Décision

COURT OF APPEAL FOR BRITISH COLUMBIA

Date: 20160727

Docket: CA43286

Civil Forfeiture Action in Rem Against $29,215.00 in Canadian Currency seized
from Tyler Jordan on November 29, 2013 by the Southeast District Royal Canadian
Mounted Police (the “Southeast District RCMP”) (the “Money”); and an iPhone
cellular telephone, an LG cellular telephone, and a BlackBerry cellular telephone
seized from Tyler Jordan on November 29, 2013 by the Southeast District RCMP
(collectively the “Cell Phones”); and a 1999 Honda Accord with Vehicle Identification
Number 1HGCG3147XA800831 seized from Tyler Jordan on November 29, 2013 by
the Southeast District RCMP (the “Vehicle”) and the Fruits and Proceeds Thereof
(collectively, the Money, the Cell Phones and the Vehicle are referred to as
the “Property”)

Between:

Director of Civil Forfeiture

Respondent

(Plaintiff)

And

The Owners and all Others Interested in the Property,
in Particular Tyler Glen Jordan

Appellant

(Defendant)

On appeal from:  An order of the Supreme Court of British Columbia, dated
November 5, 2015 (British Columbia (Director of Civil Forfeiture) v. Jordan,
Victoria Registry 15-0544).

Summary:

Chambers judge below did not err in finding a “serious question to be tried” under s. 8(5) of the Civil Forfeiture Act, despite brevity of his reasons and admission of an expert report that consisted mainly of opinions that were not required to assist the Court with technical or scientific issues.

Reasons for Judgment of the Honourable Madam Justice Newbury:

[1]           On the evening of November 29, 2013, police were conducting an “impaired safety road check” in Nelson. They stopped a vehicle being driven by the appellant Mr. Jordan, who had a valid driver’s licence but whose insurance had expired a few days earlier. During the stop, police noticed a strong odour of vegetative marihuana coming from inside the car, as well as the faint odour of smoked marihuana. When Mr. Jordan got out of the car, police again detected a strong odour of vegetative marihuana coming from his person. He was arrested for possession of marihuana and cautioned.

[2]           In conducting a search incidental to the arrest, the police found on Mr. Jordan a large pocket knife, two cellphones, and $1,015 in currency. He said he had won the money playing cards with friends. When they searched the vehicle, the police also found:

i.          a tied-up grocery bag containing six separate bundles of money totalling $28,200, one of which bundles contained $10,000 and was vacuum-sealed;

ii.         bear spray;

iii.        a metal pipe;

iv.        two sleeping bags;

v.         a hard plastic bag containing a silver bag which the arresting officer, Sergeant Ferguson, deposes is an item commonly used in transporting marihuana;

vi.        two income tax statements in Mr. Jordan’s name; and

vii.       a BlackBerry cellphone.

The money was for the most part arranged into bundles or sub-bundles of $1,000 or $2,000 using elastic bands.

[3]           On December 5, 2013, a police service dog used for the detection of narcotics (i.e., cocaine, heroin, marihuana, methamphetamine, ecstasy and hashish) detected three locations inside closed cabinets in which portions of the currency from Mr. Jordan’s vehicle had been hidden. The dog, “Jet,” indicated (correctly) that he detected the odour of narcotics in all three locations.

[4]           Mr. Jordan was charged on or about November 29, 2013 for possession of marihuana, but the Crown stayed the charge in December 2014.

[5]           On February 13, 2015, the Director of Civil Forfeiture (the “Director”), the respondent in this appeal, filed a Notice of Civil Claim - Civil Forfeiture (in Rem) in the Supreme Court of British Columbia. The Notice was served on Mr. Jordan on March 2, 2015. In it, the Director alleged that Mr. Jordan’s vehicle, a 1999 Honda Accord (the “Vehicle”), had been used to facilitate the trafficking of illegal drugs; and that the “Money” (a term that was not defined in the Notice but presumably referred to the six bundles totalling $28,200) had been “provided by purchasers of Illegal Drugs at a time prior to or including November 29, 2013.” Further, the Notice alleged:

14.       Mr. Jordan either directly participated in the selling of Illegal Drugs or obtained the Money directly or indirectly from the sellers of Illegal Drugs.

15.       Mr. Jordan intended to use the Money to purchase Illegal Drugs.

16.       Prior to November 29, 2013, proceeds from the trafficking of Illegal Drugs were used to increase Mr. Jordan’s interest in the Vehicle by:

a)      making periodic loan payments;

b)      paying fees associated with the Vehicle; and

c)      maintaining and improving the Vehicle.

