R. v. Island-Sea Marine Ltd. and Higgs Date:, 2010 BCPC 355

Citation: R. v. Island-Sea Marine Ltd. and Higgs Date: 20101230 2010 BCPC 0355 File No: 14114-1 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ISLAND-SEA MARINE LTD. AND KENNETH W. HIGGS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Crown (did not appear): A.R.M. Johnston Counsel for the Accused (did not appear): W.E. Whyard Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: September 22nd, 2010 Date of Judgment: December 30, 2010 [ 1 ] THE COURT : On July 27th, 2010, the applicant, Ken Higgs, filed an application in this Court seeking a judicial stay of proceedings in the case of R. v. Island-Sea Marine Ltd. and Kenneth W.

Higgs which is a prosecution under the Canada Shipping Act, 2001 , hereinafter referred to as "the Act". [ 2 ] The Information setting out some 11 different charges was sworn on June 8th, 2009, a little over one year from the date of the alleged infractions, under various sections of the Act, namely, s. 82(2) as to seven counts, s. 106(2) one count, s. 107 one count, s. 109(1) one count, and finally s. 213 of the Act all of which are said to be offences. [ 3 ] The reasons upon which the application is based is set out in the application as follows: The defendants have completed their obligations under an assurance made pursuant to s. 229 of the Canada Shipping Act , 2001 .

Section 233 of that Act precludes laying of charges after proceeding as a violation and it would violate the fundamental principles of justice that underlie the community sense of fair play and decency to proceed with these charges. [ 4 ] The matter came on for a hearing in front of me in Powell River on September 22nd, 2010. Mr. Whyard appeared for the applicant and Mr. Johnston for the Crown. That afternoon, no viva voce evidence was called, but I did receive certain documents to review as follows: 1. An affidavit sworn by Mr. Higgs dated July 23rd, 2010 (five pages). 2.

Copy of a fax from George Karras, a Captain and Senior Marine Safety Inspector to Mr. Johnston dated August 27th, 2008 with extracts from a Compliance and Enforcement Manual and attached a one page fax from Mr. Karras to Mr. Johnston dated August 26th, 2010. 3. A letter from Staff Sergeant Gordon, a non-commissioned RCMP officer in charge to Mr. Karras dated May 27th, 2008. 4. A two-page written communication from Mr. Higgs to Mr. Jim Lawson, Regional Director General, Transport Canada Marine, Vancouver, B.C.

5. A five-page letter from Mr. Higgs for Island-Sea Marine Ltd. to Jim Lawson, Regional Director General, Transport Canada Marine June 29th, 2009. [ 5 ] In addition, I have been given a copy of portions of the Act and the Administrative Monetary Penalties Regulations dated April 3rd, 2008 made under the above Act as found in the Canada Gazette . [ 6 ] During the hearing on September 22nd, 2010, Mr. Johnston for the Crown said I could, by virtue of an agreement he had made with Mr.

Whyard, rely on these various letters and documents for the truth of their contents and that was why the Crown had not prepared a sworn affidavit responding to that filed by Mr. Higgs. [ 7 ] Lastly, at my request on September 22nd, 2010, I have received written submissions from both counsel in addition to their oral submissions made September 22nd in Court. [ 8 ] The facts of this matter are not for the most

part in dispute. [ 9 ] On May 25th, 2008, Mr. Higgs was on board a 118 foot tugboat called "Island Commander" (hereinafter called "the tug") pulling a log boom from Teakerne Arm in Desolation Sound to the North Arm of the Fraser River. Just off Lund, B.C., he was boarded by two RCMP officers at about 3:00 in the afternoon, one being Constable Hepner. [ 10 ] Mr. Higgs was then I think acting as Master or Captain or at least the tug's operator.

He admits in his affidavit he was then short two crew members on the tug. [ 11 ] One RCMP officer reviewed the vessel's Canada Shipping Inspection Certificate, noting that it had expired April 4th, 2008. The RCMP also asked for certificates of the crew on board. The RCMP advised Mr. Higgs that Transport Canada Marine ("TCM") would be advised of this inspection. [ 12 ] On May 27th, Staff Sergeant Gordon wrote to Captain George Karras, the Senior Marine Safety Inspector at Transport Canada in Nanaimo.

