justice), dated March
4, 2014.

Counsel for the Appellant:

G. Botting

A. Gray

Counsel for the Respondent:

D. Strachan

A. Majawa

Place and Date of Hearing:

Vancouver, British
  Columbia

September 25, 2014

Place and Date of Judgment:

Vancouver, British
  Columbia

February 4, 2015

Written Reasons by:

The Honourable Madam Justice Bennett

Concurred in by:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock

Summary:

Mr. Wilcox is sought
for extradition by the United States on charges of sexual conduct with a minor
under fifteen years. He was tried in Arizona in absentia, and found guilty by a
jury of two out of four counts. Mr. Wilcox appeals the extradition judges
committal order and applies for judicial review of the Ministers surrender
order.

On appeal, Mr. Wilcox
argues that he did not touch the complainant for a sexual purpose but rather a
therapeutic purpose, and that mistrial on two of the counts indicates the committal
judge could not commit on those counts. Held: appeal dismissed. There was
sufficient evidence to support the inference that Mr. Wilcox acted with a sexual
purpose, and the test on committal is based on a reasonable jury, not any
particular jury.

On judicial review, Mr. Wilcox
argues that he should not be surrendered due to the harsh sentencing regime in
Arizona, and should be prosecuted in Canada instead. In the alternative, he
argues that if surrendered, the Minister should seek assurances that he will
receive a new trial, and not be prosecuted on the two counts that resulted in
mistrial. Held: Judicial review dismissed. The Minister was reasonable in
finding that his sentence would not shock the conscience of the community, that
prosecution in the USA is favourable, and that assurances are not necessary.

Reasons
for Judgment of the Honourable Madam Justice Bennett:

[1]

Mr. Wilcox was ordered committed for extradition by Cullen A.C.J. (indexed
at 2013 BCSC 2541) on four sexual offences and ordered surrendered to the
United States of America (USA) by the Minister of Justice. He appeals the
order for committal and seeks judicial review of the order for surrender.

Background

[2]

Mr. Wilcox was convicted
in absentia
in Arizona of two out
of four counts of sexual conduct with a minor under fifteen years. Mr. Wilcox
was alleged to have masturbated the complainant between July 1-31, 2007, on December
30, 2007, and between January 1-5, 2008, and to have engaged in an act of oral
sexual contact with the complainant between January 1-5, 2008. The complainant
in all four counts is H.A., the step-son of Mr. Wilcox. H.A. is immobile,
legally blind and unable to speak due to a childhood accident. The jury could
not reach a verdict with respect to two of the counts, and a mistrial was
declared with respect to those counts.

[3]

The USA alleges that Mr. Wilcox was seen by the complainants
sister, I.A., masturbating and performing oral sex on H.A. I.A. told her
mother, and Mrs. Wilcox set up a video camera. She says she captured Mr. Wilcox
performing these acts on her son. Mrs. Wilcox went to the police with this
evidence and charges were laid.

[4]

Mr. Wilcox admitted masturbating H.A., but claimed it was for H.A.s
benefit. He denied committing the offence alleging oral sex. He failed to
appear for his trial, and his trial proceeded in his absence. The jury found Mr. Wilcox
guilty of two of the four charges: masturbating H.A. on December 30, 2007 and between
January 1-5, 2008. The jury could not reach a verdict on the two remaining
counts: masturbating H.A. between July 1-31, 2007 and oral sexual conduct with H.A.
between January 1-5, 2008.

[5]

The USA requested extradition of Mr. Wilcox. An authority to
proceed before the British Columbia Supreme Court was issued by the Attorney
General of Canada on November 13, 2009 for prosecution and sentence of offences
that correspond to the offence of sexual interference, contrary to s. 151
of the
Criminal Code
,

R.S.C. 1985, c. C-46.

The Committal Appeal

Issues

[6]

Mr. Wilcox raised three grounds of appeal in his factum: that the
committal judge erred by not turning his mind to whether he performed the alleged
conduct for a reason other than a sexual purpose; that the committal judge
erred in failing to consider the fact that the jury could not reach a decision
on two counts in assessing whether a reasonable jury, properly instructed,
could return a verdict of guilty; and that the committal judge erred in holding
that he did not have jurisdiction to determine treaty compliance. Mr. Wilcox
abandoned this last ground at the hearing of the appeal. In addition, Mr. Wilcox
raised several new grounds of appeal, not raised before the committal judge or
in this factum, for the first time in his reply factum.

The Statutory Framework for Committal

[7]

Section 29(1)(a) of the
Extradition Act
,
S.C.
1999, c. 18

sets out the statutory
basis for committal:

29.
(1) A judge shall
order the committal of the person into custody to await surrender if

(
a
) in the
case of a person sought for prosecution, there is evidence admissible under
this Act of conduct that, had it occurred in Canada, would justify committal
for trial in Canada on the offence set out in the authority to proceed and the
judge is satisfied that the person is the person sought by the extradition
partner; and

(5) Subject to a relevant
extradition agreement, if a person has been tried and convicted without the
person being present, the judge shall apply paragraph (1)(
a
).

[8]

The test for committal pursuant to s. 29 of the
Extradition Act
is whether or not there is any evidence upon which a reasonable jury properly
instructed could return a verdict of guilty (see
United States of America
v. Ferras
, 2006 SCC 33 at para. 9, citing
United States of America
v. Shephard
, [1977] 2 S.C.R. 1067 at p. 1080).

Standard of Review for Committal

[9]

This appeal is brought pursuant to s. 49 of the
Extradition Act
from the Order of Committal. Mr. Wilcox seeks to have the Order of
Committal set aside. Under ss. 53 and 54 of the
Extradition Act
,
this Court may set aside the Order of Committal and either order the discharge
of the appellant or order a new extradition hearing if the Court is of the
opinion that the Order of Committal:

(a) is unreasonable or cannot be supported by the evidence;

(b) is the result of a wrong decision on a question of law;
or

(c) is the result of a
miscarriage of justice.

[10]

In
United States of America v. Gunn
, 2007 MBCA 21 at para. 49
(leave to appeal refused, [2007] S.C.C.A. No. 108), which was applied by
this Court in
United States of America v. Costanzo
,

2009 BCCA 120,

the Manitoba Court of Appeal said the following regarding the standard of
review and the jurisdiction of the Court on a committal appeal:

In summary, the appropriate standard of review with respect
to an order of committal is derived from the wording of sec. 53 of the
Act.
A
reasonableness/cannot be supported by the evidence test is applicable with
respect to questions of fact. Nonetheless, deference is due to the extradition judges
findings and conclusions; an appellate court is not free to simply substitute
its view of the facts for that of the committal judge. Under sec. 53(a)(ii), a
correctness standard is applied to questions of law. But an appeal may
nonetheless be dismissed even if there is a wrong decision on a question of
law if no substantial wrong or miscarriage of justice has occurred pursuant
to sec. 53(b)(ii).

Discussion

i)        Sexual purpose

[11]

Mr. Wilcox submits that the committal judge erred in not turning
his mind to the sexual purpose required by s. 151 as an element of the
offence. Section 151 is as follows:

Every person who, for a sexual purpose,
touches, directly or indirectly, with a part of the body or with an object, any
part of the body of a person under the age of 16 years

[12]

The
mens rea
of this offence is that the act of touching be done for
a sexual purpose. In
R. v. Morrisey
, 2011 ABCA 150 at para. 21,
the Court said this:

Touching is done for a sexual
purpose, if it is done for ones sexual gratification or to violate a persons
sexual integrity. In determining whether touching takes place in circumstances
of a sexual purpose, we are of the view that a trial judge can in assessing the
mens rea
of the accused, consider whether the sexual context of the touching
would be apparent to any reasonable observer. The sexual purpose may be
proven either by direct evidence, or it may be inferred from circumstantial
evidence or from the nature of the touching itself (ie. the only reasonable
inference to be drawn from the circumstantial evidence or from the nature of
the touching itself is that the accused committed the touching for a sexual
purpose).

