R. v. Koopman, 2022 BCPC 183

Citation: R. v. Koopman 2022 BCPC 183 Date: 20220812 File No: AJ06525763-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN KOOPMAN ORAL RULING RE APPLICATION TO QUASH VIOLATION TICKET OF THE HONOURABLE JUDGE A. ORMISTON Counsel for the Crown: D.J. Williams, M.B. Rankin Counsel for the Defendant: P.E. Jaffe J. Wells, Articled Student Place of Hearing: Chilliwack , B.C. Date of Hearing: August 11, 2022 Date of Judgment: August 12, 2022

[1] THE COURT: These are oral reasons on a motion to quash a Violation Ticket that was argued extensively by counsel yesterday.I reserve the right to insert case citations and make any other stylistic edits should a transcript be ordered, without varying the substanceof this decision. [2] The defendant, Mr. Koopman, brings an application to quash a Violation Ticket, that is AJ06525763, pursuant to s. 100(1) of theOffence Act. The defence submits the ticket is a nullity and as such cannot be amended.

Crown submits the ticket requires noamendment and contains sufficient information to meet the requirements of the Offence Act. The ticket at issue alleges that Mr.Koopman, as an organizer/host, violated the CRMA by contravening the Gathering and Events Order on December 6, 2020 at 0930hours. The

Section of the CRMA is listed as s. 2(2). The amount of the fine is recorded as $2,300. [3] I accept the Crown's submission that the COVID-19 Related Measures Act [referred to as CRMA in these Reasons] incorporatesthe ministerial order M416 by virtue of s. 3.

Section 2(2) of M416 states that: Any contravention of the Gathering and Events Order is a contravention of the Ministerial Order. [4] Because there is no offence provision in the CRMA, a contravention of it is an offence by virtue of s. 5 of the Offence Act.Regulations to the Offence Act, namely the Offence Act Ticket Administration and Fines Regulation [referred to in these Reasons asVTAF] set out the amount of the fine for contraventions of the CRMA. The

Schedule to those Regulations makes clear the amount forthis alleged offence is $2,300. [5] The Crown concedes that there is incorrect information on the ticket, that is, s. 2(2) of the CRMA does not exist. Defencesubmits that the ticket is incomprehensible and does not meet the requirements under the Offence Act, because: (

i) it does not include acorrect charging section; and (ii) it does not describe how the Gathering and Offence Order was alleged to have been contravened.Crown takes the position that the ticket does describe a specific offence and that the reference to s. 2(2) is surplus information that couldessentially be excised from the ticket without detracting from a proper understanding of the offence the accused is alleged to havecommitted. [6] A motion to quash should be granted where a Violation Ticket is a nullity. A charging document is not a nullity if it gives fairnotice of the offence to the accused.

Jurisprudence over the past several decades has moved away from unjust acquittals based ontechnicalities towards a focus on trial fairness and preventing prejudice to the accused. See the higher court authorities cited in R. v.Joubert, 2019 BCPC 366, specifically R. v. Bidawi, 2018 ONCA 698 and Regina v. Joy Oil Co., (ON CA), [1959] 123C.C.C. 370 (O.N.C.A.). [7] The issue in the present case is whether a failure to comply with s. 14 and 96 of the Offence Act renders this ticket a nullity, thatis, does the ticket provide a description of the offence? I have been referred to R. v.

Moore, (S.C.C.), [1988] 1 S.C.R.1097, a Supreme Court of Canada case, and at paras. 58 and 59 the Court finds it would be a reversible error to quash an Informationwhere it could be amended without causing irreparable prejudice to the accused. An Information will only be a nullity where it fails topass the basic threshold of giving the accused fair notice of the offence charged. [8] Our B.C. Supreme Court in City of Vancouver v.

Wiseberg et al., 2005 BCSC 1377 at para. 18 identifies the "golden rule" of s.96 in the Offence Act as a determination of whether the accused is reasonably informed of the transaction against him, thus allowing afull defence and a fair trial. [9] A simple way to meet this requirement is by citing the

section of

an Act that describes the offence in the charging document.That was imperfectly done on Mr. Koopman's ticket. However, I have not been presented with authority for the proposition that citingthe correct

section is strictly required to prevent an Information from being nullified. To the contrary, in the R. v. Bidawi case (followedin R. v. Joubert) the Court finds that a charging

section can be amended by a judge in certain circumstances. [10] Mr. Koopman's ticket describes the alleged offence as a contravention of the Gathering and Events Order contrary to s. 2(2) ofthe CRMA. This is not entirely correct. It is more accurate to say a contravention of the Gathering and Events Order is a contravention ofthe CRMA by virtue of s. 3 of the CRMA and s. 2(2) of the Ministerial Order M416, which the CRMA incorporates as a provision. Whiles. 2(2) may be more accurately described as the relevant

Section of the Ministerial Order as opposed to a

section of the CRMA, it is still aprovision of the CRMA by virtue of s.3 of that Act.