17.       Alternatively, if Mr. Jordan used legitimate income to pay for costs associated with the Vehicle, Mr. Jordan used proceeds from the trafficking of Illegal Drugs to pay other expenses he would not otherwise have been able to pay.

[6]           The Director sought, inter alia, orders that the Vehicle, the Money and cellphones and their “fruits or proceeds” be forfeited pursuant to s. 5(2) of the Civil Forfeiture Act, S.B.C. 2005, c. 29.

[7]           In his Response to Civil Claim filed April 13, 2015, Mr. Jordan through counsel (then Mr. Maddock) denied that any of the seized items were proceeds or instruments of unlawful activity, and opposed the granting of the forfeiture orders. He asserted that the search of the Vehicle and of his person on November 29, 2013 had been carried out contrary to his Charter rights and that all evidence obtained contrary to those rights should be excluded in accordance with s. 24(2) of the Charter.

[8]           Having been told by Mr. Maddock that he would not consent to an interim preservation order (“IPO”), the Director proposed to set down an application in Supreme Court for such an order in May 2015. Mr. Maddock suggested June 19 as an appropriate date. Mr. Ryneveld on behalf of the Director replied that “June 19 … suits my calendar, but I will need some time to get the necessary affidavits prepared and served. I will be in touch as soon as I can to confirm the date.” Mr. Maddock deposes that he heard nothing further from Mr. Ryneveld, and Mr. Maddock was subsequently appointed to the Provincial Court bench. Mr. Jordan then retained his present counsel, Mr. Blokmanis, in early July to deal with the matter. Mr. Blokmanis filed an application for the return of the property, returnable on July 29, 2015. At the request of Mr. Ryneveld, it was then adjourned until September 25 and again until November 5 due to the unavailability of court time. Meanwhile, on September 14, the Director filed his application for an IPO together with the following:

i.              An opinion prepared by Sgt. M. Paddon, in which she recited various facts told to her by Sgt. Ferguson (the police officer who had stopped and searched Mr. Jordan at the road block) and gave various opinions, based on her experience, including the opinion that it is common for drug traffickers to bundle their money in $1,000, $5,000 or $10,000 lots; that the way in which the Money had been bundled, banded and packaged was “consistent with the proceeds of crime derived from illegal activity”; and ultimately that the Money was “proceeds of crime derived from illegal activity.”

ii.         Affidavit #1 of Sgt. Ferguson, in which he described the search he had carried out on November 29, 2013 and the search carried out by the police dog Jet;

iii.        Affidavit #1 of Ms. Knight, an assistant to Mr. Ryneveld, detailing the correspondence between Mr. Ryneveld and Mr. Maddock, and then between Mr. Ryneveld and Mr. Blokmanis. The final paragraph of that affidavit stated:

I am further advised that the reason for the delay in the Director bringing an application for an interim preservation order in this action is due to the fact that counsel for the Director was awaiting a further response from Mr. Maddock subsequent to counsel for the Director’s May 5, 2015 email correspondence.

[9]           On September 21, 2015, the appellant filed his application response, objecting to the admissibility of Sgt. Paddon’s evidence and asserting that there was no “serious question to be tried” within the meaning of s. 8(5) of the Act. Counsel relied heavily on R. v. Sekhon 2014 SCC 15 in connection with the Paddon opinion; and on Director of Civil Forfeiture v. Trimble (B.C.S.C., Victoria Registry No. 12-2974, dated Oct. 4, 2012), to which I shall return below. Mr. Jordan also argued that the issuance of an IPO would be contrary to the interests of justice due to “excessive delay” (presumably on the part of the Director) in bringing the application.

[10]        The first hearing date of September 25, 2015 was adjourned due to lack of court time and the matter was rescheduled to November 5. On November 2, counsel for the Director filed further expert evidence, this time a letter of opinion of Dr. Kenneth G. Furton, proffered as an expert in the field of analytical chemistry and forensic science. Dr. Furton had read, among other things, Sgt. Ferguson’s “narrative text hardcopy” and Sgt. Paddon’s opinion and had interviewed a Cpl. McLeod by telephone regarding the training of the police dog. Dr. Furton opined, inter alia, that:

1.         It is my expert opinion that a positive alert to United States and Canadian currency by a properly trained narcotics detection canine indicates that the currency has recently, or just prior to packaging, been in close or actual proximity to a significant amount of narcotics, and is not the result of any alleged innocent environmental contamination of circulated United States and Canadian currency by microscopic traces of cocaine. In fact, I am unaware of any peer reviewed article - or even any credible scientific evidence - to support the proposition that microscopic amounts of cocaine which might be found on circulated currency are at sufficient levels to trigger an alert by a properly trained narcotics detection canine.

