R. v. Kratochvil Date:, 2016 BCPC 348

Citation: R. v. Kratochvil Date: 20161116 2016 BCPC 348 File No: 36212-A-3 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ZDENKA KRATOCHVIL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: T. Patola Appearing in person: Ms. Kratochvil Place of Hearing: Port Alberni , B.C. Date of Hearing: October 11, 2016 Date of Judgment: November 16, 2016

The Allegation [ 1 ] Ms. Kratochvil is charged with an offence under

section 145 (b) (2) of the Criminal Code , which provides: Every one who, … having appeared before a court, justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court as thereafter required by the court, justice or judge … is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on

summary conviction. The Facts [ 2 ] A little local knowledge is necessary to understand the circumstances of the allegation against Ms. Kratochvil. Scheduling of cases in the Provincial Court of British Columbia is managed by Judicial Case Managers (commonly referred to as “JCM’s”). Each JCM is a Justice of the Peace, and hence a “justice”, as defined by

section 2 of the Criminal Code . Port Alberni, British Columbia is a relatively small community, without a resident judge or JCM. Judges visit Port Alberni frequently from other cities. A JCM visits Port Alberni one day in each week. The JCM’s office is next door to the courtroom in which the events described below occurred. [ 3 ] On January 18, 2016, Ms. Kratochvil attended court in Port Alberni for the second day of her trial on a charge of impaired driving. She was not represented by counsel. She arrived an hour late.

She explained that she had mislaid the scheduling notice, and thought that the continuation of the trial was scheduled for January 19. The trial proceeded through the day. At the end of the day, the evidence was complete, but no closing submissions had been presented. [ 4 ] The learned judge presiding gave directions for written submissions to be filed. The following exchange ensued: THE COURT Well, I think that brings it to a conclusion. You’re adjourned from here to the JCM to

schedule a return date for decision, two hours by video link between Port Coquitlam and Port Alberni, sometime on or after July 4 th . MR. PATOLA (Crown counsel) And that date to the JCM then, Your Honour, will be the 20 th , this Wednesday, at 11 a.m. THE COURT Oh, you’re going to then for a fix date purpose, you mean -- MR. PATOLA Yes. THE COURT -- because you don’t have a JCM here today? MR. PATOLA No. THE COURT I see, ok, you’re adjourned to the -- local practices - MR. PATOLA Yes, we only get one once a week.

THE COURT -- you’re adjourned to a fix date appearance before the presiding JP, JCM on the 20 th at 11:00, you said? MR. PATOLA Yes. THE ACCUSED I have to be here for this? THE COURT You should be here for that. THE ACCUSED

OK, so it’s the 20th. I better write this down, the 20th at 11, so I just go there? THE CLERK You can just go next door. THE ACCUSED OK -- [indiscernible] THE COURT Make a good record of it, Ms. Kratochvil, so that you don’t have a problem like you did this morning. THE ACCUSED Yes, and I will -- I’m going to find that paper one way or another. Court then adjourned for the day. [5] Ms. Kratochvil did not attend at the JCM’s office on January 20, 2016. She says that she forgot. Her treating psychiatrist, Dr.Fadeyi, gave evidence. He says that Ms.

Kratochvil suffers from bipolar disorder and alcohol abuse disorder, that he has been treatingher for those conditions since 2012, that patients with those disorders often suffer from impaired memory capacity, and that shesometimes forgets her appointments with him. [6] I accept Ms. Kratochvil’ s evidence. I am satisfied, on a balance of probabilities, that Ms. Kratochvil forgot to attend at theJCM’s office on January 20, and that she did not intentionally fail to appear on that date.

The Actus Reus [7] The actus reus of the offence is failing to attend court “… as thereafter required by the court, justice or judge …”. The Crownmust prove, beyond a reasonable doubt, that the presiding judge required Ms. Kratchovil to attend before the JCM on January 20. In myview, that is not proven in this case. Ms. Kratochvil asked the presiding judge whether she was required to attend. The learned judgereplied: “You should be here for this.” Construed according to ordinary English usage, that reply could easily mean “It would beadvisable for you to attend”. Given the question posed by Ms.

Kratochvil, if it were the intention of the learned judge to require herattendance before the JCM, the answer ought to have been “You are required to attend on January 20”, or, simply, “Yes”. [8] The court process is confusing for the many unrepresented litigants who appear in this court. I think it unlikely that Ms.Kratochvil understood very much of the exchange between Mr. Patola and the learned trial judge which preceded Ms. Kratochvil’ squestion.

If think it necessary to provide clear and unambiguous directions to unrepresented litigants if we are to attach criminalconsequences to a failure to comply with those directions. Mens Rea [9] In R. v. Sault Ste. Marie (City) (SCC), [1978] 2 SCR 1299, Justice Dickson said that there are three categoriesof offences: 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved bythe prosecution either as an inference from the nature of the act committed, or by additional evidence. 2.

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event.

These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey'scase. 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. In relation to those three categories, Justice Dickson said: Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the secondcategory. They are not subject to the presumption of full mens rea.

An offence of this type would fall in the first category only if suchwords as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On theother hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liabilitywould be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act.

