R. v. Yang, 2017 BCSC 838

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Yang, 2017 BCSC 838 Date: 20170413 Docket: 27064; 27065 Registry: Vancouver Regina v. Lihong Yang Before: The Honourable Madam Justice Donegan (appearing by videoconference) Oral Reasons for Judgment on Costs Counsel for the Crown (Respondent): E.A. Wolfram Appearing on her own behalf (Appellant): L. Yang Appearing on behalf of Telus Communications: J. Leong (February 24, 2017 only) Place and Date of Hearing: Vancouver, B.C. February 24, 2017 Place and Date of Judgment: Vancouver, B.C.

April 13, 2017 INTRODUCTION [ 1 ] THE COURT: The appellant was charged with a criminal offence in early April of 2016. From that time forward, she sought a number of orders in the Provincial Court of British Columbia, pertaining mainly to disclosure issues. Some Orders were granted and others were not. The appellant filed a number of appeals and/or applications in this court seeking to overturn some of those Provincial Court rulings. [ 2 ] On February 24, 2017, the court heard submissions over a good part of the day in respect of a number of these appeals and/or applications.

However, by the end of the day, the appellant withdrew all of her appeals, save for the issue of costs of the proceedings in this court. The appellant seeks her out-of-pocket expenses for the costs of pursuing these appeals. The Crown is opposed to any award of costs in favour of the appellant. BACKGROUND [ 3 ] The appellant is a self-represented litigant. English is not her first language. Following the hearing of this matter, I took some considerable time to carefully review the proceedings in Provincial Court and in this court. Based upon that review, I am satisfied that the Crown's

summary of the background information is accurately set out in paragraphs 1 - 18 of its first written submission, and paragraphs 29 - 33 of its second written submission. I am indebted to counsel for this concise and accurate

summary. I will not recite this

summary verbatim, but will generally follow the chronology as laid out by the Crown respondent. [ 4 ] On April 7, 2016, the appellant was charged with criminal harassment of Li Shi, contrary to s. 264 of the Criminal Code [ Code ]. The allegations spanned the period of November 30, 2015, to March 29, 2016. [ 5 ] On April 25, 2016, prior to her first appearance in Provincial Court, the appellant brought an application in front of a Provincial Court Judge for production of records from Telus Communications (“Telus”).

Without any notice to Telus, the court nevertheless ordered Telus to produce certain records, including text message communications from the appellant's cellular telephone. The Provincial Court Judge ordered these records to be produced within 30 days and the appellant was ordered to pay for any expenses incurred by Telus for doing so. [ 6 ] On May 4, 2016, the appellant made her first appearance in Provincial Court on the substantive charge. The matter was adjourned to May 25, 2016.

At that appearance, an arraignment hearing was scheduled for June 8, 2016. [ 7 ] On June 14, 2016, the appellant brought further disclosure applications before the Provincial Court Judge. She first applied to enforce the Order of April 25, 2016. The appellant was seeking to have the court direct Telus to produce text messages that they no longer had stored. The Provincial Court Judge denied that application. The appellant also applied for further disclosure from the Crown

involving transcription of notes, a statement from the complainant, and copies of the complainant's text messages. The court ordered some of that disclosure. [ 8 ] On July 13, 2016, the appellant filed two appeals in this court. Both appeals were scheduled to be heard on December 16, 2016. [ 9 ] Appeal 27064 is an appeal of the refusal of a Provincial Court Judge to order the disclosure sought by the appellant.

Appeal 27065 is an appeal of the Provincial Court Judge’s dismissal of the appellant's application to order Telus to produce records they no longer held. [ 10 ] On that same date, July 13, 2016, the appellant also filed an application seeking to have the time for the filing of transcripts extended until after September 7, 2016. This application was heard by Mr. Justice Schultes on July 20, 2016. The application was granted and the appellant was given until September 7, 2016, to file transcripts. [ 11 ] The transcript of the proceedings from that day shows that Mr.

