R. v. Namura Date:, 2016 BCPC 192

Citation: R. v. Namura Date: 20160627 2016 BCPC 192 File No: AH71447281-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COURTLAND JAMES NAMURA CORRIGENDUM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: N. Bennet Appearing in person: C. Namura Place of Hearing: Port Alberni , B.C. Date of Hearing: June 27, 2016

Date of Judgment: June 27, 2016 A Corrigendum was released by the Court on June 29, 2016. The corrections have been made to the text and the Corrigendum isappended to this document. The Issue [1] Mr. Namura seeks a judicial stay of proceedings. He alleges an infringement of his right, under

section 11(

b) of the CanadianCharter of Rights & Freedoms, to be tried within a reasonable time. The Facts [2] Mr. Namura was issued a speeding ticket on March 14, 2015, and filed a notice of dispute later that month. On September 14,2015, the Judicial Case Manager set the matter for trial on December 4, 2015, and sent Mr. Namura a notice of trial, returnable on thatdate, by ordinary mail to his home address. For reasons unknown, the notice of trial did not reach Mr. Namura, and he did not attendcourt on December 4. He was deemed convicted on that day by the presiding Judicial Justice of the Peace. Mr.

Namura learned of hisconviction later in December when he attended at an ICBC agent for the purpose of registering his title to a newly-acquired motorvehicle. On January 8, 2016, Mr. Namura applied to set aside his deemed conviction and was successful in that application. OnFebruary 1, 2016, the Judicial Case Manager issued a new notice of trial, returnable on May 6, 2016, and sent it by ordinary mail to Mr.Namura’s home address. That notice of trial reached him in the ordinary course of the mail. [3] On April 15, 2016, Mr.

Namura attended at the Port Alberni courthouse to file and serve notice of his application for a judicialstay of this proceeding, on the ground that his right to trial within a reasonable time had been infringed. On April 19, 2016, Crowncounsel wrote to Mr. Namura, to point out that: (

i) a Judicial Justice of the Peace does not have jurisdiction to grant the remedy sought byMr. Namura; and (ii) it would be necessary to contact the Judicial Case Manager to

schedule a hearing date before a Provincial CourtJudge. Mr. Namura spoke by telephone with Crown counsel on April 22, 2016. Crown counsel advised him that it would be necessaryfor him to appear in court in Port Alberni on May 6, 2016, at which time the case would be adjourned to a new hearing date before aProvincial Court Judge. Mr. Namura appeared on May 6, and the Judicial Justice of the Peace presiding adjourned the matter to today,when it came on for hearing before me. [4] Mr. Namura lives in Victoria, about 2 ½ hours’ drive from Port Alberni. [5] On March 14, 2015, Mr.

Namura was driving his Tesla Model S, a very sophisticated electric vehicle. Mr. Namura has madeenquiries of the manufacturer, which has advised him that the vehicle stores data, including the history of the driving pattern (includingspeed) of the vehicle from time to time. When Mr. Namura made his first enquiry, in December, 2015, the Tesla representative to whomhe spoke told him that data from March, 2015 would not then be available because it was too old. Mr. Namura did not ask whether itwould have been available if he had asked for it in September or October, 2015.

The evidence provides no basis for a conclusion on thatsubject. Mr. Namura made further enquiries of Tesla in 2016, at which time the Tesla representative to whom he spoke told him thatTesla will not release data about individual vehicles without a court order. [6] No trial date has been scheduled. Mr. Bennet advises that it is the intention of the Crown to ask the Judicial Case Manager toschedule a new trial date if Mr. Namura’s application fails. A Procedural Dilemma [7] In the letter of April 19, 2016, Crown counsel advised Mr. Namura that his Charter application should be heard before thestart of the trial.

Arrangements were made with the Judicial Case Manager for me to hear the application today. None of the Crownwitnesses were present today. A trial of the case on its merits could not be heard today. Crown counsel, understandably, thought it rightto proceed in that way because of the remarks of Justice Helper in R. v. Loewen (1997) (MB CA), 122 CCC (3d) 198at page 207, and those of Justice Esson R. v. Fagan (BC CA), [1998] BCJ No. 2886 at paragraph 53. In particular,Justice Esson said that the application “… should, if possible, be made before the day set for trial …”.

The problem is that, in R. v.Morin (SCC), [1992] 1 SCR 771, Justice Sopinka said at paragraph 35, under the heading “The Length of the Delay”: … this factor requires the court to examine the period from the charge to the end of the trial. (underlining added) I cannot consider now the factor which Justice Sopinka said that I am required to consider because I don’t know when the trial willbegin. Even if I knew when it were scheduled to begin, I could not predict with any confidence when it would end - trials are oftenadjourned, and for a variety of different reasons. In the result, I am faced with a dilemma.

