R. v. Billy-Kendall

2025 BCSC 1283 R. v. Billy-Kendall

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Billy-Kendall, 2025 BCSC 1283 Date: 20250708 Docket: 113171 Registry: Kamloops Rex v. Saydie Billy-Kendall Before: The Honourable Justice B. Smith Corrected Judgment: The front page of the judgment was corrected on July 14, 2025 Oral Reasons for Judgment Counsel for the Applicant: C.E. Johnson Counsel for the Respondent, Attorney General of British Columbia (appearing on June 20, 2025): L.F. De Lima Counsel for the Respondent, Attorney General of British Columbia (appearing on July 8, 2025): F. Zaltz Counsel for the Provincial Crown: K. Bouchard Place and Date of Hearing: Kamloops, B.C. June 20, 2025 Place and Date of Judgment: Kamloops, B.C. July 8, 2025 Introduction [1] The applicant, Saydie Billy-Kendall, is by reason of her employment working with children, subject to the provisions of the Criminal Records Review Act, R.S.B.C. 1996, c. 86 [CRRA], which requires her to have a criminal record check every five years. The applicant and her spouse were previously jointly charged with sexual assault, but Crown counsel directed a stay of proceedings before trial. While a stay of proceedings is not included in the CRRA definition of a "criminal record", by operation of ss. 1 and 4 of the CRRA, and s. 579(2) of the Criminal Code, R.S.C. 1985, c. C-46 [Code] it is included in the CRRA definition of "outstanding charge" until

the expiry of one year after the stay. [2] The stay of proceedings was on February 5, 2025, and will appear on the applicant's criminal record check as an outstanding charge until February 5, 2026. The applicant is required to have her next criminal record check by October 2025. As a result of the applicant's next criminal record check, her employer will learn about the "outstanding charge" (the stay of proceedings). According to the applicant, when her employer discovers this information it will terminate her employment. [3] The applicant applies for an order in the nature of prohibition preventing the registrar from exercising some of their powers and duties under the CRRA. In the alternative, the applicant seeks an order under s. 24(1) of the Charter stating that there shall be no disclosure of these proceedings from any criminal record check under the CRRA. In the further alternative, the applicant seeks an order that the record of the criminal proceedings involving the applicant be sealed for a period of 90 days, during which time the applicant could obtain her next criminal record check under the CRRA. [4] These reasons deal with the threshold issue, namely whether the application is properly brought in this court sitting as a superior court of criminal jurisdiction, as defined in s. 2 of the Code, for determination by me as the assigned case management and trial judge

under s. 551.1 of the Code. [5] It is undisputed that the application could be brought before this court in civil proceedings pursuant to the court's original jurisdiction under s. 9(1) of the Supreme Court Act, R.S.B.C. 1996, c. 443. [6] For the reasons that follow, I find the application is not properly brought in this court sitting as a superior court of criminal jurisdiction, for determination by me as the case management and trial judge. Factual Background [7] The applicant began employment working with children and obtained a criminal record check in October 2020, pursuant to ss. 8 and 9 of the CRRA. As required by the CRRA, the applicant must have another criminal record check in October 2025. [8] On February 1, 2023, Crown laid an Information charging the applicant and her spouse with sexual assault in relation to an incident involving an adult third party that occurred on or about April 3, 2022. On July 7, 2023, Crown preferred the indictment in this Court. [9] On February 5, 2025, Crown counsel directed a stay of proceedings on the indictment. There are currently no extant criminal proceedings. [10] Contrary to s. 12(1) of the CRRA, the applicant has not reported the outstanding charge to her employer or provided it with a criminal record check authorization for a further criminal record check. CRRA Criminal Record Checks [11] Section 4(1) of the CRRA requires the

registrar, upon receiving a criminal record check authorization, to carry out a criminal record check on the person who authorized it. The check, under s. 4(1) of the CRRA, is done by the criminal records review unit of the RCMP, using a database called Canadian Police Information Centre ("CPIC"), which is maintained by the RCMP. [12] Section 4(2)(a) of the CRRA requires the registrar, upon determining that the person who is the subject of the criminal record check, has an outstanding charge relating to a relevant offence (which includes sexual assault), to refer the matter to the deputy registrar to determine whether the outstanding charge indicates that the person presents a risk of physical or sexual abuse to children and vulnerable adults. The deputy registrar uses a database called Justice Information System ("JUSTIN"), which is maintained by the Ministry of Attorney General. [13] Section 4(2)(b)(i) of the CRRA requires the registrar to notify the person's employer. [14] Section 4(3)(a)(i) and (ii) of the CRRA requires the deputy registrar, when reaching a determination under s. 4(2) of the CRRA, to consider whether the behaviour associated with the relevant offence would, if repeated, pose a threat of physical or sexual abuse to children or vulnerable adults. [15] Section 4(5) of the CRRA requires the deputy registrar to provide written reasons for a determination under