…

11.       Finally it is my opinion that the narcotics detection dog team in this case, “Jet”, handled by Cpl MCLEOD acted consistently with their training and that the positive alerts to the currency recovered from Tyler JORDAN and the black Honda Accord indicates that the currency had recently, or just before bundling and placing into the vehicle or on Tyler JORDAN, been in close or actual proximity to a significant amount of narcotics. My opinion, which I hold to a reasonable degree of scientific certainty, is based on my training and experience in the field of analytical chemistry and forensic science; the research I have conducted with narcotic detection canine teams; my review of the literature; and my review of the facts and pertinent documents in this case.

[11]        Counsel for the Director acknowledged in the court below that Rule 8-1(8)(a) of the Supreme Court Civil Rules requires that affidavits be filed at least eight days before the date set for the hearing of an application. Mr. Ryneveld told the Court that he had not received Dr. Furton’s report until November 2 and that he had served it on the appellant the following day.

[12]        The application was finally heard in chambers before Mr. Justice Wong on November 5, 2015. He gave very brief oral reasons stating that he was satisfied there was a serious question to be tried:

[1]        … a cumulative adverse inference that was brought forward; namely, the way the cash was bundled; the smell of marihuana; no explanation given; and on that basis, I think that it is sufficient for the matter to be tried.

With respect to the interests of justice, he continued:

[2]        On the matter of whether it is in the interest to do so, there is a complaint of delay, but then I think there was fault on both sides with respect to moving more expeditiously, but I think in the end, this is a matter that should be heard when it comes to the time of moving towards final forfeiture.

[3]        It is unfortunate, I must say, that Mr. Jordan, when the stay was entered by the prosecution, he should have moved at that time if he was that concerned about the return of his vehicle and the monies. He chose not to, and he still had an opportunity even up to that particular point but, as I say, whether it is through the judgment of counsel, and I am not about to second guess that, but what it really comes down to is I cannot find fault on either one side or the other for the delay.

[4]        Then during the summer, I think it is a known fact that counsel's availability may be less than most other months, because it is true that even today, most counsel would usually take their holidays in the summer, so it is understandable.

In the result, he issued the Interim Preservation Order sought by the Director.

On Appeal

[13]        In this court, Mr. Jordan advances the following grounds of appeal:

a.         The learned Chambers Judge erred in failing to give adequate reasons for judgment.

b.         The learned Chambers Judge erred in admitting anecdotal expert evidence, contrary to the rule in R. v. Sekhon, 2014 SCC 15.

c.         The learned Chambers Judge erred in admitting the Furton Evidence, filed contrary to the Supreme Court Civil Rules.

d.         The learned Chambers Judge erred in treating the Director’s suspicions as evidence.

e.         The learned Chambers Judge erred in requiring the Appellant to provide an “explanation” in response to the Director’s suspicions.

f.          The learned Chambers Judge erred in holding that the parties were “equally at fault” for the delay occasioned by the Director obtaining anecdotal expert evidence.

I will leave the first ground for the last, and will deal with the second and third grounds together.

Errors in Admitting Expert Evidence?

[14]        At the hearing before Mr. Justice Wong, counsel for the appellant objected to admissibility of the opinion of Sgt. Paddon, an RCMP officer who has been formally trained in the area of “proceeds of crime and money laundering investigations”. She had been asked by the Director’s counsel to address some specific questions, including whether the manner in which the Money was bundled was consistent with how financial institutions bundle money; whether the manner in which the Money was bundled was “consistent with how money that is obtained through unlawful activity is bundled”; and whether in her opinion there was other evidence that led her to believe the Money did or did not come from a legitimate source. As mentioned above, her conclusions included the following:

40.       The manner in which this money was bundled, banded and packaged is consistent with the proceeds of crime derived from unlawful activity.  In contrast to “bank ready” money, drug traffickers package their money according to the dollar amounts, so the bundle equals a set amount rather than 100 notes of the same denomination.  Usually the bundle of a drug trafficker’s money totals amounts of $1,000, $5,000 and $10,000 lots using a variety of denominations, often made up of older and newer bills to make up the amount.  The money seized from Jordan did not contain paper straps consistent with banking practices, rather elastic bands were used which is not the norm accepted by financial institutions in Canada and is an indicator of drug money.