[13]

In
R. v. G.B.
, 2009 BCCA 88 at paras. 25 and 30, this Court
considered the relevance of motive, and said this:

[25]      In my opinion, the trial judge erred in implicitly
finding that the Crown must prove the accused touched the complainant for his
or her own sexual gratification as an element of the offence. All the Crown
must prove is that the touching be for a sexual purpose. In this case, no
matter how one views the facts, the touching was for a sexual purpose.

[30]      While it may be
relevant on a sentencing hearing, in my opinion the respondents motive was
irrelevant to the Crowns proof of the essential elements of the offence.

[14]

The question for the extradition judge was not to decide whether there
was a sexual purpose or not. The question was, as stated above, in
Ferras
,
whether or not there is any evidence upon which a reasonable jury properly
instructed could return a verdict of guilty. The extradition judge, after
stating the correct test, said this at paras. 51-52:

Similarly, in the January 2008 incident, in relation to which
the jury convicted on the count relating to Mr. Wilcox masturbating H.A.,
but were unable to reach a verdict on the count which related to the alleged
oral sex, the video showed his actions consistent with those activities (the
movement of his arm in proximity to H.A.s penis, the position of his head near
H.A.s penis, and the licking of his hand), but did not directly depict the
actual contact.

As I see it, even without using
the similar fact as a basis for concluding what was afoot, there is a body of
direct evidence of sexual contact in relation to the December 2007 incident
which permits a conclusion that it is sufficient, in the sense of being not
manifestly unreliable and not calling for unsupportable inferences, and it is
evidence that a reasonable jury, properly instructed, could return a verdict of
guilty in relation to. Moreover, Mr. Wilcoxs statement to the police
officer acknowledges that he engaged in sexual touching of H.A., and in his
response to the question of how often, his answer left available the inference
that it was a number of times and not just on one occasion. That provides
support for the observations which I.A. testified to in relation to the
December 2007 incident, and lends reliability to the case against Mr. Wilcox
in that connection.

[15]

In my respectful opinion, there was ample evidence to support the
inference that Mr. Wilcox acted with a sexual purpose, and I would not
give effect to this ground of appeal.

ii)       Effect of the hung jury on two counts

[16]

Mr. Wilcox submitted that if the jury could not reach a verdict,
then it could not be said that a reasonable jury, properly instructed, could
return a verdict of guilty. He says, succinctly, that therefore, the committal
judge could not commit on those two counts.

[17]

While this raises an interesting point, in my respectful opinion, it
does not form a reason to dismiss a committal. The test is a reasonable jury,
not any particular jury. A proper evidentiary foundation is present for the
committal, and I would not give effect to this ground of appeal.

[18]

With respect to the additional grounds raised in the reply factum: the
admission of the video evidence taken surreptitiously by his wife, failing to
disclose material to Mr. Wilcox, the timing of the absconding (whether it
was before or after the trial started) − none of these have any merit.
The admissibility of the video tape was not raised before the committal judge
(properly so in my view). There was no allegation of failure to disclose
material before the committal judge; indeed Mr. Wilcox was provided with
all the necessary material (and Mr. Botting apologized to counsel for
suggesting otherwise). Lastly, the timing of the absconding is a matter for the
Arizona appeal courts, not the committal court.

[19]

I would dismiss the appeal with respect to the order of committal.

Judicial Review

Issues

[20]

Mr. Wilcox brought many issues for the Ministers consideration. He
seeks judicial review on the basis of three alleged errors:

1.         That the Minister erred in ordering Mr. Wilcoxs
surrender, given the harsh sentencing regime in Arizona, combined with the fact
he was convicted
in absentia
;

2.         That the Minister erred in giving only cursory
consideration to prosecution in Canada pursuant to s. 7 (4.1) of the
Criminal
Code
and s. 6(1) of the
Charter
;

3.         In the alternative,
that the Minister erred in ordering an unconditional surrender without seeking an
assurance that if surrendered Mr. Wilcox would receive a new trial, or an
assurance that Mr. Wilcox would not be prosecuted on the offences on which
the jury did not reach a verdict.

Standard of Review for Judicial Review

[21]

In
Németh v.

Canada (Justice)
, 2010 SCC 56, the Court
described the standard of review of the Ministers decision at para. 10:

The standard of judicial review is not contentious. The
Ministers decision to surrender for extradition should be treated with deference;
it will generally be reviewed for reasonableness. However, in order for a
decision to be reasonable, it must relate to a matter within the Ministers
statutory authority and he must apply the correct legal tests to the issues
before him. As LeBel J. said on behalf of the Court in
Lake v. Canada
(Minister of Justice)
, 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 41:

[T]he Minister must, in reaching his decision, apply the
correct legal test. The Ministers conclusion will not be rational or
defensible if he has failed to carry out the proper analysis. If, however, the
Minister has identified the proper test, the conclusion he has reached in
applying that test should be upheld by a reviewing court unless it is
unreasonable.
. . . Given the Ministers expertise and his obligation to
ensure that Canada complies with its international commitments, he is in the
best position to determine whether the factors weigh in favour of or against
extradition. [Emphasis added in
Németh
.]

Discussion

i)        Sentencing Regime

[22]

Mr. Wilcoxs argument is based on s. 44(1)(a) of the
Extradition
Act
:

44.
(1) The Minister shall refuse to make a surrender order if the
Minister is satisfied that

(
a
) the
surrender would be unjust or oppressive having regard to all the relevant
circumstances;

[23]

The Minister said the following in response to this submission:

Whether
the sentence Mr. Wilcox faces in the United States is disproportionate

You submit that the sentence Mr. Wilcox
faces in the United States is

so discordant with the punishment
that he would receive in Canada for the same conduct that it would shock the
conscience of Canadians, especially since the treatment was given out of human
compassion for a young man who clearly benefits from it.

I understand that the USDOJ has provided the
following information regarding the potential sentence faced by Mr. Wilcox:

·

Arizona law provides for a mitigated sentence of
13 years in prison, a presumptive sentence of 20 years in prison, and an
aggravated sentence of 27 years in prison, for each of the charges. The USDOJ
also advises that any sentences must be imposed consecutively;

·

Following a conviction, a probation officer will
prepare a pre-sentence report that contains information about the defendants
offence, his criminal history, and other background information. The defendant
has the right to object to the information and conclusion in that report. At
the sentencing hearing, defence counsel will be able to present mitigating
factors to the judge that can result in a reduction in the sentence;

·

In deciding the sentence, pursuant to Arizona
Revised Statute 13-702, the sentencing judge must consider:

-     the age of
the defendant;

-     the defendants capacity to appreciate the wrongfulness of his
conduct;

-     whether the defendant was under any unusual or substantial
duress;

-     the degree
of the defendants participation; and

-     any other factor that is relevant to the defendants character
or background or to the nature or circumstances of the crime.

·

The 27-year aggravated sentence is only
available if the State proves one of the statutory aggravating circumstances to
the trier of fact. Those circumstances include: 1) the infliction or threatened
infliction of serious physical injury; 2) that the victim suffered physical or
emotional harm; and 3) any other factor that the State alleges is relevant to
the defendants character or background or to the nature or circumstances of
the crime;

·

No aggravating circumstances were proven as part of the two
convictions; and

·

Arizona law permits the State to allege aggravating circumstances
after a conviction, but a new jury must be chosen to decide the sole issue of
the aggravating circumstances.

The USDOJ also advises that Arizona does not intend to re-try
Mr. Wilcox on the two charges which resulted in a hung jury, and does not
intend to allege aggravating circumstances with respect to the two convictions.
However, the USDOJ clarifies that, if the two convictions were to be overturned
on appeal, Arizona reserves the right to re-try Mr. Wilcox on the two
counts which resulted in a hung jury and to allege aggravating circumstances.

Accordingly, Mr. Wilcox is facing a presumptive sentence
of 40 years in prison with respect to the two convictions, and a minimum
sentence of 26 years. If he were to appeal his convictions and a new trial on
all four counts were to result in convictions, he would face a maximum sentence
of 108 years, a minimum sentence of 52 years, and a presumptive sentence of 80
years.

