R. v. Dixon Date:, 2011 BCPC 172

Citation: R. v. Dixon Date: 20110504 2011 BCPC 0172 File No: 55320-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL JAMES DIXON EXCERPTS FROM PROCEEDINGS RULING ON CROWN’S VUKELICH APPLICATION OF THE HONOURABLE JUDGE J. AUXIER Counsel for the Crown: R. Bellis Counsel for the Defendant: H. Hunter Place of Hearing: North Vancouver , B.C. Date of Judgment: May 4, 2011 [ 1 ] THE COURT: Mr. Dixon is charged with refusing to comply with an ASD demand, an offence alleged to have been committed on May 27th, 2010.

In September 2010, the Motor Vehicle Act was amended to include IRP provisions, immediate roadside prohibitions, and since then, as all of us in the legal system know, the number of charges laid under the drinking and driving provisions of the Criminal Code have fallen significantly. Generally, the police seem to be using these new provisions of the Motor Vehicle Act to deal with drunk drivers. [ 2 ] Mr. Hunter, counsel for Mr.

Dixon, submits that this results in unfair prosecution of one group of persons, those charged with impaired driving offences prior to September 20th, 2010, while another group, those apprehended by the police after September 20th, 2010, does not face criminal prosecution despite the fact that no changes have occurred in the Criminal Code itself respecting the impaired driving laws of the country. He argues that this contravenes ss. 7, 8, 9, 11(1), s. 12, s. 15 of the Charter and seeks remedy pursuant to s. 24(1). [ 3 ] Ms.

Bellis on behalf of the Crown requested what is commonly referred to as a Vukelich hearing to determine the merits of this constitutional challenge. She submits that there is no legal basis on which the Charter application could possibly succeed and urges the court to decline to undertake any further factual or legal inquiry into the allegation of an unfair prosecution. She presented very thorough written submissions to support her argument and I have simply paraphrased portions of those submissions.

[ 4 ] At common law, the exercise of Crown independence is generally immune from judicial review except under the doctrine of abuse of process and I highlight those words. Similarly, under the Charter , exercise of prosecutorial discretion does not in itself violate s. 7. [ 5 ] Rather, the Supreme Court of Canada in cases such as R. v. T. and R. v.

Beare have found it to be an essential feature of the criminal justice system that the Crown's decision to commence and continue with a criminal prosecution constitutes an exercise of discretion that is at the core of the prosecutorial function. [ 6 ] So I look to see whether the situation before me constitutes an abuse of process. There are two categories of abuse of process. One involves impairment of the accused's fair trial interests and a sense of being able to make full answer and defence.

That is not really alleged here. [ 7 ] The other residual category involves conduct which will significantly taint the repute of the administration of justice, and that is what Mr. Hunter alleges is occurring here. He repeats that we have got one group of people being dealt with differently based on the date of the alleged offence. One side is being unfairly prosecuted and he argues that offends the community's basic sense of decency and fair play. [ 8 ] He is not suggesting any abuse of process in the initial charging of Mr. Dixon.

The abuse arises, he says, by the Crown continuing with the prosecution resulting in his client being treated differently than someone charged with the same offence subsequent to September the 20th of 2010. [ 9 ] Now, Ms. Bellis has outlined the circumstances in which prosecutorial discretion may be overruled. If a decision made by Crown counsel involves the exercise of prosecutorial discretion, the courts cannot review or interfere with the decision except in circumstances involving flagrant impropriety, bad faith, or arbitrary or oblique motives. [ 10 ] She cites the decision of R. v.

T.V. which cites a passage from Madam Justice L’Heureux-Dubé’s judgment in the R. v. Power case, and I quote, there must be: ... conspicuous evidence of improper motives or of bad faith or of

an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. [ 11 ] So it is a very high threshold. For the court to hear this application, defence counsel must meet the burden of showing that there is a tenable basis for alleging an abuse of process. The mere allegation is not sufficient to allow the calling of evidence respecting the exercise of the prosecutorial discretion, and I find to accede to Mr.

Hunter's submission would be to attack the ongoing exercise of the Crown's discretion. As I stated at the outset, this discretion is at the core of the prosecutorial function. [ 12 ] I find that Mr. Hunter has not met the very high threshold of satisfying me that the Crown has shown conspicuous evidence of flagrant impropriety, bad faith, or arbitrary or oblique motives and, accordingly, I do decline to take any further factual or legal inquiry into the allegation of "unfair prosecution," and would suggest we commence with the trial. (RULING CONCLUDED)