R. v. Sutherland Date:, 2017 BCPC 337

Citation: R. v. Sutherland Date: 20171114 2017 BCPC 337 File No: FC00072059-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL ROSS SUTHERLAND REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: T. Johnson and I. McFadgen Appearing in person: M. Sutherland Place of Hearing: Nanaimo , B.C. Dates of Hearing: October 21, 2015, February 12, 2016, October 3, 2016, December 19, 2016, August 3, 2017

Date of Judgment: November 14, 2017 The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. Anatole France The Issues [ 1 ] On June 2, 2014, Mr. Hopkins, a park warden, issued a ticket to Mr. Sutherland, charging him with camping in Pacific Rim National Park without a camping permit, contrary to section 3(1) of the National Parks of Canada Camping Regulations SOR80/127 . Mr. Sutherland admits that he was camping in the park without a permit. He defends the charge on three grounds: a. He says that the requirement for a permit infringes his right to security of the person: Canadian Charter of Rights & Freedoms ,

section 7. In support of his position on this issue, he relies upon Victoria (City) v. Adams 2009 BCCA 563 ; [2009] BCJ No. 2451. b. He says that the fee for a camping permit ($27) was beyond his means, and that the requirement for a permit infringes his right to equality under the law: Canadian Charter of Rights & Freedoms ,

section 15. He referred me to no previous case considering that right in analogous circumstances. c. He says that he has been denied his right to be tried within a reasonable time: Canadian Charter of Rights & Freedoms ,

section 11(b). In support of his position on this issue, he relies upon R. v. Jordan 2016 SCC 27 ; [2016] 1 SCR 631. Security of the Person [ 2 ] Mr. Sutherland is a university student, studying to be a teacher. He lives with his grandmother, in her house in Chemainus, British Columbia. He receives disability benefits from the government of British Columbia, in the amount of $906.42 per month. He pays about a third of that to his grandmother for room & board.

He made no complaint about the quality of his grandmother’s home, and there is no evidence to suggest that it is less than adequate shelter for him. [ 3 ] On June 2, 2014, Mr. Sutherland went on a surfing trip to the west coast of Vancouver Island with some of his classmates. They travelled from Nanaimo to Wickaninnish Beach in a van. All of the other participants returned to Nanaimo by van late in the day. Mr. Sutherland could have returned with them, but decided to stay overnight on the west coast and to return to Nanaimo on his bicycle the next day.

He cycled about 2 kilometres from Wickaninnish Beach to a trail which led into Pacific Rim National Park from the highway. There was a sign beside the trail which informed the public that camping was not permitted in that area. Mr. Sutherland passed the sign as he proceeded up the trail to the place where he pitched his tent. There are approved campsites in Pacific Rim National Park, in which the holders of camping permits may camp. The approved campsite nearest the place where Mr. Sutherland pitched his tent is Green Point Campground, approximately 15 kilometres away.

The fee for a camping permit at Green Point Campground is $27 per day. [ 4 ] Mr. Sutherland says that he could not afford a $27 camping permit. He points out that the government of British Columbia provides him with a camping pass, which allows him to camp in provincial parks for free. He says that the government of Canada should do the same in respect of camping in national parks. [ 5 ] In Abbotsford (City) v. Shantz 2015 BCSC 1909 ; [2015] BCJ No. 2266, Chief Justice Hinkson considered and applied the principles stated in Adams .

At paragraphs 188 and 223, Chief Justice Hinkson said (underlining added): It is the Impugned Bylaws that prevent the homeless from camping in public spaces without permits or erecting, without permit, temporary shelters in public spaces that are asserted to subject the City's homeless to decreased dignity and independence and increased physical and psychological harm. The s. 7 liberty interest is thus engaged by the Impugned Bylaws that interfere with the fundamentally important personal decision to shelter one's self in circumstances where there is no practicable alternative shelter .

The Impugned Bylaws and Displacement Tactics are alleged to impact the City's homeless' s. 7 rights because their effect is to continually displace the City's homeless from public spaces. * * * Although it is strictly speaking correct that the Impugned Bylaws are not directed at group encampments as compared to individual encampments, the effect of their application affects the homeless far more than it affects others.