...

46.       In my opinion, street level drug traffickers use cell phones to communicate as it is an efficient way to conduct business and provide anonymity between the seller and the purchaser.  The product can be sold through a middleman who will receive a cut of the profit, provide clients with the product at the same time as protecting their supplier.  In this case, Jordan was carrying a substantial amount of cash in his pockets that, when counted, totaled $1015.  The average traveler does not carry a wad of cash in that amount for security reasons or concerns over loss.  He was also carrying two cell phones and had a third, identified as a Blackberry, in his vehicle.  This is consistent with the drug trafficking business as this facilitates calls from customers on several drug lines.  In the event the police seize one phone, an alternate number is available.

…

49.       Cpl. Ferguson located bear spray, a metal pipe, a black hard plastic bag containing two silver bags and a large pocket knife on Jordan’s person.

50.       In my opinion, drug traffickers often carry weapons in the event that they are faced with a rip off.  As the drug trade is competitive and profitable, it is not uncommon for other traffickers or associates of traffickers to rip off product or cash, especially if the trafficker is known to carry product or cash in his vehicle.  In this case, Jordan had several weapons in his vehicle and on his person.

…

54.       In my experience, in relation to drugs and money, drug traffickers will often store their cash and drugs in the same location.  The result being that the residue from the drugs is transferred to the cash giving a positive hit by the Police Service Dog.  This is also an indicator that the cash and the drugs have been in close proximity recently.  If the cash is in general circulation within the community, it is unlikely the cash will have a strong enough drug residue for a Police Service Dog to hit on the money.

…

56.       Given [Mr.] Jordan’s reported income over the years 2009 and 2010 is minimal and this reported income does not factor in daily living expenses incurred over the two year period, which would lower his income substantially, the $29,215 of unexplained income seized from Jordan would lead me to believe that the Money was derived from illegal activity.  Given the circumstances in totality, which includes the method in which the Money was bundled, not consistent with money bundled by financial institutions, the way in which the Money was concealed in the trunk, the odor of marihuana in the vehicle and on Jordan’s person, the presence of weapons, cell phones, the black hard back with the silver bag inside (commonly used to carry marihuana) and the positive hit for drug residue by the Police Service Dog, in my opinion the Money is proceeds of crime derived from illegal activity. [Emphasis added.]

[15]        Evidently, the chambers judge below did not address the objections of the appellant’s counsel to the admission of this evidence during the hearing; nor did he refer to any objection in his reasons, although Mr. Blokmanis notes that the Court’s reference to “the way the cash was bundled” may suggest that Sgt. Paddon’s opinion was taken into account.

[16]        Mr. Blokmanis argues that the opinion was purely, or mainly, “anecdotal” evidence like that referred to in R. v. Sekhon 2014 SCC 15. In that instance, the appellant had been convicted of unlawfully importing cocaine into Canada after he had driven a friend’s truck across the border into Canada from the United States. He testified that he had not known there was cocaine in the vehicle and had had no reason to be suspicious of his friend’s request. The police investigator testified at trial that in the thousand or more cocaine-importing investigations he had been involved in, he had never encountered a ‘blind’ courier - i.e., a person who does not know of the existence of the drug he or she has moved from one location to another.

[17]        A majority of the Supreme Court of Canada found that the trial judge had erred in relying upon the impugned testimony. Moldaver J., speaking for the majority, observed:

The Impugned Testimony, though perhaps logically relevant, was not legally relevant because the guilt or innocence of accused persons that Sgt. Arsenault had encountered in the past is legally irrelevant to the guilt or innocence of Mr. Sekhon… In other words, the Impugned Testimony was of no probative value in determining whether Mr. Sekhon knew about the cocaine in the hidden compartment. It is trite to say that a fundamental tenet of our criminal justice system is that the guilt of an accused cannot be determined by reference to the guilt of other, unrelated accused persons. Moreover, the Impugned Testimony was not necessary because determining whether Mr. Sekhon knew about the drugs is not beyond the knowledge and experience of the judge, and it is certainly not a matter that is technical or scientific in nature. [At para. 49; emphasis added.]

[18]        Counsel for the appellant contends that Sgt. Paddon’s evidence should not have been admitted because it was also anecdotal, at least in part, and because  in the final paragraph (56) quoted above, Sgt. Paddon opined on the “ultimate issue.”