You submit that even a sentence of 40 years would shock the
conscience of Canadians and warrant a refusal of Mr. Wilcoxs surrender,
particularly in view of his claim that he was only trying to treat [H.A.]. You
submit, moreover, that Mr. Wilcox would not even receive a sentence of 40
months if convicted of the same conduct in Canada.

I note that, at the time that Mr. Wilcox committed the
alleged offences, the Canadian offence of sexual interference, contrary to
s. 151 of the
Criminal Code,
carried a minimum sentence of forty-five
days in custody if the Crown proceeded by indictment, and a maximum sentence of
imprisonment for a term not exceeding ten years.

The principles of comity and respect for state sovereignty,
which are the foundation of the extradition process, mandate that deference be
shown to a treaty partners criminal justice system, including their sentencing
regime. The sentencing provisions that apply in different jurisdictions are a
reflection of each countrys response to particular national concerns, and the
extradition regime must be flexible enough to accommodate the different
sentencing regimes of its respective treaty partners.

Indeed, the Supreme Court of Canada has repeatedly upheld
surrender decisions where the person sought for extradition was potentially
facing a lengthy mandatory sentence upon conviction in the requesting state (
United
States of America

v.

Jamieson
(1994), 93 C.C.C. (3d) 265
(Que. C.A.), revd [1996] 1 S.C.R. 465;
United States of America v. Whitley
(1994), 94 C.C.C. (3d) 99 (Ont. C.A.), affd [1996] 1 S.C.R. 467;
United States
of America

v
.
Ross
(1994), 93 C.C.C. (3d) 500 (B.C.C.A.), affd
[1996] 1 S.C.R. 469. See also:
United States v. K. (J.H.)
(2002), 165 C.C.C.
(3d) 449 (Ont. C.A.), leave to appeal to S.C.C. refused, (2002), 101 C.R.R.
(2d) 376;
United States of America v. Gwynne
(1998), 103 B.C.A.C. 1,
leave to appeal to S.C.C.

refused, [1998] I S.C.R. ix).

I am satisfied that, while Mr. Wilcox is likely to
receive a lengthier sentence in the United States than he would if convicted of
the same conduct in Canada, this is not a factor which, alone, warrants a
denial of his surrender. Although Mr. Wilcox faces a maximum sentence of
108 years, he is likely to face the presumptive sentence of 40 years. Furthermore,
I note that, if Mr. Wilcox
is sentenced in the United
States, he will have the opportunity to present mitigating factors to the judge
which may result in a reduction of his sentence.

Accordingly, it is my view that Mr. Wilcoxs
surrender, in these circumstances, would not shock the conscience or offend the
Canadian sense of what is fair, right and just (
Kindler

v.

Canada
(Minister of Justice)
, [1991] 2 S.C.R. 779). Indeed, Mr. Wilcox is
sought for the imposition of sentence and to face trial on very serious
charges. Mr. Wilcox is alleged to have taken sexual advantage of the
vulnerability of a severely disabled young man who was in his care.

Canadas commitment to protecting children
against sexual offences involves not only prosecuting alleged perpetrators in
Canada, but ensuring that Canada does not become a safe haven for those whose
criminal actions have serious effects abroad. As such, Canada has increased its
efforts to punish and suppress the sexual exploitation of children, a growing
global concern. This is reflected in the increased mandatory minimum sentences
which were enacted in 2012 for the offence of sexual interference. Although Mr. Wilcoxs
conduct took place before the new mandatory minimums came into force,
Parliaments decision to increase the mandatory minimums nevertheless reflects
Canadas condemnation of this type of criminal conduct.

In my view, the fact that Mr. Wilcox
believes that his actions were justified is a matter for the courts in the United
States. Mr. Wilcox will have the ability to raise his explanation for his
actions in the context of his U.S. sentencing proceedings on the two counts for
which he was convicted. In addition, should he successfully appeal those
convictions and be re-tried by the Arizona authorities, he will have the
opportunity to raise this issue in the context of the re-trial.

In all of the
circumstances, I am satisfied that Mr. Wilcoxs surrender to the United
States to potentially face a lengthy custodial sentence would not be shocking
to the Canadian conscience and would not cause his surrender to be unjust or
oppressive or contrary to s. 7 of the
Charter.

[24]

As is apparent from this decision, Mr. Wilcox will likely receive a
significantly higher sentence than he would if he were convicted of these
offences in Canada. He faces anywhere from 26 years upwards to 108 years
imprisonment. The sentence for these offences in Canada is a minimum of 45-days
imprisonment and a maximum of ten years per count. Theoretically, Mr. Wilcox
could face a forty-year sentence in Canada, but it is accepted that the
sentence imposed in this country would likely be in the lower penitentiary
range. This is a far cry from the sentence he faces in the USA.

[25]

Mr. Wilcox submits that the Minister erred when he concluded that [t]he
principles of comity and respect for state sovereignty  mandate that deference
be shown to a treaty partners criminal justice system, including their
sentencing regime and that the extradition regime must be flexible enough to
accommodate the different sentencing regimes of its respective treaty partners.

[26]

Mr. Wilcox refers to the judgment in
Kindler v. Canada (Minister
of Justice)
, [1991] 2 S.C.R. 779 at pp. 849-850:

The test for whether an extradition law or action offends
s. 7 of the
Charter
on account of the penalty which may be imposed
in the requesting state, is whether the imposition of the penalty by the
foreign state sufficiently shocks the Canadian conscience:
Schmidt
,
per
La Forest J., at p. 522. The fugitive must establish that he or she faces a
situation that is simply unacceptable:
Allard
,
supra
, at
p. 572. Thus the reviewing court must consider the offence for which the
penalty may be prescribed, as well as the nature of the justice system in the
requesting jurisdiction and the safeguards and guarantees it affords the
fugitive. Other considerations such as comity and security within Canada may
also be relevant to the decision to extradite and if so, on what conditions. At
the end of the day, the question is whether the provision or action in question
offends the Canadian sense of what is fair, right and just, bearing in mind the
nature of the offence and the penalty, the foreign justice system and
considerations of comity and security, and according due latitude to the
Minister to balance the conflicting considerations.

In determining whether, bearing
all these factors in mind, the extradition in question is simply unacceptable,
the judge must avoid imposing his or her own subjective views on the matter,
and seek rather to objectively assess the attitudes of Canadians on the issue
of whether the fugitive is facing a situation which is shocking and
fundamentally unacceptable to our society.

[27]

He submits that the imposition of this length of sentence is shocking
and fundamentally unacceptable to our society.

[28]

He adds a layer to this argument, and submits that a conviction
in
absentia
adds another dimension to the shock of imposing such a high
sentence.

[29]

The Minister applied the correct legal test, that is, would the
disparity in the sentencing regimes shock the conscience of the community in
determining whether the surrender of Mr. Wilcox would be unjust or
oppressive. The question is whether his decision was reasonable.

[30]

In
United States of America v. Burns
, 2001 SCC 7, the Court
discussed what the term shock the conscience was meant to convey at paras. 68-69:

Use of the shocks the conscience terminology was intended
to convey the exceptional weight of a factor such as the youth, insanity,
mental retardation or pregnancy of a fugitive which, because of its paramount
importance, may control the outcome of the
Kindler
balancing test on the
facts of a particular case. The terminology should not be allowed to obscure
the ultimate assessment that is required: namely whether or not the extradition
is in accordance with the principles of fundamental justice. The rule is
not
that departures from fundamental justice are to be tolerated unless in a
particular case it shocks the conscience. An extradition that violates the
principles of fundamental justice will
always
shock the conscience. The
important inquiry is to determine what constitutes the applicable principles of
fundamental justice in the extradition context.