That said, the decision to erect a shelter outside, whether individually or in a group, if there are other viable and accessible options , cannot justify permitting the City's homeless to sleep and erect shelters in public spaces as a fundamental personal choice engaging dignity concerns . [ 6 ] The individuals affected by the impugned bylaws in Adams and Shantz were homeless. They had to sleep somewhere, and public parks were the only option available to them. Because of the climate in British Columbia, they were likely to die of hypothermia if they were forbidden to erect temporary shelters in which to sleep.

The prohibition against the erection of such shelters clearly threatened the security of their persons. [ 7 ] In June, 2014, Mr. Sutherland was in a very different situation. He had safe, secure, permanent housing at his grandmother’s house. He was under no compulsion to participate in his classmate’s trip to Wickaninnish Beach. He could have stayed home with his grandmother, and been safe and warm. Having chosen to go on the trip, he was under no compulsion to cycle home. He could have returned in the van with his classmates. [ 8 ] Mr.

Sutherland says that outdoor recreational activities are essential to his mental health, and that the government is under an obligation to afford him free access to public parks for that reason. There is no medical evidence to support his assertion. Assuming,

without deciding, that outdoor recreation is essential to his mental health, there are on Vancouver Island a myriad of opportunities foroutdoor recreation for which no fee is charged. There are many provincial campsites on Vancouver Island at which he could havecamped for free. If camping were essential to his mental health, he had many opportunities to engage in that activity. [9] Because there were lawful practicable alternatives available to Mr. Sutherland, his rights under

section 7 of the Charter werenot infringed by the requirement for a camping permit. [10] That conclusion renders it unnecessary for me to consider the other submissions made by learned counsel for the Crown on thisissue. As a general principle, I think it wise to limit my comments on constitutional issues to those which are necessary to decide thecase. That is particularly so where, as here, one party is not represented by counsel, with the result that one side of the case was not fullyargued. Equality Rights [11] In his written argument, Mr.

Sutherland asks rhetorically: How is the same fee for everyone to camp fair, when not everyone’s income is alike? The question is not whether camping fees are fair. The question is whether the imposition of a camping fee infringes the equality rightsprotected by

section 15 of the Charter. In deciding that question, I am governed by the principles set out in the existing jurisprudence. [12] Section 15(1) of the Charter provides: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability.

The reader will observe that: a. section 15(1) refers expressly to “… discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability …”; and b. poverty is not expressly referred to. In the jurisprudence, race, national or ethnic origin, colour, religion, sex, age and mental or physical disability are referred to as the“enumerated grounds” of discrimination. [13]

Section 15 of the Charter does not prohibit all discrimination. It only prohibits discrimination on the enumerated grounds, oron grounds analogous to the enumerated grounds, such as sexual orientation: Withler v. Canada 2011 SCC 12 , [2011] 1 SCR396 at paragraphs 29 - 34. The test for adjudication of a claim of discrimination was stated in Withler at paragraph 30: The jurisprudence establishes a two-part test for assessing a s. 15(1) claim:

(1) Does the law create a distinction based on an enumeratedor analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? [14] Poverty, alone, is not an analogous ground: Toussaint v. Canada 2009 FC 873; [2009] FCJ No. 1034; [2010] 3 FCR 452 atparagraphs 68 - 90. At paragraphs 101 - 102, Justice Snyder said: The Applicant also asserts that the fee requirement causes adverse effect discrimination on the basis of race, gender, disability and ethnicorigin. This argument relies on the assertion that there are "recognized intersections" of poverty with other grounds of discrimination,such as sex, race, age and marital or family status.

However, beyond a bare assertion of adverse effect discrimination, the Applicant hasnot shown how women, the disabled, single mothers and racial minorities have experienced discrimination as against the appropriatecomparator groups for each of those alleged grounds.

In order to succeed in making this argument, the Applicant and Interveners would need to show that the processing fee has an adverseeffect on a disproportionate number of individuals who are disabled, women, single mothers and racial minorities as compared to therelevant comparator group (i.e. able-bodied, men, families, non-minorities, respectively) (see Eldridge, above, and Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493). They have failed to do so. There is no evidence, for example, that more women arebarred from making an H&C application because of an inability to pay than men.

