Respondent's Book of Argument and Materials - Appeal of 244069-5-BC

On June 28, 2017, Mr. Patrick Fox, the appellant, was found guilty by a jury of criminal harassment and possession of a firearm where not permitted. On November 10, 2017, Associate Chief Justice H. Holmes sentenced him to a term of imprisonment and term of probation (R. v. Fox, 2017 BCSC 2361).

On May 14, 2019, the appellant was charged with breaching three conditions of Probation Order 27178, as set forth in the Information 244069-5BC.

On June 3, 2019, the appellant appeared in Vancouver Provincial Court and entered pleas of not guilty to all three counts on Information 244069-58C. On August 12, 2019, a trial of the matter commenced before the Honourable Provincial Court Judge D. St. Pierre (the "Trial Judge"), and the trial continued August 13,14, and 15, 2019. On August 15, 2019, the Trial Judge granted the appellant's application to adjourn. On November 10, 2019, Mr. Fox brought an application to subpoena a witness and his application was denied. On December 11, 2019, Mr. Fox brought another adjournment application, and the Trial Judge granted it.

On March 4 and 5, 2020, the trial continued, and on March 6, 2020, the Trial Judge found the appellant not guilty of Count 1 but guilty of Count 2 and Count 3 on Information 244069-5BC.

On June 12, 2020, the Trial Judge sentenced the appellant to 1-day Jail (12 months jail credited) and 18 months of probation. This sentence applied to each count, and the sentences for each count were to run concurrent to one another.

On June 26, 2020, the appellant filed a Notice of Appeal from his conviction and sentence. On November 17, 2020, an Amended Notice of Appeal was filed by appointed counsel1.

On August 12, 2019, the trial commenced. In his opening remarks, the Trial Judge explained, for the benefit of the appellant, the anticipated trial procedure, and the burden and standard of proof (Book of Transcripts, ("T."), Tab 1, p.1, L12-p.2, L28). The Crown commenced its case by calling two Justices of the Peace, the first of whom who testified that he reviewed the Probation Order 27178 with the appellant (T. Tab 1, p.11, L11-p.15, L47), and the second of whom testified that she reviewed a variation of the Order with him (T., Tab 1, p.17, L40-p.23, L22). The appellant did not cross-examine these witnesses.

Next the Crown called RCMP Officer Tyler Hawkins. He testified about his involvement in the investigation concerning the appellant generally and in particular about his arrest and monitoring of an interview that was conducted of the appellant on April 4, 2019, by his colleague Cpl. Jason Potts (T. Tab 1, p.26, L29-p.26, p.45, L9). The appellant cross- examined Officer Hawkins, during which Officer Hawkins confirmed that he had inquired with Border Services personnel as to whether CCTV video footage existed of the appellant crossing the Canada/USA Border. (T. Tab 1, p.48, L18-p.51, L43).

On the second day of trial, August 13, 2019, the appellant continued cross examining Officer Hawkins, during which it was established that Cst. Hawkins request for CCTV video was not fulfilled (T., Tab 2, p.2, L3-p.17, L7). Next, the Crown called U.S Customs and Border Protection Officer Obrist, who testified that he had interacted with the appellant after the appellant had crossed the Border and entered into the USA on March 15, 2019. Officer Obrist testified that he ultimately issued the appellant an expedited Removal Order, and transported him to a Detention Center in Tacoma, Washington to see an immigration judge. (T., Tab 2, p.19, L16-p.23, L44). In cross examination Officer Obrist agreed that the first time he saw the appellant was in the lobby of the US Border Services Building, and that he did not see the appellant walking there (T., Tab 2, p.25, L30-p.26, L20).

Following Officer Obrist, RCMP Cst. Kirsty Brown gave evidence in the Crown case. She testified that she and Cst. Hawkins conducted an investigation into allegations that the appellant had breached his probation. She testified that during the investigation, she attended the Peach Arch Border Crossing where she and Cst. Hawkins took custody of the appellant from a US Border Patrol agent, and transported him back to the RCMP detachment (T., Tab 2, p.28, L3-p.36, L36). She also testified about her efforts to obtain CCTV footage or records from the Canadian Border Services Agency (CBSA) in relation to the appellant's crossing on March 15, 2019. Her evidence was that she was advised that the CCTV no longer existed (T., Tab 2, p.36, L43-p.39, L29). The appellant cross examined Cst. Brown, primarily with respect to her efforts to obtain the CCTV video (T., Tab 2, p.42, L27-p.46, L34).

Following the evidence of Cst. Brown, Probation Officer [Abeed] Bimji testified, as the sixth witness for the Crown. He testified that he met with the appellant and directed him to report on March 19, 2019 but the appellant did not report to him on that date (T., Tab 2, p.60, L20-p.67, L17). Probation Officer Bimji's evidence was that he had not given permission to the appellant to be outside of the Province of British Columbia (T., Tab 2, p.67, L18-42). During cross examination, Officer Bimji agreed that on March 15, 2019, the appellant had told him that he [the appellant] "was intending to tum [himself] in to CBSA by the coming Wednesday, which would be the following week, in order or with the expectation of being deported." (T., Tab 2, p.75, L4-9).