This letter sets out facts that the RCMP felt were deficiencies under the Canada Shipping Act , 2001 and concludes, in part: Hepner will be forwarding charges in the matter to Crown counsel under the Canada Shipping Act dated 2001,

Part 3, ss. 82(1) and 82(2) as well as

Part 4, s. 107. [ 13 ] Mr. Whyard in his submission says TCM was aware of the prospect of these outstanding charges when they met twice with Mr. Higgs on May 29th, 2008 as discussed below. Mr. Johnston agrees this was so. [ 14 ] Mr.

Higgs says on May 28th when his tug had arrived in the North Arm of the Fraser River, he called Captain Tewari of the Vancouver office of Transport Canada Marine and requested a meeting which was agreed to and set for the next day at 9:00 o'clock a.m. [ 15 ] Higgs deposes that this morning, May 29th, he, his mate, and one Ted Neale who was on board the tug on May 25th when the police boarded her, all met Mr. Tewari and his Senior Deputy Inspector, Mr. Puri at the office on the seventh floor. [ 16 ] Higgs says during this meeting, Mr.

Tewari made a telephone call to John Yeung, who was head of Personal Certifications and I believe also with TCM. [ 17 ] A second meeting was convened this same morning on the fourth floor of the same TCM offices. Mr. Tewari, Mr. Yeung and two other TCM officials attended, as did Mr. Higgs, I assume Mr. Neale and the mate, all said to be representatives of Island-Sea Marine Ltd. [ 18 ] Mr. Higgs then deposes in paras. 9 to 11 of his affidavit as follows: 9. During the second meeting, discussions took place regarding the two alternatives available to TCM. Mr. Tewari relying on same from the mouth of Mr.

John Yeung's Executive in control of penalties at TCM informed me that they either proceeded with charges under the Canada Shipping Act , 2001 or using the new provisions under the Administrative Monetary Penalties Regulations of the Canada Shipping Act, 2001 , they could offer a no charges condition. 10. I was given a choice. I was told that under the latter option, no charges for any of the infractions, all of which had been tabled and stated at the meeting would be laid if I pledged on behalf of myself and my company not to contravene the Canada Shipping Act , 2001 in the future.

I was told that I would have to sign paperwork stating such and pledging that at no future time would I commit offences as to certifications of the Island Commander or its crew. I chose this option. I signed paperwork where asked and was told that neither myself nor the Island Commander would attend at sea until all certifications became renewed and valid. 11. To honour my commitment, I spent the next four months doing certificate upgrades. I took four courses and expended much money and time. In addition, I had contractors do many tasks deemed necessary by Mr.

Puri on the Island Commander costing several tens of thousands of dollars due to the new regulations under the Canada Shipping Act , 2001 which was brought into effect after our last certificate for the vessel had been issued.

Although the TCM officials initially indicated I would have to post a bond until all certificates were approved, this requirement was later dropped as they noted so much sincere effort and positive results on my part. [ 19 ] Both during oral argument on September 22nd, 2010 and in its written brief, Crown asserts that no paperwork has been found and says that no "assurance of compliance" as referred to in s. 229(1) of the Act was ever entered into. [ 20 ] Crown in its written argument also asserts that in the second meeting on May 29th, 2008, Mr. Higgs was given no choice.

Certainly no paperwork resembling an assurance of compliance has been appended to Mr. Higgs' affidavit as an exhibit. [ 21 ] In argument, Mr. Whyard said that the defendants had used Freedom of Information legislation to get a lot of relevant information from TCM and while he said they were looking for an assurance of compliance, they never got one. He seemed to concede

the reason was that TCM never issued one in the first place. [ 22 ] In the letter from Mr. Higgs to Jim Lawson June 29th, 2009 which precedes Mr. Higgs' affidavit, he says in the first meeting on May 29th, 2008 much was said about the known named infractions or deficiencies and as well "penalties were mentioned as was the new CSA 2001" (which I take to be the Canada Shipping Act , 2001 ) invocation in July 2007 as were the "penalties for infractions and deficiencies". He says penalties were also discussed in the second meeting. [ 23 ] Importantly, Mr.

Higgs in this letter makes no reference (as he does in his later affidavit) to signing any paperwork in this meeting. At p. 3 of this letter, there is a statement that: For Mr. Puri I had to sign papers agreeing to never proceed with deficiencies which he brought to the ship during late June to early July 2008. [ 24 ] It is unclear what these papers might be. Again, they are not appended to Mr. Higgs' affidavit. Also, there is no statement in this letter or in his affidavit that he ever received a copy of any of these papers or paperwork.