The same goes for the other grounds of discriminationraised. Indeed, as reflected above, the evidence is that large numbers of foreign nationals that would fall within those identified groupshave found no barriers to filing in-Canada H&C applications. That judgment was reversed on appeal: Toussaint v. Canada (Minister of Citizenship and Immigration); Ndungu v. Canada (Minister ofCitizenship and Immigration) 2011 FCA 146; [2011] FCJ No. 636; [2013] 1 FCR 3.

However, at paragraph 2 of the judgment of theFederal Court of Appeal, Justice Sharlow, speaking for the court, expressly agreed with the reasons of Justice Snyder on the issues undersection 15 of the Charter. Leave to appeal to the Supreme Court of Canada was refused: 2011 SCCA 295. [15] I refer also to Polewsky v. Home Hardware Stores Ltd. (ON SC), [1999] OJ No. 4151; 40 CPC (4th) 330, inwhich Justice Gillese said at paragraph 49: The plaintiff offered no evidence as to the nature and situation in which he finds himself apart from the brief affidavit described at thebeginning of these reasons.

Nor does he offer any evidence as to the social, political and legal history of Canadian society's treatment ofthose in poverty. Without a factual basis, it is not possible to know whether impoverished members of Canadian society have beenconsistently and routinely subjected to the sorts of discrimination faced by some of Canada's discrete and insular minorities. It isdifficult for this court to reason from facts of which the court may appropriately take judicial notice, that the legislative distinction at

issue has the effect of violating the human dignity of the plaintiff. The point that there is a disproportionately higher cost of access to theSmall Claims Court system for persons of limited financial means is insufficient to demonstrate that the fees have the effect of violatingtheir basic human dignity.

The failure to provide a discretion to waive fees for those of limited financial means does not necessarilyreflect, promote or perpetuate the notion that they are less capable or less deserving of concern, respect and consideration or are lessworthy of recognition or value as human beings or as member of Canadian society. Court fees, albeit at lower levels, have been in placefor some 200 years. Given the historical context, the legislation does not appear to stereotype, exclude or devalue poor persons.

Neitherthe purpose nor the effect of the impugned Rules has been demonstrated to violate human dignity so as to constitute poverty as ananalogous ground of discrimination. Justice Gillese’ judgement was reversed by the Ontario Court of Appeal: Polewsky v. Home Hardware Stores Ltd. (ON SCDC), [2003] OJ No. 2908; 66 OR (3d) 600. However, the judgment of the Ontario Court of Appeal was founded upon a differentissue. At paragraphs 47 - 49 of the appellate judgment, the Court of Appeal expressly agreed with Justice Gillese’ analysis of the issueunder

section 15 of the Charter. [16] The evidence in this case is deficient in the same way as was the evidence in Toussaint and Polewski. Poverty, alone, is not anenumerated or analogous ground, with the consequence that discrimination on the ground of poverty is not an infringement of the rightsprotected by

section 15 of the Charter. If it is established by admissible evidence that discrimination on the ground of poverty results indiscrimination on an enumerated or analogous ground, the court may conclude that

section 15 rights have been infringed. However,there is no such evidence in this case. [17] Mr. Sutherland’s defence founded upon

section 15 of the Charter fails because the discrimination which he alleges, even ifproven, is not upon an enumerated or analogous ground, and so does not infringe the rights protected by

section 15 of the Charter. Thatconclusion renders it unnecessary for me to express any opinion as to the other points argued by Crown counsel on this issue. For thereasons given in paragraph 10, above, I do not think that I should comment further on those points. Delay [18] Mr. Sutherland was issued his violation ticket on June 2, 2014. He filed a notice, disputing the ticket, on June 6, 2014. TheRegistry issued a notice of hearing, returnable April 13, 2015 in Ucluelet (the courthouse nearest Wickaninnish Beach). Mr.

Sutherlanddid not appear on that date, but Crown counsel, very properly, declined to proceed because the notice of hearing was in the Frenchlanguage only. The case was adjourned to allow for service of a bilingual notice of hearing. [19] The case came on for hearing again in Ucluelet on June 1, 2015. Mr. Sutherland did not appear. Crown counsel advised thecourt that Mr. Sutherland was attending school, and applied to adjourn a bench warrant application to August 10. That application wasgranted. [20] The case came on for hearing in Ucluelet on August 10, 2015. Mr. Sutherland did not appear.