Justice Schultes took some considerable time to explain to the appellant that the Orders she was seeking to appeal could not be appealed while the Provincial Court proceedings were ongoing. The court advised the appellant that she must wait for the conclusion of the prosecution in Provincial Court and, if found guilty, she could then exercise her rights of appeal in this court. Mr. Justice Schultes went on to strongly urge the appellant to not order transcripts, telling her that it would be a “pointless waste of money for you”.

He then strongly urged the appellant to save her money, abandon the appeals, and wait for the conclusion of the case against her in Provincial Court. Mr.

Justice Schultes explicitly advised her that if she was found guilty in Provincial Court, she could then launch a proper appeal in this court at that time. [ 12 ] Despite these cautions, the appellant persisted in her appeals. [ 13 ] On July 18, 2016, the appellant filed an amendment to her grounds of appeal in respect of Appeal 27064. [ 14 ] On August 2, 2016, the appellant filed a transcript of the June 14, 2016, Reasons for Judgment of the Provincial Court Judge. [ 15 ] On August 19, 2016, the appellant filed a transcript of the July 20, 2016, proceeding before Mr.

Justice Schultes. [ 16 ] On September 15, 2016, the appellant applied in Provincial Court to have the court enter a stay of proceedings based upon lack of disclosure. That application was dismissed. [ 17 ] On September 16, 2016, the appellant appeared in this court in front of Madam Justice Maisonville on her application to extend the time in which to file transcripts from the Provincial Court proceedings in relation to her two appeals. This extension was granted and, as a result, both appeals were adjourned to December 16, 2016.

Madam Justice Maisonville also ordered an interim appearance on these appeals to be held on November 16, 2016, to confirm that transcripts had been filed and served by the appellant on the respondent Crown. [ 18 ] On September 22, 2016, the appellant applied again to the Provincial Court to have the court enter a stay of proceedings. This application was also dismissed. [ 19 ] On October 13, 2016, the appellant filed two further appeals in this court.

She appealed both the September 15, 2016, Provincial Court ruling denying her application for a stay of proceedings, and the September 22, 2016 Provincial Court ruling denying that same request for relief. The September 15, 2016 ruling appeal was assigned File Number 27064-3 and was scheduled for hearing on February 24, 2017.

The September 22, 2016 ruling appeal was assigned File Number 27064-4, and was also scheduled for hearing on February 24, 2017. [ 20 ] On October 13, 2016, the appellant filed applications in both of her original appeals (Appeal File Numbers 27064 and 27065), seeking to adjourn the hearing of those appeals to February 24, 2017. Those adjournment applications were heard by Madam Justice Maisonville on November 16, 2016.

Those applications were denied. [ 21 ] This left the appellant's two original appeals (27064 and 27065), scheduled for hearing on December 16, 2016, and her two new appeals (27064-3 and 27064-4), scheduled for hearing on February 24, 2017. [ 22 ] On November 18, 2016, the appellant filed another Notice of Appeal. This document purported to amend the original Notice of Appeals.

The appellant also filed copies of various receipts for expenses incurred for transcripts and other items. [ 23 ] On December 16, 2016, the two appeals (27064 and 27065), were unable to be heard as there was insufficient court time in the morning and the appellant was not available in the afternoon. Those appeals were adjourned to February 24, 2017, to be heard at the same time as the appeals 27064-3 and 27064-4. [ 24 ] On January 23, 2017, the appellant filed another application to “reverse” the Orders made in Provincial Court on June 14, September 15, and September 22, 2016.

The appellant also indicated that she was seeking a "refund of fees". The documents attached to her application indicate those "fees" as the costs of pursuing these appeals, including the costs of transcripts, printing costs, and postal costs. [ 25 ] On that same date, January 23, 2017, the appellant filed a second application. This application was assigned number 27065-4, and was an application as between herself and Regina and Telus Communications Company.

In this application, the appellant was again seeking to set aside the June 14, 2016 Provincial Court decision where the court refused to order Telus to provide information they no longer held. The appellant also sought to have this court order Telus to make that disclosure and to excuse her from paying the fee charged by Telus, as ordered by the Provincial Court Judge on April 25, 2016. The appellant also sought to refund the "fee" which appears to relate to the appellant's costs of pursuing the appeal. Both of these further applications were also set for hearing on February 24, 2017.

