R. v. Barry, 2021 BCPC 59

Citation: R. v. Barry 2021 BCPC 59 Date: 20210326 File No: 26253, 26239, 22417, 22587, 22641 Registry: Castlegar Grand Forks IN THE PROVINCIAL COURT OF BRITISH COLUMBIA File No: 26253 Registry: Castlegar REGINA v. DARREN ANDREW BARRY File No: 26239 Registry: Castlegar REGINA v. ALICIA MARIE SIMPSON File No: 22417, 22587 Registry: Grand Forks REGINA v. MICHAEL VEDOVATO File No: 22641 Registry: Grand Forks REGINA v. KELLY KEVIN ZIMMERMAN RULING ON APPLICATION OF THE HONOURABLE ASSOCIATE CHIEF JUDGE P. DOHM Counsel for the Crown: R. Carot Counsel for the Accused, A. Simpson and M. Vedovato: B. Suffredine, Q.C.

Counsel for the Accused, D. Barry and Zimmerman: M. Goulden Place of Hearing: Nelson , B.C., via videoconference Date of Hearing: November 16, December 18, 2020, and January 29, 2021 Date of Judgment: March 26, 2021 Introduction [ 1 ] In March and April of 2020, in response to the global COVID-19 pandemic, the Chief Judge of the Provincial Court of British Columbia directed the adjournment of thousands of criminal files without the accused having to attend Court. Some of these

adjournments ended up being for more than three months. [ 2 ] The accused, Darren Barry, Alicia Simpson, Michael Vedovato and Kelly Zimmerman, now apply for two declarations. The first is that jurisdiction over them was lost by these adjournments, and the second is that since no process was issued for them within three months of that loss of jurisdiction, their charges are deemed dismissed for want of prosecution pursuant to section 485(3) of the Criminal Code .

Background [ 3 ] The onset of the global COVID-19 pandemic caused the BC Provincial Health Officer to declare a public health emergency on March 17, 2020. On that same day, the Provincial Court announced that “all out of custody criminal matters (initial appearances, remands, applications, trials, and sentencings) scheduled to proceed between March 18 and May 16, 2020, are adjourned without the parties attending Court” (COVID-19 March 17, 2020 Update). The following day, the Government of British Columbia declared a provincial state of emergency.

Both the public health and provincial state of emergencies have remained in effect since their declarations. [ 4 ] On March 19, 2020, the Chief Judge announced the suspension of: [the] regular operations of the Provincial Court of British Columbia at all of its locations to protect the health and safety of court users and to help contain the spread of COVID-19.

In light of the extraordinary circumstances during the current public health emergency, members of the public who do not have urgent business before the Court are discouraged from attending any courthouse. [ 5 ] This announcement was made in the first release of the Notice to the Profession and Public 19 (“NP 19”) and it was effective March 25, 2020.

This suspension did not apply to bail hearings, in-custody trials and sentencings, and criminal matters determined urgent by a judge, as those were able to proceed at specified court locations. [ 6 ] NP 19 incorporated the March 17 direction adjourning all out of custody criminal matters scheduled between March 18 and May 16, 2020. On April 28, the Chief Judge, again through NP 19, directed the adjournment of all out of custody criminal matters scheduled to proceed between May 19 and July 3.

These two mass adjournments of thousands of files (the “COVID-19 adjournments”) were directed to occur without the parties having to attend Court. NP 19 further advised that “the Court file will record that these adjournments are due to COVID-19”. [ 7 ] Included within NP 19 were “Adjournment Details” pursuant to which counsel and the accused could determine the next Court date resulting from the COVID-19 adjournments. For many court locations, those next dates were specifically listed and approximately 90 days from the originally scheduled appearance.

For other locations, including most Circuit Courts, a scheduling telephone or email contact for a Judicial Case Manager (“JCM”) was provided to contact on the day the Court appearance was originally scheduled in order to set the next appearance date. [ 8 ] NP 19 was amended on many occasions to inform the profession and the public of the steps and measures the Court was taking to address the COVID 19 safety concerns while also ensuring and advancing access to justice.

Included within those objectives was the gradual re-opening of courthouses once they had been assessed and safety remediation work carried out by an independent professional entity hired by the BC government to ensure the courts were safe for all who attended to them.