s. 4(2)(a) of the CRRA to the person and/or the person's employer, upon request. [16] Section 5 of the CRRA provides for reconsideration of the deputy registrar's determination. [17] Section 12(1) of the CRRA, requires the person who works with children or vulnerable adults to report a charge or conviction to their employer and provide the employer with a criminal record check authorization for a further criminal record check. [18] Section 28(2) of the CRRA makes it an offence to violate s. 12(1) of the CRRA, for which they are liable to a fine of $50 for each day on which the contravention continues. Chronology of Events [19] The following is a chronology of pertinent events: April 2-3, 2022: Alleged offence February 1, 2023: Crown lays Information charging applicant and her spouse; endorsed warrants issued for arrest of both July 7, 2023: Crown prefers Indictment September 11, 2023: Trial dates set (seven days starting September 23, 2024) February 1, 2024: Trial dates moved up to September 16, 2024; ACJ Holmes assigns me as the case management and trial judge under s. 551.1 of the Code September 5, 2024: Crown's application to adjourn trial dismissed September 10, 2024: Crown's renewed application to adjourn trial granted (but previously scheduled dates retained for pre-trial applications) September 16, 2024: Trial dates re-set (seven days starting April 28, 2025) September

20, 2024: Crown's application to adjourn applicant's application for judicial stay for alleged violation of her s. 11(b) Charter rights granted September 27, 2024: Applicant files Notice of Application concerning intended application for relief in the nature of prohibition, and challenge to the constitutionality of various provisions of the CRRA January 28, 2025: Pre-trial conference, discussion focussed on applicant's scheduled February 5, 2025 application for judicial stay for alleged violation of her s. 11(b) Charter rights February 5, 2025: Crown directs a stay of proceedings; applicant's application for judicial stay for alleged violation of her s. 11(b) Charter rights does not proceed February 21, 2025: Applicant files Amended Notice of Application April 17, 2025: Case Management Conference at request of the parties, Court directs counsel to schedule a hearing concerning the threshold issue Discussion [20] As noted, these reasons deal only with the threshold issue, namely whether the application is properly brought in criminal court for determination by me as the assigned case management and trial judge. [21] The parties disagree about who bears the burden of proof concerning the threshold issue. The applicant characterizes the threshold issue as being an application by the Attorney General of British Columbia ("AGBC") for summary dismissal of her application. Relying on

R. v. Haevischer, 2023 SCC 11 at para. 90 [Haevischer], the applicant submits that on a motion for summary dismissal, the moving party bears the burden of convincing the judge that the underlying application is manifestly frivolous, which she submits is not the case. The AGBC submits that the applicant is the moving party and has the burden of proof on the threshold issue. [22] This point can be dispensed with summarily. The applicant is clearly the moving party. Haevischer has no application. [23] The applicant submits that had the stay of proceedings occurred on September 23, 2024, when the trial was originally scheduled to take place, rather than on February 5, 2025, the relief sought would now be moot. [24] As I understand the applicant's submission, it is that had the stay of proceedings occurred on September 23, 2024: a) she could have waited to September 24, 2025 (one year after the stay) before applying for a new criminal record check; b) a criminal record check done after September 24, 2025, but before the October 2025 deadline, would not have identified the stay of proceedings as an "outstanding charge"; and c) her employer would be none the wiser and have no reason to terminate her employment. [25] In effect, the applicant now complains about being unable to avail herself of something she says she would have been able to do, notwithstanding that by doing so she would

have been in violation of her statutory obligation to report the charge to her employer, an obligation which exists in order to protect children and vulnerable adults. [26] The applicant submits her application is a direct consequence of the criminal proceedings. It, therefore, arises in criminal proceedings. I am the assigned case management and trial judge in respect of those criminal proceedings. Accordingly, the applicant submits the application is properly brought: a) in the criminal proceedings; and b) before me. [27] The applicant submits it cannot be that the character of the relief sought (an order in the nature of prohibition and a sealing order) is changed merely by the entering of a stay of proceedings. [28] The applicant relies on Holland v. British Columbia (Attorney General), 2020 BCCA 304, where Justice Harris said: [2] In this province, proceedings in criminal matters by way of extraordinary remedy must be commenced by application in accordance with the Criminal Rules of the Supreme Court of British Columbia, S.I./97-140 [Criminal Rules], which were enacted pursuant to the rule-making power of superior courts conferred by s. 482 of the Code. [29] The Criminal Rules state: a) Rule 1(1) - These Rules apply to all criminal proceedings within the jurisdiction of the Supreme Court of British Columbia. b) Rule 1(4) - These Rules are intended to provide for the just