It would appear to me that these might under all circumstances be important business papers and it seems odd that Mr. Higgs would not have requested a copy of same at the meeting or immediately after signing them. [ 25 ] Mr. Higgs deposes in his affidavit that he spent the next four months (which would be June through to September 2008) doing certificate upgrades including taking courses. As well, he had contractors do the necessary tasks required by Mr. Puri on the tug costing several tens of thousands of dollars.

He says that TCM originally wanted him to post a bond until all certificates were approved however this requirement was later dropped. His June 29th, 2009 letter states that by late July 2008 all matters on the tug were completed. [ 26 ] In his affidavit para. 14 and in his June 29th, 2009 letter as well he states Mr. Puri in late July 2008 asked him to contact Mr. Tewari of TCM who in turn asked him to do a letter to Mr. Lawson to apologize for all his infractions which he did. It was to state he would not permit repetitions. He says he personally delivered this letter addressed to Lawson to Mr.

Tewari in his office in Mr. Puri's presence. This letter was filed at the hearing before me. It is dated July 29th, 2008 and says in part: I am addressing to you at the request of your Mr. Aloak Tewari with thanks for the consideration stated therein in his address to me. As such I, Kenneth Higgs, am sending this letter to Mr.

James Lawson, Regional Director, Marine Safety, Vancouver, B.C. acknowledging the violations and accepting full responsibility for compliance with the CSA01 in future. [ 27 ] The same letter goes on to state at p. 1: To which I also respond with: I accept the matters mentioned did not comply with the rules under CSA 2001 but remedies therefrom available under April 2008 TC-M mandated options served upon me. [ 28 ] It is unclear to me what the last reference in this sentence means.

The letter goes on to deal with some historical issues concerning the provenance and record of the tug and ends at p. 2: Regardless you have my word above no matter the stress it induces upon our operation. Thanks again for your considerations given above. [ 29 ] In early August 2008, Mr. Higgs called Mr. Puri to arrange for a final inspection of the tug. It is not clear this was ever done. [ 30 ] The Information sworn June 2009 was, according to Mr.

Higgs, who called it served "documents" over one year later, seemingly after August 2008 (he gives no date) notifying him of a court appearance contrary to what he was told May 29th, 2008. He says this in para. 16 and 17 of his above affidavit: 16. Over one year later I was served with documents regarding the infractions and notifying me of a court appearance. This is I say contrary to what I was told at the May 29th, 2008 meeting with TCM officials as previously deposed in my affidavit.

On the basis of my understanding following that meeting I did all that was required of me to comply with the requests and inspections at considerable expense. The Island Commander was laid up for several months and lost revenues. 17. On the basis of my understanding at the May 29th, 2008 meeting I did all that was required of me to comply with requests and inspections. To do so the Island Commander was laid up for several months and lost revenues. I make this affidavit of my application to have all the charges dismissed and not for any improper purpose. [ 31 ] In

summary, the alleged offences occurred May 25th, 2008, some 32 months ago as at December 31st, 2010, and since the Information was sworn on June 8th, 2009, about one year after the alleged offences, some 19 months have passed. Mr. Higgs' application was filed July 27th, 2010. [ 32 ] The matter is not yet set for trial in my understanding. I should also state two admissions were made by both counsel in their oral argument before me on September 22nd, 2010 as follows:

(1) No deposit was made under a certificate or assurance of compliance.

(2) The tug was in September 2010 in compliance with the requirements of the Act and all required work had been done. [ 33 ] I should also note that three of nine objectives of the Act which are expressly stated in s. 6 and which appear to be relevant to this matter are stated as follows: Objectives of Act 6. The objectives of this Act are to

(

a) protect the health and well-being of individuals, including the crews of vessels, who participate in marine transportation and commerce; (

b) promote safety in marine transportation and recreational boating; … (

i) establish an effective inspection and enforcement program. Position of the Applicant [ 34 ] Mr. Whyard seeks to have the Information herein judicially stayed on the basis that Mr. Higgs and his company, Island-Sea Marine Ltd., have already been subjected to the Administrative Monetary Penalties Regulations made under the Canada Shipping Act, 2001 which state that contraventions may only be preceded with as a violation or an offence. He says in

part in his written argument: To permit the prosecution of the contraventions as an offence would place the defendants in jeopardy for a second time in respect of the same matter. This should not be permitted and would not accord with the community sense of fair play. [ 35 ] Mr. Whyard, simply put, says it is unfair after the events of May 2008 and having regard to what his client did after May 2008, including bringing the tug into compliance, to charge him in June 2009 -- and implicit in his submission -- to then proceed on the charges with a prosecution in court. This is at least an abuse of process and he relies on three cases in support of his position, namely:

(1) R. v. Pithart (1987), 1987 CanLII 6763 (BC SC) , 34 C.C.C. (3d) 150 (B.C. Co.Ct.) ;

(2) R. v. Mitchelson (1992), 1992 CanLII 4018 (MB CA) , 71 C.C.C. (3d) 471 (Man. C.A.) ;

(3) Re Parkin v. The Queen (1986), 1986 CanLII 4640 (ON CA) , 28 C.C.C. (3d) 252 (Ont. C.A.) . I will return to these cases shortly. [ 36 ] Crown provided no case law in their responding argument and no affidavits sworn by, for example, Mr. Puri or Mr. Tewari in particular, and Crown relies on the various statutory provisions in the Act and facts (or absence of same) in the record before me. I will deal with Mr. Johnston's submission below. [ 37 ] Mr.

Whyard states in his oral submission that s. 229 of the Act gives TCM a discretion to use one of two options in this case: (1) an assurance of compliance, or (2) a notice of violation. [ 38 ] He does not agree, contrary to Mr. Johnston's submission that a ticket or notice of violation must first issue before the assurance of compliance procedure can be used in the Act. This

section of the Act, namely, s. 229 is found in

Part 2 of the Act entitled: "Enforcement -- Department of Transport" and states as follows: 229.

(1) If the Minister has reasonable grounds to believe that a person or vessel has committed a violation, the Minister may (

a) enter into an assurance of compliance with the person or vessel that

i) identifies the violation and provides that the person or vessel will comply with the provision to which the violation relates within the period, and be subject to the terms and conditions, specified in the assurance, ii) sets out the amount and form of any security that, pending compliance with the assurance, must be deposited with the Minister, and iii sets out the penalty, fixed by or within the range fixed by the regulations made under this Part, for the violation that the person or vessel would have been liable to pay if the assurance had not been entered into; or (

b) issue, and cause to be served on the person or vessel, a notice of violation that names the person or vessel, identifies the violation and sets out

i) the penalty, fixed by or within the range fixed by the regulations made under this Part, for the violation that the person or vessel is liable to pay, ii) the period, being thirty days after the notice is served, within which the penalty must be paid or a review of the notice requested, and iii) particulars of the manner in which, and the address at which, the penalty must be paid or a review requested. [ 39 ] In the Transport Canada Policy on Compliance and Enforcement of the Canada Shipping Act, 2001, No.

TP 13585 E dated 2008-- reference is made to an assurance of compliance which is not defined in the Act and is described as follows: 5.8 An Assurance of Compliance (AC) is a binding agreement that includes the assessed amount of penalty and allows a person or vessel to come into compliance within a specified period of time without incurring any sanction. 5.8.1 ACs will be used where the person or vessel responsible for the deficiency accepts the terms of the agreement and is able to make the appropriate rectifications within the specified time period.

[ 40 ] The noun "violation" in s. 229(1) is defined in s. 228 of the Act to mean "a contravention of a relevant provision that is designated as a violation by the Regulations made under this Part". [ 41 ]

Section 236 of the Act states that for greater certainty, a violation is not an offence and accordingly s. 126 of the Criminal Code does not apply. [ 42 ]

Section 244 of the Act provides that the Governor in Council may make regulations to carry out the purposes and provisions of

Part 2 of the Act and states in part as follows: (

f) designating as a violation that may be proceeded with in accordance with sections 229 to 242 the contravention of a relevant provision that is an offence under this Act; … (

h) designating violations that may be proceeded with by issuing notices of violation and fixing a penalty or a range of penalties in respect of each such violation, up to a maximum of $25,000 but in any event not greater than the maximum fine if the violation were proceeded with by way of

summary conviction; …. [ 43 ] At the hearing before me, I was provided with a copy of the Administrative Monetary Penalties Regulations , SOR/2008-97 April 3, 2008 by Mr. Whyard which are made pursuant to s. 244(

f) to (

j) of the Act which states in s. 2(1) under the heading "Violations": 2.

(1) The contravention of a provision of the Act set out in column 1 of the

schedule is designated as a violation that may be proceeded with in accordance with sections 229 to 242 of the Act and by the issuance of a notice of violation. [ 44 ] In column one of the

schedule forming part of this Regulation, reference is made to every

section of the Act referred to in the 11 counts on the Information now before the Court. Hence, contravention of these Act provisions are violations that may be proceeded with in accordance with s. 229 of the Act which said contraventions would be included in the noun "violation" in s. 229(1) of the Act as defined in s. 228 of the Act. [ 45 ] Mr. Whyard says that TCM did, in May 2008, elect to proceed as I understood his argument under the "assurance of compliance" option if you will set out in s. 229(1)(

a) of the Act, whereas Mr. Johnston for the Crown by counterpoint submitted that it had not and that pursuant to s. 233 of the Act, always proceeded with respect to the alleged violations as an offence or offences. [ 46 ] Mr. Whyard said during the course of his argument that he did not know if an assurance of compliance was referred to in the above Regulations.

It is not as I read them, nor is a form of assurance of compliance referred to as far as I can see in the Act or in any Regulation made thereunder drawn to my attention by either counsel. [ 47 ] I did ask both counsel at the conclusion of the oral argument on September 22nd, 2010 before me to advise me if there is any reference to its form or a form prescribed or provided in either the Act or any Regulations made thereunder and neither has advised me that there is such a reference or form so appended as sometimes occurs with legislation. [ 48 ] Mr.

Whyard insofar as he has said no assurance of compliance was ever issued by TCM seems to refer to a written document. He argues that if his client's affidavit is accepted as truthful, at least the procedure referred to in s. 229(2)(

a) has been followed. [ 49 ] Mr. Whyard argues that by July 29th, 2008 Mr. Higgs was aware of the alleged violations of the Act that concern TCM and had agreed to comply with the Act provisions to which the violation related as per s. 229(1)(a)(i). He made no submission as to what "the period" agreed to was, I assume within which the compliance was to occur, nor did he state what the terms and conditions specified in the assurance of compliance might be. [ 50 ] As to s. 229(1)(a)(ii), he submitted that any requirement for security was dropped as per para. 11 of Mr.

Higgs' affidavit. [ 51 ] As to s. 229(1)(a)(iii), Mr. Whyard said this might have been settled if proper paperwork was done but it was not. I took this to mean that no penalty was ever fixed. [ 52 ] In my view, it would be possible to have a proper assurance of compliance within s. 229(1)(

a) that did not require that security be posted. [ 53 ] Section 229(1)(a)(ii) by using the terms "any security" seems to me to contemplate that none might be required. If the term in the Act was " the security" this

interpretation might not be available. [ 54 ] I also observe that unlike in the "Marine Compliance and Enforcement Manual", parts of which were provided to me at the hearing I believe by Mr. Johnston, the Act appears not to require that an assurance of compliance be in writing or in a particular form. Beginning at p. 78 of 206 of this manual, there is a discussion of assurances of compliance and when and how they should be entered into. For example, at p. 80 of 206, the following appears: • MSI completes the Assurance of Compliance form (see Annex 4, #11) with the offender.

The form must be signed by both the MSI and the offender (or their representative); a receipt must be issued for the security deposit, when it is received; …. [ 55 ] I do not see what "MSI" refers to in this publication, but in context appears to be a part of TCM. [ 56 ]

Section 229 of the Act could easily state in a subsection that the assurance of compliance in subsection (1)(

a) shall be in writing, signed by a representative of the TCM and the vessel owner and in the form appended to the Act or referred to in a Regulation made thereunder. I have not been told by either counsel that this is so. Position of the Crown [ 57 ] Mr. Johnston says the Crown at all times sought to treat the alleged contraventions of the Act as an offence and not a violation.

The Minister never commenced proceedings in this case in respect of these alleged contraventions as a violation but had recommended they be dealt with as an offence and eventually laid an information (see s. 233 of the Act). [ 58 ] The Crown argues in essence an assurance of compliance must be in writing. Paperwork is required, and here notwithstanding Mr. Higgs' evidence that on May 29th, 2008 he completed paperwork, none has been provided. Therefore, Crown asserts, none exists. [ 59 ] Mr.

Johnston points out the obvious that had paperwork -- and I think he really refers to an assurance of compliance -- been created, a copy would have been given to the tug owner, Mr. Higgs. Certainly he has not produced it. There is a certain common sense to this submission. He argues there has been no abuse of process, in essence no promise to Mr. Higgs, that this matter would be handled only administratively, for example, with an assurance of compliance and then federal Crown reneging on this agreement by later laying an Information. [ 60 ] I note that while Mr.

Johnston did not refer to it in argument, I have attached to the above manual extracts an email from George Karras to Mr. Johnston dated August 27th, 2010 that states in part: You will note our procedure, the forms to be used, and the twice-the-penalty fee to be deposited. As communicated to you earlier and as is evidenced by the email conversations to that effect, he would not concede to this process. [ 61 ] The "he" of course refers in context to the accused, Mr.

Higgs. [ 62 ] Again, while this is not set out in an affidavit, I understand I may rely on this statement for the truth of the facts therein and as a piece of evidence on this application. [ 63 ] In his oral submission on September 22nd, Mr. Johnston argued that a ticket issued under the provisions of the Contraventions Act , R.S.C. 1992, c. 47, s. 16, first had to be issued before the provisions of s. 229(1)(

a) of the Act were available. This was a pre- condition to the s. 229 assurance of compliance machinery or option being used. Where no ticket has been issued, this machinery is not available. No such ticket was issued. I confess I had difficulty following this submission when made. Certainly, s. 229(1)(

a) makes no express reference to the requirement that a ticket first must issue before the options therein are available. As well, the Contraventions Act seems to set out in s. 17 and the following that there are distinct and different procedures to be followed when a ticket issues as compared to those procedures set out in the Act where an assurance of compliance is agreed to. Mr. Johnston's oral argument on this point seems not to have been repeated in his later written submission. The Law [ 64 ] I return to the cases relied on by Mr. Whyard. [ 65 ] Re Parkin v.

The Queen , supra , can be factually distinguished. It has very unique facts that in my view bear no resemblance to the facts of the case at bar. It is but an example in my view of a court staying a criminal proceeding based on a finding that a stratagem or course of action of a prosecutor was an abuse of the court's process and not in accordance with the community's sense of fair play. The case is, however, helpful as it sets out the relevant legal principle at p. 256 as follows: As Dubin J.A., speaking for this Court in R. v.

Young (1984), 1984 CanLII 2145 (ON CA) , 40 C.R. (3d) 289 put the matter at p. 329, in words subsequently adopted by the Supreme Court of Canada in R. v. Jewitt , released September 19, 1985: ... there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings. [ 66 ] In R. v.

Mitchelson , supra , the issue was whether or not to require an accused to stand trial for a fourth time on charges of impaired and over .08 would constitute an abuse of the court's process. The trial judge had ordered a new trial and refused a stay. The Manitoba Court of Appeal granted a stay of proceedings, finding that the common law doctrine of abuse of process was available to prevent multiple proceedings even where there was no evidence of prosecutorial misconduct or improper motivation. [ 67 ] Mr.

Whyard does not really now argue these latter two ingredients are present in the case at bar. [ 68 ] In Mitchelson , supra , the original charges arose on December 15th, 1988. The third trial was held on May 24th, 1991 resulting in an acquittal of the accused which Crown appealed to the Manitoba Queen's Bench and on November 5th, 1991, almost three years after the offence date, this judge ordered a new trial and refused a stay.

This order was then appealed and the Manitoba Court of Appeal on appeal ordered that the charges be stayed because in its opinion to order the accused to face a fourth trial would be an abuse of process. The Manitoba Court of Appeal relied on the following points in coming to this decision: 1. While an over .08 offence was a serious charge, the readings were only marginally above the prohibited limit. 2. The Crown was proceeding summarily. 3. The time occupied by the proceedings -- three years and four months -- was undue. 4.

The accused being a highly public figure in Winnipeg, a City councilor, had been exposed to much public and media attention and had been stigmatized by his behaviour. [ 69 ] In the case at bar there has yet to be one trial, let alone four. [ 70 ] In R. v. Pithart , supra , a stay was granted when an accused's arrest and detention pursuant to a police policy was found to constitute an arbitrary detention.

[ 71 ] The principle of abuse of process has been considered in our Supreme Court of Canada on quite a number of occasions, including early on in R. v. Jewitt , 1985 CanLII 47 (SCC) , [1985] 2 S.C.R. 128 which decision adopted the common law definition of Dubin J.A. of the Ontario Court of Appeal in R. v. Young , set out above, and also adopted the caveat in Young that a judicial stay should only be exercised in the clearest of cases. Other important recent cases on point not argued by either counsel in the application before me are R. v. O'Connor , 1995 CanLII 51 (SCC) , [1995] 4 S.C.R. 411 and R. v.