[26] On February 22, 2017, in Provincial Court, the Crown directed a stay of proceedings on the substantive charge. As a result, thesubstantive charge underlying these appeals is no longer proceeding. [27] As best the court can tell, the appellant had set for hearing on February 24, 2017, four appeals and two applications. They allinvolved the appellant's disagreement with various orders made by the Provincial Court prior to her trial. POSITIONS OF THE PARTIES [28] The appellant is unhappy the substantive charge was stayed rather than withdrawn by the Crown.

However, she doesunderstand that the Crown's decision in this regard is a matter of prosecutorial discretion with which this court may not interfere. Shequite rightly seeks no relief from this court in respect of that decision. [29] As a result of the stay of proceedings of the substantive charge, there is no longer any dispute between the parties.

Theappellant, through the course of submissions, made it clear that she recognizes her various appeals and applications are, therefore, moot. [30] As I took the appellant through each of her appeals and applications at the hearing, she confirmed her abandonment of them. [31] Initially, the appellant wished to pursue her appeal in respect to the order of the Provincial Court Judge of April 25, 2016,ordering her to pay the reasonable costs of Telus in producing the records they had to produce.

However, when counsel for Telus advisedthe appellant during the hearing that Telus would waive the modest fee that had been charged, the appellant withdrew this appeal aswell. Therefore, the only matter left for this court to resolve is the appellant's application for costs of these appeals and applications. [32] I should add the status of one appeal remains slightly unclear to me. In the event the appellant wished to pursue it, I will addressit briefly.

In the event the appellant did not expressly abandon her appeal with respect to the Provincial Court Order denying herapplication to have text messages produced and the Crown’s disclosure translated, I would dismiss that appeal as moot. There is nolonger a live controversy between the parties. [33] This leaves the issue of costs. The appellant seeks an award of all of her out-of-pocket expenses with respect to proceedings inthis court.

As I understand it, these costs relate to her prosecution of the appeals, including various fees paid for transcripts, postalcharges, printing charges, and court fees. [34] The appellant provided no case authorities or law in support of her position. She submits that the conduct of the prosecutionmerits sanction in the form of an award of costs against the Crown, because she says the Crown did not perform its disclosure obligationsin the court below “properly”.

She emphasizes that the Crown was "always saying" they were not in possession of the information sherequested and frequently provided other reasons for failing to accede to her various disclosure requests. [35] The respondent submits there is nothing remarkable about the circumstances of this case, nor has there been any oppressive orimproper conduct by the Crown. It emphasizes that, to the contrary, the Crown has taken great steps to assist the appellant.

It says that ithas also tried, from the outset, to impress upon the appellant that her attempts at these interlocutory appeals were ill advised and bound tofail. [36] THE APPELLANT: Excuse me, can I say something? [37] THE COURT: In this regard -- I am sorry, pardon me? [38] THE APPELLANT: Can I -- can I say something? [39] THE COURT: No, I am sorry, I am reading my Reasons for Judgment right now, so you are not to interrupt me.

All right, Inotice that you had your back turned to me throughout most of these reasons for judgment, and I am assuming that is because you aretrying to listen to the interpreter, but no, you are not permitted to interrupt me at this point. I will probably be another 20 minutes readingthese reasons, it is taking me a bit longer because of the

interpretation. I will carry on now. [40] The Crown also highlights that it brought this matter to the court's attention several months ago. Indeed, as I have outlined, Mr.Justice Schultes strongly urged the appellant to abandon these appeals, to complete matters in Provincial Court, and then, if convicted, topursue her appeals in this court in the proper forum. In support of its position, the Crown provided one authority for my consideration -R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500. THE LAW [41]

Section 826 of the Code allows an appellate court in a

summary conviction appeal to award costs that it considers “just andreasonable”. [42] The British Columbia Court of Appeal has had opportunity in recent years to discuss the issue of costs in this context in twodecisions: R. v. Dhillon, 2014 BCCA 480 and R. v. Melrose, 2016 BCCA 292. [43] In Dhillon, years after the accused had finished serving his sentences for sexual assault and assault, previously undisclosedforensic reports were discovered. [44] Mr. Interpreter, can I ask, just from my vantage point here, I am not certain that the appellant is listening to you. Is she? I cannottell. Her back is turned to me and it appears to be turned away from you.