On the third day of trial, the Crown called Cpl. Potts. Cpl Potts testified that he met with the appellant and took a warned statement from him on April 4, 2019. (T., Tab 3, p.16, L39-p.32, L32), and during his testimony an audio/video of the interview/statement of the appellant was tendered by the Crown in a voir dire. The appellant cross-examined Cpl. Potts, during which Cpl. Potts agreed with the appellant's suggestion that "throughout the interview [the appellant] made a number of references to [his] expectation that CBSA was going to intending to deport [him] if he surrendered himself"(T., Tab 3, p.36, L1-p.37, L6).

Following the evidence of Cpl. Potts, the Crown made submissions on the voir dire (T, Tab 4, p.3, L11-p.8, L5). The appellant made no submissions (T., Tab 4, p.9, L32-24). The Trial Judge found that the statement of the appellant to Cpl. Potts was given voluntarily by the appellant, and the statement of the appellant was admitted as evidence in the Crown case in the trial proper for the purpose of cross examination. At that point, the Crown closed its case (T., Tab 4, p.9, L40-p.10, L23).

At this juncture, the appellant sough an adjournment of the trial so that he could try to obtain materials to tender as part of the defence case (T., Tab 4, p.11, L46-p.12, L5). The Trial Judge granted the adjournment, after advising the appellant of his Charter right to a trial within a reasonable time and inquiring about the nature of the potential evidence to be tendered and its potential relevance (T., Tab 4, p.13, L29-p.24, L38).

On November 19, 2019, the appellant brought an application to subpoena Crown Counsel Mark Myhre. Mr. Myhre was Crown Counsel assigned to the substantive offence (Information 244069). The appellant sought to subpoena him because he claimed that, at the sentencing hearing for the substantive offence, Mr. Myhre had asked the court to consider imposing probation conditions which would prohibit the appellant from leaving British Columbia and from being within 100 meters of the Border. The appellant advised the Trial Judge that he told the sentencing judge he was concerned those types of conditions could cause issues for him because he did not have "any status in Canada", and that in response Mr. Myhre had stated that "if a situation arises where [the appellant] is removed or ordered to leave Canada, then he [Mr. Myhre] would not consider that a breach and would not seek to prosecute [the appellant] based on that" (T. Tab 6, p.4, L19-34).

After hearing submissions from the Crown and the appellant (Tab 6, p.11, L9-p.18, L11), the Trial Judge dismissed the application, on the basis that the "the evidence of Mr. Myhre is not necessary at this point to support any relevant fact that is to be proved or disproved by the Crown and it is certainly not relevant to any lawful excuse that might be raised in this matter" (Appellant's "Appeal Book For Section 684 Application for Appointment of Counsel", pg. 107 Reasons for Judgement, para. 4). In the course of giving reasons for this decision the Trial Judge remarked that the matter of subpoenaing Mr. Myhre could be revisited in future, if for example, the Crown were to allege a recent fabrication of the purported lawful excuse raised by the appellant.

On December 11, 2019, the trial recommenced and the Trial Judge asked the appellant whether he was going to call any evidence (T., Tab 7, p.1, L.37-p.2, L4). The appellant sought an adjournment on the basis that he was still pursuing further evidence for his defence, including the identity of the CBSA officer who had interacted with him at the Border on March 15, 2019 (T.,Tab 7, p.2, L20-35). The Crown opposed this adjournment, and the Trial Judge heard fulsome submissions on this application, following which he allowed the application.

The trial continued on March 4, 2020. The Trial Judge permitted the Crown to re-open its case so that an additional witness, CBSA Officer Polisak, could be called. Officer Polisak had been identified by the appellant as having interacted with him on March 15, 2019 at the Douglas Port of Entry (Peace Arch), (T., Tab 8, p.26, L10-14).

Officer Polisak's evidence was that on March 15, 2019 she interacted with the appellant when she was working in the CBSA office at the Douglas Port of Entry. She confirmed that the office was located in Canada. (T., Tab 8, p.28, L14-32; p.29, L34-39). Her evidence was that the appellant told her that he was an American but that he didn't have proof of that. He also told her that he had a Canadian passport in the name of "Richard Reiss" and she confirmed with Passport Canada that a Richard Reiss with the same date of birth was Canadian born. Based on this, she believed the appellant was a Canadian citizen, and that he could enter and exit Canada on his own free will. (T., Tab 8, p.31, L13-24). Officer Polisak testified that she found it "odd...that somebody would have proof that they were a Canadian citizen tell me they're not a Canadian citizen", so she created an "information alert" about the interaction for the benefit of any other CBSA officer who might deal with the appellant in future. (T., Tab 8, p.31, L32-40). Her evidence was that the appellant was not removed or deported or denied entry to Canada, and the last she saw of him was when he exited the office (T., Tab 8, p.33, L14-22).