While the suspension of regular Court operations ended on July 3, 2020, many courthouses around the province, and particularly Circuit Court locations, were not able to be safely re-opened for several months due to the time and effort required to complete that assessment and remediation process. [ 9 ] With respect to these accused, a judge adjourned their files from a date prior to March 18, to a date covered by the COVID-19 adjournments.

Three of the accused’s files were adjourned into the timeframe covered by the first COVID-19 adjournments, then administratively adjourned and re-scheduled by a JCM, without the Crown, the accused or their counsel being present, to a date within the timeframe covered by the second COVID-19 adjournments. Mr.

Vedovato’s two files had been adjourned by a judge from a date prior to March 18, to a date covered by the second COVID-19 adjournments. [ 10 ] Prior to the accused’s scheduled Court date within the second COVID-19 adjournments timeframe, a JCM cancelled their upcoming Court dates without the Crown, accused or their counsel being present, and scheduled their files for September 22, in Grand Forks for Mr. Vedovato and Mr. Zimmerman, and for September 23, in Castlegar for Mr. Barry and Ms. Simpson.

By those dates, the courthouses for those Circuit Court locations were able to be re-opened following the assessment and safety remediation process.

It is my understanding the JCM advised the Crown and counsel for the accused, but not the accused themselves, of these September dates by electronic communication at the time those dates were scheduled by the JCM. [ 11 ] Although counsel for the accused attended Court on behalf of their clients on those September dates, the Crown does not suggest through those appearances, the accused attorned to the jurisdiction of the Court, or jurisdiction over the accused was “revived”, if there had been an earlier loss of jurisdiction by the COVID-19 adjournments.

That is because more than three months had elapsed between the date(

s) on which the accused submit jurisdiction over the accused was lost and the September Court dates, such that by virtue of section 485(3) , the proceedings would be deemed dismissed. Position of the Accused [ 12 ] The main submission of the accused is that jurisdiction over them was lost by the COVID-19 adjournments because they were not personally present when their files were adjourned to the next date.

They say accused are required to attend Court for scheduled appearances so they will know their next Court date, and jurisdiction over them is lost without personal attendances unless either the accused expressly consents to being adjourned to another date without attending Court, or the accused appears through an agent for

summary conviction offences or designated counsel for indictable offences. Since there was no consent, agency or designated counsel appearances when their files were adjourned by the COVID-19 adjournments, jurisdiction over them was lost. [ 13 ] The accused acknowledge that jurisdiction over them would not have been lost if a summons or warrant had been issued for them at the time of the COVID-19 adjournments, but that did not occur. They also acknowledge that jurisdiction over them could have been

regained through the issuance of a summons or warrant, provided that process was issued within three months of the COVID-19 adjournments. However, that also did not occur in their cases. Analysis [ 14 ] Section 485(1.1) of the Criminal Code states: Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally, so long as the provisions of this Act or a rule made under

section 482 or 482.1 permitting the accused not to appear personally apply. [ 15 ]

Section 482 permits the Court to make rules that “cannot create substantive law, but rather address matters concerning pleading, practice and procedure in criminal matters and case management” ( R. v. Campbell , 2008 BCSC 805 at par. 26 ). This

section also stipulates that the rules cannot be inconsistent with the Criminal Code or any other Act of Parliament , and they “must be published or otherwise made available to the public” (section 482(4)).

Section 482.1 specifically addresses case management rules. [ 16 ] The Crown says NP 19, and specifically the COVID-19 adjournments, are rules of the Court under

section 482. This position was recently accepted by this Court in R. v. Bernard , 2021 BCPC 13 , where Judge Harris concluded “that the Notices that resulted in the COVID-19 adjournments were rules of the Court as permitted by the Code and that they were not inconsistent with the Code or any other Act of Parliament ” (at para. 25). Bernard is a considered decision of the Court and therefore binding on me. The accused’s efforts to convince me Bernard is wrongly decided have not been successful.