The shocks the conscience
language signals the possibility that even though the rights of the fugitive
are to be considered in the context of other applicable principles of fundamental
justice, which are normally of sufficient importance to uphold the extradition,
a particular treatment or punishment may sufficiently violate our sense of
fundamental justice as to tilt the balance against extradition. Examples might
include stoning to death individuals taken in adultery, or lopping off the
hands of a thief. The punishment is so extreme that it becomes the controlling
issue in the extradition and overwhelms the rest of the analysis. The
respondents contend that now, unlike perhaps in 1991 when
Kindler
and
Ng
were decided, capital punishment is
the
issue.

[31]

A number of courts have considered whether the lengthy prison terms
imposed in the USA shocks the conscience, and none have found that the
sentences reach that far. A brief examination of those decisions reveals the
rationale behind this conclusion.

[32]

In
United States of America v. Jamieson
, [1996] 1 S.C.R. 465, the
Supreme Court of Canada reversed the majority substantially for the reasons of
Baudouin J.A. ((1994), 93 C.C.C. (3d) 265 (Que. C.A.)). Justice Baudouin
acknowledges severe punishments imposed in the USA, in that instance, for
drugs. He says, at p. 268-9:

Of course, the Michigan state law is severe, even very
severe, and is the reflection of a repressive philosophy which would probably
be considered outdated in our country. This, however, is not the crux of the
problem in the present case.

First, the sentence is severe, but as appears from the
record, the State of Michigan seems to have been in the throes of a problem for
a number of years with trafficking in very hard drugs. The law of this state,
which was voted by democratically elected persons, rightly or wrongly (it is
not for me to decide) based its policy of repression on a strict philosophy of
societal self-defence.

If one were to reverse the
situation, could one say that the U.S.A. would find unacceptable, and shocking
to the conscience, the sentences imposed in Canada for the possession of
weapons prohibited here  but freely available for sale there?

[33]

The majority decision in
Jamieson
at the Quebec Court of Appeal, which
was reversed by the SCC, concluded that the 20-year minimum sentence for
possession of 10 ounces of a cocaine mixture was shocking and fundamentally
unacceptable to our society (p. 278). The SCC concluded otherwise, and agreed
with Baudouin J.A.

[34]

In
Gwynne v. Canada (Minister of Justice)
(1998), 103 B.C.A.C. 1
(leave to appeal refused, [1998] S.C.C.A. No. 95), Gwynne was surrendered
to the State of Alabama to serve the remaining 110 years of a 120-year sentence
for extortion offences. Mr. Gwynne raised not only the length of his
sentence, which was a reflection of habitual criminal legislation, but also the
harsh conditions of imprisonment that he faced.

[35]

Mr. Justice Goldie, for the majority, after a review of the law
delineating the role of the Courts and the role of the Minister, concluded the
following on the issue of the harshness of the sentence, at paras. 27-29:

But the severity alone of Mr. Gwynnes sentence is not
in itself ground for refusing to extradite him. It is harsh indeed to impose
consecutive sixty year sentences. Nevertheless, it is possible under the
Criminal
Code of Canada
,
although not for crimes of extortion, for a person
to be sentenced for a term during which he or she is ineligible for parole that
could cause a middle-aged offender to doubt his or her normal life expectancy
would exceed the period of parole ineligibility.

I think it would be difficult to establish that the severity
of a sentence in a foreign jurisdiction, imposed after a trial with reasonable
procedural safeguards by a court of competent jurisdiction under legislation of
general application, was a breach of s. 7 of the
Charter
. I say
this in light of the judgment of the Supreme Court of Canada in
United
States of America v. Jamieson
, [1996] 1 S.C.R. 465; 197 N.R. 1, which
substantially adopted the dissenting reasons of Mr. Justice Baudouin in
Jamieson
v. Canada (Minister of Justice)
(1994), 197 N.R. 2; 93 C.C.C. (3d) 265
(Que. C.A.).

If this matter revealed no other
circumstance than service of the unexpired portion of an admittedly harsh
sentence, but one imposed by law, and the allegation of procedural unfairness
on the part of the Minister, I would not be prepared to conclude he had exercised
his discretion in a manner which would permit this court to interfere on either
Charter
or non-
Charter
grounds.

[36]

Goldie J.A. quotes from
Kindler
at para. 36:

In
Kindler,
Madam Justice McLachlin said at p. 55
[C.C.C.]:

At the end of the day, the
question is whether the provision or action in question offends the Canadian
sense of what is fair, right and just, bearing in mind the nature of the
offence and the penalty, the foreign justice system and considerations of
comity and security, and according due latitude to the Minister to balance the
conflicting considerations.

In determining whether, bearing all these factors in mind,
the extradition in question is simply unacceptable, the judge must avoid
imposing his or her own subjective views on the matter, and seek rather to
objectively assess the attitudes of Canadians on the issue of whether the
fugitive is facing a situation which is shocking and fundamentally unacceptable
to our society.

[37]

He concluded that the conditions in the Alabama prison were subjectively
shocking, but that did not overcome the deference owed to the Minister.

[38]

In
Burns
, the Court affirmed the principles stated in
Kindler
,
except to require assurances in death penalty cases in all but the most exceptional
cases. At paras. 36-38:

The Court has historically exercised restraint in the
judicial review of extradition decisions, as McLachlin J. (as she then was)
noted in
Kindler
,
supra
, at p. 849:

In recognition of the various and
complex considerations which necessarily enter into the extradition process,
this Court has developed a more cautious approach in the review of executive
decisions in the extradition area, holding that judicial scrutiny should not be
over-exacting. As the majority in
Schmidt
pointed out, the reviewing
court must recognize that extradition involves interests and complexities with
which judges may not be well equipped to deal (p. 523). The superior placement
of the executive to assess and consider the competing interests involved in
particular extradition cases suggests that courts should be especially careful
before striking down provisions conferring discretion on the executive. Thus
the court must be extremely circumspect to avoid undue interference with an
area where the executive is well placed to make these sorts of decisions:
Schmidt
,
at p. 523. It must, moreover, avoid extraterritorial application of the
Charter
:
Schmidt, supra
.

La Forest J. expressed similar views in
Kindler
,
supra
,
at p. 837.

The customary deference to the Ministers extradition
decisions is rooted in the recognition of Canadas strong interest in
international law enforcement activities:
Cotroni, supra
, at p. 1485,
cited by McLachlin J. in
Kindler
, at pp. 843-44;
Libman v. The
Queen
, [1985] 2 S.C.R. 178, at p. 214;
Idziak, supra
, at
p. 662. The respondents do not quarrel with these general observations.
Their argument is that despite McLachlin J.s caution in
Kindler
that the
court must be extremely circumspect to avoid undue interference with an area
where the executive is well placed to make these sorts of decisions (p. 849),
a constitutional requirement of assurances does not undermine in any
significant way the achievement of Canadas mutual assistance objectives. The
executive negotiated Article 6 of the extradition treaty, the United States
agreed to it, and both parties must therefore have regarded its exercise as
consistent with the fulfilment of their mutual assistance obligations.

We affirm that it is generally
for the Minister, not the Court, to assess the weight of competing
considerations in extradition policy, but the availability of the death
penalty, like death itself, opens up a different dimension. The difficulties
and occasional miscarriages of the criminal law are located in an area of human
experience that falls squarely within the inherent domain of the judiciary as
guardian of the justice system:
Re B.C. Motor Vehicle Act, supra
, at
p. 503. It is from this perspective, recognizing the unique finality and
irreversibility of the death penalty, that the constitutionality of the
Ministers decision falls to be decided.

[39]

In
United States of America v. Whitley
(1994), 94 C.C.C. (3d) 99
(Ont. C.A.) (appeal dismissed, substantially for the reasons of Laskin J.A.,
[1996] 1 S.C.R. 467), the Court considered arguments in relation to minimum sentences
of 20 years and 10 years in prison for offences related to the exportation of 1,100
lbs of marihuana from the USA to Canada. Laskin J.A. identified the questions
as not whether the sentence would be constitutional or desirable in Canada, but
whether sending the offender to face the sentence would be fair and just (at para. 49).
He agreed with the Ministers conclusion that the surrender would not shock the
conscience of the community.