The appellant cross-examined Officer Polisak at length, and in particular about the record keeping system used by CBSA (T., Tab 8, p.44, L1-3; L28; p.51, L16-p.56, L42; p.57, L22-p.58, L3). She agreed that if a person was found inadmissible to Canada, there would most likely be record of the fact that they were denied entry to Canada (T., Tab 8, p.43, L31-45). She was unable recall how it came up that he [the appellant] had a Canadian passport in the name of Richard Reiss, but she confirmed she had made a note that he had been issued one in that name (T., Tab 8, p.44, L28-p.47), and that she had called Passport Canada (T. Tab 8, p.53, L24-35). She confirmed that she had not encountered any evidence that the appellant was not a Canadian citizen (T., Tab 8, p.55, L3-13), and that she believed he was a Canadian (T., Tab 8, p.54, L19). Officer Polisak testified that "even though the information that I had besides Mr. Reiss or Mr. Fox's conversation with me, showed that Reiss was a Canadian, he was very adamant he was not a Canadian" (T., Tab 8, p.69, L4-10).

During cross-examination, Officer Polisak clarified that the CBSA procedure was as follows:

Canadian citizens enter Canada by right. They cannot be refused or removed from Canada. And.. so if a foreign national enters Canada and they can't prove their citizenship, it's on them to prove what citizenship they are. If somebody says they're a Canadian citizen, it's on us to prove they are not, and I could not prove that he [the appellant] was not Canadian. (T., Tab 8, p.69, L12-19)

Officer Polisak disagreed with the appellant's suggestion that when she interacted with him at the CBSA office she told him that based on the information she had available to her, he was inadmissible to Canada (T. Tab 8, p.90, L4-11).

On March 6, 2020, the trial continued. The appellant testified. He admitted that there was a probation order that was in existence on March 15, 2019, and that he had tried to change the condition prohibiting him from leaving British Columbia with his Probation Officer's consent, but that his request had been denied. Following that he told the court and his Probation Officer, that he intended to turn himself in to CBSA so that he would be removed from Canada (T., Tab 8, p.107, L17-21; L40-43). He testified that he told Officer Polisak that he was a US citizen, and that he had no status in Canada, and that he was not a Canadian citizen. (T. Tab 8, p.108, L14-27), and that he showed her two documents that he said supported his assertions. He testified that Officer Polisak then made some inquiries, and told him that based on the information available to her, he appeared to be inadmissible to Canada and he should exit the office from the same door he entered (T., Tab 8, p.109, L28-30; L38-40). From that point, the appellant testified he asked an officer standing at the doorway "how do I get back to the US?" and the officer instructed him to go through some other doors, and he did so, and continued walking to the US side, and into the Border Patrol office (T., Tab 8. p.109, L38-p.110, L9).

When questioned by the Trial Judge, the appellant maintained that Officer Polisak had told him he was "inadmissible" but that she had not instructed him to leave Canada (T., Tab 8, p.115, L13-46), and he agreed that he attended at the office, which was within Canada. (T., Tab 8, p.116, L5-8). In cross examination, the appellant agreed that when he walked across the Border he was within 100 meters of it. (T., Tab 8, p.122-35) and that he knew before he did so that he would not be able to report to his Probation Officer after that point because he would be unable to legally return to the country (T., Tab 8, p.122, L1-4). The appellant maintained that he did not believe that he was violating the terms of the Probation Order however, because he "did not leave Canada voluntarily" (T., Tab 8, p.135, L12-43). He agreed that once back in the US he would continue to harass his ex-wife, who was the complainant on the substantive offence (T., Tab 8, p.138, L32-41).

During cross examination, Crown counsel established a material inconsistency between the appellant's testimony in chief and his warned statement to Cpl. Potts, and in response the appellant admitted that he had lied to Cpl. Potts when giving his statement, because he was trying to manipulate Cpl. Potts so that he would request the video from the CBSA (T., Tab 8., p.142, L9-p.144, L35).

Following evidence of the appellant, the appellant called no further evidence, and Crown counsel and the appellant gave closing submissions. (T., Tab 8., p.151, L9-p.175, L24), and the Trial Judge gave Reasons for Judgement ("RFJ") (T., Tab 10; Appendix D).

The appellant sets out his grounds of appeal in the Amended Notice of Appeal filed November 17, 2020. The respondent prefers to re-frame the grounds with reference to s. 686(1)(a) of the Code as follows:

1. The verdict was unreasonable or not supported by the evidence, because:
   1. The Trial Judge erred in "disregarding Crown Counsel's prior agreement that they would not prosecute the appellant for the appellant for breaching his Probation Order, if he were removed or told to leave Canada by Immigration, Refugees, and Citizenship Canada (IRCC), or the Canadian Border Services Agency (CBSA)".
   2. The Trial Judge erred by accepting CBSA Officer Polisak's testimony because CBSA policies contradict her testimony.
2. The Trial Judge erred in law by failing to properly apply "the immigration laws and CBSA's duties as they apply to a person who is physically present at port of entry".
3. The Trial Judge erred in law in respect of his analysis of whether the appellant had a reasonable excuse for failing to comply with his Probation Order.
4. The Trial Judge erred in law by providing insufficient reasons for deciding that mens rea for the breaches of probation had been proven.

A person convicted of a summary offence may appeal this Court2, and upon hearing the appeal the court may, pursuant to s. 686(1)(a) of the Criminal Code dismiss the appeal, or set the conviction aside where: (i) the verdict was unreasonable or cannot be supported by the evidence; (ii) on the ground of a wrong decision on a question of law; or (ii) there was a miscarriage of justice.

