R. v. Dancho

2025 BCCA 258 R. v. Dancho

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Dancho, 2025 BCCA 258 Date: 20250724 Docket: CA49541 Between: Rex Respondent And Braylon Zhao Dancho Appellant Before: The Honourable Justice MacNaughton (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated November 15, 2023 (R. v. Dancho, 2023 BCSC 2365 (unreported), Vancouver Docket 34444). Counsel for the Appellant: J. Hernaez Counsel for the Respondent: M.G. Scott Place and Date of Hearing: Vancouver, British Columbia July 2, 2025 Place and Date of Judgment: Vancouver, British Columbia July 24, 2025 Summary: The appellant seeks leave to appeal from an order dismissing his application to extend the time to file a notice of appeal from his conviction of a Motor Vehicle Act offence after a guilty plea. He appeals on the basis that the summary conviction appeal judge erred in her assessment of the merits of the appeal and failed to consider the appellant's explanation for the delay. Held: Application for leave to appeal is granted. The appellant has established the appeal raises a question of law, the issues raised are of importance, and there is sufficient merit to the appeal. Reasons for Judgment of the Honourable Justice MacNaughton: Nature of Application [1] The appellant, Braylon Zhao Dancho, seeks leave to appeal the decision of a summary conviction appeal ("SCA") judge refusing his

application for an extension of time to appeal his guilty plea to an offence contrary to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MV Act]. Background [2] On June 1, 2019, in Richmond, B.C., the appellant was issued a ticket in the amount of $368 for driving without due care and attention, contrary to s. 144(1)(a) of the MV Act. [3] On July 4, 2019, the appellant filed a Violation Ticket Statement, agreeing that he had committed the offence as alleged and requesting a fine reduction due to "budget constraints". His reduction application was successful, and as a result, his guilty plea was accepted and a $100 fine was imposed. However, the infraction remained on the appellant's driving record and in September 2020, ICBC sent a letter to the appellant regarding Driver Penalty Points ("DPP") associated with the offence and that a DPP Premium would be imposed on the cost of his insurance as a result. [4] In November 2020, the appellant took steps to appeal but ultimately abandoned doing so after the Robson Square Provincial Court Registry told him that his ticket had been withdrawn. The appellant stated that he discovered the points were still on his record when he renewed his licence in October 2022. Nine months later, on July 27, 2023, the appellant applied for an extension of time to appeal. [5] The appellant's application for an extension was heard and dismissed by the SCA

judge on November 13, 2023: R. v. Dancho, 2023 BCSC 2365 [RFJ]. The SCA judge concluded that, in all the circumstances, it was not in the interests of justice to grant the extension of time. [6] In her reasons, the SCA judge set out the legal framework for determining whether to grant an extension: [12] The onus is on Mr. Dancho to establish special circumstances which justify the granting of an extension: R. v. Sidhu, 2016 BCCA 23. The ultimate issue is whether, in all the circumstances, the justice of the case requires that an extension of time be granted. The factors to be considered were fairly recently reaffirmed by the Court of Appeal in R. v. Khungay, 2020 BCCA 269, and can be summarized as follows: first, was there a bona fide intention to appeal before the end of the deadline, that is before the end of the 30 days; second, when was the respondent informed of the intention; third, would the respondent be unduly prejudiced by an extension of time; fourth, is there merit in the appeal; and fifth, is it in the interests of justice that the extension be granted. [7] The SCA judge found that the appellant had not indicated any intention to appeal within the requisite 30 days, and that even if she accepted that he did not know about the resulting demerit points until October 2022, the application was brought about nine months after that date: RFJ at para.

13. She found there was some prejudice to the respondent by virtue of the time that had passed and the loss of memory that occurs over time: RFJ at para.

15. Concerning the merits of the appeal, the SCA judge found that, when the appellant requested the fine reduction, the document he signed indicated that he agreed that he committed the offence. She also found it difficult to believe that he was not aware of the possibility of penalty points because, in 2008, he had received penalty points for a previous offence of driving without due care and attention. She concluded that the appellant had not established the exceptional circumstances required to set aside a guilty plea. [8] In determining that it would not be in the interests of justice to grant the extension, the SCA judge wrote there was nothing before her to suggest there was any defence to the merits of the charge, and that the lack of merit combined with the "very lengthy delay" weighed against granting the extension: RFJ at para. 18. [9] On December 18, 2023, the appellant filed a notice of application seeking leave to appeal the SCA judge's decision to refuse an extension of time to bring his appeal. Legal Framework [10] The criteria applicable to granting an extension of time are well-known and found in Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 at 260, 1987 CanLII 2608 (C.A.), summarized as follows: 1) Was there a bona fide intention to appeal?

2) When were the respondents informed of the intention?

3) Would the respondents be unduly prejudiced by an extension of time?

4) Is there merit in the appeal?

5) Is it in the interests of justice that an extension be granted? [11] The question of whether to grant an extension of time "is a matter of judicial discretion and, unless the refusal to grant the extension was based on a misapprehension of some legal principle, an appeal from such a decision would not raise a question of law alone": R. v. Aldarkazanli, 1999 BCCA 96 (Chambers) at para. 11. [12] Justice Abrioux set out the applicable legal framework for leave to appeal from the denial of an extension of time concerning summary conviction appeals in the court below in R. v. Klos, 2022 BCCA 361 (Chambers): [14] A refusal to extend time for filing a notice of appeal is a decision "in respect of an appeal" under s. 839(1)(a). This Court therefore has jurisdiction to hear an appeal from such a refusal: R. v. Burgar, 2003 BCCA 340 at para. 28 (Chambers). [15] This Court has summarized the principles that govern the granting of leave under s. 839 in R. v. Balogh, 2018 BCCA 367 at para. 4 (Chambers): [4] In order to obtain leave to appeal to this court from an order of a summary conviction appeal judge pursuant to s. 839 of the Criminal Code, R.S.C. 1985, c. C-46, the applicant must establish that: a) the grounds of appeal raise an issue of law alone; b) the issue is one of importance; and c) there is sufficient merit to the appeal to warrant leave being granted. The issue involves

the exercise of discretion, as to which the overriding consideration is the interests of justice: R. v. Gill, 2008 BCCA 259 (Chambers); R. v. Meikle, 2006 BCCA 558 (Chambers); R. v. Andrews, 2007 BCCA 597 (Chambers); R. v. Han, 2018 BCCA 239 (Chambers). [13] Section 124(1) of the Offence Act, R.S.B.C. 1996, c. 338 [Offence Act] provides that a defendant may, with leave of a justice, bring an appeal to the Court of Appeal "on any ground that involves a question of law alone" from a decision of a summary conviction appeal court under s.

102. The interests of justice are the overriding consideration: s. 124 of the Offence Act; R. v. Winfield, 2009 YKCA 9 at para. 13. [14] The fact that the appeal is not as of right but upon leave indicates that the question of law must be one of importance: R. v. Massot, 2002 BCCA 31 (Chambers) at para. 2. [15] To succeed in obtaining leave to appeal a summary conviction appeal decision, the applicant must establish some exceptional circumstance justifying a further appeal: R. v. Han, 2018 BCCA 239 (Chambers) at para.

19. Positions of the Parties Appellant [16] The appellant's position is set out in three written arguments filed on January 16, 2024, March 4, 2025, and June 10, 2025. Mr. Dancho filed the first two without the assistance of counsel. The third was filed by Mr. Hernaez on Mr. Dancho's behalf. I have attempted to combine and summarize Mr. Dancho's various positions on this application. [17] The appellant contends that the proposed appeal raises a question of law. He submits that the SCA judge erred in law by failing to properly apply the applicable legal standards and points to five examples of the alleged errors. [18] First, the appellant submits that the SCA judge failed to consider that the MV Act operated in a fundamentally different way concerning the application of penalty points at the time of his earlier infractions in 2008. He submits that para. 17 of the RFJ demonstrate the error: [17] [W]hen he requested the fine reduction, the document he signed indicated right on its face that he was agreeing that he committed the offence. He tells me that he did not see those words, or appreciate they were on the document, but they are set out plainly. He tells me that he did not know there would be penalty points associated with the infraction, but there is evidence that he received a previous violation ticket for driving without due care and attention, in 2008, and he received

penalty points then. Again, Mr. Dancho says the officer told him there would be no points, but in all the circumstances, and in particular, the previous offence, it is hard to believe that he was not aware of the possibility that there would be penalty points again when he pleaded guilty in order to obtain a reduction in the fine. [19] Second, the appellant submits that the SCA judge failed to properly apply the framework set out in R. v. Wong, 2018 SCC 25, in finding that his guilty plea was valid as voluntary, unequivocal and informed. He submits that the Violation Ticket Statement (the appellant refers to this as the "Reduction Form") created a "procedural trap" that required him to make the impossible choice between pursuing a fine reduction and waiving his right to present a defence by entering a guilty plea; this procedural trap, he says, demonstrates the involuntary and uninformed nature of his plea. In particular, he says the plea could not be truly informed when the consequence of penalty points, and the resulting DPP Premium, was not disclosed to him, and the Violation Ticket Statement explicitly prohibits presenting a defence in exchange for a fine reduction. [20] Third, the appellant submits that the SCA judge failed to evaluate how an individual's cognitive differences affect access to justice and that she applied an "unduly narrow interpretation of what

constitutes a 'systemic barrier' as a matter of law" in her application of the test for an extension as set out in R. v. Khungay, 2020 BCCA 269. [21] Fourth, the appellant submits that the SCA judge's "strict application of time limits" raises a question of law regarding procedural fairness, as he was not given formal notice of his appeal rights or the applicable time limits. [22] Fifth, the appellant submits that the SCA judge misapplied the merits analysis to find that there was no defence to the charge and therefore, no merit to the proposed appeal. He says that her approach raises a question of law as it relates to the proper legal test for assessing merit and raises the question of whether Wong requires the demonstration of a valid defence to the underlying charge, or if it is based on the procedural validity of the plea itself. [23] The appellant contends that the appeal raises questions of law that are of importance, namely as they relate to the application of historic legislation when assessing the merits of an appeal, the framework for guilty pleas, the interpretation of systemic barriers under the Khungay analysis to evaluate access to justice for vulnerable individuals, and the enforcement of time limits without proper notice. He submits that in all the circumstances, it is in the interests of justice to grant him leave. Respondent [24] The respondent focuses its

written submissions on the appellant's submission that the Violation Ticket Statement posed a "procedural trap" that posed an "impossible choice" in a way that undermined the voluntariness of the appellant's plea. The respondent argues that the appellant could have presented a defence against the offence and made submissions regarding his budget constraints; he was not limited to choosing one or the other. [25] The respondent also highlights Justice Horsman's comments on the merits of the proposed appeal and the interests of justice (in her reasons dismissing his application for court-appointed counsel pursuant to s. 684 of the Criminal Code). She found the SCA judge correctly assessed both factors: R. v. Dancho, 2024 BCCA 393 (Chambers) at paras. 25-26. [26] The respondent takes the position that the SCA judge did not commit the errors as alleged and properly exercised her discretion against granting the extension of time. The respondent submits that it is not in the interests of justice to grant leave. Analysis [27] I highlight that the appellant seeks leave to appeal from the decision of the SCA judge's refusal to grant him an extension of time to file a notice of appeal. If leave is granted, the issue to be determined on appeal will be whether the SCA judge erred in refusing to grant an extension of time: R. v. Sidhu, 2016 BCCA 23. [28] As such, the focus of this application is not on whether the appellant has established that his guilty plea should be withdrawn, but whether the summary conviction appeal judge committed an error of law: Winfield at para.

12. The SCA judge's focus was on the merits of the underlying appeal (from the guilty plea) and the interests of justice. [29] As stated earlier, to grant leave, I must be satisfied that the proposed appeal of the SCA judge's decision raises a question of law, is an issue of importance, and there is sufficient merit to the appeal. The grounds of appeal raise a question of law alone [30] In general, the withdrawal of a guilty plea raises a question of mixed fact and law, as it involves determining whether the facts satisfy the legal tests: R. v. Miller, 2011 NBCA 52 at para.

6. However, a question of mixed fact and law can amount to a pure error of law where a judge can be shown to have applied the wrong law: [27] In Southam, supra, at para. 39, this Court illustrated how an error on a question of mixed fact and law can amount to a pure error of law subject to the correctness standard: . . . if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law. Housen v. Nikolaisen, 2002 SCC 33, citing Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 39, 1997 CanLII 385. [31] Similarly, although the question of whether to grant an extension of time is a matter of discretion subject to deference, an appeal from such a decision raises a question of law where the refusal "was based on a misapprehension of some legal principle": Aldarkazanli at para. 11. [32] In my respectful view, the appellant has raised arguable issues that the SCA judge misapprehended the applicable legal standards and therefore made extricable errors of law. I summarize the arguable errors of law as

follows: 1) The SCA judge applied an incorrect legal standard to assess the merits of setting aside the guilty plea by: i. requiring the appellant to establish "exceptional circumstances" to withdraw his guilty plea, which is not a requirement under Wong; ii. failing to consider the second element in the Wong framework, whether the appellant would have done something differently had he been informed of the collateral consequences; and iii. considering the appellant's failure to set out a proposed defence, contrary to the instruction in Wong; 2) The SCA judge drew an inference based on misconceived evidence to find the appellant's plea was informed and the appeal lacked merit; and 3) The SCA judge failed to consider the appellant's explanation for the delay. [33] The alleged errors of law arguably led to the SCA judge's finding that the proposed appeal lacked merit and, when assessed against the lengthy delay, led her to conclude it was not in the interests of justice to grant an extension.

1. The SCA judge applied an incorrect legal standard to set aside a guilty plea [34] The correct framework for assessing the withdrawal of a guilty plea, set out in Wong at para. 6, requires an accused to establish: 1) the guilty plea was uninformed; and 2) a reasonable possibility that, if the person pleading guilty had been informed of the legally relevant collateral consequences, they would have either pleaded differently or pleaded guilty with different consequences. [35] The accused must file an affidavit in support of their claim that they would have proceeded differently; to assess the veracity of the claim, courts can consider objective, contemporaneous evidence: Wong at para.

6. This inquiry is subjective to the accused but allows for an objective assessment of the credibility of the accused's subjective claim: Wong at para. 6. [36] In her RFJ, the SCA judge stated the following about the relevant legal principles: [16] The next factor is whether there is merit in the appeal. [The appellant] must establish that allowing the guilty plea to stand would result in a miscarriage of justice: Staples at para.

37. For a guilty plea to be validly entered it must be voluntary, informed, and unequivocal: R. v. Lam, 2020 BCCA 276, at para.

79. The accused must be aware of the nature of the allegations, and the effect and legal consequences of the plea, including the collateral consequences that flow from a conviction and seriously affect his legal interests. However, a guilty plea should only be set aside if there are exceptional circumstances: Staples at para. 39. a) Imposing a requirement to establish "exceptional circumstances" [37] The appellant has an available argument that by applying the framework in R. v. Staples, 2007 BCCA 616, the SCA judge imposed an additional requirement for the appellant to establish "exceptional circumstances" to withdraw his plea, a requirement that does not form part of the framework in Wong. The appellant has an argument that departing from the authority for setting aside a guilty plea constitutes an error of law. [38] On this point, I note that an applicant must establish "exceptional" or "special" circumstances on an application for an extension of time (R. v. Smith, [1990] B.C.J. No. 2933, 1990 CanLII 1028 (C.A.) at paras. 4-5) and for leave to appeal (Winfield at para. 14). In this case, however, the appellant has an available argument that the SCA judge considered the "exceptional circumstances" element in her analysis of the merits of the appeal, and not as part of the application for an extension of time. b) Failing to consider whether the appellant would have proceeded

