R. v. Singh, 2021 BCPC 349

Citation: R. v. Singh 2021 BCPC 349 Date: 20210914 File Nos: EA00047971 and EA00047972 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SARABJOT SINGH ORAL RULING RE DELAY APPLICATION OF THE HONOURABLE JUDGE D. MAH Counsel for the Crown: S. Gillespie Counsel for the Defendant: J. Krueger Place of Hearing: Richmond , B.C. Date of Hearing: August 31, 2021 Date of Judgment: September 14, 2021

[ 1 ] THE COURT : The accused applies for a judicial stay of proceedings on the basis that his s. 11(

b) Charter right to be tried within a reasonable period of time with respect to two traffic tickets has been breached. These are my oral reasons following a hearing on August 31st, 2021. If these reasons are ordered, I reserve the right to make any minor or grammatical changes, which will not affect the substance of these reasons. FACTS [ 2 ] I will first deal with the facts. On February 1st, 2020, the accused was issued tickets for speeding, contrary to s. 146(3) of the Motor Vehicle Act , and for violating a restriction on his driver's licence, contrary to s. 25(15) of the Motor Vehicle Act .

The accused filed disputes of both tickets. [ 3 ] Subsequently, the COVID-19 pandemic caused the Provincial Courts to close. A Notice to the Profession and Public was issued on March 19th, 2020, confirming that all regular operations of the Provincial Court at all locations had been suspended. With specific respect to traffic ticket or bylaw matters, they were adjourned. Further notices followed and ultimately, the hearing of traffic tickets in Richmond resumed on July 13th, 2020. [ 4 ] On May 18th, 2021, a Notice of Hearing was issued for July 30th, 2021, to hear both tickets.

At the hearing on July 30th, 2021, Dilveen Grewal, an articled student for counsel for the accused, attended and advised that the accused intended to make a s. 11(

b) Charter application for both tickets. There is no evidence before me of when the accused retained counsel. [ 5 ] As the hearing on July 30th, 2021 was before a Justice of the Peace who lacked jurisdiction to hear a Charter challenge, the matter was adjourned to August 9th, 2021 to fix a new date before a Provincial Court Judge. The adjournment was also required because the accused had not provided the necessary 14 days' notice of his Charter challenge. [ 6 ] On August 3rd, 2021, the accused filed a Notice of Application for Constitutional Remedy. [ 7 ] In her August 26th, 2021 affidavit, Ms.

Grewal stated that she attended court on August 9th, 2021 to fix a date and does not remember if earlier dates were offered. LEGAL FRAMEWORK [ 8 ] The applicable test in this matter is set out in R. v. Jordan , 2016 SCC 27 (S.C.C.) , where the Court stated that the right to be tried within a reasonable time is central to the administration of Canada's criminal justice system. An 18-month presumptive ceiling was set for the completion of a trial in Provincial Court.

At paragraph 47, the Court set out the test: If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.

We expect stays beneath the ceiling to be rare, and limited to clear cases. [ 9 ] The Court cautioned that the presumptive ceiling was not the aspirational target and that there may be clear cases where the right to be tried within a reasonable time has been infringed, even before the ceiling has been breached. [ 10 ] The first issue before the Court is what is the total and net delay in this matter? Both parties agree that the total delay is 19 months.

There is disagreement about the net delay, as the Crown's position is that six months should be subtracted for the exceptional or discrete circumstance of COVID-19, as well as four further weeks for the adjournment from July 31, 2021, due to the defence's failure to provide sufficient Charter notice. [ 11 ] The accused says that the net delay is 14 months and 17 days, and would deduct three months and 24 days for COVID-19 and 18 days for the Charter delay. [ 12 ] In either result, the presumptive ceiling has not been breached. [ 13 ] The parties provided several cases, which confirm that COVID-19 is an exceptional circumstance.

There is no need to repeat the sound legal analyses, other than to state that COVID-19 was reasonably unforeseen or unavoidable, and Crown counsel could not reasonably remedy the delays emanating from it once they arose. [ 14 ] The defence argued that the COVID-19 period should not be deducted if the Crown did not take appropriate steps to mitigate, which the defence says occurred in this case. The defence points to others who were charged with traffic offences after Mr. Singh, but were heard prior to Mr. Singh.

I do not accept this argument because there is no evidence that the Crown could have done more to mitigate the effects of the COVID-19 closure than what occurred in this matter. [ 15 ] The question then is how much delay due to COVID-19 can be subtracted from the total delay. While the case law is specific to each individual set of facts, including whether a hearing date had been scheduled prior to the COVID-19 closure, the findings do provide some guidance. I have reviewed the cases provided by each party and will focus on the decisions from this province as they are the most germane.

[ 16 ] In R. v. Holness , an unreported decision from November 2020, a traffic ticket was issued on August 31st, 2019, with a first hearing date of October 8th, 2020. On that day, a Charter application was filed. The total delay was 14 months and seven days. After subtracting 14 days for the defence's delay due to the lack of notice regarding the Charter application, the net delay was about 13-and-a- half months. The Crown sought a further reduction of four months due to COVID-19. The Court deducted the period from March 25th to July 13th, 2020, or three months and seven days due to COVID-19.