The essential issue to be addressed by an appellate court in determining whether a verdict is unreasonable or cannot be supported by evidence whether there is any evidence to support the trial judge's findings based on the totality of evidence before him or her and whether the verdict logically flows from those findings: see R. v. Ceal, 2012 BCCA 19 supra, para. 23. To succeed in an argument under s. 686(1)(a)(i) of the Code, an appellant must establish that the verdict was not one that a judge could have reasonably rendered, or that the trial judge drew an inference or made a finding of fact essential to the verdict that: (1) was plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge: R. v. R.P, 2012 SCC 22, para. 9 (Tab 1).

Where an appellate court is asked to consider whether a verdict is unreasonable or cannot be supported by the evidence, the court ought to engage in a limited review. While the appellate court must re-examine and to some extent reweigh and consider the effect of the evidence the appellate court must not merely substitute its view for that of the trial judge: see R. v. Yebes, [1987] 2 S.C.R. 168 at para 25.

The Criminal Code, section 733.1 (1) provides: An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order, is guilty of ...(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months, or of not more than $5000, or to both.3

The appellant alleges that the Trial Judge erred by "not considering that during the 2017 Supreme Court sentencing hearing, Crown counsel said that if Immigration, Refugees and Citizenship Canada or the CBSA removed Mr. Fox from Canada or ordered him to leave Canada, then the Crown would not prosecute him for Breach of Probation". (Applicant's Memorandum or Argument filed November 9, 2020 ("Memorandum #1), at para.12), and he maintains in his Amended Notice, that the Trial Judge erred "by disregarding Crown counsel's prior agreement for these breaches".

This ground is logically flawed. There was no evidence led at trial or on the application to subpoena Mr. Myhre demonstrating that Mr. Myhre did in fact make the statement the appellant alleges him to have made, or that there was a "prior agreement". Based on the dearth of evidence on this point, there is no merit to the contention that the Trial Judge "failed to consider'' or "disregarded" the statement, as the purported statement or agreement was not in evidence.

Further, even though this purported statement or agreement was not in evidence, the record demonstrates that the Trial Judge considered the appellant's submission that the Crown, Mr. Myhre, made this statement and he permitted the appellant to bring an application to subpoena Mr. Myhre. Further, the Trial Judge allowed fulsome argument at the hearing of the application (T., Tab 6, p.1-18, L11).

Following submissions, the Trial Judge dismissed the application on the basis that: "the evidence of Mr. Myhre is not necessary at this point to support any relevant fact that is to be proved or disproved by the Crown and it is certainly not relevant to any lawful excuse that might be raised in this matter" (Applicant's Appeal Book, Reasons for Judgement (Application for Subpoena), p.109, para 4), however, the Trial Judge provided some guidance to the appellant with respect to the circumstances in which the purported statement or evidence of Mr. Myhre could potentially become relevant (T. Tab 6, p.18, L7-11; Applicant's Appeal Book, RFJ Application for Subpoena, para 4).

In essence, the Trial Judge invited the appellant to revisit the subject of the purported Crown agreement or statement should its relevance become more apparent. However, the appellant did not raise this issue again and the Trial Judge did not re-consider the issue on his own initiative, most likely because the evidence of the Crown witnesses and of the appellant did not demonstrate that he had been removed or ordered to leave Canada (RFJ, paras 37 – 40), and thereby eliminating the relevance of any statement or agreement which was predicated on such a finding.

Essentially, the proposed ground appeal is without merit because even if the appellant could satisfy this Court that Crown counsel made the statement he is alleged to have made, the condition precedent upon which Crown counsel stated the appellant would not prosecute Mr. Fox was found by the Trial Judge to have not been established. More specifically, the Trial Judge found, based on the evidence of the appellant the Crown witnesses, that there was no evidence that Mr. Fox had been removed or ordered to leave Canada.

Consequently, the verdict cannot be said to have been unreasonable or unsupported by the evidence based on this ground. There was uncontested evidence at trial which supported the finding of fact made by the Trial Judge that he was not ordered to leave or otherwise removed. There is no basis upon with this Court should interfere with this factual finding made by the Trial Judge that was essential or material to the verdict and that was clearly unreasonable or not capable of being supported by the evidence (see R. v. Biniaris, 2000 SCC 15).

The appellant contends that the Trial Judge ought not have accepted Officer Polisak's evidence because CBSA policies contradict her testimony. He maintains that "if [the Trial Judge] had considered the CBSA policies concerning examinations of person at a Port of Entry.. he would have found that the policies contradict critical parts of Officer Polisak's testimony, and he would have found her testimony to be not credible or reliable." (Memorandum #1, para. 12, pt. 3). In the Amended Notice of Appeal, this ground is re-stated as "the court erred by accepting CBCA Polisak's testimony, because CBSA policies contradict her testimony".

There is little merit to these contentions. The CBSA policies were not in evidence, and the duties of a Trial Judge do not extend to cross-examining witness with reference to materials not in evidence or obtained by a Trial Judge on his or her own volition.