Theoverall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and theprecision of the language used will be primary considerations in determining whether the offence falls into the third category. [10] There is an unresolved difference of judicial opinion in relation to an offence under

section 145 of the Criminal Code. Most ofthe decided cases conclude that the offence is “criminal in the true sense”, and so falls within the first category described by Justice Dickson. For example in R. v. Weishar [2003] OJ No. 3065; (ON SC), 13 CR (6th) 59, Justice Thomas said atparagraphs 39 – 41:

In

summary, it is incumbent upon the Crown to prove mens rea on a charge of failing to appear in Court contrary to s. 145(5) of theCriminal Code. "Honest mistake" or "mistake of fact" and even "forgetfulness" may negate the requisite guilty state of mind. Adefendant is entitled to raise a defence of lack of guilty intention based on carelessness which falls short of wilful blindness orrecklessness. Recklessness is the attitude of a person who, aware that there is a danger his conduct could bring about the prohibited result,nevertheless persists, despite the risk.

It is the conduct of one who sees the risk and takes the chance. It is conduct whereby the persondoes not desire a harmful consequence but nonetheless foresees the possibility and consciously takes the risk. It is the state of mind of aperson who does not care about the consequences of his or her actions.

Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in acourse of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become awareof the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remainignorant.

The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilfulblindness it is justified by the defendant's fault in deliberately failing to inquire when he knows there is a reason for inquiry … A very helpful discussion of the ensuing authorities is found in R. v. Loutitt 2011 ABQB 545; [2011] AJ No. 1000; 284 CCC (3d) 518. Irefer also to R. v. Charlie 2012 YKTC 58; [2012] YJ No. 68. [11] I find the analysis in Weishar and Loutitt to be persuasive, as I do the following comments of Justice Kilpatrick in R. v.

Josephie2010 NUCJ 7; [2010] Nu J No. 4 at paragraph 25: An objective mens rea requirement would criminalize the behaviour of a wide range of citizens who are challenged by mentaldisabilities and psychological and psychiatric disorders. The objective standard of reasonable diligence would cast its net broadly. Many disadvantaged individuals, including those afflicted by Fetal Alcohol Spectrum disorder, would not likely measure up to such astandard.

If it were open to me to do so, I would follow Weishar and Loutitt, and conclude that the Crown must prove intention, recklessness orwilful blindness to sustain the charge against Ms. Kratochvil. The evidence falls far short of that standard. So, if the law was correctlystated in those cases, Ms. Kratochvil would be entitled to be acquitted because the requisite mens rea has not been proven. [12] Mr. Patola relies upon R. v. Ludlow 1999 BCCA 365; [1999] BCJ No. 1359; 136 CCC (3d) 460 in support of the propositionthat an offence under

section 145 falls within the second category of offences described by Justice Dickson in Sault Ste. Marie. InLudlow, Justice Hall said at paragraphs 38, 40: The offence of failing to appear is not one of particularly high stigma and in appropriate cases, a court could impose a dischargedisposition upon a finding that an accused had breached the section. I prefer the reasoning in a case cited to us, R. v. Preshaw et al.(1976) (ON CJ), 31 C.C.C. (2d) 456 (Ont. Prov.

Ct.), a judgment of Langdon P.C.J., holding that simply forgetting thedate is not generally going to amount to a lawful excuse contrary to the conclusion reached in the earlier cases adverted to in Legere. Those cases found that a failure to remember the date could be a defence. Nor would it seem appropriate to conclude that self-inducedintoxication by alcohol or drugs leading to a failure to appear could amount to a lawful excuse for failure to attend court as required. Iagree with the conclusion of Murphy Co. Ct. J., (as he then was), in the case of R. v. Storzuk, [1984] B.C.J.

No. 908 (QL) that self-induced intoxication was not an answer to a charge of failure to appear. * * * It must not be overlooked that an obligation is imposed by statute on a person bound by an undertaking or recognizance to attend at courtas required or directed by the terms of the operative document. Forgetting to appear seems to me a very marked departure from therequirement imposed on an accused at liberty on an undertaking or recognizance to faithfully observe the requirement to attend.

Mostpeople would and should recognize that a serious obligation concerning the proper administration of justice is thereby imposed on anaccused and a failure to attend, absent a compelling reason, or as in the instant case, an honest and reasonably based belief that noattendance is required, should usually result in a finding of a breach of the section. I would say the fault or mens rea requirement for thisclass of offence has a large element of the objective about it.

Conviction can be avoided if an accused establishes a lawful excuse by ashowing of due diligence to satisfy the obligation, including an honest and reasonable belief in a state of facts that would excuse non-attendance. I think it fair to point out that, while lengthy jail sentences are uncommon in prosecutions for failure to appear, a conviction for thatoffence has other serious implications for the offender. In particular, a record of a conviction for failure to appear may be a materialimpediment to a bail application on a future charge, and is also a barrier to travel to certain countries.

I find it difficult to place theoffence in the same category as regulatory or “public welfare” offences. [13] It should be noted that Justice Hall’s observations, quoted in paragraph 11, were obiter dicta. Justice Hall (Justice Cummingconcurring) allowed Mr. Ludlow’s appeal, on the ground that Mr. Ludlow had proven a reasonable excuse for his failure to appear, andacquitted him. However, I think that I am bound by obiter dicta of the British Columbia Court of Appeal: Scarf vs Wilson (BC CA), [1988] BCJ No. 2283; 55 DLR (4th) 247; 33 BCLR (2d) 290. For that reason: (

i) I am not at liberty to follow the line ofauthority exemplified by Weishar; and (ii) if the actus reus had been proven, I would have felt obliged to convict Ms. Kratochvil. Disposition [14] Ms. Kratochvil is acquitted. November 16, 2016

T. Gouge, PCJ