R. v. Bernard, 2021 BCPC 13

Citation: R. v. Bernard 2021 BCPC 13 Date: 20210119 File Nos: 29422-1; 29617-2-C; 30515-1; and 30546-1; 30745-1 Registry: Downtown Community Court IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. TRAVIS DARREN BERNARD AND JANINE RENATA FIRTH AND RYAN TRAVIS PENNER REASONS ON APPLICATION FOR PROCESS OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: R. Carot Amicus Curiae: G. DelBigio, QC Place of Hearing: Vancouver , B.C. Dates of Hearing: November 17, 23; December 19, 21, 2020 Date of Judgment: January 19, 2021

A Corrigendum was released by the Court on January 27, 2021. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] The Crown applies for new process for the three accused persons; Ms. Firth, Mr. Bernard and Mr. Penner. The application cannot proceed without first considering if the spring 2020, Covid-19 adjournments resulted jurisdiction being lost over the accused. The Court cannot issue new process if jurisdiction was lost for more than 3 months.

The determination of whether the Court lost jurisdiction over the accused persons requires consideration of whether the Covid-19 adjournments were lawful and within the Court’s jurisdiction. CIRCUMSTANCES OF THE ADJOURNMENTS Covid-19 pandemic [ 2 ] The onset of the worldwide Covid–19 pandemic triggered a health crisis requiring public institutions, private business and members of the public to re-calibrate their daily operations.

The Provincial Court of British Columbia was no exception and the Court responded by taking rapid and innovative steps that balanced accessibility while protecting the public through reduced court appearances. [ 3 ] Against the above, the Chief Judge of the Provincial Court of British Columbia directed two mass adjournments (“Covid-19 adjournments”) for all out of custody court appearances. The first mass adjournment included all out of custody appearances that were scheduled between March 18, 2020, and May 16, 2020.

These adjournments where directed by the Chief Judge and communicated through a Notice to the Profession and the Public that issued on March 19, 2020, (“Notice”). [ 4 ] The second set of adjournments included all out of custody appearances that were scheduled between May 16, 2020, and July 3, 2020.

These adjournments were directed by the Chief Judge and communicated through a Notice to the Profession and the Public that issued at the direction of the Chief Judge with an effective date of April 28, 2020, (“Notice”). [ 5 ] During the months, March, April, May, June and July, the Office of the Chief Judge issued several messages, updates, and Notices. The Notices were directed to accused persons, counsel and to the public and contained information, instructions and directions regarding the mass adjournments.

The Notices also contained information, instructions and directions regarding court operations, court scheduling and court locations and they concluded with the following: “By Direction of Chief Judge Melissa Gillespie Provincial Court of British Columbia.” [ 6 ] In the result, the Notices effectively adjourned all out of custody appearances to a specific date that was approximately 90 days from any scheduled appearance. These adjournments occurred without the parties appearing before the court and with each court file being noted as adjourned due to COVID-19.

JURISDICTION TO ADJOURN MATTERS The Crown’s position [ 7 ] The Crown submits that there are three primary reasons why the Covid-19 adjournments were lawful and within the Court’s jurisdiction. First, by necessary implication in that the Court is constitutionally equipped to manage its operations and that this ability to manage is fundamental to the Court fulfilling its obligation to conduct criminal hearings.

The Crown submits that this necessary management includes, the assignment of judges, the setting of court sittings and court lists, the allocation of courtrooms and the direction of administrative staff and, in the circumstances, the Covid-19 adjournments. [ 8 ] Second, the Covid-19 adjournments were rules of the court that were created pursuant to s. 482 of the Code.

With this in mind, and as per s. 485 (1.1) of the Code, jurisdiction was not lost over those accused who did not appear provided their non-appearance was due to compliance with a Notice. [ 9 ] Third, is that the Covid-19 adjournments complied with the statutory requirements dealing with adjournments as found in s. 669.1, s. 571 and s. 803 (1) of the Code and, therefore, the adjournments were lawful and jurisdiction was not lost.

