IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           As a result of the events described in paragraph 8, Mr. Parchment was charged with breach of his bail conditions.  I heard the trial of that charge on May 5, 2015, and concluded that the Crown had proven beyond a reasonable doubt that Mr. Parchment had committed the offence with which he was charged: R vs Parchment 2015 BCPC 142; [2015] BCJ No. 1114.  However, I did not then convict Mr. Parchment because he informed me that he wished to bring an application for a judicial stay of proceedings on the ground that the prosecution was racially motivated.

[2]           Mr. Parchment asserts that this prosecution is motivated by racial prejudice, and that a person of European descent would not have been prosecuted in similar circumstances.  If that is so, the exercise of prosecutorial discretion which authorized the prosecution infringed Mr. Parchment’s rights under section 15 of the Canadian Charter of Rights & Freedoms, and the appropriate remedy may be a stay of the prosecution:  R vs Anderson 2014 SCC 41 (CanLII), [2014] 2 SCR 167.  

[3]           Mr. McFadgen raises a preliminary objection to Mr. Parchment’s application.  He submits that the application should be dismissed ab initio, on the ground that Mr. Parchment has failed to establish a sufficient evidentiary basis to warrant an enquiry into the motivation of the prosecution: Anderson @ paragraphs 52 - 53.

[4]           Mr. Parchment has tendered no direct evidence of racial bias or motivation in the conduct of the prosecution.  He says that an inference of racial bias or motivation should be drawn from the circumstances described in paragraphs 5 - 10, below.  I note the following observation of Justice Loo in Troy vs Kemmir Enterprises Inc 2003 BCSC 1947; [2003] BCJ No. 2933 @ paragraph 25:

[5]           Mr. Parchment alleges, and has deposed, that:

[6]           On December 23, 2013, Mr. Parchment was granted bail pending the hearing of his appeal.  One of his bail conditions required him to:

[7]           Mr. Parchment was arrested after a curfew check in the early morning hours of January 1, 2015, which led the police to believe that he was not then resident at 67 Porter Road. 

[8]           The owner of the house at 67 Porter Road is Ms. Tracey Janvier.  Mr. Parchment’s counsel approached her before the bail hearing to arrange a place for Mr. Parchment to live.  She advised Mr. Parchment’s counsel that the tenants then in possession would be moving out before December 23, 2014, and that the house would be available to Mr. Parchment on his release.  Mr. Parchment’s counsel made his bail application on the strength of that assurance.  Unfortunately, due to a disagreement between Ms. Janvier and the tenants, the tenants did not move out until early January, and the house was not available to Mr. Parchment when he was released on bail on December 23.  As a result, he has never resided at 67 Porter Road.  Ms. Rains, Mr. Parchment’s bail supervisor, met with Mr Parchment, for the first time, on December 29, 2014.  She reviewed the bail conditions with Mr. Parchment at that meeting.  Mr. Parchment signed a copy of the conditions to acknowledge that he had read and understood them.  Mr. Parchment told her that he was living at 67 Porter Road with “Tracey”.  Mr. Parchment did not request any change in the residence condition.  Ms. Rains never gave Mr. Parchment permission to reside at any other address.  Ms. Rains was away from her office on January 1 - 4, 2015.  When she returned to work on January 5, she received a letter from Mr. Parchment, dated December 31, 2014, requesting a change in the residency condition.  If she had received that request before January 1, she would have considered it on its merits.

[9]           Mr. Parchment alleges that it is the practice of police and bail supervisors to resolve residency issues, like the one described in paragraph 8, by assisting the person on bail to find an alternate residence, and that a Caucasian would not have been charged with breach of bail conditions in those circumstances.

[10]        Mr. Brian Jones appeared as Crown counsel at the trial before me.  Mr. Jones is a senior and respected member of the criminal bar on Vancouver Island.