If I comply with the procedural directiongiven in Loewen and Fagan, I will be unable to comply with the substantive direction given in Morin. In that circumstance, I am obligedto follow the direction given in Morin: Canada v. Craig 2012 SCC 43 , [2012] 2 SCR 489. [8] The procedural dilemma becomes moot if Mr. Namura is entitled to succeed on the basis of the evidence presented today. Iwill therefore proceed to consider that question, and return to the dilemma at the end of these reasons.

The Merits of the Application [9] In Fagan at paragraphs 13 - 14, Justice Esson pointed out that delay, without more, does not give rise to a presumption that theright of the accused to trial within a reasonable time has been infringed, and that prejudice to the accused, or the lack of it, resulting from

the delay, is “… an issue of paramount importance …”. [ 10 ] In this case, Mr. Namura alleges three kinds of prejudice which (he says) arise from the delay: (

a) It may be that, if Mr. Namura had made enquiries of Tesla in September, 2015 (when the first notice of trial ought to have reached him), Tesla would then have been able to retrieve and provide data from the vehicle which would show how fast it was going at the time in question. The short answer is that the evidence provides no basis for an inference on this question. Mr. Namura did not ask the Tesla representative how long the data is retained in the vehicle. It may have been irretrievable in September. If so, the loss of the data is not the result of delays in the court process, but rather the result of Mr.

Namura’s omission to seek out the data immediately after he was issued the speeding ticket. Mr. Namura carries the onus on this issue (see Fagan at paragraph 14 ), and the onus is undischarged. (

b) Mr. Namura says that memories inevitably fade over time. He does not say that there was any witness to the incident except himself and the officer who issued the ticket. He does not say that his memory has faded. This is not a complex case replete with details to be remembered. The only question is how fast Mr. Namura was driving. I doubt if he has forgotten that. Such an argument was rejected by Justice Joyce in R. v. Sigurdson 2002 BCSC 392 at paragraph 22 and by Justice Allen in R. v. Lefort [2005] BCJ No. 877 ; 2005 BCSC 587 at paragraph 33 , and I reject it here. (

c) Mr. Namura has been obliged to travel from Victoria to Port Alberni on three separate occasions to attend at the courthouse on this matter, which is burdensome for him. The first was when he attended at the Port Alberni courthouse to file and serve his notice of application. The second was when he attended before the Judicial Justice of the Peace to be adjourned to today’s hearing, and the third was today. The first attendance was simply unnecessary. Regrettably, it appears that no one informed Mr.

Namura that there are registry and courier services which will attend to filing and service of documents in remote locations at modest cost. It was not the result of delay in the court process, but rather of Mr. Namura’s (understandable) ignorance of the court process. The second attendance was also unnecessary. If Mr. Namura had been represented by counsel, Crown and defence counsel would have arranged with the Judicial Case Manager for the adjournment of the May 6 hearing date and the scheduling of today’s hearing without an appearance in open court.

Again, the inconvenience did not arise from delay in the court process, but rather from Mr. Namura’s lack of familiarity with it. The third attendance was necessary - it was necessary for Mr. Namura to attend court to present his application. However, its very necessity is a reason to leave it out of account in considering Mr. Namura’s application. Prejudice which is a necessary and unavoidable consequence of the court proceeding is not relevant to an application of this kind, because it does not arise from delay in the court process.

A trip to Port Alberni was reasonably necessary to the adjudication of the issue which Mr. Namura has raised. [ 11 ] In the result, I would not grant Mr. Namura the remedy which he seeks today. The delay is not very long, and there is no evidence of prejudice to Mr. Namura sufficient to outweigh the public interest in the adjudication of the charge on its merits. The Procedural Dilemma Revisited [ 12 ] For the reasons given, I conclude that this application is premature. Although the evidence available today does not justify the order sought, it may be that future events will do so. Mr.

Namura should not be precluded from renewing his application at the end of the trial. Disposition [ 13 ] Mr. Namura’s application is adjourned to the trial judge. I am not seized of the matter. _____________________ T. Gouge, PCJ CORRIGENDUM – Released June 29, 2016 In the Reasons for Judgment dated June 27, 2016, the following change has been made: On page 1, paragraph 1, line 2, the

section 10(

b) should be replaced with

section 11(b). It should now read as follows: [1] Mr. Namura seeks a judicial stay of proceedings. He alleges an infringement of his right, under

section 11(

b) of the Canadian Charter of Rights & Freedoms, to be tried within a reasonable time.