[40]

In the present case, the potential sentence is very long indeed. Given Mr. Wilcoxs
age (he is presently 57 years old), it is potentially a life sentence even if the
minimum 26-year sentence is imposed. The question is whether such a sentence
for the offences of which Mr. Wilcox has been convicted and is potentially
facing (the USA indicated it would not proceed on the two other charges unless
the appeals court ordered a new trial on the two offences for which he has been
convicted) would shock the conscience of the community. In my respectful
opinion, it would not.

[41]

The Courts have also made it clear that absent sentences that would
invoke behaviours of a nature like torture, the death penalty, the excising of
limbs, for example, the sentencing regimes of other nations, no matter how much
more severe than our own, will not generally shock the conscience of the
community. This is not to say that a minor offence drawing a substantial sentence
might not meet the test − it may very well (see for example
Jamieson
at p. 269, where Baudouin J.A. postulated that the case did not involve a
20-to-30-year sentence for possession of a single marihuana cigarette, which
might shock the conscience of the community). In this case, however, where Mr. Wilcox
has been convicted of sexually fondling a minor who was blind, mute and
incapable of resisting or calling for help, in my respectful view, it would not
shock the conscience of the community to know that Mr. Wilcox will face a
significant term in prison.

[42]

Mr. Wilcox argues that the Minister failed to consider that he was
convicted
in absentia
,

I assume suggesting that Mr. Wilcox
did not have proper procedural safeguards applied to his case. The case still
went to trial before a jury. The prosecution had to call evidence, and the jury
convicted on two counts and could not decide on the other two counts. The issue
of the trial proceeding
in absentia
is one for the Arizona courts of
appeal, and the Minister did not err in these circumstances by failing to find
that this would add a dimension of shock in this case.

[43]

I would not give effect to this ground.

ii)       Mobility Rights

[44]

Mr. Wilcox argues that the Minister erred by failing to permit Mr. Wilcox
to be prosecuted in Canada in accordance with s. 7 (4.1) of the
Criminal
Code
and s. 6 of the
Charter
:

Criminal Code

7. (4.1)
Notwithstanding anything in this Act or any other Act, every one who, outside
Canada, commits an act or omission that if committed in Canada would be an
offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3),
section 163.1, 170, 171, 171.1, 172.1, 172.2 or 173 or subsection 286.1(2)
shall be deemed to commit that act or omission in Canada if the person who
commits the act or omission is a Canadian citizen or a permanent resident
within the meaning of subsection 2(1) of the
Immigration and Refugee
Protection Act
.

Charter

6. (1) Every
citizen of Canada has the right to enter, remain in and leave Canada.

[45]

An extradition invokes s. 6 of the
Charter
and the Minister
is obliged to consider these provisions. In this case the Minister said this:

As Mr. Wilcox is a Canadian citizen and could, pursuant
to s. 7(4.1) of the
Criminal Code
, be prosecuted in Canada in
relation to the conduct for which his extradition is sought, I have also
considered whether surrender would unjustifiably violate his s. 6(1)
Charter
rights.

The Supreme Court of Canada has stated that the extradition
of a Canadian citizen is a
prima facie
violation of his or her right to
remain in Canada pursuant to s. 6(1) of the
Charter.
However,
extradition may be a reasonable limit on that right when considering the importance
of the objectives sought by extradition  the investigation, prosecution,
repression and punishment of both national and transnational crimes for the
protection of the public
(United States of America v. Cotroni
, [1989] 1
S.C.R. 1469;
United States of America

v
.
Kwok
, [2001] I
S.C.R. 332;
Lake

v
.
Canada (Minister of Justice)
, [2008] 1
S.C.R. 761;
Sriskandarajah
v.
United States of America
, [2012] 3
S.C.R. 609).

I note that, in determining whether the presumptive s. 6(1)
violation is saved by s. 1 of the
Charter
, the relevant Canadian
prosecuting authorities must give due weight to a Canadian citizens right to
remain in Canada. This involves conducting a
bona fide
assessment of
whether
a Canadian prosecution would be a realistic option or
equally effective to prosecution in the Requesting State, based on the factors outlined
by the Supreme Court of Canada in
Cotroni
,
supra,
as being
relevant to this assessment.

In this case, the documentary evidence
submitted by the United States in support of its request for Mr. Wilcoxs
extradition was provided to counsel for the Attorney General of British
Columbia, the competent authority to conduct a prosecution in this matter.
Counsel concluded that a prosecution in Canada is not a realistic option.

My role in determining the issue of
surrender is not to re-examine the decision of counsel for the Attorney General
of British Columbia, made in good faith. Nevertheless, I must be satisfied that
Mr. Wilcoxs surrender would be consistent with the dictates of the
Charter
.
This includes an independent consideration of the factors set out in
Cotroni
,
supra.

Having reviewed those factors in relation to
Mr. Wilcoxs case, I am satisfied that all of them, other than Mr. Wilcoxs
citizenship, favour prosecution in the United States. None of Mr. Wilcoxs
conduct took place in Canada and all of the witnesses and evidence are located
in the United States. Moreover, the investigation was conducted entirely by
American law enforcement authorities, and the impact of Mr. Wilcoxs
conduct was felt entirely in the United States. As noted above, Canada has an interest,
not only in prosecuting offences involving the sexual exploitation of children,
but in ensuring that those individuals are brought to justice in the
jurisdiction most affected by the alleged crime.

In all the
circumstances of this case, I am satisfied that Mr. Wilcoxs surrender
would not unjustifiably violate his s. 6(1)
Charter
rights.

[46]

In my respectful opinion, the Minister properly applied the factors in
United
States of America v. Cotroni
, [1989] 1 S.C.R. 1469 and
Sriskandarajah v.
United States of America
, 2012 SCC 70. He considered the option of
prosecuting Mr. Wilcox in Canada, a proposition rejected by the Attorney
General of British Columbia in apparent good faith. He went on and considered
the
Cotroni
factors in any event, and concluded that all of the factors,
save Mr. Wilcoxs Canadian citizenship, weighed in favour of a prosecution
in the USA. In my respectful view, he committed no error in this regard. I
would not give effect to this ground.

iii)      Failure to Seek Assurances

[47]

Mr. Wilcox argues that the Minister erred in failing to seek
assurances that i) Mr. Wilcox be granted a new trial, but only on the two
charges on which he was convicted of, or ii) Mr. Wilcox not be prosecuted
on the two outstanding charges against him, regardless of whether he receives a
new trial on appeal on the offences of which he was convicted.

[48]

He argues that the prosecutions position, that if he is granted a new
trial on appeal, they will pursue the other charges, is tantamount to the
conduct of the American trial judge in
United States of America v. Cobb
,
2001 SCC 19, found by the Supreme Court of Canada to be an abuse of process. In
addition, Mr. Wilcox submits that these assurances are another way to
alleviate against the harsh sentence Mr. Wilcox might face if tried on all
four counts.

[49]

The Minister said this:

You have requested that, if I decide to order Mr. Wilcoxs
surrender to the United States, my surrender order must be subject to
assurance.

Pursuant to s. 40(3) of the
Act
, I am permitted to
seek any assurances, from an extradition partner, that I deem appropriate. The
seeking of an assurance is dependent on my preliminary determination that
surrender without assurances would he contrary to the principles of fundamental
justice or that there is some other compelling reason for me to exercise my
general discretion to refuse surrender (
Mellino
,
supra).

Assurance
of a new trial in the United States

You submit that, if Mr. Wilcox is surrendered, I should
obtain an assurance that he will be given a new trial. You did not provide me
with any submissions in support of this request.

As noted earlier the USDOJ has advised that Mr. Wilcox
will have the right to appeal his convictions. As part of his appeal, Mr. Wilcox
will have the right to argue that he was either not made aware that his trial
could proceed in his absence or that his absence was not voluntary.