Issues raised by the Amicus Curiae [ 10 ] The Amicus, validly cautions the Court that the rational for the adjournments; the worldwide pandemic, is not germane to the analysis of whether jurisdiction was lost over the accused, rather, it is the rule of law that must dictate and inform the necessary decisions. [ 11 ] The Amicus also highlights that the Provincial Court is a statutory court and all authority must originate from statute and all directions and notices must be consistent with and not contrary to any statute. [ 12 ] In their helpful submissions, the Amicus broadly submits that the Court should consider; the authority for the Covid-19 adjournments, whether an accused or an agent was required to be present when the adjournments occurred, and if not, was it necessary to issue process in order to preserve jurisdiction.

Finally, the Amicus points to the process used by the British Columbia Supreme Court wherein mass adjournments occurred, and in doing so, issued bench warrants for the purpose of preserving jurisdiction. ANALYSIS Authority to direct the COVID-19 adjournments [ 13 ] The Provincial Court of British Columbia is a statutory court and it derives all power and authority expressly or by necessary

implication from statute. Accordingly, and in order for the Covid-19 adjournments to fall within the Court’s jurisdiction, the adjournments must be authorized by statue or derived from statute by necessary implication. [ 14 ] I note, and as per the Amicus , that the Criminal Code does not contain any provision that expressly grants the authority to direct mass adjournments in the absence of the accused.

It is also observed that the traditional case law does not address the unique circumstances that the Court faced regarding the Covid-19 adjournments. [ 15 ] Acknowledging the above, I am satisfied that the Court was within its jurisdiction to direct the Covid-19 adjournments in the absence of the accused.

In my view, the combined operation of ss. 482.1, 482 (2), 485 (1.1) of the Code, and the Provincial Court of British Columbia Caseflow Management Rules (“CCFM Rules) authorized the Chief Judge to make directions and rules in the form of the Notices that resulted in the Covid-19 adjournments. [ 16 ] Regarding the above, ss. 482.1 and 482 (2) of the Code, gives the Provincial Court of British Columbia the authority to make rules related to the case management of criminal matters.

Section 482 .1 reads: 482.1

(1) A court referred to in subsection 482(1) or (2) may make rules for case management, including rules (

a) for the determination of any matter that would assist the court in effective and efficient case management; (

b) permitting personnel of the court to deal with administrative matters relating to proceedings out of court if the accused is represented by counsel; and (

c) establishing case management schedules. [ 17 ] The use of the word “including” in the

section suggests that the above list (a –

c) is not exhaustive, despite this, s. 482 (2) of the Code, limits the scope of any rules in that they must not be inconsistent with the Criminal Code or any other Act of Parliament . [ 18 ] In terms of the scope of rules made pursuant to s. 482 of the Code , in R. v. Campbell, 2008 BCSC 805 , Justice Romilly noted: [26] The rules made under s. 482 of the Criminal Code cannot create substantive law, but rather address matters concerning pleading, practice and procedure in criminal matters and case management: R. v. B.C. Tel , 2002 BCCA 363 at para. 55 ; R. v. Harness , 2005 ABCA 245 ; R. v.

Duhamel , 2006 QCCA 1081 at para. 13 [ Duhamel ] . Moreover, expressly stated in s . 482 , such rules cannot be “ inconsistent with this Act [ Criminal Code ] or any other Act of Parliament .” And later observed, [40] As mentioned earlier, it is well-established that the Rules cannot create substantive law, but merely address matters pertaining to practice, procedure and administration.

As articulated by the Quebec Court of Appeal in Duhamel at para. 14 : ... a reading of subs. 482(3) Cr.C ., which defines the purpose of the rules, indicates that they deal with the practical management and administration of the criminal courts, sittings of the court, and the duties of the officers of the court, but not with substantive law. [ 19 ] Relying on the authority contained in s. 482 of the Code, the Provincial Court of British Columbia developed the CCFM Rules.

These rules were approved through an Order in Council and their purpose is found in Rule 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. [ 20 ] Of note, is Rule 3 (1) which gives the Chief Judge the authority to issue practice directions.

The Rule states: The chief judge of the Court may issue practice directions consistent with these Rules and their purpose. [ 21 ] Significantly, s. 485 (1.1) of the Code and the court rules can combine to preserve the jurisdiction over an accused who does not personally appear. In this regard, s. 485 (1.1) reads:

(1.1) 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. [ 22 ] Accordingly, jurisdiction is not lost over an accused who does not personally appear provided their non-appearance was due to a rule. As such, it is necessary to consider if the Notices issued for the Covid-19 adjournments were rules as permitted by s. 482.1 of the Code.

If I am satisfied, that the Notices were rules and not inconsistent with the Criminal Code or any other Act of Parliament , then, and by virtue of s. 485 (1.1), jurisdiction over the accused persons was not lost. [ 23 ] I observe that the Covid-19 adjournments were the result of the Notices that gave direction, instruction and information to the accused, to counsel and to the public. The Notices instructed and informed all participants about the date that the matters were being adjourned to. They also directed that the attendance of the accused or counsel was not required.

In addition, they advised how the Court could be contacted and how persons could have urgent matters addressed. Lastly, the Notices concluded with a statement that they were by direction of the Chief Judge. [ 24 ] In sum, the Notices were created by virtue of the CCFM Rules, specifically, Rule (3), which permits the issuance of directions by the Chief Judge.

The Notices in this case were simple, effective, and efficient and they assisted in maintaining the effective and efficient management of criminal matters which is entirely consistent with the purpose of the CCFM Rules and within the scope as permitted by s. 482.1 (1) of the Code. [ 25 ] For the above reasons, I conclude that the Notices that resulted in the Covid-19 adjournments were rules of the Court as

permitted by Code and that they were not inconsistent with the Code or any other Act of Parliament . In light of these findings, it is not necessary to consider the other points raised by the Crown. Was it necessary for the accused to be present when the adjournments were issued? [ 26 ] The Crown argues that the presence of the accused/agent was not necessary for the Covid-19 adjournments to be lawful. In support, the Crown relies on s. 669.1 (2) of the Code for the proposition that a justice may, at any time before or after the plea, adjourn the proceedings in absence of the accused. [ 27 ]

Section 669. 1(2) reads:

(2) Any court, judge or provincial court judge having jurisdiction to try an accused or a defendant, or any clerk or other proper officer of the court, or in the case of an offence punishable on

summary conviction, any justice, may, at any time before or after the plea of the accused or defendant is taken, adjourn the proceedings. [ 28 ] Considering the plain wording of the subsection, I am satisfied that it indicates who may grant an adjournment and when. Specifically, the “who” is any court, judge, or provincial court judge that has the jurisdiction to try the accused or any clerk or other proper officer of the court and the “when” is at any time before or after the plea is taken. The

section does not expressly prohibit an adjournment in the absence of counsel or the accused, nor, does the

section expressly mandate the presence of the accused or their counsel. [ 29 ] As for the suggestion that the Notices are inconsistent with s. 803 (1) of the Code, s. 803 (1) reads: 803

(1) The

summary conviction 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. [ 30 ] The words of the

section support a finding that an appearance is required when the adjournment of a scheduled trial or the adjournment of a trial that is in progress occurs, and the time and place for the new trial is announced. Hence, the

section addresses only adjournments where a trial has been scheduled and the date and time for the new trial has been set. This

interpretation ensures the accused receives notification regarding their new trial date, thus, avoiding the potential consequences found in s. 803 (2). Therefore and because the accused persons in the instant matters did not have trial dates, s. 803 (1) does not apply and their appearance at the time of the adjournments was not required, accordingly, the Notices were not inconsistent with s. 803 of the Code .