In any event, I agree with the reasoning and conclusions of Judge Harris, but also wish to add the following additional comments. [ 17 ] In his analysis, Judge Harris references and relies on the Court’s Criminal Caseflow Management Rules (“CCFM Rules”). These rules were created pursuant to

section 482 and their purpose is set out in Rule 1, which states:

(1) The purpose of these Rules is to provide simple, effective and efficient management of all proceedings of a criminal nature in order to secure a just and timely determination of every case before the Court. [ 18 ] Rule 3 of the CCFM Rules provides the Chief Judge with the authority to issue practice directions “consistent with these Rules and their purpose”. [ 19 ] In my view, it was not necessary to rely on the CCFM Rules to conclude the provisions of NP 19 relating to criminal matters were rules of the Court made under

section 482. A review of those NP 19 provisions indicates they address and provide procedural directions relating to the management of all criminal prosecutions within the Court’s jurisdiction during COVID-19.

For example, they specify how files for in-custody and out of custody accused will be dealt with, the procedure for urgent criminal matters, and how applications for judicial authorizations would be processed. [ 20 ] More specifically for these applications, the provisions relating to the COVID-19 adjournments directed the attendance of the accused was not required, set out when the next Court date was or how it could be easily determined, and indicated the Court files would record the adjournments were due to COVID-19.

All of these directions were procedural in nature and directed by the Chief Judge as part of the Court’s need “to protect the health and safety of court users and to help contain the spread of COVID-19”. [ 21 ] Moreover, the criminal provisions of NP 19 do not contain any substantive criminal law and they are not inconsistent with the Code or any other Act of Parliament . In particular, with regards to the COVID-19 adjournments,

section 669.1(2) provides the Court with very broad powers to adjourn the proceedings “at any time before or after the plea of the accused or defendant is taken”. No provision in the Code specifically states the accused must be present for an adjournment of their file to a “fix date” to

schedule another appearance, which is what the COVID-19 adjournments did, so there is no inconsistency between the COVID-19 adjournments and the Code . [ 22 ] Section 803(1) applies to

summary conviction offences and it does state the Court “may, in its discretion, before or during the trial, adjourn the trial to a time and place to be appointed and stated in the presence of the parties or their counsel or agents”. What is clear from this

section is that when a trial is adjourned, the accused, their counsel or agent must be present when the new trial date is fixed or appointed, but not if the trial is adjourned to a “fix date” to

schedule a new trial date. The reason for the requirement for the new trial date to be stated in the presence of the accused, his counsel or agent, is because section 803(2) permits the Court to proceed with the trial in the absence of the accused as long as the accused has been notified of the time and place for the trial. While the COVID-19 adjournments did adjourn some

summary conviction trials (not in relation to any of these particular accused), the adjournments were not to trial dates. Rather, they were merely to “fix dates” to then

schedule new trial dates so there was no essential requirement for the accused to be present for the adjournment of those

summary conviction trials pursuant to the COVID-19 adjournments. Accordingly, there was also no inconsistency between the COVID-19 adjournments and section 803(1). [ 23 ] Lastly, NP 19 was published and made available to the public as it was posted on the Court’s public website. [ 24 ]

Section 482 does not specify the rules have to be in any specific form or actually even be named “rules”. What matters is that the requirements of

section 482 are satisfied and, in my view, they are with the criminal provisions of NP 19. Although NP 19 could also have been called “The COVID-19 Rules” as compared to a Notice to the Profession and Public, the difference would have been merely one of form over substance. [ 25 ] All of the

section 482 requirements relating to the making of rules were satisfied with respect to the criminal provisions of NP 19 without the need to rely on the CCFM Rules. While I agree with Judge Harris’ reliance on the CCFM Rules, I also find that reliance was not necessary to conclude the criminal provisions of NP 19, and specifically those relating to the COVID-19 adjournments, were rules pursuant to

section 482. [ 26 ] The criminal provisions of NP 19, including those for the COVID-19 adjournments, were rules of the Court and those provisions specifically directed the accused that they were not required to personally appear for the adjournment of their files for the COVID-19 adjournments. Accordingly, pursuant to section 485(1.1) , there was no loss of jurisdiction over the accused as a result of their non-

appearance at the COVID-19 adjournments. [27] While this conclusion is sufficient to dispose of these applications, I will nevertheless address the other two arguments uponwhich the Crown submitted the COVID-19 adjournments were lawful and did not result in a loss of jurisdiction over the accused. Jurisdiction by Necessary Implication and Authority to Control its own Process [28] As a statutory court, the Provincial Court of British Columbia derives its power and authority from statutes including theCriminal Code and the Provincial Court Act, R.C.B.C. 1996, c. 379.

