The Attorney General of British Columbia Applicant v. The Provincial Court of British Columbia, 2021 BCSC 97

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: British Columbia (Attorney General) v. Guo, 2021 BCSC 97 Date: 20210122 Docket: S203878 Registry: Vancouver In the Matter of a Stated Case Under s. 115(1) of the Offence Act , R.S.B.C. 1996, c. 328 Between: The Attorney General of British Columbia Applicant And The Provincial Court of British Columbia Respondent And Zhi Hao Guo Respondent Before: The Honourable Madam Justice Gropper On appeal from: An order of the Provincial Court, dated January 10, 2020 ( AGBC v. Zhi Hao Guo (Violation Ticket No. SG00004846, Robson Square)).

Reasons for Judgment Counsel for the Applicant, appearing via telephone: K. Chewka No other appearances Place and Date of Hearing: Vancouver, B.C. November 20, 2020 Place and Date of Judgment: Vancouver, B.C. January 22, 2021 Introduction [ 1 ] This appeal comes before me by way of stated case, in accordance with s. 115 of the Offence Act , R.S.B.C. 1996, c. 328 . This

section provides that the Attorney General may appeal against a conviction, order, determination or other proceeding of a justice on the ground that it is erroneous in point of law; or in excess of jurisdiction. [ 2 ]

Section 121 of the Offence Act sets out the powers of this Court when presiding over a stated case. The Court may:

a) affirm, reverse or modify the conviction, order or determination,

b) send the case back to the justice for amendment and deliver judgment after it has been amended, or

c) remit the matter to the justice with the opinion of the Supreme Court, and may make

d) any other order in relation to the matter that it considers proper, and

e) any order with respect to costs that it considers proper and that could be made by a justice. [ 3 ] Rule 18-2 of the Supreme Court Civil Rules , B.C. Reg 168/2009 sets out the procedure to be followed in a stated case

proceeding. [ 4 ] The Attorney General seeks the determination of two questions of law, arising in relation to a speeding violation ticket issued under the Offence Act for a violation of the Motor Vehicle Act , R.S.B.C. 1996, c. 318 :

a) Did the judicial justice err in law by imposing a lesser fine than the ticketed amount prescribed by

Schedule 3 of the Violation Ticket Administration and Fines Regulation , B.C. Reg 89/97 ( Fines Regulation ), enabled by the Offence Act , in the absence of evidence that the respondent was unable to pay the amount of the fine, as required by s. 88(1) of the Offence Act ?

b) Did the judicial justice exceed their jurisdiction by imposing a lesser fine than the minimum fine established by s. 148.1(5) of the Motor Vehicle Act and s. 41.03 of the Motor Vehicle Act Regulations , B.C. Reg 26/58 ? [ 5 ] The Provincial Court of British Columbia was served with the notice of application to state a case. It did not file a notice of interest or appear at the hearing. The respondent Zhi Hao Guo was also served with the notice, but did not file a response or appear at the hearing.

Background [ 6 ] On August 8, 2019, at 20:26 hours, an image of a 2017 Porsche bearing licence plate number ER110M (the vehicle) was captured while the vehicle was travelling in or near Vancouver, British Columbia. The respondent is the registered owner of the vehicle. [ 7 ] On August 9, 2019, the respondent was issued a violation ticket. The violation ticket states that the vehicle was recorded speeding contrary to s. 146(1) of the Motor Vehicle Act , which creates the offence of driving a vehicle on a highway in a municipality at a greater rate of speed than 50km/hour.

As a result of s. 83.1(2) of the Motor Vehicle Act , the respondent was liable as the owner of the vehicle for the commission of the offence. The violation ticket includes the wording prescribed by

Schedule 3 of Fines Regulation , to describe the relevant contravention as: “Liable as the owner of the vehicle for the commission of the offence of: Speed in municipality if the speed limit is exceeded by 21 km/hour to 40 km/hour.” [ 8 ] On January 10, 2020, the respondent filed a Violation Ticket Statement and Written Reasons form. The respondent admitted the commission of the offence. In the

section entitled “Written Reasons for a Reduction of the Ticketed Amount(s)”, the respondent stated: I do not agree with the fine. I think the amount is excessive and would like to request a reduction. It wasn’t me driving the vehicle, my friend Yiwen Ruan was driving. This is her first offence. I wish the amount can be reduced. [ 9 ]

Schedule 3 of the Fines Regulation prescribes the ticked amount as $196, which includes a $170 fine and a $26 victim surcharge levy, for an owner who is liable under the Motor Vehicle Act for the contravention of s. 146(1) , if the speed limit is exceeded by 21km/hour to 40 km/hour.

If the owner pays the violation ticket within 30 days of the date the ticket is mailed, then the fine amount is automatically reduced by $25 to $145 for a total ticketed amount of $171. [ 10 ] On January 10, 2020, Judicial Justice Joseph-Tiwary entered a plea of guilty but ordered the respondent to pay at $138, including the victim surcharge levy resulting in a fine amount of $120 and an $18 victim surcharge levy, rather than the prescribed fine amount of $170, plus the $26 victim surcharge levy. There are no reasons from the Judicial Justice for reducing the fine amount. Legislative Framework [ 11 ]

Section 5 of the Fines Regulation provides guidance regarding

Schedule 3, which sets out the applicable fines for the contravention of a Motor Vehicle Act provision:

(2) For the contravention of a provision set out in Column 1 of

Schedule 3, (

a) Column 2 sets out the description of the offence for the purposes of

section 3, (

b) Column 3 A prescribes, for the purposes of sections 14 and 16 (1) of the Offence Act , the fine if payment is made after the 30th day from the date of service or mailing of the violation ticket, (

c) Column 3B prescribes, for the purposes of sections 14 and 16 (1) of the Offence Act , the fine if payment is made on or before the 30th day from the date of service under section 14 (5) of the Act or mailing of the violation ticket under section 14 (6) of the Act, (

d) Column 4 sets out the victim surcharge levy that must be paid with the fine for that contravention, (

e) Column 5A sets out the ticketed amount for that contravention, if payment is made after the 30th day from the date of service under section 14 (5) of the Act or mailing of the violation ticket under section 14 (6) of the Act, and (

f) Column 5B sets out the ticketed amount for that contravention, if payment is made on or before the 30th day from the date of service under section 14 (5) of the Act or mailing of the violation ticket under section 14 (6) of the Act. [ 12 ] In this case,

schedule 3 sets out the prescribed fine for liability of the owner:

Provision Contravention Fine (if paid after 30 days) Reduced fine (if paid within 30 days) Victim Surcharge Levy Ticketed Amount (if paid after 30 days) Reduced ticketed amount (if paid within 30 days)

Section 83.1 (2) for the contravention of section 146 (1) Liable as the owner of the vehicle for the commission of the offence of: Speed in municipality if the speed limit is exceeded by 21 km/hr to 40 km/hr $170 $145 $26 $196 $171 [ 13 ] The

schedule is derived from provisions of the Offence Act , the Fines Regulation , the Motor Vehicle Act and Motor Vehicle Act Regulations . [ 14 ] Under s. 83.1(2) of the Motor Vehicle Act , the respondent was liable for the commission of the s. 146(1) offence as the owner of the vehicle: The owner of a motor vehicle is liable for the contravention of

section 140, 146 (1), (3), (5) or (7), 147 or 148 (1) if evidence of the contravention was gathered through the use of a prescribed speed monitoring device. [ 15 ] Section 146(1) of the Motor Vehicle Act provides: Subject to this section, a person must not drive or operate a motor vehicle on a highway in a municipality or treaty lands at a greater rate of speed than 50 km/h… [ 16 ]

Section 148.1 of the Motor Vehicle Act grants the Lieutenant Governor in Council authority to prescribe a fine amount, and a supplemental fine amount for a contravention of, inter alia , s. 146(1) of the Motor Vehicle Act .

Section 148.1(2) provides that: Without limiting subsection (1), the Lieutenant Governor in Council may prescribe (

a) different fine amounts for the different contraventions referred to in subsection (1), and (

b) supplemental fine amounts that vary in relation to the degree by which a person, in committing the offence, exceeds, by a prescribed rate of speed, the applicable speed limit established under

section 140, 146 (1), (3), (5) or (7), 147 or 148 (1), as the case may be. [ 17 ]

Section 148.1(5) of the Motor Vehicle Act provides: the owner of a motor vehicle who is liable under s. 83.1(2) … is liable on conviction to a minimum fine of not less than the aggregate of: (

a) the fine amount prescribed in relation to the contravention, and (

b) the supplemental fine amount, if any, prescribed in relation to, and applicable to the degree of, the contravention. [ 18 ]

Section 41.03 of the Motor Vehicle Act Regulations prescribes the minimum fine amounts and supplemental fine amounts for the purposes of s. 148.1 of the Motor Vehicle Act . Fines for speeding offences

(1) For the purposes of

section 148.1 (1) (

a) and (2) (

a) of the Act, the following fine amounts are prescribed: … (

b) for a contravention of section 146 (1), (3), (5) or (7) of the Act, $95; …

(2) For the purposes of

section 148.1 (1) (

b) and (2) (

b) of the Act, the following supplemental fine amounts are prescribed: … (

b) for a contravention of section 146 (1), (3), (5) or (7) of the Act, if the person exceeds the applicable speed limit by more than 20 km/hr but less than 41 km/hr, $50; … [ 19 ] There are prescribed circumstances where the fine can be reduced. [ 20 ]

Section 148.1(6) of the Motor Vehicle Act provides:

If a violation ticket, defined in

section 1 of the Offence Act, is issued to an owner of a motor vehicle in respect of an offence under section83.1 (2) of this Act and the evidence proves the contravention of

section … 146 (1) … but to a different degree than that reflected by thesupplemental fine amount included in the ticketed amount, as that term is defined in

section 1 of the Offence Act, (

a) the owner may be convicted, and (

b) the supplemental fine amount may be varied in accordance with the amount prescribed under subsection (2) (

b) to reflect the degreeby which the applicable speed limit was exceeded. [21]

Section 88 of the Offence Act provides:

(1) Despite any other

section of this Act or any other Act, in determining the fine to be imposed on conviction, the justice must considerthe means and ability of the defendant to pay the fine, and, if the justice is of the opinion that the defendant is unable to pay the amountof the fine that the justice would otherwise impose, the justice may impose a fine in a lesser amount that the justice considersappropriate.

(2) If a minimum fine is established under the Motor Vehicle Act for contravention of a provision of that Act, a justice must not imposeunder subsection (1) a fine of less than the minimum established. Question a: Did the Judicial Justice err in law by imposing alesser fine than the ticketed amount prescribed by

Schedule 3 ofthe Fines Regulation, in the absence of evidence that therespondent was unable to pay the amount of the fine, asrequired by s. 88(1) of the Offence Act? [22] Applying the relevant provisions and

Schedule 3 of the Fines Regulation, the respondent was issued a violation ticket in theamount of $196 for speeding in a municipality where the speed limit was exceeded by 21 km/hr to 40km/hr; the $196 ticketed amountincluded the $170 fine amount and the $26 victim surcharge levy. Had the respondent paid within 30 days of mailing, the fine amountwould have been reduced to $145. This reduced amount reflects the minimum fine amount under

section 41.03 of the Motor Vehicle ActRegulations of $95 and the prescribed supplemental fine amount of $50. [23] As noted, the Judicial Justice reduced the amount payable for the fine to $138, including the victim surcharge levy and requiredthe respondent to pay the fine by March 10, 2020. As noted, there are no reasons from the Judicial Justice for reducing the fine amount. [24] I have referred to s. 148.1(6) of the Motor Vehicle Act and s. 88 of the Offence Act. These are the only legislative authorities forreducing the amount of the fine if paid after 30 days. Neither was engaged in the circumstances of this case. [25]

Section 148.1(6) of the Motor Vehicle Act has no application: the respondent pleaded guilty to the offence and did not adduce anyevidence that proved the contravention but to a different degree than that reflected by the supplemental fine amount, for example that thevehicle was going at a slower speed than noted on the violation ticket. Had such evidence been provided, the matter was not appropriatefor disposition under s. 15.4 of the Offence Act as that process does not provide Crown with the opportunity to tender evidence to provethe offence, including the degree of the offence, as charged.