[45] THE INTERPRETER: Yes, My Lady, she is -- right now, she's just sitting with her back towards the [indiscernible/overlappingspeakers] -- [46] THE COURT: All right. Mrs. Yang, are you listening to the proceedings? [47] THE APPELLANT (INTERPRETER): I am. [48] THE COURT: All right, I just wanted to ensure that she was. I am not certain why her back is turned, but I am going to carryon. [49] In Dhillon, years after the accused had finished serving his sentences for sexual assault and assault convictions, previouslyundisclosed forensic reports were discovered.

The reports identified two male DNA profiles on exhibits seized from the complainant,neither of which matched the accused. On appeal, the Crown agreed the fresh evidence ought to be admitted and that the convictionought to be set aside. The remaining issues concerned the appropriate remedy and whether costs should be ordered against the Crown. [50] Finding the Crown's non-disclosure caused the accused irreparable prejudice at his trial and considering other factors, the courtentered a judicial stay of proceedings. The Court declined to award costs against the Crown.

In declining to award costs against theCrown, MacKenzie J.A. held at para. 56: . . . The “prevailing convention” of criminal practice is that a criminal defendant, whether successful or unsuccessful, is generally notentitled to costs: R. v. M.(C.A.) . . . at para. 97. Costs against the Crown will only be awarded in exceptional circumstances where theapplicant can show at minimum “a marked and unacceptable departure from the reasonable standards expected of the prosecution”.

TheCrown is “not held to a standard of perfection, and costs awards will not flow from every failure to disclose in a timely fashion”. . .While not without a compensatory element, costs awards in the disclosure context are intended as a disciplinary measure to discourageflagrant and unjustified incidents of non-disclosure. [51] The Court did not award costs against the Crown in Dhillon, finding at para. 62: While the case demonstrates a substantial lack of attention by the Crown, there is no evidence of bad faith or malice.

I conclude the non-disclosure in the circumstances did not amount to a marked and unacceptable departure from the reasonable standards expected of theCrown. [52] More recently in Melrose, the Court discussed M.(C.A.) and Dhillon and other jurisprudence in this area at paras. 30-36: [30] Costs are seldom awarded in criminal cases: R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500 at para. 97. However,courts have awarded costs on occasion in cases involving

(1) Crown misconduct, or (2) exceptional circumstances, such as test cases: R.v. Taylor, 2007 BCCA 250. [31] In R. v. 974649 Ontario Inc., 2001 SCC 81, the Supreme Court of Canada considered the availability of costs under the OntarioProvincial Offences Act, R.S.O. 1990, c. P.33, to a defendant whose Charter rights were infringed. The Court set out the standard forwhen costs should be awarded: [87] Neither is there any indication that the Crown will be subjected to such awards unfairly or arbitrarily.

Crown counsel is not heldto a standard of perfection, and costs awards will not flow from every failure to disclose in a timely fashion. Rather, the developingjurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from thereasonable standards expected of the prosecution. I fail to see how the provision of an expedient remedy in such cases, from a trial courtthat is not only competent but also ideally situated to make such an assessment, risks disrupting the existing system of justice. [Emphasis added.] [32] The Ontario Court of Appeal in R. v.

Fercan Developments Inc., 2016 ONCA 269, held the “marked and unacceptable departurefrom the reasonable standards expected of the prosecution” standard applies whether or not the case involves a Charter breach: [70] The application judge held that costs are appropriate where there has been a “marked and unacceptable departure from thereasonable standards expected of the prosecution.” The Crown argues that this test applies when awarding costs against the Crown unders. 24(1) of the Charter only.

The correct standard to apply, it says, is narrower and is conduct that is reprehensible, a serious affront tothe authority of the court, or serious interference with the administration of justice. [71] I disagree. In my opinion, the application judge identified the correct standard: in the context of a forfeiture application under theCDSA, a court can award costs when there has been a marked and unacceptable departure from the reasonable standards expected of theprosecution. I come to this conclusion for three reasons.