Furthermore, I note that Canadian law also permits
in
absentia
trials. Specifically, I note that s. 475(1) of the
Criminal
Code
provides that the trial of an indictable offence may proceed where an
accused absconds during the course of the trial, and that s. 475(3)
provides that an accused who has absconded is not entitled to re-open any of
the proceedings that were conducted in his or her absence, unless it is in the
interests of justice to do so.

Accordingly, I have concluded that the requested assurance is
neither required nor appropriate in the circumstances of this case.

Assurance that the United
States will consider laying different charges

You submit that I should seek an assurance that the United
States will consider laying charges, which more accurately reflect the nature
of Mr. Wilcoxs alleged conduct. You have not provided any submissions in
support of this request.

As noted earlier, the extradition judge has committed Mr. Wilcox
on the basis that his conduct, had it taken place in Canada, would constitute
the offences set out in the ATP.

In my view, it would be an inappropriate interference in the
United States justice system, including the prosecutorial discretion of the
Arizona prosecutors, to seek the requested assurance.

Accordingly, I have concluded
that this assurance should not be sought.

[50]

Section 40(3) of the
Extradition Act
gives the Minister the
discretion to seek assurances from the requesting state:

The Minister may seek any assurances
that the Minister considers appropriate from the extradition partner, or may
subject the surrender to any conditions that the Minister considers
appropriate, including a condition that the person not be prosecuted, nor that
a sentence be imposed on or enforced against the person, in respect of any
offence or conduct other than that referred to in the order of surrender.

[51]

The conduct of the prosecution in this case is far from the egregious
conduct found in the
Cobb
case. As put succinctly by the Crown in this
case:

The facts of this case are
entirely distinguishable from those in
United States of America v. Cobb
,
[2001] S.C.R. 581. There is no evidence that the American prosecutorial
authorities have threatened the applicant with a more severe punishment if he
does not abandon his rights in Canada, as was the case in
Cobb.
The
foreign authorities have done nothing in this case that puts this Courts
integrity at issue. Nor has the applicant been pressured by the United States
to abandon his appeal rights in that jurisdiction. To the contrary, the
American authorities have simply provided information as to the applicants appeal
rights in the United States. The Minister has conducted his analysis of the
potential sentence of imprisonment faced by the applicant in light of that
information and also in light of provisions of the
Code
which permit
trials in Canada to proceed in the absence of the accused.

[52]

The Ministers decision not to seek assurances is subject to deference.
In my view, the Ministers decision was reasonable and I would not interfere
with it.

[53]

Mr. Wilcox argues that this Court should order a trial in Canada
pursuant to s. 7(4.1) of the
Criminal Code
. This Courts
jurisdiction on judicial review flows from s. 57 of the
Extradition Act
.
Section 57(6) states:

57 (6) On an application for judicial review,
the court of appeal may

(a) order the Minister to do any act or thing
that the Minister has unlawfully failed or refused to do or has unreasonably
delayed in doing; or

(b) declare invalid
or unlawful, quash, set aside, set aside and refer back for determination in
accordance with any directions that it considers appropriate, prohibit or
restrain the decision of the Minister referred to in subsection (1).

[54]

It is clear that this Court has no jurisdiction to make the order
requested.

[55]

I would dismiss the judicial review and affirm the decision of the
Minister of Justice.

Disposition

[56]

In summary, I would dismiss the appeal from the committal order and
dismiss the judicial review of the Ministers surrender order.

The Honourable Madam Justice Bennett

I agree:

The
Honourable Madam Justice Saunders

I agree:

The Honourable Mr. Justice Willcock


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Chellappa v. Kumar,

2016 BCCA 2

Date: 20160104

Docket: CA42613

Between

Anurahini
Chellappa

Appellant

(Claimant)

And

Niraj Deepak Kumar

Respondent

(Respondent)

And

Government of the
Province of British Columbia,
as represented by the B.C. Public Service Agency

Respondent

(Applicant)

And

British Columbia
Government and Service Employees Union

Respondent

(Respondent)

Before:

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice Garson

The Honourable Mr. Justice Goepel

On appeal from:  An
order of the Supreme Court of British Columbia, dated
February 4, 2015 (
Chellappa v. Kumar
, New Westminster Registry Docket
E28935).

The Appellant appearing In Person

Anurahini Chellappa

Counsel for the Respondent,
Niraj Deepak Kumar:

Did not appear

Counsel for the Respondent,
Government of the Province of British Columbia, as represented by
the B.C. Public Service Agency

E.L. Ross

Counsel for the Respondent,
British Columbia Government and
Service Employees Union

P.R. Shklanka

Place and Date of Hearing:

Vancouver, British
  Columbia

November 3, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January 4, 2016

Written Reasons by:

The Honourable Mr. Justice Goepel

Concurred in by:

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice Garson

Summary:

Appeal from an order
permitting the use by non-parties of documents filed in the appellants family
law case. The appellant seeks to prevent the use of these documents in a labour
arbitration grievance on procedural and substantive grounds. Held: appeal
dismissed. The employer and union had standing to seek directions in the family
law case under R. 10-9(8) of the Supreme Court Family Rules. The appellant does
not enjoy an overriding right of privacy in regard to material filed in her
family law case. The Rules define the general scope of protection for a
litigants privacy interests in a family law proceeding. The employer accessed
the family law file in compliance with the Rules.

Reasons for Judgment of the Honourable
Mr. Justice Goepel:

[1]

This appeal addresses the tension between the open court principle and a
litigants privacy rights in a family law case. The matter has arisen in the
course of a labour arbitration grievance. The parties to the grievance, who are
not parties to the family law case, wish to rely on documents filed in the appellants
family law case. The appellant seeks to prevent the use of these documents by the
non-parties.

[2]

For the reasons that follow, I would dismiss the appeal.

BACKGROUND

[3]

To put the issues in context, it is first necessary to chronicle the two
separate legal proceedings.

[4]

The family law case is between the appellant, Anurahini Chellappa, and
her now-former husband, Niraj Deepak Kumar. Mr. Kumar takes no position on
the appeal.

[5]

The grievance concerns E.H., a friend of the appellant who testified on
her behalf in the family law case, and his employer, the Province of British
Columbia (the Employer). E.H. is represented by the British Columbia
Government and Service Employees Union (the Union). The Employer is
represented by the B.C. Public Service Agency (the PSA).

[6]

The appellant and Mr. Kumar began a relationship in 2005. They
married in February 2007 and their son was born in July 2007. The parties
separated in November 2007 and the appellant commenced the family law case in
December 2007.

[7]

The proceedings in the family law case have been contentious. Most of
the conflict has centered on issues of custody and access. There have been
numerous court applications and orders concerning those issues.

[8]

The family law case came on for trial in June 2011. In reasons dated
June 27, 2011, the trial judge awarded the appellant sole custody of their son with
generous access to Mr. Kumar. The trial judge seized himself of further
applications. In his reasons, the trial judge also made several comments that
were critical of E.H.s conduct in relation to the family law case.

[9]

Prior to December
2013, E.H. was employed as a child protection social worker with the Ministry
of Children and Family Development. In January 2011, E.H. was suspended for
five days (the Suspension). The stated reason for the Suspension was E.H.s conduct
in supporting the appellant in the family law case.

[10]

The Union grieved the Suspension. This grievance did not come on for arbitration
until May 27, 2013. In the course of the hearing, the Union and the Employer exchanged
certain documents from the family law case including the trial judges reasons
from June 2011. On May 30, 2013, the parties agreed to adjourn the hearing so
that the Employer could further investigate E.H.s conduct.

[11]

Carol Graham, an employee of the PSA, was tasked with the Employers additional
investigation. On June 5, 2013, she interviewed Mr. Kumar. During the
interview, she requested that Mr. Kumar provide her with documents from
the family law file. In response to this request, Mr. Kumar provided to Ms. Graham
a copy of the transcript of E.H.s testimony at the June 2011 trial.