Was it necessary to preserve jurisdiction over the accused by issuing process when the adjournments occurred? [ 31 ] In my view, the issuing of process was not, in the circumstances, necessary to retain jurisdiction over the accused. This is because s. 485 (1.1) of the Code, establishes that the jurisdiction over an accused who does not personally appear is not lost provided the rules of the court permit the non-appearance. As such, and although process can issue, process is not necessary to maintain jurisdiction over the accused, provided their non-appearance is due to compliance with the court rules.

THE APPLICATIONS Ms. Firth [ 32 ] The Crown is seeking a summons for Ms. Firth pursuant to s. 512 of the Criminal Code . [ 33 ] Ms. Firth has Informations 30515-1, 29617-2-C, and 29422-1 before the Court. The relevant appearances and events can be summarized as follows: Informations - 30515-1 and 29617-2-C • On March 16, 2020, Ms. Firth personally appeared before the Court and she was adjourned to appear on March 23, 2020, however, and by operation of the March 19, 2020, Notice, her matters were adjourned without Ms.

Firth appearing to June 22, 2020. • On June 22, 2020, and by operation of the Notice effective April 28, 2020, Ms. Firth’s appearance was adjourned to September 28, 2020. Ms. Firth did not appear on June 22, 2020. • On September 28, 2020, Ms. Firth’s matters were adjourned on various occasions to allow for scheduling and submissions related to the Crown’s application. Information 29422-1 • On August 19, 2020, Ms. Frith was in custody and released with the assistance of counsel. Thereafter, several appearances occurred wherein counsel appeared. There is no issue regarding jurisdiction in relation to this file.

Analysis [ 34 ] Ms. Firth’s matters were lawfully adjourned and jurisdiction over her was not lost. This is because Mr. Firth’s non-appearances were permitted by the Notices as created by the authority in the CCFM Rules. Accordingly, and pursuant to s. 485(1.1) of the Code, jurisdiction was not lost when Ms. Firth did not appear. Given that the Court has not lost jurisdiction over Ms.

Firth, I find that the Court has the jurisdiction to consider if it is appropriate to issue a summons. [ 35 ] In considering the Crown’s application and the surrounding facts, I recognize the public interest in ensuring that charged persons appear before the Court. I also recognize that the procedural history of Ms. Firth’s matters has likely created confusion regarding her next court appearance. Accordingly, I have reasonable grounds to believe that it is in the public interest to issue a summons for Ms. Firth. The

Crown’s application for a summons is granted. Mr. Bernard [ 36 ] The Crown is seeking a summons for Mr. Bernard pursuant to s. 512 of the Criminal Code . [ 37 ] Mr. Bernard has Information 30546-1 before the Court. The relevant dates and appearances can be summarized as follows: Court file – 30546-1 • On February 24, 2020, Mr. Bernard was present in court and he was directed to appear on March 16, 2020. • On March 16, 2020, Mr. Bernard did not appear.

His matter was adjourned to May 25, 2020, and at the time of this adjournment, the Record of Proceedings was marked “COVID-19 Adjournment” and his non-appearance was noted. It appears that this adjournment was based on an understanding that mass adjournments were about to begin, however, the adjournment occurred before any Notice was issued. • By operation of the Notice effective April 28, 2020, Mr. Bernard’s May 25, 2020, appearance was adjourned in his absence to August 24, 2020. • Due to an administrative error, Mr. Bernard’s matter did not appear on the court list on August 24, 2020.

This error was recognized and his matter was added to the court list on September 15, 2020. Mr. Bernard did not appear on this date and his matter was adjourned on various occasions to allow for scheduling and submissions related to the Crown’s application. Analysis [ 38 ] I conclude that the Court lost jurisdiction over Mr. Bernard on March 16, 2020, and that jurisdiction was not regained. Accordingly, this Court does not have the jurisdiction to issue a summons for Mr. Bernard. [ 39 ] My decision regarding jurisdiction over Mr. Bernard is based on the following. On March 16, 2020, Mr.