However, a lawyer advised thecourt that Mr. Sutherland had spoken with him by telephone, and asked that the case be transferred to Nanaimo and adjourned for thatpurpose. The lawyer had not been retained by Mr. Sutherland, and did not attend any of the further proceedings in this case. The judgepresiding ordered the case to be transferred to Nanaimo and adjourned it to August 18, 2015. Nanaimo is about 50 km from Mr.Sutherland’s home. Ucluelet is about 250 km from Mr. Sutherland’s home. [21] Mr.

Sutherland attended court in Nanaimo on August 18, 2015, and the case was then scheduled for trial in Nanaimo onOctober 21, 2015. [22] The case came on for trial before me in Nanaimo on October 21, 2015. The Crown called Mr. Hopkins as its only witness. Hisevidence in chief took about 10 minutes. Mr. Sutherland declined the opportunity to cross-examine him, and the Crown closed its case. Mr. Sutherland then explained that he wished to defend the case on the ground that the requirement for a camping permit infringed hisright to security of the person under

section 7 of the Charter. Crown counsel objected, on the ground that Mr. Sutherland had not giventhe notice required by

section 8 of the Constitutional Question Act RSBC 1996, c 68 (“the CQA”). That was, of course, a properobjection, but I thought it important to hear Mr. Sutherland out in order to understand clearly the defence which he wished to advance. Idid my best to explain the court process to him, and offered him some suggestions about sources of free legal advice, including legal aidand the British Columbia Civil Liberties Association. I asked if he wanted an adjournment to seek legal advice, and he replied in theaffirmative. I granted the adjournment. [23] The matter came back on before me on February 5, 2016. Mr.

Sutherland had delivered to Crown counsel a notice under theCQA, but had not delivered a copy of the notice to the Attorney-General of British Columbia, as required by the statute. The noticedelivered by Mr. Sutherland was deficient in its

summary of: (

i) the legal basis for his defence; (ii) the facts which he alleged; and (iii)the evidence by which he intended to prove them. It was apparent that Mr. Sutherland did not understand the notice requirements of theCQA. Mr. Sutherland told me that he had been unsuccessful in his attempts to obtain free legal advice.

I asked the parties whether Ishould appoint amicus curiae to assist me with the constitutional issue, and adjourned the case to February 12, 2016 to allow them toconsider that question. [24] I heard submissions on the question of appointment of amicus curiae on February 12, 2016, and issued a written decision onFebruary 24, 2016, in which I concluded that this was not an appropriate case for such an appointment: R v. Sutherland 2016 BCPC 45;[2016] BCJ No. 395. At paragraph 14 of that judgment, I suggested that Mr. Sutherland might wish to pursue a Rowbotham application:R v.

Rowbotham (ON CA), [1988] OJ No. 271; 41 CCC (3d) 1. [25] Mr. Sutherland filed a Rowbotham application at the end of June, 2016, four months after I rendered my decision on hisapplication for the appointment of amicus curiae. I heard the Rowbotham application on October 3, 2016, and dismissed it in an oraljudgment which I rendered on that day. At paragraph 7 of that oral judgment, I said: Mr. Sutherland gave two reasons for camping as and where he did.

One, it was 15 kilometres to the nearest campground; and, two, hecouldn’t afford the nightly fee of some $50 to camp in the campground, while at the time in question, Mr. Sutherland was cycling much

more than 15 kilometres in the course of his daily commute and had more than $200 in the bank. It doesn’t seem to me that Mr.Sutherland can plausibly make the case that there was something about his personal circumstances which prevented him from accessingthe recreational facility by employing his own means. That being so, it does not seem to me that there is a sufficient air of reality in theproposed Charter defence for me to present the government with the choice of accepting a stay of the proceeding or funding counsel forMr. Sutherland. [26] The Crown then brought a “Vukelich application” (see R v.

Vukelich (BC CA), [1996] BCJ No. 1535; 108CCC (3d) 193), asking me to dismiss Mr. Sutherland’s Charter defence summarily. I heard the application on December 19, 2016, anddismissed it in written reasons handed down on February 14, 2017: R v. Sutherland [2017] BCJ No. 294; 2017 BCPC 42. [27] At a pre-trial conference on July 5, 2017, Mr. Sutherland informed me that he did not intend to lead any evidence in support ofhis Charter defences. [28] The case was scheduled for hearing on August 3, 2017. At that time, I expected to hear submissions in relation to the Charterissues. However, Mr.