[12]

On June 17, 2013, Ms. Graham attended the New Westminster Supreme
Court Registry with Mr. Kumar to review the contents of the family law
file. With Mr. Kumars consent, she obtained copies of some documents from
that file.

[13]

A month or so earlier, on May 10, 2013, Mr. Kumar had filed an
application seeking to vary the orders made by the trial judge after the June
2011 trial. The appellant filed a responding application seeking to confirm her
custody rights. The hearing of these applications was set for November 12,
2013.

[14]

Mr. Kumar did not attend the hearing on November 12, 2013. At this
hearing, counsel for the appellant raised the question of privacy. The
following exchange took place between counsel and the trial judge:

MR. BOYD:     Well, in this case, My Lord, one of
the
things I wanted to speak to is the issue of
privacy.  And a problem thats cropped up is that
the materials that are filed by Ms. Chellappa in
court are then broadcast by Mr. Kumar.  And
despite our requests that he not do that, thats
continued to be the case.

I
looked to see if theres some relief that
we can obtain, and I [
sic
] closest I get really is in
terms of the
Rules
.  You have the protection, for
example, under the financial disclosure rule.  The
next one is one that appears I believe under the
chambers applications where the court can make a
rule
−
I think its
under Rule 10-3(5)
−
and
thats really just in terms of declaring the
proceedings to be private.  And what Im looking
for really is some mechanism by which the court
process can be private and my clients materials
are not simply broadcast to various people in the
community.  So
−−

THE
COURT:  10-3(5)?

MR. BOYD:
So thats the hearing of application in
public.  So in case of emergency −−

THE
COURT:  Yeah, Im on a different −− oh, Im sorry,
Im in the civil rules, of course.  Let me just
find the family rules.  What page are you at?

MR. BOYD:
Im looking at 1240 and the −−

THE
COURT:  Thank you.  Well, Im not sure that that
gets you where you want to go.

MR. BOYD:
Well, I guess what Im looking for really is
some means by which −−

THE
COURT:  All right.  Well, I am prepared, subject to
Mr. Kumar applying to set it aside, is, one, as I
say, his application is dismissed.  Hes not shown
up here today.  I am going to adjourn your
clients application.  It strikes me as moot in
the face of the dismissal of his because, as I
recall matters, she has custody, has she not?

MR. BOYD:
She does.

THE
COURT:  So I dont −− Im still just going to
adjourn it over so she doesnt need to refile.
Im not sure that she needs an application, but in
any event, hers will be adjourned.

I am also going to make
an order that the
contents of the affidavits and material exchanged
within the summary trial process, assuming it
proceeds on, are not to be disclosed or divulged
to other persons until I hear from Mr. Kumar.  And
so that will be an interim order
.  I am seized of
it.  Obviously, its to be brought back in front
of me, but by Mr. Kumar would be the one.  And you
can put that in the form of an injunction if you
wish, that he is to be restrained, but it should
be a neutral restraint.  And by that I dont mean
to suggest − and I see Ms. (indiscernible) at the
back of the −− or, sorry, Ms. Chellappa, pardon
me, at the back of the room, to suggest shes
doing anything.
But I think that just keeping a
balance on this matter at this time, it should be
each of them are restrained from discussing the
matters in this litigation or arising from the
affidavits
.  Generally in the public, it involves
a child, and I think its important that the
privacy concerns be protected.  And then Ill hear
from each of the parties if I need to later on.

[Emphasis
added.]

[15]

The order entered after this hearing includes the following:

THIS COURT ORDERS THAT

4.         There shall be a mutual conduct order pursuant to
sections 222 and 227 of the
Family Law Act
, [S.B.C.] 2011, chapter 25
so that each party is prohibited from broadcasting, distributing, delivering or
sharing any of the materials in these proceedings, and shall not broadcast,
distribute, deliver or share any of the materials in these proceedings, or any
material arising directly from these proceedings to any third-party.

(the November 12
Order).

[16]

As will become clear, the November 12 Order is the foundation for the order
that is the subject matter of this appeal.

[17]

In December 2013, the Employer terminated E.H.s employment in part
because of his involvement in the family law case (the Termination). The Union
grieved the Termination. The Union and the Employer agreed that the Suspension
and Termination grievances would be heard together and appointed John Hall as
arbitrator.

[18]

On June 10, 2014, in response to a request from the Union for disclosure
by the Employer, the PSA forwarded to the Union copies of the documents that it
had obtained through its search of the family law file in June 2013.

[19]

On or around September 23, 2014, the Union raised a preliminary objection
to the use of the family law documents in the arbitration. The Unions objection
was based on the November 12 Order. The Union argued that the order constituted
a judicial firewall which precluded the use of any evidence from the family
law case.

[20]

On November 14, 2014, Arbitrator Hall heard submissions in relation to
the Unions objection. He noted that the Employer had properly acquired the family
law documents in June 2013, in advance of the November 12 Order. He identified
the issues before him as whether the Employer could rely on these documents in
the arbitration, and if yes, whether the Union would be unable to make full
answer and defence in light of the November 12 Order that was by that time in
place.

[21]

Arbitrator Hall concluded that the trial judge was best positioned to
determine the scope of the November 12 Order. He therefore adjourned the
arbitration to allow the Employer and the Union to seek directions from the
trial judge.

[22]

On January 22, 2015, the Employer filed a notice of application for
directions in the family law case. In particular, the Employer sought a
direction that the November 12 Order did not apply to the family law documents that
it had obtained prior to November 12, 2013. Alternatively it sought to amend
the November 12 Order to permit it to adduce the documents as evidence in the
arbitration.

[23]

The appellant opposed the Employers application. She submitted that the
Employer and the Union were strangers to the family law case and had no
standing to seek directions concerning the November 12 Order.

[24]

The trial judge found otherwise. In reasons given on February 4, 2015, he
noted that the Employer had obtained copies of the family law documents prior
to the pronouncement of the November 12 Order and followed the proper procedure
in doing so. In his view, the November 12 Order only affected the conduct of
the parties to the family law case, not third parties. He also found that the
November 12 Order did not preclude the use of materials disseminated prior to
its pronouncement. He held that, given that the Employer had acted on materials
in its possession and the materials formed part of the consideration for the Employers
action, it would be inappropriate to now restrict its use of the materials.

[25]

The trial judge agreed that the Union required its own independent
access to the family law file so as to muster its defence. He noted that, had
he known of the dispute between E.H. and his employer when the request for the
November 12 Order was made, a different result may have ensued. He initiated a
process to allow the Union access to the family law file.

[26]

The order arising from the proceeding reads as follows:

THIS COURT DIRECTS that:

1.

The
November 12, 2013, order issued by [the trial judge] pursuant to sections 222
and 227 of the
Family Law Act
, SBC 2011, c. 25 does not apply to
materials in Family Court file No. E028935 obtained by the PSA prior to
November 12, 2013.

THIS COURT ORDERS that:

2.

Counsel
for the BCGEU shall have access to and may make copies of the materials in
Family Court file No. E028935;

3.

Prior to
making use of any of the materials obtained from Family Court file No. E028935
in the labour arbitration between the BCGEU and the PSA concerning the
grievances filed on behalf of E.H., counsel for the BCGEU must:

a.

serve the
material on the Claimant and Respondent in this matter, and on the PSA, by way
of application; and

b.

set down an
application before [the trial judge] to determine which, if any, of the
materials may be adduced in the labour arbitration.

(the February 4 Order).

THE APPEAL

[27]

The appellant now appeals the February 4 Order. She seeks an order that
any information received by third parties from Mr. Kumar be subject to an
implied undertaking of non-disclosure. She also seeks an order prohibiting the
parties to the family law case from disclosing any information from that
proceeding to non-parties.

[28]

The appellant bases her appeal on procedural and substantive grounds.
She submits that the trial judge ignored the
Supreme Court Family Rules
(the

Rules
) and the implied undertaking rule in allowing non-parties access
to the family law file. She submits that, as a non-party, the Employer should not
have been given standing to seek directions. Underlying all her submissions is
the proposition that allowing non-parties to access her family law file is a
violation of her privacy rights.

