R. v. Rahmani Date:, 2017 BCPC 72

Citation: R. v. Rahmani Date: 20170313 2017 BCPC 72 File No: AH8792423-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Traffic) REGINA v. ABDUL RAHMAN RAHMANI REASONS FOR JUDGMENT OF HIS WORSHIP D. BRENT ADAIR Appearing for the Crown: Cpl. B. Fedirchuk Appearing in person: A. Rahmani Place of Hearing: Richmond , B.C. Date of Hearing: March 13, 2017 Date of Judgment: March 13, 2017

[1] The defendant is before the Provincial Court of British Columbia with respect to the following charges from February 14,2015: (

a) left turn into wrong lane, Section 165 (2) (

b) use of electronic device,

Section 214.2 (1) [2] Today is the second date set for the hearing. The prior date of November 30, 2016 was adjourned for lack of court time. Thusthere has been a delay of 25 months from the time of the alleged offence to the date set for the hearing. I want to emphasize that none ofthis delay is the responsibility of the peace officer involved, but rather appears to be institutional delay, caused by the lack of resources inthe responsible bureaucracy. [3] The Supreme Court of Canada in the recent decision of R. v.

Jordan, 2016 SCC 27, established the limits for reasonable delayfor matters being heard in provincial courts. At paragraph 105, the Court stated: [105] The new framework for s. 11(

b) can be summarized as follows: **There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried inthe provincial court, and 30 months for cases in the superior court ( …).

Defence delay does not count towards the presumptive ceiling. ** Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basisof exceptional circumstances… (outside the Crown’s control).” [4] The Jordan decision, of course, is pursuant to the Charter of Rights and Freedoms, and the Provincial Court Act specifies thatJudicial Justices cannot accord remedies under the Charter. However, Common Law remedies pre-dated the Charter, and continue toexist in parallel to the Charter.

Those Common Law remedies also continue to evolve in conjunction with the Charter. [5] One obvious example relates to disclosure -- a remedy routinely sought and granted under the Charter. As noted by Justice McLachlan (as she then was) in R. v. C(MH), (SCC), 1991 4 CR (4th) 1: ‘This court has previously stated that the Crown is under a duty at common law to disclose to the defence all material evidence, whetherfavourable to the defence or not.” [6] To a similar effect, Justice Sopinka, for the majority in R. v.

La, (SCC), [1997] SCJ No. 30, noted atparagraph 30: “Stinchcombe did not create a new right with respect to disclosure as the common law always considered full disclosure to be an integralpart of the process.” [7] More broadly stated, the Supreme Court of Canada in Pepsi v.

RWDSU, 2002 SCC 8 , 208 DLR (4th) 385 at paragraph20 declared: “Charter values provide guidelines for any modifications to the Common Law which the Court feels are necessary.” [8] I therefore conclude that the current state of the Common Law with respect to unreasonable delay in bringing a matter to trial isa mirror image of the requirements under the Charter, as set out most recently in R. v. Jordan (supra). [9] The defendant in this case is unrepresented by counsel. As such this court has a heavy obligation to assist the defendant in theconduct of the case. A recent

summary of that obligation was set out by Justice Ryan of the British Columbia Supreme Court in R. v.Parton, [1994] BCJ 2098, a case involving Fisheries violations. “[10] Many years ago O’Halloran, JA said in R. v.

DarlynI (1946), (BC CA), 88 C.C.C. 269 (BCCA) at page 270: … If the accused is without counsel the court shall extend its helping hand to guide him throughout the trial in such a way that hisdefence, or any defence the proceedings may disclose, is brought out to the jury with full force and effect. [11] It can be said then that the trial judge has a duty to ensure that the accused receives a fair trial. This duty further obliges the trialjudge to instruct and assist the unrepresented accused during the course of the trial. [12] In R. v.

McGibbon (1988), (ON CA), 45 C.C.C. (3d) 334 (OCA), the Ontario Court of Appeal spoke of the dutyof the trial judge in this way, at p. 347: “Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required, within reasonable limits, to provide

assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect….” [ 10 ] As to what constitutes a “fair trial”, one statement was set by the Supreme Court of Canada in R. v.

Harper , [1995] 3 S.C.R. 563 at paragraph 45 : A fair trial “… is one which satisfies the public interest in getting at the truth while preserving basic procedural fairness to the accused”. [ 11 ] In my view, “basic procedural fairness” must certainly include bringing a matter on for trial within a reasonable period of time. [ 12 ] Using the terminology employed by the British Columbia Court of Appeal in R. v.

Darlyn (supra), the Record of Proceedings of the current matter before the Court clearly discloses a procedural defence of unreasonable delay, whether pursuant to the Charter or at Common Law. [ 13 ] In the alternative, I would conclude that to allow the trial to continue after such an unreasonable delay would constitute an abuse of process. [ 14 ] The Supreme Court of Canada in R. v. Kalanj , [1989] 1 S.C.R. specifically considered the doctrine of abuse of process in a common law assessment of unreasonable delay. In paragraph 24 the Court referred with approval to the (obviously pre-Charter) decision of R. v.

Robins (1884), 1 Cox C.C. 114, in which the Court considered pre-charge delay. Alderson, B. in that case stated: “I ought not to allow this case to go further. It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the charge be not preferred for a year or more, how can he clear himself? No man’s life would be safe if such a prosecution were permitted.

It would be very unjust to put him on his trial.” [ 15 ] Clearly, if abuse of process can apply at Common Law for pre-charge delay, it would also be available, in appropriate circumstances, for post-charge delay. [ 16 ] One option would be to refer this matter to the Judicial Case Manager who would then refer the matter to a Provincial Court Judge for an application under the Charter .

In my view, that just places two more procedural hurdles on the defendant, adds further delay, and needlessly strains the resources of the Court. [ 17 ] As such, I exercise my jurisdiction under the Common Law and direct a Judicial Stay of Proceedings with respect to the charges currently before the Court. __________________________ Judicial Justice D. Brent Adair