R. v. Karner, 2017 BCPC 105

Citation: R. v. Karner, Smith and Yue Date: 20170329 2017 BCPC 105 File Nos: AH90203086 AH90203169 AH90203119 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Traffic REGINA v. NICHOLAS KARNER AND MARK SMITH AND RENY YUE ORAL REASONS FOR JUDGMENT OF JUDICIAL JUSTICE B. ADAIR

Appearing for the Crown: Cst. Knox Appearing on their own behalf: N. Karner, M. Smith, R. Yue Place of Hearing: Richmond, B.C. Date of Hearing: March 29, 2017 Date of Judgment: March 29, 2017 [1] Nicholas Karner is before the Court with respect to a traffic ticket for speeding from July 6, 2015. [2] Mark Smith is before the Court with respect to a traffic ticket for speeding from July 4, 2015. [3] Reny Yue is before the Court with respect to a traffic ticket for speeding from July 5, 2015. [4] The defendants Nicholas Karner, Mark Smith and Reny Yue are not represented by counsel.

As such, this Court has anobligation to assist the defendants to bring forward any defences that are manifest on the Record of Proceedings, or that arise on the factsof the case. See R. v. Rahmani, 2017 BCPC 72, and the cases cited therein. [5] This duty includes an obligation on the Court to address any Charter or Charter-like issues that might reasonably be apparent inthe proceedings. See:

a) R. v. Arbour, [1990] O.J. No. 1353 (Ontario Court of Appeal)

b) R. v. Beaver, [2006] NWTJ 1, (Northwest Territories Supreme Court) [6] In this case, the Record of Proceedings sets out a delay of 21 months from the date of the alleged offence to today’s trial date. That is a delay well beyond the guidelines set out by the Supreme Court of Canada in R. v. Jordan 2016 SCC 27. None of that delay hasbeen caused by the defendants. Nor does this Court assign responsibility for the delay upon the officer. Rather, it appears that the lackof adequate funding to the responsible bureaucracy has resulted in the delay in getting this matter to trial. [7] Most trial courts have two options in terms of dealing with unreasonable delay:

a) The Charter, especially s. 7 and 11(b),

b) The common law doctrine of abuse of process. [8] As at the Supreme Court of Canada noted in R. v.

O’Connor (SCC), [1995] 4 S.C.R. 411, the two options“largely overlap”, although the Supreme Court: …has consistently, albeit implicitly, considered abuse of process separately from the Charter…” (paragraph 67) [9] At paragraph 69 of O’Connor, the Court noted that: …the Charter regime is more flexible than the common law doctrine of abuse of process…It is important to recognize that the Charterhas now put into judges’ hands a scalpel instead of an axe… [10] Clearly, therefore, if the Charter is available to the Court, it is to be preferred as the instrument of both assessment and ofremedy.

For example, in paragraph 73 of O’Connor, L’Heureux-Dube observed: …For instance, where the accused claims that the Crown’s conduct has prejudiced his ability to have a trial within a reasonable time,abuse may be best addressed by reference to s. 11(

b) of the Charter, to which the jurisprudence of this Court has now established fairlyclear guidelines (Morin, supra)… [11] But where the Charter is not available to the trial court (as is the case with Judicial Justices by virtue of the limitation imposedby the Provincial Court Act), is the “axe” of the common law doctrine of abuse of process still available for those “clearest of cases”? [12] In my view, Supreme Court of Canada cases subsequent to O’Connor have clearly answered that question in the affirmative. For example, in R. v.

Nixon, 2011 SCC 34, the Court concluded that a stay of proceedings under the common law doctrine of abuse ofprocess was still available where: (paragraph 42) (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome, and (2) no other remedy is reasonably capable of removing that prejudice. [13] Likewise, in R. v.

Babos, 2014 SCC 16, the Court observed at paragraph 31 - 32: [31] Nonetheless, this Court has recognized that there are rare occasions --- the “clearest of cases” --- when a stay of proceedings for anabuse of process will be warranted (reference to O’Connor). These cases generally fall into two categories: (1) where state conduct

compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category)… [32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the judicial system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome…

(2) There must be no alternative remedy (short of a stay of proceeding) capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct, and preserving the integrity of the justice system, against the “interest that society has in having a final decision on the merits”. [ 14 ] The state delay in bringing these cases to trial comfortably exceeds the 18 month guideline set out by the Supreme Court of Canada in R. v. Jordan , 2016 SCC 27 . Any application under the Charter for a judicial stay would almost certainly be granted, but that would require the defendants to jump through four further procedural hurdles:

a) preparing necessary documents under the Constitutional Questions Act ;

b) serving the Provincial and Federal Attorneys General;

c) making an appearance before the Judicial Case Manager for a hearing date;

d) attending the hearing on the Application before a Provincial Court Judge. [ 15 ] In my view, those additional steps would increase the delay, and strain already scarce judicial resources, without changing, in any meaningful way, the outcome. As such, in these “clearest of cases”, I opt to use the “axe” of the common law, and to grant a judicial stay of proceedings. ________________________ B. Adair Judicial Justice