R. v. Rahmani

2017 BCSC 1471 R. v. Rahmani IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Rahmani, 2017 BCSC 1471 Date: 20170822 Docket: 27227 Registry: Vancouver In the Matter of a Stated Case under s. 115 of the Offence Act, R.S.B.C. 1996, c. 338 Between: Regina Applicant And Abdul Rahman Rahmani The Provincial Court of British Columbia (Traffic Court) Respondents - and - Docket: 27233 Registry: Vancouver Between: Regina Applicant And Nicholas Karner, Mark Smith, Reny Yue also known as Reng Jie Yuy, and The Provincial Court of British Columbia (Traffic Court) Respondents Before: The Honourable Mr. Justice Ehrcke Reasons for Judgment On appeal from: An order of the Provincial Court, dated March 13, 2017 (R. v. Rahmani, 2017 BCPC 72, AH8792423-1 and March 29, 2017 (R. v. Karner, 2017 BCPC 105), AH90203086, AH90203169, AH90203119 Counsel for the Crown: G. Nelson No other appearances Place and Date of Hearing: Vancouver, B.C. July 26, 2017 Place and Date of Judgment: Vancouver, B.C. August 22, 2017 INTRODUCTION [1] On March 13, 2017, Judicial Justice Adair directed a judicial stay of proceedings with respect to the charges against Abdul Rahman Rahmani contained in a Violation Ticket issued February 14, 2015. The charges were two alleged offences contrary to ss. 165(2) and 214.2(1) the Motor Vehicle Act, R.S.B.C. 1996 c. 318. [2] On March 29, 2017, the same Judicial Justice directed a judicial stay of proceedings with respect to the charges against Nicholas Karner, Mark Smith, and Reny Yue contained in three separate Violation Tickets issued July 6, 2015, July 4, 2015, and July 5, 2015 respectively. In each case, the alleged offence was speeding, contrary to s. 146(3) of the Motor Vehicle Act. [3] The reasons of the Judicial Justice indicate that he was concerned about the length of the delay between the issuance of the Violation Tickets and the matters coming on for trial before him, in light of the Supreme Court of Canada's judgment in R. v. Jordan, 2016 SCC 27. [4] Now before me are two Crown appeals by way of stated case in relation to these matters pursuant to s. 115 of the Offence Act, R.S.B.C. 1996, c. 338. The two appeals were heard together, as they raise the same issue, namely, whether the Judicial Justice exceeded his jurisdiction in directing the judicial stays of proceedings. All of the respondents have been served, but none has appeared or made submissions on the appeals. [5] The position of the Crown on each of these appeals is not that delay in bringing these cases to trial was acceptable according to the principles articulated in Jordan, but rather that the Judicial Justice exceeded his jurisdiction in dealing with the matters as he did. The Crown seeks an order setting aside the judicial stays of proceedings and returning the matters to Provincial Court for trial. LEGISLATIVE FRAMEWORK [6] In British Columbia, violations of traffic laws are enforced by peace officers by way of Violation Tickets, pursuant to the provisions of the Motor Vehicle Act and the Offence Act, except in the case of a fatality or a driving prohibition offence. [7] In the ordinary course, Crown counsel does not appear on the trial of Violation Tickets; rather, they are prosecuted by the issuing peace officer before Judicial Justices sitting in Traffic Court, a division of the Provincial Court. [8] Judicial Justices are a category of provincial judicial officer appointed pursuant to s. 30.2 of the Provincial Court Act, R.S.B.C. 1996, c. 379. [9] Prior to July 2003, Judicial Justices (at that time known as Judicial Justices of the Peace) could hear applications for relief under the Canadian Charter of Rights and Freedoms that arose in the context of hearings before them. However, on July 1, 2003, ss. 2.1, 11, and 31 of the Provincial Court Act were amended to limit the jurisdiction of Judicial Justices in this regard and to preclude their hearing Charter applications. Section 2.1 of the Provincial Court Act now provides that Charter applications may only be heard by a Provincial Court Judge: 2.1 In the Provincial Court of British Columbia, only a judge may (a) commit for contempt of court, (b) hear a matter for which notice under section 8 of the Constitutional Question Act is required, (c) hear a matter that involves a determination of aboriginal or treaty rights or claims, (d) hear a matter arising under the Canadian Charter of Rights and Freedoms for which notice under section 8 of the Constitutional Question Act is not required, and (e) preside over the trial of a person charged with an offence for which, on conviction, the person is liable to be sentenced to a term of imprisonment. [10] Pursuant to s. 31 of the Provincial Court Act, if a Charter issue arises in the course of a hearing before a Judicial Justice, the hearing must be terminated and the matter referred to a Provincial Court Judge. Section 31(4) provides: 31 (4) If, in the course of a hearing before a justice on an information or claim, a matter arises that is, under section 2.1 (b) to (d), within the exclusive jurisdiction of a judge, the justice must terminate the hearing and refer the information, claim or application to be heard as a new trial by a judge. FACTS AND REASONS OF THE JUDICIAL JUSTICE [11] The relevant facts in relation to the first stated case (VA27227) are that when the disputant, Abdul Rahman Rahmani, received a Violation Ticket from CpI. Fedirchuk, he disputed that Violation Ticket, and it was set down for hearing. On the appointed date, Mr. Rahmani attended Traffic Court with a friend to act as an interpreter. CpI. Fedirchuk was present. The case was called by the Judicial Justice, who told the parties to take a seat, at which point he proceeded to read from his prepared Reasons for Judgment. He stayed the Violation Ticket, advised the disputant that he was free to go, and he offered the officer a written copy of the Reasons (now indexed at 2017 BCPC 72). [12] The Judicial Justice, having examined the record of proceedings prior to court, stated in his written reasons that this was the second hearing date, the first having been adjourned for lack of court time. He found the delay of 25 months was not the responsibility of the officer, but rather was institutional delay caused by lack of resources. He found that this was in excess of the limits for reasonable delay discussed in Jordan, but he acknowledged that as a Judicial Justice, he could not grant a remedy under the Charter. He reasoned (at para. 8) that he could apply a common law remedy instead, as in his view, "the Common Law with respect to unreasonable delay in bringing a matter to trial is a mirror image of the requirements under the Charter, as set out most recently in R. v. Jordan." He opined (at para. 11) that bringing a case on for trial within a reasonable time is a matter of basic procedural fairness, and that the record of proceedings in this case "clearly discloses a procedural defence of unreasonable delay, whether pursuant to the Charter or at Common Law" (para. 12). He said that to allow the trial to continue after such a delay would constitute an abuse of process. He referred to the option of referring the matter to a Provincial Court Judge for an application under the Charter, but concluded that this would be a needless procedural hurdle, and therefore, he concluded (at para. 17): As such, I exercise my jurisdiction under the Common Law and direct a Judicial Stay of Proceedings with respect to the charges currently before the Court. [13] In the second stated case, the relevant facts are that the disputants, Mark Smith, Reny Yue, and Nicholas Karner, each received Violation Tickets for alleged speeding offences on July 4, 5 and 6, 2016 from Cst. Knox. They disputed their respective Violation Tickets, and each was notified by mail of his trial date. Mr. Karner applied in writing on February 22, 2017 to adjourn the March hearing date, but that application was denied on February 28, 2017. On the March 29, 2017 hearing date, the Judicial Justice called the three disputants to come forward, and he told them he was going to deal with all three of them simultaneously. He stayed the three Violation Tickets and advised the disputants that they were free to go. [14] In his written reasons indexed at 2017 BCPC 105, the Judicial Justice found that there had been a delay of 21 months in all three cases, and that this was "well beyond the guidelines set out by the Supreme Court of Canada in R. v. Jordan." He found that the delay was attributable to "lack of adequate funding to the responsible bureaucracy" (para. 6). He reasoned that courts have two options in dealing with unreasonable delay: ss. 7 and 11(b) of the Charter, and the common law doctrine of abuse of process. He said that while these two options largely overlap, "if the Charter is available to the Court, it is to be preferred as the instrument of both assessment and of remedy" (para. 10). [15] Recognizing that the Provincial Court Act precludes Judicial Justices from hearing Charter applications, he concluded that he should apply the doctrine of abuse of process. He wrote, at paras. 11-15: [11] But where the Charter is not available to the trial court (as is the case with Judicial Justices by virtue of the limitation imposed by the Provincial Court Act), is the "axe" of the common law doctrine of abuse of process still available for those "clearest of cases"? [12] In my view, Supreme Court of Canada cases subsequent to O'Connor have clearly answered that question in the affirmative. For example, in R. v. Nixon, 2011 SCC 34, the Court concluded that a stay of proceedings under the common law doctrine of abuse of process was still available where: (paragraph 42) (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome, and (2) no other remedy is reasonably capable of removing that prejudice. [13] Likewise, in R. v. Babos, 2014 SCC 16, the Court observed at paragraph 31 - 32: [31] Nonetheless, this Court has recognized that there are rare occasions --- the "clearest of cases" --- when a stay of proceedings for an abuse of process will be warranted (reference to O'Connor). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) [32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements: (1) There must be prejudice to the accused's right to a fair trial or the integrity of the judicial system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome (2) There must be no alternative remedy (short of a stay of proceeding) capable of redressing the prejudice; and (3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct, and preserving the integrity of the justice system, against the "interest that society has in having a final decision on the merits". [14] The state delay in bringing these cases to trial comfortably exceeds the 18 month guideline set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. Any application under the Charter for a judicial stay would almost certainly be granted, but that would require the defendants to jump through four further procedural hurdles: a) preparing necessary documents under the Constitutional Questions Act; b) serving the Provincial and Federal Attorneys General; c) making an appearance before the Judicial Case Manager for a hearing date; d) attending the hearing on the Application before a Provincial Court Judge. [15] In my view, those additional steps would increase the delay, and strain already scarce judicial resources, without changing, in any meaningful way, the outcome. As such, in these "clearest of cases", I opt to use the "axe" of the common law, and to grant a judicial stay of proceedings. ANALYSIS [16] The Crown submits that the Judicial Justice erred both procedurally and substantively in his disposition of the four Violation Tickets. I agree with that submission. [17] The Judicial Justice erred procedurally in disposing of the four Violation Tickets without first having an arraignment on any of them. [18] The procedure to be followed when Violation Tickets come before the court for hearing is set out in ss. 57-60 of the Offence Act. Section 58 requires an arraignment as a precondition to embarking on a trial. That section provides: 58 When the defendant appears, the substance of the information must be stated to the defendant, and the defendant must be asked (a) whether the defendant pleads guilty or not guilty to the information, if the proceedings are in respect of an offence that is punishable on conviction, or (b) whether the defendant has cause to show why an order should not be made against him or her, in proceedings where a justice is authorized by law to make an order. [19] In the case of all four disputants, the Judicial Justice failed to state the substance of the informations to them and failed to ask them for their plea. There is nothing in the circumstances to indicate either an express or implied waiver of this requirement. Without an arraignment, the Judicial Justice was not clothed with jurisdiction to proceed in granting a remedy or decision in relation to any of the Violation Tickets: R. v. Sosnowski, [1984] B.C.J. No. 303 (Co. Ct.). [20] The nature of this error goes beyond a mere technicality. Having failed to commence a trial with an arraignment, the Judicial Justice proceeded to render a decision without having heard any evidence and without having given any of the parties the opportunity to make submissions. This is a breach of one of the most fundamental principles of justice, which is summarized in the Latin maxim "audi alterem partem", or "hear the other side". [21] Sections 63.1 and 64 of the Offence Act provide: 63.1 (1) An enforcement officer may appear as, and may exercise the powers and perform the functions of, a prosecutor in relation to a violation ticket under this Act whether or not he or she is a member of the Law Society of British Columbia. (2) Section 15 (1) of the Legal Profession Act does not apply in respect of anything authorized under this section. 64 The prosecutor is entitled personally to conduct his or her case, and the defendant is entitled to make a full answer and defence. [22] The Judicial Justice had obviously made his decision before any of the parties even entered the courtroom. When they appeared before him, he did not give any opportunity either to the police officer prosecutor or to the disputants to state their position. This fundamental procedural error alone would be sufficient reason why these appeals must be allowed. [23] The error in these cases goes beyond procedure, however. The Judicial Justice also erred substantively in proceeding on the basis that he had the power at common law to grant a judicial stay of proceedings for abuse of process based on the delay in the matters coming to trial. In R. v. Nixon, 2011 SCC 34, at paras. 36-37, the Court confirmed that the common law power had been merged under s. 7 of the Charter, and there was no utility in maintaining a distinct common law regime. [24] At paras. 11-12 of his Reasons for Judgment, the Judicial Justice held that the common law power to grant a judicial stay of proceedings for abuse of process was open to him because, as he put it, "the Charter is not available to the trial court." [25] In coming to that conclusion, the Judicial Justice erred in law. The Charter is not unavailable to the trial court in any of these four cases; it is only unavailable to the Judicial Justice, and that is quite a different matter. [26] A disputant in Traffic Court is not without a remedy if he or she believes that his or her right to a trial within a reasonable time has been violated. In such a case, the disputant has the right to seek a remedy under s. 11(b) of the Charter. In that case, the Judicial Justice is required by s. 31(4) of the Provincial Court Act to refer the matter to a Provincial Court Judge for hearing. The Judicial Justice does not have the option of granting a judicial stay of proceedings based on abuse of process instead. [27] In the case of all four disputants on these two appeals, the Judicial Justice erred in granting judicial stays of proceedings when he lacked the jurisdiction to do so. CONCLUSION [28] Pursuant to s. 21 of the Offence Act, the appeals are allowed, the judicial stays of proceedings are set aside, and the four Violation Tickets are remitted to Provincial Court for trial. The Honourable Mr. Justice W.F. Ehrcke