Bernard did not appear in court as required and yet his matter was adjourned to May 25, 2020. This adjournment was before any Notice was issued, therefore, the adjournment cannot be linked to the CCFM Rules. In fact, it appears that the adjournment was based on an anticipation of reduced court operations and not by operation of any directive. [ 40 ] As for the Notice effective April 28, 2020, it did not re-establish jurisdiction over Mr. Bernard.

This is because the only mechanisms by which jurisdiction can be reacquired are; the voluntarily appearance of the accused or if the Court pursuant to s. 485(2) of the Code issues new process within 3 months of jurisdiction being lost. Neither of these events occurred and in the result the Court does not have jurisdiction over Mr. Bernard and cannot issue a summons. For these reasons, the Crown’s application for a summons is dismissed. Mr. Penner [ 41 ] The Crown is seeking a summons for Mr. Penner pursuant to s. 512 of the Criminal Code . [ 42 ] Mr. Penner has Information 30745-1 before the Court.

The relevant appearances and dates can be summarized as follows: Court file – 30745-1 • On March 16, 2020, Mr. Penner, unlike Mr. Bernard, appeared before the Court with counsel and his matter was adjourned to May 25, 2020. The Record of Proceedings was noted “COVID-19 Adjournment”. • By operation of the Notice effective April 28, 2020, Mr. Penner’s May 25, 2020, appearance was adjourned to August 24, 2020, however, due to an administrative oversite his matter was not added to the court list. This error was recognized and Mr. Penner’s matter was added to the court list on September 15, 2020. • Mr.

Penner did not appear on September 15, 2020, and his matter was adjourned on various occasions to allow for scheduling and submissions related to the Crown’s application for process. • Of significance is, on November 23, 2020, this Court issued a public interest warrant pursuant to s. 512 of the Code with the direction pursuant to s. 511 (3) of the Code that the warrant not be executed until the Crown’s application for process was considered. [ 43 ] From the above, I find that jurisdiction over Mr. Penner was lost on August 24, 2020, but that it was re-acquired when the warrant was issued on November 23, 2020.

My findings are based on the following. Unlike Mr. Bernard, Mr. Penner appeared before the Court on March 16, 2020, and his matter was properly adjourned to May 25, 2020. Then, and by virtue of the Notice effective April 28, 2020, the May 25, 2020, appearance was adjourned to August 24, 2020. W hen the matter did not appear on the list on August 24, 2020, nothing occurred that operated to preserve jurisdiction. Specifically, a warrant or summons, did not issue, nor was Mr. Penner in attendance, rather, the matter remained dormant until the oversite was noted, and it was added to the list on September 15, 2020.

Thereafter, the matter was adjourned to various dates and on November 23, 2020, a warrant was issued for Mr. Penner. In the result, and by virtue of s. 485 (5) of the Code, the issuing of the warrant regained jurisdiction over Mr. Penner. [ 44 ] For the above reasons, I am satisfied that the Court now has jurisdiction over Mr. Penner and process can issue. [ 45 ] The history of Mr. Penner’s matters leads me to conclude that he is unlikely aware of his court date. The public has an interest in ensuring that charged persons appear before the courts.

Accordingly, I have reasonable grounds to believe that it is in the public interest

to issue a summons for Mr. Penner and the Crown’s application for summons is granted. Lastly, the warrant that was issued and held on November 23, 2020, is cancelled. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia 1 See Link https://www.provincialcourt.bc.ca/about-the-court/practice-directions/NoticestotheProfession CORRIGENDUM – Released January 27, 2021 [1] On the cover page, “QC” has been removed after Crown Counsel R. Carot’s name. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia