R. v. Van Loo

2020 BCSC 2176 R. v. Van Loo

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Van Loo, 2020 BCSC 2176 Date: 20201001 Docket: X082001 Registry: New Westminster Regina v. Wayne Anthony Patrick Van Loo Before: The Honourable Mr. Justice Riley On Appeal from: Provincial Court of British Columbia (R. v. Van Loo, Abbotsford Traffic File AJ01608134) Oral Reasons for Judgment Counsel for the Crown (Respondent) appearing via teleconference: N.M.D. Reithmeier No other appearances Place and Date of Trial/Hearing: New Westminster, B.C. October 1, 2020 Place and Date of Judgment: New Westminster, B.C. October 1, 2020 [1] THE COURT: Mr. Van Loo is the appellant in an appeal that is governed by the provincial Offence Act, R.S.B.C. 1996, c.

338. It is a notice of appeal brought against convictions under the Motor Vehicle Act, R.S.B.C. 1996, c. 318 for certain offences. The notice of appeal was filed on 18 July 2019. [2] In terms of the history of the matter in this court, it appears as though a date was set for a hearing on 22 October 2019, but it did not proceed and was adjourned. The matter was next before the court on a fix date on 21 November 2019 and was adjourned. Then it appears as though a date was set for the hearing on 10 December 2019, was to be a hearing for two hours. It did not proceed for some reason. The matter was adjourned to a fix date on 9 January 2020, just for a fix date appearance. Then another hearing date was set for 6 March 2020, for two hours, before Justice Masuhara. The matter did not proceed. Then the matter was set for a hearing for two hours on 6 May 2020 before Justice Schultes [correction, Justice Crabtree]. The matter did not proceed. The matter next came before the court on 10 September 2020, before Madam Justice Devlin, at a fix date, and Madam Justice Devlin made it clear, without knowing precisely what was said, but made it clear to the appellant Mr. Van Loo that it was his obligation to move his appeal forward. Then the matter was before Justice Brown on 24 of September 2020 for a fix date appearance. It is not clear that Mr. Van Loo appeared at that time. The matter is

again before the Court on 1 October 2020, before me, and Mr. Van Loo has not appeared today, although he had the ability to appear by telephone and did not. That is the history of the matter. [3] There are really two routes that one might look at in considering whether this matter should be dismissed for want of prosecution. [4] The first and most direct route would be s. 111 of the Offence Act, R.S.B.C. 1996, c. 338, which says the appeal court, namely the British Columbia Supreme Court, can on proof that a notice of appeal has been given and that the appeal has not been proceeded with or has been abandoned, order that the appeal be dismissed. There is no notice of abandonment in this case. But I think I can conclude, and I do conclude, that the appeal has not been proceeded with in a timely fashion, given that the notice of appeal was filed in July of 2019, and has not been dealt with by way of a hearing, now, in October of 2020, despite the matter having been set a number of times for a hearing and not proceeding. At a certain point, the moving party in an appeal has an obligation to make sure that it gets on and is dealt with on the merits. That did not happen here, and it seems to me that that is a sound enough basis to dismiss Mr. Van Loo's appeal for want of prosecution. [5] A second, alternative basis for dealing with this matter would be to say that no transcripts and

ruling from the Provincial Court Judge who heard the trial in this matter were ever ordered by the moving party, Mr. Van Loo. I accept the view that s. 133 of the Offence Act applies here, which says that if no other provision of the Offence Act is in place, the provisions of the Criminal Code, R.S.C., 1985, c. C-46 govern. From there we would go to s. 482 of the Criminal Code, which gives every superior court in the country the jurisdiction to make rules respecting matters that are not otherwise inconsistent with the Criminal Code or other federal statutes. Here, in this province, there are the Criminal Rules of the Supreme Court of British Columbia, SI/97-140, Rule 6 of which governs appeals in summary conviction matters. I hold the view that those Rules would apply to Offence Act appeals, because there are no other provisions regarding what materials are required to be filed in an Offence Act appeal and s. 133 of the Offence Act, and s. 482 of the Criminal Code fill that gap. The bottom line is that if Rule 6 applies, then the moving party, the appellant Mr. Van Loo, would have an obligation to order and file transcripts within a certain deadline, which was past long since in this case, and no transcripts have ever been filed. On that basis, there has been a failure to move the appeal forward and a failure to comply with the Rules. That would be a basis for dismissing the

appeal for want of prosecution as well, and I would do so. [6] So I dismiss the appeal on both bases, and I think that concludes the matter. [7] Is there anything else from that, Mr. Reithmeier? [8] MR. REITHMEIER: In I know that the Supreme Court judge who was sitting Justice Crabtree, not Schultes, but -- it doesn't really matter, but -- [9] THE COURT: Okay. Thank you for that correction. [10] MR. REITHMEIER: Other than that, I will prepare an order for -- or is one -- is one necessary for this? [11] THE COURT: Yes. Thank you. You should have an order that the appeal is dismissed for want of prosecution, and you can say, certainly, under s. 111 of the Offence Act, and/or to the extent that it is necessary, Rule 6 of the Criminal Rules of the Supreme Court of British Columbia. [12] MR. REITHMEIER: All right. I will file that in due course. [13] THE COURT: Yes. Thank you. "Riley J."