differently [39] The appellant submits that in applying the incorrect framework for setting aside a guilty plea, the SCA judge failed to consider the second element of the test: whether the appellant established that he would have proceeded differently had he known of the collateral consequences. A legally relevant collateral consequence "is one which bears on sufficiently serious legal interests of the accused" and is assessed objectively: Wong at paras. 4, 34. When determining whether undisclosed evidence engages serious legal interests, courts should consider "the volume, weight and relevance of the undisclosed evidence and the new possibilities that the opportunity to use that evidence would have offered": Wong at para. 34, citing R. v. Taillefer, R. v. Duguary, 2003 SCC 70 at para.

111. The Court in Wong endorsed a "broad approach to evaluating the relevance of collateral consequences" to determine if a plea was sufficiently informed but did not define the full scope of legally relevant collateral consequences or the characteristics of such consequences: Wong at para. 9. [40] Although the collateral consequences here do not rise to the level of the immigration consequences in Wong and Khungay, the appellant submits that the task for the SCA judge in assessing the merits was to consider whether knowledge about the penalty points and the DPP Premium would have offered the appellant "new possibilities" in making full answer and defence, and whether the lack of information infringed this right. Here, the financial burden flowing from the points--by way of the $727.45 DPP Premium imposed by ICBC--is substantial, and it is subject to 19.5% interest. Given that ICBC is empowered by provincial legislation to impose premiums based on driving offences and set interest rates, I agree that there is an argument available to the appellant that the DPP Premium amounts to a "state-imposed" consequence flowing from either a conviction or, in this case, a guilty plea: Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, ss. 34(3), 45(2). [41] I am aware that there are materials filed in support of this application that were not before the SCA judge. It is unclear, however, what materials were before the SCA judge at this second step because she did not mention this element of the framework, and it is this omission that the appellant submits amounts to an error in law: Southam at para.

39. Had the SCA judge acknowledged this step as a requisite element in assessing the withdrawal of a guilty plea, and engaged with it in her analysis, there is an argument that she would not have fallen into error. As a result, it is not necessary to know the extent of the record before the SCA judge to find that the appellant's arguments raise an arguable legal error at this step. c) Requiring a viable defence [42] Wong expressly provides that "[t]he accused need not show a viable defence to the charge in order to withdraw a plea on procedural grounds": Wong at para.

23. The Court highlighted that the purpose of this rule is to protect an accused's right to make an informed plea, and "[r]equiring the accused to articulate a route to acquittal is antithetical to the presumption of innocence and to the subjective nature of choosing to plead guilty": Wong at para. 23. [43] The appellant has an available argument on appeal that contrary to the instruction in Wong, the SCA judge expressly considered the fact that the appellant had not advanced any defence to the distracted driving charge, as a factor weighing against granting an extension: RFJ at para.

18. Considering a factor that is not part of the legal standard amounts to an error of law: Southam at para. 39.

2. The SCA judge drew an inference based on misconceived evidence [44] I note that the appellant characterizes the second alleged legal error as a "misapplication of historical legislative framework." In my view, the substance of the appellant's argument is better characterized as the judge drawing an inference that was based on a misconception of the evidence. The RFJ do not suggest that the SCA judge considered or applied legislation in drawing this inference. [45] Inferences that are based on erroneous findings of fact are reviewable for palpable and overriding error: Housen at paras. 21-25. Despite this narrow scope of review, it is possible to extricate a legal error where there is "reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his [or her] conclusion": Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23 at para. 71, citing Van de Perre v. Edwards, 2001 SCC 60 at para. 15. [46] Here, the appellant submits that the SCA judge drew an inference that the appellant must have known about the penalty points on the basis that he committed the same offence in 2008. She stated: [17] [The appellant] tells me that he did not know there would be penalty points associated with the infraction, but there is evidence that he received a previous violation ticket for driving without due care and