[11]        As Justice Loo noted in Troy, few allegations of racial motivation can be proven by direct evidence.  In most cases, the allegation can be proven, if at all, only by proving a pattern of behaviour from which an inference may be drawn.  A consistent pattern of behaviour over an extended period often provides a more compelling basis for an inference than an isolated incident.  Recognizing that, Mr. Parchment submits that the present prosecution for breach of bail is simply a continuation of a campaign of racially-motivated harassment of him by the RCMP and Mr. Jones, which began with the First Drug Prosecution, continued through the RCMP actions described in paragraphs 5(b) and 5(c) and the Second Drug Prosecution, and has culminated in the charge of breach of bail which is now before me.  In his written submissions, Mr. Parchment says:

[12]        In order to fairly adjudicate either Mr. Parchment’s application or Mr. McFadgen’s preliminary objection to it, I must consider the evidence summarized in paragraphs 5 - 10 to determine whether it establishes, or is capable of establishing, the racial motivation alleged by Mr. Parchment.  That gives rise to a problem.  The problem is that, in so doing, I would be obliged to review the circumstances leading up to the First and Second Drug Prosecutions, and the proceedings before the Supreme Court of British Columbia in those prosecutions, and to form an opinion as to whether the process in those prosecutions infringed Mr. Parchment`s rights under section 15 of the Canadian Charter of Rights & Freedoms.  That might be appropriate if I possessed some supervisory jurisdiction over proceedings in the Supreme Court of British Columbia, but I do not.  Indeed, as noted below, the contrary is true.  The Supreme Court of British Columbia possesses prerogative supervisory jurisdiction over proceedings in this court, and has jurisdiction to grant the remedy which Mr. Parchment seeks from me.  I have no correlative jurisdiction in relation to the First or Second Drug Prosecution.  I observe that the Second Drug Prosecution has not yet been finally adjudicated.

[13]        If Mr. Parchment’s allegations are correct, and can be substantiated, it would be open to him to apply for a judicial stay of the Second Drug Prosecution on the same grounds as those advanced on the application before me.  It may or may not be too late for him to make that application, but that is not for me to decide.  If I were to decide Mr. Parchment`s application in this case, I would be obliged to decide the very issues of fact and law which would arise if Mr. Parchment were to apply for a judicial stay of the Second Drug Prosecution.

[14]        There are three good reasons for me to decline to decide the issue raised by Mr. Parchment on this application:

[15]        If there were no other convenient forum in which Mr. Parchment could obtain the relief which he seeks from me, the matters raised in paragraph 14 would not be determinative.  Neither procedural difficulties nor judicial comity may be invoked to prevent a citizen from asserting his constitutional rights, or from procuring an appropriate remedy for infringement of those rights. 

[16]        However, there is another convenient forum in which Mr. Parchment can apply for the remedy which he seeks from me.  The Supreme Court of British Columbia possesses concurrent original jurisdiction in relation to the application which Mr. Parchment has made before me: Mills vs the Queen 1986 CanLII 17 (SCC), [1986] 1 SCR 863, per Justice Lamer @ pages 892 - 899.  I observe that, although Justice Lamer dissented in the result, his reasoning on this point was adopted by Chief Justice Dickson (who concurred in the judgment of Justice Lamer), and by Justices Wilson (at page 967) and LaForest (at pages 971 - 972).  On the point now under discussion, Justice Lamer’s views were those of the majority of the court.  Justice Lamer’s views are entirely consistent with, and supported by, the judgment in R vs Caron 2011 SCC 5 (CanLII), [2011] 1 SCR 78.  

[17]        I accept, of course, that an application of the kind made by Mr. Parchment should normally be decided by the trial judge.  However, where, as here, there are compelling reasons for the application to be decided by a superior court, I think it right to decline jurisdiction and to leave Mr. Parchment to pursue his remedies in that court.

[18]        Lest there be any doubt, I wish to make it clear that I express no opinion as to the merits of Mr. Parchment’s application or of Mr. McFadgen’s preliminary objection to it.

[19]        When a court declines jurisdiction on grounds of forum non conveniens, the appropriate remedy is a stay of the proceeding to allow adjudication in the convenient forum.  As a result: