R. v. Parchment Date:, 2015 BCPC 193

Citation: R. v. Parchment Date: 20150702 2015 BCPC 0193 File No: 74294-4-AC Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ONEIL CONSTANTINE PARCHMENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: T. I. McFadgen Appearing in person: Mr. Parchment

Place of Hearing: Nanaimo, B.C. Date of Hearing: June 15, 2015 Date of Judgment: July 2, 2015 Background [1] As a result of the events described in paragraph 8, Mr. Parchment was charged with breach of his bail conditions. I heard thetrial of that charge on May 5, 2015, and concluded that the Crown had proven beyond a reasonable doubt that Mr. Parchment hadcommitted the offence with which he was charged: R vs Parchment 2015 BCPC 142; [2015] BCJ No. 1114. However, I did not thenconvict Mr.

Parchment because he informed me that he wished to bring an application for a judicial stay of proceedings on the groundthat the prosecution was racially motivated. The Applications [2] Mr. Parchment asserts that this prosecution is motivated by racial prejudice, and that a person of European descent would nothave been prosecuted in similar circumstances. If that is so, the exercise of prosecutorial discretion which authorized the prosecutioninfringed Mr. Parchment’s rights under

section 15 of the Canadian Charter of Rights & Freedoms, and the appropriate remedy may be astay of the prosecution: R vs Anderson 2014 SCC 41 , [2014] 2 SCR 167. [3] Mr. McFadgen raises a preliminary objection to Mr. Parchment’s application. He submits that the application should bedismissed ab initio, on the ground that Mr. Parchment has failed to establish a sufficient evidentiary basis to warrant an enquiry into themotivation of the prosecution: Anderson @ paragraphs 52 - 53. The Evidentiary Foundation [4] Mr.

Parchment has tendered no direct evidence of racial bias or motivation in the conduct of the prosecution. He says that aninference of racial bias or motivation should be drawn from the circumstances described in paragraphs 5 - 10, below. I note thefollowing observation of Justice Loo in Troy vs Kemmir Enterprises Inc 2003 BCSC 1947; [2003] BCJ No. 2933 @ paragraph 25: …the law recognizes that discrimination is rarely openly displayed, and, in most cases, must be inferred from circumstantial evidence. [5] Mr. Parchment alleges, and has deposed, that: a. On March 10, 2008, Mr.

Parchment was arrested and charged with possession of narcotics for the purpose of trafficking. Whenhe was arrested, Mr. Parchment was in a motor home with four other people. All of those people are drug traffickers, and were wellknown to the arresting officer as such. Although Mr. Parchment is also a drug trafficker, with an extensive record for drug offences, hewas not known to the arresting officer. Mr. Parchment is of African descent. The other four people in the motor home were of Europeandescent. Illicit drugs and drug paraphernalia were found in the motor home. Mr.

Parchment was arrested and charged with possessionfor the purpose of trafficking. None of the others was arrested or charged. Mr. Parchment was acquitted of that charge. I will refer tothat process as “the First Drug Prosecution”. b. On June 15, 2011, two RCMP officers forced entry into Mr. Parchment’s home and robbed him of $280. c. On July 17, 2011, RCMP officers arrested Mr. Parchment, took him to the police station and beat him. The charges upon whichhe was arrested were later stayed by Provincial Crown Counsel. d. On November 22, 2011, the RCMP executed a search warrant at a house in Nanaimo. Mr.

Parchment was one of eightindividuals resident in the house. All of the other residents were of European descent. All of the residents were well-known to theRCMP as drug users and traffickers. Several of them were then on bail while awaiting trial for drug offences. Illicit drugs were foundthroughout the house. The police charged Mr. Parchment with possession of narcotics for the purpose of trafficking. No charges werelaid against any of the other occupants. The arresting officer conducted a strip-search of Mr. Parchment in a brutal and degrading way. Mr.

Parchment was convicted of possession for the purpose of trafficking. His appeal from that conviction was heard in June, 2015. Judgment on the appeal has not yet been rendered. I will refer to that process as “the Second Drug Prosecution”. [6] On December 23, 2013, Mr. Parchment was granted bail pending the hearing of his appeal. One of his bail conditions requiredhim to: … reside at Basement Suite, 67 Porter Road, Nanaimo, British Columbia …, and … not change his address … without the prior order ofthe Court or written permission of the bail supervisor. [7] Mr.

Parchment was arrested after a curfew check in the early morning hours of January 1, 2015, which led the police to believethat he was not then resident at 67 Porter Road. [8] The owner of the house at 67 Porter Road is Ms. Tracey Janvier. Mr. Parchment’s counsel approached her before the bailhearing to arrange a place for Mr. Parchment to live. She advised Mr. Parchment’s counsel that the tenants then in possession would bemoving out before December 23, 2014, and that the house would be available to Mr. Parchment on his release. Mr. Parchment’s counselmade his bail application on the strength of that assurance.

Unfortunately, due to a disagreement between Ms. Janvier and the tenants,the tenants did not move out until early January, and the house was not available to Mr. Parchment when he was released on bail onDecember 23. As a result, he has never resided at 67 Porter Road. Ms. Rains, Mr. Parchment’s bail supervisor, met with Mr Parchment,

for the first time, on December 29, 2014. She reviewed the bail conditions with Mr. Parchment at that meeting. Mr. Parchment signed a copy of the conditions to acknowledge that he had read and understood them. Mr. Parchment told her that he was living at 67 Porter Road with “Tracey”. Mr. Parchment did not request any change in the residence condition. Ms. Rains never gave Mr. Parchment permission to reside at any other address. Ms. Rains was away from her office on January 1 - 4, 2015. When she returned to work on January 5, she received a letter from Mr.

Parchment, dated December 31, 2014, requesting a change in the residency condition. If she had received that request before January 1, she would have considered it on its merits. [ 9 ] Mr. Parchment alleges that it is the practice of police and bail supervisors to resolve residency issues, like the one described in paragraph 8, by assisting the person on bail to find an alternate residence, and that a Caucasian would not have been charged with breach of bail conditions in those circumstances. [ 10 ] Mr. Brian Jones appeared as Crown counsel at the trial before me. Mr.

Jones is a senior and respected member of the criminal bar on Vancouver Island. a. Mr. Parchment points out that Mr. Jones acted as Crown counsel on the First Drug Prosecution. He holds Mr. Jones responsible for the decision to prosecute only Mr. Parchment, and to refrain from prosecuting any of the Caucasians found in the vehicle. He also complains of prosecutorial misconduct on the part of Mr. Jones during the First Drug Prosecution. b. Mr. Parchment contends that an inference should be drawn from Mr. Jones’ decision to prosecute the minor offence with which Mr. Parchment is now charged.

He says that the prosecution of such a minor offence would normally be conducted by junior Crown counsel, and that this case is being prosecuted only because of Mr. Jones’ racially-based animus toward Mr. Parchment. A Problem [ 11 ] As Justice Loo noted in Troy , few allegations of racial motivation can be proven by direct evidence. In most cases, the allegation can be proven, if at all, only by proving a pattern of behaviour from which an inference may be drawn. A consistent pattern of behaviour over an extended period often provides a more compelling basis for an inference than an isolated incident.

Recognizing that, Mr. Parchment submits that the present prosecution for breach of bail is simply a continuation of a campaign of racially-motivated harassment of him by the RCMP and Mr. Jones, which began with the First Drug Prosecution, continued through the RCMP actions described in paragraphs 5(

b) and 5(

c) and the Second Drug Prosecution, and has culminated in the charge of breach of bail which is now before me. In his written submissions, Mr. Parchment says: Based on Brian Jones’ history of prosecuting me and letting my Caucasian friends go free, I am convinced that it is his long held personal grudge against me and his desire to exact revenge against me that motivates him not to direct the RCMP to resolve this issue in the community, like they have been resolving all other similar issues out of Court. [ 12 ] In order to fairly adjudicate either Mr. Parchment’s application or Mr.

McFadgen’s preliminary objection to it, I must consider the evidence summarized in paragraphs 5 - 10 to determine whether it establishes, or is capable of establishing, the racial motivation alleged by Mr. Parchment. That gives rise to a problem. The problem is that, in so doing, I would be obliged to review the circumstances leading up to the First and Second Drug Prosecutions, and the proceedings before the Supreme Court of British Columbia in those prosecutions, and to form an opinion as to whether the process in those prosecutions infringed Mr. Parchment`s rights under

section 15 of the Canadian Charter of Rights & Freedoms. That might be appropriate if I possessed some supervisory jurisdiction over proceedings in the Supreme Court of British Columbia , but I do not. Indeed, as noted below, the contrary is true. The Supreme Court of British Columbia possesses prerogative supervisory jurisdiction over proceedings in this court, and has jurisdiction to grant the remedy which Mr. Parchment seeks from me. I have no correlative jurisdiction in relation to the First or Second Drug Prosecution.