First, contrary to the Crown's position before us, that standard accuratelycaptures the degree of misconduct required outside the Charter context. Second, given the interests at play in a CDSA forfeitureapplication, the marked and unacceptable departure standard is an appropriate threshold. Third, the standard gives effect to both theobjectives behind restricting costs in criminal proceedings and the rationale employed when awarding them. (

a) The standard of misconduct for cost awards generally [72] I acknowledge that courts, when making brief references to the requisite Crown misconduct outside the Charter context, havecharacterized the threshold in a few different ways. For example, in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500(S.C.C.), at para. 97, the court described the necessary Crown misconduct as “oppressive or improper” and the circumstances required as“remarkable”. In Québec (Procureur général) c. Cronier (1981), (QC CA), 63 C.C.C. (2d) 437 (C.A.

Que.) at pp. 449and 451, the court described the necessary misconduct as “reprehensible”. [73] However, contrary to the Crown’s submissions, the courts rendering these decisions were not providing an exhaustive or

definitive explanation of the requisite degree of misconduct. In my opinion, the jurisprudence, viewed as a whole, does not support theCrown’s position that a standard higher than marked and unacceptable departure applies outside the Charter context. [Emphasis added.] [33] The recent case of R. v. Dhillon, 2014 BCCA 480, is illustrative of the application of the “marked and unacceptable departurefrom the reasonable standards expected of the prosecution” standard. There, the appellant was convicted of sexual assault and assault,served his four-year jail sentence, and was then deported to India.

After his deportation, it was discovered that important DNA evidencethat existed at the time of trial was never disclosed to the appellant. [34] The Crown conceded that the appellant’s convictions should be set aside as they constituted a “miscarriage of justice” and thisCourt so ordered. However, despite the failure to disclose critical evidence, costs were not awarded.

MacKenzie J.A., speaking for theCourt, applied the “marked and unacceptable departure” standard to the facts before her: [62] I find it unnecessary in this case to address whether the Crown, as a separate entity from the police, bears responsibility for whatthe Crown submits was the investigators’ failure to follow up on the Groves Report. Even assuming the Crown is so responsible, basedon 974649 Ontario Inc., I do not consider this an appropriate case to award costs against the Crown. While the case demonstrates asubstantial lack of attention by the Crown, there is no evidence of bad faith or malice.

I conclude the non-disclosure in the circumstancesdid not amount to a marked and unacceptable departure from the reasonable standards expected of the Crown. This case does not fallwithin one of those exceptional circumstances that warrant an award of costs against the Crown. [Emphasis added.] [35] In R. v. Singh, 2016 ONCA 108, the Ontario Court of Appeal recently explicated the phrase “marked and unacceptabledeparture”: [33] The phrase “marked departure” is used in many contexts to indicate a deviation from a norm that goes beyond mere negligence:see, for example, failure to provide necessities of life in R. v.

Cox, 2011 ONCA 58, 271 OAC 77, at paras. 29-31; and careless use of afirearm in R. v. Gosset, (SCC), [1993] 3 S.C.R. 76, at pp. 93-94. In R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, thecourt held, at paras. 33-36, that a mere departure from the standard expected of a reasonably prudent person – sufficient for civilnegligence – is not sufficient for criminal negligence and does not amount to a “marked” departure from the norm: see also R. v.

Roy,2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 36-38. [34] The Supreme Court of Canada has also addressed the concept of a “marked and substantial departure” in the context of criminalnegligence causing death. The court held that criminal negligence requires a marked and substantial departure from the conduct of areasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk or, alternatively,gave no thought to that risk: R. v.

A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 61. [35] While these examples occur in the context of criminal offences, they give background and context to the use of the phrase“marked and unacceptable departure” in 974649 Ontario Inc. . . . [38] . . . [I]nadvertent error is not enough to justify an award of costs for breach of the disclosure obligation and costs awards for suchbreaches will not be “routinely ordered in favour of accused persons who establish Charter violations”: Ciarniello, at para. 36.