determination of every criminal proceeding and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. c) Rule 4(1)(a) - No writ of mandamus, certiorari, habeas corpus or prohibition shall be issued, but all necessary directions shall be made by order. d) Rule 4(1)(b) - A notice of application for an order referred to in subrule (a) and all supporting material shall be served on all persons who appear to be interested in or likely to be affected by the proceedings and in particular, unless the court otherwise directs, the notice of application shall also be served at least six days before the date stated in the notice for the hearing of the application on the Attorney General of British Columbia, and where it is sought to quash a conviction, order, warrant or inquisition, the notice of application and all supporting material shall be served on the judge, justice or justices who made the conviction or order or issued the warrant or the coroner who held the inquisition. [30] In response, the AGBC first submits the application is improperly brought before me because there are now no extant criminal proceedings. [31] I agree that the application will not affect any ongoing criminal proceedings involving the applicant or her liability for the offence she was charged with. [32] Second, relying

on The Canadian Broadcasting Corporation v. British Columbia (Attorney General), 2022 BCCA 170 at para. 13 [CBC], the AGBC submits the test for determining whether a criminal court or a civil court is the proper forum for an application depends on whether the application is criminal in nature and founded on the federal criminal law power, or civil in nature and founded on provincial legislative powers. [33] I am not persuaded that the AGBC is correct in its application of the holding in CBC to the facts of this case. CBC states that determining whether an appeal is criminal or civil in nature stems from the law upon which the proceedings are based, whereas the AGBC submits it is determined from the law upon which the application is based. In my view, the important fact here is that the CRRA is provincial legislation, founded on provincial legislative powers, not federal legislation founded on the federal criminal law power. [34] Third, while the AGBC concedes that this court does have inherent jurisdiction over the court record, it submits the application for a sealing order, based on inherent jurisdiction, is not being advanced for a legitimate purpose and should not be heard separately from the substantive application with respect to the operation of the CRRA. Absent a Charter challenge to the validity, applicability or operability of the CRRA, or an application for judicial

review from an administrative decision made under the CRRA, the AGBC submits inherent jurisdiction cannot override the express operation of the CRRA. [35] It is undisputed that the court has inherent jurisdiction over the court record such that a common law discretionary sealing order could be made if the test identified in Sherman Estate v. Donovan, 2021 SCC 25 at para. 38 is met. [36] I agree with the AGBC that issuing a sealing order at this stage, based on inherent jurisdiction, would in these circumstances be an improper exercise of the doctrine of inherent jurisdiction. The operation of the doctrine of inherent jurisdiction is not unlimited: Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43 at para. 22 [CLA]. Inherent jurisdiction must be exercised without contravening any statutory provision: CLA at para.

23. Essentially, the applicant is asking the court to exercise its inherent jurisdiction for the purpose of preventing the lawful operation of the CRRA. In my view, absent a constitutional challenge to the validity, applicability or operability of the CRRA, or an application for judicial review of an administrative decision made under the CCRA, inherent jurisdiction can not properly be exercised to circumvent the operation of the CRRA. [37] Moreover, from a practical perspective, the sealing order sought would not prevent the registrar from determining that the applicant was charged with a relevant offence, because that information is obtained from CPIC. The sealing order sought would only prevent the deputy registrar from accessing information from JUSTIN to determine whether the applicant poses a threat to children or vulnerable adults. [38] The applicant's reliance on Holland is misplaced. Holland held that a challenge to a judicial stay of proceedings entered pursuant to the Code is a criminal matter properly brought as an application for an extraordinary remedy, not as a petition for judicial review. In other words, Holland involved a challenge to action taken during the criminal proceedings (the stay of proceedings), on the authority of federal legislation (the Code). The applicant is not challenging actions taken during the criminal proceedings, or on the authority of

federal legislation. [39] The applicant's reliance on the Criminal Rules is also misplaced. The Criminal Rules apply to criminal proceedings. The orders sought would not impact any ongoing criminal proceedings, or the applicant's rights under the Code as an accused person. The criminal proceedings in this matter have been concluded. The applicant is no longer an accused. [40] The applicant is not challenging any action which was taken during the criminal proceedings or on the authority of federal legislation. The applicant takes issue with the operation of a provincial statute that is civil in nature and the extent to which its operation may affect her employment. The applicant is applying in criminal court for an order to prevent an official under a provincial statute from carrying out their statutory duties - duties that are carried out exclusively for a provincial purpose. Conclusion [41] The application is not properly brought in criminal court for determination by me as the assigned case management and trial judge. "B. Smith J" B. SMITH J.