[19]        Although the rule against expert opinion evidence going to the ultimate issue has been relaxed in recent years (see, e.g., R. v. Mohan [1994] 2 S.C.R. 9 at 24; R. v. Solleveld 2014 ONCA 418 at paras. 17-18), I agree that Sgt. Paddon’s opinion evidence should have stopped short of expressing an opinion as to whether the Money was proceeds of crime. However, her evidence was for the most part not scientific or technical. There is a good argument that a court could take judicial notice of the fact that “drug traffickers use cell phones to communicate” or that “[d]rug traffickers will often disguise or conceal their profits to avoid seizure by the police”. To this extent it is doubtful Mr. Jordan’s case was prejudiced by the admission of the evidence. As for the opinion on which the chambers judge specifically relied -- regarding the ‘bundling’ of the Money -- this was also not prejudicial and has not been challenged in any new evidence sought to be adduced by the appellant.

[20]        Nor am I persuaded that Sgt. Paddon’s evidence was analogous to the impugned evidence in Sekhon. Her opinion did not purport to draw inferences from her own personal experiences outside her expertise or require the court to make assumptions as to the guilt or innocence of unknown persons. It was restricted to the practices she had found were commonly followed by persons involved with illegal drugs in actual drug investigations.

[21]        In these circumstances, I would not accede to the second ground of appeal.

Dr. Furton’s Evidence

[22]        With respect to the evidence of Dr. Furton, the appellant contends that the chambers judge should not have admitted the evidence, which the defence received only three days before the hearing, and that in any event, the evidence was not responsive to the position taken by Mr. Jordan in his Application Response.  In that response, he simply denied “participating in any unlawful activity” and did not specifically challenge the use of a drug detection dog or Jet’s ability to detect various drugs, including marihuana.

[23]        The Furton opinion was largely concerned with the question of whether currency in circulation is innocently contaminated with microscopic amounts of cocaine. However, Dr. Furton also stated:

9.         My expert opinion is not affected by any allegations that circulated currency is innocently contaminated with drugs other than cocaine because the only published reports alleging any widespread contamination and involving quantification of drugs or drug odor chemicals involve cocaine. I am not aware of any reports of widespread contamination of currency by drugs other than cocaine.

As well, he opined that Jet was a “properly trained drug detector dog with reliable results” and finally, that:

… the positive alerts to the currency recovered from Tyler Jordan and the black Honda Accord indicates that the currency had recently come or just before bundling and placing into the vehicle or on Tyler Jordan, been in close or actual proximity to a significant amount of narcotics.

[24]        I do not agree that this evidence was either anecdotal or irrelevant and therefore inadmissible. It related to a matter requiring technical expertise - the significance of trace amounts of drugs on currency and the reliability of trained canines in detecting drugs. The appellant has not shown that he suffered any unfair prejudice as a result of the admission of the evidence; nor has he sought to tender any contrary opinion as fresh evidence in this court. I would therefore not accede to the submission that Dr. Furton’s evidence should not have been considered.

Director’s Suspicions/Reversal of Onus?

[25]        The appellant next argues, relying on Director of Civil Forfeiture v. Trimble, that the mere presence of a large quantity of cash, together with trace narcotics detected by a properly qualified police dog, was not sufficient in law to establish a “serious question to be tried” for purposes of the Act. In Trimble, the Director had seized a boat (in which Mr. Trimble resided) and alleged that Mr. Trimble had purchased it with proceeds from trafficking in illegal drugs. When the police searched the vessel, which had been purchased in Mexico and then sailed back to Canada without clearing customs, the police found almost $50,000 cash on board (for which Mr. Trimble had an explanation) and trace amounts of cocaine in the master stateroom and hashish or marihuana on a remote control. There was also evidence that Mr. Trimble had various convictions for narcotics-related offences, and had allegedly been involved in a conspiracy to smuggle cocaine into Canada by vessel from Costa Rica. (His conviction in Costa Rica had been overturned on appeal.)

[26]        The chambers judge in Trimble found that the threshold of showing a “serious question to be tried” had not been met. He reasoned as follows:

[17]      The purchase of a vessel for cash in a foreign jurisdiction and returning to Canada without making a customs declaration may give rise to suspicion. The presence of a large amount of cash and trace narcotics on board the vessel may give rise to further suspicion that the vehicle was used or is intended to be used in the illegal drug trade.