Furthermore, Ministerial Order M416 expressly defines the Gathering and EventsOrder as "the order entitled Gathering and Events made by the provincial health officer on September 18, 2020, as amended or replacedfrom time to time." [11] The ticket correctly draws the accused's attention to the fact that the CRMA is the umbrella Act that is ultimately contravened bya violation of the Gathering and Events Order, albeit not under s. 2(2) of the CRMA but under s. 2(2) of Ministerial Order M416otherwise known as the Food and Liquor Premises, Gatherings and Events (COVID-19) Order No. 2.

All Sections of Ministerial OrderM416 are provisions of the CRMA. The defect is that the ticket lists s. 2(2) as the operative section, but does not clearly relate thatsection to the Ministerial Order, which is incorporated into the CRMA. [12] Several pieces of legislation are engaged in making a contravention of the Gathering and Events Order an offence, howeverthere is no doubt that the CRMA is the proper Act to be cited on the ticket. This is set out in s. 3 of the applicable Regulations (the VTAF)and I will read the relevant excerpt here.

Under the title "Description of Offence" s. 3 of the VTAF: For the purposes of sections 14 and 132 of the Offence Act, every word and phrase set out in Column 2 of

Schedule 2,

Schedule 3 orSchedule 4 to this regulation is authorized to be used on a violation ticket to describe the offence contravening the enactment referred toin Column 1 opposite that word or phrase. [13] In looking at

Schedule 2, the CRMA appears as the legislation in Column 1 and "every provision of the CRMA other than thoseenumerated" is the corresponding description.

[ 14 ] It is true that the CRMA makes contraventions of many different orders an offence. However, Mr. Koopman's ticket specifies that his offence is a contravention of the Gathering and Events Order . This order is specifically identified in Ministerial Order M416. The Gathering and Events Order incorporated in the CRMA is not organized by consecutive

section numbers but it does have alphabetical sections.

Section A only describes, and in fact the entire Gathering and Events Order only describes, three ways in which the order can be violated, that is: (

i) by permitting a place to be used for an event; (ii) by organizing or hosting an event; and (iii) by being present at an event. All of these provisions contain the exception "as provided for in this Order". [ 15 ] In my view, the Violation Ticket at issue also specifies the nature of the contravention, because the officer has indicated that the accused was an "organizer/host". It is fair to say that the way the offence is described in this ticket is not ideal.

It is relevant to consider in assessing the adequacy of this description that this is a ticket issued pursuant to the regulations of the Offence Act on a form that is meant to describe the essential details of the charge. As the Court in City of Vancouver v. Wiseberg et al notes, the right to make answer and defence must be considered within the context of a regulatory or

summary conviction offence. [ 16 ] The essential question is whether the accused has been treated fairly in the context of the case, not whether the most favourable procedure to the defendant has been adopted. In my view, the required description has been accomplished on this Violation Ticket, albeit using tick boxes and keywords as opposed to full sentences as one might see in a Criminal Code Information. [ 17 ] I also find that there is no risk of injustice or discernible prejudice to the accused that arises in proceeding on this Violation Ticket.

As I have noted, considering prejudice to the accused is the thread that runs through the relevant jurisprudence. I have no difficulty finding that Mr. Koopman is prepared for this file, based on an alleged contravention of the Gathering and Events Order related to gathering for in-person worship. [ 18 ] This particular ticket is one of many grouped together due to the similarity of constitutional challenges the defendants intend to raise. Until the last appearance, the understanding of counsel was that Charter litigation would proceed in some omnibus fashion given the similarity in issues.

Notice of the challenge has been filed on behalf of this particular accused and it is clear from the materials filed by both counsel that the alleged offences relate to worship services falling within the meaning of events under the Gathering and Events Order . [ 19 ] At the heart of the defence position in the Charter materials is the contention that the PHO’s prohibition of in-person worship services across British Columbia is an egregious interference with the freedom of conscience and religion as protected by the Charter .

Contravening the Gathering and Events Order is exactly what has been alleged clearly, in my view, in this ticket. The ticket on its face further particularizes the role of this alleged accused as an organizer or host. [ 20 ] At para. 20 the Court in City of Vancouver v. Wiseberg et al writes: Relatively meagre detail will be sufficient provided that it lifts the offence from the general to the particular ... And later the Court writes: What constitutes reasonable or adequate information depends on the [nature of the] circumstances of each case, including the nature and legal character of the offence charged ...

At para. 23 the Court goes on to say: The court will not look only at the face or wording of the information but at all the other material in the possession of the accused, including disclosure ... [ 21 ] The collective information recorded on the ticket and the understanding that has been demonstrated about the nature of the alleged violation satisfies me that this ticket should not be quashed. [ 22 ] I have also considered whether an amendment is required in order to remedy defects in the ticket. I am satisfied that this is legally possible under the authority the Crown has advanced.

The ticket could make clear that s. 2(2) of Ministerial Order M416 is a provision of the CRMA . However, in my view further specification is not required for a fair hearing of the charge. The motion to quash is dismissed. (RULING RE MOTION CONCLUDED)