R. v. Tran Date:, 2014 BCPC 228

Citation: R. v. Tran Date: 20140312 2014 BCPC 0228 File No: AH59780380-1 Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAI GIA TRAN RULING OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: L. McPheeters Counsel for the Accused: J. Chak Place of Hearing: Richmond , B.C. Date of Hearing: March 12, 2014 Date of Judgment: March 12, 2014

[1] THE COURT: Mr. Tran received a Violation Ticket when he was driving on July 23rd, 2012. He had a Class 7 licence at thetime. He received a Violation Ticket for excessive speed under the Motor Vehicle Act. It was on Highway 91, Richmond. [2] That ticket, the Violation Ticket that is served on the driver, has part of the instructions, and I do not have the back of theticket, but at the bottom of the ticket it says: If the allegations or fines are not disputed (see reverse) within 30 days, this ticket will be treated as not disputed. You will be deemed tohave pleaded guilty to the alleged offence(

s) and to owe the Crown the ticketed amounts, and that is in red writing on the ticket. It is obviously meant to bring to the attention of the driver the very strict timelines with respect tochallenging the allegations that are set out in the ticket. So, the ticket essentially is like an Information in the Criminal Code; it sets outthe charges and the violation date, the offence, under which

section of the Motor Vehicle Act the offence has been committed, and thespecified ticketed amount. There are instructions on the back of the driver's copy of that ticket on how they can file a dispute of thatticket, and it must be filed within 30 days so there is clearly some strict timelines. So some time, and the evidence is not precisely clear,but obviously within some period of time within that 30 days after July 23rd, 2012, Mr.

Tran filed in accordance with some instructions Ipresume a dispute of the allegations on that ticket. [3] Unlike Criminal Code matters where a person is given a returnable date into court, a dispute is mailed or delivered to theappropriate office and the disputant at that time simply waits for some kind of word on what happened to their dispute. [4] Now, in due course, whether they know it or not, in due course in the vast majority of times, that disputant will receive somekind of communication in the mail; and again I say that whether they know it or not, because it is certainly not clear on the face of it ofhow at the end of the day the dispute is to be resolved or what kind of process is involved. [5] But in any event, Mr.

Tran waited some 15 months and about a week, and a notice was sent to him, a Notice of Hearing Date,for the Violation Ticket and that notice essentially gives him information that he has a hearing. That notice was mailed on October 31st,2013. It advises him that he had a hearing set for January 6th, 2014 at 1:30 in the afternoon in Courtroom 103 to deal with this matter. [6] It provides him some information. It says if you cannot appear on that date, after taking all possible steps to be available, youcan apply for an adjournment. It says that if you need an interpreter you can get one.

It tells him that if he intends to call a witness atthe court hearing, he must inform the Violation Ticket Centre immediately. And that, again, was received over 15 months after thealleged offence. [7] So, at some point in time Mr. Tran engaged the services of counsel to assist him because a Notice of Application was filed byMr. Chak, who is his counsel here today.

A Notice of Application was filed in Richmond Provincial Court on December 19th, 2013advising that, under the Constitutional Questions Act, provincial legislation, he was giving notice to the Attorney General of Canada andthe Province and Richmond Crown counsel office that he was going to be making an application under s. 11(

b) of the Charter for reliefunder s. 24(1). Essentially he is arguing that his right to be tried without reasonable delay under s. 11, which is a right that is afforded tohim under s. 11(

b) of the Charter, has been violated by the delay, and that this application will be argued before the presiding ProvincialCourt judge on the date of the trial set for January 6th, 2014. So, that is the notice that was filed. [8] Mr. Tran and his counsel showed up in court on January 6th, 2014. The matter was scheduled in front of Justice of the PeaceDodwell and a transcript from that proceeding indicates that Justice of the Peace Dodwell, either looking at the file or noticing counselwas there, simply stated, "Charter argument?" Mr.

Chak says, "Yes," and then he is directed to the court registry and told, "You knowwhat to do next," and the matter was adjourned to the judicial case manager's office to set a court date in front of a Provincial Courtjudge. [9] Now, all of that seems to be the standard practice in Richmond. At the January 6th hearing date, Mr. Chak was provided with aform that he had to attend with upon the judicial case managers after getting the required signatures from various folks in order to securea date in front of a Provincial Court judge for this very hearing. That was on January 6th, 2014.

He was provided today's date of March12th, 2014. We are now some 19-and-a-half months from the date of the alleged offence. [10] There is some dispute about how to calculate the delay that is the delay relevant to the determination of whether or not thedisputant, Mr. Tran, has shown on a balance of probabilities that his Charter rights under s. 11(

b) have been breached and that theappropriate remedy is a stay of proceedings under 24(1) of the Charter. [11] The facts here are simply stated. I am not going to go through all of the cases that have been provided to me, except to say thatI have been provided several cases from Mr. Chak and I will refer to a few of those. There are also several cases I have been referred toby the Crown here, Ms. McPheeters, and I have also printed off as well the Lefort case from Justice Allan, just because it is referred toin a number of authorities.

So, I have Lau 2009 BCJ No. 1062 from the Crown and I also Han 2009 BCJ No. 1118, and I have also beenprovided a copy of Morin from our Supreme Court of Canada, (SCC), [1992] SCJ No. 25. [12] Mr. Tran has provided an affidavit, sworn affidavit, describing what he says is some of the prejudice that he has suffered, andessentially he attests in that affidavit that he has been worried about the potential prohibition that could result from a conviction and thatthis matter has been hanging over his head for some time and that worry and stress has compounded over time.

Essentially he says that adriving prohibition will force him to quit one of his jobs which will substantially lower his income. He says, "As a result of the impact,possible impact, of a conviction of these charges I have been very concerned about the outcome of the proceedings." He wanted them tobe concluded as quickly as possible so he could at least know the outcome and that living with the uncertainty has been extremelydifficult.

He says he finds himself less patient and more irritable and that his nature has changed from easy-going and outgoing to quiet,serious and preoccupied, and he has difficulty enjoying the day-to-day pleasures of life. He says those problems were not present prior to

the investigation and that in his view, these problems are a result of his preoccupation and worry about the outcome of these proceedings. It has taken a long time to get to this stage, he says, and it is difficult for him to move on with his life until this matter is dealt with. [ 13 ] Morin was the Supreme Court of Canada case and Justice Sopinka sets out some of the law that surrounds the purpose of s. 11(b), et cetera. The individual rights which the

section seeks to protect are the right of security of the person, the right to liberty and the right to a fair trial. He also says there in paragraph 30 that: “As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.

The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.” [ 14 ] So, obviously, there are a number of factors to consider, but the societal interest in seeing serious matters conclude to their ultimate resolution, based on the merits, is greater than with less serious matters.

That, in my opinion, is what the court is trying to say there. [ 15 ] There are a number of factors that are listed there as factors to be considered in analyzing how long is too long, and Justice Sopinka refers to the length of the delay.

Here again, in my mind, the appropriate intake length, if you were to look at all of the cases and distil the reasons why the determination was set out there for traffic offences in particular, it would seem that from the date that an individual files their dispute, that the system itself has accorded about 30 days or so to deal with that dispute and to get it taken into the system and for something to happen to it.

The intake length is said to be two months in most of these cases and that is simply because a person has 30 days to challenge the ticket, a very short period of time to challenge the ticket, and that the courts or the system itself has a corresponding 30 days to take that challenge or dispute in and to do something with it. [ 16 ] So, I suppose it is up to two months. It could be in my mind less than two months.

If, for instance, a disputant filed his dispute on the same day that he received it and it was taken into the system on the same day that he received it, one could very persuasively argue that the intake period should be 30 days from that time. [ 17 ] Waiver of time periods is a factor. The reasons for the delay, including inherent time requirements, we have talked about already. Actions of the accused; it is recognized here that there are no particular laches or negligence to be attached to the accused here; actions of the Crown, similarly.

Limits on institutional resources; which seems to be the most prominent factor in this particular delay, and the other more relevant factor in this case than some of the others is prejudice to the accused, either inferred or actual. [ 18 ] The limits on institutional resources is particularly relevant in this particular case. The weight to be given to resource limitations has to be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay, and Justice Sopinka says as much in Morin .

That distinguishes that obligation from many others which compete for funds with the administration of justice. There is a point in time, the Supreme Court of Canada says, at which the court will no longer tolerate delay based on the plea of inadequate resources. [ 19 ] I have asked, and I have asked on other occasions, and certainly there is no evidence in this particular case, as to why a traffic matter takes this period of time to get to a hearing date. There is usually some sort of submission that that is just the way it is.

But, in any event, the guideline that is suggested in some of the cases, sort of 16-and-a-half to 17-and-a-half months, is for traffic cases. Morin deals with Provincial Court criminal cases which the court gave a guideline range of eight to ten months. The cases for traffic matters have an increased amount of time simply because there is a recognition, in my mind a clear recognition, that it is difficult to infer prejudice prior to that kind of range. [ 20 ] "A guideline is not intended to be applied in a purely mechanical fashion," and Justice Sopinka says that as well.

He also refers to rapidly changing conditions in a particular jurisdiction which may be a factor to be considered and may place a sudden and temporary strain on resources. I have no evidence of that in this case; in fact, I would hardly call this a temporary situation, where this jurisdiction is suffering from a temporary strain or exigent circumstances relating to resources. [ 21 ] As Judge Schmidt, who sat in this jurisdiction for many, many years and has been a judge for many, many years, says in the Drummond case, and this is 2009 BCPC No. 57, where he was dealing with a traffic matter there of Mr.

Drummond and noted that the Justices of the Peace were no longer authorized by the Chief Judge of the Provincial Court of British Columbia to hear Charter arguments, and that was back in 2009. He said in that case as well: “The setting down of matters before judicial officers who are not equipped jurisdictionally to deal with them is a problem one would think could be resolved...” [ 22 ] He said that in 2009.

It is still the case that these matters, even after notice is given are set down before a Justice of the Peace, who clearly still has no jurisdiction to hear a matter involving a Charter application which the accused has given notice of. [ 23 ] Judge Schmidt also says in paragraph 29: “It is unconscionable that a Notice of Dispute simply goes into a wasteland for over 13 months without any hint that the judicial system intends to proceed with the matter. It is not possible to imagine why this circumstance exists and continues to exist over time.” [ 24 ] He was dealing with a 13-month delay there.

Here, however way you characterize the thing, there is 15 months, at least 15 months, from the date of the offence to the date that a Notice of Hearing was mailed. If you take off two months for intake, you are into the wasteland that he is talking about. [ 25 ] He expressed concern, surprise and some frustration that these matters took so long to deal with back in 2009. Nothing has

changed; well, at least if this case is any kind of indication of that. [ 26 ] In that case, Drummond , there was actual prejudice shown by Mr. Drummond. In this case there is prejudice sworn to by Mr. Tran. Under cross-examination he has indicated that he has not suffered any penalties or consequences yet, but that is obviously the case because he has not had his trial, has not had his hearing yet.

I accept that having the matter hanging over his head for this length of time has caused him stress and has caused him to be distressed about the matter. [ 27 ] The Crown suggests that in his particular circumstance it is beneficial for him to have this delay. I am not prepared to find that under the circumstances. I do not know what the Superintendent will do with a conviction. I really do not have sufficient evidence to determine what the Superintendent would actually do upon a conviction, but I accept that Mr.

Tran honestly believed that he was in jeopardy of some consequence. [ 28 ] The Supreme Court of Canada in The Queen v. Morin says that it is preferable to treat that resource issue as a factor in whether a particular delay is unreasonable. Obviously, it is undesirable to impose a moratorium on Charter rights every time a region suffers some kind of institutional resource problem, but here it has been a problem for such a long period of time and it cannot possibly be said to be temporary. [ 29 ] Prejudice can be inferred from a prolonged delay.

The Supreme Court of Canada does not go anywhere near as far as saying that you cannot infer delay before a specified period of time. There are a number of factors that go into extending or diminishing the suggested range, and here in my mind one of the factors to consider is the lack of any kind of response.

After many cases and many judges have commented on the problems of delays and questioning why they exist and questioning the reasons for the lack of expediency in dealing with these things, that that prejudice is problematic, is more problematic, as time goes on. [ 30 ] Prejudice to the accused's security interests can be shown by evidence of the ongoing stress; he has given that.

Vexations and vicissitudes of a matter that is hanging over his head, not so great as it would be in a criminal prosecution, but again he is dealing with a very, very simple matter, that trials are often heard like within 20 minutes, and it does not make any sense that it takes so long to have a matter dealt with. [ 31 ] There are not only the comments from Judge Schmidt with respect to this jurisdiction, this very jurisdiction, which I find so compelling, but other comments from other judges in other jurisdictions including Judge Pothecary out in Port Coquitlam who does make the comment that: “In itself it is ridiculous as an observation that it should take a year to get a hearing on a traffic ticket.” [ 32 ] She says: “It is a huge problem in these courts in this province that the delay starts right there and starts in such a profound way.

They should be brief and relatively straightforward and easily dealt with matters. As a result of blockages of some sort, and I have no idea what they are, the backlog is just ridiculous.” She says that in 2011. [ 33 ] I am of the firm opinion that Mr. Tran has established on a balance of probabilities that his rights under s. 11(

b) have been breached and that in my mind given some of the factors that I have alluded to and certainly the ones that were referred to by Judge Schmidt and the lack of any amelioration of these concerns that he held some five years ago, lead me to the conclusion that the appropriate remedy is a judicial stay of proceedings. He was entitled to have this matter dealt with in a much more expeditious fashion than what happened in this case and it is beyond me that it continues to be such a vexing problem, not only in this jurisdiction but in others. (RULING CONCLUDED)