Sutherland did not attend on August 3, 2017. Being mindful of the long delay in bringing the case to a conclusion,I directed that: (

i) Mr. Sutherland prepare written submissions on the Charter issues and file those submissions by August 31, 2017; (ii)Crown counsel file responsive submissions by September 30, 2017. Those submissions were filed, and this judgment is the result. [29] At no point during the process described above did anyone ask Mr.

Sutherland whether he agreed to waive the delay resultingfrom any of the adjournments, and he did not, expressly, do so. [30] In Jordan, the majority of the court said, at paragraphs 46 - 48 (italics in the original): 46 At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable.

The presumptive ceiling is setat 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases goingto trial in the provincial court after a preliminary inquiry). 47 If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delayis presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances.

If itcannot, the delay is unreasonable and a stay will follow. 48 If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable toexceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings,and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clearcases.

The majority defined “defence delay” at paragraphs 61 - 63 (underlining added): 61 Defence delay has two components. The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his orher rights, as well as the effect waiver will have on those rights.

However, as in the past, "[i]n considering the issue of 'waiver' in thecontext of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periodsin the overall assessment of reasonableness" (R. v. Conway, (SCC), [1989] 1 S.C.R. 1659, per L'Heureux-Dubé J., at p.1686). 62 Accused persons sometimes, either before or during their preliminary hearing, wish to re-elect from a superior court trial to aprovincial court trial for legitimate reasons. To do so, the Crown's consent must be obtained (Criminal Code, R.S.C. 1985, c. C-46, s.561).

Of course, it would generally be open to the Crown to ask the accused to waive the delay stemming from the re-election as acondition of its consent. 63 The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delaycomprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be adeliberate and calculated tactic employed to delay the trial" (Askov, at pp. 1227-28).

Deliberate and calculated defence tactics aimed atcausing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judgesshould generally dismiss such applications and requests the moment it becomes apparent they are frivolous. [31] The total time elapsed from the date that the ticket was issued (June 2, 2014) and the date of this judgment (November 14,2017) is 41 months. [32] The total time elapsed between the date the ticket was issued and the date on which the trial began (October 21, 2015) was 16months and 19 days.

I think it clear that the period between June 1 and August 18, 2015 (11 weeks) was a period of “defence delay”,with the result that the delay to be considered, for Jordan purposes, up to the beginning of trial was less than 14 months, well under the“presumptive ceiling”. [33] If Mr. Sutherland had delivered a properly-prepared CQA notice prior to October 21, 2015, the case could easily have beenconcluded on that day, and I would have rendered a decision within a few weeks thereafter. The delay subsequent to October 21, 2015 isattributable to: (

i) Mr. Sutherland’s manifest inability to comply with the CQA, or to prepare and present his constitutional argument,without the assistance of counsel; and (ii) my well-intentioned, but ultimately unsuccessful, attempts to arrange for publicly-fundedcounsel to assist him. It should be noted that I did not direct him to bring his amicus and Rowbotham applications. With respect to each,I explained the nature of the application to him and asked whether he wanted an adjournment to make the application. In each case, heaccepted the invitation. Even in hindsight, I think that a wise choice. It is quite clear that Mr.

Sutherland was entirely unable toassemble and present the evidence necessary to support his Charter arguments without the assistance of counsel.

[ 34 ] In considering this issue, I am mindful of paragraph 63 of Jordan (quoted in paragraph 30 , above) and, in particular, of the disjunctive which I have underlined in that paragraph. “Defence delay” is not limited to “… d eliberate and calculated defence tactics aimed at causing delay …”. “Defence delay” also includes “… those situations where the accused's acts … directly caused the delay …”. Mr. Sutherland chose to accept my suggestion that he attempt to obtain legal advice in relation to his Charter defence. The delay of which he complains is the result of that choice. It is therefore “defence delay”. [ 35 ] For that reason, I would not accede to Mr. Sutherland’s defence under

section 11(

b) of the Charter , and convict him of the offence charged in the ticket. November 14, 2017 _________________________________ T. Gouge, PCJ