[18]      However, suspicions are not evidence. It is possible that the Director’s suspicions might eventually prove well-founded, but the current evidence is indirect and does not support the inferences necessary to raise a serious issue that the vehicle is either proceeds of unlawful activity or that it has been used in the past or is likely to be used in the future, for unlawful activity. In other words, on the current evidence, the Director has no reasonable prospect of success in making out either claim. [Emphasis added.]

[27]        I do not read Trimble as establishing any proposition of law regarding trace amounts of drugs on currency. We may infer that the chambers judge in the case at bar was of the view that the facts before him were distinguishable. Here, there were more than “trace amounts” of illegal drugs on the currency; there was no apparent reason why Mr. Jordan would be carrying such a large amount; the currency was bundled in a particular manner; and other items that were seized supported the theory that Mr. Jordan had been handling marihuana for commercial purposes.

[28]        As Macaulay J. observed in Trimble, the threshold required to be met by the Director under s. 8(5) is a low one, which requires only “some review of the evidence”. As well, he noted, the judge “must be left with some degree of latitude to decide whether the evidence relied upon can establish that the plaintiff has any real prospect of success.” (Quoting at para. 8 from Laxton v. Coglon 2008 BCCA 176 at para. 128.) The chambers judge in the case at bar observed in his reasons that the appellant had offered “no explanation” for his possession of the Money, but I do not read this as meaning that the judge reversed the legal onus. It was simply a statement of fact, and the judge was entitled on the evidence in this case, to reach the conclusion he did.

[29]        In all the circumstances, I am not persuaded that the chambers judge erred in “treating the Director’s suspicions as evidence” or in placing an onus on the appellant to establish that no serious question arose.

Interests of Justice

[30]        After finding that a serious question had been raised, the chambers judge turned to the issue of the interests of justice and the “complaint of delay” advanced by counsel for the appellant. The judge expressed the view that “there was fault on both sides with respect to moving more expeditiously” but opined that “in the end, this is a matter that should be heard when it comes to the time of moving towards final forfeiture.” He suggested that Mr. Jordan should have applied earlier “if he was that concerned about the return of his vehicle and the monies”. The judge acknowledged that the delay may have been the result of a conscious decision of counsel, “but what it really comes down to is I cannot find fault on either one side or the other for the delay.” The matter had been delayed long enough.

[31]        In this court, Mr. Blokmanis relied on Director of Civil Forfeiture v. Murray (B.C.S.C., Victoria Registry No. 12-1692, dated June 21, 2013) to argue that the Director’s delay in applying for an IPO was a relevant factor in the court’s consideration of the interests of justice. That principle cannot be challenged; but the facts of Murray were obviously different from the facts of this case. In Murray, the property in question was real property that had been listed for sale and was subject to an order of foreclosure. A long delay on the part of the Director led the Court to entertain doubts about his expressed concern about the “wasting” of the property.

[32]        In this case, Mr. Justice Wong was in a position to review the communications between counsel for the appellant and the Director and, applying a broad brush, did not fault one side more than the other for the delay. In any event, wrangling between counsel regarding delays will seldom be determinative of the interests of justice. I am not persuaded that the judge erred in declining to rule that it was “clearly not in the interests of justice” for the matter to proceed.

Sufficiency of Reasons

[33]        Turning finally to the question of whether the chambers judge erred in failing to give adequate reasons for judgment, I agree with the appellant that the reasons were very brief indeed and that it would have been preferable for the Court at least to have referred to the various objections and arguments made by counsel. The test, however, is as stated by Binnie J. for the Court in R. v. Sheppard 2002 SCC 26:

What was said in [R. v. Burns [1994] 1 S.C.R. 656], it seems to me, was that the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected. A more contextual approach is required.  The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case. [At para. 33.]

[34]        It must be remembered that this was not a criminal trial; it was a civil chambers hearing analogous to a hearing of an application for summary dismissal under Rule 9-5 of the Supreme Court Civil Rules. As we have seen, the threshold was a low one. Counsel for the appellant has not pointed to any evidence that he was not permitted to adduce in response to the Director’s evidence, or any other prejudicial effect that would have been avoided had more complete reasons been given. In all the circumstances, I am not persuaded that the reasons were so inadequate as to prevent proper appellate review.

[35]        Accordingly, I would dismiss the appeal.

“The Honourable Madam Justice Newbury”

I agree:

“The Honourable Mr. Justice Frankel”

I agree:

“The Honourable Mr. Justice Savage”