DISCUSSION

[29]

Before turning to the issues raised on the appeal, I wish to comment
briefly on the November 12 Order. While that order is not directly challenged
on this appeal, it was made in a most irregular manner without any apparent
regard to the rules that govern applications to court. There was no underlying
application. It was made without notice to Mr. Kumar. There was no affidavit
evidence to support it. It was based entirely on counsels brief comments which
are set out in the reasons. Such practices should not be encouraged.

[30]

The November 12 Order is a complete gag on either party discussing the
case with anyone. I have considerable doubt as to whether the trial judge had
jurisdiction to make an order which so broadly restricts a partys freedom of
expression. If such jurisdiction does exist, it should only be invoked in the
clearest of cases on a full evidentiary record with notice to all impacted
parties.

[31]

The November 12 Order, as entered, is much broader in scope than what
was discussed at the hearing. At the hearing, there was no discussion of
sections 222 and 227 of the
Family Law Act
, S.B.C. 2011, c. 25. Further
the order was intended to be interim in nature and should have specifically set
out Mr. Kumars right to set it aside.

[32]

Turning to the merits of the appeal, I deal first with the appellants procedural
objections. The appellant submits that the Employer and the Union are
non-parties to the family law case and should not have been granted standing to
seek directions concerning the November 12 Order. That objection is without
merit.

[33]

Pursuant to R. 10-6(6) of the
Rules
, an application must be
served on every person who may be affected by the order sought. Rule 10-9(6)
allows the court to make an order without notice in case of urgency. Pursuant
to Rule 10-9(8), a person affected by an order made without notice may apply
to the court to change or set aside the order. Rule 10-9(8) provides recourse
to persons affected by an order regardless of whether they are parties in the
underlying proceeding.

[34]

In the circumstances of this case, the Employer and the Union were both persons
possibly affected by the November 12 Order. As of November 12, 2013, they had
in their possession documents from the family law file. Given Arbitrator Halls
direction, the Employer had to bring the application for directions in order to
determine if the documents could be used in the arbitration. The trial judge did
not err in giving the Employer and the Union standing to speak to an order that
affected them.

[35]

The appellants reliance on the implied undertaking of confidentiality rule
is also misplaced. In
Juman v. Doucette
, 2008 SCC 8, the Supreme Court
of Canada summarized the principles governing the implied undertaking rule. The
rule holds that evidence compelled during pre-trial discovery from a party to
civil litigation can be used by the parties only for the purpose of the
litigation in which it was obtained. The foundation of the rule is the
statutory compulsion to participate fully in pre-trial discovery. The rule is designed
to encourage open and generous discovery by assuring parties being discovered
of confidentiality. The rule recognizes that the public interest in getting at
the truth in a civil action outweighs the examinees privacy interest, but that
the latter is nevertheless entitled to a measure of protection. The implied undertaking
rule is not absolute. A party bound by the undertaking may apply to the court
for leave to use the information or documents otherwise than in the action. Further,
the implied undertaking of confidentiality is extinguished when the evidence is
used in open court.

[36]

The documents in issue in this proceeding are not covered by the implied
undertaking rule. They were not created in the course of pre-trial discovery. The
documents are court orders, reasons for judgment, affidavits, and transcripts
of court proceedings. The implied undertaking rule does not apply to such
documents.

[37]

Setting aside these procedural objections, the substance of the
appellants complaint concerns her privacy rights in respect of the family law
file.

[38]

The
Rules
contain some limitations on access to family law files.

[39]

While Rule 22-2(1) allows any person, unless otherwise provided by an
enactment, on payment of the proper fees, to obtain from the registry a copy of
a document on file in a family law case, Rule 22-8(1)(a), (5) and (6) limits
access as follows:

Search of files

(1)  Unless the court otherwise orders,

(a) no person, other than the
following, may search a registry file in respect of a family law case:

(i)

a
lawyer, whether or not a lawyer of a party;

(ii)

a
party;

(iii)

a person authorized in writing by a party;

(iv)

a
person authorized in writing by a partys lawyer, and

Search of exhibits

(5)  The exhibits produced at the trial or hearing of a
proceeding referred to in subrule (1) must be sealed by the registrar in a
secure manner and, unless the court otherwise orders, no person other than a
partys lawyer, a party or a person authorized by a party or by a partys
lawyer may search the exhibits.

Search of agreements

(6)  Unless the court otherwise
orders, no person other than a party, a partys lawyer, a person authorized in
writing by a party or a person authorized in writing by a partys lawyer may
search a separation agreement filed under section 122 of the
Family
Relations Act
.

[40]

A partys right to keep information in a family law case private has
been the subject of prior judicial scrutiny. While a litigants right of
privacy is an important right, it is subject to, and does not take precedence over,
the right of the public to an open court process:
Edmonton Journal v.
Alberta (Attorney General)
, [1989] 2 S.C.R. 1326.

[41]

The issue in
Edmonton Journal
was the constitutional validity of Alberta
legislation which limited the publication of information concerning matrimonial
disputes. The Court held that the legislative provisions violated the right to freedom
of expression guaranteed under the
Canadian Charter of Rights and Freedoms
(the

Charter
)

and could not be justified under s. 1 of the
Charter
.
The majority recognized that a court can always use its supervisory power over
its own record to grant restraining orders in appropriate cases:
Edmonton
Journal
at 1346-1347.

[42]

In
Leung v. Leung
(1993), 77 B.C.L.R. (2d) 305 (S.C.), Chief
Justice Esson suggested that a party in a matrimonial action was not entitled,
as of right, to injunctive relief restraining the possession or use of
documents from the court file even though the documents were obtained in
contravention of the
Rules.

[43]

In
K.V.P. v. T.E.
(1998), 56 B.C.L.R. (3d) 344 (S.C.), a party
and several non-party media outlets applied to have a family law file unsealed.
After reviewing the legislation and the authorities, Madam Justice Loo
concluded:

[20]      It therefore appears
that notwithstanding Rule 60(22) [now R. 22-8(1)], parties do not have a right
to insist that the proceedings remain private, or that information contained in
the files not be disclosed to persons other than the parties, or any solicitor
in all circumstances.
If a third party seeks access to a matrimonial file, a
general desire to keep matters private or to avoid publicity is not sufficient
to deny access. It appears that a significant risk that significant harm will
otherwise occur must be demonstrated in order to overcome the openness
principle and the majority decision in
Edmonton Journal
.
[Emphasis
added.]

[44]

In
Michie v. Michie
, 2010 BCCA 232, this Court was asked to
examine the confidentiality of financial information disclosed in matrimonial
proceedings. Referring to the decisions in
Edmonton Journal
,
Leung
and
K.V.P.
, the Court concluded that there was no general right to
privacy in such proceedings. The Court held that the
Rules
identify with
some specificity the material to which confidentiality applies and that the
Rules
are an exception to the general open court policy of the law. The Court
concluded:

[31]      In matrimonial proceedings,
as in other court proceedings, public access is the norm.  Recognizing the
sensitivities of matrimonial proceedings, the
Rules of Court
provide
some limitations on access.

[45]

Those comments are apposite. The appellant enjoys no overriding right of
privacy in regard to material filed in her family law case. While a Supreme Court
judge may limit access to a family law file, such an order is contrary to the
open court principle and is an exception to the general rule.

[46]

In this case, the Employer obtained documents from the family law file with
the consent of Mr. Kumar, who is a party to the family law case. In so doing,
the Employer obtained the family law documents in compliance with the
Rules.
Nothing in the
Rules
prohibited Mr. Kumar from giving documents from
the family law file to a third party. There is no legal basis to deny the
Employers use of these documents in the grievance proceedings. Further, the
documents are clearly relevant to the issues that are before the arbitrator in
that proceeding.

[47]

I would dismiss the appeal.

The
Honourable Mr. Justice Goepel

I AGREE:

The Honourable Madam Justice Kirkpatrick

I AGREE:

The Honourable Madam Justice Garson