I note that this period of closure was likely inadvertently misstated and calculated in this matter and likely should have been longer than stated. [ 17 ] In R. v. Zumpano , an unreported decision from January 2021, a traffic ticket was issued on April 24th, 2019. Prior to the pandemic, a first hearing date was scheduled for June 26th, 2020. However, the hearing was reset for November 10th, 2020, after traffic court in Duncan resumed on October 1st, 2020. The total delay was 21 months and three days and the Court subtracted three months and five days for the COVID-19 delay. [ 18 ] In R. v.

Habus , an unreported decision from March 2021, the defendant was issued a ticket on January 9th, 2019 and the hearing was set for March 2nd, 2021, for a total delay of 25 months and 21 days. The Court found the net delay to be 12 months and 11 days, which included a deduction of three months and six days for the pandemic. [ 19 ] In R. v. Taylor , 2021 BCPC 142 (P.C.B.C.), the total delay between the ticket date and the first hearing date was 19 months and 20 days. The defence attributed about four months' delay to COVID-19, leaving the net delay at 15 months and 24 days.

The Court noted that if it had accepted the defence's position, then a stay would have been ordered. However, the Court found that the COVID-19 delay went beyond July 13th, 2020, when the courts reopened, and could have been up to another four months. If so, then the delay would be under 12 months and the Charter breach had not been proven. [ 20 ] In R. v. Tan , an unreported decision from July 2021, the parties agreed that the first period of delay from charge to the first trial date set was institutional delay.

The issue before the Court was how much, if any, of the period of second delay of 10 months and 25 days was attributable to COVID-19. The Crown sought to attribute the entire 10 months and 25 days or in the alternative six months to COVID-19. The defence sought to attribute two months only from the first trial date to the lifting of the court suspension on July 13th, 2020. The Court rejected the defence's position because it artificially constrained the impact of COVID-19 to the relatively short period when court operations were suspended.

The Court also noted that it was not possible for every traffic matter to proceed when the court reopened and that there would be a further four-month backlog of matters to address while the court was closed. The Court found that the pandemic caused delay past July 13th, 2020 and attributed a six month and 18 days' delay to COVID-19. [ 21 ] I find the general analysis and reason in Tan compelling.

It is unrealistic to end the COVID-19 delay on July 13th, 2020, as this conclusion “artificially constrains” the impact of the pandemic and assumes that after being closed, the Court was prepared to hear the accused's matter on the first day it reopened. Further, this position is simply unreasonable. It does not account for the matters which preceded the accused’s nor the backlog of matters, which accumulated during the court's closure. [ 22 ] In the circumstances, I agree with the Crown's position and assess the COVID-19 delay in this matter at six months.

Again, I emphasize that the period of COVID-19 delay is specific to the circumstances of each case. [ 23 ] The parties agree that there is only one other period of delay to consider, which is defence delay due to the accused's failure to provide adequate Charter notice. The accused sets this delay at 18 days and the Crown sets the delay at one month and one day. The difference is 14 days. [ 24 ] I was not provided with any evidence of when the accused retained counsel and why Charter notice was not provided earlier as required.

As such, I find that it would be inequitable if the accused benefited from his failure to provide notice - namely by accepting that 18 days (in this case, defence counsel acknowledged that filing issues caused an additional four days of delay in addition to the two week delay) fell at the feet of the defence and then, the remainder was placed on the Crown causing an increase in the overall delay.

I find that the one-month and one-day delay from July 30th, 2021 to the hearing date is properly defence delay. [ 25 ] As such, the net delay is approximately 12 months and falls below the presumptive ceiling. [ 26 ] The second issue before the Court is if the defence has proven that the net delay is unreasonable by establishing that (1) it took meaningful and sustained efforts to expedite the proceedings and (2) the case took markedly longer than it reasonably should have. [ 27 ] I am not satisfied that the defence took meaningful and sustained efforts to expedite the proceedings or that the case has taken markedly longer than it reasonably should have. [ 28 ] The only evidence that I have been provided about the defendant's attempts to expedite the proceedings is in his affidavit where he deposes that: After I had not heard anything about my ticket for several months, I called ICBC to try and get more information.

I was put on hold for a long time. Their recorded message told me to use ICBC's website to get more information, but I looked around that website and could not find anything. I did not know if there was anywhere else, I could get information about my tickets and so I figured I would just need to wait until I was given a hearing date. [ 29 ] In argument, defence counsel repeated that Mr. Singh called ICBC for information and was told to use the website.

However, there was no further detail provided such as when this call was made and if it was a distinct attempt to expedite the matter, rather than a cursory attempt to inquire which fell below any meaningful and sustained effort. I am mindful of previous judicial comment and defence's argument that an accused who is issued a motor-vehicle ticket is limited in what steps he can take given the centralization process used to administer these matters and that steps can be taken only after the matter is set for hearing.

However, it was still within the defendant's ability to contact the Violation Ticket Centre or the court registry but based on his affidavit evidence, he did neither. The defendant’s evidence is also silent on any steps he took after receiving notice from the Court that a hearing date had been set. As well, I have considered the affidavit evidence of Ms. Grewal, which confirmed that the defendant was unaware if earlier dates had ever been canvassed. Respectfully, there is a lack of evidence and I find that the defendant made only one cursory attempt to follow-up.

[ 30 ] In addition, there was no explanation for the late Charter notice, which necessitated an adjournment and is far from a meaningful or sustained step. As the Court said in Jordan at paragraph 84 : Here, the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. Substance matters, not form. [ 31 ] A similar conclusion was reached in R. v.

Ali Ismail , 2020 BCPC 144 (P.C.B.C.), where the Court held at paragraph 103 that defence counsel’s failure to provide adequate, timely notice of the accused's Jordan application was "inconsistent with a desire for an expeditious hearing.” There may have been a genuine reason for the failure to provide adequate Charter notice, but the defendant has the onus in this regard and has not met it. [ 32 ] As the defendant bears the burden of proof, I find that he has failed to prove any meaningful and sustained efforts. [ 33 ] Even if I am wrong, I find that this case has not taken markedly longer than it reasonably should have. [ 34 ] The accused presented previous decisions where a delay period similar to the one here was found to be unreasonable. [ 35 ] In R. v.

Podger , 2009 BCPC 135 (P.C.B.C.), the accused was issued a ticket on December 9th, 2007. The Court applied the test from Morin and found that the length of delay, near 13 months, was substantial and unreasonable. [ 36 ] In R. v. Drummond , 2009 BCPC 57 (P.C.B.C.), the accused was issued a ticket on August 1st, 2007. The delay was over 14-and- a-half months. The Court held that it was unconscionable that a Notice of Dispute simply went into a wasteland for over 13 months, without any hint that the judicial system intended to proceed with the matter and found the delay unreasonable. [ 37 ] In R. v.

Tran , 2014 BCPC 228 (P.C.B.C.), the accused received a ticket on July 23rd, 2012. On October 31, 2013, a Notice of Hearing was mailed for a hearing date of January 6th, 2014. At the hearing, the accused provided notice of a Charter argument and the matter was put over to March 12th, 2014 or 19-and-a-half months after the ticket. The Court in that case found that a breach of s. 11(

b) of the Charter had been established on a balance of probabilities. [ 38 ] The significant difficulty with the applicability of these cases is that they were decided prior to Jordan . It is unclear if the same decisions would have been reached under the Jordan analysis and directives. [ 39 ] I do note that I was provided with the decision in R. v. Baryar, 2021 BCPC 40 (P.C.B.C.), where the accused was issued a ticket on January 27th, 2019. On October 27th, 2019, the accused was advised of a hearing date of February 21, 2020.

On November 4th, 2019, the accused requested disclosure from the District Commercial Vehicle Security Enforcement Manager but none was received before February 21, 2020. At the hearing, the matter was adjourned due to the lack of disclosure. It was rescheduled to May 5th, 2020, but adjourned due to the pandemic. On August 10th, 2020, a Charter notice was filed. The hearing was set for November 13th, 2020, but due to the lack of affidavit evidence, it was adjourned until January 11th, 2021. The Court found that the delay was 17 months and 22 days after deduction for COVID-19.

The Court found that while this delay was below the presumptive ceiling and may not be unreasonable in all cases, it was unreasonable in these circumstances. [ 40 ] I distinguish Baryar , as the delay in that case was almost six months longer than the subject case.

Further, I agree with the Court's comment in Tan at paragraph 54, where it found that traffic cases in Richmond often take upwards of a year to resolve. [ 41 ] Finally, I would like to address the defence's submission that the delay is unreasonable based on other traffic matters in the Richmond registry, which were initiated after but resolved before Mr. Singh's.

Specifically, the defence tendered evidence of a traffic offence date of November 6th, 2020, with a first hearing date of May 21, 2021 (six months and 15 days); a traffic offence date of January 26th, 2021 with a first hearing date of July 29th, 2021 (six months and three days); and a third traffic offence date of October 14th, 2020, with a first hearing date of January 28th, 2021 (three months and 14 days). [ 42 ] While this evidence does pique interest, I place little weight on it as these matters were initiated after the Court reopened.

In other words, these matters were not subject to a four-month court closure and the subsequent challenges of dealing with the effects of the COVID-19 closure and the new traffic matters, which accumulated during that time. It may be and is likely the case that these matters simply reflect the level of function of the Richmond registry post COVID-19. [ 43 ] Similarly, in his affidavit, Mr. Singh deposed to a friend who received a ticket on May 16th, 2020 and a hearing date for June 1, 2021.

However, that matter was before the Surrey Provincial Court and as such, I place little weight on that evidence as well. [ 44 ] Based on the foregoing, Mr. Singh's application is dismissed. (RULING RE DELAY APPLICATION CONCLUDED)