Thus, the Judicial Justice could not reduce the fine under this section. [26] Under s. 88 of the Offence Act, a judicial justice may reduce the fine if “of the opinion that the defendant is unable to pay theamount of the fine”. In short, s. 88 establishes a “prescribed discretion”; it grants the justice discretion to reduce a fine but only in limitedcircumstances. [27] In R. v. Miner, , the Court of Appeal considered an earlier version of s. 88 of the Offence Act, dismissed theCrown’s appeal of the sentence seeking a greater fine than prescribed. The Court referred the trial judge’s reasons for judgment: 16. This

section does give a justice discretion to impose a lesser fine if he or she is of the opinion that the defendant is unable to pay theamount that the justice would otherwise impose. However, this discretion is limited by the subsection (2). Here, the legislature providedexplicitly for the circumstances where a justice might impose a lower fine. [28] In R. v. Dadmand, 2012 BCSC 1057, Voith J. (as he then was) considered whether he had the authority to reduce a violation fineprescribed by

schedule 3 of the Fines Regulation. He considered s. 88 of the Offence Act and concluded: [36] The cases that apply s. 88 appear to adhere to its restriction that fines only be lowered in circumstances where an individual isunable to pay the normal fine: see, e.g. R. v. 0715475 B.C. Ltd., 2008 BCSC 581, R. v. Jhutty, 2012 BCSC 168 [In Chambers]). [37] In the present circumstances, there is no evidence that Ms.

Dadmand cannot pay the fine that was imposed on her and there appearsto be no principled basis on which I can reduce that fine. [29] In this matter, there was no indication that the respondent was unable to pay the fine. In “Written Reasons for a Reduction of theTicketed Amount(s)”, the respondent stated: “I do not agree with the fine. I think the amount is excessive and would like to request areduction.” [30] With respect, the respondent’s view of the amount of the fine is irrelevant and does not provide a basis for a reduction of the

amount, particularly where the legislation has specifically limited the discretion to lower the fine to circumstances where the individual is unable to pay the fine. [ 31 ] The Judicial Justice erred in law by imposing a lesser fine than the ticketed amount prescribed by

Schedule 3 of the Fines Regulation in the absence of evidence that the respondent was unable to pay the amount of the fine, as required by s. 88(1) of the Offence Act .

Question b: Did the Judicial Justice exceed their jurisdiction by imposing a lesser fine than the minimum fine established by s. 148.1(5) of the Motor Vehicle Act and s. 41.03 of the Motor Vehicle Act Regulations ? [ 32 ] I have referred to s. 148.1(5) of the Motor Vehicle Act that provides that the owner of a motor vehicle who is liable under s. 83.1(2) is liable on conviction to a minimum fine of not less than the aggregate of the prescribed fine amount and the supplemental fine amount, if any. [ 33 ] I have also referred to s. 41.03 of the Motor Vehicle Act Regulations that provide that for the purposes of s.148.1 (5) of the Motor Vehicle Act , the prescribed fine amount for a contravention of s. 146(1) is $95, whereas the supplemental fine amount for a contravention of s. 146(1), where the person exceeds the applicable speed limit by more than 20km/hr but less than 41 km/hr, is $50. [ 34 ] Thus, the minimum fine for contravening section 146(1) in the respondent’s case was $145. [ 35 ] The only circumstance where the fine amount can be reduced is when payment is made within 30 days, and then by the amount of $25.

The respondent did not pay the fine within 30 days. [ 36 ] I have determined that the Judicial Justice did not have the authority to reduce the fine under s. 88(1) of the Offence Act absent evidence of an inability to pay. [ 37 ] The Judicial Justice did not have the authority to reduce the fine below the minimum fine amount prescribed by the Motor Vehicle Act and Motor Vehicle Act Regulations .

Section 88(2) of the Offence Act expressly prohibits this: “a justice must not impose under subsection (1) a fine of less than the minimum established” under the Motor Vehicle Act . [ 38 ] The Judicial Justice erred in law by imposing a lesser fine than the prescribed minimum. Order [ 39 ] In accordance with s. 121 of the Offence Act , I modify the Judicial Justice’s order to align with this direction: the minimum fine payable by the respondent is $196, in accordance with

schedule 3 of the Fines Regulation . “Gropper J.”