In any event, the record demonstrates that Mr. Fox did in fact did question Officer Polisak in respect of "CBCA policy" generally, (T., Tab 8, p.44, L4-8), and specifically with respect to the different requirements to remove a person from Canada who is physically present in Canada or who is "at a port of entry and not otherwise in Canada" (T., Tab 8, p.43, L5-21). The Officer's response to such questions were that the office the appellant attended was in Canada (T., Tab 8, p.43, L5-11), she believed he was a Canadian citizen (T., Tab 8, p.54, L15-19) and that Canadian citizens enter Canada by right and cannot be refused or removed from Canada. She testified that if she didn't believe someone wasn't a Canadian it was up to her (CBSA) to prove that they are not (T., Tab 8, p.69, L12-43). She also testified that people could walk into the office to simply "ask questions" and that the appellant had not been directed to the office from the booth at Douglas Crossing. (T., Tab 8, p.29, L34-p.30, L27). The Trial Judge accepted her evidence on these points, and he did so on a principled basis, free from error.

What Mr. Fox is essentially seeking to argue in respect of this ground is that this Court should consider the CBSA policies and conduct an assessment of the credibility of this witness anew, yet it is trite law that on appeal a court will only interfere with credibility findings where there is a palpable and overriding error. This standard was recently described in R. v. Bacon, 2020 BCCA 140 as follows:

On questions of fact and inferences of fact, a reviewing court must ask "whether there is palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33. Madam Justice Bennett explained this standard as it applies in the criminal law in R. v. Nuttall, 2018 BCCA 479:

[269]

To state it simply, a palpable and overriding error is an obvious error that erodes the result.

...

This same standard applies to findings of credibility (R. v. Gagnon, 2006 SCC 17 at para. 10). That means that a finding of fact based on acceptance by the judge of a witness's testimony may only be interfered with if the trial judge made an error that, as noted by Justice Moldaver in dissent in R. v. Le, 2019 SCC 34 at para. 206, is "plainly seen" (Housen at para. 6), and is "shown to have affected the result" (H.L. at para. 55).

paras 41-41 (emphasis added)

In the present case, when the record is considered alongside the standard of review, it is apparent that no error is "plainly seen" warranting the intervention of this Court in respect the Trial Judge's credibility assessment of Officer Polisak.

The appellant contends that the Trial Judge "erred how it applied" the immigration laws and CBSA duties as they apply to a person who is physically present at a port of entry.

This ground of appeal does not warrant this Court's intervention for three reasons. Firstly, it cannot have been error for the Trial Judge to have failed to consider CBSA policies ENF04 or ENF10 because those specific policies were not referred to at the trial, let alone tendered by the appellant.

Secondly, the appellant fails to point to any specific authority to elucidate the specific immigration laws and policies he says applies to a person who is physically present at a port of entry, nor does he articulate in any of the filed materials what his interpretation of immigration law and policies was or is.

Some insight with respect to the appellant's own views regarding CBSA policies and immigration law can be gleaned from the record as follows:

1. The appellant submitted that the Trial Judge that in his view he was "denied admission" at the Douglas border crossing CBSA office, which was a "point of entry", and considered to be on American soil, (T., Tab 4, p.1, L1-p.2, L23; T., Tab 8, p.43, L5-44, p.71-76 L9, p.84).
2. The appellant testified that "if I had gone into a CBSA office in Vancouver, then the burden would have been on the CBSA to prove that I'm – that I'm not entitled to be in Canada, before they could arrest or remove me. But at a port of entry, the burden then is on the person who is seeking entry to Canada, rather than it being on the CBCA". (T., Tab 9, p.114, L29-p.115, L4).
3. The appellant testified that he was at a port of entry and he failed prove he was a Canadian citizen, and therefore he was found inadmissible (T., Tab 9, p.125, L19-32); and had no choice but to leave the country (T., Tab 9, p.163, L33-p.164, L45).
4. In closing submissions, the appellant re-stated his understanding or interpretation of immigration law and policies, as follows:

   It is my understanding that at a port of entry, regardless of whether the person came from outside of the country or came from within the country, once they enter that port of entry the burden is then on them to prove that they – to prove to CBSA that they have the right or the authorization to enter Canada. If they were coming from within Canada already, then it would be -- they would have to prove that they have -- they have the burden of proving that they're -- they have the right to return to Canada.

   (T., Tab 9, p.159, L19-29)

If this is the interpretation of immigration law or policies that the appellant is referring to, then there is very little merit to the contention that the Trial Judge either failed to consider or disregarded his interpretation or understanding or immigration law and policies, as the record clearly demonstrates that he made the court aware of his interpretation or understanding of immigration policies on several occasions at trial. The record also shows that the Trial Judge considered the appellant's evidence and allowed fulsome submissions regarding the relevance of such evidence or submissions (T., Tab 8, p.79, L18-p.80, L41).

Finally, although the Trial Judge considered the appellant's evidence and submissions on this point, his factual findings derived from the evidence of what had actually occurred on March 15, 2019, as opposed to what the appellant submitted ought to have occurred according to immigration law or policy. In particular, the Trial Judge found that the appellant was in Canada when he attended at the CBSA office and he was not seeking entry to Canada. The Trial Judge articulated the evidentiary basis for his findings and this Court should find that there is no cause to intervene with these findings on the basis that the verdict or factual findings material thereto were unreasonable or were not support by the evidence.