I observe that the Second Drug Prosecution has not yet been finally adjudicated. [ 13 ] If Mr. Parchment’s allegations are correct, and can be substantiated, it would be open to him to apply for a judicial stay of the Second Drug Prosecution on the same grounds as those advanced on the application before me. It may or may not be too late for him to make that application, but that is not for me to decide. If I were to decide Mr. Parchment`s application in this case, I would be obliged to decide the very issues of fact and law which would arise if Mr.

Parchment were to apply for a judicial stay of the Second Drug Prosecution. [ 14 ] There are three good reasons for me to decline to decide the issue raised by Mr. Parchment on this application: a. Because I lack any supervisory jurisdiction over proceedings in the Supreme Court of British Columbia , it would be unseemly for me to review the process of that court in an attempt to determine whether that process infringed Mr. Parchment`s Charter rights. That determination ought to be made, if at all, by the court whose process he impugns. b. Mr. Parchment alleges prosecutorial misconduct by Mr.

Jones during the First Drug Prosecution, and puts forward that misconduct as corroborative of his allegation that Mr. Jones is biased against Mr. Parchment on personal and racial grounds. The allegation of misconduct arises from Mr. Jones’ activities as an officer of the Supreme Court of British Columbia , not as an officer of this court. c. An unfortunate situation would arise if I were to decide the issues raised on this application, and Mr. Parchment were to later apply for a judicial stay of the Second Drug Prosecution.

The judge hearing that application would be confronted with my conclusions on the relevant issues of fact and law, and might be hampered by those conclusions in forming her own conclusions on the same issues. The Solution [ 15 ] If there were no other convenient forum in which Mr. Parchment could obtain the relief which he seeks from me, the matters raised in paragraph 14 would not be determinative. Neither procedural difficulties nor judicial comity may be invoked to prevent a

citizen from asserting his constitutional rights, or from procuring an appropriate remedy for infringement of those rights. [16] However, there is another convenient forum in which Mr. Parchment can apply for the remedy which he seeks from me. TheSupreme Court of British Columbia possesses concurrent original jurisdiction in relation to the application which Mr. Parchment hasmade before me: Mills vs the Queen (SCC), [1986] 1 SCR 863, per Justice Lamer @ pages 892 - 899.

I observe that,although Justice Lamer dissented in the result, his reasoning on this point was adopted by Chief Justice Dickson (who concurred in thejudgment of Justice Lamer), and by Justices Wilson (at page 967) and LaForest (at pages 971 - 972). On the point now under discussion,Justice Lamer’s views were those of the majority of the court. Justice Lamer’s views are entirely consistent with, and supported by, thejudgment in R vs Caron 2011 SCC 5 , [2011] 1 SCR 78. [17] I accept, of course, that an application of the kind made by Mr. Parchment should normally be decided by the trial judge.

However, where, as here, there are compelling reasons for the application to be decided by a superior court, I think it right to declinejurisdiction and to leave Mr. Parchment to pursue his remedies in that court. [18] Lest there be any doubt, I wish to make it clear that I express no opinion as to the merits of Mr. Parchment’s application or ofMr. McFadgen’s preliminary objection to it. [19] When a court declines jurisdiction on grounds of forum non conveniens, the appropriate remedy is a stay of the proceeding toallow adjudication in the convenient forum. As a result: a. I direct a stay of Mr.

Parchment’s application in this court, and of Mr. McFadgen’s preliminary objection to that application. Mr. Parchment is free to pursue his application in the Supreme Court of British Columbia. If he does, Mr. McFadgen can raise hispreliminary objection in that court. I do not direct a stay of the charge of breach of bail conditions, of which I remain seized. b. I previously adjourned the trial of the charge of breach of bail conditions to allow Mr. Parchment time to bring his application. That adjournment will continue, so as to allow Mr.

Parchment the opportunity to bring his application to the Supreme Court of BritishColumbia. Accordingly, this case will be adjourned to the Judicial Case Manager at 9:00 a.m. on Tuesday, July 7, 2015, to fix a date forcontinuation in September, 2015. A further adjournment may be necessary at that time, depending on the status of Mr. Parchment’sapplication to the Supreme Court. July 2, 2015 __________________________ T. Gouge, PCJ