Regan , 2002 SCC 12 , both Supreme Court of Canada decisions. [ 72 ] It is clear the power to stay for an abuse of process can be sought where there is undue delay in the police investigative work leading to the laying of charges and by the prosecution, especially where there is actual prejudice to an accused as a result of the delay which can include some change in legislation, an important witness dying or being unable to testify at a trial due for example to dementia, or evidence being lost. [ 73 ] This month this matter will have been outstanding with no trial having yet occurred for some 32 months by my count.

I understand Crown is proceeding summarily on the charges at least in counts 1 to 10 above where the maximum fine is said to be a million dollars and incarceration for 18 months. No argument is now made on the application before me that this matter should now be stayed due to delay in getting it on for trial. I accordingly do not decide this point. Discussion [ 74 ] I find that on and after May 25th, 2008 the federal Crown did have the option to treat the alleged contraventions of the Act by Mr.

Higgs and his company as a violation or an offence. [ 75 ] If it had chosen to treat it as a violation and all alleged contraventions qualified as such under the above Regulation, then they might have selected one of the two options available in s. 229(1): (

a) either an assurance of compliance; or (

b) served a notice of violation. It is clear they did not do (b). [ 76 ] Mr. Whyard argues they choose route (

a) above. I disagree. While I suppose agreements may be oral and I find that an assurance of compliance is only that, an agreement, I am not of the view that even if the Act does not expressly state an assurance of compliance must be writing and signed by the parties and better still appends the form actually to be used by the parties, that the Act on a reasonable construction could be interpreted to include an oral agreement. As well, in any event, the mandated requirements of s. 229(1) (a)(

i) and (iii) have not been complied with in my opinion. [ 77 ] In the result, the TCM would have no ability to enforce it as provided in the Act. [ 78 ] Certainly, the above manual suggests that an assurance of compliance is a document that would be carefully and deliberately entered into. I do not use this manual either as an aid with respect to the

interpretation of the Act or as any basis to find what an assurance of compliance might look like, for example, Form 11 referred to therein. [ 79 ] I find the parties did not enter into a binding assurance of compliance. [ 80 ] I accept that TCM did want Mr. Higgs and the tug to rectify the problem areas the police detected on May 25th and which were discussed in the May 29th, 2008 meetings.

In encouraging him to do so, they were only requiring him to comply with Canadian federal law. [ 81 ] I am not able to find that this encouragement to rectify problem areas and anything TCM said in the process amounted to some sort of agreement or commitment not to prosecute Mr. Higgs or his company for an offence or offences relating to the contraventions of the Act. [ 82 ] I do not accept on the record before me that he was given an option as he alleges. This makes no sense.

In doing what he did after May 25th, 2008 at whatever cost and whether or not he lost income as a result of his tug being down while under repairs, he was doing only what he needed to do to comply with the laws of Canada, the Act and Regulations and nothing more. Conclusion [ 83 ] In the result, the accused's application for a stay on the grounds advanced is dismissed. There is no conduct advanced here in argument that in my view meets the common law test for an abuse of process originating in R. v. Young , supra , and dealt with most comprehensively by our Supreme Court of Canada in R. v.

O'Connor , supra , nor is there an alleged breach of any Charter right on the part of either accused. [ 84 ] In dismissing this application I should state very clearly that this decision in no way prevents the accused from raising the same point, namely an abuse of process or potentially a Charter right violation, however, based on for example undue delay in the matter later coming on for trial should it do so in future in the event it is decided that it is in the public interest this matter now be tried in court. An example of such a case is R. v.

Joudrey , 2010 NSSC 230 , a judgment of the Nova Scotia Supreme Court. In this regard, the decision of R. v. Mills , 1986 CanLII 17 (SCC) , [1986] 1 S.C.R. 863 may have relevance to the procedure to be followed, as may R. v. Turcott , 2008 BCPC 386 , a recent judgment of my own on point. [ 85 ] In these cases, unlike the case at bar, the accused alleged I think with proper written notice to the Crown that his Charter rights had been violated and certainly in Turcott , supra , that issue was first decided on a voir dire forming the significant part of the trial itself. (ORAL REASONS FOR JUDGMENT CONCLUDED)