The appellant contends that the Trial Judge erred in finding that he did not have a reasonable excuse for breaching his Probation Order. (Affidavit, para. 14(c); Amended Notice, Memo #1, para. 12 pt. 4; para 44), and that the Trial Judge "erred in law by not considering whether the Crown had proved beyond a reasonable doubt that the accused had subjective mens rea for the breaches of probation, before proceeding to consider whether the accused had a reasonable excuse for breaches otherwise proven".

The record demonstrates that the Trial Judge identified and described the "reasonable excuse" defence for the appellant at the outset of the trial and that much of the evidence heard at trial was in respect of this issue. The Trial Judge acknowledged in the RFJ that it was a key issue for him to determine (para 4), and he considered the issue with reference to the relevant trial evidence, ultimately finding that the uncontroverted evidence established that the appellant had not been removed from Canada or ordered to leave, but that he chose to walk across the border. Although the Trial Judge accepted that appellant claimed he walked crossed the Border because he believed had to do so, the Trial Judge did not accept that the appellant's decision to walk across the border constituted a reasonable excuse for breaching his probation conditions.

The RFJ and the record do not reveal that the Trial Judge committed a palpable and overriding error in respect of the factual findings he made and the conclusion he reached in respect of this issue and therefore this Court ought not accede to this ground of appeal.

With respect to the applicable legal principles, the trial judge referred to R. v. Goleski, 2014 BCCA 80, aff'd 2015 SCC 6. In Goleski, the accused was charged with failing to provide a sample of his breath upon demand to a peace officer. The accused relied upon an exception, provided in s. 254(5) of the Criminal Code which provided that "everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand under this section." The accused testified that he deliberately refused to provide a breath sample to the officer who demanded it because he believed that the officer would lie about the breath results. At trial, the trial judge was not satisfied that the accused had established a factual foundation underlying his failure to comply and he found the accused guilty. On appeal, the summary conviction appeal judge, relying on R. v. Lewko, 2002 SKCA 121, set aside the conviction on the basis that the accused need only raise the issue of reasonable excuse and that the persuasive burden remained on the Crown to prove the lack of reasonable excuse beyond a reasonable doubt. (see: R. v. Goleski, 2011 BCSC 911).

On appeal by the Crown to the BCCA, Mr. Justice Frankel for the court identified the central issue as "where the onus lies when an accused asserts that he had a reasonable excuse for failing or refusing to comply with a breathalyzer demand" (at para. 1). More specifically the court asked: "[m]ust the Crown prove the accused did not have a reasonable excuse beyond a reasonable doubt, or must the accused prove on a balance of probabilities the facts asserted as giving rise to a reasonable excuse? The answer to that question rests on the interpretation of s. 794(2) of the Criminal Code, R.S.C. 1985, c. C-46. 9" (at para.1).

At the time Mr. Goleski committed the offence, s. 794 of the Criminal Code provided as follows:

(1)

No exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defence is on the defence, and the prosecutor is not required except by way of rebuttal, to prove the exception, exemption, proviso, excuse or qualification does not operate in favour of the defence, whether or not it is set out in the Information.

(2)

The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant whether or not it is set out in the information.

Tab 3 – Criminal Code, R.S.C. c. C-46, s. 794
(in force 12-12-1988 to 12-12-2018)

In his analysis regarding the interpretation of s. 794(2), Frankel J.A. conducted a thorough review of the common law and legislative history concerning "reasonable excuse" and he ultimately disagreed with the ratio in Lewko (para. 78). He determined that when Parliament first enacted a provision dealing with exceptions in the context of summary conviction proceedings, it did so, "in a way that affirmed the common law principle which placed the burden of proving such matters on an accused on a balance of probabilities" (at para. 74). He affirmed that the correct approach had been articulated as follows:

...when an accused person raises the issue (or defence if you prefer) of reasonable excuse, he or she is conceding that the Crown has proven beyond a reasonable doubt the existence of the requisite mens rea and actus reus for the offence. Since the excuse must be objectively reasonable, since it only applies if the Crown has proven beyond a reasonable doubt that the accused has committed both the actus reus and mens rea of the offence and since it does not limit resort to other defences, then the onus of establishing the proffered excuse should rest with the accused.

(Goleski, supra, at para. 80, quoting from R. v. Sheehan (2003)
35 MVT (4 th) 61 at para. 13 (NL Prov. Ct).)

On a further appeal by Mr. Goleski to the Supreme Court of Canada, the court dismissed his appeal, and affirmed that the law had been correctly stated by Justice Frankel at the BCCA. More specifically the court held that the proper interpretation of the s. 794(2) places the onus of the defence and not the Crown.

On December 13, 2018, Parliament repealed section 794(2)4. The offences the appellant is appealing occurred on March 15, 2019 and March 19, 2019, and therefore for the purposes of the present appeal this Court must determine what the applicable law was on the offence dates.

Recently, this court in R. v. Dionne, 2022 BCSC 959, cited Goleski and affirmed in that "there is no dispute that a "reasonable excuse" is required to be proven by the accused on a balance of probabilities." (at para. 75). In Dionne, the accused was charged with failing to remain at the scene of an accident, contrary to s. 320.16(1) of the Criminal Code. He argued that he had failed to remain because he was experiencing a medical emergency. The court found that the accused had failed to establish a reasonable excuse on a balance of probabilities. In arriving at this conclusion, the court did not consider the implications of the repeal of s. 794 most likely because the "reasonable excuse" defence was available to the accused in this case by virtue of its express incorporation into the offence provision (s. 320.16(1)).