attention, [i]n 2008, and he received penalty points then [I]n all the circumstances, and in particular, the previous offence, it is hard to believe that he was not aware of the possibility that there would be penalty points again when he pleaded guilty in order to obtain a reduction in the fine. [47] However, the appellant points out that the Driver Penalty Point system was introduced in 2009 through the enactment of Division 28.01 of the Motor Vehicle Act Regulations, B.C. Reg. 26/58; as a result, there were no penalty points associated with his 2008 offence. He submits the SCA judge misconceived the evidence of the appellant's 2008 offence to draw the inference that the appellant knew about the points, and on that basis, rejected his claim that the plea was uninformed. [48] In my view, this argument has some merit. Although the SCA judge referred to "all the circumstances," she did not point out any circumstance, other than the 2008 offence, that led her to infer that the appellant must have known about the points. The 2008 offence was the primary factor she highlighted at this step. I am persuaded that the appellant's argument raises an arguable error of law, in that this arguable misconception of the evidence affected the SCA judge's conclusion that the plea was informed.

3. The SCA judge failed to consider the appellant's explanation for the delay [49] Although the test for an extension of time set out in Davies does not explicitly require an applicant to provide an explanation for the delay, the Supreme Court of Canada stated that a proper explanation is one of the factors to consider in deciding whether to grant an extension of time to appeal in a criminal matter: R. v. Roberge, 2005 SCC 48; see also Sidhu at para. 9; and R. v. T.S.K., 2025 BCCA 241 at para.

12. Mental health challenges and impaired memories were found to be acceptable explanations for delay, even where those explanations were inconsistent: R. v. Hobbs, 2018 BCCA 128 at para. 40 (Chambers). However, mental health and substance abuse issues did not constitute a reasonable explanation where the appellant took no steps to pursue his appeal for 3.5 years: R. v. McAvoy, 2005 BCCA 325 at paras. 18, 21 (Chambers). Evidence of functional illiteracy and developmental challenges can help explain delay and may be relevant to the interests of justice: R. v. Baptiste, 2013 BCCA 161 at paras. 47-49 (Chambers). [50] The appellant states in his argument filed on January 16, 2024, that he made the SCA judge aware that his delay was due to his particular "circumstances and conditions," including his diagnoses of autism, ADHD, and a learning disability. There is an available argument that the judge failed to consider this explanation and thereby erred in law by omitting this factor from her analysis. The issue is one of importance [51] To grant leave to appeal, the proposed appeal must raise an issue of importance, either generally or to the affected parties: R. v. Boparai, 2018 BCCA 294 at para. 15 (Chambers). It is clear from the appellant's submissions that the issues raised are of importance to him. He notes that the DPP Premium imposes a "crushing" burden on him, as the amount

grows at a 19.5% annual interest rate and he is a person of limited income. [52] I accept that the issues raised by the appellant may be of general importance. These include, the proper legal standard to apply to a withdrawal of a guilty plea and the evidence and inferences a judge may rely on to assess an accused's subjective claim that their plea was uninformed; the merits of an appeal from a guilty plea, where the plea was entered by way of a "Violation Ticket Statement"; whether such a plea is "informed" given the boilerplate nature of the form; and the fact that many accused persons who enter pleas in this manner do so without legal advice. There is sufficient merit to the appeal [53] For the reasons set out above, I am satisfied that the proposed appeal has sufficient merit. Interests of justice [54] The overarching consideration on an application for leave to appeal from the decision of a SCA judge is the interests of justice. Considering the appellant's particular challenges, and combined with the errors in law identified above, I am of the view that it is in the interests of justice to grant leave to appeal from the SCA judge's refusal to grant an extension. Conclusion [55] For all of the reasons set out, I conclude the appellant has established "exceptional circumstances" justifying a further appeal to this Court. Disposition [56] I therefore grant leave to appeal. "The Honourable Justice MacNaughton"