A costsaward against the Crown will not be an “appropriate and just remedy” under s. 24(1) of the Charter absent a finding that the Crown’sconduct demonstrated a “marked and unacceptable departure from the reasonable standards expected of the prosecution”, or somethingthat is “rare” or “unique” that "must at least result in something akin to an extreme hardship on the defendant": Ciarniello, at paras31-36; see also Tiffin, at paras. 93-101. [36] In my view, the test of a marked and unacceptable departure from the reasonable standards expected of the prosecution applies inthis case and not the “egregious misconduct” higher standard advocated by the Crown.

In any event, assuming that the issue of delaygave rise to separate Charter breaches, and that matter is properly before us, the facts of this case do not rise to a level that could warranta costs award against the Crown. ANALYSIS [53] I decline to exercise my discretion to award costs against the Crown in this case. There is nothing remarkable about thecircumstances of this case.

There is nothing in the conduct of the prosecution that can be said to merit sanctions in the form of an awardof costs against it. [54] The appellant's complaints about the Crown's conduct in the court below have not been shown to be a marked and unacceptabledeparture from the reasonable standards expected of the prosecution. The Crown has not behaved oppressively, nor has it engaged in anyimproper conduct.

This case does not fall anywhere near one of those exceptional circumstances that might warrant an award of costsagainst the Crown. [55] Had the substantive charge not been stayed by the Crown in the court below, rendering the appellant's appeals and applicationsin this court moot, her appeals and applications in this court would have been dismissed. The appellant was advised that this would be theoutcome by another judge of this court months ago, yet she persisted and incurred unnecessary costs.

These unnecessary costs cannot lieat the feet of the Crown. [56] I would like to add that I find the Crown has conducted itself in these proceedings in an exemplary manner. The Crown hasassisted the appellant in organizing her various scattered and difficult-to-decipher pleadings. Crown counsel even went so far as to

formulate a very unique argument to assist the appellant, with respect to the relief the appellant sought from the Order of the Provincial Court Judge requiring her to pay Telus its reasonable costs. [ 57 ] Had Telus not taken the generous step of waiving the requirement for the appellant to pay those fees, I may have found the Crown's unique argument quite persuasive and fashioned a remedy for the appellant.

In any event, had the appellant not abandoned her other various appeals and applications, I would have dismissed them all. [ 58 ] In the result, all of the appellant's appeals and/or applications, if not expressly abandoned, are dismissed. The appellant's application for costs is also dismissed. [ 59 ] That concludes these reasons. I wish to thank you all for your time, and you, Mr. Interpreter, today especially, for the last hour and a half of difficult

interpretation. [ 60 ] THE INTERPRETER: Thank you. [ 61 ] MS. WOLFRAM: My Lady -- [ 62 ] THE APPELLANT (INTERPRETER): My Lady, can I say something? [ 63 ] THE COURT: Yes. [ 64 ] MS. WOLFRAM: Stand up when you address the court. [ 65 ] THE APPELLANT (INTERPRETER): First of all, the matters you have just laid out are erroneous. [ 66 ] THE COURT: I am sorry, I cannot hear you, sir. [ 67 ] THE APPELLANT (INTERPRETER): The matters you just laid out are incorrect. Sorry, My Lady, the facts you just laid out were incorrect.

They are -- the fact that you pointed out that I didn't give you any authority, I could have, it's just that I didn't know that you would need -- need one. [ 68 ] THE COURT: Well, Mrs. Yang, I can tell you that I did my own research. I am not critical of you for not providing any authority. [ 69 ] THE APPELLANT (INTERPRETER): But you did say that I did not provide authority. But I do know there are authorities or cases, precedents that judges made judgment in favour of costs against the Crown and some even covered lawyers' fees because the Crown failed to disclose documents. [ 70 ] THE COURT: All right.

Thank you. I have given my decision now. Ms. Wolfram, you stood for a moment, is there something further from the Crown? [ 71 ] MS. WOLFRAM: Just wondering, My Lady, in terms of Orders, whether it would be sufficient if the Crown drafted two Orders, one for each of the file numbers, indicating that the appeals and applications, if they were not explicitly abandoned, are dismissed and that the application for costs on both those files is dismissed. [ 72 ] THE COURT: Yes. [ 73 ] MS. WOLFRAM: Thank you, My Lady. “S.A. Donegan J.” DONEGAN J.