The implications of the repeal of s. 794 have not been considered by the court in any other reported decision of the court in this province5, however, the courts in other provinces have considered this issue. For example, the impact of the repeal of this provision was squarely before the court in R. v. McKinnon, 2020 ABPC 86. In McKinnon, the accused was charged with failing to provide a breath sample. The court found that the accused had been given a proper demand and had failed to provide a sample of her breath, and that therefore, the sole issue for the court to determine was whether the accused had a reasonable excuse for failing to provide the sample. The court concluded that per Goleski, the onus remains on the accused to establish a reasonable excuse on a balance of probabilities. (at para. 27). The court reasoned as follows (at paras. 28 -32):

... the Supreme Court of Canada has affirmed Goleski as the correct law on appeal. (R. v. Goleski, 2015 SCC 6). The proper interpretation of Section 794(2) places the onus on the defence and not the Crown.

Since the Supreme Court decision, Parliament in 2018 repealed Section 794(2) in its entirety. That then takes us back to the common law as the applicable law. As stated in Goleski at para. 74:

... when Parliament first enacted a provision dealing with exceptions, etc. in the context of summary conviction proceedings, it did so in a way that affirmed the common-law principle which placed the burden of proving such matters on an accused on a balance of probabilities.

The common law is preserved in the Criminal Code by Section 8(3) which states:

Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force ...

This was recognized in R. v. Allen, 2020 ABPC 34, a decision of mine delivered after the repeal of Section 794(2) recognizing the common· law prevails as to the law of reasonable excuse and the onus is on the accused to establish such an excuse on a balance of probabilities as it was under Section 794(2) and prior as stated in Goleski.

Based on this review, I find I do not accept the defence submission that the onus is on the Crown based on Plante being the prevailing law. I find with the greatest respect Plante, Schenk and Mercado are not correct in law as they are based on Lewko which is incorrect. Since Section 794(2) is repealed, the common law prevails and the onus continues to be on the accused and remains on the accused.

Tab 6 – R. v. McKinnon, [2020] AJ No 558, 2020 ABPC 86

The implications of the repeal of s. 794(2) were also considered by the Ontario Court of Justice in R. v. Charles, 2021 175 W.C.B. (2d) 16. In this case, Mr. Charles was driving a motor vehicle when he was stopped by police and asked to provide a sample of his breath into an approved screening device ("ASD"). Mr. Charles refused to provide a sample because he was concerned that some of the officers he interacted with were not following COVID-19 public interaction policies and he was concerned that the ASD was not sanitary. The court considered whether Mr. Charles' refusal to provide a sample of his breach in these circumstances constituted a "reasonable excuse". In so considering, the court noted its view of the results of the repeal on s. 794(2):

...I will note my view of the results of the repeal of s. 794(2) of the Criminal Code in 2017. Mr. Capotosto has argued vigorously that when Parliament repealed that section, noting in a Department of Justice backgrounder that one reason for the repeal was to avoid wrongful convictions, it did away with the effect of R. v. Goleski, [2015] 1 SCR 399, and the British Columbia Court of Appeal decision, [2014] BCJ No 347, 307 CCC (3d) 1, it upheld. I agree that the very brief Supreme Court of Canada judgment used language of the meaning specifically and only of s. 794(2) and did not analyze other cases further. However, notwithstanding the language of the backgrounder, with its reference to Charter rights that could be impacted by the sections about to be repealed, the repeal of s. 794(2) did not address the detailed analysis by the Court of Appeal per Frankel, JA. That part of the common law remained to speak for itself. In turn, serious doubt was cast by R. v. Goleski in the British Columbia Court of Appeal on the law relating to onus in cases of reasonable excuse, as held in R. v. Lewko, 2002 SKCA 121, 169 CCC (3d) 359 (Court of Appeal). If I am correct, the onus in the case at bar was on Mr. Charles to prove his reasonable excuse on the balance of probabilities...

Tab 7 – Charles, supra.

A similar conclusion was reached by the court in R. v. Slowinski, 2021 ABPC 160, where the court found that the common law principle underlying the repealed s. 794(2) continued to apply in the context of an Albertan regulatory offence. The court noted that the provision was likely repealed due a concern that it would not withstand Charter scrutiny. (at para. 45-49). Notwithstanding that expectation, the court went on to consider and apply the following two principles of statutory interpretation: (a) a rule of common law is not repealed by a statute that does not mention it and (b) the presumption against changing the common law. The court was of the view that the second principle was of primary importance, because s. 794(2) was found to be the codification of the common law in Goleski. (BCCA at para. 62), and so for this reason, and reasons applicable to the Alberta legislative context, the court concluded that the onus remained on the accused to establish a reasonable excuse in the context of public welfare offences.

The Alberta Court of Queens Bench in Dillman, infra, also affirmed in obiter dictum the continued application of the of the common law principle underlying the repealed 794(2),6 (see also, less conclusive obiter dictum in R. v. Hweld, 2020 NSCA 367)).