However, the Supreme Court of Canada has also recognized thatstatutory courts have additional powers: [19] Likewise in the case of statutory courts, the authority to control the court’s process and oversee the conduct of counsel is necessarilyimplied in the grant of power to function as a court of law.

This Court has affirmed that courts can apply a “doctrine of jurisdiction bynecessary implication” when determining the powers of a statutory tribunal: … the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, allpowers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime …. (ATCO Gas and Pipelines Ltd. v.

Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51) Although Bastarache J. was referring to an administrative tribunal, the same rule of jurisdiction, by necessary implication, would apply tostatutory courts. (R. v. Cunningham, 2010 SCC 10) (Emphasis added) [29] Similar conclusions and comments can also be found in that Court’s decisions in R. v. 974649 Ontario Inc., 2001 SCC 81 atparas 70 and 71, and Ontario v.

Criminal Lawyers Association, 2013 SCC 43, at paras 46 and 112. [30] Based on these and other authorities, the Crown says: [The COVID-19 adjournments] were made and authorized by powers that flow by necessary implication from the [court’s] expressstatutory jurisdiction to try indictable matters under s. 469 and s. 470 and to try

summary matters under s. 785 (see definition of“summary conviction court”) and s. 798. The Crown submits that these statutory powers by necessary implication are synonymous withthe [court’s] constitutionally entrenched mandate regarding the assignment of judges, the setting of sittings of the court and court lists,the allocation of courtrooms and the direction of administrative staff carrying out these functions: R. v. Valente, (SCC),[1985] 2 S.C.R. 673, paras 47-49; Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality ofJudges of the Prov.

Court of P.E.I., (SCC), [1997] 3 SCR 3, para. 260; and Ontario v. Criminal Lawyers’ Associationof Ontario, 2013 SCC 43, paras. 40-41. Without such constitutional and statutory (by necessary implication) powers, the [court] couldnot function as a court of law in a global health emergency. [31] I agree with this position. [32] In order “to protect the health and safety of court users and to help contain the spread of COVID-19”, the Court had to actquickly and decisively to limit people from attending courthouses as much as possible.

It did so in part by mass-adjourning all out ofcustody non-urgent files without counsel or the accused having to attend Court. These files were adjourned either to specific dates or to adate that could easily be obtained from a JCM. Requiring the accused to physically attend to a courthouse to be informed of their nextCourt date would have completely defeated the purpose of NP 19. [33] The “Adjournment Details” in NP 19 provided reasonable and sufficient notice to counsel and the accused to inform them of thestatus of Court files and more importantly how to determine the next Court date.

While I accept that some accused may not have hadaccess to NP 19, they were aware of their outstanding Court file and their need to attend Court at some point to deal with it. For thoseaccused represented by counsel, they could have obtained information about their next Court date from their counsel who obviously hadaccess to NP 19 and also knew how to connect with a JCM to determine the next Court date. For those accused not represented bycounsel, they could have found out their next Court date by contacting Court officials by telephone or electronic communication.

TheCourt does not have access to personal contact information for the accused to be able to notify them of the next Court date, but it is notunreasonable to expect an accused to take some minimal steps to find out when their next Court date is. [34] Moreover, failure by the accused to attend their next Court date arising from the COVID-19 adjournments did not mean that awarrant would automatically be issued for their arrest. Rather, upon failure of the accused to attend Court, a judge would determinewhat, if any, process would be issued for the accused to compel their attendance to Court.

That determination would quite properly bebased on the individual circumstances of the accused, the submissions of the Crown, and the Court file. In some cases, and afterconsideration, a judge may issue a warrant, but there would be a basis for doing so on the Court record. In other cases, a summons maybe issued, while for others, the file may simply be adjourned for inquiries to be made by counsel or the police in an effort to have theaccused return to Court. [35] It is important to point out that the COVID-19 adjournments only adjourned files to “fix dates” to

schedule a further Court date.They did not impact any substantive rights of the accused such as the need to be present for their election, plea, trial or sentencing, and,as counsel have conceded, there was no prejudice to the accused as a result of the COVID-19 adjournments. Moreover, the accused hadthe ability to argue their file should proceed on the basis of urgency, and their Charter

section 11(

b) right to be tried within a reasonabletime has not been adversely affected. [36] The exceptional circumstances presented by the global COVID-19 pandemic and the declarations of provincial and public healthstates of emergency compelled the Court to take immediate steps to drastically reduce attendances at courthouses for the protection andsafety of the public by helping to minimize the spread of the COVID-19 virus. The COVID-19 adjournments were one of those steps by

adjourning all out of custody non-urgent files to another date without the accused having to attend Court.

Section 669.1(2) of the Codeprovides the Court with the express power to adjourn proceedings “at any time before or after” plea, and, as previously noted, there is nospecific requirement in the Code that the accused must be present when their file is adjourned to a “fix date”. What the Code, or anyother statutory provision, does not expressly provide to the Court or the Chief Judge is the authority to mass-adjourn thousands of filesand direct the accused were not required to attend personally for those adjournments.

However, in the circumstances, the Court had to doso in order to function as a Court of law in this pandemic, and I find the authority for the COVID-19 adjournments lies in the power ofthe Court by necessary implication to control its process and to manage both Court operations and the administration of justice duringCOVID-19. Accordingly, in all the circumstances and for the reasons expressed above, the Court acted lawfully with the COVID-19adjournments based on the “doctrine of jurisdiction by necessary implication”.

The COVID-19 Adjournments were Lawful Because They Comply with the Code [37] The case law is relatively clear that jurisdiction over an accused is lost when a statutory court acts unlawfully in dealing withremands and adjournments (R. v. Krannenburg, (SCC), [1980] 1 S.C.R. 1053) or it does not do anything on a file on ascheduled Court date (R. v. Hampton, 2020 ABQB 429, and R. v. Faulkner, 2002 SKQB 131). If the Court had not adjourned theseaccused and to another date, then there would have been a loss of jurisdiction over them.

However, the case law is not entirely clear onwhether jurisdiction is lost over accused by an adjournment of their file to another date when they were not present for that adjournmentand no process was issued to maintain that jurisdiction. [38] As previously noted, the accused say there was a loss of jurisdiction over them by the COVID-19 adjournments because theywere not present for the adjournment of their files, they did not provide their express consent to being adjourned to another date, or theydid not appear by agent or designated counsel.

They also add that no process was issued to maintain jurisdiction over them. They rely ona number of cases in support of their position including R. v. Ferreira, 2014 ONCJ 617; Hampton; Faulkner; R. v. D’Arcy, [2015] A.J. No. 112; R. v. Denny, [2020] N.S.J No. 148; R. v. Bowen (1999) (ON CJ), 28 CR (5th) 162 (Ont.

C.J.); and R. v.Millar, 2012 ONSC 1809 , [2012] OJ No. 1276 (QL). [39] I do not agree with this position in so far as it applies to the COVID-19 adjournments. [40] The Crown has provided two Court of Appeal authorities that stand for the proposition “that adjournments (can) be made in theabsence of the accused without a loss of jurisdiction”. Those authorities are the decision of the Ontario Court of Appeal in R. v.Szoboszloi, (ON CA), [1970] 3 OR 485, and the Manitoba Court of Appeal in R. v.

Born, (1971) (MB CA), 6 CCC (2d) 70. [41] In Born, the accused was not brought in to Court from where he was incarcerated for one of his adjournment dates prior to thestart of his preliminary inquiry because of an administrative error. The Judge did not issue a warrant for the accused, but simplyadjourned the file for a week.

The Court concluded there was no loss of jurisdiction over the accused in these circumstances withDickson J.A. (as he then was) reasoning in part as follows (at para. 8): If a magistrate is precluded from granting a remand in the absence of the accused, it would seem, if the view of the learned ChambersJudge be accepted, that an accused could cause a Magistrate to lose jurisdiction by the simple expedient of failing to appear unless theMagistrate resorted to the use of a Bench warrant. The accused’s absence might be due to illness, accident or even inadvertence.

AMagistrate might adjourn the case to the following day in order that appropriate inquiries be made. Has the Court thereby lostjurisdiction? We think not. [42] Counsel for the accused have not provided any compelling basis to suggest these cases are wrongly decided or distinguishable, orare no longer applicable due to other case law, or amendments or additions to the Code. I would also point out that none of theauthorities provided by the accused are from the Court of Appeal level. [43] Moreover, Parliament’s enactment in 1985 of

section 669.1(2) is significant, not just because it provided Courts with a singlecomprehensive provision for adjourning proceedings, but also because in doing so, it specifically did not state the presence of theaccused, their agent or designated counsel was required when Courts exercised this jurisdiction. This adjournment power is available “atany time before or after” plea, applies broadly to include any “proper officer of the court”, and is not restrictive as to the duration forwhich an adjournment can be granted so they can be for more than three months.

In granting this all-encompassing authority, hadParliament wanted the accused, their agent or designated counsel to be present for all adjournments in order for jurisdiction to bemaintained over them, it could have easily indicated that through this provision. [44] In my view, this

section and the case law establish that there is not an automatic loss of jurisdiction over the accused if they, theiragent or designated counsel are not present for an adjournment of their file. Rather, jurisdiction over the accused can be maintained ifthere has been a lawful adjournment of their file to a “fix date” as the COVID-19 adjournments did.

Section 669.1(2) provides the Courtwith broad powers to adjourn proceedings and it does not mandate the presence of the accused, their agent or designated counsel foradjournments of their proceedings. Also, as previously noted, the Code does not require the accused or their agent or designated counselbe present for an interim adjournment of their file to a “fix date”. [45] I find there is merit to the Crown’s submission that jurisdiction over the accused was not lost by the COVID-19 adjournmentsspecifically because they were interim adjournments to “fix dates” where nothing of substance occurred for the accused.

That is to becontrasted with adjournments where something affecting or prejudicing the accused occurs such as fixing a trial or sentencing date, orwhere there is a failure to comply with a mandatory Code provision requiring the presence of the accused (for example, sections 650 and803). In those situations, jurisdiction would be lost by those adjournments. [46] Jurisdiction over the accused was not lost by the COVID-19 adjournments because those adjournments were lawful in that theycomplied with the Code and they did not involve anything of substance for the accused.

Rather, jurisdiction over the accused wasmaintained by the lawful adjournment of their file in their directed absence to a “fix date” at which time, if necessary, the Court couldissue process for the return of the accused to Court in the event they did not attend Court on that date.

[47] I am also of the view that it was not necessary to issue any process at the time of the COVID-19 adjournments in order tomaintain jurisdiction over the accused. In that regard, I agree with the Crown’s submission that “the concept of “preserving” jurisdictionmust be tied to the common law rule when jurisdiction over the accused is lost: where a statutory court has acted unlawfully in thecourse of remands and adjournments, has not done anything in relation to a case, or has proceeded with matters of substance in theabsence of the accused.

Nowhere in this common law rule or the Criminal Code is it mandated that a summons or warrant must be issuedin order to “preserve” jurisdiction.” All that is required is that “something lawful was done with the case” and that was accomplished bythe COVID-19 adjournments. [48] I would also point out that in the unique circumstances facing the Court as a result of the COVID-19 pandemic, it was also notpractical, desirable or, in some cases, even lawful for some form of process to be issued at the time of the COVID-19 adjournments inorder to maintain jurisdiction over the accused. [49] Issuing a summons requires a returnable Court date and at the time of the COVID-19 adjournments, it was not known when theCourts would be able to safely resume sitting given the state of the pandemic.

What the Court did not want, and needed to prevent asmuch as possible based on the existing public health directions, was accused returning to courthouses when it was unsafe to do so.Moreover, when that would change was not known at the time of the COVID-19 adjournments.

The Court did adjourn many files for aperiod of approximately 90 days, but that was to retain jurisdiction over them and it was also based in large part on public healthinformation specifically in relation to when the suspension of regular Court operations may end at the time the COVID-19 adjournmentswere made. [50] Issuing a bench warrant for the accused to retain jurisdiction over them presented several challenges. First, it is difficult to justifythe issuance of bench warrants when there was no basis to establish the accused failed to attend Court, which is the ground upon whichbench warrants can be issued.

That is particularly so when the accused were directed not to attend Court and no Court was in fact sittingto hear out of custody non-urgent files on the day the accused had been scheduled to attend Court. Second, issuing bench warrants wouldnaturally result in accused being brought back to Court and that was an outcome that was not desired nor intended in the circumstancesof the pandemic.

Third, section 597(4) of the Code does permit a judge when issuing a bench warrant to specify a period before which itshould not be executed; however, this option suffers the same difficulty identified with the issuance of summons and not knowing whenthat period should end at the time of the COVID-19 adjournments. Fourth, there is authority binding on this Court that the CriminalCode does not permit a bench warrant to be issued solely to preserve jurisdiction over the accused (R. v. Peters, [1972] BCJ. No. 559(SC), para. 7, upheld at [1973] BCJ. No. 780 (CA). See also R. v.

Sheppard, (NL PC)). [51] Public interest warrants pursuant to section 512(1) of the Code to compel the attendance of the accused to Court present the samechallenges identified above in that their issuance would result in accused being brought back to Court at a time during the pandemicwhen it was unsafe to do so. Section 511(3) does allow a judge to specify the period before which the warrant shall not be executed, butthe same problem identified above with bench warrants and section 597(4) would exist.

It is also difficult to comprehend how it wouldbe in the public interest to issue process to compel the appearance of accused to Court when the Court determined it was in the publicinterest and in the administration of justice for accused not to attend Court. In addition, an application for the Court to exercise itsdiscretion to issue a section 512(1) warrant requires an examination of the circumstances of each accused and each file.

That processwould have generated the need for thousands of Court hearings, which at a minimum would have required the participation andassistance of the Crown, court staff and the judiciary. Such a process would not have been consistent with the public safety purposes ofNP-19. [52] It is also important to point out that arrest warrants trigger a substantial interference with an individual’s liberty. The person isarrested, removed from their environment, transported and held in-custody until released.

To have these deprivations visited on accusedpersons who did not appear because they were directed not to by the Court would significantly impact the public’s confidence in theadministration of justice. [53] Furthermore, with regards to the issuance of process to retain jurisdiction over the accused, it must be remembered that the Courtwas dealing with thousands of files.

Issuing and executing warrants or summons on all of those files during the early stages of thepandemic would have created, rather than reduced, public health risks, and would not have been workable logistically or safety wise forthose involved in the administration of justice.

Any process or procedure that required the accused to attend Court was contrary to publichealth and safety recommendations at the time of the COVID-19 adjournments and it was not known when that situation would change. [54] Also, to address a concern raised by counsel for the accused, issuing process around the time of the COVID-19 adjournmentswould not have provided a certain Court date for the accused to attend Court.

Warrants certainly would not have provided that date.Although summons would have had a returnable date on them, it was not known at that time whether that would in fact be the next Courtdate due to the uncertainty as to when it would be safe for the Court to end the suspension of regular Court operations including being beable to safely open up Circuit Courts. [55] There was no loss of jurisdiction over the accused by their files being adjourned by the COVID-19 adjournments to a “fix date”without their personal appearance and without issuing any process to retain jurisdiction over them.

Rather, jurisdiction over them wasmaintained by the Court’s lawful adjournment of the files to a “fix date” without requiring the accused to attend Court and by recordingthe adjournments as “due to COVID-19”. Conclusion [56] The criminal provisions of NP 19 and specifically those in relation to the COVID-19 adjournments were rules of the Courtpursuant to

section 482 and, since those provisions permitted the accused not to appear personally, section 485(1.1) dictates there was noloss of jurisdiction over them as a result of the COVID-19 adjournments. [57] Alternatively, the Court had the authority to direct the COVID-19 adjournments by the “doctrine of jurisdiction by necessaryimplication” to control its process and manage Court operations during the COVID-19 pandemic. Further, the COVID-19 adjournmentswere lawful as they complied with the Code and there was no loss of jurisdiction over the accused by the adjournment of their files to a

“fix date” without them being personally present and without process being issued for them. [ 58 ] The COVID-19 adjournments did not result in a loss of jurisdiction over the accused so there is no basis to declare their charges dismissed for want of prosecution pursuant to section 485(3) of the Code . Their applications are denied. _______________________________________ The Honourable Associate Chief Judge P. Dohm Provincial Court of British Columbia