The Goleski decision was also recently mentioned in R. v. Zora, 2020 SCC 14. The issue before the court in Zora was whether the mens rea for the offence of breach of bail should be assessed on a subjective or objective standard (para. 3). The court, during its analysis, referred to the fact that the law was clear with respect to the offence of breach of probation, in that a subjective mens rea was required for that offence (para 50). The court cited Goleski, with approval but did not engage in a consideration of the correct approach to be taken in respect of where the issue or defence of reasonable excuse is raised in respect of a breach of probation, because that offence and that issue were not before the court. (para. 37-50). Thus this obiter dictum in Zora suggest that post-Zora, Goleski remains the leading authority in this province in respect of the mens rea and reasonable excuse in respect of the offence of breach of probation.

Given the ratios in McKinnon, Charles, Slowinski, the obiter dicta in Dillman and Hweld, Zora, and based on an application of first principles of statutory interpretation, the position of the respondent is that although s. 794(2) was not in force at the time the accused committed these offences, the above noted passage in Goleski (BCCA, at para 80) nevertheless accurately described the applicable common law at that time which operated to place the onus of establishing a reasonable on the accused. Therefore, notwithstanding that s. 794(2) had been repealed at the time the offences occurred, Goleski was the applicable law at the time the appellant committed these offences and it is clear on the face of the RFJ that the Trial Judge correctly apprehended and applied the law in this regard, and did not err in the manner contended by the appellant.

If this Court is satisfied that the Trial Judge properly applied the law, per Goleski in respect of where the onus lies to establish reasonable excuse, then the appellant's contention that the Trial Judge erred in law by not considering whether the Crown had proved beyond a reasonable doubt that the accused had subjective mens rea for the breaches of probation, before proceeding to consider whether the accused had a reasonable excuse for breaches otherwise proven, cannot succeed, because as stated by Justice Frankel "when an accused person raises the issue (or defence if you prefer) of reasonable excuse, he or she is conceding that the Crown has proven beyond a reasonable doubt the existence of the requisite mens rea and actus reus. In the present case, it was not necessary for the Trial Judge to consider whether mens rea had been proven beyond a reasonable doubt, because the appellant had raised reasonable excuse, and so was conceding that mens rea had been proven beyond a reasonable doubt.

The appellant contends that the Trial Judge erred "by providing insufficient reasons for deciding that mens rea for the breaches of probation had been proven". As stated, this contention cannot success if this Court accepts, per Goleski, that where an accused raises a reasonable excuse, he or she is conceding that the Crown has proven the actus reus and the mens rea, as it seems nonsensical to require that a trial judge provide reasons for finding that an element of an offence has been proven beyond a reasonable doubt, if that element has in fact, been conceded.

In the alternative, if this Court finds that some reasons were required in respect of this element, then a review of the record ought to provide comfort to this Court that the Trial Judge did not err by failing to provide sufficient reasons on this point.

The approach to assessing whether reasons are adequate is a functional one (see R. v. Sheppard, 2002 SCC 26, paras 41-42). The functional approach does not require that a judge articulate every finding or conclusion they reached in the process of arriving at the ultimate verdict. What is required is that the reasons show that the judge has seized the substance of the issue: R. v. R.E.M., infra, at para. 18.

In the present case, the record assists in providing context for the Trial Judge's reasons that he had found that the appellant had intentionally failed to abide by his probation conditions. The Trial Judge and Crown had the following colloquy regarding mens rea immediately before closing submissions:

THE COURT: ...and I think there's no issues that there was physically an act that - which was prohibited by the...probation order in that there was an attendance within a hundred metres and a crossing and a failure to report on the 19th ... Really what it comes down to is whether the accused knowingly or recklessly or voluntarily performed or failed to perform.

MR.WOLFE: I see - I agree with you so far. So the -- the case resolve [sic] down to intent, mens rea, whether he - Mr. Fox knowingly intended to breach the order. The actus seems clear with respect to the three counts. As so he either knowingly did it or as subcomponents to the mens rea was either willfully blind or reckless with respect to intent, and I will have submissions on those points.

(Emphasis added, T.E. Tab 9, p.149, L7-26).

Following submissions, the Trial Judge gave the RFJ, wherein he specifically referred to the applicable mens rea (at para 4), and appellant's intentions and actions and whether he was acting voluntarily or intentionally (para 14, 19, 36, 39, 40), ultimately finding in his concluding paragraph in respect of Count 2, and 3, that "[t]here was no evidence that he was involuntarily removed from the country or asked to leave or directed to leave. He voluntarily performed the action of walking himself across the border and by doing so, he committed the breaches in Count 2 and 3 of the information [sic]."

Further, it is clear that the Trial Judge did nor err in his articulation or application of the legal principles that apply to the mens rea component of this offence. He noted "the issue that still remains...is whether Mr. Fox knowingly, recklessly or with wilful blindness involuntarily performed or failed to perform an act or omission which constitutes the actus reus of the offence. So essentially, in this particular issue, whether there was a reasonable excuse for failing to comply" (RJF).

When considered in context, the Trial Judge's reasons in respect of mens rea were sufficient to show that the he had seized the substance of the issue.

The respondent submits that none of the grounds of appeal raised by the appellant warrant the interference of this Court.

The appeal against conviction should be dismissed.